By Pedro Caro de Sousa
Abstract
Suggested Citation: Pedro Caro de Sousa, Negative and Positive Integration in EU Economic Law: Between Strategic Denial and Cognitive Dissonance?, 13 German Law Journal 979-1012 (2012), available at http://www.germanlawjournal.com/index.php?pageID=11&artID=1450
A. Introduction
It is a generally held assumption that
the EU economic free movement rights are tools in the creation of a
European internal market; and that their main goal is the (negative)
market integration of different national markets. Yet these freedoms do
not determine how market integration is to proceed, or which kind of
integrated European market will emerge. The resulting market may be
more or less regulated, and the creation of the relevant regulatory
rules may be allocated to a variety of sources. These options are
reflected in the different proposed tests used to determine whether a
national measure prima facie infringes one of the market freedoms. The
proposed tests fall into two main categories—broad tests and narrow
tests—and each type has its own implications for European integration.
Broad tests, usually associated with obstacle tests or even with
economic due process clauses, tend to be seen as having three main
outcomes. One result of broad tests is centralization, implying that
ultimate decisions concerning the legitimacy of national law rests with
EU institutions, and particularly with the Court of Justice of the
European Union (“the Court” or “CJEU”). Another outcome of broad tests
is the possible harmonization of national laws through the European
political process by increasing the amount of national legislation
susceptible to being harmonized under Articles 114 to 118 on the Treaty
on the Functioning of the European Union (“TFEU”). A third
consequence of broad tests is deregulation through the elimination of
national rules creating obstacles to trade. Alternatively, narrow
approaches—usually associated with discrimination or typological
tests—are usually coupled with regulatory pluralism via a greater degree
of control of the harmonization competences of the EU, decentralization
through the protection of a greater sphere of Member States’ autonomy,
and economic agnosticism. Views on the potential...
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