Introduction
At the time when the Treaties establishing a European Coal and Steel Community,1 a European Economic Community2 and a European Atomic Energy Community3 entered into force, the constitutional implications of creating a common market may have been difficult to predict.4 However, over time, the case law of the Court of Justice allowed for a market constitution gradually to come in place. The objective of establishing a common market envisaged by the Treaty establishing the European Economic Community has enabled the Court of Justice of the European Union to turn fundamental free movement provisions into constitutional benchmarks that have come to determine Member States’ freedom to regulate their economies.5
As the Court of Justice acted increasingly as a constitutional court relying on its previously established doctrines of direct effect and primacy of supranational law6, a particular substantive constitutional understanding of those
The interpretation and application of free movement provisions in the Court of Justice’s case law in particular allow to discern a specific balancing focus made in that regard, with market access becoming a key principle in the setup of the EU’s internal market. That focus has seen the light in the case law regarding the free movement of goods and has spread subsequently to other fundamental freedoms (1.). The market access focus has a direct impact on the ways in which Member States can still regulate their economies, on the interaction and tensions between economic freedoms and other fundamental rights and on the format and scope of EU secondary legislation completing the internal market (2.). The contribution summarizes those developments, aiming to give the reader a general overview of the current shape of the EU’s microeconomic constitution underlying its internal market project. The purpose here is not to criticise, confirm or reject this economic constitution.8 It only aims to present its status quo and impact on EU and national rule- and policymaking. From that point of view, it is meant to serve as a starting point for a more critical reflection and debate on the (positive and/or negative) effects the constitutionalization of the internal market has brought about.
1
In order to ensure lasting peace across the European continent, the integration of different national economies had been proposed in the wake of the Second World War.9 Following a successful integration of the War-related coal and steel industries, the project of European economic integration continued across other sectors as well, despite the failures to advance political and military integration.10 In that context, the eec Treaty envisaged the establishment of a common market.11 Absent a clear definition appearing within the Treaty itself, the 1956 preparatory Spaak Report defined the key ambition of the common market as creating “une vaste zone de politique économique commune, constituant une puissante unité de production, et permettant une expansion continue, une stabilité accrue, un relèvement accéléré du niveau de vie, et le développement de relations harmonieuses entre les États qu’il réunit” .12 Since 1986, the tfeu envisaged the establishment of an internal market.13 That notion has replaced the common market notion since the entry into force of the Lisbon Treaty in 2009 and is defined as 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 description and definition of such area without internal frontiers leave much room for the design and development of different types of economic governance. The notion of an ‘area without internal frontiers’ or a ‘zone de politique économique commune’ can be organized in different ways and by making different economic choices. In a certain way, the Treaty did reflect an important degree of variety present in the different Member States’ economic systems.14 Those differences granted more or less room to state-owned enterprises, to private initiative or to government participation in corporate governance. Given those varieties, the founding fathers of the common market did not desire to impose one clear economic policy choice at the outset. As a result, the
The four freedoms and the legal framework surrounding them can be considered as the constitution of the internal market.19 That constitution has appeared very open-ended at the outset and it has fallen upon the Court to make it more concrete (1.1.). Starting with an important line of case law in the realm of the free movement of goods (1.2.) and transpiring into the other fundamental freedoms (1.3.), a so-called market access-oriented constitutional framework has taken shape thanks to (or because of) the Court’s interventions. That judicially refined economic constitutional framework has a profound impact on the ways in which Member States and the EU legislative institutions remain free to organize their economies, as the next subchapter of this contribution will highlight.
1.1 The Open-Ended EU Economic Constitution and the Court of Justice of the European Union as a Constitutional Actor
The eec Treaty left Member States a significant amount of choice and freedom in the organization of their different – and diversified – national economies (1.1.1.). However, the Court of Justice’s increasing role as a constitutional actor has come to influence those choices directly (1.1.2.), steering the format of the EU internal market into a market access-oriented clearer direction (1.1.3.).
1.1.1 An Open-Ended Economic Constitutional Framework
Upon its entry into force, the eec Treaty contained several provisions aimed at creating and perfecting the EU common market, which sought to integrate the different Member States’ economies. Apart from the fact that the Treaty
The creation of a common market was to take place gradually, in a transitional period spanning more than a decade following the entry into force of the Treaty.27 Member States were to abolish their restrictive rules and a more
Upon first glance, those different provisions do not as such contain the fundamentals of a particular economic system, as would be expected normally of an economic constitution.30 The Treaty setup acknowledges the varieties of economic organization that exist in the different Member States and essentially asks those States to move towards more integration by facilitating free movement and by abolishing discriminatory rules and practices.31 A clear choice as to how much integration is to be aimed for, remains open for debate and appears to be highly dependent on the willingness and ability of the participating Member States to move forward. Apart from a clear choice for capitalist and market-based economic systems, the eec Treaty did not at the outset impose a single economic integration model on participating Member States. It could therefore be questioned whether the Treaty could be framed as an economic constitution at all.
The eec Treaty has been amended by the Single European Act,32 the Maastricht Treaty, which transformed the European Economic Community in a European Community,33 the Treaty of Amsterdam,34 the Treaty of Nice35 and the Treaty of Lisbon, which renamed it the Treaty on the Functioning of the
1.1.2 The Constitutional Role Played by the Court of Justice
Despite initiatives taken during the transitional period, the common market as envisaged by the Spaak Report had not been completed in the time frame proposed by the eec Treaty.38 The question therefore remained whether and to what extent the prohibitions on customs duties and equivalent charges, quantitative restrictions and equivalent charges, discriminatory treatment of workers and restrictions on the freedom of establishment and to provide services would have become purposeless.
In hindsight, the Court of Justice’s emerging case law gave the impression that this would not be the case. During the transitional period, the Court already showed that it would be able – thanks to the creation of the preliminary ruling mechanism which allowed it to reply to national judges’ legal questions – and willing to defend and interpret the eec Treaty as if it were a constitutional charter of a supranational polity.39
The carving out of its doctrines of ‘direct effect’ in Van Gend & Loos and ‘primacy’ in Costa v ENEL confirmed the Court’s constitutional role in that regard.40
Those judgments have laid the foundations for our understanding of the eec Treaty as a supranational economic constitution,44 and then a basic constitutional Charter.45 It suffices to remember that, in both Van Gend & Loos and Costa v. Enel, the Court touched upon questions of economic policy at Member State level. Although the Court did not address those economic choices directly by interpreting the substantive scope of the eec Treaty as an economic constitution, both judgments demonstrate that the Court would not shy away from doing so in the future.
Van Gend & Loos directly dealt with a customs duty question in the transitional period, the Court confirmed that individuals could rely on eec Treaty provisions to the extent that they were sufficiently clear, precise and unconditional.46 Insofar as such provisions contained negative
It follows from both judgments that the Court of Justice would be willing to interpret the scope of the eec Treaty’s economic integration provisions in disputes between individuals and Member States.51 By recognizing direct effect and primacy, despite the reluctance of some States to do so,52 the Court could come to play a direct role as the guarantor of the Treaty’s economic choices. One could even argue that, absent clear choices in the Treaty and
1.1.3 Integrating Economies: Between Non-discrimination and Market Access
Confronted with an unfinished common market at the end of the transitional period and a Court having acknowledged the existence of direct effect and primacy of eec law provisions, it could have been expected that the Court would come to play the role of an economic constitutional arbiter.53 Such role proved necessary as it was unclear what type of economic constitutions the prohibitions on free movement restrictions envisaged. As apparent from the cursory overview above, one can essentially identify two key legal principles appearing simultaneously within the eec Treaty.
On the one hand, the Treaty could be understood essentially as requiring above all the abolition of restrictions that contained a discrimination on the basis of nationality or origin of persons, goods or capital. That prohibition on discrimination would entail the obligation to create a level playing field for all goods, persons and capitals independent of where they come from or are headed to. In that economic constitutional framework, the supranational polity would only consider maintaining or adopting discriminatory rules as suspicious and potentially prohibited. National rules that would apply without any distinction to national and foreign products, persons, services or capital transactions would be left untouched by supranational law. Those rules could remain in place and they would not have to be justified or evaluated against the background of the eec Treaty. Rules that are not discriminatory would not be considered restrictive from a supranational law point of view. As a result and comparable to international trade agreements such as the General Agreement on Tariffs and Trade (gatt), those Member States would remain free to impose
On the other hand, the Treaty’s provisions prohibiting restrictions on the free movement could also be understood more generally as incorporating a wider market access rule. According to that rule, all Member States have to guarantee the widest possible access to their markets of goods, persons, services and capital coming from another Member State. Any rule, even when it is indistinctly applicable with regard to the origin of the good or subject concerned, would be considered suspicious under the market access principle. The Member State which has adopted the rule in question would be required to justify its maintenance in force by referring to objectives in the general interest recognized as such under supranational law. In the same way, the Member State could be required to demonstrate that the rule in question is the most apt and the least restrictive to protect the objective in the general interest recognized under supranational law. Contrary to the non-discrimination approach, which focuses primarily on host state regulatory powers, the market access rules require host states to the largest extent possible to recognize products, workers, services and capital manufactured, trained, offered and generated in accordance with home state rules. From the perspective of different Member States, any rule on their books that has an even indirect impact on free movement, would have to be justified, even when it would not distinguish between national and foreign characteristics.
The question as to whether the Treaty contained an elaborate non-discrimination rule – comparable with the gatt provisions and leaving Member States free to impose rules that apply without discrimination to all goods, persons, services or capital transactions – or rather a more broad-brush market access rule – making any national rule potentially suspicious and requiring justification by national rule-setters – has come to dominate
1.2 The Emergence of a Market Access Constitution in the Realm of Goods
The question whether a non-discrimination and/or market access rule was to be interpreted in the fundamental freedoms emerged in the very first place in the context of the free movement of goods. The abolition of non-fiscal barriers has been subject to a market access approach since the seminal cases in Dassonville and Cassis de Dijon. At the same time, however, cases such as Groenveld and even Keck & Mithouard gave the impression that the Court’s choice for a market access rule was not as absolute as its proponents would have wanted. More recent case law nevertheless has removed any doubts, fully adhering to the market access approach (1.2.1.). In the framework of fiscal barriers to the free movement of goods, a market access approach has been defended as well, albeit limited to taxes levied on the occasion of crossing an inter- or intra-State border. For non-border-related taxes, a non-discrimination approach remains in place due to the explicit recognition of this approach in Article 110 tfeu (1.2.2.). The overall picture that emerges is a preference for market access constitutionalism, unless the founding Treaties explicitly require a non-discrimination approach to be maintained. It is submitted that this market access focus also explains the limited role the fundamental freedoms play in legal relationships between private individuals (1.2.3.).
1.2.1 Non-physical Barriers: the Meandering Road to Market Access Constitutionalism
The question as to the nature of the eec’s economic constitution emerged most prominently in the framework of non-fiscal barriers to the free movement of
The key question that has emerged in practice is whether the notion of measures having an equivalent effect to quantitative import and export restrictions (meeqr) contains a market access or non-discrimination principle. The Court’s case law on the matter, both in relation to import and export restrictions, has for a long time, given mixed responses, although the question currently seems settled in favour of the market access interpretation.
In relation to import restrictions, the Court in Dassonville famously proclaimed that all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions.57 It would follow from that definition that any national rule that has an even indirect effect on the cross-border flow of goods would be qualified as an meeqr and would therefore be suspicious to such an extent that it would be prohibited unless a suitable justification could be offered by the State that adopted the rule under scrutiny.58 That case law has been interpreted as the start of the Court’s market access constitutionalism approach, in accordance with which the Court would require all Member States to critically review their rules in place and to remove the ones that impose an unjustifiable restriction on the free movement of goods.59 The fact that those rules do not discriminate against imported goods would not be relevant. The mere potentiality that the rule could have that effect would suffice to qualify it as an meeqr.
Legitimate questions have been raised therefore as to whether the Court had really meant to offer a definition that also extended to such indistinctly applicable rules. One had to wait for the famous Cassis de Dijon judgment to obtain confirmation in that regard. In that case, an indistinctly applicable rule limiting the commercialization of an alcoholic beverage was at stake. The French Cassis de Dijon could not be sold as liquor in Germany, because of
In Keck & Mithouard, the Court of Justice decided, in light of those circumstances, to exclude national rules on selling arrangements from the meeqr’s definition. According to the Court, those rules are supposed not directly or indirectly to hinder the free movement of goods and do not therefore qualify as meeqr, “so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States”.69 In practice, the Court has interpreted the category of excluded selling arrangements very narrowly70 to rules involving sales and promotions such as shop opening hours71 and methods of advertisement72 or
The Keck exception category has re-opened debates on whether or not the Court wanted to introduce a discrimination-oriented approach over a market access approach. At first sight, the fact that only selling arrangements that are discriminatory or that, de jure or de facto, render the marketing of foreign products more difficult, appears to highlight that the Court targets above all measures distinguishing between national and foreign products.75 However, in different cases applying the Keck reasoning, the Court seems to imply that any selling arrangements making market access of foreign products more difficult cannot benefit from the exception.76 As a result, it would seem that the market access approach remains in place, yet is softened for one exceptional category of national rules. In recent case law, the Keck exception category is seldom invoked in a successful way, giving rise to questions whether it has any
With the explicit recognition of its market access approach, the Court extended the possibilities for Member States to justify their suspicious rules. In Cassis de Dijon, it was ruled that indistinctly applicable measures could be justified by mandatory requirements in addition to the Treaty derogations. However, the Court held for a long time that distinctly applicable measures could not be justified on the basis of those requirements. Those measures could be justified only on the basis of the derogations outlined in Article 36 tfeu.80 As a result, the classification of a measure as discriminatory had an impact on the scope of justifications available. In its most recent case law, however, the Court abandoned this distinction, allowing mandatory requirements to be invoked in the context of distinctly applicable measures as well.81 That
In the framework of export restrictions, the Court has not unequivocally applied its Dassonville-Cassis de Dijon formula. In its 1979 Groenveld judgment, the Court held that national rules restricting exports of goods constituted prohibited meeqr only if they explicitly distinguished between products destined for the national market and exported products.82 In order to qualify as an meeqr, the national rule would have to be discriminatory. Absent such overt discrimination, export restrictions did not violate EU internal market law. However, in its Ghysbrechts and New Valmar judgments, the Court confirmed the applicability of its market access approach to export restrictions as well.83 As a result, every national rule that potentially hinders the free export of goods is suspicious and needs to be justified by the Member State wishing to maintain it. In practice, that means that almost all rules that have an even remote or potential impact on exports towards other Member States, now fall within the meeqr definition.84
It follows from the foregoing that, despite the Court’s market access approach in Dassonville and Cassis de Dijon, its case law in Keck & Mithouard and Groenveld for a long time kept debates open as regards whether or not the presence of discrimination on the basis of nationality, origin or destination of a product was a necessary or sufficient element to consider a measure as an meeqr. Recent case law makes clear that this approach is not maintained: any rule that restricts, even remotely or potentially, the access to the market of goods lawfully present in another Member State, would need to be justified on the basis of one of the public interest objectives recognized by the Court. As a result, all national rules are in theory unlawful, unless and until they have been confirmed as proportionate to one of those objectives. The Court of Justice,
1.2.2 Fiscal Barriers to Goods: A Complementary Non-discrimination Approach?
In the framework of fiscal barriers to trade, the eec Treaty itself made and the tfeu still makes an important distinction between customs duties and equivalent charges, which had to be abolished in the interest of setting up a customs union and other taxes levied on goods, in the context of which Member States retain an important degree of autonomy.
Article 30 tfeu prohibits all customs duties between the Member States as well as any charge having an equivalent effect. The latter notion has been defined in an extensive fashion by the Court of Justice as comprising any charge which, by altering the price of an article exported, has the same restrictive effect on the free circulation of that article as a customs duty.86 The Court later clarified that the imposition of such a tax when crossing an internal border within a single Member State is equally prohibited by EU law.87 As a result, the Court has favoured an unfettered market access approach in this context as well. Any tax that would be levied for the sole or principal reason of having crossed a territorial border within the EU internal market is prohibited. Such taxes directly impede the free circulation of goods anywhere across the internal market territory and cannot therefore be maintained.88 Contrary to non-tariff barriers, Member States do not as such have the possibility to justify the maintaining of such taxes, which are prohibited absolutely.89
1.2.3
The free movement of goods case law overview allows to establish that the Court has maintained a preference for market access constitutionalism. That preference has only manifested itself gradually, as the case law shows that non-discrimination approaches have not been discarded completely. The explicit non-discrimination approach in Article 110 tfeu appears to highlight that market access constitutionalism cannot be extended to the field of the taxation of goods, whenever the Treaty explicitly provides for a non-discrimination approach to be followed. However, the more recent goods case law clearly demonstrates that market access constitutionalism now presents itself as the preferred interpretation of the free movement of goods in the Court’s case law.95 Absent an explicit Treaty preference for a non-discrimination approach, the Court has steered the constitutional framework ensuring the free movement of goods in the direction of a market access constitution.
The preference for market access constitutionalism and the wide scope of the free movement of goods that follows from it has an important side effect. Since almost all rules or practices may be considered suspicious when they have an indirect effect on the free movement of goods, it cannot be excluded that private individuals can also restrict the free movement of goods by refusing to buy foreign products or refusing to contract with importers of certain goods. In a purely market access-oriented economic constitutional framework, such private unilateral actions could also have an impact on the free movement of goods. The Court nevertheless confirmed that the free movement of goods provisions only target action by public authorities and those private associations that have been delegated or are assuming regulatory powers in the collective interest. Over time, however, the Court has not shied away from interpreting that notion in an extensive manner. As a result, standardization organizations, sports associations or trade unions would all fall within its scope.96 Despite that extensive interpretation, the market access-oriented interpretation given to the free movement of goods by the Court does not extend to purely private actions.
1.3
The preference for market access constitutionalism characteristic of the free movement of goods can also be found in the Court’s case law on the free movement of workers (1.3.1.), the freedom of establishment and to provide services (1.3.2.) and the free movement of capital (1.3.3.). That is striking, given that such coherent interpretation between all four freedoms had not necessarily been imposed or foreseen by the eec Treaty itself.97 Somewhat remarkable, despite the Treaty’s reference to discrimination in the context of workers, the Court interpreted that notion as referring to all restrictions, even absent any kind of discriminatory treatment of workers of different nationalities. The preference for market access constitutionalism also implies that the provisions generally target state measures and measures emanating from private organizations or associations assuming or having been delegated some kind of State power. Given their wide scope, the market access-oriented fundamental freedoms do not generally apply in relationships between private persons.
The emerging preference for market access constitutionalism within the other fundamental freedoms has not completely downplayed the importance of discrimination as a pillar of the EU’s internal market constitution. In the freedoms outlined here, the Court still considers that the presence of direct discrimination in Member States’ rules under scrutiny limits the justifications those States can offer. In that case, only Treaty derogations can be adduced to justify maintaining a discriminatory restriction. By contrast, Member State rules that do not explicitly distinguish between foreign and national workers, services or economic actors, could still be justified on the basis of the broader overriding reasons in the public interest justification category.98 The presence or not of discriminatory treatment thus still determines the scope of justificatory reasons that can be offered in the framework of the freedoms analysed here.
1.3.1
Article 45 tfeu ensures the free movement of workers by prohibiting all discrimination against workers having a nationality different from the Member State of employment.99 The Court of Justice made clear that the notion of discrimination covered in Article 45 also covers rules and practices that do not distinguish directly between workers of different nationalities but are applicable without any distinction.100 Rules or practices that make the access to another labour market potentially more difficult would be considered restrictive under Article 45 tfeu and therefore suspicious. As a result, almost all rules that have a potential impact on the free movement of workers could be prohibited absent justification. Although the Court has seemingly indicated that some rules inherently do not constitute restrictions,101 it has not identified an exception category: in principle, all access-restraining rules constitute restrictions to the free movement of workers.102 The Member State wishing to retain them would have to offer a justification on the basis of one of the explicitly recognized Treaty derogations or the open-ended list of overriding reasons in the public interest and would have to convince the courts of the proportionate nature of that rule or practice.
In this particular context, the Court confirmed that private employers could not discriminate on the basis of nationality.103 The Court left it open for future interpretation whether those private employers could not impose non-discriminatory and indistinctly applicable restrictions either. In light of the
1.3.2 Freedom of Establishment and Freedom to Provide Services
The same market access-oriented definition of restrictions underlies the freedom of establishment and the freedom to provide services recognized by Articles 49 and 56 tfeu. According to well-established case law, the notion of restriction implies that “any national measure which is liable to hinder or render less attractive the exercise by EU nationals of the freedom of establishment guaranteed by the tfeu. [It also] covers measures taken by a Member State which, although applicable without distinction, affect access to the market for undertakings from other Member States and thereby hinder trade within the EU”.104 The same definition applies to the freedom to provide services.105 The Court implicitly acknowledges that any rule that makes the cross-border establishment or service offering more difficult is suspicious and could be prohibited absent justification by an overriding objective in the public interest
The only exception to this wide market access principle lies in the concept of legal personality. If the corporate law of one Member State does not allow the transformation of a legal person created under the law of another Member State (e.g. a Belgian Société Anonyme) into an equivalent legal person in its own legal order (e.g. a German Aktiengesellschaft) without dissolving the corporation in its Member State of origin first, no restriction of free movement is in place.108 Given that corporate laws and the formal and substantive requirements to establish corporations differ between and are essentially linked to the sovereign choices made by the different Member States, it cannot be expected that every Member State simply allows the relocation of such corporations without dissolution and re-establishment in the territory of another Member State.109 Apart from that exception, the Court retains a market access approach in relation to both fundamental freedoms.
1.3.3
The free movement of capital is enshrined in Article 63 tfeu and has benefited from direct effect only since the Maastricht Treaty.110 From the outset, however, the Court has also propelled a market access approach in this field. By way of example, the Court has stated that “[m]easures taken by a Member State which are liable to dissuade its residents from obtaining loans or making investments in other Member States constitute restrictions on movements of capital within the meaning of that provision”.111 The market access focus pervades all cases regarding capital movements, rendering all potentially restrictive rules suspicious. The prohibition on restrictions only targets state measures or measures emanating from private associations acting in the public interest.112
Somewhat remarkably, and contrary to the free movement of goods case law, the Court acknowledged that tax measures that dissuade the free movement of capital also need to be considered as suspicious. However, Article 65 tfeu allows Member States to continue to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested.113
2 The Lasting Impact of EU Market Access Constitutionalism
It follows from the overview in the previous sections that the Court identifies market access as the core value underlying free movement restrictions in EU internal market law. Although non-discrimination focuses remain in place in the context of the taxation of goods and as a means to extend the horizontal
It is submitted that, despite the apparent open-ended nature of the tfeu’s free movement provisions, the Court’s market access focus steers Member States’ and EU’ legislative policies in a decisive direction. More particularly, it directly impacts the ways in which Member States can regulate their economies (2.1.), the relationship between fundamental freedoms and other fundamental rights (2.2.) and the scope of legislative harmonization measures taken at EU level (2.3.). As a result, market access constitutionalism also influences legislative and regulatory policies that are not directly aimed at addressing the free flow of goods, persons, services or capital.
2.1 The Impact of Market Access Constitutionalism on Member States’ Regulation of the Economy
The Court’s choice to interpret the fundamental freedoms as key drivers for market access in the EU internal market has a profound impact on the ways in which constitutions and regulations of Member States – at national, regional or local levels, including the ones emanating from private associations acting in the collective interest – can regulate the economy and, more generally, socio-economic relationships within their territories.114 It follows directly from the Court’s case law that any Member State rule or administrative practice – even in domains not directly referring to the free flow of goods, persons, services or capital – that may have a potential impact on free movement would have to be justified in order to guarantee its continued application. As a result, Member States had to become aware that any regulation they intended to maintain or adopt could have a potential impact on market access.
From a more practical point of view, Member States are thus forced in a defensive mode. When adopting, revising or evaluating the rules in place, they are in principle required to assess whether their rules have an impact on free movement. Given the very wide definition read into the tfeu by the Court, that tentative conclusion will almost always be drawn. In that case, the rule may potentially constitute a prohibited restriction on free movement, unless a
It would therefore be tempting to argue that the Court thus gives way to a neoliberal society in which regulation needs to make way for free market access.115 However, that argument lacks nuance. Although Member States’ rules would have to be justified, the Court has left a significant amount of discretion to the Member States to adduce a justificatory reason. In the context of goods, every rule, even one containing explicitly discriminatory provisions against foreign goods, can be justified by the limited Treaty derogations and an open-ended list of mandatory requirements. In the context of the other freedoms, rules that discriminate explicitly against foreigners would need to be justified on the more limited justificatory derogations recognized explicitly by the tfeu; other rules could also be justified by an open list of non-economic overriding reasons in the public interest. Those requirements or reasons include grounds of social policy, the protection of other fundamental rights such as the freedom of expression, consumer protection, a balanced budget in social security and other essentially non-economic policy justifications. In the absence of EU secondary legislation, Member States retain discretion to justify their regulatory choices and to bring evidence that the rule does not constitute a disproportionate intrusion into guaranteeing market access.
In addition, the market access focus proposed by the Court implies that Member States essentially avoid confrontations with EU economic constitutional law when they recognize rules of other Member States as equivalent and have to grant products and persons respecting those rules access to their markets. Any exception to such equivalence remains possible and could be the subject of regulation, yet such regulation would need to be justified. In addition, Member States could still regulate situations not having a cross-border element more strictly than cross-border market access situations.116 Theoretically, that would mean that Member States can impose stricter rules
2.2 Market Access, Economic Freedoms and Other Fundamental Rights
By interpreting market access as the principle and other regulations as exceptions which require justification, the Court implicitly yet controversially awards a super-constitutional status to the Treaty fundamental freedoms. Those freedoms are presented as core values that need to be protected, whereby any limitation of them requires careful justification. As a result, measures taken to protect other, non-economic fundamental rights such as the freedom of expression, the freedom of association and the protection of human dignity would be framed as exceptions to the overall key principle of free movement. More generally, that framing would mean that other fundamental rights appear less important and would give way to the oft-heard criticism that the Union internal market freedoms pursue an essentially neoliberal agenda.117 Criticism to this approach has most notably been voiced in the context of the Viking and Laval cases whereby freedom of establishment or to provide services colluded with the right to strike or other social rights.118 The fact that, for a long time, those other fundamental rights were not explicitly referred to in the founding EU Treaties most likely contributed to that sentiment. The adoption of a binding Charter of Fundamental Rights in the European Union was believed by some to contribute to the
Despite that framing and the criticism it faces, the Court has acknowledged the existence of other fundamental rights as general principles of EU law since the 1970s.120 More particularly, market access and the protection of other fundamental rights need to be balanced on a case-by-case basis.121 The Court therefore does not exclude that market access can be refused in the interest of fundamental rights protection.122 In practice, that means that the fundamental freedoms do not automatically and always supersede those other fundamental rights, despite the case law framing internal market cases as requiring a balance between economic freedoms and other fundamental rights. Given the interpretation accorded to the fundamental freedoms by the Court, attention to market access cannot be ignored, simply because other fundamental rights recognized at EU or national constitutional level are at stake. The constitutional status of market access requires this value to be taken into consideration at all times when rules – including other fundamental rights – may have an impact on EU internal market freedoms.
2.3 Legislative Harmonization against the Background of a Market Access Constitution
The Court’s market access constitutionalism approach also profoundly influenced the way in which EU legislative measures to complete the internal market have been structured. One the one hand, it has given rise to a harmonization framework based on mutual recognition of goods’, persons’ or services’ regulations. On the other hand, EU regulatory initiatives, both directly and indirectly related to the free movement, have been structured in accordance with a clear market access logic.
During the transitional period, the Member States had envisaged to harmonize the regulatory requirements imposed on products and services by adopting instruments that outlined in a more uniform way the production processes, commercialization opportunities and other arrangements. However, this approach soon reached its limits, as technological process and rapid innovation meant that harmonized product standards would soon be outdated and ineffective.123 The European Commission therefore took steps to reframe its harmonization initiatives in line with the Court’s market access approach. In the wake of the Cassis de Dijon judgment, the Commission proposed a regulatory framework grounded in the mutual recognition of products (and services) lawfully manufactured or offered in another Member State. Host Member States would have to recognize those products or services as equivalent with their own safety standards and grant them access to their market.124 To ensure the safety and security of those products, the EU set up an elaborate standardization regime, whereby industry representatives united in standardization
In addition to EU regulatory initiatives grounded in mutual recognition, other harmonization initiatives are also very much influenced by the dominant market access frame. It suffices to refer to harmonization taking place in the fields of consumer, public procurement and financial services law,129 where attention to market access determines how those fields are regulated. In applying or transposing those instruments in their national legal orders, national law is essentially moving towards a more market access – and overall, more economic efficiency-oriented – framework.130 Those developments again force Member States in the defensive and require them to justify, on the basis of other non-economic public interest objectives, why they would want to maintain prima facie restrictive rules. When the EU legislator reverts to maximum harmonization, the regulatory instrument itself strikes a balance between market access and other public interest objectives.131 Market access there also keeps operating in the background and directly limits Member States’ regulatory autonomy in that context, despite the EU’s increasing attention to other values as well. The constitutional role played by the fundamental freedoms requires that the
Conclusion
The purpose of this contribution has been to revisit how the Court of Justice contributed to the constitutionalization of the EU’s internal market. Focusing on the case law related to the internal market fundamental freedoms, it retraced how the Court has been instrumental in translating open-ended Treaty provisions into an economic constitutional framework centred on market access. Although the Treaties refer to non-discrimination as a key value underlying the internal market, the Court’s case law makes clear that such attention to non-discrimination needs to be embedded directly in the ambition to ensure the widest possible access for goods, persons (at least workers), services and capitals to other Member States’ markets.
The market access focus thus read into the EU Treaties has a profound and direct impact on the ways in which Member States can structure and regulate their economies, on the interaction between economic freedoms and other fundamental rights and on the scope and focus of EU secondary legislation initiatives. The contribution therefore submitted that, despite the open-ended nature of the free movement provisions, the Court contributed significantly to shaping the ways in which Member States at present can still take initiatives to regulate their economies in the shadow of the internal market freedoms. That legacy cannot be ignored in and continues to shape current debates and reflections on whether and how to constitutionalize the economy at the level of the EU itself and of its Member States.
Treaty establishing the European Coal and Steel Community of 18 April 1951, 261 United Nations Treaty Series 140.
Treaty establishing the European Economic Community of 25 March 1957, 298 United Nations Treaty Series 11 (hereafter eec Treaty).
Treaty establishing the European Atomic Energy Community of 25 March 1957, for a consolidated version, see
Ed.: see infra in this volume, C. Mongouachon, « Les difficultés d’une interprétation ordolibérale de la constitution micro-économique de l’Union européenne ».
See to that extent, M. Poiares Maduro, We the Court. The European Court of Justice and the European Economic Constitution: a critical reading of Article 30 of the EC Treaty, Oxford, Hart Publishing, 1998. Ed.: for a critical assessment of this ‘constitutional’ rhetoric applied to European integration, see however infra in this volume, P. Lindseth & C. Fasone, « The Eurozone Crisis, the Coronavirus Response, and the Limits of European Economic Governance ».
See in that regard, J.H.H. Weiler, « The Community System: the Dual Character of Supranationalism », Yearbook of European Law, 1981, n° 1, pp. 267–306; L. Azoulai, « Le rôle constitutionnel de la Cour de justice des Communautés européennes tel qu’il se dégage de sa jurisprudence », Revue trimestrielle de droit européen, 2008, pp. 29–45.
J.-P. Jacqué, « La Constitution de la Communauté européenne », Revue universelle des Droits de l’Homme, 1995, p. 405 : « Le traité CEE exprime une vision économique qui se traduit sur le plan juridique par un certain nombre de principes et de règles. Si une constitution contient une vision du devenir de la société, il était possible de dire en 1958 que le traité constituait une constitution économique pour la CEE. L’œuvre de la Cour contribuera au renforcement de ce caractère constitutionnel en faisant, à défaut de dispositions spécifiques, application des principes économiques contenus dans les articles préliminaires du traité tant à l’encontre des États membres qu’à l’égard des institutions ».
Ed.: for a more engaged assessment regarding this economic constitution, see infra in this volume, H.-W. Micklitz, « Society, Private Law and Economic Constitution in the EU ».
For a personal account of that ambition, J. Monnet, Mémoires, Paris, Fayard, 1976.
L. Van Middelaar, The passage to Europe – How a continent became a Union, New Haven, Yale University Press, 2013, pp. 159–180.
Article 2 eec Treaty.
The Spaak Report is available at
Single European Act, Luxemburg, 17 February 1986, [1987] o.j. L169/1. See on the Single European Act in general, J. De Ruyt, L’Acte Unique Européen, Brussels, Editions ulb, 1987.
See Q. Slobodian, Globalists – The end of Empire and the birth of neoliberalism, Cambridge (MA), Harvard University Press, 2020, pp. 191–193.
Articles 3, 9,12–17, 30–37 eec Treaty.
Articles 48–58 eec Treaty.
Articles 59–66 eec Treaty.
Articles 67–73 eec Treaty.
See also A. Hatje, « The Economic Constitution within the Internal Market », in A. von Bogdandy and J. Bast (eds.), Principles of European constitutional law, Oxford/Munich, Hart Publishing/C.H. Beck, 2010, pp. 589–622.
Article 222 eec Treaty additionally confirmed that “[t]he Treaties shall in no way prejudice the rules in Member States governing the system of property ownership”. However, the Court of Justice confirmed in its case law that any choices in favour of private or State-owned property have to comply with the fundamental economic freedoms, see Joined Cases C-105/12, C-106/12 and C-107/12, Essent, judgment of 22 October 2013 (EU:C:2013:677) Case; see also P. Van Cleynenbreugel, « No privatisation in the service of fair competition? Article 345 tfeu and the market-state balance after Essent », European Law Review, 2014, vol. 39, pp. 264–275.
Articles 18–29 eec Treaty.
Articles 30–37 eec Treaty.
Article 36 eec Treaty.
Article 48 eec Treaty.
Articles 52–55 and 62–66 eec Treaty.
Articles 92–99 eec Treaty.
Article 8 eec Treaty.
Article 2 eec Treaty.
Article 100 eec Treaty.
It is therefore not surprising that the European project was initially criticized by many neoliberal economists (see M. Wegmann, Früher Neoliberalismus und europäische Integration: Interdependenz der nationalen, supranationalen und internationalen Ordnung von Wirtschaft und Gesellschaft (1932–1965), Baden-Baden, Nomos, 2002, p. 368). Ed.: concerning the position of Röpke, see also supra in this volume, S. Audier, « Le néolibéralisme : Un “libéralisme autoritaire” néo-schmittien? ».
See on the vexed relationship between free movement rights and varieties of capitalism, J. Snell, « Varieties of capitalism and the limits of European economic integration », Cambridge Yearbook of European Legal Studies 2011, vol. 13, pp. 415–434.
Single European Act of 17 & 28 February 1986, 1754 United Nations Treaty Series 3.
Treaty on European Union (Maastricht Treaty) of 7 February 1992, 1757 United Nations Treaty Series 3.
Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts of 2 October 1997, 2700 United Nations Treaty Series 161.
Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts Participant(s) of 26 February 2001, 2701 United Nations Treaty Series 3.
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community of 13 December 2007, 2702 United Nations Treaty Series 3.
Articles 26 (internal market), 49–55 (establishment), 56–62 (services) and 63–66 (free movement of capital) of the tfeu.
See G. Rambow, « The End of the Transitional Period », Common Market Law Review, 1969, vol. 6, n°4, pp. 434–450. On the end of the transitional period as an important constitutional moment, see P. Pescatore, « Some Critical Remarks on the “Single European Act” », Common Market Law Review, 1987, vol. 24, n°1, pp. 9–18, esp. p. 11.
A. Stone Sweet and T. L. Brunell, « Constructing a Supranational Constitution: Dispute Resolution and Governance in the European Community », The American Political Science Review, 1998, vol. 92, n° 1, pp. 63–81, esp. p. 65.
ecj, Judgment of 5 February 1963, van Gend en Loos, Case 26/62 (ecli:eu:c:1963:1), [1963] ecr 1; ecj, Judgment of 15 July 1964, Costa v. ENEL, Case 6/64 (ecli:eu:c:1964:66), [1964] ecr 585; see R. Lecourt, « Qu’eût été le droit des Communautés sans les arrêts de 1963 et 1964 ? », in J. Boulouis (ed.), Mélanges Jean Boulouis, L’Europe et le droit, Paris, Dalloz, 1991, pp. 349–361; A. Vauchez, L’union par le droit : L’invention d’un programme institutionnel pour l’Europe, Paris, Presses de Science Po, 2013, pp. 181–223.
O. De Schutter, « The Balance Between Economic and Social Objectives in the European Treaties », Revue française des affaires sociales, 2006, n°5, pp. 119–142, esp. p. 122.
ecj, Judgment of 5 February 1963, van Gend en Loos, Case 26/62 (ecli:eu:c:1963:1), [1963] ecr 1.
E. Stein, « Lawyers, Judges and the Making of a Transnational Constitution », The American Journal of International Law, 1981, vol. 75, n°1, pp. 1–27; J. H. H. Weiler, « The Transformation of Europe », Yale Law Journal, 1991, vol. 100, pp. 2403–2483.
C. Engel, « Imposed Liberty and its Limits: the EC Treaty as an Economic Constitution for the Member States », in T. Einhorn (ed.), Spontaneous Order, Organization and the Law: Roads to a European Civil Society – Liber Amicorum Ernst-Joachim Mestmaecker, The Hague, Asser Press, 2003, pp. 429–437.
ecj, Judgment of 23 April 1986, Parti écologiste ‘Les Verts’ v European Parliament, Case 294/83 (ecli:eu:c:1986:166), [1986] ecr 1365.
ecj, Judgment of 5 February 1963, van Gend en Loos, Case 26/62 (ecli:eu:c:1963:1), [1963] ecr 24.
ecj, Judgment of 5 February 1963, van Gend en Loos, Case 26/62 (ecli:eu:c:1963:1), [1963] ecr 25.
ecj, Judgment of 9 mars 1978, Amministrazione delle Finanze dello Stato v Simmenthal SpA, Case 106/77 (ecli:eu:c:1978:49), [1978], ecr 644, para. 21–22.
ecj, Judgment of 15 July 1964, Costa v. ENEL, Case 6/64 (ecli:eu:c:1964:66), [1964] ecr 594.
ecj, Judgment of 15 July 1964, Costa v. ENEL, Case 6/64 (ecli:eu:c:1964:66), [1964] ecr 598.
J. Rondu, L’individu, sujet du droit de l’Union européenne, Brussels, Bruylant, 2020, pp. 133–212.
This is why the former President of the Court, Robert Lecourt, asked in 1976 the following question : « Combien de temps eût-on dû attendre la claire reconnaissance de l’effet direct et de la primauté des actes communautaires s’il avait fallu les subordonner à la négociation d’un texte explicite ? » (R. Lecourt, L’Europe des juges (1976), Brussels, Bruylant, 2008, p. 307).
See the discussion, recently mentioned by Jean Félix Delile (« La démocratie à l’épreuve de la constitution économique européenne : réflexions autour de la proposition Grimm », in E. Carpano and G. Marti (eds.), Démocratie et marché dans l’Union européenne, Brussels, Bruylant, 2021, p. 74) between Pierre-Henri Teitgen, Maurice Lagrange and Léontin-Jean Constantinesco (see Institut d’Études Juridiques Européennes (ed.), La Constitution économique européenne. Actes du 5e colloque sur la fusion des communautés européennes organisé à Liège les 16, 17 et 18 décembre 1970, Liège/The Hague, Martinus Nijhoff, 1971, pp. 191–197). See also L. Zevounou, « Le concept de “constitution économique” : Une analyse critique », Jus Politicum, 2018, n°s 20–21, pp. 445–482, spéc. pp. 472–475.
For an argument in favour of such a discrimination-centred approach, see G. Marenco, « Pour une interprétation traditionnelle de la notion de mesure d’effet équivalant à une restriction quantitative », Cahiers de Droit Européen, 1984, vol. 20, nos 3–4, pp. 291–364, esp. p. 349.
R. Schütze, « Re-constituting the internal market: Towards a common law of international trade? », Yearbook of European Law, 2020, vol. 39, pp. 250–292, esp. p. 262.
See e.g. M. Waelbroeck, Les réglementations nationales de prix et le droit communautaire, Brussels, Edition de l’Université de Bruxelles, 1975, p. 23.
ecj, Judgment of 11 July 1974, Procureur du Roi v Benoît and Gustave Dassonville, Case 8–74 (ecli:eu:c:1974:82), [1974] ecr 852.
M. Poiares Maduro, « Revisiting the free movement of goods in a comparative perspective », in A. Rosas, E. Levits and Y. Bot (eds.), The Court of Justice and the Construction of Europe: Analyses and perspectives on sixty years of case law, The Hague, Asser Press, 2012, pp. 489–490.
J. H.H. Weiler, « Epilogue: Towards a Common Law of International Trade », in J.H.H Weiler (ed.), The EU, The WTO and the NAFTA: Toward a Common Law of International Trade, Oxford, Oxford University Press, 2000, pp. 201–232, esp. p. 215.
During the 1930s, the Belgian parliament passed several acts to give ‘special powers’ (for a presentation of this notion, see F. Bouhon, A. Jousten and X. Miny, « Belgique: Entre absence d’état d’exception, pouvoirs de police et pouvoirs spéciaux », in I. Diez Parra (ed.), Droit d’exception, une perspective de droit comparé, Brussels, Publication of the European Parliament Research Service, 2021) to the King – i.e. the Government – “in the hope of economic and financial recovery” and to enhance the protection of industrial and commercial property rights. On the basis of a legislative act of 31 july 1934, the Royal Decree no. 57 of 2 December 1934 provides that it is prohibited to import, sell, display for sale, have possession of or transport for the purposes of sale or delivery, spirits bearing a designation of origin duly adopted by the Belgian Government when such spirits are not accompanied by any official document certifying their right to such designation.
See R. Joliet, « La libre circulation des marchandises : l’arrêt Keck et Mithouard et les nouvelles orientations de la jurisprudence », Journal de droit européen, 1994, vol. 2, n°12, pp. 145–151, esp. 146; R. Schütze, « ‘Re-Reading’ Dassonville: Meaning and understanding in the history of European law’ », EUI Department of Law Research Paper no. 2018/09, available at ssrn:
ecj, Judgment of 20 February 1979, Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein (Cassis de Dijon), Case 120/78 (ecli:eu:c:1979:42), [1979], ecr 649.
ecj, Judgment of 20 February 1979, Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein (Cassis de Dijon), Case 120/78 (ecli:eu:c:1979:42), [1979], ecr 662.
See « Completing the Internal Market », White Paper from the Commission to the European Council, com(85) 310 final. See also M. Ortino, « The Role and Functioning of Mutual Recognition in the European Market of Financial Services », The International and Comparative Law Quarterly, 2007, vol. 56, n°2, pp. 309–338, esp. p. 310.
See in that regard, E. Carpano, M. Chastagnaret and E. Mazuyer (eds.), La concurrence réglementaire, sociale et fiscale dans l’Union européenne, Brussels, Bruylant, 2018, 380 p. Ed.: regarding this « competition between jurisdictions », but on a more global context, see also infra in this volume, M.M. Mohamed Salah, « La mise en concurrence internationale des ordres juridiques nationaux ».
See, e.g., E. L. White, « In Search of the Limits to Article 30 of the EEC Treaty », Common Market Law Review, 1989, vol. 26, n°2, pp. 235–280; J. Steiner, « Drawing the Line: Uses and Abuses of Article 30 EEC », Common Market Law Review,1992, vol. 29, n°4, pp. 749–774.
T. Connor, « Accentuating the Positive: The ‘Selling Arrangement’, the First Decade, and beyond », The International and Comparative Law Quarterly, 2005, vol. 54, n°1, pp. 127–160, esp. p. 130.
Case 145/88, Torfaen Borough Council v B & Q plc., Judgment of 23 November 1989 (eu:c:1989:593), [ecr], 3851. See also C. Barnard, « Sunday Trading: A Drama in Five Acts », Modern Law Review, 1994, vol. 54, n°3, pp. 449–460 and J. Tillotson, « Sunday Trading and Free Movement of Goods in the EEC. Clarification at Community Level », World Competition, 1993, vol. 16, n°4, pp. 139–143.
ecj, Judgment of 24 November 1993, Criminal proceedings against Bernard Keck and Daniel Mithouard, Joined Cases 267/91 and 268/91 (ecli:eu:c:1993:905), [1993], ecr I-6097. See B. Van Leeuwen, « Market Access, the New Approach and Private Law », European Review of Private Law, 2019, pp. 279–280.
C. Barnard, The Substantive Law of the EU. The Four Freedoms, 6th ed., Oxford, Oxford University Press, pp. 142–143.
See e.g ecj, Judgment of 2 June 1994, Criminal proceedings against Tankstation ‘t Heukske vof and J. B. E. Boermans, Joined cases 401/92 and 402/92 (ecli:eu:c:1994:220), [1994], ecr i–2199; ecj, Judgment of 2 June 1994, Punto Casa SpA v Sindaco del Comune di Capena and Comune di Capena and Promozioni Polivalenti Venete Soc. coop. arl (PPV) v Sindaco del Comune di Torri di Quartesolo and Comune di Torri di Quartesolo, Joined cases 69/93 and 258/93 (ecli:eu:c:1994:226), [1994], ecr i–2355.
ecj, Judgment of 15 December 1993, Ruth Hünermund and others v Landesapothekerkammer Baden-Württemberg, Case 292/92 (ecli:eu:c:1993:932), [1993], ecr i–6787 ; ecj, Judgment of 10 November 1994, Lucien Ortscheit GmbH v Eurim-Pharm Arzneimittel GmbH, Case 320/93 (ecli:eu:c:1994:379), [1994], ecr I-5243; ecj, Judgment of 9 February 1995, Société d’Importation Edouard Leclerc-Siplec v TF1 Publicité SA and M6 Publicité SA, Case 412/93 (ecli:eu:c:1995:26), [1995], ecr i–179; ecj, Judgment of 9 July 1997, Konsumentombudsmannen (KO) v De Agostini (Svenska) Förlag AB (C-34/95) and TV-Shop i Sverige AB (C-35/95 and C-36/95), Joined cases 34/95, 35/95 and 36/95 (ecli:eu:c:1997:344), [1997], ecr i–3843; ecj, Judgment of 8 March 2001, Konsumentombudsmannen (KO) v Gourmet International Products AB (GIP), Case 405/98 (ecli:eu:c:2001:135), [2001], ecr i-1795; ecj, Judgment of 15 July 2004, Douwe Egberts NV v Westrom Pharma NV and Christophe Souranis, carrying on business under the commerical name of ‘Etablissements FICS’ and Douwe Egberts NV v FICS-World BVBA, Case 239/02 (ecli:eu:c:2004:445), [2004] ecr i-7007.
ecj, Judgment of 29 June 1995, Commission of the European Communities v Hellenic Republic, Case 391/92 (ecli:eu:c:1995:199), [1995], ecr i-1621; ecj, Judgment of 13 January 2000, Schutzverband gegen unlauteren Wettbewerb v TK-Heimdienst Sass GmbH, Case C-254/98 (ecli:eu:c:2000:12), [2000] ecr i-151; ecj, Judgment of 11 December 2003, Deutscher Apothekerverband eV v 0800 DocMorris NV and Jacques Waterval, Case 322/01 (ecli:eu:c:2003:664), [2003], ecr i-14887.
ecj, Judgment of 14 February 2008, Dynamic Medien Vertriebs GmbH v Avides Media AG, Case 244/06 (ecli:eu:c:2008:85), [2008] ecr i-505.
See also W. Wils, « The Search for the Rule in Article 30 EEC: much ado about nothing? », European Law Review, 1993, pp. 475–492.
ecj, Judgment of 14 December 1995, Criminal proceedings against Giorgio Domingo Banchero, Case 387/93 (ecli:eu:c:1995:439), [1995] ecr i-4663; ecj, Judgment of 9 July 1997, Konsumentombudsmannen (KO) v De Agostini (Svenska) Förlag AB (C-34/95) and TV-Shop i Sverige AB (C-35/95 and C-36/95), Joined cases 34/95, 35/95 and 36/95 (ecli:eu:c:1997:344), [1997], ecr i-3843; ecj, Judgment of 8 March 2001, Konsumentombudsmannen (KO) v Gourmet International Products AB (GIP), Case 405/98 (ecli:eu:c:2001:135), [2001], ecr i-1795.
See. A Mattera, « De l’arrêt ‘Dassonville’ à l’arrêt ‘Keck’ : l’obscure clarté d’une jurisprudence riche en principes novateurs et en contradictions », Revue du marché unique européen, 1994, pp. 117–160; D. Wilsher, « Does Keck Discrimination Make Any Sense? An Assessment of the Non-Discrimination Principle Within the European Single Market », European Law Review, 2008, vol. 33, n°1, pp. 3–22; E. Spaventa, « Leaving Keck behind? The free movement of goods after the rulings in Commission v Italy and Mickelsson and Roos », European Law Review, 2009, vol. 34, n°6, pp. 914–932.
ecj, Judgment of 10 February 2009, Commission of the European Communities v Italian Republic (Trailers), Case 110/05 (ecli:eu:c:2009:66), [2009], ecr i-519; ecj, Judgment of 4 June 2009, Åklagaren v Percy Mickelsson and Joakim Roos, Case 142/05 (ecli:eu:c:2009:336), [2009], ecr i-4273.
See also A. Tryfonidou, « Further Steps on the Road to Convergence among the Market Freedoms », European Law Review, 2010, vol. 35, n°1, pp. 36–56 and C. Barnard, The Substantive Law of the EU – The Four Freedoms, Oxford, Oxford Universtiy Press, 2019, pp. 136–137.
ecj, Judgment of 17 June 1981, Commission v Ireland, Case 113/80 (ecli:eu:c:1981:139), [1981] ecr 1625, para 11. The Court nevertheless rapidly acknowledged that indistinctly applicable measures producing de facto discriminatory effects could also be justified by referring to mandatory requirements, see ecj, Judgment of 17 June 1981, Commission v Ireland, Case 113/80 (ecli:eu:c:1981:139), para 14; see equally ecj, Case 16/83, Criminal proceedings against Karl Prantl, Case 16/83 (ecli:eu:c:1984:101), [1984] ecr 1299; ecj, Judgment of 25 April 1985, Commission v United Kingdom, Case 207/83 (ecli:eu:c:1985:161), [1985] ecr 1201; ecj, Judgment of 2 February 1989, Commission v Germany, Case 274/87 (ecli:eu:c:1989:51), [1989] ecr 229; ecj, Judgment of 13 December 1990, Pall Corp. v P. J. Dahlhausen & Co, Case C-238/89 (ecli:eu:c:1990:473), [1990] ecr i-4827.
E. Spaventa, « On Discrimination and the Theory of Mandatory Requirements », Cambridge Yearbook of European Legal Studies, 2000, vol. 3, pp. 457–478. See e.g. ecj, Judgment of 19 June 2003, Commission of the European Communities v Italian Republic, Case 420/01 (eu:c:2003:363), [2003], ecr i-6445; ecj, Judgment of 5 February 2004, Commission of the European Communities v Italian Republic, Case‑270/02 (eu:c:2004:78), [2004] ecr i‑1559.
ecj, Judgment of 8 November 1979, P.B. Groenveld BV v Produktschap voor Vee en Vlees, Case 15/79 (ecli:eu:c:1979:253), [1979] ecr 3409.
ecj, Judgment of 16 December 2008, Lodewijk Gysbrechts and Santurel Inter BVBA, Case 205/07 (ecli:eu:c:2008:730), [2008], ecr i-9947 and ecj, Judgment of 21 June 2016, New Valmar BVBA v Global Pharmacies Partner Health Srl., Case 15/15 (eu:c:2016:464).
See A.-L. Sibony, « Au-delà de Dassonville : l’arrêt New Valmar ou l’entrave issue du risque juridique que fait peser le législateur sur un opérateur économique (cjue 21 juin 2016, aff. C 15/15, New Valmar, eu:c:2016:464) », Revue trimestrielle de droit européen, 2017, n°3, pp. 821–824.
See M. Jesse, « What about Sunday Trading – The Rise of Market Access as an Independent Criterion under Article 34 TFEU », European Journal of Risk Regulation, 2012, vol. 3, pp. 437–444.
ecj, Judgment of 10 December 1968, Commission of the European Communities v Italian Republic, Case 7–68, (ecli:eu:c:1968:51), [1968] ecr 429.
ecj, Judgment of 16 July 1992, Administration des Douanes et Droits Indirects v Léopold Legros and others, Case 163/90 (ecli:eu:c:1992:326), [1992] ecr i-4625.
ecj, Judgment of the Court of 1 July 1969, Sociaal Fonds voor de Diamantarbeiders v S.A. Ch. Brachfeld & Sons and Chougol Diamond Co, Joined cases 2 and 3/69 (ecli:eu:c:1969:30), [1969] ecr 211.
The case law nevertheless acknowledged that fees charged for services offered by public authorities (e.g. stocking products temporarily at the border or in customs depots or charges to compensate for inspections imposed by EU law) do not constitute charges having an equivalent effect to customs duties. See to that extent, ecj, Judgment of 17 May 1983, Commisison v Belgium, Case 132/82 (ecli:eu:c:1983:135), [1983] ecr 1649, para 8 (services rendered); ecj, Judgment of 27 September 1988, Commission v Germany, Case 18/87 (ecli:eu:c:1988:453), [1988] ecr 5427, para 8 (inspections imposed by EU law) and J. Molinier and N. De Grove-Valdeyron, Droit du marché intérieur européen, 2nd ed., Paris, lgdj, 2008, pp. 32–34.
See J. Tudor, « Discriminatory internal taxation in the European Union: the power of the European Court of Justice to limit the tax sovereignty of member-states under article 110 of the TFEU », Willamette Journal of International Law and Dispute Resolution 2015, vol. 23, n° 1, pp. 141–186.
ecj, Judgment of 4 April 1968, Firma Fink-Frucht GmbH v Hauptzollamt München-Landsbergerstrasse, Case 27/67 (ecli:eu:c:1968:22), [1968].
Article 110 of the tfeu.
ecj, Judgment of 7 May 1987, Cooperativa Co-Frutta Srl v Amministrazione delle finanze dello Stato, Case 193/85 (ecli:eu:c:1987:210) [1987] ecr 2085.
M. de Wolf, Souveraineté fiscale et principe de non discrimination dans la jurisprudence de la Cour de justice des Communautés européennes et de la Cour Suprême des Etats-Unis, Brussels/Paris, Bruylant/lgdj, 2005, p. 207; K. Lenaerts and L. Bernardeau, « L’encadrement communautaire de la fiscalité directe », Cahier de droit européen, 2007, vol. 43, n° 1–2, pp. 19–110, esp. p. 60.
M. Jesse, « What about Sunday Trading – The Rise of Market Access as an Independent Criterion under Article 34 tfeu » op. cit., p. 437.
In the context of the free movement of goods, see ecj, Judgment of 12 July 2012, Fra.bo SpA v Deutsche Vereinigung des Gas- und Wasserfaches eV (DVGW) – Technisch-Wissenschaftlicher Verein, Case C-171/11 (ecli:eu:c:2012:453); see also S. Van den Bogaert, « Horizontality », in C. Barnard and J. Scott (eds.), The Legal Foundations of the Single Market: Unpacking the Premises, Oxford, Hart Publishing, 2002, pp. 123–152; C. Krenn, « A Missing Piece in the Horizontal Effect “Jigsaw”: Horizontal Direct Effect and the Free Movement of Goods », Common Market Law Review, 2012, vol. 49, pp. 177–216 and L. Gormley, « Private Parties and the Free Movement of Goods: Responsible, Irresponsible, or a Lack of Principles? », Fordham International Law Journal, 2015, vol. 38, n°4, pp. 993–1018.
See M. Tison, « Unravelling the General Good Exception: The Case of Financial Services », in M. Andenas and W.-H Roth (eds.), Services and Free Movement in EU Law, Oxford, Ofxord University Press, 2001, p. 328 quoted by S. Enchelmaier, « Four Freedoms, How Many Principles? – A review of Jukka Snell, Goods and Services in EC Law. A Study of the Relationship Between the freedom (Oxford: oup, 2002), xxxix and 251 », Oxford Journal of Legal Studies, 2004, vol. 24, no1, p. 156.
C. Barnard, The Substantive Law of the EU. The Four Freedoms, 6th ed., Oxford, Oxford University Press, p. 503.
ecj, Judgment of 4 December 1974, Yvonne van Duyn v Home Office, Case 41–74 (ecli:eu:c:1974:133), [1974] ecr 1347.
ecj, Judgment of 23 May 1996, John O’Flynn v Adjudication Officer, Case 237/94 (ecli:eu:c:1996:206), [1996] ecr i-2617; ecj, Judgment of 15 December 1995, Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-Marc Bosman, Case 415/93 (ecli:eu:c:1995:463), [1995] ecr i-4921. See J. Iliopoulos-Strangas, Soziale Grundrechte in Europa nach Lissabon, Baden-Baden, Nomos, 2010, p. 1120.
See ecj, Judgment of 11 April 2000, Christelle Deliège v Ligue francophone de judo et disciplines associées ASBL, Ligue belge de judo ASBL, Union européenne de judo (C-51/96) and François Pacquée (C-191/97), Joined Cases C-51/96 en C-191/97 (ecli:eu:c:2000:199), [2000] ecr i-2549, para 67 and ecj, Judgment of 13 June 2019, TopFit & Daniele Biffi t Deutscher Leichtathletikverband, Case C-22/18 (ecli:eu:c:2019:497), para 60.
ecj, Judgment of 27 January 2000, Volker Graf v Filzmoser Maschinenbau GmbH, Case 190/98 (ecli:eu:c:2000:49), [2000] ecr i-523: “Provisions which, even if they are applicable without distinction, preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute an obstacle to that freedom”.
ecj, Judgment of 12 December 1974, B.N.O. Walrave and L.J.N. Koch v Association Union cycliste internationale, Koninklijke Nederlandsche Wielren Unie and Federación Española Ciclismo, Case 36–74 (ecli:eu:c:1974:140), [1974] ecr 1405; ecj, Judgment of 8 April 1976, Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena, Case 43/75 (ecli:eu:c:1976:56), [1976] ecr 475: « as the court has already found in other contexts, the fact that certain provisions of the treaty are formally addressed to the member states does not prevent rights from being conferred at the same time on any individual who has an interest in the performance of the duties thus laid down ».
ecj, Judgment of the Court (Fourth Chamber) of 12 December 2013, Ministero dello Sviluppo economico and Autorità per la vigilanza sui contratti pubblici di lavori, servizi e forniture v SOA Nazionale Costruttori – Organismo di Attestazione SpA, Case 327/12 (ecli:eu:c:2013:827), para 45.
ecj, Judgment of 25 July 1991, Manfred Säger v Dennemeyer & Co. Ltd, Case 76/90 (ecli:eu:c:1991:331), [1991], ecr i-4243. See also ecj, Judgment of 10 May 1995, Alpine Investments BV v Minister van Financiën, Case 384/93 (ecli:eu:c:1995:126), [1995], ecr i-1141. In this case, Alpine Investments bv claimed that the Dutch Ministry of Finance was violating the freedom to provide services by prohibiting from ‘cold calling’ by telephone for financial services : « Although a prohibition such as the one at issue in the main proceedings is general and non-discriminatory and neither its object nor its effect is to put the national market at an advantage over providers of services from other Member States, it can none the less, as has been held above […], constitute a restriction on the freedom to provide cross-border services. Such a prohibition is not analogous to the legislation concerning selling arrangements held in Keck and Mithouard to fall outside the scope of Article 30 of the Treaty.[…] A prohibition such as that at issue is imposed by the Member State in which the provider of services is established and affects not only offers made by him to addressees who are established in that State or move there in order to receive services but also offers made to potential recipients in another Member State. It therefore directly affects access to the market in services in the other Member States and is thus capable of hindering intra-Community trade in services » (para 35–38).
ecj, Judgment of 10 March 2005, Laboratoires Fournier SA v Direction des vérifications nationales et internationales, Case C-39/04 (ecli:eu:c:2005:161), [2005], ecr-i-2075.
See ecj, Judgment of 12 December 1974, Walrave and Koch v UCI, Case 36/74 (ecli:eu:c:1974:140), [1974] ecr 1405 ; ecj, Judgment of 15 December 1995, Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, Case C-415/93 (ecli:eu:c:1995:463), [1995] ecr i-4921, para 83; ecj, Judgment of 11 December 2007, International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti, Case C-438/05 (ecli:eu:c:2007:772), [2007] ecr i-10779; ecj, Judgment of 18 December 2007, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avdelning 1, Byggettan and Svenska Elektrikerförbundet, Case C-341/05 (ecli:eu:c:2007:809), [2007] ecr i-11767.
ecj, Judgment of 27 September 1988, The Queen v H. M. Treasury and Commissioners of Inland Revenue, ex parte Daily Mail and General Trust plc., Case 81/87 (ecli:eu:c:1988:456), [1988] ecr 5483, para 25.
See ecj, Judgment of 12 July 2012, VALE Építési kft., Case C-378/10 (ecli:eu:c:2012:440), para 27 and ecj, Judgment of 25 October 2017, Polbud – Wykonawstwo sp. z o.o., Case C-106/16 (ecli:eu:c:2017:804).
See J. Snell, « Free movement of capital: Evolution as a non-linear process », in P. Craig and G. De Búrca (eds.), The Evolution of EU Law, Oxford, Oxford University Press, 2011, pp. 547–574. See also ecj, Judgment of 14 December 1995, Criminal proceedings against Lucas Emilio Sanz de Lera, Raimundo Díaz Jiménez and Figen Kapanoglu, Joined cases C-163/94, C-165/94 and C-250/94 (ecli:eu:c:1995:45), [1995] ecr i-4841 : « Article 73b(1) of the Treaty lays down a clear and unconditional prohibition for which no implementing measure is needed ».
ecj, Judgment of the Court of 26 September 2000, Commission of the European Communities v Kingdom of Belgium, Case 478/98, (ecli:eu:c:2000:497), [2000] ecr i-7620, para 18.
See H. Schepel, « Constitutionalising the Market, Marketising the Constitution, and to Tell the Difference: On the Horizontal Application of the Free Movement Provisions in EU Law », European Law Journal, 2012, vol. 18, pp. 177–200.
By way of example, see Case C-282/12, Itelcar – Automóveis de Aluguer Lda v Fazenda Pública, Judgment of 3 October 2013 (eu:c:2013:629), para 35.
L. Azoulai, « La formule de l’entrave », in L. Azoulai (ed.), L’entrave dans le droit du marché intérieur, Brussels, Bruylant, 2011, pp. 1–21, esp. p. 14.
F. W. Scharpf, « The asymmetry of European integration, or why the EU cannot be a ‘social market economy’», Socio-Economic Review, 2010, vol. 8, pp. 211–250.
ecj, Judgment of 23 April 1991, Klaus Höfner and Fritz Elser v Macrotron GmbH, Case 41/90 (ecli:eu:c:1991:161), [1991], ecr i-2020; See R-E. Papadopoulou, « Situations purement internes et droit communautaire : instrument jurisprudentiel à double fonction ou arme à double tranchant ? », Cahiers de droit européen, 2002, vol. 38, n° 1–2, pp. 95–130.
V. Trstenjak and E. Beysen, « The Growing Overlap of Fundamental Freedoms and Fundamental Rights in the Case Law of the CJEU », European Law Review, 2013, n°3, pp. 293–315.
ecj, Judgment of 11 December 2007, International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti, Case 438/05 (ecli:eu:c:2007:772), [2007] ecr i-10779; ecj, Judgment of 18 December 2007, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avdelning 1, Byggettan and Svenska Elektrikerförbundet, Case 341/05 (ecli:eu:c:2007:809), [2007] ecr i-11767. See L. Azoulai, « The Court of Justice and the Social Market Economy: the Emergence of an Ideal and the Conditions for its Realization », Common Market Law Review, 2008, vol. 45, n°5, pp. 1335–1355; S. Douglas-Scott, « The European Union and Human Rights after the Treaty of Lisbon », Human Rights Law Review, 2011, vol. 11, n°4, pp. 676–678 and E. Christodoulidis, « The European Court of Justice and “Total Market” Thinking », German Law Journal, 2013, vol. 14, n° 10, pp. 2005–2020.
See. B. Favreau, « La Charte des droits fondamentaux de l’Union européenne? Pourquoi? Comment? », in B. Favreau (ed.), La Charte des droits fondamentaux de l’Union européenne après le Traité de Lisbonne, Brussels, Bruylant, 2010, pp. 3–38.
ecj, Judgment of 14 May 1974, J. Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European Communities, Case 4/73 (ecli:eu:c:1974:51), [1974] ecr 491. The Court has taken an even more active stance in this matter in response to the German Bundesverfassungsgericht threatening to review the compatibility of eec acts with German constitutional law, as long as no fundamental rights framework was in place within the Community, see BVerfG, judgment of 25 May 1974, Solange I, 2 BvL 52/71BVerfGE 37, 271. See also K. Lenaerts, « How the ECJ Thinks: A Study on Judicial Legitimacy », Fordham International Law Journal, 2013, vol. 36, n°5, pp. 1302–1371, esp. p. 1309: “Last, but not least, once the constitutional foundations of the EU legal order were put in place and the establishment and functioning of the internal market secured, the ecj moved onto a new paradigm. As the constitutional court of a more mature legal order, it now tends to be less assertive as to the substantive development of EU law. It sees its role primarily as one of upholding the ‘check and balances’ built into the EU constitutional legal order of States and peoples, including the protection of fundamental rights”.
S. de Vries, « The Protection of Fundamental Rights within Europe’s Internal Market after Lisbon – An Endeavour for More Harmony », in S. de Vries, U. Bernitz and S. Weatherill (eds.), The Protection of Fundamental Rights in the EU After Lisbon, Oxford, Hart Publishing, 2012, pp. 57–94; S. de Vries, « Balancing Fundamental Rights with Economic Freedoms According to the European Court of Justice », Utrecht Law Review, 2013, vol 9, n°1, pp. 169–192; T. Georgopoulos, « Constitution économique : un concept de droit comparé au service de l’intégration européenne », Revue de Droit International et de Droit Comparé, 2021, n°1, pp. 17–63, esp. p. 48.
ecj, Judgment of 12 June 2003, Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, Case 112/00 (ecli:eu:c:2003:333), [2003], ecr i-5659.
On the old and new approaches to harmonization, see J. Pelkmans, « The New Approach to Technical Harmonization and Standardization », Journal of Common Market Studies, 1987, vol. 25, n° 3, pp. 249–269.
See the Communication of the Commission concerning the consequences of the judgment given by the Court of Justice on 20 February 1979 in case 120/78 (‘Cassis de Dijon’), [1980] oj C256/2.
H.-W. Micklitz and R. van Gestel, « European integration through standardization: How judicial review is breaking down the club house of private standardization bodies », Common Market Law Review, 2013, vol. 50, pp. 145–181.
See on that approach, Council Resolution of 7 May 1985 on a new approach to technical harmonization and standards, [1985] o.j. C136/1.
See Regulation 2019/515 of the European Parliament and of the Council of 19 March 2019 on the mutual recognition of goods lawfully marketed in another Member State and repealing Regulation (ec) No. 764/2008, [2019] o.j. L91/1.
For illustrations, see K. Nicolaidis, « Trusting the Poles? Constructing Europe through Mutual Recognition », Journal of European Public Policy, 2007, vol. 14, pp. 682–698.
For an overview of such influence, see H.-W. Micklitz, « The Visible Hand of European Regulatory Private Law-The Transformation of European Private Law from Autonomy to Functionalism in Competition and Regulation », Yearbook of European law, 2009, vol. 28, n° 1, pp. 3–59.
C. Joerges, « What is Left of the European Economic Constitution? A Melancholic Eulogy », European Law Review, 2005, vol. 30, pp. 461–489.
An example of this approach can be found in the 2006 Services Directive, see Directive 2006/123/ec of the European Parliament and of the Council of 12 December 2006 on services in the internal market, [2006] o.j. L376/36; in its Article 14, the Directive explicitly states that some restrictions on the freedom of establishment of services providers cannot be justified, even when they are applicable without discrimination; the Court confirmed that the EU legislator could make that choice, see ecj, Judgment of 16 June 2015, Presidenza del Consiglio dei Ministri and Others v Rina Services SpA and Others, Case C-593/15 (ecli:eu:c:2015:399).
Select Bibliography
Azoulai, L., « Le rôle constitutionnel de la Cour de justice des Communautés européennes tel qu’il se dégage de sa jurisprudence », Revue trimestrielle de droit européen, 2008, pp. 29–45.
de Vries, S., « The Protection of Fundamental Rights within Europe’s Internal Market after Lisbon – An Endeavour for More Harmony », in S. de Vries, U. Bernitz and S. Weatherill (eds.), The Protection of Fundamental Rights in the EU After Lisbon, Oxford, Hart Publishing, 2012, pp. 57–94.
Engel, C., « Imposed Liberty and its Limits: the EC Treaty as an Economic Constitution for the Member States », in T. Einhorn (ed.), Spontaneous Order, Organization and the Law: Roads to a European Civil Society – Liber Amicorum Ernst-Joachim Mestmaecker, The Hague, Asser Press, 2003, pp. 429–437.
Hatje, A., « The Economic Constitution within the Internal Market », in A. von Bogdandy and J. Bast (eds.), Principles of European constitutional law, Oxford/Munich, Hart Publishing/C.H. Beck, 2010, pp. 589–622.
Jacqué, J.-P., « La Constitution de la Communauté européenne », Revue universelle des Droits de l’Homme, 1995, pp. 397–424.
Jesse, M., « What about Sunday Trading – The Rise of Market Access as an Independent Criterion under Article 34 TFEU », European Journal of Risk Regulation, 2012, vol. 3, pp. 437–444.
Mattera, A. « De l’arrêt ‘Dassonville’ à l’arrêt ‘Keck’ : l’obscure clarté d’une jurisprudence riche en principes novateurs et en contradictions », Revue du marché unique européen, 1994, pp. 117–160.
Poiares Maduro, M., We the Court. The European Court of Justice and the European Economic Constitution: a critical reading of Article 30 of the EC Treaty, Oxford, Hart Publishing, 1998.
Schepel, H., « Constitutionalising the Market, Marketising the Constitution, and to Tell the Difference: On the Horizontal Application of the Free Movement Provisions in EU Law », European Law Journal, 2012, vol. 18, pp. 177–200.
Schütze, R., « Re-constituting the internal market: Towards a common law of international trade? », Yearbook of European Law, 2020, vol. 39, pp. 250–292.
Sibony, A.-L., « Au-delà de Dassonville : l’arrêt New Valmar ou l’entrave issue du risque juridique que fait peser le législateur sur un opérateur économique (CJUE 21 juin 2016, aff. C 15/15, New Valmar, EU:C:2016:464) », Revue trimestrielle de droit européen, 2017, n°3, pp. 821–824.
Steiner, J., « Drawing the Line: Uses and Abuses of Article 30 EEC », Common Market Law Review, 1992, vol. 29, n°4, pp. 749–774.
Stone Sweet, A., and Brunell, T. L., « Constructing a Supranational Constitution: Dispute Resolution and Governance in the European Community », The American Political Science Review, 1998, vol. 92, n° 1, pp. 63–81.
Tryfonidou, A., « Further Steps on the Road to Convergence among the Market Freedoms », European Law Review, 2010, vol. 35, n°1, pp. 36–56.
Van Cleynenbreugel, P., « No privatisation in the service of fair competition? Article 345 TFEU and the market-state balance after Essent », European Law Review, 2014, vol. 39, pp. 264–275.