College aantekeningen
Lectures European Law
- Instelling
- Universiteit Utrecht (UU)
All lectures of European Law.
[Meer zien]Voorbeeld 3 van de 25 pagina's
Voorbeeld 3 van de 25 pagina's
In winkelwagengesponsord bericht van onze partner
Voorbeeld van de inhoud
Lectures European LawWeek 1
Lecture 1
In this lecture:
- Setting the scene: set-up of the course, history, context and challenges. Also see the
knowledge clips.
- Economic integration: internal market and free movement in general.
- Economic integration: the freedom of establishment and the free movement of people.
The focus of this course is of substantive law, not institutional law, so only the prohibitions and such.
We also distinguish between economic integration (internal market) and non-economic integration
(citizenship, equality, freedom, security and justice). Because the EU has grown from only economic
to also non-economic: now it has rules for a lot of different things. This is different from what is
usually the case with organizations. But the aim was always to make sure there would not be war
(that’s why the EU made rules on high profit markets for coal and steel), and this later grew to more
than the economic sector. But safety, working together was always important.
Van Gent and Loos and Costa are very important cases because this made it so that also citizens had
not only rights but also obligations under EU-law, not only the states themselves. EU-law is in all
aspects of economic activity, so a lot of economic integration by EU-law. But there is also non-
economic integration.
This has made it so that EU also faces a lot of new challenges. This lays bare the structural
weaknesses of the EU. We will see if the foundations of the EU are shaking, because it is not capable
of solving all the problems that it now has because it was never made for that.
The internal market. The definition is in article 26 TFEU. But it has no absolute character, because it
depends on the treaties and case law. So we have to look further. See court of Justice EU (15/81).
How is the internal market realized? There are the Four Treaty Freedoms, the EU Competition rules
and the harmonisation measures. These are the three pillars or legal building blocks.
There are multiple integration methods:
- Negative integration: by applying the rules, the national restrictions will have to be set aside.
So this is removal of existing impediments to free movements, striking down national rules
and practices. There is the general principle of prohibition of discrimination (non-
discrimination, article 18, part of the treaty-freedoms). And all other restrictions on free
movement are prohibited. So these all have to be set aside (discriminating or restricting
national laws).
- Positive integration: modification of existing national laws and institutions by harmonisation.
There is exhaustive, optional and minimum harmonisation.
- Mutual recognition: see Cassis the Dijon (alcoholic beverage that couldn’t be sold in Germany
because it didn’t have enough alcohol, the rule: if it can be sold in another state it should be
allowed to be sold in every other state). No specific EU-rules are needed.
,But there are exceptions where states can still protect themselves. That is why negative integration
won’t be sufficient. That is why we will always need positive integration, the harmonisation of
national laws. This creates a level playing field but also protects the public interests.
Example of integration. Suppose we have Spanish law on gambling: the organisation of lotteries and
games of chance by foreign companies is prohibited in Spain. This is discriminatory. So this makes
this Spanish law be set aside, negative integration. But suppose it is required to have the offered
lotteries etc. be in Spanish language. This is indirect discrimination because it makes it a lot harder
for other states than for Spain. That is also prohibited. But if all organisation of lotteries and games of
chance is prohibited in Spain, this is not discrimination but it is restrictive, so also prohibited. All
negative integration. But suppose we have a EU directive with minimum requirements to prevent
gambling addiction with a view to obtain a licence for the organisation and marketing of lotteries and
games of chance in the EU. This is minimum harmonisation, positive integration. If lotteries and
games which have been legally authorized in Spain can also be offered in other states, this is mutual
recognition. Market access test.
Zoom in to the four freedoms. Rules in treaties (1) have direct effect, they all (2) comprise economic
activity (but it is also about the free movement of persons), prohibited are (3) discrimination and
what takes away from market access, but there are (4) exceptions, and the rules are (5) cross-border,
not about internal situations. The Four Freedoms:
1. Goods, article 28 TFEU.
2. Persons (including workers, self-employed and citizens), human rights are important here.
3. Services (health of lotteries, sensitive or legal), because of sensitivity there are rules in the
state for protection.
4. Capital (including transactions with third countries).
Free movement of goods. For example the Covid-masks and other equipment. Some states made
restrictions in export of these, other states even in import of food. There were also border closures
lockdowns. They all had an effect on articles 34 and 35. We have exceptions: for good reasons you
can restrict free movement. The states used 36. This can be used for essential medical equipment but
not for food products, because the aim of restrictions cannot be economic.
EU took action to make sure that goods could still be imported and exported between states. So
there was interplay between negative and positive harmonisation.
See knowledge clip and old notes. Keck-judgement only applies to goods, remember this!
Freedom of establishment and services. Establishment: someone self-employed or a company
providing services in another member state. When we talk about self employed persons we also have
to deal with human rights. Services can be anything.
Because of Covid, a lot of online services have benefitted. But for example transport and tourism
services have suffered because of it.
Artivle 49 TFEU: prohibitive rule: restrictions on the right of establishment shall be brohibited. Article
56 TFEU: also on the freedom to provide services. Article 57: definition of services. Article 51 and 52:
exceptions.
Article 57: services are usually for remuneration, so they have an economic character. What about
free services? A lot of them are for advertisement etc so they are also services. Remuneration is
broad, it can be indirect. See Gebhard, Josemans and Schindler as case law about this.
, Lectures are uploaded as soon as possible. Usually there is one lecture in a week, on Mondays. Next
week again there are two. But all are recorded.
Week 1
Lecture 2
This week: finish of last week. Articles 49 and 56 and the services directive 2006/123/EC.
Establishment and services in general. It has to have some economic activity but that is a broad
concept, see article 57: for remuneration. Case law in this respect are Gebhard, Josemans and
Schindler. Unlawful activities are excluded from the scope of application, including the sale of soft
drugs (Josemans, para 42).
Netherlands wanted to not have drugs-tourism so coffeeshops were not allowed to sell drugs to
Belgians and Germans. Joseman still sold drugs and had to close his shop. He challenged this. The
Netherlands asked questions to EU about this:
Could Josemans rely on provisions that there could not be restrictions?
Sale of soft drugs is tolerated, but still unlawfull, so no you cannot rely on the four freedoms.
But Josemans also sold sandwiches and drinks, lawful products. So here we have a problem if
Josemans cannot sell this anymore to tourists. Here he could rely on the four freedoms. It was
irrelevant that he sold almost no sandwiches.
The ultimate consequence of this is that the Netherlands had to justify its drugs-policy because
Josemans was right: he could not be restricted in all his sales.
Then Schindler, about the organisation and participation in lotteries and games of chance. Some
memberstates said that organisation of lotteries is prohibited, so therefor unlawful. Ut the court did
not go along with this: because they are generally not prohibited in de memberstates of the EU. So
they were just economic activity, not unlawful activity.
There are ofcourse blurring lines between goods, services and persons. Article 57 has a rest category,
but digitalization has made it so that there is more emphasis on services. Are digital goods goods or
services? This is important because there are different rules for these, for example copywright in
actual goods but not in services. Micro-entrepeneurs, on-demand workers, freelancers and
contractors are mostly seen as self-employed, see articles 49 and 56 TFEU.
Who are the adressees of the articles 49 and 56? Member states. But also private parties, under
conditions:
- Powerful, self-regulatory collective actors.
- Dominant role and powers akin to public law.
For example: Wouters-case. Lawyers in the Netherlands. A private organisation about lawyers
(Nederlandse orde van advocaten) in the Netherlands prohibited lawyers to work together with
Voordelen van het kopen van samenvattingen bij Stuvia op een rij:
Verzekerd van kwaliteit door reviews
Stuvia-klanten hebben meer dan 700.000 samenvattingen beoordeeld. Zo weet je zeker dat je de beste documenten koopt!
Snel en makkelijk kopen
Je betaalt supersnel en eenmalig met iDeal, creditcard of Stuvia-tegoed voor de samenvatting. Zonder lidmaatschap.
Focus op de essentie
Samenvattingen worden geschreven voor en door anderen. Daarom zijn de samenvattingen altijd betrouwbaar en actueel. Zo kom je snel tot de kern!
Veelgestelde vragen
Wat krijg ik als ik dit document koop?
Je krijgt een PDF, die direct beschikbaar is na je aankoop. Het gekochte document is altijd, overal en oneindig toegankelijk via je profiel.
Tevredenheidsgarantie: hoe werkt dat?
Onze tevredenheidsgarantie zorgt ervoor dat je altijd een studiedocument vindt dat goed bij je past. Je vult een formulier in en onze klantenservice regelt de rest.
Van wie koop ik deze samenvatting?
Stuvia is een marktplaats, je koop dit document dus niet van ons, maar van verkoper Yara99. Stuvia faciliteert de betaling aan de verkoper.
Zit ik meteen vast aan een abonnement?
Nee, je koopt alleen deze samenvatting voor €5,40. Je zit daarna nergens aan vast.
Is Stuvia te vertrouwen?
4,6 sterren op Google & Trustpilot (+1000 reviews)
Afgelopen 30 dagen zijn er 67232 samenvattingen verkocht
Opgericht in 2010, al 14 jaar dé plek om samenvattingen te kopen