Luca Rubini
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199533398
- eISBN:
- 9780191714740
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533398.001.0001
- Subject:
- Law, Public International Law, EU Law
This book presents a conceptual framework for analysing the definitions of State aid and subsidy in EC and WTO law. This is done through a comparative analysis, examining the coherence of the ...
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This book presents a conceptual framework for analysing the definitions of State aid and subsidy in EC and WTO law. This is done through a comparative analysis, examining the coherence of the conceptual understanding of the crucial, but still elusive, issue of the definition of subsidy. The first, important finding is that the topic is not only technical but raises more fundamental questions about the objectives of subsidy control in a given legal system and, more radically, about the goals of that system itself. The analysis does not only concentrate on the state of the law but critically looks forward, offering suggestions for new interpretations and law reform. The book focuses on the substantive provisions of the EC and WTO relating to what are identified by the author as the core properties of a notion of subsidy, i.e., a form of public action, the grant of an economic advantage and the ensuing impact on the competitive process. The current regulation in EC and WTO law is analysed, compared, and assessed in depth, and tested against a baseline represented by a notion of subsidy inserted in a subsidy regulation pursuing certain objectives. Drawing on the results of the comparative exercise, the book argues that both systems can learn valuable lessons from each other to achieve a greater coherence and a more efficient regulatory system.Less
This book presents a conceptual framework for analysing the definitions of State aid and subsidy in EC and WTO law. This is done through a comparative analysis, examining the coherence of the conceptual understanding of the crucial, but still elusive, issue of the definition of subsidy. The first, important finding is that the topic is not only technical but raises more fundamental questions about the objectives of subsidy control in a given legal system and, more radically, about the goals of that system itself. The analysis does not only concentrate on the state of the law but critically looks forward, offering suggestions for new interpretations and law reform. The book focuses on the substantive provisions of the EC and WTO relating to what are identified by the author as the core properties of a notion of subsidy, i.e., a form of public action, the grant of an economic advantage and the ensuing impact on the competitive process. The current regulation in EC and WTO law is analysed, compared, and assessed in depth, and tested against a baseline represented by a notion of subsidy inserted in a subsidy regulation pursuing certain objectives. Drawing on the results of the comparative exercise, the book argues that both systems can learn valuable lessons from each other to achieve a greater coherence and a more efficient regulatory system.
Steffen Hindelang
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199572656
- eISBN:
- 9780191705540
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199572656.001.0001
- Subject:
- Law, EU Law
The book presents a coherent doctrinal construction of the EC Treaty provisions on free movement of capital in a third-country context with a focus on direct investment. The respective regime ...
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The book presents a coherent doctrinal construction of the EC Treaty provisions on free movement of capital in a third-country context with a focus on direct investment. The respective regime applicable to intra-Community capital movement serves as a point of reference and a benchmark and, thus, is also part of a substantial review. The central question of the study is: What rights does a private market participant, engaged in cross border direct investment originating from or directed to a non EC Member State, enjoy by virtue of Article 56 EC et seqq.? The book argues that in principle, the provisions on free movement of capital apply the same liberal standards irrespective of whether intra-Community or third country direct investment is involved. Hence, those who participate in third country direct investment enjoy essentially the same guarantees by virtue of the provisions on free movement of capital as those active in intra-Community direct investment. The book's subject matter is highly topical and of considerable relevance. Currently, neo protectionist ideas are on the rise within the Member States of the EC. The Member States face considerable problems in acclimating themselves to increasing inward direct investment originating from developing and emerging market countries. Scepticism increases, at times bordering on irrational blunt hostility, if an investment is placed by a so called sovereign wealth fund headquartered in an emerging market. Political opinion after a very emotional debate has been strong enough that some Member States have started tightening their regulatory framework on foreign direct investment. However, such protectionist regulatory measures restricting the admission and treatment of foreign direct investment cannot be imposed ad libitum. They must be measured against the freedom of capital movement.Less
The book presents a coherent doctrinal construction of the EC Treaty provisions on free movement of capital in a third-country context with a focus on direct investment. The respective regime applicable to intra-Community capital movement serves as a point of reference and a benchmark and, thus, is also part of a substantial review. The central question of the study is: What rights does a private market participant, engaged in cross border direct investment originating from or directed to a non EC Member State, enjoy by virtue of Article 56 EC et seqq.? The book argues that in principle, the provisions on free movement of capital apply the same liberal standards irrespective of whether intra-Community or third country direct investment is involved. Hence, those who participate in third country direct investment enjoy essentially the same guarantees by virtue of the provisions on free movement of capital as those active in intra-Community direct investment. The book's subject matter is highly topical and of considerable relevance. Currently, neo protectionist ideas are on the rise within the Member States of the EC. The Member States face considerable problems in acclimating themselves to increasing inward direct investment originating from developing and emerging market countries. Scepticism increases, at times bordering on irrational blunt hostility, if an investment is placed by a so called sovereign wealth fund headquartered in an emerging market. Political opinion after a very emotional debate has been strong enough that some Member States have started tightening their regulatory framework on foreign direct investment. However, such protectionist regulatory measures restricting the admission and treatment of foreign direct investment cannot be imposed ad libitum. They must be measured against the freedom of capital movement.
Noreen Burrows and Rosa Greaves
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199299003
- eISBN:
- 9780191715037
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199299003.001.0001
- Subject:
- Law, EU Law
The prominence of the Advocate General is one of the most distinctive and controversial features of the European Court of Justice. The Advocate General and EC Law is the first comprehensive study of ...
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The prominence of the Advocate General is one of the most distinctive and controversial features of the European Court of Justice. The Advocate General and EC Law is the first comprehensive study of the Advocate General and his role in the development of EC Law. In Part I, the book examines the history of the role, the questions over its future, and the role's importance in the procedures of the Court. In Part II, the book analyses the contribution of some of the most influential Advocates General to the development of specific aspects of Community law, including Francis Jacobs on intellectual property, Walter van Gerven on discrimination, and Jean Pierre Warner on competition procedure. In Part III, the book explores the contributions of a range of Advocates General to specific principles of Community Law, including state liability, direct effect, and the concept of citizenship. This book offers a unique perspective on politics of the European Court of Justice — one of the driving forces behind closer European integration.Less
The prominence of the Advocate General is one of the most distinctive and controversial features of the European Court of Justice. The Advocate General and EC Law is the first comprehensive study of the Advocate General and his role in the development of EC Law. In Part I, the book examines the history of the role, the questions over its future, and the role's importance in the procedures of the Court. In Part II, the book analyses the contribution of some of the most influential Advocates General to the development of specific aspects of Community law, including Francis Jacobs on intellectual property, Walter van Gerven on discrimination, and Jean Pierre Warner on competition procedure. In Part III, the book explores the contributions of a range of Advocates General to specific principles of Community Law, including state liability, direct effect, and the concept of citizenship. This book offers a unique perspective on politics of the European Court of Justice — one of the driving forces behind closer European integration.
Gráinne de Búrca
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780199257409
- eISBN:
- 9780191600951
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019925740X.003.0003
- Subject:
- Political Science, European Union
Considers the role that the European Court of Justice (ECJ) has played in the evolution of EU law, and places recent developments in the context of longer‐term trends in the jurisprudence of the ...
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Considers the role that the European Court of Justice (ECJ) has played in the evolution of EU law, and places recent developments in the context of longer‐term trends in the jurisprudence of the Court. Rather than debating the question of what kind of institutional actor the ECJ is within the EU political system, the chapter proceeds on the premise that the Court is a purposive actor that nonetheless considers itself to be constrained in significant ways by the text of the EC Treaties, by its own previous body of case law, and in different ways by the political and social context within which it operates. Reflects on the polity‐shaping impacts of the case law of the ECJ, including the effects on EU and national political organizations and on the notion of a European citizen, and, finally, how the Court may or may not be responding to the changing nature of EU law. Various case studies on case law are included. The four sections of the chapter are: Introduction; The Court and the Political Decision‐Making Bodies: Policing of the Bounds of EU Power; The Court and the Individual; and Conclusion.Less
Considers the role that the European Court of Justice (ECJ) has played in the evolution of EU law, and places recent developments in the context of longer‐term trends in the jurisprudence of the Court. Rather than debating the question of what kind of institutional actor the ECJ is within the EU political system, the chapter proceeds on the premise that the Court is a purposive actor that nonetheless considers itself to be constrained in significant ways by the text of the EC Treaties, by its own previous body of case law, and in different ways by the political and social context within which it operates. Reflects on the polity‐shaping impacts of the case law of the ECJ, including the effects on EU and national political organizations and on the notion of a European citizen, and, finally, how the Court may or may not be responding to the changing nature of EU law. Various case studies on case law are included. The four sections of the chapter are: Introduction; The Court and the Political Decision‐Making Bodies: Policing of the Bounds of EU Power; The Court and the Individual; and Conclusion.
Tim Hayward
- Published in print:
- 2004
- Published Online:
- July 2005
- ISBN:
- 9780199278688
- eISBN:
- 9780191602757
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199278687.003.0006
- Subject:
- Political Science, Political Theory
Addresses the doubt about whether, even if legitimately enforceable, a constitutional right to an adequate environment is necessary. The European Union (EU) is taken as a context in which that doubt ...
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Addresses the doubt about whether, even if legitimately enforceable, a constitutional right to an adequate environment is necessary. The European Union (EU) is taken as a context in which that doubt would seem particularly strongly motivated. For the range of existing environmental and human rights provisions which are binding on member states of the EU might already provide the protections that a formally declared right to an adequate environment would aim for. Shows that while those provisions offer significant protections, these nonetheless fall short of what a substantive environmental right with constitutional force would aim to achieve, and so the latter would not be nugatory.Less
Addresses the doubt about whether, even if legitimately enforceable, a constitutional right to an adequate environment is necessary. The European Union (EU) is taken as a context in which that doubt would seem particularly strongly motivated. For the range of existing environmental and human rights provisions which are binding on member states of the EU might already provide the protections that a formally declared right to an adequate environment would aim for. Shows that while those provisions offer significant protections, these nonetheless fall short of what a substantive environmental right with constitutional force would aim to achieve, and so the latter would not be nugatory.
Steffen Hindelang
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199572656
- eISBN:
- 9780191705540
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199572656.003.0008
- Subject:
- Law, EU Law
This chapter addresses the exceptions that apply exclusively to third country direct investment, i.e., Article 57 (1) EC, Article 59 EC, and Article 60 EC. Article 57 (1) EC contains a grandfathering ...
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This chapter addresses the exceptions that apply exclusively to third country direct investment, i.e., Article 57 (1) EC, Article 59 EC, and Article 60 EC. Article 57 (1) EC contains a grandfathering clause for restrictive national and Community laws with respect to the categories of direct investment, including real estate, establishment, the provision of financial services, and admission of securities to capital markets. Concerning Article 57 (2) — empowering the Community to adopt measures involving the categories of capital movement mentioned above — this book limits itself to a broad brush depiction of the provision. Article 59 EC allows the Community to take temporary safeguard measures with regard to third countries in case of economic crisis. Article 60 EC provides the EC, and on an interim basis also the Member States, in the framework of the Common Foreign and Security Policy (CFSP), with a tool to adopt economic sanctions against one or more third countries in the area of free movement of capital. The discussion of the above-mentioned exceptions centres upon their effects on the standard of liberalisation of foreign direct investment achieved by virtue of Article 56 (1) EC.Less
This chapter addresses the exceptions that apply exclusively to third country direct investment, i.e., Article 57 (1) EC, Article 59 EC, and Article 60 EC. Article 57 (1) EC contains a grandfathering clause for restrictive national and Community laws with respect to the categories of direct investment, including real estate, establishment, the provision of financial services, and admission of securities to capital markets. Concerning Article 57 (2) — empowering the Community to adopt measures involving the categories of capital movement mentioned above — this book limits itself to a broad brush depiction of the provision. Article 59 EC allows the Community to take temporary safeguard measures with regard to third countries in case of economic crisis. Article 60 EC provides the EC, and on an interim basis also the Member States, in the framework of the Common Foreign and Security Policy (CFSP), with a tool to adopt economic sanctions against one or more third countries in the area of free movement of capital. The discussion of the above-mentioned exceptions centres upon their effects on the standard of liberalisation of foreign direct investment achieved by virtue of Article 56 (1) EC.
Robert Schütze
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199238583
- eISBN:
- 9780191716539
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199238583.003.03
- Subject:
- Law, EU Law
To what extent has European constitutionalism recognized mutually exclusive legal spheres? The question has two dimensions and this Chapter analyses them in two sections. Section I, investigates the ...
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To what extent has European constitutionalism recognized mutually exclusive legal spheres? The question has two dimensions and this Chapter analyses them in two sections. Section I, investigates the extent to which the Community legal order respects exclusive State powers. In the last half-century, the European sphere has been expanding into ever more policy areas. In addition to “big revisions”, “small revisions” could be effected by means of Article 308 – the Community’s “Necessary and Proper Clause” – and the Community “Commerce Clause(s)”: Articles 94 and 95 EC. The second section of this Chapter changes perspective and analyses a range of constitutional devices that were developed to restrict or relativise the Community’s own exclusive powers. Not only would the European Court go against its own interpretive methodology and deform the scope of exclusive competences. It has also accepted a dramatic emasculation of the concept of exclusive competence through the medium of the delegation doctrine.Less
To what extent has European constitutionalism recognized mutually exclusive legal spheres? The question has two dimensions and this Chapter analyses them in two sections. Section I, investigates the extent to which the Community legal order respects exclusive State powers. In the last half-century, the European sphere has been expanding into ever more policy areas. In addition to “big revisions”, “small revisions” could be effected by means of Article 308 – the Community’s “Necessary and Proper Clause” – and the Community “Commerce Clause(s)”: Articles 94 and 95 EC. The second section of this Chapter changes perspective and analyses a range of constitutional devices that were developed to restrict or relativise the Community’s own exclusive powers. Not only would the European Court go against its own interpretive methodology and deform the scope of exclusive competences. It has also accepted a dramatic emasculation of the concept of exclusive competence through the medium of the delegation doctrine.
Mark Bell
- Published in print:
- 2002
- Published Online:
- March 2012
- ISBN:
- 9780199244508
- eISBN:
- 9780191697371
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199244508.001.0001
- Subject:
- Law, Human Rights and Immigration, EU Law
The 1999 Treaty of Amsterdam expanded significantly the legal competence of the European Union for combatting discrimination. Traditionally, EU law has concentrated on discrimination between women ...
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The 1999 Treaty of Amsterdam expanded significantly the legal competence of the European Union for combatting discrimination. Traditionally, EU law has concentrated on discrimination between women and men and discrimination on the grounds of EU nationality. However, Article 13 EC created a new legal space for the Union to regulate discrimination on the ground of racial or ethnic origin, religion or belief, disability, age, or sexual orientation. This book aims to improve our understanding of the evolution of European Union law in the field. To this end, it considers the development of EU law and policy in respect of two specific grounds of discrimination — race and sexual orientation. It provides an account of the debate within the institutions and Member States, analysis of relevant case law from the Court of Justice, and coverage of the anti-discrimination directives adopted in 2001. The book further considers the relationship between national and European anti-discrimination law. A survey of national anti-discrimination statutes is presented in order to identify the variety of legal traditions that exist in this field. The diversity of these legal cultures impacts significantly upon the scope for and nature of EU anti-discrimination legislation. The author concludes by reviewing the principle factors that have influenced the evolution of EU anti-discrimination law and applying this to an analysis of the prospects for future development.Less
The 1999 Treaty of Amsterdam expanded significantly the legal competence of the European Union for combatting discrimination. Traditionally, EU law has concentrated on discrimination between women and men and discrimination on the grounds of EU nationality. However, Article 13 EC created a new legal space for the Union to regulate discrimination on the ground of racial or ethnic origin, religion or belief, disability, age, or sexual orientation. This book aims to improve our understanding of the evolution of European Union law in the field. To this end, it considers the development of EU law and policy in respect of two specific grounds of discrimination — race and sexual orientation. It provides an account of the debate within the institutions and Member States, analysis of relevant case law from the Court of Justice, and coverage of the anti-discrimination directives adopted in 2001. The book further considers the relationship between national and European anti-discrimination law. A survey of national anti-discrimination statutes is presented in order to identify the variety of legal traditions that exist in this field. The diversity of these legal cultures impacts significantly upon the scope for and nature of EU anti-discrimination legislation. The author concludes by reviewing the principle factors that have influenced the evolution of EU anti-discrimination law and applying this to an analysis of the prospects for future development.
Pål Wennerås
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199229017
- eISBN:
- 9780191711268
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199229017.003.0004
- Subject:
- Law, EU Law, Environmental and Energy Law
This chapter examines the system of preliminary references with a view to determining its effectiveness for the purposes of environmental lawsuits. Preliminary references on the interpretation of ...
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This chapter examines the system of preliminary references with a view to determining its effectiveness for the purposes of environmental lawsuits. Preliminary references on the interpretation of Community acts, in particular environmental law, are often brought in the context of actions against national authorities for lacking or incorrect implementation. Article 234 EC complements the infringement procedure of Article 226 EC in some respects. Preliminary references on the validity of Community acts, on the other hand, complement the Article 230 EC procedure. In the first situation, procedural and remedial rules are mostly governed by national law, whilst in the second case, when EC acts are challenged, Community law regulates the rules on procedures and remedies to a larger extent. Following a brief introduction of the features which the two procedures have in common, the chapter addresses issues of interpretation, validity and sanctions.Less
This chapter examines the system of preliminary references with a view to determining its effectiveness for the purposes of environmental lawsuits. Preliminary references on the interpretation of Community acts, in particular environmental law, are often brought in the context of actions against national authorities for lacking or incorrect implementation. Article 234 EC complements the infringement procedure of Article 226 EC in some respects. Preliminary references on the validity of Community acts, on the other hand, complement the Article 230 EC procedure. In the first situation, procedural and remedial rules are mostly governed by national law, whilst in the second case, when EC acts are challenged, Community law regulates the rules on procedures and remedies to a larger extent. Following a brief introduction of the features which the two procedures have in common, the chapter addresses issues of interpretation, validity and sanctions.
Steffen Hindelang
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199572656
- eISBN:
- 9780191705540
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199572656.003.0002
- Subject:
- Law, EU Law
The interpretation of any provision of the EC Treaty must be guided by its aims referred to in Article 2 EC. In order to prepare the foundation for a doctrinal analysis, this chapter starts off by ...
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The interpretation of any provision of the EC Treaty must be guided by its aims referred to in Article 2 EC. In order to prepare the foundation for a doctrinal analysis, this chapter starts off by setting out in which sense free, i.e., unrestricted, movement of capital within the Community helps in attaining the Treaty aims. In a second step, it assesses whether the findings just gained apply equally in a third-country context. It is argued that the aims pursued with the freedom of capital movement do not suggest a narrower interpretation of Article 56 (1) EC, but they favour free, i.e., liberalized, capital movement, including cross border direct investment, between the Member States and non EC countries. Moreover, the genesis of the rules on free movement of capital indicates a drive to (almost) complete liberalization of capital movement. It can hardly be doubted that the current provisions bear the hallmarks of the ‘economist camp’ and embrace a liberal undercurrent both in an intra-Community and a third-country context. The respective results reached guides the construction of the freedom throughout this book.Less
The interpretation of any provision of the EC Treaty must be guided by its aims referred to in Article 2 EC. In order to prepare the foundation for a doctrinal analysis, this chapter starts off by setting out in which sense free, i.e., unrestricted, movement of capital within the Community helps in attaining the Treaty aims. In a second step, it assesses whether the findings just gained apply equally in a third-country context. It is argued that the aims pursued with the freedom of capital movement do not suggest a narrower interpretation of Article 56 (1) EC, but they favour free, i.e., liberalized, capital movement, including cross border direct investment, between the Member States and non EC countries. Moreover, the genesis of the rules on free movement of capital indicates a drive to (almost) complete liberalization of capital movement. It can hardly be doubted that the current provisions bear the hallmarks of the ‘economist camp’ and embrace a liberal undercurrent both in an intra-Community and a third-country context. The respective results reached guides the construction of the freedom throughout this book.
Steffen Hindelang
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199572656
- eISBN:
- 9780191705540
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199572656.003.0004
- Subject:
- Law, EU Law
This chapter demonstrates that direct investment constitutes a classic cross-sectional activity falling, prima facie, within the ambit of free movement of capital and the freedom of establishment. ...
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This chapter demonstrates that direct investment constitutes a classic cross-sectional activity falling, prima facie, within the ambit of free movement of capital and the freedom of establishment. The configuration of the relationship of those two competing freedoms can have a severe impact on the scope of Article 56 (1) EC in a third-country context and is therefore brought into focus. It is argued that free movement of capital and the freedom of establishment are inextricably linked to each other with respect to the cross sectional activity of direct investment. The different aspects of the economic activity cannot be separated in a comprehensible and clear cut fashion. Only the densification of the freedoms can prevent an economic aspect of the activity being exposed to potentially unjustified discrimination or hindrance. Only in this way it is guaranteed that the freedoms are not deprived of their effectiveness in a situation in which an economic activity falls potentially into the ambit of more than one freedom.Less
This chapter demonstrates that direct investment constitutes a classic cross-sectional activity falling, prima facie, within the ambit of free movement of capital and the freedom of establishment. The configuration of the relationship of those two competing freedoms can have a severe impact on the scope of Article 56 (1) EC in a third-country context and is therefore brought into focus. It is argued that free movement of capital and the freedom of establishment are inextricably linked to each other with respect to the cross sectional activity of direct investment. The different aspects of the economic activity cannot be separated in a comprehensible and clear cut fashion. Only the densification of the freedoms can prevent an economic aspect of the activity being exposed to potentially unjustified discrimination or hindrance. Only in this way it is guaranteed that the freedoms are not deprived of their effectiveness in a situation in which an economic activity falls potentially into the ambit of more than one freedom.
David T. Keeling
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780198259183
- eISBN:
- 9780191681912
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198259183.001.0001
- Subject:
- Law, Intellectual Property, IT, and Media Law
This volume provides an in-depth analysis of the relationship between intellectual property rights (including patents, trade marks, copyright, and designs) and the law of the European Union. It ...
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This volume provides an in-depth analysis of the relationship between intellectual property rights (including patents, trade marks, copyright, and designs) and the law of the European Union. It examines the conflict between intellectual property rights (exclusive rights limited normally to the territory of a single Member State) and the principle of free movement of goods and services in the internal market. The various tests and theories propounded by the European Court of Justice in attempting to resolve that conflict are explained from a critical standpoint. The ramifications of the exhaustion-of-rights principle are explored and chapters of this volume are devoted to trade marks, patents, and copyright. Finally, the volume examines the limitations on the exercise of intellectual property rights as a result of EC competition law.Less
This volume provides an in-depth analysis of the relationship between intellectual property rights (including patents, trade marks, copyright, and designs) and the law of the European Union. It examines the conflict between intellectual property rights (exclusive rights limited normally to the territory of a single Member State) and the principle of free movement of goods and services in the internal market. The various tests and theories propounded by the European Court of Justice in attempting to resolve that conflict are explained from a critical standpoint. The ramifications of the exhaustion-of-rights principle are explored and chapters of this volume are devoted to trade marks, patents, and copyright. Finally, the volume examines the limitations on the exercise of intellectual property rights as a result of EC competition law.
Robin R. Churchill and Daniel Owen
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199275847
- eISBN:
- 9780191706080
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199275847.003.0002
- Subject:
- Law, EU Law, Environmental and Energy Law
This chapter addresses the scope of the Common Fisheries Policy (CFP) from three angles. After a brief introduction, it looks at the species and products covered by the CFP, known as the ‘material ...
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This chapter addresses the scope of the Common Fisheries Policy (CFP) from three angles. After a brief introduction, it looks at the species and products covered by the CFP, known as the ‘material scope’. Then it considers the CFP's geographical scope, i.e., the land and maritime areas to which the CFP applies. Thirdly, it addresses the ‘personal scope’ of the CFP, meaning the various entities to which the CFP applies. Although the chapter focuses on the EC Treaty, it also considers the potential effects of the Treaty of Lisbon on the CFP's material and geographical scope.Less
This chapter addresses the scope of the Common Fisheries Policy (CFP) from three angles. After a brief introduction, it looks at the species and products covered by the CFP, known as the ‘material scope’. Then it considers the CFP's geographical scope, i.e., the land and maritime areas to which the CFP applies. Thirdly, it addresses the ‘personal scope’ of the CFP, meaning the various entities to which the CFP applies. Although the chapter focuses on the EC Treaty, it also considers the potential effects of the Treaty of Lisbon on the CFP's material and geographical scope.
Robin R. Churchill and Daniel Owen
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199275847
- eISBN:
- 9780191706080
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199275847.003.0007
- Subject:
- Law, EU Law, Environmental and Energy Law
This chapter considers EC law relating to trade in fishery products between Member States, and the legal regime governing trade in fishery products between the EC and third States. The EC is a ...
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This chapter considers EC law relating to trade in fishery products between Member States, and the legal regime governing trade in fishery products between the EC and third States. The EC is a customs union. That means that not only are there in principle no barriers to trade between EC Member States but also that, as far as trade with Third States is concerned, the EC is to be considered as a single unit. It would seem to follow from the latter proposition that external trade relations, at least as far as trade in goods is concerned, ought to fall within the EC's exclusive competence (under the common commercial policy): that is implied in Article 133 EC, and has been confirmed to be so by the Court.Less
This chapter considers EC law relating to trade in fishery products between Member States, and the legal regime governing trade in fishery products between the EC and third States. The EC is a customs union. That means that not only are there in principle no barriers to trade between EC Member States but also that, as far as trade with Third States is concerned, the EC is to be considered as a single unit. It would seem to follow from the latter proposition that external trade relations, at least as far as trade in goods is concerned, ought to fall within the EC's exclusive competence (under the common commercial policy): that is implied in Article 133 EC, and has been confirmed to be so by the Court.
Rosa Greaves
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199299003
- eISBN:
- 9780191715037
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199299003.003.0007
- Subject:
- Law, EU Law
This chapter focuses on Advocate General Jean-Pierre Warner and his contributions to EC competition law and procedure. Warner was appointed Advocate General in January 1973 on the occasion of the ...
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This chapter focuses on Advocate General Jean-Pierre Warner and his contributions to EC competition law and procedure. Warner was appointed Advocate General in January 1973 on the occasion of the first enlargement of the EEC, with the accession of Denmark, Ireland and the UK. Warner was the first Advocate General trained in a common law jurisdiction. He delivered over 200 Opinions during his eight years in office. The chapter begins with a brief summary of the state of play in 1973 as far as the EC competition rules and procedure were concerned. This is followed by an examination of the Opinions Warner delivered that concerned the extent of the Commission's powers to adopt definitive and interim measures to terminate infringements, and also the Opinions he delivered in cases that raised issues of procedural safeguards for the undertakings under investigation. Finally, the Opinions Warner delivered on issues of substance in respect of Articles 81 and 82 EC are considered.Less
This chapter focuses on Advocate General Jean-Pierre Warner and his contributions to EC competition law and procedure. Warner was appointed Advocate General in January 1973 on the occasion of the first enlargement of the EEC, with the accession of Denmark, Ireland and the UK. Warner was the first Advocate General trained in a common law jurisdiction. He delivered over 200 Opinions during his eight years in office. The chapter begins with a brief summary of the state of play in 1973 as far as the EC competition rules and procedure were concerned. This is followed by an examination of the Opinions Warner delivered that concerned the extent of the Commission's powers to adopt definitive and interim measures to terminate infringements, and also the Opinions he delivered in cases that raised issues of procedural safeguards for the undertakings under investigation. Finally, the Opinions Warner delivered on issues of substance in respect of Articles 81 and 82 EC are considered.
Pål Wennerås
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199229017
- eISBN:
- 9780191711268
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199229017.003.0005
- Subject:
- Law, EU Law, Environmental and Energy Law
This chapter examines possibilities for individuals and NGOs to challenge the legality of environmental acts and omissions by Community institutions and bodies in direct actions before Community ...
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This chapter examines possibilities for individuals and NGOs to challenge the legality of environmental acts and omissions by Community institutions and bodies in direct actions before Community courts. The chapter proceeds as follows. Section 2 examines the ECJ's interpretation of the standing rules in Articles 230 and 232 EC, which is the framework in which the Aarhus Convention and Regulation 1367/2006 must work. Sections 3 and 4 analyze the right to internal review under Regulation 1367/2006, and the possibility of judicial review of the outcome of the internal review procedure, respectively. Section 5 examines possible flanking remedies in the context of the regulation, i.e., interim relief; section 6 considers community liability. Conclusions are drawn in section 7.Less
This chapter examines possibilities for individuals and NGOs to challenge the legality of environmental acts and omissions by Community institutions and bodies in direct actions before Community courts. The chapter proceeds as follows. Section 2 examines the ECJ's interpretation of the standing rules in Articles 230 and 232 EC, which is the framework in which the Aarhus Convention and Regulation 1367/2006 must work. Sections 3 and 4 analyze the right to internal review under Regulation 1367/2006, and the possibility of judicial review of the outcome of the internal review procedure, respectively. Section 5 examines possible flanking remedies in the context of the regulation, i.e., interim relief; section 6 considers community liability. Conclusions are drawn in section 7.
Pål Wennerås
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199229017
- eISBN:
- 9780191711268
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199229017.003.0006
- Subject:
- Law, EU Law, Environmental and Energy Law
The Commission plays a significant role in enforcing EC environmental law, yet the number of cases it brings does not necessarily prove that this enforcement is correspondingly effective. On the ...
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The Commission plays a significant role in enforcing EC environmental law, yet the number of cases it brings does not necessarily prove that this enforcement is correspondingly effective. On the contrary, the repetitive nature of infringement proceedings implies that it is not effective, and that it lacks deterrent effect. This hypothesis is examined, starting with the Commission's monitoring powers and the anatomy of infringement proceedings. The chapter then analyzes the effectiveness of Article 226 EC proceedings in light of new developments in the case law, and the recent invigoration of Article 228 EC. It also covers the administrative and political factors that influence its operation in practice. The rights of private parties in infringement proceedings are assessed, because many of the Commission's actions are instigated after individual complaints. It then compares the Commission's vigilance to ensure compliance with environmental law by Community institutions and its policy vis-à-vis Member States. Finally, it looks at the complementary role of private enforcement.Less
The Commission plays a significant role in enforcing EC environmental law, yet the number of cases it brings does not necessarily prove that this enforcement is correspondingly effective. On the contrary, the repetitive nature of infringement proceedings implies that it is not effective, and that it lacks deterrent effect. This hypothesis is examined, starting with the Commission's monitoring powers and the anatomy of infringement proceedings. The chapter then analyzes the effectiveness of Article 226 EC proceedings in light of new developments in the case law, and the recent invigoration of Article 228 EC. It also covers the administrative and political factors that influence its operation in practice. The rights of private parties in infringement proceedings are assessed, because many of the Commission's actions are instigated after individual complaints. It then compares the Commission's vigilance to ensure compliance with environmental law by Community institutions and its policy vis-à-vis Member States. Finally, it looks at the complementary role of private enforcement.
Alexander Somek
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199542086
- eISBN:
- 9780191715518
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199542086.003.0010
- Subject:
- Law, Philosophy of Law, EU Law
This chapter shows that the relevance of citizenship becomes fully intelligible, where competence interpretation is juxtaposed with the Court's most recent — and most inventive — interpretation of ...
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This chapter shows that the relevance of citizenship becomes fully intelligible, where competence interpretation is juxtaposed with the Court's most recent — and most inventive — interpretation of European citizenship. The ECJ has stretched the scope of the ratio materiae of Union law to a point where it appears that European citizens, ratione personae, are to be given access to all social benefits of the other Member States so long as they lawfully reside therein. The Court's new interpretation of citizenship provides a rights-based perspective of the very authority articulated in market holism. European citizenship can indeed be understood as a ‘de-politicised’ type of political right.Less
This chapter shows that the relevance of citizenship becomes fully intelligible, where competence interpretation is juxtaposed with the Court's most recent — and most inventive — interpretation of European citizenship. The ECJ has stretched the scope of the ratio materiae of Union law to a point where it appears that European citizens, ratione personae, are to be given access to all social benefits of the other Member States so long as they lawfully reside therein. The Court's new interpretation of citizenship provides a rights-based perspective of the very authority articulated in market holism. European citizenship can indeed be understood as a ‘de-politicised’ type of political right.
Jukka Snell
- Published in print:
- 2002
- Published Online:
- March 2012
- ISBN:
- 9780199250097
- eISBN:
- 9780191697883
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199250097.001.0001
- Subject:
- Law, EU Law
The book examines the law of the free movement of goods and services. These two freedoms are fundamental to the European Community's internal market and form the basis for an ever-increasing number ...
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The book examines the law of the free movement of goods and services. These two freedoms are fundamental to the European Community's internal market and form the basis for an ever-increasing number of economic transactions as the markets of the Member States become more integrated. The book focuses in particular on the relationship between freedoms, asking whether the same principles can be applied in both fields. The book begins by analyzing the economics of trade in goods and services, and the general legal background. The aim is to establish whether goods and services ought, as a matter of principle, to be treated similarly by Community economic law. The book then moves on to investigate whether the European Court of Justice has in practice applied similar principles in both areas. This is examined in three contexts: the scope of the freedoms, the author of the restrictions, and the issue of the justifications are all analyzed. In the case of a divergent approach, the reasons for the differences are explored, and the possibilities for a uniform solution are investigated. The book also tackles some general questions of EC law. The nature of the internal market is discussed in the context of the scope of the freedoms. The questions posed are whether the internal market is unitary or federal in character and how the theory of regulatory competition should affect the interpretation of the Treaty free movement rules. The relationship between competition law and free movement provisions is addressed in the context of private restrictions to free movement of goods and services. The discussion of the proportionality of restrictions offers a chance to examine the division of power between the courts and legislatures.Less
The book examines the law of the free movement of goods and services. These two freedoms are fundamental to the European Community's internal market and form the basis for an ever-increasing number of economic transactions as the markets of the Member States become more integrated. The book focuses in particular on the relationship between freedoms, asking whether the same principles can be applied in both fields. The book begins by analyzing the economics of trade in goods and services, and the general legal background. The aim is to establish whether goods and services ought, as a matter of principle, to be treated similarly by Community economic law. The book then moves on to investigate whether the European Court of Justice has in practice applied similar principles in both areas. This is examined in three contexts: the scope of the freedoms, the author of the restrictions, and the issue of the justifications are all analyzed. In the case of a divergent approach, the reasons for the differences are explored, and the possibilities for a uniform solution are investigated. The book also tackles some general questions of EC law. The nature of the internal market is discussed in the context of the scope of the freedoms. The questions posed are whether the internal market is unitary or federal in character and how the theory of regulatory competition should affect the interpretation of the Treaty free movement rules. The relationship between competition law and free movement provisions is addressed in the context of private restrictions to free movement of goods and services. The discussion of the proportionality of restrictions offers a chance to examine the division of power between the courts and legislatures.
Carl Fredrik Bergström
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780199280018
- eISBN:
- 9780191700095
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199280018.001.0001
- Subject:
- Law, EU Law
In almost all fields of cooperation that are covered by the EC Treaty, the formal competence to adopt legislation has been assigned to the Council (which must normally collaborate with the European ...
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In almost all fields of cooperation that are covered by the EC Treaty, the formal competence to adopt legislation has been assigned to the Council (which must normally collaborate with the European Parliament), and in order to separate powers, the formal competence to prepare the necessary proposals (the right to initiate legislation), has been assigned to the European Commission. Over the years, however, it has become clear that the reality is far more complex. This book examines the fact that the Council is now passing an increasing part of the responsibility for adopting legislation to the Commission, subject to the requirement that it has to collaborate with a vast number of committees that consist of representatives of the various national administrations. This is known as comitology. Comitology provides the Council and national governments with a mechanism for controlling the Commission, and so comitology is often thought to manifest a conflict of interests. The book argues that, despite much support in principle for this assumption, in practice comitology does not give rise to the kinds of conflicts many expect or fear. It contends that in fact comitology appears to be a fruitful cooperation between the national administrations and the Commission. The book explains how and why comitology has developed, explores the nature of comitology and examines its present and future place in the legal order of the European Union.Less
In almost all fields of cooperation that are covered by the EC Treaty, the formal competence to adopt legislation has been assigned to the Council (which must normally collaborate with the European Parliament), and in order to separate powers, the formal competence to prepare the necessary proposals (the right to initiate legislation), has been assigned to the European Commission. Over the years, however, it has become clear that the reality is far more complex. This book examines the fact that the Council is now passing an increasing part of the responsibility for adopting legislation to the Commission, subject to the requirement that it has to collaborate with a vast number of committees that consist of representatives of the various national administrations. This is known as comitology. Comitology provides the Council and national governments with a mechanism for controlling the Commission, and so comitology is often thought to manifest a conflict of interests. The book argues that, despite much support in principle for this assumption, in practice comitology does not give rise to the kinds of conflicts many expect or fear. It contends that in fact comitology appears to be a fruitful cooperation between the national administrations and the Commission. The book explains how and why comitology has developed, explores the nature of comitology and examines its present and future place in the legal order of the European Union.
