Abuse of EU law and regulation of the internal market Alexandre Saydé

Contents
Machine generated contents note: pt. I THE PHENOMENON OF ABUSE OF UNION LAW
Introduction: A Dynamic Perspective on Abuses of Union Law
1.Identification of the Phenomenon of Abuse of Union Law
I.Abuses Committed by Public Authorities
II.Abuses Committed by Private Individuals
A.Abuses Private-Private (including Abuses of Rights)
B.Abuses Private-Public (including Abuses of Law)
III.Abuses of Law and Abuses of Rights under Union Law
IV.The Universality of the Prohibition of Abuses
2.The Formal Doctrine of Abuse of Union Law
I.At the Legislative Origins of the Formal Doctrine of Abuse of Union Law
II.Applications of the Formal Doctrine of Abuse in the Field of Export Refunds
A.Emsland-Starke (2000)
i.Facts
ii.Decision of the Court
B.Vonk Dairy Products (2007)
III.Applications of the Formal Doctrine of Abuse in the Field of VAT
A.Halifax (2006)
Contents note continued: B.Part Service (2008)
IV.Applications of the Formal Doctrine of Abuse in the Field of Direct Taxation
A.Cadbury Schweppes (2006)
B.Thin Cap Group Litigation (2007)
V.Other Applications of the Formal Doctrine of Abuse in the Field of Free Movement
A.Agip Petroli (2006)
B.ING. AUER (2007)
3.Definition of the Concept of Abuse of Union Law
I.The Basics: Abuse of Law as Gain-Seeking Choice of Law
II.The Artificiality Requirement: Abuse of Law as Naked Choice of Law
A.Artificiality as Economic Irrationality
B.The Fallacy of Economic Reality
III.The Teleological Assessment: Abuse of Law as Undesirable Choice of Law
IV.The Sanction: Denying the Choice of Law
4.Typology of Union Law Reactions to Artificial Practices
Contents note continued: I.Informal Doctrines of Abuse of Law
II.Suspect Periods
III.Centres of Gravity
A.Centre of Gravity Approaches for Legal Persons (Real Seat Theory)
i.Applications of the `Real Seat Theory' in Union Law
ii.`Output' versus `Input' Centre of Gravity
B.Centre of Gravity Approaches for Natural Persons (Habitual Residence and Genuine Integration Requirements)
i.`Habitual Residence' Requirements
ii.The `Genuine Integration' Requirement
IV.Incidental Prevention of Artificial Practices
V.Free Choice of Law
5.Abuse of Union Law and Legal Certainty
I.The Trade-off between Legal Certainty and Legal Congruence
A.The Universality of the Trade-off between Legal Certainty and Legal Congruence
B.The Trade-off between Legal Certainty and Legal Congruence in Union Law
II.Legal Certainty as Source of Abusive Practices
A.Abuses of Rigid Union Laws
B.The Congruence Gap as Room for Abusive Practices
Contents note continued: III.The Fight against Abusive Practices as Source of Legal Congruence
A.The Legal Uncertainty Inherent to the Doctrine of Abuse
B.Fighting Abusive Practices by Enacting Flexible Legal Norms
Conclusion: The Certainty of Abuse and the Illusion of Legal Certainty
pt. II ABUSES OF UNION LAW AND ECONOMIC INTEGRATION
Introduction: The Ambivalent Notion of Free `Movement'
6.The Competing Paradigms of Economic Integration
I.The Function of Local Laws in a Process of Economic Integration
II.The Paradigm of Regulatory Neutrality: Economic Integration as Business Competition
III.The Paradigm of Regulatory Competition: Economic Integration as State Competition
7.Dilemmas in the Regulation of the Internal Market
I.Protectionism
II.Multiple Regulation
III.The Eventuality of Positive Harmonisation
IV.The Negative Harmonisation Conundrum
A.Home Regulation and Host Regulation
B.The Negative Harmonisation Conundrum
Contents note continued: C.Addressing the Negative Harmonisation Conundrum
V.The Regulatory Mobility Dilemma
A.Regulatory Immobility under Multiple Regulation and Union Regulation
B.Regulatory Mobility under Home Regulation and Host Regulation
C.Addressing the Regulatory Mobility Dilemma
VI.Synthesis: The Trade-off between Regulatory Neutrality and Regulatory Competition
8.Reviewing Practical Issues of Free Movement Law
I.The Ambivalent Status of Differentials of Regulation
II.The Acceptance of Reverse Discriminations
III.The Inconsistent Prohibition of Abuses of Union Law
IV.The Ambiguity Towards Social Dumping
9.State Aids and Economic Integration
I.The State Aids Regime between Regulatory Neutrality and Regulatory Competition
II.Reviewing the Classical Definition of `State Aid' under Union Law
III.The Functional Parallelism between Prohibition of Abuses of Law and Prohibition of State Aids
Contents note continued: 10.Abuse of Union Law and the Economic Constitution of the European Union
I.The Notion of Economic Constitution of the European Union
II.Historical Conditions of the Emergence of the Phenomenon of Abuse of Union Law
III.The Rise of a New Form of Private Power Originating in Mobility
IV.Dealing with Private Mobility-Power
Conclusion: One (Internal Market) Law, Two Competitions
General Conclusion: The Concept of Abuse of Union Law as a Privileged Forum for Thinking about Union Law.