John Trone

Free Movement of Persons and Services

Title IV of Part Three of the TFEU has three relevant chapters concerning the free movement of persons and the provision of services: Chapter 1 (workers), Chapter 2 (right of establishment) and Chapter 3 (services). A consideration of the relevant law involves an examination of Arts 45, 49 and 56 TFEU. These Articles deal with the rights of “workers” (Art 45), self-employed persons (Art 49) and the providers of services (Art 56) respectively.

Commercial Law of the European Union

Foreword.- Preface.- Acknowledgements.- Abbreviations.- Table of Cases.- Table of EU Founding Treaties.- Table of International Agreements.- Table of Legislation.- Chapter 1: The Political Institutions of the European Union.- Chapter 2: Free Movement of Goods.- Chapter 3: Free Movement of Persons and Services.- Chapter 4: Free Movement of Capital.- Chapter 5: Commercial Law and Policy.- Chapter 6: Competition Law.- Chapter 7: Removal of Taxation Barriers to Trade.- Chapter 8: Public Procurement.- Chapter 9: Industrial and Commercial Property Rights.- Chapter 10: Social Dimension of the European Union.- Chapter 11: Judicial Review and the European Court of Justice.- Chapter 12: The Effect of EU Law upon National Law.- Chapter 13: The European Union and the World Trading System.- Appendix A: Problem Questions.- Appendix B: Table of Equivalence. EEC Treaty version - Treaty of Amsterdam version.- Appendix C: Table of Equivalence. Treaty of Amsterdam version - Treaty of Lisbon version.- Index

Free Movement of Capital

The Treaty provisions concerning free movement of capital were replaced by the Maastricht (Union) Treaty. Under the amended Treaty all restrictions on the movement of capital between Member States, and between Member States and third countries, are prohibited (Art 63(1) TFEU). This provision has direct effect. See Criminal Proceedings Against Sanz de Lera (C-163/94) [1995] ECR I-4821 at [48]; [1996] 1 CMLR 361; Skatteverket v A (C-101/05) [2007] ECR I-11531 at [21], [25]–[26]; [2009] 1 CMLR 35 (p 975).

Domestic Court Proceedings Relating to International Commercial Arbitration in the Resources Sector

International commercial arbitrations often lead to related proceedings in domestic courts. This chapter provides some recent examples of domestic court cases relating to international commercial arbitrations in the resources sector. These cases have raised issues concerning the interpretation of the Model Law, arbitration under bilateral investment treaties, stay of proceedings, discovery under United States federal law and the enforcement of awards under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. These cases were decided by courts in Australia, Canada, the United States, the UK and Singapore.

Subsidiarity as Judicial and Legislative Review Principles in the European Union

The founding Treaties of the European Union make clear that subsidiarity is a judicially enforceable legal principle. However, the case law of the Court of Justice reveals that the enforcement of subsidiarity as a judicial principle has been ineffective. The Court has applied a very weak standard of review for both substantive and procedural compliance with the subsidiarity principle. By far the most significant application of the subsidiarity principle is its consideration as part of the EU legislative process. A Member State legislature may issue a reasoned opinion regarding subsidiarity aspects of a proposal. These reasoned opinions may trigger the yellow card procedure, forcing the Commission to review its proposal, or the orange card procedure, where the Parliament or Council can block the proposal. These procedures have some potential as legislative safeguards of subsidiarity: in 2013 the Commission withdrew a legislative proposal after the yellow card procedure was activated.

The Validity of Henry VIII Clauses in Australian Federal Legislation

The Australian High Court has stated that the federal Parliament may not abdicate its legislative powers. However, the Courts concept of abdcation only prohibits an abdication or renunciation of the power of Parliament to repeal or amend a statute. This concept of abdication is so narrow that it has not proved to be a meaningful limitation in practice. This paper argues that the Court should modify its abdication doctrine so that a delegation of power to amend statute law by regulation would constitute an abdication of legislative power. Subordinate legislation must at least be subordinate to primary legislation.

The Effect of EU Law upon National Law

This chapter discusses two of the essential pillars of EU law: the doctrines of direct effect and supremacy. The direct effect of EU law ensures that individuals can invoke some EU treaty provisions and legislation in legal proceedings in the courts of Member States. The doctrine of supremacy ensures that EU law prevails over any inconsistent law of a Member State, whether it be legislation or the national constitution.

Social Dimension of the European Union

The social dimension of the European Union is of direct relevance to business people, especially those who propose to establish a subsidiary in the Union. European subsidiaries of non-EU parent companies must organize their business in accordance with the anti-discrimination and consumer protection laws of the Union. The completion of the internal market has been accompanied by vigorous attempts to harmonize the social policies of the Member States. The first part of this chapter discusses EU provisions relating to sex discrimination, the second part examines EU legislation regarding other forms of discrimination and the final part briefly deals with other social provisions such as vocational training, data protection and consumer protection.

The European Union and the World Trading System

The preceding chapters have described the establishment by the European Union of an internal market which comprises “an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured” (Art 26(2) TFEU). It is also necessary to situate the EU within the world trading system. This necessity arises from the fact that the EU cannot operate as an isolated or self-sufficient economic grouping. The EU is bound by its membership in the World Trade Organization (hereafter “WTO”), which aims to achieve global rather than regional trade liberali-zation. The world trading system also includes many regional and bilateral free trade agreements. Furthermore, most EU Member States are party to the Convention on Contracts for the International Sale of Goods (CISG).

Commercial Law and Policy

The common external tariff is only one aspect of the EU’s commercial policy. This Chapter discusses another plank of this policy, namely measures which may be taken by the EU to protect trade, in particular the imposition of anti-dumping and countervailing duties.