European Law and the Four Freedoms

Chris Caraiani

EU Law

Final Exam

1. The European Union (EU) has set forth Four Freedoms, as aspirations, to provide for their citizens. These freedoms are utilized in forming the intended functions, and possible restrictions, of the EU. This can be seen as governing systems, within the union, are reinforced with language to assure compliance to these liberties. Once within the borders, every citizen is entitled to each freedom. The freedoms are generally classified under this umbrella idea of “the freedom of movement.” This “freedom of movement” is then subdivided into four, more specific, freedoms. The subsections include the free movement of capital, goods, services, and persons. The first, and often said to be the most important, is the freedom of movement of goods. The legal basis behind this “Free Movement of Goods” can be found in the Treaty on the Functioning of the European Union (TFEU), articles 26 & 28-37. The objective behind this freedom was to assure that goods, coming into the European Union, are in free circulation. Goods in free circulation implies that any citizen, in any member state within the EU, can, at their own liberty, obtain any type of good or product sold within the broader borders, no matter his/her location. This allows any and all citizens of the EU to obtain the same resources they desire, as the next individual, without any sort of discrimination due to location or nationality. For example, a Latvian citizen can obtain a German computer just as freely as they can obtain a Latvian computer. In this example, no more taxes or tariffs are charged to this German computer as they would be for the Latvian computer. The next question which may arise is; what exactly constitutes a “good?” The definition is not strictly established within the TFEU; however, a European Court of Justice ruling on the Commission v. Italy has provided some guidelines. The case law defines a “good” as a tangible object, valued in monetary amounts, which is capable of forming a transaction. Essentially, any tangible object which can be bought and sold is considered a “good” within the borders of the EU. When it comes to ensuring these goods are in free circulation, the EU has formulated several measures. The free movement of goods was originally seen as a result of the customs union, referencing the elimination of customs barriers and introduction of a common customs policy towards other nations, but has since been added to. The EU felt that additional insurance was needed to protect normal conditions of competition within the internal market and to remove all restrictions of a fiscal nature capable of hindering the free movement of goods. Article 30 of the TFEU, prohibits member states from levying any duties on goods entering the border, including goods produced inside and outside the EU. The article adds language to include “no customs or charges having equivalent effect can be levied.” The EU has established two areas of concern when evaluating the free movement of goods. The measures utilized include both pecuniary and non-pecuniary measures. With regards to pecuniary measures, any monetary obstacles placed before imported goods are forbidden. These obstacles reference tariffs and taxes which are not charged to domestic goods and products. Non-pecuniary measures, on the other hand, encompass restrictions not relating to monetary obstructions. These measures include the implementation of quotas, total bans and additional measures having equivalent effect. Furthermore, the European Court of Justice has provided detailed case law to further interpret the articles establishing the free movement of goods. The Dassonville case established that any rule that was capable of directly or indirectly, actually or potentially, capable of hindering intercommunity trade is prohibited. Some would find this to be quite ambiguous, to say the least. The case was followed up by Cassis, which recognized that not all measures are prohibited if they are necessary in the general good for the public. From here, exceptions to the article were established. Exceptions include those on the basis morality, similar to a nationwide ban in Germany regarding domestic and international pornography; public policy, which has allowed the mint/melting of own coins; public security; public health and life, normally claimed by member states when regarding certain inspections on goods; national treasures, which has no case law; and intellectual property. Under these exceptions, a member state may place slight taxations or total bans. A member state may, dependent on permissible justification, impede market access to certain goods. Regardless of the fact, the freedom itself ensures the greater public that the same goods can be acquired anywhere within the EU, for the most part. This freedom turns each individual member state market into one holistic internal market.

1. Even prior to the establishment of the Transatlantic Declaration of 1990, the EU and the US have prospered from a particular level of cooperation. The sharing of political and economic ideologies has bonded these two superpowers from the start. In a world at crisis, during the mid-20th century, the expansion of democratic ideologies became crucial for global sustainability. Through this mechanism, countries which operated under a democratic governing system became closely linked to one another. As Western ideologies spread and were adopted by more and more counties, a level of cooperation was slowly forming. Although the EU was not officially established at that time, collaboration between the US and the European region was on the rise. Fast forwarding to present times, the goals and aspirations between the two superpowers are paralleled. Both the EU and the US wish to achieve a sound world economy while promoting decreased trade barriers; help developing nations with political and democratic reform; promote stability; and provide adequate support to central and eastern EU nations engaged in political reform. These common goals are intertwined as to assure a strong cooperative relationship when regarding actions in Europe. Furthermore, the EU and the US share key principles between one another which act as a reinforcement mechanism to the established partnership. These principles include a consultation to one another regarding operations, utilized mainly to bring the nations closers; economic cooperation in decreasing trade barriers; implementation of General Agreement on Tariffs & Trade (GATT) and World Trade Organization (WTO) principles; education, science and cultural cooperation; and combating transnational challenges such as terrorism, international crime, environmental protection, and the control over NBC’s (nuclear, biological and chemical weaponry). These like-principles help strengthen ties between the two superpowers on worldly affairs. When goals and objectives are in line with a cooperating nation, the partnership is strengthened and collaboration is easily achieved. The EU and the US have set forth frameworks for increased partnership. On a regular basis, the President of the United States meets with the President of the European Union Council and the President of the Commission to further collaborate on global affairs. In addition, the US cabinet meets with the commission to ensure a productive relationship between the powers. The framework for increased cooperation looks to promote peace, stability, democracy, & development; combat global challenges; expand world trade & diplomatic relations; building metaphorical bridges across the Atlantic; supporting UN war crimes tribunals; free and fair elections in Bosnia Herzegovina; building a relationship with democratic Russia; supporting peace in the middle East; reforming the UN; Europol; coordinating efforts on  environmental protection; and supporting global pandemics. These themes have covered and reinforced cooperation between the US and the EU. As more and more similar objectives become apparent, the relationship strengthens. The US acknowledges that further global progress cannot be made without collaboration with the EU, and vice versa. Based on the above analysis of the relationship between the two superpowers, the Transatlantic Trade and Investment Partnership (TIPP) will be rather successful. Exactly to what degree of success is unclear; however, when objectives match so perfectly, it is easy to assume a fruitful partnership. Some elements outlined in the TIPP include trade of goods and services, electronic commerce & information and communication technology services, investment, customs and trade facilitation, government procurement, fair and equal labor, environmental aspects, intellectual property rights, state-owned enterprise, small & medium-sized enterprises, transparency, anticorruption, fair competition, and dispute settlement. These elements established in the TIPP further emphasize the goals of each superpower. The simple fact that these goals have now been uncovered, clarified, agreed upon and implemented truly strengthens the efficiency of the partnership. As objectives have been established, the superpowers can work together to act upon and address each point in an organized fashion. The simple formulation of the TIPP acts as another mechanism which binds the EU and US together. The paralleled goals between the superpowers are outlined in the TIPP, and as a result push both the EU and the US to achieving its function. An argument can be made that the vastly different cultures, between the EU as a whole and the US, will eventually lead to conflict. Although this may be true, collaboration can still be reached among the powers. The obvious similarity in goals has perpetuated this prosperous relationship forward and has created a base for strong cooperative actions. The momentum is strong going forward and the relationship between the two cornerstones of Western ideologies and democracy can only grow.

1. To even begin analysis of the European Union, forty years from now, one must take a journey through the past. The EU was founded by Germany, France, Belgium, Luxembourg, Netherlands, and Italy in 1952. Roughly nine other nations had acceded to the Union by 1995. To the majority of the global public, the EU did not seem as an organization which would flourish. Then in 2004, approximately ten other nations had joined the EU. This leap was by far the most important for the union. Suddenly, this intra-governmental organization became the center of attention in Europe. The build up to this point consisted of numerous conventions and treaties. The 1951 Treaty of Paris established a cooperative community regulating the trade, sale and production of coal and steel. Several years later, the Treaty of Rome was signed which further regulated atomic energy while creating a European Economic Community (EEC). The treaty looked to “lay the foundations of an ever-closer union.” Whether this was reached is debatable. In 1965, a merger of all previous treaties was initiated and the EEC was now referred to as the European Community (EC). Thirty years later, in 1992, a single internal market was created and the EC is now referred to as the European Union. The euro then goes into circulation in 2002, with the exception of several member states. Subsequently, the proposed constitution fails in 2005. The Treaty of Lisbon comes about in 2007, summarizing all previous treaties, and encompassing all nuances. Taking a quick glance at the timeline of the EU, one would assume a level of success from its intentions and actions. The question now arises as to whether or not the success will continue. As the financial crisis hit in 2007, citizens of the EU were shown the inadequacies of their umbrella organization. People began to be skeptics of the true value of the intra-governmental organization. More and more individuals are viewing the EU as a replica of the US and as a mechanism through which their own national sovereignty is lost. To date, there is a balance between euroscepticism and pro-EU feelings. Going forward, the EU has a lot of work to do. Themes such as foreign affairs and national security policies have haunted EU legislators. Areas of the EU are seen to be quite ambiguous, and thus rely on case law to establish precedent and guidelines. Even the most appealing aspect of the EU, the euro, has seen a downfall due to the financial crisis. In order for the EU to exist in 2065, an adaptation to the world context is necessary. Policies incorporating national security, law-making, and foreign affairs must be introduced for the EU to stay with the curve. Added value must be visible. The twenty-eight different member states of the EU must see growth and expansion, or else the organization will slowly wither away and disband. As the times change, so should the policies governing action and regulating markets. The existence of the EU, forty years from now, relies on its ability to adapt accordingly. Not only should these adaptations fit the contemporary context, but should also feed into the objectives which established the union. The objective of reaching this “ever-closer union.”

*There are currently 28 member states which make up the European Union. ☺