scholarly journals The Ambiguous Relationship Between the EU and its Internal Borders

2020 ◽  
Vol 1 (2) ◽  
pp. 64-70
Author(s):  
Aude Bouveresse
Keyword(s):  
Case Law ◽  
Free Movement ◽  
Freedom Of Movement ◽  
Court Of Justice ◽  
European Court ◽  
European Citizenship ◽  
Free Movement Of Goods ◽  
The Individual ◽  
European Citizen ◽  
The Eu

      The free movement of EU citizens within the Union reveals the ambiguous relationship between the EU and borders. While the functioning of the internal market is essentially based on freedom of movement and implies the elimination of borders as barriers to trade, the freedom of movement of the European citizen remains defined largely within the conceptual framework of borders, since nationality is a prime requirement for European citizenship. Inside the EU, as this article highlights, borders are necessary and problematic at same time. The Court has played with the concept of borders to address these ambiguities with a view to deepening integration. The conclusion is that if the Court has been able to effectively remove obstacles related to internal borders concerning the free movement of goods and the movement of active economic persons, such has not been the case for the free movement of European citizens, economically inactive. It follows from the division of competences and the case law of the European judges that solidarity remains intrinsically linked to nationality and therefore inevitably leads to the re-establishment of borders and the separation of peoples. This demonstrates the resistance of the “paradigm of a European market citizenship”. By revaluing nationality in the context of the enjoyment of the rights linked to citizenship, the European Court of Justice could hamper the integration process by renationalising the individual and establishing new borders.

11. Free movement of goods II: non-tariff barriers

2020 ◽  
pp. 287-318
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
European Commission ◽  
Case Law ◽  
European Court Of Justice ◽  
Free Movement ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Free Movement Of Goods

This chapter examines European Union (EU) law concerning non-tariff barriers to free movement of goods. It describes member states’ attempts to influence imports and the way the European Commission and the European Court of Justice (CoJ) handled these issues. This chapter explains the provisions of the relevant legislation for non-tariff barriers, which include Articles 34, 36, and 35 of the Treaty on the Functioning of the European Union (TFEU). It also analyses example cases including ‘Dassonville’, ‘Cassis de Dijon’, and post ‘Keck’ case law. It concludes with a consideration of the latest trend of cases concerning product use and residual rules.

What Is Possible and What Is Not? The Development of a Legal Framework for Drug Pricing Mechanisms in the EU

2019 ◽  
Vol 26 (2) ◽  
pp. 120-140
Author(s):  
Gisela Ernst
Keyword(s):  
Case Law ◽  
Legal Framework ◽  
Healthcare Systems ◽  
European Court Of Justice ◽  
The European Union ◽  
Pharmaceutical Pricing ◽  
Court Of Justice ◽  
European Court ◽  
Free Movement Of Goods ◽  
The Eu

Abstract As a result of the constantly increasing number of innovative but exceedingly high priced medicines, many Member States have implemented price-regulating mechanisms to ensure the financial viability of their healthcare systems. However, the European Court of Justice applies strict criteria to these measures – some of them have already been suspended for the purposes of the free movement of goods. The European Union (EU) allowed the development of an ever-stricter case law on one hand, without changing the legal frame on the other hand. Considering the importance and the binding nature of the Court’s judgements, this leaves great uncertainty for national legislators about which measures to remedy the pricing problem are legally possible and which are not. In order to provide clarity, this article seeks to analyse the development of the case law and to define the legal scope for pharmaceutical pricing mechanisms in the EU.

scholarly journals Free movement of workers in the EU and occupational pensions

2017 ◽  
Vol 19 (2) ◽  
pp. 141-157 ◽  
Author(s):  
Marion Del Sol ◽  
Marco Rocca
Keyword(s):  
Case Law ◽  
Legal Framework ◽  
Free Movement ◽  
The European Union ◽  
Occupational Pensions ◽  
Minimum Standards ◽  
Court Of Justice ◽  
Free Movement Of Workers ◽  
The Eu ◽  
Cross National

The European Union appears to be promoting at the same time both cross-national mobility of workers and an increased role for occupational pensions. There is, however, a potential tension between these two objectives because workers risk losing (some of) their pension rights under an occupational scheme as a consequence of their mobility. After long negotiations, the EU has addressed this issue through a minimum standards Directive. Shortly before the adoption of this Directive, the Court of Justice also delivered an important decision in the same field, in the case of Casteels v British Airways. By analysing the resulting legal framework for safeguarding pension rights under occupational schemes in the context of workers’ mobility, we argue that the application of the case law developed by the Court of Justice in the field of free movement of workers has the potential to offer superior protection compared to the Directive. We also highlight the fact that the present legal framework seems to afford a much fuller protection to the intra-company cross-national mobility of workers employed by multinational companies, while also seemingly favouring mobility for highly specialised workers.

Square Pegs and Round Holes: The Free Movement of Persons Under EEA Law

2017 ◽  
Vol 19 ◽  
pp. 165-186
Author(s):  
Christian NK FRANKLIN
Keyword(s):  
Free Trade ◽  
Case Law ◽  
Fundamental Principle ◽  
Free Movement ◽  
Trade Association ◽  
Eu Law ◽  
European Free Trade Association ◽  
Court Of Justice ◽  
Free Movement Of Persons ◽  
The Eu

AbstractWhilst the European Union’s aim of achieving an ‘ever closer Union’ is not an objective of EEA cooperation, homogeneity demands that we follow the same path: as the Union gets ever closer, so too does EEA cooperation, in light of the demands of the fundamental principle of homogeneity. This is particularly well demonstrated by looking at developments in the field of the free movement of persons. The case law of the Court of Justice of the European Free Trade Association (EFTA Court) in this field shows that in situations where homogeneity is put to the test, there seems little to suggest that a more national sovereignty-friendly approach has been adopted than under EU law. Notwithstanding the integral differences between the EU and EEA legal constructs, the EFTA Court has proven highly adept at keeping pace with EU developments in the field through a number of bold and creative interpretations of EEA law, and by using different tools to arrive at uniform conclusions.

scholarly journals Libre circulación de personas y Derecho Internacional Privado: un análisis a la luz de la jurisprudencia del Tribunal de Justicia de la Unión Europea = Free movement of persons and International Private Law: an analysis in the light of the case law of the European Court of Justice

2017 ◽  
Vol 9 (2) ◽  
pp. 106
Author(s):  
Irene Blázquez Rodríguez
Keyword(s):  
International Law ◽  
Mutual Recognition ◽  
Case Law ◽  
Free Movement ◽  
Legal Person ◽  
Private International Law ◽  
European Court ◽  
Palabras Clave ◽  
European Citizenship ◽  
Free Movement Of Persons

Resumen: El objetivo de este trabajo es analizar la interacción entre la libre circulación de per-sonas y el Derecho internacional privado. Mediante esta dimensión se profundiza en la esencia de esta movilidad intra-UE, al tiempo que se calibra el alcance del status civitatis europeo. Este estudio se sus-tenta en una jurisprudencia reciente –si  bien consolidada– del TJUE en la que se garantiza no sólo el desplazamiento sino también el reconocimiento de situaciones privadas en el espacio europeo, y ello con independencia de la regulación material o conflictual del Estado miembro de acogida. En esta acción, la persona tanto física como jurídica trasciende su propio Derecho nacional y adquiere una auténtica dimensión “europea”.Palabras clave: libre circulación de personas, ciudadanía de la Unión, Derecho internacional pri-vado, estatuto personal.Abstract: The aim of this paper is to analyse the interaction between the free movement of persons and private international law. This dimension deepens in the essence of this intra-EU mobility, at the same time as measuring the scope of the European status civitatis. This study is based on recent –yet already well defined– case law of the CJEU, guaranteeing not only the movement but also the mutual recognition of civil situations into the common European space, independent of substantive or conflict rules of the host member state. With this action, both natural and legal person go beyond their own na-tional law in order to acquire a truly “European” dimension.Keywords: free movement of persons, European citizenship, Private International Law, personal status.   

Goods, Persons, Services and Capital in the European Union: Jurisprudential Routes to Free Movement

2010 ◽  
Vol 11 (2) ◽  
pp. 159-209 ◽  
Author(s):  
Tim Connor
Keyword(s):  
European Union ◽  
Market Access ◽  
Case Law ◽  
Free Movement ◽  
The European Union ◽  
Court Of Justice ◽  
Equivalent Effect ◽  
National Rule ◽  
Free Movement Of Goods ◽  
National Measure

This Paper considers the jurisprudence of the Court of Justice in relation to the free movement provisions of European Community law in relation to goods, persons, services and capital within the European Union. It examines the bases used by the Court in its application of Community free movement provisions to national measures that may seek to hinder the exercise of such rights. From limited enquiry originally founded on considerations of non discrimination based on nationality, to one most recently focussed on the ‘restriction’ to the free movement right, the Paper examines the methods employed by the Court of Justice in its scrutiny of the national measure appearing to conflict with Treaty free movement rights.The examination of the applicable free movement jurisprudence attempts to demonstrate the want of a thematically consistent underpinning within free movement case law. The Paper draws attention to the complexities and even the confusions that appear to be inherent within free movement jurisprudence and arguably evidenced within the Court's journey from ‘discrimination’ to ‘restriction’ as the basis of the enquiry with regard to the application of Treaty free movement rights. In its consideration of Case C-110/05Commission v Italy, Case C-142/05Åklagaren v. Percy Mickelsson v. Joakim Roos, recent jurisprudence with respect to the free movement of goods, the Paper notes that in the context of the ‘measure having equivalent effect’, the emphasis in the assessment of the national rule has shifted to an examination of the effect on market access, rather than a distinction based on the type of rule.

Harmony and Dissonance in Free Movement

2001 ◽  
Vol 4 ◽  
pp. 315-341
Author(s):  
Miguel Poiares Maduro
Keyword(s):  
Free Movement ◽  
Middle Ground ◽  
National Treatment ◽  
Court Of Justice ◽  
European Court ◽  
Scope Of Application ◽  
Free Movement Of Goods ◽  
Free Movement Of Persons ◽  
Movement Rules ◽  
Reversal Of Fortune

There is a generalised perception that the European Court of Justice has adopted different approaches to the different free movement rules included in the Treaties. In particular, the free movement of goods has ‘benefited’, until 1993, from a wider scope of application. Contrary to what has for long constituted the standard approach to the free movement of persons, the free movement of goods was constructed as requiring more than national treatment and non-discrimination in regard to goods from other Member States. Even non-discriminatory restrictions on trade in goods could constitute a violation of Community rules if not justified as necessary and proportional to the pursuit of a legitimate public interest. The freedom to provide services has somewhat occupied a middle ground between the interpretation given to the goods and persons provisions. Following the Court’s decision in Keck & Mithouard in 1993, a reversal of fortune appears to have taken place regarding the Court’s approach to the different free movement provisions, with the free movement of persons and the freedom to provide services now benefiting from a more ‘aggressive’ interpretation in comparison with the free movement of goods.

The self-perpetuation of EU constitutionalism in the area of free movement of persons: Virtuous or vicious cycle?

2013 ◽  
Vol 2 (1) ◽  
pp. 125-150 ◽  
Author(s):  
ANJA WIESBROCK
Keyword(s):  
Mutual Influence ◽  
Case Law ◽  
Free Movement ◽  
The European Union ◽  
Court Of Justice ◽  
Inherent Feature ◽  
The Face ◽  
Initial Resistance ◽  
Free Movement Of Persons ◽  
The Eu

AbstractThis paper analyses the mutual influence and self-perpetuating cycle of legitimacy of EU legal scholars and the Court of Justice of the European Union (CJEU) in expanding and broadening the free movement rights of Union citizens and their family members. It is argued that legal scholars have played a dual role in promoting the constitutional paradigm of an ever-expanding scope of directly enforceable residence and movement rights in the EU. First, by presenting the expansion of free movement rights as an inevitable outcome of the EU constitutional order based on directly enforceable individual rights, scholars have played a significant role in legitimizing the jurisprudence of the Court in the face of initial resistance from the member states. Second, legal scholars have been an important source for the Court of Justice in developing its case law in this area. The Advocates General in their opinions have drawn on an expanding field of scholarship presenting the expansion of free movement rights as an inherent feature of the EU as a constitutional legal order. Spurred by the objective of turning the EU into more than an internal market, the opinions of the Advocates General have mostly been followed by the Court. Legal scholars have thus served not only as a legitimizing force, but also as a source of inspiration for the perceived constitutionalization of free movement rights in the EU.

National Procedural Autonomy and General EU Law Limits

2019 ◽  
Vol 12 (2) ◽  
pp. 5-34
Author(s):  
Rob Widdershoven
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Eu Law ◽  
Procedural Law ◽  
Court Of Justice ◽  
European Court ◽  
Recent Approach ◽  
Procedural Autonomy ◽  
Judicial Protection ◽  
The Eu

This article examines the recent approach of the European Court of Justice of the EU towards the applicability of procedural national law in cases falling within the scope of Union law. It argues that the Court increasingly assesses such rules within the framework of the principle of effective judicial protection, as bindingly codified in Article 47 of the Charter of Fundamental Right of the EU since December 2009. This test is gradually replacing the rather deferential test on the Rewe principles of equivalence and effectiveness and implies a further limitation of procedural autonomy of the Member States. The reason for the shift seems to be the necessity to coordinate the Court's case law on Article 47 CFR with the case law of the European Court of Human Rights on Article 6 ECHR, because this coordination requires the application of a similar standard by both European Courts. As a result, the importance of, in particular, the Rewe principle of effectiveness, has already decreased to a considerable extent and might decrease further in future. Nevertheless, it is not to be expected that this standard will be abolished completely. First, because it may provide an adequate standard for assessing procedural issues that are not related to effective judicial protection or Article 47 CFR. Secondly, because incidentally it may be used by the Court for modifying national procedural law with a view to the effective application of substantive EU rules.

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