bluuebunny/crossref_metadata_2025 huggingface dataset:
20. Ending Employment Contracts at Common Law; and Duties to Redundant and Transferring Staff
Authors: Marson James , Ferris Katy
Published: September 2020

This chapter identifies the remedy for the termination of contracts of employment through the common law claim of wrongful dismissal. It addresses situations of redundancy, and the rights of individuals and obligations on employers when the business is transferred to a new owner. Each of these measures offer protection to employees, and employers should understand the nature of these rights, the qualifications necessary for each mechanism, and the remedies available, to ensure they select the most appropriate mechanism to bring the employment relationship to an end. Before the 1960s, contracts of employment were largely dealt with by the ‘normal’ rules of contract law and were often heard by courts that hear contractual disputes. It is important to be aware of the mechanisms that will enable termination of the employment relationship without transgressing the law in order to maintain good working relations.
2. The institutions of government and the separation of powers
Authors: Stanton John , Prescott Craig
Published: September 2020

This chapter explores the key institutions—the legislature, the executive, and the judiciary—and considers the relevance of the principle of the separation of powers in respect of the UK Constitution. It begins with a discussion of the functions fulfilled by these institutions, including an examination of their structure and key roles, allowing fuller exploration of the separation of powers doctrine in the UK Constitution. In respect of this, the chapter identifies a common distinction drawn between what is known as the pure and partial separation of powers. One favours total separation, the latter allowing a degree of overlap to the point of ensuring a system of checks and balances. Application of this distinction enables broader exploration of the UK’s application of the separation of powers doctrine.
9. Devolution and local government
Authors: Stanton John , Prescott Craig
Published: September 2020

Devolution refers to the decentralization of power from central institutions in London to regional institutions exercising executive and legislative authority in Scotland, Wales, and Northern Ireland. This chapter explores the principle of devolution, both in terms of its historical development and its constitutional importance. It discusses recent issues and debates relevant to the role that it continues to play in the UK Constitution through the established institutions in Scotland, Wales, and Northern Ireland. All this is tied together in consideration of a problem scenario which encourages discussion of the powers of the devolved institutions and their relationship with centralized authority at Westminster.
1. General themes and issues
Authors: O’Sullivan Janet
Published: September 2020

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter offers an introduction to the law of contract and contract theory. It explains that the law of contract provides the ground rules for what is needed for a contract to be valid and enforceable and for resolving disputes. It introduces the reader to key themes and concepts in the law of contract, and considers the crucial borderlines with others legal subjects, such as tort, restitution and public law. This chapter also considers some international developments beyond the domestic law of contract.
5. Consideration and estoppel
Authors: O’Sullivan Janet
Published: September 2020

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter explores and defends the consideration requirement in the enforceability of contractual obligations, both when the contract is formed and if it is varied, refuting some of the criticisms calling for the requirement of consideration to be reformed or abolished in English law. It defines consideration as the ‘price of the promise’ and clarifies that an act or promise must have been requested by the promisor to count as consideration. It explores issues such as past consideration, performance of an existing contractual duty, part payment of a debt, for which latter issue the common law rule is ameliorated by the equitable doctrine of promissory estoppel.
6. Privity
Authors: O’Sullivan Janet
Published: September 2020

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines the doctrine of privity in the law of contract. The doctrine of privity dictates that a person who is not a party to the contract cannot be granted contractual rights by the contract or be placed under contractual obligations by it. It explores the rationale of the principle, discusses the authorities that established it, and explores the various common law exceptions to the rule that a third party cannot acquire rights under a contract. This chapter also covers the statutory exception to privity provided in the Contracts (Rights of Third Parties) Act 1999.
9. Misrepresentation and non-disclosure
Authors: O’Sullivan Janet
Published: September 2020

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines issues related to pre-contractual misrepresentation, which is a vitiating factor. It explains what counts as an actionable misrepresentation and discusses its distinction with the treatment of non-disclosure. It explores the elements for an actionable misrepresentation and the test of cause/reliance. It considers the remedies for misrepresentation, namely rescission which involves setting the contract aside and restoring the parties to the pre-contractual position, and damages, which are available at common law for fraudulent misrepresentation and under the Misrepresentation Act 1967 for other misrepresentations unless the misrepresentor can discharge the burden of reasonable grounds for belief. This chapter also explains that any clause that purports to exclude or restrict liability for misrepresentation is subject to the statutory requirement of reasonableness.
13. Common mistake and rectification
Authors: O’Sullivan Janet
Published: September 2020

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines the situation where both parties to a contract share a common mistake. It analyses several court cases indicating that certain sorts of mistake can render contracts void at the level of common law. It discusses the doctrine of mistake approach which asserts that certain sorts of common mistake inevitably render a contract void and the construction approach which argues that the effect of common mistake is ascertained by construing and interpreting the contract. This chapter also considers the scope of the equitable remedy of rectification for common and unilateral mistake.
15. Discharge of a contract for breach
Authors: O’Sullivan Janet
Published: September 2020

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines the circumstances in which a contract can be terminated or discharged by one party following breach or incomplete performance by the other party, covering entire obligations. It explains that breach of contract does not automatically bring a contract to an end and that termination of a contract for breach is not the same as rescission. This chapter also discusses the two sorts of situation in which the innocent party can terminate the contract for the other party’s breach, namely breach of condition or serious breach of an innominate term, and following repudiation, and considers the innocent party’s option to elect whether to terminate the contract or keep it alive.
17. Remedies II: specific remedies
Authors: O’Sullivan Janet
Published: September 2020

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines specific remedies for breach of contract. It explains that unlike compensatory remedies, specific remedies actually require the defendant to perform his side of the bargain. This chapter discusses the principles of the different types of specific remedies including the action for an agreed sum, liquidated damages and the penalty clause jurisdiction, injunctions, specific performance, and damages in substitution.
2. An overview of the English legal system
Authors: Wilson Steve , Rutherford Helen , Storey Tony , Wortley Natalie , Kotecha Birju
Published: September 2020

This chapter provides an introduction to some of the key concepts, themes, and institutions of the English legal system. The overview highlights fundamental concepts and principles such as parliamentary supremacy, the rule of law, legislation, the common law, and equity. There is a focus on ensuring you have a firm grasp of terminology and the differences between the criminal law and civil law. The relationship between the English legal system and the European Union (EU) and the European Convention on Human Rights (ECHR) is also distinguished and explained. In the latter part of the chapter, a summary of the courts, their composition, and their jurisdiction, as well as other legal bodies and personnel in the English legal system, is provided.
1. From EEC to EU: a brief history of the development of the Union
Authors: Costa Marios , Peers Steve
Published: September 2020

This chapter, which traces the chronological history of the development of the European Economic Community (EEC) into the European Union (EU), explains that the EEC was created by the Treaty of Rome (ToR) in 1957 and discusses Treaties which amended the ToR and led to the development of the EU. These include the Single European Act in 1987, the Maastricht Treaty in 1993, the Amsterdam Treaty in 1999, the Nice Treaty in 2003 and the Lisbon Treaty in 2009. The chapter also describes the nature of the EU and theories explaining the development of the scope of its activities. It summarises the history of the EU, including enlargement, debates over democracy, and the Brexit process, and explains the nature of the EU: supranational, intergovernmental or a form of ‘multilevel governance’?
2. Institutions of the Union: composition and powers
Authors: Costa Marios , Peers Steve
Published: September 2020

This chapter examines the institutions within the European Union (EU), their powers and the relationship between the institutions. The main EU institutions are the European Parliament, the Council, the European Council, the Commission (including the High Representative for Foreign Affairs and Security Policy), the Court of Justice of the European Union, the European Central Bank and the Court of Auditors. There are also other bodies, including: the European Ombudsman, the Economic and Social Committee (ECOSOC), the Committee of the Regions and COREPER. The chapter explains that these institutions and bodies are given different powers and are subject to important rules (for instance, the usual rule of qualified majority voting in the Council), and that they are required to work together in order to provide the checks and balances within the Union legal order, or the so-called institutional balance.
3. Scope of the EU Treaty: laws and lawmaking
Authors: Costa Marios , Peers Steve
Published: September 2020

This chapter examines the lawmaking powers of the European Union (EU) in the context of its Treaties. It explains that the EU has the competence to make law of various types (including secondary legislation, soft law, delegated acts and implementing acts) in a broad range of areas and that the amendments to the lawmaking procedures have affected the institutional balance, giving an increased role to the European Parliament. It discusses the changes made to improve the level of democracy at EU level, to address concerns that EU law-making has a ‘democratic deficit’ and lacks transparency and proportionality. The chapter also considers the different aspects of EU competence, describes the lawmaking process and sources of EU law and also addresses questions concerning the determination of exclusive, shared and concurrent competence, particularly in the context of subsidiarity. Furthermore, it examines the rules on the EU adopting legislation without all Member States participating (closer cooperation).
11. Enforcement actions
Authors: Costa Marios , Peers Steve
Published: September 2020

This chapter examines the enforcement rules for European Union (EU) law found in Articles 258, 259 and 114(4) of the Treaty on the functioning of the European Union (TFEU). It outlines the enforcement mechanism by focusing on the various stages of Article 258 TFEU and explains the discretionary powers of the Commission to initiate the proceedings. The chapter also provides the interpretation of the terms ‘reasoned opinion’ and ‘formal notice’ given by the Court of Justice (CJ). It describes the consequences of the failure to comply with the ruling from the CJ and the conditions under which financial penalties may be imposed upon Member States according to Article 260.
16. Customs union
Authors: Costa Marios , Peers Steve
Published: September 2020

This chapter examines the creation of the customs union to ensure free movement of goods within the European Union (EU), discusses the relevant provisions of the Treaty on the Functioning of the European Union (TFEU). The chapter considers the significance of the common customs tariff applicable to all imported goods from outside the EU and explains the prohibition on customs duties and on discriminatory taxation. It also explains that the prohibition on discriminatory taxation serves to prevent Member States from circumventing the prohibition on customs duties by discriminating against imports via their internal taxation system. The chapter also highlights criticisms of the Court of Justice’s (CJ) approach to customs duties and measures having an equivalent effect.
17. Free movement of goods
Authors: Costa Marios , Peers Steve
Published: September 2020

This chapter examines the Treaty provisions designed to ensure free movement of goods within the European Union. It discusses prohibitions on quantitative restrictions, and on measures having equivalent effect to quantitative restrictions (MEQR) in Article 34 of the Treaty on the Functioning of the European Union (TFEU), in particular considering the key cases of Dassonville, Cassis de Dijon and Keck. It also outlines the prohibition on quantitative restrictions on exports and all measures having equivalent effect. It analyses the development of the jurisprudence relating to MEQR, and explains the provisions of Articles 35 (exports) and 37 TFEU (state monopolies). The chapter also addresses the underlying questions concerning the relationship between free movement and national regulatory competence. Finally, the chapter examines the provisions of Article 36 TFEU containing the derogation from the free movement of goods and considers proportionality and disguised restriction on trade. It also discusses the CJ’s jurisprudence on the rule of reason.
19. Citizenship: rights of free movement and residence
Authors: Costa Marios , Peers Steve
Published: September 2020

This chapter examines the European Union (EU) law concerning citizenship and the right of residence and free movement. It suggests that while citizenship provides a broad framework of rights, it is important to recognise the higher level of protection awarded to the economically active under Articles 45 (workers), 49 (establishment) and 56 (services) of the Treaty on the Functioning of the European Union (TFEU). The chapter also considers the link between migration and the rights claimed, and highlights the underlying concerns about the abuse of Union law rights. The chapter highlights the latest contribution of the CJ in relation to the interpretation of the Citizens’ Rights Directive (Directive 2004/38/EC). It also considers the position of third-country nationals (who are family members or dependents of an EU national) and students.
21. Free movement: social rights
Authors: Costa Marios , Peers Steve
Published: September 2020

This chapter examines the social rights that arise as part of free-movement rights under Articles 21, 45, 49 and 59 of the Treaty on the Functioning of the European Union (TFEU). It highlights the extensive interpretation given by the Court of Justice (CJ) to these rights ensuring equality of treatment for those migrants who are economically active. As well as dealing with the provisions in the Citizens’ Rights Directive (CRD) (Directive 2004/38) and Regulation 492/2011 on the free movement of workers, the chapter deals briefly with the provisions relating to social security and EU citizenship.
23. Free movement of persons: limitations on grounds of public policy, public security or public health
Authors: Costa Marios , Peers Steve
Published: September 2020

This chapter examines the European Union (EU) law concerning the free movement of persons and the limitations of this right on grounds of public health, public security, or public policy, including the ‘rule of reason’ and expulsion, refusal of entry or an entry ban due to criminal offences or other personal conduct. It analyses the relationship between the Citizens’ Rights Directive (CRD) (Directive 2004/38/EC) and its relationship with Treaty provisions. It considers the substantive scope of the derogation provisions and the procedural guarantees in the CRD applicable to EU citizens and their family members facing expulsion, refusal of entry or entry bans.
27. EU competition law
Authors: Costa Marios , Peers Steve
Published: September 2020

This chapter examines the core elements of competition law in the European Union (EU). It provides a number of examples of the types of agreements covered by EU competition law and shows the dangers which may arise when independent undertakings come together to coordinate their activities to distort competition. The chapter reviews the impact of anti-competitive agreements on the internal market and focuses on the abuse of market power and controls over concentrations. Overall, the chapter discusses the provisions and enforcement of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).
4. Sources and forms of EU law
Authors: Foster Nigel
Published: September 2020

This chapter examines the forms and sources of European Union (EU) law. It describes the nature of the EU legal system and discusses the classification of various elements of EU law, which include institutional laws, procedural laws, and substantive laws. It explains that the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) are the principal sources of law for the Union. Other sources include regulations, Directives, procedural requirements, and international agreements and conventions. This chapter also discusses the contribution of the European Court of Justice (CJEU) to the sources of EU law.
9. Direct actions before the Court of Justice
Authors: Foster Nigel
Published: September 2020

This chapter analyses direct actions filed before the Court of Justice of the European Union (CJEU) against European Union (EU) institutions. These include actions for damages for loss caused by an act of the Institutions under Articles 268 and 340 of the Treaty on the Functioning of the European Union (TFEU), action for failure of the institutions to act under Article 263 TFEU, and judicial review of EU acts under Article 263 TFEU. This chapter explains that the cases involving Article 263 TFEU and Article 340 TFEU received the most attention for their admissibility and merits. It also includes a consideration of Article 265 and 277 actions.
10. Free movement of goods I: tariff and tax barriers
Authors: Foster Nigel
Published: September 2020

This chapter examines European Union (EU) law concerning tariff and tax barriers. It explains the legislative provisions of the Treaty on the Functioning of the European Union (TFEU) for the free movement of goods and those of secondary legislation. The coverage of the TFEU provisions includes customs duties and charges having equivalent effect, the Common Customs Tariff, and the equivalent measures with equivalent effects on exports and imports. This chapter also evaluates the progress towards the achievement of the goals of the Treaty and discusses the establishment of the internal market and the prohibition of discriminatory taxation.
14. Discrimination law
Authors: Foster Nigel
Published: September 2020

This chapter examines sex discrimination law in the European Union (EU). It analyses the reasons for the original inclusion of sex discrimination in the Treaty on the Functioning of the European Union (TFEU) and discusses the provision of TFEU Articles that aim to promote equality and prohibit discrimination. It evaluates the scope of Article 157 TFEU and explains the principle of ‘equal pay for equal work’ and ‘work of equal value’. This chapter also considers the expansion of the EU equality law with Article 19 TFEU, the Pregnant and Breastfeeding Workers Directive, and the Social Security Directive.
8. Employers’ liability and non-delegable duties
Authors: Brennan Carol , Bermingham Vera
Published: September 2020

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. Employment contracts implicitly require an employer to take all reasonable care to ensure the health and safety of his or her employees. An employee who suffers an injury due to the tort of another employee may make the employer vicariously liable. In addition, the employer has a personal non-delegable duty of care to ensure that his employees are safe in the workplace. This chapter looks at the various sources of employers’ liability for workplace accidents and discusses the distinction between vicarious liability and personal liability. It also examines the non-delegable nature of the employer’s duty and considers developments in employer’s liability for occupational stress.
11. Trespass to the person and to land
Authors: Brennan Carol , Bermingham Vera
Published: September 2020

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. Trespass, one of the oldest torts, takes three forms that are all actionable per se: trespass to the person, trespass to land, and trespass to goods. In each case, a claimant is not required to prove damage to bring an action in trespass. Many modern cases of trespass to the person are taken against the police or other public officials, mainly to vindicate the claimant’s rights rather than to obtain an award of damages in compensation. This chapter focuses on trespass to the person and trespass to land, the former of which involves an intentional infliction of harm without a direct interference.
5. Ineffective disposition of benefit: resulting trusts
Authors: Watt Gary
Published: September 2020

If the beneficial owner of an asset transfers the asset to another who does not give or promise anything in return, and where there is no evidence of any intention on the former’s part to make a gift or trust of the property, it is impossible to determine to whom the benefit of the asset belongs. In this case, the beneficial ownership of the asset is assumed to be held by the beneficiary for the owner under a resulting trust. The resulting trust is therefore a type of trust that arises when there is no express intention to create it. This chapter examines the ineffective disposition of benefit, focusing on the resulting trusts. It also discusses the established factual categories of the resulting trust, the theory behind resulting trusts, rebutting the presumption of a resulting trust, resulting trusts of surplus benefits, the Quistclose trust, and pension fund surpluses.
7. Charity: trust creation and public policy II
Authors: Watt Gary
Published: September 2020

This chapter explores how the creation of trusts is influenced by special considerations of public policy, focusing on charity that is beneficial to the public as opposed to illegality. Charity will render a purpose trust valid that the law of trusts would otherwise consider to be void. In contrast, illegality will sometimes render an interest or transaction void or unenforceable that the law of trusts and gifts would generally consider to be valid. After considering the creation of charitable trusts, the chapter also discusses charitable purposes and the public benefit as well as the administration of charitable trusts, before concluding by analysing their variation in accordance with the ‘cy-près’ doctrine.
10. The fiduciary duty
Authors: Watt Gary
Published: September 2020

The fiduciary duty is the defining duty of trusteeship and consists of several overlapping obligations intended to promote loyalty or faithfulness. As part of his fiduciary duty, the trustee should avoid conflict with the interests of the trust and not to make an unauthorised unauthorized profit from the trust property, or from his position of trust. The fiduciary duty may also apply to a person who is not a trustee, in which case he is said to be a fiduciary. This chapter examines the principal obligations of trusteeship and the implications of breach of those obligations for trustees, beneficiaries, and third parties. It first discusses the strict rule of exemplary fiduciary propriety before turning to the duty of good faith. The chapter also looks at fiduciary relationships and fiduciary duties, the fiduciary duty to avoid conflicts of interest, the fiduciary duty to account for unauthorised unauthorized profits, and trustee remuneration.
4. The Requirements of an Express Trust
Authors: Virgo Graham
Published: September 2020

This chapter examines some of the requirements for the creation of an express trust. These include certainty of intention to create a trust, certainty of identifiable subject matter, certainty of objects, the beneficiary principle, and the perpetuity rule. This chapter explains that the creator of the trust, whether an inter vivos or testamentary trust, is given a great deal of flexibility as to the terms and operation of the trust. The chapter examines when a trust may be invalid, particularly for failure to comply with the certainty requirements, why the certainty requirements have been recognized, and how the operation of these requirements may be satisfied through careful construction of the trust instrument. The chapter also considers when the creation of the trust can be considered to be an abuse of trust.
10. Informal Arrangements Relating to Property
Authors: Virgo Graham
Published: September 2020

This chapter considers the situations where the parties have entered into informal arrangements relating to property. It examines three different scenarios where the trust may be applicable. The first concerns the so-called common intention constructive trust, which is especially significant where the relationship of a cohabiting couple breaks down. This raises difficult issues of property ownership where the couple’s home is registered in the name of one party or of both. The rights of the parties may be modified by virtue of their common intention, whether implied or imputed. Secondly, the chapter considers the so-called joint venture constructive trust and also the relevance of the constructive trust where the doctrine of proprietary estoppel is engaged.
12. Trustees
Authors: Virgo Graham
Published: September 2020

This chapter examines the duties and powers of trustees. It considers how trustees can be appointed to and removed from office. It explains that trustees have a wide variety of powers but misuse of these powers will constitute a breach of trust. It also highlights the fact that, while trustees have the primary rights of ownership in trust property, they are not able to exploit the beneficial incidents of this ownership for themselves in their capacity as trustees, since they hold the property for other people or sometimes for particular purposes. This chapter also discusses the essence of trusteeship, the different types of trustees, and payment to trustees.
13. The Administration of Trusts
Authors: Virgo Graham
Published: September 2020

This chapter examines the natures of trustees’ duties and power related to the administration of trusts. It considers the sources of these duties and powers, the function of the trust instrument in the interpretation of these duties and powers, and the issue of breach of trust. It describes the trustees’ power to compound liabilities, to settle claims and accumulate income. This chapter also discusses some of the main duties of trustees which include the duty of care, the duty to safeguard the trust property, and the duty to maintain a fair balance between the beneficiaries. The duty to invest property is considered in some detail, with particular reference to the need to manage risk through a diverse portfolio and consideration of whether ethical considerations can be taken into account when selecting investments.
15. Fiduciary Duties
Authors: Virgo Graham
Published: September 2020

This chapter examines the nature of fiduciary duties and how a fiduciary relationship can be identified. It emphasizes that trustees are fiduciaries, and so are subject to fiduciary duties, but also considers other fiduciary relationships. The chapter analyses the nature and function of fiduciary obligations. It examines in detail the two core fiduciary duties of ensuring that there is no conflict between a fiduciary’s personal interest and their duty to the principal and also that a fiduciary should not profit from their fiduciary position. The chapter discusses the consequences of a breach of fiduciary duty and the available remedies for such a breach. In particular, the chapter considers when and why profits obtained by a fiduciary in breach of a fiduciary duty should be held on constructive trust for the principal, with particular reference to the receipt of bribes and secret commissions.
22. Breach of Contract and Termination
Authors: McKendrick Ewan
Published: September 2020

This chapter begins with a definition of ‘breach of contract’ and then outlines the circumstances in which a breach of contract gives to the innocent party a right to terminate further performance of the contract. These include breach of a condition and breach of an intermediate term where the consequences of the breach are sufficiently serious. The chapter also considers the problems that can arise in deciding the status of a term which has not been classified by the parties as a condition, a warranty, or an intermediate term. It examines termination clauses and the significance attached to the good faith of the party who is alleged to have repudiated the contract. The chapter includes a brief comparison of English law with the Vienna Convention on Contracts for the International Sale of Goods and with the Principles of European Contract Law, and also addresses the question of whether an innocent party is obligated to exercise its right to terminate further performance of the contract, and considers the loss of the right to terminate. It concludes with a discussion of the law of anticipatory breach of contract.
7. EU law: is it international law?
Authors: de Witte Bruno
Published: September 2020

This chapter examines the legal nature of EU law, i.e. its place within the realm of international law. It first presents the ‘straightforward’ view that EU law is a part (or ‘sub-system’) of international law. It then considers the ‘alternative’ view that EU law, although originating in international law, is now so distinctive that it should no longer be considered to be part of international law. It concludes with a discussion of the EU as both an object and subject of international law.
12. Free movement of goods
Authors: Oliver Peter
Published: September 2020

This chapter discusses EU law on the free movement of goods This includes the so-called non-fiscal rules prohibiting quantitative restrictions on the free movement of goods, such as quotas; and measures having equivalent effect, like the national rules on the composition of beer and pasta. It also includes the fiscal rules prohibiting customs duties, charges having equivalent effect, and discriminatory internal taxation. Together these rules form the basis of the EU’s customs union.
16. Exceptions to the free movement rules
Authors: Shuibhne Niamh Nic
Published: September 2020

This chapter examines when Member States can lawfully displace the obligations placed on them by free movement law. Free movement rights can be restricted under EU law in two ways. For discriminatory or distinctly applicable restrictive measures, a derogation ground expressly provided for in the TFEU must be engaged. For indirectly or non-discriminatory measures, that is, indistinctly applicable restrictive measures, if an overriding requirement relating to the public interest can be demonstrated the measure will be lawful. In both cases, the restriction also has to satisfy a proportionality test, that is, it is both appropriate and necessary for achieving the relevant public interest objective.
23. EU external action
Authors: De Baere Geert
Published: September 2020

This chapter examines the EU law on external relations. It explores the complex division of competences between the Member States and the Union, and between the different institutions of the Union in the field of external action; the applicable decision-making procedures, including the procedure for concluding international agreements; the Union’s composite system of external representation; and how the Union manages the vertical (between the Union and the Member States) and horizontal (between the different Institutions and policy fields of the EU) division of its external competences.
29. Competition Law: Mergers
Authors: Craig Paul , de Búrca Gráinne
Published: September 2020

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter discusses EU law on mergers, first examining the policy reasons underlying merger control. It then considers the jurisdictional, procedural, and substantive aspects to EU merger policy. Jurisdictional issues cover the types of concentration that are subject to the Merger Regulation and the inter-relationship between merger control at EU and national levels. Procedural issues cover matters such as the way in which notice of a proposed merger must be given and the investigative powers possessed by the Commission. Substantive issues of merger policy include matters such as the test for determining whether a merger or concentration should be allowed and the extent to which efficiencies produced by the concentration should be taken into account. The UK version contains a further section analysing issues concerning EU competition law and the UK post-Brexit.
5. Direct Effect
Authors: Schütze Robert
Published: September 2020

This chapter focuses on the direct effect of European law in the national legal orders. The European Union insists on a monistic relationship between European and national law. This, in particular, means that the EU will itself determine the effect of its law in the national legal orders. The chapter then looks at the direct effect of the European Treaties. The European Treaties are, however, mainly framework treaties; that is, they primarily envisage the adoption of European secondary law and especially EU legislation. This secondary law may take various forms, which are set out in Article 288 TFEU. The provision acknowledges three binding legal instruments—regulations, directives, and decisions—and two non-binding instruments. Much of the constitutional discussion on the direct effect of European secondary law has consequently concentrated on the direct effect of directives. The chapter also analyses the doctrine of indirect effect within the EU legal order.
6. (Legal) Primacy
Authors: Schütze Robert
Published: September 2020

This chapter assesses the ‘primacy’ of European law. When the European Union was born, the European Treaties did not expressly mention the primacy of European law. Did this mean that primacy was a matter to be determined by each national legal order; or was there a European Union doctrine of primacy? There are two perspectives on the primacy question. According to the European perspective, all Union law prevails over all national law. This ‘absolute’ view is not, however, shared by the Member States. According to the national perspective, the primacy of European law is relative. The chapter then considers the two national challenges to the absolute primacy of European law. The first is the national claim asserting the relative primacy of European law in the context of fundamental human rights. The second is the contested question of who is the ultimate arbiter of the scope of the European Union's competences.
7. National Actions
Authors: Schütze Robert
Published: September 2020

This chapter addresses the indirect enforcement of European law through the national courts. The core duty governing the decentralized enforcement of European law by national courts is rooted in Article 4(3) TEU: the duty of ‘sincere cooperation’. What does this mean; and to what extent does it limit the procedural autonomy of the Member States? The chapter explores two specific constitutional principles that the European Court has derived from the general duty of sincere cooperation: the principle of equivalence and the principle of effectiveness. Both principles have led to a significant judicial harmonization of national procedural laws. The chapter then considers the State liability principle, and looks at the procedural bridge that exists between national courts and the European Court of Justice. From the very beginning, the European Treaties contained a mechanism for the interpretative assistance of national courts: the preliminary reference procedure.
11. Internal Market: Persons
Authors: Schütze Robert
Published: September 2020

This chapter highlights the complex constitutional arrangements governing the free movement of persons. The EU Treaties distinguished between two classes of economic migrants, namely, employed and self-employed persons; and today's Treaty title dealing with persons still addresses ‘Workers’ and the ‘Right of Establishment’ in two separate chapters. With the 1992 Maastricht Treaty, the two special chapters on persons were complemented by the general rules on EU citizenship. Unsurprisingly, there has been a complex relationship between the two specific sources of free movement rights and the EU citizenship provisions. Their symbiotic relationship is particularly embodied in the ‘Citizenship Directive’. The chapter then considers the possible justifications for Member State restrictions on the free movement of persons.
1. The Main Legal Features of the International Community
Authors: Gaeta Paola , Viñuales Jorge E. , Zappalà Salvatore
Published: September 2020

This chapter introduces the main features of the international legal system, including the nature of international legal subjects, the lack of a central authority (and the resulting decentralization of legal ‘functions’), collective responsibility, the need for most international rules to be translated into national legislation, the range of States’ freedom of action, the overriding role of effectiveness, traditional and individualistic trends and emerging community obligations and rights, and the coexistence of the old and new patterns. These features provide a general preview of the more detailed and technical discussion of international legal rules and institutions undertaken in subsequent chapters.
8. Individuals and Other Legal Subjects
Authors: Gaeta Paola , Viñuales Jorge E. , Zappalà Salvatore
Published: September 2020

This chapter discusses the legal personality under international law of a broad range of legal subjects other than States and international organizations, particularly individuals, peoples, and national liberation movements, as well as insurgents and a few other sui generis entities (including transnational corporations and non-governmental organizations). While insurgents, like States and some of the sui generis entities (the Holy See, the Sovereign Order of Malta, or the International Committee of the Red Cross), constitute traditional subjects of international law, the other categories emerged in the aftermath of the Second World War. The chapter also tackles the issue of which international rules apply to all these diverse entities and to what extent they participate in international dealings.
16. Collective Security and the use of Armed Force
Authors: Gaeta Paola , Viñuales Jorge E. , Zappalà Salvatore
Published: September 2020

The Cold War era prevented the UN Security Council from using most of the powers provided for by the UN Charter, including adopting measures under Chapter VII (the so-called ‘collective security system’ which provides for measures ranging from sanctions to the use of armed force) for events deemed (by the Security Council) to be threats to the peace, breaches of the peace, or acts of aggression. However, the end of the Cold War enabled the Security Council to take some of the measures short of force envisaged in Article 41 and to interpret creatively the provisions of the Charter so as to authorize enforcement action through the use of armed force by individual States or coalitions of States. This chapter discusses measures short of armed force; peacekeeping operations; resort to force by States, as well as regional and other organizations, upon authorization of the Security Council; the special case of authorization to use force given by the General Assembly; as well as the right to self-defence and the various situations in which armed force has been used unilaterally by States.
17. Legal Restraints on Violence in Armed Conflict
Authors: Gaeta Paola , Viñuales Jorge E. , Zappalà Salvatore
Published: September 2020

This chapter examines the historical development and contemporary operation of the international law of armed conflict. It begins with a discussion of the historical development of this body of law, from the Hague Conventions to the Geneva Conventions and the two 1977 Additional Protocols, to the contemporary relation between international humanitarian law and human rights law, particularly in the field of targeting and detention of members in non-international armed conflicts. It then analyses the status of lawful combatants in international armed conflicts and the question of membership of non-State armed groups, as well as the notion of direct participation in hostilities and ‘unlawful combatants’. It then turns to the restrictions on the use of force based on the principles of distinction and proportionality, the choice of weapons, the protection of war victims, and some compliance mechanisms.
18. The Protection of Human Rights
Authors: Gaeta Paola , Viñuales Jorge E. , Zappalà Salvatore
Published: September 2020

This chapter surveys the process of emergence of human rights law in the post-1945 era, focusing on the major milestones, the 1948 Universal Declaration of Human Rights, the two 1966 International Covenants, and the establishment of several regional mechanisms in Europe, the Americas, and Africa. It emphasizes the tension between traditional international law and the development of human rights as a ground-breaking doctrine after the Second World War. In essence the human rights doctrines force States to give account of how they treat all individuals, including their nationals; this make States accountable for how they administer justice, run prisons, and so on. Potentially, it can subvert their domestic orders and requires them to adhere to minimum standards agreed at international level. As a further consequence, human rights doctrines have altered the traditional configuration of the international community as driven only by the interests of States.
Follow-Up Household Serosurvey in Northeast Brazil for Zika Virus: Sexual Contacts of Index Patients Have the Highest Risk for Seropositivity
Authors: Magalhaes Tereza , Morais Clarice N L , Jacques Iracema J A A , Azevedo Elisa A N , Brito Ana M , Lima Priscilla V , Carvalho Gabriella M M , Lima Andreza R S , Castanha Priscila M S , Cordeiro Marli T , Oliveira Andre L S , Jaenisch Thomas , Lamb Molly M , Marques Ernesto T A , Foy Brian D
Published: September 2020

Background

Zika virus (ZIKV) is a mosquito-borne virus that is also transmitted sexually; however, the epidemiological relevance of ZIKV sexual transmission in endemic regions is unclear.

Methods

We performed a household-based serosurvey in Northeast Brazil to evaluate the differential exposure to ZIKV and chikungunya virus (CHIKV) among households. Individuals who participated in our previous arboviral disease cohort (indexes) were recontacted and enrolled, and their household members were newly enrolled.

Results

The relative risk of sexual partners being ZIKV-seropositive when living with a ZIKV-seropositive index participant was significantly higher, whereas this was not observed among nonsexual partners of the index. For CHIKV, both sexual and nonsexual partner household members living with a CHIKV-seropositive index had a significantly higher risk of being seropositive. In the nonindex-based dyadic and generalized linear mixed model analyses, the odds of sexual dyads having a concordant ZIKV plaque reduction neutralization test result was significantly higher. We have also analyzed retrospective clinical data according to the participants’ exposure to ZIKV and CHIKV.

Conclusions

Our data suggest that ZIKV sexual transmission may be a key factor for the high ZIKV seroprevalence among households in endemic areas and raises important questions about differential disease from the 2 modes of transmission.
Detection of Neisseria gonorrhoeae from Joint Aspirate by Metagenomic Sequencing in Disseminated Gonococcal Infection
Authors: Asmerom Betial , Drobish Ian , Winckler Britanny , Chiang Leslie , Farnaes Lauge , Beauchamp-Walters Julia , Bradley John S , Ramchandar Nanda
Published: September 2020

Disseminated gonococcal infection (DGI) often manifests as gonococcal arthritis and may carry significant morbidity. However, diagnosis remains elusive due to limited sensitivity of available diagnostic tests. We used metagenomic next-generation sequencing to detect Neisseria gonorrhoeae from culture-negative joint aspirates of 2 patients with clinically diagnosed DGI.
Constraints on the electron-to-proton mass ratio variation at the epoch of reionization
Authors: Levshakov S A , Kozlov M G , Agafonova I I
Published: September 2020

Far-infrared fine-structure transitions of [C i] and [C ii] and rotational transitions of CO are used to probe hypothetical variations of the electron-to-proton mass ratio μ = me/mp at the epoch of reionization (z > 6). A constraint on Δμ/μ = (μobs − μlab)/μlab = (0.7 ± 1.2) × 10−5 (1σ) obtained at $\bar{z} = 6.31$ is the most stringent up-to-date limit on the variation of μ at such high redshift. For all available estimates of Δμ/μ ranging between z = 0 and z ∼ 1100, the epoch of recombination, a regression curve Δμ/μ = kμ(1 + z)p, with kμ = (1.6 ± 0.3) × 10−8 and p = 2.00 ± 0.03, is deduced. If confirmed, this would imply a dynamical nature of dark matter/dark energy.