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Vol 22 No 6 June/July 2017

Book of the Month

Cover of Supperstone, Goudie and Walker: Judicial Review

Supperstone, Goudie and Walker: Judicial Review

Edited by: Helen Fenwick
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EU Law and Integration: Twenty Years of Judicial Application of EU Law

ISBN13: 9781849465083
Published: September 2014
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £55.00
Paperback edition , ISBN13 9781509909889

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This book contains a collection of articles on different aspects of EU law written by one of Europe's most distinguished jurists during the past twenty years, some of which appear here for the first time in English. The book includes a Preface by Judge Koen Lenaerts, Vice-President of the European Court of Justice.

The book is divided into five parts, covering EU constitutional law, the EU's judicial architecture, access to justice, European competition law and various other aspects of substantive EU law. In the field of EU constitutional law, the central text discusses the existence of implied material limits to the revision of the Treaties.

The author argues that the powers of the Member States to amend the Treaties is limited by the existence of a hard core of principles of EU Treaty law, which cannot be revised without changing the 'constitutional' identity of the Union, leading to the conclusion that Member States can no longer be considered as the 'absolute masters of the Treaties'. Four articles relating to the EU's judicial system constitute the cornerstone of the collection.

Drawing on his own experiences, the author examines the problems and challenges facing the setting up of a new EU court and explores different lines of reform of the EU judicial system.

EU Law
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
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