Part III
European Law: Substance
Content
1.
Free Movement of Workers
2.
Freedom of Establishment
3.
European Citizenship: A General Right to Move?
4.
Justifying Restrictions on (Self-)Employed Persons
Apart from goods, the EU Treaties also aim to guarantee the free movement of persons. This constitutional choice for an internal ‘market’ in person was originally informed by an economic rationale. For the second fundamental freedom had been created to assist people wishing to work in another Member State and was consequently confined to economically active persons.
The Treaties thereby distinguished between two classes of economic migrants, namely employed and self-employed persons; and today’s Treaty title dealing with persons still addresses ‘Workers’ and the ‘Right of Establishment’ in two separate chapters. Each of the two chapters thereby contains a central prohibition that outlaws restrictions to the free movement of persons and which covers both ‘import’ restrictions as well as ‘export’ restrictions that persons may face when wishing to move from one State to another. Both chapters also contain a number of harmonization competences for the Union. These competences have been widely exercised in the past; and for this reason, European law on the free movement of persons is a rich mixture of primary and secondary law.
With the 1992 Maastricht Treaty, the two special chapters on persons were complemented by the general rules on EU citizenship; and the introduction of EU citizenship partially cut the economic link that was traditionally required for EU free movement rights. Article 20 TFEU now grants every European citizen the ‘right to move and reside freely within the territory of the Member States’. This general movement right is a residual right: it must ‘be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder’. And, unsurprisingly, there has therefore been a complex relationship between the two specific sources of free movement rights and the EU citizenship provisions (Table 11.1). Their symbiotic relationship is particularly embodied in the ‘Citizenship Directive’.
This chapter explores the complex constitutional arrangements governing the free movement of persons in four sections. Sections 1 and 2 analyse the two special free movement rights for economically active persons, that is: workers and the self-employed. Section 3 investigates the general free movement rights granted to all European citizens. Finally, Section 4 explores the possible justifications for Member State restrictions on the free movement of persons.
Cases
Figures
Extra Materials
Useful videos
Useful websites
Further Reading
C. Barnard, The Substantive Law of the EU: The Four Freedoms (Oxford University Press, 2013)
L. Daniele, ‘Non-discriminatory Restrictions to the Free Movement of Persons’ (1997) 22 EL Rev 191
M. Dougan, ‘The Constitutional Dimension to the Case Law on Union Citizenship’ (2006) 31 EL Rev 613
J. Shaw, The Transformation of Citizenship in the European Union (Cambridge University Press, 2007)
E. Spaventa, Free Movement of Persons in the European Union: Barriers to Movement in their Constitutional Context (Kluwer, 2007)
E. Spaventa, ‘From “Gebhard” to “Carpenter”: Towards a (Non-)economic European Constitution’ (2004) 41 CML Rev 743
A. Tryfonidou, ‘In Search of the Aim of the EC Free Movement of Person Provisions: Has the Court of Justice Missed the Point?’ (2009) 46 CML Rev 1591
F. Weiss and C. Kaupa, European Union Internal Market Law (Cambridge University Press, 2014)
Content
1.
Past: Britain as an ‘Awkward Partner’?
2.
Present: Withdrawing under Article 50 TEU
3.
Future I: (Possible) Trade Agreements with the Union
4.
Future II: A ‘Hard’ Brexit and the ‘WTO Model’
The British exit from the European Union (‘Brexit’) has occupied the Union for much of the last four years. For the first time since its founding, a Member States decided to deliberately dissociate itself from European integration in an attempt to regain sovereignty and independence.
Why and how did this happen; and may it happen to other Member States of the Union? With several severe crises afflicting the Union in the past decade—especially the financial and the migration crises—the question of whether Brexit constitutes an isolated case or a signal for an era of European disintegration has legitimately been posed.
This chapter, however, seeks to pursue a less ambitious task: it aims to explore the past, present, and future of the British exit decision. Section 1 begins by offering a brief historical overview of the past tensions between the United Kingdom and the European Union in an attempt to better explain the ‘special’ unease with which the United Kingdom viewed European integration. A former imperial and global power, its political self-understanding indeed differed from the very beginning from that of other Member States. Section 2 explores the ‘present’ withdrawal process under Article 50 TEU and the ‘Withdrawal Agreement’. Section 3 tries to look into the future by analysing four possible EU-UK trade relationship options. Will both parties decide to create a common customs union or will they conclude a ‘Canada Plus’ agreement? A future trade deal is currently being negotiated; yet the option of a ‘hard Brexit’ remains. This option is discussed in Section 4.
Figures
Content
1.
The “Market”: Product and Geographic Dimensions
3
1. The “Market”: Product and Geographic Dimensions 3
2.
Market Dominance
5
2. Market Dominance 5
(a) General Considerations
5
(b) Collective Dominance
8
3.
Abuse of Market Dominance
10
3. Abuse of Market Dominance 10
(a) Article 102 [2] (a) and “predatory pricing”
(a) Article 102 [2] (a) and “predatory pricing” 12
12
(b) Article 102 [2] (b) and “refusal to supply”
(b) Article 102 [2] (b) and “refusal to supply” 14
14
(c) Article 102 [2] (c) and “discretionary pricing”
(c) Article 102 [2] (c) and “discretionary pricing” 16
16
(d) Article 102 [2] (d) and “tying or bundling”
(d) Article 102 [2] (d) and “tying or bundling” 18
18
4.
Objective Justification: Apparently Abusive Behaviour?
20
4. Objective Justification: Apparently Abusive Behaviour? 20
The second pillar of EU competition law focuses on the – bad – behaviour of a single undertaking. For Article 102 does not require the collusive behaviour of two or more economic actors. It sanctions the unilateral behaviour of a dominant undertaking where this behaviour amounts to a “market abuse”. The provision states:
Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States. Such abuse may, in particular, consist in:
(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
(b) limiting production, markets or technical development to the prejudice of consumers;
(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
Article 102 encapsulates a number of fundamental choices with regard to the Union’s economic constitution. For by concentrating on a “dominant position within the internal market”, it goes beyond pure monopolies and is thus wider than its American counterpart.1 But by insisting on market abuse, it is also narrower than the American equivalent. For unlike the latter, Article 102 will not directly outlaw market structures. Dominance is not itself prohibited – only the abuse of a dominant position.
Like Article 101, the prohibition of market abuse will however only apply where an abusive behaviour “may affect trade between Member States”. Yet when this abuse is shown to have Union-wide effects it appears to be prohibited as such. For Article 102 has – unlike Article 101 – no “third paragraph” exempting abusive behaviour on the ground of its pro-competitive effects.
In sum: a violation of Article 102 implies the satisfaction of only three criteria. First, we must establish what the “market” is in which the undertaking operates. Second, the undertaking must be “dominant” within that market. And third, the undertaking must have “abused” its dominance.4 All three aspects will be discussed below (a–c). Finally, we will analyse whether the Union legal order has – despite the absence of an express exemption – allowed for “objective justifications” of abusive conduct (d).
Chapter "Competition Law II: Abuse"
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