Rights and obligations arise out of the basic need to ensure the free movement of one of the main factors of production in the community. Illustrate this statement with case law and an analysis of the main regulation in this field. Jul 01, · EU Law: Exam Summary Notes on 'The Free Movement of Workers' THE FREE MOVEMENT OF WORKERS 1. THE MEANING OF ‘WORKER’ · There is no definition of ‘worker’ in EU . At the same time the law on public services is under the influence of a whole range of EU law provisions and regimes: namely the rules on free movement, competition law and state aid, general and sector-specific primary law provisions, horizontal rules of secondary law, as well as a large body of sector-specific secondary EU law, which has. Free Movement Of Goods And Services Notes Law Notes > European Law Notes This is an extract of our Free Movement Of Goods And Services document, which we sell as part of our European Law Notes collection written by the top tier of Oxford students. Free movement of workers is one of the fundamental freedoms in the European Union law (EU) and it is closely linked to European Citizenship. Free movements of EU workers have developed from the Treaties of Rome, alongside free movements for goods, for capital and of service.
Introduction In the middle of the World's biggest financial and economic crisis since the Great depression of s1, when the destiny of the EU project is more unclear than ever before,2 the strong voice of the EU Commission claiming that "The free movement of goods is one of the success stories of the European project"3 is aimed at bringing the discussion for the future of the EU back on the track of the solid reasoning and outside the populist political talking.
The purpose of this essay is to try to find some of general supporting and opposing grounds for that statement of the European Commission, based on examination of the respective TFEU provisions and some of the key practice of the ECJ4.
Some of the main contradictories of the leading role of the ECJ in forming the EU law by its practical application, which is often criticized for its inability to create consistent decisions, will be analyzed.
The importance of the Free movement of goods for the EU It will not be an overstatement if we mark the "Free movement of goods" as the most significant core-policy of the EU5. Today, over 50 years after it emerged as a foundation6 for the very creation of the European Coal and Steel Community - the grandparent of today's EU, followed by the longest period of peace and prosperity in the history of Europe7, the Free movement of goods concept is still the bedrock of the European idea.
Can Buy Irish survive the Crises? An unhealthy addiction to scotch whisky? But while protectionism would provide comfort for local businesses, in a long term10 the benefits of their disturbance are believed to be a lot more valuable and may be summarized as: This list can go a lot further, so the question if the free common market is a good thing at least in theory has a simple positive answer.
What is not simple are the means and the approaches used by the court to protect that extremely important concept. Short overview of the free movement of goods treaty provisions The EU "Free movement of goods" policy is based on the treaties and their enforcement by the ECJ. Some critics say that the scope of this policy is so large and important that hardly any business activity remains intact of it, which is why this scope should be extremely more unambiguous than it is now.
Chalmers, page 3 Article 28 1 TFEU establishes a customs union between the member states and adopts a common custom tariffs for third countries. The measures used by the legislator to achieve the common market idea can be divided to external and internal measures.
Article 36, on the other side provides the main grounds for derogation of the free movement of goods, namely: These are being supplemented by some additional derogation provisions, such as: All provisions overriding Art. Egan, Constructing a European Market: The EU free movement of goods law as part of the European integration is not static, it is an ever changing process22 and like any other process - frictions are forming its evolution That is why the ECJ is often blamed for introducing inconsistent decisions and creating a legal uncertainty by trying to define the scope and to apply the treaty provisions.
Cornerstone case law It might be said that the ground for the extensive ECJ influence on the development of EU Law was laid by forming the principle of direct effect in Van Gend en Loos 25 and the principle of supremacy in Costa V.
ENEL 26 - the former warranting the legal right of EU citizens to defend their treaty rights in domestic courts, and the latter enthroning the EU treaty as superseding inconsistent national laws Even though, it took more than 10 years after the outcomes from these two major cases to allow the rapid development of EU trade law by the Court to proliferate.
Text, cases and materials, 4th ed.
All these cases, of course, cannot be summarized with just a couple of words. They have a tremendous impact on the ECJ's subsequent Free movement of goods case law. The ECJ stated that MEQR are "all trading rules enacted by member states which are capable of hindering, directly or indirectly, actually or potentially, intra- Community trade". Since Dassonville, the level of adequacy of a measure adopted by member country and its necessity to be protected was constantly on the focus of the ECJ.
All these represented examples of overtly protective measures distinctly applicable measures taken by member states, which are falling under the ECJ's Dassonville formula interpretation as directly impeding the free movement of goods. The Dassonville formula was so broad that it had the potential to jeopardise the European integration as it did not pay attention to the governments' legislative intentions,41 but was only taking consideration on the effect of the measures.
That is why a further refinement of the case law concerning distinctly and indistinctly applicable measures needed to be made. Cassis This did not happen before a later case known as Cassis de Dijon stood before the court in The German law was not directly aimed it was indistinctly applicable at banning the foreign liquor, but in the end it actually prevented it from entering the market.
J Steiner, L Woods, page 42 Ibid. The judges ruled that such justification, excusing the prima facie obvious breach of Article 34 when applying the Dassonville test, may be founded on a necessity for the national government "to satisfy mandatory requirements relating to particular effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer"43 unexhaustive list.
Outline answers to essay and problem questions
One of the biggest problems in applying the Cassis principle for the ECJ, though, was the fact that it did not always succeed to find the thin line between distinctly and indistinctly applicable measures which lead to some controversies in the approaches of the judges, especially when they sometimes decided, to use only the provisions of Article 36 TFEU to test a potential breach of Article 34 TFEU.
Cassis case 44 Ibid, page 45 Ibid.
Denmark  ECR 49 Opt. J Steiner, L Woods, page 50 Opt.
Cassis case 8 Member state" Therefore if a member state applies any control, besides control required by the EU itself , on goods produced and marketed in conformity with all regulations of the importing Member state, this would be treated by the ECJ as a MEQR.
The only thing capable of overriding the strong presumption of the principle is the existence of proofs for public interest protection necessity.
An expression of the principle is the fact that today any desire of the Member states to apply a measure for protection of public interest is first brought to the attention of the Commission for justification of its necessity and proportionality. The German statute requiring a minimum alcohol content was not mandatory for the protection of the public interest, which could have been protected by simple labelling.
In Case Walter Rau56 a similar approach was followed by the court stating that labelling is sufficient and no Belgian legislation requiring margarine to be only packed in cube-shaped boxes in order not to be mistaken with butter is corresponding to Free movement of goods regulations of the EU. S Weatherhill, page 94 53 Opt. J Steiner, L Woods, page 9 Cassis was misused by different resourceful European lawyers, which brought to an outburst of cases and respectively numerous inconsistent decisions of the ECJ The over-extension of the Cassis principle could be easily seen in the so-called the Sunday-trading cases59 where even the old British tradition on closing shops on Sundays was questioned under Article 34 This situation was heavily criticised by many scholars as hindering the regulatory power of the Member states in an unconscionable way.
Keck Even though in the Sunday-trading cases and on some other instances the ECJ recognized, after all, that some rules could justify the national legislator keeping some sovereignty on regulating its domestic market64, it did not initially take firm position on the question and left it to the UK courts.
The inability of the ECJ to draw a distinct enough line between proportionate and necessary and disproportionate and unnecessary measures was obvious. A change of direction was needed. This situation was relieved with joined cases Keck and Mithouard65 by a split of the indistinctly applicable measures in two new subgroups, which partially invalidated some aspects of the Dassonville formula and represents a rare example of the ECJ overturning a precedent. J Steiner, L Woods, page 64 Opt.
Their lawyers claimed that the ban is contrary to Article 34 TFEU as an indistinctly applicable measure failing to be justified under the Cassis formula. On the first stage of the case, the ECJ supported this view accepting that such French law may affect the import of goods and hinder the trade between Member states, but after two inconsistent opinions of Advocate general van Gerven made at the two different stages of the case as it was referred later to the full Court , the full Court decided to take total control on the situation considering that a re-examination of the ECJ's case law was needed.
Where those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products. Keck and Mithouard 11 would be e. No certainty after Keck Although allowing more flexibility for the court when judging on Article 34 and marked in advance as a big success by the Commission71, the Keck formula did not solve anything in full and the ECJ still had to address a lot of issues.
Another contradictory case emerged in the late 90s - Gourmet International The case concerned a prohibition of alcohol print advertising by Sweden. Although it was not aimed at any particular product and accordingly should had been classified as a selling arrangement, the ECJ took a surprising decision in the contrary, saying that there is a high possibility for a foreign alcohol imports to be affected by the ban and therefore it found the Swedish law contrary to Article 34 TFEU.
On the other hand, some national marketing regulations e. For instance in 68 Ibid. More recently, in Alfa Vita77 a Greek law regulating the sale of bread which was produced only half baked and sold after extra-baking at the store by requiring the seller to be duly licensed and equipped to bake the bread, was found inconsistent with Article 34 TFEU.
The ECJ considered the Greek regulation as an example of product requirement, even though it regulated not the product itself, but the place where such product could be processed.
The reason was that the court took into concern the fact that the regulation was indirectly relevant to the production process of such bread and not only defined the place of its production, because it did not "take the specific nature of those products into account and entails additional costs, thereby making the marketing of those products more difficult".
Advertisement was another contradictory area, where the court's rather mechanical approach to apply Keck was widely criticized In Leclerc - Siplec82 the court ruled that "regulation or administrative action in Member States concerning the pursuit of television broadcasting activities does not preclude Member States from prohibiting, by statute or by regulation, the broadcasting of advertisements for the distribution sector by television broadcasters established on their territory.
However, this is not the only reason for the inconsistencies of the court. The matter of Free movement of goods is a subject to constant change and every formula that the ECJ creates in its practice is normally to be adjusted as to reflect the actual facts of every particular case. There are no universal solutions, as after all, the adjudication is an active 81 Opt. The facts speak that the system of the Free movement of goods works and today it is more developed than ever before.
Evidence are the very similar pricing and variety of goods all over the EU. That is why, it might be said that the ECJ is a successful instrument for interpretation and enforcement of EU Law and the Free movement of goods is in general one of the success stories of the EU.
Bibliography Primary sources Legislation 1. Treaty on European Union 2. Treaty on the Functioning of the European Union Cases 1. Denmark  ECR Conforama  ECR I Mars  ECR I