Cover
Title Page
Contributors
Preface
Abbreviations
Part I: International Law and EU Law
1. 1 Sui Generis? The European Union as an International Organization
  1. Introduction
  2. Defining International Organizations
  3. Functionalism in International Institutional Law
  4. The Rules of Attraction
  5. The European Union
  6. By Way of Conclusion
  7. References
2. 2 The Nature of International Law
  1. Kelsen
  2. Hart
  3. Dworkin
  4. The Status of International Law
  5. References
3. 3 The Development of European Integration and EU Constitutional Reform
  1. The Schuman Plan and the Establishment of the European Coal and Steel Community
  2. The Failure of the Proposed European Defence and Political Communities
  3. The Spaak Report and the Two Treaties of Rome 1957
  4. Political Stagnation, Legal Transformation
  5. The Single European Act
  6. The Treaty on European Union
  7. The Challenge of Enlargement
  8. The Treaty of Amsterdam
  9. The Treaty of Nice
  10. Enlargement from Fifteen to Twenty-Eight (Plus …)
  11. The Treaty Establishing a Constitution for Europe
  12. The Treaty of Lisbon
  13. Yet Further Treaty Reform …
  14. References
4. 4 The Relationship between EU Law and International Law
  1. Introduction
  2. The European Union within the Legal Framework of International Law: Embeddedness
  3. Status and Effect of International Law in the EU Legal Order: General Approach
  4. Customary International Law
  5. International Treaties
  6. The Hierarchy of International Law within the EU Legal Order
  7. Consistent (or Harmonious) Interpretation
  8. Conclusions: A More Restrictive Approach of the EU Legal Order
  9. References
5. 5 The Effect of EU Law
  1. Introduction
  2. Direct Effect and Primacy
  3. Direct Effect and Union Acts
  4. The Principle of State Liability
  5. The Reaction of the National Courts
  6. Conclusion
  7. References
Part II: EU Political Institutions and Decision Making
1. 6 EU Competences
  1. Lisbon Treaty
  2. References
2. 7 The Decision-Making Process
  1. Introduction
  2. The Evolution of the EU Decision-Making Process: Institutional Balance and Policy-Related Variation
  3. Legislative Decision Making
  4. Administrative Rule Making
  5. Other Forms of Decision Making
  6. References
3. 8 The European Union and Executive Power
  1. Bits and Pieces
  2. The “Normalized” Executive
  3. The “In-Between” Executive
  4. The “Dominant” Executive
  5. Non-EU Executive Constructions
  6. Beyond Accountability?
  7. References
4. 9 New Modes of Governance
  1. Introduction
  2. What are “New Modes of Governance” and What is their Relationship to EU Law?
  3. The Normative Debate: Strengths and Opportunities
  4. The Normative Debate: Weaknesses and Pitfalls
  5. Decline or Reemergence? New Modes of Governance and the Euro Crisis
  6. References
5. 10 The European Union and Democracy
  1. Introduction
  2. Contending Conceptions of Democracy in Europe
  3. The European Union’s Democratic Deficit
  4. Interparliamentary Coordination: Relation to the European Union’s Democratic Deficit?
  5. The Crisis and Europe’s Conundrum
  6. Conclusion
  7. References
Part III: The Court
1. 11 EU Procedural Law
  1. Introduction
  2. All Roads Lead to Lisbon: Three Gateways for a Common Framework
  3. Exploring the Gateways
  4. Somewhere “In-Between”: the Court’s Treatment of Res Judicata
  5. Conclusion
  6. References
2. 12 The Court of Justice of the European Union as a Self-Made Statesman
  1. Modest Origins and Excessive Promises
  2. The Architecture of the Court and “Judicial Self-Government”
  3. The Court’s Authority in Question
  4. Current Challenges
  5. References
3. 13 The Preliminary Rulings Procedure
  1. Introduction
  2. The Raison d’Être of the Preliminary Ruling Procedure
  3. The Main Features of the Procedure
  4. When is There an Obligation to Refer?
  5. What is Required of a Request for a Preliminary Ruling?
  6. Procedural Issues
  7. The Ruling Given by the Court of Justice
  8. Final Observations
  9. References
Part IV: Economic Dimensions of the European Union
1. 14 The Construction of the Internal Market
  1. Introduction
  2. The Creation of the Single Market
  3. Tensions Underlying the Single Market
  4. Conclusion
  5. References
2. 15 The Free Movement of Goods
  1. Introduction
  2. The Free Movement of Goods in International Economic Law and in European Law
  3. The Evolution of European Case Law
  4. Judicial Tests and National Autonomy
  5. References
3. 16 Freedom of Establishment
  1. Introduction
  2. The Nature and Extent of the Right of Establishment
  3. The Beneficiaries of the Right of Establishment
  4. Which Parties Must Respect the Freedom of Establishment?
  5. Conclusion
  6. Reference
4. 17 Free Movement of Capital
  1. Introduction
  2. Aim and Scope of Application of Article 67 EEC
  3. Capital Directive 88/361/EEC
  4. The Maastricht Treaty and the Free Movement of Capital
  5. The Sanz de Lera Case
  6. Globalization of Capital Freedom
  7. Treaty Exceptions to the Free Movement of Capital
  8. Capital Movements and Monetary Union
  9. Free Movement of Capital and an Area of Freedom, Security, and Justice
  10. The Link between the Free Movement of Capital and Other Economic Freedoms
  11. Free Movement of Capital and Company Law
  12. Free Movement of Capital beyond the Lisbon Treaty
  13. Capital Movements and Banking Union
  14. Pan-European Deposit Guarantee Scheme
  15. Capital Movements and Fiscal Union
  16. Conclusion
  17. References
5. 18 The European Economic Constitution and its Transformation Through the Financial Crisis
  1. Scope and Structure of the Argument
  2. Origins
  3. Postwar Renaissance and Early Schisms
  4. Emigration to the European Economic Community
  5. Economic and Monetary Union as a Pyrrhic Victory of Ordoliberalism
  6. The Economic Constitution in Default
  7. Epilogue: Are There No Alternatives?
  8. References
6. 19 European Private Law
  1. Introduction
  2. European Statehood and European Private Law
  3. European Civil Code Building and the Paradigmatic Importance of Legislative Competence
  4. Constitutionalization of European Private Law through Economic Freedoms and Fundamental Rights
  5. The Traditional Variant – Civil Code Building as State Building
  6. From Coordination of Member States’ Private Law Orders to a European Civil Code
  7. The Making and the Role of Academics
  8. Conceptual Deficits in the DCFR/CFR/CESL
  9. Collective Private Regulation
  10. The New Path – European Regulatory Private Law as Market State Building
  11. The Innovative Character of European Regulatory Private Law
  12. The Substance of European Regulatory Private Law
  13. Regulated Markets
  14. Commercial Practices, Contract Law, Consumer Law
  15. Competition Law, State Aids, and Public Procurement
  16. Health, Food Safety, and the Regulation of Services
  17. New Forms of Rule/Lawmaking
  18. New Devices of Private Law Enforcement
  19. The Going Together of the Old and the New Private Law
  20. References
7. 20 Consumer Protection
  1. Introduction
  2. Free Movement in the Internal Market
  3. Consumer Law – The Legislative Dimension
  4. The Relationship between EU and National Consumer Law
  5. Conclusion
  6. References
8. 21 The Economic and Monetary Union
  1. Economic and Monetary Union as a Process within Differentiated Legal Regimes
  2. A System of Overlapping Competences Shared between the European Union and its Member States
  3. Monetary Union – History and Problems of a Common Currency for Nineteen EU Member States
  4. Concluding Remarks: Horizontal and Vertical Division of Competences – A Fragile Albeit Courageous Experiment
  5. References
9. 22 EU Competition Law in a Global Context
  1. Introduction
  2. The Evolution of EU Competition Law
  3. Extraterritoriality
  4. Negative Externalities
  5. Interjurisdictional Cooperation
  6. Cartel Hypocrisy
  7. Global Initiatives
  8. Conclusions
  9. References
10. 23 EU State Aids Law
  1. Introduction
  2. Material Principles
  3. Exceptions
  4. Procedural Rules, Article 108 TFEU and Regulation 659/99/EC
  5. State Aid to the Financial Sector
  6. References
11. 24 Statecraft, States, and the Regulation of Commerce
  1. Introduction
  2. Nation-State Class Logic in the Age of the Cross-Border Classes
  3. La Raison du Plus Fou est Toujours la Meilleure
  4. References
Part V: The European Union and the External World
1. 25 EU External Relations and the Law
  1. The Constitutional Framework for the European Union’s External Relations
  2. Express and Implied Powers
  3. Pragmatic Solutions to Competence Distribution
  4. Accepting Mixity
  5. The Principle of Sincere Cooperation
  6. Accountability to Courts and Parliament
  7. The European Union’s Use of Law as an Instrument and Objective of its Foreign Policy
  8. References
2. 26 Common Foreign, Security, and Defense Policy
  1. Introduction
  2. Member States’ Obligations under the CFSP
  3. CFSP Decision Making and the Role of the Institutions
  4. The CFSP Instruments
  5. Common Security and Defence Policy
  6. Conclusion
  7. References
3. 27 EU Law and International Humanitarian Law
  1. Introduction
  2. IHL and EU Law in Case of Armed Conflicts within the European Union
  3. EU Law and Provisions of IHL Applicable in Peacetime
  4. Is the European Union an Addressee of IHL in its External Action?
  5. Extraterritorial Application of EU Human Rights Law
  6. Specific Problems for the European Union to Respect IHL
  7. The European Union Promoting IHL and its Respect
  8. Conclusion
  9. References
4. 28 Emergence of EU Maritime Law
  1. Introduction
  2. Complementing International Rules
  3. Implementing International Conventions into EU Law
  4. Concluding Remarks
  5. References
Part VI: Human Rights, Social Issues, and the Environment
1. 29 International Human Rights Law
  1. Origins of the Idea of Human Rights
  2. Sources of Human Rights Law
  3. Universal Acceptance
  4. Compliance and Domestic Implementation
  5. International Monitoring and Enforcement
  6. Limits of Human Rights Law
  7. Evolution and Reform
  8. References
2. 30 The European Union and Human Rights
  1. Introduction
  2. The Growth of Fundamental Rights in the European Union
  3. The EU Charter of Fundamental Rights
  4. The Content of the Charter
  5. The Emerging Case Law
  6. The Legal Effect and Scope of the Charter: Applicability, Protocol 30, and Horizontality
  7. Specific Problems
  8. Accession to the ECHR
  9. Human Rights as General Principles of Law
  10. Further Development of a Fundamental Rights Jurisprudence
  11. Human Rights in the Broader Context
  12. The Dilemmas of EU Fundamental Rights
  13. References
3. 31 The European Union and Social Policy
  1. Dilemmas of Social Integration: A Brief Historical Introduction
  2. The Origins
  3. From the “Social Model” to the “Social Chapter”
  4. The Employment Title and New Governance Techniques
  5. Beyond a Functionalist Approach
  6. The Lisbon Treaty
  7. Concluding Remarks and Open Questions
  8. References
4. 32 EU Citizenship
  1. Introduction
  2. History
  3. The Locus of the Rights and Duties of EU Citizenship
  4. Union Legislation – Where is Citizenship of the Union and What Does it Mean?
  5. Political Challenges in 2014
  6. References
5. 33 The International Law of Economic Migration
  1. Introduction
  2. Would an International Organization be Useful?
  3. Coherence and the Regime Complex for International Labor Migration
  4. Which Organization?
  5. Conclusion
  6. References
6. 34 EU Immigration and Asylum Law
  1. Introduction
  2. Visas and Border Controls
  3. Irregular Migration
  4. Legal Migration
  5. Asylum
  6. Conclusion
  7. References
7. 35 International Criminal Law
  1. The Concept
  2. Jurisdiction
  3. Categories of Jurisdiction
  4. Bases of Jurisdiction
  5. Jurisdiction and the Suppression Conventions
  6. The New State of the Art? The 2010 Beijing Convention
  7. References
8. 36 EU Criminal Law
  1. Introduction
  2. The Institutional Framework
  3. Harmonization of Substantive Criminal Law
  4. Mutual Recognition
  5. Harmonization for Mutual Recognition
  6. Delegation: Bodies, Offices, and Agencies
  7. The External Dimension
  8. Conclusion
  9. References
9. 37 EU Environmental Law
  1. Introduction
  2. The IED: An Introduction
  3. Best Available Techniques: Norm Generation in EU Environmental Governance
  4. Best Available Techniques: Norm Application in EU Environmental Governance
  5. Institutional Learning
  6. Conclusion
  7. References
Index
Table of Cases: Alphabetical
Table of Cases: Numerical
End User License Agreement

This edition first published 2016
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Library of Congress Cataloging-in-Publication Data

A companion to European Union law and international law / Edited by Dennis Patterson and Anna Södersten.
pages cm
Includes bibliographical references and index.

ISBN 978-0-470-67439-0 (cloth)
1. Law–European Union countries. 2. International law. I. Patterson, Dennis M. (Dennis Michael), 1955– editor. II. Södersten, Anna, editor.
KJE947.C6565 2015
341.242′2–dc23

2015026544

A catalogue record for this book is available from the British Library.

Cover image: Justice Between Force and the Law, sculpture by Enrico Quattrini, 1902, Palace of Justice, Rome. Photo © Ron Reznick

Contributors

Ari Afilalo is professor of law at Rutgers University School of Law.

Anthony Arnull is Barber Professor of Jurisprudence at University of Birmingham.

Loïc Azoulai is professor of European law at the European University Institute.

Catherine Barnard is professor of European Union law at the University of Cambridge.

Frank S. Benyon is the former principal legal advisor to the European Commission. He is now a senior fellow in the Department of Law of the European University Institute.

Roland Bieber is professor emeritus, former Jean Monnet Chair of European Law, former vice dean, University of Lausanne, and former legal advisor, European Parliament.

Andrea Biondi is professor of European Union law at King’s College London.

Djemila Carron is a PhD candidate at the University of Geneva.

Roger S. Clark is Board of Governors Professor at Rutgers University.

Paul Craig is professor of English law at the University of Oxford.

Marise Cremona is professor of European law at the European University Institute.

Deirdre Curtin is professor of European Law at the University of Amsterdam and director of the Amsterdam Center of European Law and Governance.

Mark Dawson is professor of European law and governance at the Hertie School of Governance.

Pedro Caro de Sousa is a lecturer at the University of Reading.

Bruno de Witte is professor of European Union law at the European University Institute.

Michael Dougan is professor of European law and Jean Monnet Chair in EU Law at the University of Liverpool.

Sionaidh Douglas-Scott is professor of European and human rights law at the University of Oxford.

John Erik Fossum is professor at the ARENA Centre for European Studies, Oslo.

Elspeth Guild is Jean Monnet Professor ad personam at Queen Mary, University of London and at the Radboud University Nijmegen.

Christian Joerges is a research professor at the University of Bremen and co-director of the Center for European Law and Politics and part-time senior professor for law and society at the Hertie School of Governance in Berlin. He was formerly professor of economic law at the European University Institute.

Jan Klabbers is Martti Ahtisaari Academy Professor at the University of Helsinki.

Maria Lee is professor of law at University College London.

Miguel Poiares Maduro is former director of the Global Governance Program, professor of law at the European University Institute, and Portuguese minister for regional development.

Ravi Mehta is an English barrister practicing at Blackstone Chambers and specializing in European and international law.

Hans-Wolfgang Micklitz is professor of economic law at the European University Institute.

Valsamis Mitsilegas is professor of European criminal law at Queen Mary University of London.

Giorgio Monti is professor of competition law at the European University Institute.

Dennis Patterson is Board of Governors Professor of Law and Philosophy, Rutgers University. chair in legal philosophy and legal theory, European University Institute, chair in jurisprudence and international trade at Swansea University.

Steve Peers is a professor at the University of Essex.

Zane Rasnača is a PhD researcher at the European University Institute.

Allan Rosas is a judge of the Court of Justice of the European Union.

Marco Sassòli is professor of international law at the University of Geneva.

Martin Scheinin is professor of international law and human rights at the European University Institute.

Silvana Sciarra is a judge of the Constitutional Court of Italy.

Sideek M. Seyad is an associate professor at Stockholm University

Piet Jan Slot is professor of European and economic law at the University of Leiden.

Anna Södersten is a lecturer in law at Uppsala University.

Bariş Soyer is professor of law at Swansea University.

Joel P. Trachtman is professor of international law at the Fletcher School of Law and Diplomacy, Tufts University.

Stephen Weatherill is the Jacques Delors Professor of European Law at the University of Oxford.

Ramses A. Wessel is professor of international and European institutional law at the University of Twente.

Katja S. Ziegler is Sir Robert Jennings Professor of International Law at the University of Leicester.

Preface

The essays in this book cover current topics in European Union law and international law. Why a book on both EU law and international law? The European Union is sometimes described as an international organization created by its member states under an international treaty. Under this view, it is the pacta sunt servanda formula that explains the source of authority of the Union. However, in the 1960s, the European Court of Justice declared that the European Union was properly conceived as a “new legal order” and, years later, that the EU treaties were a “Constitutional Charter.” This evolution suggests that the European Union cannot be understood as a traditional international organization. Although the nature of the Union has not been completely settled, the EU treaties clearly go beyond classic international treaties.

Moreover, EU law and international law undeniably have many points of contact. There is a fair amount of EU legislation that implements (or in other ways is derived from) international law. Further, the European Union is an important actor on the international scene: it takes an active role in the creation and shaping of international law. We believe that one needs to understand international law – or at least have some knowledge of international law – in order to understand EU law.

The central feature of this book is its integration of these fields. While the central focus is the law of the European Union, the international law entries complement and enhance the reader’s understanding of EU law. However, this book is not merely about pointing out similarities between these fields; it is equally about pointing out differences. To this end, we have asked the authors – to the extent that it is possible, and where appropriate – to integrate the two areas of law. For some of the topics, we thought it would be more fruitful to have two separate entries: one entry that deals specifically with the EU law aspects of a specific topic and another entry that deals with the international law aspects.

Much has happened since we began working on this book. The effects of the economic and financial crisis (which in Europe turned into a “Eurocrisis”) are still felt. The crisis had profound effects on both the EU member states and the European Union. Consequently, many entries include some analysis of the crisis and its effects on law. As we edited this book, there was an occasional sense that little could be expected for the future of European integration.

At the same time, the “dust” from the Lisbon Treaty started to settle. The Lisbon Treaty, which amends the European Union’s core treaties, entered into force in 2009. It marked the end of a decade of discussions among the EU member states about how to reform the Union. Legal scholars will continue to analyze the legal implications of the Lisbon Treaty for many years to come; a considerable number of the entries in this volume devote space to these aspects.

The Companion is divided into six parts: (I) International Law and EU Law; (II) EU Political Institutions and Decision Making; (III) The Court; (IV) Economic Dimensions of the European Union; (V) The European Union and the External World; (VI) Human Rights, Social Issues, and the Environment. Many entries have overlapping themes; they could fit into more than one part. However, we believe that this arrangement of the entries will facilitate the reader’s use of the book. Each part presents a multitude of topics and perspectives to a relatively coherent theme.

We have assembled some of the best scholars in these fields. We asked the authors to survey the topic assigned and, where appropriate, indicate their own view of the questions and issues at stake. The entries cover the key figures, terms, topics, and problems in the field. The collection of the entries took much longer than expected but it was certainly worth the effort; the book displays a diversity, range, and richness of legal scholarship. We wish to thank the authors who have contributed their time and talent to this Companion. Many of the entries are remarkable in terms of originality and presentation. We are grateful to Bosko Tripkovic and Sofie Christine Møller for their editorial assistance in preparing this book for publication. We are especially grateful to Felicity Marsh for copy editing that went beyond our expectations. We cannot be emphatic enough in our appreciation for her work on this project.

The Companion could serve as a reference work, but it is much more than that; it offers commentaries on the work pursued in each field. It is our hope that the entries are of interest to both beginning students and professionals.

Abbreviations

ATT	Arms Trade Treaty
BAT	best available techniques
BITs	bilateral investment agreements
BREFs	BAT reference notes
CCP	Common Commercial Policy
CEAS	Common European Asylum System
CESL	Common European Sales Law
CERD	Convention for the Elimination of Racial Discrimination
CFSP	Common Foreign and Security Policy
CFI	Court of First Instance
CFR	Common Frame of Reference
CIL	customary international law
CJEU	Court of Justice of the European Union
COREPER	Comité des représentants permanents (Committee of permanent representatives of the member states)
CRC	Convention on the Rights of the Child
CRPD	Convention on the Rights of Persons with Disabilities
CSDP	Common Security and Defence Policy
CT	Constitutional Treaty
DCFR	Draft of a Common Frame of Reference
DSB	Dispute Settlement Body
EAW	European Arrest Warrant
EC	European Community
EC Treaty	Treaty establishing the European Community
ECB	European Central Bank
ECHR	European Convention on Human Rights
ECJ	European Court of Justice
ECS	European Committee for Standardization
ECSC	European Coal and Steel Community
ECtHR	European Court of Human Rights
EDC	European Defence Community
EEAS	European External Action Service
EEB	European Environmental Bureau
EEC	European Economic Community
EEC Treaty	Treaty establishing the European Economic Community
EEZ	Exclusive Economic Zones
EFSF	European Financial Stability Facility
EFSM	European Financial Stabilization Mechanism
ELVs	emission limit values
EMAS	Eco-Management and Audit Scheme
EMU	Economic and Monetary Union
EP	European Parliament
EPC	European Political Community
EPPO	European Public Prosecutor’s Office
EQSs	environmental quality standards
ESCB	European System of Central Banks
ESM	European Stability Mechanism
ETUC	European Trade Union Confederation
EU	European Union
Euratom	European Atomic Energy Community
GATS	General Agreement on Trade in Services
GATT	General Agreement on Tariffs and Trade
GBER	General Block Exemption Regulation
GC	General Court
GDP	Gross Domestic Product
GSP+	sustainable development and good governance
ICC	International Criminal Court
ICCPR	International Covenant on Civil and Political Rights
ICESCR	International Covenant on Economic, Social and Cultural Rights
ICN	International Competition Network
ICJ	International Court of Justice
IED	Industrial Emissions Directive
IGC	Intergovernmental Conference
IHFFC	International Humanitarian Fact-Finding Commission
IHL	International Humanitarian Law
IMF	International Monetary Fund
IOM	International Organization for Migration
IPPC	Integrated Pollution Prevention and Control
MARPOL	International Convention for the Prevention of Pollution from Ships
MiFID	Markets in Financial Instruments Directive
MiFIR	Markets in Financial Instruments Regulation
NATO	North Atlantic Treaty Organization
NGO	Non-Governmental Organization
NIAC	non-international armed conflict
OAS	Organization of American States
OECD	Organisation for Economic Co-operation and Development
OIC	Organization of the Islamic Conference
OLAF	European Anti-Fraud Office
OMC	Open Method of Coordination
OPEC	Organization of Petroleum Exporting Countries
OSCE	Organization for Security and Co-operation in Europe
PCIJ	Permanent Court of International Justice
PSC	Political and Security Committee
SEA	Single European Act
SIS	Schengen Information System
TA	Treaty of Amsterdam
TEU	Treaty on European Union
TFEU	Treaty on the Functioning of the European Union
TL	Treaty of Lisbon
TSCG	Treaty on Stability, Coordination and Governance in the Economic and Monetary Union
TWG	Technical Working Group
UN	United Nations
UDHR	Universal Declaration of Human Rights
UNCLOS	United Nations Convention on the Law of the Sea
UNCTAD	United Nations Conference on Trade and Development
UNECE	United Nations Economic Commission for Europe
VCLT	Vienna Convention on the Law of Treaties
VIS	Visa Information System
WHO	World Health Organization
WTO	World Trade Organization

A Companion to European Union Law and International Law

Contributors

Preface

Abbreviations

Part I
International Law and EU Law