Four Freedoms (European Union): Wikis

  
  

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In European Union law, the Four Freedoms is a common term for a set of treaty provisions, secondary legislation and court decisions, protecting the ability of goods, capital, services, people and labour to move freely within the internal market of the European Union. More precisely, they are:

  • The free movement of goods;
  • The free movement of capital;
  • The free movement of services;
  • The free movement of persons;

(see also Citizenship of the European Union, including freedom of establishment (see also Directive 2004/38/EC on the right to move and reside freely) and free movement of workers.)

These four freedoms form part of the substantive law of the EU. Although it is not easy to summarize compactly the activities of the European Union, one can define them as the free flow of economic factors, in pursuit of greater prosperity of the states and their citizens. The law of the Single Market plays a key role there by removing the barriers that member states might otherwise impose on trade originating in other member states.

The four freedoms are fundamental to the common market. Not only goods, but also factors of production can move freely between member states. The single market is intended to be conducive to increased competition, increased specialisation and larger economies of scale. Further, the common market allows goods and factors of production to move to the area where they are most valued, thus improving the efficiency of the allocation of resources.

Article 18 of the Treaty on the Functioning of the European Union (TFEU) prohibits discrimination on the basis of nationality and is one of its fundamental provisions. However, on its own it would not suffice to ensure free movement of factors of productions for the simple reason that not all barriers discriminate. For instance, a prohibition on discrimination would make illegal any measure in State A imposing a total ban or a quota on, say, toys from State B. But that provision would not prevent a measure that mandates that all toys sold in State B be packaged in recyclable material, even if such measure can in practice act as a ban or at least make the export of toys to State B more expensive. This difficulty has largely been eliminated in EU law through the concept known as “home country control”. According to this, a product or a service is allowed to access markets of other member states if it has lawfully been made/provided in the state of origin (Home State). Host State rules that present a barrier to this movement will be illegal unless justified by a set of specifically provided rules in the TFEU.

Contents

Free movement of goods

Customs duties and taxation

The European Union is a customs union. This means that member states have removed customs barriers between themselves and introduced a common customs policy towards other countries. The overall purpose of the duties is "to ensure normal conditions of competition and to remove all restrictions of a fiscal nature capable of hindering the free movement of goods within the Common Market" (Case 27/67 Fink-Frucht).

Customs duties

Article 30 TFEU prohibits member states from levying any duties on goods crossing a border, both goods produced within the EU and those produced outside. Once a good has been imported into the EU from a third country and the appropriate customs duty paid, Article 29 TFEU dictates that it shall then be considered to be in free circulation between the member states.

Neither the purpose of the charge, nor its name in domestic law, is relevant (Case 7/68 Commission v Italy).

Since the Single European Act, there can be no systematic customs controls at the borders of member states. The emphasis is on post-import audit controls and risk analysis. Physical controls of imports and exports now occur at traders' premises, rather than at the territorial borders.

Charges having equivalent effect to customs duties

Article 30 of the TFEU prohibits not only customs duties but also charges having equivalent effect. The European Court of Justice defined charge having equivalent effect in Case 24/68 Commission v Italy.

[A]ny pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect... even if it is not imposed for the benefit of the state, is not discriminatory or protective in effect and if the product on which the charge is imposed is not in competition with any domestic product. (Case 24/68 Commission v Italy)

A charge is a customs duty if it is proportionate to the value of the goods; if it is proportionate to the quantity, it is a charge having equivalent effect to a customs duty (Case 87/75 Bresciani v Amministrazione Italiana delle Finanze).

There are three exceptions to the prohibition on charges imposed when goods cross a border, listed in Case 18/87 Commission v Germany. A charge is not a customs duty of measure having equivalent effect if:

  • it relates to a general system of internal dues applied systematically and in accordance with the same criteria to domestic products and imported products alike (Case 132/78 Denkavit v France),
  • if it constitutes payment for a service in fact rendered to the economic operator of a sum in proportion to the service (Case 158/82 Commission v Denmark), or
  • subject to certain conditions, if it attaches to inspections carried out to fulfil obligations imposed by Community law (Case 46/76 Bauhuis v Netherlands).

Taxation

Article 110 of the TFEU provides:

No Member State shall impose, directly or indirectly, on the products of other member states any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products.
Furthermore, no Member State shall impose on the products of other member states any internal taxation of such a nature as to afford indirect protection to other products.

In Case 323/87 Commission v Italy (Taxation of rum), 1989 ECR 2275 . the ECJ stated:

The Court has consistently held that the purpose of Article 95 [now Article 110], as a whole, is to ensure the free movement of goods between the member states under normal conditions of competition, by eliminating all forms of protection which might result from the application of discriminatory internal taxation against products from other member states, and to guarantee absolute neutrality of internal taxation as regards competition between domestic and imported products (see the judgment of 9 July 1987 in Case 356/85 Commission v Belgium (Taxation of Wine and Beer), 1987 ECR 3299 .).

Quantitative restrictions and measures having equivalent effect

In addition to prohibiting customs duties and discriminatory taxes, the TFEU, in Article 34, prohibits quotas and “measures having equivalent effect”. But what are measures having equivalent effect and how do they affect trade between member states? The Treaty does not answer these questions and European Court of Justice has over several decades provided detailed case law interpreting Article 34. In a well-known series of cases beginning with case 8/74 Dassonville, continuing with case 120/78 Cassis de Dijon and culminating in C-267/91 Keck and Mithouard, the Court has said that discriminatory and non-discriminatory rules of member states (therefore not actions of private corporations or individuals) that hinder trade shall be illegal.

Directly discriminatory rules

Directly discriminatory rules distinguish between national and imported goods in law and in fact. A prohibition of imports imposed by state A on goods from state B is directly discriminatory but restrictions do not have to take the shape of prohibitions or quotas. A Member State can lead advertising and promoting campaigns that favours domestic products, or it can impose higher prices or more stringent conditions (such as health inspections) on imported goods. The key to discrimination is that domestic products are not subject to the added difficulties, and are therefore put at an advantage.

Indirectly discriminatory rules

Indirectly discriminatory rules that hinder trade do not distinguish in law but do so in fact. They impose a higher burden on the importer due to additional work it has to complete to make the product marketable. Although in law the rules apply equally to domestic producers and importers, in reality the burden is born by importers, the domestic producers already complying with the rules. If, in addition, the product is marketed in a number of member states, the exporter from state A might be subject to as many different regimes as there are countries into which he is hoping to import.

For example, a (fictitious) law in state A is that alcoholic drinks of a particular kind must not contain more than 20% alcohol. Producer from state B makes and regularly exports drinks which contain 25% alcohol. Law in state A applies to all those who wish to market the alcoholic drinks in question – whether they are domestic in origin or foreign. In that respect, in law, they do not discriminate. On the other hand, as a result of their presence, a legally marketed drink from state B either has to be modified and its alcohol contents reduced to only 20% or must be absent from market of state A altogether. EU law, under the circumstances mentioned in the previous paragraph, prohibits this kind of distinction: although the law appears to treat all parties equally, in fact domestic producers are favoured.

Product requirements and certain selling arrangements

Naturally, allegations can be made against any rule that inconveniences the trader, and this includes a very large number of rules. Therefore, in the last of the mentioned cases, Keck, and those that followed it, the Court decided that only rules relating to product requirements (shape, size, colour, etc.) should be illegal, while those relating to selling arrangements (opening hours, staff training requirements, etc.) will mostly not be. The division was an attempt to limit the number of cases to only those situations where, in the absence of discrimination, there is real danger of importer suffering the presence of dual burden.

Justification

Under certain circumstances, member states whose rules have been disapplied may defend them. For rules that discriminate, a defence will be possible under Article 36 which mentions, among other things, public health or public morality. For example, a restriction of import of meat from certain countries will be legal if it has clear medical grounds. A restriction of importation of pornographic material may be justified if such material is normally not available in the said Member State. Non-discriminatory rules may be justified not only by reference to Article 30 but also to a Court-made list of exceptions which were first set out in the Cassis de Dijon case (Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein).

Free movement of capital

Capital within the EU may be transferred in any amount from one country to another. All intra-EU transfers in euro are considered as domestic payments and bear the corresponding domestic transfer costs.[1] This includes all member States of the EU, even those outside the Eurozone providing the transactions are carried out in euro.[2] Credit/debit card charging and ATM withdrawals within the Eurozone are also charged as domestic, however paper-based payment orders, like cheques, have not been standardised so these are still domestic-based. The ECB has also set up a clearing system, TARGET, for large euro transactions.[3]

Free movement of services

The Free Movement of Services is established in Article 56 TFEU, with further guidance in Article 57 – 62 TFEU. Exceptions are found in Articles 51-55 TFEU (common with Freedom of Establishment). The freedom prohibits restrictions on free circulation of services within Member States. Services are defined in the negative, “they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.” (Art. 57 TFEU)

The services are distinguished from freedom of establishment based on their temporary rather than permanent nature and from free movement of workers based on the fact that the freedom affects corporate entities and individuals outside of the relationship of employment. Chapter 3 of Title IV applies to services as long as either the service moves across the border, or the provider moves or the service itself moves (e.g. an internet purchase).

The freedom to provide services is directly effective, meaning that member states must ensure that national laws do not conflict with the provisions.[4]. The Court has recognized that the obstacles to freedom to provide services may arise both from discriminatory and indistinctly applicable rules.[5]

Two directives are also of particular relevance - the Posting of Workers Directive, sometimes referred to as the Posted Workers Directive[6], and the Directive on services in the internal market[7].

2009 Lincolnshire Oil Refinery Debate

The subject of free movement of services and the posting of workers directive was brought to particular prominence in early 2009 in the UK in relation to the provision of services to a Lincolnshire oil refinery. A service provider from a member state brought with them their own workers, arguably at the expense of potential employment opportunities for UK workers. This led to the 2009 Lindsey Oil Refinery strikes.

Professor Michelle Everson[8] of Birkbeck, University of London, writing to the Guardian [9] noted the possible conflict between Article 56 TFEU and Article 45 TFEU in light of decisions of the European Court of Justice. The decisions in question, ruling in relation to the Posting of Workers Directive meant that service providers only have to adhere to the essentials such as minimum pay and health & safety under Article 56, whereas established organisations are required, under Article 45 TFEU, to comply with other matters, such as collective bargaining agreements.

In the UK example cited above, it might have been difficult for the company in question to compete with their UK counterparts had they not been able to utilise their own workforce when tendering for the project. Prime Minister Gordon Brown made this observation when warning against protectionism during the debate surrounding the issue, stressing that the UK was part of a "single European market"[10].

Freedom of movement and establishment for EU citizens and workers

Free movement rights for EU citizens

Following the Maastricht Treaty, the rights of economically-active persons to free movement within the EU have been complemented by limited rights for non-economically-active citizens to move freely within the EU, under Article 20 (1) of the TFEU and Directive 2004/38/EC on the right to move and reside freely within the EU.

Free establishment rights for EU citizens

The principle of the freedom of establishment has a basis in Articles 49-55 of the TFEU. To better understand the freedom of establishment, Article 49 and Article 54 tend to be read together[11]. According to Article 49 "...restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited.... Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 54..." This second paragraph defines 'companies or firms' as "...companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making." The right of establishment, therefore, is granted both to natural and legal persons. (Case C-70/95 Sodemare at para. 26).

The principle has been broadly interpreted by the European Court of Justice. However, its restrictions have been narrowly and literally interpreted. For example, in the case of Reyners, the European Court of Justice held that "...the exceptions allowed by the first paragraph ... cannot be given a scope which would exceed the objective for which this exemption clause was inserted." (Case 2/74 Reyners v. Belgium at para. 43). The teeth of this principle is that natural persons, who are nationals of a Member State, and Community companies may take up economic activity in any Member State in a stable and continuous way[12] and cannot be discriminated against based on nationality[13] or the mode of incorporation[14]. (See also: Directive 2004/38/EC on the right to move and reside freely)

Free movement of EU workers

Broadly defined, this freedom enables citizens of one Member State to travel to another to work there (permanently or temporarily). The idea behind EU legislation in this field is that citizens from other member states should be treated equally with domestic ones – they should not be discriminated against.

The main provision of the freedom of movement of persons is Article 45 of the TFEU that prohibits restrictions on the basis of nationality.

Workers have the right to move to a different Member State, to look for work and be employed under the same conditions as nationals of that State (subject to a number of reserved areas greatly varying according to country: this means in many instances nationals of country a) exercising a profession in country b) the equivalent of which a national of country b) would not be authorised to exercise in country a)),number and benefit from the same social and tax advantages. This right has been extended by the Court of Justice to family members that accompany the worker, although they derive their rights from the main holder. Family members from non-EU states also have these rights. To claim these rights, family members must complete specific paperwork. In the United Kingdom, for example, the relevant document is the EEA family permit.

Free trade and markets in labour services is an essential component of economic freedom generally. National statutory minimum wage control is one of the major remaining official barriers to the establishment of a free common or single European labour market. Statutory minimum wage control or wage fixing has been criticised as:

  • a special form of tariff protectionism that excludes low cost competitors from the labour market;
  • a breach of the anti-slavery clause in the European Convention on Human Rights—insofar as any authority that dictates minimum prices at which persons must sell their own labour services is effectively exercising economic ownership and control over those persons; and
  • indirectly discriminatory. That is to say, while national minimum wage fixing schemes prevent low skill/low productivity workers in general from obtaining employment by selling their services below the official rate, they particularly act against young persons, women, and ethnic and cultural minorities seeking work.[15]

The fifth freedom: free movement of knowledge

Since 2007, the European Commission has started to advocate making the free movement of knowledge the fifth freedom, in addition to the established Four Freedoms[16].

Positive and negative integration

The law of the Single Market relies on two processes of integration. The first process is negative and consists of prohibitions imposed on member states of discriminatory behaviour and other restrictive practices. The four freedoms mainly, but not exclusively, rely on this approach. There are other examples in the Treaty where it is utilized (e.g. prohibition on State Aid in Article 87). The second process is positive and consists in approximation of laws and standards. Especially important (and controversial) in this respect is the adoption of harmonizing legislation under Article 114 of the TFEU.

Prior to the Delors Commission's reforms

Prior to the Delors Commission's reforms, harmonising directives had been very detailed. The process for passing such directives was slow and cumbersome, particularly since unanimity was required.

Following the Delors Commission's reforms

In the 1980s, the Delors Commission took the single market as the major goal of the Presidency. The Commission produced a White Paper which was well received and led to the adoption of the Single European Act. The new approach combined positive and negative integration, relying upon minimum rather than exhaustive harmonisation. The Commission relied upon the European Court of Justice's Cassis de Dijon (Case 120/78) jurisprudence, under which member states were obliged to recognise goods which had been legally produced in another Member State, unless the Member State could justify the restriction by reference to a mandatory requirement. Harmonisation would only be used to overcome barriers created by trade restrictions which survived the Cassis mandatory requirements test, and to ensure essential standards where there was a risk of a race to the bottom. Thus harmonisation was largely used to ensure basic health and safety standards were met.

Further reading

  • Barnard, Catherine (2007). The Substantive Law of the EU: The Four Freedoms (2nd ed.). Oxford, New York: Oxford University Press. ISBN 978-0199298396.  
  • Chalmers, D., et al. (2006). European Union Law: Text and Materials (1st ed.). New York: Cambridge University Press. ISBN 978-0-521-82041-7.  
  • Craig, P., de Búrca, C. (2007). EU Law: Text, Cases and Materials (4th ed.). Oxford, New York: Oxford University Press. ISBN 0199273898.  
  • Hartley, Trevor C. (2007). The Foundations of European Community Law (6th ed.). Oxford, New York: Oxford University Press. ISBN 0199290350.  
  • Easson (1980). "The Spirits, Wine and Beer Judgments: A Legal Mickey Finn?". European Law Review 5: 318.  
  • Easson (1984). "Cheaper wine or Dearer Beer?”". European Law Review 9: 57.  
  • Hedemann-Robinson (1995). "Indirect Discrimination: Article 95(1) EC Back to Front and Inside Out". European Public Law 1: 439.  
  • Danusso and Denton (1990). "Does the European Court of Justice Look for a Protectionist Motive under Article 95?". Legal Issues in European Integration 1: 67.  
  • Vaughan, David, Robertson, Aidan (eds) (2003 (looseleaf since)). Law of the European Union. Oxford, New York: Oxford University Press. ISBN 978-1-904501-11-4.  
  • Gormley, Laurence W (2008). "Silver Threads among the Gold: 50 years of the free movement of goods". Fordham International Law Journal 31: 601.  

References

  1. ^ "Regulation (EC) No 2560/2001 of the European Parliament and of the Council of 19 December 2001 on cross-border payments in euro". EUR-lex - European Communities, Publications office, Official Journal L 344 , 28/12/2001 P. 0013 - 0016. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001R2560:EN:HTML. Retrieved 26 December 2008.  
  2. ^ "Cross border payments in the EU, Euro Information, The Official Treasury Euro Resource". United Kingdom Treasury. http://www.euro.gov.uk/crossborder.asp. Retrieved 26 December 2008.  
  3. ^ the European Central Bank. "TARGET". http://www.ecb.int/paym/target/html/index.en.html. Retrieved 25 October 2007.  
  4. ^ See C-22/74 Van Binsbergen.
  5. ^ See C-76/90 Sägers.
  6. ^ Directive 96/71/EC
  7. ^ Directive 2006/123/EC
  8. ^ http://www.bbk.ac.uk/law/about/ft-academic/everson/biog
  9. ^ http://www.guardian.co.uk/politics/2009/feb/03/uk-labour-strikes
  10. ^ http://www.telegraph.co.uk/news/newstopics/politics/4422253/Gordon-Brown-condemns-wildcat-oil-refinery-strikes.html
  11. ^ Steiner & Woods, Textbook on EC Law, 7th ed., (Blackstone Press, 2000), pp.336-337
  12. ^ Case 55/94 Gebhard [1995] ECR I-4165 para. 25, [1] and 2/74 Reyners v. Belgium [1974] ECR 631 para. 21 [2]
  13. ^ Article 49 TFEU
  14. ^ Article 49 TFEU in connection with Article 54 TFEU
  15. ^ Statutory Minimum Wage Controls: A Critical Review of their Effects on Labour Markets, Employment, and Incomes, ISR/Google Books, 2008. ISBN 978-0-906321-22-5. Page 2. [3]
  16. ^ Cordis News (2007-04-05): Make 'knowledge' a fifth Community freedom, says Potocnik at Green Paper launch.

See also

External links








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