Direct applicability

Abstract: 1 What Constitution? A Rose by Any Other Name 2 An Elephant That Cannot Be Defined? What the EU Is, and Is Not A. Introduction B. Historical Development C. The Union Today D. State-like Features E. Non-state-like Features 3 Marking the Territory: Principles Governing Union Competences A. Introduction B. Basic Treaty Provisions on Competence C. Articles 114 and 352 TFEU D. The Principle of Subsidiarity 4 Who Is the Boss? In Search of a Master of the Treaties A. Introduction B. Procedures for Amending the Treaties C. Creeping Competences? D. The Ties that Bind 5 Looking Past the Trees to See the Wood: Construing a Hierarchy of Norms A. Introduction B. Foundations of the Union Legal Order C. Primary Law D. International Law E. Secondary Law and other Acts of the Institutions 6 Into the Estuaries and up the Rivers: Union Law in the National Legal Orders of the Member States A. Introduction B. Primacy C. Conformity through Interpretation D. Direct Applicability and Direct Effect 7 A Lot More than Brussels Bureaucrats: The Institutional Framework A. Introduction B. The Union's Institutions C. Union Regulatory and Administrative Bodies D. Institutions and Bodies of the Member States 8 A Suprematist Composition? Differentiation and Flexibility A. Introduction B. Differentiation in Primary Law C. Enhanced Cooperation 9 What Deficit? The EU System of Democracy A. Introduction B. General Considerations C. The Political Institutions D. Participatory, Deliberative and Substantive Democracy 10 Civis Europeus Sum: The Evolving Concept of Union Citizenship A. Introduction B. Pie in the Sky? C. Who is a Union Citizen? D. The Right to Move and Reside E. From Movement to Citizenship and Beyond 11 Taking Rights More Seriously? The EU System of Fundamental Rights A. Introduction B. Field of Application C. Sources and Material Scope D. Non-discrimination E. Direct Effect 12 Broadening Horizons? The Area of Freedom, Security and Justice A. Introduction B. Border Checks, Asylum and Immigration C. Judicial Cooperation in Civil Matters D. Judicial Cooperation in Criminal Matters E. Police Cooperation 13 The Internal Market: Liberal, Social, Green or Chameleon? A. Introduction B. The Economic Free Movement Rights C. The Social Dimension D. Environment 14 Building a House by Starting with the Roof? Economic and Monetary Policy A. Introduction B. Monetary Policy C. Economic and Fiscal Surveillance D. The Stability Mechanisms E. Built to Last? 15 An Elephant Trumpeting Loud and Clear or a Gaggle of Geese? EU External Relations A. Introduction B. Institutional Framework for External Action C. Union Competences and their Use D. The Union and the Member States E. Security and Defence 16 Covenants of No Strength to Secure A Man At All? Issues of Enforcement and Control A. Introduction B. Control of Union Institutions and Bodies C. The Role of Member States' Courts and Authorities 17 The Elephant in the Room? Concluding Remarks

Abstract: Preface by Inge Govaere, Erwan Lannon, Peter Van Elsuwege and Stanislas Adam Foreword by Hubert Bocken Foreword by Paul Demaret Foreword by Jean Raux Foreword by Guy Schrans List of contributors List of abbreviations and accronyms Part I: General Principles of EU External Action A. Dashwood The Continuing Bipolarity of EU External Action A. Rosas Exclusive, Shared and National Competence in the Context of EU External Relations: Do Such Distinctions Matter? K. Lenaerts Direct Applicability and Direct Effect of International Law in the EU Legal Order S. Adam The Legal Basis of International Agreements of the European Union in the Post-Lisbon Era P. Eeckhout The European Convention on Human Rights and Fundamental Freedoms as an Integral Part of EU Law - Some Reflections on Status and Effect C. Kaddous Loyaute du commerce, moyen de defense des interets des Etats membres et de l'Union europeenne Part II: The Institutional Framework of EU External Action P.-C. Muller-Graff The European External Action Service: Challenges in a Complex Institutional Framework R. Wessel Can the EU Replace its Member States in International Affairs? An International Law Perspective C. Rapoport La procedure de conclusion des accords externes de l'Union europeenne : quelle unite apres Lisbonne ? J. Devuyst The European Parliament and International Trade Agreements: Practice after the Lisbon Treaty J.-V. Louis The Euro Area and Multilateral Financial Institutions and Bodies Part III: EU External Action In Practice: Contemporary Issues J. Wouters, J. Odermatt and T. Ramopoulos The Status of the European Union at the United Nations General Assembly I. Govaere Novel Issues Pertaining to EU Member States Membership of other International Organisations: the OIV case F. Jacobs Member States of the European Union before the International Court of Justice F. Dehousse La juridiction unifiee du brevet: le nouvel oxymoron du droit europeen C. Blumann La singularite de la decision dans le domaine de la Politique etrangere et de securite commune C. Flaesch-Mougin et I. Bosse-Platiere L'application provisoire des accords de l'Union europeenne P. Mengozzi Complementarite et cooperation entre la Cour de justice de l'Union europeenne et les juges nationaux en matiere de sejour dans l'Union des citoyens d'Etats tiers E. Somers The Costa Concordia Incident and Liability for Passenger Damage: An International and European Law Approach Part IV: The External Dimension of EU Competition Policy A.-M. Van den Bossche EU Competition Law in 3D J. Bourgeois Competition Policy: the Poor Relation in the European Union Free Trade Agreements P.-J. Slot Bilateral Treaties in the Field of Competition Law T. Joris The European Economic Area and State Aid Part V: The EU's Bilateral Relations with Third Countries P. Van Elsuwege The Legal Framework of EU-Russia Relations: Quo Vadis? G. Burghardt The Transatlantic Partnership: A Legal and Institutional Appraisal P. Vlaemminck The EU-South Korea Free Trade Agreement: Implications in the First Year of Implementation Part VI: The Enlargement and Proximity Policies of the European Union E. Lannon Elargissements et politiques de proximite de l'UE : libres propos sur l'integration differenciee J.-C. Gautron Libres propos sur les elargissements de l'Union europeenne P. Balazs Enlargement Conditionality of the European Union and Future Prospects D. Kochenov Overestimating Conditionality C. Hillion Enlarging the European Union and its Fundamental Rights Protection P. Xuereb Universal Human Rights and EuroMed - An Agenda J. Czuczai Accession to the EU, but to which EU? The Legal Impact of the Constantly Evolving EMU acquis on the EU Enlargement Process A. Tovias The End of Spheres of Influence by Encroachment of Rivals: The Case of the EU and the US Index

Abstract: In much of the scholarly literature on international law, there is a tendency to condemn violations of the law and to leave it at that. If all violations of international law were indeed undesirable, this tendency would be unobjectionable. We argue in this paper, however, that a variety of circumstances arise under which violations of international law are desirable from an economic standpoint. The reasons why are much the same as the reasons why non‐performance of private contracts is sometimes desirable—the concept of “efficient breach,” familiar to modern students of contract law, has direct applicability to international law. As in the case of private contracts, it is important for international law to devise remedial or other mechanisms that encourage compliance where appropriate and facilitate noncompliance where appropriate. To this end, violators ideally should internalize the costs that violations impose on other nations, but should not be “punished” beyond this level. We show that the (limited) international law of remedies, both at a general level and in certain subfields of international law, can be understood to be consistent with this principle. We also consider other mechanisms that may serve to “legalize” efficient deviation from international rules, as well as the possibility that breach of international obligations may facilitate efficient evolution of the underlying substantive law. The topic of remedies is one of the most undeveloped areas of international law. No treaty regime governs remedies. The topic receives no more than a few pages in the standard treatises and texts.2 Very few international judicial or arbitration opinions outside trade and investment law address remedies,3 and other authoritative sources are equally scarce. Members of the International Law Commission (ILC) drafted a handful of articles addressing remedies—part of a 1 Kirkland & Ellis Professor of Law, University of Chicago Law School, and James & Patricia Kowal Professor of Law, Stanford Law School. Thanks to Eyal Benvenisti, Oren Bar‐Gill, Yoram Margalioth, Ariel Porat, and participants at a workshop at Tel Aviv Law School, for helpful comments, and to James Kraehenbuehl and Greg Pesce for valuable research assistance. 2 See, e.g., L. Oppenheim, International Law: A Treatise 352–57 (H. Lauterpacht ed., 8th ed. 1955); Peter Malanczuk, Akehurst’s Modern Introduction to International Law 269–72 (7th ed. 1997); Lori Damrosch et al., International Law: Cases and Materials 713–32 (4th ed. 2001). A popular treatise, Mark Weston Janis, International Law (5th ed. 2008), has nothing on remedies. A collection of essays ostensibly about remedies focuses on dispute resolution; see Remedies in International Law: The Institutional Dilemma (Malcolm D. Evans ed., 1998). 3 See Malcolm Shaw, A Practical Look at the International Court of Justice, in Remedies in International Law, supra at 26 (the ICJ “has not as yet developed a clear pattern of applicable remedies”).

Abstract: The EU is currently re-conceptualizing the goals of competition law and their place within the EC Treaty. Whereas the Draft Reform Treaty is emphasizing the weight of public policy goals vis-a-vis the goal of undistorted competition, the EU Commission has made an effort to remove non-competition goals from competition policy in the course of the "decentralization" of EU competition law enforcement and to refocus competition law on the efficiency criterion, namely the consumer welfare goal. This contribution shall discuss the regulation of the interface between competition policy and public policy goals in the interpretation and application of Art. 81 EC under the old and the new enforcement regime. Doctrinally, the debate is led on two levels: With regard to the interpretation of Art. 81(1) the question is raised whether conflicting policy goals can delimit its scope. Art. 81(3) with its broad and general terms, potentially provides an opening of EU competition law for the consideration of noncompetition related policy goals on the level of exemptions. The interpretation of Art. 81(3) EC has gained new relevance since it has been declared directly applicable by Art. 1 of Regulation 1/2003. Whereas, under the former regime, the Commission could regulate the competition-public policy interface case-by-case based on its monopoly for granting exemptions, the direct applicability of Art. 81(3), i.e. its enforcement by national competition authorities and courts, calls for more conceptual guidance. The difficulties to provide such guidance throw some light on the conceptual uncertainties associated with the recent reform of EU competition policy.