EU Law and Integration

Part I: EU Constitutional Law 1. Constitutional Law and Community Law: The Case of Portugal I. The Underlying Principles II. The Constitutional Context in Portugal III. The Supremacy of EC Law in the Constitution IV. The First Constitutional Case on EC Law 2. Are there Substantive Limits to the Amendment of the Treaties? I. Introduction A. Article 236 of the EEC Treaty B. Nature and Holders of the Revision Powers C. Community Phase of the Revision Procedure D. Characteristics of the Revision Mechanism E. The Real Test: The Court’s Opinions on the EEA F. Substantive Limits: A Constitutional Issue II. The Revision of the Treaty, the Process of ‘Constitutionalisation’ and the Building of an Autonomous Community Legal Order A. Building a Constitutional Order B. First Stage: Direct Effect C. Second Stage: Primacy D. Third Stage: An Unwritten Catalogue of Fundamental Rights E. Next Step: Autonomy Vis-à-Vis International Law III. Opinions 1/91 and 1/92 of the Court of Justice: A New Step in the Process of Constitutionalisation of the Treaty? A. The Judicial System in the Draft EEA Agreement B. The Three Questions Examined by the Court C. The EC Legal Order and its Autonomy D. A New Step Towards ‘Constitutionalisation’? IV. Does the Maastricht Treaty Contain Substantive Limits to the Amendment of the EU Treaty? A. Amendment Provisions in the Maastricht Treaty B. Preservation of the Acquis Communautaire C. A New Stage in the Constitutionalisation Process V. The Present State of the Issue of Substantive Limits A. Constitutional Identity and Implied Limits B. The Prohibition of Regression and its Meaning C. The Constitutional Laws of the Member States D. Constitutional and Legal Difficulties E. Who are the ‘Masters of the Treaties’? 3. Reflections on Judicial Review of the Constitutionality of EU Legislation I. The Court of Justice as a Constitutional Court II. Is There Any Need For a New Constitutional Court? III. The New Institutional Context IV. What Structure Should the Constitutional Court Have? V. Conclusion Part II: The EU Judicial Architecture 4. The Setting Up of a New Community Court—The First Year of the Court of First Instance I. Introduction A. A New Court for the Community B. The Establishment of the CFI C. Administrative Arrangements D. A Gradual Implementation E. Object of the Present Chapter II. Problems Linked to the Establishment of the CFI A. First Steps B. Rules of Procedure C. Administrative Issues III. The Workload of the Court of Justice IV. The Case-Law of the CFI and the Judicial Protection of Individuals—One Year After A. The Length of the CFI’s Judgments B. Appeals against CFI’s Judgments C. Important Judgments in Competition Cases D. An ECSC Case E. CFI’s Case-Law in Staff Cases F. A Positive Experience So Far 5. The Development of the European Judicial System Before and After Maastricht I. The First Step: The Single European Act and the Court of First Instance A. Setting up the CFI B. A Gradual Improvement in Judicial Protection C. The Initial Case-Law of the CFI D. Amicable Settlement of Proceedings E. Length and Accessibility of Judgments II. The Treaty on European Union and the CommunityJudicial System A. Access to Court and Allocation of Cases B. Sanctions in Infringement Proceedings C. Extending Jurisdiction of the CFI D. The Three Pillars and the Protection of Rights III. Future of the Community Judicial System Following the Entry into Force of the Treaty on European Union A. The New Regulation on the Community Trade Mark B. A General First Instance Administrative Court C. A Supreme and Constitutional Court D. Reforming the Preliminary Ruling Mechanism E. Regional Community Courts? F. Final Remarks 6. The New Judicial Architecture of the European Union and the Intergovernmental Conference I. Need for Reform and Challenges Ahead II. Good Ideas, Bad Solutions? III. To Strengthen a Community of Law 7. The Court System of the European Communities I. Introduction—the Main Challenges A. The First Challenge: A Growing Litigation B. A Need for Legitimacy and Protection of Rights C. The Treaty of Maastricht and the Court II. Proposals that Should be Examined with Caution A. Regional Courts B. Specialised Courts C. Access to Courts by Individuals D. Protecting Fundamental Rights E. A New Constitutional Court? III. Possible Reforms—a Gradual and Pragmatic Approach A. Reforming the CFI B. Measures Not Requiring Treaty Changes C. Amendments to the Treaties Part III: Judicial Protection of Individuals 8. Interim Measures in Judicial Proceedings as an Instrument of Protection for Individuals in European Community Law I. Introduction II. The Legal Framework on Interim Relief Proceedings and Admissibility Conditions A. General Remarks B. Legal Framework C. Conditions of Admissibility of Applications for Interim Relief III. Conditions for Interim Relief A. Urgency B. Fumus boni juris IV. Brief Analysis of Certain Specific Questions A. Interim Relief as an Instrument of Effective Judicial Protection B. Interim Relief as a Signal to the Parties C. Suspension of Operation of Interim Decisions D. Interim Relief as a Dispute Resolution Mechanism E. Appeals against Interim Orders of the CFI F. Stay of Interim Relief Proceedings and Referral 9. Effective Judicial Protection with Regard to Community Funds—May One be Directly Concerned by a Decision Addressed to a Member State? I. The Evolution of the Community Case-Law with Respect to the Requirement of ‘Direct Concern’ II. Recent Developments of the Case-Law on the Requirement of Direct Concern III. Observations on the Current Line of Case-Law 10. Application of Article 6 of the European Convention on Human Rights to ‘Posts in the Civil Service’ I. Introduction II. Difficulties of Interpretation and the Development of the Case-Law III. The Pellegrin Case IV. The Case-Law of the Court of Justice on Article 39(4) EC V. Pellegrin Reassessed VI. The Immediate Post-Pellegrin Period VII. The Happy Ending: Vilho Eskelinen VIII. Conclusion Part IV: Competition and State Aid 11. How Far Should National Courts Go in Drawing All the Necessary Inferences from the Last Sentence of Article 88(3) EC? I. Introduction II. Direct Effect of the Last Sentence of Article 88(3) EC III. Procedural Rules IV. The Respective Roles of National Courts and of the Commission A. Role of the Commission B. Role of National Courts V. Must National Courts Order Repayment of Aid that Has Not Been Notified to the Commission? VI. Reimbursement of Charges Levied to Finance Unlawful State Aid VII. The Advocates Generals’ Opinions—Pushing Forward VIII. The New Case-Law IX. Conclusion 12. Regional Selectivity and State Aid—the Azores Case I. Introduction II. The General Criteria in Article 87(1) EC for Recognising State Aid III. The Issue of Regional Selectivity in the Context of State Aid IV. The Overall Context of the Problem A. The Emergence of Regions in the Constitutional Framework of the EU B. The Allocation of Powers in Tax Matters C. The Commission Notice on Direct Taxation D. The Case-Law of the Community Courts V. The Azores Case: The Specific Context VI. The Commission’s Approach VII. The Proposed Criteria for Decision-Making A. The Arguments Underlying the Position of the Portuguese Republic B. The Criteria Proposed by the United Kingdom C. The Advocate General’s Opinion VIII. The Judgment of the Court in the Azores Case IX. Conclusion 13. Selectivity and Distortion of Competition in State Aid—an Unorthodox Analysis I. Introduction II. Material Selectivity A. The Current Case-Law B. Refining the Approach III. Regional or Geographical Selectivity 14. The Duration of Non-Compete Obligations in Full-Function Joint Ventures I. Non-Compete Obligations as Ancillary Restraints II. Evolution of the Commission’s Practice as Regards the Duration of Non-Compete Obligations III. Some Final Non-Ancillary Remarks Part V: Studies on EU Law and Economic Integration 15. The European Union and the Transformation of the Andean Pact into the Andean Community: From the Trujillo Protocol to the Sucre Act I. Introduction: The Reasons for Reform and the Context of the EU-Andean Group Relationship II. The Process of Andean Integration from an Historical Perspective and the Antecedents of the Trujillo Reform A. The Original Institutional Structure and its Later Development B. The Ups and Downs of the Andean Project: The Development of Sub-Regional Integration C. The Work Preceding Institutional Reform III. The New Institutional Structure Set Up by the Trujillo Protocol A. The Organs of the Andean Integration System B. The Coordination Mechanism C. The Andean Presidential Council D. The Andean Council of Ministers of Foreign Affairs E. The General Secretariat of the Andean Community F. The Court of Justice of the Andean Community G. The Andean Parliament H. The Advisory Bodies IV. The Range of Institutional Responses Given in the Trujillo Protocol to the Demands of Regional Integration A. A Complex Institutional Machinery B. The Preparatory Documents C. The Trujillo Protocol: Improving the System D. Institutional Problems V. The Evolution of the Andean Community and the Relations with the EU after the Signature of the Trujillo Protocol: The Sucre Summit A. Relaunching the Andean Process B. The Draft Regulations C. Ambiguities in the Draft Regulation D. The Relations Andean Community-European Union VI. Final Remarks 16. On the Application of Keck in the Field of Free Provision of Services I. Introduction II. Alpine Investments III. De Agostini IV. Is Keck Transposable into the Field of Services? 17. The Precautionary Principle in EC Law I. The Precautionary Principle as a General Principle of EC Law A. The Prehistory of Precaution B. The Principle at International Level C. The Precautionary Principle in EC Law D. The Earlier Case-Law of the Community Courts E. The BSE Cases F. Other Cases before Pfizer II. The Precautionary Principle in Pfizer A. Scientific Uncertainty in the Commission Communication on the Precautionary Principle B. Scientific Uncertainty in the Pfizer Judgment C. The Risk to be Assessed D. The Apportionment of the Burden of Proof E. The Rejection of a Purely Hypothetical Approach; Risk and Hazard F. Risk Assessment and Risk Management G. Defining the Political Objectives H. The Scientific Assessment of the Risks I. The Role of Scientific Committees J. The ‘Political Committees’ K. The Importance of the Respect of Procedural Requirements L. The Scope of Judicial Review M. The Principle of Proportionality III. Is there Life after Pfizer? IV. Summary