Abstract
The creation of a normative basis for the purposes of establishing benchmarks of legislative activity relies on two sources: the case law of the CJEU and the norms of the Treaties. The present chapter analyses the latter.
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Notes
- 1.
- 2.
Von Bogdandy and Bast (2002), pp. 229–230. See also Article 7 TFEU: “The Union shall ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers.”[emphasis added]
- 3.
See also Article 13 paragraph 2 TEU: “Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The institutions shall practice mutual sincere cooperation.”; and Article 7 TFEU in the previous footnote.
- 4.
See Pilette and Poncins (2007), p. 303.
- 5.
- 6.
See Article 3 (h) of the Treaty of Rome, or European Economic Community Treaty (EEC Treaty).
- 7.
Article 100 of the EEC Treaty.
- 8.
See Article 8a of the EEC Treaty, as amended by the SEA.
- 9.
See Article 100a of the EEC Treaty, as amended by the SEA.
- 10.
See case 11/70—Internationale Handelsgesellschaft, p. 4, and case 4/73—Nold, p. 13.
- 11.
Internationale Handelsgesellschaft and Nold, id. See in addition, more recently, case C-112/00—Schmidberger, p. 71, where the CJEU confirmed previous decisions by stating that “fundamental rights form an integral part of the general principles of law the observance of which the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories.”
- 12.
See Articles A and G(A)(1) of the Treaty on European Union (TEU), as signed in Maastricht.
- 13.
See Article B of the TEU, first indent, as signed in Maastricht.
- 14.
See Article 3 (c) of the EC Treaty, as signed in Maastricht.
- 15.
De Witte (2009), pp. 12–13.
- 16.
De Witte (2009), p. 13. Craig (2010), p. 334, points out that the choice for inter-state cooperation meant that “Member States preferred the “default position” of intergovernmentalism, thereby retaining maximum control in their own hands.” See in addition Curtin (1993) for a critique of the Maastricht’s process of integration.
- 17.
Articles 128, 129a and 130 of the EC Treaty respectively, as signed in Maastricht.
- 18.
See, e.g., Article 128 paragraph 5, corresponding roughly to current Article 167 paragraph 5 TFEU, expressly excluding Community power to harmonize national laws for the achievement of cultural objectives.
- 19.
See Shore (2001), pp. 109–110, noting that in relation to culture the EU “was effectively operating a de facto cultural policy long before Maastricht gave it the legal right to do so”, by, e.g., invoking economic arguments to achieve cultural objectives. Drawing similar conclusions with regard to consumer policy, see Weatherill (2011), pp. 844–845.
- 20.
Cunningham (2001), p. 160.
- 21.
Report on European Union (1975), p. 12.
- 22.
Article 3b of the EC Treaty, as signed in Maastricht: “The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein.
In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.
Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty.”
- 23.
See Article 6 paragraph 1 of the TEU, as amended by the Treaty of Amsterdam: “The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.”
- 24.
See Article I-3 paragraph 2 of the TECE.
- 25.
See Piris (2006), pp. 23 ff.
- 26.
De Búrca (2008), p. 8, indicates as other possible sources of the growing lack of support for the EU project “the growth in the scale and size of the EU, and in the increased visibility of its activities.”
- 27.
See case 294/83—Les Verts, paragraph 23 and subsection 4.4.2 B below.
- 28.
See Piris (2010), pp. 36 ff. especially, p. 48.
- 29.
See preamble of TECE.
- 30.
Article 1 TEU.
- 31.
- 32.
Article 6 paragraph 1 TEU.
- 33.
Timmermans (2008a), p. 44.
- 34.
Crosby (1991), p. 458. Along the same lines, the CJEU has also ruled that using Article 114 TFEU has a legal basis to legislate presupposes that the establishment and functioning of the internal market is a genuine goal, which will be the case where the EU legislation is designed to prevent obstacles to free movement that exist or are likely to occur—see case C-376/98—Tobacco Advertising I, p. 84 and case C-380/03—Tobacco Advertising II, p. 41. See also Chap. 1, Sect 1.1.3.
- 35.
- 36.
See case 34/79—Henn & Darby and, at length, Jarvis (2010), pp. 30–31.
- 37.
Jarvis (2010) id.
- 38.
- 39.
De Vries (2006), pp. 18 ff.
- 40.
Article 167 paragraph 4 TFEU: “The Union shall take cultural aspects into account in its action under other provisions of the Treaties, in particular in order to respect and to promote the diversity of its cultures.”
- 41.
Article 12 TFEU: “Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities.”
- 42.
Article 169 paragraph 2 TFEU: “The Union shall contribute to the attainment of the objectives referred to in paragraph 1 [promotion of the interests of consumers and ensuring a high level of consumer protection] through: (a) measures adopted pursuant to Article 114 in the context of the completion of the internal market;”
- 43.
Article 173 paragraph 3 TFEU: “The Union shall contribute to the achievement of the objectives set out in paragraph 1 through the policies and activities it pursues under other provisions of the Treaties.” Paragraph 1 reads: “The Union and the Member States shall ensure that the conditions necessary for the competitiveness of the Union’s industry exist.
For that purpose, in accordance with a system of open and competitive markets, their action shall be aimed at:
-
speeding up the adjustment of industry to structural changes,
-
encouraging an environment favourable to initiative and to the development of undertakings throughout the Union, particularly small and medium-sized undertakings,
-
encouraging an environment favourable to cooperation between undertakings,
-
fostering better exploitation of the industrial potential of policies of innovation, research and technological development.”
-
- 44.
Article 167 paragraph 5 TFEU: “In order to contribute to the achievement of the objectives referred to in this Article:—the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Committee of the Regions, shall adopt incentive measures, excluding any harmonization of the laws and regulations of the Member States (…).” See also case C-376/98—Tobacco Advertising I, pp. 78–79, where the Court stated that the competence to harmonize national laws with the aim of achieving an internal market cannot be used to circumvent a prohibition of harmonization laid down expressly in another article of the Treaty, although it also admitted that certain harmonizing measures may have an impact on areas reserved to the Member States.
- 45.
Govaere (2009/2010), pp. 68 ff. referring to the Commission Communication on a Single Market for Citizens (2007).
- 46.
See, e.g., case 229/83—Leclerc, p. 9: “Articles 2 and 3 of the [EC] Treaty set out to establish a market characterized by the free movement of goods where the terms of competition are not distorted.” With a similar statement, see also case C-202/88—France v. Commission, p. 41, which adds that the provisions on free movement of goods have to be interpreted in light of the principle of undistorted competition. See also Timmermans (2008b), p. 127 and case law cited therein.
- 47.
Pilette and Poncins (2007), pp. 302 ff. The CJEU confirmed that the values of the EU are “the very foundations of the Community legal order”—see joined cases C-402-415/05—Kadi, paragraph 304.
- 48.
See Article 3 paragraph 1 TEU: “The Union's aim is to promote peace, its values and the well-being of its peoples.”
- 49.
The second part of Article 2 TEU (“these values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail”) refers to political guidelines. These guidelines may serve to interpret the values contained in the first part of the provision, but they are not values in themselves—see Burgorgue-Larsen (2007), pp. 57 ff.
- 50.
See Pilette and Poncins (2007), p. 302.
- 51.
See TEU, preamble.
- 52.
For the purposes of this research, the terms “fundamental rights” and “human rights” will be used interchangeably, even though Article 2 TEU refers only to the latter. This is because, although conceptually different, human rights are, generally speaking, also fundamental rights (see Palombella (2006), p. 3). Moreover, the term “fundamental rights” has become more prominent, particularly since the integration of the Charter of Fundamental Rights in EU primary law—see Article 6 TEU.
- 53.
One of the few exceptions is Article 27 paragraph 2 of the Universal Declaration of Human Rights (“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”), although the provision doesn’t indicate that copyright is the appropriate tool to protect scientific, literary or artistic production. At the level of national constitutions, see Article 42(2) of the Portuguese Constitution, which defines the protection of copyright itself as a fundamental right, and Article 19(2) of the Swedish Constitution, stating that creators shall own the rights to their works. Moreover, the current Charter of Fundamental Rights of the European Union declares in its Article 17 paragraph 2 that “intellectual property shall be protected”, even though it does not single out copyright as a form of intellectual property.
- 54.
- 55.
Many constitutions across the EU contain clauses expressly recognizing or guaranteeing the right to property (see for example Article 14(1) of the German Constitution, Article 42 of the Italian Constitution or Section 33(1) of the Spanish Constitution), while others stress that limitations to property are exceptions, thus indirectly proclaiming the fundamental right to property as the rule (see Article 14 of the Dutch Constitution).
- 56.
Article 1 of Protocol No. 1: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
- 57.
Article 17 paragraph 1: “Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.”
- 58.
Article 17 paragraph 2 of the Charter.
- 59.
See Article 2(1) of the German Constitution as an example.
- 60.
See, for instance, Article 10(1) of the Dutch Constitution or Article 18(1) of the Spanish Constitution.
- 61.
See Article 8 ECHR.
- 62.
Most constitutions consider freedom of expression as a fundamental right, and in addition some of them provide that freedom of the arts is a fundamental right too (see for example Article 5 of the German Constitution or Article 20(1)(a) of the Spanish Constitution). The ECHR has also a provision on the right to freedom of expression, which includes the “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers” (Article 10(1) ECHR). In a similar fashion, Article 11 paragraph 1 of the Charter of Fundamental Rights reads: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
- 63.
- 64.
See for example Article 5(3) of the German Constitution and Article 33(1) of the Italian Constitution, on the freedom of the arts, or Article 9(1) of the Italian Constitution, prescribing the duty of the State to promote cultural development.
- 65.
See case 11/70—Internationale Handelsgesellschaft, p. 4. This is now confirmed by Article 6 paragraph 3 TEU, which reads: “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.”
- 66.
See, e.g., case C-275/06—Promusicae, pp. 61–68, where the Court advocated that a balance should be struck between the fundamental rights to property, to an effective legal remedy and to protection of personal data, using the principle of proportionality. See also case C-70/10—Scarlet Extended, pp. 44–53 and case C-360/10—SABAM v. Netlog, pp. 42–51 (both concerning the fundamental right to property, the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information).
- 67.
Article 6 paragraph 1 TEU: “The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.”
- 68.
Article 51 paragraph 1 of the Charter: “The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.”
- 69.
Article 5 paragraph 2 TEU. On the principle of conferral, see Sect. 4.5.1 below.
- 70.
Craig (2010), p. 215, seems to endorse a similar position by holding that the Charter “would not necessarily preclude attaching human rights considerations based on the Charter to action founded on other competences.”
- 71.
Article 17 paragraph 1 of the Charter: “Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.”
- 72.
- 73.
See in particular the Vienna Declaration and Programme of Action (1993), point 5: “All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of states, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.”
- 74.
See case 4/73—Nold, p. 14 and case 44/79—Hauer, p. 32.
- 75.
See, inter alia, case C-280/93—Germany v. Council, p. 78 and case law cited therein; case C-112/00—Schmidberger, p. 80. However, case law has also shown that a right can be deprived of much of its economic significance without there being an encroachment upon its essence, particularly in relation to the right to property—see Tridimas (2006), pp. 317 ff. See also in particular case 59/83—Biovilac, pp. 21–22, where the applicant argued that certain measures adopted by the Commission amounted to unlawful expropriation because they reduced the profitability of its business to such an extent that it endangered its existence. The Court disagreed, holding that the measures did not deprive the applicant of its property or of the freedom to use it and therefore did not encroach on the substance of those rights, particularly where the detrimental effect at stake was merely an indirect consequence of a policy with aims of general public interest.
- 76.
See joined cases C-402-415/05—Kadi, p. 360.
- 77.
Case C-200/96—Metronome Musik, p. 21.
- 78.
- 79.
See e.g. case C-70/10—Scarlet Extended, pp. 43–45. In an earlier decision, in case C-275/06—Promusicae, pp. 61–68, the CJEU had already hinted that the right to property, including intellectual property, should be balanced with other fundamental rights “protected by the Community legal order.”
- 80.
Note from the Praesidium on the Draft Charter of Fundamental Rights (2000), p. 20.
- 81.
- 82.
- 83.
- 84.
- 85.
Piris (2010), p. 154.
- 86.
Geiger (2009b), p. 38.
- 87.
See case 294/83—Les Verts, paragraph 23: “(…) the European Economic Community is a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty.”
- 88.
Ibid.
- 89.
- 90.
- 91.
Les Verts, p. 23.
- 92.
- 93.
Article 167 TFEU paragraph 5 TFEU: “In order to contribute to the achievement of the objectives referred to in this Article:—the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States,(…).”[emphasis added]
- 94.
Article 167 paragraph 4 TFEU: “The Union shall take cultural aspects into account in its action under other provisions of the Treaties, in particular in order to respect and to promote the diversity of its cultures.”
- 95.
Psychogiopoulou (2008), p. 26.
- 96.
Article 13 TFEU: “In formulating and implementing the Union’s agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.”
- 97.
As acknowledged by the European Commission in its First Report on the Consideration of Cultural Aspects in European Community Action (1996), p. 2.
- 98.
Psychogiopoulou (2008), p. 57.
- 99.
Shore (2001), p. 114, referring to the Commission’s First Report on the Consideration of Cultural Aspects in the European Community Action (1996), where it is stated that “the entire European structure, the Treaties themselves and all the texts they have generated may be regarded as cultural expressions and works.”
- 100.
- 101.
- 102.
De Vries (2006), p. 23.
- 103.
Article 167 paragraph 1 TFEU: “The Union shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore.”
- 104.
As noted also by Shore (2001), p. 114.
- 105.
See Communication, p. 8: “In order to simultaneously bring our common heritage to the fore and recognise the contribution of all cultures present in our societies, cultural diversity needs to be nurtured in a context of openness and exchanges between different cultures. As we live in increasingly multicultural societies, we need therefore to promote intercultural dialogue and intercultural competences. These are also essential in the context of a global economy with regard to enhancing the employability, adaptability and mobility of artists and workers in the cultural sector as well as the mobility of works of art. As citizens are among the main beneficiaries of developing cultural diversity, we need to facilitate their access to culture and cultural works.”
- 106.
See von Bogdandy (2008), pp. 248 ff.
- 107.
Article 5 paragraph 2 TEU: “Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.”
- 108.
Verwey (2004), p. 16.
- 109.
Weatherill (1995), pp. 49 ff. See also case C-325/91—France v. Commission, p. 26 and case C-370/07—Commission v. Council, p. 46.
- 110.
- 111.
Tobacco Advertising I, pp. 84–86; case C-377/98—Netherlands v. Parliament and Council, p. 15; joined cases C-154-155/04—Alliance for National Health, p. 29; Case C-217/04—United Kingdom v. Parliament and Council, pp. 60–62; Case C-301/06—Data Retention, p. 64. See also Slot (2002), p. 9 and Weatherill (2010), p. 434.
- 112.
See case C-380/03—Tobacco Advertising II, p. 41; joined cases C-154-155/04—Alliance for Natural Health, pp. 29 and 32.
- 113.
Weatherill (2010), p. 434.
- 114.
See case C-58/08—Vodafone, p. 45.
- 115.
See Tobacco Advertising I, p. 84 and joined cases 154-155/04—Alliance for Natural Health, p. 28.
- 116.
See case C-217/04—United Kingdom v. Parliament and Council, p. 42.
- 117.
See case C-300/89—Titanium Dioxide, pp. 15 and 23; Tobacco Advertising I, pp. 95 and 106; case C-301/06—Data Retention, p. 63. See also Weatherill (2010), pp. 433 ff.
- 118.
Tobacco Advertising I, pp. 106 and 109.
- 119.
Tobacco Advertising I, p. 109.
- 120.
Data Retention, pp. 36 and 68.
- 121.
Vodafone, p. 47.
- 122.
- 123.
See Opinion 2/2000, p. 23.
- 124.
See inter alia case C-42/97—Parliament v. Council, pp. 39 and 40 and case C-491/01—British American Tobacco, p. 94.
- 125.
See Opinion 2/2000, p. 22 and case C-271/94—Parliament v. Council, p. 14.
- 126.
St Clair Bradley (2011), pp. 91–92.
- 127.
Article 2 paragraph 1 TFEU: “When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Unions acts.”
- 128.
Article 2 paragraph 2 TFEU: “When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.” In similar terms, see Declaration 18 attached to the Treaties in relation to the delimitation of competences.
- 129.
Protocol No. 25 to the Treaties, sole Article: “With reference to Article 2 of the Treaty on the Functioning of the European Union on shared competence, when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area.”
- 130.
Article 2 paragraph 5 TFEU: “In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States’ laws or regulations.”
- 131.
Article 5 paragraph 3 TEU: “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.”
- 132.
The “sufficient attainment test”, see Horspool and Humphreys (2006), pp. 100–101.
- 133.
Barber (2005), pp. 311–312.
- 134.
Ibid.
- 135.
Article 2 of Protocol No. 2 to the Treaties on the application of the principles of subsidiarity and proportionality.
- 136.
There is also an ex post supervision, to be performed by the CJEU (Article 8 of the Protocol). However, that procedure is hardly innovative, as it should take place under the general rule of Article 263 TFEU, concerning the review of legality of legislative acts. In that sense it is a legal, rather than political, mechanism of control.
- 137.
See Articles 6 and 7 paragraph 2 of Protocol No. 2.
- 138.
See Article 7 paragraph 3 of Protocol No. 2.
- 139.
- 140.
Michel (2007), p. 910.
- 141.
Article 5 paragraph 4 TEU: “Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.(…).”
- 142.
Emiliou (1996), p. 140.
- 143.
- 144.
Alexy (2010), p. 398.
- 145.
- 146.
Craig and de Búrca (2003), p. 372.
- 147.
- 148.
Groussot (2006), pp. 156 ff.
- 149.
Héritier (2007), p. 801.
References
AA. VV. (2007) Editorial comments, “the rule of law as the backbone of the EU”. Common Mark Law Rev 44(4): 875–881
Alexy R (2010) A theory of constitutional rights. Oxford University Press, Oxford
Azoulai L (2007) Article I-3 – Les Objectifs de l’Union. In: Burgorgue-Larsen L, Levade A, Picod F (eds) Traité Établissant une Constitution pour l’Europe. Commentaire Article par Article – tome I. Bruylant, Brussels
Barber NW (2005) The limited modesty of subsidiarity. Eur Law J 11(3):308–325
Beatty D (2009) Law’s golden rule. In: Palombella G, Walker N (eds) Relocating the rule of law. Hart Publishing, Oxford
Burgorgue-Larsen L (2007) Article I-2 – Les Valeurs de l’Union. In: Burgorgue-Larsen L, Levade A, Picod F (eds) Traité Établissant une Constitution pour l’Europe. Commentaire Article par Article – tome I. Bruylant, Brussels
Chesterman S (2008) An international rule of law? Am J Comp Law 56(2):331–361
Craig P (1997) Formal and substantive conceptions of the rule of law: an analytical framework. Public Law Aut. 467–487
Craig P (2010) The Lisbon treaty. Law, politics and treaty reform. Oxford University Press, Oxford
Craig P (2012) EU administrative law, 2nd edn. Oxford University Press, Oxford
Craig P, de Búrca G (2003) EU law. Text, cases and materials, 3rd edn. Oxford University Press, Oxford
Crosby S (1991) The single market and the rule of law. Eur Law Rev 16(6):451–465
Cunningham CB (2001) In defense of member state culture: the unrealized potential of article 151(4) of the EC treaty and the consequences for EC cultural policy. Cornell Int Law J 34:119–163
Curtin D (1993) The constitutional structure of the union: a Europe of bits and pieces. Common Mark Law Rev 30(1):17–69
de Búrca G (1993) The principle of proportionality and its application in EC law. Yearbook of European Law. Oxford University Press, Oxford, pp. 105–150
de Búrca G (2008) Reflections on the EU’s path from the constitutional treaty to the Lisbon treaty. Available at http://ssrn.com/abstract=1124586. Last accessed 6 Oct 2015
de Vries SA (2006) Tensions within the internal market: the functioning of the internal market and the development of horizontal and flanking policies. Europa Law Publishing, Groningen
de Vries SA (2012) The protection of fundamental rights within Europe’s internal market after Lisbon – an endeavour for more harmony. In: de Vries SA et al (eds) Balancing fundamental rights with the EU treaty freedoms: the European Court of Justice as ‘tightrope’ walker. Eleven International Publishing, The Hague
de Witte B (2009) The question of the treaty architecture: 1957-2007. In: Ott A, Vos E (eds) Fifty years of European integration: foundations and perspectives. TMC Asser Press, The Hague
Dougan M (2008) The Treaty of Lisbon 2007: winning minds, not hearts. Common Mark Law Rev 45(3):617–703
Emiliou N (1996) The principle of proportionality in European Law – a comparative study. Kluwer Law International, London
Geiger C (2009a) Intellectual property shall be protected!? Article 17(2) of the charter of fundamental rights of the European Union: a mysterious provision with an unclear scope. EIPR 31(3):113–117
Geiger C (2009b) Copyright’s fundamental rights dimension at EU Level. In: Derclaye E (ed) Research handbook on the future of EU copyright. Edward Elgar Publishing, Cheltenham
Geiger C (2010) Promoting creativity through copyright limitations: reflections on the concept of exclusivity in copyright law. Vanderbilt J Entertain Technol Law 12:515–548
Gordon C (2010) Great expectations – the European Union and cultural policy: fact or fiction? Int J Cult Policy 16(2):101–120
Govaere I (2009/2010) The future direction of the E.U. internal market: on vested values and fashionable modernism. Columbia J Eur Law 16:67–80
Griffiths J, McDonagh L (2013) Fundamental rights and European IP law: the case of article 17 (2) of the EU Charter. In: Geiger C (ed) Constructing European intellectual property. Achievements and new perspectives. Edward Elgar, Cheltenham
Groussot X (2006) General principles of community law. Europa Law Publishing, Groningen
Heritier A (2007) Mutual recognition: comparing policy areas. J Eur Public Policy 14(5):800–813
Horspool M, Humphreys M (2006) European Union law, 4th edn. Oxford University Press, Oxford
Jans JH (2000) Proportionality revisited. Legal Issues Econ Integr 27(3):239–265
Jarvis M (2010) Scope: subject matter. In: Oliver P (ed) Oliver on the free movement of goods in the European Union, 5th edn. Hart Publishing, Oxford
Lenaerts K, van Nuffel P (2011) European Union law. Clarendon Press, Oxford
Lindseth PL (1999) Democratic legitimacy and the administrative character of supranationalism: the example of the European community? Columbia Law Rev 99:628–738
Louis J-V (2008) National parliaments and the principle of subsidiarity – legal options and practical limits. Eur Constitutional Law Rev 4:429–452
Masson A (2008) Droit Communautaire. Droit Institutionnel et Droit Matériel. Théorie, Exercices et Éléments de Méthodologie. Larcier, Brussels
Michel V (2007) P2. Subsidiarité et Proportionnalité. In: Burgorgue-Larsen L, Levade A, Picod F (eds) Traité Établissant une Constitution pour l’Europe. Commentaire Article par Article – tome I. Bruylant, Brussels
Mylly T (2005) Intellectual property and fundamental rights: do they interoperate? In: Bruun N (ed) Intellectual property beyond rights. WSOY, Helsinki
Palombella G (2006) From human rights to fundamental rights. Consequences of a conceptual distinction. EUI working paper law no. 2006/34. Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=963754. Last accessed 6 Oct 2015
Pech L (2010) A union founded on the rule of law: meaning and reality of the rule of law as a constitutional principle of EU law. Eur Constitutional Law Rev 6(3):359–396
Peukert A (2011) Intellectual property as an end in itself? EIPR 33(2):67–71
Pilette A, de Poncins E (2007) Valeurs, Objectifs et Nature de L’Union. In: Amato G et al (eds) Genèse et Destinée de la Constitution Européenne. Genesis and Destiny of the European Constitution. Bruylant, Brussels
Piris J-C (2006) The constitution for Europe. A legal analysis. Cambridge University Press, Cambridge
Piris J-C (2010) The Lisbon treaty. A legal and political analysis. Cambridge University Press, Cambridge
Psychogiopoulou E (2008) The integration of cultural considerations in EU law and policies. Martinus Nijhoff Publishers, Leiden
Pyykkönen M (2012) UNESCO and cultural diversity: democratisation, commodification or governmentalisation of culture? Int J Cult Policy 18(5):545–562
Rich A (2006) Business and economic ethics. The ethics of economic systems. Peeters, Leuven
Rosas A, Armati L (2010) EU constitutional law. An introduction. Hart Publishing, Oxford
Schütze R (2012) European constitutional law. Cambridge University Press, Cambridge
Shore C (2001) The cultural policies of the European Union and cultural diversity. In: Bennett T (ed) Differing diversities. Transversal study on cultural policy and cultural diversity. Council of Europe Publishing, Strasbourg
Slot PJ (2002) A contribution to the constitutional debate in the EU in the light of the tobacco judgement: what can be learned from the USA? Eur Bus Law Rev 13(1):3–27
St Clair Bradley K (2011) Powers and procedures in the EU constitution: legal bases and the court. In: Craig P, de Búrca G (eds) The evolution of EU law, 2nd edn. Oxford University Press, Oxford
Szyszczak E (2009) Antidiscrimination law in the European community. Fordham Int Law J 32(2):624–659
Tamanaha BZ (2009) A concise guide to the rule of law. In: Palombella G, Walker N (eds) Relocating the rule of law. Hart Publishing, Oxford
Timmermans CWA (2008a) The genesis and development of the European communities and the European union. In: Kapteyn PJG et al (eds) The law of the European Union and the European Communities (with reference to changes to be made by the Lisbon Treaty), 4th edn. Kluwer Law International, Alphen aan den Rijn
Timmermans CWA (2008b) The basic principles. In: Kapteyn PJG et al (eds) The law of the European Union and the European Communities (with reference to changes to be made by the Lisbon Treaty), 4th edn. Kluwer Law International, Alphen aan den Rijn
Tridimas T (2006) The general principles of EU law, 2nd edn. Oxford University Press, Oxford
Trüe C (2004) Das System der EU-Kompetenzen vor und nach dem Entwurf eines Europäischen Verfassungsvertrags. ZaöRV 4:391–427
Verwey D (2004) The European Community, the European Union and the International Law of Treaties. T.M.C. Asser Press, The Hague
von Bogdandy A (2008) The European Union as situation, executive and promoter of the international law of cultural diversity: elements of a beautiful friendship. European J Int Law 19(2):241–275
von Bogdandy A (2010) Founding principles. In: von Bogdandy A, Bast J (eds) Principles of European constitutional law, 2nd edn. Hart/Beck, Oxford/Munich
von Bogdandy A, Bast J (2002) The European Union’s vertical order of competences: the current law and proposals for its reform. Common Mark Law Rev 39(2):227–268
Waldron J (2008) The concept and the rule of law. Georgia Law Rev 43(1):1–61
Walker N (2009) The rule of law and the EU: necessity’s mixed virtue. In: Palombella G, Walker N (eds) Relocating the rule of law. Hart Publishing, Oxford
Weatherill S (1995) Law and integration in the European Union. Clarendon Press, Oxford
Weatherill S (2010) Union legislation relating to the free movement of goods. In: Oliver P (ed) Oliver on the free movement of goods. Hart Publishing, Oxford
Weatherill S (2011) Consumer policy. In: Craig P, de Búrca G (eds) The evolution of EU Law, 2nd edn. Oxford University Press, Oxford
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Ramalho, A. (2016). Minding the Normative Gap: The EU Treaties. In: The Competence of the European Union in Copyright Lawmaking. Springer, Cham. https://doi.org/10.1007/978-3-319-28206-0_4
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