THE EU INTERNAL MARKET
Michele Colucci
E-mail:info@colucci.eu
Web site: www.colucci.eu
European College of Parma
Academic year 2012-2013
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Article 3 TEU
- to promote economic and social progress and a high level of employment and
- to achieve balanced and sustainable development, in particular through the
creation of an area without internal frontiers, through the strengthening of economic
and social cohesion and through the establishment of economic and monetary union,
— to assert its identity on the international scene, in particular through the
implementation of
a common foreign and security policy including the progressive framing of a common
defence
policy
— to strengthen the protection of the rights and interests of the nationals of its
Member States
through the introduction of a citizenship of the Union,
— to maintain and develop the Union as an area of freedom, security and justice, in
which the
free movement of persons is assured in conjunction with appropriate measures with
respect to
external border controls, asylum, immigration and the prevention and combating of crime,
— to maintain in full the acquis communautaire and build on it
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EU as a Custom Union
Internal section - regulation of intraCommunity trade:
Elimination of custom duties and charges;
Elimination of internal borders to facilitate four
freedoms
External section - regulation of trade
with third countries:
common custom tariffs;
common commercial policy.
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The Fundamental Freedoms
1. Freedom of movement for persons
2. Freedom of movement for services
3. Freedom of movement for capitals
4. Freedom of movement for goods
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EC TREATY AND EU
CITIZENSHIP
Every person holding the nationality of a
Member State shall be a citizen of the Union.
(art. 20 TFEU).
Every citizen of the Union shall have the right to
move and reside freely within the territory
of the Member States, subject to the limitations
and conditions laid down in this Treaty and by
the measures adopted to give it effect.
(art. 21 TFEU).
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FREE MOVEMENT OF WORKERS
Artt.45 - 48 TFEU. Workers have the
right to:
– accept offers of employment actually made;
– move freely within the territory of Member
States for this purpose;
– to stay in a Member State for the purpose of
employment;
– to remain in the territory of a Member State
after having been employed in that State.
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THE EC TREATY
Self employed persons:
– Right of establishment(artt. 49-54 TFEU)
and
– Freedom to provide services (artt. 56-62
TFEU):
the right to take up and pursue activities as selfemployed persons and to set up and manage
undertakings .
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CASE LAW OF ECJ: evolution
Definition of «worker»:
– A PERSON PERFORMS SERVICES OF SOME
ECONOMIC VALUE FOR AND UNDER THE
DIRECTION OF ANOTHER PERSON IN RETURN
FOR WHICH HE RECEIVES REMUNERATION
(Lawrie-Blum, C-66/85).
«Community meaning»(Unger, C-75/63).
Fundamental Principle: broad interpretation
(Levin, C-53/81).
Exceptions and derogations: strict interpretation
(Kempf,C-139/85).
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EQUAL TREATMENT
BAN ON “DIRECT” DISCRIMINATIONS
Art. 18 TFEU on the basis of nationality
Art. 45 TFEU:
– Access to employment
– Pay
– Employment conditions
Association agreement, Co-operation
agreement, and so on.
SPORT: Balog case, Simutenkov, case
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« COVERT DISCRIMINATIONS »
NO « COVERT FORMS OF
DISCRIMINATION” which, by the
application of other criteria of
differentiation, lead in fact to the same
result . (cause 152/73 Sotgiu)
YES, only in case of « objective reasons »;
proportionality test!
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THE UEFA HOMEGROWN
PLAYER RULE
THE UEFA HOMEGROWN PLAYER
RULE
Homegrown: player trained by a club for 3
years when he is between 15 and 21
years old
– 2006/2007
4 up to 25
– 2007/2008
6 up to 25
– 2008/2009
8 up to 25
No discrimination on the basis of nationality.
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Reverse discrimination
“National law” v. “EU law”:
– Different scope
– different goals
EU Law does not apply to purely
internal matters.
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Discriminatory act
and
limit to free movement
Discriminatory act:
– ordinary legislation,
– Collective bargaining agreements,
– Regulations of private associations,(Bosman,
C-415/93): FIFA, UEFA,
Limits to free movement:
– Public administration;
– Public order and security
– Public health
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TERRITORIAL SCOPE
The EUROPEAN UNION: 27 Member
States
the 2+3+2 rule!
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The case law of the ECJ
“Sport is subject to Community law in so far as it
constitutes an economic activity within the
meaning of Article 2 of the Treaty” .
Walrave case, C-36/74.
Donà v. Montero case, C- 13/76(nationality
clause).
sports or economic activity?
– C-51/96 Deliège case”, C-176/96, Lethonen case,
Meca – Medina case(doping).
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THE BOSMAN case
cause C -415/93
DAVID v. GOLIAH!
Sport= economic activity= the end of
transfer compensation
Quid training ?
The new FIFA regulations on Status and
Transfer of Players
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Freedom to provide services
EC DIRECTIVE 2006/123/EC
– Goal is to achieve a genuine Internal Market in
services
– A framework directive applying to wide-range of
services
– Provisions on:
administrative simplification
freedom of establishment
freedom to provide services
quality of services
administrative co-operation
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SCOPE
Services
– Any self-employed economic activity which is normally provided
for remuneration
Providers established in a MS
– a natural person who is a national of a MS
- a legal person established in a MS
Certain provisions in the Directive relate to recipients
– a natural person who is a national of a MS or who benefits from
rights conferred upon him by Community acts
- a legal person established in a MS
BUT….
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ACTIVITIES NOT COVERED
Following activities are excluded from the scope:
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non-economic services of general interest
financial services
electronic communication services and networks
transport services and port services
services of temporary work agencies
health care services
audiovisual and radio broadcasting services
gambling activities
activities which are connected with the exercise of official authority
certain social services
private security services
services provided by notaries and bailiffs
health care services
audiovisual and radio broadcasting services
gambling activities
activities which are connected with the exercise of official authority
certain social services
private security services
services provided by notaries and bailiffs
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SIMPLIFICATION!!!!!
MSs are obliged to examine all procedures
and formalities applicable to access to a
service activity and to the exercise thereof
and, if needed, simplify them
Points of single contact
Procedures by electronic means
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FREEDOM OF ESTABLISHMENT
Actual pursuit of an economic activity for an
indefinite period and through a stable
infrastructure
Provisions relating to
– authorisation schemes
– forbidden requirements which must be abolished
– requirements which must evaluated and in certain
cases abolished or replaced by less restrictive means
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Freedom to provide services
Characterised by the absence of a stable and
continuous participation in the economic life of
the host MS
MSs are obliged to abstain from imposing their
own requirements on incoming service
providers, except
– where justified by reasons of public policy, public
security, public health or the protection of environment
– legislation in question is covered by derogations
provided for in Article 17
– case-by-case measures relating to the safety of
services
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Quality of services
Information on providers, their services
and the settlement of disputes
Professional liability insurance and
guarantees
Commercial communications by the
regulated professions
Multidisciplinary activities
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AUTHORISATION SCHEMES AND
REQUIREMENTS
Authorisation schemes are allowed only on certain
conditions
– non-discriminative
– the need for authorisation is justified by an overriding
reason relating to the public interest
– proportionality
Requirements are set for
– conditions of the authorisations
– the duration of the authorisations
– authorisation procedures
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FORBIDDEN REQUIREMENTS
Forbidden requirements
– nationality requirements for the provider, his staff,
shareholders or members of the management or
supervisory bodies
– a requirement to be resident in the territory of that MS
– a prohibition on having several establishments
– restrictions on choosing between a principal or a
secondary establishment or between different forms
of secondary establishments
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OTHER FORBIDDEN
REQUIREMENTS
– conditions of reciprocity
– economic tests
– the involvement of competing operators in the
decisions of competent authorities
– obligation to have financial guarantees or
insurances from the MS in question
– an obligation to have been previously
registered or to have previously exercised the
activity in the MSs in question
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OTHER REQUIREMENTS
Requirements subject to evaluation
– quantitative or territorial restrictions
– obligation for the service provider to take a
specific legal form
– requirements relating to the shareholding of
companies
– requirements reserving the provision of
certain services to specific providers
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OTHER REQUIREMENTS
– bans on having more than one establishment
in the territory of the same MS
– obligations to have a minimum number of
employees
– obligations to apply fixed minimum or
maximum tariffs
– obligation on the provider to supply other
specific services jointly with his service
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FREE MOVEMENT OF CAPITALS
Conclusions of the Madrid European Council
on 26 and 27 June 1989:
– the
Liberalization
of
Capital
Movements
Corresponds to the First Stage of Economic and
Monetary Union .
– Necessary to take Full Advantage of the Benefits
of the Single Market.
But ...Possibility of:
– Restrictions
– Safeguard Measures (for security and foreign
policy reasons
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FREE MOVEMENT OF GOODS
Article 26 TFEU:
The Union shall adopt measures with the
aim of establishing or ensuring the
functioning of the internal market
The internal market shall comprise an area
without internal frontiers, in which the free
movement of goods, persons, services
and capital is ensured in accordance with
the Treaty
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Obstacles to Inter-State Movement of
Goods Recognized in the Treaty
1.
2.
3.
Custom duties and charges having equivalent effect
(Art. 28-30 TFEU): duties on border crossing and any
other charges with equivalent effect
Discriminatory taxation (Art. 110 TFEU): taxes in
excess of tax for similar domestic products
Quantitative restrictions on imports and exports
(quotas) and all measures having equivalent effect
(Art. 34-35 TFEU): MEE could be any public and
private measure, including law, an internal regulation,
decisions of a judge or a court, administrative rules
and regulations giving discretion to discriminate (Irish
Souvenirs case 249/81)
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Quantitative Restrictions and MEE
(Articles 34 and 35 TFEU)
Quantitative restrictions = explicit restrictions such as quotas
MEE = implicit restrictions such as a duty to obtain a licence to
import or export
Procureur du Roi v. Dassonville (case 8/74):
All trading rules enacted by MS 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 [para. 5]
Rule of reason: In the absence of a Community system…if a
MS takes measures to prevent unfair practices…it is subject to
the condition that these measures should be reasonable…
[para. 6]
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Categories of Measures Possibly Caught in
Violation of Art. 34 TFEU by
the Dassonville Formula
1. Discriminatory measures on the ground of
nationality
2. Indistinctly applicable measures: so-called
product requirements, related to the production
and marketing of goods that apply without
distinction to both foreign and domestic goods
but it is usually more burdensome for foreign
companies/goods (Casis de Dijon case 120/78)
3. Selling arrangements: category created by
Keck case C-267/91 related to socio-economic
measures as to how goods should be sold
(manner of sale)
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Cassis Principles:
1. The Rule of Reason:
Certain measures, even if within Dassonville formula, will
not breach Art. 34 TFEU if they are necessary
(proportionality) to satisfy mandatory requirement
(objective justification) relating in particular to the
effectiveness of fiscal supervision, the protection of
public health, the fairness of commercial transactions
and the defence of the consumer
2. Mutual Recognition:
There is no valid reason why, provided that goods have
been lawfully produced and marketed in one MS, they
should not be introduced into any other MS
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Keck Proviso
Selling arrangements are excluded
from Article 34 TFEU (Dassonville
formula) as long as they affect in
the same manner, in law and in
fact, the sale of domestic products
and of those from other MS [para.
16]
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Exceptions to Free Movement of
Goods
Public morality
Public policy
Public security
Protection of health and life of humans, animals
or plants
Protection of national treasures possessing
artistic, historic or archaeological value
Protection of industrial and commercial property
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THE EU INTERNAL MARKET
MYTH OR REALITY?
Some personal experience...
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