Chris Tan Essay EU Supervision 8 Free Movement PDF

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Essay on free movement of persons and human rights ...

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While, in practice, MSs have the autonomy to derogate from EU free movement rules, in practice, their capacity to defend national interests is highly constrained by EU law. Discuss INTRODUCTION The Member States (MSs), it is said, are the ultimate masters of the treaties. Art 4(1) TEU underscores this conferral principle: powers not conferred onto the Union stay with the MSs. What regulatory powers remain with MSs, and when can MSs restrict free movement despite their Art 352 TFEU single market obligations. In this essay, I will give an overview of free movement and the treaty derogations before looking at power balance as between the MSs and the CJEU in the setting of rules which may either be indirectly discriminatory or capable of hindering market access before considering whether or not a fair balance is struck between national and pan-European interests. FREE MOVEMENT AND DIRECT DISCRIMINATION The free movement of goods, services, capital and persons form a unity in the context of the single market. Theoretically, integrating the factors of production on a Union scale achieves the most efficient allocation of resources, increasing overall productivity and consumer welfare. Direct nationality discrimination, for example stopping Poles from working in the UK, would fundamentally undermine this, even though such protectionist measures may lead to domestic benefit in the short-term. Accordingly, direct discrimination is only permitted on the basis of a narrow list of derogations to prevent a 28-player prisoner’s dilemma standoff. For goods, Art 36 TFEU exhaustively lists potential derogations for restricting imports and exports, including public morality, public security/policy, public health and the protection of ‘national treasures’. Any such measures must not amount to a ‘disguised restriction on trade’. These are interpreted narrowly – in Henn and Derby, for example, the UK was not allowed to use public morality to justify a ban on importing sex dolls when the UK permitted similar dolls to be manufactured domestically. Similarly, Arts 45(3), 52 and 62 TFEU on workers, establishment and services permit derogations on public health and public health/security grounds. To deport an EU worker, Bouchereau says that a ‘genuine and sufficiently serious threat’ must be made out, which must be based on the personal conduct of that person per Van Duyn. As far as derogations go, the MSs can and do invoke them as long as they can satisfy these high thresholds. Truly harmful individuals can be refused entry, subject to the procedural safeguards in the CRD, as can carriers of WHOdefined epidemics or goods that are not merely distasteful but actually depraved. In a way, these go to preserving the existence of the nation. Most of the time, this is not what MSs are concerned about. INTERESTS OF MSs What are the interests of MSs beyond self-preservation? They have economic interests, which are meant to be met through the single market. They have political interests which ultimately come down to power-play by eg ‘putting the Germans in their place’, which would normally contradict their Art 13(2) TEU duty of ‘mutual sincere co-operation’. Their legitimate interests in this sphere primarily consist of societal concerns like protecting the vulnerable or respecting deeply-seated cultural norms. These national interests are not

While, in practice, MSs have the autonomy to derogate from EU free movement rules, in practice, their capacity to defend national interests is highly constrained by EU law. Discuss beyond judicial oversight but the CJEU shows significant deference to MSs in this regard when applying proportionality review. CAPACITY TO DEFEND Mandatory/Obligatory Requirements In the context of Arts 34-35 TFEU, measures having equivalent effect (MEEs) as quantitative restrictions (QRs) are unlawful. Dassonville says that there is a presumption of equivalence – goods lawfully sold in one MS should presumptively be able to be legally sold in another MS. Hence, any trading rule which actually or potentially, indirectly or directly hinders intra-Union trade unless there is cogent evidence why this should not be the case. Cassis de Dijon gives examples of these mandatory requirements – preventing tax evasion, protecting public health, ensuring fairness in commercial transactions and consumer protection. This is an indicative rather than definitive list so other mandatory requirements like protecting national/regional socio-cultural characteristics have also been recognised per Torfaen BC v B&Q. Rules which impose an equal burden in law but a higher burden in fact on foreign providers are permitted where the MS can identify some legitimate concern that the rule serves to protect. These are accepted in the context of rules that are not directly discriminatory for the free movement of persons per Gebhard too. While the burden is on the MS to show why such rules are legitimate, necessary and proportionate, they can be imposed to protect national interests insofar as they are not directly discriminatory. Certain Selling Arrangements For goods, the balance shifted further in favour of MSs in Keck where it was held that certain selling arrangements (CSAs) imposed an equal burden in law and fact and therefore were lawful. Mortelman says this was about static selling arrangements like Sunday trading rules that affected the retailer not the producer. However, De Agostini recognised that CSAs could impose a different burden in fact and the burden of proof would then shift back to the MS. The scope of Keck has been narrowed into redundancy according to Spaventa – the decisive shift to a market access approach in Trailers and the maximum harmonisation of the Unfair Commercial Practices Directive mean this unreviewable sphere for MS regulatory autonomy no longer exists, which accords with the economic constitutionalism model supported by Weatherill. This CSA category has never been adopted for services, where market access dominates – Alpine Investments. AG Leger in Gebhard did however suggest that, normatively, the host MS has more autonomy to regulate establishment than services. PROPORTIONALITY MS decision-making is circumscribed by free movement: when Germany acted to protect the most ignorant consumers by disallowing the use of the brand name ‘clinique’, their ability to protect consumers was limited to simply protecting the ordinary consumer so as to strike a fair balance with free movement – L’Oreal. However, when it comes to assessing proportionality, weight is given to the particular conditions of each MS. In Ilonka Sayn-Wittingstein v Wein, an aristocratic castle

While, in practice, MSs have the autonomy to derogate from EU free movement rules, in practice, their capacity to defend national interests is highly constrained by EU law. Discuss saleswoman could use her titles in in Germany but not Austria. Having two names made it harder to provide her services across borders, but this was justified as proportionate by reference to Austrian republican concerns. Similarly, Germany’s ban on laser tag in Omega on the basis that simulated killings offended human dignity was upheld as proportionate in light of Germany’s troubled past. Greater freedom to protect their interests applies where the particular constitutional identity of the MS is engaged. As for moral decisions where there is no objective ‘right’ answer, the CJEU is similarly deferential. In Schindler, it was acknowledged that gambling was an economic activity but one that was potentially a social ill and a useful source of government revenue. As such, the UK’s decision to impose a blanket ban on importing advertisements for lotteries was lawful. Hatspoulos says this approach is overly-deferential as the court simply said that such finely-tuned decisions had to be within MSs’ margin of appreciation. Similarly, Sunday trading rules were accepted as culturally-influenced in Torfaen. CONCLUSION Powers conferred onto the Union are not easily taken back. MSs have some express scope for derogation but even decisions that merely interfere with market access are not beyond the scope of CJEU review. Assuming MS economic and political interests are equated as being fulfilled through the EU, then their particular societal interests are given some weight during proportionality review....