Part III
Substantive Law
Introduction
The gradual integration of the various national markets into a ‘common’ or ‘internal’ European market can be achieved by two complementary mechanisms. First, the Treaties may themselves ‘negate’ certain national barriers to intra-Union trade. For the free movement of goods, this form of negative integration was discussed in the previous chapter. A second technique is ‘positive integration’: the Union here adopts positive legislation to – partly or exhaustively – remove obstacles to trade arising from the differences in national laws.
This idea of integration through legislation stands behind Article 26 TFEU, which states:
The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties.
Legislative competences for positive integration are placed within the specific policy areas of the Union. However, the Treaties also contain a number of horizontal competences that generally allow the Union to create an ‘internal market’. These ‘internal market’ competences can be found in Chapter 3 of Title VII of the TFEU. They have been the bedrock of the Union’s positive integration programme. Articles 114 and 115 here provide the Union with a legislative competence ‘for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market’.
These two general internal market competences apply to all four fundamental freedoms. They are complemented by three more ‘specific’ internal market competences. With regard to fiscal measures, Article 113 allows the Union to harmonise legislation on ‘forms of indirect taxation to the extent that such harmonisation is necessary to ensure the establishment and functioning of the internal market and to avoid distortions of competition’. By contrast, Article 116 targets distortions of competition, while Article 118 empowers the Union ‘[i]n the context of the establishment and functioning of the internal market’ to ‘establish measures for the creation of European intellectual property rights’. An overview of these competences can be found in Table 14.1.
This chapter explores the constitutional principles and limits governing positive integration. Section 1 analyses the scope and nature of the general internal market competence(s): Articles 114 and 115. We shall see there that the Union has an – almost – unlimited competence to harmonise national laws that affect the establishment or functioning of the internal market. Section 2 looks at the more limited special competences given to the Union in Articles 113 and 118. Section 3 investigates how the Union can use its internal market competences, as the Union may exercise its powers through distinct harmonisation methods. Section 4 finally offers an excursion into a particular – yet fundamentally important – aspect of positive integration in the internal market: the Common Agricultural Policy.
Cases
Legislation
EU Regulations
Regulation (EEC) No. 2759/75 of the Council of 29 October 1975 on the common organization of the market in pigmeat, [1975] OJ L 282/1
Council Regulation (EEC) No. 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products, [1992] OJ L 182/1
Council Regulation (EC) No. 40/94 of 20 December 1993 on the Community trade mark, [1994] OJ L 11/1
Regulation (EC) No. 2065/2003 of the European Parliament and of the Council of 10 November 2003 on smoke flavourings used or intended for use in or on foods, [2003] OJ L 309/1
Council Regulation (EC) No. 207/2009 of February 26, 2009, on the Community trade mark, [2009] OJ L 78/1
Regulation (EU) No. 1257/2012 of the European Parliament and of the Council of 17 December 2012 implementing enhanced cooperation in the area of the crea- tion of unitary patent protection, [2012] OJ L 361/1
Regulation (EU) No. 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No. 637/2008 and Council Regulation (EC) No. 73/ 2009, [2013] OJ L 347/608
EU Directives
Commission Directive 70/50/EEC of 22 December 1969 based on the provisions of Article 33(7), on the abolition of measures which have an effect equivalent to quantitative restrictions on imports and are not covered by other provisions adopted in pursuance of the EEC Treaty, [1970] OJ L 13/29
Council Directive 70/157/EEC of 6 February 1970 on the approximation of the laws of the Member States relating to the permissible sound level and the exhaust system of motor vehicles, [1970] OJ L 42/16
Council Directive 70/220/EEC of 20 March 1970 on the approximation of the laws of the Member States relating to measures to be taken against air pollution by gases from positive-ignition engines of motor vehicles, [1970] OJ 76/1
Council Directive 73/173/EEC of 4 June 1973 on the approximation of Member States’ laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous preparations (solvents), [1973] OJ L189/ 7
Council Directive 76/768/EEC of 27 July 1976 on the approximation of the laws of the Member States relating to cosmetic products, [1976] OJ L 262/169 (Cosmetics Directive)
Council Directive 79/831/EEC of 18 September 1979 amending for the sixth time Directive 67/548/EEC on the approximation of the laws, regulations and admin- istrative provisions relating to the classification, packaging and labelling of dangerous substances, [1979] OJ L 259/10
Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, [1983] OJ L 109/8
Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liabi- lity for defective products, [1985] OJ L 210/29 (Product Liability Directive)
Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, [1989] OJ L 40/1 (Trade Mark Directive 1989)
Council Directive 89/622/EEC of 13 November 1989 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the labelling of tobacco products, [1989] OJ L 359/1
Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zoo- technical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market, [1990] OJ L 224/ 29
Council Directive 92/83/EEC of 19 October 1992 on the harmonization of the structures of excise duties on alcohol and alcoholic beverages, [1992] OJ L 316/ 21
Directive 98/34/EC of the European Parliament and the Council of 22 June 1998, laying down a procedure for the provision of information in the field of technical standards and regulations, [1998] OJ L 204/37
Directive 98/43/EC of the European Parliament and of the Council of 6 July 1998 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products, [1998] OJ L 213/9 (Tobacco Advertising Directive)
Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions, [1998] OJ L 213/13
Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC, [2001] OJ L 106/1 (GMO Directive)
Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety, [2002] OJ L 11/4 (General Product Safety Directive 2001)
Council Directive 2003/48/EC of 3 June 2003 on taxation of savings income in the form of interest payments, [2003] OJ L 157/38
Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, [2003] OJ L 283/ 51
Directive 2005/55/EC of the European Parliament and of the Council of 28 September 2005 on the approximation of the laws of the Member States relating to the measures to be taken against the emission of gaseous and particulate pollutants from compression-ignition engines for use in vehicles, and the emission of gaseous pollutants from positive-ignition engines fuelled with natural gas or liquefied petroleum gas for use in vehicles, [2005] OJ L 275/1
Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, [2006] OJ L 347/1
Directive 2008/95/EC of the European Parliament and the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks, [2008] OJ L 299/25 (Trade Mark Directive 2008)
Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC, [2009] OJ L 9/12
Council Directive 2011/64/EU of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco, [2011] OJ L 176/24
Council Directive 2011/96/EU of 30 November 2011 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, [2011] OJ L 345/8 (Parent–Subsidiary Directive)
EU Decisions
International Agreements
Figures
No figures available for this chapter.
Further Reading
Books
C. Barnard and J. Scott, The Law of the Single European Market: Unpacking the Premises (Hart, 2002)
J. Kokott, EU Tax Law (Beck, 2021)
I. Maletic, The Law and Policy of Harmonisation in Europe’s Internal Market (Edward Elgar, 2013)
J. A. McMahon, EU Agricultural Law (Oxford University Press, 2007)
E. Ní Chaoimh, The Legislative Priority Rule and the EU Internal Market for Goods (Oxford University Press, 2022)
R. Schütze, From Dual to Cooperative Federalism: The Changing Structure of European Law (Oxford University Press, 2009)
M. van den Brink, Legislative Authority and Interpretation in the European Union (Oxford University Press, 2024)
T. van den Brink and V. Passalacqua (eds.), Balancing Unity and Diversity in EU Legislation (Elgar, 2024)
S. Weatherill, Law and Integration in the European Union (Clarendon, 1995)
Articles
K. Alter and S. Meunier-Aitsahalia, ‘Judicial Politics in the European Community’ (1994–5) 26 Comparative Political Studies 535
Sir R. Arnold, ‘An Overview of European Harmonisation Measures in Intellectual Property Law’ in A. Ohly and J. Pila (eds.), The Europeanization of Intellectual Property Law (Oxford University Press, 2013), 25
R. Barents, ‘The Internal Market Unlimited: Some Observations on the Legal Basis of Community Legislation’ (1993) 30 CML Rev 85
A. Dashwood, ‘Hastening Slowly: The Community’s Path towards Harmonization’ in H. Wallace, W. Wallace and C. Webb (eds.), Policy-making in the European Community (Wiley & Sons Ltd, 1983), 177 G. Davies, ‘Can Selling Arrangements Be Harmonised?’ (2005) 30 EL Rev 37
M. Dougan, ‘Minimum Harmonization and the Internal Market’ (2000) 37 CML Rev 853
C. -D. Ehlermann, ‘The Internal Market following the Single European Act’ (1987) 24 CML Rev 361
K. Punhagen and P. Feindt, ‘Principles-Based Regulation: Blueprint for a “New Approach” for the Internal Agricultural Market’ (2017) 42 EL Rev. 722
N. de Sadeleer, ‘Procedures for Derogation from the Principle of Approximation of Laws under Article 95 EC’ (2003) 40 CML Rev 889
P. J. Slot, ‘Harmonisation’ (1996) 21 EL Rev 378
S. Weatherill, ‘The Limits of Legislative Harmonization Ten Years after Tobacco Advertising: How the Court’s Case Law Has Become a “Drafting Guide”’ (2011) 12 German Law Journal 827
How to Find (and Read) the EU Treaties
The EU Treaties constitute the primary law of the Union. The formula the ‘EU Treaties’ or simply ‘the Treaties’ commonly refers to two Treaties: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU).
The ‘Treaties’ are the result of a long ‘chain novel’ of consecutive treaties (see Table 20.1). They started out from three ‘Founding Treaties’ that created the European Coal and Steel Community (1951), the European Atomic Energy Community (1957) and the European (Economic) Community (1957). A myriad of subsequent ‘Amendment Treaties’ and ‘Accession Treaties’ gradually changed the textual basis of the three Communities significantly; and this first treaty base would be complemented by a second treaty base in 1992, when the Maastricht Treaty created the (old) European Union.
To simplify the – very complex – textual foundations of the old European Union and European Communities Treaties, the Member States tried to create a single treaty in the early 2000s. The 2004 Constitutional Treaty was indeed intended to repeal all previous treaties; and it was to merge the European Union with the European Communities. Yet the attempt to ‘recreate’ one Union, with one legal personality, on the basis of one treaty failed; and the Member States thereafter resorted to yet another ‘Amendment Treaty’: the 2007 Reform Treaty – also called the Lisbon Treaty.
Despite its modest name, the Lisbon Treaty constitutes a radical new ‘chapter’ in the Union’s constitutional chain novel. For while it formally builds on the original ‘Founding Treaties’, it has nonetheless ‘merged’ the old ‘Community’ legal order with the old ‘Union’ legal order into a new ‘Union’ legal order.
Nevertheless, unlike the 2004 Constitutional Treaty, the 2007 Lisbon Treaty has not created a single treaty base for the European Union. Instead, it recognises the existence of two (main) treaties: the Treaty on European Union and the Treaty on the Functioning of the European Union. The division into two EU Treaties thereby follows a functional criterion: the Treaty on European Union (TEU) contains the general provisions defining the Union, while the Treaty on the Functioning of the European Union (TFEU) contains the specific provisions with regard to the Union institutions and policies. One of the new features of the post-Lisbon era is the possibility of minor treaty amendments instigated by European Council Decisions.
In addition to ‘Amendment Treaties’ there are now also ‘Amendment Decisions’ adopted by the European Council (see Table 21.4). The EU Treaties can today be found on the European Union’s
EUR-Lex website: http://eur-lex.europa.eu/collection/eu-law/treaties.html, but there are also a number of solid paper copies such as Blackstone’s EU Treaties & Legislation or my own EU Treaties and Legislation collection. What is the structure of today’s EU Treaties? The structure of the TEU and TFEU is shown in Table 20.4. The (longer) TFEU is divided into ‘Parts’ – ‘Titles’ – ‘Chapters’ – ‘Sections’ –‘Articles’, while the (shorter) TEU only starts with a division into ‘Titles’. The EU Treaties are joined by numerous Protocols and the ‘Charter of Fundamental Rights’. According to Article 51 TEU, Protocols to the Treaties ‘shall form an integral part thereof’; and the best way to make sense of them is to see them as legally binding ‘footnotes’ to a particular article or section of the Treaties.
By contrast, the Charter is ‘external’ to the Treaties; yet it also has ‘the same legal value as the Treaties’.
How to Find (and Read) EU Secondary Law
The Union publishes all of its acts in the Official Journal of the European Union. Paper versions can be found in every library that houses a ‘European Documentation Centre’, but electronic versions are also openly available on the Union’s EUR-Lex website: http://eur-lex.europa.eu/oj/direct-access.html. The Union distinguishes between two Official Journal series: the L-series and the C-series. The former contains all legally binding acts adopted by the Union (including its international agreements), while the latter publishes all other information and notices. Originally, only the paper version of the Official Journal was ‘authentic’; but since 1 July 2013, electronic versions of the Official Journal (e-OJ) are equally authentic and therefore endowed with formal legal force.
Union secondary law will first mention the instrument in which it is adopted. It will typically have the form of a ‘Regulation’, a ‘Directive’ or a ‘Decision’. This will be followed by two figures. In the past, where the Union act was a regulation, the figure was: number/year; while for directives and decisions this was inversed: year/number. However, since 2015, this has changed and all main Union instruments are now arranged by year/number.treaty base would be complemented by a second treaty base in 1992, when the Maastricht Treaty created the (old) European Union.
Where the year and number are known for a given EU act, the easiest way to find it is to use the Union’s EU-lex search engine: http://eur-lex.europa.eu/homepage.html. Importantly, there may be two or more acts for a given number combination, especially where a ‘legislative’ act has been followed by a non-legislative act. For two types of non-legislative acts – namely: ‘delegated’ and ‘implementing’ acts – the EU Treaties require that they contain the word ‘delegated’ or ‘implementing’ in their title. This is to indicate – at first glance – that these executive acts have been adopted according to a particular decision-making procedure. States thereafter resorted to yet another ‘Amendment Treaty’: the 2007 Reform Treaty – also called the Lisbon Treaty.
What is the structure of a piece of Union legislation? After its ‘Title’ there follows a brief summary of the decision-making procedure that led to the adoption of the act – including a reference to the legal competence on which it was based. Thereafter comes the ‘Preamble’, which sets out the reasons for which the Union act has been adopted. The content of the act is subsequently set out in various ‘articles’, which may be grouped into ‘Sections’ and ‘Chapters’. For very technical Union legislation, there may also be an Annex – which, like a ‘Schedule’ in a UK statute, adds detailed provisions ‘outside’ the core content of the act. To illustrate this legislative structure, let us take a closer look at the Services Directive as it would be published in the Official Journal.
How to Find (and Read) EU Court Judgments
All EU cases are identified by a number/year figure. Cases before the Court of Justice are preceded by a C-, while cases decided before the General Court are preceded by a T-( for the French ‘Tribunal’).7 The Civil Service Tribunal prefixed its cases with an F-( for the French ‘Fonction publique’). Following this unique figure come the names of the parties to the case. A full case name would for example be: Case C-144/ 04, Werner Mangold v. Rüdiger Helm. However, since no one can remember all the numbers or all the parties, EU cases often get simply abbreviated by the main party; in our case Mangold.
In the past, judgments of all EU Courts were published in paper form in the purple-bound European Court Reports (ECR). Cases decided by the Court of Justice were published in the ECR-I series; cases decided by the General Court were published in the ECR-II series, while cases decided by the Civil Service Tribunal were published in the ECR-SC series. However, as of 2012, the entire Court of Justice of the European Union decided to go ‘paperless’ and it now publishes its judgments only electronically.8 The two principal websites here are the Court’s own curia website (http://curia.europa.eu/jcms/jcms/j_6), and the Union’s general EUR-Lex website (http://eur-lex.europa.eu/homepage.html). For the purposes of this book, the easiest way is however to go to www.schutze.eu, which contains all the judgments mentioned in the main text – including the ‘Lisbon’ version of all classic EU Court judgments.
Once upon a time, judgments issued by the European Court were – to paraphrase Hobbes –‘nasty, brutish and short’. Their shortness was partly due to a structural division the Court made between the ‘Issues of Fact and of Law’ (or later: ‘Report for the Hearing’), which set out the facts, procedure and the arguments of the parties, on the one hand, and the ‘Grounds of Judgment’ on the other. Only the latter constituted the judgment sensu stricto and was often very short indeed. For the Court originally followed the ‘French’ ideal of trying to put the entire judgment into a single ‘sentence’! A judgment like Van Gend en Loos contains about 2,000 words – not more than an undergraduate essay.
This world of short judgments is – sadly or not – gone. A typical judgment issued today will, on average, be four to five times as long as Van Gend. (And in the worst-case scenario, a judgment, especially in the area of EU competition law, may be as long as 100,000 words – a book of about 300 pages!) This new comprehensiveness is perhaps the product of a more refined textualist methodology, but it also results from a change in the organisation and style of judgments. Modern judgments have come to integrate much of the facts and the parties’ arguments into the main body of a ‘single’ judgment, and this has especially made many direct actions much longer and much more repetitive! The structure of a modern ECJ judgment given under the preliminary reference procedure may be studied by looking at Figure 20.2.
How to Find EU Academic Resources
The literature with regard to European Union law has exploded in the last 30 years. Today, there exists a forest of European law journals and generalist textbooks. Moreover, since the mid 1990s ‘European’ law has increasingly developed specialised branches that are sometimes even taught separately at university (as is the case at my own university). The three main branches here are: European constitutional law, European internal market law and European competition law. The first was explored in Parts I and II, while the second branch (and elements of the third branch) were covered in Part III. In addition to these three ‘bigger’ branches, the last two decades have also seen the emergence of many ‘smaller’ branches, such as European external relations law, European labour law and European environmental law. And there now also exist specialised LLM courses on EU consumer law and EU tax law.
The list of journals (Table 21.5) is by no means comprehensive. It is meant to point the interested reader to a first gateway for an in-depth study of a particular part of European Union law. My selection focuses primarily on English-language academic sources. But it goes without saying that European Union law is a ‘European’ subject with journals and textbooks in every language of the Union.
