Internal Market Law Research Articles

Judicial Authority in EU Internal Market Law: Implications for the Balance of Competences and Powers, by Vilija Ve?lyvyte.( Oxford: Hart Publishing, 2022.)

Judicial Authority in EU Internal Market Law: Implications for the Balance of Competences and Powers, by Vilija Ve?lyvyte.( Oxford: Hart Publishing, 2022.)

European administrative networks during times of crisis: Exploring the temporal development of the internal market network SOLVIT

AbstractEuropean administrative networks (EANs) are an increasingly prominent form of European Union (EU) governance. Although these networks are typically portrayed as important and flexible forms of organization, we lack knowledge of their temporal dimension, including their development in times of crisis. This paper provides a first analysis of network interaction as it unfolds before and during times of severe crisis for the EU internal market. Specifically, we examine interactions in the EU internal market network SOLVIT. This network offers member states both a formalized procedure for the bilateral resolution of cases of alleged misapplication of EU law, and an informal network for general discussions on internal market topics and SOLVIT‐related matters beyond specific case‐resolution. Based on unique three‐wave survey data, we develop a continuous‐time model (stochastic actor‐oriented model) to analyze the evolution of SOLVIT's informal interactions over time. In explaining these developments, we reflect on the importance of two crises: the exit of a central SOLVIT member (the United Kingdom), which drove informal interactions to a great extent, and COVID‐19, which led to great sudden uncertainty and challenges for the implementation of internal market law. Our results show that the network is remarkably stable and despite, or rather because of, these crises, has become denser over time.

“Golden Shares” and Other Special State Rights: An Assessment Based on CJEU Decisions Within the Scope of EU Internal Market Law

“Golden Shares” and Other Special State Rights: An Assessment Based on CJEU Decisions Within the Scope of EU Internal Market Law

“Golden Shares” and Other Special State Rights: An Assessment Based on CJEU Decisions Within the Scope of EU Internal Market Law

“Golden Shares” and Other Special State Rights: An Assessment Based on CJEU Decisions Within the Scope of EU Internal Market Law

Promoting the Apocalypse? The Legality of a Ban on Advertising for Fossil Fuels and Other Carbon-Intensive Products under European Law

Abstract Climate policy requires a steep and rapid reduction of greenhouse gas emissions, which are mainly caused by fossil fuels. Advertising that promotes fossil fuels and other carbon-intensive products undermines this objective. It normalises unsustainable consumption patterns and enables producers of harmful commodities to manipulate public discourse in order to delay or derail the energy transition – for example, by spreading misinformation, deflecting responsibility and promoting false solutions. For these reasons, there are increasing calls for a fossil fuel advertising ban along the lines of the tobacco advertising ban at both the European and the Member State level. This article evaluates the legality of such bans under European law, focusing on legislative competence, fundamental rights and internal market law. It finds that a fossil fuel advertising ban can be assumed to conform to the requirements of European law, especially if it is modelled after the tobacco advertising ban.

The European Union’s response to the Covid-19 crisis and (the legitimacy of) the Union’s legal order

Abstract In EU legal scholarship, crises are associated with further European integration, often with legal and institutional innovations. Our analysis, covering examples of all aspects of ‘Union Covid law’, investigates two questions. To what extent is this true for the Covid-19 crisis—is Union Covid law what we expected? How has the pandemic re-shaped our understanding of the Union’s legal order, and especially its legitimacy? We draw out three broad overlapping themes, the ‘market/social’, ‘science/politics’, and ‘technocracy/democracy’ dimensions of Union law. We consider both the Union’s health law, and its economic governance, alongside other changes across a wide sweep of Union law including institutional law, and numerous aspects of internal market law, such as competition/state aids and consumer protection law. Overall, we show that Union Covid law is mostly predictable. However, our analysis demonstrates two important surprises. First, a narrow notion of the disciplines of the internal market, usually supposed to be fundamental to Union law, has been profoundly challenged. Second, the Union has not only deployed all its existing redistributive competences to respond to the pandemic. The Union has also effectively redefined its fiscal and economic governance powers to create a redistributive facility which, though formally limited in time, far exceeds in scale and scope any previous Union redistributive activity. Past Union crisis responses involved changes taking place outside Union legal structures, with the law sometimes ‘playing catch up’ in later Treaty amendments. This time, the Union’s Covid-19 crisis response at least purportedly takes place within existing legal constraints. This is new. We show, on the one hand, that the Union’s ‘output’ legitimacy has been enhanced. The Union is not forever condemned to lack legitimacy because of its economic constitutional settlement. The idea of a Union based on a legally encoded dominance of the ‘economic’ over ‘health’ interests—already widely discredited in Union health law scholarship—is replaced by Union law based on creative interpretations of formal competences, designed to meet the needs of human health as well as Union-wide economic recovery. On the other hand, however, the move to executive and technocratic governance associated with the Union’s pandemic response is a step backwards in terms of ‘input’ and ‘throughput’ legitimacy, in terms of both policy substance and law enforcement. The lack of democratic or judicial oversight over Union Covid-19 (soft) law negatively affects the legitimacy of Union law.

Procedural Customization & the Limits of Internal Market Law: The ECJ Conducting the Judicial Dialogue

Analyses on the limits of EU internal market law mainly focus on substantive evolutions regarding the underlying concepts. However, once the European Court of Justice (ECJ) has clarified the scope of the free movement principles, the ball is then passed to the national judiciary. In the future application of these boundaries, the judicial dialogue remains crucial to ensure an effective and correct implementation of EU law. This interaction is based on a set of procedural guidelines. Whereas such rules might appear as fixed circumstances, this article will demonstrate how the ECJ – through different dynamics – ensures the correct interaction between substantive and procedural evolutions. This ‘procedural customization’ will be uncovered regarding two central limits of EU internal market law: de minimis thresholds, and the purely internal situation doctrine. internal market law, field of application, limits, de minimis, purely internal situation, preliminary references, European Court of Justice, procedural customization

Saving Football from Itself: Why and How to Re-make EU Sports Law

AbstractEU sports law has conventionally been understood to involve the assembly of the several decisions of the Court of Justice and the Commission that apply free movement and competition law to the practices of governing bodies. The influence of these decisions has generated change in some aspects of sporting governance, in the EU, and beyond. But the EU does not set the terms according to which sport shall be organised. This article makes the case for the EU moving beyond its orthodox approach to sports law, which is rooted in the accidents of litigation, and also choosing to embrace a role as a regulator. This will diminish the autonomy that governing bodies in sport have long prized, but the article asserts the need for this in order to address the conflict of interest to which governing bodies fall prey when they perform regulatory functions while also making commercially significant choices. It is, however, unclear whether the political will needed to propel EU sports law beyond the application of internal market law to embrace also the establishment of mandatory ex ante standards can be assembled.

Posting of workers in the European Union: an exploitative labour system

AbstractThis article unpacks some severe forms of exploitation of workers, resulting from the use of free provision of services for purposes that it was not intended to fulfil, under internal market law. It explores how this evolution of posting relates to the existence of a market resting only on the international assignment of workers, and proposes that the European Union (EU) takes steps to limit or prohibit assignment of labour, especially in the sectors (agriculture, meat sector, construction) where posting of workers, as some recent cases show, leads to extreme forms of exploitation that can be tagged as slavery.

Smjernice u postlisabonskom europskom međunarodnom privatnom pravu

Smjernice u postlisabonskom europskom međunarodnom privatnom pravu

The internal market for supplementary pensions: A long and winding road

Since the beginning of the 1990s, EU initiatives have sought to gradually harmonize the activities of institutions for retirement provisions (‘IORPs’). However, thirty years later, multiple barriers to entry remain. This article will identify the current state of play, by adopting a twofold approach towards supplementary pensions in a context of EU internal market law. First, we will assess the process of negative integration of several pension policy tools in light of the free movement case law (in particular, the free provision of services). During this study, the focus will be on mechanisms of compulsory membership and collective bargaining in the field of occupational pensions. Second, we will analyse the most important legislative constraints of supplementary pension services at EU level, with an emphasis on secondary internal market law. We argue that, despite the effort of respecting national autonomy in social policy, positive integration has led to several spillovers. Finally, the article will highlight the most significant obstacles, and conclude by discussing the general attitude of EU internal market law towards supplementary pensions and social policy in general.

Comparative Internal Market Law: The UK and the EU

Abstract The United Kingdom Internal Market Act 2020 introduces a new field of enquiry for scholars. It allows reflection on the model of an internal market chosen by the United Kingdom to regulate relations between its four constituent elements now that, after Brexit, the authority of the EU’s common rules has come to an end. It allows comparison and contrasts between the UK’s chosen model and the longer established patterns of the EU internal market. It is an invitation to develop a comparative study of the law of internal markets. The overall structure of the UK internal market envisaged by the 2020 Act is readily compared to that which exists in the EU, but there are also points of contrast. The most significant is that the UK model is less tolerant of regulatory diversity among its constituent elements than applies under EU free movement law. The scope to justify rules that obstruct trade within the UK is less generous than in the EU, with the consequence that the UK’s internal market has a more deregulatory flavour than the EU’s. This model of limited availability to protect local regulatory autonomy over unrestricted intra-UK trade pays little regard to sensitivities in Scotland and Wales, while the position of Northern Ireland, locked into the Protocol attached to the EU–UK Withdrawal Agreement, is different but also fragile. Internal markets possess economic motivations and they are built on legal rules, but they involve political choices and they have political implications. The UK Internal Market Act presents challenges to the stability of the United Kingdom itself. Accordingly the ambition of this paper is to explain the shape of the UK internal market and to compare and contrast it with the EU’s internal market. It also aims to demonstrate the political sensitivity of the choices that need to be made in designing an internal market against the background competing tensions of unhindered market access, on the one hand, and, on the other, respect for the regulatory autonomy enjoyed by the constituent units.

Turnover Taxes, the Fight for the National Tax Base and the EU Court of Justice: An Undeserved Triumph for Member State Direct Tax Autonomy?

The additional taxation of corporate turnover has emerged in the EU Member States and at the EU level as part of efforts to secure the national tax base and presumably to enable a fair and equitable sharing of the tax burden among corporate taxpayers covered by the national tax jurisdiction. Its introduction is usually based on the expectation that such taxation enables the exercise of taxing rights over value generated in the national analogue and digital economy when the traditional taxation of corporate income seems to fail in achieving the same. However, turnover taxes are problematic tax instruments from a legal perspective and their lawfulness is debatable as a matter of both EU and national law. After years of contestation before the European Commission and the courts of the EU based on EU internal market and State aid law, it has been revealed that EU law is not available to challenge some of the fundamental problems with the regulation of turnover taxes. As the law now stands, there is a possibility that in this area of taxation Member States can get away with misrepresenting their intentions and abusing their taxing rights in this way. This latter issue must not be overlooked when addressing the non- or under-taxation of corporate taxpayers in the national and the European economy. turnover taxation, digital taxes, national tax base, Member State tax policy autonomy, discrimination, abuse of taxing rights

Private Pensions and EU Internal Market Law: Enhancing Retirement Provision through Harmonisation

Pensions, pension policy, and retirement provision has been historically associated with Member States alone. However, this is not so any longer. For years, occupational pension schemes have been brought within the scope of the internal market of the European Union. Extensive judgments from the Court of Justice of the European Union, as well as harmonised legislation from the EU legislature have followed to improve the marketplace for work-related pensions. Today, the market freedoms are now being furthered to cover not just occupational pension schemes, but also, the private pension market. In light of such developments at EU level, including the development of pan-European Personal Pension (PEPP) products, what is evident is a significant shift in the establishment of an EU-wide private pension market, mirroring developments in the United States in what are known as ‘individual retirement accounts’ (IRAs). In light of these EU advances emanating from free movement case law and the PEPP Regulation, with effects for both individual Europeans as future retirees, and financial services undertakings as pension product providers; this article analyses the complementary aspects of both positive and negative integration in the private pension market. The article elaborately demonstrates the significant effect of legal progress, through slow-moving developments, that are collectively contributing to closing the deficit in the retirement provision of Europe’s retirees of the future. EU internal market law, EU free movement law, pension law, private pensions, national personal pension products, PPP, Pan-European Personal Pension Products, PEPP, retirement, harmonisation

Equal Pay and EU Public Procurement Law – Case Study of Mandatory Icelandic ÍST85 Standard

From 2018, it became mandatory to obtain the Icelandic Equal Pay Standard (ÍST85) for all companies with 25+ employees annually operating on the Icelandic market. It has been unclear to what extent – if any – the ÍST85 can be applied in public procurements. This article analyses whether the ÍST85 is compliant with the relevant European Union internal market law, particularly public procurement law. The growing intensity of nudges to include and verify social elements in public procurements can be observed throughout the EU. The analysis of the Islandic case study bears relevance as it can be applied to the EU Member States and other EEA/EFTA States, contemplating similar approaches in their procurements. Section 1 introduces ÍST85. Section 2 analyses the relationship between EEA and EU law, showcasing that this article's analytical outcomes provide lessons applicable beyond Iceland. Section 3 examines how equal pay is regulated under EU law. Section 4 conducts an internal market analysis of ÍST85 compliance by examining the Treaties provisions on free movement. Section 5 introduces the EU public procurement law and examines ÍST85 compliance with Directive 2014/24/EU. Section 6 tests the application of ÍST85 to the Posted Workers Directive. Section 7 concludes the article.

A shock to the system: sectoral bargaining under threat in Ireland

In Náisiúnta Leictreach Contraitheoir Éireann v Labour Court, the Irish High Court struck down as unconstitutional a key component of Ireland’s industrial relations system for the third time in recent years. The Court determined that the extension of collective agreements erga omnes breaches the constitutional prohibition on the delegation of legislative power. This note explains the background to that decision and critiques the Court’s reasoning from the perspective of a ‘labour constitution’ model of labour law, and in light of international and European legal principles. The decision appears to misunderstand the place of collective bargaining at a sectoral level within European internal market and competition law. It also seems to rule out any form of meaningful participation by workers, employers and their representatives in collective bargaining on a sectoral basis or through dedicated industrial relations machinery. According to the vision of Irish constitutional law put forward in this case, decisions relating to the administration of production and economic life more broadly must be reserved to the legislature. This is a significant loss for the autonomy of the social partners and represents an impoverished understanding of democracy and legitimacy within the constitutional order, and risks leaving Ireland even more of an outlier in Europe than it already is on the issue of sectoral collective bargaining.

European Health Care Systems and the Emerging Influence of European Union Competition Policy.

Since the 1990s, the EU's influence over national health care policy has been limited to European internal market law or social policy coordination mechanisms. The introduction of EU competition law into health care is more recent and underdeveloped; however, its introduction would potentially be much more far-reaching and disruptive. Three EU competition law (state-aid) cases are used and comprise both Court of Justice and European Commission decisions. One is from Ireland, one is from the Netherlands, and the third is from Belgium. The Belgian (Iris-H) case sees EU institutions scrutinize a clearly "social" (nonmarket) health care model with EU competition law for the first time. This is a highly significant development. It is clear, however, that the European Commission is more reluctant to use EU competition law to scrutinize health care systems than the European courts are. This intent on the part of EU institutions will have to be assessed in future cases, as considerable uncertainty about its shape and outer contours remains. However, EU competition law, and the EU's state-aid investigation apparatus, encroaching into the national health care systems for the first time is highly significant.

Cross‐Border Social Dumping as a ‘Game of Jurisdiction’ – Towards a Legal Geography of Labour Relations in the EU Internal Market*

AbstractThe question of social dumping has again climbed the EU policy agenda. In this article, we call into question some established views of social dumping that conceptualize the relationship between EU internal market and Member States in binary terms. Based on an analysis of relevant case law, and drawing on the conceptual tools provided by critical legal geography, we show that the project of EU integration relies as much on the scalar differentiation of powers as it does on the ‘upward’ shift of powers from the national‐ to the supra‐national level. We propose an understanding of EU internal market law as productive of a ‘labour law patchwork’, defined by the simultaneous fragmentation and overlap of labour law regulations across and within EU Member States. Here, we re‐conceptualize cross‐border social dumping as a ‘game of jurisdiction’ – a set of strategic moves by actors within a multi‐scalar and multi‐jurisdictional space.

EU–UK institutional arrangements and Brexit: a view from Switzerland

In 1972 the UK signed an accession treaty with the EU while Switzerland and the EU concluded a free trade agreement. Nowadays, both countries have a very close relationship with the EU and are not (or not anymore) EU Member States. This article aims to analyse two complex legal paths taken by countries able but not willing (or no longer willing) to be part of the EU through institutional arrangements they have already negotiated or are currently negotiating with the EU. On the one hand, the UK was part of the EU legal order and is now extracting itself from the realm of EU law while switching to relations with the EU based on international law. On the other hand, Switzerland has built its relations with the EU on numerous bilateral agreements based on EU law without establishing a homogeneous institutional mechanism, which the EU has been insistently demanding since 2013. These two situations are paradoxically similar as for both of them the design of institutional arrangements depends on the degree of integration with/extraction from EU law. A comparison between the EU–UK withdrawal agreement, the EU–UK Trade and Cooperation Agreement (TCA) and the EU–Switzerland draft institutional agreement, as proposed in this article, confirms that the degree of institutional flexibility that the EU is able to offer to a third country with which it concludes an agreement is dependent on whether that agreement is based on EU law, and in particular, EU internal market law. This article argues that depending on the nature of law the agreement is based on, from an EU perspective variations in the role of Court of Justice of the European Union (CJEU) and/or of an arbitral tribunal may make sense, but this is not the case when one takes an outside perspective.

Revisiting Proportionality in Internal Market Law: Looking at the Unnamed Actors in the cjeu’s Reasoning

Abstract To understand how the Court of Justice of the European Union (cjeu) assesses the proportionality of restrictive national measures, one has to depart from the canonical reading of internal market law cases. An alternative reading of the cjeu case law, focusing on the “who” rather than on the “how”, is possible. This article argues that the control of proportionality should not be viewed as an abstract reasoning aiming at comparing the respective importance and value of the norms in conflict, but rather as an evaluation based upon the thorough description of the social reality of the persons whose life and interests are either affected or protected by the challenged restrictive measure. Because it analyses the control of proportionality as a social narrative elaborated by the judge, the article can demonstrate that among the roles conferred by the proportionality narrative to different characters, the most determinant ones are played by persons standing behind the scene: the “archetypal characters”.