Free Movement Law Research Articles

The Transatlantic Divergence in Legal Thought: American Law and Economics vs. German Doctrinalism

Economic analysis plays a major role in the American legal discourse, while its position in the German-speaking legal debate remains comparatively limited. In Germany and Austria, a widespread aversion against law and economics can be observed among legal scholars. This article advances an explanation for this divergence on the basis of two main factors: First, American legal realism enjoyed great success, whereas the German free-law movement failed to leave a lasting impression. While legal realism transformed American legal thought and opened up the discourse to policy arguments, the predominant German legal theory emphasizes the internal coherence of the legal system, and assigns only a limited role to external elements. Second, the different philosophical roots and attitude towards utilitarianism and consequentionalist thinking in general can explain why law and economics takes a prominent position in the US legal academia. We argue that a convergence of the discourses over the medium term is unlikely.

Free Movement and Fundamental Rights

After sketching out the current legal framework for fundamental rights protected under EU law this article discusses the role of free movement law in delimiting the scope of application of EU fundamental rights, the balancing of fundamental rights and free movement, and finally the possible horizontal direct effect of EU fundamental rights on private economic actors, in particular employers, exercising their right of free movement.

Internal Situations in Community Law: An Uncertain Safeguard of Competences Within the Internal Market

This article deals with the so-called internal situation rule, which prevents the application of European Community law in cases deemed to be confi ned to one Member State. Rather than focus on possible avenues for avoiding the ‘reverse discrimination’ against the actors of the regulating state (eg its own nationals) which arises because of the non-application of EC law, I assess the costs and benefi ts of the rule directly. The approach to this problem is, fi rst, to conceptualise the internal situation rule as a specifi c, substantive requirement of EC provisions that assume cross-border movement, and not as an overarching, general principle of EC law. With this in mind, I go on to claim that the rule is largely inadequate for the purpose of protecting Member State competences. Because the rule focuses on cross-border movement in the abstract sense, it does not clearly delineate an ‘internal’ sphere that Member States could regulate independently. Next, I analyse how the case law of the European Court of Justice has interpreted the internal situation rule in various areas of free movement law, concluding that the rule is overly formalistic and that it fails to distinguish between cases where there is a true impact on the internal market and those where there is not. In addition, I analyse the disparities in its application, arguing that they cannot be accounted for by the differences between, eg the free movement of goods and the free movement of persons. Finally, I suggest a more substantive approach to defi ning internal situations, inspired in particular by public procurement and competition case law. Instead of looking for factual cross-border links, I suggest that what should be at stake is the crossborder impact of the restriction (Member State legislation, administrative measure, practice, etc) that is being challenged.

National European Law Precedents

Although EU law doctrine stresses the vital importance of national courts in the EU judicial system, it is remarkable that research in this field has a much more top-down focus (i.e. what are the consequences of case-law of the ECJ for national courts'), than a bottom-up approach (i.e. what could the ECJ and European legal doctrine learn from the case-law on EU law of national courts'). Structural research into decentralized EU case-law is still rather limited and the theorization on the fundamental questions which the actual national court practice gives rise to, seems to be scarcely out of the egg. This paper elaborates on a development of what I would like to call 'national European law precedents': autonomous interpretations of free movement law by Dutch courts that set precedents for future cases in the field of services and establishment. First of all, this paper introduces the concept of 'national European law precedents'. Secondly, it discusses some of the various forms which come forward in the Dutch case-law on the freedom of establishment and free movement of services. Thirdly, it elaborates on the doctrinal questions and consequences that this decentralized development may lead to and how we should place this development of fact and law in the broader context of the judicial system of the EU.

Internal Situations in Community Law: An Uncertain Safeguard of Competences within the Internal Market

This article deals with the so-called situation rule, which prevents the application of European Community law in cases deemed to be confined to one Member State. Rather than focus on possible avenues to avoid the reverse discrimination against the actors of the regulating state (e.g. its own nationals) which arises because of the non-application of EC law, I assess the costs and benefits of the rule directly. The approach to this problem is, first, to conceptualize the situation rule as a specific, substantive requirement of EC provisions that assume cross-border movement, and not as an overarching, general principle of EC law. With that in mind, I go on to claim that the rule is largely inadequate for the purpose of protecting Member State competences. Because the rule focuses on cross-border movement in the abstract sense, it does not clearly delineate an internal sphere that Member States could regulate independently.Next, I analyze how the case law of the European Court of Justice has interpreted the situation rule in various areas of free movement law, concluding that the rule is overly formalistic and that it fails to distinguish between cases where there is or is not a true impact on the market. In addition, I analyze the disparities in its application, arguing that they cannot be accounted for by the differences between, e.g., free movement of goods and free movement of persons.Finally, I suggest a more substantive approach to defining situations, inspired in particular by public procurement and competition case law. Instead of looking for factual cross-border links, I suggest that what should be at stake is the adverse impact of the restriction (Member State legislation, administrative measure, practice etc.) that is being challenged.

Proportionality in Decentralized Action;the Dutch Court Experience in Free Movement of Services and Freedom of Establishment Cases

National courts are of vital importance for the effectiveness of European law. In general, they are supposed to handle the bulk of the cases in which European law comes forward, a logical result following the development of the (direct) effects of European law in the national legal order. Several authors in the European law doctrine observed a notable variety of review intensity by the Court of Justice of the European Communities (hereafter: the Court) on the proportionality principle in handling free movement cases. Sometimes the Court employs an intense test; other times the approach of the Court is remarkably restrained. Also, in cases that concern a similar field of the law, this variety may be observed. The general line of the Court is considerably clear, but the review intensity also tends towards being a sort of ‘black box’. This constitutes a problem for the effectiveness of European free movement law at a decentralized level, at national courts. Research into the Dutch court experience demonstrates that it seems as if it is not completely clear how national courts should apply the proportionality principle à l’européen. This contribution concentrates on the application of the proportionality principle by Dutch courts when handling free movement of services and freedom of establishment cases. A few general lines will be identifi ed on the basis of this case–law and some suggestions for the Court on the basis of the decentralized application will be put forward.

'State' and 'Market' in the Competition and Free Movement Case Law of the EU Courts

The Treaty rules on free movement and competition are predicated on a distinction between state measures and measures of private undertakings that can be problematic in practice, as this distinction is often not clear cut. The first part of this paper examines the manner in which the European Courts of Justice attribute measures either to the public or the private sphere in their free movement and competition case law. The second part looks at those areas of EU law that deal with the interface of the public and the private sphere such as effet utile, public undertakings, special and exclusive rights and services of general economic interest, as well as state aids, public authority and public interest exceptions. The examination of the case law of the Court starts out from two competing theoretical frameworks, i.e. the Ordoliberal school of law and economics, and the service public approach to public services. It is found not to be determined or explained by either of these. Instead, the variables of proportionality and preemption, and Community law doctrines such as functionalism, teleology and subsidiarity play an overriding role. The November Revolution of 1993 (broadly, before and after the Keck judgment and similar case law in other areas) is found to have given rise to a complex realignment of rules, where horizontal broadening of the scope of EU law is often accompanied by a vertical withdrawal deferring to the Member States.

Book Review: Partnership Rights, Free Movement and EU Law

Book Review: Partnership Rights, Free Movement and EU Law

Radbruch und Kantorowicz

Radbruch and Kantorowicz as a topic has been widely untouched, in spite of obvious commonalities in their lives and works. In addition, there are a number of misconceptions and misconstructions pertaining to the relationship between Radbruch and Kantorowicz in the areas of legal philosophy and legal theory. The article discusses the strong parallels and commonalities between the lives and works of Radbruch and Kantorowicz, clarifies the question of whether and to what extent relativism and trialism form a common neo-Kantianistic basis, and finally investigates whether the Free Law movement served as a common methodological basis for the two scholars. The author comes to the conclusion that Radbruch and Kantorowicz share common convictions despite their distinctive differences.

Vanished Mediators

The centrality of judges in Max Weber’s theory of legal rationalization and their residual status in his ‘Sociology of Law’ are discussed. The vital role he assigns to judges is exposed by privileging his frequently overlooked discussion of the anti-formal tendencies in modern law. Their minimized standing in his comparative examination of the Continental and the English administrations of justice is explained by foregrounding the influence exerted on him by the ideals of Pandectist jurisprudence, as revealed in his Critique of Stammler, and by the politico-legal context in which he wrote, as evinced in his assessment of the Free Law Movement.

On the Background and Significance of Gustav Radbruch's Post-War Papers

In a lively and informative introduction to Hermann Kantorowicz’s posthumously published little book, The Definition of Law (1958),1 A.L. Goodhart speculated that Kantorowicz’s polemical tract of 1906 in defence of the ‘free law movement’, The Struggle over Legal Science,2 had ‘probably been cited more frequently than any other legal essay published during the present century’.3 Were Goodhart writing today, passing review on the whole of the century, one wonders what his reckoning would be. H.L.A. Hart’s paper, ‘Positivism and the Separation of Law and Morals’,4 comes to mind. So does Ronald Dworkin’s early paper, ‘The Model of Rules’.5 The real competition, I think, would stem from Gustav Radbruch’s essay of 1946, ‘Statutory Lawlessness and Supra-Statutory Law’.6 Indeed, in light of the case law and the vast literature stemming from it, Radbruch’s article would certainly be reckoned the winner in this competition. Radbruch introduced in the article a formula that has played a significant role in adjudication in the Federal Republic of Germany—first on the status of various Nazi laws, and then, in the 1990s, on the status of a provision in the East German Border Law.7 These issues, particularly the latter, have been discussed repeatedly and at length in German publications.8

Book Review: Partnership Rights, Free Movement and EU Law, by H. Toner. (Oxford: Hart Publishing, 2005)

Book Review: <i>Partnership Rights, Free Movement and EU Law</i>, by H. Toner. (Oxford: Hart Publishing, 2005)

Parallel Trade in the Pharmaceutical Market – Current Trends and Future Solutions

This article explores the relationship between EU law and the pharmaceutical market. It analyses the political debate on the competitiveness of the European pharmaceutical industry, in the view of the enlargement, the different models of regulation of pharmaceuticals in the Member States and the economic theories of parallel trade and intellectual property rights. Against this background, it is demonstrated that both the Commission and the Court of Justice have adopted a strong pro-single market approach, whereby price regulations, ethical obligations to sell medicines and the need for adequate reward of investment in research and development have been considered incapable of limiting the scope of application of the European law of competition and free movement of goods. The article suggests solutions available under the existing legal framework; it also proposes, in view of further European harmonisation, the principle of effective and fair negotiation as a core element in price regulation in the Member States.

In search of coherence: social policy, the single market and fundamental rights

The tension between social policy and the free-market aims of European integration has been a constant theme since the formation of the Community in the 1950s. Previous contributions to this Annual Review have explored some of the more recent manifestations of this tension. These include the challenge posed to national welfare states and labour regimes by the ‘economic jurisprudence’ of European free movement law and competition law (Barnard and Deakin, 1998: 144–148). In the year under review here, there were two decisions of the Court of Justice which are likely to have a lasting influence on this debate. In Albany, which we discuss in the second section (below), the Court considered the most direct challenge yet to national autonomy in social policy, namely an argument that collective agreements should be subjected to routine scrutiny under the competition policy provisions of the Treaty. In rejecting this claim in its most ambitious form, the Court drew on the social policy provisions of the EC Treaty, and in particular the encouragement in the Treaty given to social dialogue. Albany therefore represents a significant, if hesitant, step on the road towards the recognition of a more central place for social rights within the European legal order. By the same token, the Court’s decision in the Centros case (discussed in the third section) was a reminder of how far there is still to go if this goal is to be achieved. Centros signals that the principle of territoriality—the right of member states to apply regulatory laws to companies operating on their territory regardless of the state in which those entities have been incorporated—is increasingly under challenge from the principle of freedom of establishment, with its overriding emphasis on the right of freedom of movement for entrepreneurs. These decisions represent, in certain respects, ‘lawyers’ law’, dealing as they do with technical and complex arguments on the scope of the legal concepts which

La sociologie du droit en Allemagne

Sociology of Law in Germany starts at the beginning of this century with three different approaches which are represented by authors like Ehrlich (free-law movement), Sinzheimer (worker's movement) and Max Weber (with an application of general evolutionary theories to the field of law). The situation during the Weimar Republic is described and the assumption is discussed whether there was Sociology of Law during the Nazi Era. Judicial research became the major issue during the fresh start of Sociology of Law in the Federal Republic of Germany. (The situation in the Germon Democratic Republic is not discussed hère). The recent situation in the FRG can be described by a schism between socio-empirical research and grand theories (especially by Luhmann, Teubner). A common focus can be found in the topics of legalization and of a regulatory crisis in German : Freirechtsschule.

The German Free Law Movement as the Source of American Legal Realism

The German Free Law Movement as the Source of American Legal Realism