European Union Law: Cases and Materials, 2nd Edition

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European Union Law

This eagerly awaited new edition has been revised after extensive user feedback to meet current teaching requirements. The first major textbook to be published since the rejuvenation of the Lisbon Treaty, it retains the best elements of the first edition – the engaging, easily understandable writing style, extracts from a variety of sources showing the creation, interpretation and application of the law and comprehensive coverage. In addition it has separate chapters on EU law in national courts, governance and external relations reflecting the new directions in which the field is moving. The examination of the free movement of goods has been restructured. Chapter introductions clearly set out what will be covered in each section, allowing students to approach complex material with confidence, and detailed further reading sections encourage further study. Put simply, it is required reading for all serious students of EU law. Damian Chalmers is Professor of European Law at the London School of Economics and Political Science. Gareth Davies is Professor of European Law at the Department of Transnational Legal Studies, VU University, Amsterdam. Giorgio Monti is Reader in Law at the London School of Economics and Political Science.

European Union Law CASES AND MATERIALS SECOND EDITION

Damian Chalmers Gareth Davies Giorgio Monti

CAMBRIDGE UNIVERSITY PRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Dubai, Tokyo, Mexico City Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521121514

© Damian Chalmers, Gareth Davies and Giorgio Monti 2010 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2010 Reprinted 2010 Printed in the United Kingdom at the University Press, Cambridge A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data ISBN 978-0-521-12151-4 Paperback

Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Contents

Map xvii Preface xix Abbreviations xxi Table of Cases xxiii Table of Treaties, Instruments and Legislation Table of Equivalents lxxxv Electronic Working Paper Series xci

lxi

1 European Integration and the Treaty on European Union 1 Introduction 2 2 Europe and the European Union (i) The idea of Europe 4 (ii) The idea of ‘European union’

1

3 7

3 Early Development of the European Communities

9 From the Treaty of Paris to the Treaty of Rome 9 The EEC Treaty 12 De Gaulle and the Luxembourg Accords 13 Emergence of two visions of political authority 14 The early enlargements 18 The Single European Act and Beyond 19 (i) Run-up to the Single European Act 19 (ii) The Single European Act 20 (iii) The road to Maastricht 22 The Treaty on European Union 23 (i) A tripartite institutional settlement 23 (ii) The new competences 25 (iii) The quest for Union ‘democracy’ 25 The 1990s: The Decade of Self-Doubt 26 (i) Ratification of the Treaty on European Union 26 (ii) The Treaty of Amsterdam 28 (a) The Area of Freedom, Security and Justice 28 (b) Further supranational ‘democratisation’ 29 (c) Differentiated integration 29 Recasting the Borders of the European Union 30 The Constitutional Treaty 34 (i) The European Union Charter of Fundamental Rights and Freedoms and the Treaty of Nice (ii) The Constitutional Treaty 36

(i) (ii) (iii) (iv) (v)

4

5

6

7 8

v

34

vi Contents 9 The Lisbon Treaty

38 (i) The road to Lisbon 38 (ii) The Treaty of Lisbon 40 (a) Two treaties of equal value: the Treaty on European Union and the Treaty on the Functioning of the European Union 40 (b) Enhancing the democratic credentials of the Union 42 (c) Supranationalisation of the Union 46 (d) Recasting the institutional setting 47 (iii) Ratification of the Lisbon Treaty 48 Further reading 50

2 The EU Institutions

52

1 Introduction 52 2 The Commission 54

3

4

5

6

(i) The Commission bureaucracy 54 (a) The College of Commissioners 54 (b) The President of the Commission 56 (c) The Directorates-General 57 (d) The Cabinets 58 (ii) Powers of the Commission 58 (a) Legislative and quasi-legislative powers 59 (b) Agenda-setting 61 (c) Executive powers 63 (d) Supervisory powers 64 (iii) Regulatory agencies and the Commission 66 The Council of Ministers 67 (i) Powers and workings of the Council 67 (ii) Decision-making within the Council 69 (iii) Management of the Council: the Presidency, the Secretariat and COREPER 73 The European Council 75 (i) Powers of the European Council 76 (ii) Organisation of the European Council 78 (iii) The European Council within the EU institutional settlement 79 The European Parliament 81 (i) Composition of the European Parliament 81 (ii) Powers of the European Parliament 84 (a) Legislative powers of the European Parliament 86 (b) Powers over the Executive 86 (c) Financial powers of the Parliament 89 Other Institutions 89 (i) The Court of Auditors 89 (ii) The Committee of the Regions and the Economic and Social Committee 89 Further reading 91

3 Union Law-making

92

1 Introduction 92 2 Allocation of Legislative Procedures 3 EU Legislation 98 (i) Types of legislative act in EU law (ii) The hierarchy of norms 100 (iii) Soft law 101

94 98

vii Contents 4 EU Legislative Procedures

103 (i) Ordinary legislative procedure 103 (a) Central features of the ordinary legislative procedure 103 (b) Legislative practice and the ordinary legislative procedure 105 (c) First reading and the trilogue 107 (ii) Special legislative procedures 110 (a) Consultation procedure 110 (b) Assent procedure 112 5 Enhanced Cooperation 113 6 Comitology 117 (i) Comitology procedures 117 (ii) The Parliament and comitology 120 (iii) Dynamics of comitology and its concerns 122 7 The ‘Democratic Deficit’ and the Legislative Process 125 (i) Representative democracy and national parliaments 126 (ii) Participatory democracy and republicanism 132 Further reading 136 Annex 137

4 The EU Judicial Order

142

1 Introduction 142 2 The Court of Justice of the European Union

3

4

5

6

143 (i) The Court of Justice 144 (ii) The General Court 147 (iii) The European Union Civil Service Tribunal 149 Architecture of the EU Judicial Order 149 (i) Preliminary reference procedure and the EU judicial order 149 (ii) Subjects of the EU judicial order 153 (iii) Structure of the EU judicial order 155 Functions of the Preliminary Reference Procedure 157 (i) Development of EU law 158 (ii) Judicial review of EU institutions 158 (iii) Preserving the unity of EU law 160 (iv) Dispute resolution 164 Management of the EU Judicial Order 168 (i) Binding effects of Court of Justice judgments 169 (ii) Management of the reference period and interim measures 172 (iii) Managing the circumstances in which national courts refer 174 The Docket of the Court of Justice 178 Further reading 183

5 The Authority of EU Law

184

1 Introduction 184 2 Sovereignty of EU Law

185 (i) The sovereign claims of EU law 185 (ii) Sovereignty of EU law and domestic constitutional settlements (a) European constitutional sovereignty 190 (b) Unconditional national constitutional sovereignty 191 (c) Constitutional tolerance 194

188

viii Contents 3 Establishment of a European Sovereign Order

4 5

6

7

197 (i) The academic debate on the different claims to sovereign authority 197 (ii) The ends and means for reconciling difference and moving to a European sovereign order The Primacy of EU Law 203 The Quality of EU Legal Authority 206 (i) Pre-emption and different models of European integration 206 (ii) Exclusive competence 207 (iii) Shared competence 208 (iv) Other fields of competence 210 Limits of EU Legal Authority 211 (i) Doctrine of conferred powers 211 (ii) Flexibility provision 214 (iii) Protection of national constitutional identities 219 The Fidelity Principle 223 Further reading 227

6 Fundamental Rights

228

1 Introduction 228 2 Fundamental Rights and the Scheme of the Treaties 230 3 The Substance of EU Fundamental Rights Law 232

4 5

6

7

(i) National constitutional traditions and the ECHR in EU fundamental rights law (ii) European Union Charter of Fundamental Rights and Freedoms 237 Standard of Protection of Fundamental Rights 241 Fundamental Rights and the Institutional Scheme of the European Union 248 (i) Fundamental rights and the EU institutions 248 (ii) Fundamental rights and the Member States 252 (iii) National contestation of EU fundamental rights 256 The European Union Within the European Convention on Human Rights 259 (i) The politics of Union accession to the ECHR 259 (ii) Obligations of the Union under the ECHR 260 EU Fundamental Rights Policy 262 (i) Fundamental rights and the external relations of the Union 262 (ii) A domestic fundamental rights policy 264 Further reading 266

7 Rights and Remedies in National Courts 1 Introduction 267 2 Direct Effect and the Idea of an EU Right 3 Exploitation of Direct Effect 271

267

268

(i) Relaxing the criteria: towards a test of justiciability 271 (ii) The state’s duty to protect individual rights and the emergence of horizontal direct effect 273 4 Direct Effect and the Development of EU Remedies and Procedures 276 (i) Pan-European remedies in national courts 277 (ii) Union oversight of local remedies in domestic courts 283 5 Direct Effect and Secondary Legislation 285 (i) Establishment of the direct effect of Directives and national resistance 286 (ii) Vertical direct effect of Directives 288 (iii) Debate about horizontal direct effect and incidental direct effect 290

232

201

ix Contents 6 Indirect Effect

294 (i) Arrival of indirect effect 294 (ii) When does the duty of indirect effect arise? 297 (iii) Range of measures that national courts must take into account 7 State Liability 301 (i) Arrival and challenges of state liability 301 (ii) Conditions of liability 304 (iii) Liability of judicial institutions 308 8 Drawing the Threads Together 312 Further reading 313

8 Infringement Proceedings

300

315

1 Introduction 315 2 The Different Roles of Infringement Proceedings (i) Article 258 TFEU and the rule of law 318 (ii) Article 258 TFEU as a public policy instrument (iii) Article 258 TFEU as a public law arena 324 3 Scope of Member State Responsibilities 327 (i) Acts and omissions of all state agencies 327 (ii) Accountability of state actors 330

316 320

4 The Different Stages of Infringement Proceedings

332 (i) Informal letter 332 (ii) Letter of formal notice and Member State observations 335 (iii) Reasoned Opinion and the period for national compliance 336 5 Administration of Infringement Proceedings 339 (i) The Commission’s discretion 339 (ii) Complainants and Article 258 TFEU 341 6 Sanctions 343 (i) Article 260 TFEU and the Lisbon reforms 343 (ii) Types of sanction levied under Article 260 TFEU 346 (iii) Level of fines imposed 348 Further reading 349

9 Governance

350

1 Introduction 350 2 The Governance Agenda

352 (i) The norms of governance 353 (ii) The traits of governance 354 3 Subsidiarity and Proportionality 361 (i) An outline of the subsidiarity and proportionality principles 361 (ii) Subsidiarity 363 (iii) Proportionality 367 (iv) Subsidiarity, proportionality and ‘better regulation’ 372 4 Consultation 373 (i) General standards and the minimum principles for consultation 373 (ii) Dialogue within the consultation process 375 (iii) Transparency of the consultation process 377 (iv) Inclusiveness of EU consultation 378 5 The Priority of Knowledge 379 (i) Expertise and the policy-making process 380 (ii) Impact assessment 383

x Contents 6 Transparency

384 (i) Scope of the right to access to documents 386 (ii) Exceptions to the right to access to information 389 Further reading 394

10 Judicial Review

396

1 Introduction 396 2 Scope of Judicial Review and Article 263 TFEU 3 Grounds of Review 401

398

(i) (ii) (iii) (iv)

4

5 6 7

8

Lack of competence 402 Manifest error of assessment and abuse of power 403 Rights of process 406 Infringement of the Treaties or of any rule of law relating to their application (a) Non-discrimination 410 (b) Legal certainty 411 (c) Legitimate expectations 412 Standing under Article 263 TFEU 413 (i) Privileged and semi-privileged applicants 413 (ii) Non-privileged applicants 414 (a) Regulatory acts and legislative acts 414 (b) Direct concern 415 (c) Individual concern and the Plaumann formula 418 (d) Standing and interest groups 425 Article 265 TFEU and the Failure to Act 428 The Plea of Illegality 430 Non-contractual Liability 431 (i) Nature of the liability 432 (ii) Presence of loss caused by the Union 436 Consequences of Annulment 437 Further reading 438

11 EU citizenship 1 2 3 4

439

Introduction 439 Evolution of Modern Citizenship 441 Nature of EU Citizenship 444 Right to Move and Reside within the Union

447 (i) Conditions of residence 449 (ii) Right to equal treatment 452 (a) Meaning of discrimination 452 (b) Scope of the prohibition 453 (c) Equal treatment and social assistance 454 (d) Restrictions on movement 460 (e) The internal situation and reverse discrimination (iii) Family rights 464 (a) The EU idea of the family 465 (b) Separation, death and divorce 466 (c) Rights of children and carers 467 (d) The family and human rights 469 (e) Family members coming from outside the Union

462

470

409

xi Contents (iv) Administrative formalities 474 (v) Grounds for exclusion 476 5 Political Rights of EU Citizens 479 (i) Rights to vote and hold office 480 (ii) Right to petition and hold the administration accountable (iii) Right to diplomatic protection 483 Further reading 484

12 EU Law and Non-EU Nationals

482

485

1 Introduction 486 2 Union Competences on Border Checks, Asylum and Immigration

487

(i) Central competences 487 (ii) Protocol on the Schengen Acquis 488 (iii) Protocols on the United Kingdom and Ireland and on Denmark

3 Non-EU Nationals and the Area of Freedom, Security and Justice (i) Economic mercantilism 494 (ii) National security and national sovereignty (a) Frontiers as national markers 496 (b) The criminalisation of migration 497 (c) The external frontier 500 (iii) Humanitarianism 503 (iv) European solidarity 506

491 492

496

4 Unwelcome Non-EU Nationals: The Returns Directive 509 5 ‘Desirable’ Non-EU Nationals: The Long-term Residents Directive

511

(i) Acquisition of long-term residence status 512 (ii) Rights acquired against the host state 514

6 ‘Suspicious Foreigners’: The EU Regime on Asylum Seekers (i) Right to remain pending consideration of the application (ii) Provision of material reception conditions 521 (iii) Policing of asylum seekers through welfare 523 7 ‘Poor Foreigners’: Refugees and Subsidiary Protection 525 (i) Acquisition and loss of refugee status 527 (ii) Subsidiary protection 528 (iii) Varying benefits of international protection 530 Further reading 533

13 Equal Opportunities Law and Policy

518 519

534

1 Introduction 534 2 Development of EU Equal Opportunities Law

536 (i) Economic versus non-economic visions of EU law 536 (ii) Equal opportunities versus substantive equality 542 (iii) The core framework of EU equality law: the labour market 3 Equality Grounds 546 (i) Sex/gender 547 (ii) Racial or ethnic origin 549 (iii) Religion or belief 551 (iv) Disability 551 (v) Age 553 (vi) Sexual orientation 554 (vii) Excluded groups 555

542

xii Contents 4 Discrimination: Meaning, Defences and Remedies

557

(i) Direct discrimination 557 (ii) Indirect discrimination 559 (a) Concept of indirect discrimination 559 (b) Legitimate aim defence 559 (iii) Harassment 560 (iv) Defences 562 (a) Genuine occupational requirements 562 (b) Other defences 564 (v) Remedies 567 (a) Procedures 567 (b) Compensation 569

5 Widening the Scope of EU Equal Opportunities Policy (i) (ii) (iii) (iv)

Beyond the labour market Positive action 572 Dialogue 575 Mainstreaming 576 Further reading 580

14 EU Criminal Law

569

570

581

1 Introduction 581 2 EU Criminal Law and the Problem of Internal Security

583 (i) The Member States and internal security 584 (ii) Towards an EU idea of collective security 586 (iii) Mediation of national and collective security concerns 590 (a) Retention of the pre-Lisbon normative order 590 (b) National controls over the law-making process 592 (c) Differentiated integration 593 3 Judicial Cooperation in Criminal Matters 594 (i) Principle of mutual recognition 594 (ii) The European Arrest Warrant 597 (iii) Principle of ne bis in idem 607 4 Harmonisation of Criminal Law 611 (i) Euro-crimes 613 (ii) Criminal law and securing the effectiveness of other EU policies 5 Police Cooperation 618 (i) Principle of availability of information 619 (ii) Private policing regimes 622 (iii) An EU intelligence capacity 624 Further reading 628

15 External Relations

630

1 Introduction 630 2 Nature of the Union’s International Presence (i) Legal personality 632 (ii) Direction of EU external action

632

634

3 The External Competences of the Union (i) Express powers (ii) Implied powers

616

637

637 640

4 EU External Relations and the Autonomy of the Member States (i) External relations and the federal question

645

645

xiii Contents (ii) Exclusive competences and mixed agreements 647 (iii) Mixity and exclusivity: part of a continuum? 649 5 EU Law and International Law 652 (i) Legal effect of international agreements 652 (ii) EU law and international law 657 6 Common Foreign and Security Policy 659 (i) Norms and procedures of the Common Foreign and Security Policy (ii) The High Representative 663 (iii) National foreign policy cooperation and the autonomy of the CFSP (iv) Mission of the Common Foreign and Security Policy 667 7 European Security and Defence Policy 670 Further reading 673

16 The Internal Market 1 2 3 4 5

659 665

674

Introduction 674 Purpose of the Internal Market 675 Legal Framework of the Internal Market Competence to Legislate 686 Techniques of Regulation 696

677

(i) The old and new approaches 696 (ii) Mechanics of the new approach 697 (iii) Minimum harmonisation 700

6 Non-economic Interests in the Internal Market 7 Regulatory Competition 705 Further reading 711

17 Economic and Monetary Union

701

712

1 Introduction 712 2 The Architecture of Economic and Monetary Union

714 (i) Central pillars of Economic and Monetary Union 714 (ii) Differentiated obligations of Economic and Monetary Union 3 Free Movement of Capital 721 4 The Institutions of EMU: the ECB and the ESCB 727 (i) The European System of Central Banks and its tasks 727 (ii) Central bank independence and accountability 731 (iii) The external relations of the euro-zone 736 5 The Excessive Deficit Procedure 737

6 Economic Surveillance and the Broad Economic Policy Guidelines Further reading 743

18 The Free Movement of Goods

719

740

744

1 Introduction 744 2 General Definition of a Measure Equivalent to a Quantitative Restriction (i) (ii) (iii) (iv) (v) (vi)

Dassonville 747 Limits of the notion of an MEQR 749 Form of an MEQR 752 De minimis 754 The internal situation 755 Article 34 TFEU and private actors 757

746

xiv Contents 3 Product Standards and Cassis de Dijon

760 (i) Mutual recognition 763 (ii) Mandatory requirements 766 (a) Consumer protection 767 (b) Protection of the environment 771 4 Selling Arrangements and Keck 773 (i) The notion of a selling arrangement 776 (ii) Unequal effect of selling arrangements 778 5 Article 35 TFEU and Restrictions on Exports 780 Further reading 782

19 The Free Movement of Services 1 Introduction 783 2 Regulating the Services Market 3 Cross-border Services 787 (i) What is a service? 787 (ii) The cross-border element (iii) Remuneration 790

783

785

788

4 Restrictions on the Movement of Services

792 (i) The notion of a restriction on the provision of services (ii) Horizontal application of Article 56 TFEU 797 5 Justifying Restrictions on Services 803 (i) Restrictions on marketing and prices 805 (ii) Access to regulated industries and professions 807 (iii) Tax and investment issues 809 6 Services and the Market Society 811 (i) Right to trade and socially sensitive services 811 (ii) The market society 813 (iii) Article 56 TFEU and the welfare state 814 (iv) The proposed Directive on patients’ rights 820 7 The Services Directive 823 (i) Scope of application of the Services Directive 824 (ii) Administrative simplification 825 (iii) Right to provide and receive services 826 (iv) Administrative cooperation 827 Further reading 828

792

20 The Pursuit of an Occupation in Another Member State

829

1 Introduction 829 2 Taking Up and Pursuit of an Occupation in Another Member State

830 Employment and self-employment 832 Performance of significant economic activity in another Member State 834 The cross-border element 836 Towards an overarching right to pursue an occupation in another Member State 3 Restrictions on the Taking Up of an Occupation 839 (i) Discriminatory restrictions on the taking up of an activity 839 (ii) Restrictions on access to occupational activities and labour markets 840 (iii) Restrictions on secondary establishment 844 (iv) Restrictions on the use of diplomas and qualifications 846 (v) Restrictions on grounds of abuse of free movement 852 (i) (ii) (iii) (iv)

836

xv Contents 4 Restrictions on the Pursuit of an Occupation

853 (i) Discrimination in labour markets 854 (ii) Discrimination in the pursuit of a business 855 (iii) Equally applicable restrictions on the pursuit of an occupation 856 5 The Free Movement of Companies 860 (i) Discrimination and foreign companies 860 (ii) Relocation of company activity from one Member State to another 862 6 The Services Directive and Freedom of Establishment 867 Further reading 869

21 Trade Restrictions and Public Goods 1 2 3 4

870

Introduction 870 Balancing Free Movement Against Other Interests 871 Public Goods Protected under EU Law 872 Principles Mediating Conflicts Between Free Movement and Public Goods (i) (ii) (iii) (iv) (v)

The measure must be necessary 879 Prohibition on arbitrary discrimination 882 The measure must be effective 883 Mutual recognition 886 The measure must be the least restrictive option 5 Environmental Protection 894 6 Public Health 898

7 Public Policy, Public Security and Public Morality 8 Public Service and Official Authority 905 Further reading 907

888

902

22 EU Competition Law: Function and Enforcement 1 Introduction 908 2 Aims of EU Competition Law

910 (i) The economics of competition 910 (ii) The politics of competition law 916 (iii) Aims of EU competition policy 918 3 Enforcement by the Commission 924 (i) First stage: investigation 924 (a) Requests for information and interviews 925 (b) Inspections 927 (ii) Second stage: adjudication 930 (a) Statement of objections and access to the file 930 (b) Oral hearing 931 (iii) Penalties for infringement 932 (a) Fining policy 933 (b) Leniency policy 935 (iv) Commitment Decisions and settlements 937 (v) The Commission’s procedures: an assessment 938 4 Resettlement of Competition Regulatory Authority 941 (i) Modernisation 941 (ii) The Commission’s new role 944 (iii) The European Competition Network 946 (a) Case allocation 946 (b) Cooperation within the network 948 (iv) Assessment 949

908

877

xvi Contents 5 Private Enforcement

952 (i) An EU right to damages 952 (ii) Legislative initiatives 956 (a) Direct and indirect purchasers 957 (b) Collective redress 958 (c) Further legislative initiatives 958 (d) Assessment 959 Further reading 960

23 Antitrust and Monopolies

962

1 Introduction 962 2 Scope of Application of EU Competition Law

964 (i) Undertakings 964 (ii) Effect on trade between Member States 966 (iii) Excluded agreements 967 3 Article 101 TFEU: Restrictive Practices 971 (i) Agreements, decisions and concerted practices 972 (a) Cartels 973 (b) Distinguishing between agreement and unilateral action 979 (ii) Object or effect the restriction, distortion or prevention of competition (a) Background to the controversy 983 (b) Agreements restrictive of competition by object 985 (c) Agreements having an anti-competitive effect 987 (iii) Role of Article 101(3) TFEU 992 (a) Individual exemptions 992 (b) Block exemptions 995 4 Article 102 TFEU: Abuse of a Dominant Position 997 (i) Dominance 998 (a) Market shares 999 (b) Barriers to/ease of entry 999 (ii) Abuse of dominance: general principles 1001 (iii) Predatory pricing 1005 (iv) Reform 1007 5 Convergence 1011 Further reading 1012

24 State Regulation and EU Competition Law

1013

1 Introduction 1013 2 Anti-competitive State Regulation

1014 1014 1020 3 Services of General Interest 1026 (i) Definition of undertakings 1026 (ii) Application of Article 106(2) TFEU 1030 (iii) An EU approach to SGEIs? 1035 (i) A general obligation (ii) A specific obligation

4 Positive Integration: The Liberalisation of Network Industries (i) Postal services liberalisation: the first phase 1039 (ii) Postal services liberalisation: Commission monitoring (iii) Postal services liberalisation: full competition 1044 5 Evaluation 1046 Further reading 1049 Index

1051

1038

1042

983

MADEIRA (Portugal)

ICELAND

AZORES (Portugal)

EU member countries

GUADELOUPE

Candidate countries

(France)

CANARY ISLANDS (Spain)

MARTINIQUE (France)

ED

N O RW

AY

EN

FINLAND

SW

GUIANA (France)

RÉUNION (France)

ESTONIA LATVIA DENMARK

RUSSIA

LITHUANIA

UNITED KINGDOM

KAZAKHS TAN

IRELAND

RUSSIA

BELARUS NETHERLANDS

POLAND

GERMANY BELGIUM LUXEMBOURG

UKRAINE

CZECH REP. SLOVAKIA

FRANCE SWITZERLAND

AUSTRIA

LIECHTENSTEIN

MONACO

I

A

SPAIN

ROMANIA

A OATI

BOSNIAHERZEGOVINA SAN SERBIA MARINO

T

POR TU GA L

CR

SLOVENIA

ANDORRA

MOLDOVA

HUNGARY

VATICAN CITY STATE

L

GEORGIA AZERBAIJAN

ARMENIA BULGARIA

MONTENEGRO

Y

IRAN

FYROM

ALBANIA

TURKEY GREECE

SYRIA

MOROCCO

xvii

ALGERIA

TUNISIA

IRAQ MALTA

CYPRUS

LEBANON

Preface

The cover of this book portrays the Myth of Europa. The story has it that Europa, a Phoenician princess, was abducted by Zeus, the god of thunder, disguised as a bull. Zeus had been searching for a wife beautiful enough to become Queen of his native Crete. When he saw Europa he was smitten. Europa was gathering flowers by the seaside with her friends when she came upon the bull. Uncommonly gentle, the bull inspired no fear. Decking its horns with flowers, Europa climbed upon its back, whereupon the bull – Zeus – took off at a trot and dived into the sea. Europa was carried off to Crete, where she became the mother of Minos, the mythical King of Crete, who periodically demanded a tribute of young men and women of Athens to be sacrificed to the Minotaur. This myth has not died with the ancients. In 1956, the six countries that were to sign the EEC Treaty appropriated her name to issue a set of Europa stamps to symbolise a community of interests and objectives. And today, Zeus’s kidnap of Europa is depicted on the Greek 2 euro coin. The myth has been understood in a variety of ways. On one level, it is a story of virtue, innocence and romance; on another, it is a warning of violence and exclusion. As with many of the ancient myths, misunderstanding and contestation lie at its very heart. The Roman depiction on our cover is one of the first depictions and, insofar as the human participants are depicted as Romans, reminds us too that the myth has been repeatedly appropriated and reinvented. We have also here a tale with its origins in modern Lebanon, which was told by the Ancient Greeks, and which then became a central fable of Ancient Rome. Yet Europa’s myth is now seen as the origin of a territory whose cultural heartland lies somewhere in central Europe, Mitteleuropa, perhaps in the modern Czech Republic, perhaps in Vienna, but certainly somewhere in a nation that became a Member State of the European Union only very recently. In today’s Europe, misunderstanding, contestation, appropriation and reinvention permeate not only its founding myth, but also its most modern institution, the European Union, the law of which is this book’s subject. European Union law is often seen as embodying new ideals, new rights and new forms of welfare. Equally, however, it is portrayed as being intrusive, divisive and costly. On the one hand, EU law is said to bring an international comity and to provide a powerful counter to the narrow (and historically dangerous) parochialism that has marked so much of Europe’s bloody past. On the other hand, critics point to an overweening, inflexible, even pernicious European-ness, that is intolerant of national diversity and that stymies local democracy.

xix

xx Preface

The reaction to the ratification of the Lisbon Treaty exemplified this at its most extreme. The Presidents of France and Germany, Nicholas Sarkozy and Angela Merkel, have stated that it is necessary to make the European Union more democratic and to enable it to meet the challenges confronting EU citizens. By contrast, the President of the Czech President, Vaclav Klaus, announced, after ratifying the Treaty, that the Treaty marked the end of the Czech Republic as a sovereign state and seemed to incite Czechs to rise up against it. How could the same document induce such diametrically opposite and polarising reactions? It is exactly this anxious fragility that gives European Union law its peculiar vitality and interest. It brings both a sceptical eye to the analysis of EU law and a constant demand to revisit old assumptions. As such, debates about EU law have in recent years been central in reconsidering ideas of the state and of political community, of the market, and of tradition and society. This book owes a number of large debts. A particularly strong imprint and contribution has been left by Professors Adam Tomkins and Cristos Hadjiemmanuil, who contributed to the first edition but not to this. We miss their friendliness and vitality, but continue to benefit enormously from their insights. The efficiency, the friendliness and patience of Cambridge University Press continue as a hallmark of our relationship with them. We would particularly like to thank Elizabeth Davison and Sinead Moloney. Ila Bhate has been a consummate research assistant: friendly, helpful, enthusiastic, patient and thoughtful. The division of responsibility for the book is as follows. Damian Chalmers wrote Chapters 1–10, 12, 14 and 17. Giorgio Monti wrote Chapters 13, 22, 23 and 24. Gareth Davies wrote Chapters 11, 16, 18, 19, 20 and 21. Damian and Giorgio co-wrote Chapter 15. In writing his chapters, Gareth drew freely on the versions written by Damian for the first edition, and would like to acknowledge this. Finally, there are a number of personal debts. Damian Chalmers would like to thank Juliana Cardinale once again. Her support was as constant as ever, and her humour ever more sustaining. Gareth Davies wishes to thank Marjolein van Wieringen for her tolerance and good humour during the writing of his chapters. Giorgio Monti wishes to thank Ayako for her common sense and support, and Giulia for being a constant source of wonder and laughter. Giorgio and Gareth would also like to thank Damian for his invitation to join him in writing this book, as well as for his leadership and guidance throughout the writing process. The Treaties were renumbered by the Treaty of Lisbon which came into force on 1 December 2009. We have used the new Treaty numbers throughout, but have also made reference, where possible, to their prior equivalents to help readers who are used to the old numbers. However, there is one possible point of confusion. The Treaty on European Union following the Lisbon Treaty is significantly different in its content from its predecessor, which was also known as the Treaty on European Union. To distinguish the two, we use the abbreviation ‘TEU’ wherever we are referring to the Treaty on European Union as currently in force, and ‘TEU(M)’ when referring to the Treaty on European Union in force prior to the Lisbon Treaty (the ‘M’ refers to the Maastricht Treaty which gave the latter treaty its famous tripartite structure). A Table of Equivalents is included for reference’s sake. We have aimed to state the law as at 1 December 2009.

DC, GD, GM

Abbreviations

AFSJ BER BSE CAP CESR CFI CFSP CISA COR COREPER COSAC

CT DCT DG EAW EC ECB ECHR ECN ECOWAS ECSC ECtHR ECU EDC EDP EEA EEC EFSA EFTA EMI EMS EMU ENP EO ERDF ERM

xxi

Area of Freedom, Security and Justice Block Exemption Regulation bovine spongiform encephalopathy Common Agricultural Policy Committee of European Securities Regulators Court of First Instance Common Foreign and Security Policy Schengen Implementing Convention Committee of the Regions Committee of Permanent Representatives Conference of Community and European Affairs Committees of Parliaments of the European Union Constitutional Treaty Draft Constitutional Treaty Directorate-General European Arrest Warrant European Communities European Central Bank European Convention on Human Rights European Competition Network Economic Community of West African States European Coal and Steel Community European Court of Human Rights European Currency Unit European Defence Community excessive deficit procedure European Economic Area European Economic Community European Food Safety Authority European Free Trade Area European Monetary Institute European Monetary System economic and monetary union European Neighbourhood Policy European Ombudsman European Regional Development Fund exchange rate mechanism

ERT ESC ESCB ESDP ESecC ESF EUCFR EURATOM EUROPOL FSA FSAP IGC ISO JHA MCA MEP MEQR MiFiD NAAT NCA NCB NGO OHIM OLAF OMC PJCC QMV SEA SGEI SIA SIS TEU TEU(M) TFEU WTO

European Round Table Economic and Social Committee European System of Central Banks European Security and Defence Policy European Securities Committee European Social Fund European Union Charter of Fundamental Rights European Atomic Energy Community European Police Office Financial Services Authority Financial Services Action Plan intergovernmental conference International Standards Organisation Justice and Home Affairs monetary compensation amount Member of the European Parliament measure of equivalent effect Markets in Financial Instruments Directive no appreciable affectation of trade national competition authority national central bank non-governmental organisation Office for Harmonisation in the Internal Market European Anti-Fraud Office open method of coordination police and judicial cooperation in criminal matters qualified majority voting Single European Act services of general economic interest Schengen Implementing Agreement Schengen Information System Treaty on European Union Treaty on European Union (Maastricht) Treaty on the Functioning of the European Union World Trade Organization

Table of Cases

European Court of Justice: numerical order 1/58 Stork v High Authority [1959] ECR 17 232–3 36/59, 37/59, 38/59 & 40/59 Geitling v High Authority [1960] ECR 423 232–3 42/59 & 49/59 SNUPAT v High Authority [1961] ECR 109 411 7/61 Commission v Italy [1961] ECR 317 338 16/62 & 17/62 Confédération Nationale des Producteurs de Fruits et Légumes and others v Council [1962] ECR 471 415 25/62 Plaumann & Co. v Commission [1963] ECR 95 418–19 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1 2, 14–16, 186, 211, 233, 268–71 28/62–30/62 Da Costa [1963] ECR 37 169 31/62 & 33/62 Wöhrmann v Commission [1962] ECR 506 430 75/63 Hoekstra v Bedrijfsvereniging Detailhandel [1964] ECR 177 161 n.92 110/63 Willame v Commission [1965] ECR 649 436 6/64 Costa v ENEL [1964] ECR 585 186–8, 189–90, 211, 233 40/64 Sgarlata v Commission [1965] ECR 215 232–3 56/64 & 58/64 Consten and Grundig v Commission [1966] ECR 299 407–8, 966–7, 979–80, 989 18/65 & 35/65 Gutmann v Commission [1966] ECR 103 405–6 48/65 Lütticke v Commission [1966] ECR 19 339 56/65 Société Technique Minière v Maschinenbau Ulm (Maschinenbau Ulm) [1966] ECR 234 966, 989 57/65 Lütticke v HZA Sarrelouis [1966] ECR 205 271 5/66, 7/66, 13/66–24/66 Kampfmeyer v Commission [1967] ECR 245 437 27/67 Firma Fink-Frucht GmbH v Hauptzollamt München-Landsbergerstrasse [1968] ECR 327 271 n.4

xxiii

35/67 Van Eick v Commission [1968] ECR 329 233 13/68 Salgoil v Italian Ministry of Foreign Trade [1968] ECR 453 271 n.4 14/68 Walt Wilhelm v Bundeskartellamt [1969] ECR 1 941 5/69 Völk v Vervaecke [1969] ECR 295 967 29/69 Stauder v City of Ulm [1969] ECR 419 233 41/69, 44/69 & 45/69 ACF Chemiefarmia v Commission [1970] ECR 661 931, 972 48/69 ICI v Commission (Dyestuffs) [1972] ECR 619 965, 972–3, 978 69/69 Alcan v Commission [1970] ECR 385 416 77/69 Commission v Belgium [1970] ECR 237 327, 329 9/70 Grad v Finanzamt Traustein [1970] ECR 838 286 n.57 11/70 Internationale Handelsgesellschaft v Einfuhrund Vorratstelle für Getreide und Futtermittel (‘Solange I’) [1970] ECR 1125 160–1, 203, 233–5, 236, 367 15/70 Chevalley v Commission [1970] ECR 979 429 22/70 Commission v Council (ERTA) [1971] ECR 263 399, 632, 640 41/70 to 44/70 International Fruit Company v Commission [1971] ECR 411 99–100 59/70 Netherlands v Commission [1971] ECR 639 429–30 5/71 Aktien-Zuckerfabrik Schöppenstedt v Council [1971] ECR 975 433 10/71 Ministère Public du Luxembourg v Muller [1971] ECR 723 1030 93/71 Leonesio v Italian Ministry of Agriculture [1972] ECR 293 285 96/71 Haegeman v Commission [1972] ECR 1005 436–7 6/72 Europemballage Corporation and Continental Can Co. Inc. v Commission (Continental Can) [1973] ECR 215 1001, 1008

xxiv Table of Cases 21/72–24/72 International Fruit Company and Others v Produktschap voor Groenten en Fruit [1972] ECR 1226 652, 653 39/72 Commission v Italy (premiums for slaughtering cows) [1973] ECR 101 98–9, 285 2/73 Riseria Luigi Geddo v Ente Nazionale Risi [1973] ECR 865 746, 747 4/73 Nold v Commission [1974] ECR 491 235 34/73 Variola v Amministrazione delle Finanze [1973] ECR 981 98–9 40/73–48/73, 50/73, 54/73–56/73, 111/73, 113/73 & 114/73 Cooperatiëve Verenigning ‘Suiker Unie’ UA v Commission [1975] ECR 1663 972–3 127/73 BRT v SABAM [1974] ECR 51 942, 952 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153 453, 481–2 155/73 Giuseppe Sacchi [1974] ECR 409 787, 1022 166/73 Rheinmühlen-Düsseldorf v Einfuhr- und Vorratstelle für Getreide [1974] ECR 33 152–3, 158 167/73 Commission v France (French Merchant Navy) [1974] ECR 359 839 175/73 Union Syndicale [1974] ECR 917 235–6 181/73 Haegeman [1974] ECR 449 652 2/74 Reyners v Belgium [1974] ECR 631 271, 273, 787, 836, 839 8/74 Procureur du Roi v Benoît and Gustave Dassonville [1974] ECR 837 744, 746, 747–60 17/74 Transocean Marine Paint v Commission [1974] ECR 1063 236, 408 33/74 Van Binsbergen v Bestuur van der Bedrijsvereniging voor de Metaalnijverheid [1974] ECR 1299 788, 792, 808, 875 36/74 Walrave & Koch v Association Union Cycliste Internationale [1974] ECR 1405 797–8 41/74 Van Duyn v Home Office [1974] ECR 1337 271, 286–7, 477, 652–3, 877, 881, 902–3 56/74–60/74 Kampffmeyer v Commission and Council [1976] ECR 711 436 71/74 FRUBO v Commission [1975] ECR 563 967 74/74 CNTA v Commission [1975] ECR 533 413, 436 4/75 Rewe-Zentralfinanz GmbH v Landwirtschaftskammer Bonn [1975] ECR 843 882–3 32/75 Cristini v SNCF [1975] ECR 1085 855 n.81 36/75 Rutili v Ministre de l’Intérieur [1975] ECR 1219 235 39/75 Coenen v Sociaal-Economische Raad [1975] ECR 1547 792, 808 43/75 Defrenne v Sabena [1976] ECR 455 235–6, 271–2, 273–5, 290, 538, 547–8 104/75 Officier van Justitie v De Peijper [1976] ECR 613 888–90 105/75 Giuffrida v Council [1976] ECR 1395 405–6 118/75 Watson and Belmann [1976] ECR 1185 475 130/75 Prais [1976] ECR 1589 235–6 26/76 Metro SB-Groβmärkte GmbH & Co KG v Commission (No. 1) [1977] ECR 1875 968 n.34, 989

27/76 United Brands Company v Commission [1978] ECR 207 998 n.116, 999, 1001, 1002 33/76 Rewe-Zentralfinanz and Others v Landwirtschaftskammer für das Saarland [1976] ECR 1989 276–8 41/76 Donckerwolcke v Procureur de la République [1976] ECR 1921 652 52/76 Benedetti v Munari [1977] ECR 163 169 64/76 & 113/76, 167/78 & 239/78, 27/79, 28/79 & 45/79 Dumortier Frères v Council [1979] ECR 3091 437 71/76 Thieffry v Conseil de l’Ordre des Avocats à la Cour de Paris [1977] ECR 765 846, 875 85/76 Hoffmann-La Roche & Co. AG v Commission [1979] ECR 461 999, 1003 90/76 Van Ameyde v UCI [1997] ECR 1091 798 117/76 & 16/77 Ruckdeschel v Council [1977] ECR 1753 410 13/77 GB-INNO-BM SA v Association des détaillants en tabac (ATAB) [1977] ECR 2115 1015, 1020 38/77 ENKA v Inspecteur der Invoerrechten [1977] ECR 2203 99–100 82/77 Van Tiggele [1978] ECR 25 805 106/77 Amministrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629 203–4 132/77 Société pour l’Exportation des Sucres SA v Commission [1978] ECR 1061 437 149/77 Defrenne II [1978] ECR 1365 235 15/78 SG Alsacienne v Koestler [1978] ECR 1971 788 n.10 22/78 Hugin Kassaregister AB v Commission [1979] ECR 1869 1001 32/78 & 36/78–82/78 BWM Belgium v Commission [1979] ECR 2435 980–1 84/78 Tomadini v Amministrazione delle Finanze dello Stato [1979] ECR 1801 411 115/78 J. Knoors v Staatssecretaris van Economische Zaken [1979] ECR 399 852–3 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) [1979] ECR 649 697, 744–5, 746–7, 761–3, 770, 873–4 128/78 Commission v United Kingdom (failure to implement regulation 1463/70 on recording equipment in road transport) [1978] ECR 2429 98–9 141/78 France v United Kingdom [1979] ECR 2923 317 148/78 Ministero Pubblico v Ratti [1979] ECR 1629 272–3, 287–8 175/78 Saunders [1979] ECR 1129 836 230/78 Eridania [1979] ECR 2749 236 238/78 Ireks-Arkady v Council and Commission [1979] ECR 2955, 2998–9 436, 437 253/78 & 1/79–3/79 Procureur de la République v Giry and Guéralin [1980] ECR 2327 988 258/78 Nungesser v Commission [1982] ECR 2015 989 804/78 Commission v United Kingdom [1981] ECR 1072 652

xxv Table of Cases 15/79 Groenveld BV v Produktschap voor Vee en Vlees [1979] ECR 3409 780 34/79 R v Henn and Darby [1979] ECR 3975 477, 880, 882, 902 44/79 Hauer [1979] ECR 3727 236 52/79 Procureur du Roi v Debauve [1980] ECR 833 788 n.10 61/79 Denkavit Italiana [1980] ECR 1205 169–70 104/79 Foglia v Novello (No. 1) [1980] ECR 745 150, 164 129/79 Macarthys Ltd v Smith [1980] ECR 1275 543–4 136/79 National Panasonic [1980] ECR 2033 235–6 138/79 Roquette Frères v Council [1980] ECR 3333 110 149/79 Commission v Belgium (No. 2) [1982] ECR 1845 481–2, 905–6 155/79 AM & S Europe Ltd v Commission [1982] ECR 1575 236, 408, 927 788/79 Gilli and Andres [1980] ECR 2071 767, 769 789/79 & 790/79 Calpak and Others v Commission [1980] ECR 1949 98 27/80 Fietje [1980] ECR 3839 769 66/80 International Chemical Corporation (ICC) v Amministrazione Finanze [1981] ECR 1191 162–3, 437 96/80 Jenkins v Kingsgate (Clothing Productions) Ltd [1981] ECR 911 560 100/80–103/80 Musique diffusion française and others v Commission [1983] ECR 1825 933 113/80 Commission v Ireland (Irish Souvenirs) [1981] ECR 1625 770, 878 154/80 Staatsecretaris van Financiëen v Coöperative Aardappelenbewaarplaats [1981] ECR 445 790 155/80 Oebel [1981] ECR 1993 874 172/80 Züchner v Bayerische Vereinsbank [1981] ECR 2021 978 244/80 Foglia v Novello (No. 2) [1981] ECR 3045 164–6, 169 246/80 Broeckmeulen v Huisarts Registratie Commissie [1981] ECR 2311 153, 154–5 272/80 Frans-Nederlandse Maatschappij voor Biologische Producten [1981] ECR 3277 886–7, 898 279/80 Webb [1981] ECR 3305 804 8/81 Becker v Finanzamt Münster-Innenstadt [1982] ECR 53 287 12/81 Garland v British Rail Engineering [1982] ECR 359 544 52/81 Faust v Commission [1982] ECR 3745 413 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035 449, 835, 836 60/81 IBM v Commission [1981] ECR 2639 399–400 62/81 & 63/81 Seco v Etablissement d’assurance contre la vieillesse et l’invalidité [1982] ECR 223 803 n.57 65/81 Reina v Landeskreditbank Baden-Württemburg [1982] ECR 33 153 102/81 Nordsee Deutsche Hochseefischerei v Reederei Mond Hochseefischerei [1982] ECR 1095 154 104/81 Hauptzollamt Mainz v Kupferberg [1982] ECR 3641 99, 285, 647, 653

115/81 & 116/81 Adoui and Cornuaille v Belgian State and City of Liège [1982] ECR 1665 477, 881, 884, 902–3 124/81 Commission v United Kingdom [1983] ECR 203 890–1 210/81 Demo-Studio Schmidt v Commission [1983] ECR 3045 408–9 211/81 Commission v Denmark [1982] ECR 4547 335, 337 245/81 Edeka v Commission [1982] ECR 2745 411 249/81 Commission v Ireland (Buy Irish) [1982] ECR 4005 327, 749, 754 261/81 Rau v De Schmedt [1982] ECR 3961 768 n.66 262/81 Coditel v Ciné-Vog Films [1980] ECR 881 874 267/81–269/81 Amministrazione delle Finanze dello Stato v SPI [1983] ECR 801 160–1 283/81 CILFIT v Ministry of Health [1982] ECR 341 175–7 322/81 Nederlandsche Banden-Industrie Michelin NV v Commission (‘Michelin I’) [1983] ECR 3461 999, 1000–1 7/82 GVL v Commission [1983] ECR 483 932 11/82 Piraiki-Patraiki and Others v Commission [1985] ECR 207 420 35/82 & 36/82 Morson and Jhanjan v Netherlands [1982] ECR 3723 462 n.75 42/82 Commission v France [1983] ECR 1013 901 107/82 AEG Telefunken v Commission [1983] ECR 3135 966–7, 981 165/82 Commission v United Kingdom [1983] ECR 3431 562 174/82 Sandoz [1983] ECR 5094 879, 900 177/82 & 178/82 Van de Haar [1984] ECR 1797 754 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595 277–8 222/82 Apple & Pear Development Council [1983] ECR 4083 327, 757–8 231/82 Spijker v Commission [1983] ECR 2559 422 281/82 Unifrex v Commission and Council [1984] ECR 1969 436–7 286/82 & 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377 788, 812 324/82 Commission v Belgium [1984] ECR 1861 790 13/83 Parliament v Council [1985] ECR 1513 428 14/83 Von Colson and Kamann v Land NordrheinWestfalen [1984] ECR 1891 283, 294–5, 300 37/83 Rewe-Zentrale v Landwirtschaftskammer Rheinland [1984] ECR 1229 901 63/83 R v Kent Kirk [1984] ECR 2689 236, 411 72/83 Campus Oil v Minister for Industry and Energy [1984] ECR 2727 766–7, 875, 876, 893 79/83 Harz v Deutsche Tradax [1984] ECR 192 294 107/83 Ordre des Avocats au Barreau de Paris v Klopp [1984] ECR 2971 808, 842 n.39, 844–5, 874 123/83 BNIC v Clair [1983] ECR 391 966–7 145/83 Adams v Commission [1985] ECR 3539 437

xxvi Table of Cases 182/83 Fearon v Irish Land Commission [1984] ECR 3677 858 207/83 Commission v United Kingdom (Marks of Origin) [1985] ECR 1201 749, 754, 770 220/83 Commission v France [1986] ECR 3663 874 229/83 Association des Centres Distributeurs Leclerc v SARL ‘Au Blé Vert’ [1985] ECR 1 756, 1015 n.6 231/83 Cullet [1985] ECR 305 805 240/83 ADBHU [1985] ECR 531 236 267/83 Diatta v Land Berlin [1985] ECR 567 467 270/83 Commission v France [1986] ECR 273 861 293/83 Gravier v City of Liège [1985] ECR 593 337 294/83 Parti écologiste ‘Les Verts’ v European Parliament [1986] ECR 1339 163 21/84 Commission v France [1985] ECR 1355 752 25/84 & 26/84 Ford v Commission [1985] ECR 2725 981 42/84 Remia [1985] ECR 2545 968 60/84 & 61/84 Cinéthèque v Fédération Nationale des Cinémas Français [1985] ECR 2605 252 152/84 Marshall v Southampton & South-West Hampshire Area Health Authority (‘Marshall I’) [1986] ECR 723 288–9, 290, 293 161/84 Pronuptia de Paris GmbH v Schilgallis [1986] ECR 353 989 170/84 Bilka-Kaufhaus GmbH v Karin Weber von Hartz [1986] ECR 1607 544, 559, 560 178/84 Commission v Germany [1987] ECR 1227 304, 767–9, 770 197/84 Steinhauser v City of Biarritz [1985] ECR 1819 837, 856 205/84 Commission v Germany (German Insurance) [1986] ECR 3755 803, 804, 808, 836, 874 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651 236, 283, 563 307/84 Commission v France [1986] ECR 1725 481–2 416/84 Commission v United Kingdom [1988] ECR 3127 339 5/85 Akzo v Commission [1986] ECR 2585 56 89/85, 104/85, 114/85, 116/85, 117/85 & 125/85– 129/85 A. Ahlström Osakeyhtiö and others v Commission (Wood Pulp) [1993] ECR I-1307 978–9 96/85 Commission v France [1986] ECR 1475 845 121/85 Conegate v Customs & Excise Commissioners [1986] ECR 1007 477, 880, 884, 902–3 133/85–136/85 Rau v Bundesanstalt für Landswirtschaftliche Marktordnung [1987] ECR 2289 158–9 139/85 Kempf [1986] ECR 1741 449 199/85 Commission v Italy [1987] ECR 1039 327 221/85 Commission v Belgium (right of establishment: clinical biology laboratories) [1987] ECR 719 858 223/85 RSV v Commission [1987] ECR 4617 409 225/85 Commission v Italy [1987] ECR 2625 906 265/85 Van den Bergh en Jurgens v Commission [1987] ECR 1155 412

278/85 Commission v Denmark [1987] ECR 4065 336 293/85 Commission v Belgium [1988] ECR 305 (Gravier) 337–8 311/85 Vereniging van Vlaamse Reisbureaus (VVR) v ASBL Sociale Dienst van de Plaatselijke en Gewestelijke Overheidsdiensten [1987] ECR 3801 757, 1015 314/85 Firma Fotofrost v Hauptzollamt Lübeck-Ost [1987] ECR 4199 160, 162–3, 164, 169–70, 175, 422 325/85 Ireland v Commission [1987] ECR 5041 412 338/85 Pardini v Ministerio del Commercio con l’Estero [1988] ECR 2041 169–70 351/85 & 360/85 Fabrique de Fer de Charleroi v Commission [1987] ECR 3639 405–6 352/85 Bond van Adverteerders [1988] ECR 2085 788–9, 875–6 355/85 Driancourt v Cognet [1986] ECR 3231 755 407/85 Drei Glocken [1988] ECR 4233 768 n.66 1/86 Commission v Belgium [1987] ECR 2797 329 12/86 Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719 252, 285, 652, 655 24/86 Blaizot v Belgium [1988] ECR 379 235 60/86 Commission v United Kingdom (dim-dip lighting devices) [1988] ECR 3921 208–9 62/86 Akzo Chemie BV v Commission [1991] ECR I-3359 999, 1005–6 98/86 Mathot [1987] ECR 809 755 120/86 Mulder v Minister van Landbouw en Visserij [1988] ECR 2321 412–13 196/86 Conradi and Others v Direction de la Concurrence et des Prix [1987] ECR 4469 858 222/86 UNECTEF v Heylens [1987] ECR 4097 283, 408 240/86 Commission v Greece [1988] ECR 1835 338 246/86 Belasco and others v Commission [1989] ECR 2117 966–7 249/86 Commission v Germany (migrant workers) [1989] ECR 1263 235–6 263/86 Humbel v Belgium [1988] ECR 5365 790–1 267/86 Van Eycke v ASPA NV [1988] ECR 4769 1015 286/86 Ministère Public v Deserbais [1988] ECR 4907 769–70 292/86 Gullung v Conseil de l’Ordre des Avocats [1988] ECR 111 846 302/86 Commission v Denmark [1988] ECR 4607 771, 874 22/87 Commission v Italy [1989] ECR 143 301 45/87 Commission v Ireland [1988] ECR 4929 749 46/87 & 227/88 Hoechst AG v Commission [1989] ECR 2859 408, 928 n.41 81/87 R v HM Treasury, ex parte Daily Mail [1988] ECR 5483 841, 862 97/87 to 99/87 Dow Chemical Ibérica and Others v Commission [1989] ECR 3165 929

xxvii Table of Cases 143/87 Stanton v INASTI [1988] ECR 3877 836 n.26, 845 154/87 & 155/87 Rijksinstituut voorde sociale verzekering des zelfstandigen v Wolf [1998] ECR 3897 845 186/87 Cowan v Trésor Public [1989] ECR 195 453, 459, 788 196/87 Steymann v Staatssecretaris van Justitie [1988] ECR 6159 790, 834 227/87 Sandoz v Commission [1990] ECR I-45 980–1 247/87 Star Fruit v Commission [1989] ECR 291 341, 429 279/87 Tipp-Ex v Commission [1990] ECR 261 980–1 302/87 European Parliament v Council (Comitology) [1988] ECR 5615 429 344/87 Bettray [1989] ECR 1621 833, 834–5 374/87 & 27/88 Orkem & Solvay v Commission [1989] ECR 3283 235, 236, 246, 408, 925–6 377/87 Parliament v Council [1988] ECR 4017 429 379/87 Groener v Minister for Education and the City of Dublin Vocational Educational Committee [1989] ECR I-3967 811, 839–40 2/88 Zwartveld [1990] ECR I-3365 223 3/88 Commission v Italy [1989] ECR 4035 803 5/88 Wachauf v Germany [1989] ECR 2609 252–3 18/88 Régie des télégraphes et des téléphones (RTT) v GB-INNO-BM SA [1991] ECR 5941 1022–5 33/88 Allue v Università degli Studi di Venezia [1989] ECR 1591 481–2 49/88 Al-Jubail v Council [1991] ECR I-3187 407 64/88 Commission v France [1991] ECR I-2727 346 68/88 Commission v Greece (burden of proof) [1989] ECR 2965 224–5, 330–1, 616–17 70/88 European Parliament v Council (Chernobyl) [1990] ECR I-2041 414 103/88 Fratelli Constanzo v Milano [1989] ECR 1839 169–70, 291–2 109/88 Handels- og Kontorfunktionærernes Forbund I Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danforss [1989] ECR 3199 548 C-143/88 & C-92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest [1991] ECR I-415 172, 280 145/88 Torfaen Borough Council v B & Q [1989] ECR 765 169–70, 773, 875 150/88 Eau de Cologne v Provide [1989] ECR 3891 166–7 152/88 Sofrimport v Commission [1990] ECR I-2477 420 171/88 Rinner-Kühn v FWW SpezialGebäudereinigung GmbH & Co. KG [1989] ECR 2743 544, 560 175/88 Biehl [1990] ECR I-1779 855 200/88 Commission v Greece [1990] ECR I-4299 338 202/88 France v Commission [1991] ECR I-1223 1039 n.73 262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889 544, 553 297/88 & C-197/89 Dzodzi v Belgium [1990] ECR I-3673 161

322/88 Grimaldi v Fonds des Maladies Professionelles [1989] ECR 4407 300 323/88 Sermes v Directeur de Service des Douanes de Strasbourg [1990] ECR I-3027 405–6 326/88 Hansen [1990] ECR I-2911 224–5 331/88 R v Minister of Agriculture, Fisheries and Food, ex parte Fedesa [1990] ECR I-4023 367– 9, 409, 411–12 C-57/89 Commission v Germany (conservation of wild birds) [1991] ECR I-883 210 C-69/89 Nakajima All Precision Co. Ltd v Council [1991] ECR I-2069 655 C-96/89 Commission v Netherlands (own resources: manioc from Thailand) [1991] ECR I-2461 339 C-104/89 & C-37/90 Mulder v Council and Commission (‘Mulder II’) [1992] ECR I-3061 436, 437 C-106/89 Marleasing SA v La Comercial Internacionale de Alimentación SA [1990] ECR I-4135 295–6 C-113/89 Rush Portuguesa v Office national d’immigration [1990] ECR I-1417 874 C-180/89 Commission v Italy [1991] ECR I-709 788, 874 C-184/89 Nimz v Freie und Hansestadt Hamburg [1991] ECR I-297 560 C-188/89 Foster v British Gas [1990] ECR I-3313 289 C-213/89 R v Secretary of State for Transport, ex parte Factortame Ltd [1990] ECR 2433 172, 279–80 C-234/89 Delimitis v Henninger Bräu AG [1991] ECR I-935 989 C-260/89 Elliniki Radiophonia Tiléorassi AE and Others v Dimotiki Etairia Pliroforissis (‘ERT’) v Dimotiki [1991] ECR I-2925 235–6, 253–4, 1022 n.27, 1024–5 C-288/89 Gouda v Commissariat voor de Media [1991] ECR I-4007 764, 792, 803, 874–5 C-300/89 Commission v Council (Titanium Dioxide) [1991] ECR I-2867 689 C-309/89 Codorníu SA v Council [1994] ECR I-1853 414 C-340/89 Vlassopoulou v Ministerium für Justiz Bundes- und Europaangelegenheiten BadenWürttemberg [1991] ECR I-2357 846–7 T-1/89–T-15/89 Rhône-Poulenc SA and others v Commission [1991] ECR II-867 940–1 T-7/89 Hercules v Commission [1991] ECR II1711 930 T-30/89 Hilti v Commission [1991] ECR II1439 1001 T-148/89 Tréfilunion SA v Commission [1995] ECR II-1063 933 T-150/89 Martinelli v Commission [1995] ECR II1165 933 C-1/90 & C-176/90 Aragonesa [1991] ECR I-4151 782 C-2/90 Commission v Belgium (Walloon Waste) [1992] ECR I-4431 878, 897

xxviii Table of Cases C-6/90 & C-9/90 Francovich and Bonifaci v Italy [1991] ECR I-5537 301–4, 307 C-16/90 Nölle v Hauptzollamt Bremen-Freihafen [1991] ECR I-5163 408–9 C-41/90 Klaus Höfner and Fritz Elser v Macrotron GmbH [1991] ECR I-1979 964, 998, 1022 n.27, 1024–5 C-48/90 & 60/90 Netherlands and Koninklijke PTT Nederland NV and PTT Post BV v Commission [1992] ECR 565 1039 C-50/90 Sunzest v Commission [1991] ECR I-2917 400 C-56/90 Commission v United Kingdom [1993] ECR I-4109 337 n.52 C-65/90 Parliament v Council (‘Cabotage II’) [1992] ECR I-4593 110, 414 C-76/90 Säger v Dennemeyer [1991] ECR I-4221 804–5 C-159/90 Society for the Protection of the Unborn Child (SPUC) v Grogan [1991] ECR I-4685 255– 6, 812 C-179/90 Merci convenzionali porto di Genova SpA v Siderurgica Gabrielli SpA [1991] ECR 5889 1022 n.27, 1024–5 C-204/90 Bachmann [1992] ECR I-249 875, 876–7 C-208/90 Emmott v Minister for Social Welfare [1991] ECR I-4269 279–80 C-213/90 Association de Soutien aux Travailleurs Immigres (ASTI) v Chambre des employés privés [1991] ECR I-3507 855 C-295/90 Parliament v Council (revision of Judgment) [1992] ECR I-4193 97 C-300/90 Commission v Belgium [1992] ECR I-305 875 C-351/90 Commission v Luxembourg [1992] ECR I-3945 845 C-354/90 FNCE [1991] ECR I-5505 278 C-369/90 Micheletti v Delegación del Gobierno Cantabria [1992] ECR I-4239 445 C-370/90 Singh [1992] ECR I-4265 463, 471, 472–3 T-24/90 Automec Srl v Commission (‘Automec II’) [1992] ECR II-2223 428, 924 C-2/91 Criminal proceedings against Wolf W. Meng [1993] ECR I-5751 1015–17 C-4/91 Bleis [1991] ECR I-5627 481–2 C-25/91 Pesqueras Echebastar v Commission [1993] ECR I-1719 429 C-30/91 P Lestelle v Commission [1992] ECR I-3755 148 C-88/91 Federconsorzi v AIMA [1992] ECR I-4035 161 C-155/91 Commission v Council (Framework Directive on Waste) [1993] ECR I-939 97 C-159/91 & C-160/91 Poucet v Assurances Générales de France and Caisse Mutuelle Régionale du Languedoc-Roussillon [1993] ECR I-637 811 n.80 C-169/91 Stoke on Trent and Norwich City Council v B & Q [1992] ECR I-6635 773 C-185/91 Reiff [1993] ECR I-5801 1018

C-189/91 Kirsammer-Hack v Sidal [1993] ECR I-6185 560 C-267/91 & C-268/91 Keck & Mithouard [1993] ECR I-6097 745, 746, 773–6 C-271/91 Marshall v Southampton and South-West Hampshire AHA (‘Marshall II’) [1993] ECR I-4367 283, 290, 569 C-320/91 Criminal proceedings against Paul Corbeau [1993] ECR 2533 1025, 1039–40, 1044 C-431/91 Commission v Germany [1995] ECR I-2189 291 T-30/91 Solvay SA v Commission [1995] ECR II1775 408, 931 T-83/91 Tetra Pak v Commission [1994] ECR II755 1006 C-11/92 R v Secretary of State for Health, ex parte Gallaher Ltd [1993] ECR I-3545 210, 701 C-17/92 FDC v Estado Español and UPCT [1993] ECR I-2239 792 C-19/92 Kraus v Land Baden-Württemberg [1993] ECR I-1663 848 C-24/92 Corbiau v Administration des Contributions [1993] ECR I-1277 154 C-36/92 P SEP v Commission [1994] ECR I-1911 925 C-49/92 Commission v Anic Partecipazioni SpA [1999] ECR I-4125 974–7, 978 C-53/92 P Hilti v Commission [1994] ECR I-667 1001 C-91/92 Faccini Dori v Recreb [1994] ECR I-3325 290 C-109/92 Wirth v Landeshauptstadt Hannover [1993] ECR I-6447 791–2 C-127/92 Enderby v Frenchay Health Authority and Secretary for Health [1993] ECR I-5535 548 C-137/92 P Commission v BASF [1994] ECR I-2555 56, 437–8 C-188/92 TWD Textilwerke Deggendorf v Germany [1994] ECR I-833 160, 180 C-235/92 P Montecatini v Commission [1999] ECR I-4539 940 C-250/92 Gøttrup-Klim and others Grovvareforeninger v Dansk Landbrugs Grovvareselskab AmbA [1994] ECR I-5641 964, 973, 989 C-275/92 HM Customs and Excise v Schindler [1994] ECR I-1039 787, 811, 874–5, 891 C-292/92 Hünermund v Landesapotheker BadenWürttemburg [1993] ECR I-6787 746 C-315/92 Verband Sozialer Wettbewerb v Clinique Laboratories [1994] ECR I-317 771 C-334/92 Wagner-Miret v Fondo de Garantia Salarial [1993] ECR I-6911 296–7 C-364/92 SAT Fluggesellschaft v Eurocontrol [1994] ECR I-43 151, 1026 C-375/92 Commission v Spain [1994] ECR I-923 797 C-379/92 Peralta [1994] ECR I—ECR 3453 652, 754–5, 807 n.64 C-391/92 Commission v Greece (Greek Milk) [1995] ECR I-1621 779

xxix Table of Cases C-429/92 Ingetraut Scholz v Opera Universitaria di Cagliari and Cinzia Porcedda [1994] ECR I-505 854 T-37/92 BEUC & NCC v Commission [1994] ECR II-285 407 T-66/92 Herlitz v Commission [1994] ECR II531 965 T-77/92 Parker Pen v Commission [1994] ECR II549 983 C-1/93 Halliburton Services [1994] ECR I-1137 856 C-16/93 Tolsma v Inspecteur der Omzelbelastingen Leeuwarden [1994] ECR I-743 791 C-18/93 Corsica Ferries France [1994] ECR I-1783 788–9, 807 C-39/93 P SFEI v Commission [1994] ECR I-2681 401 C-45/93 Commission v Spain [1994] ECR I-911 453 C-46/93 & 48/93 Brasserie du Pêcheur/Factortame III [1996] ECR I-1029 179, 283, 304–7, 431–2 C-55/93 Van Schaik [1994] ECR I-4837 787, 874 C-65/93 Parliament v Council (General Tariff Preferences) [1995] ECR I-643 110 C-69/93 & C-258/93 Punto Casa v Sindaco del Comune di Capena [1994] ECR I-2355 779 C-135/93 Spain v Commission [1995] ECR I-1651 431 C-151/93 Voogd Vleesimport en -export [1994] ECR I-4915 170 C-279/93 Finanzamt Köln-Altstadt v Schumacker [1995] ECR I-225 855 C-280/93 Germany v Council [1994] ECR I-4973 653 C-312/93 Peterbroeck v Belgium [1995] ECR I-4599 284 C-316/93 Vaneetveld v Le Foyer [1994] ECR I-763 290 C-324/93 Evans Medical [1995] ECR I-563 882 C-342/93 Gillespie v Northern Health and Social Services Board [1996] ECR I-457 544 C-358/93 & C-416/93 Bordessa and others [1995] ECR I-361 905 C-381/93 Commission v France [1994] ECR I-5145 788–9, 816 C-384/93 Alpine Investments v Minister van Financiën [1995] ECR I-1141 784, 788–9, 790, 793, 797, 806–7, 837 C-392/93 R v HM Treasury, ex parte British Telecommunications plc [1996] ECR I-1631 307 C-412/93 Société d’Importation Edouard LeclercSiplec v TF1 Publicité SA and M6 Publicité SA [1995] ECR I-179 166, 679–80 C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921 798, 837, 840–2, 874, 875, 891, 906 C-417/93 Parliament v Council (Consultation with Parliament) [1995] ECR I-1185 110–11 C-450/93 Kalanke v Freie Hansestadt Bremen [1995] ECR I-3051 572–3 C-465/93 Atlanta Fruchthandelsgesellschaft and Others (No. 1) [1995] ECR I-3761 164, 172, 280

C-469/93 Amministrazione delle Finanze dello Stato v Chiquita Italia SpA [1995] ECR I-4533 655 C-470/93 Verein gegen Unwesen in Handel und Gewerbe Köln v Mars GmbH (Mars Ice Cream) [1995] ECR I-1923 764 C-473/93 Commission v Luxembourg [1996] ECR I-3207 337 C-479/93 Francovich v Italian Republic (‘Francovich II’) [1996] ECR I-3843 411 T-3/93 Air France v Commission [1994] ECR II121 401 T-17/93 Matra Hachette v Commission [1994] ECR II-595 992 T-244/93 & T-486/93 TWD Textilwerke Deggendorf v Commission (‘TWD II’) [1995] ECR I-2265 431 T-461/93 An Taisce v Commission [1994] ECR II733 427 T-478/93 Wafer Zoo v Commission [1995] ECR II1479 437 T-481/93 & 484/93 Vereniging van Exporteurs in Levende Varkens v Commission [1995] ECR II-2941 433 T-585/93 Greenpeace and others v Commission [1995] ECR II-2205 426–7 C-13/94 P v S and Cornwall County Council [1996] ECR I-2143 538, 548 C-25/94 Commission v Council (FAO Fisheries Agreement) [1996] ECR I-1469 74, 651–2 C-39/94 SFEI [1996] ECR I-3547 278 C-51/94 Commission v Germany [1995] ECR I-3599 769 C-55/94 Gebhard v Consiglio dell’ordine degli avvocati e procuratori di Milano [1995] ECR I-4165 784, 787, 793, 803, 835–6, 842, 846 C-58/94 Netherlands v Council [1996] ECR I-2169 400–1 C-70/94 Werner [1995] ECR I-3189 208 n.37 C-80/94 Wielockx v Inspecteur der Directe Belastingen [1995] ECR I-2493 878 C-83/94 Leifer and others [1995] ECR I-3231 655 C-84/94 United Kingdom v Council [1996] ECR I-5755 364 n.25, 369 C-96/94 Centro Servizi Spediporto Srl v Spedizione Marittima del Golfo Srl [1995] ECR I-2883 1018 C-107/94 Asscher [1994] ECR I-1137 836 C-133/94 Commission v Belgium [1996] ECR I-2323 338 C-157/94 Commission v Netherlands [1997] ECR 5699 1021, 1025–6, 1030, 1034 C-163/94, C-165/94 & C-250/94 Sanz de Lera [1995] ECR I-4821 721 n.26 C-177/94 Perfili [1996] ECR I-161 794 C-194/94 CIA Security International v Signalson & Securitel [1996] ECR I-2201 292–3 C-233/94 Germany v European Parliament and Council (Deposit Guarantee Directive) [1997] ECR I-2405 366–7, 369

xxx Table of Cases C-237/94 O’Flynn v Adjudication Officer [1996] ECR I-2617 453, 854 C-266/94 Commission v Spain [1995] ECR I-1975 336 C-272/94 Guiot [1996] ECR I-1905 803–4 C-288/94 Argos Distributors Ltd v CCE [1996] ECR I-5311 790 C-321/94 Pistre [1997] ECR I-2343 755–6 C-333/94 P Tetra Pak v Commission (‘Tetra Pak II’) [1996] ECR I-5951 1006 T-115/94 Opel Austria v Council [1997] ECR II-39 412 T-162/94 NMB France v Commission [1996] ECR II-427 148 T-167/94 Nölle v Council and Commission [1995] ECR II-2589 436–7 T-168/94 Blackspur DIY v Council and Commission [1995] ECR II-2627 437 T-185/94 Geotronics v Commission [1995] ECR II2795 400 T-186/94 Guérin Automobiles v Commission [1995] ECR II-1753 429 T-336/94 Efisol v Commission [1996] ECR II1343 412 T-374/94 European Night Services and Others v Commission [1998] ECR II-3141 992 T-395/94 Atlantic Container Line v Commission [2002] ECR II-875 932 C-3/95 Reisebüro Broede v Sandker [1996] ECR I-6511 875 C-10/95 P Asocarne v Council and Commission [1995] ECR I-4149 414, 415 C-11/95 Commission v Belgium [1996] ECR I-4115 336 C-32/95 P Commission v Lisrestal and Others [1996] ECR I-5375 407 C-34/95–C-36/95 De Agostini and TV Shop [1997] ECR I-3843 779 C-53/95 INASTI v Kammler [1996] ECR I-703 845 C-65/95 & C-111/95 R v Secretary of State for the Home Department, ex parte Shingara and Radiom [1997] ECR I-3343 477 C-68/95 T. Port [1996] ECR I-6065 172, 280 C-70/95 Sodemare v Regione Lombardia [1997] ECR I-3395 858–9 C-72/95 Aanemersbedrijf P.K. Kraaijeveld v Gedeputeerde Staten van Zuid-Hooland [1996] ECR I-5403 177 C-73/95 P Viho Europe BV v Commission [1996] ECR I-5457 964–6 C-84/95 Bosphorus [1996] ECR I-3953 260 C-120/95 Decker v Caisse de maladie des employés privés [1998] ECR I-1831 878 C-168/95 Arcaro [1996] ECR I-4705 297 C-180/95 Draehmpaehl v Urania Immobilienservice [1997] ECR I-2195 224–5, 330–1, 569 C-181/95 Biogen v Smithkline Beecham [1996] ECR I-717 151 C-185/95 P Baustahlgewerbe v Commission [1998] ECR I-8417 148

C-192/95–C-218/95 Comateb and others [1997] ECR I-165 278 C-242/95 GT-Link v DSB [1997] ECR I-4449 278 C-250/95 Futura Participations and Singer v Administration des contributions [1997] ECR I-2471 876–7 C-258/95 Söhne v Finanzamt Neustadt [1997] ECR I-5577 790 C-261/95 Palmisani v INPS [1997] ECR I-4025 276 C-265/95 Commission v France (Spanish Strawberries) [1997] ECR I-6959 224, 330–1, 758, 760, 903–4 C-284/95 Safety Hi-Tech v S and T [1998] ECR I-4301 894 C-299/95 Kremzow v Austria [1997] ECR I-2629 235 C-300/95 Commission v United Kingdom [1997] ECR I-2649 330 C-321/95 P Greenpeace and others v Commission [1998] ECR I-1651 426 C-334/95 Krüger v Hauptzollamt Hamburg-Jonas [1997] ECR I-4517 164 C-338/95 Wiener v Hauptzollamt Emmerich [1997] ECR I-6495 180 C-341/95 Bettati [1998] ECR I-4355 894 C-343/95 Diego Calì & Figli Srl v Servizi ecologici porto di Genova SpA (SEPG) [1997] ECR I-1547 1026–7 C-367/95 P Commission v Sytraval [1998] ECR I-1719 408–9 C-368/95 Familiapresse v Heinrich Bauer Verlag [1997] ECR-I 3843 776 C-388/95 Belgium v Spain [2000] ECR I-3123 317, 780–1 C-392/95 Parliament v Council (consultation with Parliament: visas) [1997] ECR I-3213 438 C-395/95 Geotronics v Commission [1997] ECR I-2271 400 C-398/95 Syndesmos ton en Elladi Touristikon kai Taxidiotikon Grafeion v Ypourgos Ergasias [1997] ECR I-3091 788, 790, 875–6 C-409/95 Hellmut Marschall v Land NordrheinWestfalen [1997] ECR I-6363 572–3 T-25/95 Cimenteries CBR SA and others v Commission [2000] ECR II-700 940 n.115 T-73/95 Oliveira v Commission [1997] ECR II-381 409 T-219/95 R. Danielsson and Others v Commission [1995] ECR II-3051 427 C-1/96 Compassion in World Farming [1998] ECR I-1251 881–2 C-15/96 Schöning-Kougebetopoulou [1998] ECR I-47 308, 310 C-35/96 Commission v Italy [1998] ECR I-3851 1018 C-48/96 P Windpark Groothusen v Commission [1998] ECR I-2873 405–6 C-50/96 Deutsche Telekom AG v Lilli Schröder [2000] ECR I-743 538 C-51/96 & C-191/97 Deliège v Asbl Ligue Francophone de Judo [2000] ECR I-2549 790, 799 C-53/96 Hermès International v FHT Marketing [1998] ECR I-3603 161, 655

xxxi Table of Cases C-54/96 Dorsch v Bundesbaugesellschaft Berlin [1997] ECR I-4961 154–5 C-64/96 & C-65/96 Uecker and Jacquet [1997] ECR I-3171 462–3, 836 C-67/96 Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie [1999] ECR I-5751 967, 1025, 1029 C-85/96 Martínez Sala v Freistaat Bayern [1998] ECR I-2691 454–5 C-149/96 Portugal v Council [1999] ECR I-8395 653–4 C-157/96 National Farmers’ Union and others [1998] ECR I-2211 369 C-158/96 Kohll v Union des Caisses de Maladie [1998] ECR I-1931 791–2, 811, 816, 875–6, 878 C-162/96 Racke GmbH & Co. v Hauptzollamt Mainz [1998] ECR I-3655 657 C-176/96 Jyri Lehtonen and Castors Canada Dry Namur-Braine Asbl v Fédération royale belge des sociétés de basket-ball Asbl (FRBSB) [2000] ECR I-2681 798 C-184/96 Commission v France [1998] ECR I-6197 769–70 C-200/96 Metronome Musik v Music Point Hokamp [1998] ECR I-1953 874 C-203/96 Chemische Afvalstoffen Dusseldorp BV and others v Minister van Volkhuisvesting, Ruimtelijke Ordening en Milieubeheer [1998] ECR I-4075 878, 897–8, 1030, 1032, 1034 C-210/96 Gut Springenheide [1998] ECR I-4657 769 C-213/96 Outokumpu Oy [1998] ECR I-1777 681 C-274/96 Bickel and Franz [1998] ECR I-7637 453 C-306/96 Javico International and Javico AG v Yves Saint Laurent Parfums SA [1998] ECR I-1983 966–7, 989 C-326/96 Levez v Jennings [1998] ECR I-7835 276 n.13, 284 C-336/96 Gilly v Directeur des services fiscaux du Bas-Rhin [1998] ECR I-2793 836 C-369/96 & C-376/96 Arblade [1999] ECR I-8453 792–3 C-389/96 Aher-Waggon v Federal Republic of Germany [1998] ECR I-4473 894 C-416/96 El Yassini v Secretary of State for the Home Department [1999] ECR I-1209 154–5 T-135/96 UEAPME v Commission [1998] ECR II2335 379 C-1/97 Birden [1998] ECR I-7747 834–5 C-42/97 Parliament v Council (Linguistic Diversity in the Information Society) [1999] ECR I-869 97 C-67/97 Bluhme [1998] ECR I-8033 890–1, 895 C-115/97, C-116/97 & C-117/97 Brentjens’ Handelsonderneming BV [1999] ECR I-6025 967–8 C-124/97 Läärä v Kihlakunnansyyttäjä [1999] ECR I-6067 891, 902–3 C-126/97 Eco Swiss China Time Ltd v Benetton [1999] ECR I-3055 972

C-167/97 R v Secretary of State for Employment, ex parte Seymour-Smith and Perez [1999] ECR I-623 544, 559, 560 C-185/97 Coote v Granada Hospitality [1998] ECR I-5199 568 C-212/97 Centros v Erhvervs- og Selskabsstyrelsen [1999] ECR I-1459 864–5, 866–7, 874 C-219/97 Maatschappij Drijvende Bokken BV v Stichting Pensioenfonds voor de Vervoer- en Havenbedrijven [1999] ECR I-6121 967 C-222/97 Trummer and Mayer [1999] ECR I-1661 722, 905 C-224/97 Ciola v Land Vorarlberg [1999] ECR I-2517 797 C-226/97 Lemmens [1998] ECR I-3711 293 C-230/97 Awoyemi [1998] ECR I-6781 475 C-247/97 Schoonbroodt [1998] ECR I-8095 161 C-273/97 Sirdar v Army Board and Secretary of State for Defence [1999] ECR I-7403 562–3 C-294/97 Eurowings v Finanzamt Dortmund-Unna [1999] ECR I-7447 792 C-301/97 Netherlands v Council [2001] ECR I-8853 412 C-302/97 Konle [1999] ECR I-3099 725–6, 885 C-321/97 Andersson and Wåkerås-Andersson [1999] ECR I-3551 652 C-383/97 Van der Laan [1999] ECR I-731 748 C-387/97 Commission v Greece (Waste Disposal: Kouroupitos) [2000] ECR I-5047 345 C-412/97 ED v Italo Fenocchio [1999] ECR I-3845 726 C-424/97 Salomone Haim v Kassenzahnärztliche Vereinigung Nordrhein [2000] ECR I-5123 811 n.79, 840 n.38 C-435/97 WWF v Autonome Provinz Bozen [1999] ECR I-5613 150 T-228/97 Irish Sugar plc v Commission [1999] ECR II-2969 964, 1007 C-22/98 Becu [1999] ECR I-5665 964 C-35/98 Staatssecretaris van Financiën v Verkooijen [2000] ECR I-4071 876–7 C-49/98 Finalarte [2001] ECR I-7831 793 C-55/98 Skatteministeriet v Vestergard [1999] ECR I-7641 789 C-58/98 Corsten [2000] ECR I-7919 807–8, 875 C-67/98 Questore di Verona v Zenatti [1999] ECR I-7289 808, 891, 902–3 C-78/98 Preston v Wolverhampton Health Care Trust [2000] ECR I-3201 284–5 C-97/98 Jägerskiöld v Gustafsson [1999] ECR I-7319 787 C-108/98 RI-SAN v Commune de Ischia [1999] ECR I-5219 788 C-110/98–C-147/98 Gabalfrisa [2000] ECR I-1577 154 C-165/98 Mazzoleni and ISA [2001] ECR I-2189 793, 794 C-190/98 Graf v Filzmoser Maschinenbau [2000] ECR I-493 843–4

xxxii Table of Cases C-205/98 Commission v Austria [2000] ECR I-7367 339 C-209/98 Entreprenørforeningens/Affalds/ Miljøsektion (FFAD) v Københavns Kommune [2000] ECR I-3743 1021 n.25 C-224/98 D’Hoop [2002] ECR I-6191 460–1 C-238/98 Hocsman v Ministre de l’Emploi et de la Solidarite [2000] ECR I-6623 848 C-254/98 Schutzverband v TK-Heimdienst [2000] ECR I-151 779 C-281/98 Roman Angonese v Cassa di Risparmio di Bolzano [2000] ECR I-4139 798, 836, 839 C-285/98 Kreil v Germany [2000] ECR I-69 562 C-300/98 & C-302/98 Parfums Christian Dior v Tuk Consultancy [2000] ECR I-11307 161 C-303/98 Simap [2000] ECR I-7963 249–50 C-322/98 Kachelmann v Bankhaus Hermann Lampe KG [2000] ECR I-7505 560 C-344/98 Masterfoods v HB Ice Cream [2000] ECR I-11369 223 C-352/98 P Laboratoires Pharmaceutiques Bergaderm v Commission [2000] ECR I-5291 432–3 C-355/98 Commission v Belgium [2000] ECR I-1221 808 C-367/98 Commission v Portugal (Free Movement of Capital) [2002] ECR I-4731 876 C-368/98 Vanbraekel v ANMC [2001] ECR I-5363 817 C-376/98 Germany v Parliament & Council (‘Tobacco Advertising I’) [2000] ECR I-8419 675, 687–91, 694 C-377/98 Netherlands v European Parliament and Council (Biotechnology Directive) [2001] ECR I-7079 235–6, 364–5 C-379/98 PreussenElektra [2001] ECR I-2099 749, 878, 896–7 C-397/98 & C-410/98 Metallgesellschaft v IRC [2001] ECR I-1727 278 C-398/98 Commission v Greece [2001] ECR I-7915 749, 893, 903 C-405/98 Konsumentombudsmannen (KO) v Gourmet International Products AB [2001] ECR I-1795 779, 860 C-407/98 Abrahamsson and Anderson v Fogelqvist [2000] ECR I-5539 573–4 C-424/98 Commission v Italy [2000] ECR I-4001 474 C-443/98 Unilever Italia SpA v Central Food SpA [2000] ECR I-7535 293 C-448/98 Guimont [2000] ECR I-10663 463, 756 C-467/98 Commission v Denmark (Open Skies) [2002] ECR I-9519 641 C-468/98 Commission v Sweden (Open Skies) [2002] ECR I-9575 641 C-469/98 Commission v Finland (Open Skies) [2002] ECR I-9627 641 C-471/98 Commission v Belgium (Open Skies) [2002] ECR I-9681 641 C-472/98 Commission v Luxembourg (Open Skies) [2002] ECR I-9741 641

C-475/98 Commission v Austria (Open Skies) [2002] ECR I-9797 641 C-476/98 Commission v Germany (Open Skies) [2002] ECR I-9855 641–3 T-38/98 Associazione Nazionale Bieticoltori v Council [1998] ECR II-4191 425–6 T-62/98 Volkswagen AG v Commission [2000] ECR II-2707 980–1 T-112/98 Mannesmannröhren-Werke AG v Commission [2001] ECR II-729 926 T-178/98 Fresh Marine v Commission [2000] ECR II-3331 433 C-35/99 Criminal proceedings against Manuele Arduino [2002] ECR I-1529 1018 C-54/99 Église de Scientologie de Paris v Prime Minister [2000] ECR I-1335 904–5 C-55/99 Commission v France [2000] ECR I-11499 770 C-70/99 Commission v Portugal (Flight Taxes) [2001] ECR I-4845 788–9, 797 C-110/99 Emsland-Stärke [2000] ECR I-11569 472 C-157/99 Geraets-Smits v Stichting Ziekenfonds; Peerbooms v Stichting CZ Groep Zorgverzekeringen [2001] ECR I-5473 791–2, 815, 817, 818, 819–20 C-159/99 Commission v Italy (conservation of wild birds) [2001] ECR I-4007 224, 330–1 C-164/99 Portugaia Construções [2002] ECR I-787 874 C-173/99 R v Secretary of State for Trade and Industry, ex parte BECTU [2001] ECR I-4881 251 C-184/99 Grzelczyk [2001] ECR I-6193 450–1 C-192/99 Kaur [2001] ECR I-1237 445 C-217/99 Commission v Belgium [2000] ECR I-10251 770, 883 C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P–C-252/99 P & C-254/99 P Limburgse Vinyl Maatschappij NV and others v Commission [2002] ECR I-8375 409, 924 C-268/99 Jany v Staatssecretaris van Justitie [2001] ECR I-8615 786, 812, 834, 881 C-309/99 Wouters and Others v Algemene Raad van de Nederlandse Orde van Advocaten [2002] ECR I-1577 875, 964, 968–9, 973, 1019 C-313/99 Mulgan and Others [2002] ECR I-5719 224 C-324/99 DaimlerChrysler v Land BadenWürttemberg [2001] ECR I-9897 898 n.82 C-340/99 TNT Traco v Poste Italiane [2001] ECR I-4109 1042 n.82 C-353/99 P Council v Hautala [2001] ECR I-9565 388–9 C-385/99 Müller-Fauré v Onderlinge Waarborgmaatschappij OZ Zorgverzekeringen [2003] ECR I-4509 817, 818–19 C-413/99 Baumbast v Secretary of State for the Home Department [2002] ECR I-7091 450–2, 467 C-439/99 Commission v Italy (Trade Fairs) [2002] ECR I-305 803

xxxiii Table of Cases C-451/99 Cura Anlagen v Auto Source Leasing [2002] ECR I-3193 787, 874 C-453/99 Courage Ltd v Crehan [2001] ECR I-6297 278, 972/ECR I-6314 952–4 C-459/99 MRAX [2002] ECR I-6591 475–6 C-475/99 Ambulanz Glöckner v Landkreis Südwestpfalz [2001] ECR I-8089 1032–4 C-481/99 Heininger [2001] ECR I-9945 284 C-483/99 Commission v France [2002] ECR I-4781 905 C-503/99 Commission v Belgium [2002] ECR I-4809 725, 726, 905 C-515/99 & C-527/99–C-540/99 Reisch and Others v Bürgermeister der Landeshaupstadt Salzburg [2002] ECR I-2157 874, 885 C-516/99 Schmid [2002] ECR I-4573 154 T-13/99 Pfizer Animal Health v Council [2002] ECR II-3305 66, 265 n.117, 380–2, 399, 420–1, 702–3, 704 T-23/99 LR af 1998 A/S v Commission [2002] ECR II-1705 930, 977 n.57 T-54/99 max.mobil v Commission [2002] ECR II313 341–2 T-112/99 Métropole télévision (M6) and others v Commission [2001] ECR II-2459 989 T-175/99 UPS Europe v Commission [2002] ECR II1915 1043–4 T-191/99 Petrie v Commission [2001] ECR II3677 340–1 T-219/99 British Airways v Commission [2003] ECR II-5917 999, 1003 T-222/99, T-327/99 & T-329/99 Martinez and others v Parliament [2001] ECR II-2823 411, 417 T-319/99 Federación Nacional de Empresas de Instrumentación Científica, Médica, Técnica y Dental (FENIN) v Commission [2003] ECR II357 1029–30, 1036 T-3/00 & T-337/04 Pitsiorlas v Council and ECB [2007] ECR II-4779 437 C-11/00 Commission v ECB [2003] ECR I—7147 733–4 C-12/00 Commission v Spain (Spanish chocolate) [2003] ECR I-459 769 n.72 C-14/00 Commission v Italy (Chocolate) [2003] ECR I-513 769 n.72 C-17/00 De Coster v Collège des bourgmestre et échevins de Watermael-Boitsfort [2001] ECR I-9445 154–5, 810, 874 C-24/00 Commission v France (French Nutrients) [2004] ECR I-1277 887–8, 900 C-50/00 P Union de Pequeños Agricultores (UPA) v Council [2002] ECR I-6677 422 C-60/00 Carpenter v Secretary of State for the Home Department [2002] ECR I-6279 464, 473 C-74/00 P & C-75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I-7869 409 C-76/00 P Petrotub and Others v Council and Commission [2003] ECR I-79 655 C-92/00 HI v Stadt Wien [2002] ECR I-5553 154–5

C-94/00 Roquette Frères v Directeur général de la concurrence, de la consommation et de la répression des fraudes [2002] ECR I-9011 928, 929–30 C-99/00 Lyckeskog [2002] ECR I-4839 174–5 C-112/00 Schmidberger v Republic of Austria [2003] ECR I-5659 224, 758–60, 874–5, 904 C-113/00 Spain v Commission [2002] ECR I-7601 407 C-121/00 Hahn [2002] ECR I-9193 900 n.87 C-123/00 Criminal proceedings against Bellamy and English Shop [2001] ECR I-2795 766–7, 893 C-129/00 Commission v Italy [2003] ECR I-14637 329–30 C-136/00 Danner [2002] ECR I-8147 878 C-159/00 Sapod Audic [2002] ECR I-5031 776 n.89 C-182/00 Lutz [2002] ECR I-547 154 C-204/00 & C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P & C-219/00 P Aalborg Portland A/S and Others v Commission [2004] ECR I-123 408, 930 C-208/00 Überseering v NCC [2002] ECR I-9919 865 C-218/00 Cisal di Battistello Venanzio & C. Sas v Istituto nazionale per l’assicurazione contro gli infortuni sul lavoro (INAIL) [2002] ECR I-691 1027–9 C-280/00 Altmark Trans GmbH v Nahverkehrsgesellschaft Altmark GmbH [2003] ECR I-7747 1030, 1037 C-320/00 Lawrence and Others v Regent Office Care Ltd and Others [2002] ECR I-7325 544 C-325/00 Commission v Germany (CMA/German Quality Products) [2002] ECR I-9977 327–8, 758 C-327/00 Santex v Unità Socio Sanitaria Locale n. 42 di Pavia [2003] ECR I-1877 284 C-338/00 P Volkswagen AG v Commission [2003] ECR I-9189 980–1 C-416/00 Morellato [2003] ECR I-9343 777–8 C-436/00 X and Y v Riksskatteverket [2002] ECR I-10829 876–7 C-453/00 Kühne & Heitz v Productschap voor Pluimvee en Eieren [2004] ECR I-837 170–1 C-465/00, C-138/01 & C-139/01 Österreichischer Rundfunk [2003] ECR I-4919 235–6, 250–1 C-469/00 Ravil v Bellon Import [2003] ECR I-5053 780–1 T-3/00 & T-337/04 Pitsiorlas v Council and ECB [2007] ECR II-4779 437 T-211/00 Kuijer v Council [2002] ECR II-485 392 C-2/01 P & C-3/01 P Bundesverband der Arzneimittel-Importeure eV and Commission v Bayer [2004] ECR I-23 981–2 C-6/01 Anomar v Estado Português [2003] ECR I-8621 790, 808 C-20/01 & C-28/01 Commission v Germany [2003] ECR I-3609 318–19, 320–1 C-56/01 Inizan v Caisse Primaire d’Assurance Maladie des Hauts-de-Seine [2003] ECR I-12403 817

xxxiv Table of Cases C-76/01 P Eurocoton v Council [2003] ECR I-10091 433 C-95/01 Greenham and Abel [2004] ECR I-1333 879–80 C-100/01 Ministre de l’Intérieur v Olazabal [2002] ECR I-10981 476, 902 C-101/01 Lindqvist [2003] ECR I-12971 235–6, 251 C-109/01 Secretary of State for the Home Department v Akrich [2003] ECR I-9607 243, 469, 470, 472 C-117/01 KB v National Health Service Pensions Agency [2004] ECR I-541 235–6, 470, 549 C-147/01 Weber’s Wine World and others [2003] ECR I-11365 278 C-152/01–154/07 Arcor v Bundesrepublik Deutschland [2008] ECR I-5959 272–3, 291–2, 293 C-167/01 Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire Art [2003] ECR I-10195 224–5, 865–6 C-187/01 & C-385/01 Gözütok and Brügge [2003] ECR I-1345 607–9 C-192/01 Commission v Denmark [2003] ECR I-9693 752, 879, 891, 900 C-198/01 Consorzio Industrie Fiammiferi (CIF) v Autorità Garante della Concorrenza e del Mercato [2003] ECR I-8055 1020 C-215/01 Schnitzer [2003] ECR I-14847 787–8 C-224/01 Köbler v Austria [2003] ECR I-10239 169, 177–8, 308–11, 330, 854 C-243/01 Gambelli [2003] ECR I-13031 788–9, 808, 874, 887, 892 C-256/01 Allonby v Accrington and Rossendale College [2004] ECR I-873 544–6 C-264/01, C-306/01, C-354/01 & C-355/01 AOK Bundesverband and others v IchthyolGesellschaft Cordes, Hermani & Co [2004] ECR I-2493 1029–30 C-276/01 Steffensen [2003] ECR I-3735 284 C-322/01 Deutsche Apothekerverband v DocMorris [2003] ECR I-14887 756, 779–80, 890–1, 902 C-338/01 Commission v Council (Recovery of Indirect Taxes) [2004] ECR I—4829 95–6 C-341/01 Plato Plastik v Caropack [2004] ECR I-4883 167–8 C-383/01 De Danske Bilimportører [2003] ECR I-6065 749 C-388/01 Commission v Italy [2001] ECR I-721 453, 455 C-397/01–C-403/01 Pfeiffer and others v Deutsches Rotes Kreuz [2004] ECR I-8835 272–3, 297 C-405/01 Colegio de Oficiales de la Marina Mercante Española v Administración del Estado [2003] ECR I-10391 481–2, 906 C-413/01 Franca Ninni-Orasche v Bundesminister für Wissenschaft, Verkehr und Kunst [2003] ECR I-13187 835 C-422/01 Försäkringsaktiebolaget Skandia v Riksskatteverket [2003] ECR I-6817 788–9

C-446/01 Commission v Spain [2003] ECR I-6053 338 C-452/01 Ospelt v Schössle Weissenberg Familienstiftung [2003] ECR I-9743 726, 876–7, 885, 891 C-463/01 Commission v Germany [2004] ECR I-11705 771 n.79 C-465/01 Commission v Austria [2004] ECR I-8291 855 C-482/01 & C-493/01 Orfanopoulos v Land BadenWürttemberg [2004] ECR I-5257 477–8 C-486/01 P Front National v European Parliament [2004] ECR I-6289 125, 417–18 C-491/01 R v Secretary of State for Health, ex parte British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I-11453 364 n.25, 369 C-494/01 Commission v Ireland [2005] ECR I-3331 331–2, 335 T-30/01–T-32/01 & T-86/02–T-88/02 Diputación Foral de Àlava v Commission, Judgment of 9 September 2009 409, 429–30 T-64/01 & T-65/01 Afrikanische Fruchtcompanie v Council [2004] ECR II-521 59 n.38 T-168/01 GlaxoSmithKline Services Unlimited (GSK) v Commission [2006] ECR II-2969 983–4, 1005 T-177/01 Jégo-Quéré v Commission [2002] ECR II2365 148, 251, 424 T-198/01 Technische Glaswerke Ilmenau v Commission [2004] ECR II-2717 407, 408 T-203/01 Michelin v Commission (‘Michelin II’) [2003] ECR II-4071 1001 T-208/01 Volkswagen AG v Commission [2003] ERC II-541 983 T-236/01, T-239/01, T-244/01–T-246/01, T-251/01 & T-252/01 Tokai Carbon Co. Ltd and others v Commission [2004] ECR II-1181 934 T-310/01 Schneider Electric SA v Commission [2002] ECR II-4071 433–5 C-8/02 Leichtle v Bundesanstalt für Arbeit [2004] ECR I—2641 817, 891 C-12/02 Grilli [2003] ECR I-11585 782 C-36/02 Omega Spielhallen- und Automatenaufstellungs v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609 246–7, 787, 874–5, 902 C-37/02 & C-38/02 Di Lenardo and Dilexport [2004] ECR I-6911 236 C-41/02 Commission v Netherlands (Dutch Vitamins) [2004] ECR I-11375 898–900 C-42/02 Lindman [2003] ECR I-13519 808 C-47/02 Anker [2003] ECR I-10447 906 C-71/02 Karner v Troostwijk [2004] ECR I-3025 787, 874–5 C-105/02 Commission v Germany [2006] ECR I-9659 225, 330–1 C-138/02 Collins [2004] ECR I-2703 456, 459 C-141/02 P Commission v max.mobil [2005] ECR I-1283 341–2

xxxv Table of Cases C-148/02 Garcia Avello [2003] ECR I-11613 452–4, 464 C-151/02 Landeshauptstadt Kiel v Jaeger [2003] ECR I-8389 249–51 C-153/02 Neri v European School of Economics [2003] ECR I-13555 853 C-171/02 Commission v Portugal [2004] ECR I-5645 808, 845 C-200/02 Zhu and Chen [2004] ECR I—9925 445, 451, 467–8 C-201/02 R v Secretary of State for Transport, Local Government and the Regions, ex parte Wells [2004] ECR I-723 291, 292 C-224/02 Pusa [2004] ECR I-5763 460 C-262/02 Commission v France [2004] ECR I-6569 874 C-263/02 P Commission v Jégo-Quéré [2004] ECR I-3425 148, 159–60 C-293/02 Jersey Potatoes [2005] ECR I-9543 782 C-299/02 Commission v Netherlands [2004] ECR I-9761 808, 839, 842, 863 C-304/02 Commission v France (Non-compliance with Judgment) [2005] ECR I-6263 346 C-309/02 Radlberger Getränkegesellschaft v Land Baden-Württemberg [2004] ECR I—11763 153, 771–2 C-350/02 Commission v Netherlands [2004] ECR I-6213 336–7 C-365/02 Lindfors [2004] ECR I-7183 151 C-377/02 Van Parys v BIRB [2005] ECR I-1465 409 C-387/02, C-391/02 & C-403/02 Berlusconi and others [2005] ECR I-3565 224–5 C-429/02 Bacardi France v Télévision française I [2004] ECR I-6613 874 C-434/02 Arnold André GmbH & Co. KG v Landrat des Kreises Herford [2004] ECR I-11825 692 C-441/02 Commission v Germany [2006] ECR I-3449 319 C-442/02 Caixa Bank France v Ministère de l’Économie, des Finances et de l’Industrie [2004] ECR I-8961 805, 859–60 C-456/02 Trojani v Centre public d’aide sociale [2004] ECR I-7573 455, 832–4 C-464/02 Commission v Denmark (Danish Company Cars) [2005] ECR I-7929 836–7, 838, 857–8 T-16/02 Audi v OHIM [2003] ECR II-5167 407–8 T-76/02 Messina v Commission [2003] ECR II3203 393 T-168/02 IFAW Internationaler Tierschutz-Fonds v Commission [2004] ECR II-4135 393–4 T-313/02 Meca Medina and Majcen v Commission [2004] ECR II-3291 799–800 T-351/02 Deutsche Bahn v Commission [2006] ECR II-1047 400–1 C-6/03 Deponiezweckverband Eiterköpfe [2005] ECR I-2753 209 C-12/03 P Commission v Tetra Laval [2005] ECR I-987 403–5

C-20/03 Burmanjer [2005] ECR I-4133 774, 779 C-33/03 Commission v United Kingdom (VAT on road fuel) [2005] ECR I-1865 224 n.82 C-53/03 Syfait and others v GlaxoSmithKline AEVE [2005] ECR I-4609 154 C-60/03 Wolff and Müller v Felix [2004] ECR I-9553 876 C-72/03 Carbonati Apuani [2004] ECR I-8027 782 n.108 C-88/03 Portugal v Commission (Azores) [2006] ECR I-7115 684–5 C-105/03 Pupino [2005] ECR I-5285 300, 591 C-134/03 Viacom Outdoor v Giotto Immobilier [2005] ECR I—1106 794–5 C-136/03 Dörr and Ünal [2005] ECR 1–4759 476 n.128 C-140/03 Commission v Greece [2005] ECR I-3177 842–3 C-157/03 Commission v Spain [2005] ECR I-2911 319 C-160/03 Spain v Eurojust [2005] ECR I-2077 24, 399 C-166/03 Commission v France (Gold) [2004] ECR I-6535 769 C-170/03 Feron [2005] ECR I-2299 161 C-173/03 Traghetti del Mediterraneo v Italy [2006] ECR I-5177 311–12 C-176/03 Commission v Council (Environmental Crimes) [2005] ECR I-7879 617 C-182/03 & C-217/03 Belgium and Forum 187 v Commission [2006] ECR I-5479 420 C-205/03 FENIN v Commission [2006] ECR I-6295 1029–30 C-209/03 R v London Borough of Ealing and Secretary of State for Education, ex parte Bidar [2005] ECR I-2119 456–7, 459 C-210/03 R v Secretary of State for Health, ex parte Swedish Match [2004] ECR I-11893 369, 692, 694 C-212/03 Commission v France [2005] ECR I-4213 752 C-213/03 Geven v Land Nordrhein-Westfalen [2007] ECR I-6347 836 C-215/03 Oulane v Minister voor Vreemdelingenzaken en Integratie [2005] ECR I-1215 474, 475 C-226/03 P José Martí Peix v Commission [2004] ECR I—11421 148 C-239/03 Commission v France [2004] ECR I-9325 649 C-266/03 Commission v Luxembourg [2005] ECR I-4805 224, 652 C-297/03 Sozialhilfeverband Rohrbach v Arbeiterkammer Oberösterreich [2005] ECR I-4305 290 C-319/03 Serge Brihenche v Ministre de l’Intérieur [2004] ECR I-8807 573 n.212 C-320/03 Commission v Austria [2005] ECR I-9871 749

xxxvi Table of Cases C-346/03 and C-529/03 Atzeni and Others v Regione autonoma della Sardegna [2006] ECR I-1875 160, 375, 409 C-380/03 Germany v Parliament and Council (‘Tobacco Advertising II’) [2006] ECR I-11753 369, 691–2, 694 C-403/03 Schempp [2005] ECR I-6421 460 C-408/03 Commission v Belgium [2006] ECR I-2647 451 C-432/03 Commission v Portugal [2005] ECR I-9665 886 n.56 C-443/03 Leffler v Berlin Chemie [2005] ECR I-9611 284 C-445/03 Commission v Luxembourg (Employment of Foreign Workers) [2005] ECR I-10191 874 C-446/03 Marks & Spencer v Halsey [2005] ECR I-10837 878 C-453/03, C-11/04, C-12/04 & C-194/04 Martini v Ministero delle Politiche Agricole e Forestali [2005] ECR I-10423 172–3, 280 C-461/03 Schul v Minister van Lanbouw, Natur en Voedselkwaliteit [2005] ECR I-10513 163 C-469/03 Miraglia [2005] ECR I-2009 408, 610 C-470/03 AGM-COS.MET Srl v Suomen valtio and Tarmo Lehtinen [2007] ECR I-2749 307, 752–4 C-503/03 Commission v Spain [2006] ECR I-1097 319, 478, 625 C-513/03 Van Hilten-van der Heijden v Inspecteur van de Belastingdienst [2006] ECR I-195 722 C-514/03 Commission v Spain [2006] ECR I-963 808 C-540/03 Parliament v Council (Family Reunification) [2006] ECR I-5769 88, 235–6, 243–5, 251, 505–6, 516 n.151, 517 C-544/03 Mobistar v Commune de Fléron [2005] ECR I-7723 784, 793–4, 795 T-2/03 Verein für Konsumenteninformation v Commission [2005] ECR II-1121 387 T-18/03 CD Contact Data GmbH v Commission, Judgment of 30 April 2009 934 T-60/03 Regione Siciliana v Commission [2005] ECR II-4139 418 T-84/03 Turco v Council [2008] ECR I-4723 392–3 T-125/03 R & T-253/03 R Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission [2007] ECR II-3523 408, 927 T-212/03 MyTravel v Commission [2003] OJ C200/28 433 T-218/03–T-240/03 Boyle v Commission [2006] ECR II-1699 403 T-271/03 Deutsche Telekom v Commission [2008] ECR II-477 375 T-289/03 BUPA and others v Commission [2008] ECR II-81 416, 1030–2 T-328/03 O2 (Germany) GmbH & Co. OHG v Commission [2006] ECR II-1231 989–92 T-347/03 Branco v Commission [2005] ECR II2555 409, 412

T-351/03 Schneider v Commission [2007] ECR II2237 433–5 T-391/03 & T-70/04 Franchet & Byk v Commission [2006] ECR II-2023 388 T-410/03 Hoechst v Commission [2008] ECR II881 408–9 C-27/04 Commission v Council (Stability and Growth Pact) [2004] ECR I-6649 401, 738 C-39/04 Laboratoires Fournier SA v Direction des vérifications nationales et internationales [2005] ECR I-2057 809–10 C-66/04 United Kingdom v Parliament and Council (Smoke Flavourings) [2005] ECR I-10553 692–4 C-71/04 Xunta de Galicia [2005] ECR I-7419 278 C-94/04 & C-202/04 Federico Cipolla and others v Rosaria Fazari, née Portolese and Roberto Meloni [2006] ECR I-11421 805–6, 1018 n.13 C-95/04 P British Airways plc v Commission [2007] ECR I-2331 1003–5 C-96/04 Standesamt Stadt Niebüll [2006] ECR I-3561 154, 453 n.52 C-109/04 Kranemann v Land Nordrhein-Westfalen [2005] ECR I—2421 834–5, 843–4, 876 C-125/04 Denuit and Cordonier [2005] ECR I—923 154 C-144/04 Mangold v Rüdiger Helm [2005] ECR I-9981 236, 297–8, 535, 538–40, 566 C-145/04 Spain v United Kingdom [2006] ECR I-7917 317, 480 C-150/04 Commission v Denmark [2007] ECR I-1163 845 C-151/04 & C-152/04 Nadin, Nadin-Lux and Durré [2005] ECR I-11203 858 C-154/04 & C-155/04 R v Secretary of State for Health, ex parte Alliance for Natural Health [2005] ECR I-6451 364 C-158/04 & C-159/04 Alfa Vita Vassilopoulos AE v Elliniko Dimosio, Nomarkhiaki Aftodiikisi Ioanninon [2006] ECR I-8135 678–9, 744, 748, 751–2, 775 C-170/04 Klas Rosengren and others v Riksåklagaren [2007] ECR I-4071 749, 778, 902 C-174/04 Commission v Italy (Free Movement of Capital) [2005] ECR I-4933 905 n.101 C-177/04 Commission v France [2006] ECR I-2461 347–8 C-180/04 Vassallo v Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenzionate [2006] ECR I-725 289, 328 C-212/04 Adeneler and Others v Ellinikos Organismos Galaktos (ELOG) [2006] ECR I-6057 171, 224, 297, 298–300 C-217/04 United Kingdom v Parliament and Council (ENISA) [2006] ECR I-3771 693–4 C-227/04 P Lindorfer [2007] ECR I-6767 539–40, 566 n.170 C-234/04 Kapferer v Schlank & Schlick [2006] ECR I-2585 171

xxxvii Table of Cases C-258/04 Ioannidis [2005] ECR I-8275 456 C-260/04 Commission v Italy [2007] ECR I-7083 808–9 C-282/04 & C-283/04 Commission v Netherlands (direct and portfolio investments) [2006] ECR I-9141 725, 726, 905 C-290/04 FKP Scorpio [2006] ECR I-9461 788 C-295/04–C-298/04 Vincenzo Manfredi and Others v Lloyd Adriatico Assicurazioni SpA and Others [2006] ECR I-6619 278, 284, 954–6 C-300/04 Eman and Sevinger [2006] ECR I-8055 480–1 C-301/04 P Commission v SGL Carbon [2006] ECR I-5915 926 C-317/04 & C-318/04 Parliament v Commission (European Network and Information Security Agency) [2006] ECR I-3771 88, 634 C-338/04, 359/04 & 360/04 Placanica, Palazzese and Soricchio [2007] ECR I-1891 808, 881, 890–1 C-344/04 R, ex parte IATA v Department for Transport [2006] ECR I-403 164 C-354/04 P Gestoras Pro Amnistía and Others v Council Judgment of 27 February 2007 [2007] ECR I-1579 254 C-355/04 P Segi v Council [2007] ECR I-1657 254 C-366/04 Georg Schwarz v Bürgermeister der Landeshauptstadt Salzburg [2006] ECR I-10139 777 C-371/04 Commission v Italy [2006] ECR I-10257 335, 854 C-372/04 Watts v Bedford Primary Care Trust [2006] ECR I-4325 815, 817, 818–19 C-386/04 Centro di Musicologia Walter Stauffer v Finanzamt München für Körperschaften [2006] ECR I-8203 722 C-392/04 & C-422/04 i-21 Germany v Bundesrepublik Deutschland [2006] ECR I-8559 171 C-407/04 P Dalmine SpA v Commission [2007] ECR I-829 405–6, 925 C-418/04 Commission v Ireland [2007] ECR I-10947 330 C-423/04 Richards v Secretary of State for Work and Pensions [2006] ECR I-3585 549 C-433/04 Commission v Belgium [2006] ECR I-10653 810 C-434/04 Ahokkainen [2006] ECR I-9171 749, 891, 902 C-436/04 Van Esbroeck [2006] ECR I-2333 610 C-441/04 A-Punckt Schmuckhandels [2006] ECR I-2093 779 C-446/04 Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue [2006] ECR I-11753 278 C-452/04 Fidium Finanz v Bundesanstalt für Finanzdienstleistnugsaufsicht [2006] ECR I-9521 788 C-467/04 Gaspirini [2006] ECR I-9199 609

C-470/04 N v Inspecteur van de Belastingdienst Oostkantoor Almelo [2006] ECR I-7409 278 C-503/04 Commission v Germany [2007] ECR I-6153 319 C-506/04 Wilson v Ordre des avocats du barreau de Luxembourg [2006] ECR I-8613 154, 811, 840 C-519/04 P Meca Medina and Majcen v Commission [2006] ECR I-6991 969–70 T-99/04 Treuhand v Commission [2008] ECR II1501 408 T-116/04 Wieland-Werke AG v Commission, Judgment of 9 May 2009 934–5 T-167/04 Asklepios Kliniken v Commission [2007] ECR II-2379 429 T-201/04 R Microsoft v Commission [2007] ECR II-3601 932 T-264/04 WWF European Policy Programme v Council [2007] ECR II-911 391 T-395/04 Air One v Commission [2006] ECR II1343 429 n.129 T-464/04 Impala v Commission [2006] ECR II2289 725 C-1/05 Jia v Migrationsverket [2007] ECR I-1 465–6 C-13/05 Sonia Chacón Navas v Eurest Colectividades SA [2006] ECR I-6467 540–1, 552 C-39/05 & C-52/05 Sweden and Turco v Council [2008] ECR I-4723 392–3 C-54/05 Commission v Finland [2007] ECR I-2473 749 C-64/05 P Sweden v Commission [2007] ECR I-11389 393–4 C-76/05 Schwarz and Gootjes-Schwarz v Finanzamt Bergisch Gladbach [2007] ECR I-6849 460, 815 C-77/05 United Kingdom v Council (Schengen) [2007] ECR I-11459 489–90 C-91/05 Commission v Council (ECOWAS) [2008] ECR I-3651 637, 667–8 C-94/05 Emsland-Stärke [2006] ECR I-2619 411 C-110/05 Commission v Italy, Judgment of 10 February 2009 750–1, 778, 874 C-112/05 Commission v Germany [2007] ECR I-8995 722–5 C-135/05 Commission v Italy [2007] ECR I-3475 332 C-137/05 United Kingdom v Council (Schengen) [2007] ECR I-11593 115 n.92, 490–1 C-138/05 Stichting Zuid-Hollandse Milieufederatie v Minister van Landbouw [2006] ECR I-8339 168 C-142/05 Åklagaren v Mickelsson and Roos, Judgment of 4 June 2009 750, 778 C-150/05 Van Straaten [2006] ECR I-9327 610 C-192/05 Tas-Hagen and Tas v Raadskamer WUBO van de Pensioen- en Uitkeringsraad [2006] ECR I-10451 460 C-208/05 ITC Innovative Technology Center GmbH v Bundesagentur für Arbeit [2007] ECR I-181 789–90 C-212/05 Hartmann v Freistaat Bayern [2007] ECR I-6303 836

xxxviii Table of Cases C-222/05–C-225/05 Van der Weerd v Minister van Landbouw, Natuur en Voedselkwaliteit [2007] ECR I-4233 284 C-238/05 Asnef-Equifax, Servicios de Información sobre Solvencia y Crédito, SL v Asociación de Usuarios de Servicios Bancarios (Ausbanc) [2006] ECR I-11125 994–5 C-246/05 Häupl v Lidl [2007] ECR I-4673 154 n.59 C-254/05 Commission v Belgium [2007] ECR I-4269 700 C-266/05 P Sison v Council [2007] ECR I-1233 390 C-274/05 Commission v Greece [2008] ECR I-7969 853 C-278/05 Robins v Secretary of State for Work and Pensions [2007] ECR I-1053 307 C-288/05 Kretzinger [2007] ECR I-6441 610 C-291/05 Minister voor Vreemdelingenzaken en Integratie v Eind [2004] ECR I-10719 471–3 C-303/05 Advocaten voor de Wereld v Leden van de Ministerraad [2007] ECR I-3633 251, 408, 601–2 C-318/05 Commission v Germany [2007] ECR I-6957 791–2, 815 C-319/05 Commission v Germany [2007] ECR I-9811 749, 898 n.85 C-321/05 Kofeod v Skatteministeriet [2007] ECR I-5795 297 C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avdelning 1, Byggettan and Svenska Elektrikerförbundet [2007] ECR I-11767 800–1 C-356/05 Farrell v Whitty [2007] ECR I-3067 290 n.67 C-367/05 Kraaijenbrink [2007] ECR I-6619 610–11 C-370/05 Festersen [2007] ECR I-1129 235–6, 725, 875, 876, 884–6 C-380/05 Centro Europa 7 v Ministero delle Comunicazioni [2008] ECR I-349 168 C-383/05 Talotta v Belgium [2007] ECR I-2555 808, 809–10 C-393/05 Commission v Austria [2007] ECR I-10195 808, 887 C-402/05 P & C-415/05 P Kadi and Al Barakaat International Foundation v Council [2008] ECR I-6351 205, 217–19, 230–2, 251, 406–7, 657–9 C-404/05 Commission v Germany [2007] ECR I-10239 808, 887 C-411/05 Félix Palacios de la Villa v Cortefiel Servicios SA [2007] ECR I-8531 291, 539–40, 566–7 C-431/05 Merck Genéricos–Produtos Farmacêuticos v Merck [2007] ECR I-7001 161, 648–9 C-432/05 Unibet v Justitiekanslern [2007] ECR I-2271 238, 280–3 C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2007] ECR I-10779 798, 801–2 C-439/05 P & C-454/05 P Land Oberösterreich and Austria v Commission (Austrian GMOs) [2007] ECR I-7141 702

C-440/05 Commission v Council (Ship-Source Pollution) [2007] ECR I-9097 617 C-444/05 Stamatelaki v OAEE [2007] ECR I-3185 817 C-464/05 Geurts and Vogten v Administratie van de BTW, registratie en domeinen, Belgische Staat [2007] ECR I-9325 858 C-465/05 Commission v Italy [2007] ECR I-11091 808 T-42/05 Williams v Commission [2008] ECR II156 387–8 T-48/05 Franchet and Byk v Commission [2008] ECR II-1585 433, 436 T-101/05 & T-111/05 BASF AG and UCB SA v Commission [2007] ECR II-4949 934, 977–8 T-185/05 Italy v Commission [2008] ECR II3207 251, 400–1 T-420/05 Vischim v Commission, Judgment of 7 October 2009 408–9, 414, 420–1, 429 T-458/05 Tegometall International v OHIM–Wuppermann (TEK) [2007] ECR II-4721 407–8 C-2/06 Kempter [2008] ECR I-411 171 C-11/06 Morgan v Bezirksregierung Köln [2007] ECR I-9161 460, 461–2 C-15/06 P Regione Siciliana v Commission [2007] ECR I-2591 418 C-37/06 & C-58/06 Viamex Agrar Handels and Others v Hauptzollamt Hamburg-Jonas [2008] ECR I-69 290 n.67 C-50/06 Commission v Netherlands [2007] ECR I-4383 476 C-70/06 Commission v Portugal [2008] ECR I-1 349 C-80/06 Carp [2007] ECR I-4473 290 C-120/06 & C-121/06 FIAMM and Others v Council and Commission [2008] ECR I-6513 433, 654, 655 C-133/06 Parliament v Council (safe Countries of Origin) [2008] I-3189 403, 520 C-143/06 Ludwigs–Apotheke München Internationale Apotheke v Juers Pharma Import-Export GmbH [2007] ECR I-9623 890–1 C-195/06 Kommaustria v ORF [2007] ECR I-8817 160 C-210/06 Cartesio, Judgment of 16 December 2008 153–4, 863 C-212/06 Government of the French Community and Walloon Government v Flemish Government [2008] ECR I-1683 330, 463–4 C-221/06 Stadtgemeinde Frohnleiten [2007] ECR I-9643 680–1 C-231/06 NPO v Jonkman [2007] ECR I-5149 171 C-241/06 Lämmerzahl [2007] ECR I-8415 284 C-244/06 Dynamic Medien Vertriebs GmbH v Avides Media AG [2008] ECR I-505 235–6, 777 C-250/06 United Pan-Europe Communications Belgium and others [2007] ECR I-11135 235–6 C-265/06 Commission v Portugal [2008] ECR I-2245 750, 778

xxxix Table of Cases C-267/06 Tadao Maruko v Versorgungsanstalt der deutschen Bühnen [2008] ECR I-1757 554–5 C-268/06 Impact v MAFF [2008] ECR I-2483 284 C-275/06 Promusciae v Telefónica de España [2008] ECR I-271 238 C-281/06 Jundt and Jundt v Finanzamt Offenburg [2007] ECR I-12231 791–2, 810 C-286/06 Commission v Spain [2008] ECR I-8025 853 C-301/06 Ireland v Council and Parliament, Judgment of 10 February 2009 623 n.142 C-303/06 S. Coleman v Attridge Law and Steve Law [2008] ECR I-5603 547 C-308/06 R v Secretary of State for Transport, ex parte Intertanko [2008] ECR I-4057 655–6 C-309/06 Marks & Spencer v CCE [2008] ECR I-2283 278 C-311/06 Consiglio Nazionale degli Ingegneri v Ministero della Giustizia and Marco Cavallera, Judgment of 29 January 2009 837, 853 C-345/06 Heinrich, Judgment of 10 March 2009 411, 412 C-362/06 P Sahlstedt v Commission, Judgment of 23 April 2009 424 C-373/06 P, C-379/06 P & C-382/06 P Flaherty and Others v Commission [2008] ECR I-2649 424 C-398/06 Commission v Netherlands [2008] ECR I-56 451 C-427/06 Birgit Bartsch v Bosch und Siemens Hausgeräte [2008] ECR I-7245 539–40 C-428/06–C-434/06 Unión General de Trabajadores de La Rioja [2008] ECR I-6747 686 C-445/06 Danske Slagterier v Germany, Judgment of 24 March 2009 284 C-452/06 R v Licensing Authority of the Department of Health, ex parte Synthon [2008] ECR I-7681 307 C-460/06 Paquay v Société d’architectes Hoet & Minne [2007] ECR I-8511 224–5 C-489/06 Commission v Greece, Judgment of 19 March 2009 320–1 C-499/06 Nerkowska [2008] ECR I-3993 460 C-501/06 P, C-513/06 P, C-515/06 P & C-519/06 P GlaxoSmithKline Services Unlimited (GSK) v Commission, Judgment of 6 October 2009 916, 984–5, 1005 C-518/06 Commission v Italy, Judgment of 28 April 2009 785, 795–7 C-524/06 Huber v Bundesrepublik Deutschland [2008] ECR I-9705 454 C-531/06 Commission v Italy, Judgment of 19 May 2009 221, 724, 725–6, 842–3 T-187/06 Netherlands v Commission [2008] ECR II-3151 327 T-212/06 Bowland Dairy Products v Commission, Judgment of 29 October 2009 400 T-369/06 Holland Malt v Commission, Judgment of 9 September 2009 408

T-411/06 Sogelma v EAR [2008] ECR II-2771 399, 429 C-11/07 Eckelkamp [2008] ECR I-6845 725 C-14/07 Weiss v Industrie- und Handelskammer Berlin [2008] ECR I-3367 236 C-33/07 Jipa [2008] ECR I-5157 479 C-42/07 Liga Portuguesa de Futebol Profissional and Bwin International Ltd v Departamento de Jogos da Santa Casa da Misericórdia de Lisboa, Judgment of 8 September 2009 808, 891 C-43/07 Arens-Sikken v Staatssecretaris van Financiën [2008] ECR I-6887 722 C-48/07 Les Vergers du Vieux Tauves, Judgment of 22 December 2008 161–2 C-54/07 Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV [2008] ECR I-5187 558-9 C-88/07 Commission v Spain, Judgment of 5 March 2009 748, 898 C-94/07 Raccanelli v Max-Planck-Gesellschaft zur Förderung der Wissenschaften [2008] ECR I-5939 835 C-95/07 & C-96/07 Ecotrade v Agenzia delle Entrate–Ufficio di Genova Judgment of 21 June 2008 284 n.43 C-113/07 P SELEX Sistemi Integrati SpA v Commission, Judgment of 26 March 2009 1027 C-121/07 Commission v France, Judgment of 9 December 2008 348 C-138/07 Belgische Staat v Cobelfret, Judgment of 12 February 2009 272–3 C-141/07 Commission v Germany [2008] ECR I-6935 876 n.34 C-151/07 Theologos-Grigorios Khatzithanasis v Ypourgos Ygeias kai Koinonikis Allilengyis and Organismos Epangelmatikis Ekpaidefsis kai Katartisis (OEEK), Judgment of 4 December 2008 853 C-155/07 Parliament v Council (EIB Guarantees) [2008] ECR I-8103 95 n.7 C-158/07 Förster v Hoofddirectie van de Informatie Beheer Groep [2008] ECR I-8507 458–9 C-164/07 Wood [2008] ECR I-4143 453 C-169/07 Hartlauer Handelsgesellschaft mbH v Wiener Landesregierung, Oberösterreichische Landesregierung, Judgment of 10 March 2009 842–3, 883–4, 886 C-171/07 & C-172/07 Apothekerkammer des Saarlandes, Judgment of 19 May 2009 842–3 C-202/07 P France Télécom SA v Commission, Judgment of 2 April 2009 1006 C-205/07 Gysbrechts [2008] ECR I-9947 781–2 C-221/07 Zablocka, Judgment of 4 December 2008 460 C-222/07 UTECA v Administración General del Estado, Judgment of 5 March 2009 810–11, 891 C-226/07 Flughafen Köln/Bonn, Judgment of 17 July 2008 272–3 C-261/07 & C-299/07 VTB-VAB v Total, Judgment of 29 April 2009 299–300

xl Table of Cases C-276/07 Nancy Delay v Università degli studi di Firenze, Istituto nazionale della previdenza sociale [2008] ECR I-3635 854–5 C-297/07 Bourquain, Judgment of 11 December 2008 609, 611 C-322/07 P, C-327/07 P & C-338/07 P Papierfabrik August Koehler v Commission, Judgment of 3 September 2009 409 C-326/07 Commission v Italy, Judgment of 26 March 2009 726 C-330/07 Jobra Vermögensverwaltungs-Gesellschaft mbH v Finanzamt Amstetten Melk Scheibbs, Judgment of 4 December 2008 472, 809–10 C-378/07–C-380/07 Angelidaki v ONAR, Judgment of 23 April 2009 297 C-385/07 P Grüne Punkt DSD v Commission, Judgment of 16 July 2009 148 C-393/07 & C-9/08 Italy v Parliament, Judgment of 30 April 2009 82 C-405/07 P Netherlands v Commission [2008] ECR I-8301 704, 705 C-440/07 P Commission v Schneider Electric, Judgment of 16 July 2009 435 C-445/07 P & C-455/07 P Commission v Ente per le Ville Vesuviane, Judgment of 10 September 2009 416 C-457/07 Commission v Portugal, Judgment of 10 September 2009 344–5 C-465/07 Elgafaji v Staatsecretaris van Justitie, Judgment of 17 February 2009 235–6, 528–30 C-491/07 Turansky, Judgment of 22 December 2008 610 C-519/07 P Commission v Koninklijke Friesland Campina, Judgment of 17 September 2009 419–20 C-531/07 Fachverband der Buch-und Medienwirtschaft, Judgment of 30 April 2009 779, 780 C-537/07 Gómez-Limón v INSS, Judgment of 16 July 2009 168 C-544/07 Rüffler, Judgment of 23 April 2009 460, 461, 837 C-551/07 Sahin, [2008] ECR I-1043 471 n.106 C-553/07 College van Burgemeester en Wethouders van Rotterdam v Rijkeboer, Judgment of 7 May 2009 235–6, 251 C-567/07 Minister voor Wonen, Wijken en Integratie v Woningstichting Sint Servatius, Judgment of 1 October 2009 725–6 T-263/07 Estonia v Commission, Judgment of 23 September 2009 401–2, 403, 408–9 C-8/08 T-Mobile Netherlands BV v Raad van bestuur van de Nederlandse Mededingingsautoriteit, Judgment of 4 June 2009 985–7, 1005 C-12/08 Mono Car Styling v Odemis, Judgment of 16 July 2009 251 C-14/08 Roda Golf and Beach Resort, Judgment of 25 June 2009 154

C-22/08 Vatsouras v Arbeitsgemeinschaft Nürnberg, Judgment of 4 June 2009 458, 459 C-66/08 Kozlowski [2008] ECR I-6041 598 C-76/08 Commission v Malta, Judgment of 10 September 2009 318 C-103/08 Gottwald v Bezirkshauptmannschaft Bregenz, Judgment of 1 October 2009 453, 455, 456 C-123/08 Wolzenburg v London Borough of Ealing and Secretary of State for Education and Skills, Judgment of 6 October 2009 453, 459, 460, 598 C-127/08 Metock [2008] ECR I-6241 469 n.101, 470–1, 473, 506 C-135/08 Rottman v Freistaat Bayern, Judgment of 2 March 2010 445 C-141/08 P Foshan Shunde Yongjian Housewares & Hardware Co. v Commission, Judgment of 1 October 2009 407 C-153/08 Commission v Spain, Judgment of 6 October 2009 809–10 C-165/08 Commission v Poland, Judgment of 16 July 2009 325–7 C-169/08 Presidente del Consiglio dei Ministri v Regione Sardegna, Judgment of 17 November 2009 809–10 C-205/08 Alpe Adria Energia, Opinion of AG Colomar of 25 June 2009 155 C-261/08 & C-348/08 Zurita García v Delegado del Gobierno en la Región de Murcia, Judgment of 22 October 2009 509 C-301/08 Bogiatzi v Deutscher Luftpool, Judgment of 22 October 2009 652 C-310/08 Ibrahim, Judgment of 23 February 2010 467 C-344/08 Rubach, Judgment of 16 July 2009 236, 408 C-480/08 Teixeira, Judgment of 23 February 2010 467 C-482/08 United Kingdom v Council [2009] OJ C32/15 491 T-246/08 & T-332/08 Melli Bank v Council, Judgment of 9 July 2009 411, 430–1 C-567/09 Woningstichting Sint Servatius, Judgment of 1 October 2009 905

EC Commission Competition Decisions Austrian Banks [2002] OJ L56/1 926 Bayer/BPCL [1988] OJ L150/35 994 Bayo-n-ox [1990] OJ L21/71 980–1 CECED [2000] OJ L187/47 993–4, 995 Deutsche Post I [2001] OJ L125/27 1043–4 Distribution of Package Tours during the 1990 World Cup [1992] OJ L326/31 964 Fenex [1996] OJ L181/28 973 Fine Art Auction Houses [2005] OJ L200/92 933 Ford/Volkswagen [1993] OJ L20/14 968 German Electricity Wholesale Market, Decision of 26 November 2008 1002

xli Table of Cases Glaxo Wellcome [2001] OJ L302/1 983 Gosmé/Martell-DMP [1991] OJ L185/23 964 Hybrid Mail [2001] OJ L63/59 1043 Intel, Decision of 13 May 2009 1010 Konica [1988] OJ L78/34 980–1 La Poste [2002] OJ L120/19 1043 Microsoft Corporation [2007] OJ L32/23 916 NAVEWA-ANSEAU [1982] OJ L167/39 1032 Olivetti/Canon [1988] OJ L52/60 994 Optical Fibres [1986] OJ L236/30 994 Philips/Osram [1994] OJ L378/37 994 Pioneer [1980] OJ L60/21 933 Polypropylene [1986] OJ L230/1 972–3 Pre-Insulated Pipes Cartel [1999] OJ L24/1 925, 933 RAI/UNITEL [1978] OJ L157/39 964 Re Zanussi SpA Guarantee [1978] OJ L322/26 966–7 Reuter/BASF [1976] OJ L254/40 964 RWE Gas Foreclosure, Decision of 19 March 2009 1002 Sandoz Prodotti Farmaceutici SpA [1987] OJ L222/28 980–1 Spanish International Express Courier Services [1990] OJ L233/19 1039 Stichting Baksteen [1994] OJ L131/15 994 Synthetic Fibres [1984] OJ L207/17 968, 992, 994 Télévision par satellite [1999] OJ L90/6 987, 988 Tipp-Ex [1987] OJ L222/1 980–1 Viho/Parker Pen [1992] OJ L233/27 965 Virgin/British Airways [2000] OJ L30/1 1003 Volkswagen [1998] OJ L124/60 980–1 Wanadoo Interactive, Decision of 16 July 2003 1006 Zinc Phosphate [2003] OJ L153/1 925 Zinc Producer Group [1984] OJ L220/27 973

European Ombudsman Decisions Complaint 995/98/OV (Macedonian Metro) 342 Complaint 1288/99/OV 340

European Commission of Human Rights Arrowsmith v United Kingdom (1978) 19 DR 5 551 H v United Kingdom (1993) 16 EHRR CD 44 551

European Court of Human Rights Amrollahi v Denmark, 56811/00 [2002] ECHR 585 504 Bendenoun v France, 12547/86 [1994] ECHR 7 940 Berrehab v The Netherlands, 10730/84 [1988] ECHR 14 504 Bosphorus v Ireland, 45036/98, Judgment of 30 June 2005 260–2 Boultif v Switzerland, 54273/00 [2001] ECHR 497 469–70 Campbell and Cosans v United Kingdom, 7511/76; 7743/76 [1982] ECHR 8 551

D v United Kingdom, 30240/96 [1997] ECHR 25 505 Funke v France, 10828/84 [1993] ECHR 7 926 Goodwin v United Kingdom, 28957/95 (2002) 35 EHRR 18 549 Gül v Switzerland, 23218/94 [1996] ECHR 5 504 I v United Kingdom, 25659/94 [2002] ECHR 592 549 Kokkinakis v Greece, 14307/88 (1994) 17 EHRR 397 551 n.95 Le Compte, Van Leuven and De Meyere v Belgium, 6878/75; 7238/75 [1981] ECHR 3 940–1 Leyla Shain v Turkey [2004] ECHR 299 564 n.163 Niemetz v Germany, 13710/88 [1992] ECHR 80 928–30 Öztürk v Germany, 8544/79 [1984] ECHR 1 940–1 Saunders v United Kingdom, 19187/91 [1996] ECHR 65 926 Smith and Grady v United Kingdom, 33985/96; 33986/96 [2000] ECHR 384 563 Société Colas Est and others v France, 37971/97 [2002] ECHR 421 928 Société Colas Est and others v France (2004) 39 EHHR 17 928 Société Stenuit v France, 11598/85 [1992] ECHR 34 940 Soering v United Kingdom, 14038/88 [1989] ECHR 14 505 Veeber v Estonia (No. 1) (2004) 39 EHRR 6 928

EFTA Court E-5/07 Private Barnehagers Landsforbund v EFTA Surveillance Authority, Judgment of 21 February 2008 791

International Court of Justice Reparation for Injuries suffered in the service of the United Nations [1949] ICJ Reports 174 632

National Courts Belgium Minister for Economic Affairs v Fromagerie ‘Le Ski’ [1972] CMLR 516 189 Benelux European School v Hermans-Jacobs and Heuvelmans-Van Iersel (No. 12/94) Journal des Tribunaux, 1994 194 Cyprus Attorney General of the Republic of Cyprus v Konstantinou [2007] 3 CMLR 42 204, 603 Czech Republic Re Constitutionality of Framework Decision on the European Arrest Warrant (Czech Constitutional Court) [2007] 3 CMLR 24 221, 222, 603, 605–6 Decision Pl ÜS 19/08 Treaty of Lisbon, 26 November 2008 (Constitutional Court) 49–50, 640–1 Decision Pl ÜS 50/04 Sugar Quota Regulation II, Judgment of 8 March 2006 194, 213, 221, 222

xlii Table of Cases Denmark Carlsen v Rasmussen [1999] 3 CMLR 854 194 Estonia Opinion on the Interpretation of the Constitution No. 3–4–1–18 3–06, Opinion of 11 May 2006 190–1 France Administration des Contributions v Café Jaques Vabre [1975] 2 CMLR 336 189 Cahiers du Conseil Constitutionnel No. 17, 2004 194 Conseil constitutionnel, Decision 92–308 DC of 9 April 1992 on the Constitutionality of the Maastricht Treaty (‘Maastricht I’) 27 Minister of the Interior v Cohn-Bendit [1980] 1 CMLR 543 287 Nicolo Case [1990] 1 CMLR 173 189 Re EU Constitutional Treaty and the French Constitution (French Constitutional Court) [2005] 1 CMLR 750 220 Re Treaty on European Union (Decision 92–308), JORF 1992, No. 5354 27 Germany Brunner v European Union Treaty [1994] 1 CMLR 57 194 Constitutionality of German Law Implementing the Framework Decision on a European Arrest Warrant [2006] 1 CMLR 16 226–7, 599–601, 602–3 Gauweiler v Treaty of Lisbon (2 BvE 2/08) 43–6, 49–50, 77, 126, 194–7, 201–2, 204–5, 212, 219–20, 222, 584–6, 593 Internationale Handelsgesellschaft v Einfuhr- und Vorratstelle für Getreide und Futtermittel [1974] 2 CMLR 540 221 Re Value Added Tax Directives [1982] 1 CMLR 527 287 Wünsche Handelsgesellschaft (‘Solange II’) [1987] CMLR 225; (1986) BVerfGE 339 221, 235 Greece Re Enforcement of a European Arrest Warrant against Tzoannos (Greek Court of Appeal) [2008] 2 CMLR 38 604 Hungary Case 17/04 (V. 25) Speculation in Agricultural Products (AB Constitutional Court of the Republic of Hungary) 226, 227 Ireland Attorney General v X [1992] 2 CMLR 277 258–9 Italy Admenta and Others v Federforma [2006] 2 CMLR 47 221 Frontini v Ministero delle Finanze [1974] 2 CMLR 372 221 Poland Polish Membership of the European Union (Accession Treaty), Judgment K18/04, 11 May 2005, (Polish Constitutional Court) 191–4, 603

Re Enforcement of a European Arrest Warrant [2006] 1 CMLR 36 204, 603–5 Slovenia U-1–113/04 Rules on the Quality Labelling and Packaging of Feeding Stuffs, Judgment of 7 February 2007 194 Spain CanalSatelite Digital v State Attorney, Judgment of 6 June 2003 (Tribunal Supremo) [2005] 5 EuroCL 33 303 Re EU Constitutional Treaty and the Spanish Constitution (Spanish Constitutional Court) [2005] 1 CMLR 981 202 Re Treaty on European Union [1994] 3 CMLR 101 27 United Kingdom Bettercare Group Ltd v Director General of Fair Trading [2002] CAT 7 1030 CRE v Dutton [1989] QB 783 550 Crehan v Inntrepreneur [2004] EWCA Civ 637 952 Cunningham v Milk Marketing Board for Northern Ireland [1988] 3 CMLR 815 176 Dawkins v Department of Environment [1993] ICR 517 550 Deide v Gillette [1980] IRLR 427 550 Devenish Nutrition Ltd and Others v Sanofi and Others [2007] EWHC 2394 (Ch) 955 Factortame II [1991] 1 AC 603 190 Garden Cottage Foods v Milk Marketing Board [1984] AC 130 953–4 Inntrepreneur Pub Company (CPC) and Others v Crehan [2006] UKHL 38 952 Macarthys Ltd v Smith [1980] ICR 672 543–4 Mandla v Lee [1983] 2 AC 548 550 Porcelli v Strathclyde Regional Council [1986] ICR 564 560–1 R v Anderson [1986] AC 27 977 R v MAFF, ex parte First City Trading [1997] 1 CMLR 250 194 R v Secretary of State for Employment, ex parte EOC [1994] 1 All ER 910 546 R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees-Mogg [1994] QB 552 27 R v Secretary of State for the Home Department, ex parte Adam [2006] 1 AC 396 523 R v Secretary of State for the Home Department, ex parte Adan [2001] 2 AC 477 503–4 United States Continental TV v GTE Sylvania (1977) 433 US 36 979 Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v Amos 483 US 327 (1987) 565

xliii Table of Cases Hanover Shoe Inc. v Shoe Machinery Corp. 392 US 481 (1968) 957–8 Illinois Brick Co. v Illinois 431 US 720 (1977) 957–8 Meritor Savings Bank v Vinston 477 US 57 (1986) 560–1

National Society of Professional Engineers v United States 435 US 679 (1978) 988 St Francis College v Al-Khazraji 481 US 604 (1987) 550

European Court of Justice: alphabetical order A-Punckt Schmuckhandels [2006] ECR I-2093 (C-441/04) 779 Aalborg Portland v Commission (Cement) [2004] ECR I-123 (C-204/00 & 205/00 P, C-211/00 P, C-213/00 P, C-217/00 P & C-219/00 P) 408, 930 Aanemersbedrijf P. K. Kraaijeveld v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403 (C-72/95) 177 Abrahamsson [2000] ECR I-5539 (C-407/98) 573–4 ACF Chemiefarmia v Commission [1970] ECR 661 (41/69, 44/69 & 45/69) 931, 972 Adams v Commission [1985] ECR 3539 (145/83) 437 ADBHU [1985] ECR 531 (240/83) 236 Adeneler v ELOG (Ellinikos Organismos Galaktos) [2006] ECR I-6057 (C-212/04) 171, 224, 297, 298-300 Adoui and Cornuaille [1982] ECR 1665 (115/81 & 116/81) 477, 881, 884, 902–3 Advocaten voor de Wereld [2007] ECR I-3633 (C-303/05) 251, 408, 601–2 AEG [1983] ECR 3135 (107/82) 966–7, 981 Afrikanische Fruchtcompanie v Council [2004] II-521 (T-64/01 & T-65/01) 59 Afvalstoffen [1998] ECR I-4075 (C-203/96) 878, 897–8, 1030, 1032, 1034 AGM [2007] ECR I-2749 (C-470/03) 752–4 Aher-Waggon [1998] ECR I-4473 (C-389/96) 894 Ahokkainen [2006] ECR I-9171 (C-434/04) 749, 891, 902 Air France v Commission [1994] ECR II-121 (T-3/93) 401 Air One v Commission [2006] ECR II-1343 (Case T-395/04) 429 n.129 Akrich [2003] ECR I-9607 (C-109/01) 243, 469, 470, 472 Aktien-Zuckerfabrik Schöppenstedt v Council [1971] ECR 975 (5/71) 433 Akzo v Commission [1986] ECR 2585 (5/85) 56 Akzo [1991] ECR I-3359 (62/86) 999, 1005–6 Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission [2007] ECR II-3523 (T-125/03 & T-253/03) 408, 927 Al-Jubail v Council [1991] ECR I-3187 (49/88) 407 Albany [1999] ECR I-5751 (C-67/96) 967, 1025, 1029 Alcan v Commission [1970] ECR 385 (69/69) 416 Alfa Vita Vassilopoulos v Elliniki Dimosio [2006] ECR I-8135 (C-158/04 & C-159/04) 678–9, 744, 748, 751–2, 778

Alliance for Natural Health (R v Secretary of State for Health, ex parte Alliance for Natural Health) [2005] ECR I-6451 (C-154/04 & C-155/04) 364 Allonby [2004] ECR I-873 (C-256/01) 544–6 Allue v Università degli Studi di Venezia [1989] ECR 1591 (33/88) 481–2 Alpe Adria Energia, Opinion of AG Colomar of 25 June 2009 (C-205/08) 155 Alpine Investments [1995] ECR I-1141 (C-384/93) 784, 788–9, 790, 793, 797, 806–7, 837 Altmark [2003] ECR I-7747 (C-280/00) 1030, 1037 AM & S Europe Ltd v Commission [1982] ECR 1575 (155/79) 236, 408, 927 Ambulanz Glöckner v Landkreis Südwestpfalz [2001] ECR I-8089 (C-475/99) 1032–4 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595 (199/82) 277–8 An Taisce v Commission [1994] ECR II-733 (T-461/93) 427 Andersson and Wåkerås-Andersson [1999] ECR I-3551 (C-321/97) 652 André v Landrat des Kreises Herford [2004] ECR I-11825 (C-434/02) 692 Angelidaki v ONAR, Judgment of 23 April 2009 (C-378/07–C-380/07) 297 Angonese [2000] ECR I-4139 (C-281/98) 798, 836, 839 Anic [1999] ECR I-4125 (C-49/92) 974–7, 978 Anker [2003] ECR I-10447 (C-47/02) 906 Anomar v Estado Português [2003] ECR I-8621 (C-6/01) 790, 808 AOK Bundesverband [2004] ECR I-2493 (C-264/01, C-306/01, C-354/01 & C-355/01) 1029–30 Apothekerkammer des Saarlandes, Judgment of 19 May 2009 (C-171/07 & C-172/07) 842–3 Apple & Pear Development Council [1983] ECR 4083 (222/82) 327, 757–8 Aragonesa [1991] ECR I-4151 (C-1/90 & C-176/90) 782 Arblade [1999] ECR I-8453 (C-369/96 & C-376/96) 792–3 Arcaro [1996] ECR I-4705 (C-168/95) 297 Arcor v Bundesrepublik Deutschland [2008] ECR I-5959 (C-152/07 to 154/07) 272–3, 291–2, 293 Arduino [2002] ECR I-1529 (C-35/99) 1018 n.13 Arens-Sikken v Staatssecretaris van Financiën [2008] ECR I-6887 (C-43/07) 722 Argos Distributors Ltd v CCE [1996] ECR I-5311 (C-288/94) 790

xliv Table of Cases Asklepios Kliniken v Commission [2007] ECR II-2379 (T-167/04) 429 Asnef-Equifax v Ausbanc [2006] ECR I-11125 (C-238/05) 994–5 Asocarne v Council and Commission [1995] ECR I-4149 (C-10/95 P) 414, 415 Asscher [1994] ECR I-1137 (C-107/94) 836 Associazione Nazionale Bieticoltori v Council [1998] ECR II-4191 (T-38/98) 425–6 ASTI [1991] ECR I-3507 (C-213/90) 855 Atlanta Fruchthandelsgesellschaft [1995] ECR I-3761 (C-465/93) 164, 172, 280 Atlantic Container Line v Commission [2002] ECR II-875 (T-395/94) 932 Atzeni and Others v Regione autonoma della Sardegna [2006] ECR I-1875 (C-346/03 & C-529/03) 160, 375, 409 Au Blé Vert [1985] ECR 1 (229/83) 756, 1015 n.6 Audi v OHIM (TDI) [2003] ECR II-5167 (T-16/02) 407–8 Austrian GMOs (Land Oberösterreich and Austria v Commission) [2007] ECR I-7141 (C-439/05 P & C-454/05 P) 702 Automec Srl v Commission (Automec II) [1992] ECR II-2223 (T-24/90) 428, 924 Avello [2003] ECR I-11613 (C-148/02) 452–4, 464 Awoyemi [1998] ECR I-6781 (C-230/97) 475 Bacardi France [2004] ECR I-6613 (C-429/02) 874 Bachmann [1992] ECR I-249 (C-204/90) 875, 876–7 Barber [1990] ECR I-1889 (262/88) 544, 553 BASF AG and UCB SA [2007] ECR II-4949 (T-101/05 & T-111/05) 934 BASF (Commission v BASF) [1994] ECR I-2555 (C-137/92 P) 56, 437–8 Baumbast v Secretary of State for the Home Department [2002] ECR I-7091 (C-413/99) 450–2, 467 Baustahlgewerbe v Commission [1998] ECR I-8417 (C-185/95 P) 148 Bayer [2004] ECR I-23 (C-2/01 & C-3/01 P) 981–2 Becker v Finanzamt Münster-Innenstadt [1982] ECR 53 (8/81) 287 BECTU (R v Secretary of State for Trade and Industry, ex parte BECTU) [2001] ECR I-4881 (C-173/99) 251 Becu [1999] ECR I-5665 (C-22/98) 964 Belasco [1989] ECR 2117 (246/86) 966–7 Belgian (Walloon) Waste (C-2/90) [1992] ECR I-4431 878, 897 Belgische Staat v Cobelfret, Judgment of 12 February 2009 (C-138/07) 272–3 Belgium v Spain [2000] ECR I-3123 (C-388/95) 317, 780–1 Belgium and Forum 187 v Commission [2006] ECR I-5479 (C-182/03 & C-217/03) 420 Bellamy and English Shop [2001] ECR I-2795 (C-123/00) 766–7, 893

Benedetti v Munari [1977] ECR 163 (52/76) 169 Bergaderm [2000] ECR I-5291 (C-352/98 P) 432–3 Berlusconi and others [2005] ECR I-3565 (C-387/02, C-391/02 & C-403/02) 224–5 Bettati [1998] ECR I-4355 (C-341/95) 894 Bettray [1989] ECR 1621 (344/87) 833, 834–5 BEUC and NCC v Commission [1994] ECR II-285 (T-37/92) 407 Bickel and Franz [1998] ECR I-7637 (C-274/96) 453 Bidar (R v London Borough of Ealing and Secretary of State for Education, ex parte Bidar) [2005] ECR I-2119 (C-209/03) 456–7, 459 Biehl [1990] ECR I-1779 (175/88) 855 Bilka-Kaufhaus [1986] ECR 1607 (170/84) 544, 559, 560 Biogen v Smithkline Beecham [1996] ECR I-717 (C-181/95) 151 Biologische Producten [1981] ECR 3277 (272/80) 886–7, 898 Biotechnology Directive [2001] ECR I-7079 (C-377/98) 235–6, 364–5 Birden [1998] ECR I-7747 (C-1/97) 834–5 Birgit Bartsch v Bosch und Siemens Hausgeräte [2008] ECR I-7245 (C-427/06) 539–40 Blackspur DIY v Council and Commission [1995] ECR II-2627 (T-168/94) 437 Blaizot [1988] ECR 379 (24/86) 235 Bleis [1991] ECR I-5627 (C-4/91) 481–2 Bluhme [1998] ECR I-8033 (C-67/97) 890–1, 895 BNIC v Clair [1983] ECR 391 (123/83) 966–7 Bogiatzi, Judgment of 22 October 2009 (C-301/08) 652 Bond van Adverteerders [1988] ECR 2085 (352/85) 788–9, 875–6 Bordessa [1995] ECR I-361 (C-358/93 & C-416/93) 905 Bosch [2008] ECR I-7245 (C-427/06) 539–40 Bosman [1995] ECR I-4921 (C-415/93) 798, 837, 840–2, 874, 875, 891, 906 Bosphorus [1996] ECR I-3953 (C-84/95) 260 Bourquain, Judgment of 11 December 2008 (C-297/07) 609, 611 Bowland Dairy Products v Commission, Judgment of 29 October 2009 (T-212/06) 400 Boyle v Commission [2006] ECR II-1699 (T-218/03–T-240/03) 403 Branco v Commission [2005] ECR II-2555 (T-347/03) 409, 412 Brasserie du Pêcheur/Factortame III [1996] ECR I-1029 (C-46/93 and 48/93) 283, 304–7, 431–2 Brentjens’ Handelsonderneming BV [1999] ECR I-6025 (C-116/97 & C-117/97) 967–8 Brentjens’ Handelsonderneming BV [1999] ECR I-6025 (C-116/97 & C-117/97) 968 British Airways [2003] ECR II-5917 (T-219/99) 999, 1003 British Airways [2007] ECR I-2331 (C-95/04 P) 1003–5

xlv Table of Cases British American Tobacco/Imperial Tobacco (R v Secretary of State for Health, ex parte British American Tobacco (Investments) and Imperial Tobacco) [2002] ECR I-11453 (C-491/01) 364, 369 British Telecom (R v HM Treasury, ex parte British Telecommunications plc [1996] ECR I-1631) (C-392/93) 307 Broeckmeulen v Huisarts Registratie Commissie [1981] ECR 2311 (246/80) 153, 154–5 BRT v SABAM [1974] ECR 51 (127/73) 942, 952 BUPA and others v Commission [2008] ECR II-81 (T-289/03) 416, 1030–2 Burmanjer [2005] ECR I-4133 (C-20/03) 774, 779 Buy Irish (Commission v Ireland) [1982] ECR 4005 (249/81) 327, 749, 754 BWM Belgium v Commission [1979] ECR 2435 (32/78 & 36/78–82/78) 980–1 Cabotage II (Parliament v Council) [1992] ECR I-4593 (C-65/90) 110, 414 Caixa Bank France [2004] ECR I-8961 (C-442/02) 805, 859–60 Calpak v Commission [1980] ECR 1949 (789/79 & 790/79) 98 Campus Oil [1984] ECR 2727 (72/83) 766–7, 875, 876, 893 Carbonati Apuani [2004] ECR I-8027 (C-72/03) 782 n.108 Carp [2007] ECR I-4473 (C-80/06) 290 Carpenter v Secretary of State for the Home Department [2002] ECR I-6279 (C-60/00) 464, 473 Cartesio, Judgment of 16 December 2008 (C-210/06) 153–4, 863 Cassis de Dijon (Rewe-Zentral v Bundesmonopolverwaltung für Branntwein) [1979] ECR 649 (120/78) 697, 744–5, 746–7, 761–3, 770, 873–4 Cavallera, Judgment of 29 January 2009 (C-311/06) 837, 853 CD Contact Data GmbH v Commission, Judgment of 30 April 2009 (T-18/03) 934 Centro di Musicologia Walter Stauffer v Finanzamt München für Körperschaften [2006] ECR I-8203 (C-386/04) 722 Centro Europa 7 v Ministero delle Comunicazioni [2008] ECR I-349 (Case C-380/05) 168 Centro Servizi Spediporto Srl v Spedizione Marittima del Golfo Srl [1995] ECR I-2883 (C-96/94) 1018 Centros [1999] ECR I-1459 (C-212/97) 864–5, 866–7, 874 Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV [2008] ECR I-5187 (C-54/07) 558-9 Chernobyl (European Parliament v Council) [1990] ECR I-2041 (70/88) 414 Chevalley v Commission [1970] ECR 979 (15/70) 429 Chiquita [1995] ECR I-4533 (C-469/93) 655

CIA Security International v Signalson & Securitel [1996] ECR I-2201 (194/94) 292–3 CILFIT v Ministry of Health [1982] ECR 341 (283/81) 175–7 Cimenteries CBR SA and Others v Commission [2000] ECR II-700 (T-25/95 etc.) 940 n.115 Cinéthèque v Fédération Nationale des Cinémas Français [1985] ECR 2605 (60/84 & 61/84) 252 Ciola [1999] ECR I-2517 (C-224/97) 797 Cipolla and others v Rosaria Fazari, née Portolese and Roberto Meloni [2006] ECR I-11421 (C-94/04 & C-202/04) 805–6, 1018 Clinique [1994] ECR I-317 (315/92) 771 CMA (Commission v Germany) [2002] ECR I-9977 (C-325/00) 327–8, 758 CNTA v Commission [1975] ECR 533 (74/74) 413, 436 Coditel [1980] ECR 881 (262/81) 874 Codorníu SA v Council [1994] ECR I-1853 (C-309/89) 414 Coenen v SER [1975] ECR 1547 (39/75) 792, 808 Colegio de Oficiales de la Marina Mercante Española v Administración del Estado [2003] ECR I-10391 (C-405/01) 481–2, 906 Coleman [2008] ECR I-5603 (C-303/06) 547 College van Burgemeester en Wethouders van Rotterdam v Rijkeboer, Judgment of 7 May 2009 (553/07) 235–6, 251 Collins [2004] ECR I-2703 (C-138/02) 456, 459 Comateb and others [1997] ECR I-165 (C-192/95–C-218/95) 278 Comitology (European Parliament v Council) [1988] ECR 5615 (302/87) 429 Commission v Austria [2000] ECR I-7367 (C-205/98) 339 Commission v Austria [2004] ECR I-8291 (C-465/01) 855 Commission v Austria [2005] ECR I-9871 (C-320/03) 749 Commission v Austria [2007] ECR I-10195 (C-393/05) 808, 887 Commission v Austria (Open Skies) [2002] ECR I-9797 (C-475/98) 641 Commission v Belgium [1970] ECR 237 (C-77/69) 327, 329 Commission v Belgium [1984] ECR 1861 (324/82) 790 Commission v Belgium [1987] ECR 2797 (1/86) 329 Commission v Belgium (Gravier) [1988] ECR 305 (293/85) 337–8 Commission v Belgium [1992] ECR I-305 (C-300/90) 875 Commission v Belgium [1996] ECR I-2323 (C-133/94) 338 Commission v Belgium [1996] ECR I-4115 (C-11/95) 336 Commission v Belgium [2000] ECR I-1221 (C-355/98) 808

xlvi Table of Cases Commission v Belgium [2000] ECR I-10251 (C-217/99) 770, 883 Commission v Belgium [2002] ECR I-4809 (C-503/99) 725, 726, 905 Commission v Belgium [2006] ECR I-2647 (C-408/03) 451 Commission v Belgium [2006] ECR I-10653 (C-433/04) 810 Commission v Belgium [2007] ECR I-4269 (C-254/05) 700 Commission v Belgium (No. 2) [1982] ECR 1845 (149/79) 481–2, 905–6 Commission v Belgium (Open Skies) [2002] ECR I-9681 (C-471/98) 641 Commission v Belgium (Right of Establishment: Clinical Biology Laboratories) [1987] ECR 719 (221/85) 858 Commission v Council (Recovery of Indirect Taxes) [2004] ECR I-4829 (C-338/01) 95–6 Commission v Council (Stability and Growth Pact) [2004] ECR I-6649 (C-27/04) 401, 738 Commission v Council (Titanium Dioxide) [1991] ECR I-2867 (C-300/89) 689 Commission v Denmark [1982] ECR 4547 (211/81) 335, 337 Commission v Denmark [1987] ECR 4065 (278/85) 336 Commission v Denmark [1988] ECR 4607 (Case 302/86) 771, 874 Commission v Denmark [2003] ECR I-9693 (C-192/01) 752, 879, 891, 900 n.87 Commission v Denmark [2007] ECR I-1163 (C-150/04) 845 Commission v Denmark (Danish Company Cars) [2005] ECR I-7929 (C-464/02) 836–7, 838, 857–8 Commission v Denmark (Open Skies) [2002] ECR I-9519 (C-467/98) 641 Commission v Ente per le Ville Vesuviane, Judgment of 10 September 2009 (C-445/07 P & C-455/07 P) 416 Commission v Finland [2007] ECR I-2473 (C-54/05) 749 Commission v Finland (Open Skies) [2002] ECR I-9627 (C-469/98) 641 Commission v France [1983] ECR 1013 (42/82) 901 Commission v France [1985] ECR 1355 (21/84) 752 Commission v France [1986] ECR 273 (270/83) 861 Commission v France [1986] ECR 1475 (96/85) 845 Commission v France [1986] ECR 1725 (307/84) 481–2 Commission v France [1986] ECR 3663 (220/83) 874 Commission v France [1991] ECR I-2727 (64/88) 346 Commission v France [1994] ECR I-5145 (C-381/93) 788–9, 816 Commission v France [1998] ECR I-6197 (184/96) 769–70 Commission v France [2000] ECR I-11499 (C-55/99) 770

Commission v France [2002] ECR I-4781 (C-483/99) 905 Commission v France [2004] ECR I-6569 (C-262/02) 874 Commission v France [2004] ECR I-9325 (C-239/03) 649 Commission v France [2005] ECR I-4213 (C-212/03) 752 Commission v France [2006] ECR I-2461 (C-177/04) 347–8 Commission v France (French Merchant Navy) [1974] ECR 359 (167/73) 839 Commission v France (Gold) [2004] ECR I-6535 (C-166/03) 769 Commission v France, Judgment of 9 December 2008 (C-121/07) 348 Commission v France (Non-compliance with Judgment) [2005] ECR I-6263 (C-304/02) 346 Commission v France (Spanish Strawberries) [1997] ECR I-6959 (C-265/95) 224, 330–1, 758, 760, 903–4 Commission v Germany (German beer) [1987] ECR 1227 (Case 178/84) 304, 767–9, 770 Commission v Germany [1995] ECR I-2189 (C-431/91) 291 n.68 Commission v Germany [1995] ECR I-3599 (C-51/94) 769 Commission v Germany [2003] ECR I-3609 (C-20/01 & C-28/01) 318–19, 320–1 Commission v Germany [2004] ECR I-11705 (C-463/01) 771 n.79 Commission v Germany [2006] ECR I-3449 (C-441/02) 319 Commission v Germany [2006] ECR I-9659 (C-105/02) 225, 330–1 Commission v Germany [2007] ECR I-6153 (C-503/04) 319 Commission v Germany [2007] ECR I-6957 (C-318/05) 791–2, 815 Commission v Germany [2007] ECR I-8995 (C-112/05) 722–5 Commission v Germany [2007] ECR I-9811 (C-319/05) 749, 898 Commission v Germany [2007] ECR I-10239 (C-404/05) 808, 887 Commission v Germany [2008] ECR I-6935 (C-141/07) 876 Commission v Germany (CMA) [2002] ECR I-9977 (C-325/00) 327–8, 758 Commission v Germany (Conservation of Wild Birds) [1991] ECR I-883 (C-57/89) 210 Commission v Germany (German Insurance) [1986] ECR 3755 (205/84) 803, 804, 808, 836, 874 Commission v Germany (Migrant Workers) [1989] ECR 1263 (249/86) 235–6 Commission v Germany (Open Skies) [2002] ECR I-9855 (C-476/98) 641–3 Commission v Greece [1988] ECR 1835 (240/86) 338

xlvii Table of Cases Commission v Greece [1990] ECR I-4299 (C-200/88) 338 Commission v Greece [2001] ECR I-7915 (C-398/98) 749, 893, 903 Commission v Greece [2005] ECR I-3177 (C-140/03) 842–3 Commission v Greece [2008] ECR I-7969 (C-274/05) 853 Commission v Greece (Burden of Proof) [1989] ECR 2965 (68/88) 224–5, 330–1, 616–17 Commission v Greece, Judgment of 19 March 2009 (C-489/06) 320–1 Commission v Greece (Waste Disposal: Kouroupitos) [2000] ECR I-5047 (C-387/97) 345 Commission v Ireland [1988] ECR 4929 (45/87) 749 Commission v Ireland [2005] ECR I-3331 (C-494/01) 331–2, 335 Commission v Ireland [2007] ECR I-10947 (C-418/04) 330 Commission v Ireland (Irish Souvenirs) [1981] ECR 1625 (113/80) 770, 878 Commission v Italy [1961] ECR 317 (7/61) 338 Commission v Italy [1987] ECR 1039 (199/85) 327 Commission v Italy [1987] ECR 2625 (225/85) 906 Commission v Italy [1989] ECR 143 (22/87) 301 Commission v Italy [1989] ECR 4035 (3/88) 803 Commission v Italy [1991] ECR I-709 (C-180/89) 788, 874 Commission v Italy [2000] ECR I-4001 (C-424/98) 474 Commission v Italy [2001] ECR I-721 (C-388/01) 453, 455 Commission v Italy [2003] ECR I-14637 (C-129/00) 329–30 Commission v Italy [2006] ECR I-10257 (C-371/04) 335, 854 Commission v Italy [2007] ECR I-3475 (C-135/05) 332 Commission v Italy [2007] ECR I-7083 (C-260/04) 808–9 Commission v Italy [2007] ECR I-11091 (C-465/05) 808 Commission v Italy (Chocolate) [2003] ECR I-513 (C-14/00) 769 Commission v Italy (Conservation of Wild Birds) [2001] ECR I-4007 (C-159/99) 224, 330–1 Commission v Italy, Judgment of 10 February 2009 (C-110/05) 750–1, 778, 874 Commission v Italy, Judgment of 19 May 2009 (C-531/06) 221, 724, 725–6, 842–3 Commission v Italy, Judgment of 26 March 2009 (C-326/07) 726 n.39 Commission v Italy, Judgment of 28 April 2009 (C-518/06) 785, 795–7 Commission v Italy (Premiums for Slaughtering Cows) [1973] ECR 101 (39/72) 98–9, 285

Commission v Italy (Trade Fairs) [2002] ECR I-305 (C-439/99) 803 Commission v Lisrestal and Others [1996] ECR I-5375 (C-32/95 P) 407 Commission v Luxembourg [1992] ECR I-3945 (C-351/90) 845 Commission v Luxembourg [1996] ECR I-3207 (C-473/93) 337 n.52 Commission v Luxembourg [2005] ECR I-4805 (C-266/03) 224, 652 Commission v Luxembourg (Employment of Foreign Workers) [2005] ECR I-10191 (C-445/03) 874 Commission v Luxembourg (Open Skies) [2002] ECR I-9741 (C-472/98) 641 Commission v Malta, Judgment of 10 September 2009 (C-76/08) 318 Commission v max.mobil [2005] ECR I-1283 (C-141/02 P) 341–2 Commission v Netherlands [1997] ECR 5699 (C-157/94) 1021, 1025–6, 1030, 1034 Commission v Netherlands [2004] ECR I-6213 (C-350/02) 336–7 Commission v Netherlands [2004] ECR I-9761 (C-299/02) 808, 839, 842, 863 Commission v Netherlands [2007] ECR I-4383 (C-50/06) 476 Commission v Netherlands [2008] ECR I-56 (C-398/06) 451 Commission v Netherlands (Direct and Portfolio Investments) [2006] ECR I-9141 (C-282/04 & C-283/04) 725, 726, 905 Commission v Netherlands (Own Resources: Manioc from Thailand) [1991] ECR I-2461 (C-96/89) 339 Commission v Poland, Judgment of 16 July 2009 (C-165/08) 325–7 Commission v Portugal [2004] ECR I-5645 (C-171/02) 808, 845 Commission v Portugal [2005] ECR I-9665 (C-432/03) 886 n.56 Commission v Portugal [2008] ECR I-1 (C-70/06) 349 Commission v Portugal [2008] ECR I-2245 (C-265/06) 750, 778 Commission v Portugal (Flight Taxes) [2001] ECR I-4845 (C-70/99) 788–9, 797 Commission v Portugal (Free Movement of Capital) [2002] ECR I-4731 (C-367/98) 876 Commission v Portugal, Judgment of 10 September 2009 (C-457/07) 344–5 Commission v Schneider Electric, Judgment of 16 July 2009 (C-440/07 P) 435 Commission v Spain [1994] ECR I-911 (C-45/93) 453 Commission v Spain [1994] ECR I-923 (C-375/92) 797 Commission v Spain [1995] ECR I-1975 (C-266/94) 336 Commission v Spain [2003] ECR I-6053 (C-446/01) 338

xlviii Table of Cases Commission v Spain [2005] ECR I-2911 (C-157/03) 319 Commission v Spain [2006] ECR I-963 (C-514/03) 808 Commission v Spain [2006] ECR I-1097 (C-503/03) 319, 478, 625 Commission v Spain [2008] ECR I-8025 (C-286/06) 853 Commission v Spain, Judgment of 5 March 2009 (C-88/07) 748, 898 n.85 Commission v Spain, Judgment of 6 October 2009 (C-153/08) 809–10 Commission v Spain (Spanish Chocolate) [2003] ECR I-459 (C-12/00) 769 n.72 Commission v Sweden (Open Skies) [2002] ECR I-9575 (C-468/98) 641 Commission v Sytraval [1998] ECR I-1719 (C-367/95 P) 408–9 Commission v Tetra Laval [2005] ECR I-987 (C-12/03 P) 403–5 Commission v United Kingdom [1983] ECR 3431 (165/82) 562 Commission v United Kingdom [1981] ECR 1072 (804/78) 652 Commission v United Kingdom [1983] ECR 203 (124/81) 890–1 Commission v United Kingdom [1988] ECR 3127 (416/84) 339 Commission v United Kingdom [1993] ECR I-4109 (C-56/90) 337 Commission v United Kingdom [1997] ECR I-2649 (C-300/95) 330 Commission v United Kingdom (Dim-Dip Lighting Devices) [1988] ECR 3921 (60/86) 208–9 Commission v United Kingdom (Failure to Implement Regulation 1463/70) [1978] ECR 2429 (128/78) 98–9 Commission v United Kingdom (Marks of Origin) [1985] ECR 1201 (207/83) 749, 754, 770 Commission v United Kingdom (VAT on Road Fuel) [2005] ECR I-1865 (C-33/03) 224 Compassion in World Farming [1998] ECR I-1251 (C-1/96) 881–2 Conegate [1986] ECR 1007 (121/85) 477, 880, 884, 902–3 Confédération Nationale des Producteurs de Fruits et Légumes and others v Council [1962] ECR 471 (16/62 & 17/62) 415 Conradi [1987] ECR 4469 (196/86) 858 Conservation of Wild Birds (Commission v Germany) [1991] ECR I-883 (C-57/89) 210 Conservation of Wild Birds (Commission v Italy) [2001] ECR I-4007 (C-159/99) 224, 330–1 Consten and Grundig v Commission [1966] ECR 299 (56/64 & 58/64) 407–8, 966–7, 979–80, 989 Continental Can (Europemballage Corp. and Continental Can Co. Inc. v Commission) [1972] ECR 215 (6/72) 1001, 1008

Coöperative Aardappelenbewaarplaats [1981] ECR 445 (154/80) 790 Coote [1998] ECR I-5199 (C-185/97) 568 Corbeau [1993] ECR 2533 (C-320/91) 1025, 1039–40, 1044 Corbiau v Administration des Contributions [1993] ECR I-1277 (C-24/92) 154 Corsica Ferries France [1994] ECR I-1783 (C-18/93) 788–9, 807 Corsten [2000] ECR I-7919 (C-58/98) 807–8, 875 Costa v ENEL [1964] ECR 585 (6/64) 186–8, 189–90, 211, 233 Council v Hautala [2001] ECR I-9565 (C-353/99 P) 388–9 Courage v Crehan [2001] ECR I-6297 (C-453/99) 278, 972 Courage v Crehan [2001] ECR I-6314 (C-453/99) 952–4 Cowan v Trésor Public [1989] ECR 195 (186/87) 453, 459, 788 Cristini [1975] ECR 1085 (32/75) 855 n.81 Cullet [1985] ECR 305 (231/83) 805 Cura Anlagen v Auto Source Leasing [2002] ECR I-3193 (C-451/99) 787, 874 Customs Agents (Commission v Italy) [1998] ECR I-3851 (C-35/96) 1018 Da Costa [1963] ECR 37 (28/62–30/62) 169 Daily Mail [1988] ECR 5483 (81/87) 841, 862 DaimlerChrysler v Land Baden-Württemberg [2001] ECR I-9897 (C-324/99) 898 n.82 Dalmine v Commission [2007] ECR I-829 (407/04) 405–6, 925 Danforss [1989] ECR 3199 (109/88) 548 Danielsson and Others v Commission [1995] ECR II3051 (T-219/95 R) 427 Danish Company Cars (Commission v Denmark) [2005] ECR I-7929 (C-464/02) 836–7, 838, 857–8 Danner [2002] ECR I-8147 (C-136/00) 878 Danske Slagterier v Germany, Judgment of 24 March 2009 (C-445/06) 284 Dassonville [1974] ECR 837 (8/74) 744, 746, 747–60 De Agostini & TV Shop [1997] ECR I-3843 (C-34/95 to C-36/95) 779 De Coster [2001] ECR I-9445 (C-17/00) 154–5, 810, 874 De Danske Bilimportører [2003] ECR I-6065 (C-383/01) 749 n.17 De Peijper [1976] ECR 613 (104/75) 888–90 Debauve [1980] ECR 833 (52/79) 788 Decker [1998] ECR I-1831 (C-120/95) 878 Defrenne v Sabena [1976] ECR 455 (43/75) 235–6, 271–2, 273–5, 290, 538, 547–8 Defrenne II [1978] ECR 1365 (149/77) 235 Delay [2008] ECR I-3635 (C-276/07) 854–5 Deliège [2000] ECR I-2549 (C-51/96 & C-191/97) 790, 799

xlix Table of Cases Delimitis [1991] ECR I-935 (C-234/89) 989 Demirel [1987] ECR 3719 (12/86) 252, 285, 652, 655 Demo-Studio Schmidt v Commission [1983] ECR 3045 (210/81) 408–9 Denkavit Italiana [1980] ECR 1205 (61/79) 169–70 Denuit and Cordonier [2005] ECR I-923 (C-125/04) 154 Deponiezweckverband Eiterköpfe [2005] ECR I-2753 (C-6/03) 209 Deposit Guarantee Directive Case (Germany v European Parliament and Council) [1997] ECR I-2405 (C-233/94) 366–7, 369 Deserbais [1988] ECR 4907 (286/86) 769–70 Deutsche Bahn v Commission [2006] ECR II-1047 (T-351/02) 400–1 Deutsche Telekom v Commission [2008] ECR II-477 (T-271/03) 375 Deutsche Telekom AG v Lilli Schröder [2000] ECR I-743 (C-50/96) 538 D’Hoop [2002] ECR I-6191 (C-224/98) 460–1 Di Lenardo and Dilexport [2004] ECR I-6911 (C-37/02 & C-38/02) 236 Diatta v Land Berlin [1985] ECR 567 (267/83) 467 Diego Calì and Figli (SEPG) [1997] ECR I-1547 (C-343/95) 1026–7 Diputación Foral de Àlava v Commission, Judgment of 9 September 2009 (T-30/01–T-32/01 & T-86/02–T-88/02) 409, 429–30 DocMorris [2003] ECR I-14887 (C-322/01) 756, 779–80, 890–1, 902 Donckerwolcke [1976] ECR 1921 (41/76) 652 Dörr and Ünal [2005] ECR 1–4759 (C-136/03) 476 n.128 Dorsch v Bundesbaugesellschaft Berlin [1997] ECR I-4961 (C-54/96) 154–5 Dow Chemical Ibérica v Commission [1989] ECR 3165 (97–99/87) 929 Draehmpaehl [1997] ECR I-2195 (C-180/95) 224–5, 330–1, 569 Drei Glocken [1988] ECR 4233 (407/85) 768 n.66 Driancourt v Cognet [1986] ECR 3231 (355/85) 755 Dumortier Frères v Council [1979] ECR 3091 (64/76 & 113/76, 167/78 & 239/78) 437 Dutch PTT [1992] ECR 565 (C-48/90 & 60/90) 1039 Dutch Vitamins [2004] ECR I-11375 (C-41/02) 898– 900 Dynamic Medien Vertriebs v Avides Media [2008] ECR I-505 (C-244/06) 235–6, 777 Dzodzi v Belgium [1990] ECR I-3673 (C-297/88 & C-197/89) 161 Eau de Cologne v Provide [1989] ECR 3891 (150/88) 166–7 Eckelkamp [2008] ECR I-6845 (C-11/07) 725 Eco Swiss China Time Ltd v Benetton [1999] ECR I-3055 (C-126/97) 972 Ecotrade v Agenzia delle Entrate – Ufficio di Genova 3 [2008] ECR I (C-96/07) 284 n.43 ECOWAS [2008] ECR I-3651 (C-91/05) 637, 667–8

ED v Italo Fenocchio [1999] ECR I-3845 (Case C-412/97) 726 Edeka v Commission [1982] ECR 2745 (245/81) 411 Efisol v Commission [1996] ECR II-1343 (T-336/94) 412 Église de Scientologie de Paris [2000] ECR I-1335 (C-54/99) 904–5 EIB Guarantees (Parliament v Council) [2008] ECR I-8103 (C-155/07) 95 Eind [2004] ECR I-10719 (C-291/05) 471–3 El Yassini v Secretary of State for the Home Department [1999] ECR I-1209 (C-416/96) 154–5 Elgafaji v Staatsecretaris van Justitie, Judgment of 17 February 2009 (C-465/07) 235–6, 528–30 Eman and Sevinger [2006] ECR I-8055 (C-300/04) 480–1 Emmott v Minister for Social Welfare [1991] ECR I-4269 (C-208/90) 279–80 Employment of Foreign Workers (Commission v Luxembourg) [2005] ECR I-10191 (C-445/03) 874 Emsland-Stärke [2000] ECR I-11569 (C-110/99) 472 Emsland-Stärke [2006] ECR I-2619 (C-94/05) 411 Enderby [1993] ECR I-5535 (C-127/92) 548 ENISA (United Kingdom v Parliament and Council) [2006] ECR I-3771 (C-217/04) 693–4 ENKA v Inspecteur der Invoerrechten [1977] ECR 2203 (38/77) 99–100 Entreprenørforeningens/Affalds/Miljøsektion (FFAD) v Københavns Kommune [2000] ECR I-3743 (C-209/98) 1021 Environmental Crimes (Commission v Council) [2005] ECR I-7879 (C-176/03) 617 Eridania [1979] ECR 2749 (230/78) 236 ERT (Elliniki Radiophonia Tiléorassi) v Dimotiki (DEP) [1991] ECR I-2925 (C-260/89) 235–6, 253–4, 1022 n.27, 1024–5 ERTA (Commission v Council) [1971] ECR 263 (22/70) 399, 632, 640 Estonia v Commission, Judgment of 23 September 2009 (T-263/07) 401–2, 403, 408–9 Eurocontrol (SAT Fluggesellschaft v Eurocontrol) [1994] ECR I-43 (C-364/92) 151, 1026 Eurocoton v Council [2003] ECR I-10091 (C-76/01 P) 433 European Network and Information Security Agency (Parliament v Commission) [2006] ECR I-3771 (C-317/04 & C-318/04) 88, 634 European Night Services [1998] ECR II-3141 (T-374/94) 992 Eurowings [1999] ECR I-7447 (C-294/97) 792 Evans Medical [1995] ECR I-563 (C-324/93) 882 Fabrique de Fer de Charleroi v Commission [1987] ECR 3639 (351/85 & 360/85) 405–6 Faccini Dori v Recreb [1994] ECR I-3325 (C-91/92) 290 Fachverband der Buch- und Medienwirtschaft, Judgment of 30 April 2009 (C-531/07) 779, 780

l Table of Cases Factortame III/Brasserie du Pêcheur [1996] ECR I-1029 (C-46/93 and 48/93) 283, 304–7, 431–2 Factortame (R v Secretary of State for Transport, ex parte Factortame Ltd) [1990] ECR 2433 (C-213/89) 172, 279–80 Falck and Acciaierie di Bolzano v Commission [2002] ECR I-7869 (C-74/00 P and C-75/00 P) 409 Familiapresse v Heinrich Bauer [1997] ECR-I 3843 (C-368/95) 776 Family Reunification (Parliament v Council) [2006] ECR I-5769 (C-540/03) 88, 235–6, 243–5, 251, 505–6, 516, 517 FAO Fisheries Agreement [1996] ECR I-1469 (C-25/94) 74, 651–2 Farrell v Whitty [2007] ECR I-3067 (C-356/05) 290 Faust v Commission [1982] ECR 3745 (52/81) 413 FDC v Estado Español and UPCT [1993] ECR I-2239 (C-17/92) 792 Fearon [1984] ECR 3677 (182/83) 858 Federconsorzi v AIMA [1992] ECR I-4035 (C-88/91) 161 Fedesa (R v Minister of Agriculture, Fisheries and Food, ex parte Fedesa) [1990] ECR I—4023 (331/88) 367–9, 409, 411–12 FENIN [2003] ECR II-357 (T-319/99) 1029–30, 1036 FENIN [2006] ECR I-6295 (C-205/03) 1029–30 Feron [2005] ECR I-2299 (C-170/03) 161 Festersen [2007] ECR I-1129 (C-370/05) 235–6, 725, 875, 876, 884–6 FIAMM [2008] ECR I-6513 (C-120/06 & C-121/06) 433, 654, 655 Fiammiferi [2003] ECR I-8055 (C-198/01) 1020 Fidium Finanz v Bundesanstalt für Finanzdienstleistnugsaufsicht [2006] ECR I-9521 (C-452/04) 788 Fietje [1980] ECR 3839 (27/80) 769 Finalarte [2001] ECR I-7831 (C-49/98) 793 Firma Fink-Frucht GmbH v Hauptzollamt MünchenLandsbergerstrasse [1968] ECR 327 (27/67) 271 n.4 FKP Scorpio [2006] ECR I-9461 (C-290/04) 788 Flaherty and Others v Commission [2008] ECR I-2649 (C-373/06 P, C-379/06 P & C-382/06 P) 424 Flemish Insurance [2008] ECR I-1683 (C-212/06) 330, 463–4 Flight Taxes (Commission v Portugal) [2001] ECR I-4845 (C-70/99) 788–9, 797 Flughafen Köln/Bonn, Judgment of 17 July 2008 (C-226/07) 272–3 FNCE [1991] ECR I-5505 (C-354/90) 278 Foglia v Novello (No. 1) [1980] ECR 745 (104/79) 150, 164 Foglia v Novello (No. 2) [1981] ECR 3045 (244/80) 164–6, 169 Ford v Commission [1985] ECR 2725 (25/84 & 26/84) 981 Försäkringsaktiebolaget Skandia v Riksskatteverket [2003] ECR I-6817 (C-422/01) 788–9

Förster [2008] ECR I-8507 (C-158/07) 458–9 Foshan Shunde Yongjian Housewares & Hardware Co. v Commission, Judgment of 1 October 2009 (C-141/08 P) 407 Foster v British Gas [1990] ECR I-3313 (C-188/89) 289 Fotofrost (Firma Fotofrost v Hauptzollamt LübeckOst) [1987] ECR 4199 (314/85) 160, 162–3, 164, 169–70, 175, 422 Framework Directive on Waste [1993] ECR I-939 (C-155/91) 97 Franca Ninni-Orasche [2003] ECR I-13187 (C-413/01) 835 France v Commission [1991] ECR I-1223 (202/88) 1039 France v United Kingdom [1979] ECR 2923 (141/78) 317 France Télécom, Judgment of 2 April 2009 (C-202/07 P) 1006 Franchet and Byk v Commission [2008] ECR II-1585 (T-48/05) 433, 436 Franchet & Byk v Commission [2006] ECR II-2023 (T-391/03 & T-70/04) 388 Francovich v Italian Republic (‘Francovich II’) [1996] ECR I-3843 (C-479/93) 411 Francovich and Bonifaci v Italy [1991] ECR I-5537 (C-6/90 & 9/90) 301–4, 307 Fratelli Constanzo v Milano [1989] ECR 1839 (103/88) 169–70, 291–2 Free Movement of Capital (Commission v Italy) [2005] ECR I-4933 (C-174/04) 905 n.101 Free Movement of Capital (Commission v Portugal) [2002] ECR I-4731 (C-367/98) 876 French Merchant Navy [1974] ECR 359 (167/73) 839 French Nutrients [2004] ECR I-1277 (C-24/00) 887–8, 900 Fresh Marine v Commission [2000] ECR II-3331 (T-178/98) 433 Front National v European Parliament [2004] ECR I-6289 (C-486/01 P) 125, 417–18 FRUBO [1975] ECR 563 (71/74) 967 Futura Participations and Singer [1997] ECR I-2471 (C-250/95) 876–7 Gabalfrisa [2000] ECR I-1577 (C-110/98–C-147/98) 154 Gallaher (R v Secretary of State for Health, ex parte Gallaher Ltd) [1993] ECR I-3545 (C-11/92) 210, 701 Gambelli [2003] ECR I-13031 (C-243/01) 788–9, 808, 874, 887, 892 Garland [1982] ECR 359 (12/81) 544 Gaspirini [2006] ECR I-9199 (C-467/04) 609 GB-INNO-BM SA v Association des détaillants en tabac (ATAB) [1977] ECR 2115 (13/77) 1015, 1020 n.22 Gebhard [1995] ECR I-4165 (C-55/94) 784, 787, 793, 803, 835–6, 842, 846

li Table of Cases German Quality Products (CMA) (Commission v Germany) [2002] ECR I-9977 (C-325/00) 327–8, 758 Geitling v High Authority [1960] ECR 423 (36/59, 37/59, 38/59 & 40/59) 232–3 General Tariff Preferences [1995] ECR I-643 (C-65/93) 110 Geotronics v Commission [1995] ECR II-2795 (T-185/94) 400 Geotronics v Commission [1997] ECR I-2271 (C-395/95) 400 Geraets-Smits and Peerbooms [2001] ECR I-5473 (C-157/99) 791–2, 815, 817, 818, 819–20 German beer (Commission v Germany) [1987] ECR 1227 (178/84) 304, 767–9, 770 German Insurance (Commission v Germany) [1986] ECR 3755 (205/84) 803, 804, 808, 836, 874 Germany v Council [1994] ECR I-4973 (C-280/93) 653 Germany v European Parliament and Council (Deposit Guarantee Directive) [1997] ECR I-2405 (C-233/94) 366–7, 369 Germany v Parliament and Council (‘Tobacco Advertising I’) [2000] ECR I-8419 (C-376/98) 675, 687–91, 694 Germany v Parliament and Council (‘Tobacco Advertising II’) [2006] ECR I-11753 (C-380/03) 369, 691–2, 694 Gestoras Pro Amnistía and Others v Council, Judgment of 27 February 2007 [2007] ECR I-1579 (C-354/04 P) 254 Geurts and Vogten [2007] ECR I-9325 (C-464/05) 858 Geven [2007] ECR I-6347 (C-213/03) 836 Gillespie [1996] ECR I-457 (C-342/93) 544 Gilli and Andres [1980] ECR 2071 (788/79) 767, 769 Gilly [1998] ECR I-2793 (C-336/96) 836 Giry and Guéralin [1980] ECR 2327 (253/78 & 1–3/79) 988 Giuffrida v Council [1976] ECR 1395 (105/75) 405–6 Giuseppe Sacchi [1974] ECR 409 (155/73) 787, 1022 GlaxoSmithKline Services Unlimited v Commission, Judgment of 6 October 2009 (C-501/06 P, C-513/06 P, C-515/06 P & C-519/06 P) 916, 984–5, 1005 GlaxoSmithKline Services Unlimited v Commission [2006] ECR II-2969 (T-168/01) 983–4 Gold (Commission v France) [2004] ECR I-6535 (C-166/03) 769 Gómez-Limón v INSS, Judgment of 16 July 2009 (C-537/07) 168 Gøttrup-Klim [1994] ECR I-5641 (C-250/92) 964, 973, 989 Gottwald v Bezirkshauptmannschaft Bregenz, Judgment of 1 October 2009 (C-103/08) 453, 455, 456

Gouda [1991] ECR I-4007 (C-288/89) 764, 792, 803, 874–5 Gourmet International Products [2001] ECR I-1795 (C-405/98) 779, 860 Gözütok and Brügge [2003] ECR I-1345 (C-187/01 & C-385/01) 607–9 Grad v Finanzamt Traustein [1970] ECR 838 (9/70) 286 n.57 Graf [2000] ECR I-493 (C-190/98) 843–4 Gravier v City of Liège [1985] ECR 593 (293/83) 337 Gravier (Commission v Belgium) [1988] ECR 305 (293/85) 337–8 Greek Milk (Commission v Greece) [1995] ECR I-1621 (C-391/92) 779 Greenham and Abel [2004] ECR I-1333 (C-95/01) 879–80 Greenpeace and others v Commission [1995] ECR II-2205 (T-585/93) 426–7 Greenpeace and others v Commission [1998] ECR I-1651 (C-321/95 P) 426 Grilli [2003] ECR I-11585 (C-12/02) 782 Grimaldi v Fonds des Maladies Professionelles [1989] ECR 4407 (322/88) 300 Groener [1989] ECR I-3967 (379/87) 811, 839–40 Groenveld [1979] ECR 3409 (15/79) 780 Grogan [1991] ECR I-4685 (159/90) 255–6, 812 Grüne Punkt DSD v Commission, Judgment of 16 July 2009 (C-385/07 P) 148 Grzelczyk [2001] ECR I-6193 (184/99) 450–1 GT-Link v DSB [1997] ECR I-4449 (C-242/95) 278 Guérin Automobiles v Commission [1995] ECR II1753 (T-186/94) 429 Guimont [2000] ECR I-10663 (C-448/98) 463, 756 Guiot [1996] ECR I-1905 (C-272/94) 803–4 Gullung [1988] ECR 111 (292/86) 846 Gut Springenheide [1998] ECR I-4657 (210/96) 769 Gutmann v Commission [1966] ECR 103 (18/65 & 35/65) 405–6 GVL v Commission [1983] ECR 483 (7/82) 932 Gysbrechts, Judgment of 16 December 2008 (C-205/07) 781–2 Haegeman v Commission [1972] ECR 1005 (96/71) 436–7 Haegeman [1974] ECR 449 (181/73) 652 Hahn [2002] ECR I-9193 (C-121/00) 900 n.87 Haim [2000] ECR I-5123 (C-424/97) 811 n.79, 840 n.38 Halliburton [1994] ECR I-1137 (C-1/93) 856 Hansen [1990] ECR I-2911 (326/88) 224–5 Hartlauer, Judgment of 10 March 2009 (C-169/07) 842–3, 883–4, 886 Hartmann [2007] ECR I-6303 (C-212/05) 836 Harz v Deutsche Tradax [1984] ECR 192 (79/83) 294 Hauer [1979] ECR 3727 (44/79) 236 Häupl v Lidl [2007] ECR I-4673 (C-246/05) 154 Hautala [2001] ECR I-9565 (C-353/99 P) 388–9 Heimdienst [2000] ECR I-151 (C-254/98) 779 Heininger [2001] ECR I-9945 (C-481/99) 284

lii Table of Cases Heinrich, Judgment of 10 March 2009 (C-345/06) 411, 412 Hellmut Marschall [1997] ECR I-6363 (C-409/95) 572–3 Henn and Darby [1979] ECR 3975 (34/79) 477, 880, 882, 902 Hercules v Commission [1991] ECR II-1711 (T-7/89) 930 Herlitz [1994] ECR II-531 (T-66/92) 965 Hermès International [1998] ECR I-3603 (C-53/96) 161, 655 HI v Stadt Wien [2002] ECR I-5553 (C-92/00) 154–5 Hilti [1991] ECR II-1439 (T-30/89) 1001 Hilti [1994] ECR I-667 (C-53/92 P) 1001 Hocsman [2000] ECR I-6623 (C-238/98) 848 Hoechst v Commission [2008] ECR II-881 (T-410/03) 408–9 Hoechst AG v Commission [1989] ECR 2859 (46/87 & 227/88) 408, 928 Hoekstra v Bedrijfsvereniging Detailhandel [1964] ECR 177 (75/63) 161 n.9 Hoffmann-La Roche [1979] ECR 461 (85/76) 999, 1003 Klaus Höfner and Fritz Elser v Macrotron GmbH [1991] ECR I-1979 (C-41/90) 964, 998, 1022 n.27, 1024–5 Holland Malt v Commission, Judgment of 9 September 2009 (T-369/06) 408 Huber v Bundesrepublik Deutschland, Judgment of 16 December 2008 (C-524/06) 454 Hugin Kassaregister [1979] ECR 1869 (22/78) 1001 Humbel [1988] ECR 5365 (263/86) 790–1 Hünermund v Landesapotheker Baden-Württemburg [1993] ECR I-6787 (C-292/92) 746 i-21 Germany v Bundesrepublik Deutschland [2006] ECR I-8559 (C-392/04 & C-422/04) 171 IATA v Department for Transport [2006] ECR I-403 (C-344/04) 164 IBM v Commission [1981] ECR 2639 (60/81) 399–400 ICC (International Chemical Corporation) v Amministrazione Finanze [1981] ECR 1191 (66/80) 162–3, 169–70, 437 ICI v Commission (Dyestuffs) [1972] ECR 619 (48/69) 965, 972–3, 978 IFAW Internationaler Tierschutz-Fonds v Commission [2004] ECR II-4135 (T-168/02) 393–4 Impact v MAFF [2008] ECR I-2483 (C-268/06) 284 Impala v Commission [2006] ECR II-2289 (T-464/04) 725 INAIL [2002] ECR I-691 (C-218/00) 1027–9 INASTI v Kammler [1996] ECR I-703 (C-53/95) 845 Inizan [2003] ECR I-12403 (C-56/01) 817 Inspire Art [2003] ECR I-10195 (C-167/01) 224–5, 865–6 International Fruit Company v Commission [1971] ECR 411 (41/70–44/70) 99–100

International Fruit Company v Produktschap voor Groenten en Fruit [1972] ECR 1226 (21/72–24/72) 652, 653 International Transport Workers’ Federation and others v Viking Line [2007] ECR I-10779 (C-438/05) 798, 801–2 Internationale Handelsgesellschaft v Einfuhr- und Vorratstelle für Getreide und Futtermittel (‘Solange I’) [1970] ECR 1125 (11/70) 160–1, 203, 233–5, 236, 367 n.33 Intertanko [2008] ECR I-4057 (C-308/06) 655–6 Ioannidis [2005] ECR I-8275 (C-258/04) 456 Ireks-Arkady v Council and Commission [1979] ECR 2955 (238/78) 436, 437 Ireland v Commission [1987] ECR 5041 (325/85) 412 Ireland v Council and Parliament, Judgment of 10 February 2009 (C-301/06) 623 Irish Souvenirs (Commission v Ireland) [1981] ECR 1625 (113/80) 770, 878 Irish Sugar plc v Commission [1999] ECR II-2969 (T-228/97) 964, 1007 Italy v Commission [2008] ECR II-3207 (T-185/05) 251, 400–1 Italy v Parliament, Judgment of 30 April 2009 (C-393/07 & C-9/08) 82 ITC [2007] ECR I-181 (C-208/05) 789–90 Jägerskiöld v Gustafsson [1999] ECR I-7319 (C-97/98) 787 Jany [2001] ECR I-8615 (C-268/99) 786, 812, 834, 881 Javico [1998] ECR I-1983 (C-306/96) 966–7, 989 Jégo-Quéré v Commission [2002] ECR II-2365 (T-177/01) 148 n.40, 238, 424 Jégo-Quéré (Commission v Jégo-Quéré) [2004] ECR I-3425 (C-263/02 P) 148, 159–60 Jenkins [1981] ECR 911 (96/80) 560 Jersey Potatoes [2005] ECR I-9543 (C-293/02) 782 Jia v Migrationsverket [2007] ECR I-1 (C-1/05) 465–6 Jipa [2008] ECR I-5157 (C-33/07) 479 Jobra, Judgment of 4 December 2008 (C-330/07) 472, 809–10 Johnston [1986] ECR 1651 (222/84) 236, 283, 563 José Martí Peix v Commission [2004] ECR I—11421 (C-226/03) 148 Jundt [2007] ECR I-12231 (C-281/06) 791–2, 810 Jyri Lehtonen and Castors Canada Dry Namur-Braine Asbl v Fédération royale belge des sociétés de basket-ball Asbl (FRBSB) [2000] ECR I-2681 (C-176/96) 798 Kachelmann [2000] ECR I-7505 (C-322/98) 560 Kadi and Al Barakaat [2008] ECR I-6351 (C-402/05 P & C-415/05 P) 205, 217–19, 230–2, 251, 406–7, 657–9 Kalanke [1995] ECR I-3051 (C-450/93) 572–3 Kampffmeyer v Commission and Council [1976] ECR 711 (56/74 to 60/74) 436

liii Table of Cases Kampfmeyer v Commission [1967] ECR 245 (5/66, 7/66, 13/66–24/66) 437 Kapferer v Schlank and Schlick [2006] ECR I-2585 (C-234/04) 171 Karner v Troostwijk [2004] ECR I-3025 (C-71/02) 787, 874–5 Kaur [2001] ECR I-1237 (C-192/99) 445 KB [2004] ECR I-541 (C-117/01) 235–6, 470, 549 Keck and Mithouard [1993] ECR I-6097 (C-267/91 & C-268/91) 745, 746, 773–6 Kempf [1986] ECR 1741 (139/85) 449 Kempter [2008] ECR I-411 (C-2/06) 171 KFC (Koninklijke Friesland Campina), Judgment of 17 September 2009 (C-519/07 P) 419–20 Khatzithanasis, Judgment of 4 December 2008 (C-151/07) 853 Kirk (R v Kent Kirk) [1984] ECR 2689 (63/83) 236, 411 Kirsammer-Hack [1993] ECR I-6185 (C-189/91) 560 Klas Rosengren and others v Riksåklagaren [2007] ECR I-4071 (C-170/04) 749, 778, 902 Klopp [1984] ECR 2971 (107/83) 808, 842, n.39, 844–5, 874 Knoors [1979] ECR 399 (115/78) 852–3 Köbler v Austria [2003] ECR I-10239 (C-224/01) 169, 177–8, 308–11, 330, 854 Kofeod v Skatteministeriet [2007] ECR I-5795 (C-321/05) 297 Kohll [1998] ECR I-1931 (C-158/96) 791–2, 811, 816, 875–6, 878 Kommaustria v ORF [2007] ECR I-8817 (C-195/06) 160 Konle [1999] ECR I-3099 (C-302/97) 725–6, 885 Kozlowski [2008] ECR I-6041 (C-66/08) 598 Kraaijenbrink [2007] ECR I-6619 (C-367/05) 610–1 Kranemann [2005] ECR I—2421 (C-109/04) 834–5, 843–4, 876 Kraus [1993] ECR I-1663 (C-19/92) 848 Kreil [2000] ECR I-69 (C-285/98) 562 Kremzow v Austria [1997] ECR I-2629 (C-299/95) 235 Kretzinger [2007] ECR I-6441 (C-288/05) 610 Krüger v Hauptzollamt Hamburg-Jonas [1997] ECR I-4517 (C-334/95) 164 Kühne and Heitz v Productschap voor Pluimvee en Eieren [2004] ECR I-837 (C-453/00) 170–1 Kuijer v Council [2002] ECR II-485 (T-211/00) 392 Kupferberg [1982] ECR 3641 (104/81) 99, 285, 647, 653 Läärä [1999] ECR I-6067 (C-124/97) 891, 902–3 Laboratoires Fournier v Direction des vérifications nationales et internationales [2005] ECR I-2057 (C-39/04) 809–10 Lämmerzahl [2007] ECR I-8415 (C-241/06) 284 Landeshauptstadt Kiel v Jaeger [2003] ECR I-8389 (C-151/02) 249–51 Laval v Svenska Byggnadsarbetareförbundet [2007] ECR I-11767 (C-341/05) 800–1

Lawrence [2002] ECR I-7325 (C-320/00) 544 Leclerc v Sarl ‘Au Blé Vert’ [1985] ECR 1 (229/83) 756, 1015 n.6 Leclerc-Siplec v TF1 Publicité and M6 Publicité [1995] ECR I-179 (C-412/93) 166, 679–80 Leffler v Berlin Chemie [2005] ECR I-9611 (C-443/03) 284 Leichtle [2004] ECR I—2641 (C-8/02) 817, 891 Leifer [1995] ECR I-3231 (C-83/94) 655 Lemmens [1998] ECR I-3711 (C-226/97) 293 Leonesio v Italian Ministry of Agriculture [1972] ECR 293 (93/71) 285 Les Vergers du Vieux Tauves, Judgment of 22 December 2008 (C-48/07) 161–2 Lestelle v Commission [1992] ECR I-3755 (C-30/91 P) 148 Levez v Jennings [1998] ECR I-7835 (C-326/96) 276 n.13, 284 n.44 Levin v Staatssecretaris van Justitie [1982] ECR 1035 (53/81) 449, 835, 836 Liga Portuguesa de Futebol Profissional, Judgment of 8 September 2009 (C-42/07) 808, 891 Limburgse Vinyl Maatschappij NV and others v Commission [2002] ECR I-8375 (C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P–C-252/99 P & C-254/99 P) 409, 924 Lindfors [2004] ECR I-7183 (C-365/02) 151 Lindman [2003] ECR I-13519 (C-42/02) 808 Lindorfer [2007] ECR I-6767 (C-227/04) 539–40, 566 n.170 Lindqvist [2003] ECR I—12971 (C-101/01) 235–6, 251 Linguistic Diversity [1999] ECR I-869 (C-42/97) 97 Lisrestal (Commission v Lisrestal) [1996] ECR I-5375 (C-32/95 P) 407 LR af 1998 [2002] ECR II-1705 (T-23/99) 930, 977 n.57 Ludwigs–Apotheke München Internationale Apotheke v Juers Pharma Import-Export GmbH [2007] ECR I-9623 (C-143/06) 890–1 Luisi and Carbone [1984] ECR 377 (286/82 & 26/83) 788, 812 Lütticke v Commission [1966] ECR 19 (48/65) 339 Lütticke v HZA Sarrelouis [1966] ECR 205 (57/65) 271 Lutz [2002] ECR I-547 (C-182/00) 154 Lyckeskog [2002] ECR I-4839 (C-99/00) 174–5 Maatschappij Drijvende Bokken BV v Stichting Pensioenfonds voor de Vervoer- en Havenbedrijven [1999] ECR I-6121 (C-219/97) 967 Macarthys [1980] ECR 1275 (129/79) 543–4 Manfredi and Others v Lloyd Adriatico Assicurazioni SpA and Others [2006] ECR I-6619 (C-295/04–C-298/04) 278, 284, 954–6 Mangold (C-144/04) [2005] ECR I-9981 236, 297–8, 535, 538–40, 566

liv Table of Cases Mannesmannröhren-Werke AG v Commission [2001] ECR II-729 (T-112/98) 926 Marks & Spencer v CCE [2008] ECR I-2283 (C-309/06) 278, 878 Marks & Spencer v Halsey [2005] ECR I-10837 (Case C-446/03) Marleasing SA v La Comercial Internacionale de Alimentación SA [1990] ECR I-4135 (C-106/89) 295–6 Mars Ice Cream (Verein gegen Unwesen in Handel und Gewerbe Köln v Mars GmbH) [1995] ECR I-1923 (C-470/93) 764 Marshall I [1986] ECR 723 (152/84) 288–9, 290, 293 Marshall II [1993] ECR I-4367 (C-271/91) 283, 290, 569 Martinelli v Commission [1995] ECR II-1165 (T-150/89) 933 Martinez and others v Parliament [2001] ECR II-2823 (T-222/99, T-327/99 & T-329/99) 411, 417 Martínez Sala v Freistaat Bayern [1998] ECR I-2691 (C-85/96) 454–5 Martini v Ministero delle Politiche Agricole e Forestali [2005] ECR I-10423 (C-453/03, C-11/04, C-12/04 & C-194/04) 172–3, 280 Masterfoods v HB Ice Cream [2000] ECR I-11369 (C-344/98) 223 Mathot [1987] ECR 809 (98/86) 755 Matra Hachette [1994] ECR II-595 (T-17/93) 992 max.mobil (Commission v max.mobil) [2005] ECR I-1283 (C-141/02 P) 341–2 max.mobil v Commission [2002] ECR II-313 (T-54/99) 341–2 Mazzoleni and ISA [2001] ECR I-2189 (C-165/98) 793, 794 Meca Medina and Majcen v Commission [2004] ECR II-3291 (T-313/02) 799–800 Meca Medina and Majcen v Commission [2006] ECR I-6991 (C-519/04) 969–70 Melli Bank v Council, Judgment of 9 July 2009 (T-246/08 & T-332/08) 411, 430–1 Meng [1993] ECR I-5751 (C-2/91) 1015–17 Merci convenzionali porto di Genova SpA v Siderurgica Gabrielli SpA [1991] ECR 5889 (C-179/90) 1022, 1024–5 Merck [2007] ECR I-7001 (C-431/05) 161, 648–9 Messina v Commission [2003] ECR II-3203 (T-76/02) 393 Metallgesellschaft v IRC [2001] ECR I-1727 (C-397/98 & C-410/98) 278 Metock [2008] ECR I-6241 (C-127/08) 469 n.101, 470–1, 473, 506 Metro (No. 1) [1977] ECR 1875 (26/76) 968, 989 Metronome Musik v Music Point Hokamp [1998] ECR I-1953 (C-200/96) 874 Métropole télévision (M6) [2001] ECR II-2459 (T-112/99) 989

Micheletti v Delegación del Gobierno Cantabria [1992] ECR I-4239 (C-369/90) 445 Michelin I [1983] ECR 3461 (322/81) 999, 1000–1 Michelin II [2003] ECR II-4071 (T-203/01) 1001 Mickelsson and Roos, Judgment of 4 June 2009 (C-142/05) 750, 778 Microsoft v Commission [2007] ECR II-3601 (T-201/04) 932 Minister voor Wonen, Wijken en Integratie v Woningstichting Sint Servatius, Judgment of 1 October 2009 (C-567/07) 725–6 Miraglia [2005] ECR I-2009 (C-469/03) 408, 610 Mobistar [2005] ECR I-7723 (C-544/03) 784, 793–4, 795 Mono Car Styling v Odemis, Judgment of 16 July 2009 (C-12/08) 251 Montecatini v Commission [1999] ECR I-4539 (Case C-235/92 P) 940 n.116 Morellato [2003] ECR I-9343 (C-416/00) 777–8 Morgan v Bezirksregierung Köln [2007] ECR I-9161 (C-11/06) 460, 461–2 Morson and Jhanjan v Netherlands [1982] ECR 3723 (35/82 & 36/82) 462 MRAX [2002] ECR I-6591 (C-459/99) 475–6 Mulder v Minister van Landbouw en Visserij [1988] ECR 2321 (120/86) 412–13 Mulder II (Mulder v Council and Commission) [1992] ECR I-3061 (C-104/89 & C-37/90) 436, 437 Mulgan and Others [2002] ECR I-5719 (C-313/99) 224 Muller [1971] ECR 723 (10/71) 1030 Müller-Fauré [2003] ECR I-4509 (C-385/99) 817, 818–19 Musique diffusion française and others v Commission [1983] ECR 1825 (100/80–103/80) 933 MyTravel v Commission [2003] OJ C200/28 (T-212/03) 433 N v Inspecteur van de Belastingdienst Oostkantoor Almelo [2006] ECR I-7409 (C-470/04) 278 Nadin [2005] ECR I-11203 (C-151/04 & C-152/04) 858 Nakajima [1991] ECR I-2069 (C-69/89) 655 National Farmers’ Union and others [1998] ECR I-2211 (C-157/96) 369 National Panasonic [1980] ECR 2033 (136/79) 235–6 Neri [2003] ECR I-13555 (C-153/02) 853 Nerkowska [2008] ECR I-3993 (C-499/06) 460 Netherlands v Commission [1971] ECR 639 (59/70) 429–30 Netherlands v Commission [2008] ECR I-8301 (C-405/07) 704, 705 Netherlands v Commission [2008] ECR II-3151 (T-187/06) 327 Netherlands v Council [1996] ECR I-2169 (C-58/94) 400–1 Netherlands v Council [2001] ECR I-8853 (C-301/97) 412

lv Table of Cases Netherlands v European Parliament and Council (Biotechnology Directive) [2001] ECR I-7079 (C-377/98) 235–6, 364–5 Nimz [1991] ECR I-297 (C-184/89) 560 NMB France v Commission [1996] ECR II-427 (T-162/94) 148 Nold v Commission [1974] ECR 491 (4/73) 235 Nölle v Council [1995] ECR II-2589 (T-167/94) 436–7 Nölle v Hauptzollamt Bremen-Freihafen [1991] ECR I-5163 (C-16/90) 408–9 Nordsee Deutsche Hochseefischerei v Reederei Mond Hochseefischerei [1982] ECR 1095 (102/81) 154 NPO v Jonkman [2007] ECR I-5149 (C-231/06) 171 Nungesser [1982] ECR 2015 (258/78) 989 O2 [2006] ECR II-1231 (T-328/03) 989–2 Oebel [1981] ECR 1993 (155/80) 874 O’Flynn [1996] ECR I-2617 (C-237/94) 453, 854 OLAF (Commission v ECB) [2003] ECR I—7147 (C-11/00) 733–4 Olazabal [2002] ECR I-10981 (C-100/01) 476, 902 Oliveira v Commission [1997] ECR II-381 (T-73/95) 409 Omega [2004] ECR I-9609 (C-36/02) 246–7, 787, 874–5, 902 Opel Austria v Council [1997] ECR II-39 (T-115/94) 412 Open Skies Cases 641–3 Orfanopoulos (C-482/01 & C-493/01) 477–8 Orkem and Solvay [1989] ECR 3283 (374/87 & 27/88) 235, 236, 246, 408, 925–6 Ospelt [2003] ECR I-9743 (C-452/01) 726, 876–7, 885, 891 Österreichischer Rundfunk [2003] ECR I-4919 (C-465/00, C-138/01 & C-139/01) 235–6, 250–1 Oulane [2005] ECR I-1215 (C-215/03) 474, 475 Outokumpu [1998] ECR I-1777 (C-213/96) 681 Own Resources (Commission v Netherlands) [1991] ECR I-2461 (C-96/89) 339 P v S and Cornwall County Council [1996] ECR I-2143 (C-13/94) 538, 548 Palacios [2007] ECR I-8531 (C-411/05) 291, 539–40, 566–7 Palmisani v INPS [1997] ECR I-4025 (C-261/95) 276 Papierfabrik Koehler v Commission, Judgment of 3 September 2009 (C-322/07 P, C-327/07 P & C-338/07 P) 409 Paquay v Société d’architectes Hoet & Minne [2007] ECR I-8511 (C-460/06) 224–5 Pardini v Ministerio del Commercio con l’Estero [1988] ECR 2041 (338/85) 169–70 Parfums Christian Dior v Tuk Consultancy [2000] ECR I-11307 (C-300/98 & C-302/98) 161 Parker Pen [1994] ECR II-549 (T-77/92) 983

Parliament v Commission (European Network and Information Security Agency) [2006] ECR I-3771 (C-317/04 & C-318/04) 88, 634 Parliament v Council [1985] ECR 1513 (13/83) 428 Parliament v Council [1988] ECR 4017 (377/87) 429 Parliament v Council (Consultation with Parliament) [1995] ECR I-1185 (C-417/93) 110–11 Parliament v Council (Consultation with Parliament) [1997] ECR I-3213 (C-392/95) 438 Parliament v Council (EIB Guarantees) [2008] ECR I-8103 (C-155/07) 95 Parliament v Council (Family Reunification) [2006] ECR I-5769 (C-540/03) 88, 235–6, 243–5, 251, 505–6, 516 n.151, 517 Parliament v Council (General Tariff Preferences) [1995] ECR I-643 (C-65/93) 110 Parliament v Council (Linguistic Diversity in the Information Society) [1999] ECR I-869 (C-42/97) 97 Parliament v Council (Revision of Judgment) [1992] ECR I-4193 (C-295/90) 97 Parliament v Council (Safe Countries of Origin) [2008] I-3189 (C-133/06) 403, 520 Parti écologiste ‘Les Verts’ v European Parliament [1986] ECR 1339 (294/83) 163 Peralta [1994] ECR I—ECR 3453 (C-379/92) 652, 754–5, 807, n.64 Perfili [1996] ECR I-161 (C-177/94) 794 Pesqueras Echebastar v Commission [1993] ECR I-1719 (C-25/91) 429 Peterbroeck v Belgium [1995] ECR I-4599 (C-312/93) 284 Petrie v Commission [2001] ECR II-3677 (T-191/99) 340–1 Petrotub [2003] ECR I-79 (C-76/00 P) 655 Pfeiffer and others v Deutsches Rotes Kreuz [2004] ECR I-8835 (C-397/01–C-403/01) 272–3, 297 Pfizer Animal Health v Council [2002] ECR II-3305 (T-13/99) 66, 265 n.117, 380–2, 399, 420–1, 702–3, 704 Piraiki-Patraiki v Commission [1985] ECR 207 (11/82) 420 Pistre [1997] ECR I-2343 (C-321/94) 755–6 Pitsiorlas v Council and ECB [2007] ECR II-4779 (T-3/00 & T-337/04) 437 Placanica, Palazzese and Soricchio [2007] ECR I-1891 (C-388/04, C-359/04 & C-360/04) 808, 881, 890–1 Plato Plastik v Caropack [2004] ECR I-4883 (C-341/01) 167–8 Plaumann & Co. v Commission [1963] ECR 95 (25/62) 418–19 Portugaia Construções [2002] ECR I-787 (C-164/99) 874 Portugal v Commission (Azores) [2006] ECR I-7115 (C-88/03) 684–5 Portugal v Council [1999] ECR I-8395 (C-149/96) 653–4

lvi Table of Cases Poucet [1993] ECR I-637 (C-159/91 & C-160/91) 811 Prais [1976] ECR 1589 (130/75) 235–6 Presidente del Consiglio dei Ministri v Regione Sardegna, Judgment of 17 November 2009 (C-169/08) 809–10 Preston v Wolverhampton Health Care Trust [2000] ECR I-3201 (C-78/98) 284–5 PreussenElektra [2001] ECR I-2099 (C-379/98) 749, 878, 896–7 Promusciae v Telefónica de España [2008] ECR I-271 (C-275/06) 238 Pronuptia de Paris [1986] ECR 353 (161/84) 989 Punto Casa v Sindaco del Comune di Capena [1994] ECR I-2355 (C-69/93 & C-258/93) 779 Pupino [2005] ECR I-5285 (C-105/03) 300, 591 Pusa [2004] ECR I-5763 (C-224/02) 460 R v Kent Kirk [1984] ECR 2689 (63/83) 236, 411 Raccanelli [2008] ECR I-5939 (C-94/07) 835 Racke [1998] ECR I-3655 (C-162/96) 657 Radlberger Getränkegesellschaft v Land Baden-Württemberg [2004] ECR I—11763 (C-209/02) 153, 771–2 Ratti [1979] ECR 1629 (148/78) 272–3, 287–8 Rau v Bundesanstalt für Landswirtschaftliche Marktordnung [1987] ECR 2289 (133/85– 136/85) 158–9 Rau [1982] ECR 3961 (261/81) 768 n.66 Ravil v Bellon Import [2003] ECR I-5053 (C-469/00) 780–1 Recovery of Indirect Taxes (Commission v Council) [2004] ECR I-4829 (C-338/01) 95–6 Regione Siciliana v Commission [2005] ECR II-4139 (T-60/03) 418 Regione Siciliana v Commission [2007] ECR I-2591 (C-15/06 P) 418 Reiff [1993] ECR I-5801 (C-185/91) 1018 Reina v Landeskreditbank Baden-Württemberg [1982] ECR 33 (65/81) 153 Reisch [2002] ECR I-2157 (C-515/99 & C-527/99–C-540/99) 874, 885 Remia [1985] ECR 2545 (42/84) 968 Rewe-Zentral v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) [1979] ECR 649 (120/78) 697, 744–5, 746–7, 761–3, 770, 873–4 Rewe-Zentrale v Landwirtschaftskammer Rheinland [1984] ECR 1229 (37/83) 901 Rewe-Zentralfinanz v Landwirtschaftskammer für das Saarland [1976] ECR 1989 (33/76) 276–8 Rewe-Zentralfinanz GmbH v Landwirtschaftskammer Bonn [1975] ECR 843 (4/75) 882–3 Reyners [1974] ECR 631 (2/74) 271, 273, 787, 836, 839 Rheinmühlen-Düsseldorf v Einfuhr- und Vorratstelle für Getreide [1974] ECR 33 (166/73) 152–3, 158 Rhône-Poulenc SA and Others v Commission [1991] ECR II-867 (T-1/89–15/89) 940–1

Richards [2006] ECR I-3585 (C-423/04) 549 Rinner-Kühn [1989] ECR 2743 (171/88) 544, 560 RI-SAN v Commune de Ischia [1999] ECR I-5219 (108/98) 788 n.10 Riseria Luigi Geddo v Ente Nazionale Risi [1973] ECR 865 (2/73) 746, 747 Robins v Secretary of State for Work and Pensions [2007] ECR I-1053 (C-278/05) 307 Roda Golf and Beach Resort, Judgment of 25 June 2009 (C-14/08) 154 Rohrbach v Arbeiterkammer Oberösterreich [2005] ECR I-4305 (C-297/03) 290 Roquette Frères v Council [1980] ECR 3333 (138/79) 110 Roquette Frères v Directeur général de la concurrence, de la consommation et de la répression des fraudes [2002] ECR I-9011 (C-94/00) 928, 929–30 RSV v Commission [1987] ECR 4617 (223/85) 409 RTT v GB-INNO-BM SA [1991] ECR 5941 (18/88) 1022–5 Rubach, Judgment of 16 July 2009 (C-344/08) 236, 408 Ruckdeschel v Council [1977] ECR 1753 (117/76 & 16/77) 410 Rüffler, Judgment of 23 April 2009 (C-544/07) 460, 461, 837 Rush Portuguesa [1990] ECR I-1417 (C-113/89) 874 Rutili v Ministre de l’Intérieur [1975] ECR 1219 (36/75) 235 Safe Countries of Origin [2008] I-3189 (C-133/06) 403, 520 Safety Hi-Tech v S and T [1998] ECR I-4301 (C-284/95) 894 Säger v Dennemeyer [1991] ECR I-4221 (C-76/90) 804–5 Sahin, Judgment of 19 December 2008 (C-551/07) 471 Sahlstedt v Commission, Judgment of 23 April 2009 (C-362/06 P) 424 Salgoil v Italian Ministry of Foreign Trade [1968] ECR 453 (13/68) 271 n.4 San Georgio (Amministrazione delle Finanze dello Stato v San Giorgio) [1983] ECR 3595 (199/82) 277–8 Sandker [1996] ECR I-6511 (C-3/95) 875 Sandoz v Commission [1990] ECR I-45 (227/87) 980–1 Sandoz [1983] ECR 5094 (174/82) 879, 900 Santex v Unità Socio Sanitaria Locale n. 42 di Pavia [2003] ECR I-1877 (C-327/00) 284 Sanz de Lera [1995] ECR I-4821 (C-163/94, C-165/94 & C-250/94) 721 Sapod Audic [2002] ECR I-5031 (C-159/00) 776 SAT Fluggesellschaft v Eurocontrol [1994] ECR I-43 (C-364/92) 151 Opinion of AG Tesauro 1026 n.37

lvii Table of Cases Saunders [1979] ECR 1129 (175/78) 836 Schempp [2005] ECR I-6421 (C-403/03) 460 Schengen [2007] ECR I-11459 (C-77/05) 489–90 Schengen [2007] ECR I-11593 (C-137/05) 115, 490–1 Schindler [1994] ECR I-1039 (C-275/92) 787, 811, 874–5, 891 Schmid [2002] ECR I-4573 (C-516/99) 154 Schmidberger v Austria [2003] ECR I-5659 (C-112/00) 224, 758–60, 874–5, 904 Schneider v Commission [2007] ECR II-2237 (T-351/03) 433–5 Schneider Electric SA v Commission [2002] ECR II-4071 (T-310/01) 433–5 Schnitzer [2003] ECR I-14847 (C-215/01) 787–8 Scholz [1994] ECR I-505 (C-429/92) 854 Schöning-Kougebetopoulou [1998] ECR I-47 (C-15/96) 308, 310 Schoonbroodt [1998] ECR I-8095 (C-247/97) 161 Schul v Minister van Lanbouw, Natur en Voedselkwaliteit [2005] ECR I-10513 (C-461/03) 163 Schumacker [1995] ECR I-225 (C-279/93) 855 Schwarz (Georg) v Bürgermeister der Landeshauptstadt Salzburg [2006] ECR I-10139 (C-366/04) 777 Schwarz and Gootjes [2007] ECR I-6849 (C-76/05) 460, 815 n.94 Seco [1982] ECR 223 (62/81 & 63/81) 803 Segi v Council [2007] ECR I-1657 (C-355/04 P) 254 SELEX Sistemi Integrati SpA v Commission, Judgment of 26 March 2009 (C-113/07 P) 1027 SEP v Commission [1994] ECR I-1911 (C-36/92 P) 925 Serge Brihenche [2004] ECR I-8807 (C-319/03) 573 n.212 Sermes v Directeur de Service des Douanes de Strasbourg [1990] ECR I-3027 (323/88) 405–6 SETTG v Ergasias [1997] ECR I-3091 (C-398/95) 788, 790, 875–6 Seymour-Smith and Perez [1999] ECR I-623 (C-167/97 R) 544, 559, 560 SFEI v Commission [1994] ECR I-2681 (C-39/93 P) 401 SFEI [1996] ECR I-3547 (C-39/94) 278 SG Alsacienne v Koestler [1978] ECR 1971 (15/78) 788 n.10 Sgarlata v Commission [1965] ECR 215 (40/64) 232–3 SGL Carbon [2006] ECR I-5915 (C-301/04 P) 926 Shingara and Radiom [1997] ECR I-03343 (C-65/95 & C-111/95) 477 Ship-Source Pollution (Commission v Council) [2007] ECR I-9097 (C-440/05) 617 Simap [2000] ECR I-7963 (C-303/98) 249–50 Simmenthal (Italian Finance Administration v Simmenthal) [1978] ECR 629 (106/77) 203–4 Singh [1992] ECR I-4265 (C-370/90) 463, 471, 472–3

Sirdar [1999] ECR I-7403 (C-273/97) 562–3 Sison v Council [2007] ECR I-1233 (C-266/05 P) 390 Skatteministeriet v Vestergard [1999] ECR I-7641 (C-55/98) 789 Smoke Flavourings (United Kingdom v Parliament and Council) [2005] ECR I-10553 (C-66/04) 692–4 SNUPAT v High Authority [1961] ECR 109 (42/59 & 49/59) 411 Société pour l’Exportation des Sucres SA v Commission [1978] ECR 1061 (132/77) 437 Sodemare [1997] ECR I-3395 (C-70/95) 858–9 Sofrimport v Commission [1990] ECR I-2477 (152/88) 420 Sogelma v EAR [2008] ECR II-2771 (T-411/06) 399, 429 Söhne v Finanzamt Neustadt [1997] ECR I-5577 (C-258/95) 790 Solvay SA v Commission [1995] ECR II-1775 (T-30/91) 408, 931 Sonia Chacón Navas [2006] ECR I-6467 (C-13/05) 540–1, 552 Sotgiu v Deutsche Bundespost [1974] ECR 153 (152/73) 453, 481–2 Spain v Commission [1995] ECR I-1651 (C-135/93) 431 Spain v Commission [2002] ECR I-7601 (C-113/00) 407 Spain v Eurojust [2004] ECR I-2077 (C-160/03) 24, 399 Spain v United Kingdom [2006] ECR I-7917 (C-145/04) 317, 480 Spanish Chocolate (Commission v Spain) [2003] ECR I-459 (C-12/00) 769 Spanish Strawberries (Commission v France) [1997] ECR I-6959 (C-265/95) 224, 330–1, 758, 760, 903–4 SPI (Amministrazione delle Finanze dello Stato v SPI) [1983] ECR 801 (C-267–C-269/81) 160–1 Spijker v Commission [1983] ECR 2559 (231/82) 422 Stability and Growth Pact (Commission v Council) [2004] ECR I-6649 (C-27/04) 401, 738 Stadtgemeinde Frohnleiten [2007] ECR I-9643 (C-221/06) 680–1 Stamatelaki [2007] ECR I-3185 (C-444/05) 817 Standesamt Stadt Niebüll [2006] ECR I-3561 (C-96/04) 154, 453 Stanton v INASTI [1988] ECR 3877 (143/87) 836 n.26, 845 Star Fruit v Commission [1989] ECR 291 (247/87) 341, 429 Stauder v City of Ulm [1969] ECR 419 (29/69) 233 Steffensen [2003] ECR I-3735 (C-276/01) 284 Steinhauser [1985] ECR 1819 (197/84) 837, 856 Steymann [1988] ECR 6159 (196/87) 790, 834 Stichting Zuid-Hollandse Milieufederatie v Minister van Landbouw [2006] ECR I-8339 (C-138/05) 168 STM (Société Technique Minière) v Maschinenbau Ulm [1966] ECR 234 (56/65) 966, 989

lviii Table of Cases Stoke on Trent and Norwich City Council v B & Q [1992] ECR I-6635 (C-169/91) 773 Stork v High Authority [1959] ECR 17 (1/58) 232–3 Suiker Unie [1975] ECR 1663 (40/73, 50/73, 54/73– 56/73, 111/73, 113/73 & 114/73) 972–3 Sunzest v Commission [1991] ECR I-2917 (C-50/90) 400 Sweden v Commission [2007] ECR I-11389 (C-64/05 P) 393–4 Sweden and Turco v Council [2008] ECR I-4723 (Joined Cases C-39/05 and C-52/05) 392–3 Swedish Match (R v Secretary of State for Health, ex parte Swedish Match) [2004] ECR I-11893 (C-210/03) 369, 692, 694 Syfait [2005] ECR I-4609 (C-53/03) 154 Synthon (R v Licensing Authority of the Department of Health, ex parte Synthon) [2008] ECR I-7681 (C-452/06) 307 T. Port [1996] ECR I-6065 (C-68/95) 172, 280 T-Mobile, Judgment of 4 June 2009 (C-8/08) 985–7, 1005 Tadao Maruko [2008] ECR I-1757 (C-267/06) 554–5 Talotta [2007] ECR I-2555 (C-383/05) 808, 809–10 Tas-Hagen and Tas v Raadskamer WUBO van de Pensioen- en Uitkeringsraad [2006] ECR I-10451 (C-192/05) 460 Technische Glaswerke Ilmenau v Commission [2004] ECR II-2717 (T-198/01) 407, 408 Tegometall International v OHIM–Wuppermann (TEK) [2007] ECR II-4721 (T-458/05) 407–8 Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue [2006] ECR I-11753 (C-446/04) 278 Tetra Laval (Commission v Tetra Laval) [2005] ECR I-987 (C-12/03 P) 403–5 Tetra Pak [1994] ECR II-755 (T-83/91) 1006 Tetra Pak II [1996] ECR I-5951 (C-333/94 P) 1006 Thieffry [1977] ECR 765 (71/76) 846, 875 Tipp-Ex [1990] ECR 261 (279/87) 980–1 TNT Traco [2001] ECR I-4109 (C-340/99) 1042 Tobacco Advertising I (Germany v Parliament and Council) [2000] ECR I-8419 (C-376/98) 675, 687–91, 694 Tobacco Advertising II (Germany v Parliament and Council) [2006] ECR I-11753 (C-380/03) 369, 691–2, 694 Tokai Carbon and others v Commission [2004] ECR II-1181 (T-236/01, T-239/01, T-244/01–T-246/01, T-251/01 & T-252/01) 934 Tolsma [1994] ECR I-743 (C-16/93) 791 Tomadini v Amministrazione delle Finanze dello Stato [1979] ECR 1801 (84/78) 411 Torfaen Borough Council v B & Q [1989] ECR 765 (145/88) 169–70, 773, 875 Trade Fairs (Commission v Italy) [2002] ECR I-305 (C-439/99) 803

Traghetti del Mediterraneo v Italy [2006] ECR I-5177 (C-173/03) 311–12 Transocean Marine Paint v Commission [1974] ECR 1063 (17/74) 236, 408 Tréfilunion SA v Commission [1995] ECR II-1063 (T-148/89) 933 Treuhand v Commission [2008] ECR II-1501 (T-99/04) 408 Trojani [2004] ECR I-7573 (C-456/02) 455, 832–4 Trummer and Mayer [1999] ECR I-1661 (C-222/97) 722, 905 Turansky, Judgment of 22 December 2008 (C-491/07) 610 TWD Textilwerke Deggendorf v Commission (‘TWD II’) [1995] ECR I-2265 (T-244/93 & T-486/93) 431 TWD Textilwerke Deggendorf v Germany [1994] ECR I-833 (C-188/92) 160, 180 Überseering [2002] ECR I-9919 (C-208/00) 865 UEAPME v Commission [1998] ECR II-2335 (T-135/96) 379 Uecker and Jacquet [1997] ECR I-3171 (C-64/96 & C-65/96) 462–3, 836 UNECTEF v Heylens [1987] ECR 4097 (222/86) 283, 408 Unibet v Justitiekanslern [2007] ECR I-2271 (C-432/05) 238, 280–3 Unifrex v Commission and Council [1984] ECR 1969 (281/82) 436–7 Unilever Italia SpA v Central Food SpA [2000] ECR I-7535 (C-443/98) 293 Unión General de Trabajadores de La Rioja [2008] ECR I-6747 (C-428/06–C-434/06) 686 Union Syndicale [1974] ECR 917 (175/73) 235–6 United Brands [1978] ECR 207 (27/76) 998, 999, 1001, 1002 United Kingdom v Council [1996] ECR I-5755 (C-84/94) 364, 369 United Kingdom v Council, OJ 2009, C 32/15 (Case C-482/08) 491 United Kingdom v Council (Schengen) [2007] ECR I-11459 (C-77/05) 489–90 United Kingdom v Council (Schengen) [2007] ECR I-11593 (C-137/05) 115, 490–1 United Pan-Europe Communications Belgium and others [2007] ECR I-11135 (C-250/06) 235–6 UPA (Union de Pequeños Agricultores) v Council [2002] ECR I-6677 (C-50/00 P) 422 n.113 UPS Europe v Commission [2002] ECR II-1915 (Case T-175/99) 1043–4 UTECA, Judgment of 5 March 2009 (C-222/07) 810– 11, 891 Van Ameyde [1997] ECR 1091 (90/76) 798 Van Binsbergen [1974] ECR 1299 (33/74) 788, 792, 808, 875

lix Table of Cases Van de Haar [1984] ECR 1797 (177/82 & 178/82) 754 Van den Bergh en Jurgens v Commission [1987] ECR 1155 (265/85) 412 Van der Laan [1999] ECR I-731 (C-383/97) 748 Van der Weerd v Minister van Landbouw, Natuur en Voedselkwaliteit [2007] ECR I-4233 (C-222/05–C-225/05) 284 Van Duyn [1974] ECR 1337 (41/74) 271, 286–7, 477, 652–3, 877, 881, 902–3 Van Eick v Commission [1968] ECR 329 (35/67) 233 Van Eycke v ASPA NV [1988] ECR 4769 (267/86) 1015 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1 (26/62) 2, 14–16, 186, 211, 233, 268–71 Van Hilten-van der Heijden v Inspecteur van de Belastingdienst [2006] ECR I-195 (C-513/03) 722 Van Parys v BIRB [2005] ECR I-1465 (C-377/02) 409 Van Schaik [1994] ECR I-4837 (C-55/93) 787, 874 Van Straaten [2006] ECR I-9327 (C-150/05) 610 Van Tiggele [1978] ECR 25 (82/77) 805 Van Vlaamse [1987] ECR 3801 (311/85) 757, 1015 Vanbraekel [2001] ECR I-5363 (C-368/98) 817 Vaneetveld v Le Foyer [1994] ECR I-763 (C-316/93) 290 Variola v Amministrazione delle Finanze [1973] ECR 981 (34/73) 98–9 Vassallo v Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenzionate [2006] ECR I-725 (C-180/04) 289, 328 Vatsouras v Arbeitsgemeinschaft Nürnberg, Judgment of 4 June 2009 (C-22/08) 458, 459 Verein für Konsumenteninformation v Commission [2005] ECR II-1121 (T-2/03) 387 Vereniging van Exporteurs in Levende Varkens v Commission [1995] ECR II-2941 (T-481/93 & 484/93) 433 Verkooijen [2000] ECR I-4071 (C-35/98) 876–7 Viacom Outdoor [2005] ECR I—1106 (C-134/03) 794–5 Viamex Agrar Handels and others v Hauptzollamt Hamburg-Jonas [2008] ECR I-69 (C-37/06 & C-58/06) 290 n.67 Viho Europe BV [1996] ECR I-5457 (C-73/95 P) 964–6 Vischim v Commission, Judgment of 7 October 2009 (T-420/05) 408–9, 414, 420–1, 429 Vlassopoulou [1991] ECR I-2357 (C-340/89) 846–7 Völk v Vervaecke [1969] ECR 295 (5/69) 967 Volkswagen AG v Commission [2000] ECR II-2707 (62/98) 980–1 Volkswagen AG v Commission [2003] ECR I-9189 (C-338/00 P) 980–1 Volkswagen AG v Commission [2003] ERC II-541 (T-208/01) 983

Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 (14/83) 283, 294–5, 300 Voogd Vleesimport en -export [1994] ECR I-4915 (C-151/93) 170 VTB-VAB v Total, Judgment of 29 April 2009 (C-261/07 & C-299/07) 299–300 Wachauf v Germany [1989] ECR 2609 (5/88) 252–3 Wafer Zoo v Commission [1995] ECR II-1479 (T-478/93) 437 Wagner-Miret v Fondo de Garantia Salarial [1993] ECR I-6911 (C-334/92) 296–7 Walloon/Belgian Waste (C-2/90) [1992] ECR I-4431 878, 897 Walrave and Koch [1974] ECR 1405 (36/74) 797–8 Walt Wilhelm v Bundeskartellamt [1969] ECR 1 (14/68) 941 Waste Disposal: Kouroupitos (Commission v Greece) [2000] ECR I-5047 (C-387/97) 345 Watson and Belmann [1976] ECR 1185 (118/75) 475 Watts [2006] ECR I-4325 (C-372/04) 815, 817, 818–19 Webb [1981] ECR 3305 (279/80) 804 Weber’s Wine World [2003] ECR I-11365 (C-147/01) 278 Weiss v Industrie- und Handelskammer Berlin [2008] ECR I-3367 (C-14/07) 236 Wells (R v Secretary of State for Transport, Local Government and the Regions, ex parte Wells) [2004] ECR I-723 (C-201/02) 291, 292 Werner [1995] ECR I-3189 (C-70/94) 208 Wieland-Werke AG v Commission, Judgment of 9 May 2009 (T-116/04) 934–5 Wielockx [1995] ECR I-2493 (C-80/94) 878 Wiener v Hauptzollamt Emmerich [1997] ECR I-6495 (C-338/95), Opinion of AG Jacobs 180 Willame v Commission [1965] ECR 649 (110/63) 436 Williams v Commission [2008] ECR II-156 (T-42/05) 387–8 Wilson [2006] ECR I-8613 (C-506/04) 154, 811, 840 n. 38 Windpark Groothusen v Commission [1998] ECR I-2873 (C-48/96 P) 405–6 Wirth [1993] ECR I-6447 (C-109/92) 791–2 Wöhrmann v Commission [1962] ECR 506 (31/62 & 33/62) 430 Wolf [1998] ECR 3897 (154/87 & 155/87) 845 Wolff [2004] ECR I-9553 (C-60/03) 876 Wolzenburg, Judgment of 6 October 2009 (C-123/08) 453, 459, 460, 598 Woningstichting Sint Servatius, Judgment of 1 October 2009 (C-567/09) 905 Wood [2008] ECR I-4143 (C-164/07) 453 Wood Pulp [1993] ECR I-1307 (89/85, 114/85, 116/85, 117/85 & 125/85–129/85) 978–9 Wouters [2002] ECR I-1577 (C-309/99) 875, 964, 968–9, 973, 1019

lx Table of Cases WWF v Autonome Provinz Bozen [1999] ECR I-5613 (C-435/97) 150 WWF European Policy Programme [2007] ECR II-911 (T-264/04) 391 X and Y [2002] ECR I-10829 (C-436/00) 876–7 Xunta de Galicia [2005] ECR I-7419 (C-71/04) 278 Zablocka, Judgment of 4 December 2008 (C-221/07) 460 Zenatti [1999] ECR I-7289 (C-67/98) 808, 891, 902–3

Zhu and Chen [2004] ECR I-9925 (C-200/02) 445, 451, 467–8 Züchner v Bayerische Vereinsbank [1981] ECR 2021 (172/80) 978 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest [1991] ECR I-415 (C-143/88 & C-92/89) 172, 280 Zurita García v Delegado del Gobierno en la Región de Murcia, Judgment of 22 October 2009 (C-261/08 & C-348/08) 509 Zwartveld [1990] ECR I-3365 (2/88) 223

European Court of Justice: Opinions Opinion 1/75 Re Understanding on a Local Costs Standard [1975] ECR 1355 208, 633-34, 647 Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels [1977] ECR 741 642 Opinion 1/91 Re European Economic Area [1991] ECR I-6079 211 Opinion 2/91 Convention No. 170 ILO on Safety in the Use of Chemicals at Work [1993] ECR I-1061 641–3

Opinion 2/92 Third Revised Decision of the OECD on National Treatment [1995] ECR I-521 643 Opinion 1/94 Re World Trade Organization Agreement [1994] ECR I-5267 642, 643 Opinion 2/94 Re Accession of the Community to the ECHR [1996] ECR I-1759 217, 262, 402 Opinion 1/03 Lugano Convention [2006] ECR I-1145 643–5

Table of Treaties, Instruments and Legislation

Treaties and Analogous Instruments Acts of Accession 3 Austria 30 Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia 30–1 Protocol 7 on abortion in Malta 257 Denmark 18 Finland 30 Greece 18 Iceland 30 Ireland 18 Norway 18, 30 Portugal 18–19 Romania 30–1 Spain 18–19 Sweden 30 United Kingdom 18 Amsterdam Treaty 2–3, 27, 28–30 Declarations 29: on sport 799 37: on public credit institutions in Germany 29–30 Declarations of which the Conference took note 1: Austria and Luxembourg on Credit Institutions 29–30 5: Belgium on the Protocol on asylum for nationals of Member States of the EU 29–30 Association Agreement (EEC–Turkey) (1963) 32, 494, 505 Decision 1/80 of the EC–Turkey Association Council 32, 494, 505 Basel Agreement (1972) 714 Certain Institutions Common to the European Communities, Convention on 14 Community Charter of Fundamental Social Rights of Workers 235, 537–8 Constitutional Treaty (CT) 3, 36–8, 42–3

lxi

Part I, Title I (definition and objectives of the Union) Art. I-6 42 Art. I-7 42 Part I, Title II (fundamental rights and citizenship) I-8 42 Part I, Title III (Union competences) Art. I-13 188 Part I, Title IV (institutions and bodies) Chapter I (institutional framework) Art. I-20 42 Art. I-28 42 Part I, Title V (exercise of union competence) Arts. I-33–39 42 Part I, Title VI (democratic life of the Union) Arts. I-45-I-48 42 Part II (Charter of Fundamental Rights) 42 Part II, Title IV (solidarity) II-94 240 Constitutional Treaty (draft) (DCT) Art. 23(1) 69 Cotonou Agreement (2007) Art. 9(2) 636 Art. 96(2) 636–7 Art. 97(2) 636–7 Declarations annexed to the Lisbon Treaty Final Act 4 on the composition of the European Parliament 47, 81–2 7 on Article 16(4) TEU and 238(2) TFEU (QMV formula) 47 10 on Article 17(3) TEU (size of Commission after 2014) 47 17 concerning primacy 188 24 concerning legal personality of the EU 634 25 on Arts. 75 and 215 TFEU (respect for EUCFR rights and freedoms) 42–3 30 on the CFSP 664 31 on the CFSP 664 41 on Art. 352 TFEU 216–17

lxii Table of Treaties, Instruments and Legislation 42 on Art. 352 TFEU 217 52 on the symbols of the Union 42–3 Declaration by the Czech Republic on the Charter of Fundamental Rights of Art. 1 TEU 255 Declarations in connection with the Lisbon Treaty Solemn Declaration on workers’ rights, social policy and other issues (18/19 June 2009) 49 EC Treaty (Consolidated) Part One (principles) Art. 2 921 Art. 3(1)(g) 695 Art. 4(1) 921 Art. 10 300 Part Three, Title III (free movement of persons, services and capital) Art. 52 494 Chapter 2 (right of establishment) Art. 48 494 Part Three, Title IV (visas, asylum, immigration and free movement of persons) Art. 64(1) 201 Part Three, Title VI [V] (competition, taxation and approximation of laws) Chapter 1 (competition) Art. 81(1) 921 Part Three, Title VIII (employment) 29 Part Five, Title I (Institutions) Chapter 1 (Institutions) Art. 230(4) 423–4 Art. 234 423 Part Six (general and final provisions) Art. 308 214–16 ECSC Treaty (Treaty of Paris) 10 Art. 35 429–30 Art. 65 909 Art. 66 909 EEC Treaty (Treaty of Rome) 11–13 Preamble 17 EFTA (1960) 18 EURATOM (Treaty of Rome) 11–12 European Charter of Fundamental Rights (EUCFR) (2000) 35, 229, 237–41 Arts. 1–5 238 Art. 5 239 Arts. 6–19 238 Art. 7 245, 469–70 Art. 9 240–1 Art. 14(3) 240–1 Art. 18 503 Arts. 20–26 238–9 Art. 21 556–7 Art. 23 240–1 Art. 24(2) 245 Art. 24(3) 245 Art. 27 240–1 Arts. 27–38 239, 257–8 Art. 28 240–1

Art. 29 239 Art. 30 240–1 Art. 34 240–1 Art. 34(3) 240 Art. 35 240–1 Art. 36 240–1, 1035 Art. 37 240–1 Art. 38 240–1 Arts. 39–46 239 Art. 42 385 Art. 47 281, 406, 423 Art. 49 240–1 Art. 51(1) 254–6 Art. 51(2) 248–52 Art. 52(1) 239 Art. 52(3) 243–8 Art. 52(4) 246–8 Art. 52(5) 240–1 Art. 52(7) 242–3 Art. 53 242 European Convention on Human Rights (ECHR) 229, 232–6 Art. 3 505 Art. 6 159, 281, 406, 423, 940–1 Art. 8 243–5, 250–1, 451, 469–70, 473, 517–18 Art. 8(1) 244 Art. 8(2) 928, 930 Art. 9 551 Art. 10 759 Art. 11 759 Art. 13 159, 281, 406, 423 European Defence Community Treaty (EDC) 11 European Social Charter 235 Geneva Convention relating to the status of refugees (1951) and Protocol (1967) Art. 1 525, 528 Art. 33(1) 503–4 International Covenant on Civil and Political Rights (ICCPR) 235 Lisbon Treaty on European Union (general including TEU and TFEU) 3, 38–9, 46, 48–50 Lisbon Treaty on European Union (TEU) 40, 361–7 Preamble 3 Title I (common provisions) Art. 1 23, 42, 95 Art. 1(2) 300 Art. 2 43, 230, 799, 965 Art. 2(4) 639 Art. 3(2) 216–17 Art. 3(3) 217–19, 733, 921–3, 1048 Art. 3(4) 716 Art. 3(5) 657 Art. 4 159

lxiii Table of Treaties, Instruments and Legislation Art. 4(2) 194–7, 201–2, 220–1, 496, 581–2, 584–6, 669–70 Art. 4(3) 186, 196, 223–7, 276–7, 279, 281, 295–6, 297–300, 302, 304, 330–1, 332, 652, 758–9, 1014–20, 1020–6 Art. 5 211–13 Art. 5(2) 212–13 Art. 5(3) 361, 362, 363–7 Art. 5(4) 361, 362, 367–72 Art. 6 28, 228–9 Art. 6(1) 43, 230–2, 238 Art. 6(2) 232 Art. 6(3) 230, 402 n.18 Art. 7(1) 264–5 Art. 7(2) 265 Art. 7(3) 28, 76, 264–5 Art. 8 639–40 Title II (provisions on democratic principles) 43–6 Art. 10 43–6 Art. 10(3) 132–3 Art. 11 132–3, 351, 373–9 Art. 11(1) 896 Art. 11(4) 45, 47, 62, 135–6, 483 Art. 12 127 Art. 12(c) 593 Art. 12(f) 131–2 Title III (provisions on the institutions) Art. 13 20–1, 47, 75–6, 79–81 Art. 13(1) 733 Art. 14(2) 46, 77, 81–2, 480 Art. 15(1) 75–6, 77, 399 Art. 15(2) 54–5, 75, 78–9 Art. 15(3) 75 Art. 15(5) 47, 77, 78–9 Art. 15(6) 47, 79, 664 Art. 15(6)(d) 80–1, 88 Art. 16(1) 68, 69, 78 Art. 16(2) 53, 68 Art. 16(4) 47, 53, 71 Art. 16(6) 68, 69, 78 Art. 16(8) 73, 393 Art. 16(9) 73 Art. 17(1) 58–67, 77 Art. 17(1) 75 Art. 17(3) 54 Art. 17(4) 54–5 Art. 17(5) 47, 54 n.1, 77 Art. 17(6) 54–5 Art. 17(6)(b) 54, 56 Art. 17(6)(c) 47 Art. 17(7) 56, 77, 87 Art. 17(8) 55 n.13, 87 Art. 18 42, 47, 54–5, 631–2, 663–4 Art. 18(1) 54–5, 77, 79, 664 Art. 18(2) 47, 54–5, 663, 664 Art. 18(3) 54–5, 663 Art. 18(4) 47, 54–5

Art. 19(1) 142, 144, 146–7, 149, 159, 268, 301, 309, 312–13, 399 Art. 19(2) 77, 144–5, 147, 181 Art. 19(3) 231 Title IV (enhanced cooperation) 113–16 Art. 20 113 Art. 20(2)(d) 88 Art. 20(3) 114 Art. 20(4) 114 Title V (external action), Chapter 1 (provisions on the common foreign and security policy), Section 1 (general provisions) Art. 21 146, 630–1 Art. 21(1) 263–4, 635–6 Art. 21(2) 668–9 Art. 21(3) 637 Art. 22 68, 78, 631–2, 634–6, 637, 661–2, 665 Art. 22(1) 635 Art. 22(2) 664 Title V, Chapter 2 (specific provisions on CFSP), Section 1 (common provisions) Art. 24(1) 659–60 Art. 24(3) 664 Art. 25 661 Art. 26(1) 661–2 Art. 26(2) 68, 631–2, 662, 663, 665 Art. 26(3) 664 Art. 27(1) 63–4, 634–5, 663, 664 Art. 27(2) 63–4, 664 Art. 27(3) 63–4, 74, 663–4 Art. 28(1) 662 Art. 30 664 Art. 30(1) 61, 633 Art. 31(1) 662 Art. 31(2) 78, 662–3 Art. 32 68, 78, 631–2, 634–6, 661–2, 665 Art. 33 664 Art. 34 591 n.24 Art. 34(1) 664, 665 Art. 34(2) 665 Art. 35 665 Art. 35(2)(a) 592 Art. 38 662 Art. 40 146, 667 Title V, Chapter 2 (specific provisions on CFSP), Section 2 (provisions on the CSDP) Art. 42(1) 670 Art. 42(2) 671 Art. 42(3) 671, 672 Art. 42(6) 672 Art. 42(7) 670 Art. 43 671 Art. 45(2) 672 Art. 46 672

lxiv Table of Treaties, Instruments and Legislation Title VI (final provisions) Art. 47 632–4 Art. 48(2)-(4) 76 Art. 48(3) 69, 76 Art. 48(6) 76 Art. 48(7) 76 Art. 49 64, 76, 88, 212, 263, 640 Art. 50 212 Lisbon Treaty on the Functioning of the European Union (TFEU) 3 Part One, Principles Art. 1(1) 211 Art. 1(2) 23, 42, 95 Part One, Title I (categories and areas of Union competence) Art. 2 206–7 Art. 2(3) 210, 211 Art. 2(4) 210, 671–2 Art. 2(5) 210 Art. 3 207, 209 Art. 3(1) 40–1, 647–8 Art. 3(1)(b) 965, 1016-17, 1024 Art. 3(2) 648 Art. 3(3) 922 Art. 4 41, 209 Art. 4(2) 208 Art. 4(2)(a) 965 Art. 6(2) 259–60, 640 Part One, Title II (provisions having general application) Art. 7 701 Art. 8 410, 576–9 Arts. 8–12 701 Art. 10 576–9 Art. 10(1) 126 Art. 10(2) 126 Art. 10(3) 132–6 Art. 11 483 Art. 11(4) 45, 47, 62, 135–6, 483 Art. 14 1035–8, 1046–8 Art. 14(2) 480 Art. 15 483 Art. 15(3) 137, 385, 389 Art. 16 137 Part One, Title III (provisions on the institutions) Art. 14 137 Art. 17(1) 58–67, 317, 318–20, 331 Art. 17(4) 47 Art. 17(6) 47 Part Two (non-discrimination and citizenship of the Union) 444–5 Art. 18 137, 186, 440, 445, 452–64, 555–6 Art. 19 410, 534–5, 536, 538, 540–1, 547, 550, 551–2, 553, 555 Art. 19(1) 112, 141, 536

Art. 19(2) 137, 536 Art. 20 444–5 Art. 20(1) 440, 445–7 Art. 20(2)(a) 440, 447–79 Art. 20(2)(b) 480 Art. 21 440, 447 Art. 21(1) 440, 447–79 Art. 21(2) 137 Art. 22 480 Art. 23 483 Art. 24 88, 136, 137, 482–3 Art. 25 141 Part Three, Title I (the internal market) Art. 26 674–5, 677–80 Art. 26(2) 21 Part Three, Title II (free movement of goods), Chapter 1 (the customs union) Art. 30 14, 674–5, 887 Part Three, Title II (free movement of goods), Chapter 2 (customs cooperation) Art. 33 137 Art. 33(2)(a) 884–6 Part Three, Title II (free movement of goods), Chapter 3 (prohibition of quantitative restrictions) Art. 34 224, 304–7, 679, 744–82, 874, 893, 896–7, 1017, 1022–4 Art. 35 745–6, 758–9, 780–2 Art. 36 745, 759, 767, 771, 778, 872, 879–80, 888–90, 895, 897, 903 Part Three, Title III (agriculture and fisheries) Art. 39(1)(b) 884–6 Art. 40 410, 667–8 Art. 42 967 Art. 43(2) 137 Part Three, Title IV (free movement of persons, goods and capital), Chapter 1 (workers) Art. 45 448, 799–800, 829–69 Art. 45(2) 830, 854–5 Art. 45(3)(d) 59 Art. 45(4) 481–2, 873, 905–6 Art. 46 137 Art. 48 78, 137, 271 Part Three, Title IV (free movement of persons, goods and capital), Chapter 2 (right of establishment) Art. 49 279–80, 306, 308, 448, 640, 801–2, 829–69 Art. 50 831–2 Art. 50(1) 137 Art. 50(3)(g) 865 Art. 51 481–2, 873 Art. 51(2) 137 Art. 52 253–4 Art. 52(2) 137 Art. 53 687–91, 831–2 Art. 53(1) 137 Art. 54 864–5

lxv Table of Treaties, Instruments and Legislation Part Three, Title IV (free movement of persons, goods and capital), Chapter 3 (services) Art. 56 246–7, 255–6, 280–3, 473, 783–828, 877–8, 894, 1017 Art. 56(2) 137 Art. 57 784, 787–8, 790–2, 812 Art. 59(1) 137 Art. 62 139, 253–4, 687–91 Part Three, Title IV (free movement of persons, goods and capital), Chapter 4 (capital and payments) Art. 63 713, 716–7, 904–5 Art. 63(1) 721–7 Art. 64(1) 727 Art. 64(2) 137, 726 Art. 65 713 Art. 65(1) 713, 726–7, 872–972 Art. 66 727 Part Three, Title V (freedom, security and justice), Chapter 1 (general provisions) Art. 67 28, 166, 492 Art. 67(1) 493, 503 Art. 68 77 Art. 69 593 Art. 71 498, 587 Art. 72 139, 496 Art. 73 587 Art. 75 137 Art. 76 130, 592 Part Three, Title V (freedom, security and justice), Chapter 2 (border checks, asylum and immigration) Art. 77(1) 487–8 Art. 77(2) 115–6, 137 Art. 77(3) 139, 487 Arts. 77–79 486, 487–91 Art. 78 505 Art. 78(1) 488, 503–4 Art. 78(2) 137 Art. 78(2)(g) 639 Art. 78(3) 487 Art. 79(1) 137, 488 Art. 79(2)(a) 137 Art. 79(2)(b) 137 Art. 79(2)(c) 137 Art. 79(2)(d) 137 Art. 79(3) 137, 639 Art. 79(4) 137 Art. 79(5) 137, 495 Part Three, Title V (freedom, security and justice), Chapter 3 ( judicial cooperation in civil matters) Art. 80(3) 506 Art. 81 137 Art. 81(3) 139 Part Three, Title V (freedom, security and justice), Chapter 4 ( judicial cooperation in criminal matters)

Art. 82 112, 137, 209, 583–4 Art. 82(1) 594–5, 596 Art. 82(2)(d) 141 Art. 82(3) 78, 592–3 Art. 83 583–4, 611–18 Art. 83(1) 112, 137, 141, 583–4, 611–12, 613–16 Art. 83(2) 138, 612, 617–18 Art. 83(3) 47, 78, 582, 592–3, 612 Art. 83(6) 112 Art. 84 138 Art. 85 138 Art. 86 141 Art. 86(1) 112, 583–4 Art. 86(3) 583–4 Art. 86(4) 112, 583–4 Art. 88 626–8 Art. 88(1) 593 Part Three, Title V (freedom, security and justice), Chapter 5 (police cooperation) Art. 87 583–4, 618–28 Art. 87(2)(a)-(c) 138 Art. 87(3) 139, 583–4, 592 Art. 88 138 Art. 88(2) 593 Art. 89 139, 583–4 Part Three, Title VI (transport) Art. 91 138 Art. 95 139 Art. 100 138 Art. 100(2) 641 Part Three, Title VII (common rules on competition, taxation and approximation of laws), Chapter 1 (rules applying to competition) Section 1 (rules applying to undertakings) Art. 101 908–9, 910, 922, 932–3, 941–3, 952–60, 962–3, 972, 1015–17, 1020 Art. 101(1) 942, 943–4, 952–6, 963, 964–5, 966–97, 1011–12 Art. 101(2) 942, 943–4 Art. 101(3) 942, 943–4, 952–6, 963, 968, 972, 980, 989–92, 1011–12 Art. 102 908–9, 922, 932–3, 962–3, 982, 997–1012, 1015–17, 1020, 1022–6 Art. 102(b) 1024 Art. 103 139, 924 Art. 106 1020–6 Art. 106(1) 1014, 1021–2, 1026, 1035 Art. 106(2) 967, 1014, 1022, 1026, 1028–9, 1030–8 Art. 106(3) 59, 64, 1022–5, 1038–46 Part Three, Title VII (common rules on competition, taxation and approximation of laws), Chapter 1 (rules applying to competition), Section 2 (aids granted by States) Art. 108(2) 64, 317 Art. 109 139

lxvi Table of Treaties, Instruments and Legislation Part Three, Title VII (common rules on competition, taxation and approximation of laws), Chapter 2 (tax provisions) Art. 110 674–5, 680–1 Art. 113 95–6, 139, 683 Part Three, Title VII (common rules on competition, taxation and approximation of laws), Chapter 3 (approximation of laws) Art. 114 95–6, 97, 138, 214, 364–5, 675, 686–95, 700–1 Art. 114(2) 96 Art. 114(5) 702 Art. 115 140, 683, 687 Art. 116 138 Art. 118 138, 140, 364 n.26 Part Three, Title VIII (economic and monetary policy), Chapter 1 (economic policy) Art. 119 716 Art. 119(2) 719 Art. 120 68, 718–19 Art. 121 138, 719, 740–2 Art. 121(1) 718–19, 740 Art. 121(2) 102, 741 Art. 123(1) 731–2 Art. 126(1) 717–18, 737–8 Art. 126(2) 737–8 Art. 126(3) 739 Art. 126(5) 739 Art. 126(6) 737–8, 739 Art. 126(7) 740 Art. 126(9) 740 Art. 126(14) 140 Part Three, Title VIII (economic and monetary policy), Chapter 2 (monetary policy) Art. 127 140 Art. 127(1) 731, 733 Art. 127(4) 728 Art. 128 140, 717, 728 Art. 128(3) 719 Art. 129 138 Art. 129(1) 728 Art. 129(4) 140 Art. 130 713, 731–6 Art. 131 731–2 Art. 133 138 Part Three, Title VIII (economic and monetary policy), Chapter 4 (provisions specific to Member States whose currency is the euro) Art. 136 719, 741 Art. 136(2) 720 Art. 137 721 Art. 138(1) 736–7 Part Three, Title VIII (economic and monetary policy), Chapter 5 (transitional arrangements) Art. 139 720 Art. 139(2) 720

Art. 140 719–20 Art. 140(2) 140 Part Three, Title IX (employment) Art. 145 211 Art. 148 77, 140 Art. 148(2) 102 Art. 149 138 Art. 150 140, 538 Part Three, Title X (social policy) Art. 153 536 Art. 153(1)(a) 138 Art. 153(1)(e) 138 Art. 153(1)(h) 138 Art. 153(2) 138 Art. 153(2)(b) 209 Art. 157 273–5, 536–7, 538, 543–6, 547–9 Art. 157(1) 271–2, 544–5 Art. 157(2) 545 Art. 157(3) 138 Art. 157(4) 573–4 Art. 160 140 Part Three, Title XI (European Social Fund) Art. 164 138 Part Three, Title XII (education, vocational training and sport) Art. 165 138 Art. 165(2) 89–90 Art. 165(3) 639 Art. 165(4) 102 Art. 166 138 Art. 166(3) 639 Art. 166(5) 97 Art. 167(3) 639 Part Three, Title XIII (culture) Art. 167 138 Art. 167(5) 89–90, 102 Part Three, Title XIV (public health) Art. 168 138, 380–2, 691–2, 898–900 Art. 168(3) 639 Art. 168(4) 89–90, 102 Art. 168(4)(a) 209 Art. 168(5) 102, 687 Part Three, Title XV (consumer protection) Art. 169 209 Part Three, Title XVI (trans-European networks) Art. 171(3) 639 Art. 172 89–90, 138 Part Three, Title XVII (industry) Art. 173 138 Art. 173(3) 102 Part Three, Title XVIII (economic, social and territorial cohesion) Art. 175 138 Art. 177 138 Art. 178 89–90, 138

lxvii Table of Treaties, Instruments and Legislation Part Three, Title XIX (research and technological development and space) Art. 180(b) 639 Art. 182 140 Art. 182(1) 138 Art. 182(5) 138 Art. 186 639 Art. 188 138, 140 Art. 189(2) 89–90 Part Three, Title XX (environment) Art. 191 898–900 Art. 191(4) 639 Art. 192 138, 214 Art. 192(1) 97 Art. 192(2) 97, 140 Art. 193 209 Part Three, Title XXI (energy) Art. 194 138, 140 Part Three, Title XXII (tourism) Art. 195 139 Art. 195(2) 102 Part Three, Title XXIII (civil protection) Art. 196 139 Part Three, Title XXIV (Administrative cooperation) Art. 197(2) 139 Part Four (association of overseas countries and territories) Art. 198 639 Art. 203 140 Part Five, Title I (common commercial policy) Art. 206 638 Art. 207 634 Art. 207(1) 638 Art. 207(2) 139 Art. 207(4)(a) 651 Art. 207(4)(b) 651 Part Five, Title III, Chapter 1 (development cooperation) Art. 209 139, 667–8 Part Five, Title III, Chapter 2 (economic, financial and technical cooperation) Art. 212 139 Part Five, Title III, Chapter 3 (humanitarian aid) Art. 214 139 Part Five, Title IV (restrictive measures) 638 Part Five, Title V (international agreements) 213 Art. 216(1) 631, 640–5, 648 Art. 216(2) 98, 652–6 Art. 218 140 Art. 218(2) 633 Art. 218(3) 633 Art. 218(4) 633 Art. 218(5) 633 Art. 218(6) 112, 141 Art. 218(6)(a) 633

Art. 218(6)(a)(v) 633 Art. 218(6)(b) 633 Art. 218(10) 634 Art. 218(11) 146, 634 Art. 219 140, 639, 719 Art. 219(1) 736–7 Art. 219(2) 736–7 Art. 219(4) 736–7 Part Five, Title VI (Union’s relations with international organisations and third countries) Art. 220 63–4, 638–9, 664 Part Six, Title I, Chapter 1 (the institutions), Section 1 (European Parliament) Art. 223 141 Art. 224 139 Art. 225 62–3, 68, 86 Art. 226 141, 334 Art. 227 88 Art. 228 88 Art. 228(1) 77, 87 Art. 228(2) 87 Art. 230 88 Art. 234 55, 87 Part Six, Title I, Chapter 1 (the institutions), Section 2 (European Council) Art. 235(3) 69 Art. 235(4) 74 Art. 236(a) 69 Art. 236(b) 73 Part Six, Title I, Chapter 1 (the institutions), Section 3 (Council) Art. 238(3) 71 Art. 240(2) 74 Art. 240(3) 69 Art. 241 62–3, 68, 69 Part Six, Title I, Chapter 1 (the institutions), Section 4 (Commission) Art. 245 54, 55, 56 Art. 246 140 Part Six, Title I, Chapter 1 (the institutions), Section 5 (European Court of Justice) Art. 252 145 Art. 253 144, 922 Art. 253(3) 144 Art. 255 144 Art. 256(1) 146, 148 Art. 256(2) 147 Art. 256(3) 148, 181 Art. 257 139, 149 Art. 258 64, 68, 146, 429 Art. 259 146 Art. 260 146, 316, 343–9 Art. 260(2) 64, 68, 344, 345, 346–8 Art. 260(3) 344, 346–8 Art. 262 140, 146 Art. 263 147, 160, 396–7, 398–401, 634

lxviii Table of Treaties, Instruments and Legislation Art. 263(1) 80–1, 396–7, 398–401, 413–4, 429, 730 Art. 263(2) 146, 397, 401–13, 414 Art. 263(3) 90 Art. 263(4) 60, 125, 147, 397, 402, 403, 407–8, 414–28, 730 Art. 263(5) 160, 424, 430–1 Art. 264 437–8 Art. 265 68, 80–1, 88, 146, 147, 396–7, 398–9, 416, 424, 428–30, 730 Art. 265(1) 146, 428 Art. 265(3) 147 Art. 267 15, 143, 146, 150–5, 157–68, 169, 178–83, 279 Art. 267(2) 164–6, 174 Art. 267(3) 162–4, 168, 175–7, 177–8, 258–9, 308–12 Art. 267(4) 181 Art. 268 147 Art. 269 146 Art. 271 730 Art. 272 147 Art. 274 143, 149–50, 162–4, 657 Art. 275 146 Art. 276 146 Art. 277 397, 430–1 Art. 279 172–3 Art. 281 139 Part Six, Title I, Chapter 1 (the institutions), Section 6 (European Central Bank) Art. 282 727 Art. 282(2) 728 Art. 282(3) 731–2, 733 Art. 283 728 Art. 283(2) 77, 713, 728, 731–2, 734–5 Art. 284(1) 732–6 Art. 284(2) 732–6 Art. 284(3) 88, 734 Part Six, Title I, Chapter 1 (the institutions), Section 7 (Court of Auditors) Art. 286 140 Art. 287(1) 89 Art. 287(3) 89 Art. 287(4) 89 Part Six, Title I, Chapter 2, Section 1 (legal acts of the Union) 47, 414–15 Art. 288 98–100, 187, 286–90, 303 Art. 288(3) 300, 302, 415 Art. 289 94 Art. 289(3) 100, 414–15 Art. 290(1) 52–3, 59–60, 100–1, 120, 126–7 Art. 290(2) 60, 100–1, 120, 121–2 Art. 290(3) 60, 100, 120 Art. 291 139 Art. 291(2) 100 Art. 291(3) 121–2 Art. 291(4) 100

Part Six, Title I, Chapter 2, Section 2 (procedures for the adoption of acts) Art. 293(1) 106, 112 Art. 294 103–4, 107–8 Art. 296(2) 375–7, 407 Art. 297(1) 98 Art. 297(2) 99 Art. 298 139 Part Six, Title I, Chapter 3 (Union’s advisory bodies), Section 1 (Economic and Social Committee) Art. 302 90 Part Six, Title I, Chapter 3 (Union’s advisory bodies), Section 2 (Committee of the Regions) Art. 305 89 Part Six, Title I, Chapter 4 (European Investment Bank) Art. 308 140 Part Six, Title II (financial provisions), Chapter 1 (own resources) Art. 311 112, 140, 141 Part Six, Title II (financial provisions), Chapter 2 (multiannual financial framework) Art. 312 112, 141 Art. 312(1) 89 Art. 312(2) 89 Part Six, Title II (financial provisions), Chapter 3 (annual budget) Art. 314 89 Art. 314(2) 61 Art. 314(5) 105 Part Six, Title II (financial provisions), Chapter 4 (implementation of budget and discharge) Art. 319(1) 89 Part Six, Title II (financial provisions), Chapter 5 (common provisions) Art. 322(1) 139 Art. 322(2) 140 Part Six, Title II (financial provisions), Chapter 6 (combating fraud) Art. 325 139 Part Six, Title III (enhanced cooperation) Art. 326 113 Art. 328 114 Art. 329 141 Art. 329(1) 114 Art. 329(2) 114 Art. 330 114 Art. 331 114, 115 Art. 332 141 Part Seven (general and final provisions) Art. 336 139 Art. 340(2) 147, 304–5, 306, 309, 397–8, 431–7 Art. 345 364–5, 1022 Art. 346 967 Art. 349 141 Art. 352 46, 47, 95, 97, 112, 141, 185, 214–19, 219–20, 402, 643

lxix Table of Treaties, Instruments and Legislation Art. 352(1) 214–17 Art. 352(2) 216 Art. 352(3) 216 Art. 352(4) 46, 216, 667 Lugano Convention (1988) 643–5 Maastricht Treaty (TEC amendments) Art. 109j(3) 25 Art. 280(3) 616–17 Maastricht Treaty/Treaty on European Union (TEUM) 2, 23–6 Title I (common provisions) Art. 3 24 Art. 4 24 Art. 6 24 Title VI (PJCCM) Art. 29 611 Art. 33 201 Art. 34(2) 583, 591–2 Art. 35 592 Art. 35(2) 583, 592 Art. 39 583 Declarations attached to Maastricht Final Act 13: role of national parliaments in the EU 25–6 Merger Treaty (1965) 14 Nice Treaty (2001) 3, 35–6, 181 Declaration 23 on the future of the Union 36 Declaration of the European Council noting that nothing in the TEU affected Irish military neutrality 36 Oporto Treaty (EEA) 30 Protocols annexed to the EC Treaty 16: acquisition of property in Denmark 26 20: Excessive Deficit Procedure (EDP) 719–20 Art. 1 717–18, 719–20, 737–8 21: convergence criteria 719–20 25: EMU – provisions relating to the United Kingdom 25, 26 26: EMU – provisions relating to Denmark 25, 26 29: asylum for nationals of Member States of EU 29–30 Protocols annexed to the Lisbon Treaty 1 on the role of national parliaments in the EU 127–9 Art. 1 127 Art. 2 127 Art. 3 129 Art. 4 127, 128–9 Art. 5 127 Art. 10 131–2 2 on the application of the principles of subsidiarity and proportionality Art. 2 362 Art. 5 362, 365–7

Art. 6 129 Art. 7(2) 130, 593 Art. 7(3) 131 Art. 8 90, 130 10 on permanent structured cooperation established by Art. 42 TEU 672 14 on the EuroGroup 732–6 15 on certain provisions relating to the United Kingdom 720 para. 4 720 16 on certain provisions relating to Denmark 720 para. 1 720 19 on the Schengen acquis integrated into the framework of the EU 28, 115–16, 486, 488–91 Art. 1 489 Art. 5 490–1 Art. 5(1) 489 20 on the application of certain aspects of Article 26 TFEU in relation to the United Kingdom and Ireland 486, 491, 496 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice 486, 491, 593–4 Art. 3(1) 491 Art. 3(2) 491 Art. 4 491 22 on the position of Denmark 492, 593–4 Art. 1 492 Art. 2 492, 594 Art. 4(1) 492, 594 Art. 4(2) 492, 594 Art. 5 671–2 26 on services of general interest 47 27 on the internal market and competition 695, 922 30 application of the principles of subsidiarity and proportionality (Amsterdam) 29 30 on the application of the Charter of Fundamental Rights to Poland and the United Kingdom 43, 229, 257–8 Art. 1(1) 257 Art. 1(2) 258 36 on transitional provisions Art. 3(2) 71–2 Art. 4 69 Art. 10 590–1 Art. 10(1) 592 Art. 10(2) 592 Art. 10(4) 594 Art. 10(5) 594 Social Protocol [repealed] 25, 26, 29 Protocols annexed to the TEU Article 40.3.3 of the Constitution of Ireland (abortion) 26 Protocols annexed to the TEU, EC, ECSC and EURATOM Treaties 9 role of national parliaments in the EU 29

lxx Table of Treaties, Instruments and Legislation Protocols annexed to the TEU and EC Treaty 3 application of certain aspects of Art. 14 EC to the United Kingdom and to Ireland 29 5 position of Denmark 29 7 institutions with the prospect of enlargement of the EU 34–5 Prüm Convention 116 Schengen I (1985) 24, 115, 486, 488 Schengen II (1990) (Implementing Agreement) (SIA) 24, 115, 486, 488 Art. 54 607–11 Arts. 92–119 625–6 Art. 94(3) 625–6 Arts. 109–110 625 SEA (1986) 2, 20–1 Art. 2 20–1, 79 Art. 3 2, 21, 81 Art. 30 (Title III) 20 Solemn Declaration on European Union (1983) 19 Statute of the Court of Justice (Protocol 11) Art. 20 151, 163 Art. 21 163 Art. 23 151 Art. 51 146, 147 Art. 56 148 Art. 61 148 Statute of the ESCB and ECB (Protocol 18) Art. 1 727, 729

Art. 2 731 Art. 7 731 Art. 9.1 731–2 Art. 10.2 730 Art. 11.1 731–2 Art. 11.2 731–2 Art. 11.3 731–2 Art. 11.4 731–2 Art. 12.1 728–9, 730 Art. 12.2 730 Art. 13 730 Art. 14.1 731–2 Art. 14.3 729 Art. 14.4 729 Art. 15.1 734 Art. 15.3 734 Art. 23 736–7, 639 Arts. 26–33 731–2 Arts. 28–30 731–2 Art. 35.1 730 Art. 35.6 730 TRIPS Agreement 648–9 UN Convention on the Rights of the Child 235 Art. 9(1) 245 Art. 10(1) 245 WTO Agreement (1994) 652–6

EU Legislation and Policy Documents Commission Communications An area of freedom, security and justice serving the citizen COM(2009) 262 358, 493 Better regulation for growth and jobs COM(2005)97 372 A citizens’ agenda – delivering results for Europe COM(2006)211 final 129 Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings [2009] OJ C45/7 1009 Communication initiating the second-stage consultation of management and labour on the prevention of sexual harassment at work SEC(97)568 final 560 Development of standardisation: action for faster technical integration in Europe COM(90)456 696 European renewal in the field of freedom, security and justice: Action Plan (2005) 101 European Transparency Initiative: a framework for relations with interest representatives

(Register and Code of Conduct) COM(2008)323 377 Free movement of workers: achieving the full benefits and potential COM (2002)694 482 General principles and minimum standards for consultation of interested parties by the Commission COM(2002)704 374–5, 378–9 General Programme on the removal of technical obstacles to trade [1969] OJ C76/1 696 Green Paper on agricultural product quality: product standards, farming requirements and quality schemes COM(2008)641 377 Green Paper on confronting demographic change: a new solidarity between the generations COM(2005)94 final 553–4 Green Paper on the development of the single market for postal services COM(91)476 1039 Green Paper on equality and non-discrimination in an enlarged European Union COM(04)379 final 537, 569–70

lxxi Table of Treaties, Instruments and Legislation Green Paper on European transparency initiative COM(2006)194 379 Green Paper on European transparency initiative – follow-up COM(2007) 377, 378 Green Paper on services of general interest COM(2003)270 final 1035, 1036–7 Mutual recognition of final decisions in criminal matters COM(2000)495 594 On an EU approach to managing economic migration COM(2004)811 494 On the application of Directive 2003/86/ EC on the right to family reunification COM(2008)610/3 516, 517 On a Community immigration policy COM(2000) 757 494 On impact assessment COM(2002)276 383–4 On incorporating equal opportunities for women and men into all Community policies and activities COM(96)67 final 577 Proposal for a Council Decision on requesting comparisons with EURODAC data by Member States’ law enforcement authorities and Europol for law enforcement purposes COM(2009)344 final 500 Proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin COM(1999)566 572 Proposal for a Directive amending Directive 97/67/ EC concerning the full accomplishment of the internal market of Community postal services COM(2006)594 final 1044 Proposal for a Directive on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment COM(2007)637 495 Proposal for a Directive on patients’ rights in cross-border health care COM(2008)414 final 820–3 Art. 5 823 Art. 5(1)(g) 822 Art. 6 822 Art. 7 821–2 Art. 8 821–2 Proposal for a Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person COM(2008)820 508 Prospective study on the impact on universal service of the full accomplishment of the postal internal market in 2009 COM(2006) 596 final 1044–5 Recommendation 84/635 on the promotion of positive action for women [1984] OJ L331/34 548

Recommendation 92/131/EEC on the protection of the dignity of women and men at work [1992] OJ L49/1 560 Recommendation 2008/390 on the BEPG for the Community and the Member States [2008] OJ L137/13 741–2 Relations with the complainant in respect of infringements of Community law (2002) 342–3 Report on the activities of the EURODAC Central Unit COM(2009)494 499 Report on the application in 2008 of Regulation 1049/2001 386 Report on the application of the Postal Directive COM(2002)632 final 1044 Report on the application of the principle of mutual recognition in the single market COM(2002)419 final (Second Biennial) 887 Report based on Article 10 of Framework Decision on combating trafficking in human beings COM(2006)187 615 Report on the Evaluation of the Dublin System COM(2007)299 508 Report on the functioning of Regulation 1/2003 COM(2009)206 final 950–1 Report on migration and integration (third) COM(2007)512 493 Report on the public consultation on the Green Paper on SGIEs SEC(2004)362 1034 n.56, 1038 n.70 Report on the right to vote and to stand as a candidate in elections to the European Parliament COM(2007)846 final 480 Report on the right to vote and to stand as a candidate in municipal elections to the European Parliament COM(2005)382 final 1035 Report to the European Parliament and Council on the application of Directive 94/80/EC on the right to vote and stand as a candidate in municipal elections COM(2002)260 final 481 Report to the Laeken European Council – services of general interest COM(2001)598 1035 Reports on competition policy 933, 935–6, 952 Services of general interest in Europe (SGIEs) [2001] OJ C17/4 Annex II 1030 Services of general interest including social services of general interest: a new European commitment COM(2007)725 final 1036 Simplifying the regulatory environment: A strategy for implementing the Community Lisbon programme COM(2005)535 372–3 Simplifying the regulatory environment: third progress report COM(2009)19 373 A single market for 21st century Europe COM(2007)724 final 1038 Staff working document SEC(2007)173 698–9 The state of the internal market in services COM(2002)441 final 785, 825

lxxii Table of Treaties, Instruments and Legislation Strategic review of better regulation in the EU (third) COM(2009)15 373 Towards an area of freedom, security and justice COM(98)459 589–90 White Paper on completing the single market COM(85)310 696 White Paper on damages actions for breach of the EC antitrust rules COM(2008)165 956–7 White Paper on European governance COM(2001)428 66, 379, 382, 383–4 White Paper on modernisation of the rules implementing Articles [101 TFEU] and [102 TFEU] [1999] OJ C132/1 943 White Paper on productivity and enterprise – a world class competition regime Cm 5233 (2001) 952 Wider Europe – neighbourhood: a new framework for relations with our eastern and southern neighbours COM(2003)104 final 637 Work Programme for 2002 for the implementation of the Framework Strategy on gender equality SEC(2001)773 final 578 Commission Decisions Dec. 69/71/EEC authorising the sale of butter at reduced prices 233 Dec. 96/239/EC of 27 March 1996 on emergency measures to protect against bovine spongiform encephalopathy [1996] OJ L78/47 60 Dec. 2000/407/EC relating to gender balance within the committees and expert groups established by it [2000] OJ L154/34 578 Dec. 2002/3455/EC reducing financial assistance from the European Social Fund 412 Dec. 2003/245/EC MAGP IV objectives [2003] OJ L90/48 403 Dec. on the terms of reference of hearing officers in certain competition proceedings [2001] OJ L162/21 931 Commission Declarations On the adoption of the comitology decision [1999] OJ C203/1 119 Commission Guidelines On the effect on trade concept contained in Articles 81 and 82 of the Treaty [2004] OJ C 101/81 967 On impact assement SEC(2009)92 383–4 On the method of setting fines [2006] OJ C210/2 933–5 On vertical restraints [2000] OJ C291/1 964 Commission Notices Leniency Notice (2006) 936–7 On agreements of minor importance which do not appreciably effect competition under Article 81(1) of EC Treaty [2001] OJ C368/13 102, 967 On the application of the competition rules to the postal sector and on the assessment of certain state measures relating to postal services [1998] OJ C39/2 1043

On cooperation between national competition authorities and the Commission in handling cases falling within the scope of Articles [101 TFEU] and [102 TFEU] [1997] OJ C313/1 942–3 On cooperation between national courts and the Commission in applying Articles [101 TFEU] and [102 TFEU] [1993] OJ C39/6 942–3 On cooperation within the network of competition authorities [2004] OJ C101/43 223, 924, 946–7 On immunity from fines and reduction of fines in cartel cases [2006] OJ C298/17 935–7 On informal guidance [2004] OJ C101/78 945 On the internal rules of procedure for processing requests for access 930 Commission Regulations (EC) Reg. 67/67 on block exemption of exclusive purchase agreements [1967] OJ L84/67 942 Reg. 1408/71 on the application of social security schemes to employed persons and their families moving within the Community [1971] OJ L149 821 Reg. 189/72 [1972] OJ L24/25 abolishing compensation applicable to colza and rape seed 413 Reg. 1983/83 on exclusive distribution [1983] OJ L173/1 995 Reg. 2790/1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices [1999] OJ L336/1 996–7 Reg. 1784/1999 on the European Social Fund [1999] OJ L213/5 578 Reg. 622/2008 amending Regulation 773/2004 as regards the conduct of settlement procedures in cartel cases [2008] OJ L171/3 938 Council Common Positions On the adoption of a Directive of the European Parliament and of the Council amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services 8 November 2007 1045 Council Decisions/Council and Parliament Decisions Dec. 70/243/ECSC, EEC, Euratom on the replacement of financial contributions from Member States by the Communities’ own resources [1970] OJ L94/19 14 Dec. 76/787/EEC on direct elections [1976] OJ L278/1 14, 81 Dec. 82/43/EC relating to the setting up of an Advisory Committee on Equal Opportunities for Women and Men [1982] OJ L20/35 547 Dec. 94/69/EC [1994] OJ L33/11 (Kyoto Protocol) 896

lxxiii Table of Treaties, Instruments and Legislation Dec. 95/553/EC regarding protection for citizens of the European Union by diplomatic and consular representations [1995] OJ L314/73 483 Dec. 96/664/EC on the adoption of a multiannual programme to promote the linguistic diversity of the Community in the information society [1996] OJ L306/40 97 Dec. 98/701/JHA on common standards for filling in the residence permit for non-EU nationals [1998] OJ L333/8 591 Dec. 99/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission [1999] OJ L184/23 as amended by Decision 2006/512 [2006] OJ L200/11 117–20, 121–2 Art. 2 117–18 Art. 3 118 Art. 4 118–19 Art. 5 119–20 Art. 5a(3) 120 Art. 5a(4) 120 Art. 8 120 Dec. 1999/436/EC determining the legal basis for each of the provisions or decisions which constitute the Schengen acquis [1999] OJ L176/19 489 Dec. 2000/365/EC concerning the request of the United Kingdom to take part in some of the provisions of the Schengen acquis [2000] OJ L131/43 499 Dec. 2000/383/JHA on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro [2000] OJ L140/1 as amended by Framework Decision 2001/888/ JHA [2001] OJ L329/3 613–16 Dec. 2000/750 establishing a Community Action Programme to combat discrimination [2000] OJ L303/23, Recital 5 541 Dec. 646/2000/EC adopting a multiannual programme for the promotion of renewable energy sources in the Community [2000] OJ L79/1 896 Dec. 2001/220/JHA on the standing of victims in criminal proceedings [2001] OJ L82/1 300 Dec. 2001/413/JHA combating fraud and counterfeiting of non-cash means of payment [2001] OJ L149/1 613–16 Dec. 2001/500/JHA on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime [2001] OJ L182/1 613–16 Dec. 2002/ 475/JHA on combating terrorism [2002] OJ L164/3 as amended by Framework Decision 2008/919/JHA [2008] OJ L 613–16

Dec. 2002/192/EC concerning the request of Ireland to take part in some of the provisions of the Schengen acquis [2000] OJ L64/20 499 Dec. 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1 597–607 Art. 1(1) 597 Art. 2(2) 597–9, 601–2 Art. 2(4) 597–8 Art. 3 598 Art. 4(2) 598 Art. 4(3) 598 Art. 4(4) 598 Art. 4(5) 598 Art. 4(6) 598 Art. 4(7) 598 Art. 17(2) 597 Art. 17(3) 597 Art. 19 597 Dec. 2002/629/JHA on combating trafficking in human beings [2002] OJ L203/1 613–16 Dec. 2002/682/EC, Euratom adopting the Council’s Rules of Procedure [2002] OJ L230/7 68, 73–4, 78 Dec. 2002/772/EC, Euratom amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage [2002] OJ L283/1 82 Dec. 1600/2002/EC laying down the Sixth Community Environment Action Programme [2002] OJ L242/1 358 Dec. 2003/568/JHA on combating corruption in the private sector [2003] OJ L192/54 613–16 Dec. 2004/68/JHA on combating the sexual exploitation of children and child pornography [2004] OJ L13/44 613–16 Dec. 2004/257/EC adopting the Rules of Procedure of the European Central Bank [2004] OJ L80/33 732 Dec. 2004/526/EC adopting the Rules of Procedure of the General Council of the European Central Bank [2004] OJ L230/61 732 Dec. 2004/752/EC establishing the European Union Civil Service Tribunal [2004] OJ L333/7 149 Art. 18(4) 407 Dec. 2004/757/JHA laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking [2004] OJ L335/8 613–16 Dec. 2004/927/EC providing for certain areas covered by Title IV of the EC Treaty to be governed by the procedure laid down in Article 251 EC [2004] OJ L396/45 487 Dec. 2005/214/JHA on the application of the principle of mutual recognition to financial penalties [2005] OJ L76/16, Art. 5 598

lxxiv Table of Treaties, Instruments and Legislation Dec. 2005/222/JHA on attacks against information systems [2005] OJ L69/67 613–16 Dec. 2005/667/JHA to strengthen the criminal law framework for the enforcement of the law against ship-source pollution [2005] OJ L255/164 613–16 Dec. 2006/512/EC amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission [2006] OJ L100/11 117–20 Dec. 2006/783/JHA on the application of the principle of mutual recognition of confiscation orders [2006] OJ L328/59, Arts. 4–6 598–9 Dec. 2006/960/JHA on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union [2006] OJ L386/89 619–20 Art. 1(4) 620 Art. 3(4) 620 Art. 4(4) 620 Art. 5(1) 620 Art. 10(1) 620 Dec. 1672/2006/EC establishing a Community Programme for Employment and Social Solidarity [2006] OJ L315/1 578 Dec. 2007/5/EC, Euratom modifying the order in which the presidency of the Council will be held until 2020 73 Dec. 2007/533/JHA on the establishment, operation and use of the second generation Schengen Information System [2007] OJ L205/63 624 Dec. 573/2007/EC establishing the European Refugee Fund [2007] OJ L144/1 506 Dec. 574/2007/EC establishing the External Borders Fund [2007] OJ L144/22 506 Dec. 575/2007/EC establishing a European Return Fund [2007] OJ L144/45 506 Dec. 2008/203/EC implementing Regulation (EC) 168/2007 as regards the adoption of a Multiannual Framework for the European Union Agency for Fundamental Rights for 2007–12 [2008] OJ L63/14 265 Art. 4 266 Dec. 2008/841/JHA on the fight against organised crime [2008] OJ L300/42 613–16 Dec. 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law [2008] OJ L328/55 613–16 Dec. 2008/977/JHA on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters [2008] OJ L350/60 621 Art. 8 621 Art. 17(1) 621 Art. 17(2) 621

Dec. 2008/978/JHA on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters [2008] OJ L350/72 599 Dec. 2009/299/JHA amending Decision 2002/584/ JHA enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial [2009] OJ L81/24, Art. 4a(1) 598 Dec. 2009/371/JHA establishing the European Police Office (Europol) [2009] OJ L121/37 625 Art. 4 627 Art. 4(1) 627 Art. 6(1) 627 Art. 7(1) 627 Art. 12(2) 627 Art. 12(3) 627 Art. 14(1) 627 Art. 14(2) 627 Art. 14(3) 627 Council Declarations Community Charter of Basic Social Rights for Workers COM(89)568 final 537–8 On the occasion of the fiftieth anniversary of the signature of the Treaty of Rome (2007) 39 Council Directives/Council and Parliament Directives Dir. 64/221/EEC on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health [1963–64] OJ Spec. ED. (II)/402 286–7 Dir. 64/427/EEC laying down detailed provisions concerning transitional measures in respect of activities of self-employed persons in manufacturing and processing businesses 807 Dir. 68/151/EEC on coordination of safeguards [1968] OJ L65/8 295–6 Dir. 68/360/EEC [1968] OJ Spec. Ed. L257/13 494 Dir. 76/207 on the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [1976] OJ L39/40 (Equal Treatment Directive) 288–9, 573–4 Art. 294 572–3 Dir. 76/891/EEC on the approximation of the laws relating to electrical energy meters [1976] OJ L336/30 335 Dir. 77/93/EEC on protective measures against the introduction of harmful organisms of plants or plant products [1977] OJ L26/20 901 Dir. 77/388/ECC [1977] OJ L145/1 (Sixth VAT Directive) Art. 2 791

lxxv Table of Treaties, Instruments and Legislation Dir. 79/7/EC [1979] OJ L6/24 (Social Security Directive) 541 Dir. 79/112/EEC on the approximation of the laws relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer [1979] OJ L33/1 893 Dir. 79/409/EEC on the conservation of wild birds [1979] OJ L103/1 210, 895 Dir. 80/68/EEC on the protection of groundwater against pollution [1980] OJ L43/48 215 Dir. 80/987/EEC on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer [1980] OJ L283/23 301–4 Dir. 83/189 EEC laying down a procedure for the provision of information in the field of technical standards and regulations [1983] OJ L109/8 292–3 Dir. 85/337/EEC on environmental impact assessments [1985] OJ L175/40 291 Dir. 88/361/EEC for the implementation of Article 67 of the Treaty [1988] OJ L178/5 721–6 Annex 1 721–6 Dir. 89/48/EEC establishing a general system for the recognition of higher education diplomas awarded on completion of professional education and training of at least three years’ duration [1989] OJ L19/16 848–9, 853 Dir. 89/552/EEC on the coordination of certain provisions laid down by law concerning television broadcasting activities [1989] OJ L298/23 (Broadcasting Directive) 688 Dir. 89/622/EC on the approximation of the laws concerning the labelling of tobacco products [1989] OJ L359/1 701 Dir. 90/388/EC on competition in the markets for telecommunications services [1990] OJ L192/10 291–2 Dir. 90/425/EC concerning veterinary and zootechnical checks applicable in intraCommunity trade in certain live animals and products with a view to the completion of the internal market [1990] OJ L224/29 60 Dir. 91/155/EC on data sheets [1991] OJ L76/35 322 Dir. 91/156/EC on waste 97 Dir. 92/1/EC on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC [1992] OJ L209/25 848–9 Dir. 92/43/EC on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7 895 Dir. 92/85/EC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding [1992] OJ L348/1 548

Dir. 93/104/EC concerning the organisation of working time [1993] OJ L307/18 249–50 Dir. 93/109/EC on the right to vote and stand as candidate in municipal elections [1993] OJ L329/34 480 Dir. 94/19/EC on deposit guarantee schemes [1994] OJ L135/5 366–7 Dir. 94/33/EC on the protection of young people at work [1994] OJ L216/12 553–4 Dir. 94/62/EC on packaging and packaging waste [1994] OJ L365/10 167–8 Dir. 94/80/EC laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections [1994] OJ L368/38 480 Dir. 95/46/EC on the protection of individuals with regard to the processing of personal data [1995] OJ L281/31 250–1, 500 Dir. 96/92/EC concerning common rules for the internal market in electricity [1996] OJ L27/20 896 Dir. 97/33/EC on the principle of the Open Network Provision [1977] OJ L199/32 291–2 Dir. 97/67/EC on common rules for the development of the internal market of Community postal services [1998] OJ L15/14 (First Postal Directive) 1040–2 Art. 7 1042 Dir. 97/80/EC on the burden of proof in the cases of discrimination based on sex [1998] OJ L14/6 (Burden of Proof Directive), Art. 4 568 Dir. 98/37/EC on the approximation of the laws relating to machinery [1998] OJ L207/1 307, 752–4 Dir. 98/43/EC on advertising and sponsorship of tobacco products [1992] OJ L213/9 687–91 Dir. 98/44/EC on the legal protection of biotechnological inventions [1998] OJ L213/13 364–5 Dir. 99/31/EC on the landfill of waste [1999] OJ L182/1 209 Dir. 99/42/EC establishing a mechanism for the recognition of qualifications in respect of the professional activities covered by the Directives on liberalisation and transitional measures and supplementing the general system for the recognition of qualifications [1999] OJ L201/77 848–9 Dir. 99/70/EC concerning the framework agreement on fixed-term work [1999] OJ L175/43 289, 298–9, 538–40 Dir. 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22 (Race Directive) 549–51, 802 Recitals 1–3 538 Recital 6 550 Recital 9 537

lxxvi Table of Treaties, Instruments and Legislation Recital 13 556–7 Recital 18 563 Art. 1 546–7 Art. 2(1) 557–9 Art. 2(1)(b) 559 Art. 2(2) 558–9 Art. 2(3) 561 Art. 3(1) 570–1 Art. 3(1)(a)-(d) 543 Art. 3(1)(e) 570 Art. 3(1)(f) 570–1 Art. 3(2) 555–7 Art. 4 543, 562–3 Art. 5 573 Art. 8(1) 568 Art. 12 575 Art. 13 576 Art. 15 569 Dir. 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16 (Framework Directive) 297–8, 540–1, 551–3, 554–5 Recital 1 538 Recital 3 538 Recital 4 538 Recital 12 553–4, 556–7 Recital 23 563 Art. 1 547 Art. 2(1) 546–7 Art. 2(2)(a) 557–9 Art. 2(2)(b) 557–9 Art. 2(3) 561 Art. 2(5) 564 Art. 3 543 Art. 3(2) 555–7 Art. 4 543 Art. 4(1) 562–3 Art. 4(2) 564–5 Art. 4(3) 565 Art. 5 552–3 Art. 6(1) 565–7 Art. 7 573 Art. 9 567 Art. 9(2) 567 Art. 10 568 Art. 11 568 Art. 12 575 Art. 13 575 Art. 14 575 Art. 15 574 Art. 17 569 Dir. 2001/18/EC on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EC [2001] OJ L106/1 387–8, 702

Dir. 2001/23/EC on the approximation of laws relating to the safeguarding of employees’ rights in the event of transfers of undertakings [2001] OJ L82/16 290 Dir. 2001/44/EC on mutual assistance for the recovery of claims resulting from [certain agricultural claims] [2001] OJ L175/17 95–6 Dir. 2001/51/EC supplementing the provisions of Article 26 of the Schengen Implementation Agreement [2001] OJ L187/45 (Carrier Sanctions Directive) 502 Art. 2 502 Art. 3 502 Art. 4 502 Dir. 2001/83/EC on medicinal products for human use [2001] OJ L311/67 307 Dir. 2001/85/EC relating to special provisions for vehicles used for the carriage of passengers comprising more than eight seats in addition to the driver’s seat and amending Directives 70/156/EEC and 97/27/EC [2002] OJ L42/1 579 Dir. 2002/2/EC on the circulation and marketing of compound feeding stuffs for animals [2002] OJ L63/23 172–3 Dir. 2002/39/EC with regard to the further opening to competition of Community postal services [1998] OJ L15/14 (Second Postal Directive) 1040–2 Recital 14 1042 Recital 17 1042 Art. 7 1042 Dir. 2002/73/EC amending Council Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [2000] OJ L300/20 (Equal Treatment Directive) Art. 6 294–5 Dir. 2003/9/EC [2003] OJ L31/18 521–3 Dir. 2003/33/EC on advertising and sponsorship in respect of tobacco products [2003] OJ L152/16 691–2 Dir. 2003/86/EC on the right of family reunification for third-country nationals legally established in a Member State 471 Art. 3(1) 516 Art. 3(2) 516 Art. 4(1) 516-18 Art. 4(2) 516 Art. 4(3) 516 Art. 4(6) 516 Art. 6 517 Art. 7(1) 517 Art. 7(2) 517–18 Arts. 9–12 516 Art. 13 518

lxxvii Table of Treaties, Instruments and Legislation Dir. 2003/109/EC concerning the status of thirdcountry nationals who are long-term residents [2003] OJ L16/44 511 n.131 Preamble 515 Art. 3(2) 512 Art. 4(1) 512 Art. 5(1) 512–13 Art. 6(1) 513–14 Art. 7(1) 512 Art. 8 514 Art. 9(1)(a) 514 Art. 9(1)(b) 514 Art. 9(1)(c) 514 Art. 11(1) 514–15 Art. 11(4) 515–16 Art. 11(5) 515–16 Art. 12 513–14 Art. 12(1) 514 Art. 13 511–12, 515 Dir. 2004/17/EC coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors [2004] OJ L134 681, 1035 Dir. 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts [2004] OJ L134 681, 1035 Dir. 2004/38/EC [2004] OJ L158/77 (Citizenship Directive) 505 Recital 16 451 Art. 2(2) 465 Art. 2(2)(d) 465–6 Art. 3 466 Art. 3(2) 465 Art. 4(1) 464 Art. 5(2) 464, 474 Art. 5(5) 474 Art. 6(2) 464 Art. 7 449 Art. 7(1) 465 Art. 7(1)(b) 448–9 Art. 7(2) 465 Art. 7(3) 448 Art. 8(1) 474 Art. 8(3) 474 Art. 8(4) 451 Art. 8(5) 474 Art. 12(1) 467 Art. 12(3) 466–7, Arts. 12–13 466–7 Art. 13(1) 467 Art. 13(2) 466–7 Art. 14 449 Art. 14(1) 447 Art. 14(2) 451

Art. 14(3) 452 Art. 15 452 Art. 16 448–9 Art. 16(1) 448–9 Art. 16(2) 465 Art. 16(4) 448–9 Art. 17 448–9 Art. 23 465 Art. 24(1) 452–64, 465 Art. 24(2) 449, 458, 459 Art. 25 474–5 Art. 27(2) 476–9, 514 Art. 28(1) 479, 514 Art. 28(2) 478–9 Art. 28(3) 478–9 Art. 30 452 Art. 30(1) 476 Art. 30(2) 476 Art. 31 452 Art. 31(1) 476 Art. 31(3) 476 Art. 32(1) 478 Dir. 2004/82/EC on the obligation of carriers to communicate passenger data [2004] OJ L261/24 502 Dir. 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] OJ L304/12 525 n.203 Preamble 532 Art. 1 532 Art. 2(c) 525 Art. 2(e) 526, 530 Art. 2(h) 530–1 Art. 2(j) 521–2 Art. 3 532 Art. 4(3) 526 Art. 4(5) 526 Art. 5 521, 526 Art. 6 526 Art. 6(a) 526–7 Art. 6(b) 526–7 Art. 7(2) 524–5 Art. 8 522, 526–7 Art. 10 522 Art. 10(1) 527 Art. 11 527 Art. 11(1) 522–3 Art. 11(4) 522–3 Art. 11(a) 528 Art. 11(e) 528 Art. 12(2) 528 Art. 13(1) 521–2 Art. 13(3) 522

lxxviii Table of Treaties, Instruments and Legislation Art. 13(4) 522 Art. 14(1) 521–2 Art. 14(2) 521–2 Art. 14(3) 521–2 Art. 14(3)(b) 528 Art. 14(4)(a) 528 Art. 14(5) 521–2, 528 Art. 14(8) 522 Art. 15 522, 528–30 Art. 15(a) 529 Art. 15(b) 529 Art. 15(c) 528–30 Art. 16(1) 523 Art. 16(2) 524 Art. 17(1) 530 Art. 17(3) 530 Art. 18 522 Art. 20(3) 531 Art. 21 521, 531 Art. 23(1) 530–1 Art. 23(2) 530–1 Art. 23(4) 530–1 Art. 24(1) 531 Art. 24(2) 532 Art. 25(1) 531 Art. 25(2) 532 Art. 26(1) 532 Art. 26(4) 532 Art. 27(1) 531 Art. 27(2) 531 Art. 28 532 Art. 28(1) 532 Art. 29(1) 532 Art. 29(2) 532 Art. 29(3) 531 Art. 31 531 Art. 32 531 Art. 33(1) 532 Art. 33(2) 532 Art. 34 531 Dir. 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services [2004] OJ L373/37 541, 802 Art. 3 571–2 Dir. 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements [2005] OJ L255/11 617 Dir. 2005/36/EC on the recognition of professional qualifications [2005] OJ L255/22 849 Art. 2(1) 849 Art. 3(1) 849 Art. 3(1)(b) 849 Art. 4(1) 849 Art. 13(9) 849–50 Art. 14 850 Art. 16. 850–1 Art. 21 851

Art. 24(1) 851 Annex IV 850–1 Dir. 2005/60/EC on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing [2008] OJ L309/15 622 Art. 2(1) 622 Art. 4(1) 622 Dir. 2005/85/EC on minimum standards on procedures for granting and withdrawing refugee status [2005] OJ L326/13 403, 503 Art. 7(1) 519–20 Art. 25(2)(c) 519–20 Art. 27(2)(a) 520 Art. 27(2)(b) 520 Art. 29 520 Art. 30(1) 520 Art. 31(2) 520 Dir. 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC [2006] OJ L105/54 623 Dir. 2006/54 principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L204/23 (Equal Treatment Directive) 543 Recital 2 538 Recital 3 549 Recital 4 538 Recital 19 562 Art. 2 561 Art. 2(1) 546–7 Art. 2(2)(a) 557–9 Art. 2(2)(b) 559 Art. 8(a) 576 Art. 8(b)(3) 575 Art. 8(b)(4) 575 Art. 14(2) 543, 562–3 Art. 17(1) 568 Art. 18 569 Art. 30 575 Dir. 2006/111/EC on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings [2006] OJ L318/17 1021 Dir. 2006/123/EC on services in the internal market [2006] OJ L376/36 (Services Directive) 785, 823–8, 830, 867–9 Recital 33 824 Arts. 1–3 824 Art. 2 824 Art. 3(1) 824 Art. 5(1) 825 Art. 6 825

lxxix Table of Treaties, Instruments and Legislation Art. 7 825 Art. 8 825 Art. 9 867–8 Arts. 9–13 867–8 Art. 14 868 Art. 15 868 Art. 16 826–7 Art. 16(1)(b) 827 Art. 16(2) 826 Art. 17 824 Art. 18 828 Art. 22 827 Art. 24 827 Arts. 28–33 827–8 Art. 35 828 Art. 35(2) 828 Dir. 2008/6/EC amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services [2008] OJ L52/3 (Third Postal Directive) 1040–2, 1044–6, 1046–8 Art. 2 1044 Art. 3 1040–1, 1042, 1044 Art. 4 1041, 1042 Art. 7 1045 Art. 9(4) 1042 n.82 Art. 22 1046–7 Dir. 2008/99/EC on the protection of the environment through criminal law [2008] OJ L309/15 617 Dir. 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98 (Returns Directive) 491, 509–11, 618 Art. 2(2) 510 Art. 3(2) 509–10 Art. 5 509, 620 Art. 6(1) 509 Art. 6(4) 509 Art. 7(1) 510 Art. 7(2) 510 Art. 7(4) 510 Art. 8 620 Art. 8(1) 510 Art. 9 620 Art. 10 509, 620 Art. 11(1) 510 Art. 11(2) 510 Art. 12 620 Art. 13(1) 510 Art. 13(3) 510 Art. 15(1) 510–11 Art. 15(3) 511 Art. 15(5) 511 Dir. 2009/48/EC on toy safety [2009] OJ L170/1 696

Dir. 2009/52/EC providing for minimum sanctions and measures against employers of illegally staying third country nationals [2009] OJ L168/20 617–18 Dir. 2009/72/EC concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC 922 Dir. 2009/123/EC amending Directive 2005/35/ EC on ship-source pollution and on the introduction of penalties for infringements [2009] OJ L280/52 617 Council Legal Service Opinions. EU Council Doc. 11197/07 of 22 June 2007 188 Council Recommendations’ On the implementation of Member States employment policies [2004] OJ L326/47 578–9 Council Regulations/Council and Parliament Regulations Reg. 17/62 First Regulation implementing Articles [81 and 82] of the EC Treaty [1962] OJ L13/204 924, 934–5, 988 Art. 4(1) 942 Art. 9(1) 942, 972 Reg. 26/62 applying certain rules of competition to production of and trade in agricultural products [1959–62] OJ Spec. Ed. 129 967 Reg. 1612/68/ on free movement of workers within the Community [1968] OJ Spec. Ed. L257/2 308–11, 832 Art. 3(1) 839–40 Art. 7(2) 854, 855 Art. 7(3) 855 Art. 8 855 Reg. 907/73 establishing a European Monetary Cooperation Fund [1973] OJ L89/2 714 Reg. 857/84 adopting general rules for the application of the levyin the milk and milk products sector [1984] OJ L90/13 252–3 Reg. 3254/91 prohibiting the use of leghold traps in the Community and the introduction into the Community of pelts and manufactured goods of certain wild animal species originating in countries which catch them by means of leghold traps or trapping methods which do not meet international humane trapping standards [1991] OJ L308/1 632–3 Reg. 259/93 on the supervision and control of shipments of waste [1993] OJ L30/11 898 Reg. 40/94 on the Community trade mark [2004] OJ L70/1 147 Reg. 384/96 on protection against dumped imports from countries not members of the EC [1996] OJ L56/1 Arts. 7–9 64–6

lxxx Table of Treaties, Instruments and Legislation Reg. 2200/96 on the common organisation of the market in fruit and vegetables [1996] OJ L297/1 375–7 Reg. 1466/97 on the strengthening of the surveillance of budgetary positions [1997] OJ L209/1 717 n.4, 742 Reg. 1467/97 on speeding up and clarifying the implementation of the excessive deficit procedure [1997] OJ L209/6 717 Reg. 975/1999 laying down the requirements for the implementation of development cooperation operations which contribute to the general objective of developing and consolidating democracy [1999] OJ L120/1 262–3 Reg. 2157/1999 on the powers of the ECB to impose sanctions [1999] OJ L264/21 728 Reg. 2790/1999 on the application of Article 81(3) to categories of vertical agreements and concerted practices [1999] OJ L336/21 966 Art. 2(4) 965–6 Art. 3 965–6 Art. 11 965–6 Reg. 2725/2000 concerning the establishment of EURODAC for the comparison of fingerprints for the effective application of the Dublin Convention [2000] OJ L316/1 (EURODAC Regulation) 498–9 Art. 4 499 Art. 8 499 Art. 11 499 Reg. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12 643–5 Reg. 467/2001 specific restrictive measures against certain persons associated with Bin Laden etc. [2001] L139/9 406–7 Reg. 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement [2001] OJ L81/1 500–1 Reg. 1049/2001 regarding public access to European Parliament, Council and Commission documents [2001] OJ L145/43 385–94 Art. 2 386–9 Art. 4(1) 390 Art. 4(1)(a) 391 Art. 4(1)-(3) 394 Art. 4(2) 390, 392–3 Art. 4(3) 390, 392–3 Art. 4(5) 393–4 Art. 6(1) 386–7 Art. 6(2) 386–7 Art. 6(3) 386–8 Art. 6(4) 386–7 Art. 7 386–7

Art. 11 386 Art. 12 386 Art. 12(2) 393 Reg. 178/2002 laying down principles and requirements of food law, establishing the EFSA and laying down procedures in matters of food safety [2002] OJ L31/1 66 Reg. 1/2003 implementing Articles 81 and 82 of the EC Treaty [2003] OJ L1/1 910, 924, 941–51, 989, 992, 993 Recital 4 972 Recital 7 956 Recital 13 938 Recital 14 945 Recital 18 946–7 Art. 1 943, 972 Art. 3 943–4 Art. 3(2) 944 Art. 5 946, 972 Art. 6 972 Art. 7 64, 972 Art. 9 938 Art. 9(1) 937–8 Art. 10 945–6, 949 Art. 11 948–9 Art. 11(2) 948 Art. 11(3) 948 Art. 11(4) 948, 950 Art. 11(6) 948, 950 Art. 12 948–9 Art. 14 931 Art. 14(1) 937–8 Art. 14(5) 931 Art. 16 956 Art. 18 925–6 Art. 18(1) 925 Art. 19(1) 925 Art. 20 927–30 Art. 21 927–30 Art. 22(1) 949 Art. 23 64 Art. 23(1) 932–3 Art. 23(2) 972 Art. 23(3) 933, 965–6 Art. 23(5) 940 Art. 25(1) 976 Art. 27(1) 930–1 Art. 27(2) 930–1 Art. 27(3) 407 Art. 35(1) 946 Reg. 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national [2003] OJ L50/1 (Dublin Regulations) 507–8 Art. 3 507 Arts. 6–13 508

lxxxi Table of Treaties, Instruments and Legislation Reg. 1745/2003 on the application of minimum reserves [2003] OJ L250/10 728 Reg. 2004/2003 on the regulations governing political parties at European level and the rules regarding their funding [2003] OJ L297 82 Reg. 2065/2003 on smoke flavourings used or intended for use in or on foods [2003] OJ L309/1 692–3 Reg. 139/2004 (Merger Regulation) [2004] OJ L24/22 401, 922 Reg. 261/2004 providing for compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay to long-haul flights 164 Reg. 773/2004 [2001] OJ L 162/21 931 n.62 Reg. 2007/2004 establishing a European Agency for the management of operational cooperation at the external borders of the Member States of the European Union [2004] OJ L349 500 Reg. 2252/2004/on standards for security features and biometrics in passports and travel documents issued by Member States [2004] OJ L385/1 490–1 Reg. 980/2005/applying a scheme of generalised tariff preferences [2005] L169/1 262–3 Reg. 1055/2005/amending Regulation 1466/97/ EC on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies [2005] OJ L174/1 717, 738, 742 Reg. 1056/2005/on speeding up and clarifying the implementation of the excessive deficit procedure [2005] OJ L174/5 717 Art. 1(3) 738 Reg. 562/2006 establishing a Community Code on the rules governing the movement of persons across the borders (Schengen Borders Code) [2006] OJ L105/1 491, 500–3, 618 Preamble 501 Art. 4 500 Art. 5(1) 500–1, 510 Art. 5(1)(b) 501 Art. 5(1)(c) 501 Art. 5(1)(d) 501 Art. 5(1)(e) 501 Art. 5(4) 500 Art. 7 500 Art. 10 500 Art. 12 500 Art. 13 500 Art. 14 500 Art. 21 496–7 Reg. 1922/2006 on establishing a European Institute for Gender Equality [2006] OJ L43/9 547

Reg. 1987/2006 on the establishment, operation and use of the second generation Schengen Information System [2006] OJ L381/4 499 Reg. 168/2007 establishing a European Union Agency for Fundamental Rights [2007] OJ L53/1 as amended by Regulation 863/2007 establishing a mechanism for the creation of Rapid Border Intervention Teams [2007] OJ L199/30 265, 500 Art. 4(2) 266 Reg. 423/2007 concerning restrictive measures against Iran [2008] OJ L163/29 411, 632–3 Reg. 765/2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products [2008] OJ L218/30 700 Reg. 767/2008/concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas [2008] OJ L218/60 (VIS Regulation) 499 Art. 3(1) 500 Reg. 260/2009 on the common rules for imports [2009] OJ L84/1 632–3 Reg. 810/2009 on the Community Code on Visas [2009] OJ L243/1 491 Art. 2(2) 507 Art. 2(3) 507 Art. 5(1) 507 Art. 12(3) 514 Art. 21(1) 501–2 Art. 25 507 Art. 32(3) 502 Art. 32(5) 507 Reg. 1202/2009 imposing a definitive antidumping duty on imports of furfuryl alcohol originating in the People’s Republic of China [2009] OJ L323/48 632–3 Council Resolutions On the establishment of an exchangerate mechanism in the third stage of economic and monetary union [1997] OJ C236/5 736–7 On limitation on admission of third country nationals to the territory of the Member States for employment [1996] OJ C274/3 495 On renewable sources of energy [1998] OJ C198/01 896 On the Stability and Growth Pact [1997] OJ C236/1 401, 717 Inter-Institutional Agreements 2003 Better Law-making 62, 369–71 Joint Declarations Against racism and xenophobia [1986] OJ C158/1 549 On fundamental rights [2007] OJ C103/1 101 On practical arrangements for the co-decision procedure [2007] OJ C145/2 101, 108

lxxxii Table of Treaties, Instruments and Legislation On practical arrangements for the new co-decision procedure [1999] OJ C148/1 108 Miscellaneous Broad Economic Guidelines (Council) (BEPG) 712, 713, 719, 740–2 EC-Turkey Association Council, Decision 1/80 505 ECB–NCBs outside the Euro area, Agreement laying down the operating procedures for an exchange rate mechanism in EMU stage three [2006] OJ C73/9 736 European Court of Justice, Information Note on references from national courts for a preliminary ruling 151 European Pact on Immigration and Asylum (Council Doc. 13440/08) 495 European Parliament Resolution of 26 March 2009 on the White Paper on damages actions for breach of the EC antitrust rules P6-PROV (2009) 0187 958

House of Lords European Union Committee, The Treaty of Lisbon: An Impact Assessment (2008–10th Report, TSO) 40, 73, 76, 128–9, 632, 670 Joint Action 2004/551/CFSP [2004] OJ L245/17 672 Joint Action 2009/854/CFSP amending Joint Action 2005/889/CFSP on establishing a European Union Border Assistance Mission for the Rafah Crossing Point [2009] OJ L312/73 632–3 A Secure Europe in a Better World: European Security Strategy (12 December 2003) 657, 671 The Schengen Information System II (House of Lords European Union Committee, 9th Report, 2007) 625–6 The Stockholm Programme: an open and secure Europe serving and protecting the citizens, Council Doc. 17024/09 612

National Legislation and Policy Documents Austria Fixed Book Prices Law 780 Hospitals and Sanatoriums Law 883–4 Belgium Broadcasting Law 1987/1994 336 Commercial Practices Law 1971 1022–4 Education Law 1985 337–8 Income Tax Code 810 Internet sales legislation 781–2 Nutrients Decree 1992 883 Czech Republic Constitution 213, 221–2, 640–1 Art. 1(1) 222 Art. 9(2) 222 Art. 83 222 Denmark Agriculture Law 884–6 Beekeeping Law 895 Foodstuffs Law 1998 879 Order No. 397 of 2 July 1981 (returnable drinks containers) 771 Finland, Law prohibiting personal watercraft on waters other than general navigable waters 750 France Constitution 220 Labour Code 560–1

Law No. 63–628 of 2 July 1963 as amended by Order 86–1243 of 1 December 1986 on the prohibition of resale at a loss 773–6 Law No. 85–30 of 9 January 1985 on the development and protection of mountain regions 755–6 Law relating to fraud and falsification in relation to foodstuffs 1905 879–80, 887–8, 900 Germany Avoidance and Recovery of Packaging Waste Regulations 1991 and 1998 771–2 Basic Law 194–7, 198, 204–5, 221 Art. 1(1) 194 Art. 16(2) 226–7 Art. 20(1) 194 Art. 20(2) 194 Art. 23(1) 194 Art. 38(1) 194 Art. 79(3) 194 Beer Duty Law (BStG) 304–7, 767–9, 770 Carriage of Goods by Road Law (GueKG) 1018 Child Allowance Law 1964/1984 769–70 Income Tax Law 810 Medicinal Products Law 779–80 Protection of Employees against Sexual Harassment Act 1994 560–1 Spirits Monopoly Law 761–3, 765 Greece Bake-off Products Law 778

lxxxiii Table of Treaties, Instruments and Legislation Hungary Constitution, Art. 2(1) 226 Ireland Constitution 257, 257–9 Employment Act 1998 560–1 Italy Civil Procedure Code 726 Constitution 221 Gaming Machines Law 892 Highway Code 750–1 Law No. 1612/1960 on the legal recognition of the profession of customs agent 1018 Law No. 979/1982 laying down provisions for the protection of the sea 754–5 Law No. 428/1990 (provisions for the fulfilment of obligations arising from Italy’s membership of the Community) 329 National Health Service Law 725–6 Packaging and Labelling of Deep Frozen Bread Law 777–8 Public Security Laws 881 Sale of Grated Cheese Law 780–1 Luxembourg Social Insurance Code 816 Malta Constitution 257

Netherlands Commodities Law 898–900 Criminal Code 615 Law on Cold-calling 793 Plant Protection Products Law 886–7, 888–90 Processing and Preparation of Meat Law 780 Regulation on Professional Associations 1993 968–9 Portugal Penal Code 615 Spain Civil Code 295–6 Constitution 202 n.26 Lotteries Law 809–10 Television Without Frontiers Law 810–11, 891 Sweden Alcoholic Beverages Marketing Law 779 Lotteries Law 280–3 United Kingdom Competition Act 1998 956 Customs Consolidation Act 1976 880 Merchant Shipping Act 1988 279–80 Race Relations Act 1976 569–70

Table of Equivalents

TREATY ON EUROPEAN UNION Lisbon Treaty numbers and their Amsterdam and Pre-Amsterdam equivalents (Amsterdam and Pre-Amsterdam is TEU unless specified otherwise) Lisbon

Amsterdam

Pre-Amsterdam

Lisbon

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

1

A

2 10 EC 5 EC 6 7

B 5 EC 3b EC F F.1

191(1) EC 191(1) EC

138a 138a

3, 5, 7, 8, 10 EC 189/190/192/197 EC 4 202/203/205 EC 211/214/217 EC

C, D 4, 4a. 5 EC 137, 138, 138b, 140 EC D 145, 146, 148 EC 155, 158, 161 EC

220/221/224 EC 11/11A EC 27A–27E, 40–40B, 43–45 3

164, 165, 168 EC

29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49

21 22 23 24 25 26 27 28

lxxxv

Amsterdam

Pre-Amsterdam

15 22 23 16 18 19 20 21 24 25

J.5 J.12 J.13 J.6 J.8 J.9 J.10 J.11 J.14 J.15

47 28 17

M J.18 J.7

281 EC 48 49

210 EC N O

311 EC 299(1) EC 51 52 53 314 EC

239 EC 227(1) EC Q R S 248 EC

C

11 12 13

J.1 J.2 J.3

14

J.4

50 51 52 53 54 55

lxxxvi Table of Equivalents

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION Lisbon Treaty numbers and their Amsterdam and Pre-Amsterdam equivalents (Amsterdam and Pre-Amsterdam is EC Treaty unless specified otherwise) Lisbon

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48

Amsterdam

Pre-Amsterdam

3 TEU 3(2)

C TEU 3(2)

6 153(2)

3c 129a

16 255 286

7d 191a 213b

12 13 17 18 19 20 21 22 14 15 23 24 25 26 27 135 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42

6 6a 8 8a 8b 8c 8d 8e 7a 7c 9 10 12 28 29 116 30 34 36 37 38 39 40 41 42 43 46 48 49 50 51

Lisbon

Amsterdam

Pre-Amsterdam

49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67

43 44 45 46 47 48 294 49 50 51 52 53 54 55 56 57 58 59 61 29 TEU

52 54 55 56 57 58 221 59 60 61 63 64 65 66 73b 73c 73d 73f 73i K.1 TEU

36 TEU 64(1) 33 TEU

K.8 TEU 73l(1) K.4 TEU

60

73g

62 63(1, 2), 64(2) 63(3, 4)

73j 73k(1, 2), 73l(2) 73k(3, 4)

65 31 TEU 31 TEU

73m K.3 TEU K.3 TEU

31 TEU

K.3 TEU

30 TEU 30 TEU 32 TFEU 70 71 72 73 74

K.2 TEU K.2 TEU K.4 TEU 74 75 76 77 78

68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94

lxxxvii Table of Equivalents

Lisbon

Amsterdam

Pre-Amsterdam

Lisbon

Amsterdam

Pre-Amsterdam

95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146

75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 95 96 96 97

79 80 81 82 83 84 85 86 87 88 89 90 92 93 94 95 96 98 99 100a 101 101 102

127 128 129 130 136

109p 109q 109r 109s 117

4 98 99 100 101 102 103 104 105 106 107 108 109 110

3a 102a 103 103a 104 104a 104b 104c 105 105a 106 107 108 108a

114 115

109c 109d

137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153(1, 3, 4, 5) 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172

118 118a 118b 118c 119 119a 120 121 122 123 124 125 126 127 128 129 129a 129b 129c 129d 130 130a 130b 130c 130d 130e 130f 130g 130h 130i 130j 130k 130l 130m 130n 130o

111(4)

109(4)

121(1), 122(2), 123(5) 123(3), 117(2) 124(1) 119 120 125 126

109j, 109k, 109l 109l(3), 109f(2) 109m(1) 109h 109i 109n 109o

147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198

173 174 175 176

130p 130r 130s 130t

182

131

lxxxviii Table of Equivalents

Lisbon

Amsterdam

Pre-Amsterdam

Lisbon

Amsterdam

Pre-Amsterdam

199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250

183 184 185 186 187 188

132 133 134 135 136 136a

221(2), (3) 222 223 224

165 166 167 168

131 133 177/178 179 180 181 181a

110 113 130u/130v 130w 130x 130y 130y

225 225a 226 227 228 229 229a 230 231 232 233 234 235

168a 168a 169 170 171 172 172 173 174 175 176 177 178

310

238

111(1, 3, 5) 302, 303, 304

109(1, 3, 5) 229, 230, 231

236 237 238 239 240

179 180 181 182 183

190(4, 5) 191(2) 192(2) 193 194 195 196 197(2)–(4) 198 199 200 201

138(3) 138(3) 138b 138c 138d 138e 139 140 141 142 143 144

241 242 243 244 245 8 112 113 246 247 248 249

184 185 186 187 188 4a 109a 109b 188a 188b 188c 189

204 205(1, 3) 206 207 208 209 210

147 148(1, 3) 150 151 152 153 154

202 202

145 145

250 251

189a 189b

253 254

190 191

213 215 216 217(2) 218(2) 219

157 159 160 161 162(2) 163

251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303

256 257/258/263 258(1), (2), (4) 259 260

192 193/194/198a 194(1), (2), (4) 195 196

lxxxix Table of Equivalents

Lisbon

Amsterdam

Pre-Amsterdam

Lisbon

304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331

262 263(2), (3), (4) 264 265 266 267 268/270 269

198 198a(2), (3), (4) 198b 198c 198d 198e 199/201a 200

272(1) 272(2–10) 273 271 274 275 276 277 278 279

203 203 204 202 205 205a 206 207 208 209

280

210

332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358

Amsterdam

Pre-Amsterdam

282 283 284 285 287 288 289 290 291 292 295 296 297 298 299(2)–(4) 306 307 308

211 212 213 213a 214 215 216 217 218 219 222 223 224 225 227 233 234 235

309 299(2)–(6) 312 313

236 227 240 247

Electronic Working Paper Series

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xci

1 European Integration and the Treaty on European Union CONTENTS 1 Introduction 2 Europe and the European Union (i) The idea of Europe (ii) The idea of ‘European union’

(ii) The Treaty of Amsterdam (a) The Area of Freedom, Security and Justice (b) Further supranational ‘democratisation’ (c) Differentiated integration

3 Early Development of the European Communities 7 Recasting the Borders of the European (i) From the Treaty of Paris to the Treaty of Union Rome 8 The Constitutional Treaty (ii) The EEC Treaty (i) The European Union Charter of (iii) De Gaulle and the Luxembourg Fundamental Rights and Freedoms and Accords the Treaty of Nice (iv) Emergence of two visions of political (ii) The Constitutional Treaty authority 9 The Lisbon Treaty (v) The early enlargements (i) The road to Lisbon 4 The Single European Act and Beyond (ii) The Treaty of Lisbon (i) Run-up to the Single European Act (a) Two treaties of equal value: the (ii) The Single European Act Treaty on European Union and the (iii) The road to Maastricht Treaty on the Functioning of the 5 The Treaty on European Union European Union (i) A tripartite institutional settlement (b) Enhancing the democratic (ii) The new competences credentials of the Union (iii) The quest for Union ‘democracy’ (c) Supranationalisation of the Union (d) Recasting the institutional setting 6 The 1990s: The Decade of Self-Doubt (iii) Ratification of the Lisbon Treaty (i) Ratification of the Treaty on European Union

1

Further reading

2 European Union Law

1 INTRODUCTION This chapter sets out the central features of the European integration process, which provides the historical and political context for EU law. It also introduces some of the central concepts, ideas and developments in EU law. Section 2 explores how all EU law is centred around an interplay between two central themes. The first is the addressing of many contemporary problems through a new form of transnational law. The second is the development of the ideals of Europe and European union. These ideals bestow a distinctive quality to the EU legal system and lay the ground for many of its debates. The European ideal conceives of Europe as the central place of progress, learning and civilisation, placing faith in humanity and her capacity to improve. Its dark side is its arrogance and its dismissal of ‘un-European’ ways of life or thought as violating these virtues. The idea of European union sets up a political community in competition with the nation-state but one, nevertheless, through which government policy is carried out. Section 3 considers the establishment of the three Communities, the European Economic Community (EEC), the European Coal and Steel Community (ECSC) and the European Atomic Energy Community (EURATOM), by the Treaties of Paris and Rome. It sets out the central institutions: the Commission, the Parliament, the Council and the Court of Justice. It also considers the central policies established by these institutions, most notably the common market. This section also compares two developments of the 1960s that set out the two dominant models of political authority in EU law. In 1966, the Luxembourg Accords were agreed. This provided all national governments with a veto over the adoption of any law. The model was an intergovernmental one, with political authority and democracy vested in the nation-state. In 1963, in Van Gend en Loos, the Court of Justice declared that the EC Treaty constituted a new sovereign legal order for the benefit of its citizens. The model was a supranational one, in which authority is vested not in national institutions but the rights of European citizens. Section 4 considers how, after a period of stagnation, European integration regained momentum with the adoption of the Single European Act (SEA) in 1986. This established the internal market: an area without internal frontiers in which there is free movement of goods, services, persons and capital. It also unlocked the decision-making processes by allowing for significant amounts of legislation to be adopted free from the national veto. The European Parliament was granted significant legislative powers for the first time. Section 5 considers the Maastricht Treaty and the Treaty on European Union (TEU). The central mission of this treaty, signed in 1991, was to establish an economic and monetary union. However, it also established a three pillar structure. The first pillar, the EC Treaty, was dominated by supranational features, whilst the other two pillars, the Common Foreign and Security Policy and Justice and Home Affairs, were dominated by intergovernmental procedures. The TEU formalised a large number of new EU competences. It also significantly extended majority voting and the powers of the European Parliament. Section 6 considers the Treaty of Amsterdam. Convened to deal with unfinished business from Maastricht, it was the first treaty to address increasingly popular antipathy against the European integration process. Its central policy was the establishment of the area of freedom, security and justice. The main features of this were the abolition of internal border controls between all Member States other than the United Kingdom and Ireland; the establishment of a common supranational immigration and asylum policy; and police cooperation and judicial cooperation in criminal policy. The Treaty made majority voting the dominant procedure. It also began to

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introduce national safeguards, most notably limited rights for national parliaments and a detailed Protocol on the subsidiarity principle, the principle which governs when the Union, acting within its competences, is better equipped to legislate than the Member States. This principle provides that the European Union should only act when Member States cannot realise their objectives acting unilaterally and by reason of the nature or scale of the action, these objectives are better realised through Union action. Section 7 considers the enlargement of the European Union. Initially agreed between six states, the Union had grown to fifteen Member States by the mid-1990s. Almost all were prosperous and almost all came from Western Europe. The 2004 and 2007 accessions brought the number of Member States to twenty-seven with most of the new states being from Central and East Europe and having a post-communist past. This has made the Union a genuinely pan-European organisation but it has made it much more heterogeneous, posing new preferences and challenges, and raising the question of whether it is possible to have a ‘one size fits all’ EU law. Section 8 considers the processes that were tried to deal with the challenges of a lack of popular enthusiasm for the Union and of enlargement. In 2000, the Treaty of Nice was agreed. This agreed limited institutional reforms to deal with the anticipated enlargements. These were perceived as insufficient. A suggestion was made to debate a wide-ranging recasting of the institutional settlement in open session by a Convention made up not just of national governments and the Commission, but also MEPs and national parliamentarians. It was to be approved by referendums across a number of Member States. This process led to the Constitutional Treaty in 2004. This was, however, rejected by referendums in the Netherlands and France. Section 9 considers the Treaty of Lisbon, which was an attempt to rescue the process of institutional reform following the collapse of the Constitutional Treaty. The Lisbon Treaty recasts the Treaties around two treaties, the Treaty on European Union and the Treaty on the Functioning of the European Union (TFEU). Whilst special institutional arrangements are made for foreign and defence policy, all other policies are brought within a supranational framework. The Lisbon Treaty increases the powers of the Parliament and the Court of Justice and increases the areas subject to majority voting. It also introduces new safeguards to protect national autonomy. The competences of the Union are catalogued. The powers of national parliaments are increased. The subsidiarity principle is strengthened and a new principle of non-violation of national constitutional identities is established.

2 EUROPE AND THE EUROPEAN UNION This book is about the European Union. The European Union is, amongst other things, a legal system established to deal with a series of contemporary problems and realise a set of goals that individual states felt unable to manage alone. That idea is conveyed by the word ‘Union’. However, one can have a union of many things and actors. The distinctive feature of the European Union is that it claims to be a union that is European. Its mission is to lay claim to the development of the European ideal and the European heritage. The opening words of the Preamble to the Treaty on European Union establishing the European Union state: RESOLVED to mark a new stage in the process of European integration undertaken with the establishment of the European Communities, DRAWING INSPIRATION from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law . . .

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Laying claim to the ideals of Europe and the European heritage is, of course, contentious. Some may disagree with these ideals or to the European Union claiming ownership of them. Yet if one is to understand EU law, one has to realise that at its core is a constant interplay between two agendas: the development of these ideals and the government of the problems of contemporary Europe. Elements of both permeate all the chapters of this book. In some areas, there is a tension, imbalance or dysfunction between the two. In other areas, each is being revised in the light of concerns provoked by the other. However, the balance is never static. It is constantly changing as political beliefs change, the European Union’s institutional settlement evolves and the challenges of the outside world alter. However, each development is not considered anew. They are considered in the light of a long legacy: be this the history of the European ideal, the institutional settlement of the European Union or a policy whose inception and development goes back many years. Different chapters of this book consider different legal problems and goals. Yet it is worth pausing at the beginning of the book to consider some of the central elements of this European inheritance, both to understand what it means to call something European and so that we know the sort of venture upon which the European Union is embarked. If discussion of the Ancient Greeks and Charlemagne seems rather removed from that of discussion of the single European market, it is, however, worth considering what broader vision of life that market is tapping into. Does it change anything by calling itself a European market and does it change anything that has emerged within a particular trajectory of European integration?

(i) The idea of Europe There is nothing fixed about the meaning of the term ‘Europe’. It has been used for a variety of purposes, often as a form of self-justification. Its roots, like many things, are curious. The first references to ‘Europe’ depict it as a woman and the sun. The most famous early reference to Europe is that found in Greek mythology. Europa was a Phoenician woman seduced by the Greek god Zeus to come from Lebanon to Crete.1 Europa was also, however, a Phoenician word that referred to the setting sun. From this, Europe was associated in Ancient Greece with the idea of ‘the West’. Originally used to designate the lands to the west of Greece, usage shifted as the Ancient Greek territorial centre of gravity changed with incursions into modern Turkey and Iran. In his wars, Alexander the Great used it to denote non-Persians and it became associated with the lands in Greece and Asia Minor (today’s Turkish Mediterranean coastline). Following this, the term was to lie largely dormant for many centuries. The Roman Empire and Christianity dominated in the organisation of political life, and neither had much use for the term. Europe re-emerged as an important political idea from the eighth century AD onwards. It was here that it began to acquire many of the associations that we currently make when we use the word ‘European’. In part, it became an expression of a siege mentality. The advance of Islam from the South and the East led to Europe being associated with resistance to the religion. An army of Franks, which fought against the Moors, was referred to as a ‘European army’.2 At this time Europe also became associated with the idea of Western Christianity. The Frankish Empire stretched across much of West Europe under the rule of Charlemagne in the ninth century AD. He styled himself the father of Europe and sought to impose a political 1 2

D. De Rougemont, The Idea of Europe (New York, Macmillan, 1965) 6–19. D. Lewis, God’s Crucible: Islam and the Making of Europe 570–1215 (New York, Norton, 2008).

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system across the region, based on communication between a large number of political and administrative centres. Alongside this, common economic practices were developed: shared accounting standards, price controls and a currency. Finally, he also sought to build a common Christian culture, which fostered learning, Christian morality, the building of churches and the imposition of a single interpretation of Christianity.3 These elements are all associated with a European identity. However, it was only from the twelfth century onwards that Europe was used to refer to a place whose inhabitants enjoyed a shared way of life based on Christian humanism, revolving around images of God and Christ portrayed as human.4 Alongside particular religious beliefs, Europe also became associated with a particular form of political economy, namely that of rural trade. Increasingly, the rural town became the centre of the local economy. Trade relations between towns expanded across Europe, so that from the fifteenth century onwards, trade flourished between the Italian ports in the south and Flanders in the North, in which the role of the merchant was pivotal. The final feature of this European region was the persecution of non-Christians, be they pagans or followers of other faiths, such as Judaism or Islam. Those whose conduct offended the central values of Christianity were also maltreated, such as heretics and homosexuals, as were those perceived as socially unproductive, in particular, lepers. Developments in the sixteenth and seventeenth centuries were to set out the dominant institutional context for the subsequent evolution of the European idea. The establishment of the modern nation-state consolidated power in centralised, impersonal bureaucracies and led to certain core policies, such as tax, law and order and foreign policy being the exclusive competence of these bureaucracies.5 This hegemony of the nation-state over political life led to Europe acquiring new associations in the eighteenth and nineteenth centuries. It became, increasingly, an ‘aesthetic category, romantic and nostalgic’, associated with utopian ideals. Authors such as Rousseau and Kant saw Europe as an expression of certain ideals: be it a social contract between nations or as a form of perpetual peace. Europe was also considered to represent a shared aesthetic tradition:6 be this a common form of high culture, institutionalised through the growth of elite tourism in Europe at that time, or that of a historical civilisation, distinguishing it from the New World and justifying its colonialism. The final twist came in the twentieth century and derives from the United States’ involvement in Europe. The role of the United States in two World Wars, the Cold War and in the regeneration of Europe after the Second World War heavily influenced European identity.7 The idea of Europe as a historically entrenched community has been reinforced in other ways. The other association has been of Europe as the Eastern borderlands of the United States. 3

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The most extensive exposition is to be found in R. McKitterick, Charlemagne: The Formation of a European Identity (Cambridge, Cambridge University Press, 2008). J. Le Goff, The Birth of Europe (Oxford, Blackwell, 2005) 76–80. C. Tilly (ed.), The Formation of Nation-States in Europe (Princeton, NJ, Princeton University Press, 1975); G. Poggi, The Development of the Modern State: A Sociological Introduction (Stanford, CA, Stanford University Press, 1978); M. Mann, ‘The Autonomous Power of the State: Its Origins, Mechanisms and Results’ (1984) 25 European Journal of Sociology 185; H. Spruyt, The Sovereign State and its Competitors: An Analysis of Systems Change (Princeton, NJ, Princeton University Press, 1994). A. Chebel d’Appollonia, ‘European Nationalism and European Union’ and J. Tully, ‘The Kantian Idea of Europe: Critical and Cosmopolitan Perspectives’ in A. Pagden (ed.), The Idea of Europe: From Antiquity to the European Union (Cambridge, Cambridge University Press, 2002). Recent examples of this tradition are Z. Bauman, Europe: An Unfinished Adventure (Cambridge, Polity, 2004); U. Beck, Cosmopolitan Europe (Cambridge, Polity, 2005). G. Delanty, Inventing Europe: Idea, Identity, Reality (Basingstoke, Macmillan, 1995) 115–55.

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For those reverting to market democracy after forty-five years of communism, a ‘return to Europe’ means a turn to the West and to values that are associated, unashamedly, with the United States, namely those of free markets and constitutional democracy. In today’s Western Europe, Europe has acquired an alternate meaning, in that its values are similar but different to those of the United States. Although there is a shared commitment to markets and constitutional democracy, these take a different form from those in the United States. There is an emphasis on the social market and on supposedly ‘European’ values, such as opposition to the death penalty, which are not present in the United States.

J. Habermas and J. Derrida, ‘February 15, or, What Binds Europeans Together: Plea for a Common Foreign Policy Beginning in Core Europe’ in D. Levy et al., Old Europe, New Europe, Core Europe: Transatlantic Relations after the Iraq War (London, Verso, 2005) 5, 10–12 . . . the spread of the ideals of the French revolution throughout Europe explains, among other things, why politics in both of its forms – as organizing power and as a medium for the institutionalization of political liberty – has been welcomed in Europe. By contrast, the triumph of capitalism was bound up with sharp class conflicts, and this fact has hindered an equally positive appraisal of free markets. That differing evaluation of politics and markets may explain Europeans’ trust in the civilizing power of the state, and their expectations for it to correct market failures. The party system that emerged from the French revolution has often been copied. But only in Europe does this system also serve an ideological competition that subjects the socio-pathological results of capitalist modernization to an ongoing political evaluation. This fosters the sensitivities of citizens to the paradoxes of progress. The contest between conservative, liberal and socialist agendas comes down to the weighing of two aspects: Do the benefits of a chimerical progress outweigh the losses that come with the disintegration of protective, traditional forms of life? Or do the benefits that today’s processes of ‘creative destruction’ promise for tomorrow outweigh the pain of modernity’s losers? In Europe, those affected by class distinctions, and their enduring consequences, understood these burdens as a fate that can be averted only through collective action. In the context of workers’ movements and the Christian socialist traditions, an ethics of solidarity, the struggle for ‘more social justice’, with the goal of equal provision for all, asserted itself against the individualist ethos of market justice that accepts glaring social inequalities as part of the bargain. Contemporary Europe has been shaped by the experience of the totalitarian regimes of the twentieth century and by the Holocaust – the persecution and annihilation of European Jews in which the National Socialist regime made the societies of the conquered countries complicit as well. Self-critical controversies about the past remind us of the moral basis of politics. A heightened sensitivity to injuries to personal and bodily integrity reflects itself, among other ways, in the fact both the Council of Europe and the EU made the ban on capital punishment a condition for membership.

Since the eighth century, the idea of Europe has thus been that it is a place where there are multiple political communities with a shared way of life. This way of life is based on a commitment to progress, civilisation, learning and culture. It is based on a belief in the value of humanity and humankind’s capacity to better itself and to resolve any problems. The hubristic nature of this indicates its dark sides. Europe historically posited itself as the centre of the world for all these things. It has been its job to civilise others, to spread progress or human values. There is also an intolerance of things ‘non-European’. For if they are not European, there is a chance

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that they do not represent the good things Europe represents. At its worst, this arrogance and intolerance has led to racism and colonialism, yet it is also present in the European integration process. Time and again, the sui generis nature or specialness of the process is emphasised as a form of particularly enlightened cooperation between nations. There is an assumption about the desirability of the policies, as otherwise why would so many states agree to them? There is also a concern, as we shall see, that the policies should always be the very best. Opponents of integration can, thus, often be dismissed as unreasonable or nationalistic (e.g. un-European). It may be, however, that they simply disagree with the policy or the procedure, or that they believe there exist other forms of value or life beyond the European ideal.

(ii) The idea of ‘European union’ Whilst related, the idea of European union has different associations from that of Europe. After all, many self-avowed Europeans oppose European union! Independent proposals for a ‘united Europe’ first emerged at the end of the seventeenth century. However, they were still firmly confederal in nature. Ultimate authority was vested in the state, with pan-European structures acting as little more than a fetter upon the autonomy of the states. In 1693, the English Quaker William Penn wrote An Essay Towards the Present and Future Peace of Europe. Penn suggested that a European Parliament should be established, consisting of representatives of the Member States. The primary purposes of this Parliament would be to prevent wars breaking out between states and to promote justice. A more far-reaching proposal was put forward by John Bellers in 1710. Bellers proposed a cantonal system based upon the Swiss model whereby Europe would be divided into 100 cantons, each of which would be required to contribute to a European army and send representatives to a European Senate. The first proposal suggesting a Europe in which the state system was to be replaced by a system within which there was a sovereign central body came from the Frenchman Saint-Simon. This proposal was published in a pamphlet in 1814, entitled Plan for the Reorganisation of the European Society. Saint-Simon considered that all European states should be governed by national parliaments, but that a European Parliament should be created to decide on common interests. This Parliament would consist of a House of Commons peopled by representatives of local associations and a House of Lords consisting of peers appointed by a European monarch. Saint-Simon’s views enjoyed considerable attention during the first part of the nineteenth century. Mazzini, the éminence grise of Italian nationalism, allied himself with Proudhon and Victor Hugo in declaring himself in favour of a United Europe. Yet, the nineteenth century represented the age of the nation-state and the relationship between that structure and that of a united Europe was never fully explored. The balance was altered by the First World War, which acted as a stimulus for those who saw European union as the only means both to prevent war breaking out again between the nation-states and as a means of responding to increased competition from the United States, Argentina and Japan. Most prominent was the pan-European movement set up in the 1920s by the Czech Count Coudenhove-Kalergi.8 This movement not only enjoyed considerable support amongst many of Europe’s intellectuals and some politicians, but was genuinely transnational, 8

N. Coudenhove-Kalergi, Pan-Europe (New York, Knopf, 1926). An excellent discussion can be found in C. Pegg, Evolution of the European Idea 1914–1932 (Chapel Hill, NC, University of North Carolina Press, 1983).

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having ‘Economic Councils’ both in Berlin and in Paris. During the 1920s, the idea of European unity received governmental support in the shape of the 1929 Briand Memorandum. This Memorandum, submitted by the French Foreign Minister to twenty-six other European states, considered the League of Nations to be too weak a body to regulate international relations, and proposed a European Federal Union, which would better police states, whilst not ‘in any way affect the sovereign rights of the States which are members of such an association’. This proposal, despite being strongly confederal in that it acknowledged the authority of the nation-states, was still regarded as too radical and received only a lukewarm response from the other states. A further shock, in the form of the Second World War, was needed to arouse greater governmental interest in the idea of a united Europe. The coming into being and development of first, the European Communities, followed by the European Union, are explored in greater depth in the rest of this chapter. It is useful to consider for a moment how the creation of this political organisation with law-making powers, with the idea of Europe as its justification and its purpose, changed the geo-political context in which the idea of Europe was formulated. On the one hand, the European Union has become an independent centre in its own right for the generation of understandings about Europe and European values and symbols. The European Union has, therefore, tried to replicate the symbols and tools of nationhood at a pan-European level, be it through the (re)discovery of European flags, anthems, Cities of Culture or common passports.9 This understanding of Europe, as a competing alternative to the nation-state, has been replicated by ‘Euro-sceptic’ groups, who see Europe as a centralised, monolithic entity which crushes local communities and self-government.10 On the other hand, the idea of European union has become a justification for national government policy, as the Union becomes a vehicle through which national governments pursue and articulate their understanding of the national interest. On such a view, Europe does not act as a competitor to the nation-state but, rather, as a vehicle through which nation-states articulate their understandings of themselves and their place in the world through asking themselves how European they are or how they relate to Europe.11 The extract below considers the case of Finland, in which the authors argue that by placing itself within the European Union many Finns were able to resolve a prior dichotomy about whether Finland was more ‘Western’ or more Russian.

M. Malmborg and B. Stråth, ‘Introduction: The National Meanings of Europe’ in M. Malmborg and B. Stråth (eds.), The Meaning of Europe (Oxford and New York, Berg, 2002) 1, 20 Finland’s national history has been characterized by a strong awareness of being either on the brink of Europe or on the margins of Russia or somewhere in between . . . Meinander traces two basic conceptions of Finnish national identity: the Fennoman that stresses the indigenous features of Finnish culture and sees Finland as a cooperative borderland between the West and Russia, and the liberal that

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C. Shore, Building Europe: The Cultural Politics of European Integration (London and New York, Routledge, 2000). A flavour is provided in M. Holmes (ed.), The Eurosceptical Reader (Basingstoke, Macmillan, 1996). For an extremely scholarly account of this see J. Diez Medrano, Framing Europe: Attitudes to European Integration in Germany, Spain and the United Kingdom (Princeton, NJ, Princeton University Press, 2003).

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is akin to the Russian zapadniki in the sense that it prescribes close integration with the Western and European cultures.12 For the Fennomans, Russia was in a cultural sense never outside Europe, but the feeling of standing at the edge of Europe was reinforced by the Russian revolution, the Finnish civil war and the foundation of the Soviet Union, which effectively precluded any acknowledgement of the eastern layers of Finnish identity. The Finnish notion of Europe became increasingly polarized not least due to the experiences of Finland being left very much alone in the Second World War. Forced into a policy of friendly neutrality with the Soviet Union after the war Finland rediscovered its role as a mediator between East and West. The Finns began to admit that Russia, even in its Soviet manifestation, was a part of European civilization. The accession to the EU in 1995 was supported by a feeling that the Finns had at last found an answer to two centuries of uncertainty and identity-searching. Finland had, as it were, ultimately found a synthesis of its two historical roles, to be both on the brink of Western Europe and serve as a bridgebuilder toward a Europe that stretched to include Russia and Slavonic Europe. EU membership implies both an improvement of national security and an emotional homecoming.

The idea of European union has thus come to carry three associations. First, it is associated with the establishment of a political community or tier of government in competition with that of the nation-state. Any Union policy, procedure or institution is thus always evaluated for its effects on the autonomy of national administrations. Secondly, it is associated with government policies that could not be secured by the nation-state alone (e.g. environment or trade liberalisation). They are, however, policies of the governments of the day and, inevitably, they will benefit some constituencies and disadvantage others.13 Opposition to European union is often therefore opposition to the government of the day or a dominant policy process. The third association is that European union provides a context for debates about the nature of the state and national identity. It acts as a point of comparison; but also, by joining the European Union, a state commits itself to a particular vision of political community. This vision of ‘what we are’ is always likely to be contentious.

3 EARLY DEVELOPMENT OF THE EUROPEAN COMMUNITIES (i) From the Treaty of Paris to the Treaty of Rome The origins of the current European Union lie in a crisis provoked by the establishment of the Federal Republic of Germany. In 1949, the Ruhr, then under the administration of the International High Commission, was due to be handed back to the Federal Republic, along with the Saar. French fears of emerging German industrial might were compounded by Germany’s increasing share of European steel production. The French response was a plan drafted by the

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H. Meinander, ‘On the Brink or In Between? The Conception of Europe in Finnish Identity’ in M. Malmborg and B. Stråth (eds.), The Meaning of Europe (Oxford and New York, Berg, 2002). N. Fligstein, Euro-Clash: The EU, European Identity, and the Future of Europe (Oxford, Oxford University Press, 2008), especially ch 8.

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French civil servant, Jean Monnet, which was known as the Schuman Plan, after the French Finance Minister, Robert Schuman.14

Robert Schuman, Declaration of 9 May 195015 Europe will not be made all at once or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity. The coming together of the nations of Europe requires the elimination of the age-old opposition of France and Germany. Any action which must be taken in the first place must concern these two countries. With this aim in view, the French Government proposes that action be taken immediately on one limited but decisive point. It proposes that FrancoGerman production of coal and steel as a whole be placed under a common High Authority, within the framework of an organisation open to the participation of the other countries of Europe. The pooling of coal and steel production should immediately provide for the setting up of common foundations for economic development as a first step in the federation of Europe, and will change the destinies of those regions which have long been devoted to the manufacture of munitions of war, of which they have been the most constant victims. The solidarity in production thus established will make it plain that any war between France and Germany becomes not merely unthinkable, but materially impossible. The setting up of this powerful productive unit, open to all countries willing to take part and bound ultimately to provide all the member countries with the basic elements of industrial production on the same terms, will lay a true foundation for their economic unification.

This Plan formed the basis of the Treaty of Paris in 1951, which established the ECSC.16 This Treaty entered into force on 23 July 1952 and ran for fifty years.17 It set up a common market in coal and steel, which was supervised by the High Authority, a body independent from the Member States and composed of international civil servants, which had considerable powers to determine the conditions of production and prices for coal and steel.18 The High Authority was, in turn, supervised by a Council, which consisted of Member State representatives. The Treaty of Paris was signed by only six states: the BENELUX States (Netherlands, Belgium and Luxembourg), Italy, France and Germany. The United Kingdom had been invited to the negotiations, but refused to participate, as it opposed both the idea of the High Authority and the remit of its powers.19 14 15

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W. Diebold, The Schuman Plan: A Study in International Cooperation (Oxford, Oxford University Press, 1959). European Parliament, Selection of Texts concerning Institutional Matters of the Community for 1950–1982 (Luxembourg, Office for Official Publications of the European Communities, 1982) 47. On the negotiations, see P. Gerbet, ‘The Origins: Early Attempts and the Emergence of the Six (1945–52)’ in R. Pryce (ed.), The Dynamics of European Union (London, Croom Helm, 1987); R. Bullen, ‘An Idea Enters Diplomacy: The Schuman Plan, May 1950’ in R. Bullen (ed.), Ideas into Politics: Aspects of European History 1880–1950 (London, Croom Helm, 1984). The ECSC expired on 23 July 2002. Decision of the representatives of the Member States meeting within the Council on the consequences of the expiry of the European Coal and Steel Community [2002] OJ L194/35. A good history is D. Spierenburg and R. Poidevin, The History of the High Authority of the European Coal and Steel Community: Supranationality in Operation (London, Weidenfeld & Nicholson, 1994). E. Dell, The Schuman Plan and the British Abdication of Leadership in Europe (Oxford, Clarendon, 1995); C. Lord, ‘“With But Not Of”’: Britain and the Schuman Plan, a Reinterpretation’ (1998) 4 Journal of European Integration History 23.

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In 1950, during negotiations for the Treaty of Paris, the Korean War began. The United States, perceiving an increased threat from Stalin’s Soviet Union, pressed for German rearmament and its entry into NATO, something which was inimical to the French.20 As a response, the French Defence Minister, Pléven, proposed a European Defence Community. There would be a European army under a European Minister of Defence, administered by a European Commissariat. Once again, Britain was invited to join, but it declined on the basis that it preferred an expansion of NATO to the establishment of a European Defence Community (EDC). Nevertheless, a treaty establishing the EDC was signed between the same six states which had signed the ECSC in 1952. However, the EDC failed. A less integrationist French government under Mendès-France assumed power and French reverses in South-East Asia made France wary about ceding military sovereignty. In 1954, the French National Assembly refused to ratify the treaty.21 The failure of the EDC marked a moment of considerable political fluidity. The BENELUX states were increasingly worried by the nationalist policies of the Mendès-France government in France, in particular, its attempt to upgrade bilateral relations with Germany. In 1955, the Belgian Foreign Minister, Henri-Paul Spaak, suggested that there should be integration in a limited number of sectors, notably transport and energy. This worried the Netherlands as it threatened to restrict its efficiencies, particularly in the transport sector. The Dutch government responded by reactivating the 1953 Beyen Plan, which proposed a common market that would lead to economic union. A meeting of foreign ministers was held in Messina, Italy, in 1955. The British were invited, in addition to the six ECSC Member States, but did no more than send a Board of Trade official. Despite considerable French scepticism, a Resolution was tabled, calling for an Intergovernmental Committee under the chairmanship of Spaak to be set up to examine the establishment of a common market. As a carrot to the French, it was agreed that this should be done in tandem with examining the possibility of integration in the field of atomic energy. British objections to the supranational elements required for a common market entailed that they were unable to participate in the project. The Spaak Report, published in 1956, laid the basis for the Treaty Establishing the European Economic Community (EEC Treaty). The Report made a pragmatic distinction between matters affecting the functioning of the common market, which would require a supranational decision-making framework and some supranational supervision of Member States’ compliance with their obligations, and more general matters of budgetary, monetary and social policy, which would remain within the reserved competence of the Member States. Where these policies had a significant effect on the functioning of the common market, however, Member States should endeavour to coordinate these policies. An intergovernmental conference (IGC) was convened in Venice, with the Spaak Report as the basis for negotiations. The result was the signing of the Treaties of Rome in 1957 between the Six: Germany,

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T. Schwartz, ‘The Skeleton Key: American Foreign Policy, European Unity, and German Rearmament, 1949–54’ (1986) 19 Central European History 369. On this ill-fated enterprise, see E. Fursdon, The European Defence Community: A History (London, Macmillan, 1980); R. Cardozo, ‘The Project for a Political Community (1952–4)’ in R Pryce (ed.), The Dynamics of European Union (London, Croom Helm, 1987); R. Dwan, ‘Jean Monnet and the Failure of the European Defence Community’ (2001) 1 Cold War History 141.

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France, Italy and the BENELUX states. Doubts about difficulties in French ratification led to two treaties being signed, one establishing the EEC, the other EURATOM. The treaties duly entered into force on 1 January 1958.22

(ii) The EEC Treaty The dominant aim of the EEC Treaty was the establishment of a common market. This can be divided into a number of different elements. The first was the customs union, which required the abolition of all customs duties or charges having equivalent effect on the movement of goods between Member States and the establishment of a common external tariff. Secondly, the common market extended beyond the customs union to include the ‘four freedoms’, so that restrictions on the movement of goods, workers, services and capital were also prohibited by the EC Treaty. Furthermore, a procedure was put in place for harmonising national laws whose differences were preventing the establishment and functioning of the common market. Thirdly, a competition policy was set up to ensure that private market barriers and cartels did not undermine the prohibition on state barriers. Fourthly, state intervention in the economy, such as that in the form of state aids and public undertakings, was closely regulated. Fifthly, Member States’ fiscal regimes on goods were regulated so that they could not discriminate against imports. Sixthly, a common commercial policy was established to regulate the Community’s trade relations with third states. Finally, provision was made for more general cooperation in the field of economic policy in order that broader economic policy-making did not disrupt the common market. A number of other policies were established. Arguably, the most famous is the Common Agricultural Policy. At the time, agriculture accounted for about 20 per cent of the European labour force and the memory of the severe deflation in the agricultural sector during the 1930s recession had led to considerable government intervention in the sector. A separate policy was, therefore, required in order to Europeanise the system of state intervention currently in place. A further policy included in the EEC Treaty was a common transport policy. As with agriculture, this required a separate heading due to the heavy intervention by states in their transport sectors. The EEC Treaty also contained a limited social policy, whose central feature was the establishment of a principle of equal pay for work of equal value for men and women.23 Finally, an association policy was included to provide for the economic and social development of dependent or formerly dependent territories of the Member States. The most remarkable feature of the EEC Treaty was the institutional arrangement set up to realise these objectives. There were four central institutions. The Commission, a body independent from the Member States, was responsible, inter alia, for proposing legislation and checking that the Member States and other institutions complied with the Treaty and any secondary legislation. The Assembly, later to develop into the European Parliament, was composed, initially, of national parliamentarians. It had the right to be consulted in most fields of legislative activity and was the body responsible for holding the Commission to account. The Council was 22

23

The literature on the negotiations is voluminous. See E. di Nolfo (ed.), Power in Europe? Britain, France, Germany, Italy, and the Origins of the EEC, 1952–1957 (Berlin and New York, de Gruyter, 1992); E. Serra (ed.), The Relaunching of Europe and the Treaties of Rome (Baden Baden, Nomos, 1989). C. Barnard, ‘The Economic Objectives of Article 119’ in T. Hervey and D. O’Keeffe (eds.), Sex Equality Law in the European Union (Chichester, John Wiley, 1996) 321, 322–4.

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the body in which national governments were represented. It had the power of final decision in almost all areas of EEC activity. It voted by unanimity or (in only a few areas initially) by a weighted form of voting, known as Qualified Majority Voting (QMV). Finally, the European Court of Justice was established to monitor compliance with the Treaty. Matters could be brought before it, not only by the Member States but also by the supranational Commission, or be referred to it by national courts.

(iii) De Gaulle and the Luxembourg Accords 1958 marked not only the coming into force of the Treaties, but also Charles de Gaulle becoming President of France.24 De Gaulle was well known for his opposition to the development of any supranational organisation and for his support for a Europe of nation-states, based upon intergovernmental cooperation. As early as 1961, De Gaulle attempted to subvert the supranational qualities of the EEC Treaty through the Fouchet Plan. This proposed a European Political Community whose remit would cover not only economic, but also political and social affairs. It would be based on intergovernmental cooperation, with each state retaining a veto. This failed to gain the support of the other Member States.25 Tensions were raised further in 1963 when De Gaulle vetoed the accession of the United Kingdom which, along with Denmark, Norway and Ireland, had applied for membership in 1961. Matters came to a head in 1965. The Commission had made three proposals: first, increased powers for the Assembly; secondly, a system of ‘own resources’ so that the Communities were financially independent and not dependent on national contributions; and finally, a series of financial regulations, which would allow the common agricultural policy to make progress. France favoured the third proposal, but was strongly opposed to the first two. The Commission insisted on a ‘package deal’, however, where Member States accepted either all or none. When negotiations broke down, the French walked out of the Council in June 1965, refusing to take part in further EEC business. De Gaulle came under considerable domestic criticism for this drastic move.26 Yet the Commission was also perceived as having adopted a very high-handed approach. The crisis was eventually defused in January 1966 in Luxembourg, but in a way that would cast a shadow over the development of the EEC for the next twenty years. The Luxembourg Accords, as they came to be known, were an ‘agreement to disagree’. If a Member State raised ‘very important interests’ before a vote in the Council was taken, it was agreed that the matter would not be put to a vote. In essence, it gave every Member State a veto in all fields of decision-making. Whilst this veto was developed at the behest of France, once in place it was subsequently deployed equally freely by all the Member States.27 ‘Very important interests’ were invoked at 24

25

26

27

An excellent overview of this period is N. Ludlow, The European Community and the Crises of the 1960s: Negotiating the Gaullist Challenge (Abingdon, Routledge, 2006). P. Gerbet, ‘The Fouchet Negotiations (1960–2)’ in R. Pryce, Dynamics of Political Union (London, Croom Helm, 1987); N. Ludlow, ‘Challenging French Leadership in Europe: Germany, Italy and the Netherlands and the Origins of the Empty Chair Crisis of 1965’ (1999) 8 Contemporary European History 231. On De Gaulle’s Europe see W. Loth (ed.), Crises and Compromises: The European Project, 1963–9 (Baden Baden, Nomos, 2001); C. Parsons, A Certain Idea of Europe (Ithaca, NY, Cornell University Press, 2003). W. Nicholl, ‘The Luxembourg Compromise’ (1984) 23 JCMS 35. For a modern perspective see J.-M. Palavret et al. (eds.), Visions, Votes and Vetoes: Reassessing the Luxembourg Compromise 40 Years On (Brussels, Peter Lang, 2006).

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every turn, even where the interest in question was insignificant.28 This chilled the legislative process.29 The Commission, aware of the need for the assent of all the Member States, became a passive body reluctant to generate controversy. Despite this, significant institutional developments did take place. At the signing of the Treaty of Rome, the Convention relating to Certain Institutions Common to the European Communities established a single Court and a single Assembly for the three Communities. In 1963, it was agreed that the other institutions, the Council and the Commission, should be merged, and this took place with the Merger Treaty in 1965.30 In 1970, the Communities were provided with their own budget and autonomous revenue stream with the Own Resources Decision.31 Finally, it was agreed in 1976 that there should be direct elections for the European Parliament.32 These were first held in 1979 and have since been held at five-year intervals.

(iv) Emergence of two visions of political authority The most significant development to take place during this time was, however, in the Court of Justice. For it was here that an alternate vision of political community – a supranational one – was first developed. It took place in Van Gend en Loos, arguably the most important decision ever given by that institution and one of the most revolutionary ever given by a court. The facts were arcane. Van Gend en Loos was charged an import duty on chemicals imported from Germany by the Dutch authorities. It considered this to be in breach of what is now Article 30 TFEU, which prohibits customs duties or charges having equivalent effect being placed on the movement of goods between Member States. It sought to invoke the provisions in legal proceedings before a Dutch tax court, the Tariefcommissie. The question for the Court of Justice was whether a party could invoke and rely on provisions of Community law in proceedings before a national court. The Court’s answer was that it could.33

Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1 The first question of the Tariefcommissie is whether Article [30 TFEU] has direct application in national law in the sense that nationals of Member States may on the basis of this Article lay claim to rights which the national court must protect. To ascertain whether the provisions of an international treaty extend so far in their effects it is necessary to consider the spirit, the general scheme and the wording of those provisions.

28

29

30 31 32 33

In 1985, they were invoked by Germany to prevent a 1.8 per cent decrease in the price of colza, a cooking oil grain. M. Vasey, ‘The 1985 Farm Price Negotiations and the Reform of the Common Agriculture Policy’ (1985) 22 CMLRev. 649, 664–6. Legislative progress has taken longer to agree, paradoxically, where there was no possibility of veto. The Accords effect seems to have been therefore mainly on the Commission’s willingness to make significant legislative proposals. J. Golub, ‘In the Shadow of the Vote? Decision Making in the European Community’ (1999) 53 International Organization 737. P.-H. Houben, ‘The Merger of the Executives of the European Communities’ (1965) 3 CML Rev. 37. Decision 70/243/EEC [1970] OJ English Spec. edn (I) 224. Decision 76/287/EEC [1976] OJ L278/1. Until 1979 it consisted of representatives of national Parliaments. Here we are concerned with what Van Gend en Loos tells us about European constitutional law in broad terms. The details of the Court’s rulings as regards supremacy and as regards direct effect are considered more fully in Chapters 5 and 7, respectively.

15 European Integration and the Treaty on European Union

The objective of the EEC Treaty, which is to establish a common market, the functioning of which is of direct concern to interested parties in the community, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting States. This view is confirmed by the preamble to the Treaty which refers not only to governments but to peoples. It is also confirmed more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects Member States and also their citizens. Furthermore, it must be noted that the nationals of the States brought together in the Community are called upon to cooperate in the functioning of this Community through the intermediary of the European Parliament and the Economic and Social Committee. In addition the task assigned to the Court of Justice under Article [267 TFEU]34 the object of which is to secure uniform interpretation of the Treaty by national courts and tribunals, confirms that the States have acknowledged that Community law has an authority which can be invoked by their nationals before those courts and tribunals. The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community.

There are two remarkable features about this terse, dense passage. The first is a claim about power. It is contained in the statement that: ‘the Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields’. This is a vision of the EU, legally at least, as a supranational organisation that exists not merely autonomously from the national legal orders but over and above them. For the Treaty has created not merely a legal order that is independent but also one claiming to be sovereign. And if legal sovereignty is understood to be a claim to ultimate legal authority then a reversal of traditional understandings of legal authority is being asserted. National legal systems no longer form the central building block for legal authority within Europe. Rather, legal authority flows from the Treaty with national legal systems having to adapt as sub-units to it. The second is a claim about the nature of political community within Europe. It lies in the justification: the Treaty exists to benefit not merely the governments but also the peoples of Europe. This characterises the EU legal community as a wider, more plural legal community than other international legal communities. If traditional international law governs mutual obligations between states, EU law recognises other subjects: private parties, be they EU citizens, non-EU nationals or corporations. These are to hold a direct relationship with EU law through its conferring both rights and obligations on them. It suggests that the constituent power of the 34

Article 267 TFEU (ex Article 234 EC) enables national courts and tribunals to refer questions of the interpretation of Community law to the Court of Justice. The relationships between national courts and the Court of Justice are considered in detail in Chapter 7.

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European Union resides at least in part in the peoples of Europe themselves. That constituent power may use the intermediary of the state to confer authority on the European Union, but it does not necessarily have to. The Court in Van Gend en Loos does not say this explicitly, but it clearly suggests that the founding myth of the European Union may be legally constructed so that the Union may be seen as an agreement between the peoples of Europe that binds their governments, and not simply as an agreement between the governments of Europe that binds its peoples. It is worth setting this vision alongside the vision of political community that was presented by De Gaulle, as they represent, in reality, the two poles between which European integration has been mediated. At a press conference on 15 May 1962, he declared: These ideas (supranationalism) might appeal to certain minds but I entirely fail to see how they could be put into practice, even with six signatures at the foot of a document. Can we imagine France, Germany, Italy, the Netherlands, Belgium, Luxembourg being prepared on matters of importance to them in the national or international sphere, to do something that appeared wrong to them, merely because others had ordered them to do so? Would the peoples of France, of Germany, of Italy, of the Netherlands, of Belgium, or of Luxembourg ever dream of submitting to laws passed by foreign parliamentarians if such laws run counter to their deepest convictions? Clearly not.35 It is too crude to see this view as an expression of nationalism for nationalism’s sake or an unwillingness to share power. At its heart is a vision that democracy rests upon certain social and political institutions and forms of political community which must have a certain pedigree and strength if democracy is to be sustained. Currently, these qualities exist only at the level of the nation-state. On such a view, supranationalism – be it decisions of the Court of Justice, majority voting by national governments or proposals by the Commission – is invariably a threat to democracy insofar as it limits the autonomy and power of these national institutions, and has insufficient institutions and forms of political community of its own to fall back upon.36 The tension between these two visions of political authority and political community permeate in an ongoing manner nearly every chapter of this book. In the 1960s and 1970s, the vesting of one vision, the Gaullist one, in the political institutions through the Luxembourg Accords, and another one, that of a pan-European political community, in the Court of Justice, led to a highly unfortunate dynamic.37 The Court gave a series of integrationist judgments, expanding its ‘constitutional’ jurisprudence, developing treaty-making powers for the Community, expanding the Treaty provisions on sex equality, the economic freedoms and the competition provisions. When juxtaposed with the inertia of the legislature, this led to the development of an unplanned deregulatory bias under which national policies were prohibited or tightly restricted by the Court, without there being any substitute EU legislation available to take their place.38 35

36

37

38

This can be found in D. Weigall and P. Stirk, The Origins and Development of the European Community (Leicester, Leicester University Press, 1992) 134. One of the most articulate and scholarly expositions of this is D. Miller, On Nationality (Oxford, Oxford University Press, 1995). On how this manifested itself institutionally see J. Weiler, ‘The Community System: The Dual Character of Supranationalism’ (1981) 1 YBEL 267. F. Scharpf, ‘Negative and Positive Integration in the Political Economy of European Welfare States’ in G. Marks et al., Governance in the European Union (London, Sage, 1996).

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Yet if this tension can give rise to difficulties, others have noted that within it lies the European Union’s uniqueness and genius: namely it has to confront these poles and resolve them in a way that creates a new type of legal authority and political community.

J. Weiler, ‘In Defence of the Status Quo: Europe’s Constitutional Sonderweg’ in J. Weiler and M. Wind (eds.), European Constitutionalism Beyond the State (Cambridge, Cambridge University Press, 2003) 19–22 There are, it seems to me, two basic strategies for dealing with the alien . . . One strategy is to remove the boundaries. It is the spirit of ‘come, be one of us’. It is noble since it involves, of course, elimination of prejudice, of the notion that there are boundaries that cannot be eradicated. But the ‘be one of us’, however well intentioned, is often an invitation to the alien to be one of us, by being us. Vis-à-vis the alien, it risks robbing him of his identity. Vis-à-vis oneself, it may be a subtle manifestation of both arrogance and belief in my superiority as well as intolerance. If I cannot tolerate the alien, one way of resolving the dilemma is to make him like me, no longer an alien. This is, of course, infinitely better than the opposite: exclusion, repression, and worse. But it is still a form of dangerous internal and external intolerance. The alternative strategy of dealing with the alien is to acknowledge the validity of certain forms of non-ethnic bounded identity but simultaneously to reach across boundaries. We acknowledge and respect difference, and what is special and unique about ourselves as individuals and groups; and yet we reach across differences in recognition of our essential humanity. What is significant in this are the two elements I have mentioned. On the one hand, the identity of the alien, as such, is maintained. One is not invited to go out and, say, ‘save him’ by inviting him to be one of us. One is not invited to recast the boundary. On the other hand, despite the boundaries which are maintained, and constitute the I and the Alien, one is commanded to reach over the boundary and accept him, in his alienship, as oneself. The alien is accorded human dignity. The soul of the I is tended to not by eliminating the temptation to oppress but by learning humility and overcoming it. The European current constitutional architecture represents this alternative, civilizing strategy of dealing with the ‘other’. Constitutional tolerance is encapsulated in that most basic articulation of its meta-political objective in the preamble to the EC Treaty . . .: ‘Determined to lay the foundations of an ever closer union among the peoples of Europe’. No matter how close the Union, it is to remain a union among distinct peoples, distinct political identities, distinct political communities. An ever closer union could be achieved by an amalgam of distinct peoples into one which is both the ideal and/or the de facto experience of most federal and non-federal states. The rejection by Europe of that One Nation ideal or destiny is . . . intended to preserve the rich diversity, cultural and other, of the distinct European peoples . . . [I]n the Community, we subject the European peoples to constitutional discipline even though the European polity is composed of distinct peoples. It is a remarkable instance of civic tolerance to accept being bound by precepts articulated not by ‘my people’ but by a community composed of distinct political communities . . . Constitutional actors in the Member States accept the European constitutional discipline not because, as a matter of legal doctrine, as is the case in the federal state, they are subordinate to a higher sovereignty and authority attaching to norms validated by the federal people, the constitutional demos. They accept it as an autonomous voluntary act, endlessly renewed on each occasion, of subordination, in the discrete areas governed by Europe, to a norm which is the aggregate expression

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of other wills, other political identities, other political communities. Of course, to do so creates in itself a different type of political community, one unique feature of which is that very willingness to accept a binding discipline which is rooted in and derives from a community of others. The Quebecois are told: in the name of the people of Canada, you are obliged to obey. The French or the Italians or the Germans are told: in the name of the peoples of Europe, you are invited to obey . . . This process operates also at Community level. Think of the European judge or the European public official who must understand that, in the peculiar constitutional compact of Europe, his decision will take effect only if obeyed by national courts, if executed faithfully by a national public official with whom he belongs to a national administration which claims from them a particularly strong form of loyalty and habit. This, too, will instil a measure of caution and tolerance.

(v) The early enlargements The United Kingdom was all too aware that the establishment of a common market left it economically isolated. Therefore, from 1956 onwards, it pushed for the establishment of a free trade area with other European States, which culminated in its setting up of the European Free Trade Area (EFTA) with Austria, Denmark, Norway, Sweden, Switzerland and Portugal in 1960. By 1961, however, states within the EEC were experiencing faster economic growth rates than Britain and the latter’s failure to prevent South Africa’s expulsion from the Commonwealth, following the Sharpeville massacres, brought home Britain’s relative decline on the international stage. As discussed earlier,39 the French President, De Gaulle, vetoed the British entry in 1963. Four years later, the United Kingdom, plus Ireland, Denmark and Norway, reapplied. The application was once again vetoed by De Gaulle. This use of the veto left France increasingly isolated and French policy changed in 1969 with the resignation of De Gaulle. The Six agreed in the Hague to open negotiations with the applicants, with a view to extending membership. The United Kingdom, Denmark and Ireland formally became members on 1 January 1973.40 However, following a referendum, where 53 per cent voted against membership, Norway did not accede to the EEC. The next state to join was Greece. Greece applied for membership in 1975, following its establishment of a democratic government. Accession was attractive for both parties. For the Greeks, accession was not only economically attractive, but symbolised modernisation and democratic stability. For the Member States, Greece was important geo-politically during the Cold War because of its strategic location in the Aegean. Membership was, therefore, seen as tying Greece more firmly to the West. The Greek Act of Accession was completed in 1979, with Greece becoming a Member in 1981. Like Greece, Spain and Portugal emerged from dictatorships and isolationism in the mid1970s. They made applications to join the Communities only two years after Greece, in 1977.

39 40

See p. 13. U. Kitzinger, Diplomacy and Persuasion: How Britain Joined the Common Market (London, Thames & Hudson, 1973); C. O’Neill, Britain’s Entry into the European Community, Report on the Negotiations of 1970–1972 (London, Frank Cass, 2000).

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Yet, accession was more problematic in their cases. Whilst both saw the Community as a fulcrum through which to achieve economic modernisation and end their relative international isolation, the size of the agricultural sector in Spain resulted in initial French resistance to entry due to the likely negative effects on the French agricultural sector. It was, therefore, not until 1985 that an Act of Accession was signed, with Spain and Portugal becoming Members in 1986.

4 THE SINGLE EUROPEAN ACT AND BEYOND (i) Run-up to the Single European Act The recession of the early 1980s led national governments to confront their relative economic decline and prompted a relaunch of the integration process, as a way of combating this decline. A Solemn Declaration on European Union was adopted by the Heads of Government in 1983. This proposed few concrete reforms, but declared that there should be a ‘renewed impetus’ towards completion of the internal market, in particular the removal of obstacles to the free movement of goods, services and capital.41 This Declaration occurred against the backdrop of a number of significant developments. 1983 marked the collapse of the Keynesian economic policies which had been adopted in France. This collapse led to some convergence between national governments that economic policy-making had to focus on ‘supply-side’ measures which stimulated competition and trade. Market integration did both, and therefore fitted this new consensus.42 Alongside this, since the 1970s, transnational pressure groups had begun to locate themselves in Brussels. The number of these groups expanded in the early 1980s, leading to the growth of an organised industrial constituency that was increasingly rallying for European solutions.43 From the early 1980s onwards, major industrialists mobilised through organisations such as the European Round Table (ERT) and UNICE. These groups lobbied aggressively across Europe, arguing for the completion of the common market as a means of promoting European competitiveness.44 Finally, direct elections had also produced a more aggressive European Parliament. Under the chairmanship of Alfiero Spinelli, it produced a draft Treaty on European Union, which proposed a fully federal Europe with common foreign, macro-economic and trade policies and a developed system of central institutions.45 41

42

43

44

45

For critical comment see J. Weiler, ‘The Genscher-Colombo Draft European Act: The Politics of Indecision’ (1983) 6 Journal of European Integration 129. On the convergence of national government preferences see K. Middlemas, Orchestrating Europe: The Informal Politics of European Union 1973–1995 (London, Fontana, 1995) 115–35; A. Moravcsik, The Choice for Europe: Social Purpose and State Power from Messina to Maastricht (Ithaca, NY, Cornell University Press, 1998) ch. 5; J. Gillingham, European Integration 1950–2003: Superstate or New Market Economy (Cambridge, Cambridge University Press, 2003) ch. 9. N. Fligstein and J. McNichol, ‘The Institutional Terrain of the European Union’ in W. Sandholtz and A. Stone Sweet (eds.), European Integration and Supranational Governance (Oxford, Oxford University Press, 1998) 59, 75–80; N. Fligstein and P. Brantley, ‘The Single Market Program and the Interests of Business’ in B. Eichengreen and J. Frieden (eds.), Politics and Institutions in an Integrated Europe (Berlin, Springer, 1995). W. Sandholtz and J. Zysman, ‘1992: Recasting the European Bargain’ (1989) 42 World Politics 95, 116; M. Cowles, ‘Setting the Agenda for a New Europe: The ERT and EC 1992’ (1995) 33 JCMS 527; Middlemas, above n. 42, 136–40. [1984] OJ C77/33. For comment, see R. Bieber et al., An Ever Closer Union: A Critical Analysis of the Draft Treaty Establishing the European Union (Luxembourg, Office for Official Publications of the European Communities, 1985).

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These developments all pressed towards further European integration, but were fragmented and uncoordinated. The final piece in the jigsaw fell into place with the appointment of a new Commission in late 1984, headed by the charismatic former French Finance Minister, Jacques Delors. Delors, in lobbying for the post, had already seized upon the goal of market unity as the principal task of the new Commission to be achieved by the end of 1992. In November 1984, he gave the national governments four choices for recapturing momentum: monetary policy, foreign policy and defence, institutional reform or the internal market.46 All agreed that the internal market was the way forward. The Commission was instructed by the Member States to consider the practical steps necessary to realise this. In truth, the idea had been kicking around the Commission for a few years. In 1981, the German Commissioner, Karl-Heinz Narjes, had looked into the idea of creating an ‘internal market’ in which there were no barriers to the exchange of goods, services and labour, but this had met with opposition from the French Government in 1982.47 The new British Commissioner, Lord Cockfield, took up Narjes’ work, and in June 1985, presented the White Paper on Completion of the Internal Market to the Heads of Government at Milan.48 The paper was a clever piece of work, suggesting that 279 measures were necessary to realise the internal market. Member States were not, therefore, committing themselves to an open-ended set of obligations, but to a finite and limited project. The project was also cast as largely a technical mission rather than having broader panoramas of greater integration.49 For all this, the goal of the internal market was unattainable whilst unanimity voting prevailed in the Council. Any change in this was firmly opposed by Britain, Denmark and Greece. Notwithstanding this, the Italian government called for a conference to amend the Treaties. Despite their opposing stance, all three states attended. The result was the signing of the Single European Act in 1986.

(ii) The Single European Act The principal achievements of the SEA appeared limited and modest at the time. They were described as a victory for minimalism,50 and both the Commission and the Parliament were relaxed about the Act.51 Much of the SEA was therefore about giving formal recognition to pre-existing policies and institutions. Provision was made for express competences in health and safety at work, economic and social cohesion, research and development and environmental protection. A Title was added on European Cooperation in the Sphere of Foreign Policy codifying intergovernmental cooperation in foreign policy. The European Council, the meetings of Heads of Government, was formally acknowledged.52 However, there had been regular summits from 1961 and it was agreed in 1974 that these should meet twice a year to discuss

46 47

48 49 50

51 52

Middlemas, above n. 42, 141. N. Fligstein and I. Mara-Drita, ‘How to Make a Market: Reflections on the Attempt to Create a Single Market in the European Union’ (1996) 102 American Journal of Sociology 1, 11–13. European Commission, Completing the Internal Market, COM(85)310 final. W. Sandholtz and J. Zysman, ‘1992: Recasting the European Bargain’ (1989) 42 World Politics 95, 114–15. G. Bermann, ‘The Single European Act: A New Constitution for the European Community?’ (1989) 27 Columbia Journal of Transnational Law 529; A. Moravcsik, ‘Negotiating the Single European Act’ (1991) 45 IO 19. C.-D. Ehlermann, ‘The Internal Market Following the Single European Act’ (1987) 24 CMLRev. 361. Article 2 SEA. On the early evolution of the European Council, see S. Bulmer, ‘The European Council’s First Decade: Between Interdependence and Domestic Politics’ (1985) 23 JCMS 89; S. Bulmer and W. Wessels, The European Council (London, Macmillan, 1987); J. Werts, The European Council (North Holland, Elsevier, 1992).

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internal difficulties within the European Communities, broader issues about the future of European integration, and the place of the European Communities in the world order. There were two reforms, which marked the SEA as possibly the most significant institutional reform of them all. The first was the commitment to establish the internal market by 31 December 1992. The internal market is now set out in Article 26(2) TFEU: 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. The second was institutional reform to realise this objective. A new legislative procedure, the cooperation procedure, was introduced, which provided for qualified majority voting (QMV) in the Council and increased powers for the European Parliament.53 Neither reform seemed particularly radical at the time. The internal market project seemed to be no more than a restatement of the old dream of establishing a common market. In fact, it seemed a paler version, as it was unclear whether it extended to policies clearly caught by the common market, such as competition policy, commercial policy, non-discrimination and economic policy.54 The new voting procedures did not apply to core areas such as taxation and freedom of persons, and its effect upon the Luxembourg Accords was uncertain, particularly as the United Kingdom, Greece and Denmark insisted upon a Declaration being appended to the SEA claiming that nothing within it affected Member States’ rights to invoke the Accords. However, the SEA confounded expectations and brought about the most radical change in the history of the European Union’s fortunes. It changed both the legislative and political culture of the Union. In legislative terms, Member States became less tolerant of each others’ attempts to invoke the Luxembourg Accords. This was reflected in the 1987 Council Decision on the ‘vote to go to a vote’, where it was agreed that if a simple majority of Member States voted to go to a formal vote, then a vote should be taken.55 The legislative processes became energised. By the end of 1990, all the measures contained in the White Paper had been formally proposed by the Commission.56 By the end of 1992, almost 95 per cent of the measures had been enacted and 77 per cent had entered into force in the Member States.57 Alongside this, the Commission had vastly understated the legislative output of the European Communities. Legislative output increased to 2,500 binding acts per year by 1994;58 53 per cent of the legislative measures adopted in France in 1991 were inspired by its Treaty obligations and 30 per cent of all Dutch legislation during the early 1990s implemented EU legislation.59

53 54 55 56

57

58

59

This legislative procedure no longer exists as it has been completely superseded by the co-decision procedure. P. Pescatore, ‘Some Critical Remarks on the Single European Act’ (1987) 24 CMLRev. 9, 11. Council Rules of Procedure, art. 5 [1987] OJ L291/27. Twenty Fourth Report on the General Activities of the European Communities 1990 (Luxembourg, Office for Official Publications of the European Communities, 1991) 53. For an insight into how the Commission operated during this period see G. Ross, Jacques Delors and European Integration (London, Polity, 1995). Twenty Sixth General Report on the Activities of the European Communities 1992 (Luxembourg, Office for Official Publications of the European Communities, 1993) 35. W. Wessels, ‘An Ever Closer Fusion? A Dynamic Macropolitical View on Integration Processes’ (1997) 35 JCMS 267, 276. G. Mancini, ‘Europe: The Case for Statehood’ (1998) 4 ELJ 29, 40.

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(iii) The road to Maastricht This transformation in law-making discussed above brought about a change in political culture. As the technical façade of the White Paper was exposed, highly divisive questions became more salient. These included such matters as the relationship between state and market, the role of central government actors and the appropriate method to regulate non-economic public goods, such as public health or the environment.60 This led to tensions on three fronts: all were opposed by the British Government, which perceived them as interventionist and centralising. The first front concerned the degree of regulation needed to complete the internal market. In a speech to the European Parliament in July 1988, the Commission President, Jacques Delors, observed that it could lead to 80 per cent of Member State economic legislation being passed as Community law. The second front concerned the social dimension of the EC. From 1986, the Commission tried to link the development of a Community social policy to the realisation of the internal market, on the grounds that some harmonisation of social legislation was necessary for the attainment of the latter. In May 1989, the Commission proposed a Community Charter of Fundamental Social Rights. This was adopted by all of the Member States, apart from Britain, at the Strasbourg European Council in December 1989.61 The third front was economic and monetary union (EMU). As early as 1987, the Commission indicated that due to the uncertainty generated by national currency stability, the gain anticipated for the single market could not be fully realised without some form of economic and monetary union.62 Insofar as it was perceived to contribute to monetary stability, it also tied in with the anti-inflationary policies adopted by most Member States.63 Monetary union was also a Trojan horse. It fitted with the aspirations of those, notably President Mitterand of France and President Kohl of Germany, who saw 1992 as being the cantilever to open the door to greater political integration. The question of economic and monetary union was, therefore, placed on the agenda of the Hanover Summit, in June 1988. At Hanover, the Heads of State asserted that ‘the Single European Act confirmed the objective of progressive realisation of economic and monetary union’.64 The Delors Committee, a committee of central bank governors chaired by the Commission President, Jacques Delors, was mandated to examine the concrete steps required to realise this goal. In June 1989, the Delors Report on economic and monetary union was submitted to the Heads of State in Madrid.65 This Report suggested a gradualist approach to monetary union, which was to be completed in three stages. The first stage should consist of achievement of the internal market, liberalisation of all capital movements and all Member States becoming members of the Exchange Rate Mechanism. The second stage required the establishment of an independent European Central Bank, convergence of national economies and a gradual 60

61 62

63 64 65

J. Weiler, ‘The Transformation of Europe’ (1991) 100 Yale Law Journal 2403, 2477; R. Dehousse, ‘Integration v. Regulation? On the Dynamics of Regulation in the Community’ (1992) 30 JCMS 383. Conclusions of Strasbourg European Council, EC Bulletin 12–1989, 1.1.1. T. Padoa-Schipoa et al., Efficiency, Stability and Equity: A Strategy for the Evolution of the Economic System of the European Community (Oxford, Oxford University Press, 1987). W. Sandholtz, ‘Choosing Union: Monetary Politics and Maastricht’ (1993) 47 IO 1. Conclusions of Hanover European Council, EC Bulletin 6–1988, 1.1.1–1.1.5. Conclusions of Madrid European Council, EC Bulletin 6–1989, 1.1.11.

23 European Integration and the Treaty on European Union

assumption of the national central bank functions by the European Central Bank. The final stage would necessitate the European Central Bank fully taking over national central bank functions and assuming a monopoly over the money supply.66 Faced with the opposition of all the other Member States and the threatened resignation of both her Chancellor of the Exchequer and Foreign Secretary, Mrs Thatcher grudgingly adopted the Report and it was agreed that the first stage should begin on 1 July 1990. The outmanoeuvring of Mrs Thatcher was completed at Strasbourg, where it was agreed that an intergovernmental conference should be held to amend the Treaties, with a view to economic and monetary union. Presidents Kohl and Mitterand, the German and French Presidents, considered that economic and monetary union would not be sustainable without further political integration, and launched an initiative to that effect in April 1990.67 In June 1990, it was agreed that a separate conference should be held on political union.68 They culminated in the signing of the Treaty on European Union, at Maastricht, on 10 December 1991.69

5 THE TREATY ON EUROPEAN UNION (i) A tripartite institutional settlement The Treaty on European Union (TEU) was a very different Treaty from the SEA. If the latter required considerable legal integration, this was simply the byproduct of the establishment of an internal market. The TEU marked very definitely a change in tone. It created a new form of political project, which included, to be sure, an amount of arcane detail, but also marked out a new form of polity, which has its own set of political values and political communities. This shift is reflected in the first article of the current TEU, which builds on and rearticulates what was agreed at Maastricht.

Article 1 TEU By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN UNION, hereinafter called ‘the Union’ on which the Member States confer competences to attain objectives they have in common. This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.

66

67

68

69

The German Central Bank, the Bundesbank, applied strong pressure for the Report to follow the German model of monetary policy-making as the price for its support. It was also adamant that the transition should be a gradual one. M. Artis, ‘The Maastricht Road to Monetary Union’ (1992) 30 JCMS 299. On the Franco-German role in the negotiations leading to Maastricht see C. Mazzucelli, France and Germany at Maastricht: Politics and Negotiations to Create the European Union (New York, Garland, 1997). Conclusions of the Dublin European Council, EC Bulletin 6–1990, 1.11. Political union was added as an afterthought to economic and monetary union and negotiations were not well prepared. R. Corbett, ‘The Intergovernmental Conference on Political Union’ (1992) 30 JCMS 271. The most detailed analysis of the negotiations is F. Laursen and S. Vanhoonacker, The Intergovernmental Conference on Political Union: Institutional Reforms, New Policies and International Identity of the European Community (Dordrecht, Martinus Nijhoff, 1992).

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The Commission and the Parliament pressed for the Union to be governed by a single institutional, supranational structure. In two fields, a practice of intergovernmental cooperation had emerged that was to prove difficult to displace. The first was foreign policy. All Member States, other than the Belgians and the Dutch, wanted to keep it this way and were opposed to bringing foreign and defence policy within the EC supranational framework. The second field was that of Justice and Home Affairs, a ragbag field focused on combating international crime and policing asylum and migration of non-EU nationals. In 1985 and 1990, two agreements were signed at Schengen, in Luxembourg, between all the Member States, excluding Ireland and the United Kingdom.70 These Conventions provided for the abolition of frontier checks between parties and a common external frontier. To realise this, the 1990 Convention provided for intergovernmental cooperation in the fields of migration of non-EU nationals, crime and policing. Whilst many Member States wanted to see this brought within the EC framework, the British, Irish, Greeks and Danes were adamant that this was an area where the national veto should be maintained. The Union was, therefore, to be composed of three pillars. The first was that of the European Community, the second, Common Foreign and Security Policy (CFSP), and the third, Justice and Home Affairs (JHA).71 These three pillars were, in principle, to constitute a single institutional framework.72 The overarching, unitary provisions were weak, however. There was a unitary legal framework in that any understanding of one pillar could only be had by reference to the TEU as a whole.73 Beyond that, only two provisions united the three pillars. The European Council was given a pre-eminent, coordinating role for all three pillars. Its position as the body with ultimate political authority and the body which was responsible for visioning and coordinating all EU activities was, for the first time, formalised.74 In addition, the unique position of the Member States and the commitment to respect fundamental rights were recognised as a constituent element of each pillar.75 The institutional balance within each pillar was, however, very different. The Parliament and the Court of Justice were only minimally associated with either the second or third pillars.76 If the EC pillar was characterised by some parliamentary and judicial controls, these were largely absent at either a national or EU level and, instead, were to be dominated by executive government. Whilst the Commission was associated quite strongly with the work of the third pillar on Justice and Home Affairs, it was almost completely excluded from the second pillar. Even between the two intergovernmental pillars, there was a mismatch, with one being more clearly Europeanised than the other. The question of legal personality was also mixed. The EC had had legal personality since 1957, and retained this. By contrast, the European Union was to have no legal personality. Whilst the EC had treaty-making powers in its field of competence, there was no equivalent power in the fields of CFSP and JHA.77 70 71

72 73

74 75 76 77

This is now to be found at [2000] OJ 2000 L239/19. Iceland and Norway are also associated members. Allegedly, the idea was first suggested by a French negotiator, Pierre de Boissieu, and was constructed around the metaphor of a temple based on three pillars, Middlemas, above n. 42, 188. Article 3 TEU (M). A. v. Bogdandy and M. Nettesheim, ‘Ex Pluribus Unum: Fusion of the European Communities into the European Union’ (1996) 2 ELJ 267, 279–81; D. Curtin and I. Dekker, ‘The EU as a Layered International Organization: Institutional Unity in Disguise’ in P. Craig and G. de Búrca (eds.), The Evolution of EU Law (Oxford, Oxford University Press, 1999). Article 4 TEU (M). Article 6 TEU(M). For a reassertion of this see Case C-160/03 Spain v Eurojust [2005] ECR I-2077. D. Curtin, ‘The Constitutional Structure of the Union: A Europe of Bits and Pieces’ (1993) 30 CMLRev. 17.

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There was a political price to be paid for these three pillars: a commitment to a further IGC to reconsider this in 1996.

(ii) The new competences The EC was granted express competences in the fields of visas for non-EU nationals, education, culture, public health, consumer protection, the establishment of trans-European networks in transport, energy and telecommunications, industrial policy and development cooperation. There were two fields which evoked particular controversy. The first was economic and monetary union. The Treaty followed the three stage structure of the Delors Report, with the third stage of economic and monetary union beginning on 1 January 1999.78 Economic and monetary union allocated responsibility for various aspects of economic policy to different institutions. The third stage involved monetary policy becoming the responsibility of an independent European Central Bank, established in Frankfurt, which was to be exclusively responsible for authorising the issue of the new European currency, the euro, and for the setting of short-term interest rates. Constraints were also to be placed on national fiscal policy through the limiting of the size of the deficits that governments could run. A procedure was established: the excessive deficit procedure, whereby governments participating in the euro could be heavily penalised if they ran an excessive deficit. This proved too constraining for two Member States, Denmark and the United Kingdom, and Protocols were agreed reserving their right not to participate in the third stage of EMU. The other area to prove particularly problematic was that of social policy. There was strong support amongst all Member States, apart from Britain, for an extension of the social policy provisions to all areas of labour law and social protection for workers. The British government opposed this on the grounds that this was purely a matter of national concern and it did not fit in with that government’s views of a deregulated labour market. The compromise was a Protocol, which authorised all the Member States, apart from the United Kingdom, to establish an Agreement on Social Policy that would bind only those Member States, but would allow them access to existing EU machinery and resources.

(iii) The quest for Union ‘democracy’ As there was a sense of putting a new political system in place, Maastricht gave far more serious consideration to the ‘democratic’ nature of the European Union and its need to seek political legitimacy. A variety of strategies were introduced. The first was to increase parliamentary input into the legislative processes. A new legislative procedure was introduced, the co-decision procedure, which gave the European Parliament more powers by allowing it, in certain sectors, to veto legislation. The place of national parliaments was recognised for the first time, albeit in a fairly minimal manner. A Declaration was attached to the TEU committing governments to greater involvement of their national parliaments in the integration process and to ensuring these receive legislative proposals in 78

It was initially envisaged that the third stage could begin as early as 31 December 1996 if the convergence criteria were met by sufficient Member States, Article 109j(3) EC. At the Cannes Summit, in 1995, it was agreed that the date for the third stage should be 1 January 1999, EU Bulletin 6–1995, 1.11.

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good time. Alongside this, there was an attempt to pluralise the decision-making process. New stakeholders were introduced, most notably the Committee of the Regions which, whilst only being given consultative powers, created a voice for the European regions within the Community policy process. The TEU was also concerned with administrative accountability. To that end, an Ombudsman was established to consider acts of maladministration by the EU institutions. Provision was also made for considering whether the decision-making procedures could be made more transparent and, for the first time, the question of freedom of information was formally acknowledged. Most symbolic of the sentiment that a new centre for democratic participation was being created was the institution of European Union citizenship. Citizens were granted new rights to free movement and to access to social benefits in other Member States. New possibilities for democratic participation at both local and European level were created. European citizenship also created new patterns of inclusion and exclusion between Europeans and non-Europeans, insofar as these rights were only granted to Member State nationals as EU citizens. Most controversially, citizenship has traditionally been used to foster new political allegiances, as it suggests a common political identity between its members, which to some seemed to compete with that claimed by the nation-state. The democratic turn, however, was not just about strengthening the credentials of the centre. By the time the TEU was signed, the European Union was churning out more legislation, more intensely, in more fields, than ever before. This was placing unheralded pressures on national, regional and local government. There were also concerns as to how to police and limit the activities of the Union. We have seen how special arrangements were put in place for the United Kingdom in social policy and for it and Denmark in EMU. As well as these, other Member States began to ring-fence their laws. Ireland and Denmark, thus, respectively obtained Protocols protecting their abortion law and legislation on ownership of second homes from EU law. To manage these tensions more generally, a new principle was introduced: the subsidiarity principle. In areas where both it and the Member States had powers, the Union was only to act if the objectives of the proposed action could not be sufficiently achieved by the Member States and by reason of its scale or effects the action could be better achieved by the Community.

6 THE 1990s: THE DECADE OF SELF-DOUBT (i) Ratification of the Treaty on European Union On 2 June 1992, the Danes voted against ratification of the TEU by 50.7 to 49.3 per cent. This shook the process to the core as the Treaty could not enter into effect unless all Member States ratified it. To boost the credibility of the ratification process, President Mitterand decided to hold a referendum in France. Although an easy ‘yes’ vote had been predicted, it soon became a very close contest, with only 51 per cent of the vote being in favour of ratification. The Treaty was salvaged at Edinburgh, in December 1992. The other Member States considered the Treaty to be non-negotiable, but something had to be done to allow the Danish government to say that the Treaty it was proposing for a second referendum was substantially different from

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the initial Treaty. The route taken was a Decision ‘interpreting’ the Treaty giving the Danish government guarantees about the autonomy of its citizenship and defence as well as setting out in more detail the subsidiarity principle.79 This gave the Danish government the necessary breadth to hold a second referendum. This was duly held in May 1993, with 56 per cent voting in favour of ratification. However, the damage had been done. The political aura of inevitable integration and the assumption of popular support for it had been tarnished. The first Danish referendum signalled the beginning of a bitter legislative fight in the British Parliament, in which ratification was fought for by both the British Labour Party and a minority of the then ruling Conservative party. The legislation was only adopted in July 1993 – a year and a half after the Treaty had been agreed – and only after the government had put a gun to its rebels’ heads, by passing it as a motion of confidence, with the consequence that if it had fallen, the government would have had to resign.80 The drama of ratification of the Treaty was now re-enacted in the courts. Challenges to the Treaty were made before the British, French, Danish and Spanish courts.81 It was the challenge before the German Constitutional Court, in October 1993, which was to have the most farreaching consequences.82 In its judgment, the German Constitutional Court placed markers on the nature and limits of European integration. It ruled that democratic legitimacy is constituted above all at a national level. Within this setting, the constitutionality of the European Union rests on its being an organisation with limited powers operated in a democratically accountable fashion. Further integration would only be possible if it did not fundamentally undermine national self-government. The TEU entered into force on 1 November 1993 but the environment was now heavily polarised. Public support for the European Union had diminished83 and deep divisions had emerged between national governments about which direction to take.84 Member States had, however, committed themselves at Maastricht to a further IGC in 1996.85 Negotiations only began in earnest in the latter half of 1996 with the Irish government presenting a draft Treaty to the other Member States in December 1996.86 The Treaty of Amsterdam was signed on 2 October 1997.

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D. Howarth, ‘The Compromise on Denmark and the Treaty on European Union: A Legal and Political Analysis’ (1994) 31 CMLRev. 465. R. Rawlings, ‘Legal Politics: The United Kingdom and Ratification of the Treaty on European Union’ (1994) PL 254 and 367; D. Baker, A. Gamble and S. Ludlum, ‘The Parliamentary Siege of Maastricht: Conservative Divisions and British Ratification’ (1994) 47 Parliamentary Affairs 37. R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees-Mogg [1994] QB 552 (Britain); Re Treaty on European Union (Decision 92–308), Journel Officiel de la République Française 1992, 5354 (France); Re Treaty on European Union [1994] 3 CMLR 101 (Spain). Brunner v European Union [1994] 1 CMLR 57. Opinion polls showed that those who considered the European Union a ‘good thing’ had dropped from 72 per cent in 1990 to 48 per cent in autumn 1996. Eurobarometer, Public Opinion in the EU, Report No. 46, Autumn 1996 (Luxembourg, Office for Official Publications of the European Communities, 1997). A summary of all the positions taken by the Member States at the 1996 Intergovernmental Conference can be found at http://europa.eu.int/en/agenda/igc-home/ms-doc. See p. 25. Conference of the Representatives of the Governments of the Member States, The European Union Today and Tomorrow: Adopting the European Union for the Benefit of Its Peoples and Preparing It for the Future, A General Outline for a Draft Revision of the Treaties, CONF 2500/96.

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(ii) The Treaty of Amsterdam (a) The Area of Freedom, Security and Justice If the central monuments of the SEA and Maastricht were the internal market and EMU, respectively, then the Area of Freedom, Security and Justice (AFSJ) occupied a similar place for the Treaty of Amsterdam. The AFSJ is now set out in the following terms.

Article 67 TFEU 1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States. 2. It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. For the purpose of this Title, stateless persons shall be treated as third-country nationals. 3. The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws. 4. The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.

To realise the AFSJ, the Treaty of Amsterdam first integrated the Schengen Agreements into the legal framework of the TEU. A Protocol Integrating the Schengen Acquis into the framework of the European Union was adopted, which made the Schengen Acquis part of EU law.87 Secondly, the AFSJ reallocated decision-making between the first and third pillars. Immigration, asylum and the rights of non-EU nationals were brought within EC legislative competences, whilst policing and judicial cooperation on criminal matters remained subject to the predominantly intergovernmental procedures of the third pillar. Finally, the AFSJ reoriented the EU more explicitly around certain ideals. This was marked most strongly in the new Article 6 TEU, which stated that the Union was to be founded on the ‘principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law’. These ideals were further institutionalised in two ways First, the EC acquired a general legislative competence to combat discrimination on grounds that related to sex, race or ethnic origin, religion or belief, disability, age or sexual orientation. Secondly, provision was made for a Member State to have its rights suspended under the TEU or to be expelled from the European Union, where it was deemed that the Member State had seriously and persistently breached these ideals.

87

The acquis is the name for the existing body of law that has been adopted up until now, in this instance under the Schengen procedures.

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(b) Further supranational ‘democratisation’ The Treaty of Amsterdam led to a significant extension of QMV. It was the first time a majority of legal bases now provided for QMV.88 Qualitatively, QMV was extended to important new fields, including employment, countering social exclusion, equality of opportunity and treatment for men and women, public health, transparency, fraud and freedom of establishment. In terms of parliamentary accountability, it also led to a considerable extension of the European Parliament’s powers. The scope of the co-decision procedure was extended considerably. The European Parliament was also, for the first time, given some involvement in the third pillar. Alongside this, more attention was paid to the role of national parliaments within the integration process. A Protocol on National Parliaments was adopted, which extended their guarantees. All consultation documents would now be sent to them and there would be a six-week period between proposals being announced and their being placed on the legislative agenda, in order to allow national parliaments to consider them. Administrative accountability was strengthened by the principle of transparency being formally incorporated into the EC Treaty with a qualified right of access to EC documents being granted to every citizen of the Union and natural or legal person having its registered office in a Member State.

(c) Differentiated integration A new Title on Employment was added to the EC Treaty and, with a change of government in the United Kingdom, the Protocol on Social Policy was abolished, and social policy was placed on the same footing as all other first pillar policies. However, Amsterdam was more noteworthy for reflecting the multiplicity of tensions surrounding the pace, direction and form of European integration that had emerged since Maastricht. A Protocol on the Application of the Principles of Subsidiarity and Proportionality was agreed, which entrenched in Treaty law the Declarations agreed at Edinburgh that had enabled Denmark to hold a second referendum on the Maastricht Treaty. It was clear, however, that a ‘one size fits all’ approach was becoming harder to manage as disagreements about the fields and intensity of the integration process became more entrenched. Provision was made, therefore, for a majority of Member States to engage, as a last resort, in ‘enhanced cooperation’:89 adoption of EU laws amongst themselves where agreement was not possible involving all the EU Member States. Alongside this, country specific opt-outs proliferated at Amsterdam. The United Kingdom and Ireland obtained Protocols preserving their right to decide whether to opt-in to individual pieces of legislation on immigration, asylum and other policies concerning free movement of persons, as well as Protocols preserving their rights to impose frontier controls on persons coming from other Member States. In like vein, Denmark negotiated a Protocol stating that it would only be bound by such legislation under its general obligations in international law, as a Schengen signatory, and not by virtue of EU law. There were also a series of soft opt-outs. A Protocol had been adopted which established a presumption of no asylum for EU nationals in other Member States. Belgium adopted a Declaration stating it would not follow this presumption but would treat each case on its merits.

88 89

A. Maurer, ‘The Legislative Powers and Impact of the European Parliament’ (2003) 41 JCMS 227, 229. See pp. 113–16 for more detail on this.

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Germany, Luxembourg and Austria sought Declarations in a different field. These states were concerned that their systems of public banking might be compromised by EU competition law, and therefore sought Declarations to the contrary.

7 RECASTING THE BORDERS OF THE EUROPEAN UNION The shape of the European Union was modified by two events at the end of the 1980s. The success of the SEA entailed that exclusion from the world’s largest trading bloc posed significant economic risks for neighbouring states. At the same time, communism collapsed in Central and Eastern Europe. Many states, previously antagonistic to the European Union, now embraced the market-orientated ideals it symbolised and saw membership as the anchor around which changes in their societies could be made. The process of expansion began with the EFTA states (Norway, Sweden, Finland, Iceland, Austria, Liechtenstein and Switzerland). In 1991, the Treaty of Oporto was signed, establishing the European Economic Area (EEA).90 The EFTA states were required to adopt all EU legislation in the fields of the internal market, research and development policy, social policy, education, consumer protection and environmental protection in return for access to the internal market. In June 1993, the European Union agreed that membership be offered to Austria, Finland, Sweden and Norway.91 Referendums were necessary in all four states prior to accession. In Austria and Finland, comfortable majorities voted in favour of membership. However, that in Sweden was narrow. The Norwegians voted narrowly against membership. The three new Member States acceded to the TEU on 2 January 1995. More challenging was the question of possible membership of the former communist states of Central and Eastern Europe. By the early 1990s, twelve of these states had applied for membership.92 This would almost double the size of the Union, with a corresponding reduction of political influence for existing Member States. It would create a financial burden on current members as the applicants were poorer than the Western European states and many had large agricultural populations, which could press claims for support from the EU Budget. Nevertheless, in Lisbon 1992, the European Union stated that any European state whose government was based on the principle of democracy could apply to accede.93 A year later, at Copenhagen, the European Union went a step further and agreed that the states of Central and Eastern Europe could become members of the European Union once able to satisfy the obligations of membership. These obligations required new states to have: • stable institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities; 90

91

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Although Switzerland signed the Treaty, following a referendum it decided not to ratify it. In 2002, agreements were signed between the European Union and Switzerland in the fields of free movement of persons, agriculture, transport, public procurement, mutual recognition and scientific and technological cooperation [2002] OJ L114/1. The most detailed analysis of the Treaty can be found in T. Blanchet et al., The Agreement on the European Economic Area (Oxford, Clarendon Press, 1994). M. Jorna, ‘The Accession Negotiations with Austria, Finland, Sweden and Norway: A Guided Tour’ (1995) 20 ELRev. 131; F. Granell, ‘The European Union’s Enlargement Negotiations with Austria, Finland, Norway and Sweden’ (1995) 33 JCMS 117. These were Bulgaria, Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, Slovenia and Slovakia. Conclusions of the Lisbon European Council, EC Bulletin 6–1992, 1.4.

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• a functioning market economy as well as the capacity to cope with competitive pressures and market forces within the Union; • the ability to assume the obligations of membership, including both adherence to the aims of the Union and adoption of all existing EU legislation; • the legislative and administrative capacity to transpose EU legislation into national legislation and to implement it effectively through appropriate administrative and judicial structures.94 In 1994, it was agreed that a ‘structured relationship’ should be established between the European Union and the countries of Central and Eastern Europe to prepare the latter for membership. In July 1997, following the Treaty of Amsterdam, the Commission stepped up the process with the launch of its 2000 Agenda programme. In a 1,300 page document, it assessed how far the applicant states met the criteria agreed in Copenhagen. On the basis of that progress report, it recommended the opening of membership negotiations with the Czech Republic, Poland, Hungary, Slovenia, Estonia and Cyprus, with a view to accession by 2003. The discussions began in March 1998. However, limiting negotiations to a selection of applicant states proved hopelessly divisive, and in January 2000, Bulgaria, Romania, Latvia, Lithuania, Malta and Slovakia were also invited to participate. Between 1997 and 2002, the Commission published annual reports on each applicant. In Copenhagen, in December 2002, the Member States agreed that all these states, other than Bulgaria and Romania, should become Members of the European Union from 1 May 2004. These latter two states acceded to the Union on 1 January 2007, bringing membership of the Union to twenty-seven. The expansion of the European Union from twelve states to twenty-seven in just over twelve years has not simply made the Union bigger. It has also transformed it. It can now claim to be an organisation that is genuinely pan-European rather than predominantly West European. A corollary of this is considerable diversity. Economically, the GDP per capita (even after rescaling it to account for purchasing power parity) of Luxembourg is seven times that of Bulgaria.95 There are also significant differences in legal and political culture. Traditionally, trust in the new Member States in democratic institutions, political parties, trade unions and private enterprises is low. There are also lower levels of civic responsibility but higher levels of solidarity with the socio-economically disadvantaged.96 This is not to be decried but, inevitably, reshapes the common political and legal space established by the European Union as new members bring in new ways of doing things.97 Management of this diversity has come up in relation to the question of continued enlargement. Three states have been granted candidate status: Croatia, the Former Yugoslav Republic of Macedonia (FYROM) and Turkey. The most unproblematic has been Croatia. It was agreed to open accession negotiations in 2004 and these duly began at the end of 2005. These have passed relatively smoothly. Whilst there is a border dispute with Slovenia still to be resolved, the Commission noted at the end of 94 95 96 97

This last condition was added at Madrid in December 1995. See http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-SF-08-112/EN/KS-SF-08-112-EN.PDF J. Zielonka, ‘How New Enlarged Borders will Reshape the European Union’ (2001) 39 JCMS 507, 513–15. The fourth largest party in the 2009–14 European Parliament is therefore the Polish Civic Platform party and the new President, Jerzy Buzek, is one of its members. Czech and Polish Constitutional Courts have already given seminal judgments causing us to rethink our understandings of the authority of EU law. See pp. 191–3, 212–13 and 222.

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2008 that negotiations had begun in twenty-one out of thirty-five Chapters, and that it hoped to publish a timetable for completion of the negotiations by the end of 2009 with the ‘perspective of membership a reality’.98 By contrast, whilst FYROM was granted candidate status only a year later than Croatia in 2005, accession negotiations have still not begun, with the Commission report in 2008 suggesting that significant progress still had to be made on all the Copenhagen criteria.99 Tensions have crystallised most acutely in the debate about possible Turkish membership of the European Union. Formal EU-Turkey relations go back over forty years to the signing of an Association Agreement in 1963. In 1987, Turkey applied for membership of the European Union. This application lay dormant, but fears over alienating Turkey led to a rapprochement in the mid-1990s, which resulted in the establishment of a customs union between Turkey and the European Union in 1995. It was clear that this was likely to be insufficient. In 1999, the Member States recognised Turkey’s eligibility for membership and agreed this should be assessed according to the Copenhagen criteria. Turkey was pressed to reform its Criminal Code, strengthen its judiciary, secure the rights of association, expression and religion more effectively and reduce the role of the military in the government of the country. In December 2004, it was agreed that Turkey had made the necessary political reforms, and that accession negotiations would open in October 2005. In December 2006, negotiations between the Union and Turkey were disrupted over the refusal by Turkey to admit ships or planes flying the Cypriot flag into its ports or airports. This refusal was influenced by a perception that the European Union was not doing enough to improve the lot of the Turkish Cypriot community in the north of Cyprus. As a consequence, the European Union decided that there would be no negotiations in eight fields100 and it would not consider negotiations in any field closed until this matter was resolved. Whilst negotiations have continued since, they have done so slowly, with negotiations opened on only eight out of thirty-five Chapters. Debate about Turkish membership also goes to wider questions about the identity of the European Union. Turkey would be the largest state to join the Union since 1957. It would be the first predominantly Islamic state and would extend the Union’s borders far into Asia.101 In 2007, public surveys suggested that only 31 per cent of EU citizens were in favour of Turkish membership with 55 per cent against.102 Analysis suggests that the economic costs or benefits of Turkish membership play only a small role. Instead, views are shaped by the perception by those opposed to Turkish membership that Turkey is too culturally different from the European Union, or the perception that the Union should be a liberal order capable of embracing all those who sign up to its values by those supportive of Turkish membership.103 These views have as much to do with (mis)conceptions about European identity as about the nature of Turkey: whether Europe should still be seen as a Christian club, an 98 99 100

101

102

103

European Commission, Enlargement Strategy and Main Challenges 2008–9, SEC(2008)674, 4. European Commission, The Former Yugoslav Republic of Macedonia 2008 Progress Report, SEC(2008)2695. These were free movement of goods, right of establishment and freedom to provide services, financial services, agriculture and rural development, fisheries, transport policy, customs union and external relations. European Commission, Staff Working Paper on Issues arising from Turkey’s Membership Perspective, COM(2004)656. A. Ruiz-Jiménez and J. Torreblanca, European Public Opinion and Turkey’s Accession: Making Sense of Arguments For and Against (Brussels, Centre for European Policy Studies, 2007) 8–9. Ibid. 16–23.

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evangelising force for liberal values, or, as some have argued, a place not to minimise differences but to mediate between them.104 Another issue raised by enlargement is whether it is possible with twenty-seven states to press forward with common policies across so many different fields. Majone, in particular, has argued that this is increasingly unrealistic and that we will increasingly witness arrangements involving some Member States but not others.

G. Majone, ‘Unity in Diversity: European Integration and the Enlargement Process’ (2008) 33 European Law Review 457, 470–1 An association established to provide excludable public goods is a club. Two elements determine the optimal size of a club. One is the cost of producing the club good – in a large club this cost is shared over more members. The second element is the cost to each club member of a good not meeting precisely his or her individual needs or preferences. The latter cost is likely to increase with the size of the club. Therefore the optimal size is determined by the point at which the marginal benefit from the addition of one new member, i.e. the reduction in the per capita cost of producing the good, equals the marginal cost caused by a mismatch between the characteristics of the good and the preferences of the individual club members . . . Think now of a society composed, not of individuals but of independent states. Associations of independent states (alliances, leagues, confederations) are typically voluntary, and their members are exclusively entitled to enjoy certain benefits produced by the association, so that the economic theory of clubs is applicable. In fact, since excludability is more easily enforced in such a context, many goods which are purely public at the national level become club goods at the international level. The club goods in question could be collective security, policy coordination, common technical standards, or tax harmonization. In these and many other cases, countries which are not willing to share the costs are usually excluded from the benefits of inter-state cooperation. Now, as an association of states expands, becoming more diverse in its preferences, the cost of uniformity in the provision of such goods – harmonization – can escalate dramatically. The theory predicts a growing number of voluntary associations to meet the increased demand of club goods more precisely tailored to the different requirements of various subsets of more homogeneous states. It will be noted that the model sketched here is inspired by a pluralist philosophy quite different from the one-dimensional philosophy of enhanced cooperation as discussed in a previous section. It is not a question of states working closely together for the sake of the Union. Rather, the underlying idea is that variety in preferences should be matched by a corresponding variety in institutional arrangements. . . . ‘integration à la carte’ and ‘variable geometry’ come closest to the situation modelled by the economic theory of clubs. The expression ‘variable geometry’ has been used in several meanings. In the meaning most relevant here, it refers to a situation where a subset of member states undertake some project, for instance an industrial or technological project in which other members of the Union are not interested, or to which they are unable to make a positive contribution. Since, by assumption, not all Member States are willing to participate in all EU programmes, this model combines the criterion of differentiation by country, as in multi-speed integration, and by activity or project – as in integration à la carte . . .

104

E. Balibar, ‘Europe as Vanishing Mediator’ (2003) Constellations 312, 332–3.

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Majone presents a world in which all states can freely and equally choose between different policies. The enlargement process suggests a twist to this, however. Recent entrants have not been able to join on an equal basis but on others’ terms. The club goods described by Majone have therefore taken the form of newer states not being allowed full access to all the entitlements of membership. The most discussed example of this concerned free movement of persons. Both the 2004 and 2007 entrants were subject to ‘2+3+2’ regimes where their own nationals would only be granted in EU law the same rights to live and work in other EU states as other EU nationals seven years after their entry into the Union.105 A more wide-ranging regime was put in place for Bulgarian and Romanian accession. Both states are subject to a Cooperation and Verification Mechanism for three years from entry under which the Commission is to monitor their legal obligations and more general performance in a number of fields. If there is a deterioration in the economic situation in those states or the Commission considers that they fail to meet their legal obligations or their commitments to improve performance, the Commission may adopt measures against these states, notably suspending their rights.106 As well as this, entry of the new Member States to certain fields of EU policy is being closely policed. In December 2007, all new EU Member States acceded to the Schengen Convention, with the exception of three, Cyprus, Romania and Bulgaria, for whom provision was made to join when ready. Membership of the euro-zone has proved more challenging. Both Slovenia and Lithuania applied for membership from 1 January 2007. Whilst Slovenia was allowed to join and adopt the euro as its currency, Lithuania was blocked by the Commission and other Member States on the grounds that its level of inflation was too high. This move was perceived as divisive and unfair by a number of the new Member States as Lithuania met all the other criteria, which at the time was not true of a number of existing members of the euro-zone. On 1 January 2008, Malta and Cyprus also joined the euro-zone, and Slovakia on 1 January 2009, taking its overall number to sixteen.

8 THE CONSTITUTIONAL TREATY (i) The European Union Charter of Fundamental Rights and Freedoms and the Treaty of Nice The achievements of the Treaty of Amsterdam were seen at the time as limited.107 There were two areas, in particular, that were seen as ‘unfinished’. First, there had been much discussion about whether the European Union should have its own Bill of Rights. Whilst references were introduced to fundamental rights and provision was made for expulsion of Member States for gross violations, a self-standing Bill of Rights was seen by some Member States as a step too far. The second matter not addressed head on was the institutional pressures generated by possible enlargement of the Union. A Protocol was therefore signed, agreeing that a conference be 105

106

107

S. Currie, ‘“Free” Movers? The Post Accession Experience of Accession: 8 Migrant Workers in the United Kingdom’ (2006) 31 ELRev. 207. Indeed, in 2008, Commission concerns with Bulgarian maladministration led it to suspend payments of €220 million structural funds to Bulgaria. European Commission, On the Management of EU Funds in Bulgaria, COM(2008)496. For comment see ‘The European Union and Bulgaria: The New Colonialism’, The Economist, 19 March 2009. K. Hughes, ‘The 1996 Intergovernmental Conference and EU Enlargement’ (1996) 72 International Affairs 1; A. Teasdale, ‘The Politics of Qualified Majority Voting in Europe’ (1996) Political Quarterly 101, 110–15.

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convened at least one year before membership of the European Union reached twenty, to carry out a comprehensive review of the composition and functioning of the institutions. Attention turned, first, to an EU Bill of Rights. The Member States, meeting at Cologne in 1999, agreed that an EU Charter of Fundamental Rights should be established cataloguing such rights. Instead of this being left to intergovernmental negotiations, a special Convention was established to agree the Charter.108 Chaired by Roman Herzog, formerly the German President, the Convention was composed of fifteen representatives of national governments, thirty representatives of national parliaments, sixteen representatives of the European Parliament and one representative of the Commission. It met in open session, decided upon matters by consensus rather than by voting, and received extensive representations from civil society. Parliamentarians were not only more numerous in the Convention than government representatives, but also more vocal. A total of 805 amendments were put forward by parliamentarians whilst only 356 were put forward by government representatives.109 It constituted a move away from negotiations between governments to a new form of deliberative decision-making. It was also successful in terms of its outcome: the Convention drafted the European Union Charter of Fundamental Rights and Freedoms which was wide-ranging in the entitlements it recognised. The Charter was adopted by the Convention in October 2000. On the second matter, institutional reform, discussions began in the same month as the Treaty of Amsterdam came into force: 1 May 1999. There was agreement that negotiations should be exclusively concerned with recasting the institutional settlement so that it would function more efficiently and accommodate new states who might join the Union. Notwithstanding its technicality, this task was a challenging one, for it was a redistributive task involving reallocation of votes or influence within the EU institutions, entailing that for every winner there would be an equivalent loser. With every state having a veto, no previous IGC had realised its ambitions for management of internal reform. This was also the case for the Treaty of Nice. The Treaty was finally signed on 11 December 2000, after over ninety hours of acrimonious, direct negotiations between the Heads of Government.110 Even within governmental circles, the agreement was seen as limited and unsatisfactory. Agreement was not reached on many of the items for discussion: most notably the legal status of the EU Charter of Fundamental Rights and Freedoms. Instead, limited reforms were made to the four main institutions, the Commission, the Council, the Parliament and the Court of Justice. QMV was extended into thirty-one further areas, but almost all of these were procedural and were concerned with the appointment of EU officials. The reforms were not only insubstantial but the Treaties were now a confusing and incoherent mess. The Union had now a bewildering gamut of competences, governed by an array of legislative procedures, producing a range of legal instruments. There were thirty-eight combinations of ‘possible voting modalities in the Council and participation opportunities of the European Parliament of which 22 were “legislative”’.111 Whilst, therefore, there did not seem to be many

108 109

110 111

See G. de Búrca, ‘The Drafting of the EU Charter of Fundamental Rights’ (2001) 26 EL Rev. 126. A. Maurer, ‘The Convention, the IGC 2004 and European System Development: A Challenge for Parliamentary Democracy’, 7 in Democracy and Accountability in the Enlarged European Union, Joint Conference of SWP and the Austrian Academy of Sciences, 7–8 March 2003, www.swp-berlin.org/common/get_document. php?asset_id=689 (accessed 20 July 2009). M. Gray and A. Stubb, ‘The Treaty of Nice: Negotiating a Poisoned Chalice?’ (2001) 395 JCMS 5. W. Wessels, ‘The Millenium IGC in the EU’s Evolution’ (2001) 39 JCMS 197, 201.

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strong reasons to vote against the Treaty of Nice, there did not seem to be many reasons to vote for it. In June 2001, the Irish voted 53.87 per cent against ratification of the Treaty of Nice.112 A Declaration was added that nothing in the TEU affected Irish military neutrality, something that had been raised as a concern amongst a small number of Irish voters. On the basis of this, a second referendum was held in September 2002, and the Treaty of Nice was approved by 62.89 per cent of the vote.113

(ii) The Constitutional Treaty Dissatisfaction with the substance and the process of Nice had emerged prior to the Irish referendum. At Nice, the Member States announced that there would be yet another IGC in 2004 to consider the significant issues that had not been resolved. These comprised delimitation of powers between the European Union and the Member States; the status of the EU Charter of Fundamental Rights; simplification of the Treaties; and setting out more fully the role of national parliaments in the European architecture. As important as the substance was the process. There was considerable dissatisfaction with this intractable process of closed negotiations between governments running up against deadlines that seemed to be brought by every IGC. In a Declaration at Nice, the Member States called, therefore ‘for a deeper and wider debate about the future of the European Union’ which would involve ‘wide-ranging discussions with all interested parties: representatives of national parliaments and all those reflecting public opinion, namely political, economic and university circles, representatives of civil society, etc.’.114 This Declaration had been preceded by a significant debate between political leaders about the nature of institutional reform that had been begun by Joschka Fischer, the German Foreign Minister, at the Humboldt University in Berlin in 2000. Fischer considered that European integration had to have a finalité, an end-point, and that this should be a European Constitution: These three reforms – the solution of the democracy problem and the need for fundamental reordering of competences both horizontally, i.e. among the European institutions, and vertically, i.e. between Europe, the nation-state and the regions – will only be able to succeed if Europe is established anew with a constitution. In other words: through the realisation of the project of a European Constitution centred around basic, human and civil rights, an equal division of powers between the European institutions and a precise delineation between European and nation-state level. The main axis for such a European Constitution will be the relationship between the Federation and the nation-state.115 A number of Heads of Government picked up on this theme. Within two months, Jacques Chirac, the French President, talked of a ‘first European Constitution’. Tony Blair, the British Prime Minister, suggested that there should be a new statement of principles about the Union. And in June 2000, Paavo Lipponen, the Finnish Prime Minister, suggested that a special Convention be established to launch a ‘constitutionalisation process’.116 112 113 114 115

116

K. Gilland, ‘Ireland’s (First) Referendum on the Treaty of Nice’ (2002) 40 JCMS 527. The Treaty of Nice came into force on 2 February 2003. Declaration 23 to the Treaty of Nice on the Future of the Union. J. Fischer, ‘From Confederacy to Federation: Thoughts on the Finality of European Integration’, Humboldt University, Berlin, 12 May 2000, available at www.jeanmonnetprogram.org/papers/00/joschka_fischer_en.rtf (accessed July 2009). P. Norman, The Accidental Constitution: The Story of the European Convention (Brussels, Eurocomment, 2003) 11–24.

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The debate re-emerged a year later, in December 2001, at Laeken in Belgium when Member States had to think about the preparations for the 2004 IGC. There was agreement that the institutional tinkering witnessed at Amsterdam and Nice was neither sufficient to equip the Union for the challenges it faced nor sufficient to engage popular enthusiasm. Instead, what was necessary was a process of democratic regeneration. Such an effort would not only require wide-ranging institutional reform. It was also a process that could not be managed just by an IGC. Accordingly, an extraordinary process was called for. The draft Treaty would be formulated by a Convention, named the Future of Europe Convention, which would be modelled on the Convention used to draft the EU Charter of Fundamental Rights. Chaired by Giscard d’Estaing, the former French President, the Convention would comprise 105 members from national governments, parliaments, MEPs and the Commission. The accession states would be involved as would civil society. The Convention would meet in plenary session, with all members present, once a month. It was the final decision-making body, responsible for adopting any agreed text. Its decisions were to be taken in public by consensus rather than by vote. The Convention opened in February 2002. Although its initial mandate was merely to identify options for the subsequent IGC, knowing that a vast majority of the Convention was willing to reach an ambitious agreement, Giscard discarded this idea at the first session stating that its purpose should be a single proposal opening the way for a ‘Constitution for Europe’.117 Sixteen months later, he presented this proposal, the Draft Constitutional Treaty, with much pomp and fanfare to the Member States. The IGC following the Convention was short. There was only one significant item in the Draft Constitutional Treaty which was subject to significant amendment. Spain and Poland were unhappy about the voting rights accorded to them in the EU law-making process. However, after a change of government in Spain and a series of small but important amendments to the text, the Member States changed their position and signed the Constitutional Treaty, at a ceremony in Rome, in October 2004. To mark both the significance of the Constitutional Treaty and the spirit of democratic renewal, ten Member States arranged for referendums to determine whether or not they should ratify it. The first was held in Spain, where the Treaty was approved by 72 per cent of those who voted. However, in the next referendums, held in France (on 29 May 2005) and in the Netherlands (three days later, on 1 June 2005), the Treaty was roundly rejected, with 55 per cent voting against it in France and 62 per cent voting against it in the Netherlands. Analysis of the reasons for the ‘No’ vote in the Netherlands and France showed the Constitutional Treaty had little hold or meaning for public debate. Despite voters being reasonably well-informed about the details of the Constitutional Treaty, the reasons for their vote had little to do, in most cases, with its legal details. Opponents were protesting against globalisation, the consequences of the 2004 enlargement, fears about Turkish membership of the Union, and in the Netherlands there was anger amongst voters at the perceived power of the large Member States in the Union.118 117

118

P. Magnette, ‘In the Name of Simplification: Coping with Constitutional Conflicts in the Convention on the Future of Europe’ (2005) 11 ELJ 432, 436. Flash Eurobarometer 171 and 172, European Constitution: Post-Referendum Survey in France and in The Netherlands. This was notwithstanding that 88 per cent of the French and 82 per cent of the Dutch still had positive perceptions of the Union in the period after the referendum. European Commission, The Period of Reflection and Plan D, COM(2006)212, 2.

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In short, citizens did not buy into the need to create a new form of political community to which they would have loyalty and affinity and which had to be ‘democratically regenerated’ by them. Part of the reason is that such loyalty or affinity is challenging to generate. Bartolini has observed that it is ‘an affective or emotional relationship to the organization or group that one belongs to, and makes it difficult (if not impossible) to contemplate the possibility of abandoning such a group or organization’. He notes that it is built upon the identity, solidarity and trust that exist between members of a group.119 The development of such elements required much effort within the national context. Most notably, Bartolini has observed that the cultural, economic, coercion and politico-administrative boundaries of any modern state generally coincide and reinforce each other.120 That is to say, there is a national system of law and order, a national community with its own myths and symbols, a national welfare system, a national economy and a national administration. For better or worse, this reinforcement generates common identities. By contrast, such elements are almost completely absent in the EU context.121 To assume that they could be generated by a Convention of 105 people and a ballot was always optimistic. Instead, the absence of these elements gave the process a somewhat surreal feel with both academics and observers noting that much of the debate at the Future of Europe Convention was dominated by a disembodied, elite discourse marked by the absence of significant disagreement.122 By the end of June 2005, ratification of the Constitutional Treaty had reached an impasse. A significant majority of Member States, eighteen, had ratified the Treaty, with Luxembourg also having held a positive referendum. Of the remaining seven Member States, six (Czech Republic, Denmark, Ireland, Poland, Portugal and the United Kingdom), were scheduled to hold their own referendums. Of these, there was a significant chance of a ‘No’ vote in all bar Portugal. When combined with the French and Dutch ‘No’ votes, this not only suggested that there would be eight states unable to ratify the Treaty. It also suggested a scenario in which, out of the ten states holding referendums, the overwhelming majority, seven, might have voted against the project. The popular vote was out on the European Union.

9 THE LISBON TREATY (i) The road to Lisbon The Union was faced not with a single recalcitrant state, such as Denmark and Ireland, as with previous amending Treaties. It was instead confronted with a deep divide in which two-thirds of Member States wished to press ahead whilst one-third did not. A period of reflection was called for by the European Council which lasted until late 2006, when the Finnish government prepared the ground by engaging in a series of consultations on how to achieve institutional reform. Alongside this, a series of prominent politicians, acting under the umbrella of the organisation

119

120 121

122

S. Bartolini, Restructuring Europe: Centre Formation, System Building, and Political Structuring Between the Nation State and the European Union (Oxford, Oxford University Press, 2005) 31. Ibid. 410. For a not dissimilar argument see P. Schmitter, ‘Making Sense of the EU: Democracy in Europe and Europe’s Democratization’ (2003) 14 Journal of Democracy 71. Norman, above n. 116, 326–38; G. Stuart, The Making of Europe’s Constitution (London, Fabian Society, 2003) 19–24. C. Skach, ‘We the Peoples? Constitutionalising the European Union’ (2005) 43 JCMS 149.

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named the Action Committee for European Democracy, began to publish articles in the press indicating that the time for listening was over and that the time for action had begun.123 In March 2007, at the fiftieth anniversary of the Treaty of Rome, the German government obtained a commitment from the other Member States to place ‘the European Union on a renewed common basis before the European Parliament elections in 2009’.124 In other words, they had committed to a deadline for ratifying a new treaty. The German government’s strategy for reaching an agreement was to close the gap between the Member States in a highly structured manner. ‘Political agreement’ on the central points of disagreement was reached in closed, confidential negotiations between ministries, named ‘sherpas’. Only when political agreement was reached on the main points would the second stage, an IGC, be opened. Its tasks, however, would be limited by the mandate of the political agreement, and so restricted to translating the political agreement into legal detail and resolving any ambiguities. States wishing to introduce new points or reopen old debates would run the risk of being accused of having breached the existing political agreement, and therefore of having acted in bad faith. The process was thus to be a relatively confined affair subject to few external risks or interventions. In terms of substance, the strategy involved the use of the Constitutional Treaty as a starting point, along with the question of what had to be offered to make the Treaty acceptable to those national governments constituting the recalcitrant one-third. Ultimately, for these states, the Treaty was not a question of reform, but a series of individual concessions. The Heads of Government met between 21 and 23 June 2007 to conclude the first stage of the process. The outcome was a sixteen-page mandate that was to provide the basis for an IGC that the Heads of Government indicated was to be completed by December 2007 and was to be confined to the terms of the mandate. It also indicated that the new Treaty was to follow the text of the Constitutional Treaty unless otherwise specified by the mandate. The subsequent IGC was, consequently, highly limited. By 19 October a text had been agreed informally between the Member States. On 13 December 2007, the new text, the Treaty of Lisbon was formally signed. The conclusion of the Treaty was a significant coup. It involved amendments to all of the articles in the TEU and to 216 provisions in the EC Treaty.125 There were, moreover, significant differences that had to be bridged between the twenty-seven Member States, each with their own distinct agenda and constituencies. Yet this negotiating triumph came at a cost. In particular, it created a double bind. If the Treaty of Lisbon differed significantly from the Constitutional Treaty, its nature of reform was more closed and more accelerated than any other to date. There was a lack of transparency and an exclusion of national parliaments that still remains to be justified. If the Treaty of Lisbon was not substantially different from the Constitutional Treaty, that would open negotiators to charges of arrogance for ignoring the referendum results in France and the Netherlands.

123 124

125

See www.iue.it/RSCAS/research/ACED/MissionStatement.shtml (accessed 18 July 2009). EU Council, Declaration on the occasion of the fiftieth anniversary of the signature of the Treaty of Rome, Brussels, 25 March 2007, para. 3. Statewatch, www.statewatch.org/news/2007/oct/eu-refrom-treaty-tec-external-relations-3-5.pdf (accessed 20 July 2009).

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(ii) The Treaty of Lisbon126 (a) Two treaties of equal value: the Treaty on European Union and the Treaty on the Functioning of the European Union The Treaty of Lisbon created two new treaties to replace the previous framework.127 One, confusingly, is named the Treaty on European Union (TEU). The central items set out by it are as follows: • the mission and values of the European Union: respect for the rule of law, the principle of limited powers, respect for national identities and upholding democracy and fundamental rights; • the democratic principles of the Union and providing for the active contribution of national parliaments to the functioning of the European Union; • a neighbourhood policy, whereby the Union is to develop a special relationship with neighbouring countries; • the composition and central functions of the EU institutions; • detailed provisions on the Union’s external action in the TEU, in particular both its Common Foreign and Security Policy and its common security and defence policy; • procedures are set out for amendment of the two Treaties; • legal personality for the Union; • provisions governing asymmetric integration; these include the circumstances in which a Member State may leave or be expelled from the Union and when states may engage in enhanced cooperation, the procedure whereby some Member States may develop EU legislation amongst themselves where there is not sufficient will for that legislation to be adopted by all Member States. The second treaty is the Treaty on the Functioning of the European Union (TFEU). This sets out the explicit competences of the Union and, with the exception of external action, the detailed procedures to be used in each policy field. In legislative style, it is similar therefore to the existing EC Treaty. There is, however, one significant adaptation taken from the Constitutional Treaty: the competences and their nature are catalogued at the beginning of the TFEU.128

Article 3 TFEU 1. The Union shall have exclusive competence in the following areas: (a) customs union; (b) the establishing of the competition rules necessary for the functioning of internal market; (c) monetary policy for the Member States whose currency is the euro;

126

127

128

As with discussion of other Treaty amendments in this chapter, the section below covers only the most salient features with detailed discussion left to subsequent chapters. On the Treaty of Lisbon see P. Craig, ‘The Treaty of Lisbon: Process, Architecture and Substance’ (2008) 33 ELRev. 137; M. Dougan, ‘The Treaty of Lisbon 2007: Winning Minds not Hearts’ (2008) 45 CMLRev. 617; Y. Devuyst, ‘The European Union’s Institutional Balance After the Treaty of Lisbon: “Community Method” and “Democratic Deficit” Reassessed’ (2008) 39 Georgetown Journal of International Law 247. A thoughtful and detailed assessment is provided by House of Lords European Union Committee, The Treaty of Lisbon: An Impact Assessment (London, HL,10th Report, Session 2007–08, 2008). The discussion is set out in more detail in Chapter 5 at pp. 206 et seq .

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(d) the conservation of marine biological resources under the common fisheries policy; (e) common commercial policy. 2. The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or insofar as its conclusion may affect common rules or alter their scope.

Article 4 TFEU 1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6. 2. Shared competence between the Union and the Member States applies in the following principal areas: (a) internal market; (b) social policy, for the aspects defined in this Treaty; (c) economic, social and territorial cohesion; (d) agriculture and fisheries, excluding the conservation of marine biological resources; (e) environment; (f) consumer protection; (g) transport; (h) trans-European networks; (i) energy; (j) area of freedom, security and justice; (k) common safety concerns in public health matters, for the aspects defined in this Treaty. 3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs. 4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.

Article 5 TFEU 1. The Member States shall coordinate their economic policies within the Union. To this end, the Council shall adopt measures, in particular broad guidelines for these policies. Specific provisions shall apply to those Member States whose currency is the euro. 2. The Union shall take measures to ensure coordination of the employment policies of the Member States, in particular by defining guidelines for these policies. 3. The Union may take initiatives to ensure coordination of Member States’ social policies.

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Article 6 TFEU The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be: (a) protection and improvement of human health; (b) industry; (c) culture; (d) tourism; (e) education, vocational training, youth and sport; (f) civil protection; (g) administrative cooperation.

Each treaty is to have ‘the same legal value’.129 It is however unclear what this means. Is each to be interpreted in the light of the other? If that is the case, it could lead to the more detailed TFEU being given an expanded remit as a result of the broader mission of the TEU. Or does it mean that each curtails the other? In this case, many of the broader provisions of the TEU will be little more than rhetorical as they will be curtailed by the substance of the TFEU.

(b) Enhancing the democratic credentials of the Union A different ethos permeates the Lisbon Treaty than the Constitutional Treaty. The latter was concerned to establish an autonomous pan-European constitutional democracy. The Constitutional Treaty therefore carried a number of procedures and symbols associated with constitutional democracy. At the most ephemeral level, there was provision for a European Union flag, anthem, motto and holiday. The Constitutional Treaty also contained all the tools of an autonomous European constitutional democracy. There was a primacy clause asserting the precedence of EU law over national law within the limits of the Treaty. A Bill of Rights of sorts was established with the incorporation of the EU Charter of Fundamental Rights, and EU Regulations and Directives were to become known as ‘laws’ or ‘framework laws’. The Union was to have its own legal personality and Foreign Minister. Whilst the exact working out of these provisions resulted in much curtailed powers than those enjoyed by most liberal democratic states, they did convey the imagery of statehood. The Treaty of Lisbon, in the words of the mandate to the IGC, abandoned the ‘constitutional concept’.130 Almost all the above provisions were removed by the Treaty of Lisbon. The provision establishing the primacy of EU law over national law and the detailed elaboration of the Charter were removed from the main text of the Treaty. A Declaration was instead attached setting out the primacy of EU law and a provision added requiring the Union to respect the rights, freedoms and principles in the Charter. Union legislative measures were to return to their traditional designation as Regulations and Directives, and the Foreign Minister was to be known as the High Representative. To be sure, sixteen Member States signed a Declaration stating that the symbols of the Union (the flag, the anthem, the motto, the provision on the 129 130

Article 1(2) TFEU. EU Council, IGC 2007 Mandate, Brussels, 26 June 2007, para. 1.

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euro as the European Union currency and the holiday) would remain as ‘symbols to express the sense of community of the people in the European Union and their allegiance to it’.131 Yet the fact that this was hidden away as a remote Declaration signed by a bare majority of states indicated constitutionalism’s fall from grace. If the constitutional conceit was abandoned by Lisbon, there was still a concern that the democratic qualities of the Union should have a more autonomous presence so that a Frankenstein should not be created which develops large numbers of laws and administers lives in an undemocratic way. This ethos is rooted around a twin set of principles. The first is that the European Union is founded upon and must respect a set of liberal values that are shared across the Union and form part of a common identity. The nature and content of these values are set out in the first substantive provision of the TEU.

Article 2 TEU The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

These values are not rhetorical, nor do they form some general aspirational goal. Instead, they are to be recognised by the Union, must not be violated by it, and the Union commits itself to external policing by the European Court of Human Rights.132 The commitment to respect fundamental rights was not uncontroversial. It begs questions as to which values were to be protected and whether they would be used to bootstrap new roles for the European Union. These concerns were strongly articulated by the British and Polish governments and a Protocol was therefore added, which stated that the Charter did not extend the ability of any court to declare Polish or British measures incompatible with EU fundamental rights law. As these states had particular concerns about the development of EU social rights, the Protocol provided that Title IV of the Charter, in which most of these rights were incorporated, was only justiciable in these states insofar as the latter provided for them in national law. The other set of principles is a more explicit commitment by the Union to democracy. The Lisbon Treaty, in particular, requires the Union to respect two forms of democracy: representative democracy and participatory democracy.133 These principles are not just constraints that the Union must not violate. They are also a statement of its qualities. The idea of the European Union being a representative democracy was challenged before the German Constitutional Court in a challenge to the ratification of the Lisbon Treaty. Whilst allowing for the ratification of the Treaty, in that it only provided for limited powers to be conferred on the European Union, the German Constitutional Court agreed that the European Union was not a democracy when measured against national standards. It considered representative democracy, the principle of a legislator based upon one person per vote, as the heart of a democratic system. It also 131 132 133

Declaration 52 to the Treaty of Lisbon on the symbols of the European Union. Article 6(1) TEU. This is dealt with in much more detail in Chapter 6 at pp. 259–62. Article 10 TEU.

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considered the Union to be characterised by what it termed ‘excessive federalisation’. By this, it meant the principle, as in federal systems, of equality between the constituent elements. In the case of the European Union, this meant equality of votes between the nation-states.

2 BvE 2/08 Gauweiler v Treaty of Lisbon, Judgment of 30 June 2009 280. Measured against requirements in a constitutional state, the European Union lacks, even after the entry into force of the Treaty of Lisbon, a political decision-making body which has come into being by equal election of all citizens of the Union and which is able to uniformly represent the will of the people. What is also lacking in this connection is a system of organisation of political rule in which a will of the European majority carries the formation of the government in such a way that the will goes back to free and equal electoral decisions and a genuine competition between government and opposition which is transparent for the citizens, can come about . . . contrary to the claim that Article 10.1 TEU Lisbon seems to make according to its wording, the European Parliament is not a body of representation of a sovereign European people. This is reflected in the fact that it, as the representation of the peoples in their respectively assigned national contingents of Members, is not laid out as a body of representation of the citizens of the Union as an undistinguished unity according to the principle of electoral equality. 281. Also in their elaboration by the Treaty of Lisbon, no independent people’s sovereignty of the citizens of the Union in their entirety results from the competences of the European Union. If a decision between political lines in the European Parliament receives a narrow majority, there is no guarantee of the majority of votes cast representing a majority of the citizens of the Union. Therefore the formation, from within Parliament, of an independent government vested with the competences that are usual in states would meet with fundamental objections. Possibly, a numerical minority of citizens existing according to the ratio of representation could govern, through a majority of Members of Parliament, against the political will of an opposition majority of citizens of the Union, which does not find itself represented as a majority. It is true that the principle of electoral equality only ensures a maximum degree of exactness as regards the will of the people under the conditions of a system of strict proportional representation. But also in majority voting systems, there is a sufficient guarantee of electoral equality for the votes at any rate as regards the value counted and the chance of success, whereas it is missed if any contingent that is not merely insignificant is established. 282. For a free democratic fundamental order of a state . . . , the equality of all citizens when making use of their right to vote is one of the essential foundations of state order . . . 288. It is true that the democracy of the European Union is approximated to federalised state concepts; measured against the principle of representative democracy, however, it would to a considerable degree show excessive federalisation. With the personal composition of the European Council, of the Council, the Commission and the Court of Justice of the European Union, the principle of the equality of states remains linked to national rights of determination, rights which are, in principle, equal. Even for a European Parliament elected with due account to equality, this structure would be a considerable obstacle for asserting a representative will of the parliamentary majority with regard to persons or subject-matters. Also after the entry into force of the Treaty of Lisbon, the Court of Justice, for instance, must always be staffed according to the principle ’one state, one judge’ and under the determining influence of the Member States regardless of their number of inhabitants. The functioning of the European Union continues to be characterised by the influence of the negotiating governments and the subject-related administrative and formative competence of the Commission even though the

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289.

290.

293.

294.

rights of participation of the European Parliament have been strengthened on the whole. Within this system, the parliamentary influence has been consistently further developed with Parliament’s being accorded the right to veto in central areas of legislation. With the ordinary legislative procedure, the Treaty of Lisbon makes a norm what is already factually decisive under the currently applicable law in many areas: in the co-decision procedure, a directive or a regulation cannot be adopted against the will of the European Parliament. The deficit of European public authority that exists when measured against requirements on democracy in states cannot be compensated by other provisions of the Treaty of Lisbon and to that extent, it cannot be justified. The European Union tries to compensate the existing considerable degree of excessive federalisation in particular by strengthening the citizens’ and associations’ rights aimed at participation and transparency, as well as by enhancing the role of the national parliaments and of the regions. The Treaty of Lisbon strengthens these elements of participative democracy aimed at procedural participation. Apart from the elements of complementary participative democracy, such as the precept of providing, in a suitable manner, the citizens of the Union and the ‘representative’ associations with the possibility of communicating their views, the Treaty of Lisbon also provides for elements of associative and direct democracy (Article 11 TEU Lisbon). They include the dialogue of the institutions of the Union with ‘representative’ associations and the civil society as well as the European citizens’ initiative. The European citizens’ initiative makes it possible to invite the Commission to submit any appropriate proposal on the regulation of political matters. Such an invitation is subject to a quorum of not less than one million citizens of the Union who have to be nationals of a ‘significant number of Member States’ (Article 11.4 TEU Lisbon). The citizens’ initiative is restricted to issues within the framework of the powers of the Commission and it requires concretisation of its procedures and conditions under secondary law by a regulation. . . Also the institutional recognition of the Member States’ Parliaments by the Treaty of Lisbon cannot compensate for the deficit in the direct track of legitimisation of the European public authority that is based on the election of the Members of the European Parliament. The status of national parliaments is considerably curtailed by the reduction of decisions requiring unanimity and the supranationalisation of police and judicial cooperation in criminal matters. Compensation, provided for by the Treaty, by the procedural strengthening of subsidiarity shifts existing political rights of self-determination to procedural possibilities of intervention and judicially assertable claims of participation; this was concurringly emphasised in the oral hearing. Neither the additional rights of participation, which are strongly interlocked as regards the effects of their many levels of action and in view of the large number of national parliaments, nor rights of petition which are associative and have a direct effect vis-à-vis the Commission are suited to replace the majority rule which is established by an election. They are intended to, and indeed can, ultimately increase the level of legitimisation all the same under the conditions of a Staatenverbund (association of States) with restricted tasks.

The view of the German Constitutional Court is not simply that the European Union is not yet sufficiently democratic. It is that it can never be fully democratic. For the Union to realise the standard of democracy set by the German Constitutional Court, it would have to turn itself into a unitary state. One would need a single legislative assembly in which representation in the dominant chamber was not allocated according seats per Member State but simply on the

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basis of European citizenship. As we shall see, the only directly elected body, the European Parliament, is not the dominant chamber, and there is no prospect of seats being allocated other than on a national basis. Indeed, the idea of national allocation (or excessive federalisation in the language of the German Constitutional Court) permeates all EU decision-making structures. To eradicate it is not only politically unrealistic but would create a beast unrecognisable from the current European Union. The judgment is thus a powerful indictment of the European Union. Whilst used by the German Constitutional Court to limit the tasks which can be granted to the Union,134 it also begs questions about the legitimacy of the European Union when acting within its aegis. For, if the Union can only look at best for what the German Constitutional Court terms ‘democratic supplementation’135 there is a challenge to justify why it should have wide-reaching authority over our lives or precedence over national laws or local traditions.

(c) Supranationalisation of the Union The Lisbon Treaty kept the new explicit competences enumerated by the Constitutional Treaty: energy, intellectual property, space, humanitarian aid, sport and civil protection. In addition, it added a further one: that of climate change. Yet there was already competence to carry out activity here under other legal bases, and the Union had already taken significant measures in all these fields. The most important reform was not a formal extension of EU powers but an abolition of the three pillar structure established at Maastricht. All three pillars were brought into a single framework. Whilst provision was made for the Common Foreign and Security Policy to continue to be treated discretely, activities governed by the third pillar, namely policing and judicial cooperation in criminal matters, were now to be governed by the same procedures as those traditionally applied to EC activities. This reform had two important implications. The first was a significant extension of the supranational qualities and procedures of the Union to govern more extensively the sensitive fields of policing and criminal justice. The second was the extension of the so-called flexibility provision which permits legislation to be adopted to realise broad EU objectives if no more specific legal provision allows this. As the previous procedure applied only to the EC Treaty, the new procedure has a wider remit as it applies not merely to Community but to all Union activity. Member States sought to draw some of the teeth from the unification of the pillars through the insertion of a new proviso stating that national security remains the sole responsibility of each Member State. The flexibility provision was amended so that it cannot be used as a legal base for matters relating to common and foreign security, and a Declaration was inserted stipulating that it could not be used to enable de facto amendment of the Treaties. In addition, specific provision was made for the United Kingdom and Ireland. A Protocol was introduced which amends and extends that granted at Amsterdam. In addition to being free to decide whether or not to participate in individual pieces of legislation on visas, asylum, immigration and other policies related to free movement of persons, they had now a parallel entitlement in the fields of policing and judicial cooperation in criminal justice. If either Member State chooses not to participate, it would not be bound by that legislation.

134 135

See pp. 194–8. This term is used at para. 272 of the judgment, above n. 82.

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(d) Recasting the institutional setting The Constitutional Treaty was largely about institutional reform. Its proposals were adopted largely unscathed in the Treaty of Lisbon. QMV was extended to about fifty new areas. Provision was also made for legislative procedures based on the unanimity vote in the Council to be altered to QMV without the need for an IGC. In terms of the powers of the European Parliament, the co-decision procedure, which grants it a veto, has been applied to forty new areas. In addition, it has been granted significant powers of assent, most notably with regard to Article 352 TFEU and anti-discrimination, whereby its agreement must be obtained before any legislative proposal can become law. The Treaty of Lisbon also extended the powers granted to national parliaments. They were given additional time to consider legislative proposals and increased powers to call for a proposal to be reviewed on the ground that it does not comply with the principle of subsidiarity, which provides that EU measures should only be adopted if the objectives of the action cannot be sufficiently achieved by Member States and by reason of their scale or effects can be better realised through Union action. This increase in QMV and European Parliament powers led to the introduction of some caveats. ‘Brake’ procedures were added where national governments could insist that the matter be discussed at European Council level – and therefore be subject to unanimity – if a measure touched fundamental aspects of their social security or criminal justice systems. The French government, in particular, was concerned that market liberalising measures might in some way undermine national public services. A Protocol on Services of General Interest was therefore added which stated that nothing in the Treaties affected the competence of Member States to provide, commission or organise non-economic services of a general interest.136 Internal reforms were also made to the EU institutions. Commission membership is slimmed down to comprise, from 2014, a number corresponding to two-thirds of the number of the Member States. The President of the Commission was also given the unilateral power to dismiss individual Commissioners. With regard to the European Parliament, the cap on the number of MEPs in the European Parliament, 732, is retained. The central change to the Council was the introduction of a new formula for QMV in which there will be a qualified majority if 55 per cent of states representing at least 65 per cent of the population vote for it, and at least four states are required to vote against a measure for it to be blocked. Finally, the European Council was finally recognised as a formal EU institution. There were also a number of institutional innovations. First, a President of the European Council elected by the European Council for a once renewable two and a half year period is established. Her job will be to drive forward and prepare the work of that institution. Secondly, a High Representative of the European Union is established. A member of both the Council and the Commission, her duty is to represent the Union in matters relating to the Common Foreign and Security Policy and ensure the consistency of the Union’s external action. Finally, provision is made for citizens’ initiatives whereby the Commission is obliged to consider proposals for legal measures made by petitions of one million citizens who are nationals of a significant number of Member States.

136

See pp. 1035–7.

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(iii) Ratification of the Lisbon Treaty The ratification of the Lisbon Treaty was to follow the new ethos set out by that Treaty. This was to be no big pan-European constitutional moment in which, through referendums, the peoples of Europe participated in the creation of a new pan-European constitutional democracy. Instead, ratification was to take place, discretely, through national processes, which were in most cases national parliamentary ones. Indeed, Hungary set a record by ratifying the Lisbon Treaty four days after its signature. Only one state, Ireland, was to have a referendum, and this was because it was constitutionally required to do so. If the ethos and symbolism of the Lisbon Treaty were different from the Constitutional Treaty, for the overwhelming majority of states, the institutional detail and extension of supranational competences were not significantly so.137 This begged the question as to what weight was being given to the referendum results in the Netherlands and France and for the promises to hold referendums in the five other states which had promised to do so and had never held a referendum. The question was particularly challenging for two very different reasons. The first relates to the nature of the Constitutional Treaty process. As has been said, this process had (unsuccessfully) been about mobilising popular loyalty, affection and support for the European integration process. The route chosen was to garner these elements around a particular document, the Constitutional Treaty. European publics were asked to bless a text that had been developed in a civil and plural manner. This was always an optimistic strategy, but, alongside this, it conveys the message to all that this text has a significance of the highest order. If the substance of this text is now to be adopted not only through different processes but through processes that seem to fly against previous wishes, a climate of mistrust is unsurprising. The second relates to the nature of the European Union. Selling institutional reform to the public is hard work in any circumstances, as procedures seem arcane and there is no obvious large policy goal, such as the single market or EMU, around which debate can be mobilised. The European Union is particularly difficult, for, as the German Constitutional Court pointed out, its procedures are hybrid ones, oscillating between being similar but not identical to those found in national democracies and intergovernmental ones. Ratification was not therefore straightforward. On 12 June 2008, the Irish referendum on the Lisbon Treaty was held; 53.4 per cent of the voters rejected it. Subsequent analysis of the ‘No’ vote suggested lack of information about the Lisbon Treaty as an important determinant, as well as concerns about perceived threats to Irish abortion laws and neutrality, as well as possible conscription to a pan-European army. None of these were countenanced by the Lisbon Treaty amendments. The only amendment that weighed heavily was the possible loss of an Irish Commissioner generated by the reduction of the Commission.138 In response, in December 2008, national governments agreed that they would take a Decision upon the entry into force of the Lisbon Treaty providing that the Commission would retain

137

138

For a thoughtful comparison see House of Commons, EU Reform: A New Treaty or an Old Constitution, Research Paper 07/64 (London, House of Commons, 2007). Ireland and the United Kingdom obtained opt-outs from the most significant extension of supranational competences, policing and judicial cooperation in criminal matters, something not granted to them by the Constitutional Treaty. The main research for the Irish government was carried out by Milward Brown IMS, Post Lisbon Treaty Research Findings, available at http://angl.concourt.cz/angl_verze/cases.php (accessed 20 July 2009).

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one Commissioner from each Member State.139 This will, of course, prevent its being reduced to two-thirds of the number of Member States, and is, in effect, an amendment to the Lisbon Treaty. In June 2009, the Member States set out three sets of guarantees