11. Internal Market: Persons

This chapter highlights the complex constitutional arrangements governing the free movement of persons. The EU Treaties distinguished between two classes of economic migrants, namely, employed and self-employed persons; and today's Treaty title dealing with persons still addresses ‘Workers’ and the ‘Right of Establishment’ in two separate chapters. With the 1992 Maastricht Treaty, the two special chapters on persons were complemented by the general rules on EU citizenship. Unsurprisingly, there has been a complex relationship between the two specific sources of free movement rights and the EU citizenship provisions. Their symbiotic relationship is particularly embodied in the ‘Citizenship Directive’. The chapter then considers the possible justifications for Member State restrictions on the free movement of persons.

8. European Actions

This chapter describes the direct enforcement of European law in the European Courts. The judicial competences of the European Courts are enumerated in the section of the Treaty on the Functioning of the European Union (TFEU) dealing with the Court of Justice of the European Union. The chapter discusses four classes of judicial actions. The first class is typically labelled an ‘enforcement action’ in the strict sense of the term. This action is set out in Articles 258 and 259 TFEU and concerns the failure of a Member State to act in accordance with European law. The three remaining actions ‘enforce’ the European Treaties against the EU itself. These actions can be brought for a failure to act, for judicial review, and for damages.

3. Union Competences

This chapter explores the scope and nature of the European Union's legislative competences. Based on the principle of conferral, the EU must act within the scope of competences conferred upon it by the Member States. Three legal developments have significantly undermined the principle of conferral in the past. First, there has been a rise of teleological interpretation. The EU's competences are here interpreted in such a way that they potentially ‘spill over’ into other policy areas. The second development is the rise of the EU's general competences. The EU enjoys two very general legislative competences that horizontally cut across the various policy titles within the EU Treaties: Articles 114 and 352 TFEU, which concern internal market competence and residual competence, respectively. The third development is the doctrine of implied external powers. The chapter then studies the different categories of EU competences: exclusive, shared, coordinating, and complementary.

Epilogue Brexit: Past, Present, Future

This epilogue discusses the past, present, and future of the British exit (‘Brexit’) from the European Union. It begins by offering a brief historical overview of the past tensions between the United Kingdom and the European Union in an attempt to better explain the ‘special’ unease with which the United Kingdom viewed European integration. A former imperial and global power, its political self-understanding indeed differed from the very beginning from that of other Member States. The chapter then explores the ‘present’ withdrawal process under Article 50 TEU and the ‘Withdrawal Agreement’. It also analyses four possible EU–UK trade relationship options. Will both parties decide to create a common customs union or will they conclude a ‘Canada Plus’ agreement? A future trade deal is currently being negotiated; yet the option of a ‘hard’ Brexit remains.

9. Internal Market: Goods I

This chapter explores the European Union's negative integration tools in the context of the free movement of goods. In order to create an internal market in goods, the EU insists that illegal barriers to intra-Union trade must be removed. Its constitutional regime is, however, split over two sites in Part III of the TFEU. It finds its principal place in Title II governing the free movement of goods, which is complemented by a chapter on ‘Tax Provisions’ in Title VII. Within these two sites, one finds three important prohibitions. The first is the prohibition on customs duties, which are fiscal duties charged when goods cross national borders. The second type of fiscal charge is the discriminatory taxes imposed on foreign goods. The chapter then investigates the legality of and possible justifications for regulatory restrictions to trade in goods.

7. National Actions

This chapter addresses the indirect enforcement of European law through the national courts. The core duty governing the decentralized enforcement of European law by national courts is rooted in Article 4(3) TEU: the duty of ‘sincere cooperation’. What does this mean; and to what extent does it limit the procedural autonomy of the Member States? The chapter explores two specific constitutional principles that the European Court has derived from the general duty of sincere cooperation: the principle of equivalence and the principle of effectiveness. Both principles have led to a significant judicial harmonization of national procedural laws. The chapter then considers the State liability principle, and looks at the procedural bridge that exists between national courts and the European Court of Justice. From the very beginning, the European Treaties contained a mechanism for the interpretative assistance of national courts: the preliminary reference procedure.

12. Competition Law: Cartels

This chapter provides an overview of EU competition law through the lens of Article 101 TFEU. Article 101 outlaws anti-competitive collusions between undertakings; that is, ‘cartels’. Historically, this form of illegal behaviour has been the most dangerous anti-competitive practice. The prohibition on any collusion between undertakings to restrict competition in the internal market is thereby set out in Article 101. The European Union has given a wide jurisdictional scope to the provision, and EU competition law generally. Yet it tries to find an appropriate balance between pro- and anti-competitive considerations for every agreement. Due to the EU's historic task to create an internal market, vertical agreements have been of particular importance to EU; and distribution agreements indeed continue to occupy a prominent place within the case law of the European Courts.

10. Internal Market: Goods II

This chapter studies the constitutional principles and limits governing positive integration in the context of the free movement of goods. It analyses the scope and nature of the general internal market competence(s): Articles 114 and 115 TFEU. Articles 114 and 115 TFEU provide the European Union with an—almost—unlimited competence to harmonize national laws that affect the establishment or functioning of the internal market. The chapter then looks at the relationship between Article 114 and other legislative competences within the EU legal order. It also investigates the extent to which Member States can derogate from harmonized Union standards. Finally, the chapter focuses on a specific area of Union harmonization: tax harmonization.

6. (Legal) Primacy

This chapter assesses the ‘primacy’ of European law. When the European Union was born, the European Treaties did not expressly mention the primacy of European law. Did this mean that primacy was a matter to be determined by each national legal order; or was there a European Union doctrine of primacy? There are two perspectives on the primacy question. According to the European perspective, all Union law prevails over all national law. This ‘absolute’ view is not, however, shared by the Member States. According to the national perspective, the primacy of European law is relative. The chapter then considers the two national challenges to the absolute primacy of European law. The first is the national claim asserting the relative primacy of European law in the context of fundamental human rights. The second is the contested question of who is the ultimate arbiter of the scope of the European Union's competences.

5. Direct Effect

This chapter focuses on the direct effect of European law in the national legal orders. The European Union insists on a monistic relationship between European and national law. This, in particular, means that the EU will itself determine the effect of its law in the national legal orders. The chapter then looks at the direct effect of the European Treaties. The European Treaties are, however, mainly framework treaties; that is, they primarily envisage the adoption of European secondary law and especially EU legislation. This secondary law may take various forms, which are set out in Article 288 TFEU. The provision acknowledges three binding legal instruments—regulations, directives, and decisions—and two non-binding instruments. Much of the constitutional discussion on the direct effect of European secondary law has consequently concentrated on the direct effect of directives. The chapter also analyses the doctrine of indirect effect within the EU legal order.