internal market Flashcards
positive integration
approximation of laws
negative integration
removing barriers to trade
key principles of the free movement rules
- non-discrimination
- market access
- mutual recognition and country of origin principle
free movement addressees
- MS
- EU legislator and institutions
- not capable of creating obligations for individuals!
country of origin principle
goods are allowed to circulate in the same form, shape and composition that is allowed in the country of origin
framework for solving cases (!)
- no special rules
- scope
- addressees
- discrimination/restriction?
- derogations
- justification
1) no special rules
Art 110 TFEU - fiscal barriers to trade
Art 38 TFEU - agricultural products
Art 346 TFEU - trade in arms
Fully harmonized secondary legislation
2) scope
- material: what is a good, worker, service, capital, payment?
- personal: who has rights under the fundamental freedom?
- territorial: cross-border situation
- temporal: if a measure is adopted by the MS before accession to the EU
what is a good?
art 28 TFEU
products which can be valued in money and are capable of being the subject of a commercial transaction
what is a worker?
art 45 TFEU
a person performing economic activity under the direction of another person for remuneration
what is an establishment?
art 49 TFEU
a person performs tasks in return for remuneration NOT under the direction of another person on a stable and continuous basis (as self-employed person)
what is a service?
art 56 TFEU
a person performs a task NOT under the direction of another person and WITHOUT a permanent establishment
what is a capital?
art 63(1) TFEU
The transfer of value in the form of real and monetary capital, which regularly represents an investment at the same time:
- real capital (company shares, real estate)
- monetary capital (loans, credits, securities)
- capital transactions of personal nature (gifts, inheritance)
what is a payment?
art 63 (2) TFEU
a flow of funds related to an agreed underlying transaction
who has rights under a fundamental freedom?
a) Union citizen (family members and non-EU citizen with comparable rights)
- free movement of workers
- freedom of establishment
- freedom to provide and receive services
b) regardless of nationality
- free movement of persons
- free movement of capital and payments
principle of loyal cooperation
Art 4(3) TEU
the Union and the Member States are required to implement any necessary measures to guarantee compliance with the duties stemming from the Treaties
= accession goes hand in hand with acceptance of aquis communitaire
3) addressees
who has obligations?
a) primary addressees = MS!
- host state
- home state - special provision for free movement of goods (Art 35 TFEU) but similar for other freedoms
b) non-state actors
general rule = not covered
BUT EXCEPTION for all market freedoms
(1) Non-state actors exercising regulatory competence
conferred by public authorities
(2) Non-state actors attributable to the state, e.g. financed, created, staffed
(3) Failure to protect the internal market rights against
private acts (Spanish Strawberries)
provisions where professional bodies and other collective
organizations are addressed:
- free movement of workers
- freedom of establishment
- freedom to provide and receive services
are fundamental freedoms applied between private parties?
only in context of free movement of workers
- Angonese
4) direct discrimination
a national rule directly contains less favourable treatment of nationals from other MS
4) indirect discrimination
Formally, a provision is not linked to the origin stemming from another member state,
but to a criterion which, as a result, places domestic goods, persons, etc. in a better position than those from other member states.
4) restriction
National rules that impede or effectively pose an obstacle to exercise freedom of movement, so that it becomes less attractive. There’s no element of discrimination, all nationals are affected, but it has a negative effect on market opportunities of foreigners.
dassonville formula
all measures enacted by MS which are capable of hindering, directly or indirectly, actually or potentially, intra-Union trade are to be considered as measures
having an effect equivalent to quantitative restrictions.
keck-exemptions
narrows the scope of dassonville (as long as the principle of mutual recognition is not violated and a non-discriminatory measure exists = dassonville is too comprehensive)
keck - free movement of goods
a) product requirement (packaging, composition) - always a restriction
b) selling arrangements (who, where, how) - not a restriction if:
- principle of universality: indistinctly applicable measure
- principle of neutrality: affects in the same way the marketing of domestic products and those from other MS
keck - market access
a) access to an activity - always a restriction (affects market access)
b) exercise of an activity (who, where, how) - not a restriction if:
- principle of universality: indistinctly applicable measure
- principle of neutrality: affects in the same way the marketing of domestic products and those from other MS
5) derogations
“do not apply”
to certain public service positions that require the worker to exercise imperium and special allegiance to the state
free movement of persons (public service derogations): Arts 45(4), 51, 62 TFEU = special allegiance to the state
6) justification
a) grounds
I treaty-based
II overriding grounds in the public interest (Cassis de Dijon)
b) proportionality test
c) fundamental rights
treaty-based justification
e.g. public policy, public security
* Free movement of goods, Art. 36 TFEU
* Free movement of workers, Art. 45(3) TFEU
* Freedom of establishment, Art. 52 TFEU
* Freedom to provide and receive services, Art.
62 TFEU
* Free movement of capital and payments, Art.
65 TFEU
Cassis de Dijon - overriding grounds in the public interest
1) non directly discriminatory
2) no purely economic measure
3) non-exhaustive list of reasons of mandatory requirements (e.g. protection of the environment, of consumers, of fundamental rights)
proportionality requirements
a) suitability: measure must be suitable to achieve the goal
b) necessity: measure must not go beyond what is necessary to achieve the goal
c) appropriateness: no excessive impact on the market freedoms, balancing competing interests (Solgar vitamins)
fundamental rights
Any justification must be appraised in light
of EU fundamental rights
– Balancing exercise between fundamental
rights and the mandatory requirement
country of origin principle
goods are allowed to circulate throughout the internal market in the same form, shape and composition as is lawful in the country of origin
