The Internal Market as a Legal Concept (Collected Courses of the Academy of European Law)

What does the 'internal market' mean? The EU is committed to the construction of an internal market, and in this analysis Stephen Weatherill explains that the EU's internal market is an ambiguous legal concept. One may readily suppose that the United Kingdom possesses an internal market. So does Germany, so does France, so does Australia, and Canada, and the United States of America. The European Union aspires to an internal market, but the detailed patterns governing these several internal markets are not uniform; in fact they vary according to the extent to which the constituent units are permitted to pursue different regulatory policies. They vary according to the scope of law-making competence and powers allocated to the central authority. They vary according to the governing institutional (judicial and political) arrangements. The quality and intensity of the regulated environment varies according to the choices made. There is a broad band of possible internal markets, ranging from one that is radically decentralized as a result of a choice in favour of unrestricted inter-jurisdictional competition to, at the other extreme, one that is radically centralized in the sense that law-making competence has been completely stripped away from the constituent units in favour of the central authority. Within that spectrum there is a huge range of options. In this inquiry into the limits and ambiguities of the internal market as a legal concept, Weatherill examines and explains the choices made by the EU and demonstrates what they entail for the shape of the EU's internal market. This book is not about 'Brexit', but it shows that one of the claims commonly made by Brexiteers - that the internal market can be confined merely to a deregulatory exercise in free market economics - has no support whatsoever in either EU constitutional law or in EU legislative and judicial practice -- Flap of cover Cover The Internal Market as aLegal Concept Copyright Preface Contents Table of Cases Table of Legislation Directives Regulation Council Decisions Table of European Union and International Instruments Chapter 1: The Internal Market as a Legal Concept A. The ‘Internal Market’ as an Ambiguous Legal Concept Chapter 2: Finding the Internal Market in the Treaty A. The Concept of the ‘Internal Market’ Empowers the EU – but Not Without Limits B. Control and Testing – Negative Law C. EU Legislative Action – Positive Law D. The Decorative Chapter 3: The Law, Politics and Economics of the Internal Market A. The Treaty of Rome B. The Single European Act and the Political Bargain C. The Treaty of Lisbon and the Political Bargain D. The Economics of the Internal Market E. The Internal Market beyond Economics Alone Chapter 4: Principal Themes and Structure Chapter 5: The Internal Market A. The Breadth of the Market as a Legal Concept B. The Limits of the ‘Market’ C. The Internal Market as a Concept Which Takes the Scope of Negative Law beyond That of Positive Law Chapter 6: The Internal Market A. Limits, What Limits? 1. Early Years, Easy Years 2. Dassonville 3. Cassis de Dijon 4. Competition Law B. Where Do the Limits Lie? C. Mis-steps and Re-sets 1. Sunday Trading 2. The Readjustments 3. Services 4. Adjusting the Readjustment 5. Restrictions on Use 6. Concluding Comments D. People and Citizens 1. Remoteness 2. People and Families 3. Citizenship Too E. State Aid 1. Aid Must Be Granted ‘Granted Directly or Indirectly Through State Resources 2. Selectivity 3. Making Connections and Re-Shaping Lines F. Conclusion: The Limits of the Internal Market Chapter 7: The Personal Scope Chapter 8: Justification A. Structure B. Principles C. Breadth 1. Breadth – Free Movement Law 2. Breadth – Competition Law D. Public Health E. Environmental Protection F. Protection of the Economic Interests of Consumers Chapter 9: Creativity in the Gap between Negative and Positive Law: The Principle of Conferral Unleashed A. Sport as a Case Study B. Collective Labour Action as a Case Study C. Justification and Sensitivity Chapter 10: Abuse Chapter 11: Fundamental Rights and National Identityin the Internal Market A. Early Years, Early Cases B. Schmidberger and Omega C. National Identity Chapter 12: The Internal Market as a Site of Diversity Chapter 13: The Legislative Dimension: Harmonization A. The Nature and Purpose of Harmonization B. Article 114 – an Instrument of Re-regulation C. Constitutional Commitments to Re-regulation D. Judicial Review and Re-regulation 1. Judicial Review of Inadequate Standards 2. Judicial Review of Over-regulation 3. Judicial Interpretation of the Harmonized Legislative Acquis E. The Permissibility of Prohibition F. Legislative Practice and Re-regulation G. The Limits of Harmonization 1. The Slow Road to Emergence of ‘Competence Sensitivity’ 2. The Single European Act and Tobacco Advertising I 3. The Subsequent Case Law 4. Limits, What Limits? H. Subsidiarity and Proportionality 1. Subsidiarity 2. Proportionality 3. Political Controls Chapter 14: Legislative Competence More Broadly A. The Wide Sweep B. Labour Market Regulation and Social Policy 1. Defrenne 2. Policy Choices 3. From the Treaty of Rome to the Single European Act 4. From the Single European Act via Maastricht to the Treaty of Amsterdam 5. The Lisbon Strategy and Europe 2020 C. EU Social Policy Today 1. Spontaneous Alignment 2. Legislation on Social Policy 3. Approximation/Harmonization D. Social Policy – the Current Debate E. Social Policy – the Continuing Debate Chapter 15: Pre-emption A. The Directions Contained in the Treaty B. Legislative Practice C. The Sources of Pressure on the Model of Minimum Harmonization 1. The Court of Justice 2. The Commission’s Attack on ‘Minimum Harmonization’ D. Normative Perspectives on the Choice betweenModels of Harmonization Chapter 16: Conclusion A. Ambiguity and Limits B. Limits and Lines C. Lines and Choices D. Choices and Empowerment E. Empowerment and Ambiguity Index