Abstract
<p class="p1">This article deals with an enduring challenge for the European Court of Justice: striking a balance between the EU market integration requirements and respecting the ‘fundamental structures’ that exist in the Member States through the recognition and accommodation of a range of regulatory options that may restrict trade. The challenge is finding unity in social diversity and many commentators consider that the Court has interpreted the constitutional foundation of the European Union as having turned market access rights into fundamental rights and social policy into an obstructive power that has to be limited. This article reflects on the adjudicative methods of the Court and revisits this debate. It argues that the Court has developed a proportionality assessment that is able to accommodate a plethora of Member State policy choices. Member States’ systems of protection need to be transparent, systematic and internally coherent. However, if these conditions are taken into account, then the level of protection and the means through which this level of protection is sought remain largely at the discretion of the Member States.
Highlights
The challenging balance between unity and diversity manifests clearly in the area of free movement law on the basis of which economic actors have a right to access markets while Member States’ policy choices may often restrict that access to some extent on the basis of their own nationally embedded socio-economic regulations
This article deals with an enduring challenge for the European Court of Justice: striking a balance between the EU market integration requirements and respecting the ‘fundamental structures’ that exist in the Member States through the recognition and accommodation of a range of regulatory options that may restrict trade
It may be argued that in this way, and on the basis of an unqualified market access standard, a constitutional settlement is advanced in which the validity of all democratically enacted Member State legislation and regulatory regimes that restrict a free movement right are contingent on judicial approval through a proportionality standard
Summary
The challenging balance between unity and diversity manifests clearly in the area of (economic) free movement law on the basis of which economic actors have a right to access markets while Member States’ policy choices may often restrict that access to some extent on the basis of their own nationally embedded socio-economic regulations. Niamh against specific, or perhaps better described as claims to, social organizational forms at the Member State level, which challenge the legitimacy of the EU internal market project.[18] There is, absolute merit in the contention that ECJ case law tends to favour outcomes that are asymmetrically beneficial for economic movement It has been argued for example, that the Court has ‘restyled’ EU law and introduced a form of hierarchical balancing, which no longer reflects the constitutive features and division of competences that are inherent to the embedded liberalism compromise.[19] It is interesting, to take a closer look at the exact adjudicative techniques employed by the Court in free movement cases, which can be explained on the basis of what appears as the Court’s strong wish to maintain an idea of unity which is not necessarily reflective of a neoliberal bias
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