Both EU law and the European Convention on Human Rights contain protections against invidious forms of discrimination. EU law has long been concerned to combat discrimination on the grounds of sex and nationality, and has more recently begun to tackle discrimination on the bases of race, sexual orientation, age, religion or belief and disability. Article 14 of the Convention is also concerned with these grounds—some explicitly, some through judicial interpretation—as well as others such as birth status. However, at a level of detail the two bodies of law differ in many ways: for example, in the contexts in which they apply, in their treatment of justifications for prima facie acts of discrimination, and in the extent to which direct and indirect discrimination are prohibited. It is thus a matter for debate how far they in fact overlap, or have the potential to do so. Furthermore, given that it is a shared concern of EU law and the Convention to combat invidious forms of discrimination, their respective anti-discrimination protections might be felt to provide a particularly strong illustration of the extent to which there are similarities and divergences between the two bodies of law. In this sense, anti-discrimination law offers an illuminating case study of the intersections and differences between the two bodies of ‘European’ law, both at European level and within the domestic legal systems of EU Member States.

On 1 may 2004, 10 new Member States joined the European Union. This meant inter alia that, save for the express derogations provided for in the Act of Accession, the entire mass of Community secondary legislation became binding in the new Member States. This principle of the immediate effects of Community law in the new Member States was provided for in Article 2 AA:

In an article published in 1983, Pierre Pescatore who, as a Member of the Court of Justice, exercised a powerful intellectual influence over the development of European Community law during what might be deemed the Court’s Golden Age, once described direct effect as ‘an infant disease’. What he meant was that, in the early years of the Community, it may have seemed remarkable, even dangerous, that provisions of the EC Treaty or of acts adopted under it could give rise to rights and correlative duties which national courts were called upon to recognise and enforce. But now that Community law had reached maturity, direct effect should be taken for granted, as a normal incident of an advanced constitutional order.

In 2001, the Irish carrier Ryanair and the Walloon regional government reached an agreement the terms of which appeared to be attractive for both sides. Ryanair would commit towards operating a number of its flights from Charleroi airport. In return it would receive a 50 per cent reduction in the amount of landing charges charged by the Walloon regional government, the owner of Charleroi airport. As a result, Ryanair would decrease its operating costs and gain an advantage vis-à-vis its competitors, while the airport and its owner would benefit directly and indirectly from the effects of an increase in passenger traffic. When the agreement was examined by the Commission, the Walloon Region sought to defend the measure by arguing that it had acted in its capacity as owner of the airport and that, viewed in this light, the agreement was not an infringement of the state aid rules, but an economically sound transaction. The Commission rejected this point, holding instead that, in entering into the agreement, the regional government had ‘placed itself in a situation of confusion of powers’, as the commercial need to attract Ryanair to its jurisdiction had caused it to derogate from the generally applicable regulatory framework. Given that the regional government had exercised a power of a regulatory nature, it could not invoke commercial rationality to justify its actions.

It has been argued in many places, and in different forms, that the establishment between the EU Member States of an internal market, and now of an area of freedom, security and justice, requires the European Union to legislate in the field of fundamental rights, either in order to avoid a form of regulatory competition between the Member States or in order to ensure mutual trust allowing for mutual cooperation between judicial, police and administrative national authorities. ‘Negative integration’, in the form of the lowering of barriers to the movement of goods, services, persons and capital, or in the form of mutual recognition of judicial decisions or exchange of information between national authorities, should thus be followed with, or compensated by, ‘positive integration’, in the form of the setting of common standards applicable throughout the EU Member States. The EU Charter of Fundamental Rights, moreover, provides the baseline from which to act, since it represents a set of values which all the Member States have agreed to consider as fundamental. The question (so it would seem) is now that of implementing the Charter, by using the legal bases provided for in the treaties to the fullest extent possible.

More than a dozen years since the Keck judgment, its effect of breaking the dogmatic convergence between the free movement of goods and that of services, already established in the case law of the ECJ by the early 1990s, cannot be underestimated. As is well known, this convergence primarily relied on such a broad interpretation of the scope of Articles 28 and 49 EC as to include any obstacles to intra-Community trade arising from measures applying beyond discrimination unless justified. The basic divergence introduced by Keck into the Court’s approach to the free movement provisions on goods and services can best be illustrated by the case law reviewing measures relating to advertising and other marketing methods. This paper will draw on a broad definition of advertising, which will include any commercial communication, ie any form of communication designed to promote, directly or indirectly, the goods, services or image of a company, organisation or person exercising a commercial, industrial or other professional activity.

The directive on Services in the Internal Market is one of the most controversial and disputed pieces of European legislation in recent years. Known in its infancy as the ‘Bolkestein’ Directive after Frits Bolkestein, the Internal Market Commissioner who first put forward the proposal on behalf of the Commission, and later in the run up to its adoption as the ‘Frankenstein’ Directive, it sparked mass protests across Europe and was even suggested by some as being the real reason why France voted against the draft Constitutional Treaty in 2005.

Communications are being transformed by the combination of digital technology and a global media economy. There is increased convergence between traditional broadcasting, cable distribution, satellite broadcasting, telecommunications and the Internet, which has boosted the sheer volume of programming and information that can be conveyed, and extended its reach at both domestic and international levels. Many will see these developments as an opportunity to promote new media products and to rationalise their operations in a global market place. Others may be concerned that the need to compete successfully in that market place will threaten the survival of local and national cultural identity. In terms of policy and regulation, states may be tempted to emphasise trade and industrial policy, intended to improve transnational competitiveness, at the expense of media and cultural policy, aimed at protecting pluralism and diversity.

Cases involving patients such as Mrs Yvonne Watts, who travelled from the UK to France for a hip replacement to avoid a ‘waiting list’ in the UK, relying on rights in European Union (EU) law, attract high levels of media attention. While the vast majority of patients are either unwilling or unable to travel across borders to receive health care, it is clear that some patients are seeking health care abroad. Although data on patient mobility within the EU are significantly limited, nevertheless, a relatively steady, small but not insignificant number of patients are moving across borders within the EU to receive health care. This paper considers the current legal framework on the rights in EU law of those patients who seek health care in another Member State. As the right to seek private health care abroad is (largely) non-contentious, and has been a well-established feature of EU law since at least the mid 1980s, the focus of this paper is on publicly or quasi-publicly funded health care.

It is safe to say that any description of tax as ‘exciting’ tends to be greeted with at least mild scepticism by non-tax specialists. Yet the ECJ’s role applying the Treaty free movement rules in the direct tax sphere is one of the most exciting, controversial and seemingly intractable areas of ECJ competence at present. This paper seeks to demonstrate why no Community lawyer should miss out on the drama unfolding in Luxembourg.

One of the most serious problems troubling the European Union is the evolution of cross-border crimes and, in particular, international terrorism and organised crime. National law enforcement authorities cannot fight cross-border crimes efficiently if their efforts are made solely on a national level. Since the early 1990s, the (European) political authorities have become increasingly aware of this problem and have taken steps to facilitate the participation of the law enforcement and other relevant personnel from other state(s) in investigating offences. This has resulted in the adoption of a vast number of documents and new instruments (eg the European Arrest Warrant), and the creation of new agencies within the European Union, the aim of which is to facilitate cross-border activities to fight cross-border crimes.

Family law has long been considered a domain which virtually escaped any impact from European Community law. Insofar as European cooperation was aimed at economic integration in the context of the EEC, the arguments in favour of keeping it that way seemed obvious and convincing. Today, the relationship between European law and (international) family law is often viewed in an entirely different way. The explanation for this shift lies in the broad, functional approach adopted by the European Court of Justice (ECJ) to the free movement of persons in the European Union, as well as in the transformation of the Community from the EEC into the EC and its incorporation into a ‘European Union’ (EU) not exclusively oriented towards economic integration.

This chapter considers the legal status of labour rights as human rights within the European Union (EU) and the implications that this may have for free movement provisions under European Community (EC) law. This is not by any means a new subject for analysis and reflection, but has been of particular concern since the fifth enlargement of the EU which commenced in 2004. It is in this context that we have witnessed significant litigation before the European Court of Justice concerning the scope of the right to strike, and widespread protest concerning the adoption of a new Directive on Services in the Internal Market.

The European Community (EC) was established in 1957 on the basis of an international treaty. The Treaty of Rome formed part of international law, though the Court of Justice was soon eager to emphasise that the ‘Community constitutes a new legal order of international law’, and that:

The title of this paper embraces three concepts which will be used as paths to reach a destination. The destination is Italy, taken as an example of an active promoter of European integration, even when facing difficulties in complying with its obligations under the EC Treaty.

The first path leads towards judicial intervention, seen as a major tool for making changes within a national legal system. Some examples (section III) concern the scrutiny that the ECJ operates, when prompted by the Commission, acting under Article 88(2) EC. Other examples (sections IV and V) are related to the open dialogue national judges engage in with the ECJ, when they start preliminary references under Article 234 EC.

When a criminal case with trans-border ramifications is to be prosecuted within a given state, the following three problems typically arise:

1. — bringing the defendant, currently abroad, to that state, to enable the case against him to be tried;

2. — obtaining relevant evidence from other jurisdictions;

3. — persuading the courts of the state where the defendant is to be tried that they can use it.

The first of these problems is in principle the most important. Unless a legal system is prepared (as some were in the past) to try defendants in absentia and then punish them in effigy, the defendant’s physical presence within the jurisdiction of the court is usually required in order to bring the mechanism of the criminal law to bear upon him.

Fiscal state aid is an important aspect of state aid law. Aid granted though fiscal measures accounted for more than 40 per cent of aid granted in 2003–5. According to a recent study, allegations that fiscal measures constitute illegal aid account for more than 50 per cent of state aid cases before national courts. The European Commission and European as well as national courts are thus increasingly being called upon to consider the extent to which state aid rules apply to fiscal measures.