Cases, Materials and Text on European Law and Private Law
Höfundar: Arthur Hartkamp, Carla Sieburgh, Wouter Devroe
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Lýsing:
This Casebook deals with the horizontal effects of EU law, which is to say its effects on relationships between individuals. To a large extent, these effects have been created by the Court of Justice of the European Union (CJEU) on the basis of the European Treaties. The main focus of the Casebook is on the developments relating to primary EU law and their influence on national private law. It studies instances where EU primary law has already directly or indirectly influenced the case law in the Member States, or where it is expected to do so soon.
Compared to the well-known impact of EU directives on private law, these developments concerning primary EU law are hardly noted by private lawyers and perhaps not sufficiently explained by scholars of EU law. Therefore the book makes an important contribution to scholarship and education. This book highlights developments in the areas of competition law, fundamental freedoms, non-discrimination, general principles of EU law, ex officio application of provisions of EU law and implementation of directives, including harmonious interpretation and Francovich liability.
Annað
- Höfundar: Arthur Hartkamp, Carla Sieburgh, Wouter Devroe
- Útgáfa:1
- Útgáfudagur: 2017-03-09
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- Format:ePub
- ISBN 13: 9781509911882
- Print ISBN: 9781509911875
- ISBN 10: 150991188X
Efnisyfirlit
- Cover
- Title Page
- Acknowledgements
- Preface
- Contents
- Table of Abbreviations
- List of Short Titles
- Table of Cases
- Table of Legislation
- 1. Introductioneffects of Eu Law on Relationships between Individuals
- I. EU Law and Private Law: Introductory Remarks
- II. Direct Horizontal Effect and Indirect Horizontal Effects of EU Law Rules: Terminology as Used in this Casebook
- II.A Direct Horizontal Effect
- II.B Indirect Horizontal Effects
- II.B.i Harmonious Interpretation of National Law by National Courts Imposed by EU Law
- II.B.ii Harmonious Interpretation of National Law by National Courts Not Imposed by EU Law
- II.B.iii Review of the Compatibility of National Rules with EU Law in Proceedings between Individuals
- II.B.iv Positive Obligations
- II.C Direct and Indirect Horizontal Effects and the Sources of EU Law
- II.C.i Introductory Remarks
- II.C.ii The TFEU
- II.C.iii Regulations
- II.C.iv Directives
- II.C.v General Principles of EU Law
- II.C.vi The Charter of Fundamental Rights
- III. Direct and Indirect Horizontal Effects: The Terminology of EU Law Scholars and of Private Law Scholars Compared and the Sources of EU Law
- III.A Introductory Remarks
- III.B Direct Effect in EU Law Terminology
- III.C Horizontal Effects in EU Law Parlance
- III.D The Approaches Compared
- III.E Concluding Remarks
- III.F Direct Horizontal Effect and Indirect Horizontal Effects: Chart Illustrating the Terminology Used in this Casebook with Some Well-Known CJ Cases
- IV. Spillover Effects
- IV.A Introductory Remarks
- IV.B A Voluntarily Broader (or ‘Spontaneous’) Harmonisation
- IV.C Aligning National Systems at a Stage Later than at the Implementation of a Directive
- IV.D Internal and External Situations
- I. General Part
- I.A General Approach
- I.B Sources of EU Competition Law
- I.B.i Article 101 TFEU and the Notion of ‘Agreement’
- I.B.ii Article 102 TFEU
- I.B.iii Article 106 TFEU
- I.B.iv Block Exemption Regulations
- I.B.v Other Secondary Legislation
- I.B.vi EC Notices and Guidelines
- I.B.vii Case Law of the GC and the CJ
- I.C Legislative vs Enforcement Powers in EU Competition Law
- I.C.i Legislative Powers in EU Competition Law
- I.C.ii Enforcement Powers in EU Competition Law
- I.C.ii.a The Position of the Treaties
- I.C.ii.b The CJEU and the Development of an EU Doctrine of Private Enforcement of Competition Law
- I.C.ii.c An Increased Role for National Judges
- II.A Nullity as a Sanction for Infringement of Article 101(1) TFEU
- II.A.i Nullity as a Sanction of EU Law
- II.A.ii Nullity as a Defence or an Action
- II.A.iii Characteristics of EU Competition Law Nullity
- II.A.iv Impact of Nullity on the Non-infringing Parts of the Agreement
- II.A.v Modification of a Void Agreement or Clause?
- II.A.vi Impact of Nullity on Follow-on Agreements
- II.A.vi.a Introduction: The Position of the EU Courts
- II.A.vi.b Starting Position of National Courts: No Impact on Follow-on Agreements
- II.A.vi.c Extension of Nullity Based on a Specific Provision
- II.A.vi.d Theories Developed by National Courts and Legal Scholarship
- II.A.vi.e Extension Based on General Contract Law Provisions
- II.A.vi.f The Follow-on Contract is Itself Affected by a Ground of Voidness or Voidability
- II.A.vii Reimbursement Duties
- II.B Nullity as a Sanction for Infringement of Article 102 TFEU
- II.C Injunctions and Interim Relief
- II.C.i General Overview
- II.C.ii The Division of Powers between the EC and the National Courts
- II.C.ii.a Interim Relief in EU Competition Matters: Access to a National Judge But Not Necessarily to the EC
- II.C.ii.b Positive Injunctions Can Only Be Granted by National Judges
- II.D.i Overview
- II.D.ii The Fault-Binding Character of EC and NCA Infringement Decisions on National Courts
- II.D.iii Damage
- II.D.iii.a Type of Damage
- II.D.iii.b Quantification of Harm
- II.D.iii.c Passing-on Defence
- II.D.iv Causal Link
- II.D.v Procedure
- II.D.v.a Standing
- II.D.v.b Collective Redress
- II.D.v.c Access to Evidence
- II.D.v.d Time Limits, Limitation Periods and Prescription
- I. Introduction
- II. Free Movement of Goods (Articles 34 and 35 TFEU)
- II.A Sources: The TFEU, CJ Case Law, Materials
- II.A.i Direct Horizontal Effect
- II.A.ii Indirect Horizontal Effect
- II.A.ii.a Interpretation of National (Private) Law in the Light of Articles 34 and 35 TFEU
- II.A.ii.b Review of Compatibility of National Law with Articles 34 and 35 TFEU in Proceedings between Individuals
- II.A.ii.c Positive Obligation for the Member States to Safeguard the Free Movement of Goods on their Territory
- II.A Sources: The TFEU, CJ Case Law, Materials
- II.B National Case Law
- II.B.i Direct Horizontal Effect
- II.B.ii. Indirect Horizontal Effect
- III.A Sources: The TFEU, CJ Case Law, Materials
- III.A.i Direct Horizontal Effect
- III.A.ii Indirect Horizontal Effect
- III.B National Case Law
- III.B.i Direct Horizontal Effect
- III.B.ii Indirect Horizontal Effect
- IV.A Sources: The TFEU, CJ Case Law, Materials
- IV.A.i Direct Horizontal Effect
- IV.A.ii Indirect Horizontal Effect
- IV.B National Case Law
- IV.B.i Direct Horizontal Effect
- IV.B.ii Indirect Horizontal Effect
- V.A Sources: The TFEU, CJ Case Law, Materials
- V.A.i Direct Horizontal Effect
- V.A.ii Indirect Horizontal Effect
- V.B National Case Law
- VI.A Sources: The TFEU, CJ Case Law, Materials
- VI.B National Case Law
- I. General Approach
- I.A Categories of Private Law Cases influenced by Treaty Provisions on Non-discrimination
- I.B Structure of this Chapter
- II. Introduction to the Principle of Non-discrimination
- III. Sources
- III.A EU Rules Producing Direct Horizontal Effect
- III.A.i Article 18 TFEU
- III.A.ii Article 157 TFEU
- III.B EU Rules Not Producing Direct Horizontal Effect
- III.B.i Article 19 TFEU
- III.C Integration of Non-discrimination into the Laws of the Member States
- III.D Soft Law
- III.A EU Rules Producing Direct Horizontal Effect
- IV. National Case Law
- IV.A National Case Law within the Scope of Article 18 TFEU
- IV.A.i Direct Effect of the EU Rule
- IV.A.ii Indirect Effects of the EU Rule
- IV.A.ii.a Application of the EU Law Rationale via a National Rule that is in Conformity with the Rule of EU Law
- IV.A.ii.b Application of the EU Law Rationale by Harmonious Interpretation of a National Rule that is Not in Conformity with EU Law
- IV.A.ii.c Application of the EU Law Rationale by Reviewing an Incompatible Rule of National Law against EU Law
- IV.A.iii Positive Obligation of Member States that Impact on Horizontal Relations between Individuals
- IV.A.iv Miscellaneous
- IV.B National Case Law within the Scope of Article 157 TFEU (Equal Treatment of Men and Women)
- IV.B.i Direct Effect of the EU Rule
- IV.B.ii Indirect Applications of the EU Rule
- IV.B.ii.a Application of the Rationale of the Rule of EU law via a National Rule that is in Conformity with the EU Rule
- IV.B.ii.b Application of the Rationale of the EU Rule by Harmonious Interpretation of a National Rule that is Not in Conformity with EU Law
- IV.B.ii.c Application of the Rationale of the EU Rule by Reviewing an Incompatible Rule of National Law against EU Law
- IV.B.iii Positive Obligation of Member States that Has Impact on Horizontal Relations between Individuals
- IV.B.iv Miscellaneous
- IV.C National Case Law within the Scope of Article 19 TFEU
- IV.A National Case Law within the Scope of Article 18 TFEU
- V. Final Observations
- V.A Articles 18 and 157 TFEU May Substantively Change Horizontal Relationships
- V.B National Courts Do Explicitly Consider the Constitutional Framework or Mechanism(s) of Interaction between EU Law and Private Law
- V.C Fundamental Freedoms as an Instrument to Apply the Rationale of Non-discrimination
- V.D National Courts Usually Find Suitable Remedies in Case of Infringement of EU Law
- V.E Reverse Discrimination
- Further Reading
- I. General Principles of a Public Law Nature
- I.A Introduction
- I.B The Principle of Effectiveness
- I.B.i The Principle of Effective Judicial Protection
- I.B.ii The Rewe Doctrine: The Requirements of Equivalence and Effectiveness
- I.C The Principle of Legal Certainty
- I.C.i Significant Legal Uncertainty May Involve a Breach of the Principle of Effectiveness
- I.C.ii Legal Certainty as a Limit to the Retroactive Effect of Preliminary Rulings
- I.C.iii Legal Certainty as a Limit to the Obligation of National Courts to Interpret and Apply their National Laws in Conformity with Directives
- I.D The Principle of Proportionality
- Further Reading
- II. The Principle of Non-discrimination
- II.A Introduction
- II.A.i Description of the General Principles as Developed by the CJEU and their Relation to the Treaty Provisions and to the Charter
- II.A.ii Categories of Private Law Cases Influenced by the General Principle of Non-discrimination and by the Charter
- II.B Sources
- II.C National Case Law
- II.C.i Direct Effect of the EU Rule
- II.C.ii Indirect Effects of the EU Rule
- II.C.ii.a Application of the Rationale of EU Law via a National Rule that is in Conformity with the EU Rule
- II.C.ii.b Application of the Rationale of EU Law by Harmonious Interpretation of a National Rule that is Not in Conformity with EU Law
- II.C.ii.c Application of the Rationale of EU Law by Reviewing an Incompatible Rule of National Law against EU Law
- II.C.iii Positive Obligation of Member States with Impact on Horizontal Relations between Individuals
- II.C.iv Miscellaneous
- II.D Final Observations
- II.D.i The General Principle of Non-discrimination May Substantively Change Horizontal Relationships
- II.D.ii National Courts Do Explicitly Consider the Constitutional Framework or Mechanism(s) of Interaction between EU Law and Private Law
- II.D.iii National Courts Usually Find Suitable Remedies in Case of Infringement of EU Law
- II.D.iv National Courts Give Consideration to the Protection of Legal Certainty and Legitimate Expectations
- II.D.v Additional Remarks
- II.A Introduction
- III.A Introduction
- III.B Sources
- III.B.i The Development and Role Played by Abuse of Law as a General Principle of EU Law: Overview
- III.B.ii Discussion Surrounding the Precise Nature of the Principle
- III.B.iii Categories of Private Law Cases Influenced by the General Principle of Abuse of Rights
- III.C National Case Law
- IV.A Introduction
- IV.B The Action Arising from Unjust Enrichment
- IV.C The Defence of Unjust Enrichment
- IV.D Future Effects of the Principle of Unjust Enrichment
- I. Introduction
- II. Obligation of the Member States to Implement a Directive
- II.A Prohibition to Adopt or Maintain National Provisions Not in Conformity with the Provisions of a Directive
- II.B Absence of the Direct Horizontal Effect of Provisions of an Unimplemented or Incorrectly Implemented Directive
- II.B.i Sources: CJ Case Law
- II.B.ii National Case Law
- II.C Broad Interpretation of the Concept of ‘State’
- II.C.i Sources: CJ Case Law
- II.C.ii National Case Law
- III.A Sources
- III.A.i CJ Case Law
- III.A.ii National Case Law
- III.B Duty of Interpretation and Scope
- III.B.i Sources: CJ Case Law
- III.B.ii National Case Law
- III.C Limits
- III.C.i Sources: CJ Case Law
- III.C.ii National Case Law
- V.A Introduction
- V.B Review against General Principles of EU Law Underlying Directive Provisions
- VI.A Sources
- VI.A.i CJ Case Law
- VI.A.ii National Case Law
- VI.B Conditions
- VI.B.i Sources: CJ Case Law
- VI.B.ii National Case Law
- VI.C Consequences: Reparation of Damages
- VII. Spillover Effects of Directives
- VII.A Voluntary Broader Implementation
- VII.B Mandatory Broader Implementation through the (National) Principle of Equality
- I. General Approach
- I.A The EU Law Context
- I.B The Structure of this Chapter
- II. Sources of EU Law
- II.A The Van Schijndel Line of Case Law
- II.B Ex Officio Application of EU Law in Relation to Article 101 TFEU
- II.C Ex Officio Application in Relation to Consumer Contract Directives
- II.C.i Directive 93/13/EEC on Unfair Terms in Consumer Contracts
- II.C.ii The Other Consumer Contracts Directives
- III.A Comparative Background
- III.B National Case Law: Major Patterns
- III.B.i Decisive References to EU Law
- III.B.ii References to Both National Law and EU Law
- III.B.iii Miscellaneous
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