EU域内市場の基本的自由相互間の収斂と分化

Abstract

An overview of the development of the EU shows that the position of individuals in the Community legal order has been strengthened in deapth and widened in scope in the course of integration. Before the treaty revision by Maastricht Treaty, the individuals had been conceptualized as “market citizen”. Under the present EC Treaty, they are vested with EU citizenship which is characterized by the ECJ as the “fundamental status of the nationals of the Member States”. This paper examines if the basic freedoms of the EU internal market (free movement of goods, workers, services and capital) are to be seen as a converged single set of rights, or alternatively if the basic freedoms relating to the movement of persons are diverging under the influence of the emerging law of EU citizens.To this point, convergence theory has been advocated since 1990's. This theory tries to show convergence by extracting common features of basic freedoms such as direct effect, cross-border relevance, intervention in the protected freedom, justification grounds and application of proportionality principle. Nevertheless, it is liable to risk of oversimplificaion to the extent that the intervention in the protected freedom is understood simply as restriction. The basic idea underlying the prohibition of restrictive measures is removal of double regulatory burden of the exporting/home state and the importing/host state. It indicates that the scope of the convergence theory is limited to the extent that the market access from one Member State to another Member State is relevant.The scope of free movement provisions is wider than that covered by the convergence theory, because the issue of basic freedoms is not exhausted to the market access. In this remaining area, the development of EU citizen's freedom to move and reside within the EU is of importance to the basic freedoms. Considering its constitutional character, the EU citizenship has potential to guide the interpretation of the provisions concerning the right of individuals. It is true that the EU citizen's free movement right is subsidiary to the basic freedoms. However, the crossfertilization between the EU citizenship and the basic freedoms relating to cross-border movement of persons shows that the case-law of the ECJ is guided by an overreaching principle that the persons exercising the right of free movement have the right to protection in the territory of the host state. This paper argues from the foregoing that there are diverged two groups of case-law, namely those concerning the cross-border market access and those concerning the protection of citizens for the integration into the society of the host state.