Tensions within the internal market : the functioning of the internal market and the development of horizontal and flanking policies / Sybe Alexander de Vries.

Includes bibliographical references (p. 410-424) and index.

Acknowledgements
Introduction

The origin of this study: tensions within the internal market
3 (3)
The purpose, central question and background of this study
6 (1)
Horizontal and flanking policies and the internal market: defining and delimiting the topic
7 (8)
Horizontal and flanking policies
8 (4)
The internal market
12 (3)
The relevant general principles of Community law
15 (9)
The principle of proportionality
15 (2)
The principle of Community loyalty
17 (1)
The integration principle
18 (6)
The plan
24 (3)
The Application of the Free Movement Rules

Introduction
27 (1)
The material, personal and territorial scope of the free movement rules
27 (10)
The material scope
28 (1)
In general
28 (2)
Horizontal and flanking activities
30 (3)
The personal scope
33 (3)
The territorial scope
36 (1)
Conclusions
37 (1)
The application of the free movement rules: the prohibitions
37 (12)
The prohibition: towards market access
38 (1)
Indistinctly applicable measures
38 (1)
Towards a market access based test
39 (2)
Selling arrangements
41 (3)
Inherent restrictions
44 (2)
Article 29 EC and the exportation of goods
46 (1)
Tariff barriers
47 (1)
Article 25 EC
47 (1)
Article 90 EC
47 (1)
Conclusions
48 (1)
The application of the free movement rules: the exceptions
49 (50)
The scope of the Treaty exceptions
49 (1)
Overriding requirements of public interest
50 (1)
Conditions for invoking the exceptions
51 (1)
No harmonisation measure
52 (1)
Non-economic interests
52 (3)
Proportionality
55 (2)
The protection of horizontal and flanking policy interests
57 (1)
The protection of the environment
57 (1)
The protection of health and life of humans, animals or plants: Article 30 EC
58 (1)
The protection of the environment as overriding requirement of public interest
59 (1)
The condition that environmental measures should apply without distinction
59 (3)
The proportionality test: the assessment of environmental measures
62 (4)
The protection of consumers
66 (1)
The protection of health and safety of consumers
66 (1)
The protection of consumers as overriding requirement of public interest
66 (2)
The condition that consumer protection measures should apply without distinction
68 (2)
The proportionality test: the assessment of consumer protection measures
70 (7)
The protection of public health
77 (1)
The protection of public health as Treaty exception
77 (1)
The safeguarding of the financial stability of a health care system as overriding requirement of public interest
78 (1)
(No) condition that health measures should apply without distinction
79 (2)
The proportionality test: the assessment of public health measures
81 (4)
The protection of culture
85 (1)
The protection of national treasures possessing artistic, historic or archaeological value: Article 30 EC
85 (3)
Culture and public policy: Article 46 EC
88 (1)
Culture as overriding requirement of public interest
89 (1)
(No) condition that cultural measures should apply without distinction
89 (4)
The proportionality test: the assessment of cultural measures
93 (3)
Conclusions
96 (3)
The Application of the Competition Rules

Introduction: the growing relevance of competition law
99 (2)
In general: the material, personal and territorial scope of the competition rules
101 (14)
The material scope
101 (3)
The personal scope
104 (1)
The concept of undertaking in general
104 (3)
Horizontal and flanking activities
107 (6)
The territorial scope
113 (2)
Conclusions
115 (1)
The application of the competition rules and the Member States
115 (66)
Article 87 EC: the prohibition on state aids
115 (1)
The grant of aid for horizontal and flanking policy reasons
116 (1)
The scope of Article 87(1) EC: the concept of aid in relation to `normal undertakings'
117 (7)
The scope of Article 87(1) EC: the concept of aid in relation to `public service undertakings'
124 (9)
The distortion of competition and trade
133 (4)
The exceptions: state aids that can be justified for horizontal and flanking policy reasons
137 (1)
The scope of Articles 87(2) and 87(3) EC
137 (3)
The environment
140 (4)
Consumer protection
144 (1)
Public health
145 (4)
Culture
149 (4)
Conclusions
153 (1)
Article 86 EC: public undertakings and exclusive rights
153 (1)
The scope of Article 86(1) EC: the concept of exclusive rights in relation to horizontal and flanking activities
154 (1)
Exclusive rights and the competition rules: different approaches in the case law
155 (4)
Article 86(2) EC: the justification for public service undertakings
159 (1)
The scope of Article 86(2) EC in general
159 (6)
The environment
165 (2)
Consumer protection
167 (1)
Public health
168 (1)
Culture
169 (2)
Conclusions
171 (1)
Articles 3(1) sub g, 10 and 81 & 82 EC
172 (1)
The useful effect doctrine
172 (5)
Exceptions
177 (2)
The relevance of the useful effect doctrine for national competition authorities
179 (2)
Conclusions
181 (1)
The application of the competition rules and undertakings
181 (66)
Article 81 EC: the cartel prohibition
182 (1)
Introduction
182 (1)
Article 81(1) EC: the restriction of competition
183 (1)
The object or effect to restrict competition
183 (3)
Appreciability or De minimis
186 (3)
The rule of reason
189 (2)
Inherent restrictions
191 (7)
Exemptions: restrictive practices that can be justified for horizontal and flanking policy reasons
198 (1)
The scope of Article 81(3) EC
198 (5)
The environment
203 (5)
Consumer protection
208 (2)
Public health
210 (4)
Culture
214 (5)
Conclusions
219 (2)
Article 82: the prohibition on abuse of a dominant position
221 (1)
The scope of Article 82 EC: abusive behaviour and horizontal and flanking policy considerations
221 (1)
The abuse of a dominant position
222 (1)
Dominance
223 (2)
Abuse
225 (5)
The objective justification
230 (1)
Conclusions
231 (1)
Merger Regulation 139/2004
232 (1)
The scope of the Merger Regulation in relation to horizontal and flanking policies
232 (1)
The appraisal of concentrations
233 (1)
Dominance
234 (1)
A significant impediment of competition
235 (5)
Exceptions: legitimate public interests in Article 21(4) of the Merger Regulation
240 (2)
Conclusions
242 (5)
Harmonisation of Horizontal and Flanking Policies

Introduction
247 (2)
No `real' harmonisation of national legislation
249 (4)
Harmonisation techniques
253 (7)
Total harmonisation
253 (1)
Minimum harmonisation
254 (5)
The `New Approach'
259 (1)
Harmonisation within the framework of the internal market
260 (37)
Introduction
260 (1)
Legal bases for harmonisation within the context of the Internal Market
261 (1)
Article 95 EC
262 (1)
Articles 47(2), 55 and 57 EC
262 (3)
Article 308 EC
265 (2)
Snus, Cigarettes and commercials: the potential and limits of harmonisation on the basis of internal market provisions
267 (7)
Harmonisation of national horizontal and flanking policies on the basis of internal market legal bases
274 (1)
Environmental policy and the internal market
274 (4)
Consumer policy and the internal market
278 (6)
Public health and the internal market
284 (1)
Public health stricto sensu
285 (3)
Health care
288 (2)
Cultural policy and the internal market
290 (6)
Conclusions
296 (1)
Harmonisation beyond the internal market: specific legal bases
297 (14)
Environmental policy as horizontal and flanking policy
298 (1)
The legal basis for environmental policy
298 (1)
An example of a harmonisation measure: the Transfer of Waste Regulation
299 (2)
Consumer policy as horizontal and flanking policy
301 (1)
The legal basis for consumer policy
301 (2)
Measures adopted on the basis of Article 153 EC
303 (2)
Public health policy as horizontal and flanking policy
305 (1)
The legal basis for public health policy
305 (1)
Measures adopted on the basis of Article 152 EC
306 (2)
Cultural policy
308 (1)
The legal basis for cultural policy
308 (1)
Measures adopted on the basis of Article 151 EC
309 (2)
Conclusions
311 (1)
Harmonisation and free movement
311 (8)
Towards a Synthesis

Introduction
319 (1)
Free movement
319 (6)
Negative integration
320 (1)
Prohibitive rules
320 (1)
Exceptions
321 (1)
Positive integration
322 (1)
Harmonisation contributes to solving the problem of tension
322 (1)
Minimum harmonisation
323 (1)
Total harmonisation
324 (1)
A wide margin of discretion of the community legislature to pursue horizontal and flanking policy interests
324 (1)
Competition and the Member States
325 (3)
Articles 86 and 87 EC
325 (1)
The prohibitive rules
325 (1)
Exceptions
326 (1)
Community measures: no positive integration
327 (1)
Competition and undertakings
328 (3)
Articles 81, 82 EC and Merger Control
328 (1)
The prohibitive rules
328 (1)
Exceptions
329 (2)
Community measures: no positive integration
331 (1)
Coherence or convergence?
331 (4)
The four freedoms
332 (1)
The four freedoms and the competition rules
333 (1)
Horizontal and flanking policies
334 (1)
The tension between horizontal and flanking policies and the internal market
335 (8)
The perspective of the Member State
336 (2)
The perspective of the Community
338 (5)
Closer Harmony

Introduction
343 (1)
The example of books
344 (5)
Supporting books as cultural product at national level
344 (3)
Supporting books as cultural product at Community level
347 (1)
What does this example tell us?
348 (1)
Closer harmony: the perspective of the Member State
349 (20)
The national legislature
350 (1)
Realising the importance of the proportionality principle
350 (1)
Introduction
350 (1)
The horizontal and flanking policy interest at stake
351 (2)
Choosing the least restrictive alternative
353 (2)
Respecting the Community loyalty principle
355 (1)
The exchange of information at national level
355 (3)
The exchange of information at European level
358 (1)
The national competition authorities
359 (1)
Respecting the Community loyalty principle
360 (1)
The exchange of information at national level
360 (1)
The exchange of information at European level: `ECN'
361 (2)
Applying the principle of proportionality
363 (1)
The national courts
364 (1)
Respecting the Community loyalty principle
364 (1)
The exchange of information at national level
365 (1)
The exchange of information at European level
365 (2)
Applying the principle of proportionality
367 (2)
Closer harmony: the perspective of the Community
369 (22)
The European Court of Justice: actively contributing to the process of convergence
370 (1)
The artificial and undesirable dichotomy between the Treaty exceptions and the rule of reason should be removed
370 (2)
Taking account of the (inherently substantive) differences between horizontal and flanking policies
372 (2)
The European Commission; giving effect to the integration principle: taking integration seriously
374 (1)
In general
375 (1)
The Commission's state aid policy -- Article 87(3) EC
375 (3)
The Commission's policy in respect of services of general (economic) interests -- Articles 86(2) and 16 EC
378 (1)
Introduction
379 (1)
The horizontal approach to Article 86(2) EC: a proposal for a Framework Directive for services of general (economic) interest including horizontal and flanking policy interests
379 (3)
The vertical approach to Article 86(2) EC: guidelines for each horizontal and flanking policy field
382 (1)
The Commission's policy in respect of cartels -- extending the guidelines on the application of Article 81(3) EC
383 (3)
The Community legislature: harmonisation of horizontal and flanking policies
386 (1)
In general
386 (1)
The broad use of Article 95 EC to pursue horizontal and flanking policies
386 (1)
A strong duty to motivate legislation
387 (1)
Taking the principle of proportionality into account
388 (1)
Total versus minimum harmonisation: pre-empting Member States to adopt additional, more stringent standards?
389 (2)
Closer harmony: a proposal for re-organising the EC Treaty
391 (15)
Introduction
391 (2)
Re-organising and redefining the Treaty in respect of horizontal and flanking policies
393 (1)
The general objectives of the EC Treaty
394 (2)
A new Treaty exception for restrictions on free movement
396 (2)
References to horizontal and flanking policies in the field of competition policy
398 (4)
Harmonisation within the framework of the internal market: a revision of Articles 95(5) and 47(2) EC
402 (1)
The specific part: a partial lifting of the prohibition of harmonisation in the fields of public health and culture
403 (3)
Epilogue: no unequivocal solution to the tense problem of tension
406 (4)
Bibliography 410 (16)
Table of Cases 426 (8)
Abbreviations 434 (4)
Index 438 (14)
Samenvatting 452

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