Treaty on the functioning of the European Union - a commentary. Volume II, Articles 90-164 2

Preface Structure of the Commentary Contents Contributors Abbreviations Title VI: Transport Article 90 [Common Transport Policy] (ex-Article 70 TEC) 1 The Original and Present Treaty Text 2 The Distinctive Nature of Transport 3 The Derogatory Regime for Transport 4 The Common Policy Technique 5 The Treaty Objectives Pursued: The Subject Matter 5.1 The Creation of the Internal Transport Market 5.2 Other Objectives 6 The Matters Governed by This Title 6.1 Transport, Traffic and Other Business? 6.2 Grey Area 6.3 Transport Mode 6.4 Geographic Scope 7 Shared Competence 8 Subsidiarity and Proportionality 9 The Instrument for Implementation of the Policy 10 Treaty-Making Power 11 Timing List of Cases References Article 91 [Principles] (ex-Article 71 TEC) 1 The Ordinary Legislative Procedure 2 The Distinctive Features of Transport 3 The Substance of the Common Transport Policy 3.1 Traffic Rights 3.1.1 Intra- and Extra-Union Transport 3.1.2 Road Transport 3.1.3 Rail Transport 3.1.4 Inland Navigation 3.2 Safety 3.3 Miscellaneous 4 Consideration for Socio-Economic Impact List of Cases References Article 92 [Standstill Obligation] (ex-Article 72 TEC) Article 93 [State Aid] (ex-Article 73 TEC) 1 The Concept of Aid 1.1 An Advantage 1.2 By a National Public Authority 1.3 To an Undertaking 1.4 Selectively 1.5 Actually or Possibly Distorting Competition 2 The State General Aid Prohibition and Its Exemptions 3 The Transport Specific Exemptions 3.1 Coordination of Transport 3.2 Public Service Obligation List of Cases References Article 94 [Economic Circumstances of Carriers] (ex-Article 74 TEC) 1 Overview 2 Any Measures Taken Within the Framework of the Treaties 3 Transport Rates and Conditions 4 Taking Account of the Economic Circumstances of Carriers 5 The Current Relevance of Article 94 TFEU List of Cases References Article 95 [Prohibition of Discrimination] (ex-Article 75 TEC) 1 Overview 2 Prohibited Discrimination (Paragraph 1) 3 The Right to Adopt Other Measures Under Article 91.1 TFEU (Paragraph 2) 4 Implementing the Prohibition (Paragraph 3) 5 Commission´s Right to Investigate (Paragraph 4) 6 Current Relevance of Article 95 TFEU References Article 96 [Forbidden State Aid and Exceptions] (ex-Article 76 TEC) 1 Overview 2 The General Prohibition (Paragraph 1) 3 Prohibited, Unless Authorised by the Commission (Paragraph 2) 4 Tariffs Fixed to Meet Competition (Paragraph 3) 5 Practical Relevance of Article 96 TFEU List of Cases References Article 97 [Reasonable Frontier Crossing Charges] (ex-Article 77 TEC) 1 Overview 2 Charges or Dues in Respect of the Crossing of Frontiers (Paragraph 1) 3 Progressive Reduction of Costs and Commission Recommendations (Paragraphs 2 and 3) 4 Current Practical Relevance of Article 97 TFEU References Article 98 [German Unification] (ex-Article 78 TEC) 1 Development of the Provision, Treaty Context 2 The Scope of Article 98 TFEU as Stipulated in Its First Sentence 2.1 Substantive Scope of Application 2.2 Relevance of the Provision 2.3 Procedural Questions 3 The Possibility of Repealing Article 98 TFEU Pursuant to Its Second Sentence List of Cases References Article 99 [Advisory Committee] (ex-Article 79 TEC) 1 Overview 2 The Advisory Committee 3 Current Practical Significance of Article 99 TFEU References Article 100 [Scope of the Title and Legislative Procedure] (ex-Article 80 TEC) 1 Overview and Evolution 2 Provisions of the Transport Title Shall Apply to Road, Rail and Inland Waterway (Paragraph 1) 3 Parliament and Council May Lay Down Appropriate Provisions for Air and Sea Transport (Paragraph 2) 4 Practical Effect of the Article 100.1 and 100.2 TFEU Split 5 Article 100 TFEU and the General Rules of the Treaty 6 Issues in Transport and European Union Legislation 6.1 Air Transport 6.2 Sea Transport List of Cases References Title VII: Common Rules on Competition, Taxation and Approximation of Laws Chapter 1 Rules on Competition Section 1 Rules Appl... Article 101 [Prohibition of Agreements That Restrict Competition] (ex-Article 81 TEC) 1 Introduction 2 An Overview of Article 101 TFEU Within the Treaty Framework 3 Prohibited Action Incompatible with the Internal Market (Article 101.1 TFEU) 3.1 Agreements, Decisions and Concerted Practices 3.2 Undertakings 3.3 Object or Effect of Restricting Competition 3.3.1 Establishing Effects on Competition: Market Definition and the Counterfactual Analysis Market Definition Market Structure, Conduct and Performance The Effects Category and Appreciability Effects and Ancillary Restraints 3.3.2 The Object Category 3.4 Effect on Trade Between Member States 4 Justifications (Article 101.3 TFEU) 5 Automatic Nullity (Article 101.2 TFEU) and the Enforcement of Article 101 TFEU List of Cases References Article 102 [Prohibition of Abuses of a Dominant Position] (ex-Article 82 TEC) 1 Introduction 2 Treaty Framework 3 Dominance 3.1 Market Shares 3.2 Other Factors 3.2.1 Legal Factors 3.2.2 Factors Relating to the Undertaking 3.2.3 Market Factors 3.2.4 Independence from Customers and Consumers: Countervailing Powers 3.3 Collective Dominance 4 Special Responsibility 5 Abuse 5.1 General Definition 5.2 The Test and Required Evidence for Proving Abuse 5.3 Exploitative Abuses 5.3.1 Unfair Excessive Prices 5.3.2 Other Unfair Trading Conditions 5.4 Exclusionary Abuses 5.4.1 Price Discrimination 5.4.2 Predatory Pricing 5.4.3 Margin Squeezes 5.4.4 Refusals to Deal and Essential Facilities 5.4.5 Tying and Bundling 5.4.6 Exclusive Dealing 5.4.7 Rebates 5.4.8 Other Forms of Abuse List of Cases References Article 103 [Adoption of Secondary Enforcement Measures for Articles 101 and 102 TFEU] (ex-Article 83 TEC) 1 Overview 2 Secondary Law Measures Under Article 103 TFEU 3 General Enforcement Regime 3.1 General Enforcement RegulationsGeneral Enforcement Regulations 3.2 Block Exemption Regulations 4 Special Enforcement Regimes List of Cases References Article 104 [Transitional Enforcement Arrangements] (ex-Article 84 TEC) 1 Overview 2 Transitional Arrangements Under Article 104 TFEU 2.1 ``Authorities´´ 2.2 The Application of National Law and Articles 101 and 102 TFEU 3 The Interaction Between Articles 104 and Article 105 TFEU List of Cases References Article 105 [Role of the Commission] (ex-Article 85 TEC) 1 Overview 2 Transitional Enforcement Arrangements Under Article 105 TFEU 3 The Current Scope of Application of Paragraphs 1 and 2 4 Legislating Powers Under Paragraph 3 List of Cases References Article 106 [Public and Privileged Undertakings and Services of General Economic Interest] (ex-Article 86 TEC) 1 Overview 1.1 Introduction 1.2 The Broader Context of Article 106 TFEU 1.3 The Role of Article 106 TFEU 2 Member State Obligations Under Paragraph 1 2.1 The Broader Context 2.2 Elements 2.2.1 Public Undertakingsundertakings 2.2.2 Undertakings Granted Special or Exclusive Rights 2.2.3 Measures Contrary to the Treaty Rules 2.3 Enforcement 3 Exceptions Under Paragraph 2 3.1 The Broader Context 3.2 Elements 3.2.1 Beneficiaries Undertakings Entrusted with the Provision of Services of General Economic Interest Revenue-Producing Monopolies 3.2.2 Obstruction of the Performance of Services of General Economic Interest Tasks 3.2.3 Development of Trade Contrary to Union Interest 3.3 Services of General Economic Interest and State Aid 3.4 Enforcement 4 Commission´s Law-Making Competence Under Paragraph 3 4.1 Directives 4.2 Decisions List of Cases References Section 2: Aids Granted by States Article 107 [Prohibition of State Aid] (ex-Article 87 TEC) 1 The Concept of State Aid 2 The Involvement of State Resources 2.1 Transfer of State Resources 2.2 Through the State in Any Form Whatsoever: The Criterion of Imputability to the State 3 Advantage 3.1 The Concept of an Economic Advantage 3.2 The Market Economy Operator Test: The Standard Test for Assessing an Advantage 3.3 Market Economy Investor Test: The MEO Test Applied to Investments 3.4 The Private Creditor Test: The MEO Test Applied to Obtain Payment of Debtors 3.5 The Private Vendor Test: The MEO Test Applied to the Vending of Goods 3.6 The Altmark Test: Specific Test to Assess Whether a Measure Constitutes Compensation for a Public Service 4 Selectivity 5 Effect on Inter-State Trade 6 Distortion of Competition 7 Exemptions to the State Aid Prohibition of Article 107.1 TFEU 7.1 De jure Exemptions: Article 107.2 TFEU 7.2 Discretionary Exemptions 7.2.1 Exemptions Under Article 107.3 TFEU 7.2.2 Exemption Under Article 106.2 TFEU for Services of General Economic InterestServices of General Economic InterestState a... 7.2.3 Exemption Under Article 93 TFEU for the Coordination of Transport List of Cases References Article 108 [Enforcement] (ex-Article 88 TEC) 1 The Procedural Framework for State Aid Control 2 Existing Aid Versus New Aid 2.1 Control of Existing Aid Under Article 108.1 TFEU and Article 108.2 TFEU 2.2 Control of New Aid: Notification and Investigation 2.3 Deviations to the Notification Duty of Article 108.3 TFEU 2.4 Recovery of Unlawful Aid 3 Legal Remedies 3.1 The Application of Article 108.3 TFEU Before the National Courts 3.2 Review of State Aid by the Union Courts List of Cases References Article 109 TFEU [Implementation] (ex-Article 89 TEC) 1 Functioning of Article 109 TFEU List of Cases References Chapter 2: Tax Provisions Article 110 [Discriminatory and Protective Internal Taxation] (ex-Article 90 TEC) 1 Overview: Origin and Rationale 2 Common Parts of the Provision 2.1 Imposed by Member States 2.2 Protected Products 2.3 Products of Other States 2.3.1 Products from Third Countries 2.3.2 Products for ExportProducts for export13 2.3.3 Domestic Products 2.4 Any Internal Taxation of Any Kind 2.4.1 Internal Tax or Customs Duty 2.4.2 Internal Tax 3 Discriminatory Internal Taxation of Similar Productssimilar products21 (Paragraph 1) 3.1 Similar Products 3.2 Direct DiscriminationDirect discrimination28 3.3 Indirect DiscriminationIndirect discrimination33 3.4 Consequences of Discriminatory Internal Taxation of Similar Products 4 Discriminatory Internal Taxation of Other Products (Paragraph 2) 4.1 Competing Products 4.1.1 Other Products or Similar Productssimilar products42 4.1.2 Competing ProductsCompeting products42 4.2 Indirect Protection 4.2.1 Differences in the Tax System 4.2.2 Market Effect 4.3 Consequences of Protective Internal Taxation of Other Products List of Cases References Article 111 [Tax Repayments for Exported Products] (ex-Article 91 TEC) 1 Overview: Origin and Rationale 2 Restrictions on Repayments List of Cases References Article 112 [Approval of Reimbursements] (ex-Article 92 TEC) References Article 113 [Harmonisation of Indirect Taxes] (ex-Article 93 TEC) 1 Overview: Origin and Rationale 2 Basis for Harmonisation: Internal Market 2.1 Establishment and Functioning of the Internal Market 2.2 Avoiding Distortion of Competition 3 Relationship to Other Harmonisation Provisions 3.1 Ordinary Legislative Procedure in Articles 114 and 192 TFEU 3.2 Direct and Indirect Taxes 3.3 Ordinary Legislative Procedure in Article 116 TFEU 4 Harmonisation of Indirect Taxes 4.1 Turnover TaxesTurnover Taxes22 4.2 Excise DutiesExcise Duties29 4.3 Other Forms of Indirect Taxation List of Cases References Chapter 3: Approximation of Laws Article 114 [Harmonisation in the Internal Market] (ex-Article 95 TEC) 1 Genesis, Systematic Reading and Rationale 1.1 Genesis 1.2 Systematic Reading 1.3 Harmonisation vs. Mutual Recognition 2 Conditions for the Approximation of Laws 2.1 Terminology 2.2 Connection to the Internal Market 2.3 Achieving the Objectives Set Out in Article 26 TFEU 2.4 Provisions Laid Down by Domestic Law, Regulation or Administrative Action 2.5 Ensuring a High Level of Protection 2.6 Areas Exempted from Harmonisation 2.7 Procedure and Instruments 3 National Opt-Outs and Exceptions 3.1 Maintaining National Provisions 3.2 Introducing New National Provisions 3.3 Assessment by the European Commission 4 Simplified Infringement Procedure Before the CJEU 5 Safeguard Clauses for the Adoption of Provisional Measures by a Member State 6 Recent Practice of Internal Market Harmonisation List of Cases ECJ CFI References Article 115 [Harmonising Laws Directly Affecting the Internal Market] (ex-Article 94 TEC) 1 Overview and Genesis 2 Scope of Application 3 Form and Procedure 4 Derogations and Safeguard Clauses List of Cases ECJ References Article 116 [Distortion of Competition] (ex-Article 96 TEC) 1 Article 116 TFEU in the Global Context of the Law Approximation Policy 2 Elimination of Distortion: Two Possible Phases of the Union´s Response 2.1 Phase One: Consultation, Leading to an Agreement 2.1.1 Role of the Commission 2.1.2 Three Conditions for the Union´s Action Nature of National Provisions Existence of an Actual Distortion Need for the Elimination of a Distortion 2.1.3 Procedure of Consultation 2.1.4 Agreement Eliminating the Distortion 2.2 Phase Two: Legislative Action of the Union 2.2.1 Procedure for the Adoption of the ``Necessary Directives´´ 2.2.2 Why Have the Directives Provided for in Article 116 TFEU Still Not Been ``Necessary´´? 3 Residual Mechanism of ``Other Appropriate Measures´´ 4 Partial Derogation of Article 116 TFEU Introduced by Article 117.2 TFEU List of Cases ECJ CFI/GC References Article 117 [National Measures] (ex-Article 97 TEC) 1 Article 117 TFEU in the Global Context of the Law Approximation Policy 1.1 Indirect Approximation of Article 117 TFEU 1.2 Interdependence of Articles 117 and 116 TFEU 2 Distortion of Competition Caused by the Adoption or Amendment of a National Provision: Two Possible Outcomes 2.1 Procedure Aiming to Avoid Distortion 2.1.1 Four Conditions for the Union´s Action 2.1.2 Procedure of Consultation 2.1.3 Recommendation Aiming to Avoid Distortion 2.2 Rules Applicable in the Case of the Emergence of Distortion 2.2.1 Non-compliance with the Recommendation of the Commission 2.2.2 Rules Applicable to the ``Other Member States´´ 2.2.3 Rules Applicable in the Case of the Limited Effect of Distortion List of Cases References Article 118 [European Intellectual Property Rights] 1 Genesis and Justification 1.1 Intellectual Property in the EU Before the Lisbon Treaty 1.1.1 Intellectual Property and the Treaties: No Reserved Domain of Member States 1.1.2 ``Acquis Communautaire´´ in Intellectual Property 1.2 Rationale for Adopting Article 118 TFEU 2 Nature of the Competence 2.1 Shared Competence of the European Union 2.2 A Specific Competence to Be Articulated with Other EU Competences 2.2.1 The Residual Competence of Article 352 TFEU 2.2.2 The ``General´´ Competences to Harmonise of Articles 114 and 115 TFEU 3 Scope of Competence 3.1 The Nature of the ``Measures´´ 3.2 Creation of European IP Rights to Provide Uniform Protection Throughout the Union 3.3 Centralised Union-Wide Authorisation, Coordination and Supervision Arrangements 3.4 Regulation to Establish Language Arrangements for European IP Rights 3.5 Intellectual Property 3.6 Subsidiarity and Proportionality 4 Procedure 4.1 Ordinary Legislative Procedure Under Article 118 (1) TFEU 4.2 Special Legislative Procedure Under Article 118 (2) TFEU List of Cases References Title VIII : Economic and Monetary Policy Article 119 [Principles of Economic and Monetary Policy] (ex-Article 4 TEC) 1 Genesis, Context and Systematic Position of Article 119 TFEU 2 Some Remarks on the Beginnings of EMU and Its Openness for a Multi-Speed Europe 2.1 Three Stages in the History of EMU 2.2 Differentiated Integration Within the EMU 3 Developing an Imperfect Parallelism Between Monetary Union and Convergence of National Economic Policies (Paragraphs 1 and 2) 3.1 Two-Pillar Structure and Resulting Reforms of EMU 3.2 A Closely Coordinated Economic Policy 3.3 Monetary Policy and Exchange-Rate Policy 3.3.1 Price Stability 3.3.2 The Relationship Between Price Stability and Independence of the ESCB 3.4 Secondary Objectives of the ESCB Mandate 3.4.1 The ESCB´s Secondary Mandate to Support the EU General Economic Policies 3.4.2 Contribution to Financial Stability as an Objective Related to Price Stability 4 A Principle-Oriented Pursuit of the EMU Objectives (Paragraphs 1 to 3) 4.1 Principle of an Open Market Economy with Free Competition (Paragraphs 1 and 2) 4.2 Guiding Principles for Economic and Monetary Policy Activities in the EMU (Paragraph 3) List of Cases References Chapter 1 : Economic Policy Article 120 [Conduction of Economic Policies] (ex-Article 98 TEC) 1 Overview 1.1 Genesis and Ratio 1.2 National Economic Policies as the Subject of Coordination 1.3 Embedding Article 120 TFEU in the Provisions on EMU 1.4 Coordination as a Substitute for a Lack of Union Power 2 Constituent Elements of Article 120 TFEU 2.1 Economic Policy 2.1.1 Meaning and Relation to Other Policies 2.1.2 Distinguishing Economic Policy from Monetary Policy 2.1.3 Scope of Application 2.2 Fundamental Objectives 2.2.1 Reference to Article 3 TEU 2.2.2 Principle of an Open Market Economy with Free Competition 2.2.3 Favouring an Efficient Allocation of Resources 2.3 In Compliance with the Principles Set Out in Article 119 TFEU 2.4 Broad Guidelines Referred to in Article 121.2 TFEU 3 Legal Effects 4 Territorial Scope of Application List of Cases References Article 121 [Coordination of Economic Policies] (ex-Article 99 TEC) 1 Aim, Scope and Context 2 Coordination of Economic Policies (Paragraph 1) 2.1 Obligation of the Member States 2.2 Matter of Common Concern 3 Coordination Through Broad Economic Policy Guidelines (Paragraph 2) 3.1 The Procedure of the Council Recommendation´s Adoption 3.1.1 Phase I: A Recommendation Submitted by the Commission and Council Draft for Broad Guidelines 3.1.2 Phase II: Conclusion of the European Council 3.1.3 Phase III: Council Recommendation as a Legal Act Without a Legally Binding Effect 3.2 Addressees of the Broad Guidelines 4 Multilateral Surveillance (Paragraphs 3 and 4) 4.1 Purpose 4.2 Monitoring and Assessment Procedure (Paragraph 3) 4.2.1 Consequences of the Broad Scope of the Economic Policy Guidelines 4.2.2 Reports of the Member States to the Commission 4.2.3 Reactions of the Commission and Council 5 Sanctions (Paragraph 4) 5.1 ``Early Warning´´ of the Commission 5.2 Risks Jeopardising the Proper Functioning of EMU 5.3 Council Recommendations and Their Publication 6 The Role of the European Parliament in the Surveillance Procedure (Paragraph 5) 7 Regulations for the Multilateral Surveillance Procedure (Paragraph 6) 7.1 Crisis-Driven Reform of the Multilateral Surveillance System Within the SGP Framework Since 2011 7.1.1 Surveillance and Coordination Under the Maastricht Treaty: Regulation (EC) No 1466/97 7.1.2 The ``Six-Pack´´ 7.1.3 The ``Two-Pack´´ 7.1.4 The European Fiscal Compact 7.2 Assessing the Legislative Reforms 7.3 Shifting EMU Reforms Through Union Law Towards International Public Law Instruments List of Cases ECJ/CJEU References Article 122 [Solidarity] (Ex-Article 100 TEC) 1 Introduction: Genesis and Nature 2 Scope of Application of Article 122.1 TFEU 3 Financial Assistance (Article 122.2 TFEU) 3.1 Normative Conditions 3.1.1 ``Natural Disasters or Exceptional Occurrences´´ (Causation) 3.1.2 ``Beyond Its Control´´ 3.1.3 ``In Difficulties or Seriously Threatened with Severe Difficulties´´ and Causality 3.1.4 ``Under Certain Conditions´´ (Conditionality) 3.2 Granting of Financial Assistance 3.2.1 Procedure 3.2.2 Types of Assistance 3.3 Article 125 TFEU (No Bail-Out Clause) in Relation to Temporary and Permanent Assistance Mechanisms 3.4 Specific Agreements and Judicial Protection 4 Relationship to Articles 143 and 222 TFEU 5 Outlook List of Cases ECJ/CJEU GC National Constitutional Courts References Article 123 [Prohibition of Credit Facilities] (ex-Article 101 TEC) 1 General Remarks 2 The Monetary Financing Prohibition: Scope Ratione Personae 3 The Monetary Financing Prohibition: Scope Ratione Materiae 3.1 Forbidden Monetary Instruments 3.1.1 Overdraft Facilities and Other Types of Credit Facilities 3.1.2 Purchases of Public Debt Instruments in Primary Markets 3.2 Allowed Monetary Instruments 3.2.1 Management of Foreign Exchange Reserves 3.2.2 Fiscal Agency Function 3.2.3 IMF Contributions and Medium-Term Financial Assistance for Balances of Payments of the EU Member States Outside the Euro... List of Cases CJEU GC German Federal Constitutional Court References Article 124 [Prohibition of Privileged Access to Financial Institutions] (ex-Article 102 TEC) 1 General Remarks 2 Scope of Prohibition Ratione Personae 3 Scope of Prohibition Ratione Materiae List of Cases References Article 125 [``No-Bail-Out´´ Clause] (ex-Article 103 TEC) 1 The Historical Background to, and Grounds for, Article 125 TFEU 1.1 Making the State Subject to Market Discipline 1.2 The Need for Careful Wording 2 The Scope of the Bail-Out Prohibition 2.1 The Prohibited Commitments 2.2 Authorised Commitments 2.3 Legal Subjects Prohibited to Bail Out 2.3.1 The Union and the Member States 2.3.2 The European Financial Stability Facility and the European Stability Mechanism 2.4 Application Ratione Temporis 3 Authorised Financial Support 3.1 Compatible Financial Operations 3.1.1 The Purchase and Holding of Government Debt Instruments 3.1.2 Loans 3.1.3 Other Operations 3.2 Financial Assistance Under Articles 122.2, 136.3 and 143.2 TFEU 3.3 Restructuring of Public Debt 3.3.1 Public Debt Restructuring 3.3.2 Public Debt Rescheduling 4 Public Debt Pooling in Prospect List of Cases References Article 126 [Prohibition of Excessive Government Deficits] (ex-Article 104 TEC) 1 Overview 1.1 Sound Public Finances of the Member States as Cornerstone Element of the EMU 1.2 The Maastricht Treaty Framework 1.3 Purpose and Structure of Article 126 TFEU 2 The Definition of Government Deficits 2.1 The Two Reference Values 2.2 The Deficit Criterion 2.3 The Debt Criterion 2.4 Assessment of the Reference Values 3 The Excessive Deficit Procedure 3.1 Main Features 3.1.1 Two Sections 3.1.2 Role of the Commission 3.1.3 Role of the Council 3.2 Procedural Steps 3.2.1 Commission Report 3.2.2 Opinion of the Economic and Financial Committee 3.2.3 Opinion of the Commission to the Member State Concerned 3.2.4 The Council´s Decision on the Existence of an Excessive Deficit 3.2.5 Procedural Steps for All Member States 3.2.6 Further Procedural Steps for Euro-Area Member States 4 The Excessive Deficit Protocol 5 Secondary Law 5.1 The Legal Bases in Article 126.14 TFEU 5.1.1 Article 126.14 (2) TFEU 5.1.2 Article 126.14 (3) TFEU 5.2 Regulation 1467/97 5.3 Regulation 1173/2011 5.4 The Budgetary Framework Directive 5.5 The ``Two Pack´´ 6 The Declaration on Article 126 TFEU 7 The Treaty on Stability, Coordination and Governance (TSCG) 8 Concluding Remarks List of Cases References Chapter 2: Monetary Policy Article 127 [The European System of Central Banks] (ex-Article 105 TEC) 1 Overview 2 Objectives of the ESCB 2.1 Normative Function of Objectives 2.2 Price Stability 2.3 Support of the General Economic Policies in the Union 3 Guiding Principles for ESCB Measures 4 Tasks 4.1 Normative Function of Tasks 4.2 Monetary Policy of the Union 4.2.1 Monetary Policy in the Broad Sense vs Monetary Policy in the Narrow Sense 4.2.2 Monetary Policy in the Narrow Sense 4.3 Foreign Exchange Operations 4.4 Official Foreign Reserves of Member States 4.5 Smooth Operation of Payment Systems 4.6 Collection of Statistical Information 4.7 International Cooperation 4.8 Prudential Supervision of Credit Institutions 4.8.1 Advisory Role 4.8.2 Supervisory Role 4.9 Advisory Functions List of Cases References Article 128 [The Euro Currency] (ex-Article 106 TEC) 1 Overview 2 Scope 2.1 Legal Tender 2.2 Banknotes 2.3 Coins List of Cases References Article 129 [Statute of the ESCB] (ex-Article 107 TEC) 1 General Issues 2 Governing Bodies of the ESCB 3 Statute of the ESCB 4 Simplified Amendments to the Statute 5 Adoption of Provisions Referred to in the Statute References Article 130 [Independence of Central Banks] (ex-Article 108 TEC) 1 Overview 2 Principle of Independence 2.1 Reasons for Central Bank Independence 2.2 Typology of Central Bank Independence 2.2.1 Institutional Independence 2.2.2 Functional Independence 2.2.3 Financial Independenceindependencefinancial independence 2.2.4 Personal Independence 2.2.5 Operational Independence 2.2.6 De Facto Independence 3 Institutional Setup 3.1 The ESCB and the EurosystemEurosystem 3.1.1 The European Central Bank 3.1.2 The National Central BanksNCBs 3.1.3 Members of the Decision-Making Bodies of the ECB and NCBsNCBs 3.2 Union Institutions, Bodies, Offices or Agencies, Governments of the Member States and Any Other Body 4 Limits 4.1 Mandate of the ECB and NCBsNCBs 4.2 External Controls 4.3 Principle of Sincere Cooperation 5 Democratic Accountability and Transparency List of Cases References Article 131 [Compatibility of National Legislation] (ex-Article 109 TEC) 1 Overview 2 ``Compatibility´´ Versus ``Harmonisation´´ 3 Scope of Application of the Provision 3.1 Material Scope of Application 3.1.1 Independence 3.1.2 ConfidentialityConfidentiality 3.1.3 Monetary Financing and Privileged Access 3.1.4 Legal Integration into the Eurosystem 3.2 Personal Scope of Application 3.2.1 Member States with a Derogation 3.2.2 Member States with an ``Opt-Out´´ 4 Monitoring and Compliance 4.1 Convergence ReportsConvergence Reports 4.2 Failure to Ensure Compatibility List of Cases References Article 132 [Legal Acts of the ECB] (ex-Article 110 TEC) 1 Basic Provisions Regarding ECB Legal Acts 1.1 Regulations 1.2 Decisions 1.3 Recommendations 1.4 Opinions 1.5 Legal Instruments Outside the Scope of Article 132 TFEU 1.5.1 Guidelines 1.5.2 Instructions 1.5.3 Agreements 1.6 Effects of the Legal Acts 1.7 The Legislating Bodies and Their Competencies 1.8 Relation to Legal Acts of Other Union Institutions 1.9 Duty to State Reasons, Publication, Entry into Force and Enforcement 1.10 Sanctioning Powers 1.11 Remedies and Liability 2 Eurosystem 2.1 Legal Acts on Monetary Policy 2.2 Legal Acts on Banknotes 2.3 Legal Acts on Reserve Requirements 2.4 Legal Acts on Clearing and Payment Systems 2.5 Legal Acts on Statistical Data Collection 2.6 Legal Acts on the Capital of the ECB 3 Banking Supervision 3.1 Scope of the ECB´s Competence to Issue Legal Acts 3.2 Delimitation of Competencies Between the ECB and the EBA 3.3 Specific Requirements for Banking Supervision Regulations 3.3.1 Arrangements 3.3.2 Need for a Regulation 3.4 Regulations, Guidelines and General Instructions to National Competent Authorities 3.5 Instructions to National Competent Authorities 3.6 Supervisory Decisions 3.7 Decision to Directly Supervise Less Significant Credit Institutions 3.8 Decision to Classify a Bank That Fulfils the Significance Criteria as Less Significant 3.9 Competencies and Procedures 3.10 Sanctioning Powers 3.11 Details Concerning Legal Acts in the Context of Prudential Supervision 3.11.1 Framework on Practical Arrangements for Cooperation Within the SSM 3.11.2 Legal Acts Based on the Framework for Close Cooperation 3.11.3 Legal Acts Addressing Supervised Entities Regarding Prudential Tasks 3.11.4 Legal Acts Regarding Less Significant Credit Institutions 3.11.5 Legal Acts Relating to the Institutional Framework of the ECB for the SSM 3.11.6 Instruments for the Effective and Consistent Functioning of the SSM List of Cases ECJ CFI/GC References Article 133 [Legal Acts Concerning the Euro] 1 Historical Background 2 Scope 2.1 Opposing Views in the Academic Literature 2.2 Author´s Position 2.3 Position of the CJEU 2.4 Measures Adopted 3 Procedural Aspects List of Cases References Chapter 3: Institutional Provisions Article 134 [Economic and Financial Committee] (ex-Article 114 TEC) 1 Overview 2 Origin of the Economic and Financial Committee 2.1 The Monetary Committee 2.2 Evolution into Economic and Financial Committee 2.3 The Statutes and Their Amendments 3 Competencies and Tasks Economic and Financial Committeecompetences8 et seq.Economic and Financial Committeetasks8 et seq. 3.1 Overview of the Economic and Financial Situation in the Union andeconomic policy coordinationEconomic and Financial Commit... 3.2 The Preparation of the ECOFIN Council 3.3 Dialogue Between the Council, the Commission and the ECB 3.4 Division of Competence Between the Economic and Financial Committee and the Economic Policy Committee 4 Composition and Internal Organization 4.1 The Members 4.2 The President 4.3 Subcommittees and Working Groups 4.4 The Secretariat 5 Decisional Procedures 6 A Supranational or an Intergovernmental Body? References Article 135 [Initiatives of the Council and the Member States] (ex-Article 115 TEC) 1 Scope of the Article 2 Fields of Application 3 Relation with Article 241 TFEU 4 Other Pre-initiative Procedures Chapter 4: Provisions specific to Member States whose Currency is the Euro Article 136 [Measures Specific to the Member States Whose Currency Is the Euro] 1 Introduction 2 Measures Specific to the Member States of the Euro Area (Paragraphs 1 and 2) 2.1 The Aims and Scope 2.2 The Nature of Union Competence 2.3 Use and Practice 2.4 Procedural Aspects 3 Possibility to Establish a Stability Mechanism (Paragraph 3) List of Cases References Article 137 [Eurogroup] 1 Introduction 2 A Historic Outlook on the Eurogroup 2.1 Birth of the Eurogroup 2.2 Reinforcement of the Eurogroup 2.3 Recognition of the Eurogroup 3 The Eurogroup Composition 3.1 The Eurogroup Itself 3.2 The Eurogroup President 3.3 The Eurogroup Working Group 4 The Eurogroup Functions 4.1 Economic Coordination 4.2 Policy Mix 4.3 Financial Assistance 4.4 Preparatory Role 4.5 Accountability 5 The Eurogroup Legal Accountability 5.1 Transparency 5.2 Legal Responsibility List of Cases CJEU GC References Article 138 [Common Positions] (ex-Article 111.4 TEC) 1 Context and Meaning 2 Scope of Application 2.1 Matters of Particular Interest for Economic and Monetary Union 2.2 Euro Area Member States Only 2.3 International and Financial Institutions and Conferences 3 Procedure 4 Common Positions 4.1 The Concept of ``Common Positions´´ 4.2 The Legal F Preface Structure of the Commentary Contents Contributors Abbreviations Title VI: Transport Article 90 [Common Transport Policy] (ex-Article 70 TEC) 1 The Original and Present Treaty Text 2 The Distinctive Nature of Transport 3 The Derogatory Regime for Transport 4 The Common Policy Technique 5 The Treaty Objectives Pursued: The Subject Matter 5.1 The Creation of the Internal Transport Market 5.2 Other Objectives 6 The Matters Governed by This Title 6.1 Transport, Traffic and Other Business? 6.2 Grey Area 6.3 Transport Mode 6.4 Geographic Scope 7 Shared Competence 8 Subsidiarity and Proportionality 9 The Instrument for Implementation of the Policy 10 Treaty-Making Power 11 Timing List of Cases References Article 91 [Principles] (ex-Article 71 TEC) 1 The Ordinary Legislative Procedure 2 The Distinctive Features of Transport 3 The Substance of the Common Transport Policy 3.1 Traffic Rights 3.1.1 Intra- and Extra-Union Transport 3.1.2 Road Transport 3.1.3 Rail Transport 3.1.4 Inland Navigation 3.2 Safety 3.3 Miscellaneous 4 Consideration for Socio-Economic Impact List of Cases References Article 92 [Standstill Obligation] (ex-Article 72 TEC) Article 93 [State Aid] (ex-Article 73 TEC) 1 The Concept of Aid 1.1 An Advantage 1.2 By a National Public Authority 1.3 To an Undertaking 1.4 Selectively 1.5 Actually or Possibly Distorting Competition 2 The State General Aid Prohibition and Its Exemptions 3 The Transport Specific Exemptions 3.1 Coordination of Transport 3.2 Public Service Obligation List of Cases References Article 94 [Economic Circumstances of Carriers] (ex-Article 74 TEC) 1 Overview 2 Any Measures Taken Within the Framework of the Treaties 3 Transport Rates and Conditions 4 Taking Account of the Economic Circumstances of Carriers 5 The Current Relevance of Article 94 TFEU List of Cases References Article 95 [Prohibition of Discrimination] (ex-Article 75 TEC) 1 Overview 2 Prohibited Discrimination (Paragraph 1) 3 The Right to Adopt Other Measures Under Article 91.1 TFEU (Paragraph 2) 4 Implementing the Prohibition (Paragraph 3) 5 Commission ́s Right to Investigate (Paragraph 4) 6 Current Relevance of Article 95 TFEU References Article 96 [Forbidden State Aid and Exceptions] (ex-Article 76 TEC) 1 Overview 2 The General Prohibition (Paragraph 1) 3 Prohibited, Unless Authorised by the Commission (Paragraph 2) 4 Tariffs Fixed to Meet Competition (Paragraph 3) 5 Practical Relevance of Article 96 TFEU List of Cases References Article 97 [Reasonable Frontier Crossing Charges] (ex-Article 77 TEC) 1 Overview 2 Charges or Dues in Respect of the Crossing of Frontiers (Paragraph 1) 3 Progressive Reduction of Costs and Commission Recommendations (Paragraphs 2 and 3) 4 Current Practical Relevance of Article 97 TFEU References Article 98 [German Unification] (ex-Article 78 TEC) 1 Development of the Provision, Treaty Context 2 The Scope of Article 98 TFEU as Stipulated in Its First Sentence 2.1 Substantive Scope of Application 2.2 Relevance of the Provision 2.3 Procedural Questions 3 The Possibility of Repealing Article 98 TFEU Pursuant to Its Second Sentence List of Cases References Article 99 [Advisory Committee] (ex-Article 79 TEC) 1 Overview 2 The Advisory Committee 3 Current Practical Significance of Article 99 TFEU References Article 100 [Scope of the Title and Legislative Procedure] (ex-Article 80 TEC) 1 Overview and Evolution 2 Provisions of the Transport Title Shall Apply to Road, Rail and Inland Waterway (Paragraph 1) 3 Parliament and Council May Lay Down Appropriate Provisions for Air and Sea Transport (Paragraph 2) 4 Practical Effect of the Article 100.1 and 100.2 TFEU Split 5 Article 100 TFEU and the General Rules of the Treaty 6 Issues in Transport and European Union Legislation 6.1 Air Transport 6.2 Sea Transport List of Cases References Title VII: Common Rules on Competition, Taxation and Approximation of Laws Chapter 1 Rules on Competition Section 1 Rules Appl... Article 101 [Prohibition of Agreements That Restrict Competition] (ex-Article 81 TEC) 1 Introduction 2 An Overview of Article 101 TFEU Within the Treaty Framework 3 Prohibited Action Incompatible with the Internal Market (Article 101.1 TFEU) 3.1 Agreements, Decisions and Concerted Practices 3.2 Undertakings 3.3 Object or Effect of Restricting Competition 3.3.1 Establishing Effects on Competition: Market Definition and the Counterfactual Analysis Market Definition Market Structure, Conduct and Performance The Effects Category and Appreciability Effects and Ancillary Restraints 3.3.2 The Object Category 3.4 Effect on Trade Between Member States 4 Justifications (Article 101.3 TFEU) 5 Automatic Nullity (Article 101.2 TFEU) and the Enforcement of Article 101 TFEU List of Cases References Article 102 [Prohibition of Abuses of a Dominant Position] (ex-Article 82 TEC) 1 Introduction 2 Treaty Framework 3 Dominance 3.1 Market Shares 3.2 Other Factors 3.2.1 Legal Factors 3.2.2 Factors Relating to the Undertaking 3.2.3 Market Factors 3.2.4 Independence from Customers and Consumers: Countervailing Powers 3.3 Collective Dominance 4 Special Responsibility 5 Abuse 5.1 General Definition 5.2 The Test and Required Evidence for Proving Abuse 5.3 Exploitative Abuses 5.3.1 Unfair Excessive Prices 5.3.2 Other Unfair Trading Conditions 5.4 Exclusionary Abuses 5.4.1 Price Discrimination 5.4.2 Predatory Pricing 5.4.3 Margin Squeezes 5.4.4 Refusals to Deal and Essential Facilities 5.4.5 Tying and Bundling 5.4.6 Exclusive Dealing 5.4.7 Rebates 5.4.8 Other Forms of Abuse List of Cases References Article 103 [Adoption of Secondary Enforcement Measures for Articles 101 and 102 TFEU] (ex-Article 83 TEC) 1 Overview 2 Secondary Law Measures Under Article 103 TFEU 3 General Enforcement Regime 3.1 General Enforcement RegulationsGeneral Enforcement Regulations 3.2 Block Exemption Regulations 4 Special Enforcement Regimes List of Cases References Article 104 [Transitional Enforcement Arrangements] (ex-Article 84 TEC) 1 Overview 2 Transitional Arrangements Under Article 104 TFEU 2.1 ``Authorities ́ ́ 2.2 The Application of National Law and Articles 101 and 102 TFEU 3 The Interaction Between Articles 104 and Article 105 TFEU List of Cases References Article 105 [Role of the Commission] (ex-Article 85 TEC) 1 Overview 2 Transitional Enforcement Arrangements Under Article 105 TFEU 3 The Current Scope of Application of Paragraphs 1 and 2 4 Legislating Powers Under Paragraph 3 List of Cases References Article 106 [Public and Privileged Undertakings and Services of General Economic Interest] (ex-Article 86 TEC) 1 Overview 1.1 Introduction 1.2 The Broader Context of Article 106 TFEU 1.3 The Role of Article 106 TFEU 2 Member State Obligations Under Paragraph 1 2.1 The Broader Context 2.2 Elements 2.2.1 Public Undertakingsundertakings 2.2.2 Undertakings Granted Special or Exclusive Rights 2.2.3 Measures Contrary to the Treaty Rules 2.3 Enforcement 3 Exceptions Under Paragraph 2 3.1 The Broader Context 3.2 Elements 3.2.1 Beneficiaries Undertakings Entrusted with the Provision of Services of General Economic Interest Revenue-Producing Monopolies 3.2.2 Obstruction of the Performance of Services of General Economic Interest Tasks 3.2.3 Development of Trade Contrary to Union Interest 3.3 Services of General Economic Interest and State Aid 3.4 Enforcement 4 Commission ́s Law-Making Competence Under Paragraph 3 4.1 Directives 4.2 Decisions List of Cases References Section 2: Aids Granted by States Article 107 [Prohibition of State Aid] (ex-Article 87 TEC) 1 The Concept of State Aid 2 The Involvement of State Resources 2.1 Transfer of State Resources 2.2 Through the State in Any Form Whatsoever: The Criterion of Imputability to the State 3 Advantage 3.1 The Concept of an Economic Advantage 3.2 The Market Economy Operator Test: The Standard Test for Assessing an Advantage 3.3 Market Economy Investor Test: The MEO Test Applied to Investments 3.4 The Private Creditor Test: The MEO Test Applied to Obtain Payment of Debtors 3.5 The Private Vendor Test: The MEO Test Applied to the Vending of Goods 3.6 The Altmark Test: Specific Test to Assess Whether a Measure Constitutes Compensation for a Public Service 4 Selectivity 5 Effect on Inter-State Trade 6 Distortion of Competition 7 Exemptions to the State Aid Prohibition of Article 107.1 TFEU 7.1 De jure Exemptions: Article 107.2 TFEU 7.2 Discretionary Exemptions 7.2.1 Exemptions Under Article 107.3 TFEU 7.2.2 Exemption Under Article 106.2 TFEU for Services of General Economic InterestServices of General Economic InterestState a... 7.2.3 Exemption Under Article 93 TFEU for the Coordination of Transport List of Cases References Article 108 [Enforcement] (ex-Article 88 TEC) 1 The Procedural Framework for State Aid Control 2 Existing Aid Versus New Aid 2.1 Control of Existing Aid Under Article 108.1 TFEU and Article 108.2 TFEU 2.2 Control of New Aid: Notification and Investigation 2.3 Deviations to the Notification Duty of Article 108.3 TFEU 2.4 Recovery of Unlawful Aid 3 Legal Remedies 3.1 The Application of Article 108.3 TFEU Before the National Courts 3.2 Review of State Aid by the Union Courts List of Cases References Article 109 TFEU [Implementation] (ex-Article 89 TEC) 1 Functioning of Article 109 TFEU List of Cases References Chapter 2: Tax Provisions Article 110 [Discriminatory and Protective Internal Taxation] (ex-Article 90 TEC) 1 Overview: Origin and Rationale 2 Common Parts of the Provision 2.1 Imposed by Member States 2.2 Protected Products 2.3 Products of Other States 2.3.1 Products from Third Countries 2.3.2 Products for ExportProducts for export13 2.3.3 Domestic Products 2.4 Any Internal Taxation of Any Kind 2.4.1 Internal Tax or Customs Duty 2.4.2 Internal Tax 3 Discriminatory Internal Taxation of Similar Productssimilar products21 (Paragraph 1) 3.1 Similar Products 3.2 Direct DiscriminationDirect discrimination28 3.3 Indirect DiscriminationIndirect discrimination33 3.4 Consequences of Discriminatory Internal Taxation of Similar Products 4 Discriminatory Internal Taxation of Other Products (Paragraph 2) 4.1 Competing Products 4.1.1 Other Products or Similar Productssimilar products42 4.1.2 Competing ProductsCompeting products42 4.2 Indirect Protection 4.2.1 Differences in the Tax System 4.2.2 Market Effect 4.3 Consequences of Protective Internal Taxation of Other Products List of Cases References Article 111 [Tax Repayments for Exported Products] (ex-Article 91 TEC) 1 Overview: Origin and Rationale 2 Restrictions on Repayments List of Cases References Article 112 [Approval of Reimbursements] (ex-Article 92 TEC) References Article 113 [Harmonisation of Indirect Taxes] (ex-Article 93 TEC) 1 Overview: Origin and Rationale 2 Basis for Harmonisation: Internal Market 2.1 Establishment and Functioning of the Internal Market 2.2 Avoiding Distortion of Competition 3 Relationship to Other Harmonisation Provisions 3.1 Ordinary Legislative Procedure in Articles 114 and 192 TFEU 3.2 Direct and Indirect Taxes 3.3 Ordinary Legislative Procedure in Article 116 TFEU 4 Harmonisation of Indirect Taxes 4.1 Turnover TaxesTurnover Taxes22 4.2 Excise DutiesExcise Duties29 4.3 Other Forms of Indirect Taxation List of Cases References Chapter 3: Approximation of Laws Article 114 [Harmonisation in the Internal Market] (ex-Article 95 TEC) 1 Genesis, Systematic Reading and Rationale 1.1 Genesis 1.2 Systematic Reading 1.3 Harmonisation vs. Mutual Recognition 2 Conditions for the Approximation of Laws 2.1 Terminology 2.2 Connection to the Internal Market 2.3 Achieving the Objectives Set Out in Article 26 TFEU 2.4 Provisions Laid Down by Domestic Law, Regulation or Administrative Action 2.5 Ensuring a High Level of Protection 2.6 Areas Exempted from Harmonisation 2.7 Procedure and Instruments 3 National Opt-Outs and Exceptions 3.1 Maintaining National Provisions 3.2 Introducing New National Provisions 3.3 Assessment by the European Commission 4 Simplified Infringement Procedure Before the CJEU 5 Safeguard Clauses for the Adoption of Provisional Measures by a Member State 6 Recent Practice of Internal Market Harmonisation List of Cases ECJ CFI References Article 115 [Harmonising Laws Directly Affecting the Internal Market] (ex-Article 94 TEC) 1 Overview and Genesis 2 Scope of Application 3 Form and Procedure 4 Derogations and Safeguard Clauses List of Cases ECJ References Article 116 [Distortion of Competition] (ex-Article 96 TEC) 1 Article 116 TFEU in the Global Context of the Law Approximation Policy 2 Elimination of Distortion: Two Possible Phases of the Union ́s Response 2.1 Phase One: Consultation, Leading to an Agreement 2.1.1 Role of the Commission 2.1.2 Three Conditions for the Union ́s Action Nature of National Provisions Existence of an Actual Distortion Need for the Elimination of a Distortion 2.1.3 Procedure of Consultation 2.1.4 Agreement Eliminating the Distortion 2.2 Phase Two: Legislative Action of the Union 2.2.1 Procedure for the Adoption of the ``Necessary Directives ́ ́ 2.2.2 Why Have the Directives Provided for in Article 116 TFEU Still Not Been ``Necessary ́ ́? 3 Residual Mechanism of ``Other Appropriate Measures ́ ́ 4 Partial Derogation of Article 116 TFEU Introduced by Article 117.2 TFEU List of Cases ECJ CFI/GC References Article 117 [National Measures] (ex-Article 97 TEC) 1 Article 117 TFEU in the Global Context of the Law Approximation Policy 1.1 Indirect Approximation of Article 117 TFEU 1.2 Interdependence of Articles 117 and 116 TFEU 2 Distortion of Competition Caused by the Adoption or Amendment of a National Provision: Two Possible Outcomes 2.1 Procedure Aiming to Avoid Distortion 2.1.1 Four Conditions for the Union ́s Action 2.1.2 Procedure of Consultation 2.1.3 Recommendation Aiming to Avoid Distortion 2.2 Rules Applicable in the Case of the Emergence of Distortion 2.2.1 Non-compliance with the Recommendation of the Commission 2.2.2 Rules Applicable to the ``Other Member States ́ ́ 2.2.3 Rules Applicable in the Case of the Limited Effect of Distortion List of Cases References Article 118 [European Intellectual Property Rights] 1 Genesis and Justification 1.1 Intellectual Property in the EU Before the Lisbon Treaty 1.1.1 Intellectual Property and the Treaties: No Reserved Domain of Member States 1.1.2 ``Acquis Communautaire ́ ́ in Intellectual Property 1.2 Rationale for Adopting Article 118 TFEU 2 Nature of the Competence 2.1 Shared Competence of the European Union 2.2 A Specific Competence to Be Articulated with Other EU Competences 2.2.1 The Residual Competence of Article 352 TFEU 2.2.2 The ``General ́ ́ Competences to Harmonise of Articles 114 and 115 TFEU 3 Scope of Competence 3.1 The Nature of the ``Measures ́ ́ 3.2 Creation of European IP Rights to Provide Uniform Protection Throughout the Union 3.3 Centralised Union-Wide Authorisation, Coordination and Supervision Arrangements 3.4 Regulation to Establish Language Arrangements for European IP Rights 3.5 Intellectual Property 3.6 Subsidiarity and Proportionality 4 Procedure 4.1 Ordinary Legislative Procedure Under Article 118 (1) TFEU 4.2 Special Legislative Procedure Under Article 118 (2) TFEU List of Cases References Title VIII : Economic and Monetary Policy Article 119 [Principles of Economic and Monetary Policy] (ex-Article 4 TEC) 1 Genesis, Context and Systematic Position of Article 119 TFEU 2 Some Remarks on the Beginnings of EMU and Its Openness for a Multi-Speed Europe 2.1 Three Stages in the History of EMU 2.2 Differentiated Integration Within the EMU 3 Developing an Imperfect Parallelism Between Monetary Union and Convergence of National Economic Policies (Paragraphs 1 and 2) 3.1 Two-Pillar Structure and Resulting Reforms of EMU 3.2 A Closely Coordinated Economic Policy 3.3 Monetary Policy and Exchange-Rate Policy 3.3.1 Price Stability 3.3.2 The Relationship Between Price Stability and Independence of the ESCB 3.4 Secondary Objectives of the ESCB Mandate 3.4.1 The ESCB ́s Secondary Mandate to Support the EU General Economic Policies 3.4.2 Contribution to Financial Stability as an Objective Related to Price Stability 4 A Principle-Oriented Pursuit of the EMU Objectives (Paragraphs 1 to 3) 4.1 Principle of an Open Market Economy with Free Competition (Paragraphs 1 and 2) 4.2 Guiding Principles for Economic and Monetary Policy Activities in the EMU (Paragraph 3) List of Cases References Chapter 1 : Economic Policy Article 120 [Conduction of Economic Policies] (ex-Article 98 TEC) 1 Overview 1.1 Genesis and Ratio 1.2 National Economic Policies as the Subject of Coordination 1.3 Embedding Article 120 TFEU in the Provisions on EMU 1.4 Coordination as a Substitute for a Lack of Union Power 2 Constituent Elements of Article 120 TFEU 2.1 Economic Policy 2.1.1 Meaning and Relation to Other Policies 2.1.2 Distinguishing Economic Policy from Monetary Policy 2.1.3 Scope of Application 2.2 Fundamental Objectives 2.2.1 Reference to Article 3 TEU 2.2.2 Principle of an Open Market Economy with Free Competition 2.2.3 Favouring an Efficient Allocation of Resources 2.3 In Compliance with the Principles Set Out in Article 119 TFEU 2.4 Broad Guidelines Referred to in Article 121.2 TFEU 3 Legal Effects 4 Territorial Scope of Application List of Cases References Article 121 [Coordination of Economic Policies] (ex-Article 99 TEC) 1 Aim, Scope and Context 2 Coordination of Economic Policies (Paragraph 1) 2.1 Obligation of the Member States 2.2 Matter of Common Concern 3 Coordination Through Broad Economic Policy Guidelines (Paragraph 2) 3.1 The Procedure of the Council Recommendation ́s Adoption 3.1.1 Phase I: A Recommendation Submitted by the Commission and Council Draft for Broad Guidelines 3.1.2 Phase II: Conclusion of the European Council 3.1.3 Phase III: Council Recommendation as a Legal Act Without a Legally Binding Effect 3.2 Addressees of the Broad Guidelines 4 Multilateral Surveillance (Paragraphs 3 and 4) 4.1 Purpose 4.2 Monitoring and Assessment Procedure (Paragraph 3) 4.2.1 Consequences of the Broad Scope of the Economic Policy Guidelines 4.2.2 Reports of the Member States to the Commission 4.2.3 Reactions of the Commission and Council 5 Sanctions (Paragraph 4) 5.1 ``Early Warning ́ ́ of the Commission 5.2 Risks Jeopardising the Proper Functioning of EMU 5.3 Council Recommendations and Their Publication 6 The Role of the European Parliament in the Surveillance Procedure (Paragraph 5) 7 Regulations for the Multilateral Surveillance Procedure (Paragraph 6) 7.1 Crisis-Driven Reform of the Multilateral Surveillance System Within the SGP Framework Since 2011 7.1.1 Surveillance and Coordination Under the Maastricht Treaty: Regulation (EC) No 1466/97 7.1.2 The ``Six-Pack ́ ́ 7.1.3 The ``Two-Pack ́ ́ 7.1.4 The European Fiscal Compact 7.2 Assessing the Legislative Reforms 7.3 Shifting EMU Reforms Through Union Law Towards International Public Law Instruments List of Cases ECJ/CJEU References Article 122 [Solidarity] (Ex-Article 100 TEC) 1 Introduction: Genesis and Nature 2 Scope of Application of Article 122.1 TFEU 3 Financial Assistance (Article 122.2 TFEU) 3.1 Normative Conditions 3.1.1 ``Natural Disasters or Exceptional Occurrences ́ ́ (Causation) 3.1.2 ``Beyond Its Control ́ ́ 3.1.3 ``In Difficulties or Seriously Threatened with Severe Difficulties ́ ́ and Causality 3.1.4 ``Under Certain Conditions ́ ́ (Conditionality) 3.2 Granting of Financial Assistance 3.2.1 Procedure 3.2.2 Types of Assistance 3.3 Article 125 TFEU (No Bail-Out Clause) in Relation to Temporary and Permanent Assistance Mechanisms 3.4 Specific Agreements and Judicial Protection 4 Relationship to Articles 143 and 222 TFEU 5 Outlook List of Cases ECJ/CJEU GC National Constitutional Courts References Article 123 [Prohibition of Credit Facilities] (ex-Article 101 TEC) 1 General Remarks 2 The Monetary Financing Prohibition: Scope Ratione Personae 3 The Monetary Financing Prohibition: Scope Ratione Materiae 3.1 Forbidden Monetary Instruments 3.1.1 Overdraft Facilities and Other Types of Credit Facilities 3.1.2 Purchases of Public Debt Instruments in Primary Markets 3.2 Allowed Monetary Instruments 3.2.1 Management of Foreign Exchange Reserves 3.2.2 Fiscal Agency Function 3.2.3 IMF Contributions and Medium-Term Financial Assistance for Balances of Payments of the EU Member States Outside the Euro... List of Cases CJEU GC German Federal Constitutional Court References Article 124 [Prohibition of Privileged Access to Financial Institutions] (ex-Article 102 TEC) 1 General Remarks 2 Scope of Prohibition Ratione Personae 3 Scope of Prohibition Ratione Materiae List of Cases References Article 125 [``No-Bail-Out ́ ́ Clause] (ex-Article 103 TEC) 1 The Historical Background to, and Grounds for, Article 125 TFEU 1.1 Making the State Subject to Market Discipline 1.2 The Need for Careful Wording 2 The Scope of the Bail-Out Prohibition 2.1 The Prohibited Commitments 2.2 Authorised Commitments 2.3 Legal Subjects Prohibited to Bail Out 2.3.1 The Union and the Member States 2.3.2 The European Financial Stability Facility and the European Stability Mechanism 2.4 Application Ratione Temporis 3 Authorised Financial Support 3.1 Compatible Financial Operations 3.1.1 The Purchase and Holding of Government Debt Instruments 3.1.2 Loans 3.1.3 Other Operations 3.2 Financial Assistance Under Articles 122.2, 136.3 and 143.2 TFEU 3.3 Restructuring of Public Debt 3.3.1 Public Debt Restructuring 3.3.2 Public Debt Rescheduling 4 Public Debt Pooling in Prospect List of Cases References Article 126 [Prohibition of Excessive Government Deficits] (ex-Article 104 TEC) 1 Overview 1.1 Sound Public Finances of the Member States as Cornerstone Element of the EMU 1.2 The Maastricht Treaty Framework 1.3 Purpose and Structure of Article 126 TFEU 2 The Definition of Government Deficits 2.1 The Two Reference Values 2.2 The Deficit Criterion 2.3 The Debt Criterion 2.4 Assessment of the Reference Values 3 The Excessive Deficit Procedure 3.1 Main Features 3.1.1 Two Sections 3.1.2 Role of the Commission 3.1.3 Role of the Council 3.2 Procedural Steps 3.2.1 Commission Report 3.2.2 Opinion of the Economic and Financial Committee 3.2.3 Opinion of the Commission to the Member State Concerned 3.2.4 The Council ́s Decision on the Existence of an Excessive Deficit 3.2.5 Procedural Steps for All Member States 3.2.6 Further Procedural Steps for Euro-Area Member States 4 The Excessive Deficit Protocol 5 Secondary Law 5.1 The Legal Bases in Article 126.14 TFEU 5.1.1 Article 126.14 (2) TFEU 5.1.2 Article 126.14 (3) TFEU 5.2 Regulation 1467/97 5.3 Regulation 1173/2011 5.4 The Budgetary Framework Directive 5.5 The ``Two Pack ́ ́ 6 The Declaration on Article 126 TFEU 7 The Treaty on Stability, Coordination and Governance (TSCG) 8 Concluding Remarks List of Cases References Chapter 2: Monetary Policy Article 127 [The European System of Central Banks] (ex-Article 105 TEC) 1 Overview 2 Objectives of the ESCB 2.1 Normative Function of Objectives 2.2 Price Stability 2.3 Support of the General Economic Policies in the Union 3 Guiding Principles for ESCB Measures 4 Tasks 4.1 Normative Function of Tasks 4.2 Monetary Policy of the Union 4.2.1 Monetary Policy in the Broad Sense vs Monetary Policy in the Narrow Sense 4.2.2 Monetary Policy in the Narrow Sense 4.3 Foreign Exchange Operations 4.4 Official Foreign Reserves of Member States 4.5 Smooth Operation of Payment Systems 4.6 Collection of Statistical Information 4.7 International Cooperation 4.8 Prudential Supervision of Credit Institutions 4.8.1 Advisory Role 4.8.2 Supervisory Role 4.9 Advisory Functions List of Cases References Article 128 [The Euro Currency] (ex-Article 106 TEC) 1 Overview 2 Scope 2.1 Legal Tender 2.2 Banknotes 2.3 Coins List of Cases References Article 129 [Statute of the ESCB] (ex-Article 107 TEC) 1 General Issues 2 Governing Bodies of the ESCB 3 Statute of the ESCB 4 Simplified Amendments to the Statute 5 Adoption of Provisions Referred to in the Statute References Article 130 [Independence of Central Banks] (ex-Article 108 TEC) 1 Overview 2 Principle of Independence 2.1 Reasons for Central Bank Independence 2.2 Typology of Central Bank Independence 2.2.1 Institutional Independence 2.2.2 Functional Independence 2.2.3 Financial Independenceindependencefinancial independence 2.2.4 Personal Independence 2.2.5 Operational Independence 2.2.6 De Facto Independence 3 Institutional Setup 3.1 The ESCB and the EurosystemEurosystem 3.1.1 The European Central Bank 3.1.2 The National Central BanksNCBs 3.1.3 Members of the Decision-Making Bodies of the ECB and NCBsNCBs 3.2 Union Institutions, Bodies, Offices or Agencies, Governments of the Member States and Any Other Body 4 Limits 4.1 Mandate of the ECB and NCBsNCBs 4.2 External Controls 4.3 Principle of Sincere Cooperation 5 Democratic Accountability and Transparency List of Cases References Article 131 [Compatibility of National Legislation] (ex-Article 109 TEC) 1 Overview 2 ``Compatibility ́ ́ Versus ``Harmonisation ́ ́ 3 Scope of Application of the Provision 3.1 Material Scope of Application 3.1.1 Independence 3.1.2 ConfidentialityConfidentiality 3.1.3 Monetary Financing and Privileged Access 3.1.4 Legal Integration into the Eurosystem 3.2 Personal Scope of Application 3.2.1 Member States with a Derogation 3.2.2 Member States with an ``Opt-Out ́ ́ 4 Monitoring and Compliance 4.1 Convergence ReportsConvergence Reports 4.2 Failure to Ensure Compatibility List of Cases References Article 132 [Legal Acts of the ECB] (ex-Article 110 TEC) 1 Basic Provisions Regarding ECB Legal Acts 1.1 Regulations 1.2 Decisions 1.3 Recommendations 1.4 Opinions 1.5 Legal Instruments Outside the Scope of Article 132 TFEU 1.5.1 Guidelines 1.5.2 Instructions 1.5.3 Agreements 1.6 Effects of the Legal Acts 1.7 The Legislating Bodies and Their Competencies 1.8 Relation to Legal Acts of Other Union Institutions 1.9 Duty to State Reasons, Publication, Entry into Force and Enforcement 1.10 Sanctioning Powers 1.11 Remedies and Liability 2 Eurosystem 2.1 Legal Acts on Monetary Policy 2.2 Legal Acts on Banknotes 2.3 Legal Acts on Reserve Requirements 2.4 Legal Acts on Clearing and Payment Systems 2.5 Legal Acts on Statistical Data Collection 2.6 Legal Acts on the Capital of the ECB 3 Banking Supervision 3.1 Scope of the ECB ́s Competence to Issue Legal Acts 3.2 Delimitation of Competencies Between the ECB and the EBA 3.3 Specific Requirements for Banking Supervision Regulations 3.3.1 Arrangements 3.3.2 Need for a Regulation 3.4 Regulations, Guidelines and General Instructions to National Competent Authorities 3.5 Instructions to National Competent Authorities 3.6 Supervisory Decisions 3.7 Decision to Directly Supervise Less Significant Credit Institutions 3.8 Decision to Classify a Bank That Fulfils the Significance Criteria as Less Significant 3.9 Competencies and Procedures 3.10 Sanctioning Powers 3.11 Details Concerning Legal Acts in the Context of Prudential Supervision 3.11.1 Framework on Practical Arrangements for Cooperation Within the SSM 3.11.2 Legal Acts Based on the Framework for Close Cooperation 3.11.3 Legal Acts Addressing Supervised Entities Regarding Prudential Tasks 3.11.4 Legal Acts Regarding Less Significant Credit Institutions 3.11.5 Legal Acts Relating to the Institutional Framework of the ECB for the SSM 3.11.6 Instruments for the Effective and Consistent Functioning of the SSM List of Cases ECJ CFI/GC References Article 133 [Legal Acts Concerning the Euro] 1 Historical Background 2 Scope 2.1 Opposing Views in the Academic Literature 2.2 Author ́s Position 2.3 Position of the CJEU 2.4 Measures Adopted 3 Procedural Aspects List of Cases References Chapter 3: Institutional Provisions Article 134 [Economic and Financial Committee] (ex-Article 114 TEC) 1 Overview 2 Origin of the Economic and Financial Committee 2.1 The Monetary Committee 2.2 Evolution into Economic and Financial Committee 2.3 The Statutes and Their Amendments 3 Competencies and Tasks Economic and Financial Committeecompetences8 et seq.Economic and Financial Committeetasks8 et seq. 3.1 Overview of the Economic and Financial Situation in the Union andeconomic policy coordinationEconomic and Financial Commit... 3.2 The Preparation of the ECOFIN Council 3.3 Dialogue Between the Council, the Commission and the ECB 3.4 Division of Competence Between the Economic and Financial Committee and the Economic Policy Committee 4 Composition and Internal Organization 4.1 The Members 4.2 The President 4.3 Subcommittees and Working Groups 4.4 The Secretariat 5 Decisional Procedures 6 A Supranational or an Intergovernmental Body? References Article 135 [Initiatives of the Council and the Member States] (ex-Article 115 TEC) 1 Scope of the Article 2 Fields of Application 3 Relation with Article 241 TFEU 4 Other Pre-initiative Procedures Chapter 4: Provisions specific to Member States whose Currency is the Euro Article 136 [Measures Specific to the Member States Whose Currency Is the Euro] 1 Introduction 2 Measures Specific to the Member States of the Euro Area (Paragraphs 1 and 2) 2.1 The Aims and Scope 2.2 The Nature of Union Competence 2.3 Use and Practice 2.4 Procedural Aspects 3 Possibility to Establish a Stability Mechanism (Paragraph 3) List of Cases References Article 137 [Eurogroup] 1 Introduction 2 A Historic Outlook on the Eurogroup 2.1 Birth of the Eurogroup 2.2 Reinforcement of the Eurogroup 2.3 Recognition of the Eurogroup 3 The Eurogroup Composition 3.1 The Eurogroup Itself 3.2 The Eurogroup President 3.3 The Eurogroup Working Group 4 The Eurogroup Functions 4.1 Economic Coordination 4.2 Policy Mix 4.3 Financial Assistance 4.4 Preparatory Role 4.5 Accountability 5 The Eurogroup Legal Accountability 5.1 Transparency 5.2 Legal Responsibility List of Cases CJEU GC References Article 138 [Common Positions] (ex-Article 111.4 TEC) 1 Context and Meaning 2 Scope of Application 2.1 Matters of Particular Interest for Economic and Monetary Union 2.2 Euro Area Member States Only 2.3 International and Financial Institutions and Conferences 3 Procedure 4 Common Positions 4.1 T