EU Internal Market Law

LEARNING WEEK 5:
Revision Session
Main EU Institutions
Week 23
(membership and main
functions/powers)

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 EU Internal Market Law

OUTLINE

•How to approach a problem Q

•Freedom of Movement of Persons

•Freedom of Movement of Goods

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Problem Questions
Structure
•Brief introduction (couple of sentences MAX!)
– Set the scene. E.g. “This answer/memo considers …”
•Main Body
– Identify each issue (read carefully the Q – you may already find an indication
there!)
– Analyse the relevant law and apply to the case
– E.g., “According to article 34 TFEU, […]. Applying the principle to the scenario, it is
possible to conclude […]”.
•Conclusion
– Summarise your findings
•Don’t forget to reference your sources! Use OSCOLA
– In a PQ, you don’t need to use secondary sources – cite only legal provisions
(Treaties, Regulations, Directives) and case law (ECJ)
 EU Internal Market Law

OUTLINE

•How to approach a problem Q

•Freedom of Movement of Persons

•Freedom of Movement of Goods

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Art 21 TFEU – Freedom of Movement

1. 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 the Treaties and by the
measures adopted to give them effect.

WHAT TRIGGERS APPLICATION OF EU LAW?

• The person needs to reside/work or sell goods/provide service in
another EU MS
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Right to Equal Treatment (Art 18 TFEU)

1. Within the scope of application of the Treaties, and
without prejudice to any special provisions contained
therein, any discrimination on grounds of nationality
shall be prohibited.
2. The European Parliament and the Council, acting in
accordance with the ordinary legislative procedure,
may adopt rules designed to prohibit such
discrimination.

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Freedom of Movement of Workers: Art. 45 TFEU

(ex Art. 39 TEC)

1. Freedom of movement for workers shall be secured

within the Union.
2. Such freedom of movement shall entail the abolition
of any discrimination based on nationality between
workers of the Member States as regards employment,
remuneration and other conditions of work and
employment.
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Key EU Secondary Legislation

1. Directive 2004/38
 ENTRY & RESIDENCE RIGHTS
• Comprehensive framework on the right of citizens of the
Union and their family members to move and reside
freely within the territory of the Member States
2. Regulation 492/2011
 EMPLOYMENT, SOCIAL & EDUCATIONAL RIGHTS
 Details the substance of the EU employment-related rights
granted to EU migrant workers (and family members) and
defines specific areas where discrimination on grounds of
nationality is prohibited
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Definition of ‘worker’
Definition not in the Treaty
CJEU: term is an EU law concept
Case 53/81 Levin v Staatssecretaris van Justitie [ 1982]
A ‘worker’ is any EU citizen who undertakes:
1.genuine and effective work
2.for which they are paid
3.under the direction of someone else
Case 66/85 Lawrei-Blum v Land Baden-Württemburg [1986]
‘Worker’ is someone who:
1.During a certain period of time
2.Perform services for and under the direction of another
3.In return for remuneration

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What Rights Do EU Workers Enjoy?

Art. 45 TFEU
3. It shall entail the right, subject to limitations justified on grounds of public
policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this
purpose;
(c) to stay in a Member State for the purpose of employment in
accordance with the provisions governing the employment of nationals
of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been
employed in that State, subject to conditions which shall be embodied in
regulations to be drawn up by the Commission.
4. The provisions of this Article shall not apply to employment in the public
service.
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What Rights Do EU Workers Enjoy?

Regulation 492/2011
ELIGIBITY FOR EMPLOYMENT (Arts. 1-6): Principle of equal treatment with
respect to access to employment but:
•“conditions relating to linguistic knowledge required by reason of the nature
of the post to be filled” may be imposed by MS
•MS may require that the person possesses equivalent qualification if they
wish to exercise a ‘regulated profession’ (e.g. Lawyer or nurse)
EMPLOYMENT (Arts. 7-9): No discrimination allowed regarding employment
conditions; social and tax advantages, including housing benefits and access
to training in vocational schools and retraining centres
WORKERS’ FAMILIES (Art. 10): EU workers’ children shall be admitted to
courses of general education, apprenticeship and vocational training under
the same conditions as nationals of the host MS
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Regulation 492/2011 – Article 3

1. Under this Regulation, provisions laid down by law, regulation or
administrative action or administrative practices of a Member State shall not
apply:
(a) where they limit application for and offers of employment, or the right
of foreign nationals to take up and pursue employment or subject these to
conditions not applicable in respect of their own nationals; [DIRECT
DISCRIMINATION]
or
(b) where, though applicable irrespective of nationality, their exclusive or
principal aim or effect is to keep nationals of other Member States away
from the employment offered. [INDIRECT DISCRIMINATION]
The first subparagraph shall not apply to conditions relating to linguistic
knowledge required by reason of the nature of the post to be filled.
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Justifications to restrict freedom of

movement of workers
• MS can adopt discriminatory policies or adopt restrictive individual
measures on grounds of public policy, public security or public
health (Art. 45(3) TFEU) but strict conditions
• The public sector exception (Art. 45(4) TFEU) but strict
interpretation by CJEU (e.g. teachers and postal workers are not
public sector – only jobs involving the exercise of public functions
or internal or external national security)
• Restrictions lay down by EU Law
• National rules which indirectly discriminate against EU workers or
make it more difficult for EU workers to exercise their FMRts may
also be justified under certain conditions (public interest test +
proportionality test)
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Restrictions Laid Down In EU Law

Case C-317/14 Commission v Belgium [2015]:

Principle Of Equal Treatment 24 It is true that, under the second subparagraph

With Respect To Access To
Employment Normally
Applies
But see e.g. Article 3,
Regulation 492/2011:
25 However, the right to require a certain level of
“Conditions relating to
linguistic knowledge
required by reason of the
nature of the post to be
filled” may be imposed by
MS
of Article 3(1) of Regulation No 492/2011,
Member States are entitled to lay down the
conditions relating to the linguistic knowledge
required by reason of the nature of the post to
be filled.
knowledge of a language in view of the nature
of the post must not encroach upon the free
movement of workers. The requirements under
measures intended to implement that right
must not in any circumstances be
disproportionate to the aim pursued and the
manner in which they are applied must not
bring about discrimination against nationals of
other Member States (see, to that effect,
Groener, C‑379/87, EU:C:1989:599,
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OUTLINE

•How to approach a problem Q

•Freedom of Movement of Persons

•Freedom of Movement of Goods

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Barriers to Trade
(NATIONAL) FISCAL BARRIERS TO TRADE
1.Customs duties and charges having an equivalent effect
to customs duties (art. 30 TFEU)
2.Internal discriminatory taxation (art. 110 TFEU)

(NATIONAL) NON-FISCAL BARRIERS TO TRADE

1.Quantitative restrictions and measures that are
equivalent to quantitative restrictions (art. 34-35 TFEU)
2.Justifying non-fiscal restrictions: art. 36 TFEU derogations
& Cassis defence
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Customs Duties (CDs) and

Charges Having Equivalent Effect (CEEs)
Article 30 TFEU
Customs duties on imports and exports and charges
having equivalent effect shall be prohibited
between Member States. This prohibition shall also
apply to customs duties of a fiscal nature.

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Definitions
Definitions provided by the CJEU
Customs Duty (CD): Customs duty is a levy (money) charged on goods at
the point of crossing a frontier on the sole ground that the goods cross it.
Charges Having Equivalent Effect (CEEs) – Joined Cases 2-3/69 –
Diamonds Case
“ any pecuniary charge, however small and whatever its designation and
mode of application, which is imposed unilaterally on domestic or
foreign goods by reason of the fact that they cross a frontier, and which
is not a customs duty in the strict sense, constitutes a CEE …even if it is
not imposed for the benefit of the state, is not discriminatory or
protective in effect and if the product on which the charge is imposed is
not in competition with any domestic product.”

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Art. 30 TFEU as a “fundamental rule”

tolerating no exceptions – well, almost…
The prohibition of CDS or CEES constitutes a “fundamental
rule” “which does not permit any exceptions” (Case 24/68)

See, however, concept of “Permissible Charges” =

charges/fees may not constitute CDS/CEES when they are
imposed to pay
(1)for genuine services rendered to the importer/exporter
and of direct benefit to them (Case 24/68)
(2)for inspections mandated by EU law (Case 18/87)
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Non-fiscal Barriers to Trade: The

Prohibition…
Art 34 TFEU
Quantitative restrictions (QRs) on imports and all
measures having equivalent effect (MEQRs) shall be
prohibited between Member States.

Art 35 TFEU – Mirrors the provision of Art 34 TFEU in

relation to export

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… & the Derogation

Art 36 TFEU
The provisions of Arts 34 and 35 shall not preclude prohibitions or
restrictions on imports, exports or goods in transit justified on grounds
of
•public morality, public policy or public security;
•the protection of health and life of humans, animals or plants;
•the protection of national treasures possessing artistic, historic or
archaeological value; or
•the protection of industrial and commercial property.
Such prohibitions or restrictions shall not, however, constitute a means of
arbitrary discrimination or a disguised restriction on trade between
Member States.
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Definitions
Quantitative Restrictions Measures having an
equivalent effect
Any national measure Any national trading rule or
which imposes requirement which is
restrictions on ‘capable of hindering,
quantities of imports or directly or indirectly,
exports (e.g., quota actually or potentially,
systems). intra-community trade’
See Case 2/73 Geddo v See Case 8/74 Dassonville
Ente Nazionale Risi
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Problem with the Broad Definition

Adopted in Dassonville

Post Dassonville, most national ‘indistinctly applicable

measures’ fell within scope of Art 34 TFEU but could not
be easily justified under Art. 36 TFEU even though they
may have pursued legitimate public interests without
discriminating against non-domestic goods

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The “Mandatory Requirements” Test

Case 120/78 Cassis De Dijon [1979]
No violation of art. 34 TFEU if:
(1) national indistinctly applicable measures (“neutral”
measures) having a negative impact on free flow of
goods can be justified by a public‑interest objective
and
(2) are “necessary” (i.e., proportionate) to satisfy this
objective

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Default principle: Mutual Recognition

14. … there is … no valid reason why, provided that

they have been lawfully produced and marketed in
one of the MS, alcoholic beverages should not be
introduced into any other MS
= French liqueur may be freely sold and marketed in
Germany unless…

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Cassis “Rule of Reason” Test

8. In the absence of [EU] rules … obstacles to movement
within the [Union] resulting from disparities between
the national laws relating to the marketing of [a
product] must be accepted in so far as those provisions
may be recognized as being necessary in order to
satisfy mandatory requirements 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.
N.B. The measure must also be proportionate!
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The Court’s “clarification” in Keck (Case C-

267/91 [1993])
“selling arrangements” now outside the scope of Art. 34 TFEU
16. … contrary to what has previously been decided,
the application to products from other MS of national
provisions restricting or prohibiting certain selling
arrangements is NOT such as to hinder directly or
indirectly, actually or potentially, trade between MS within
the meaning of the Dassonville judgment
But 2 conditions…

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… provided that 2 conditions are fulfilled

1. “selling arrangements” must apply to all relevant
traders operating within the national territory and
2. They must also affect in the same manner, in law and in
fact, the marketing of domestic products and of those
from other MS
Q: Were they fulfilled in Keck?
See also Case C-292/92 Hünermund: prohibition on
pharmacies advertising certain products outside their
premises (selling arrangements)
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Situation after Keck for ‘Neutral’ Trading

Regulations
Trading regulations are divided into 2 sorts:
(1) National rules concerned with the characteristics of a
good (within scope of Art 34 TFEU, but Art 36 TFEU &
Cassis defences available)
(2) National rules concerned with “certain selling
arrangements” (outside of Art 34 TFEU if two conditions
set out by CJEU are met)
Key Qs: Clear distinction? Scope of notion of selling
arrangement?
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To sum up
Aim of 34 TFEU:
to prevent MS from enacting &
maintaining protectionist non-
fiscal trade regulations
Aim of 36 TFEU:
to exceptionally enable a MS to
justify measures which explicitly
target non-domestic goods

Case 120/78 Cassis De Dijon [1979] ECR 649:

additional option established by CJEU which offers EU MS
option to justify “neutral” national regulations which
nonetheless have a negative impact on intra-EU trade
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