European Single Market

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European Single Market
  Non-EU states that participate with exceptions
Policy of  European Union
Type Single market
Member states
Establishment 1 January 1993
Area
 •  Total 4,986,038 km2
1,925,120 sq mi
 •  EU 4,324,782 km2
1,669,808 sq mi
Population
 •  Total 2015 estimate 522,000,000
 •  EU 2015
estimate
508,191,116
GDP (nominal) 2015 estimate
 •  Total $19 trillion
 •  Per capita $36,000
European Union
Flag of the European Union

This article is part of a series on the
politics and government
of the European Union

The European Single Market, or Internal Market, is a single market that seeks to guarantee the free movement of goods, capital, services, and people – the "four freedoms" – within the European Union (EU).[1][2][3][4] The market encompasses the EU's 28 member states, and has been extended, with exceptions, to Iceland, Liechtenstein and Norway through the Agreement on the European Economic Area and to Switzerland through bilateral treaties.

The market is intended to be conducive to increased competition, increased specialisation, larger economies of scale, allowing goods and factors of production to move to the area where they are most valued, thus improving the efficiency of the allocation of resources. It is also intended to drive economic integration whereby the once separate economies of the member states become integrated within a single EU wide economy. Half of the trade in goods within the EU is covered by legislation harmonised by the EU.[5] The creation of the internal market as a seamless, single market is an ongoing process, with the integration of the service industry still containing gaps.[6] It also has an increasing international element, with the market represented as one in international trade negotiations.

History[edit]

One of the original core objectives of the European Economic Community (EEC) was the development of a common market offering free movement of goods, service, people and capital (see below). Free movement of goods was established in principle through the customs union between its then-six member states.

However the EEC struggled to enforce a single market due to the absence of strong decision making structures. It was difficult to remove intangible barriers with mutual recognition of standards and common regulations due to protectionist attitudes.

In the 1980s, when the economy of the EEC began to lag behind the rest of the developed world, the Delors Commission took the initiative to attempt to relaunch the common market, publishing a White Paper in 1985 identifying 300 measures to be addressed in order to complete a single market. The White Paper was well-received and led to the adoption of the Single European Act, a treaty which reformed the decision-making mechanisms of the EEC and set a deadline of 31 December 1992 for the completion of a single market. In the end, it was launched on 1 January 1993.[7]

The new approach, pioneered by the Delors Commission, combined positive and negative integration, relying upon minimum rather than exhaustive harmonisation. Negative integration consists of prohibitions imposed on member states of discriminatory behaviour and other restrictive practices. Positive integration consists in approximation of laws and standards. Especially important (and controversial) in this respect is the adoption of harmonising legislation under Article 114 of the Treaty on the Functioning of the European Union (TFEU).

The Commission also relied upon the European Court of Justice's Cassis de Dijon[8] jurisprudence, under which member states were obliged to recognise goods which had been legally produced in another member state, unless the member state could justify the restriction by reference to a mandatory requirement. Harmonisation would only be used to overcome barriers created by trade restrictions which survived the Cassis mandatory requirements test, and to ensure essential standards where there was a risk of a race to the bottom. Thus harmonisation was largely used to ensure basic health and safety standards were met.

By 1992 about 90% of the issues had been resolved[9] and in the same year the Maastricht Treaty set about to create an Economic and Monetary Union as the next stage of integration. Work on freedom for services did take longer, and was the last freedom to be implemented, mainly through the Posting of Workers Directive (adopted in 1996)[10] and the Directive on services in the internal market (adopted in 2006).[11]

In 1997 the Amsterdam Treaty abolished physical barriers across the internal market by incorporating the Schengen Area within the competences of the EU. The Schengen Agreement implements the abolition of border controls between most member states, common rules on visas, and police and judicial cooperation.[12]

Even as the Lisbon Treaty came into force in 2009 however, some areas pertaining parts of the four freedoms (especially in the field of services) had not yet been completely opened. Those, along with further work on the economic and monetary union, would see the EU move further to a European Home Market.[9]

Free movement of goods[edit]

Customs duties and taxation[edit]

The European Union is also a customs union. This means that member states have removed customs barriers between themselves and introduced a common customs policy towards other countries. The overall purpose of the duties is "to ensure normal conditions of competition and to remove all restrictions of a fiscal nature capable of hindering the free movement of goods within the Common Market".[13]

By agreement between the Union and the states concerned Andorra, Monaco, San Marino and Turkey also participate in the EU Customs Union.

Customs duties[edit]

Article 30 TFEU prohibits member states from levying any duties on goods crossing a border, both goods produced within the EU and those produced outside. Once a good has been imported into the EU from a third country and the appropriate customs duty paid, Article 29 TFEU dictates that it shall then be considered to be in free circulation between the member states.

Neither the purpose of the charge, nor its name in domestic law, is relevant.[14]

Since the Single European Act, there can be no systematic customs controls at the borders of member states. The emphasis is on post-import audit controls and risk analysis. Physical controls of imports and exports now occur at traders' premises, rather than at the territorial borders.

Charges having equivalent effect to customs duties[edit]

Article 30 of the TFEU prohibits not only customs duties but also charges having equivalent effect. The European Court of Justice defined charge having equivalent effect in Commission v Italy.

[A]ny pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect... even if it is not imposed for the benefit of the state, is not discriminatory or protective in effect and if the product on which the charge is imposed is not in competition with any domestic product.[15]

A charge is a customs duty if it is proportionate to the value of the goods; if it is proportionate to the quantity, it is a charge having equivalent effect to a customs duty.[16]

There are three exceptions to the prohibition on charges imposed when goods cross a border, listed in Case 18/87 Commission v Germany. A charge is not a customs duty or charge having equivalent effect if:

  • it relates to a general system of internal dues applied systematically and in accordance with the same criteria to domestic products and imported products alike,[17]
  • if it constitutes payment for a service in fact rendered to the economic operator of a sum in proportion to the service,[18] or
  • subject to certain conditions, if it attaches to inspections carried out to fulfil obligations imposed by Union law.[19]

Taxation[edit]

Article 110 of the TFEU provides:

No Member State shall impose, directly or indirectly, on the products of other member states any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products.
Furthermore, no Member State shall impose on the products of other member states any internal taxation of such a nature as to afford indirect protection to other products.

In the taxation of rum case, the ECJ stated that:

The Court has consistently held that the purpose of Article 90 EC [now Article 110], as a whole, is to ensure the free movement of goods between the member states under normal conditions of competition, by eliminating all forms of protection which might result from the application of discriminatory internal taxation against products from other member states, and to guarantee absolute neutrality of internal taxation as regards competition between domestic and imported products".[20]

Quantitative and equivalent restrictions[edit]

Free movement of goods within the European Union is achieved by a customs union, and the principle of non-discrimination.[21] The EU manages imports from non-member states, duties between member states are prohibited, and imports circulate freely.[22] In addition under the Treaty on the Functioning of the European Union article 34, ‘Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States’. In Procureur du Roi v Dassonville[23] the Court of Justice held that this rule meant all "trading rules" that are "enacted by Member States" which could hinder trade "directly or indirectly, actually or potentially" would be caught by article 34.[24] This meant that a Belgian law requiring Scotch whisky imports to have a certificate of origin was unlikely to be lawful. It discriminated against parallel importers like Mr Dassonville, who could not get certificates from authorities in France, where they bought the Scotch. This "wide test",[25] to determine what could potentially be an unlawful restriction on trade, applies equally to actions by quasi-government bodies, such as the former "Buy Irish" company that had government appointees.[26] It also means states can be responsible for private actors. For instance, in Commission v France French farmer vigilantes were continually sabotaging shipments of Spanish strawberries, and even Belgian tomato imports. France was liable for these hindrances to trade because the authorities ‘manifestly and persistently abstained' from preventing the sabotage.[27] Generally speaking, if a member state has laws or practices that directly discriminate against imports (or exports under TFEU article 35) then it must be justified under article 36. The justifications include public morality, policy or security, "protection of health and life of humans, animals or plants", "national treasures" of "artistic, historic or archaeological value" and "industrial and commercial property". In addition, although not clearly listed, environmental protection can justify restrictions on trade as an overriding requirement derived from TFEU article 11.[28] More generally, it has been increasingly acknowledged that fundamental human rights should take priority over all trade rules. So, in Schmidberger v Austria[29] the Court of Justice held that Austria did not infringe article 34 by failing to ban a protest that blocked heavy traffic passing over the A13, Brenner Autobahn, en route to Italy. Although many companies, including Mr Schmidberger's German undertaking, were prevented from trading, the Court of Justice reasoned that freedom of association is one of the ‘fundamental pillars of a democratic society’, against which the free movement of goods had to be balanced,[30] and was probably subordinate. If a member state does appeal to the article 36 justification, the measures it takes have to be applied proportionately. This means the rule must be pursue a legitimate aim and (1) be suitable to achieve the aim, (2) be necessary, so that a less restrictive measure could not achieve the same result, and (3) be reasonable in balancing the interests of free trade with interests in article 36.[31]

In Schmidberger v Austria, protests blocked trucks for goods through the Austrian Alps on the Brenner Autobahn. The Court of Justice recognised fundamental rights take priority over free trade.[32]

Often rules apply to all goods neutrally, but may have a greater practical effect on imports than domestic products. For such "indirect" discriminatory (or "indistinctly applicable") measures the Court of Justice has developed more justifications: either those in article 36, or additional "mandatory" or "overriding" requirements such as consumer protection, improving labour standards,[33] protecting the environment,[34] press diversity,[35] fairness in commerce,[36] and more: the categories are not closed.[37] In the most famous case Rewe-Zentral AG v Bundesmonopol für Branntwein,[38] the Court of Justice found that a German law requiring all spirits and liqueurs (not just imported ones) to have a minimum alcohol content of 25 per cent was contrary to TFEU article 34, because it had a greater negative effect on imports. German liqueurs were over 25 per cent alcohol, but Cassis de Dijon, which Rewe-Zentrale AG wished to import from France, only had 15 to 20 per cent alcohol. The Court of Justice rejected the German government's arguments that the measure proportionately protected public health under TFEU article 36,[39] because stronger beverages were available and adequate labelling would be enough for consumers to understand what they bought.[40] This rule primarily applies to requirements about a product's content or packaging. In Walter Rau Lebensmittelwerke v De Smedt PVBA[41] the Court of Justice found that a Belgian law requiring all margarine to be in cube shaped packages infringed article 34, and was not justified by the pursuit of consumer protection. The argument that Belgians would believe it was butter if it was not cube shaped was disproportionate: it would "considerably exceed the requirements of the object in view" and labelling would protect consumers "just as effectively".[42] In a 2003 case, Commission v Italy[43] Italian law required that cocoa products that included other vegetable fats could not be labelled as "chocolate". It had to be "chocolate substitute". All Italian chocolate was made from cocoa butter alone, but British, Danish and Irish manufacturers used other vegetable fats. They claimed the law infringed article 34. The Court of Justice held that a low content of vegetable fat did not justify a "chocolate substitute" label. This was derogatory in the consumers' eyes. A ‘neutral and objective statement’ was enough to protect consumers. If member states place considerable obstacles on the use of a product, this can also infringe article 34. So, in a 2009 case, Commission v Italy, the Court of Justice held that an Italian law prohibiting motorcycles or mopeds pulling trailers infringed article 34.[44] Again, the law applied neutrally to everyone, but disproportionately affected importers, because Italian companies did not make trailers. This was not a product requirement, but the Court reasoned that the prohibition would deter people from buying it: it would have "a considerable influence on the behaviour of consumers" that "affects the access of that product to the market".[45] It would require justification under article 36, or as a mandatory requirement.

In 2002, Rem Koolhaas' proposed "barcode" Flag of Europe, caused uproar as it symbolised the EU becoming no more than a market economy for endless competitive consumption, devoid of social values and rights.

In contrast to product requirements or other laws that hinder market access, the Court of Justice developed a presumption that "selling arrangements" would be presumed to not fall into TFEU article 34, if they applied equally to all sellers, and affected them in the same manner in fact. In Keck and Mithouard[46] two importers claimed that their prosecution under a French competition law, which prevented them selling Picon beer under wholesale price, was unlawful. The aim of the law was to prevent cut throat competition, not to hinder trade.[47] The Court of Justice held, as "in law and in fact" it was an equally applicable "selling arrangement" (not something that alters a product's content[48]) it was outside the scope of article 34, and so did not need to be justified. Selling arrangements can be held to have an unequal effect "in fact" particularly where traders from another member state are seeking to break into the market, but there are restrictions on advertising and marketing. In Konsumentombudsmannen v De Agostini[49] the Court of Justice reviewed Swedish bans on advertising to children under age 12, and misleading commercials for skin care products. While the bans have remained (justifiable under article 36 or as a mandatory requirement) the Court emphasised that complete marketing bans could be disproportionate if advertising were "the only effective form of promotion enabling [a trader] to penetrate" the market. In Konsumentombudsmannen v Gourmet AB[50] the Court suggested that a total ban for advertising alcohol on the radio, TV and in magazines could fall within article 34 where advertising was the only way for sellers to overcome consumers' "traditional social practices and to local habits and customs" to buy their products, but again the national courts would decide whether it was justified under article 36 to protect public health. Under the Unfair Commercial Practices Directive, the EU harmonised restrictions on restrictions on marketing and advertising, to forbid conduct that distorts average consumer behaviour, is misleading or aggressive, and sets out a list of examples that count as unfair.[51] Increasingly, states have to give mutual recognition to each other's standards of regulation, while the EU has attempted to harmonise minimum ideals of best practice. The attempt to raise standards is hoped to avoid a regulatory "race to the bottom", while allowing consumers access to goods from around the continent.

Free movement of capital[edit]

Free movement of capital was traditionally seen as the fourth freedom, after goods, workers and persons, services and establishment. The original Treaty of Rome required that restrictions on free capital flows only be removed to the extent necessary for the common market. From the Treaty of Maastricht, now in TFEU article 63, "all restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited". This means capital controls of various kinds are prohibited, including limits on buying currency, limits on buying company shares or financial assets, or government approval requirements for foreign investment. By contrast, taxation of capital, including corporate tax, capital gains tax and Financial transaction tax are not affected so long as they do not discriminate by nationality. According to the Capital Movement Directive 1988, Annex I, 13 categories of capital which must move free are covered.[52] In Baars v Inspecteur der Belastingen Particulieren the Court of Justice held that for investments in companies, the capital rules, rather than freedom of establishment rules, were engaged if an investment did not enable a "definite influence" through shareholder voting or other rights by the investor.[53] That case held a Dutch Wealth Tax Act 1964 unjustifiably exempted Dutch investments, but not Mr Baars' investments in an Irish company, from the tax: the wealth tax, or exemptions, had to be applied equally. On the other hand, TFEU article 65(1) does not prevent taxes that distinguish taxpayers based on their residence or the location of an investment (as taxes commonly focus on a person's actual source of profit) or any measures to prevent tax evasion.[54] Apart from tax cases, largely following from the opinions of Advocate General Maduro,[55] a series of cases held that government owned golden shares were unlawful. In Commission v Germany the Commission claimed the German Volkswagen Act 1960 violated article 63, in that §2(1) restricted any party having voting rights exceeding 20% of the company, and §4(3) allowed a minority of 20% of shares held by the Lower Saxony government to block any decisions. Although this was not an impediment to actual purchase of shares, or receipt of dividends by any shareholder, the Court of Justice's Grand Chamber agreed that it was disproportionate for the government's stated aim of protecting workers or minority shareholders.[56] Similarly, in Commission v Portugal the Court of Justice held that Portugal infringed free movement of capital by retaining golden shares in Portugal Telecom that enabled disproportionate voting rights, by creating a "deterrent effect on portfolio investments" and reduing "the attractiveness of an investment".[57] This suggested the Court's preference that a government, if it sought public ownership or control, should nationalise in full the desired proportion of a company in line with TFEU article 345.[58]

Capital within the EU may be transferred in any amount from one country to another (except that Greece currently has capital controls restricting outflows, and Cyprus imposed capital controls between 2013 and April 2015). All intra-EU transfers in euro are considered as domestic payments and bear the corresponding domestic transfer costs.[59] This includes all member States of the EU, even those outside the eurozone providing the transactions are carried out in euro.[60] Credit/debit card charging and ATM withdrawals within the Eurozone are also charged as domestic, however paper-based payment orders, like cheques, have not been standardised so these are still domestic-based. The ECB has also set up a clearing system, TARGET, for large euro transactions.[61]

The final stage of completely free movement of capital was thought to require a single currency and monetary policy, eliminating the transaction costs and fluctuations of currency exchange. Following a Report of the Delors Commission in 1988,[62] the Treaty of Maastricht made economic and monetary union an objective, first by completing the internal market, second by creating a European System of Central Banks to coordinate common monetary policy, and third by locking exchange rates and a introducing a single currency, the euro. Today, 19 member states have adopted the euro, while 9 member states have either determined to opt-out or their accession has been delayed, particularly since the Eurozone crisis. According to TFEU articles 119 and 127, the objective of the European Central Bank and other central banks ought to be price stability. This has been criticised for apparently being superior to the objective of full employment in the Treaty on European Union article 3.[63]

Freedom to establish and provide services[edit]

As well as creating rights for "workers" who generally lack bargaining power in the market,[64] the Treaty on the Functioning of the European Union also protects the "freedom of establishment" in article 49, and "freedom to provide services" in article 56.[65]

Establishment[edit]

In Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano[66] the Court of Justice held that to be "established" means to participate in economic life "on a stable and continuous basis", while providing "services" meant pursuing activity more "on a temporary basis". This meant that a lawyer from Stuttgart, who had set up chambers in Milan and was censured by the Milan Bar Council for not having registered, should claim for breach of establishment freedom, rather than service freedom. However, the requirements to be registered in Milan before being able to practice would be allowed if they were non-discriminatory, "justified by imperative requirements in the general interest" and proportionately applied.[67] All people or entities that engage in economic activity, particularly the self-employed, or "undertakings" such as companies or firms, have a right to set up an enterprise without unjustified restrictions.[68] The Court of Justice has held that both a member state government and a private party can hinder freedom of establishment,[69] so article 49 has both "vertical" and "horizontal" direct effect. In Reyners v Belgium[70] the Court of Justice held that a refusal to admit a lawyer to the Belgian bar because he lacked Belgian nationality was unjustified. TFEU article 49 says states are exempt from infringing others' freedom of establishment when they exercise "official authority", but this did an advocate's work (as opposed to a court's) was not official.[71] By contrast in Commission v Italy the Court of Justice held that a requirement for lawyers in Italy to comply with maximum tariffs unless there was an agreement with a client was not a restriction.[72] The Grand Chamber of the Court of Justice held the Commission had not proven that this had any object or effect of limiting practitioners from entering the market.[73] Therefore, there was no prima facie infringement freedom of establishment that needed to be justified.

The Court of Justice in Centros Ltd held that people can establish a UK company or any other, to do business EU-wide, but must comply with proportionate requirements in the public interest,[74] such as the basic labour right to a voice at work.[75]

In regard to companies, the Court of Justice held in R (Daily Mail and General Trust plc) v HM Treasury that member states could restrict a company moving its seat of business, without infringing TFEU article 49.[76] This meant the Daily Mail newspaper's parent company could not evade tax by shifting its residence to the Netherlands without first settling its tax bills in the UK. The UK did not need to justify its action, as rules on company seats were not yet harmonised. By contrast, in Centros Ltd v Erhversus-og Selkabssyrelsen the Court of Justice found that a UK limited company operating in Denmark could not be required to comply with Denmark's minimum share capital rules. UK law only required £1 of capital to start a company, while Denmark's legislature took the view companies should only be started up if they had 200,000 Danish krone (around €27,000) to protect creditors if the company failed and went insolvent. The Court of Justice held that Denmark's minimum capital law infringed Centros Ltd's freedom of establishment and could not be justified, because a company in the UK could admittedly provide services in Denmark without being established there, and there were less restrictive means of achieving the aim of creditor protection.[77] This approach was criticised as potentially opening the EU to unjustified regulatory competition, and a race to the bottom in standards, like in the US where the state Delaware attracts most companies and is often argued to have the worst standards of accountability of boards, and low corporate taxes as a result.[78] Similarly in Überseering BV v Nordic Construction GmbH the Court of Justice held that a German court could not deny a Dutch building company the right to enforce a contract in Germany on the basis that it was not validly incorporated in Germany. Although restrictions on freedom of establishment could be justified by creditor protection, labour rights to participate in work, or the public interest in collecting taxes, denial of capacity went too far: it was an "outright negation" of the right of establishment.[79] However, in Cartesio Oktató és Szolgáltató bt the Court of Justice affirmed again that because corporations are created by law, they are in principle subject to any rules for formation that a state of incorporation wishes to impose. This meant that the Hungarian authorities could prevent a company from shifting its central administration to Italy while it still operated and was incorporated in Hungary.[80] Thus, the court draws a distinction between the right of establishment for foreign companies (where restrictions must be justified), and the right of the state to determine conditions for companies incorporated in its territory,[81] although it is not entirely clear why.[82]

Services[edit]

The "freedom to provide services" under TFEU article 56 applies to people who give services "for remuneration", especially commercial or professional activity.[83] For example, in Van Binsbergen v Bestuur van de Bedrijfvereniging voor de Metaalnijverheid a Dutch lawyer moved to Belgium while advising a client in a social security case, and was told he could not continue because Dutch law said only people established in the Netherlands could give legal advice.[84] The Court of Justice held that the freedom to provide services applied, it was directly effective, and the rule was probably unjustified: having an address in the member state would be enough to pursue the legitimate aim of good administration of justice.[85] The Court of Justice has held that secondary education falls outside the scope of article 56,[86] because usually the state funds it, though higher education does not.[87] Health care generally counts as a service. In Geraets-Smits v Stichting Ziekenfonds[88] Mrs Geraets-Smits claimed she should be reimbursed by Dutch social insurance for costs of receiving treatment in Germany. The Dutch health authorities regarded the treatment unnecessary, so she argued this restricted the freedom (of the German health clinic) to provide services. Several governments submitted that hospital services should not be regarded as economic, and should not fall within article 56. But the Court of Justice held health was a "service" even though the government (rather than the service recipient) paid for the service.[89] National authorities could be justified in refusing to reimburse patients for medical services abroad if the health care received at home was without undue delay, and it followed "international medical science" on which treatments counted as normal and necessary.[90] The Court requires that the individual circumstances of a patient justify waiting lists, and this is also true in the context of the UK's National Health Service.[91] Aside from public services, another sensitive field of services are those classified as illegal. Josemans v Burgemeester van Maastricht held that the Netherlands' regulation of cannabis consumption, including the prohibitions by some municipalities on tourists (but not Dutch nationals) going to coffee shops,[92] fell outside article 56 altogether. The Court of Justice reasoned that narcotic drugs were controlled in all member states, and so this differed from other cases where prostitution or other quasi-legal activity was subject to restriction.

If an activity does fall within article 56, a restriction can be justified under article 52 or overriding requirements developed by the Court of Justice. In Alpine Investments BV v Minister van Financiën[93] a business that sold commodities futures (with Merrill Lynch and another banking firms) attempted to challenge a Dutch law that prohibiting cold calling customers. The Court of Justice held the Dutch prohibition pursued a legitimate aim to prevent "undesirable developments in securities trading" including protecting the consumer from aggressive sales tactics, thus maintaining confidence in the Dutch markets. In Omega Spielhallen GmbH v Bonn[94] a "laserdrome" business was banned by the Bonn council. It bought fake laser gun services from a UK firm called Pulsar Ltd, but residents had protested against "playing at killing" entertainment. The Court of Justice held that the German constitutional value of human dignity, which underpinned the ban, did count as a justified restriction on freedom to provide services. In Liga Portuguesa de Futebol v Santa Casa da Misericórdia de Lisboa the Court of Justice also held that the state monopoly on gambling, and a penalty for a Gibraltar firm that had sold internet gambling services, was justified to prevent fraud and gambling where people's views were highly divergent.[95] The ban was proportionate as this was an appropriate and necessary way to tackle the serious problems of fraud that arise over the internet. In the Services Directive[96] a group of justifications were codified in article 16 that the case law has developed.

Digital Single Market[edit]

In May 2015 the Juncker Commission[97] announced the plan to reverse the fragmentation of Internet shopping and other online services by establishing a Single Digital Market that would cover digital services and goods from e-commerce to parcel delivery rates, uniform telecoms and copyright rules.[98]

Free movement of persons[edit]

The free movement of persons means EU citizens can move freely between member states to live, work, study or retire in another country. This required the lowering of administrative formalities and more recognition of professional qualifications of other states.[99] Fostering the free movement of persons has been a major goal of European integration since the 1950s.[100]

Broadly defined, this freedom enables citizens of one Member State to travel to another, to reside and to work there (permanently or temporarily). The idea behind EU legislation in this field is that citizens from other member states should be treated equally with domestic ones – they should not be discriminated against.

The main provision of the freedom of movement of persons is Article 45 of the TFEU that prohibits restrictions on the basis of nationality.

Free movement of workers[edit]

Since its foundation, the Treaties sought to enable people to pursue their life goals in any country through free movement.[101] Reflecting the economic nature of the project, the European Community originally focused upon free movement of workers: as a "factor of production".[102] However, from the 1970s, this focus shifted towards developing a more "social" Europe.[103] Free movement was increasingly based on "citizenship", so that people had rights to empower them to become economically and socially active, rather than economic activity being a precondition for rights. This means the basic "worker" rights in TFEU article 45 function as a specific expression of the general rights of citizens in TFEU articles 18 to 21. According to the Court of Justice, a "worker" is anybody who is economically active, which includes everyone in an employment relationship, "under the direction of another person" for "remuneration".[104] A job, however, need not be paid in money for someone to be protected as a worker. For example, in Steymann v Staatssecretaris van Justitie, a German man claimed the right to residence in the Netherlands, while he volunteered plumbing and household duties in the Bhagwan community, which provided for everyone's material needs irrespective of their contributions.[105] The Court of Justice held that Mr Steymann was entitled to stay, so long as there was at least an "indirect quid pro quo" for the work he did. Having "worker" status means protection against all forms of discrimination by governments, and employers, in access to employment, tax, and social security rights. By contrast a citizen, who is "any person having the nationality of a Member State" (TFEU article 20(1)), has rights to seek work, vote in local and European elections, but more restricted rights to claim social security.[106] In practice, free movement has become politically contentious as nationalist political parties have manipulated fears about immigrants taking away people's jobs and benefits (paradoxically at the same time). Nevertheless, practically "all available research finds little impact" of "labour mobility on wages and employment of local workers".[107]

In Angonese the Court of Justice gave "horizontal direct effect" to free movement, so a bank could not refuse employment to a worker who lacked a Bolzano language certificate.[108]

The Free Movement of Workers Regulation articles 1 to 7 set out the main provisions on equal treatment of workers. First, articles 1 to 4 generally require that workers can take up employment, conclude contracts, and not suffer discrimination compared to nationals of the member state.[109] In a famous case, the Belgian Football Association v Bosman, a Belgian footballer named Jean-Marc Bosman claimed that he should be able to transfer from R.F.C. de Liège to USL Dunkerque when his contract finished, regardless of whether Dunkerque could afford to pay Liège the habitual transfer fees.[110] The Court of Justice held "the transfer rules constitute[d] an obstacle to free movement" and were unlawful unless they could be justified in the public interest, but this was unlikely. In Groener v Minister for Education[111] the Court of Justice accepted that a requirement to speak Gaelic to teach in a Dublin design college could be justified as part of the public policy of promoting the Irish language, but only if the measure was not disproportionate. By contrast in Angonese v Cassa di Risparmio di Bolzano SpA[112] a bank in Bolzano, Italy, was not allowed to require Mr Angonese to have a bilingual certificate that could only be obtained in Bolzano. The Court of Justice, giving "horizontal" direct effect to TFEU article 45, reasoned that people from other countries would have little chance of acquiring the certificate, and because it was "impossible to submit proof of the required linguistic knowledge by any other means", the measure was disproportionate. Second, article 7(2) requires equal treatment in respect of tax. In Finanzamt Köln Altstadt v Schumacker[113] the Court of Justice held that it contravened TFEU art 45 to deny tax benefits (e.g. for married couples, and social insurance expense deductions) to a man who worked in Germany, but was resident in Belgium when other German residents got the benefits. By contrast in Weigel v Finanzlandesdirektion für Vorarlberg the Court of Justice rejected Mr Weigel's claim that a re-registration charge upon bringing his car to Austria violated his right to free movement. Although the tax was "likely to have a negative bearing on the decision of migrant workers to exercise their right to freedom of movement", because the charge applied equally to Austrians, in absence of EU legislation on the matter it had to be regarded as justified.[114] Third, people must receive equal treatment regarding "social advantages", although the Court has approved residential qualifying periods. In Hendrix v Employee Insurance Institute the Court of Justice held that a Dutch national was not entitled to continue receiving incapacity benefits when he moved to Belgium, because the benefit was "closely linked to the socio-economic situation" of the Netherlands.[115] Conversely, in Geven v Land Nordrhein-Westfalen the Court of Justice held that a Dutch woman living in the Netherlands, but working between 3 and 14 hours a week in Germany, did not have a right to receive German child benefits,[116] even though the wife of a man who worked full-time in Germany but was resident in Austria could.[117] The general justifications for limiting free movement in TFEU article 45(3) are "public policy, public security or public health",[118] and there is also a general exception in article 45(4) for "employment in the public service".

Free movement of citizens[edit]

Beyond the right of free movement to work, the EU has increasingly sought to guarantee rights of citizens, and rights simply be being a human being.[119] But although the Court of Justice stated that ‘Citizenship is destined to be the fundamental status of nationals of the Member States’,[120] political debate remains on who should have access to public services and welfare systems funded by taxation.[121] In 2008, just 8 million people from 500 million EU citizens (1.7 per cent) had in fact exercised rights of free movement, the vast majority workers.[122] According to TFEU article 20, citizenship of the EU derives from nationality of a member state. Article 21 confers general rights to free movement in the EU and to reside freely within limits set by legislation. This applies for citizens and their immediate family members.[123] This triggers four main groups of rights: (1) to enter, depart and return, without undue restrictions, (2) to reside, without becoming an unreasonable burden on social assistance, (3) to vote in local and European elections, and (4) the right to equal treatment with nationals of the host state, but for social assistance only after 3 months of residence.

The Berlin Wall (1961-1989) symbolised a bordered globe, where citizens of the Soviet Union had no right to leave, and few could enter. The EU has progressively dismantled barriers to free movement, consistent with economic development.

First, the Citizens Rights Directive 2004 article 4 says every citizen has the right to depart a member state with a valid passport. This has historical importance for central and eastern Europe, when the Soviet Union and the Berlin Wall denied its citizens the freedom to leave.[124] Article 5 gives every citizen a right of entry, subject to national border controls. Schengen Area countries (not the UK and Ireland) abolished the need to show documents, and police searches at borders, altogether. These reflect the general principle of free movement in TFEU article 21. Second, article 6 allows every citizen to stay three months in another member state, whether economically active or not. Article 7 allows stays over three months with evidence of "sufficient resources... not to become a burden on the social assistance system". Articles 16 and 17 give a right to permanent residence after 5 years without conditions. Third, TEU article 10(3) requires the right to vote in the local constituencies for the European Parliament wherever a citizen lives.

All EU citizens have the right to child support, education, social security and other assistance in EU member states. To ensure people contribute fairly to the communities they live in, there can be qualifying periods of residence and work up to five years.

Fourth, and more debated, article 24 requires that the longer an EU citizen stays in a host state, the more rights they have to access public and welfare services, on the basis of equal treatment. This reflects general principles of equal treatment and citizenship in TFEU articles 18 and 20. In a simple case, in Sala v Freistaat Bayern the Court of Justice held that a Spanish lady who had lived in Germany for 25 years and had a baby was entitled to child support, without the need for a residence permit, because Germans did not need one.[125] In Trojani v Centre public d’aide sociale de Bruxelles, a French man who lived in Belgium for two years was entitled to the "minimex" allowance from the state for a minimum living wage.[126] In Grzelczyk v Centre Public d’Aide Sociale d’Ottignes-Louvain-la-Neuve[127] a French student, who had lived in Belgium for three years, was entitled to receive the "minimex" income support for his fourth year of study. Similarly, in R (Bidar) v London Borough of Ealing the Court of Justice held that it was lawful to require a French UCL economics student lived in the UK for three years before receiving a student loan, but not that he had to have additional "settled status".[128] Similarly, in Commission v Austria, Austria was not entitled to restrict its university places to Austrian students to avoid "structural, staffing and financial problems" if (mainly German) foreign students applied, unless it proved there was an actual problem.[129] However, in Dano v Jobcenter Leipzig, the Court of Justice held that the German government was entitled to deny child support to a Romanian mother who had lived in Germany for 3 years, but had never worked. Because she lived in Germany for over 3 months, but under 5 years, she had to show evidence of "sufficient resources", since the Court reasoned the right to equal treatment in article 24 within that time depended on lawful residence under article 7.[130] This judgment appeared to be a reaction to pressure from anti-immigrant or racist groups that (without evidence) attacked "benefit tourism". This effectively denied free movement to people like single mothers or the disabled who are unable work, and suggested the EU was not for the most vulnerable.

The Schengen Area[edit]

Main article: Schengen Area

Through the Schengen Area most EU member states (excluding Bulgaria, Croatia, Cyprus, Ireland, Romania and the United Kingdom) and four EFTA-members, Iceland, Liechtenstein, Norway, and Switzerland, have abolished physical barriers across the single market by eliminating border controls. In 2015, limited controls were temporarily re-imposed at some internal borders in response to the migrant crisis.[131]

Public Sector Procurement of Goods and Services[edit]

Public procurement legislation[132] and guidance[133] requiring equal treatment, non-discrimination, mutual recognition, proportionality and transparency to be maintained when purchasing goods and services for public sector bodies are also based on the four freedoms.

See also[edit]

Notes[edit]

  1. ^ "General policy framework". Europa web portal. Retrieved 1 December 2014. 
  2. ^ "The European Single Market". Europa web portal. Retrieved 28 May 2016. 
  3. ^ "Internal Market". European Commission. Retrieved 2015-06-17. 
  4. ^ Barnard, Catherine (2013). "Competence Review: The Internal Market" (PDF). Department for Business, Innovation and Skills. Retrieved 2015-06-17. 
  5. ^ European Commission. "A Single Market for goods". Europa web portal. Retrieved 27 June 2007. 
  6. ^ Completing the Single Market, European Commission
  7. ^ "EU glossary: Jargon S-Z". Retrieved 17 June 2016. 
  8. ^ "? - EUR-Lex". Retrieved 17 June 2016. 
  9. ^ a b "Introduction - EU fact sheets - European Parliament". Retrieved 17 June 2016. 
  10. ^ Directive 96/71/EC
  11. ^ Directive 2006/123/EC
  12. ^ "Justice policies at a glance - European Commission". Retrieved 17 June 2016. 
  13. ^ Case 27/67 Fink-Frucht
  14. ^ Case 7/68 Commission v Italy
  15. ^ "? - EUR-Lex". Retrieved 17 June 2016. 
  16. ^ "? - EUR-Lex". Retrieved 17 June 2016. 
  17. ^ "? - EUR-Lex". Retrieved 17 June 2016. 
  18. ^ "? - EUR-Lex". Retrieved 17 June 2016. 
  19. ^ "? - EUR-Lex". Retrieved 17 June 2016. 
  20. ^ Case 323/87 Commission v Italy (Taxation of rum), 1989 ECR 2275.
  21. ^ P Craig and G de Búrca, EU Law: Text, Cases, and Materials (6th edn 2015) chs 18-19. C Barnard, The Substantive Law of the EU: The Four Freedoms (4th edn 2013) chs 2-6
  22. ^ TFEU arts 28-30
  23. ^ (1974) Case 8/74, [1974] ECR 837
  24. ^ Previously TEEC article 30.
  25. ^ See D Chalmers et al, European Union Law (1st edn 2006) 662, ‘This is a ridiculously wide test.’
  26. ^ Commission v Ireland (1982) Case 249/81
  27. ^ Commission v France (1997) C-265/95. See further K Muylle, ‘Angry famers and passive policemen’ (1998) 23 European Law Review 467
  28. ^ PreussenElektra AG v Schleswag AG (2001) C-379/98, [2001] ECR I-2099, [75]-[76]
  29. ^ (2003) C-112/00, [2003] ECR I-5659
  30. ^ (2003) C-112/00, [79]-[81]
  31. ^ c.f. Leppik (2006) C-434/04, [2006] ECR I‑9171, Opinion of AG Maduro, [23]-[25]
  32. ^ (2003) C-112/00, [2003] ECR I-5659, [77]. See ECHR articles 10 and 11.
  33. ^ Oebel (1981) Case 155/80
  34. ^ Mickelsson and Roos (2009) C-142/05
  35. ^ Vereinigte Familiapresse v Heinrich Bauer (1997) C-368/95
  36. ^ Dansk Supermarked A/S (1981) Case 58/80
  37. ^ See C Barnard, The Substantive Law of the EU: The Four Freedoms (4th edn 2013) 172-173, listing the present state.
  38. ^ (1979) Case 170/78
  39. ^ At the time, TEEC article 30
  40. ^ (1979) Case 170/78, [13]-[14]
  41. ^ (1983) Case 261/81
  42. ^ (1983) Case 261/81, [17]
  43. ^ (2003) C-14/00, [88]-[89]
  44. ^ (2009) C-110/05, [2009] ECR I-519
  45. ^ (2009) C-110/05, [2009] ECR I-519, [56]. See also Mickelsson and Roos (2009) C-142/05, on prohibiting jet skis, but justified if proportionate towards the aim of safeguarding health and the environment.
  46. ^ (1993) C-267/91
  47. ^ See also Torfaen BC v B&Q plc (1989) C-145/88, holding the UK Sunday trading laws in the former Shops Act 1950 were probably outside the scope of article 34 (but not clearly reasoned). The "rules reflect certain political and economic choices" that "accord with national or regional socio-cultural characteristics."
  48. ^ cf Vereinigte Familiapresse v Heinrich Bauer (1997) C-368/95
  49. ^ (1997) C-34/95, [1997] ECR I-3843
  50. ^ (2001) C-405/98, [2001] ECR I-1795
  51. ^ Unfair Commercial Practices Directive 2005/29/EC
  52. ^ Capital Movement Directive 1988 (88/361/EEC) Annex I, including (i) investment in companies, (ii) real estate, (iii) securities, (iv) collective investment funds, (v) money market securities, (vi) bonds, (vii) service credit, (viii) loans, (ix) sureties and guarantees (x) insurance rights, (xi) inheritance and personal loans, (xii) physical financial assets (xiii) other capital movements.
  53. ^ (2000) C-251/98, [22]
  54. ^ e.g. Commission v Belgium (2000) C-478/98, holding that a law forbidding Belgian residents getting securities of loans on the Eurobond was unjustified discrimination. It was disproportionate in preserving, as Belgium argued, fiscal coherence or supervision.
  55. ^ See Commission v Netherlands (2006) C‑282/04, AG Maduro's Opinion on golden shares in KPN NV and TPG NV.
  56. ^ (2007) C-112/05
  57. ^ (2010) C-171/08
  58. ^ TFEU art 345
  59. ^ "Regulation (EC) No 2560/2001 of the European Parliament and of the Council of 19 December 2001 on cross-border payments in euro". EUR-lex - European Communities, Publications office, Official Journal L 344 , 28 December 2001 P. 0013 - 0016. Retrieved 26 December 2008. 
  60. ^ "Cross border payments in the EU, Euro Information, The Official Treasury Euro Resource". United Kingdom Treasury. Retrieved 26 December 2008. 
  61. ^ European Central Bank. "TARGET". Archived from the original on 23 October 2007. Retrieved 25 October 2007. 
  62. ^ See Delors Report, Report on Economic and Monetary Union in the EC (1988)
  63. ^ e.g. J Stiglitz, 'Too important for bankers' (11 June 2003) The Guardian and J Stiglitz, The Price of Inequality (2011) ch 9 and 349
  64. ^ See Asscher v Staatssecretaris van Financiën (1996) C-107/94, [1996] ECR I-3089, holding a director and sole shareholder of a company was not regarded as a "worker" with "a relationship of subordination".
  65. ^ See P Craig and G de Búrca, EU Law: Text, Cases, and Materials (6th edn 2015) ch 22. C Barnard, The Substantive Law of the EU: The Four Freedoms (4th edn 2013) chs 10-11 and 13
  66. ^ (1995) C-55/94, [1995] ECR I-4165
  67. ^ Gebhard (1995) C-55/94, [37]
  68. ^ TFEU art 54 treats natural and legal persons in the same way under this chapter.
  69. ^ ITWF and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti (2007) C-438/05, [2007] I-10779, [34]
  70. ^ (1974) Case 2/74, [1974] ECR 631
  71. ^ See also Klopp (1984) Case 107/83, holding a Paris avocat requirement to have one office in Paris, though "indistinctly" applicable to everyone, was an unjustified restriction because the aim of keeping advisers in touch with clients and courts could be achieved by ‘modern methods of transport and telecommunications’ and without living in the locality.
  72. ^ (2011) C-565/08
  73. ^ (2011) C-565/08, [52]
  74. ^ Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire Art Ltd (2003) C-167/01
  75. ^ cf Employee Involvement Directive 2001/86/EC
  76. ^ (1988) Case 81/87, [1988] ECR 5483
  77. ^ (1999) C-212/97, [1999] ECR I-1459. See also Überseering BV v Nordic Construction GmbH (2002) C-208/00, on Dutch minimum capital laws.
  78. ^ The classic arguments are found in WZ Ripley, Main Street and Wall Street (Little, Brown & Co 1927), Louis K. Liggett Co. v. Lee, 288 U.S. 517 (1933) per Brandeis J and W Cary, 'Federalism and Corporate Law: Reflections on Delaware' (1974) 83(4) Yale Law Journal 663. See further S Deakin, 'Two Types of Regulatory Competition: Competitive Federalism versus Reflexive Harmonisation. A Law and Economics Perspective on Centros' (1999) 2 CYELS 231.
  79. ^ (2002) C-208/00, [92]-[93]
  80. ^ (2008) C-210/06
  81. ^ See further National Grid Indus (2011) C-371/10 (an exit tax for a Dutch company required justification, not justified here because it could be collected at the time of transfer) and VALE Epitesi (2012) C-378/10 (Hungary did not need to allow an Italian company to register)
  82. ^ cf P Craig and G de Burca, EU Law: Text, Cases and Materials (2015) 815, "it seems that the CJEU's rulings, lacking any deep understanding of business law policies, have brought about other corporate law changes in Europe that were neither intended by the Court nor by policy-makers".
  83. ^ TFEU arts 56 and 57
  84. ^ (1974) Case 33/74
  85. ^ cf Debauve (1980) Case 52/79, art 56 does not apply to ‘wholly internal situations’ where an activity are all in one member state.
  86. ^ Belgium v Humbel (1988) Case 263/86, but contrast Schwarz and Gootjes-Schwarz v Finanzamt Bergisch Gladbach (2007) C-76/05
  87. ^ Wirth v Landeshauptstadt Hannover (1993) C-109/92
  88. ^ (2001) C-157/99, [2001] ECR I-5473
  89. ^ (2001) C-157/99, [48]-[55]
  90. ^ (2001) C-157/99, [94] and [104]-[106]
  91. ^ See Watts v Bedford Primary Care Trust (2006) C-372/04 and Commission v Spain (2010) C-211/08
  92. ^ (2010) C‑137/09, [2010] I-13019
  93. ^ (1995) C-384/93, [1995] ECR I-1141
  94. ^ (2004) C-36/02, [2004] ECR I-9609
  95. ^ (2009) C‑42/07, [2007] ECR I-7633
  96. ^ 2006/123/EC
  97. ^ "Digital Single Market". Retrieved 17 June 2016. 
  98. ^ Ian Traynor. EU unveils plans to set up digital single market for online firms. The Guardian. 6 May 2015.
  99. ^ European Commission. "Living and working in the Single Market". Europa web portal. Retrieved 27 June 2007. 
  100. ^ Maas, Willem (2007). Creating European Citizens. Lanham: Rowman & Littlefield. ISBN 978-0-7425-5485-6. 
  101. ^ P Craig and G de Búrca, EU Law: Text, Cases, and Materials (6th edn 2015) ch 21. C Barnard, The Substantive Law of the EU: The Four Freedoms (4th edn 2013) chs 8-9 and 12-13
  102. ^ See P Craig and G de Burca, European Union Law (2003) 701, there is a tension ‘between the image of the Community worker as a mobile unit of production, contributing to the creation of a single market and to the economic prosperity of Europe’ and the ‘image of the worker as a human being, exercising a personal right to live in another state and to take up employment there without discrimination, to improve the standard of living of his or her family’.
  103. ^ Defrenne v Sabena (No 2) (1976) Case 43/75, [10]
  104. ^ Lawrie-Blum v Land Baden-Württemberg (1986) Case 66/85, [1986] ECR 2121
  105. ^ (1988) Case 196/87, [1988] ECR 6159
  106. ^ Dano v Jobcenter Leipzig (2014) C‑333/13
  107. ^ European Commission, ‘The impact of free movement of workers in the context of EU enlargement’ COM(2008) 765, 12, ‘Practically of post-enlargement labour mobility on wages and employment of local workers and no indication of serious labour market imbalances through intra-EU mobility, even in those Member States with the biggest inflows.’
  108. ^ Angonese v Cassa di Risparmio di Bolzano SpA (2000) C-281/98, [2000] ECR I-4139
  109. ^ Free Movement of Workers Regulation 492/2011 arts 1-4
  110. ^ (1995) C-415/93
  111. ^ (1989) Case 379/87, [1989] ECR 3967
  112. ^ (2000) C-281/98, [2000] ECR I-4139, [36]-[44]
  113. ^ (1995) C-279/93
  114. ^ (2004) C-387/01, [54]-[55]
  115. ^ (2007) C-287/05, [55]
  116. ^ (2007) C-213/05
  117. ^ Hartmann v Freistaat Bayern (2007) C-212/05. Discussed in C Barnard, The Substantive Law of the European Union (2013) ch 9, 293-294
  118. ^ See Van Duyn v Home Office Case 41/74, [1974] ECR 1337
  119. ^ See NN Shuibhne, ‘The Resilience of EU Market Citizenship’ (2010) 47 CMLR 1597 and HP Ipsen, Europäisches Gemeinschaftsrecht (1972) on the concept of a ‘market citizen’ (Marktbürger).
  120. ^ Grzelczyk v Centre Public d’Aide Sociale d’Ottignes-Louvain-la-Neuve (2001) C-184/99, [2001] ECR I-6193
  121. ^ See T Marshall, Citizenship and Social Class (1950) 28-9, positing that ‘citizenship’ passed from civil rights, political rights, to social rights, and JHH Weiler, ‘The European Union belongs to its citizens: Three immodest proposals’ (1997) 22 European Law Review 150
  122. ^ 5th Report on Citizenship of the Union COM(2008) 85. The ‘’First Annual Report on Migration and Integration’’ COM(2004) 508, found by 2004, 18.5m third country nationals were resident in the EU.
  123. ^ CRD 2004 art 2(2) defines ‘family member’ as a spouse, long term partner, descendant under 21 or depednant elderly relative that is accompanying the citizen. See also Metock v Minister for Justice, Equality and Law Reform (2008) C-127/08, holding that four asylum seekers from outside the EU, although they did not lawfully enter Ireland (because their asylum claims were ultimately rejected) were entitled to remain because they had lawfully married EU citizens. See also, R (Secretary of State for the Home Department) v Immigration Appeal Tribunal and Surinder Singh [1992] 3 CMLR 358
  124. ^ See also the Communist Manifesto
  125. ^ (1998) C-85/96, [1998] ECR I-2691
  126. ^ (2004) C-456/02, [2004] ECR I-07573
  127. ^ (2001) C-184/99, [2001] ECR I-6193
  128. ^ (2005) C-209/03, [2005] ECR I-2119
  129. ^ (2005) C-147/03
  130. ^ (2014) C‑333/13
  131. ^ Europa.eu
  132. ^ Directive on Public Procurement, 2004
  133. ^ Commission Interpretative Communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives, 23 June 2006

References[edit]

Books
Articles

External links[edit]