The substantive law of the EU : the four freedoms

The substantive law of the EU : the four freedoms

The substantive law of the EU : the four freedoms

Law of Europe > Regional organization and integration (Europe) > The European Communities. Community law > Organization law. Constitution of the European Communities > Individual and Communities > Nationality and citizenship. Nationalité. Staatsangehörigkeit > General > General > General > Free movement of workers. Libre circulation des travailleurs. Freizügigkeit der Arbeitnehmer

Edition Details

  • Creator or Attribution (Responsibility): Catherine Barnard
  • Language: English
  • Jurisdiction(s): England
  • Publication Information: Oxford ; New York, N.Y. : Oxford University Press, ©2007
  • Material: Internet resource
  • Type: Book, Internet Resource
  • Permalink: (Stable identifier)

Short Description

cvi, 643 pages : ILlustrations ; 25 cm

Purpose and Intended Audience

Useful for students learning an area of law, The substantive law of the EU : the four freedoms is also useful for lawyers seeking to apply the law to issues arising in practice.

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Bibliographic information

  • Publisher: Oxford University Press
  • Responsable Person: Catherine Barnard.
  • Publication Date: 2007
  • Copyright Date: 2007
  • Location: Oxford, U.K. ; New York, N.Y.
  • Country/State: England
  • Number of Editions: 42 editions
  • First edition Date: 2004
  • Last edition Date: 2013
  • Languages: English
  • Library of Congress Code: KJE5170
  • Dewey Code: 343.2407
  • ISBN: 9780199298396 0199298394
  • OCLC: 80331773

Main Contents

Introduction to the issues
Introduction to the free movement of goods
Article 25 : customs duties and charges having equivalent effect
Article 90 : internal taxation
Quantitative restrictions under Article 28 ; derogations under Article 30
Measures having equivalent effect to quantitative restrictions under Article 28
Article 28 and certain selling arrangements
Quantitative restrictions and measures having equivalent effect on exports under Article 29
Intellectual property and the free movement of goods
External economic relations of the EU : the common commercial policy
Introduction to the free movement of persons
Free movement of workers
Freedom of establishment
Freedom to provide and receive services
Union citizenship
Derogations, limitations, conditions, and justifications
Third-country nationals and the EU
Free movement of capital and economic and monetary union
Regulating the internal market.

Table of Contents

outline contents
Preface XXIII
Table of Legislation XXV
Table of Cases XXVI
Table of Equivalences XXVII
Abbreviations XXXV
List of Figures XXXIX
part i introduction
1 introduction to the issues 3
part II free movement of goods
2 introduction to the free movement of goods27
3 article 25: customs duties and charges having
equivalent effect35
4 article 90 internal taxation45
5 quantative restrictions under article 28;
derogations under article 3064
6 measures having equivalent effect to quantitative restrictions under article 28
7 article 28 and certain selling arrangements;
quantitative restrictions and measures having
equivalent effect on exports under article 29137
8 article 29: quantitative restrictions and measures
having equivalent effect on exports167
9 intellectual property and the free
movement of goods173
10 external economic relations of the eu: the common commercial policy
part III free movement of persons and services
11 introduction to the free movement of persons249
12 free movement of workers286
13 the right of establishment308
14 freedom to provide and receive services354
15 union citizenship409
16 free movement of persons: derogations,
limitations, and conditions460
17 third-country nationals and the eu
part IV free movement of capital
18 free movement of capital and economic and monetary union 531
part v completing the single market
19 regulating the internal market 567
Index 000
Preface XXIII
Table of Legislation XXV
Table of Cases XXVI
Table of Equivalences XXVII
Abbreviations XXXV
List of Figures XXXIX
part i introduction
1 introduction to the issues 3
Introduction 3
The Importance of Free Trade 3
Introduction 3
The Theory of Comparative Advantage 4
The Problems with the Basic Model 6
The Different Stages of Integration 8
Introduction 8
Free Trade Area and Customs Union 9
Common Market and Single Market 10
The Common Market 10
The Single Market 11
Economic, Monetary, and Political Union 13
Understanding the Integration Process 13
The Principles Underpinning the Common Market 17
Introduction 17
The Decentralized Model 17
Non-discrimination 17
Market Access 17
Competitive Federalism 17
The Centralized Model 21
Conclusions 23
part II free movement of goods
2 introduction to the free movement of goods 27
Introduction 27
The Internal Dimension: the Rules on Free Movement of Goods 28
The External Dimension: the Common Commercial Policy 29
The Effect of the WTO 30
Conclusions 34
3 article 25: customs duties and charges having equivalent effect 35
Introduction 35
Customs Duties and Charges Having Equivalent Effect 36
Customs Duties 36
Charges Having Equivalent Effect to Customs Duties 36
Introduction 36
'Any pecuniary charge, however small . . .' 37
'. . . whatever its designation and mode of application . . .' 37
'. . . imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier . . .' 37
'. . . even if it is not imposed for the benefit of the State, is not discriminatory or protective in effect and if the product on which the charge is imposed is not in competition with the domestic product.' 38
Remedies 39
Direct Effect 39
Repayment of Unlawful Charges 40
'Permissible' Charges 41
Payments for Genuine Administrative Services Rendered to the Importer/Exporter 42
Charges for Inspections Required by Community Law 43
Charges Falling Within the Scope of Internal Taxation 44
4 article 90: internal taxation 45
Introduction 45
Member State Autonomy to Determine its own Taxation Policies 46
The Relevant Treaty Provisions 48
Goods which are Similar (Article 90(1)) 49
Definition of 'Similar' 49
Types of Discrimination 51
Direct Discrimination 51
Indirect Discrimination 53
(a)Establishing a Prima Facie Case of Discrimination53
(b)Objective Justification
Goods which are in Competition (Article 90(2)) 55
The Court's Approach to Article 90(2) 55
The Globalized Approach to Article 90 57
Remedies 58
The Boundary between Article 90 and Other Treaty Provisions 59
Introduction 59
The 'Exotic' Import 60
Para-fiscal Charges 61
Other 'Levies' 62
Conclusions 63
5 quantitative restrictions under article 28
derogations under article 30 64
Introduction 64
Quantitative Restrictions 64
The Article 30 Derogations 65
Introduction 65
Public Morality 67
Public Policy 67
Public Security 72
The Protection of Health and Life of Humans, Animals, or Plants 74
The Protection of National Treasures Possessing Artistic, Historic, or Archaeological Value 78
The Protection of Industrial and Commercial Property 79
The Second Sentence of Article 30 and the Principle of Proportionality 79
Arbitrary Discrimination and a Disguised Restriction on Trade 79
Proportionality 81
(a) Introduction 81
(b)The Steps that can be Taken by the Defendant State82
(c)Proportionality and Public Health83
(d)Proceduralisation of Proportionality
Fundamental Human Rights 87
Decision 3052/95/EC on Exchange of Information about National Measures Derogating from the Principle of Free Movement of Goods 87
Harmonization and Trust 88
6 measures having equivalent effect to quantitative restrictions under article 28 91
Introduction 91
What are Measures having Equivalent Effect? 92
Introduction: The Dassonville Formula 92
'All Trading Rules' 92
'Enacted by Member States' 94
'Directly or Indirectly, Actually or Potentially' 96
'Actually or Potentially' 96
'Directly or Indirectly' 97
Distinctly Applicable Measures 98
Introduction 98
Examples of Distinctly Applicable Measures 98
Imposing an Additional Requirement on the Imported Goods 98
Rules Limiting Channels of Distribution 99
National Rules Giving Preference to Domestic Goods 100
Discrimination Arising from Treating National and Imported Goods Alike: Price Fixing 103
'Reverse Discrimination' 104
Indistinctly Applicable Measures 105
Definition of Indistinctly Applicable Measures 105
Introduction 105
Examples of Indistinctly Applicable Measures: Product Requirements 106
Other Examples of Indistinctly Applicable Measures 108
(a)Advertising, Sales Promotion and Rules Limiting Sales Outlets108
(b)Other Rules
Cassis de Dijon 111
The 'Mandatory Requirements' 115
Proportionality 119
Fundamental Human Rights 125
Blurring the Distinction between Distinctly and Indistinctly Applicable Measures 126
Litigation Avoidance: Directive 98/34 on the Provision of Information in the Field of Technical Standards and Regulations 127
Conclusions 136
7 article 28 and certain selling arrangements 137
Introduction 137
Market Circumstances Rules and Article 28 137
The Problem with Market Circumstances Rules 137
The Road to Keck 141
The Decision in Keck 143
The Judgment 143
What are 'Certain Selling Arrangements'? 146
Criticisms of the Court's Approach in Keck 147
Perspectives on the decision in Keck itself 147
The static/dynamic distinction 149
Discriminatory Certain Selling Arrangements 151
De Agostini and Beyond 151
Presumptions and the Burden of Proof 155
Borderline cases 158
Non-discriminatory Certain Selling Arrangements 159
Non-discriminatory Measures which Prohibit Market Access 159
Non-discriminatory Measures which Merely Hinder Market Access 162
Conclusions 165
8 quantitative restrictions and measures having equivalent effect on exports under article 29 167
Introduction 167
Quantitative Restrictions (QRs) 167
Measures having Equivalent Effect (MEEs) 168
The Difference between Articles 28 and 29 in Respect of MEEs 171
Conclusions 172
9 intellectual property and the free movement of good
s 173
Introduction 173
The Concepts, Rules, and Principles 173
The Role of IPRs in National and Community Law 173
The Relevant Treaty Provisions 174
The General Principles: Existence and Exercise of IPRs, the Specific Subject Matter of IPRs, and the Doctrine of Exhaustion of Rights 175
Patents 179
Trade Marks 183
Introduction 183
Specific Subject Matter, Exhaustion, and Consent 184
The General Principles 184
Consent and the (Abortive) Doctrine of Common Origin 186
International Exhaustion 189
Legitimate Reasons for the Trade Mark-Holder to Oppose Further Marketing of the Trade-Marked Goods 192
Repackaging 193
(a)Hoffmann-La Roche193
(b)Elaboration of the Hoffmann-La Roche Requirements
Market positioning 195
Original condition 196
Statement of repackaging 197
Notice and specimen sample 198
Affixing a New Trade Mark 199
Advertising 201
Similarity of Trade Marks and Risk of Confusion 202
Copyright and Designs 203
Copyright 203
Introduction 203
Rights in the Reproduction and Sale of Products Incorporating Copyright Material 204
Rights in Performance and Other Temporary Use 206
Conclusions 207
Industrial Designs 207
Quasi-IP Cases 208
Conclusions 210
10 external economic relations of the eu: the common commercial policy 211
Introduction 211
The Constitutional Foundations of EC External Relations 212
The Power to Act 212
Express Powers 212
Implied Powers 216
The Nature of the Power: Exclusive or Shared Competence? 218
Express Powers 218
Implied Powers 218
Tariff Barriers to External Trade: the CCT 220
Introduction 220
Combined Nomenclature 222
The Process of Classification 222
The Role of the European Court of Justice 225
Valuation 226
Determination of (Non-preferential) Origin 227
The Customs Tariff 229
Tariff Quotas 230
The Role of the Member States 230
Non-tariff Barriers to External Trade 231
The Export Regime: Regulation 2603/69 231
Introduction 231
Derogations 231
The Import Regime: Regulation 3285/94 234
Introduction 234
Derogations and Safeguard Measures 234
The Commercial Defence Instruments 236
Goods in Free Circulation 238
Definitions 238
Restrictions on Free Circulation: Article 134 EC 239
The Bananas Dispute 240
Conclusions 244
part III free movement of persons and services
11 introduction to the free movement of persons 249
Introduction 249
Common Principles 252
Introduction 252
Refusal of Entry/Deportation 253
Non-discrimination on the Grounds of Nationality 254
Introduction 254
Direct Discrimination/Distinctly Applicable Measures 255
Indirect Discrimination/Indistinctly Applicable Measures 256
(b)The Wholly Internal Situation and the Principle of
Reverse Discrimination257
Non-discriminatory Measures 262
(a)Pure Non-discrimination262
(b)Non-discriminatory measures which prevent or
hinder market access
Going Beyond the Model of 'Discrimination on Grounds of Nationality' 273
Restrictions Liable to Prohibit or Otherwise Impede Free Movement 273
Access to the Market and Exercise of the Freedom 276
Obstacles or Restrictions to Free Movement 277
Provisional Conclusions 279
Reversion to the Discrimination Model? 279
Conclusions 282
Direct Effect of Articles 39, 43, and 49 283
Conclusions 285
12 free movement of workers 286
Introduction 286
The Definition of a 'Worker' 287
The Rights Conferred on Workers by EC Law 290
Introduction 290
Employment Rights 291
Access to Employment 291
(a)Direct discrimination291
(b)Indirect discrimination292
Equal Treatment during the Employment Relationship 294
(a) Equal Treatment in Respect of the Terms and Conditions of Employment 294
(b) Equal Treatment in Respect of Social and Tax Advantages 296
Tax Advantages 296
Social Advantages 298
Definition and scope 298
Limits 300
Non-discrimination 301
Equal Treatment and Vocational Training 302
Access to training 302
Funding 303
Equal Treatment and Other Benefits 306
Conclusions 307
13 the right of establishment 308
Introduction 308
Who is Entitled to Benefit from the Right of Establishment? 308
The Right of Establishment for Individuals 308
The Right of Establishment for Companies 310
The Rights Conferred on Natural Persons: the Self-employed 310
Introduction 310
Rights of Departure, Entry, and Residence 310
The Right of Access to Self-employment 311
Primary and Secondary Establishment 311
Equal Treatment and Beyond 312
The Exercise of Activities as a Self-employed Person 315
Equal Treatment and Beyond 315
Social Advantages, Equal Treatment, and Beyond 317
Taxation, Equal Treatment and Beyond 318
Qualifications 319
Where there is No Community Legislation 319
Where there is Community Legislation 321
Introduction 321
The Basic Rules 323
Free Provision of Services 323
Freedom of Establishment 324
(a)The General System for the Recognition of
Professional Qualification324
(b)System of Automatic Recognition of Qualifications
attested by Professional Experience326
(c)System of Automatic Recognition of Qualifications
for Specific Professions326
(d)Common Provisions
The Legal Profession 327
Non-application of Horizontal Directives 328
Qualifications Obtained in Third Countries 329
The Rights Conferred on Legal Persons: Companies 330
Introduction 330
The Right of Departure 331
Access to the Market of the Host State 332
Primary and Secondary Establishment 332
(a)The Basic Rules332
(b)Regulatory Competition
Equal Treatment and Beyond 344
The Exercise of the Right of Establishment 345
Equal Treatment, and Beyond 345
Taxation, Equal Treatment and Beyond 347
(a)The Discrimination Approach347
(b)The Hindrance/Restriction Approach347
Conclusions 353
14 freedom to provide and receive services 354
Introduction 354
Who can Rely on Articles 49 and 50? 355
The Scope of Articles 49 and 50 355
The Freedom to Provide Services 355
The Freedom to Travel to Receive Services 357
Neither Provider nor Recipient Travels 357
Performance of a Service for Remuneration 358
What Activities Constitute 'Services'? 358
Services are 'Normally Provided for Remuneration' 360
(a) The Need for an Economic Link 360
(b) Services and the Welfare State 366
The Temporary Nature of Services 367
The Rights Conferred on Service Receivers or Providers 368
Rights of Departure, Entry, and Residence 368
Rights of Access to the Market in Services in Other Member States 370
Discriminatory Measures 371
(a)Distinctly Applicable Measures371
(b)Indistinctly Applicable Measures372
(c)Non-discriminatory Measures
Measures 'liable to prohibit or otherwise impede' the activities of a service provider 375
Justification 378
(a) Approaches to Justification 378
(b) Home State Control 379
Proportionality 380
The Exercise of Rights to Provide or Receive a Service 388
Discriminatory Measures 388
Measures Liable to Prohibit or Impede the Exercise of the Freedom to Provide or Receive Services 389
Abuse of Rights 399
Effect of The Services Directive 400
Introduction 400
Scope 403
Country of origin principle 403
Assessment 406
Conclusions 406
15 union citizenship 409
Introduction 409
Citizenship of the Union 410
Rights and Duties 411
Introduction to the Rights 411
The Citizens' Rights Directive 2004/38 416
The Personal Scope of the Citizens' Rights Directive 416
(a)The Rules416
(b)Spouses, Registered Partners and Partners in a
Durable Relationship Duly Attested Spouse
Registered Partners and Partners in a Durable Relationship Duly Attested 419
First Point of Entry 420
(c) Dependants 420
Rights of Departure and Entry 421
right to Depart the Home State421
(b)The Right to Enter the Host State
The Right of Residence in the Host State 423
(a)Right of Residence for up to Three Months423
(b)Right of Residence for more than Three Months
and up to Five Years
Citizens' and Family Members' Rights 424
Family Members' Rights on the Death or Departure of the Union Citizen or on Divorce 426
(c) Right of Permanent Residence 427
Article 16: Five Years' Residence 427
Article 17: Other Ways of Acquiring Permanent Residence 428
Administrative Formalities 430
The Right to Equal Treatment 430
(b)The Non-discrimination Model
Direct and Indirect Discrimination 431
Assessment 437
(c) Beyond Non-discrimination 440
Specific Rights for Family Members8 442
(a)Equal Treatment and the Right to Work for Family Members442
(b)Equal Treatment and Schooling442
(c)Equal Treatment and Housing
The Relationship between the CRD and the Treaty 444
Membership 446
Participation 448
Representative Democracy 448
Introduction 448
Elections to the European Parliament 449
Deliberative or Participatory Democracy 451
Access to Justice 455
Non-judicial Avenues 455
Judicial Avenues 457
Conclusions 458
16 derogations, limitations, and conditions 460
Introduction 460
Public Policy, Public Security, Public Health 461
Introduction 461
Public Policy and Public Security 462
Public Policy and the Individual 463
(a)Personal Conduct463
(b)Measures which can be Taken against the Migrant:
Proportionality Exclusion or Expulsion
Other Measures 469
Fundamental Human Rights 470
(c) The Right to Reapply 472
Public Policy and Legal Persons 473
Public Health 474
Public Health and the Individual 474
Public Health and Welfare Policies 475
Procedural Requirements 477
General Provisions 477
Remedies 477
(a)The New Rules477
(b)Access to Judicial Redress: Appeal and Review478
(c)Administrative Redress
Assessment 480
Public Service Exception 481
Introduction 481
Article 39(4): 'Employment in the Public Service' 481
The Exercise of 'Official Authority' 484
Other Limitations 485
Introduction 485
The Limitations: Financial Resources and Sickness Insurance 486
The Limitations to the Limitations 488
Justifications 491
The General Approach 491
Introduction 491
Justifications 492
Proportionality and Fundamental Human Rights 497
Conclusions 498
17 third-country nationals and the eu 499
Introduction 499
The Development of an Area of Freedom, Security, and Justice 500
Early Days 500
The Maastricht Treaty and the Justice and Home Affairs Pillar 502
The Amsterdam Treaty 502
Communitarization of the Third Pillar 502
The Incorporation of the Schengen Acquis 504
>From Tampere to The Hague 506
Community Competence and legislation under Title IV EU 511
Introduction 511
Border Control at External Frontiers: Article 62 511
Immigration Policy: Article 63 514
Conditions of Entry and Residence 514
Illegal Immigration, Residence, and Repatriation 524
Conclusions 525
Conclusions 526
part IV free movement of capital
18 free movement of capital and economic and monetary union 531
Introduction 531
Free Movement of Capital 531
Introduction 531
The Legal Context 531
The Prohibition of Restrictions on Movement of Capital between Member States 535
Introduction 535
The Definition of 'Capital' 535
The Discrimination Model 536
The Model Based on Restrictions 538
(a)Establishing a breach538
(b)Where there is no breach
Justifications 543
Express Derogations 546
Introduction 546
Article 58(1)(a): Tax Provisions Distinguishing between Resident and Non-resident Taxpayers 548
Article 58(1)(b): General Derogations 550
(a)'All requisite measures to prevent infringements of national
law and regulations, in particular in the field of taxation and
the prudential supervision of financial institutions'550
(b)To Lay Down Procedures for the Declaration of Capital
Movements for the Purposes of Administrative or
Statistical Information551
(c)Public Policy and Public Security
The Prohibition of Restrictions on the Movement of Capital and Payments between Member States and Third Countries 553
The Relationship between the Provisions on Capital and the Other Freedoms 553
Economic and Monetary Union 555
Introduction 555
Monetary Union 557
The Stages to Monetary Union 557
(a)Stage One557
(b)Stage Two557
(c)Stage Three
Monetary Policy 560
Economic Union 560
Conclusions 563
part v completing the single market
19 regulating the internal market 567
Introduction 567
The Power to Harmonize: Article 95 EC 568
Introduction 568
The Circumstances in which Article 95(1) can be Used 574
Elimination of Obstacles to the Exercise of Fundamental Freedoms 574
Removal of Appreciable Distortions of Competition 575
The Aftermath 576
The Case Law after Tobacco Advertising I 577
Choice of Legal Basis 581
The Application of the Principles of Subsidiarity and Proportionality to Measures Adopted under Article 95 583
Derogations from Measures Adopted under Article 95(1) 585
Different Approaches to Harmonization 589
Introduction 589
Mutual Recognition 589
Exhaustive Harmonization 591
Optional Harmonization 599
Minimum Harmonization 600
What is it? 600
Reverse Discrimination 601
The New Approach and Global Approach to Technical Harmonization and Standardization 604
'New Governance' Approaches 609
Introduction 609
Reflexive Harmonization and the Open Method of Co-ordination 610
The Lamfalussy Process 612
Completing the Internal Market: Beyond 1992 615
Introduction 615
Market Management 616
Simplification/Improving Quality 616
Implementation 618
Enforcement 618
Problem Avoidance Mechanisms 621
Conclusions 623

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