Internal Market Derogations in Light of the Newly Binding Character of the EU
Charter of Fundamental Rights
The establishment of a common market, formerly prescribed by Arts. 2, 3 and 14 of the “Treaty establishing the European Community” (herein TEC), is one of the cornerstones of the European Union (herein EU) and is based upon the protection of four fundamental economic freedoms, i.e. the free movement of goods, persons, capital and the free provision of services. Such free movement provisions have played a pivotal role in the evolution of the EU and appear to have assumed what some consider to be a constitutional value in the EU legal order.1 To this end, the European Court of Justice (herein ECJ or EUCJ) has described them as “fundamental freedoms”,2 “fundamental principles of the Treaty”3 or even as “fundamental rights”.4 The weight ascribed to the liberal free-market principles by the constituting treaties and the ECJ has not limited the development of the EU. Onthe contrary, it is the creation of the internal market which kick started the European integration process, progressively leading the EU to be concerned with issues which go well beyond those traditionally associated with a purely economic community. Issues of identity, social values, and fundamental human rights have all come to the fore. Particularly interesting for the purposes of these papers are the ever increasing need for EU institutions, and above all the EUCJ, to reconcile fundamental rights with the fundamental freedoms set by the founding treaties.5 Despite appearances, until recently the underlying tendency, at least from a theoretical point of view, was to subordinate the former to the latter. This is apparent if one assesses the case-law of the Court of Justice in which, notwithstanding the development of a system of protection of fundamental rights, there is a general failure to bestow them with hierarchical priority, the internal market often being preferred. It is to such case-law that we shall turn our attention in the first part of these papers. On the other hand, the second part of these papers will reflect upon the effects that the entry into force of the Treaty of Lisbon may have on the relationship between the two mentioned interests. In this context, one may envisage that the transformation of the EU Charter of fundamental rights (herein the Charter or CFR) from a mere political declaration to binding primary law might grant constitutional force to fundamental rights, placing them on a par with the fundamental economic freedoms enshrined in the Treaty on the functioning of the European Union (herein TFEU). If such an assessment were to reveal itself as correct, potential conflicts between the interests in issue would need to be appraised in a manner substantially different from that currently reflected in the case-law of the ECJ.
The Internal Market and Fundamental Rights Pre-Lisbon
As is well known, the original treaties establishing the European Communities contained no specific reference to the protection of fundamental rights. It had not been envisaged that Community acts could be challenged on the basis of such interests and the main concern seemed to be the prevention of human rights violations by States,6 an aim openly pursued by the European Convention on Human Rights 1950 (herein ECHR).
Nevertheless, with the gradual expansion of Community competences and the general recognition of the supremacy of EC law7 it was not long before the undesirability of such a state of affairs became apparent. It is against this background that the Court proceeded to develop the concept of fundamental rights stating that their respect, whilst inspired by the constitutional traditions of member States, forms an integral part of the “general principles of law protected by the ECJ”.8 The Nold9 and Hauer10 judgments further affirmed that international treaties for the protection of human rights are sources of inspiration, highlighting the particular significance of the European Convention on Human Rights in this respect (express reference to such a text being made in Hauer).11Although the language used in the aforementioned cases evokes respect for fundamental rights, an in-depth analysis demonstrates that the ECJ was actually taking the steps necessary to avoid judicial review by national constitutional courts. It was the need to uphold the principle of supremacy and the need to guarantee the uniform application of EC law that persuaded community judges to refer to, and apply, fundamental rights.12
The “ancillary” attitude to the rights under discussion, however, is even more noticeable in the context of the internal market where the Court of justice has for decades clearly prioritised the fundamental economic freedoms. In line with editorial constraints, and keeping in mind the objective of the present article, the following paragraphs shall be devoted to a brief reconstruction of the relevant case-law.
1.See M. Poiares Maduro, ‘Striking the elusive balance between economic freedom and Social Rights in the EU’, in P. Alston, M. Bustelo and J. Heenan (eds.), The EU and Human Rights (Oxford University Press, 1999) 452. Also see M. Lindfelt, Fundamental Rights in the EU – Towards a higher Law of the Land? (Abo: Abo Akademi University Press, 2007) at 196.
2. Case C-286/06 Commission v. Spain  ECR I-8025.
3.Cf. Case C-49/98 Finalarte Sociedade de Construção Civil Ldª  ECR I-7831, para 31.
4. Certain authors have advanced the consideration that the fundamental economic freedoms can themselves be considered fundamental rights. See, for example, P. Oliver and W.-H. Roth, ‘The internal market and the four freedoms’, (2004) Common Market Law Review 41; A. Biondi, ‘Free trade, a mountain road and the right to protest: European economic freedoms and fundamental individual rights’,(2004) European Human Rights Law Review 1. Interesting considerations are also made by V. Skouris, ‘Fundamental rights and fundamental freedoms: The challenge of striking a delicate balance’, (2006) European Business Law Review 227.
5. There is certainly no lack of academic material on the subject matter. See, for example, T. Ackermann’s ‘Case-note on Omega’, (2005) 42 Common Market Law Review 1107; F.R. Agerbeek, ‘Freedom of expression and free movement in the Brenner corridor: The Schmidberger case’, (2004) 29 European Law Review 255; A. Alemanno, ‘Libertés fondamentales et droits fondamentaux’, (2004) 4 Revue du Droit de l’Union Européenne 731; M. Avbelj, ‘The European Court of Justice and the question of value choices’, Jean Monnet Working Paper 06/04, accessibe at www.jeanmonnetprogram.org.; A. Biondi, ‘Free trade, a mountain road and the right to protest: European economic freedoms and fundamental individual rights’, n. 4 above; M.K. Bulterman and H.R. Kranenbourg, ‘What if rules on free movement and human rights collide? About laser games and human dignity: The Omega case’, (2006) 31 European Law Review 93; C. Brown, ‘Case C-112/00, Eugen Schmidberger, Internationale Transporte und Planzüge v. Austria’, (2003) 40 Common Market Law Review 1499; R. Conti, ‘La Dignità Umana Dinanzi alla Corte di Giustizia’, (2005) 4 Corriere Giuridico 488; J. Coppel and A. O’Neill, ‘The European Court of Justice: taking rights seriously?’, (1992) 29 Common Market Law Review 669; G. Chu, ‘Playing at killing freedom of movement’, (2006) 33 Legal Issues of Economic Integration 85; G. Facenna, ‘Eugen Schmidberger: Freedom of expression and assembly vs. free movement of goods’, (2004) 1 European Human Rights Law Review 73; M. E. Gennusa, ‘La Dignità umana vista da Lussemburgo’, (2005) Quaderni Costituzionali 174; C. Kombos, ‘Fundamental rights and fundamental freedoms: A symbiosis on the basis of subsidiarity’, (2006) 12 European Public Law 433; J. Morijn, ‘Balancing fundamental rights and common market freedoms in Union Law: Schmidberger and Omega in light of the European Constitution’, (2006) 12 European Law Journal 15; M. Orlandi, ‘Libera circolazione delle merci e deroghe giustificate da esigenze di tutela dei diritti fondamentali’, (2003) Il Diritto dell’Unione Europea 903; E. Pellecchia, ‘Il caso Omega: La dignità Umana e il delicato rapporto tra diritti fondamentali e libertà fondamentali nel diritto comunitario’, (2007) 1 Europa e Diritto Privato 181; A. Rizzo, ‘Il problema della tutela dei diritti fondamentali nell’Unione Europea’, (2001) Europa e diritto privato 59; V. Skouris, ‘Fundamental rights and fundamental Freedoms: The challenge of striking a delicate balance’, n. 4 above; G. Tesauro, ‘I diritti fondamentali nella giurisprudenza della Corte di Giustizia’, (1992) Rivista Internazionale dei Diritti dell’uomo 426; A. Tizzano, ‘La protection des droits fondamentaux en Europe: la Cour de justice et les juridictions constitutionnelles nationales’, (2006) 1 Revue du Droit de l’Union Européenne 9.
6. See F.G. Jacobs, ‘Human Rights in the European Union: The role of the Court of Justice’, (2001) 26 European Law Review 331.
7. Case 6/64 Costa v. ENEL  ECR 585.
8. Case 11/70 Internationale Handelsgesellschaft  ECR 1125, para. 4. Also see Case 29/69, Stauder  ECR 419.
9. Case 4/73 Nold  ECR 491.
10. Case C-44/79 Hauer  ECR 3727.
11. Although beyond the scope of this contribution, it must be noted that in parallel with the developments of the Court’s case-law there has also been a gradual political recognition of human rights. The first example of such an attitude can be traced to the joint declarations of the Parliament, Council and Commission of 5th April 1977 and 1986. These were followed by the enactment of the Single European Act which, for the first time, contained provisions regarding fundamental rights. The latter’s preamble stated that the member States were “determined to work together to promote democracy on the basis of the fundamental rights recognised in the constitutions. . . in the convention for the protection of human rights and. . . the European Social Charter”. On 9th December 1989 a further step was taken with the signing of the Community Charter of Fundamental Social Rights by 11 of the then 12 member States. This was followed, in 1992, by the adoption of the Treaty of European Union (herein TEU) which resulted in the insertion of Art 6(2) TEU. The Article provided that the “Union shall respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the member states, as general principles of Community law”. Such an Article was later amended by the Treaties of Amsterdam and Nice giving rise to Arts. 6 and 7 TEU which allowed the Council to adopt measures against member States who seriously and persistently breach fundamental rights. Finally, the political commitment of the EU to fundamental rights culminated in the solemn proclamation of the European Union’s Charter of Fundamental Rights in December 2000, subsequently incorporated into the Lisbon Treaty. For a more detailed analysis see G. Di Federico, Chapter 2.
12. To this effect see, notably, J. Coppel and A. O’Neill, ‘The European Court of Justice: Taking Rights Seriously?’ n. 5 above; L.S. Rossi, ‘How fundamental are fundamental principles? Primacy of the EU Law and fundamental rights after Lisbon’, (2008) Yearbook of European Law 65.