Summary REUSM Article 28 TFEU: customs union (goods solely): important starting point for
internal market.
Article 26 TFEU: concept of internal market. An area (territorial aspect) without
Theme 1: Introduction, concept and negative & positive
internal borders (not necessarily meant as physical borders).
Article 3 (3) TEU: internal market and social market economy. Tensions arise here
Case 5/74, Dassonville
(see Viking Line and Laval). After World War II it played an important role,
Case C-137/09, Josemans
however competence of the EU is still very limited. Why is it in Article 3(3) TEU?
Case C-110/05, Commission v. Italy (trailers)
Protocol (No 27): on the internal market and competition.
Case C-384/93, Alpine Investments
Case C-415/93, Bosman
Theories of integration:
Case C-281/98, Angonese
Neo-functionalist approach: gradual reduction of national governments and
Case C-470/03, AGM.COS.MET.
increase of the ‘centre’: EU’s supranational institutions to deal with sensitive
Case C-265/95,Commission v France
politically charged issues.
Case C-438/05, Viking Line
in line with Monnet Method: the thought that (neo)functionalism is the
Case C-591/17, Austria v Germany
creation of a supranational regime or a European Federation.
Part I EU free movement & public interest
Important developments: introduction of Single European Act 1986.
Part II EU fundamental rights within the EU Single Market
Establishment of the Single Market (replaced by common market) and
Part III Regulation the EU Single Market through harmonization
introduction of Article 114 TFEU (a new legal basis for the approximation of
Member States laws). Before the SEA I we had only the current article 115 TFEU
You cannot study any field of EU without considering the current challenges the
which requires unanimity, it allows the EU legislator to adopt internal market
EU is facing: 1) Covid-19 2) rule of law crisis how is this linked to the Single
measures by normal majority.
Market? 3) migration crisis 4) Climate change 5) Brexit and free movement
Amsterdam Treaty (1999): not merely an internal market but creating an area of
Particular challenges for the internal market 1) persistent barriers for citizens and
freedom, security and justice.
businesses 2) physical borders, Schengen & migration 3) social rights,
SEA II (2012): single market act II: references to social protection and that public
fundamental rights and growing cleavages in wealth 4) digitalization &
interests do play a role. Not merely a techno practical notion of neo-liberal but
technological innovation.
more than that, a more holistic view (viewing the whole instead of a part).
Digital Single Market (2015): The main players in the digital market place are not
The development of EU Single Market
authorities, but private actors. How to ensure that these private actors are also
bound by the internal market rules? (e.g. fundamental rights (data protection and
It is questionable whether the EU really has an economic union. The question
consumer protection and horizontal direct effect).
arises what this entails. Is such a union not inevitably intertwined with a political
Union as well? Spill-over effect (theory of integration), gradual reduction of
Integration of national markets in a Union-wide market
national powers. The EU does not have extensive legislative powers in economic
I) Negative integration:
field.
Removing obstacles to market integration & restraining the discretionary powers
of national governments due to the principles of direct effect and supremacy.
,Associated with: a. Removing barriers to trade & free movement, set safety rules at an EU
a) deregulation (see e.g. Cassis de Dijon (para. 88) home state rule from dual level (EU standard is prevalent) (See AGM COS.MET in relation to four
regulation (both home and host state) to single regulation (home state): could freedoms).
this lead to a potential race to the bottomv? Barnard p. 90/91). Doesn’t always b. Protecting public interests (See Audiovisual Media Services Directive
need to be that way, see e.g. California or Delaware effect: in California there are (AMSD).
strict standards on the field of environment, yet many companies are attracted to
this instead of repelled. Also it is eventually favouring the market, since Conclusion: common market is both formed by positive and negative integration,
consumers have a wider choice of products and traders who can sell to a wider however more emphasis is laid on the latter (see e.g. art 12-17 TFEU)
market.
b) social dumping (Examples include actions taken by actors from 'low wage' Important: Once the EU has legislated, the framework for assessing national laws
Member States to gain market advantage over actors from Member States with is the Directive or Regulation (i.e. secondary legislation), NOT the Treaties.
higher pay and social standards, see Viking and Laval)
Four Freedoms Introduction
Substantive principles: non-discrimination and market access.
Question: the Four Freedoms could have a fundamental character, could it
Institutional principles: direct effect and supremacy (Van Gend & Loos – Costa v. therefore be said that fundamental freedoms are fundamental rights?
Enel) scope of fundamental freedoms
Should we see Treaties as an economic constitution? EU law has an autonomous convergence
character (Costa v. Enel). wholly internal rule
II) Positive Integration See Spanish Strawberries (freedom of expression vs freedom of goods para 24-
Development and implementation of effective supranational policies. A Single 27.), Viking Line (freedom of establishment vs free movement of services para.
Market cannot merely be attained by the Four Freedoms (setting aside national 35))
laws), free movement rules have no absolute character. There are all kinds of in every case fundamental rights play an evident role.
reasons for MS to uphold certain barriers (e.g. consumer protection). More is
needed to create a level playing field by setting common standards. Entails Broad scope of four freedoms:
positive action by the EU, by means of which it is setting common (NOT I) Material scope of Four Freedoms: when do freedoms apply and
necessarily uniform) rules. Predominantly done by means of Directives (less by what do they prohibit? > broad application
Regulation). - Economic connotation is crucial
o Gainful activity (See Josemans). Except in case of citizenship.
Associated with: social protection. o Where to draw the line? (see e.g. Bosman: Germany found that
Important: principle of conferral (legal basis): Race to the bottom without? Art football was similar to a culture and cultural activities are not
114 TFEU tries to help avoid a potential race to the bottom ‘high level of caught by the free movement rules.).
protection (…)’. See Tabacco Advertising - Evolving concepts of goods, services, gig economy etc.
o Especially regarding Digital Single Market. Important to determine
Double aim of harmonization: whether something is a good or a service.
, o Growing importance of services (see Article 57 TFEU): see Services Vis a vis private parties, freedoms are initially addressed to public authorities but
Directive. some of the provisions are directed to private parties as well. (See
Important I: Defining the material scope of the Treaty freedoms is important, Strawberries, Schmidberger & Viking para 62).
because once you decide that the rules are applicable, the rules determine the
conditions under which you can still decide your own policies. IV) Territorial scope of Four Freedoms (see week 2)
Important II: the Court adopts a functional approach when defining the material
scope: Approaches to Integration theory (prohibitions):
- The special nature of the activity does not remove it from the ambit of Four 1) Decentralized model
Freedoms - Principle of non-discrimination (art 18 TFEU): remains important when
- The fact that the Treaty excludes an area from EU competence provides no dealing with Four freedoms (See Austria vs. Germany for extensive
reason to exclude the application of the Four Freedoms (See Bosman, application of discrimination principle and art 34/36 TFEU, para. 40 for
Viking and Laval), in other words: scope and competence are NOT the assessment article 18 TFEU)
same. However, it might become relevant when it comes to the o Direct & indirect discrimination prohibited (para. 42)
justification phase and the MS’ discretion. o Indirect discrimination: treating unequal situations equally (para
- Digital Single Market: You are paying with your personal data which is 40-42)
being collected and traded. Does this fall within the scope of the free o It appears that art 18 TFEU and art 34/36 TFEU are applied
movement provisions? delineation (afbakening) is increasingly difficult alongside each other instead of apart.
in the face of digitalization (see e.g. Uber). o Advantage: MS remain free to regulate as long as they treat every
state the same, so preserves national rules.
II) Substantive scope: What is the legal commitment to free - Market access test: Market access is broader: focus on out-of-state traders
movement? Creation of a law-based order > what stands in their way?
o Dassonville: very broad interpretation, four freedoms do not only
Van Gend en Loos, enforced the rights of individuals. EU law has become a new prohibit discriminatory measures. Important: the presumption
source of rights introduced substantive rights to individuals. here is that ALL restrictions are prohibited unless justified, which is
different from the Directive 70/50/EEC: in principle compatible
CJEU Austria v Germany: discrimination on grounds of nationality is prohibited (ar unless.. shift of burden of proof.
18 TFEU). principle of non-discrimination especially important for in the o Gebhard: Court favours market access approach (art. 49 TFEU)
question whether the Treaty freedoms can be invoked against private parties. o Bosman, Alpine investments, Italian Trailers (para. 56): Court gives
Dassonville: restricting potential obstructions to trade (doubted by Schutze). This hint as tow hat market access might mean (‘considerable influence
view is starting point of a braoder approach as to the prohibitions on the basis of on behavior of consumers’)
the Treaty Freedoms.
Cassis de Dijon (follows Dassonville): ECJ reinforcing broad substantive scope on Important: Market access approach is more intrusive because it is irrelevant
the basis of principle of mutual recognition (para. 14) & home state control whether restriction result from exercise of fundamental (social) rights (see
principle (it gives an extraterritorial effect). Schmidberger, Laval, Viking) AND irrelevant who causes the restriction (See
Spanish Strawberries farmers, Schmidberger environmentalists, AGM.COS.MET
III) Personal scope of Four Freedoms: (see also week 2): to whom are
the freedoms addressed?
internal market.
Article 26 TFEU: concept of internal market. An area (territorial aspect) without
Theme 1: Introduction, concept and negative & positive
internal borders (not necessarily meant as physical borders).
Article 3 (3) TEU: internal market and social market economy. Tensions arise here
Case 5/74, Dassonville
(see Viking Line and Laval). After World War II it played an important role,
Case C-137/09, Josemans
however competence of the EU is still very limited. Why is it in Article 3(3) TEU?
Case C-110/05, Commission v. Italy (trailers)
Protocol (No 27): on the internal market and competition.
Case C-384/93, Alpine Investments
Case C-415/93, Bosman
Theories of integration:
Case C-281/98, Angonese
Neo-functionalist approach: gradual reduction of national governments and
Case C-470/03, AGM.COS.MET.
increase of the ‘centre’: EU’s supranational institutions to deal with sensitive
Case C-265/95,Commission v France
politically charged issues.
Case C-438/05, Viking Line
in line with Monnet Method: the thought that (neo)functionalism is the
Case C-591/17, Austria v Germany
creation of a supranational regime or a European Federation.
Part I EU free movement & public interest
Important developments: introduction of Single European Act 1986.
Part II EU fundamental rights within the EU Single Market
Establishment of the Single Market (replaced by common market) and
Part III Regulation the EU Single Market through harmonization
introduction of Article 114 TFEU (a new legal basis for the approximation of
Member States laws). Before the SEA I we had only the current article 115 TFEU
You cannot study any field of EU without considering the current challenges the
which requires unanimity, it allows the EU legislator to adopt internal market
EU is facing: 1) Covid-19 2) rule of law crisis how is this linked to the Single
measures by normal majority.
Market? 3) migration crisis 4) Climate change 5) Brexit and free movement
Amsterdam Treaty (1999): not merely an internal market but creating an area of
Particular challenges for the internal market 1) persistent barriers for citizens and
freedom, security and justice.
businesses 2) physical borders, Schengen & migration 3) social rights,
SEA II (2012): single market act II: references to social protection and that public
fundamental rights and growing cleavages in wealth 4) digitalization &
interests do play a role. Not merely a techno practical notion of neo-liberal but
technological innovation.
more than that, a more holistic view (viewing the whole instead of a part).
Digital Single Market (2015): The main players in the digital market place are not
The development of EU Single Market
authorities, but private actors. How to ensure that these private actors are also
bound by the internal market rules? (e.g. fundamental rights (data protection and
It is questionable whether the EU really has an economic union. The question
consumer protection and horizontal direct effect).
arises what this entails. Is such a union not inevitably intertwined with a political
Union as well? Spill-over effect (theory of integration), gradual reduction of
Integration of national markets in a Union-wide market
national powers. The EU does not have extensive legislative powers in economic
I) Negative integration:
field.
Removing obstacles to market integration & restraining the discretionary powers
of national governments due to the principles of direct effect and supremacy.
,Associated with: a. Removing barriers to trade & free movement, set safety rules at an EU
a) deregulation (see e.g. Cassis de Dijon (para. 88) home state rule from dual level (EU standard is prevalent) (See AGM COS.MET in relation to four
regulation (both home and host state) to single regulation (home state): could freedoms).
this lead to a potential race to the bottomv? Barnard p. 90/91). Doesn’t always b. Protecting public interests (See Audiovisual Media Services Directive
need to be that way, see e.g. California or Delaware effect: in California there are (AMSD).
strict standards on the field of environment, yet many companies are attracted to
this instead of repelled. Also it is eventually favouring the market, since Conclusion: common market is both formed by positive and negative integration,
consumers have a wider choice of products and traders who can sell to a wider however more emphasis is laid on the latter (see e.g. art 12-17 TFEU)
market.
b) social dumping (Examples include actions taken by actors from 'low wage' Important: Once the EU has legislated, the framework for assessing national laws
Member States to gain market advantage over actors from Member States with is the Directive or Regulation (i.e. secondary legislation), NOT the Treaties.
higher pay and social standards, see Viking and Laval)
Four Freedoms Introduction
Substantive principles: non-discrimination and market access.
Question: the Four Freedoms could have a fundamental character, could it
Institutional principles: direct effect and supremacy (Van Gend & Loos – Costa v. therefore be said that fundamental freedoms are fundamental rights?
Enel) scope of fundamental freedoms
Should we see Treaties as an economic constitution? EU law has an autonomous convergence
character (Costa v. Enel). wholly internal rule
II) Positive Integration See Spanish Strawberries (freedom of expression vs freedom of goods para 24-
Development and implementation of effective supranational policies. A Single 27.), Viking Line (freedom of establishment vs free movement of services para.
Market cannot merely be attained by the Four Freedoms (setting aside national 35))
laws), free movement rules have no absolute character. There are all kinds of in every case fundamental rights play an evident role.
reasons for MS to uphold certain barriers (e.g. consumer protection). More is
needed to create a level playing field by setting common standards. Entails Broad scope of four freedoms:
positive action by the EU, by means of which it is setting common (NOT I) Material scope of Four Freedoms: when do freedoms apply and
necessarily uniform) rules. Predominantly done by means of Directives (less by what do they prohibit? > broad application
Regulation). - Economic connotation is crucial
o Gainful activity (See Josemans). Except in case of citizenship.
Associated with: social protection. o Where to draw the line? (see e.g. Bosman: Germany found that
Important: principle of conferral (legal basis): Race to the bottom without? Art football was similar to a culture and cultural activities are not
114 TFEU tries to help avoid a potential race to the bottom ‘high level of caught by the free movement rules.).
protection (…)’. See Tabacco Advertising - Evolving concepts of goods, services, gig economy etc.
o Especially regarding Digital Single Market. Important to determine
Double aim of harmonization: whether something is a good or a service.
, o Growing importance of services (see Article 57 TFEU): see Services Vis a vis private parties, freedoms are initially addressed to public authorities but
Directive. some of the provisions are directed to private parties as well. (See
Important I: Defining the material scope of the Treaty freedoms is important, Strawberries, Schmidberger & Viking para 62).
because once you decide that the rules are applicable, the rules determine the
conditions under which you can still decide your own policies. IV) Territorial scope of Four Freedoms (see week 2)
Important II: the Court adopts a functional approach when defining the material
scope: Approaches to Integration theory (prohibitions):
- The special nature of the activity does not remove it from the ambit of Four 1) Decentralized model
Freedoms - Principle of non-discrimination (art 18 TFEU): remains important when
- The fact that the Treaty excludes an area from EU competence provides no dealing with Four freedoms (See Austria vs. Germany for extensive
reason to exclude the application of the Four Freedoms (See Bosman, application of discrimination principle and art 34/36 TFEU, para. 40 for
Viking and Laval), in other words: scope and competence are NOT the assessment article 18 TFEU)
same. However, it might become relevant when it comes to the o Direct & indirect discrimination prohibited (para. 42)
justification phase and the MS’ discretion. o Indirect discrimination: treating unequal situations equally (para
- Digital Single Market: You are paying with your personal data which is 40-42)
being collected and traded. Does this fall within the scope of the free o It appears that art 18 TFEU and art 34/36 TFEU are applied
movement provisions? delineation (afbakening) is increasingly difficult alongside each other instead of apart.
in the face of digitalization (see e.g. Uber). o Advantage: MS remain free to regulate as long as they treat every
state the same, so preserves national rules.
II) Substantive scope: What is the legal commitment to free - Market access test: Market access is broader: focus on out-of-state traders
movement? Creation of a law-based order > what stands in their way?
o Dassonville: very broad interpretation, four freedoms do not only
Van Gend en Loos, enforced the rights of individuals. EU law has become a new prohibit discriminatory measures. Important: the presumption
source of rights introduced substantive rights to individuals. here is that ALL restrictions are prohibited unless justified, which is
different from the Directive 70/50/EEC: in principle compatible
CJEU Austria v Germany: discrimination on grounds of nationality is prohibited (ar unless.. shift of burden of proof.
18 TFEU). principle of non-discrimination especially important for in the o Gebhard: Court favours market access approach (art. 49 TFEU)
question whether the Treaty freedoms can be invoked against private parties. o Bosman, Alpine investments, Italian Trailers (para. 56): Court gives
Dassonville: restricting potential obstructions to trade (doubted by Schutze). This hint as tow hat market access might mean (‘considerable influence
view is starting point of a braoder approach as to the prohibitions on the basis of on behavior of consumers’)
the Treaty Freedoms.
Cassis de Dijon (follows Dassonville): ECJ reinforcing broad substantive scope on Important: Market access approach is more intrusive because it is irrelevant
the basis of principle of mutual recognition (para. 14) & home state control whether restriction result from exercise of fundamental (social) rights (see
principle (it gives an extraterritorial effect). Schmidberger, Laval, Viking) AND irrelevant who causes the restriction (See
Spanish Strawberries farmers, Schmidberger environmentalists, AGM.COS.MET
III) Personal scope of Four Freedoms: (see also week 2): to whom are
the freedoms addressed?
