The legislative priority rule and the EU internal market for goods : a constitutional approach / Eadaoin Ní Chaoimh.

Format:

Book

Author/Creator:

Ni Chaoimh, Eadaoin, author.

Series:

Oxford studies in European law.

Oxford studies in European law

Language:

English

Subjects (All):

Trade regulation--European Union countries.

Trade regulation.

Free trade--European Union countries.

Free trade.

Physical Description:

1 online resource (321 pages)

Edition:

First edition.

Place of Publication:

Oxford : Oxford University Press, 2022.

Summary:

Introduces the reader to the Legislative Priority Rule and provides a better understanding of how the European Court of Justice resolves regulatory disputes in the presence of secondary (product) legislation, highlighting both the successes and dangers of its current approach.

Contents:

Cover

Series

The Legislative Priority Rule and the EU Internal Market for Goods

Copyright

Dedication

Table of Contents

Table of Cases

Table of Legislation

Table of European Union primary law and International Instruments

List of Abbreviations

1. The Legislative Priority Rule and the Internal Market for Goods

1. Introduction

2. Regulating the Internal Market for Goods

2.1 The 'How' of the Internal Market for Goods

2.2 'Harmonization' Before Adoption of the Single European Act

2.2.1 An absolutist vision of total harmonization

2.2.2 A nuanced reality

2.2.3 A growing need for concrete change

2.3 A New Vision for the Internal Market

3. Representation and Control Within the Treaty Framework

3.1 Member States in the EU Decision-​Making Process

3.1.1 Article 34 TFEU and 'market access'

3.1.2 An avenue for national Voice

3.2 Exercising and Controlling EU Legislative Power

3.3 Introducing the Legislative Priority Rule

4. Outline of the Book

2. Foundations: The Principles Underlying the Legislative Priority Rule

2. The Pre-​emption Principle

2.1 An Autonomous Concept with a Legislation-​Based Definition

2.1.1 An autonomous concept

2.1.2 An effect of EU (internal market) legislation

2.2 Establishing Pre-​emptive Effects

2.2.1 The search for balance

2.2.2 The US approach

2.2.3 The pre-​emptive effects of EU legislation

3. The Presumption of Constitutionality

3.1 The Judiciary and the Legislator

3.1.1 Conceptualizing a complex relationship

3.1.1.1 The judiciary and legislator: two visions

3.1.1.2 The EU citizens' saga

3.1.2 The bridge of deference

3.1.3 The presumption of constitutionality

3.2 The Presumption of Constitutionality and the Legislative Priority Rule.

3.2.1 The constitutional dimension of EU product rules

3.2.2 Limiting the legislator

3.2.2.1 The Damocles sword of judicial review

3.2.2.2 Consistent interpretation of EU legislation

3.2.2.3 Reviewing national acts of discretion

3.2.3 Empowering the EU legislator

3.2.3.1 A presumption of reconciliation

3.2.3.2 A presumption of proportionality

3.2.3.3 Room to reset the balance?

4. Conclusion

3. Development: From Ad Hoc Guideline to Constitutional Compass

2. Establishment (1956-​1993)

2.1 Establishing the Tedeschi Leg

2.1.1 The origins of the Tedeschi leg

2.1.2 Tedeschi v Denkavit

2.1.3 The Tedeschi deal

2.2 The Second Leg Emerges Slowly

2.2.1 The Legislative Priority Rule and the Common Agricultural Policy

2.2.2 Articles 34-​35 TFEU persist as norms of reference

2.2.3 Establishing the Legislative Priority Rule

2.3 From an Ad Hoc 'Exhaustion Approach' to a Systematically Applied Rule

2.3.1 The Court's analytical approaches

2.3.1.1 The exhaustion approach

2.3.1.2 The classic approach

2.3.1.3 The mixed approach

2.3.1.4 Dual analysis

2.3.2 Assessing the analytical approaches

2.3.2.1 Managing the relationship between primary and secondary law

2.3.2.2 The Piageme saga

2.3.2.3 The Cosmetics Directive saga

2.3.3 The 'exhaustion approach' as the Court's preference

3. Refinement (1990s to the Present Day)

3.1 Triggering the Legislative Priority Rule

3.1.1 Discarding 'necessity' and 'monitoring compliance'

3.1.1.1 Harmonizing the 'necessary' measures

3.1.1.2 Monitoring compliance with the Community standard

3.1.2 Triggering the Legislative Priority Rule

3.1.2.1 Establishing regulatory scope

3.1.2.2 Establishing regulatory character

3.1.3 The relevance of time

3.2 The Second Leg of the Legislative Priority Rule.

3.2.1 The second leg and the hierarchy of norms

3.2.1.1 Bristol-​Meyers Squibb

3.2.1.2 DaimlerChrysler

3.2.2 Resolving the Cosmetics Directive saga

3.2.3 The need for judicial vigilance

3.3 Reversing the Legislative Priority Rule

3.3.1 The Court's residual jurisdiction

3.3.2 Legislative amendments

3.3.3 Treaty-​based derogations

3.3.3.1 Article 114 (4-​5) TFEU

3.3.3.2 Article 193 TFEU

4. Application: The Legislative Priority Rule Before the Court

2. Case Law Review: Enforcing and Limiting the Effects of EU Product Rules

2.1 The Integrative Effect of EU Legislation

2.2 The Regulatory Effect of EU Legislation

2.3 The Conditional Effect of EU Legislation

2.4 Summarizing the Case Law Review

3. Assessing the Case Law

3.1 Reflecting the Varied Legislative Acquis

3.1.1 Triggering the Legislative Priority Rule

3.1.2 Applying the Legislative Priority Rule

3.1.3 Respecting the free movement of goods

3.2 An Inconsistent Judicial Approach?

3.2.1 Some 'inconsistent' Court judgments

3.2.1.1 Triggering the Legislative Priority Rule

3.2.1.2 Assessing the national measure

3.2.2 Explaining the Court's approach

3.2.2.1 The regulatory goal pursued

3.2.2.2 The question of time

3.2.2.3 Other influencing factors

3.3 The Risk of Imbalance

3.3.1 An integration or free trade bias?

3.3.1.1 Facilitating a low-​standards regime

3.3.1.2 'Locked in' to a low-​standards regime

3.3.1.3 The legislative agenda trumps the liberal agenda

3.3.2 Undermining free movement of goods?

3.3.2.1 Triggering the Legislative Priority Rule

3.3.2.2 Assessing the national measure

5. Towards a New Framework for Review

2. The Current Framework: A Binary Vision of EU Regulation.

2.1 A Gap Between the Discourse and Reality of Harmonization

2.2 The Court's Response

2.3 Consequences of the Binary Vision

2.3.1 Mischaracterizing EU legislation and Court judgments

2.3.2 Language, choice, and strategy in the courtroom

3. Beyond the Binary Vision

3.1 A New Categorization for National Measures

3.1.1 Treaty-​based discretion

3.1.2 Direct implementation

3.1.3 Legislation-​based discretion

3.2 The Relevance of 'Regulatory Character'

3.3 A New Framework for Review

6. Conclusion

Select Bibliography

Index.

Notes:

This edition also issued in print: 2022.

Includes bibliographical references and index.

Description based on online resource; title from home page (viewed on November 1, 2022).

Other Format:

Print version: Ni Chaoimh, Eadaoin The Legislative Priority Rule and the EU Internal Market for Goods

ISBN:

0-19-194658-3

0-19-266907-9

0-19-266908-7