Gabriël Moens

Free Movement of Persons and Services

Title IV of Part Three of the TFEU has three relevant chapters concerning the free movement of persons and the provision of services: Chapter 1 (workers), Chapter 2 (right of establishment) and Chapter 3 (services). A consideration of the relevant law involves an examination of Arts 45, 49 and 56 TFEU. These Articles deal with the rights of “workers” (Art 45), self-employed persons (Art 49) and the providers of services (Art 56) respectively.

Free Movement of Capital

The Treaty provisions concerning free movement of capital were replaced by the Maastricht (Union) Treaty. Under the amended Treaty all restrictions on the movement of capital between Member States, and between Member States and third countries, are prohibited (Art 63(1) TFEU). This provision has direct effect. See Criminal Proceedings Against Sanz de Lera (C-163/94) [1995] ECR I-4821 at [48]; [1996] 1 CMLR 361; Skatteverket v A (C-101/05) [2007] ECR I-11531 at [21], [25]–[26]; [2009] 1 CMLR 35 (p 975).

The Effect of EU Law upon National Law

This chapter discusses two of the essential pillars of EU law: the doctrines of direct effect and supremacy. The direct effect of EU law ensures that individuals can invoke some EU treaty provisions and legislation in legal proceedings in the courts of Member States. The doctrine of supremacy ensures that EU law prevails over any inconsistent law of a Member State, whether it be legislation or the national constitution.

Social Dimension of the European Union

The social dimension of the European Union is of direct relevance to business people, especially those who propose to establish a subsidiary in the Union. European subsidiaries of non-EU parent companies must organize their business in accordance with the anti-discrimination and consumer protection laws of the Union. The completion of the internal market has been accompanied by vigorous attempts to harmonize the social policies of the Member States. The first part of this chapter discusses EU provisions relating to sex discrimination, the second part examines EU legislation regarding other forms of discrimination and the final part briefly deals with other social provisions such as vocational training, data protection and consumer protection.

The European Union and the World Trading System

The preceding chapters have described the establishment by the European Union of an internal market which comprises “an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured” (Art 26(2) TFEU). It is also necessary to situate the EU within the world trading system. This necessity arises from the fact that the EU cannot operate as an isolated or self-sufficient economic grouping. The EU is bound by its membership in the World Trade Organization (hereafter “WTO”), which aims to achieve global rather than regional trade liberali-zation. The world trading system also includes many regional and bilateral free trade agreements. Furthermore, most EU Member States are party to the Convention on Contracts for the International Sale of Goods (CISG).

Commercial Law and Policy

The common external tariff is only one aspect of the EU’s commercial policy. This Chapter discusses another plank of this policy, namely measures which may be taken by the EU to protect trade, in particular the imposition of anti-dumping and countervailing duties.

The Political Institutions of the European Union

The European Union (EU) is an economic trading bloc comprising 27 nations. The Member States are (in order of accession): Belgium, the Netherlands, Luxembourg, France, Germany, Italy, the United Kingdom, Ireland, Denmark, Greece, Spain, Portugal, Austria, Finland, Sweden, Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia, Slovak Republic, Bulgaria and Romania. Given its membership, the EU is one of the world’s most important trading entities.

Industrial and Commercial Property Rights

Industrial and commercial property rights are determined by the laws of the Member States of the Union. However, the exercise of those rights is subject to the TFEU, especially Arts 34, 36, 101 and 102 thereof. These rights are also protected by Art 345 TFEU which provides that the Treaty “shall in no way prejudice the rules in Member States governing the system of property ownership”.

Free Movement of Goods

Arts 28–32 and 34–36 TFEU deal with the free movement of goods, the customs union, the common customs tariff and the elimination of quantitative restrictions between Member States. These provisions are very important to non-EU companies that export goods to the European Union. Their importance stems from the fact that exporters need to know whether the EU has established a common external customs tariff with regard to their products and on whether their products gain free circulation throughout the Union once they have been landed in a Member State. This chapter deals with these issues.

Removal of Taxation Barriers to Trade

Art 26 TFEU affirms the EU’s commitment to the operation of the internal market, namely an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured. From its initiation the EU envisaged the abolition of internal customs duties and charges of equivalent effect. While necessary limits upon the power to impose internal taxation were also accepted, Member States were left with a considerable discretion in fiscal matters. The scope of that discretion is being gradually reduced through the harmonization of indirect taxes and certain direct business taxes.