Giorgio Monti

The Future of Reservation of Title Clauses in the European Community

In an economic climate plagued by the risk of insolvency, sellers will not wish to sell unless they can be sure of getting paid. At the same time most sellers would go out of business if they asked for cash on delivery and did not sell on credit. In Europe one way to combine these conflicting business realities is by selling goods subject to a reservation of title clause or a clause de reserve de propriete or an Eigentumsvorbehalt (hereafter RTC). An RTC may be defined as “merely an agreement between the parties as to the time when ownership is to pass”. By reserving title in the goods sold until they are paid for, it ensures that goods revert to the seller in case of the buyers insolvency, and hence escape from the hands of the liquidator. The sale fails but the sellers losses are minimised. This is particularly important in the current context of insolvency practice where the legal order for the distribution of assets is very unfavourable to the supplier of goods who does not use an RTC. As an unsecured creditor he will receive any money owed only after the costs of the insolvency procedure and the shares of preferential and secured creditors are subtracted from the assets. He will, in the blunt words of Templemann LJ, ‘receive a raw deal’.

Osman v. UK —Transforming English Negligence Law into French Administrative Law?

Liability of public authorities is limited in all European countries. In Osman v. UK 1 the European Court of Human Rights (“the Court”) has reviewed the scope of English negligence law in a case concerning the liability of the police. On a first reading the judgment may appear to be confined to the facts of the case at hand, but further reflection suggests that the Court has attacked the orthodox approach to negligence liability for public authorities in English law.

European Union Law: EU Law and Non-EU Nationals

INTRODUCTION This chapter considers the treatment of non-EU nationals by EU law. It is organised as follows. Section 2 looks at the central Union competences, Articles 77-9 TFEU, which provide for EU law to be adopted in the fields of border checks, asylum and immigration respectively. These provisions are subject to the Protocol on the Schengen Acquis. The Schengen Acquis is composed of the measures adopted to implement the 1985 and 1990 Schengen Conventions, which provide for common external frontiers and visa, immigration and asylum policies. Ireland and the United Kingdom are not signatories to these Conventions. Measures developing the acquis should be adopted under the Protocol, with Ireland and the United Kingdom only participating with the agreement of all the other Member States. If the measure is not governed by the Protocol on the Schengen Acquis, those two states have a further Protocol, the Protocol on United Kingdom and Ireland, which gives them the right to decide whether to participate in the legislation. There is a further Protocol on Denmark which provides that any measure adopted in this field will only bind it as a matter of international law. Section 3 considers the central themes governing this field. EU law on non-EU nationals forms part of the Area of Freedom, Security and Justice. This Area is seen as contributing to a wider European way of life, with the Union measures on non-EU nationals regulating the latters perceived contribution and threat to this way of life.

Private Enforcement of EU Competition Law

The volume represents the outcome of the sixth edition (2016) of the project ENTraNCE for Judges (‘European Networking and Training for National Competition Enforcers’), co-financed by the DG Competition of the European Commission. The edition focused on private enforcement of the EU competition law in the aftermath of the Damages Directive.

European Union Law: The Internal Market

INTRODUCTION This chapter provides an overview of what the internal market is, and the current debates about what it should be. It provides background and context to the chapters on free movement which follow. The chapter is organised as follows. Section 2 sets out the purposes of the internal market. Primarily, the internal market aims to integrate the national markets of the Member States into a single European market. It does this by removing regulatory barriers to trade between states. The reasons for pursing this project are partly economic, but also social and political: for some, the market entrenches a form of individualism (ordoliberalism) that has strong roots in continental European philosophy, while for others, its main benefit is that it sucks Member States into deeper integration in other areas. More recently, it has come to be seen by many as a regulatory project, balancing social and economic interests. Section 3 considers the legal tools used to build the internal market and the concepts underlying them. As well as free trade, a central idea in the internal market is that of ‘undistorted competition’. If states have different rules on matters relevant to industry (for example, environmental or labour law), then companies in states with low regulatory burdens will have an advantage. This may be economically problematic, but is also seen as unfair. Harmonisation often aims to remove such distortions.

European Union Law: The EU Judicial Order

INTRODUCTION This chapter considers the judicial order within the European Union, comprising the Court of Justice and national courts and tribunals, and the institutional relations of this judicial order. Section 2 considers the Court of Justice of the European Union. The institution comprises three courts: the Court of Justice, the General Court and the European Union Civil Service Tribunal. A feature of EU law is that there is a joint responsibility between national courts and the Union courts for the interpretation and maintenance of EU law. Section 3 considers the central institutional features of this judicial order, which is governed by Articles 267 and 274 TFEU. The Court of Justice has an exclusive responsibility to declare EU measures invalid and to provide authoritative interpretations of EU law across the Union, whilst national courts have a monopoly over the adjudication of disputes. A further feature of this order is that its only subjects are courts. Institutional relations between them are not governed by a system of appeal by individuals but a reference from a national court to the Court of Justice on a point of EU law. The Court of Justice has sought to expand the subjects of this judicial order by allowing many bodies to refer, which would be considered regulatory or administrative bodies rather than courts under national law. It also allows any body to make a reference irrespective of national precedents or hierarchies.

European Union Law: The Authority of EU Law

INTRODUCTION This chapter considers the authority of EU law. It is organised as follows. Section 2 considers the claims made in Van Gend en Loos ( VGL ) and Costa v ENEL that EU law is an autonomous legal order which limits national sovereignty. According to these judgments, EU law is to take precedence over national law and give rise to rights which can be directly invoked in national courts. A feature of national judicial reaction is that if national courts have generally been willing to accept the authority of EU law emanating from these cases, they have been resistant to its implications where EU law encroaches on activities of particular national sensitivity. This tension has become more intense as EU law has intruded into ever more salient fields of activity. Section 3 examines the different doctrines deployed to establish a system of authority for EU law. The autonomy of EU law requires that EU law alone decides which activities it regulates and that its central principles and institutional features cannot be compromised by other legal orders. The primacy of EU law requires that where a conflict is identified by EU law between it and national law, primacy should be given to EU law. The doctrine of pre-emption determines that it should be EU law which decides when and whether there is a conflict between EU law and national law. The fidelity principle, set out in Article 4(3) TEU, imposes institutional duties on both EU and national authorities to ensure that the EU legal system functions effectively. Section 4 considers the foundations underpinning the authority of EU law. Its authority relies on the pedigree of those recognising it. Historically, this was largely confined to national courts. This granted EU law formal validity, but its authority had limited resonance. This was altered by a Declaration to the Lisbon Treaty which recognised the primacy of EU law. The use of a Declaration suggested that if a political consensus supported this authority, it was still only half-hearted support which did not extend to granting that authority a formal recognition within the main provisions of the Treaty.

European Union Law: EU Criminal Law

INTRODUCTION This chapter considers EU criminal law. It is organised as follows. Section 2 considers the central traits of EU criminal law. EU criminal law is subject to particular sensitivities. In the first place, it is constrained by the requirements in Article 4(2) TEU that it respect essential Member State functions maintaining law and order and that national security be the sole responsibility of each Member State. In the second place, prior to the Lisbon Treaty it was subject to arrangements, which were predominantly intergovernmental in nature. This has left a legacy in that it still relies heavily on legal instruments from that period, notably Framework Decisions. Thirdly, a number of additional institutional checks are deployed to patrol it. Member States, when there are one-quarter of them, share the power of initiative with the Commission. ‘Emergency brake’ procedures allow any Member State to refer a proposal affecting fundamental aspects of its criminal justice system to the European Council. One-quarter of national parliaments (rather than one-third elsewhere) can ask the Commission to reconsider a proposal for failure to comply with the subsidiarity principle. Finally, this field is strongly marked by differentiated integration. Denmark does not participate in measures adopted since the Lisbon Treaty, and the United Kingdom and Ireland can choose whether or not to participate. Notwithstanding this, an EU criminal legal order has emerged, centred on two rationales. The first involves taking collective measures which augment the security of Member States, individually and collectively. The second is a European public order based around certain shared interests and values. These include the development of certain pan-Union crimes, the use of criminal law to secure the regulatory effectiveness of other EU policies, and the establishment of pan-Union rights for the victims of crime.

European Union Law: The Free Movement of Goods

INTRODUCTION Article 34 TFEU prohibits restrictions on the import of goods from other Member States. Case law has divided measures which may be restrictions into three categories, governed by three important cases, Dassonville, Cassis de Dijon and Keck . The structure of the chapter reflects this. Section 2 discusses the umbrella notion of a restriction on imports, which is provided in Dassonville . This case established a very broad scope to Article 34, applying to any measure which impedes imports, however that effect is achieved. Alfa Vita even suggests that if a measure results in reduced sales of certain goods this may be enough to bring it within Article 34. Section 3 discusses the application of Article 34 to product rules. The basis for this application is provided in Cassis de Dijon . Product rules are rules which require producers to change some aspect of the physical product or its packaging before it may be sold. Examples are rules which only allow the sale of foodstuffs made in certain ways, or which limit the kinds of containers that can be used for soft drinks. The Court of Justice held in Cassis de Dijon that even if these rules apply equally to imports and domestic products, they are nevertheless restrictions on imports.

European Union Public Law: European integration and the treaty on European Union

INTRODUCTION This chapter sets out the central features of the European integration process, which provide the historical and political context for European Union law. It also introduces some of the central concepts, ideas and developments in EU law. Section 2 explores how EU law is centred around an interplay between two themes. The first is the government of many contemporary problems through law. The second is the development of the ideals of Europe and European union. This interplay lays the ground for many of its debates. The European ideal conceives of Europe as the central place of progress, learning and civilisation, placing faith in humanity and its capacity to improve. Its dark side is its arrogance and its dismissal of ‘un-European’ ways of life or thought as violating these virtues. The idea of European union sets up a political community in competition with the nation-state but one, nevertheless, through which government policy is carried out. Section 3 considers the establishment of the three Communities, the European Economic Community (EEC), the European Coal and Steel Community (ECSC) and the European Atomic Energy Community (EURATOM). It sets out the central institutions: the Commission, the Parliament, the Council and the Court of Justice. It also considers the central policies, most notably the common market. This section also compares two developments of the 1960s that set out the two dominant models of political authority in EU law: the Luxembourg Accords which set out an intergovernmental vision with political authority and democracy vested in the nation-state, and Van Gend en Loos which set out a supranational one in which these are vested in supranational institutions and the rights of European citizens. Finally, this section evaluates the Single European Act (SEA). This established the internal market, and transformed the legislative and political culture surrounding the European Communities by setting out both an ambitious legislative programme and providing for significant amounts of legislation to be adopted free from the national veto.