European Union law.

671 Pages·2012·4.949 MB·English

by  Margot Horspool

Core Text Series
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Series Editor: Nicola Padfield
Company Law: Alan Dignam and John Lowry
Constitutional and Administrative Law: Neil Parpworth
Criminal Law: Nicola Padfield
Employment Law: Robert Upex, Richard Benny and Stephen Hardy
European Union Law: Margot Horspool and Matthew Humphreys
Evidence: Roderick Munday
Family Law: Mary Welstead and Susan Edwards
Intellectual Property Law: Jennifer Davis
Land Law: Kevin Gray and Susan Francis Gray
Medical Law: Jonathan Herring
The Law of Contract: Janet O’Sullivan and Jonathan Hilliard
The Law of Trusts: James Penner
The Legal System: Kate Malleson, Richard Moules
Tort: Stephen Hedley
For further information about titles in the series,
please visit www.oup.co.uk/series/cts
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We have Europe covered…
Barnard: The Substantive Law of the EU
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Foster: EU Law Directions
Foster: Foster on EU Law
Foster & Sule: German Legal System and Laws
Hartley: The Foundations of European Union Law
Horspool & Humphreys: EU Law (Core Text Series)
Steiner: French Law – A Comparative Approach
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Woods & Watson: Steiner & Woods EU Law
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For more details on any of these books or to see our
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CORE TEXT SERIES
European
Union Law
Seventh Edition
MARGOT HORSPOOL
Emeritus Professor of European and Comparative Law at the University of Surrey;
Fellow in European Law of the British Institute of International and Comparative Law;
Visiting Professor, Queen Mary University, London
MATTHEW HUMPHREYS
Professor of Law and Head of School, Kingston Law School, Kingston University
Series Editor
NICOLA PADFIELD
1
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Fourth Edition Published 2006
Fift h Edition Published 2008
Sixth Edition Published 2010
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MARGOT
Ter herinnering aan mijn moeder, Johanna van Ling (1908–1997) and
to Isabella, Amelia, Jude, Opre and Johan, Europeans of the new Millennium.
MATTHEW
For Emma and Sam, Beth and Henry.
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Foreword to the sixth edition, at the time of the
coming into force of the Lisbon Treaty
Much has changed in the fi eld of EU law since the publication of the fi ft h edition of this
book—most of all, as a result of the Lisbon Treaty coming into force.
On the simplest level, the structure of the Treaties has been changed and the Articles
have been renumbered. But the substantive changes are extensive and their conse-
quences are potentially far-reaching.
What was formerly the Th ird Pillar (Freedom, Security and Justice—formerly Justice
and Home Aff airs) has been removed from the loose structures of inter-governmental
negotiation, and brought within the discipline of the ‘Community system’. Proposals
in this fi eld of activity will now be fully subject to parliamentary and judicial con-
trol, although public understanding is not made any easier by the proliferation of opt-
outs. Indeed, the number and complexity of Protocols and Declarations make the legal
regime extremely confusing, even for experts.
Two consequences of Lisbon have been less widely noticed and commented upon than
they should have been, in Britain at any rate.
Th e fi rst is the importance attached by the Treaty on European Union to the principles
of conferral, subsidiarity and proportionality. All proposals must now pass these tests
which are, in principle at least, judicially enforceable. Judicial enforcement is, however,
the ultimate sanction. Of greater practical importance will be the disciplines imposed
on the political institutions, especially the Commission.
Th e second consequence, intimately connected with the fi rst, is the role given to
national Parliaments as guardians of these principles in the evolution of EU proposals.
Th e Council, as an institution, represents the governments of the Member States and
is closely involved in the evolution of legislative proposals. Th e Lisbon Treaty pre-
supposes that national Parliaments may, and sometimes will, raise objections to pro-
posals that have found favour with their governments. Th e political consequences are
potentially far-reaching.
In addition, the Treaty recognises, for the fi rst time, the existence of regional
Parliaments with legislative powers. Admittedly, they are only to be consulted by
national Parliaments, and then only ‘where appropriate’. But the recognition that EU
proposals may be of legitimate concern to democratically accountable actors below the
level of the Member States is also a recognition that respect for subsidiarity is not the
exclusive prerogative of national institutions.
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Foreword to the sixth edition vii
Looked at from this point of view, the Lisbon Treaty is not a further step towards a
‘European super-state’, but rather a step towards a Europe that recognises and protects
the variable geometry of its constituent parts. For one observer at least, it is a pity that
the Lisbon Treaty marks the end of the ‘European Community’—a title that is less
ambitious than ‘European Union’, but perhaps more truly refl ective of what we would
like to build.
David Edward
Edinburgh
25 June 2010
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Foreword to the fi rst edition
Th e law of the European Union has evolved considerably both in scope and importance
since the early days. Th e rapidly changing legal landscape has made it one of the most
interesting fi elds of law for the student, the teacher, the practitioner and even the legal
philosopher. Once perceived as a curiosity of only marginal interest to all but the spe-
cialist, it has become of central importance for many aspects of the national legal scene,
so that the lawyer who dismisses Community law as an irrelevance does so at his—and
his insurer’s—peril. Th is risk is all the greater because much of Community law is hid-
den behind national legislation.
In the early days, when lawyers asked what EC law was about, one could simply recom-
mend them to read the Treaty. Its structure was straightforward and so, for the most
part, were its terms. Th is is still good advice, for the Treaty remains the primary source
of law and it is impossible to understand Community law without knowing one’s way
round the Treaty. But the treaty structure has been complicated by the addition—with-
out a clear indication of their inter-relationship—of the Single European Act, the EU
Treaty and now, increasingly, Th ird Pillar Conventions. Th e EC Treaty itself has been
radically amended, and there has been an explosion of secondary legislation, much of
it highly technical.
Some of the new texts seem designed to paper over political diff erences rather than to
set out in a coherent way the legal rules and institutional relationships that form the
basis of the European Union. To an increasing extent, the Court of Justice is called
upon to complete or explain legislative uncertainties. So, simply to read the texts would
give a very incomplete understanding of their legal eff ect. Th ey must be set in their
historical and political context and the special methods of interpreting multilingual
texts must be mastered.
Th is presents a challenge to the student and the teacher. Th e contours of the Community
legal system change so rapidly that textbooks quickly become out-of-date. Th e student
should, in any event, be exposed to more than one view of how the law has evolved, and
how it should be read, understood and applied.
Margot Horspool’s new book presents EU law, not as a static body of legal rules, but as
a dynamic system, evolving as much through case law and academic discussion as leg-
islative activity. It off ers a comprehensive guide to the Union and Community system,
looking at the institutional structure and processes as well as the substantive and pro-
cedural law. A particular strength of the book is that it encourages the reader to adopt
a pro-active, refl ective approach through the inclusion, at the end of each chapter, of
self-test capsules of questions and points for discussion.
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Foreword to the fi rst edition ix
Th is book is a worthy addition to the valuable contribution that University College
London has already made to the study of European law in the United Kingdom.
Judge David Edward
Court of Justice of the European Communities
Luxembourg
3 September 1998
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