Showing all 6 of this author's publications currently held in our database
Change to sort them by year | title | type OR
Show only Recent publications

Six Chapters in Wyatt and Dashwood's European Union Law, 6th edition, Hart Publishing (2011), on the Right of Establishment and Freedom to provide Services, the Services Directive, Mutual Recognition and Coordination of National Qualifications, Corporate Establishment, Cross Border Acquisitions, Golden Shares, Company Law Harmonisation, and the Legal Effects of International Agreements.

ISBN: 978-1-84946-126-9

The writer considers the extent to which the EC Treaty applies to the provision of medical services, and refers inter alia to case law of the Court of Justice which holds that hospital services provided within the framework of national social security schemes fall within the freedom to provide services. The writer examines the extent to which treating such medical services as falling within the internal market brings with it the possibility of regulation by the Community institutions under Article 95 EC, notwithstanding the fact that the title on Public Health excludes the possibility of harmonisation.

ISBN: 1-84113-490-2

The claim of the Court of Justice in the Tobacco Advertising case that the Community institutions lack a general competence to regulate the internal market does not withstand critical examination. The Tobacco Advertising case contained both competence restricting and competence enhancing elements. The principal competence restricting elements were (a) that obstacles to trade could be addressed by removal of the obstacles, but not by a ban on the subject matter of the trade; (b) that harmonisation could only be justified by distortions of competition if those distortions were appreciable; (c) that in principle all provisions of a contested internal market measure must contribute to the internal market aims of the measure in question. The principal competence enhancing element was the proposition that a measure which makes some contribution to the internal market may be adopted as an internal market measure even if its main aim is public health protection; despite the fact that harmonisation of public health requirements is in principle ruled out by the Treaty. A further competence enhancing element was that the Court adopted an impressionistic approach to assessment of the requirement that distortions of competition must be appreciable if they were to justify harmonisation, leaving open the possibility that this requirement might be relaxed or sidestepped by the lawmaking institutions. The competence restricting elements of the Tobacco Advertising case have been contradicted or eroded by subsequent case law, such as the British American Tobacco case, and the Swedish Match case. After the latter case, obstacles to trade can be addressed by simply banning the trade. After the British American Tobacco case, it seems that hypothetical obstacles to trade, resulting from disparities between national labelling rules, can be addressed by eliminating the disparities in question, even if this makes no contribution to cross border trade in the products in question. In the Leitner case, the Court confirms that its approach to the requirement adopted in Tobacco Advertising, that distortions of competition must be appreciable in order to justify harmonisation, will be an impressionistic one. And in Rundfunk the Court considers that as long as a measure makes a contribution to the internal market, it is legitimate for that measure to regulate situations which have no link at all with freedom of movement - something of a retreat from the Tobacco Advertising case, but in line with case law dating from the 1960s which gives wide reading to competence to coordinate national social security rules in order to provide freedom of movement for workers. More broadly, it is noted that Community competence has not in practice been confined to removing obstacles to trade and distortions of competition, but extended to harmonising national rules which facilitate freedom of movement and to removing differences between national rules which create uncertainty for those contemplating cross border transactions. This aspect of Community competence to regulate the internal market is potentially far reaching, and could lead to the use of such measures as instruments of general governance. This does not seem consistent with a scheme of attributed competences, nor with a system in which decisions are to be taken "as closely as possible to the citizen," in accordance with the principle of subsidiarity.

ISBN: 978-1-84113-832-9

It is argued that subsidiarity should be interpreted, in accordance with the principle of effectiveness, as requiring that the Community should only act where the objectives of the proposed action can only be achieved at Community level. Subsidiarity has not so far been an effective brake on action by the European institutions, and the Court's scrutiny of Community acts for compliance with subsidiarity has been undemanding. The Constitution Treaty seeks to confirm and strengthen application of subsidiarity. Monitoring by national parliaments, and in particular the possibility for one third to object to a proposal on subsidiarity grounds, thus "showing a yellow card," could lead to improved compliance with subsidiarity by the lawmaking institutions; and the "yellow card" procedure could change the dynamics of judicial enforcement of subsidiarity. Where national parliaments "raised a yellow card," but the Commission maintained its draft, one possibility (which the present writer would advocate) would be that in any subsequent judicial proceedings the Court of Justice would require the Commission to demonstrate that the national parliaments had made a manifest error of appraisal in objecting to the draft act on subsidiarity grounds. Giving teeth to subsidiarity by entrusting national parliaments with responsibility for monitoring its application, and reinforcing that responsibility with an appropriate judicial response from the Court of Justice, could enhance the sense of "ownership" of the European project at national level. Although it appears unlikely that the Constitution Treaty will come into force, that fact need not prevent the introduction by other means of subsidiarity monitoring by national parliaments, and the adoption by the Court of Justice of the approach indicated.

ISBN: 1845-5662

The judgments in Viking and Laval confirm the Court's previous case-law on the horizontal effect of Articles 39, 43 and 49 EC, and extend the horizontal effect of Articles 43 and 49 EC to cover collective action of trade unions by way of strikes, boycotts and the like. A significant knock-on effect is an extension of Community regulatory competence to cover this same subject matter, despite the contrary indications in Article 137(5) EC. The judgment in Viking implies that Article 28 EC is also capable of horizontal effect, at least in cases where collective action of individuals produces regulatory effects similar to those resulting from State action. The Court's reasoning leaves room for future incremental increases in the horizontal effect of fundamental freedoms in cases which involve contractual rules, in particular rules regulating employed or self employed activities. The approach to horizontal effect in Viking supports, for example, the argument that provisions of a corporate constitution could amount to a restriction on freedom of establishment, as could action taken by the board of a company to frustrate a takeover bid. Advocate General Maduro in Viking argues that the Treaty rules on freedom of movement apply directly to any private action that is capable of effectively restricting others from exercising their right of freedom of movement. The present writer suggests further considerations as being relevant to determining the extent of the horizontal reach of fundamental freedoms. Normal market behaviour on the part of one market operator should not in principle be held to amount to a restriction on the fundamental freedom of another. But discriminatory conduct by market operators, or other conduct which falls outside the range of normal market behaviour, would seem capable of falling within the horizontal effect of a fundamental freedom, at any rate where it restricts access of other market operators, or consumers, to the market, or places market operators or consumers at a disadvantage because they have exercised a fundamental freedom. Account must be taken of the aims and wording of the freedom in question, along with the policy questions of whether it would be excessively burdensome to make private operators subject to the obligation to comply with the fundamental freedom in question, and whether any consequential extension of Community regulatory competence would unreasonably limit that of the Member States. A related issue to be taken into account is the possible horizontal effect of the fundamental principle of equality, as articulated in the Mangold case. Even a restrained reading of this much criticised case would suggest that the prohibition of discrimination on grounds of nationality in Article 12 EC might have horizontal effect in circumstances falling within the material scope of Community law, such as the supply of goods, services, business accommodation and housing. A similar conclusion could be reached as regards discrimination in the sale of goods, services and real property to non residents. It would not be excessively burdensome to impose on private market operators the obligation not to depart from their normal terms and conditions of sale in the case of non-nationals or non-residents, unless such departure represented normal market behaviour. A possible example of discriminatory service provision contrary to the general principle of equality is that of excessive roaming charges, which have been recently regulated by Regulation (EC) No 717/2007. A key question which arises in this context is the extent to which a market operator can, or should be able to be, justify discrimination against out of state operators, or discrimination against customers solely because they have crossed a national frontier, on grounds of normal market behaviour, when market conditions are not normal, and the market is not fully competitive.

ISBN: 1845-5662

The paper argues that subsidiarity has failed to achieve its aims since the Community institutions, including the Court of Justice, have regarded it as a principle running against the grain of European integration. Little or no effort has been made to use the criteria in the Amsterdam Protocol as a constitutional filter to weed out proposals for legislation which encroach on the principle that decisions should be taken as closely as possible to the citizen. The writer considers the proposals in the European Constitution that national parliaments monitor application of the subsidiarity principle. The conclusion is that the likely outcome is business as usual, but that this outcome is not inevitable, and that there is at least a real possibility that the involvement of national parliaments would give a practical effect to subsidiarity which it has lacked so far.