The Federal Implications of the Transformation of the Market Freedoms into Sources of Fundamental Rights for the Union Citizen

Abstract

With the birth of the European Economic Community (EEC) in the late 1950s, Member State nationals were given the freedom to take up an economic activity to be pursued in the territory of another Member State, or simply across borders. Such a freedom was necessary to achieve the main aim of the Community at that time – to build a common market. The legal basis for this was found in the market freedoms. By the end of the 1960s, nonetheless, these provisions – and especially the personal market freedoms – had begun to be viewed not merely as instrumental freedoms but also as sources of rights for anyone who fell within their (broadly delimited) personal scope. This process of rereading the market freedoms as sources of rights has continued unabated to the present day, having been facilitated by the creation of the status of Union citizenship in 1993, and it is clear that these provisions have now been transformed into sources of fundamental rights granted to the Union citizen for their own sake and not merely instrumentally for the purpose of furthering the economic aims of the Treaties. As a result, the aim of these provisions is no longer merely to ensure the liberty of the economic actor in the EU as part of the process of constructing and maintaining an internal market but, alongside this, to protect the individual freedom and freedom of choice of the Union citizen who falls within their personal scope. This contribution does not aim to prove the fundamental rights-based nature of the market freedoms; this will be taken as a given. The focus of this chapter is different – to examine what the federal implications of the gradual transformation of these provisions (primarily) into sources of fundamental (economic) rights for the Union citizen are. In particular, the Court’s approach in a number of areas will be examined to illustrate how the vertical division of powers between the EU and its Member States has been affected as a result of the transformation in the nature of the market freedoms described above. The focus will be on demonstrating the dilemmas that the Court is facing when attempting to reconcile the nature of these provisions as the source of autonomous and meaningful rights for the Union citizen, with the need to ensure that the limits placed on the EU’s power to intervene with the exercise of Member State competence are respected.