EU Citizen’s Economic Rights in Action: Re-Thinking Legal and Factual Barriers in the Internal Market, edited by Sybe de Vries, Elena Ioriatti, Paolo Guarda & Elisabetta Pulice

in European Journal of Migration and Law

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Keywords:

Sybe de Vries, Elena Ioriatti, Paolo Guarda & Elisabetta Pulice (eds.), EU Citizen’s Economic Rights in Action: Re-Thinking Legal and Factual Barriers in the Internal Market (Cheltenham: Edward Elgar Publishing, 2018), 288 p., ISBN 9781788113458.

While the internal market is officially defined as an ‘area without internal frontiers’—as if it were a static situation—the reality is that the concept encompasses a dialectic process featuring the EU-guaranteed rights of citizens, legal persons and products on the one hand, and the legal, cultural and linguistic specificity of the Member States on the other.

This book presents the reader a relatively eclectic set of articles which all stem from research conducted in the context of the bEUcitizen project. The red thread that binds the different essays together seems to be, for the most part, an attempt to focus on (EU) citizenship in the internal market examined from the perspective of three main themes: the gap between rights within the internal market and exercise thereof in practice, the regressive impact of the economic crisis, and the challenges of the EU language diversity.

The book is at its strongest where it focusses on those issues. The introductory article by De Vries identifies the twofold challenge and tension that the internal market faces: the marrying of the liberalisation ethos that is said to underlie the idea of the four freedoms and the need to infuse that internal market with a social dimension, which in turn suggests the need to protect certain public interests at the expense of the former freedoms (or as de Vries puts it: ‘softening’ their impact). A related challenge is the need, within that marketplace, for a uniform set of rules, which should nonetheless take into account the differences between the Member States of the EU. This setup serves as a useful background on which to plot the subsequent articles.

In the first theme, the uniform rules versus Member State diversity axis is mainly addressed. The article by Adamo and Binder shows that despite many years of policy action in the area of diploma/experience recognition, in practice the barriers that a free mover may encounter seeking to access a particular profession can still be significant. The article provides a good overview of the applicable rules and the case studies selected (lawyers, midwives, hairdressers, caregivers and tourist guides) reflect a broad range, although not necessarily representative—after all, lawyers have an exclusive, dedicated legal regime. The study would have benefited however, by tying the results of the case study more clearly back to the framework of the internal market: are the problems identified the result of the regulatory diversity of Member States, or simply due to a too strict (bureaucratic) application of the applicable rules motivated by a lack of trust? In addition, from a methodological point of view it is not clear to this reviewer why the authors did not include the Netherlands in the section on ‘Midwives’.

Van den Bossche and Solís Santos contribute important insights into the digital component of the internal market. Whereas the digital single market has great potential (see for the costs of ‘non-Europe’ p. 62–63), the authors rightly highlight the pervading and ultimately harmful practice which seeks to recreate national barriers within the digital sphere. The authors then proceed to examine the possibilities of enforcing the ideal of the internal market on private actors through the application of EU competition law—a focus which suggests that the authors see barriers to cross-border digital interaction to originate primarily from those actors seeking to extract maximum profit from different geographic areas. Whereas this may be true for certain classes of (larger) economic actors, it may not necessarily be true for all market participants as the next article by Guarda shows. One of the take-away messages from his examination of copyright in the light of the digital single market—in the view of this reviewer—is that the ‘most important barrier to exercise of copyright’ (p. 104) is the lack of harmonisation at the EU level. Indeed, many of the issues raised in this chapter suggest that legal barriers (also) lie at the basis of an ineffectively working digital single market.

The second theme, the impact of the economic crisis, questions the measures taken to safeguard the internal market (and its EMU component) and the consequences thereof for its social dimension. In a sweeping article, Hatzopoulos’ contribution focusses on the damage done by the economic crisis to both EU and national citizenships. In a clear and accessible text, he analyses the ways in which the economic governance of the EU in response to the crisis has undermined the enjoyment of the full canopy of rights attached to both citizenships: the harsh measures imposed on crisis-hit countries, the backpedaling of the Court of Justice concerning free movement rights and the shift away from democratic institutions towards troika-made austerity politics have undermined civil, political and social rights. In many ways, this article is complemented by the analysis by González Pascual who laments the failure of the EU court to properly position social rights in the legal framework governing the legality of measures adopted by the EU in a state-of-economic-emergency, prompting her to conclude that ‘economic objectives are still the main driving force of the EU project’.

Rodríguez Magdaleno, Martínez García and Gómez Ansón examine the issue through the lens of judgments of Spanish (and EU) courts relating to the complex financial instruments at the root of the financial crisis. The authors identify three mutually reinforcing problems: first, the complexity of the financial instruments meant that consumers were scarcely able to understand the contracts they concluded. Second, the legislative framework meant to correct for this information asymmetry was incomplete. Third, the interpretation of certain procedural rules by the national courts meant that even where rights existed they could in some circumstances only be ineffectively exercised. However, conceptually, this last article is sometimes uneven in assigning ‘blame’. On page 166, for example, information asymmetries are held to ‘create barriers for the exercising of consumer rights’. Surely, however, consumer rights are provided precisely to remedy these asymmetries and the uneven bargaining position that follows from it? Rather, the problem would seem to be that the consumer rights provided are not ‘fit-for-purpose’ in balancing responsibility for the fallout of the financial crisis between the provider of the complex financial instruments and the consumer.

In the final section of the book, the various challenges presented by plurilingual nature of the EU legal language are considered. Ioriatti argues that the ‘transmission of EU norms and rights’ (p. 188) is hindered by the dual challenge of multilingualism and the interpretation and application of economic rights parachuted from the supranational level into the diverse legal cultures of the Member States. Similarly, while such economic rights may have been effectuated through various forms of secondary law, practical barriers means that mobility within EU remains limited as Argüelles Vélez and Benavides González show, with linguistic diversity cited as the main obstacle for migration to another country. Adamo zooms in on the specific case of Denmark, in which he shows in a more detailed fashion the myriad ways in which linguistic barriers can impede successful mobility. This article is nicely complemented by Pulice, who provides a theoretically grounded consideration of the role of language—and linguistic requirements—in law and society.

This reviewer can certainly agree with the main thrust of this section, which suggests that the mobility rights must be carefully balanced when faced with linguistic hurdles (as they may serve legitimate public interests), as well as the need to focus renewed attention on language learning within the EU (e.g. on p. 276–277).

However, one could take issue with some of the more sweeping conclusions presented by these authors. For example, the point that (all?) economic rights within the EU ‘suffer from a lack of consolidated terminology’ (p. 197) may be overstating the issue. The case law of the Court of Justice of the EU is replete with (attempts at) defining economic concepts such as ‘worker’, ‘self-employed’, what constitutes ‘working time’, etc. These concepts also find their way into national (case) law not directly linked with EU law, showing, to an extent, the voluntary adoption of an EU legal concept into the national sphere (e.g. District Court of Rotterdam, 22 November 2012, ECLI:NL:RBAMS:2012:BY8310). Similarly, it is also questionable whether the mobility issues can be reduced to language concerns or whether they are also about certain cultural assumptions regarding the requisite degree of integration (which includes speaking the language) before a foreigner is accepted (as also Adamo seems to suggests on p. 239). In that case, language learning may not be sufficient to overcome these types of practical barriers.

A note of criticism must be sounded with regards to the remaining contributions. Guella seeks to explore, in a very short contribution, ‘the problem of redistribution in federal systems’ as applied to the EU as well as the Italian system ‘in order to check the comparability of the two systems’. Later, the experience of Italy is presented as a lesson for the EU (p. 31). However it is questionable whether the constitutional context, and the redistributive policies that are possible within it, are comparable and, as a result, whether the suggestions made are feasible (as the author seems to admit on page 32: ‘a hypothetical future reform’). More generally, the tension between the EU supplied rights of free movement and the claims they can engender against host Member States and the nationally organised welfare states is a well-explored theme. This article, while providing a useful primer, does not significantly add to existing research.

Similarly, the contribution by Lageot, while an insightful and informative exploration of the position of the French language in its constitutional context, is only very limitedly tied (an attempt is made on pages 251–255) to the main internal market theme of the book, and the exercise of rights by (EU) citizens in particular. It is primarily left up to the reader to ponder the consequences of the French policy towards the French language in a broader EU context.

The above comments, however, do not detract from that fact that taken as a whole, the book is a welcome addition to the literature on the internal market. The articles show that the work of building the internal market is still ongoing and has not deviated much from seeking to answer certain basic questions: what is the content of the rights attributed to EU citizens? How can we effectuate them? And, finally, how do we balance them against other values, especially in times of crisis? For readers seeking a diverse set of essays which explore these three questions, this book provides valuable insights from a diverse set of scholars and perspectives.

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