11. Free movement of goods

This chapter explores the free movement of goods, which lies at the very heart of the internal market. The idea of the free movement of goods was the starting point that the EEC Treaty aimed for, and remains one of the greatest achievements of the EU to date. However, as with everything in EU law, there are a lot of legal rules underpinning a fairly straightforward concept. The Treaty contains two separate sets of provisions that address matters of taxation when it comes to trade in products. The first relates to border taxation, while the second relates to internal taxation. With regard to non-taxation issues, the primary issue is quantitative restrictions: situations where a Member State either blocks a specific volume of products from entering its market, or outlaws/bans a product altogether. The chapter then considers the exceptions to free movement of goods, and assesses how Brexit may impact on the free movement of goods between the UK and the EU.

8. Enforcing EU law

This chapter addresses the Treaty's provisions on the enforcement of EU law, particularly looking at Articles 258–260 TFEU (Treaty on the Functioning of the European Union). The European Commission's enforcement action, known as ‘infringement proceedings’, is set out in Article 258 TFEU. If the Commission proves an infringement has occurred, the Court of Justice of the European Union (CJEU) will issue a binding verdict that requires the Member State to rectify the breach: in other words, to amend its domestic laws until they are compliant with EU law. Article 260 TFEU makes clear, however, that the CJEU can only order ‘compliance’. Article 259 sets out a very similar process, rarely used, for Member State v Member State infringement proceedings. The chapter then considers the CJEU's development of the principles of direct and indirect effect and state liability, and explores the remedies for breaches of EU law. It also assesses the impact of Brexit on the enforcement of EU law.

6. The relationship between EU and national law

This chapter focuses on the relationship between EU law and national law. It first explores the jurisprudence on what is known as the doctrine of supremacy of EU law of the Court of Justice of the European Union (CJEU). When a national court observes that a national law clashes with an EU law, they must set aside that national law. The EU legal order would not work without a doctrine like supremacy: not only would domestic courts not be compelled to apply EU law instead of conflicting national law, but it is likely that different domestic courts would take different decisions as to whether to apply EU law over national law in a given scenario. The chapter then considers how supremacy has been received in Germany and the UK, looking at how the German and UK legal orders interact with EU law. It then addresses whether ‘parliamentary sovereignty’ is compatible with EU membership, and examines the impact of Brexit on the supremacy of EU law.

4. EU legislative powers

This chapter examines the sources of EU law. As with domestic law, there are two overarching categories of EU law: primary law and secondary law. EU primary law includes the EU Treaties and the general principles of EU law. Meanwhile, EU secondary law includes regulations, directives, decisions, international agreements, and ‘soft law’. The chapter then looks at the legislative processes that are used to adopt secondary legislation, and assesses when, or in what policy areas, the EU can make law. It also considers two mechanisms that aim to prevent the EU from extending its legislative power beyond what the Treaties have granted it: the principle of subsidiarity and the principle of proportionality. Finally, the chapter addresses the impact of Brexit on EU law, assessing what will happen to EU law in the UK during the Withdrawal Agreement's transition period.

3. Decision-making and democracy in the EU

This chapter analyses what EU academics have termed the ‘democratic deficit’ in the EU. In EU law, the concept of the ‘democratic deficit’ is used to classify the EU as a system that may hold some of the qualities of a democratic government, but is lacking others. The chapter then investigates just how much ‘democracy’ exists in the EU decision-making processes. There are those who claim that the EU will never be democratic, and those who argue that the EU actually does not suffer from true shortcomings. The chapter evaluates both of those claims, and considers if recent big events in the EU — such as the ratification of the Lisbon Treaty, and the so-called Eurozone financial crisis — impact upon the debate. It also looks at the nature of Brexit during the Withdrawal Agreement's transition period, as well as the future relationship between the UK and the EU.

15. Competition law

This chapter analyses the foundations of EU competition law. Competition law is an attempt to regulate the behaviour of private companies when active in the internal market so as to ensure that competition between different entities remains and is fair. The rules of competition law aim both to assist the completion of the internal market as well as addressing consumer welfare in more general terms. A further particularly interesting dimension is that unlike most internal market law, competition law applies regardless of the nationality of the companies or businesses active in the internal market. As such, UK companies active on the continent after Brexit will have to know these rules, regardless of whether they continue to apply in the UK. The chapter then details the two Treaty provisions that address anti-competitive behaviour: Articles 101 and 102 TFEU (Treaty on the Functioning of the European Union).

12. Free movement of workers

This chapter studies the ‘free movement of workers’, which was where free movement of persons law began under the Treaty of Rome. The current free movement of workers provisions are found in Articles 45–48 TFEU (Treaty on the Functioning of the European Union). Article 45 TFEU provides that freedom of movement for workers shall be secured within the Union. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration, and other conditions of work and employment. The chapter then explores the personal, material, and geographical scope of Article 45 TFEU. It also looks at the impact of Brexit on the status of current and future EU ‘workers’. The 2016 UK referendum showed that concerns about EU nationals being able to come without any restriction to the UK and access both British jobs and British benefits were one of the key drivers in the vote to leave the EU.

9. Fundamental rights in the EU

This chapter traces the development of EU law-based fundamental rights, from early Court of Justice of the European Union (CJEU) case law up to the Charter of Fundamental Rights. It considers the EU's relationship with the Council of Europe, focusing on how the CJEU and the European Court of Human Rights (ECtHR) attempt to avoid conflicting interpretations of overlapping rights, and whether the EU can in fact sign up to the European Convention on Human Rights (ECHR). It is important to remember that the ECtHR and the ECHR are not part of EU law. The ECHR is an international human rights treaty administered by the Council of Europe. It is applied and interpreted by the ECtHR, and is transcribed into UK law in the form of the Human Rights Act 1998. The EU, meanwhile, has the Charter of Fundamental Rights as its human rights ‘treaty’. The chapter then looks at the relationship between the CJEU and the ECtHR, and examines post-Brexit fundamental rights.

2. The EU institutions

This chapter discusses the different institutions that make up the ‘EU government’. It begins by explaining the Article 50 TEU (Treaty of European Union) process, which sets out how a Member State can leave the EU. The chapter then describes the European Council, the European Commission, the Council of Ministers, the European Parliament, and the Court of Justice of the European Union (CJEU). The two other EU institutions set out in Article 13 TEU include the European Central Bank and the Ombudsman. The chapter then considers how the roles of the EU institutions in the UK will change over the next few years following Brexit. It studies the Withdrawal Agreement and assesses what happens after the so-called transition period.

16. Negotiating a ‘future relationship’: EU external relations law

This chapter examines the ‘future relationship’ agreement(s) that will apply between the UK and the EU. Following the adoption of the Withdrawal Agreement, the UK will be looking to conclude what the EU terms a ‘future relationship’ agreement with the EU over the course of the transition period. That ‘future relationship’ will address both the conditions under which the UK trades with the EU in the future — or what replaces the internal market — and how the UK and the EU relate to each other diplomatically — or what replaces ‘membership’ of the EU as an institution. The EU Treaties set out clear processes for the conclusion of international agreements between the EU and other countries. The chapter explores what those processes are, considering what powers the EU has to conclude international agreements. It also looks at how decision-making relating to those international agreements takes place within the EU institutions.