Presentation on theme: "THE EU INTERNAL MARKET Michele Colucci"— Presentation transcript:
1 THE EU INTERNAL MARKET Michele Colucci E-mail:firstname.lastname@example.org Web site:European College of ParmaAcademic year
2 Article 3 TEU- to promote economic and social progress and a high level of employment and- to achieve balanced and sustainable development, in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union,— to assert its identity on the international scene, in particular through the implementation ofa common foreign and security policy including the progressive framing of a common defencepolicy— to strengthen the protection of the rights and interests of the nationals of its Member Statesthrough the introduction of a citizenship of the Union,— to maintain and develop the Union as an area of freedom, security and justice, in which thefree movement of persons is assured in conjunction with appropriate measures with respect toexternal border controls, asylum, immigration and the prevention and combating of crime,— to maintain in full the acquis communautaire and build on it
3 EU as a Custom UnionInternal section - regulation of intra-Community trade:Elimination of custom duties and charges;Elimination of internal borders to facilitate four freedomsExternal section - regulation of trade with third countries:common custom tariffs;common commercial policy.
4 The Fundamental Freedoms 1. Freedom of movement for persons2. Freedom of movement for services3. Freedom of movement for capitals4. Freedom of movement for goods
5 EC TREATY AND EU CITIZENSHIP Every person holding the nationality of a Member State shall be a citizen of the Union. (art. 20 TFEU).Every citizen of the Union shall have the right to move and reside freely within the territoryof the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.(art. 21 TFEU).
6 FREE MOVEMENT OF WORKERS Artt TFEU. Workers have the right to:accept offers of employment actually made;move freely within the territory of Member States for this purpose;to stay in a Member State for the purpose of employment;to remain in the territory of a Member State after having been employed in that State.
7 THE EC TREATY Self employed persons: Right of establishment(artt TFEU) andFreedom to provide services (artt TFEU):the right to take up and pursue activities as self-employed persons and to set up and manage undertakings .
8 CASE LAW OF ECJ: evolution Definition of «worker»:A PERSON PERFORMS SERVICES OF SOME ECONOMIC VALUE FOR AND UNDER THE DIRECTION OF ANOTHER PERSON IN RETURN FOR WHICH HE RECEIVES REMUNERATION (Lawrie-Blum, C-66/85).«Community meaning»(Unger, C-75/63).Fundamental Principle: broad interpretation (Levin, C-53/81).Exceptions and derogations: strict interpretation (Kempf,C-139/85).
9 EQUAL TREATMENT BAN ON “DIRECT” DISCRIMINATIONS Art. 18 TFEU on the basis of nationalityArt. 45 TFEU:Access to employmentPayEmployment conditionsAssociation agreement, Co-operation agreement, and so on.SPORT: Balog case, Simutenkov, case
10 « COVERT DISCRIMINATIONS » NO « COVERT FORMS OF DISCRIMINATION” which, by the application of other criteria of differentiation, lead in fact to the same result . (cause 152/73 Sotgiu)YES, only in case of « objective reasons »; proportionality test!
11 THE UEFA HOMEGROWN PLAYER RULE Homegrown: player trained by a club for 3 years when he is between 15 and 21 years old2006/ up to 252007/ up to 252008/ up to 25No discrimination on the basis of nationality.
12 Reverse discrimination “National law” v. “EU law”:Different scopedifferent goalsEU Law does not apply to purely internal matters.
13 Discriminatory act and limit to free movement ordinary legislation,Collective bargaining agreements,Regulations of private associations,(Bosman,C-415/93): FIFA, UEFA,Limits to free movement:Public administration;Public order and securityPublic health
14 TERRITORIAL SCOPEThe EUROPEAN UNION: 27 Member Statesthe rule!
15 The case law of the ECJ“Sport is subject to Community law in so far as it constitutes an economic activity within the meaning of Article 2 of the Treaty” .Walrave case, C-36/74.Donà v. Montero case, C- 13/76(nationality clause).sports or economic activity?C-51/96 Deliège case”, C-176/96, Lethonen case, Meca – Medina case(doping).
16 THE BOSMAN case cause C -415/93 DAVID v. GOLIAH!Sport= economic activity= the end of transfer compensationQuid training ?The new FIFA regulations on Status and Transfer of Players
17 Freedom to provide services EC DIRECTIVE 2006/123/ECGoal is to achieve a genuine Internal Market in servicesA framework directive applying to wide-range of servicesProvisions on:administrative simplificationfreedom of establishmentfreedom to provide servicesquality of servicesadministrative co-operation
18 SCOPE Services Providers established in a MS Any self-employed economic activity which is normally provided for remunerationProviders established in a MSa natural person who is a national of a MSa legal person established in a MSCertain provisions in the Directive relate to recipientsa natural person who is a national of a MS or who benefits from rights conferred upon him by Community actsBUT….
19 ACTIVITIES NOT COVERED Following activities are excluded from the scope:non-economic services of general interestfinancial serviceselectronic communication services and networkstransport services and port servicesservices of temporary work agencieshealth care servicesaudiovisual and radio broadcasting servicesgambling activitiesactivities which are connected with the exercise of official authoritycertain social servicesprivate security servicesservices provided by notaries and bailiffs
20 SIMPLIFICATION!!!!!MSs are obliged to examine all procedures and formalities applicable to access to a service activity and to the exercise thereof and, if needed, simplify themPoints of single contactProcedures by electronic means
21 FREEDOM OF ESTABLISHMENT Actual pursuit of an economic activity for an indefinite period and through a stable infrastructureProvisions relating toauthorisation schemesforbidden requirements which must be abolishedrequirements which must evaluated and in certain cases abolished or replaced by less restrictive means
22 Freedom to provide services Characterised by the absence of a stable and continuous participation in the economic life of the host MSMSs are obliged to abstain from imposing their own requirements on incoming service providers, exceptwhere justified by reasons of public policy, public security, public health or the protection of environmentlegislation in question is covered by derogations provided for in Article 17case-by-case measures relating to the safety of services
23 Quality of servicesInformation on providers, their services and the settlement of disputesProfessional liability insurance and guaranteesCommercial communications by the regulated professionsMultidisciplinary activities
24 AUTHORISATION SCHEMES AND REQUIREMENTS Authorisation schemes are allowed only on certain conditionsnon-discriminativethe need for authorisation is justified by an overriding reason relating to the public interestproportionalityRequirements are set forconditions of the authorisationsthe duration of the authorisationsauthorisation procedures
25 FORBIDDEN REQUIREMENTS nationality requirements for the provider, his staff, shareholders or members of the management or supervisory bodiesa requirement to be resident in the territory of that MSa prohibition on having several establishmentsrestrictions on choosing between a principal or a secondary establishment or between different forms of secondary establishments
26 OTHER FORBIDDEN REQUIREMENTS conditions of reciprocityeconomic teststhe involvement of competing operators in the decisions of competent authoritiesobligation to have financial guarantees or insurances from the MS in questionan obligation to have been previously registered or to have previously exercised the activity in the MSs in question
27 OTHER REQUIREMENTS Requirements subject to evaluation quantitative or territorial restrictionsobligation for the service provider to take a specific legal formrequirements relating to the shareholding of companiesrequirements reserving the provision of certain services to specific providers
28 OTHER REQUIREMENTSbans on having more than one establishment in the territory of the same MSobligations to have a minimum number of employeesobligations to apply fixed minimum or maximum tariffsobligation on the provider to supply other specific services jointly with his service
29 FREE MOVEMENT OF CAPITALS Conclusions of the Madrid European Council on 26 and 27 June 1989:the Liberalization of Capital Movements Corresponds to the First Stage of Economic and Monetary Union .Necessary to take Full Advantage of the Benefits of the Single Market.But ...Possibility of:RestrictionsSafeguard Measures (for security and foreign policy reasons
30 FREE MOVEMENT OF GOODS Article 26 TFEU: The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal marketThe internal market shall comprise an area without internal frontiers, in which the free movement of goods, persons, services and capital is ensured in accordance with the Treaty
31 Obstacles to Inter-State Movement of Goods Recognized in the Treaty Custom duties and charges having equivalent effect (Art TFEU): duties on border crossing and any other charges with equivalent effectDiscriminatory taxation (Art. 110 TFEU): taxes in excess of tax for similar domestic productsQuantitative restrictions on imports and exports (quotas) and all measures having equivalent effect (Art TFEU): MEE could be any public and private measure, including law, an internal regulation, decisions of a judge or a court, administrative rules and regulations giving discretion to discriminate (Irish Souvenirs case 249/81)
32 Quantitative Restrictions and MEE (Articles 34 and 35 TFEU) Quantitative restrictions = explicit restrictions such as quotasMEE = implicit restrictions such as a duty to obtain a licence to import or exportProcureur du Roi v. Dassonville (case 8/74):All trading rules enacted by MS which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions [para. 5]Rule of reason: In the absence of a Community system…if a MS takes measures to prevent unfair practices…it is subject to the condition that these measures should be reasonable… [para. 6]
33 Categories of Measures Possibly Caught in Violation of Art Categories of Measures Possibly Caught in Violation of Art. 34 TFEU by the Dassonville Formula1. Discriminatory measures on the ground of nationality2. Indistinctly applicable measures: so-called product requirements, related to the production and marketing of goods that apply without distinction to both foreign and domestic goods but it is usually more burdensome for foreign companies/goods (Casis de Dijon case 120/78)3. Selling arrangements: category created by Keck case C-267/91 related to socio-economic measures as to how goods should be sold (manner of sale)
34 Cassis Principles: 1. The Rule of Reason: Certain measures, even if within Dassonville formula, will not breach Art. 34 TFEU if they are necessary (proportionality) to satisfy mandatory requirement (objective justification) relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer2. Mutual Recognition:There is no valid reason why, provided that goods have been lawfully produced and marketed in one MS, they should not be introduced into any other MS
35 Keck ProvisoSelling arrangements are excluded from Article 34 TFEU (Dassonville formula) as long as they affect in the same manner, in law and in fact, the sale of domestic products and of those from other MS [para. 16]
36 Exceptions to Free Movement of Goods Public moralityPublic policyPublic securityProtection of health and life of humans, animals or plantsProtection of national treasures possessing artistic, historic or archaeological valueProtection of industrial and commercial property
37 Some personal experience... THE EU INTERNAL MARKETMYTH OR REALITY?Some personal experience...