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THE FOUR FREEDOMS:

A VIEW FROM THE

MOUNTAIN

Common Law Society

Patejdlova bouda, Giant Mountains, Czech Republic

6 July – 19 July 2014

General Course:

“The Four Freedoms: Introduction to the EU Internal Market”

Zuzana Vikarská, PhD Researcher, KU Leuven & Charles University in Prague

When you try to google “four freedoms”, you will most probably get a result which has

nothing to do with the European Union. In January 1941, President F. D. Roosevelt gave the

so-called Four Freedoms Speech, where he claimed that there are four fundamental freedoms

which should be enjoyed by every person: (1) freedom of speech, (2) freedom of worship,

(3) freedom from want, and (4) freedom from fear. As interesting as they are, these freedoms

will, however, not be the subject-matter of our summer course (but you can still read about

them on Wikipedia, if you want to know more: http://en.wikipedia.org/wiki/Four_Freedoms).

We will study a wholly different set of freedoms, which form the foundations of the EU

internal market. Free movement of goods, persons, services, and capital will keep us busy for

two weeks. This general course will guide you through the main sources in the field of the EU

internal market: Treaties, legislation and a vast amount of case-law of the Court of Justice.

This syllabus lists a number of sources, probably more than you will be able to read in the two

weeks that you have left for preparation. It is therefore important that you do not try to read

all the materials. Rather, try to make a clever selection for yourself. If you are a complete

beginner, make sure to read the textbook chapter covering the field. If you are more advanced,

you can afford to skip the textbook readings and delve into the case-law. If you are an expert,

you might enjoy reading the most recent cases and/or the academic articles. In any case, try to

read at least two or three sources for each class. With a bit of luck, there will always be

someone in the class who has seen this or that document on the reading list.

The central materials for the general course are the EU Treaties (TEU, TFEU, Charter),

available e.g. in the EU Bookshop: http://bookshop.europa.eu/en/consolidated-versions-of-

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the-treaty-on-european-union-and-the-treaty-on-the-functioning-of-the-european-union-

pbQC3209190/. There is no need to print out the entire file, but it would be great if you could

have the relevant articles on paper: Articles 1-6 TEU, Articles 1-37, 45-66, 110-119 TFEU,

and the Charter in full.

When you are asked to read EU legislation (regulations, directives), do not waste time by

reading it article by article. Rather, skim through the document, so that you get an idea about

its subject-matter and scope (you usually find these in the opening articles of the legislative

instrument). Often, there will be case-law referring back to the legislation – in that case you

may want to read the relevant articles.

You are also invited to study case-law of the Court of Justice. We have prepared a

document with case excerpts – this way you can save time by reading only the relevant parts

of the cases. If you, however, want to see a certain case in full (e.g. because you want to know

what formation of the Court decided the case, or who the Judge Rapporteur was), you can

always find these cases at the Court’s webpage: http://curia.europa.eu/.

When working with your sources, be careful about Treaty renumbering. In the words of AG

Sharpston, “…some sadistic lunatic has changed all the Treaty numbers. Not once, but

several times. As a result, nothing in the earlier case-law can be cited directly […]. To be

accurate, you need, for example, to say: free movement of goods, as originally guaranteed by

Article 30 EEC, subsequently by Article 28 EC, and now by Article 34 TFEU, and then tie

down your case citation to the Article number that was applicable when the case was

decided.”1 For your convenience, we have included a conversion table in your reader – if you

are lost in the older cases, make sure to use it and find your way through the old numbering.

We will discuss the following topics:

1. From Common Market to Internal Market .......................................................................... 3

2. Four, Five or Even Six Freedoms? ......................................................................................... 4

3. Free Movement of Workers ..................................................................................................... 5

4. Freedom of Establishment and Free Movement of Services ............................................. 7

5. Free Movement of Lawyers and Companies ......................................................................... 9

6. Free Movement of Goods ....................................................................................................... 11

7. Harmonisation and Standardisation ..................................................................................... 13

8. Free Movement of Capital ...................................................................................................... 14

9. Fundamental Freedoms and Fundamental Rights ........................................................... 15

10. Conclusion(s) ........................................................................................................................... 16

1 Nottingham Trent University, ‘NTU Honorary Graduate July 2011 – Eleanor Sharpston’ (1 August 2011)

<https://www.youtube.com/watch?v=JrJYDaPTCAA#t=567> accessed 19 June 2014, from 9:27 to 10:43.

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1. From Common Market to Internal Market

Most of you have already followed a basic course on EU law, in which you studied the history

of the European integration. You have all heard about the Schuman Declaration, about the

Treaties of Paris, Rome, Maastricht, Amsterdam, Nice, and Lisbon… However, would you be

able to see this evolution from the internal market point of view? Which moments in the

history of the EU were the most significant for the market?

We will not talk too much about the history of EU integration – that you can read in many

great books and contemplate about it during warm summer evenings. For a quick overview,

you can watch the video of the EPP Group on the 20th

anniversary of the EU single market.

The chapter from Lenaerts & Van Nuffel’s textbook also offers a good overview.

If you have never heard of notions such as free trade area, customs union, common market or

economic union, you might want to read the introductory chapter of Catherine Barnard’s

excellent textbook on the four freedoms. You will also learn how the economic theories of

Adam Smith and David Ricardo justify market integration on the European continent. Last

but not least, you will be introduced to the fundamental notions underpinning EU internal

market law, such as discrimination, market access, or competitive federalism. Make sure to

read this chapter, so that you have a solid basis for what will come in the days that follow.

In the second half of the first class, we will talk about the nature of the EU internal market: is

it really all about money, or is there also space for other values? There are quite a lot of

beautiful words in the preambles and in the opening articles of the Treaties, but do these

things matter at all, or are they only political proclamations? If you are interested in this

discussion, please read Bruno De Witte’s recent article and have a quick look at the two

legislative instruments listed below. The Sky Österreich case is a nice illustration of how the

Court approaches this balancing exercise – please read either the case itself, or the case note

by Wouter Hins (or both, if you want).

Watch:

EPP Group TV, ‘The EU single market after 20 years: much achieved, much left to do’

(8 October 2012)

<https://www.youtube.com/watch?v=53_8gWOQUas&index=1&list=PL7gkZ7ZfeTv4Rodst

wLEMxn3xOCzlcpNT> accessed 19 June 2014

Read:

Treaties: Articles 1-6 TEU, Articles 1-17 TFEU, Preamble to the EU Charter (just skim)

The Schuman Declaration of 9 May 1950 (see reader)

Catherine Barnard, The Substantive Law of the EU: The Four Freedoms (OUP 2013),

Chapter 1, Introduction to the Issues (30 pages)

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Koen Lenaerts and Piet Van Nuffel, European Union Law (Sweet & Maxwell 2011),

Chapter 9, The Internal Market, paragraphs 9-001 to 9-011 (8 pages)

Bruno De Witte, ‘A Competence to Protect’ in Phil Syrpis (ed.), The Judiciary, the

Legislature and the EU Internal Market (CUP 2012), pp. 25-46 (22 pages)

Regulation (EC) No 1007/2009 of the European Parliament and of the Council of

16 September 2009 on trade in seal products, OJ 2009 L 286/36 (4 pages, just skim)

Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on

the coordination of certain provisions laid down by law, regulation or administrative action in

Member States concerning the provision of audiovisual media services (Audiovisual Media

Services Directive), OJ 2010 L 95/1 (24 pages, just skim)

ECJ, Case C-283/11 Sky Österreich GmbH v. Österreichischer Rundfunk [2013]

Wouter Hins, ‘The Freedom to Conduct a Business and the Right to Receive Information for

Free: Sky Österreich’ (2014) 51 Common Market Law Review 665-678 (14 pages)

2. Four, Five or Even Six Freedoms?

How many freedoms are there, really? Let’s count together: goods, workers, establishment,

services, capital, payments… and what about EU citizenship, does that count as well?

In this class, we will try to see the EU internal market from a bird’s perspective (or to enjoy

the view from a mountain, if you wish). You will be asked to read eight judgments of the

Court of Justice – and please try to read them with a certain system in mind. In the field of the

EU internal market, there is a fil rouge that is present in all the cases (more or less explicitly),

and that is: SCOPE – RESTRICTION – JUSTIFICATION.

1) SCOPE. You first need to find out whether a case falls within the scope of EU law. In other

words, whether any provision of EU law can be applied to the situation at hand. If there is

such a provision, which one is it? A Treaty article on free movement of goods or workers?

And/or a provision of a regulation or directive?

2) RESTRICTION. Has one of the freedoms been restricted? If so, what kind of restriction

was it: discriminatory or non-discriminatory?

3) JUSTIFICATION. Not every restriction is illegal – many of them can be justified. For that,

a legitimate aim needs to be identified, and the measure needs to be proportionate (= suitable

& necessary) to that aim.

Try to identify these three steps in every one of the judgments that you are asked to read for

class 2. In Alpine Investments, the exercise will be rather easy, since the Court is didactical in

its analysis: it first deals with the scope (up to paragraph 22), then it moves on to examine

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whether there was a restriction (paragraphs 23-39), and finally it looks at possible

justifications (paragraphs 40-56). However, it is not always so easy and clear…

Therefore, for all eight cases, try to answer the following questions:

a) Is the situation within the scope of EU law?

b) Which freedom is at stake?

c) Has there been a restriction?

d) Is the restriction (directly / indirectly) discriminatory or not?

e) Is the restriction imposed by the home State or the host State?

f) What is the legitimate aim used to justify the restrictive measure?

g) Is the restriction proportionate (i.e. adequate and necessary) to meet the aim?

(Don’t panic if you are not able to answer every question for every case – the Court

sometimes simply doesn’t give you all the information you need…)

Read:

Koen Lenaerts and Piet Van Nuffel, European Union Law (Sweet & Maxwell 2011),

Chapter 9, The Internal Market, paragraphs 9-012 to 9-013 (2 pages)

ECJ, Case C-384/93 Alpine Investments [1995]

ECJ, Case C-55/94 Gebhard [1995]

ECJ, Case C-265/95 Commission v. France (Spanish strawberries) [1997]

ECJ, Case C-212/97 Centros [1999]

ECJ, Case C-112/00 Schmidberger [2003]

ECJ, Case C-364/10 Hungary v. Slovak Republic [2012]

ECJ, Case C-202/11 Anton Las [2013]

ECJ, Case C-481/12 Juvelta [2014]

3. Free Movement of Workers

The first freedom we will look at in more detail is the free movement of workers. Some of

you will wonder: doesn’t this freedom already belong to legal history? Hasn’t EU citizenship

replaced the free movement of workers?

If you look into the most recent case-law, you will find a case where free movement of

workers is preferred over EU citizenship (ECJ, Case C-456/12 S. & G. [2014], see Maja

Brkan’s class on EU citizenship). In this case, the Court first analysed the situation under

Article 45 TFEU (which governs the free movement of workers) and then stated: “…it is no

longer necessary to interpret Articles 20 TFEU and 21(1) TFEU. Those provisions, which set

out generally the right of every citizen of the Union to move and reside freely within the

territory of the Member States, find specific expression in Article 45 TFEU in relation to

freedom of movement for workers” (see paragraph 45). Moreover, a very recent case C-507/12

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Saint Prix [2014] shows that a pregnant lady who can undoubtedly benefit from her status as

an EU citizen, still makes the effort to go to court and fight to be classified as a ‘worker’…

This shows that the provisions on workers are still up-to-date and are worth our attention.

Please read the relevant Treaty provisions, have a quick peek into the secondary legislation

(the Citizens’ Rights Directive, the Workers’ Regulation, and the draft of the new Workers’

Directive), and read some of the cases listed below. The first five cases (or actually just very

brief excerpts therefrom) give you an overview of the definition of a ‘worker’ in EU law,

Antonissen explains the position of jobseekers, Sotgiu concerns the ‘public service exception’

embedded in Article 45(4) TFEU. In O’Flynn, the Court has made clear that indirect

discrimination is also prohibited by the Treaties. Groener and Angonese address language

requirements, each from a specific point of view, Raccanelli addresses the position of an

international PhD student at the Max Planck Institute, and SALK is one of the most recent

cases, which however very much resembles the well-known Köbler case…

While reading these documents, try to think: how is the free movement of workers different

from EU citizenship? If you could choose whether to be considered as a worker or as an EU

citizen, what would you opt for? (Is it actually possible to be both at the same time?)

Read:

Treaties: Articles 45-48 TFEU

Koen Lenaerts and Piet Van Nuffel, European Union Law (Sweet & Maxwell 2011),

Chapter 9, The Internal Market, paragraphs 9-046 to 9-065; 9-070 to 9-078; 9-082 to 9-084

(33 pages)

Citizens’ Rights Directive: Directive 2004/38/EC of the European Parliament and of the

Council of 29 April 2004 on the right of citizens of the union and their family members to

move and reside freely within the territory of the Member States, OJ 2004 L 38/1 (24 pages)

Workers’ Regulation: Regulation (EU) No 492/2011 of the European Parliament and of the

Council of 5 April 2011 on freedom of movement for workers within the Union, OJ 2011

L 141/1 (8 pages)2

Draft Workers’ Directive: European Commission, ‘Free movement of workers: Commission

improves the application of worker's rights – frequently asked questions’ (12 March 2014)

MEMO/14/187 (7 pages)

Definition of a ‘worker’

ECJ, Case 75/63 Hoekstra [1964]

ECJ, Case 53/81 Levin [1982]

2 This Regulation has replaced the old Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on

freedom of movement for workers within the Community, OJ 1968 L 257/2, which you will come across in older

case-law.

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ECJ, Case 139/85 Kempf [1986]

ECJ, Case 66/85 Lawrie-Blum [1986]

ECJ, Case 196/87 Steymann [1988]

ECJ, Case C-292/89 Antonissen [1991]

ECJ, Case C-507/12 Saint Prix [2014]

Public service exception:

ECJ, Case 152/73 Sotgiu [1974]

Restrictions

ECJ, Case 379/87 Groener [1989]

ECJ, Case C-237/94 O’Flynn [1996]

ECJ, Case C-281/98 Angonese [2000]

ECJ, Case C-94/07 Raccanelli [2008]

ECJ, Case C-202/11 Anton Las [2013] (see class 2)

ECJ, Case C-514/12 Salzburger Landeskliniken (SALK) [2013]

A short overview of the development of FMW:

Camelia Toader and Andrei I. Florea, ‘Free Movement of Workers and the European

Citizenship’ (2011) 3 FMW: Online Journal on Free Movement of Workers within the

European Union 19-24 (6 pages)

…and for those of you interested in a very recent comment on the free movement of persons:

Editorial Comment, ‘The Free Movement of Persons in the European Union: Salvaging the

Dream while Explaining the Nightmare’ (2014) 51 Common Market Law Review 729-740

(12 pages)

4. Freedom of Establishment and Free Movement of Services

Free movement of persons encompasses not only workers, but also self-established persons

and providers and recipients of services. These two freedoms will be dealt with together, since

they are very similar in nature. If you are unsure, what the difference between the two is, you

might want to go back to Case C-55/94 Gebhard [1995] which we have seen in class 2.

Next to the Treaty provisions, there is a crucial piece of legislation: the Services Directive,

commonly known as the Bolkestein Directive. It was, however, not adopted in the ‘home-state

control’ version, as proposed by Commissioner Frits Bolkestein; in the end, the leading

principle of the directive is ‘host-state control’. It is not necessary that you read the whole

directive in detail, but try to skim through it, to discover its scope and its main principles.

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As for the case-law, try to read at least two or three judgments, to get an idea about these two

freedoms. Cowan makes it clear, that free movement provisions apply not only to providers,

but also to recipients of services. Schindler is a case on gambling, which explains the

relationship between free movement of goods and free movement of services. Commission v.

Belgium (notaries) sheds more light on Article 51 TFEU and the notion of ‘exercise of

official authority’, which falls outside the scope of EU law. When it comes to restrictions,

Klopp addresses the prohibition of dual establishment, Factortame deals with national quota

for fishermen (you may know the case from its aftermath in EU procedural law),

Konstantinidis is a story about a Greek masseur whose name was misspelled in Germany, and

Alpine Investments (which you already know from class 2) concerns an export restriction on

the provision of financial services from the Netherlands. With justifications, the cases get a

little bit wilder: Bacardi concerns advertising of alcoholic beverages and Josemans deals with

the operation of coffee-shops in Maastricht …

As a bridge to Maja Brkan’s talk on citizenship, you may want to read Carpenter, which is

often criticised for pushing the borders of free movement law way too far. Would you agree

with that criticism?

Read:

Treaties: Articles 49-55 (establishment) & Articles 56-62 TFEU (services)

Koen Lenaerts and Piet Van Nuffel, European Union Law (Sweet & Maxwell 2011),

Chapter 9, The Internal Market, paragraphs 9-066 to 9-069; 9-079 to 9-081; 9-085 to 9-099

(25 pages)

Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006

on services in the internal market, OJ 2006 L 376/36 (33 pages)

Henri de Waele, ‘The Transposition and Enforcement of the Services Directive: A Challenge

for the European and the National Legal Orders’ (2009) 15 European Public Law 523-531

(9 pages)

Direct effect of the Treaty provisions:

ECJ, Case 2/74 Reyners [1974]

ECJ, Case 33/74 Van Binsbergen [1974]

Scope of the freedoms:

ECJ, Case 186/87 Cowan [1989]

ECJ, Case C-275/92 Schindler [1994]

ECJ, Case C-55/94 Gebhard [1995] (see class 2)

ECJ, Case C-47/08 Commission v. Belgium (notaries) [2011]

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Restrictions:

ECJ, Case 107/83 Klopp [1984]

ECJ, Case C-221/89 Factortame [1991]

ECJ, Case C-168/91 Konstantinidis [1993]

ECJ, Case C-384/93 Alpine Investments [1995] (see class 2)

Justifications:

ECJ, Case C-429/02 Bacardi [2004]

ECJ, Case C-137/09 Josemans [2010]

How far does this freedom reach?

ECJ, Case C-60/00 Carpenter [2002]

If you want to go further…:

Marcus Klamert, ‘Of Empty Glasses and Double Burdens: Approaches to Regulating the

Services Market à propos the Implementation of the Services Directive’ (2010) 37 Legal

Issues of Economic Integration 111-132 (22 pages)

Vassilis Hatzopoulos, ‘The Court’s Approach to Services (2006-2012): From Case Law to

Case Load?’ (2013) 50 Common Market Law Review 459-502 (44 pages)

5. Free Movement of Lawyers and Companies

There are many more issues that could be addressed with regard to free movement of persons.

We have only selected two of them: recognition of professional qualifications (narrowed

down to the case of lawyers) and freedom of establishment for legal entities (companies).

“The legal profession in Europe has witnessed profound changes over the last 50 years

becoming more international and business orientated,” writes Gilles Muller in his very recent

article. We will have a look at two very old legislative instruments: the Lawyers Services

Directive and the Lawyers Establishment Directive, and we will discuss why most of you will

not (yet) be able to rely on any of these two. But what if you have studied law in the

Netherlands and you later want to practice law in Belgium – is there really nothing that EU

law could do for you? We will discuss the situation of Christine Morgenbesser and Krzysztof

Peśla – many of you might soon experience very similar troubles!

In the second half of class 5, we will address the basics of EU company law. Can a German

chocolate factory turn into a French chocolate factory overnight? Or can a car production

company simply move its (real) seat from Belgium to the Czech Republic, when the managers

find out that labour is much cheaper in the East than in the West? And will the answer be

different in case that the car production company wishes to remain ‘Belgian’ on paper?

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Read:

Lawyers Services Directive: Council Directive No 77/249/EEC of 22 March 1977 to facilitate

the effective exercise by lawyers of freedom to provide services, OJ 1977 L 249/1 (5 pages)

Lawyers Establishment Directive: Directive 98/5/EC of the European Parliament and of the

Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent

basis in a Member State other than that in which the qualification was obtained, OJ 1998

L 77/36 (8 pages)

Recognition of professional qualifications:

ECJ, Case 71/76 Thieffry [1977]

ECJ, Case C-340/89 Vlassopoulou [1991]

ECJ, Case C-19/92 Kraus [1993]

ECJ, Case C-313/01 Morgenbesser [2003]

ECJ, Case C-345/08 Peśla [2009]

Freedom of establishment for companies:

ECJ, Case 81/87 Daily Mail [1988]

ECJ, Case C-210/06 Cartesio [2008]

ECJ, Case C-378/10 VALE [2012]

If you want to go further…:

Gilles Muller, ‘The Liberalization of Legal Services within the EU Internal Market’ (2014)

9 Global Trade and Customs Journal 123-142 (20 pages)

Thomas Biermeyer, ‘Shaping the Space of Cross-Border Conversions in the EU. Between

Right and Autonomy: VALE’ (2013) 50 Common Market Law Review 571-589 (19 pages)

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6. Free Movement of Goods

Free movement of goods is often considered to be “one of the success stories of the European

project.”3 This is the oldest of the four freedoms; it has paved the way for many of the

fundamental principles that are nowadays applicable throughout the internal market, such as

the principle of mutual recognition or the rule of reason.

You have probably already come across many of the sources on the reading list below. We

will first look into tariff barriers: those measures where importers or exporters have to pay

something, either a charge at the border or an internal tax on their products. We will then

move on to non-tariff barriers: measures other than payments, which however make it

difficult for goods to circulate freely around the EU. Make sure to refresh your memory on

‘the classical trilogy’ (Dassonville – Cassis – Keck), and then pick one or two of the follow-

up cases (Mars, Gourmet, Schwarz) to see how the Keck doctrine is (not) applied to them.

Don’t miss the Mickelsson ruling, which has injected new blood into the academic discussions

on certain selling arrangements and the ‘limits to the limits’… You might also be interested

to read the recent Pelckmans case, which brings back the memories of the good old pre-Keck

Sunday trading cases, but also pulls the Charter in!

We will also discuss the applicability of this freedom to Member State action on the one hand

and behaviour of private actors on the other hand. Is it still true, that there is no such thing as

horizontal direct effect of the free movement of goods?

Read:

Treaties: Articles 26-37 TFEU, Article 110 TFEU

Commission Directive 70/50/EEC of 22 December 1969 on the abolition of measures which

have an effect equivalent to quantitative restrictions on imports, OJ 1969 L 13/29 (3 pages)

Council Regulation (EC) No 2679/98 of 7 December 1998 on the functioning of the internal

market in relation to the free movement of goods among the Member States, OJ 1998 L 337/8

(2 pages)

Koen Lenaerts and Piet Van Nuffel, European Union Law (Sweet & Maxwell 2011),

Chapter 9, The Internal Market, paragraphs 9-014 to 9-045 (25 pages)

…and either one of the following two articles:

Gareth Davies, ‘The Court’s Jurisprudence on Free Movement of Goods: Pragmatic

Presumptions, Not Philosophical Principles’ (2012) 2 European Journal of Consumer Law

217-230 (14 pages)

3 European Commission, ‘Free Movement of Goods: Guide to the Application of Treaty Provisions Governing

the Free Movement of Goods’ (2010)

<http://ec.europa.eu/enterprise/policies/single-market-goods/files/goods/docs/art34-36/new_guide_en.pdf >

accessed 19 June 2014.

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Stephen Weatherill, ‘The Road to Ruin: “Restrictions on Use” and the Circular Lifecycle of

Article 34 TFEU’ (2012) 2 European Journal of Consumer Law 359-368 (10 pages)

Definition of ‘goods’:

ECJ, Case 7/68 Commission v. Italy (art treasures) [1968]

Tariff barriers and internal taxation:

ECJ, Case 24/68 Commission v. Italy (statistics) [1969]

ECJ, Case 168/78 Commission v. France (whisky-cognac) [1980]

ECJ, Case 46/80 Vinal v. Orbat [1981]

ECJ, Case 112/84 Humblot [1985]

ECJ, Case C-132/88 Commission v. Greece (progressive tax) [1990]

ECJ, Case C-383/01 De Danske Bilimportører [2003]

Non-tariff barriers (the classical trilogy):

ECJ, Case 8/74 Dassonville [1974]

ECJ, Case 120/78 Cassis de Dijon [1979]

ECJ, Joined Cases C-267-268/91 Keck & Mithouard [1993]

Non-tariff barriers (the thin line between MEEs and ‘certain selling arrangements’):

ECJ, Case 261/81 Walter Rau [1982]

ECJ, Case C-470/93 Mars [1995]

ECJ, Case C-405/98 Gourmet [2001]

ECJ, Case C-366/04 Schwarz [2005]

ECJ, Case C-142/05 Mickelsson & Roos [2009]

ECJ, Case C-483/12 Pelckmans [2014]

State action:

ECJ, Case 249/81 Buy Irish [1982]

ECJ, Case C-265/95 Commission v. France (Spanish strawberries) [1997] (see class 2)

ECJ, Case C-112/00 Schmidberger [2003] (see class 2)

ECJ, Case C-171/11 Fra.bo [2012]

If you want to go further…:

Miguel Poiares Maduro, ‘Revisiting the Free Movement of Goods in a Comparative

Perspective’ in Allan Rosas, Egils Levits and Yves Bot (eds), The Court of Justice and the

Construction of Europe: Analyses and Perspectives on Sixty Years of Case-Law (Asser Press

2013) (19 pages)

State monopolies: ECJ, Case C-438/02 Hanner [2005]

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7. Harmonisation and Standardisation

We have so far discussed negative integration, i.e. the process of removing national barriers to

free movement. Now we will move on to positive integration, i.e. the actual creation of rules

at the EU level, which are then applied throughout the Union. There are various legal bases

for EU legislative activity, but we will have a closer look at Article 114 TFEU, which is the

internal market legal basis.

Data protection is one of the most ‘sexy’ topics of the 21st century – and we will use it as an

example of harmonisation of rules in the internal market. You have probably heard about the

Data Retention Directive lately – its annulment has been quite a topic, mostly for EU

constitutional lawyers. We will, however, look at its legal basis and the challenge brought by

Ireland (Case C-301/06 Ireland v. Parliament and Council). Admittedly, this is now legal

history, since the directive does not exist anymore, but the discussion on the ‘centre of

gravity’ of this directive is very interesting (especially if you have already discussed Tobacco

Advertising a gazillion of times…).

We will conclude with a more general discussion on unification in the internal market.

Clearly, more EU regulation requires more sacrifices to national regulatory autonomy. We

will discuss a case that is very famous in the Czech Republic – it concerns the so-called

‘spread butter’, which has actually nothing to do with ‘butter’. (Maybe you will get a chance

to taste this miracle during your stay in the Czech Republic!)

Read:

Treaties: Articles 16, 114 and 352 TFEU

Koen Lenaerts and Piet Van Nuffel, European Union Law (Sweet & Maxwell 2011),

Chapter 9, The Internal Market, paragraphs 9-108 to 9-116 (13 pages)

Council Resolution of 7 May 1985 on a new approach to technical harmonisation and

standards, OJ 1985 C 136/1 (9 pages)

Data Protection Directive: Directive 95/46/EC of the European Parliament and of the Council

of 24 October 1995 on the protection of individuals with regard to the processing of personal

data and on the free movement of such data, OJ 1995 L 281/31 (20 pages)

Data Retention Directive: Directive 2006/24/EC of the European Parliament and of the

Council of 15 March 2006 on the retention of data generated or processed in connection with

the provision of publicly available electronic communications services or of public

communications networks, OJ 2006 L 105/54 (10 pages)

ECJ, Case C-301/06 Ireland v. Parliament and Council [2009]

ECJ, Case C-37/11 Commission v. Czech Republic (spread butter) [2012]

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If you want to go further…:

Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying

down a procedure for the provision of information in the field of technical standards and

regulations and of rules on Information Society services, OJ 1998 L 204/37

Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008

setting out the requirements for accreditation and market surveillance relating to the

marketing of products, OJ 2008 L 218/30 (18 pages)

Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October

2012 on European standardisation, OJ 2012 L 316/12 (20 pages)

Rob Van Gestel and Hans-W. Micklitz, ‘European Integration through Standardisation: How

Judicial Review Is Breaking Down the Club House of Private Standardisation Bodies’ (2013)

50 Common Market Law Review 145-182 (38 pages)

8. Free Movement of Capital

For quite a long time, the free movement of capital was a second-rate freedom – it was mainly

supposed to accompany the other freedoms (e.g. services, as can be seen in Luisi & Carbone).

However, after the Single Market Act, and especially after the Maastricht Treaty, the free

movement of capital has developed considerably.

We will discuss some of the cases listed below, which provide an overview of the gradual

development of this freedom, from the prohibition of discriminatory measures in Svensson &

Gustavsson, to the rich case-law on golden shares (which we will only discuss briefly).

Stefaan Van den Bogaert will then tell you more about the Economic and Monetary Union

and the recent debt crisis, and in the last class of the specialisation course, Jan Komárek will

discuss the constitutional dimension of the euro-crisis.

Read:

Treaties: Articles 63-66 TFEU

Koen Lenaerts and Piet Van Nuffel, European Union Law (Sweet & Maxwell 2011), Chapter

9, The Internal Market, paragraphs 9-100 to 9-107 (8 pages)

John A. Usher, ‘The Evolution of the Free Movement of Capital’ (2008) 31 Fordham

International Law Journal 1533-1570 (23 pages)

Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the

Treaty, OJ 1988 L 178/5 (14 pages)

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Case-Law:

ECJ, Joined Cases 286/82 and 26/83 Luisi & Carbone [1984]

ECJ, Case C-484/93 Svensson & Gustavsson [1995]

ECJ, Case C-423/98 Albore [2000]

ECJ, Case C-213/04 Burtscher [2005]

ECJ, Case C-171/08 Commission v. Portugal (golden shares) [2010]

ECJ, Joined Cases C-197/11 and C-203/11 Libert [2013]

9. Fundamental Freedoms and Fundamental Rights

What happens when two fundamental things clash with each other? As you know very well

by now, fundamental freedoms are not unlimited; they are often restricted and their

restrictions are often justified. A similar story can be told about fundamental rights: although

they are crucial to the EU, they are not absolute. Article 52(1) of the Charter proposes a

proportionality test that must be complied with when fundamental rights are restricted.

We will discuss a number of cases, both pre-Charter and post-Charter, in order to see how the

Court treats the clash of fundamental freedoms and fundamental rights. Those of you

interested in the human rights topics might also enjoy reading the articles by Niamh Nic

Shuibhne and Sybe de Vries, which provide an excellent overview of the field.

Read:

Treaties: EU Charter (with a special focus on Articles 51-53)

Explanations Relating to the Charter of Fundamental Rights of the European Union, OJ 2007

C 303/1 (20 pages)

ECJ, Case C-260/89 ERT [1991]

ECJ, Case C-159/90 Grogan [1991]

ECJ, Case C-368/95 Familiapress [1997]

ECJ, Case C-112/00 Schmidberger [2003] (see class 2)

ECJ, Case C-36/02 Omega Spielhallen [2004]

ECJ, Case C-438/05 Viking [2007]

ECJ, Case C-341/05 Laval [2007]

ECJ, Case C-390/12 Pfleger [2014]

Read one of the following articles:

Niamh Nic Shuibhne, ‘Margins of Appreciation: National Values, Fundamental Rights and

EC Free Movement Law’ (2009) 34 European Law Review 230-256 (21 pages)

Sybe A. de Vries, ‘Balancing Fundamental Rights with Economic Freedoms According to the

European Court of Justice’ (2013) 9 Utrecht Law Review 169-192 (24 pages)

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10. Conclusion(s)

In the last class of this general course, we will try to summarise our discussions and see ‘the

bigger picture’ of the EU internal market. What is the scope of the four freedoms? How do

they interact? Is there any convergence, or do they live separate lives? And what about the

outer limits of EU (internal market) law: are there any, or are we slowly drowning in EU

regulation?

ECJ, Joined Cases C-297/88 and C-197/89 Dzodzi [1990]

ECJ, Joined Cases C-570-571/07 Blanco Perez [2010]

Okeoghene Odudu, ‘Economic Activity as a Limit to Community Law’ in Catherine Barnard

and Okeoghene Odudu (eds), The Outer Limits of European Union Law (Hart 2009), pp. 225-

243 (19 pages)

Giuseppe Tesauro, ‘Reasonableness in the European Court of Justice Case-Law’ in Allan

Rosas, Egils Levits and Yves Bot (eds), The Court of Justice and the Construction of Europe:

Analyses and Perspectives on Sixty Years of Case-Law (Asser Press 2013)