Integration of the Internal Market Introduction At the very center of the European integration process stands the internal market. The Court of Justice has in several instances ruled on the scope of the rights constituted by the internal market and the thereby following freedoms of movement of workers, capital, and goods, the freedom to provide services, and the right establish. This synopsis will look into the way in which the Court of Justice balance between promoting the harmonization of the internal market and not pushing too hard on issues of peculiar interest to the Member States (MS).
Given the short format of this synopsis, the scope of the inquiry must be limited extensively. This will be performed by means of providing the fundamentals for just one argument, which will be explored through comparative analysis of two cases within the rulings on the freedom of movement of workers, and then discussed in relation to two other cases. The Argument The argument is that the Court of Justice in general has taken an activist role in promoting harmonization of the internal market, but has taken a reluctant approach in matters concerning public moral.
The case law established by the preliminary rulings in the cases of Angonese and van Duyn exemplify this act of balancing. In order to found the analysis more solidly, the important distinctive points in the cases will be discussed in relation to the case law of Centros and Schmidberger. Angonese and van Duyn relate to the case law concerning the free movement of workers. The cases are essentially concerned with the extent to which the right to free movement of workers grants access to a position.
In Angonese the controversy arises upon a provision of a company that states that only individuals holding a certificate of bilingualism from one specific test center will be considered in the competition on a position. In van Duyn the controversy arises upon the face the government of the host MS consider the nature of the organization, in which the potential worker is offered a position, problematic according to their public policy. C-281/98 Angonese Roman Angonese grew up in Bolzano, Italy, but had German as his mother tongue.
The Court of Justice was therefore able to conclude that he as a matter of fact was “perfectly bilingual”. Angonese had studied in Germany, but applied for a competition over a position at Cassa di Risparmio di Bolzano SpA in Bolzano. The bank, however, required a certificate of bilingualism, which could only be obtained in Bolzano. Angonese claimed that this was a breach of the principle of free movement of workers. When the Court delivered its reasoning, it had to face the claim the case was outside its jurisdiction, because it concerned an entirely internal situation.
The Italian government claimed that since Angonese grew up in Bolzano, the case was not a matter for the Court. What is now A. 45 TFEU establishes the right to free movement of workers and lists in § 3 what that right entail. The rights conferred upon the nationals of the MS of the Union is in all of the subparagraphs linked to the actual exercise of the right to move within the Union in order to find or hold a position. As the Court has made clear in inter alia Saunders and McCarthy, the right of the MS national can only be invoked where the situation is not wholly internal.
That means that individual involved cannot invoke his/her right, “where there is no factor connecting them to any of the situations envisaged by community law. ” Angonese was an Italian citizen, who applied for a position in Italy. The case left, therefore, justifiable doubts as to the whether this specific case concerns the free movement of workers. The Court responded to the question in the following rather vague manor: “it is far from clear that the interpretation of Community law it seeks has no relation to the actual facts of the case… . The case touched, however, upon an issue, which is of importance to the harmonization and integration of the internal market. The Court, therefore, used the case as a pleasant opportunity to remove a restriction on the free movement within the Community in general. The reasoning emphasized that the requirement of a certificate of bilingualism from one specific city left nationals from other MS disadvantaged, and therefore constituted a breach of the right to free movement of workers.
One of the major natural obstacles to the free movement of workers within the Union is the different language used in the various regions. The Court acknowledges the need of proficiency of language requirements, but in order to limit the extent of the linguistic obstacles to the integration of the internal market, it is important that the requirements are based only on “objective factors unrelated to the nationality of the persons concerned and if it [is applied] in proportion to the aim legitimately pursued. The Angonese case provides an example where the Court took an active role in promoting the internal market by using the case as an ancillary to remove a technical restriction on the free movement of workers. It did so despite the unclear conditions of whether the case was a wholly internal matter, left it open for the Court to have pursued a more passive path. In van Duyn the Court took more careful approach, when considering the extent of the rights of free movement of workers. C-47/74 Van Duyn
Yvonne van Duyn was a Dutch national, who was refused leave to enter the United Kingdom of Great Britain (UK) in order to be employment at the “Church of Scientology”. According to UK public policy the organization was considered socially harmful, which in their opinion justified the refuse of leave to enter, although employment at Scientology wasn’t illegal to UK nationals. In this case the Court started its reasoning by emphasizing the extent and importance of the freedom of free movement of workers. It thereby ensured that the general principle of free movement of workers remained a central principle.
Thereafter the Court went on to evaluate the whether the MS could circumvent the right of free movement of workers justified by concerns of public policy. According to the Court the relevant provisions was intended to limit the “the discretionary power, which national laws generally confer on the authorities responsible for the entry and expulsion of foreign nationals”. This did, however, not preclude the MS from rejecting leave to enter for a national of another MS, as long as the rejection was based exclusively on the personal conduct of the individual concerned.
In determining the character of the personal conduct of the individual, the Court established a subjective criterion, contrary to the approach in Angonese. The Court stated, “the concept of public policy in the context of the Community … may vary from one country to another and from one period to another …”. And went on by granting the national authorities the right to limit their prohibition on employment to individuals of foreign nationality. This derogation from the freedom of movement of workers was permitted as long as the authorities of the MS had defined their standpoint towards the organization clearly beforehand.
The fact that the case involved a religious movement, which the MS considered socially harmful, made the Court take up a less activist approach, when promoting the rights of free movement of workers. The Court marked the importance of the rights but legitimated the right the national authorities to reject leave to enter. The only condition needed, was that the rejection was based on the voluntary act of associating with an organization, which was considered socially harmful.
The relevant authorities did, however, not have to consider the organization harmful to an extent that required a ban on association applicable to nationals of the concerned MS. Van Duyn, therefore, represents an example of the Court’s precautious approach in cases, where public moral is involved. The Court could in principle have promoted the integration of the internal market, by requiring that the public policy on a specific organization should create equal consequences to nationals of all MS, or promote the adoption of harmonized criteria on the public policy of the MS.
We will not engage in speculations on the motives of the Court, but it remains that the Court chose not to do so in this case, which concerned a matter of public moral to the MS. Concluding Discussion In cases concerning other freedoms, the Court has exhibited its willingness to go far in its effort to promote the rights conferred upon the individuals of the MS. In Centros a company established in UK in order to escape the Danish rules regulating the required capital to establish a company.
When the company wanted to establish a branch in Denmark, the Court legitimized the business model, by using the freedom to establish as an ancillary to promote the harmonization of the concerned rules, and thereby the internal market. Even the owners would not deny, that the business model only served to circumvent the Danish legislation. But since the case concerned a specific business model, and therefore was not linked to public moral, the Court continued its activist role. Centros is interesting because the Court, in its evaluation of the justification of the breach, takes the opposite position as it did in van Duyn.
This happened despite circumventing business regulation, from the MS’s perspective, must be considered as a harmful conduct of the individual as well. This deviation exhibit the very center of the distinction between when the Court choses to promote the integration or not. The reluctance of the Court seems to be linked to the nature of the issue concerned in the case. This tendency appears in Schmidberger as well. In this case the Court found a breach of the right to freedom of movement (of goods) justified, because it concerned an issue related to “… objectives of general interest”.
The issue in the Schmidberger case was a pro environmental demonstration, which blocked an important motorway between Italy and Austria. The case first of all provided an example of the Court accepting the European Court of Human Rights as a source of law that has supremacy over the at that time Community Law. It is, however, important that the demonstration exercised their freedom of assembly and expression to promote a general interest and not only the interest of a single branch of business, which was the case in Commission v. France.
It should be noted that all of the cases discussed in this synopsis touch upon a great variety of issues, and that it therefore would be too simplistic to hold that the Court has based its ruling solely on the matter of, whether the case contains an element of public moral or not. The Court of cause rules primarily on basis of what it considers to be right based on the body of provisions forming EU law. And one should bear in mind that every time the Court furthers the integration of the internal market, it is dependent on legitimation from all the involved parties.
Lack of legitimation in areas concerning public moral may indeed explain the Court’s precautious approach. This synopsis, nevertheless, points at a significant tendency. A tendency to which each case adds another part, by supporting that when the issues at stake interfere with the public moral, the Court takes a less activist approach. ——————————————– [ 1 ]. The term ”public moral” is of difficult nature, but is in this context used to capture beliefs and movements protected by MS’s soft and hard law. E. g. Religious or environmental movements [ 2 ]. C-281/98 Angonese [ 3 ].
C-47/74 Van Duyn [ 4 ]. C-212/97 Centros [ 5 ]. C-112/00 Schmidberger [ 6 ]. C-281/98 Angonese § 8 [ 7 ]. The rights are further specified by the regulation 1612/68 and directive 2004/38 [ 8 ]. C-175/78 La Reine v Vera Ann Saunders [ 9 ]. C-434/09 Shirley McCarthy v Secretary of State for the Home Department [ 10 ]. C-434/09 Shirley McCarthy v Secretary of State for the Home Department §§ 38-39 and C-175/78 La Reine v Vera Ann Saunders §§ 10-11 [ 11 ]. C-175/78 La Reine v Vera Ann Saunders §§ 11 [ 12 ]. This does on the other hand not imply that the Court is entirely outside its jurisdiction [ 13 ].
C-281/98 Angonese § 19 [ 14 ]. C-281/98 Angonese §§ 40-41 [ 15 ]. C-281/98 Angonese § 42 [ 16 ]. C-47/74 Van Duyn §§ 5-7 [ 17 ]. What is now A. 45 TFEU and Council dir. No 64/221 of 25 Feb. 1964 Article 3 [ 18 ]. C-47/74 Van Duyn § 13 [ 19 ]. C-47/74 Van Duyn § 10 and § 13 [ 20 ]. C-47/74 Van Duyn § 18 [ 21 ]. C-47/74 Van Duyn §§ 19-21 [ 22 ]. C-47/74 Van Duyn § 19 [ 23 ]. C-47/74 Van Duyn § 17 [ 24 ]. C-212/97 Centros §§ 3-11 [ 25 ]. C-212/97 Centros § 18 [ 26 ]. C-112/00 Schmidberger § 80 [ 27 ]. http://www. eucaselaw. info/schmidberger-2003/ [ 28 ]. C-265/95 Commission v France