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Negative and Positive Integration in EU Economic Law: Between Strategic Denial and Cognitive Dissonance?

Published online by Cambridge University Press:  06 March 2019

Pedro Caro de Sousa

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It is a generally held assumption that the EU economic free movement rights are tools in the creation of a European internal market; and that their main goal is the (negative) market integration of different national markets. Yet these freedoms do not determine how market integration is to proceed, or which kind of integrated European market will emerge. The resulting market may be more or less regulated, and the creation of the relevant regulatory rules may be allocated to a variety of sources. These options are reflected in the different proposed tests used to determine whether a national measure prima facie infringes one of the market freedoms. The proposed tests fall into two main categories—broad tests and narrow tests—and each type has its own implications for European integration. Broad tests, usually associated with obstacle tests or even with economic due process clauses, tend to be seen as having three main outcomes. One result of broad tests is centralization, implying that ultimate decisions concerning the legitimacy of national law rests with EU institutions, and particularly with the Court of Justice of the European Union (“the Court” or “CJEU”). Another outcome of broad tests is the possible harmonization of national laws through the European political process by increasing the amount of national legislation susceptible to being harmonized under Articles 114 to 118 on the Treaty on the Functioning of the European Union (“TFEU”). A third consequence of broad tests is deregulation through the elimination of national rules creating obstacles to trade. Alternatively, narrow approaches-usually associated with discrimination or typological tests-are usually coupled with regulatory pluralism via a greater degree of control of the harmonization competences of the EU, decentralization through the protection of a greater sphere of Member States' autonomy, and economic agnosticism. Views on the potential outcomes of broad and narrow tests are, in turn, related to normative debates about the ideal levels of centralization, harmonization, and regulation in the internal market.

Type
Articles
Information
German Law Journal , Volume 13 , Issue 8 , 01 August 2012 , pp. 979 - 1012
Copyright
Copyright © 2011 by German Law Journal GbR 

References

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129 For an instance where it did fit but the Court nevertheless ignored the typology, see Case C-337/95, Parfums Christian Dior BV v. Evora, 1997 E.C.R. I-6013. See also Case C-358/95, Tommaso Morellato v. Unita sanitaria locale (USL) n. 11 di Pordenone, 1997 E.C.R. I-1431.Google Scholar

130 See Case C-105/94, Ditta A. Celestini v. Saar-Sektkellerie Faber, 1997 E.C.R. I-2971.Google Scholar

131 See Case C-350/97, Wilfried Monsees v. Unabhangiger Versaltungssenat Fur Karten, 1999 E.C.R. I-2921.Google Scholar

132 See Case C-114/96, Criminal Proceedings Against Kieffer and Thill, 1997 E.C.R. I-3629.Google Scholar

133 See Case C-265/95, Comm'n v. France, 1997 E.C.R. I-6959.Google Scholar

134 See Case C-189/95, Criminal Proceedings Against Franzén, 1997 E.C.R. I-5909.Google Scholar

135 See Case C-110/05, Comm'n v. Italy, 2009 E.C.R. I-519; Case C-142/05, Mickelsson and Roos, 2009 E.C.R. I-4273; Case C-108/09, Ker-Optika bt v. ÀNTSZ Dél-dunántúli Regionális Intézete, 2010 E.C.R. I-_____; see also Niamh Nic Shuibhne, The Free Movement of Goods and Article 28 EC: An Evolving Framework, 27 Eur. L. Rev. 408, 411 (2002); Jukka Snell, The Notion of Market Access: A Concept or a Slogan?, 47 Common Mkt. L. Rev. 437, 460 (2010). For a more extensive discussion of the use of market access in what concerns goods, see my Pedro Caro de Sousa, Through Contact Lenses, Darkly: Is Identifying Restrictions to Free Movement Harder Than Meets the Eye? Comment on Ker-Optika, 37 Eur. L. Rev. 79 (2012).Google Scholar

136 Treaty on the Functioning of the European Union, art. 26(2) December 2007, 2010 O.J. (C083) 1 (“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 provisions of the Treaties.”).Google Scholar

137 See Mortelmans, Kamiel, The Common Market, the Internal Market and the Single Market: What's in a Market?, 35 Common Mkt. L. Rev. 101, 118 (1998).Google Scholar

138 I thank Stephen Weatherill for having pointed this out to me.Google Scholar

139 See Maduro, supra note 8.Google Scholar

140 In the context of the Union, however, it is doubtful whether such a distinction should not be granted to the European Parliament.Google Scholar