EU Free Movement Law Research Articles

From worker to self‐entrepreneur: The transformation of homo economicus and the freedom of movement in the European Union

AbstractThis paper seeks to make a contribution to the study of personhood in EU free movement law by linking a historical and doctrinal analysis with the internal transformation of the homo economicus in economic liberalism. It is argued that a shift can be observed in the government of mobility from “freeing up” the ability of the worker as a relatively passive subject tied to external economic mechanisms to the targeting of the individual him/herself as a responsible, active bearer of economic capability or “human capital”, whereby past socio‐economic conduct and prospective economic activity serve as the thresholds for the entitlement to rights. The essence of the “new” homo economicus of EU free movement law is situated at the intersection of the social and economic, serving as a rational frame for the government of the European mover on the basis of a mutual responsibility between the Union citizen and his/her host Member State towards social and economic activity, self‐sufficiency and integration.

‘What I Tell You Three Times is True’

This comment examines three recent judgments of the Court of Justice – Alimanovic, Garcia-Nieto, and Commission v. UK – that further develop the connection between lawful residence in a host state and EU equal treatment rights, a critical legal premise of the Dano judgment. It demonstrates that this line of case law blurs legal concepts and legal statuses – social assistance and social benefits, for example; also citizens looking for work, those who have worked previously but no longer do, and those who need to rely on Article 7(1)(b) of Directive 2004/38 to establish lawful residence in the host state. It aims overall to contribute to debates about quality of law; about the quality of EU citizenship and free movement law in a substantive sense; but also about how EU law is made, applied and revised.

From Negligence to Resistance: Danish Welfare in the Light of Free-Movement Law

The Danish welfare system is famous for being a universal system covering all residents with generous benefits financed through general taxes. This is at least true for benefits such as social assistance, health care and the state retirement pension which are discussed here. This article analyses the implications of EU free movement law on residence-based welfare rights in Denmark. It argues that EU law has not led to major legal and policy changes. Yet Denmark has been quick off the mark in picking up on EU restrictions and in erecting safeguards for residence-based schemes as demonstrated by the discussion of the state-retirement pension and social assistance in this article. On the other hand, it has been slow in implementing EU law on extending health cover to scheduled treatments received in other Member States. While the Danish position has, for a long time, been that EU law does not affect the Danish welfare model, public discourse has recently changed with allegations of EU law leading to social dumping and benefit tourism. This article concludes that a search for a legal balance between free movement and national welfare is still in the making.

Protecting Fundamental (Social) Rights through the Lens of the EU Single Market: The Quest for a More ‘Holistic Approach’

In this article, four trajectories will be followed with a view to further developing the linkages that exist between the EU Single Market and fundamental (social) rights and to examining to what extent the EU Single Market, apart from putting constraints on the realization of social rights, offers the chances to enhance and even strengthen the social face of the EU. The question is whether the current approach to EU free movement law by the EU Institutions and most notably the Court of Justice of the European Union (CJEU) could benefit the protection of fundamental social rights. The article also examines the potential impact of the EU Charter and the changes brought about by the Lisbon Treaty, strengthening the social face of the EU.

Regulatory Trust in EU Free Movement Law Adopting the Level of Protection of the Other?

The principles of mutual trust and mutual recognition are well-established features of EU law. On a technical level, it is clear that the principles may require adoption of foreign levels of protection in individual cases as well as in legislation. At a closer look, however, the principles through “the rule of reason” also may imply quite the opposite: the imposing of domestic requirements on foreign goods, services etc. The ECJ case law following the Cassis judgment may be seen as striking a balance between cooperation and member state self-determination, or between trust and distrust, in different fields. This contribution aims at looking into the regulatory function of the legal principle of trust in EU law. Taking this wider regulatory perspective, the mutual recognition regimes of EU must be seen from a holistic perspective. Rather than dwelling upon harmonized and non-harmonized fields separately, we will approach mutual trust as one, albeit multi-faceted, concept, where harmonization, proportionality assessments and Member State actions in various fields of law form part of the same wider picture. In this regulatory perspective, the law on mutual trust and mutual recognition may be seen as a balancing between the regulatory interests of the EU (promoting free movement and cooperation) and the various member states (promoting their interests of – alleged – protection of safety of various kinds). Through this perspective, we will be able to address trust in the intersection, more precisely the tension between regulation and deregulation; between unity and diversity; and between integration and disintegration, present in EU law on a very general level. The first section of this contribution will look at the constitutional life of mutual trust within the ECJ case law: looking at its origins and main logic. The second section will attempt to clarify why the principle of mutual trust is mostly invisible in the free movement jurisprudence. This section also argues for understanding mutual recognition in terms of Regulatory Trust. The last section focuses on the thorny issue of the levels of protection and attempts to understand which are the key factors used by the ECJ in reviewing the (host) States measures that restrict free movement law and thus may constitute a break to the application of the principles of mutual trust and mutual recognition.

Free Movement and Contract Law

This Chapter addresses the impact of EU free movement law on national contract laws. It does not aim at giving an exhaustive overview of case law on the topic. Rather, it focuses on the extent to which free movements apply to contractual relationships between private actors (scope), and implications for the constitutionalisation of freedom of contract in EU case law (effects).

The EU Free Movement as Seen Through the Lens of Competition Law

This paper aims to unify the law on the EU free movement of goods, particularly access to relevant markets, and EU competition law on the conduct of economic operators, i.e. traders on such markets. It seeks to ascertain the historical origins and inspirational sources of EU free movement in the wider context of EU trade law. The paper questions the goals of free movement law, which complement the goals of competition law. A re-organisation of precedent rulings on free movement will follow in accordance with the economic policy criteria devised by competition law. Free movement law is challenged through the lens of competition law to determine the extent to which these rulings construct a unified picture of EU consumer and fair competition law. The paper argues that, despite its unpredictable evolution, the judicial review of EU free movement law undertaken by the ECJ has successfully developed a sui generis body of EU consumer and fair competition law. This judicial review pragmatically shaped the internal market law during its formative and successive stages of harmonisation. It challenged administrative measures pertaining to key areas of consumer choice, traders’ freedom of action, and the wider public policy or ‘non-competition’ considerations, i.e. the protection of the environment and culture. The perception of unconstitutionality given the ECJ’s perceived intrusiveness in the area of EU private law is crucial in determining the extent to which the Court exercises the judicial function of a Supreme Court in matters of supra-national private law. In reality, the density of precedent rulings and the lack of a coherently unified framework of analysis of the emergent case law obscured the role of the Court as an instrument to ‘disempower’ the EU citizen, since national legislation and measures taken by public administrations had to be challenged. In conclusion, rules that had adverse effects on consumers and traders have been eradicated by the ECJ, obfuscating the national autonomy governing EU private economic law.

Who funds the mobile student? Shedding some light on the normative assumptions underlying EU free movement law: Commission v. Netherlands

Who funds the mobile student? Shedding some light on the normative assumptions underlying EU free movement law: <i>Commission</i> v. <i>Netherlands</i>