Critically assess the extent to which the Court of Justice of the European Union, through its interpretation of EU law, has struck an appropriate balance between the need to respect single market objectives and also accommodate national interests of indiv

Résumé du document

European integration was always conveyed by economic motives. The European Coal and Steel Community, the European Economic Community, and the European Union (EU) were founded by economic interests. Since the European Union is a sui generis organisation and is also founded by the law, those economic interests needed to be formalized. Therefore, four freedoms for guarantee the single market were designed. The freedom of movement of goods, capitals, persons and the freedom of establishment are those four freedoms. Nowadays, those freedoms are the foundations of EU law, and they are in the Treaty of Lisbon, in the Charter of Fundamental Rights or the jurisprudence of the European Union Court of Justice (EUCJ).

But how should we define the freedom of establishment? Catherine Barnard encapsulates the freedom of establishment in the EU context as “the right to take or to pursuit activities in another member State without discrimination ”. This definition highlights how the freedom of establishment is fundamental for completing the internal market. In the Treaty of Lisbon, several articles are about the freedom of establishment in the TFUE – Title IV “Freedom of persons, services and capitals” – Chapter 2 “the freedom of establishment” (articles 49-55).

This illustrates how the right to pursuit activities in another member State is totally integrated in EU law, politics and policies. It concerns the free movement of services, the free movement of workers, companies and individuals. From an economic perspective, services are fundamental into the EU market. Indeed, services represent almost at the EU 80% of the working population. Completing the internal market is not only a matter of goods or capitals; it is also matter of “human capital”, services and workers.

Extraits

[...] On one hand, the European Commission (like the President of the Commission, José Manuel Baroso or the Commissioner for Internal Services Michel Barnier) and most of member States are advocating the EU should achieve social market economy” which implies at some point market regulation. On the other hand, fears of EU regulation from member States due to their national sovereignty are still important. Lately, in the autumn of 2012, member States like France, Germany, Spain or even the United-Kingdom took some actions against transnational firms like Amazon, Google or Starbucks because their taxes schemes were considered as “multiple tax evasion”. The issue was not about the right to establish their EU headquarters in Ireland where company taxes are very low. [...]

[...] Critically assess the extent to which the Court of Justice of the European Union, through its interpretation of EU law, has struck an appropriate balance between the need to respect single market objectives and also accommodate national interests of individual Member States, as foreseen by the EU's treaty provisions, with EU rules on the freedom of establishment Introduction European integration was always conveyed by economic motives. The European Coal and Steel Community, the European Economic Community, and the European Union were founded by economic interests. [...]

[...] We shall also notice that still under the TFUE, the internal market (therefore the freedom of establishment achievement) is a shared competence between member States and European institutions. Catherine Barnard distinguishes two main freedom of establishment. “Primary establishment” with TFUE articles 49 and 52-4. “Secondary” establishment is more about the right to create external branches, national agencies or bodies from another member States for a firm or a company. Those two components of the right to establishment of course can be mixed which can produce a complex jurisprudence. [...]

[...] Indeed, the Court does not have enough political leadership to achieve the aim of the free establishment, but since the EUCJ is not a genuine constitutional supreme court, this lack of true political leadership is normal. Another hurdle to understand fully the Court's concerning the freedom of establishment is the difference between companies and individuals. Bibliography BARNARD Catherine (2010), The substantive law of the EU The Four Freedoms (3rd edition), Oxford University Press FOSTER Nigel (2012), EU Treaties and Legislation 2012-2013, Oxford University Press SUPIOT Alain (2010), La declaration de Philadelphie BARNARD Catherine (2010), The substantive law of the EU The Four Freedoms (3rd edition), Oxford University Press, page 295 Jany and others v. [...]

[...] Indeed, this profession is attached to keep some restrictions from abroad because national laws are still very different from each other. Can English being considered as French or a German lawyer even if, the legal system between Common and civil law are very different? Traditions, procedures, the decision-making are not the same and some equivalences. But those equivalences need time and patience. For instance, still a few French law students studied the Common law system and procedures and this is probably the same for English students and the French administrative law. [...]