Europeanisation of public law

Contents
Abbreviations

1 Introduction
S. Prechal, R.J.G.M. Widdershoven, J.H. Jans
1 A Meeting of Two Disciplines
2 Approach and Structure of the Book
3 European Administrative Law: Some Key Concepts
4 Sources of Union Law
5 Implementation of Union Law in the National Legal Systems
6 The Paradox of Institutional Autonomy
7 Legality in an Integrated Legal Order and the Powers of National Administrative Authorities
8 Mixed Administration
9 Conclusion

2 Europeanisation of National Administrative Law
S. Prechal
1 Leading Principles
2 Constraints on National Administrative Law: The Requirements of Equivalence and Effectiveness
3 The Principle of Effective Judicial Protection
4 A Mild or a Stringent Test?
5 Relationship between Equivalence/Effectiveness and Effective Judicial Protection
6 The Trends in Perspective

3 Europeanisation via Consistent Interpretation and Direct Effect
J.H. Jans, M.J.M. Verhoeven
1 Introduction
2 What is Consistent Interpretation?
2.1 General Remarks
2.2 Consistent Interpretation and Correct Implementation
2.3 Consistent Interpretation and Incorrect Implementation
2.4 Limits to Consistent Interpretation
2.4.1 National Courts Acting in a Quasi-Legislative Capacity
2.4.2 Legal Certainty and Legality: No Contra Legem Interpretation
3 Direct Effect
3.1 The Conditions for Direct Effect
3.2 Direct Effect and Individual Rights
3.3 Limits to Discretion
3.4 Direct Effect Where Implementation has been Full and Proper?
3.5 Direct Effect and Consistent Interpretation Before the Expiration of Transposition Periods?
3.6 Direct Effect of Decisions
4 Legal Relations
4.1 Direct Effect
4.1.1 Vertical Direct Effect
4.1.2 Horizontal Direct Effect
4.1.3 Inverse Direct Effect
4.1.4 Direct Effect in Triangular Situations
4.2 Consistent Interpretation
4.2.1 Vertical Relations
4.2.2 Horizontal Relations
4.2.3 Inverse Vertical Effect
4.2.4 Consistent Interpretation in Triangular Situations
5 Consistent Interpretation and Direct Effect: For Whom?
5.1 Public Authorities and the Like
5.1 Direct Effect and Emanations of the State
5.2 Consistent Interpretation by Emanations of the State
6 Legal Consequences of Consistent Interpretation and Direct Effect
6.1 Consistent Interpretation
6.2 Direct Effect

4 General Principles of Law
J.E. van den Brink, W. den Ouden, S. Prechal, R.J.G.M.Widdershoven, J.H. Jans
1 Introduction
2 Common Aspects
2.1 Origin of the Principles
2.2 Types of Principle
2.3 Functions and Scope of the Principles
2.4 The relationship between General Principles and Fundamental Rights
2.4.1 Introduction
2.4.2 Fundamental Rights as General Principles of Union Law
2.4.3 The Charter of Fundamental Rights
2.4.3.1 Introduction
2.4.3.2 Content of the Charter
2.4.3.3 Scope of the Charter and of General Principles
2.4.3.4 Relationship between the Charter and the ECHR
2.4.3.5 The Charter and National Fundamental Rights
2.5 Operation of General Principles in the Member States
3 Equality
3.1 Introduction
3.2 Unwritten Principle of Equality and Written Non-Discrimination Provisions
3.3 Function and Substance of the General Equality Principle
3.3.1 Independent Test and Interpretation Aid
3.3.2 Treating Comparable Situations Equally
3.3.3 Justification of Unequal Treatment
3.3.4 A Mild Standard of Review
3.4 Discrimination
3.4.1 The Making of a Distinction on the Ground of a ‘Forbidden’ Characteristic
3.4.2. Types of Discrimination
3.4.3 Justifications
3.4.4 Intensity of Review
3.5 Consequences of Infringement of the Principle of Equality
3.6 The Significance of the Union Principle of Equality for Domestic Law
4 Proportionality
4.1 Introduction
4.2 The Proportionality Principle in the Member States
4.3 The Proportionality Principle in EU Law
4.3.1 The Legal Basis
4.3.2 The Different Fields of Application
4.3.3 The Substance of the Proportionality Principle in EU Law
4.3.4 Proportionality in the Review of Union Legal Acts
4.3.5 Proportionality and Free Movement
4.3.5.1 Suitability
4.3.5.2 Necessity
4.3.5.3 Proportionality Stricto Sensu
4.3.5.4 Relationship with the Principle of Diligence
4.3.6 Proportionality and Administrative Enforcement
4.4 Proportionality and the Role of National Courts
5 Legitimate Expectations
5.1 Introduction
5.2 Substance of Legitimate Expectations in Union Law
5.3 Application of the Principle in Member States
5.3.1 Introduction
5.3.2 Application of a Codified Version of the Principle in the Member States
5.3.3 Limits to the Application of a National Principle of Legitimate Expectations
5.3.3.1 The Case Law of the Court of Justice
5.3.4 National Case Law
5.4 Conclusion
6 Rights of Defence
6.1 Introduction
6.2 The Rights of Defence in the Case Law of the Court of Justice
6.3 The Consequences of Infringement of the Rights of Defence
6.4 The Influence of the European Rights of Defence and National Administrative Law upon each other
7 Transparency
7.1 Introduction
7.2 The Genesis of the Transparency Principle
7.3 Content and Function
7.4 Transparency in the Member States

5 Administrative Enforcement
A.J.C. de Moor-van Vugt, R.J.G.M. Widdershoven
1 The Rise of Administrative Enforcement in EU Matters
1.1 The Lack of Proper Enforcement of EU Law
1.2 Monitoring Compliance by the EU – Stimulating Factors
1.3 European Influence on National Enforcement of Union Law
2 Enforcement of EU law: General Framework and Instrumental Requirements
2.1 The Case Law of the Court of Justice
2.1.1 General Rules
2.1.2 The Requirement of Equivalence (Non-Discrimination)
2.1.3 The Requirements of Effectiveness and Dissuasiveness
2.2 Enforcement of Union Law in the Member States
2.2.1 Administrative Enforcement
2.2.2 Criminal Enforcement
2.2.3 Private Enforcement
2.3 The Process of Europeanisation of National Enforcement
2.3.1 The Process of Europeanisation of National Administrative Sanctions
2.3.2 The Introduction of Criminal Sanctions
2.4 Harmonisation of National Monitoring and Inspection Activities
2.5 Oversight of National Enforcement Activities by the EU
2.6 Independent EU Powers of Inspection and Enforcement
2.6.1 Powers of the Commission
2.6.2 OLAF
2.6.3 Regulatory Authorities
3 Procedural Requirements for Administrative Sanctions
3.1 Introduction
3.2 The Nature of the Administrative Sanction
3.3 Administrative sanctions and procedural rights
3.3.1 Principle of Legality
3.3.2 Principle of Proportionality
3.3.3 The Rights of the Defence
3.4.3 Procedural Rights and Punitive Administrative Sanctions
3.4.3.1 Culpability and the Presumption of Innocence
3.4.3.2 The Right to Remain Silent
3.4.3.3 Ne bis in idem
3.4 Other Fundamental Rights of the Charter
3.5 Protection Through the Four Freedoms
4 Transnational Enforcement Cooperation
4.1 Transnational Cooperation by National Authorities
4.1.1 General Outline
4.1.2 Exchange of Information
4.1.3 Mutual Assistance in Control Activities
4.2 Transnational Evidence
4.3 Transnational Execution of Administrative Sanctions
5 Conclusions

6 Judicial Protection

R. Ortlep, R.J.G.M. Widdershoven
1 Introduction
1.1 Effective Judicial Protection in a Shared and Integrated Legal Order
1.2 The Court of Justice and the General Court
2 Division of Competences between the Court of Justice and the National Courts
2.1 The General Picture
2.2 The Action for Annulment
2.2.1 General
2.2.2 The Limited Right of Access of Individuals
2.2.3 Limited right of access in environmental matters
2.3 Interference with the National Judicial Procedure
2.4 Non-contractual Liability of the Union
3 The Preliminary Rulings Procedure and other Forms of Judicial Cooperation
3.1 Introduction
3.2 Scope of the Preliminary Rulings Procedure
3.3 Power or Duty to Refer
3.4 Procedural Aspects
3.5 Other Forms of Judicial Cooperation
4 Influence on National Judicial Protection: Some General Remarks
4.1 Introduction
4.2 Judge-made and Regulatory Union Standards
4.3 The Organization of National Judicial Protection
5 Legal Standing (Locus Standi)
5.1 Introduction
5.2 Ubi Union Jus, Ibi National Remedium
5.3 Influence on National Standing Requirements in Particular in Environmental Cases
6 Stability of Final National Administrative and Judicial Decisions
6.1 Introduction
6.2 Fatal Time Limits
6.3 Revocation of National Final Administrative Decisions
6.3.1 Introduction
6.3.2 The Case of Kühne & Heitz
6.3.3 The Case of i-21 & Arcor
6.3.4 The Case of Byankov
6.3.5 Result
6.4 The Principle of Res Judicata of Judicial Decisions
7 Judicial Scrutiny and Rules of Evidence
7.1 Judicial Scrutiny of Administrative Decisions in the Light of Union Law
7.2 Rules of Evidence

7.2.1 Introduction
7.2.2 Influence by Union Legislation
7.2.3 Equivalence and Effectiveness
7.2.4 Effective Judicial Protection
7.2.5 Other General Principles of Union Law and Fundamental Rights
8 Ex Officio Application of EU Law
8.1 Introduction
8.2 The EU Main Rule and its Application in the Member States
8.2.1 The EU Main Rule
8.2.2 Application in the Member State
8.3 Exceptions to the Rule
9 Interim Relief Proceedings
9.1 Introduction
9.2 Interim Relief and Questions of Interpretation
9.2 Interim Relief and Questions of Validity
9.2.1 The Problem
9.2.2 The Union Criteria
9.2.3 Practise of the National Courts
10 General Findings

7 State Liability
J.H. Jans, A.P.W. Duijkersloot
1 Introduction
2 The Genesis of Francovich Liability
2.1 The First Step: Francovich and State Liability as a Matter of Principle
2.2 The Second Step: Brasserie du Pêcheur and Factortame
2.3 Towards a General Theory of Liability: Dillenkofer
3 The Conditions for Liability
3.1 A ‘Sufficiently Serious’ Breach
3.2 Rights for Individuals
3.3 A Causal Link
3.4 Damages
4 Which Organs of the State May Give Rise to Liability?
4.1 The Legislature
4.2 The Executive
4.3 The Judiciary
4.4 Subnational Authorities
5 Other Relevant Aspects
5.1 Obligation to Mitigate the Loss
5.2 The Role of National Law and the National Courts
5.3 State Liability and Lawful State Actions?
6 Conclusion

8  Summing Up
J.H. Jans, S. Prechal, R.J.G.M. Widdershoven
1 Influence from the Top Down and the Bottom Up
2 Implications for National Administrative Law
3 Towards an Administrative Law Ius Commune?

Bibliography
Table of Cases
Index