Michael Dougan

The "Disguised" Vertical Direct Effect of Directives?

This paper addresses one aspect of the European Court of Justice’s troubled case-law on the direct effect of Community directives: the so-called “incidental effect” of unimplemented directives against private parties, and its uncomfortable relationship to the basic framework of legal principles so forcefully affirmed by the Court in Faccini Dori [1994] E.C.R. I-3325. It is argued that the judgments in question can perhaps best be understood as some form of “disguised” vertical direct effect, but that any such solution merely reinforces the unsatisfactory policy quandary which besets this area of Community law.

National Welfare Systems, Residency Requirements and EU Law: Some Brief Comments

This short paper summarises recent developments in the case law of the Court of Justice of the European Union concerning the rights to residency and equal treatment of economically inactive migrant Union citizens. Rulings such as Dano and Alimanovic have signalled a hardening of judicial attitudes, retreating from some of the more generous case law delivered by the Court in the past. That change perhaps plays to broader political concerns about the free movement of Union citizens in certain Member States – not least the United Kingdom, where such issues are playing a prominent role in the public debate about whether or not to remain a Member State of the European Union.

Who Exactly Benefits from the Treaties? The Murky Interaction Between Union and National Competence over the Capacity to Enforce EU Law

The question of exactly who benefits from the Treaties, in the sense of which range of persons and bodies should be recognised as legally competent to enforce any given provision of Union law before the national courts, is surprisingly murky. This lack of clarity is due partly to the inherent complexity of the question, as well as to the complication posed by the interdependent relationship between the Union and national legal orders. The confusing approach adopted by the Court of Justice compounds the matter. This chapter discusses some observations on why this is a question which poses particular policy challenges for the Union legal order, before going on to summarise the relevant tools employed by the Court of Justice when addressing issues about the decentralised enforcement of Union law by private and public actors. It is argued that, despite the apparent confusion, it is possible to construct a workable division of labour between the role of Union law in defining its own protective scope (on the one hand) and the discretion of each Member State over access to the courts for the enforcement of Union law (on the other hand). A detailed analysis of the case law is conducted in order to identity the weakest links in the system, or at least those which suffer from the greatest degree of doctrinal and conceptual neglect. The question of who exactly benefits from the Treaties, in the sense of enjoying rights of standing to enforce Union law before the national courts, presents both surprisingly difficult challenges and promising research issues for the future.

The Court Helps Those Who Help Themselves … The Legal Status of Migrant Work-Seekers under Community Law in the Light of the Collins Judgment

This article considers the rights to free movement and equal treatment enjoyed by migrant work-seekers, in their capacity as Union citizens, in the light of the judgment of the European Court of Justice in Collins. The Courts approach now focuses upon the right of such lawfully resident Community nationals to challenge discriminatory restrictions on subsistence benefits under Article 39 EC as reinterpreted in light of Article 12 EC; and the potential for the Member States nevertheless to justify such restrictions by reference to their legitimate desire to ensure a ‘real link’ between economically inactive migrants and the domestic welfare systems. The article further addresses the impact of the Collins ruling upon legislative choices made by the Communitys political institutions about the mutual allocation between Member States of financial responsibilities for economically inactive persons (including migrant work-seekers), in particular, as contained in Directive 2004/38 on free movement for Union citizens and their family members, and Regulations 1408/71 and 883/2004 on the co-ordination of national social security systems.

Addressing Issues of Protective Scope within the Francovich Right to Reparation

EU Law – Member State liability in damages – Issues of protective scope about exactly which individuals/interests are protected – Conditions for Member State liability – Intention to confer rights criterion – Tendency towards a ‘checklist’ approach by the Court of Justice of the European Union – Potential implications for scope of Member State liability – Finding appropriate balance between protecting individuals and punishing public bodies – Example of free movement rights – Example of environmental legislation – Example of employment legislation

The Impact of Migration on Healthcare in the European Union

in July 2006, the university of liverpool hosted a research seminar on The Impact of Migration on Healthcare in the European Union attended by speakers from various academic disciplines, the public sector and political life. The seminar was generously sponsored by the Wellcome Trust, and organised by the Migration unit of the europe in the World centre (a Jean Monnet centre of excellence) and the international and european law unit (the liverpool law school). several of the speakers kindly agreed to write up their presentations for publication in this special issue of the Maastricht Journal. The papers will speak for themselves, in terms of the quality of their work and their variety of approaches, but readers might find it useful for us to identify certain common themes and contrasting views. The focus of the collection is the process by which community migration law – in particular, the legal framework surrounding the right to free movement for union citizens – prompts change and reform in the national healthcare systems.1 To be more precise, each paper examines the role of patients as agents of change. This bottom-up approach draws attention to three main community legal mechanisms, each of which, in its own fashion, facilitates the cross border delivery of medical treatment while simultaneously reshaping the Member states’ own healthcare services. The first mechanism concerns the directly effective rights to cross border healthcare conferred by article 22 regulation 1408/71 and article 49 ec. These provide the basis for Mark flear’s contribution. Taking for granted that the doctrinal problems thrown up by the case-law from Kohll2 to Watts3 have already been thoroughly analysed by other commentators, flear draws upon sociological institutionalism to offer fresh insights into how patients exercising their directly effective community law rights might themselves

COMMON MARKET LAW REVIEW

Aims The Common Market Law Review is designed to function as a medium for the understanding and analysis of European Union Law, and for the dissemination of legal thinking on all matters of European Union Law. It thus aims to meet the needs of both the academic and the practitioner. For practical reasons, English is used as the language of communication. Editorial policy The editors will consider for publication manuscripts by contributors from any country. Articles will be subjected to a review procedure. The author should ensure that the significance of the contribution will be apparent also to readers outside the specific expertise. Special terms and abbreviations should be clearly defined in the text or notes. Accepted manuscripts will be edited, if necessary, to improve the general effectiveness of communication. If editing should be extensive, with a consequent danger of altering the meaning, the manuscript will be returned to the author for approval before type is set. Submission of manuscripts