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Samenvatting collegestof
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Samenvatting van de colleges en de jurisprudentie van het vak
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Week 1 Introduction, Services & EstablishmentLecture 1_0
1. Setting the scene: set-up of the course, history, context & challenges
2. Economic integration – the internal market & free movement in general
3. Economic integration – the freedom of establishment & the free movement of services – part 1
Content & set-up
Focus on the EU substantive law law that creates or defines rights, duties, obligations, and causes
of action that can be enforced by law
- Economic integration
Freedom of establishment and free movement of services
EU competition rules
Free movement of workers
- Non-economic integration
EU citizenship
Equal treatment
Area of freedom, security and justice
History and context
- Innovative origins and fundament of the EU in economic cooperation (ECSC, EEC)
- Aim: socio-economic and political integration
- Some key political figures
- Jean Monait and Robert Schumann
- Henri Spaak published a report that lead to a European economic community. Common
market not only coat and steel, but also capital, persons and services
- Winston Churchill: pleading in favour of more European integration
- Hardly any aspect of socio-economic life escapes application EU law
- Gradually extending the scope of application of EU law
Case law of the EC
Treaty changes and amendments more legislative powers for the EU
Growing body of secondary EU legislation
- Now: Treaty of Lisbon
Challenges and crises
- EU has to face challenges and overcome crises
The shaking foundations of the EU?
Economic integration – the international market and free movement in general
The EU internal market
- Art. 26 TFEU (Treaty on the function of the European Union): Definition of the internal
market
- Court of Justice (EU), Gaston Schul
- (33) The concept of a common market … of a genuine internal market’
- Relationship with social market economy, art. 3(3) TFEU
, - Protocol no. 27 (internal market and competition law)
How is it realized?
Legal building blocks
- Four Treaty Freedoms: member states (and private actors under conditions)
- EU Competition rules: private actors, undertakings (for some rules Member States, e.g. state
aids)
- Harmonisation measures: EU legislature
Integration methods
How do these national market integrate into the internal market of the EU?
- Apply the Four Treaty Freedoms
- National law has to be set aside
Negative integration:
- Set national impediments aside
- Art. 18 TFEU: not directly or indirectly discriminate persons, services and companies that
originate from other states
- Prohibit all restrictions on free movement
Positive integration:
- The European legislature takes action: modifies national laws coming up with European
norms = harmonisation
Exhaustive harmonisation: national law can be used as long as the see to it will be the same as
the goal of the European law (still some own saying in the law)
Optional harmonisation:
Minimum harmonisation:
, - Mutual recognition – Cassis de Dijon: beverage could not be sold because it did not have a
certain minimum alcohol percentage. A rule in one member state should be recognized also in
another member state no common standard as long as member states accept other member
states’ rules
The EU internal market
Positive integration harmonisation of national laws
- Removing barriers to trade and free movement
- Creating level playing field
- Protecting public interests by EU legislator
Consequences
- Before harmonisation Treaty provisions on free movement
- After harmonisation EU measures (legislative acts) become framework of review, but…
- It depends on the technique of harmonisation
See tomorrow: services directive
So negative integration is never enough, positive integration is necessary.
Question: Spanish Law on Gambling
- The organisation of lotteries and games of chance by foreign companies is prohibited in Spain.
- The organisation of lotteries and games of chance in another language than the Spanish
language is prohibited in Spain. indirect discrimination
- The organisation of lotteries and games of chance is prohibited in Spain.
- Directive 2021/123/EU includes minimum requirements (e.g. to prevent gambling addiction)
with a view to obtain a licence for the organisation and marketing of lotteries and games of
chance in the EU. harmonisation, positive integration, common standards, minimum
harmonisation
- Lotteries and games of chance which have been legally authorized in Spain can be offered in
the 26 other Member States.
Rules that are not discriminating can still be prohibited if they restrict the free access to the market.
Four freedoms: common features
- Direct effect you can rely on these rules in a member state
- Economic activity
- Prohibited with and without distinction: from discrimination to market access
- Treaty exceptions and rule of reasons exceptions not only discrimination but all restrictions
on free access to the market is prohibited. exceptions; may be good reasons for member states
to apply rules even though they are restricted, in public interest
- Cross-border, no internal situations the laws that member states apply, they should have
some form of cross-border working
Four freedoms: differences
- Goods: art. 28 TFEU customs union
- Persons (including workers, self-employed, citizens) ‘human rights dimension’
- Servies: ‘non-tangible’, sometimes areas of sensitivity
- Capital: including transactions with third countries
, Free movement of goods – recap
Covid-19 and free movement of goods:
- Art. 34 and 35 TFEU: prohibitions
Export restrictions for essential medical equipment
Import restrictions for agro-food products
Border closures
Lockdown
- Art. 36 TFEU: Treaty exception
Public health – wide discretion for the Member States
Proportionality test
- ‘Rule of reason exceptions’ (mandatory requirements)
E.g. consumer protection, environmental protection
Proportionality test
EU harmonisation measures & soft law
Free movement of goods – recap II
Scheme to assess national measures in the light of the free movement of goods
- What are the different steps?
- What are the important principles?
- What are the important cases of the ECJ?
- See more extensively knowledge clip on free movement of persons!
The Kek case (selling arrangements) only applies for goods! Not establishment, services or workers
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