🪴 Maixnor WU

The EU Internal Market

Nov 04, 20256 min read

Relevant Cases to know are the ones with their own links or which are mentioned in the Questions GLE - post Midterm page. → Stoss Case, Dassonville Case, Keck Case, Cassis de Dijon Case

The Internal Market as the Centre of Gravity of EU Integration

Forms of Economic Integration

an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.

The Creation of the Internal Market: Positive and Negative Integration

  • positive integration → encouraging integration with new laws
  • negative integration → removing laws which stand against integration
    • very powerful tool

Harmonization

  • Art 114 TFEU
    • EP may adopt measures of harmonization
    • prohibition tobacco advertisement
    • basis is not just economic, could be e.g. health as well
    • very broad definition
    • allows overvoting of member states → majority vote
      • except for sensitive areas
    • exception 1
      • if member state cannot implement harmonization measure on legitimate grounds the Commission needs to be notified
    • exception 2
      • if new scientific evidence relating to protection of environment, etc is present the member state shall notify the Commission
    • if such a notification is made
      • Commission approve/reject claim → no decision = approval
    • criticized for relying on experts/science

Fundamental Freedoms

Common Structure

  • against discrimination
    • direct discrimination → active citizenship
    • indirect discrimination → language skills, residence requirements
  • also against non-discriminatory measures against cross-border activity
    • e.g. packaging requirements
  • justified discriminatory measures and non-discriminatory
  • review of justifications by CJEU
    • can be more or less stringent
    • Test of Sustainability weighted less
    • Test of Consistency weighted more
      • a country must act consistently with it’s exceptions
      • e.g. reducing gambling addiction
        • gambling as state monopoly
        • then huge advertisements for state gambling → something doesn’t add up
      • Stoss Case
  • have direct effect on national law
    • EU law being higher ranked than national law
  • State Liability → individuals may claim damages from member states which violate fundamental freedom
  • Horizontal Effects → individual-to-individual cases have been influenced by EU Law

Free Movement of Goods

Customs Duties

  • what is a Good?
    • products which can be valued in money and which are capable, as such, of forming the subject of a commercial transaction
    • works of art, electricity, gas, waste
    • produced within EU or third country
  • products in free circulation (after tariffs are paid with imports)
  • Measures having an Equivalent Effect

Internal Taxation

  • no difference in internal taxation based imported/domestic
    • e.g. products from Germany may not be taxed different than Austrian ones
  • similar products must be taxed the same
    • two red wines
    • wine and beer in broader similar relationship
  • there may be discriminatory measures for other reasons tho
    • e.g. energy consumption may be taxed
    • may be indirectly discriminatory when legitimate ground
    • e.g. foreign red wine need more energy during production than Austrian red wines → foreign red wine taxed higher

Quantitative Restrictions

  • limiting the amount or volume of a product imported is prohibited
  • Dassonville Case
  • not just “trading rules” but also other measures by states
  • very broad reading
  • on legitimate grounds (e.g. protection of health) can be justified
    • shall not be arbitrary discrimination
  • exhaustive list of justifications + proportionality analysis
  • Cassis Case
  • Keck Case
  • Horizontal Effect
    • measures not just against member states, but private persons and companies
    • German TUEV affected
      • products which are certified pose a discriminatory threat against non-certified products

Free Movement of Workers

  • workers may work all over the EU
  • workers may not be chosen based off of origin within EU → discrimination
  • workers are entitled to
    • accept offers
    • move freely within member states
    • stay in a member state for work
    • remain in a member state after work
  • definition worker … exchange time for monetary value
  • public service may differentiate between nationals and foreigners
    • safeguard interest of the State or public authorities
    • mostly unsuccessfully invoked
  • prohibit direct discrimination
    • except for public interest
  • prohibit indirect discrimination
    • e.g. by language, residence requirements
    • Bosman Case → individual against institutions/associations
    • Angonese Case → individual against private employer

Freedom of Establishment

  • TFEU
  • self-employment possible in the entirety of the EU
  • founding a company/firm outside of country of residence is permitted
  • exception: official authority must be within country
    • not with fields of work, e.g. lawyers
  • definition establishment: the actual pursuit of an economic activity
  • individuals and companies can change their host member state
    • some companies may be restricted by national law
  • Cassis de Dijon Case
  • Horizontal Effect
    • reasoning from Bosman Case
    • trade unions also have freedom of establishment
  • Societas Europa business type

Free Movement of Services

  • cross-border trade is important (… duh)
  • definition service: exchanged for remuneration
  • already defined by other Fundamental Freedoms
  • while conducting the service the worker may reside in the member state
  • modes of supply
    • provider temporarily in another member state
    • provider to recipients coming from another member state
    • provider to recipients without movement of persons
    • provider to recipients temporarily moving to another member state
  • exception: official authority
  • individual temporarily moving to another country for medical care

Free Movement of Capital and Payments

  • Maastricht Treaty
  • no exact definitions for capital or payment
  • capital includes: FDI, Shares, Loans, Credits
  • payment includes: money, electronic money, bills of exchange, cheques
  • transfer of capital and payments may not be prohibited
    • exchange controls
    • authorization procedures
    • also covers special rights in companies
  • Dassonville Case
  • exceptions:
    • tax related payments
    • ceasing control over important enterprises

Union Citizenship and Free Movement

  • Maastricht Treaty
  • nationality in one of the member states automatically grants citizenship of the EU
    • not replacing national citizenship
  • political rights with EU (voting and being candidate)
  • right to move and reside freely within other member states
    • up to 3 months without any conditions or formalities
    • longer than 3 months if they are workers or self-employed or have sufficient funds to not become a burden to social system
    • permanent residence after 5 years of lawful residence

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