Conflicts between Fundamental Rights and Fundamental Freedoms
A brief history of the CJEU and the Internal Market
Article 262 of the Treaty of the Functioning of the European Union states:
“The internal market shall comprise of an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured”.
However, the Internal Market, has long prior been the spearhead of the path towards European integration; international market access brings links of a social, political, cultural, and economic nature; all tools for deeper integration of the union.
As such the European Project has made room for ordoliberal ideologies, with a common market being presented as a means to assisting prosperity through employment and economic growth, as well as a means to lay foundations for greater integration of member states via building social, political, and cultural building.
An instance of early aspirations to a common market is the EEC (European Economic Community) being established with an objective of facilitating a common market between its six member states, where goods, services, people and capital could move freely. In this era, the EEC was unable to effectively establish a common market, as it lacked the decision making structures necessary to remove barriers to freedom of movement. Ultimately the establishment of common standards and regulations and removal of intangible barriers lacked the necessary political will within the EEC member states, where protectionist policies were still in play. The project needed an adjudicator to remove negative discrimination and the political will of member states to remove incongruence in laws and standards of member states.
In the 1980s, the Single European Act, spurred on by a White Paper, reformed these decision making processes and presented a timeline for the completion of the single market. On January 1st 1993, the Single Market, complete with the means to combine positive and negative integration, was in place.
In 2019, the European Union, member states, businesses and further stakeholders, rely on the Court of Justice of the European Union as the adjudicatory body to oversee the freedoms of movement on which the common market of the European Union exists.
In this essay, the author will critically analyse the jurisprudence of this court and explore where similarities lie in its approach to questions of freedom of movement of persons, services/establishment and goods.
To aid analysis, the author will break this essay into sections before concluding:
- Areas where the Court of Justice of the European Union’s jurisprudence differs with regards to its processing of the different fundamental freedoms and where jurisprudence converges with regards to its processing of the different fundamental freedoms.
- Similarities existing regarding courts considerations of implications of different free movement rights on fundamental rights.
Part One:
Areas where Court of Justice of the European Union jurisprudence differs with regards to its processing of the different fundamental freedoms and where jurisprudence converges with regards to its processing of the different fundamental freedoms.
Common purpose
There is a common purpose behind the jurisprudence of the Court of Justice of the European Union related to free movement of; the removal of national level restrictions on the exercising of free movement rights. This underlying common purpose links CJEU jurisprudence on fundamental freedoms, where they divide is procedurally amd in the assessment of proportionality, discrimination, and restriction.
Illusory uniformity
The approach the Court takes to attack free movement restrictions also appears similar; the process of the identification of a restriction and then analysis against the available Treaty grounds for justification. However, it has been suggested that appearances of procedural uniformity in the court’s approach to free movement restrictions may be illusory. Connor proposes an instance of this is the court’s approach to freedom of movement of goods, where the language of the court suggests it is uniform, but in practice the court remains attached to the identification of discrimination, contrary to the uniformity of language. Barnard also suggests this occurs in CJEU jurisprudence related to matters of taxation.
Purely academic distinction
The court currently creates a distinction between its approach to goods and its approach to persons and services in regards to free movement rights. Connor suggests that jurisprudence related to goods occupies an ‘ad hoc position, with an eye to the future, a foot in the past’. This is exemplified by the doctrine of justifications reliance on academic distinctions between restriction and discrimination. Further the Court’s jurisprudence related to free movement of goods currently holds contradictions and decisions not transparently reasoned by the Court, for example the concept of the selling arrangement being handled by the court on numerous occasions, yet not directly dealt with. The Court’s distinction between “selling arrangements” and other, in particular product related measures, is a decidedly philosophical split and demonstrates the underlying incongruence of free movement of goods jurisprudence beneath the illusory uniformity of CJEU jurisprudence.
Deconstructing fundamental freedoms jurisprudence
While this essay seeks to analyse similarities in the CJEU’s jurisprudence towards free movement of persons, goods, and establishment and services, the author proposes that a review of the spaces where the court creates divergences with regards to its approach to the freedoms of movement also aids analysis.
Convergence momentum
As previously discussed, there is a common purpose behind the jurisprudence of the Court of Justice of the European Union related to free movement. Tryfonidou suggests that the move towards convergence of CJEU jurisprudence on Fundamental Freedoms is an element of broader development in the European Union, in particular the positioning of market freedoms as an economic right owned to all Union citizens. This is a recent development, historically the CJEU has developed fundamental freedoms at different paces. For example, the Keck judgement seeking to limit community intervention in free movement of goods by placing a requirement of discrimination; and the 1990’s focus on safeguarding the freedom of movement of persons. However as the EU has developed, the internal market is no longer the focal point of the project, and as such economic freedoms are viewed more holistically within social policy, spurring the CJEU to bring the jurisprudence of the freedoms into congruence.
Part Two:
Similarities regarding courts considerations of interactions of free movement rights and fundamental rights?
Market freedoms and risks to fundamental rights
The fundamental freedoms, on which the common European market is based, have been present in the Community legal order since its very beginning, fundamental rights are a more recent addition and present largely due to judicial activism of the CJEU. The internal market, as an instance of globalisation, presents challenges for fundamental rights and there are risks that the interests of free trade and ordoliberalism pressures may take priority to concerns related to environmental, socio-cultural, development and fundamental rights.
Intersections of fundamental rights and freedoms
Fundamental rights and the free movement rights intersect in part, as the rights such as the right to live and work in a country and to live with your immediate family are akin to the rights enumerated in the European Convention on Human Rights. However they also can have a conflicting or supplementary to a fundamental freedom. The relationship here has been discussed further in the jurisprudence of the Court of Justice, Civitas, Madrid.
“The impact of fundamental rights on a fundamental freedom may be dual, in that they may serve as a limitation to a limitation of a fundamental freedom or a limitation to a fundamental freedom “
As discussed by Roth & Oliver free movement rights are also often interpreted as being linked to prohibition of discrimination on the grounds of nationality and on citizenship. Further, the Charter of a Fundamental Rights of the European Union acknowledge the right to live and work in any member state.
Greater consequences
However, the implications of limitations of internal market freedoms are mostly incomparable to the implications of the limitation of many other fundamental rights. The author submits it is evident that truly fundamental rights, such as the right to freedom of expression and right to life should be considered a priority to market freedoms with regards to their protection.
Fundamental rights within CJEU fundamental freedoms jurisprudence
The CJEU’s modes of interpretation, (grammatical, systematic, teleological) also entail the protection of fundamental rights. With regards to limiting freedom of expression, the ECtHR allows limitation if it supports a legitimate aim in the interests of democratic society; to fulfil a pressing social need.
It is through this lense, that of freedom of expression – fundamental freedoms, through which the author now analyses similarities between the CJEU jurisprudence with regards to the internal market, drawing on the writing of Jakir
Fundamental rights and Free movement of goods
In Familiapress the CJEU heard a conflict between free movement of goods, and freedom of expression via press diversity. Here the CJEU invited the national court to assess whether a freedom of expression was under risk of being restricted. By mandating increased scrutiny, the CJEU is ensuring that Austria is being more elaborate in its fundamental rights protection. as discussed by Jakir. Further, in this instance of conflict the CJEU balanced the impact of the internal market on fundamental rights protection, meanwhile using market relations to engage protection of fundamental rights.
Fundamental rights and free movement of establishment/services
United Pan Europe, a case wherein the Court considered the conflict between freedom of establishment and freedom of expression, saw the ECJ first identify an underlying conflict (maintenance of pluralism/establishment with freedom of expression). At risk was the restriction of regional social, cultural, religious, philosophical or linguistic components. The next step of the Court was to find a balance between the free provision of services and freedom of expression.
The Court then gave criteria to the national court which must be satisfied for freedom of expression to supersede the internal market freedoms. The purpose of this was presented by X as a means to ensure that CJEU measures triggered by a market freedom limiting a fundamental, effects all market operators uniformly and consequently safeguards against disruption of the internal market.
Similarities in jurisprudence
For both free movement of goods and establishment/services the CJEU jurisprudence has a similar thread of aiming to safeguard fundamental rights without disrupting the internal market by restricting fundamental freedoms.
Conclusion
There are tensions within CJEU free movement of jurisprudence, and many missed opportunities for elucidation and resolution have passed through the court. In regards to tensions, contradictions and missed opportunities by the Court, the jurisprudence of free movement of goods is a microcosm of free movement jurisprudence more broadly. Wherein Courts have failed to be transparent in reasoning and to take the chance to lay out uniform and transparent reasoning.
Fundamentally, jurisprudence on market freedoms is linked through the courts desire to see convergence among the market freedoms, however the procedural practice of the CJEU sees fundamental freedoms exists in varying degrees. A further fundamental similarity, is the Courts wish to see the realisation of the internal market.
The CJEU views the internal market primarily through the lense of further integration and increasing efficiency in trade, but also pays heed to the impact of fundamental freedoms on fundamental rights, while ensuring the functioning of the internal market is maintained. This is seen in jurisprudence related to both free movement of goods and services and in the context of the latter the Court even utilised the member states regulation of market relations to raise the standards of human rights protection.
Bibliography and Sources
Books
Chalmers et al., European Union Law: Text and Materials, 3rd Edition (Cambridge: Cambridge University Press, 2014), Chapter 15
Craig and de Burca, EU Law: Text, Cases and Materials, (6th ed., 2015, Oxford: Oxford University Press), Chapter 17
Journals
Connor T., ‘Goods, Persons, Services and Capital in the European Union: Jurisprudential Routes to Free Movement’, (2010) 11 German Law Journal 15
Cockfield, Arthur (1994). “European Union: Creating The European Single Market”. Wiley Chancery Law.
Spaventa E., ‘Leaving Keck behind? The free movement of goods after the rulings in Commission v Italy and Mickelsson and Roos’, (2009) 34 European Law Review 914
Oliver P. and Roth W-H., ‘The Internal Market and the Four Freedoms’, (2004) 41 Common Market Law Review 407
Tryfonidou A., ‘Further Steps on the Road to Convergence Among the Market Freedoms’, (2010) 35 European Law Review 36
Vanda Jakir, ‘Human Rights – With or Without the Internal Market?’ (2012) Masters Thesis
Cases
C-368/95 Familiapress [1997] ECR I-03689
United Pan-Europe Communications Belgium SA and Others v Belgian State [2007] ECRI-11135
Court of Justice, Civitas, Madrid, 2015, pp. 90 and ss.5 As J. KRZEMINSKA
Commission v Italy (2009) C-110/05
Commission v Italian Republic (1968) Case 7/68
Åklagaren v. Percy Mickelsson and Joakim Roos
Legislation
Charter of Fundamental Rights of the European Union art. , 2010 O.J. C 83/02, at
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR)
Consolidated Version of the Treaty on the Functioning of the European Union art. ,2008 O.J. C 115/47
Single European Act, 1987 O.J. L 169/1, (amending Treaty Establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 11.
Websites
Hannes Rösler, ‘Interpretation of EU Law’ <http://fds.oup.com/www.oup.com/pdf/13/9780199578955.pdf> accessed 19 March, 2019, 1
Robert Nesirky 