Revisiting Proportionality in Internal Market Law: Looking at the Unnamed Actors in the cjeu’s Reasoning

2020 ◽  
Vol 89 (3-4) ◽  
pp. 286-302
Author(s):  
Ségolène Barbou des Places
Keyword(s):  
European Union ◽  
Case Law ◽  
Internal Market ◽  
Abstract Reasoning ◽  
The European Union ◽  
Court Of Justice ◽  
The Social ◽  
Restrictive Measure ◽  
Social Narrative ◽  
Alternative Reading

Abstract To understand how the Court of Justice of the European Union (cjeu) assesses the proportionality of restrictive national measures, one has to depart from the canonical reading of internal market law cases. An alternative reading of the cjeu case law, focusing on the “who” rather than on the “how”, is possible. This article argues that the control of proportionality should not be viewed as an abstract reasoning aiming at comparing the respective importance and value of the norms in conflict, but rather as an evaluation based upon the thorough description of the social reality of the persons whose life and interests are either affected or protected by the challenged restrictive measure. Because it analyses the control of proportionality as a social narrative elaborated by the judge, the article can demonstrate that among the roles conferred by the proportionality narrative to different characters, the most determinant ones are played by persons standing behind the scene: the “archetypal characters”.

scholarly journals Tracing the Boundaries between Disability and Sickness in the European Union: Squaring the Circle?

2016 ◽  
Vol 23 (1) ◽  
pp. 5-35
Author(s):  
Silvia Favalli ◽  
Delia Ferri
Keyword(s):  
European Union ◽  
Case Law ◽  
Social Model ◽  
The European Union ◽  
Persons With Disabilities ◽  
Social Model Of Disability ◽  
Court Of Justice ◽  
The Social ◽  
Definition Of ◽  
Employment Equality

In recent years the European Union (eu) has sought to develop a far-reaching policy regarding persons with disabilities. However, to date, eu non-discrimination legislation does not provide any clear legal definition of what constitutes a disability. The Court of Justice of the European Union (cjeu) has attempted to fill this gap and, in several decisions, has elaborated on the concept of disability and its meaning under eu law. The cjeu, with reference to the application of the Employment Equality Directive, has explained the notion of disability mainly by comparing and contrasting it to the concept of sickness. Against this background, this article critically discusses recent case law and attempts to highlight that, even though the Court has firmly embraced the social model of disability envisaged by the un Convention on the Rights of Persons with Disabilities, the boundaries between the concepts of sickness and disability remain blurred.

scholarly journals Overview of recent cases before the court of justice of the European Union (April−September 2017)

2017 ◽  
Vol 19 (4) ◽  
pp. 353-362
Author(s):  
Anne Pieter van der Mei
Keyword(s):  
European Union ◽  
Financial Crisis ◽  
Social Security ◽  
Case Law ◽  
Social Rights ◽  
The European Union ◽  
Binding Effect ◽  
Court Of Justice ◽  
The Social ◽  
Third Country Nationals

This contribution presents an overview of the case law of the Court of Justice of the European Union in the period April–September 2017 on social security matters. The relevant rulings concern first and foremost the rules determining the applicable legislation as enshrined in Regulation 883/2004 and Regulation 1408/71. In addition, the Court of Justice has delivered important rulings concerning posted worker and the binding effect of A1 certificates, the social security rights of third country nationals holding a single-permit and the protection of social rights in the context of financial crisis and austerity measures.

scholarly journals Działalność gospodarcza poddana reglamentacji w świetle orzecznictwa Trybunału Sprawiedliwości na przykładzie prowadzenia gier hazardowych

2018 ◽  
Vol 114 ◽  
pp. 413-429
Author(s):  
Stanisław Biernat
Keyword(s):  
European Union ◽  
Economic Activity ◽  
Case Law ◽  
Internal Market ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Indirect Assessment ◽  
Court Of Justice

ECONOMIC ACTIVITY SUBJECTED TO REGLAMENTATION IN THE LIGHT OF THE CASE LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION EXEMPLIFIED BY CONDUCTING GAMBLINGIn EU law, conducting gambling is classified as the exercise of the freedoms of the internal market, regulated in the Treaty on the Functioning of the European Union. Conducting gambling is not currently regulated or harmonized at EU level, and therefore the regulation of gambling is the competence of Member States. EU law defining acceptable ways of regulating gambling in the Member States is now a judge-made law and the result of the creative jurisprudence of the Court of Justice of the European Union. So far, the Court has issued dozens of judgments in which it interpreted Treaty provisions proclaiming the freedoms of the internal market in the context of conducting gambling. These judgments provide a direct or indirect assessment of whether national law complies with EU law.

15. Introduction to the internal market

2017 ◽  
Author(s):  
Lorna Woods ◽  
Philippa Watson ◽  
Marios Costa
Keyword(s):  
European Union ◽  
Internal Market ◽  
Social Aspect ◽  
The European Union ◽  
Court Of Justice ◽  
The Social ◽  
The Common ◽  
Policy Fields ◽  
The Relationship

This chapter examines the common themes that affect the four freedoms which constitute the internal market in the European Union (EU): the free movement of goods, of people and of capital; and the freedom to provide services. It analyses the relationship between these four freedoms and highlights the role of the Court of Justice (CJ) in defining the freedoms’ scope, particularly as regards the social aspect of these freedoms. The chapter also suggests that these freedoms have operated to limit Member States’ regulatory freedom in wide-ranging policy fields.

The Concept of ‘Worker’ in the Free Movement of Workers and the Social Policy Directives: Perspectives from the Case Law of the Court of Justice

2020 ◽  
pp. 203195252094533
Author(s):  
Vincent Février
Keyword(s):  
European Union ◽  
Social Policy ◽  
Case Law ◽  
The Other ◽  
Free Movement ◽  
The European Union ◽  
Court Of Justice ◽  
The Social ◽  
Depth Analysis ◽  
Free Movement Of Workers

The Concept of worker is the gateway to the access to the protection of labour and social security law. The Court of Justice of the European Union first defined this concept in the field of the Free Movement of Workers in the Lawrie-Blum case. The scope of this article is to compare the definitions used by the Court in the fields of the free movement of workers and in the Social Policy Directives, in order to ascertain to which extent they can differ. Our in-depth analysis of the case law offers a nuanced picture. On one hand, it highlights that the Court tries to extend the application of the Lawrie-Blum formula to Directives which do not refer back to the national definitions of a worker, but that specificities remain in this area, like the emphasis on the link of subordination. On the other hand, for Directives referring to a national concept of workers, the Court began recently to state that, even if the competence of the Member States on this question must be acknowledged, it is not limitless.

Please Smoke Your E-Cigarette Proportionally

2018 ◽  
Vol 25 (1) ◽  
pp. 75-87
Author(s):  
Marco Inglese
Keyword(s):  
European Union ◽  
Electronic Cigarettes ◽  
Case Law ◽  
Internal Market ◽  
Health Protection ◽  
The European Union ◽  
Tobacco Products ◽  
Court Of Justice ◽  
The Impact

Abstract Directive 2014/40/eu harmonises the manufacture, sales and presentation of tobacco and related products, notably, electronic cigarettes. As its predecessors, Directive 2014/40/eu has already been challenged on three occasions. This article will tackle the Pilbox case and assesses the impact of the principles of proportionality and subsidiarity on market harmonisation and health protection. It seeks to demonstrate that, contrary to the old-fashioned stream of case law on this subject, the battlefield has been shifted from the scope of Art. 114 tfeu to the impact of general principles of eu law. It then assesses how health protection increasingly permeates internal market legislations, leading to a sort of ‘paternalistic’ harmonisation. Finally, it argues that after two decades of disputes concerning tobacco products, the Court of Justice of the European Union (cjeu) has successfully ended litigations on Directive 2014/40/eu, holding that its compliance with the principles of proportionality and subsidiarity is beyond doubt.

scholarly journals The Importance of the Jurisprudence of the Court of Justice of the European Union for the Consistent Application of the Service Directive

2021 ◽  
Vol 11 (11) ◽  
Author(s):  
Radmila Dragišić
Keyword(s):  
Public Health ◽  
European Union ◽  
Scientific Community ◽  
Case Law ◽  
Internal Market ◽  
The European Union ◽  
Veterinary Services ◽  
Member States ◽  
Court Of Justice ◽  
Consistent Application

In this paper, we explore the implementation of the Directive on services in the internal market in the Member States of the European Union, with the focus on assessing the clarity of the norms of this acquis. We perform analysis of selected cases from the jurisprudence of the Court of Justice. The source of law in question, among other things, we consider with regard to its implementation in the areas of public health, certification and technical supervision, and in the field of veterinary services. The topic of our work is useful for the professional and scientific community due to the further clarification of the importance of the development of the case law of the Court of Justice for the uniform application of the Directive governing a very important segment of the internal market.

Introductory Note

2019 ◽  
pp. 551-562
Author(s):  
Antonio Tizzano
Keyword(s):  
European Union ◽  
Security Policy ◽  
Case Law ◽  
Internal Market ◽  
Fundamental Rights ◽  
The European Union ◽  
Court Of Justice ◽  
Legal Questions ◽  
Introductory Note ◽  
Foreign And Security Policy

The Introductory Note describes the main developments of 2017 with regard to the functioning and the organization of the Court of Justice of the European Union, as well as to its case-law. The Court of Justice and the General Court of the European Union were confronted with many delicate legal questions pertaining to all aspects of EU law. The Introductory Note provides for an overview of the most important judgments that were delivered in 2017, in an array of legal domains, including rights and obligations of third-country migrants, fundamental rights, rules of competition and internal market, common commercial policy and common foreign and security policy.

Some Issues on Public Procurement Principles

2020 ◽  
Vol 26 (2) ◽  
pp. 182-187
Author(s):  
Albena Ivanova
Keyword(s):  
European Union ◽  
Public Procurement ◽  
Case Law ◽  
Internal Market ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
Free Movement Of Persons ◽  
Economic Considerations ◽  
The Eu

AbstractPublic Procurement regulation is mainly justified by economic considerations. The reasons for this are based on the assumption that through the introduction of competitiveness in the respective markets of the Member States, their liberalization as well as integration will follow. As an essential part of the Internal Market, one of the main goals of Public Procurement is to guarantee the free movement of persons, goods, services and capital, which is accomplished specifically through transparent procedures in which participants are placed on equal and non-discriminatory terms. The purpose of this article is to show how the case-law of the Court of Justice of the European Union fills in a gap in the EU law regarding Public Procurement due to a lack of explicit regulations on some issues.

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