Introduction Internal Market
12 important questions on Introduction Internal Market
Alternatives for principle of mutual recognition (Harmonized model)
- As soon as EU law decides to issues a regulation that specifies what sort of definition beer is, then there is a harmonized model, and mutual recognition is not needed anymore, because there is a EU-wide definition of which ingredients beer need to entail in order to be defined as beer.
—> So if there is full harmonization, no need for mutual recognition needed
Principle of Market Access
National rules preventing or hindering market access are unlawful, irrespective of whether they actually discriminate against imports or migrants.
- So the market access is sort of an advanced level of non-discrimination. Even if a member state does not conduct any discriminatory act, a national rule that still prevents them from entering the national market is prohibited as well.
- --> prevails national law
Example: Jean-Marc Bosman (football transfer)
Possible consequences in case of limitless free trade
- Limitless free trade could lead to undermining local democracy.
- No attention for the down effects of LFT. (Such as environment, modern slavery, poverty)
- Local culture can be undermined, because of the pervasiveness of global branding (Mcdonalds vs Snackbar het vogeltje)
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Balancing the Internal Market against other interests
- Under certain circumstances, the Court or the law accepts certain exceptions on the free movement law
- TFEU + directives + regulations allow exceptions on the principle of free trade/movement (for the protection of public interests)
Indistinctive applicable rule (based on balancing interests IM)
- Indirect discrimination based on nationality
Example
(Only people how attained diploma at Dutch university)
--> No direct discrimination on nationality but still there is some sort of discrimination on it because a Dutch person is more likely to have attained a diploma at a Dutch university that a German person
Exceptions/derogations on distinctive vs indistinctive applicable rule
Derogations on free movement law
- Article 36 TFEU (Art. 30 EEC) (+/-)
- Rule of Reason: Additional derogations on mandatory requirements (-)
- Ban on quantitative restrictions + MEQR: Article 34 TFEU
Treaty derogations (distinctive + indistinctive)
(exceptions based on distinctive + indistinctive rules)
Explicitly stated in the treaties -> TREATY DEROGATIONS
- can be relied on in case of both distinctive and indistinctive applicable national rules
- limited and static —> free movement of goods when protecting public security and others
- very limited list in the treaties
Public goods:
- Protection of the environment
- Public morality
- Public health
- Public policy (narrow interpretation in terms of possible derogations)
- Public security
- etc
Case law derogations/ rule of reason exceptions
(only indistinctive)
(exceptions based on distinctive + indistinctive rule of free movement law)
Under certain circumstances there also need to be additional exceptions: the case law exceptions
- unlimited and dynamic
- applicable ONLY in case of indistinctive applicable rule
Public goods:
- Preservation of the machinery of the state
- Protecting civil liberties
- etc
Economic reasons can never justify restrictions/exceptions on intra-European free movement
- Motive? To protect national good —> protectionism
--> So there is a ban on protectionism in trade relations between EU member States
- How to define a Member State's true motive?
--> It is hard to define when a MS wants to protect economic benefits because it addresses the issue by another motive such as based on health policy or another social policy when it is actually covering economic motives, prospering MS's proper economy (exceptionally may be a derogation)
- Ban does not apply in external relations (outside internal market e.g EU vs. China)
Additional requirements for Member States to prove that there is no protectionist interest in order to file rightfully for derogation IM
- For Ms it is never enough to rely on an exception (social, health...)
- They cannot simply say to protect environment --> appropriate evidence
- They need to prove that the national legislation they want to issue/ban needs certain additional requirements (PEN)
The national rule at hand must ALWAYS be PEN in order to profit from derogation of free movement law:
- Proportional (i.e. the least restrictive option available, so, still want to cooperate and not to unconditionally benefit MS's protectionism --> appropriate evidence)
- Effective (i.e. Still achieve the result strived for to prevent protectionism)
- Necessary (i.e So, not to be beneficial for MS individually, but for the MS in order to stimulate the internal market)
- Arbitrary discrimination (or disguised restriction) (Art. 36 TFEU)
- Procedurally fair
- In respect of fundamental rights (complicated, since national constitutions and Court of Justice are not always harmonized)
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