File #2562: "2019_Book_BetweenComplianceAndParticular.pdf"
Testo
1|Preface|5
1|Contents|8
1|About the Contributors|14
1|Between Compliance and Particularism|17
2|1 Introduction|17
2|2 History, Politics and the Law: The Background|20
2|3 Between Compliance and Particularism: The Analytical Frame|24
2|4 The Structure of the Book|27
2|References|34
1|In Search of Limits for the Protection of National Identities as a Member State Interest|37
2|1 Introduction|37
2|2 The Emergence of Respect for National Constitutional Identity in the European Constitution|39
3|2.1 Common Interests and Protection of Member States Interests in the Early Stages of Integration|39
3|2.2 Codification of the Concept|41
2|3 Limits to Protection of National Identity in European Union Law|43
3|3.1 National Constitutional Identity and the Court of Justice’s Triptych of Effectiveness, Uniformity and Autonomy of the EU Legal Order|43
4|3.1.1 National Constitutional Identity in the Case Law of National Constitutional Courts|43
4|3.1.2 Limits to Invoking Constitutional Identity as Unilateral Exceptions to Primacy|47
3|3.2 The Principle of Proportionality as a Limit to National Constitutional Identity|51
3|3.3 National Constitutional Identity and (Common) Liberal Values|57
2|4 Conclusions|61
2|References|62
1|EU Loyalty and the Protection of Member States’ National Interests|64
2|1 Introductory Remarks|64
2|2 The Protection of Member States’ National Interests in an “Ever Closer Union”: The General Paradigm of the Interplay Between Loyalty, EU Integration and National Interests|68
3|2.1 The Protection of National Interests in the Decision-Making Process|75
3|2.2 Exceptions, Derogations and Loyalty|76
3|2.3 Differentiated Integration and Loyalty|78
2|3 Loyalty, Solidarity and Member States’ National Interests in Times of Crisis|80
3|3.1 The Interplay Between Loyalty and Solidarity in the European Union’s Regular Institutional Life|81
3|3.2 Loyalty and Solidarity in Times of Crisis|83
2|4 Acceding to (and Leaving) the Union and Protecting National Interests: Is Loyalty (Still) Relevant?|86
2|5 Conclusion|88
2|References|89
1|EU Post-crisis Economic and Financial Market Regulation|94
2|1 Introduction|94
2|2 “More Europe” at the Expense of Member States’ Interests?|96
3|2.1 Stage One: A Common Rulebook for Financial Services Harmonising National Frameworks|96
3|2.2 Stage Two: Budgetary Stability Obligations and Emergency Rescue Bodies|99
3|2.3 Stage Three: Single Supervisory and Resolution Mechanisms|101
2|3 Member States’ Interests in an Upgraded Institutional Framework|103
3|3.1 Guaranteeing Member States’ Interest by Means of Institutional Rules|104
3|3.2 Streamlined Conflict Resolution Methods|107
3|3.3 Protecting Member States’ Interests by Means of Administrative Embedding|109
2|4 Challenges and Frictions Resulting from the Embedding of Member States’ Interests in the EU Financial Governance Framework|111
3|4.1 Sacrificing Substance for the Sake of Procedure?|111
3|4.2 Additional (Soft) Legal Instruments as Intermediate Solutions|113
2|5 Conclusion|115
2|References|115
1|Member State Interests and EU Internal Market Law|118
2|1 Introduction|118
2|2 Member State Interests and the Internal Market|121
2|3 Derogations from the Fundamental Freedoms and the Role of the Court of Justice|122
3|3.1 The Scope of the Fundamental Freedoms|122
3|3.2 Member State Justifications|125
3|3.3 The Effects of the Jurisprudence|133
3|3.4 Mainstreaming Non-economic Values and Norms|133
2|4 Imbalances Between the Market and the Social Sphere|134
2|5 Conclusions|138
2|References|139
1|Member State Interests in EU State Aid Law and Policy|143
2|1 Introduction|143
2|2 State Aid and the Revival of Industrial Policy|144
2|3 The Purpose and Justification of State Aid Control in the EU|145
2|4 The Notion of State Aid and Its Impact on National Policy Autonomy|147
2|5 The Commission’s Role in Influencing the Design of National Industrial Policy|152
3|5.1 The GBER|152
3|5.2 The Case of Research, Development and Innovation|154
2|6 National Interests in EU State Aid Law and Policy|156
2|7 Conclusions|158
2|References|158
1|Member States’ Interest in the Enforcement of EU Competition Law|160
2|1 Introduction|160
2|2 The Transformation of EU Competition Law Enforcement and Its Impact on the Uniform Enforcement of Article 101 TFEU|162
3|2.1 The Centralised Enforcement System of Regulation 17/62|162
3|2.2 The Decentralised Enforcement System of Regulation 1/2003|163
3|2.3 Hard and Soft Law Rules to Address the Risk of Re-Nationalisation Under Regulation 1/2003|164
2|3 Leeway in EU Law for Incorporating National Interests in the Enforcement of Article 101 TFEU|166
3|3.1 Leeway for National Interests Under National Legal Provisions|167
4|3.1.1 Substantive National Laws Limiting the Enforcement of Specific Agreements|167
4|3.1.2 Procedural Provisions: National de minimis Rules|170
3|3.2 Leeway for National Interests Through National Application of Article 101 TFEU|173
4|3.2.1 Application of Article 101(1) TFEU|174
4|3.2.2 Applying Article 101(3) TFEU|176
2|4 Conclusions|179
2|References|180
1|Against the Grain? Member State Interests and EU Procurement Law|184
2|1 Introduction|184
2|2 Competition-Oriented Public Procurement and the Diversity of National Economic Models|187
2|3 EU Public Procurement and Member States’ Protectionist Interests|191
3|3.1 Protectionist Interests as “Anti-Internal Market” National Interests|192
3|3.2 Public Procurement as a Ban on “Anti-Internal Market” Protectionist National Interests|194
2|4 EU Public Procurement and Member States’ Non-Protectionist Interests|197
2|5 Conclusions|198
2|References|200
1|Member State Interests and the EU Law on Unfair B2C and B2B Practices|203
2|1 Introduction|203
2|2 The Interests of the EU and of the Member States|204
2|3 From Negative to Positive Harmonisation|206
2|4 From Minimum to Full Harmonisation|208
3|4.1 First Act: Misleading Advertising|208
3|4.2 Second Act: Comparative Advertising|209
3|4.3 Third Act: Unfair Commercial Practices|209
2|5 Spaces Left for the Member States Within the B2C Dimension: Theory and Practice|211
2|6 The B2B Dimension|214
3|6.1 Setting the Scene|214
3|6.2 B2B Unfairness in the Food Supply Chain: Insights from a Member State|215
2|7 Conclusions|218
2|References|219
1|Member State Interests and European Union Law|224
2|1 Introduction|224
2|2 Competence Division Between the EU and the Member States in the Field of Human Health|225
3|2.1 Competence Division Prior to the Lisbon Treaty|225
3|2.2 The Union’s Public Health Competence Under the Lisbon Treaty|227
3|2.3 Market Integration and Union Action with a Health Impact|230
2|3 Cross-Border Health Care: Extending Market Integration Rules to Health Policy and Health Systems|232
3|3.1 Market-Driven Challenges to the Principle of State Territoriality in Health Care|233
3|3.2 Directive 2011/24/EU on Patient Rights in Cross-Border Care|235
3|3.3 The Impact of Cross-Border Care|237
2|4 EU Macroeconomic and Fiscal Governance and Its Impact on National Health Systems|238
2|5 Final Remarks|240
2|References|241
1|Managing Novel Food Technologies and Member States’ Interests|244
2|1 Introduction|244
2|2 A Centralisation or a Rebalancing of Powers?|247
3|2.1 EU Integration, Multilevel Governance and Subsidiarity|247
3|2.2 Asymmetric Relationships in Novel Food Governance|250
2|3 The Role of Scientific and Non-Scientific Factors in European Food Governance|255
3|3.1 The Risk Assessment/Risk Management Dichotomy|255
3|3.2 The Role of “Other Legitimate Factors”|257
2|4 Concluding Remarks|260
2|References|261
1|Local Interests and Social Integration in Europe|265
2|1 Introduction|265
2|2 The Dilemmas of Economic and Social Integration in Europe|266
2|3 Varieties of Local Capitalisms and Social Integration in Europe|270
3|3.1 The Posting of Workers|273
3|3.2 The Regulation of Working Time|281
2|4 Conclusion|287
2|References|288
1|The Duty of Sincere Cooperation and Its Implications for Autonomous Member State Action in the Field of External Relations|292
2|1 Introduction|292
2|2 The Duty of Sincere Co-operation: Constitutional Foundations|294
2|3 Implications for Member State Action: An Obligation of Result or an Obligation of Conduct?|297
2|4 The Protection of Member State Interests: Procedural Options|303
2|5 Conclusions|305
2|References|306
1|Member States’ Interests and the Common Commercial Policy|308
2|1 Introduction|308
2|2 The Member States and the Principles and Objectives of the CCP|310
2|3 The Member States and Exclusive Competences in the CCP|314
2|4 Member State Exceptions and Derogations from the Exclusive Competence|319
3|4.1 Treaty Exceptions: Public Policy and Public Security|319
3|4.2 Specific Authorisation of Trade Agreements Concluded by the Member States|321
3|4.3 “Exclusion of Harmonisation” and the CCP|323
2|5 Procedures, Decision-Making, Implementation and Member States’ Interests|323
2|6 Conclusions|326
2|References|327
1|Foreign Policy Without Unilateral Alternatives?|330
2|1 Introduction|330
2|2 The Promotion of Member State Foreign Policy Interests Through Unilateral Actions: An Outdated Practice?|331
2|3 The Promotion of Member State Interests Through Common Institutions: The Rise of a New EC/EU Competence|336
2|4 Unilateral Alternatives in the Imposition of Trade Measures?|341
2|5 Where Member State Interests May Prevail: The Case of Travel Bans|343
2|6 Conclusions|345
2|References|345
1|Contents|8
1|About the Contributors|14
1|Between Compliance and Particularism|17
2|1 Introduction|17
2|2 History, Politics and the Law: The Background|20
2|3 Between Compliance and Particularism: The Analytical Frame|24
2|4 The Structure of the Book|27
2|References|34
1|In Search of Limits for the Protection of National Identities as a Member State Interest|37
2|1 Introduction|37
2|2 The Emergence of Respect for National Constitutional Identity in the European Constitution|39
3|2.1 Common Interests and Protection of Member States Interests in the Early Stages of Integration|39
3|2.2 Codification of the Concept|41
2|3 Limits to Protection of National Identity in European Union Law|43
3|3.1 National Constitutional Identity and the Court of Justice’s Triptych of Effectiveness, Uniformity and Autonomy of the EU Legal Order|43
4|3.1.1 National Constitutional Identity in the Case Law of National Constitutional Courts|43
4|3.1.2 Limits to Invoking Constitutional Identity as Unilateral Exceptions to Primacy|47
3|3.2 The Principle of Proportionality as a Limit to National Constitutional Identity|51
3|3.3 National Constitutional Identity and (Common) Liberal Values|57
2|4 Conclusions|61
2|References|62
1|EU Loyalty and the Protection of Member States’ National Interests|64
2|1 Introductory Remarks|64
2|2 The Protection of Member States’ National Interests in an “Ever Closer Union”: The General Paradigm of the Interplay Between Loyalty, EU Integration and National Interests|68
3|2.1 The Protection of National Interests in the Decision-Making Process|75
3|2.2 Exceptions, Derogations and Loyalty|76
3|2.3 Differentiated Integration and Loyalty|78
2|3 Loyalty, Solidarity and Member States’ National Interests in Times of Crisis|80
3|3.1 The Interplay Between Loyalty and Solidarity in the European Union’s Regular Institutional Life|81
3|3.2 Loyalty and Solidarity in Times of Crisis|83
2|4 Acceding to (and Leaving) the Union and Protecting National Interests: Is Loyalty (Still) Relevant?|86
2|5 Conclusion|88
2|References|89
1|EU Post-crisis Economic and Financial Market Regulation|94
2|1 Introduction|94
2|2 “More Europe” at the Expense of Member States’ Interests?|96
3|2.1 Stage One: A Common Rulebook for Financial Services Harmonising National Frameworks|96
3|2.2 Stage Two: Budgetary Stability Obligations and Emergency Rescue Bodies|99
3|2.3 Stage Three: Single Supervisory and Resolution Mechanisms|101
2|3 Member States’ Interests in an Upgraded Institutional Framework|103
3|3.1 Guaranteeing Member States’ Interest by Means of Institutional Rules|104
3|3.2 Streamlined Conflict Resolution Methods|107
3|3.3 Protecting Member States’ Interests by Means of Administrative Embedding|109
2|4 Challenges and Frictions Resulting from the Embedding of Member States’ Interests in the EU Financial Governance Framework|111
3|4.1 Sacrificing Substance for the Sake of Procedure?|111
3|4.2 Additional (Soft) Legal Instruments as Intermediate Solutions|113
2|5 Conclusion|115
2|References|115
1|Member State Interests and EU Internal Market Law|118
2|1 Introduction|118
2|2 Member State Interests and the Internal Market|121
2|3 Derogations from the Fundamental Freedoms and the Role of the Court of Justice|122
3|3.1 The Scope of the Fundamental Freedoms|122
3|3.2 Member State Justifications|125
3|3.3 The Effects of the Jurisprudence|133
3|3.4 Mainstreaming Non-economic Values and Norms|133
2|4 Imbalances Between the Market and the Social Sphere|134
2|5 Conclusions|138
2|References|139
1|Member State Interests in EU State Aid Law and Policy|143
2|1 Introduction|143
2|2 State Aid and the Revival of Industrial Policy|144
2|3 The Purpose and Justification of State Aid Control in the EU|145
2|4 The Notion of State Aid and Its Impact on National Policy Autonomy|147
2|5 The Commission’s Role in Influencing the Design of National Industrial Policy|152
3|5.1 The GBER|152
3|5.2 The Case of Research, Development and Innovation|154
2|6 National Interests in EU State Aid Law and Policy|156
2|7 Conclusions|158
2|References|158
1|Member States’ Interest in the Enforcement of EU Competition Law|160
2|1 Introduction|160
2|2 The Transformation of EU Competition Law Enforcement and Its Impact on the Uniform Enforcement of Article 101 TFEU|162
3|2.1 The Centralised Enforcement System of Regulation 17/62|162
3|2.2 The Decentralised Enforcement System of Regulation 1/2003|163
3|2.3 Hard and Soft Law Rules to Address the Risk of Re-Nationalisation Under Regulation 1/2003|164
2|3 Leeway in EU Law for Incorporating National Interests in the Enforcement of Article 101 TFEU|166
3|3.1 Leeway for National Interests Under National Legal Provisions|167
4|3.1.1 Substantive National Laws Limiting the Enforcement of Specific Agreements|167
4|3.1.2 Procedural Provisions: National de minimis Rules|170
3|3.2 Leeway for National Interests Through National Application of Article 101 TFEU|173
4|3.2.1 Application of Article 101(1) TFEU|174
4|3.2.2 Applying Article 101(3) TFEU|176
2|4 Conclusions|179
2|References|180
1|Against the Grain? Member State Interests and EU Procurement Law|184
2|1 Introduction|184
2|2 Competition-Oriented Public Procurement and the Diversity of National Economic Models|187
2|3 EU Public Procurement and Member States’ Protectionist Interests|191
3|3.1 Protectionist Interests as “Anti-Internal Market” National Interests|192
3|3.2 Public Procurement as a Ban on “Anti-Internal Market” Protectionist National Interests|194
2|4 EU Public Procurement and Member States’ Non-Protectionist Interests|197
2|5 Conclusions|198
2|References|200
1|Member State Interests and the EU Law on Unfair B2C and B2B Practices|203
2|1 Introduction|203
2|2 The Interests of the EU and of the Member States|204
2|3 From Negative to Positive Harmonisation|206
2|4 From Minimum to Full Harmonisation|208
3|4.1 First Act: Misleading Advertising|208
3|4.2 Second Act: Comparative Advertising|209
3|4.3 Third Act: Unfair Commercial Practices|209
2|5 Spaces Left for the Member States Within the B2C Dimension: Theory and Practice|211
2|6 The B2B Dimension|214
3|6.1 Setting the Scene|214
3|6.2 B2B Unfairness in the Food Supply Chain: Insights from a Member State|215
2|7 Conclusions|218
2|References|219
1|Member State Interests and European Union Law|224
2|1 Introduction|224
2|2 Competence Division Between the EU and the Member States in the Field of Human Health|225
3|2.1 Competence Division Prior to the Lisbon Treaty|225
3|2.2 The Union’s Public Health Competence Under the Lisbon Treaty|227
3|2.3 Market Integration and Union Action with a Health Impact|230
2|3 Cross-Border Health Care: Extending Market Integration Rules to Health Policy and Health Systems|232
3|3.1 Market-Driven Challenges to the Principle of State Territoriality in Health Care|233
3|3.2 Directive 2011/24/EU on Patient Rights in Cross-Border Care|235
3|3.3 The Impact of Cross-Border Care|237
2|4 EU Macroeconomic and Fiscal Governance and Its Impact on National Health Systems|238
2|5 Final Remarks|240
2|References|241
1|Managing Novel Food Technologies and Member States’ Interests|244
2|1 Introduction|244
2|2 A Centralisation or a Rebalancing of Powers?|247
3|2.1 EU Integration, Multilevel Governance and Subsidiarity|247
3|2.2 Asymmetric Relationships in Novel Food Governance|250
2|3 The Role of Scientific and Non-Scientific Factors in European Food Governance|255
3|3.1 The Risk Assessment/Risk Management Dichotomy|255
3|3.2 The Role of “Other Legitimate Factors”|257
2|4 Concluding Remarks|260
2|References|261
1|Local Interests and Social Integration in Europe|265
2|1 Introduction|265
2|2 The Dilemmas of Economic and Social Integration in Europe|266
2|3 Varieties of Local Capitalisms and Social Integration in Europe|270
3|3.1 The Posting of Workers|273
3|3.2 The Regulation of Working Time|281
2|4 Conclusion|287
2|References|288
1|The Duty of Sincere Cooperation and Its Implications for Autonomous Member State Action in the Field of External Relations|292
2|1 Introduction|292
2|2 The Duty of Sincere Co-operation: Constitutional Foundations|294
2|3 Implications for Member State Action: An Obligation of Result or an Obligation of Conduct?|297
2|4 The Protection of Member State Interests: Procedural Options|303
2|5 Conclusions|305
2|References|306
1|Member States’ Interests and the Common Commercial Policy|308
2|1 Introduction|308
2|2 The Member States and the Principles and Objectives of the CCP|310
2|3 The Member States and Exclusive Competences in the CCP|314
2|4 Member State Exceptions and Derogations from the Exclusive Competence|319
3|4.1 Treaty Exceptions: Public Policy and Public Security|319
3|4.2 Specific Authorisation of Trade Agreements Concluded by the Member States|321
3|4.3 “Exclusion of Harmonisation” and the CCP|323
2|5 Procedures, Decision-Making, Implementation and Member States’ Interests|323
2|6 Conclusions|326
2|References|327
1|Foreign Policy Without Unilateral Alternatives?|330
2|1 Introduction|330
2|2 The Promotion of Member State Foreign Policy Interests Through Unilateral Actions: An Outdated Practice?|331
2|3 The Promotion of Member State Interests Through Common Institutions: The Rise of a New EC/EU Competence|336
2|4 Unilateral Alternatives in the Imposition of Trade Measures?|341
2|5 Where Member State Interests May Prevail: The Case of Travel Bans|343
2|6 Conclusions|345
2|References|345