Structure of Free Movement Flashcards
What is the basis of the internal market (apart from WW2)?
Ricardo’s theory of comparative advantage - counties should not all try and make the same things. A bigger market makes everyone better off.
Ordo-liberal theory - strong economic rights stop states from controlling individuals.
What needed to be gotten rid of to achieve a common market?
Customs duties and quotas needed to be removed.
Harmonisation is required to allow the free movement of factors of production.
What is the social dimension of a free market?
Free movement breaks down barriers between peoples.
It allows for the aspirations of people to be reached.
What are the options for creating an internal market?
Harmonisation of regulation.
Host state rule.
Home state rule.
Explain harmonisation and the difficulties with it.
Article 114 TFEU enables the EU to pass legislation on the internal market.
However the EU does not have competency in a number of areas I.e. Snell - tobacco regulations - as it is not fully democratic.
Joint-decision traps - the EU cannot change rules responsively.
Explain the host state rule and its problems.
‘When in Rome rule’ - designed to prevent protectionism.
It is respectful of national differences and creates competition based on the quality of the product.
However it requires companies to change their production processes and the market is still segmented.
Explain the home state rule.
Mutual recognition (Cassis) - creates an internal market truly without borders.
The home state rule creates a constitutional right to trade.
It facilitates choice in the marketplace.
As long as you follow the rules of one country, you can export to any other country.
What is the history of the models?
Initially harmonisation was the prevalent approach.
Free movement of goods follows the home state rule.
Free movement of workers and citizens follows the host state rule.
What is problematic with mutual recognition?
Regulatory displacement - the institutions responsible for making the rules of the market no longer make the rules.
Regulatory vacuum - when rules are struck down they cannot be re-regulated.
Regulatory competition - there is an incentive to move to the country with the lowest levels of regulation and produce products which can still be sent everywhere - Habermas.
What is the legal process for finding a violation of free movement?
- Does the rule violate free movement?
- Is there a justification for the violation?
- Is the response proportionate?
Is the ECJ lenient on justifications?
Yes, following Article 36 TFEU and the mandatory requirements from Cassis.
Only purely economic arguments are not good enough.
Scotch Whisky - protecting the health of citizens is an important justification.
What is the principle of proportionality?
A means of balancing free movement and public policy.
A national measure must be the least restrictive way of achieving a goal - Rosengren - this is the most used approach.
This type of test looks like the ECJ rewriting national law.
What are the three applications of proportionality?
- Rosengren - least restrictive measure - sounds like the ECJ rewriting national law.
- Consistent and systematic proportionality from the gambling cases I.e. Gambelli.
- Relaxed view of proportionality from Schmidberger.
Is there a logic?
Probably not, the three areas seem incoherent.
Could be to do with the sensitivity of the policy area or the effect on the common market, but these are inconclusive.
What are the three prongs of the standard proportionality test?
- Is the measure necessary?
- Is the measure suitable?
- Is the measure the least restrictive?
