Internal Market Law Research Articles

The Boundaries of Sovereignty: The ECJ’s Controversial Role Applying Internal Market Law to Direct Tax Measures

It is safe to say that any description of tax as ‘exciting’ tends to be greeted with at least mild scepticism by non-tax specialists. Yet the ECJ’s role applying the Treaty free movement rules in the direct tax sphere is one of the most exciting, controversial and seemingly intractable areas of ECJ competence at present. This paper seeks to demonstrate why no Community lawyer should miss out on the drama unfolding in Luxembourg.

The Boundaries of Sovereignty: The ECJ’s Controversial Role Applying Internal Market Law to Direct Tax Measures

It is safe to say that any description of tax as ‘exciting’ tends to be greeted with at least mild scepticism by non-tax specialists. Yet the ECJ’s role applying the Treaty free movement rules in the direct tax sphere is one of the most exciting, controversial and seemingly intractable areas of ECJ competence at present. This paper seeks to demonstrate why no Community lawyer should miss out on the drama unfolding in Luxembourg.

Free Speech Meets Free Movement - How Fundamental Really is 'Fundamental'? The Impact of Fundamental Rights on Internal Market Law

The fundamental freedoms, on which the common European market is based, have been present in the Community legal order since its very beginning. The fundamental rights, on the other hand, entered into this system later through general principles of law, mostly due to the judicial activism of the European Court of Justice. They have come a long way from not being considered at all to their full and explicit recognition in the Charter of Fundamental Rights, incorporated into the Constitutional Treaty. This paper aims at exploring the impact of fundamental rights on the internal market law. It will be devoted to situations where there are clashes between the fundamental rights and fundamental freedoms. The thesis put forward is that the process of balancing conflicting interests has to be anchored in the concept of allowable restrictions which can be imposed on the fundamental right at issue. The analysis focuses on the scope of the right to free speech in the Community legal order, most notably on the level of protection accorded to commercial speech.

Consumer and contract law

In every national law the association of consumer and contract law is natural. Most of the academic books relating to consumer law deal mainly with contracts involving a consumer and a business. And most of the legal problems met by consumers deal with the protection of their economic interests, i. e. with the difficulties they met in contracts. In view of the fact that the European legal system considers the internal market as a policy and the law as an instrument for the attainment of the aims of the internal market, both consumer and contract law were natural fields of activity for the European legislator. The consumer is one of the major actors of the internal market, and contract is one of the principal instruments of the development of the internal market. Consumer and contract law together are therefore a more natural association in European law than may be the case in the national legal systems.

Financing Services of General Economic Interest

Services of general economic interest' play an important role in the lives of the citizens of Europe. Increasingly such services have come under attack from the use of the competition and internal market law provisions of the EC Treaty, revealing that the European Union lacks a clear strategy to promote the role of such services in the new economy. Article 86(2) EC is one provision which allows for the mediation between traditional State duties towards citizens and the demands of competitive markets. Additionally, Article 16 EC recognises that such services have a role to play in the future constitutional shape of Europe and this is enhanced by the recognition of access to services of general economic interest as one of the fundamental rights of the EU in Article 36 of the Charter of Fundamental Rights of the Union.2 While of constitutional importance, neither provision provides a legal base to develop the role of public services in Europe. The White Paper on services of general interest claims that such services also the subject of intense debate within the Convention on the future of Europe3 but the issue of competence in the area of services of general economic interest was not seen as a priority by the Convention on the Future of Europe. The Working Group on Social Europe could not agree on whether Article 16 EC should be amended to provide a legal base for EU level legislation on services of general economic interest4 and the resulting amendment to Article 16 in the draft Treaty establishing a Constitution for Europe, Article 111-6, emphasised that services of general interest were subject to European law but did not provide the legal means for the enactment of such laws, opening up the possibility that the EU could be in breach of its fundamental duty to respect the role of such services in competitive markets in Europe. The EC Commission has used a soft law discourse to promote a more clearly defined working relationship between the aims of services of general economic interest and the operation of the internal market in order to secure a clearer under-

La mondialisation du droit économique :

SUMMARY GLOBALISATION OF ECONOMIC LAW: TOWARDS A NEW ORDRE PUBLIC ECONOMIQUE. INTRODUCTORY REPORT The introductory report to the second AIDE-colloquium on «Globalisation of Economic Law», which was subtitled «Towards a New ordre public economique», presents, first, economic globalisation as a process of market opening and extension governed by a tight network of international legal rules of different nature. However, such a hierarchical view of globalisation of economic law is faced with conceptual difficulties resulting from the continued dominance of globalisation by (some major) States, from the problems of transposing international rules on to the national territorial level, and from systems frictions and rivalries. In fact, much of legaleconomic globalisation is due not so much to States revising the international trade laws, but to their reorientating internal market law with a view to enhance the attractiveness of domestic markets and competitiveness of domestic (rather than national) industry. At the preceeding colloquium in Rennes (see Rev. int. dr. econ. 2002, No. 2-3) these legal developments had been examined with respect to specific areas of the law, with respect to changes of the law on corporate governance, on the protection of employees and of consumers and with respect to the ways and means of competition. Among the legal concepts emerging from that examination are not only principles of liberalisation and non-discrimination, but also international standards of protection and rules on the distribution of regulatory authority between States, regional organisations of economic integration and global organisations, with the basic authority and political weight still laying with the nation-state. As a result, regulatory competition is widespread and, both a source of sufficient and of innovative market rules. However, as there are no generally accepted legal rules on how to determine the levels of regulation or on how to resolve conflicts between regulatory systems, and as the development of the principles of globalised economic law lacks democratic legitimacy, the concept of globalised economic law still is an elusive one. Thus, only some features of the overall development could be examined and characterized more closely, such as the way States reorientate domestic regulation in view of their loss of territorial control. The necessity of such reorientation, however, is not only due to globalisation, but to many factors (such as societal changes, technological progress, etc.), so that it is difficult to isolate the influence of globalisation, quite apart from the fact that globalisation itself is a complex phenomenon with its own history. Consequently, globalisation evolves on both the national and the international level as a multi-faceted, concomitant, if non parallel development of the law, one of its features being the redirection of national law towards a «globalist» perspective. The objective of the Colloquium of Tunis was to complement the vertical, problemspecific approach of Rennes by an analysis of the horizontal principles of global economic law. To this effect, four general topics had been defined as a matter of structuring the legal framework of economic globalisation. These were : – the establishment of the rules governing the markets, a topic that was approached on both a general theoretic level (Behrens) and with a view to determine the role of the various national, regional and international levels of regulation (Govaere) ; – the principles of regulating globalised markets, in particular the role of the rules on market access (Ehricke), the respect of the situation of less developed countries (David), and the protection of diffuse interests and of collective goods (Drexl) ; – the status, roles and modes of operation of the actors of globalisation, in particular, on the one hand, those of multinational enterprises as regards the legal implication of fragmented production and distribution (Leitao Marques), and of their transfer pricing policies (Snoussi), and, on the other, those of the members of a «civil society» with its claim to fill in democratic deficits of globalisation (Boy) ; – the implementation and activation of globalisation of economic law, in particular the problems of transforming principles of market liberalisation that result from trade negotiations (i.e. from reciprocal dealings) into normative principles of constitutional value (Bourdon),67 as well as the problem of redefining the role of public authorities as guardians of diffuse and/or collective interests, and of guaranteeing adequate access to the court system (Ziller).

The New Europe: Part of the Problem--or Part of the Solution to the Problem?

1J.F. Kennedy Memorial Fellow, Minda de Gunzburg Center for European Studies at Harvard University

Principles of European Internal Market Law: 2001 Cases

Principles of European Internal Market Law: 2001 Cases Andrea Biondi, Andrea Biondi Search for other works by this author on: Oxford Academic Google Scholar Maya Lester Maya Lester Search for other works by this author on: Oxford Academic Google Scholar Yearbook of European Law, Volume 21, Issue 1, 2001, Pages 471–487, https://doi.org/10.1093/yel/21.1.471 Published: 01 November 2001