Eu Internal Market Law Essay

1340 WordsFeb 22, 20146 Pages
EU Internal Market Law Lecturers Prof Gaetano Vitellino Prof Andrea Santini Dr Sara Bernasconi Lecture No 6 Prof Gaetano Vitellino Understanding freedoms of movement The proposed method: A three steps analysis ISSUE 3: DEROGATIONS FROM AND JUSTIFICATION OF OBSTACLES TO FREE MOVEMENT 1) Grounds of derogation expressly provided for by the TFEU  they apply both to discriminatory and non-discriminatory measures 2) Grounds of justification under the case-law (mandatory requirements in the general interests)  they only apply to non-discriminatory measures 1. GROUNDS OF DEROGATION LAID DOWN IN THE TFEU A closed (exhaustive) list of exceptions to free movement principles which must be interpreted strictly: i) Free movement of goods: Art 36 ii) Freedom of establishment: Arts 51 and 52 iii) Free movement of services: Arts 51 and 52, referred to by Art. 62 («The provisions of Articles 51 to 54 shall apply to the matters covered by this Chapter») Conditions to be met 1) 2) 3) Absence of harmonised rules at EU level (it is for each MS to determine its own standards of protection) No arbitrary discrimination or disguised restriction on trade (Art 36, in fine: «Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between MSs») Necessity and proportionnality (national measures are not justified if they are more restrictive on free trade than necessary) Free movement of goods (Art 36 TFEU) Quantitative restrictions and directly discriminatory measures may only be justified on the following grounds: i) public morality, public policy or public security; ii) protection of health and life of humans, animals or plants; iii) protection of national treasures possessing artistic, historic or archaeological value; iv) protection of industrial and commercial

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