1. THE EU INTERNAL MARKET Michele Colucci E-mail:info@colucci.eu
Web site:
European College of Parma
Academic year

2. Article 3 TEU
- to promote economic and social progress and a high level of employment and
- to achieve balanced and sustainable development, in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union,
— to assert its identity on the international scene, in particular through the implementation of
a common foreign and security policy including the progressive framing of a common defence
policy
— to strengthen the protection of the rights and interests of the nationals of its Member States
through the introduction of a citizenship of the Union,
— to maintain and develop the Union as an area of freedom, security and justice, in which the
free movement of persons is assured in conjunction with appropriate measures with respect to
external border controls, asylum, immigration and the prevention and combating of crime,
— to maintain in full the acquis communautaire and build on it

3. EU as a Custom Union
Internal section - regulation of intra-Community trade:
Elimination of custom duties and charges;
Elimination of internal borders to facilitate four freedoms
External section - regulation of trade with third countries:
common custom tariffs;
common commercial policy.

4. The Fundamental Freedoms
1. Freedom of movement for persons
2. Freedom of movement for services
3. Freedom of movement for capitals
4. Freedom of movement for goods

5. EC TREATY AND EU CITIZENSHIP
Every person holding the nationality of a Member State shall be a citizen of the Union. (art. 20 TFEU).
Every citizen of the Union shall have the right to move and reside freely within the territory
of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.
(art. 21 TFEU).

6. FREE MOVEMENT OF WORKERS
Artt TFEU. Workers have the right to:
accept offers of employment actually made;
move freely within the territory of Member States for this purpose;
to stay in a Member State for the purpose of employment;
to remain in the territory of a Member State after having been employed in that State.

7. THE EC TREATY Self employed persons:
Right of establishment(artt TFEU) and
Freedom to provide services (artt TFEU):
the right to take up and pursue activities as self-employed persons and to set up and manage undertakings .

8. CASE LAW OF ECJ: evolution
Definition of «worker»:
A PERSON PERFORMS SERVICES OF SOME ECONOMIC VALUE FOR AND UNDER THE DIRECTION OF ANOTHER PERSON IN RETURN FOR WHICH HE RECEIVES REMUNERATION (Lawrie-Blum, C-66/85).
«Community meaning»(Unger, C-75/63).
Fundamental Principle: broad interpretation (Levin, C-53/81).
Exceptions and derogations: strict interpretation (Kempf,C-139/85).

9. EQUAL TREATMENT BAN ON “DIRECT” DISCRIMINATIONS
Art. 18 TFEU on the basis of nationality
Art. 45 TFEU:
Access to employment
Pay
Employment conditions
Association agreement, Co-operation agreement, and so on.
SPORT: Balog case, Simutenkov, case

10. « COVERT DISCRIMINATIONS »
NO « COVERT FORMS OF DISCRIMINATION” which, by the application of other criteria of differentiation, lead in fact to the same result . (cause 152/73 Sotgiu)
YES, only in case of « objective reasons »; proportionality test!

11. THE UEFA HOMEGROWN PLAYER RULE
Homegrown: player trained by a club for 3 years when he is between 15 and 21 years old
2006/ up to 25
2007/ up to 25
2008/ up to 25
No discrimination on the basis of nationality.

12. Reverse discrimination
“National law” v. “EU law”:
Different scope
different goals
EU Law does not apply to purely internal matters.

13. Discriminatory act and limit to free movement
ordinary legislation,
Collective bargaining agreements,
Regulations of private associations,(Bosman,
C-415/93): FIFA, UEFA,
Limits to free movement:
Public administration;
Public order and security
Public health

14. TERRITORIAL SCOPE
The EUROPEAN UNION: 27 Member States
the rule!

15. The case law of the ECJ
“Sport is subject to Community law in so far as it constitutes an economic activity within the meaning of Article 2 of the Treaty” .
Walrave case, C-36/74.
Donà v. Montero case, C- 13/76(nationality clause).
sports or economic activity?
C-51/96 Deliège case”, C-176/96, Lethonen case, Meca – Medina case(doping).

16. THE BOSMAN case cause C -415/93
DAVID v. GOLIAH!
Sport= economic activity= the end of transfer compensation
Quid training ?
The new FIFA regulations on Status and Transfer of Players

17. Freedom to provide services
EC DIRECTIVE 2006/123/EC
Goal is to achieve a genuine Internal Market in services
A framework directive applying to wide-range of services
Provisions on:
administrative simplification
freedom of establishment
freedom to provide services
quality of services
administrative co-operation

18. SCOPE Services Providers established in a MS
Any self-employed economic activity which is normally provided for remuneration
Providers established in a MS
a natural person who is a national of a MS
a legal person established in a MS
Certain provisions in the Directive relate to recipients
a natural person who is a national of a MS or who benefits from rights conferred upon him by Community acts
BUT….

19. ACTIVITIES NOT COVERED
Following activities are excluded from the scope:
non-economic services of general interest
financial services
electronic communication services and networks
transport services and port services
services of temporary work agencies
health care services
audiovisual and radio broadcasting services
gambling activities
activities which are connected with the exercise of official authority
certain social services
private security services
services provided by notaries and bailiffs

20. SIMPLIFICATION!!!!!
MSs are obliged to examine all procedures and formalities applicable to access to a service activity and to the exercise thereof and, if needed, simplify them
Points of single contact
Procedures by electronic means

21. FREEDOM OF ESTABLISHMENT
Actual pursuit of an economic activity for an indefinite period and through a stable infrastructure
Provisions relating to
authorisation schemes
forbidden requirements which must be abolished
requirements which must evaluated and in certain cases abolished or replaced by less restrictive means

22. Freedom to provide services
Characterised by the absence of a stable and continuous participation in the economic life of the host MS
MSs are obliged to abstain from imposing their own requirements on incoming service providers, except
where justified by reasons of public policy, public security, public health or the protection of environment
legislation in question is covered by derogations provided for in Article 17
case-by-case measures relating to the safety of services

23. Quality of services
Information on providers, their services and the settlement of disputes
Professional liability insurance and guarantees
Commercial communications by the regulated professions
Multidisciplinary activities

24. AUTHORISATION SCHEMES AND REQUIREMENTS
Authorisation schemes are allowed only on certain conditions
non-discriminative
the need for authorisation is justified by an overriding reason relating to the public interest
proportionality
Requirements are set for
conditions of the authorisations
the duration of the authorisations
authorisation procedures

25. FORBIDDEN REQUIREMENTS
nationality requirements for the provider, his staff, shareholders or members of the management or supervisory bodies
a requirement to be resident in the territory of that MS
a prohibition on having several establishments
restrictions on choosing between a principal or a secondary establishment or between different forms of secondary establishments

26. OTHER FORBIDDEN REQUIREMENTS
conditions of reciprocity
economic tests
the involvement of competing operators in the decisions of competent authorities
obligation to have financial guarantees or insurances from the MS in question
an obligation to have been previously registered or to have previously exercised the activity in the MSs in question

27. OTHER REQUIREMENTS Requirements subject to evaluation
quantitative or territorial restrictions
obligation for the service provider to take a specific legal form
requirements relating to the shareholding of companies
requirements reserving the provision of certain services to specific providers

28. OTHER REQUIREMENTS
bans on having more than one establishment in the territory of the same MS
obligations to have a minimum number of employees
obligations to apply fixed minimum or maximum tariffs
obligation on the provider to supply other specific services jointly with his service

29. FREE MOVEMENT OF CAPITALS
Conclusions of the Madrid European Council on 26 and 27 June 1989:
the Liberalization of Capital Movements Corresponds to the First Stage of Economic and Monetary Union .
Necessary to take Full Advantage of the Benefits of the Single Market.
But ...Possibility of:
Restrictions
Safeguard Measures (for security and foreign policy reasons

30. FREE MOVEMENT OF GOODS Article 26 TFEU:
The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market
The internal market shall comprise an area without internal frontiers, in which the free movement of goods, persons, services and capital is ensured in accordance with the Treaty

31. Obstacles to Inter-State Movement of Goods Recognized in the Treaty
Custom duties and charges having equivalent effect (Art TFEU): duties on border crossing and any other charges with equivalent effect
Discriminatory taxation (Art. 110 TFEU): taxes in excess of tax for similar domestic products
Quantitative restrictions on imports and exports (quotas) and all measures having equivalent effect (Art TFEU): MEE could be any public and private measure, including law, an internal regulation, decisions of a judge or a court, administrative rules and regulations giving discretion to discriminate (Irish Souvenirs case 249/81)

32. Quantitative Restrictions and MEE (Articles 34 and 35 TFEU)
Quantitative restrictions = explicit restrictions such as quotas
MEE = implicit restrictions such as a duty to obtain a licence to import or export
Procureur du Roi v. Dassonville (case 8/74):
All trading rules enacted by MS which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions [para. 5]
Rule of reason: In the absence of a Community system…if a MS takes measures to prevent unfair practices…it is subject to the condition that these measures should be reasonable… [para. 6]

33. Categories of Measures Possibly Caught in Violation of Art
Categories of Measures Possibly Caught in Violation of Art. 34 TFEU by the Dassonville Formula
1. Discriminatory measures on the ground of nationality
2. Indistinctly applicable measures: so-called product requirements, related to the production and marketing of goods that apply without distinction to both foreign and domestic goods but it is usually more burdensome for foreign companies/goods (Casis de Dijon case 120/78)
3. Selling arrangements: category created by Keck case C-267/91 related to socio-economic measures as to how goods should be sold (manner of sale)

34. Cassis Principles: 1. The Rule of Reason:
Certain measures, even if within Dassonville formula, will not breach Art. 34 TFEU if they are necessary (proportionality) to satisfy mandatory requirement (objective justification) relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer
2. Mutual Recognition:
There is no valid reason why, provided that goods have been lawfully produced and marketed in one MS, they should not be introduced into any other MS

35. Keck Proviso
Selling arrangements are excluded from Article 34 TFEU (Dassonville formula) as long as they affect in the same manner, in law and in fact, the sale of domestic products and of those from other MS [para. 16]

36. Exceptions to Free Movement of Goods
Public morality
Public policy
Public security
Protection of health and life of humans, animals or plants
Protection of national treasures possessing artistic, historic or archaeological value
Protection of industrial and commercial property

37. Some personal experience...
THE EU INTERNAL MARKET
MYTH OR REALITY?
Some personal experience...