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Fundamental Freedoms, Fundamental Rights, and the Scope of Free Movement Law

Published online by Cambridge University Press:  06 March 2019


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The relation between internal market freedoms (the so-called “fundamental freedoms”) and fundamental rights is a recurring question in EU law. In recent years, after rulings such as Schmidberger, Omega, Viking, and Laval, attempts to provide a framework for approaching and resolving clashes between fundamental freedoms and fundamental rights have acquired a special urgency. Less attention, however, has been devoted to capturing the different nature of fundamental freedoms and fundamental rights, and to evaluating the implications of the choice whether or not to include fundamental freedoms in the same category as fundamental rights. The dominant focus in the literature is on what happens when free movement and fundamental rights pull in different directions. Yet, the question of whether fundamental freedoms should be regarded as fundamental rights also deserves close scrutiny. It is especially important to understand the implications of this classification since the EU Charter of Fundamental Rights appears to treat some, but not all, fundamental freedoms as fundamental rights. In particular, the Charter seems to regard the free movement of persons and services as fundamental rights, but not the free movement of goods or the free movement of capital. A similar approach is exhibited in the case law: While the Court recognizes the fundamental rights character of free movement of persons, it does not appear to extend that characterization to the entirety of free movement law. This article attempts to make sense of this dichotomy by relying on an account of fundamental rights that adopts a non-instrumental focus on the right-holder. It argues that certain free movement provisions, namely the free movement of goods and capital, cannot be characterized as fundamental rights because they are inherently instrumental—they are a means to the internal market end. By contrast, the other free movement provisions appear to match the account of fundamental rights adopted here. As this article aims to show, the classification of certain, or all, fundamental freedoms as fundamental rights is a question that affects the interpretation of the scope of the free movement provisions. Moreover, as will be seen, the question is closely related to the debate on the convergence between the free movement provisions, and on the persistence of the “wholly internal rule,” the rule that requires a cross-border connection to trigger the application of free movement law.

Copyright © 2014 by German Law Journal GbR 


1 The term “fundamental freedoms” captures the EU internal market freedoms enshrined in the provisions on free movement of goods, free movement of persons, services, and capital in Title II and IV of Part Three (“Union Policies and Internal Actions”) of the Treaty on the Functioning of the European Union. Consolidated Version of the Treaty on the Functioning of the European Union, pt. 3, tit. II & IV, Mar. 30, 2010, 2010 O.J. (C 83) 47 [hereinafter TFEU].Google Scholar

2 Schmidberger v. Österreich, CJEU Case C-112/00, 2003 E.C.R. I-5659 [hereinafter Schmidberger]; Omega Spielhallen v. Oberbürgermeisterin der Bundesstadt Bonn, CJEU Case C-36/02, 2004 E.C.R. I-9609; Laval un Partneri Ltd. v. Svenska Byggnadsarbetareförbundet, CJEU Case C-341/05, 2007 E.C.R. I-11767; Int'l Transp. Workers' Fed'n v. Viking, CJEU Case C-438/05, 2007 E.C.R. I-10779. There is a rich literature on this issue. Among the most recent contributions, see generally, Oxford Inst. of Eur. and Comparative Law, The Protection of Fundamental Rights in the EU After Lisbon (Sybe de Vries, Ulf Bernitz & Stephen Weatherill eds., 2013); Trstenjak, Verica & Beysen, Erwin, The Growing Overlap of Fundamental Freedoms and Fundamental Rights in the Case-Law of the CJEU, 35 Eur. L. Rev. 293 (2013).Google Scholar

3 See, Charter of Fundamental Rights of the European Union, Dec. 18, 2000, 2000 O.J. (C 364) 1.Google Scholar

4 Id. art. 45, at 19.Google Scholar

5 Id. art. 15, at 11.Google Scholar

6 Some Advocates General have advanced the view that fundamental freedoms can, at least in part, be formulated as fundamental rights, but this does not appear to have been confirmed by the Court.Google Scholar

7 Charter of Fundamental Rights of the European Union, arts. 15, 45, Dec. 18, 2000, 2000 O.J. (C 364) 1, 11, 19.Google Scholar

8 Id. pmbl., at 8.Google Scholar

9 See, Jeremy Waldron, Theories of Rights (Jeremy Waldron ed., 1984).Google Scholar

10 Joseph, Raz, The Morality of Freedom 192 (1988). Note that the account of fundamental rights proposed here does not seek to do justice to Raz's theory of rights. It is not, and does not pretend to be, a “Razian account.”Google Scholar

11 Id. at 200.Google Scholar

12 Deutsche Telekom AG v. Lilli Schröder, CJEU Case C-50/96, 2000 E.C.R. I-743, paras. 55–59.Google Scholar

13 The key difference between human rights and fundamental rights is that while the former are universal, the latter are grounded in a specific political and legal context. This explains the variation in the substantive interests that are regarded as fundamental among different political and legal systems. As far as the EU context is concerned, there are rights that are peculiar to the EU and are not (in any meaningful way) expressions of human rights. Of course, this is true only of a minority of EU fundamental rights, the majority being derived either from the ECHR or from domestic constitutions.Google Scholar

14 Council Regulation 1612/68, pmbl., 1968 O.J. (L 257/2) 475, 475 (EC) (replaced by Council Regulation 492/2011, 2011 O.J. (L 141) 1 (EU)).Google Scholar

15 The preamble was repeatedly relied on by the Commission in its submissions before the Court, and was eventually adopted by the Court itself. In Levin, both the Commission and the Advocate General emphasized the characterization by Regulation 1612/68 of free movement of workers as a fundamental right, and later, in Forcheri, the Court itself adopted that terminology. Opinion of Advocate General Slynn at para. 8, Levin v. Staatssecretaris van Justitie, CJEU Case C-53/81 (Mar. 23, 1982),; Forcheri v. Belgian State & asbl Institut Supérieur de Sciences Humaines Appliquées, CJEU Case C-152/82, 1983 E.C.R. 2323, para. 11. In Heylens, the Court held that access to employment was a fundamental right conferred by the Treaty:Google Scholar

16 Opinion of Advocate General Jacobs at para. 29, Bettray v. Staatssecretaris van Justitie, CJEU Case C-344/87 (Mar. 8, 1989), Scholar

17 Spaak, Paul-Henri, Intergovernmental Comm. on Eur. Integration, Rapport des Chefs de Délégations aux Ministres des Affaires Etrangères (Apr. 21, 1956).Google Scholar

18 Id. On the limitations of this blueprint, see, O'Leary, Siofra, Free Movement of Persons and Services, in The Evolution of EU Law 503 (Paul Craig & Gráinne de Búrca eds., 2d ed. 2011).Google Scholar

19 Cowan v. Trésor Public, CJEU Case C-186/87, 1989 E.C.R. 195.Google Scholar

20 Criminal Proceedings against Wijsenbeek, CJEU Case C-378/97, 1999 E.C.R. I-6207.Google Scholar

21 Opinion of Advocate General Cosmas at para. 83, Criminal Proceedings against Wijsenbeek, CJEU Case C-378/97 (Mar. 16, 1999) (emphasis added), Scholar

22 Id. para. 84 (emphasis added).Google Scholar

23 Baldinger v. Pensionsversicherungsanstalt der Arbeiter, CJEU Case C-386/02, 2004 E.C.R. I-08411, para. 25 (emphasis added).Google Scholar

24 El-Yassini v. Secretary of State for Home Department, CJEU Case C-416/96, 1999 E.C.R. I-1209, para. 45.Google Scholar

25 See, Zhu & Chen v. Secretary of State for the Home Department, CJEU Case C-200/02, 2004 E.C.R. I-9925, para. 33; Council Directive 2004/38, pmbl., 2004 O.J. (L 158) 77, 81 (EU); Charter of Fundamental Rights of the European Union, art. 45, Dec. 18, 2000, 2000 O.J. (C 364) 1, 19.Google Scholar

26 See, O'Leary, supra note 18.Google Scholar

27 Charter of Fundamental Rights of the European Union, art. 15, Dec. 18, 2000, 2000 O.J. (C 364) 1, 11 (emphasis added). This does not mean that citizenship is the foundation of all fundamental rights. Citizenship is a status, not a right. As a status, citizenship gives rise to certain rights—the right to move and to reside throughout the territory of the EU—and, to a certain extent, colors the interpretation of pre-existing free movement rights.Google Scholar

28 Josse Mertens de Wilmars, La Jurisprudence de la Cour de Justice comme Instrument de l'Intégration Communautaire, 1 Cahiers de Droit Européen[CDE] 135, 147 (1976) (“Les conceptions économiques qu'expriment nombre de règles du traité correspondent à une conception instrumentaliste du libéralisme économique et non à l'idée qu'il est l'Ordnungsprinzip des économies intégrées.”).Google Scholar

29 Opinion of Advocate General Tesauro at para. 1, Hünermund v. Landesapothekerkammer Baden-Württemberg, CJEU Case C-292/92 (Oct. 27, 1993), See also, Opinion of Advocate General Tizzano at para. 68–78, France v. Ministère de l'Économie, des Finances et de l'Industrie, CJEU Case C-442/02 (Mar. 25, 2004), Scholar

30 Criminal Proceedings against Bernard Keck & Daniel Mithouard, CJEU Joined Cases C-267/91 & C-268/91, 1993 E.C.R. I-6097, para. 14.Google Scholar

31 Schmidberger, CJEU Case C-112/00 at para. 51.Google Scholar

32 Id. paras. 56–57 (emphasis added).Google Scholar

33 Snell, Jukka, And Then There were Two: Products and Citizens in Community Law, in EU Law for the Twenty-First Century: Rethinking the New Legal Order Vol. II 49 (Takis Tridimas & Paolisa Nebbia eds., 2004).Google Scholar

34 In Brokmeulen, the Court held that the free movement of persons, freedom of establishment, and free movement of services were “freedoms which are fundamental to the system set up by the Community” and in Casati it added free movement of capital to the category—though, it added, unlike the other free movement provisions, free movement of capital did not enjoy direct effect. C. Broekmeulen v. Huisarts Registratie Commissie, CJEU Case C-246/80, 1981 E.C.R.-2311, para. 20; Criminal Proceedings against Guerrino Casati, CJEU Case C-203/80, 1981 E.C.R. 2595, para. 8. Since then, the use of the term has become established in the case law to cover the four freedoms. See, e.g., Petersen v. Finanzamt Ludwigshafen, CJEU Case C-544/11,, para. 28.Google Scholar

35 Comm'n v. Luxembourg & Belgium, CJEU Joined Cases C-2/62 & C-3/62, E.C.R. 425, 433 (1962) (referring to the “fundamental principle of the free movement of products”). The term has since appeared in relation to all free movement provisions and is still commonly used. See, for instance, with regard to free movement of capital, Comm'n v. Belgium, CJEU Case C-387/11, para. 43 (Oct. 25, 2012), Scholar

36 See, e.g., Sionaidh Douglas-Scott, Constitutional Law of the European Union 435 (2002); Oliver, Peter & Roth, Wulf-Henning, The Internal Market and the Four Freedoms, 41 Common Mkt. L. Rev. 407 (2004); Petersmann, Ernst-Ulrich, International Economic Law in the 21ST Century 262 (2012).Google Scholar

37 Procureur de la République v. ADBHU, CJEU Case 240/83, 1985 E.C.R. 531, para. 9.Google Scholar

38 See, e.g., Nold v. Comm'n, CJEU Case 4/73, 1974 E.C.R. 491.Google Scholar

39 The fact that in ADBHU the Court designated free movement of goods as a general principle does not necessarily imply that it is also a fundamental right; similarly, the principle of free competition is not a fundamental right. A provision's fundamental importance and its status as a general principle are not decisive factors in deciding that a fundamental right exists. This remark remains unchanged even in the presence of provisions that have direct effect, such as Article 34 TFEU or Article 101 TFEU.Google Scholar

40 Dounias v. Minister for Economic Affairs, CJEU Case C-228/98, 2000 E.C.R. I-577, para. 64.Google Scholar

41 Id. para. 64 (“[T]he Court has consistently held that the existence of a judicial remedy against any decision of a national authority refusing the benefit of a fundamental right conferred by the Treaty is essential in order to secure for the individual effective protection for his right.”).Google Scholar

42 UNCTEF v. Heylens, CJEU Case 222/86, 1987 E.C.R. 4097, para. 14.Google Scholar

43 Namely, the Italian, Spanish, and Portuguese versions. It is possible to infer that if the Court had wished to emphasize the “fundamental rights” status of the “Community rights” at issue, those language versions would have paid greater attention to that—not insignificant—detail.Google Scholar

44 A fact that is confirmed by the absence of any reference to fundamental rights in all the instances in which the Court has subsequently relied on paragraph 64 of Dounias. Google Scholar

45 Indeed, some influential views reject the presence of a dichotomy. Advocate General Trstenjak suggested that “the relationship between fundamental freedoms and fundamental rights is characterised by a broad convergence both in terms of structure and content.” Opinion of Advocate General Trstenjak at para. 187, Comm'n v. Germany, CJEU Case C-271/08 (July 15, 2010), See also, Skouris, Vassilios, Fundamental Rights and Fundamental Freedoms: The Challenge of Striking a Delicate Balance, 17 Eur. Bus. L. Rev. 225 (2006). Note, however, that neither of these views are—necessarily—reflective of the Court's approach.Google Scholar

46 Petersmann, Ernst-Ulrich, International Trade Law, Human Rights and Theories of Justice, in Law in the Service of Human Dignity 49 (Charnovitz, Steve, Steger, Debra P. & Peter Van den Bossche eds., 2005).Google Scholar

47 Petersmann, , supra note 36, at 307.Google Scholar

48 Charter of Fundamental Rights of the European Union, art. 16, Dec. 18, 2000, 2000 O.J. (C 364) 1, 12.Google Scholar

49 It should be clear that we are not arguing in favor of an “isolationist” position. The argument advanced here is not that the EU is, or should be, isolated from international human rights law. This would be an absurd position, especially in light of the EU's forthcoming accession to the ECHR. It goes without saying that internal market law is bound by international human rights law; but, that is not to say that the EU's internal market provisions are an expression of universal human rights.Google Scholar

50 It should be clear that this article does not make the general claim that economic rights are incapable of constituting fundamental rights. The claim advanced here is that those rights that are inextricably, and instrumentally, linked to the realization of the internal market are not fundamental rights.Google Scholar

51 Nold v. Comm'n, CJEU Case 4/73, 1974 E.C.R. 491, para. 14; Germany v. Council, CJEU Case C-280/93, 1994 E.C.R. I-4973, para. 78; Bank Melli Iran v. Council, Case C-548/09 P, 2011 E.C.R. I-11381, para. 114.Google Scholar

52 Trstenjak, & Beysen, , supra note 2, at 311.Google Scholar

53 For instance, in Association Kokopelli, the Court found that a piece of secondary legislation, while constituting a (justified) restriction of the freedom to pursue an economic activity, was at the same time a means of advancing free movement of goods. Ass'n Kokopelli v. Graines Baumaux SAS, CJEU Case C-59/11, paras. 77–81 (July 12, 2012), In other words, the two rights pulled in opposite directions.Google Scholar

54 Trstenjak, & Beysen, , supra note 2, at 310.Google Scholar

55 Trstenjak, & Beysen, , supra note 2, at 309–310.Google Scholar

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60 Tryfonidou, Alyna, Further Steps on the Road to Convergence among the Market Freedoms, 35 Eur. L. Rev. 36 (2010).Google Scholar

61 A-Punkt Schmuckhandels GmbH v. Claudia Schmidt, CJEU Case C-441/04, 2006 E.C.R. I-02093.Google Scholar

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66 One could conceive of free movement of goods and of capital as fundamental rights that are not limited to EU citizens. This is a possible—albeit questionable—interpretation, as the majority of EU fundamental rights do not have a necessary connection with EU citizenship, but this is not the interpretation advanced by the convergence thesis, which relies heavily on EU citizenship.Google Scholar

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68 Comm'n v. Greece, CJEU Case C-391/92, 1995 E.C.R. I-1621.Google Scholar

69 Id. para. 31 (emphasis added).Google Scholar

70 Pérez & Gómez v. Consejería de Salud y Servicios Sanitarios & Principado de Asturias, CJEU Joined Cases C-570/07 & C-571/07, 2010 E.C.R. I-4629.Google Scholar

71 Id. para. 59.Google Scholar

72 That is, unless the case can be made that the measure impedes foreign products' access to the market more than it impedes the access of domestic products.Google Scholar

73 See, Spaventa, Eleanor, Federalisation Versus Centralisation: Tensions in Fundamental Rights Discourse in the EU, in 50 Years of the European Treaties 343 (Michael Dougan & Samantha Curri, eds., 2009).Google Scholar

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76 This is not to deny the individual empowerment that results from free movement law (including from free movement of goods), on which, see Witte, Floris de, Transnational Solidarity and the Mediation of Conflicts of Justice in Europe, 18 Eur. L.J. 694 (2012).Google Scholar

77 The trouble, though, is that the Court is unclear as to how to identify that critical point. This uncertainty was exacerbated by Philippe Bonnarde v. Agence de Services et de Paiement, CJEU Case C-443/10. 2011 E.C.R. I-9327, para. 30.Google Scholar

78 The so-called “impossible trinity” theorem (severally) attributed to Fleming and Mundell. Marcus Fleming, Domestic Financial Policies Under Fixed and Floating Exchange Rates, 9 IMF Staff Papers 369 (1962); Mundell, Robert, Capital Mobility and Stabilization Policy Under Fixed and Flexible Exchange Rates, 29 Can. J. Econ. & Pol. Sci. 475 (1963).Google Scholar

79 Criminal Proceedings against Guerrino Casati, CJEU Case C-203/80, 1981 E.C.R. 2595.Google Scholar

80 Id. para. 10.Google Scholar

81 Alongside direct and indirect discrimination, the Court now applies a broad “restrictions” test. See, e.g., Klaus Konle v. Republik Österreich, CJEU Case C-302/97, 1999 E.C.R. I-3099; Comm'n v. Germany, CJEU Case C-112/05, 2007 E.C.R. I-8995; Staatssecretaris van Financiën v. Orange European Smallcap Fund NV, CJEU Case C-194/06, 2008 E.C.R. I-3747. See, Snell, Jukka, Free Movement of Capital: Evolution as a Non-Linear Process, in The Evolution of EU Law 547 (Paul Craig & Gráinne de Búrca eds., 2011).Google Scholar

82 Skatteverket v. A., CJEU Case C-101/05, 2007 E.C.R. I-11531, para. 31. However, the Court has also pointed out that, even allowing for this difference in purpose, the Member States have chosen to enshrine free movement of capital in the Treaty “in the same terms for movements of capital taking place within the Community and those relating to relations with third countries.” Id. But see, O'Brien, Martha, Taxation and the Third Country Dimension of Free Movement of Capital in EU Law: The ECJ's Rulings and Unresolved Issues, 6 Brit. Tax Rev. 628 (2008).Google Scholar

83 See, Barnard, Catherine, Restricting Restrictions: Lessons for the EU from the US? 68 Cambridge L.J. 575 (2009). As the Monti Report recognises, “in some sectors, such as in the single market for goods, market integration reached a mature stage.” Mario Monti, A New Strategy for the Single Market: At the service of Europe's Economy and Society 37 (2010), available at Scholar

84 Opinion of Advocate General Tesauro at para. 31, Lancry v. Direction Générale des Souanes and Société Dindar Confort, CJEU Joined Cases C-363/93, C-407/93–C-411 (June 28, 1994), Scholar

85 See, Shuibhne, Niamh Nic, Free Movement of Persons and Wholly Internal Rule: Time to Move On?, 39 C.M.L. Rev. 731 (2002); Spaventa, Eleanor, Seeing the Wood Despite the Trees? On the Scope of Union Citizenship and Its Constitutional Effects, 45 C.M.L. Rev. 13 (2008); Kochenov, Dimitry, A Real European Citizenship: A New Jurisdiction Test: A Novel Chapter in the Development of the Union in Europe, 18 Colum. J. Eur. L. 55 (2011). See also the Opinion of Advocate Sharpston, General, Government of the French Community and Walloon Government v. Flemish Government, CJEU Case C-212/06 (June 25, 2009), and her (equally thoughtful and compelling) Opinion in Ruiz Zambrano v. Office National de l'Emploi, CJEU Case C-34/09 (Sep. 30, 2010), For a recent and insightful reappraisal of the issue see Shuibhne, Niamh Nic, The Coherence of Free Movement Law (2013), especially chapter 4.Google Scholar

86 See, O'Leary, Siofra, The Past, Present and Future of the Purely Internal Rule, in Empowerment and Disempowerment of the European Citizen (Michael Dougan, Niamh Nic Shuibhne & Eleanor Spaventa eds., 2012).Google Scholar

87 Ruiz Zambrano v. Office National de l'Emploi, CJEU Case C-34/09, 2011 E.C.R. I-1177.Google Scholar

88 Id. para. 42.Google Scholar

89 McCarthy v. Sec'y of State for the Home Dep't, CJEU Case C-434/09, 2011 E.C.R. I-3375; Dereci v. Bundesministerium für Inneres, CJEU Case C-256/11, 2011 E.C.R. I-11315; Iida v. Stadt Ulm, CJEU Case C-40/11 (Nov. 8, 2012),; Ymeraga v. Ministre du Travail, de l'Emploi et de l'Immigration, CJEU Case C-87/12 (May 8, 2013), Scholar

90 Reynolds, Stephanie, Exploring the “Intrinsic Connection” Between Free Movement and the Genuine Enjoyment Test: Reflections on EU Citizenship after Iida, 35 Eur. L. Rev. 376 (2013).Google Scholar

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92 That is not to say that determining what falls within the scope of EU law is a straightforward matter.Google Scholar

93 Carbonati Apuani Srl v. Comune di Carrara, CJEU Case C-72/03, 2004 E.C.R. I-8027 [hereinafter Carbonati]. The Court's approach was partly based on the one adopted in Lancry v. Direction Générale des Souanes and Société Dindar Confort, CJEU Joined Cases C-363/93, C-407/93–C-411, 1994 E.C.R. I-3957.Google Scholar

94 Carbonati, CJEU Case C-72/03 at para. 23.Google Scholar

95 That is, because internal borders undermine in practice the integrity of the customs union.Google Scholar

96 Opinion of Advocate General Geelhoed at para. 104, Reisch v. Bürgermeister der Landeshauptstadt Salzburg, CJEU Joined Cases C-515/99, C-519/99–C-524/99, C-526/99–C-540/99 (Nov. 20, 2001),;jsessionid=9ea7d2dc30db8876f7bb6e7248ee80019a5fe928e51c.e34KaxiLc3qMb40Rch0SaxuKbxb0?text=&docid=102242&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1030241.Google Scholar

97 See, Opinion of Advocate General Sharpston at para. 139–77, Ruiz Zambrano v. Office National de l'Emploi, CJEU Case C-34/09 (Sep. 30, 2010), More specifically, following AG Sharpston's approach, the most blatant cases of reverse discrimination in the area of free movement of persons would be addressed as a matter of EU law where such discrimination amounted to a violation of fundamental rights and where the domestic legal order did not offer equivalent protection to the one provided by EU fundamental rights. By contrast, in the areas of free movement of goods and free movement of capital, reverse discrimination may be disposed of in those instances in which economic reality suggests that obstacles to movement, albeit geographically circumscribed, are likely to have a potential cross-border dimension.Google Scholar

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