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Vol 21 No 10 Oct/Nov 2016

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Between Competition and Free Movement

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ISBN13: 9781841133362
ISBN: 1841133361
Published: August 2002
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £60.00



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This book takes as its starting point the interaction and gaps between the free movement and competition rules of the EC Treaty. Competition and free movement are well known as fundamental elements of the Community legal order and are normally treated separately by different specialists. Hence their interaction has tended to receive less doctrinal analysis. This work bridges the gap and examines the interaction of these disparate rules using a framework which is defined by the author as the economic constitutional law of the European Community. The book then examines in depth specific issues such as, for example, the economic orientation of the constitution of the Community, the structure and principles of interpretation relating to it or the gaps presented by this structure and the ways in which they have been filled by the European Court of Justice. Particular attention is given, in separate chapters, to two important topics: the possible extension of the application of the free movement rules to protectionist private conduct and that of the competition rules or principles extracted from them to State action.

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Subjects:
Competition Law, EU Law
Contents:
Themes, intention and method. Towards an operational concept of constitution: introduction; the importance of legal concepts; an operational concept of constitution; the concept explained; federal constitutionalism and the supremacy of the constitution; Neil MacCormick's overlapping legal orders. The constitution and the economy: introduction; economic constitutional law versus the ""economic constitution""; economic constitutional law and its transformations; the role of the judiciary; Oliver Wendell Holmes Jr. and the economic neutrality of the constitution. Community constitutionalism revisited: doctrines and realities; European Community (not Union) constitutional law; community constitutionalism; the Treaty as an internal and external Community constitution; the operation concept applied - direct effect and supremacy, extralegal foundations, internal supremacy, Community law and individual autonomy, the democratic element, internal hierarchy; the external view of Community constitutionalism. Community economic constitutional law: form and substance in Community constitutional law; the centrality of the concept of internal market; the question of hierarchy in Community economic law; constitutional and statutory interpretation; a comparison with state economic constitutional law; economic neutrality of the Community?; the uncertain future. Competition and free movement: the complementary character of competition and free movement; a common approach tot he free movement rules; the special case of the free movement of workers; shifting attitudes towards the competition rules; procedural reasons for the blurring between the scopes of competition and free movement. Free movement and the private sphere: statement of the problem; horizontal direct effect?; leading case - Walrave (1974), Dansk Supermarked (1981), Bosman (1995), Commission v France (1997), recent cases; an analysis of certain proposals - Detlef Shaefer and fundamental rights, Wulf-Henning Roth and Article 12, Milner-Moore, Steindorff and the last sentence of Article 30, binding individuals through national courts?; refining the concept of collective private measures. State action doctrine and Community competition law: statement of the problem; relevant texts, structure and other available routes - the enforcement mechanism, Article 86 EC, state aids, free movement, other provisions; leading cases - GB-INNO-BM (1977), the 1985 judgements - Leclerc and Cullet, the test refined - Asjes, Vlaamse Reisbureaus, Van Eycke (1986-1988), the 1993 cases - ""November revolution""?, recent judgements; a constitutional approach - problems with the state action doctrine in its current form, a constitutional approach. Final thoughts.