WP5 Economic Rights
The EEC Treaty, although extending to all economic sectors, confined the free movement of persons to individuals participating in the common market. The establishment of the common market – and later, when the Single European Act came into force, the internal market – played a central role in the attainment of the E(E)C Treaty’s objectives. The free movement of persons and services, together with the other freedoms (goods and capital), constituted the backbone of the European Community and continues to do so for the European Union. That the original substantive provisions of the Treaty of Rome did not provide for a general right to free movement for all persons and companies resulted from the requirements that the individual or company should be a national of a Member State and should be engaged in an economic activity as a worker, self-employed person, service provider or service recipient.
Economic rights also include the rights of consumers as purchasers of goods and services. As consumers play a vital role in the market place, consumer policy gradually became more important alongside internal market policy. Consumer rights not only entail that consumers have a right to be informed and a right to choose different products and services, but also to be protected (Reich and Micklitz 2003; Stuyck 2000; De Vries 2006; Weatherill 1997; Weatherill 2011).
As the economic rights of citizens are ‘old rights’, the ways in which these rights should be understood and have been developed, particularly in the case law of the CJEU, are well documented in (legal) literature (see for example with regard to goods: Oliver 2004, services and persons: O’Leary 2011, four freedoms in general: Barnard 2010). It appears that from the outset the economic rights of EU citizens based on the four freedoms entail a right to equal treatment i.e. the right not to be discriminated against and the right to freedom of movement (O’Leary 2011). But the CJEU went even further by prohibiting all kinds of restrictions i.e. national rules which restrict market access, thereby offering citizens a right to gain access to the market in another Member State (Snell 2010).
Irrespective of the broad scope of economic rights, there are still obstacles which make the exercising of these rights more difficult or even impossible. This is partly due to the possibility of restricting the freedom of movement for public policy reasons or because civil or social rights take precedence over conflicting economic rights (Barnard 2011; De Vries 2006 & 2011).
As economic rights constitute an indispensable aspect of EU citizenship – they have always been stressed by the EU – a study of the rights and barriers citizens face when exercising their economic rights continues to be of imperative importance for the understanding of obstacles and opportunities for achieving EU citizenship. So far legal literature has focused on the legal barriers to freedom of movement (Ioriatti 2004), on the case law of the CJEU and on the legislative practice of the EU. Systematic research as to which practical barriers can be identified alongside the legal ones – making the exercising of economic rights more difficult or even impossible in practice – is relatively underdeveloped.
The objective of the Work Package on Economic Rights (WP5) is to study the problems EU citizens and third country nationals face in getting access to economic rights, as well as how they can make use of these rights from the perspective of EU citizenship. Against this background, we can identify four different categories of specific substantive economic rights of citizens and the barriers they face:
a. The rights and barriers citizens experience as producers and users of knowledge to manage, protect and exercise intellectual property rights, partly due to the lack of (adequate) harmonisation of intellectual property rules in the fields of copyright and patents.
b. The rights and barriers citizens experience when providing or receiving services; here we see significant changes in the scope and character of services, partially due to the adoption of the Services Directive (2006) and due to the liberalisation of services markets together with the increasing relevance of the concept of public service (Van de Gronden 2009; Freedland & Sciarra 1998; Szyszczak 2007).
c. The rights and barriers citizens experience to exercising their profession.
d. The rights and barriers citizens experience in their capacity of consumers to choose, to be informed and to be protected while purchasing goods and services on the internal market.
So, for each of the categories (a-d) the typical characteristics are stated which influence their access from outside and their impact on the inside. WP 5 uses a variety of methods, partly building on groundwork already laid (see above), including a systematic legal analysis of EU instruments and their implementation in Member States and the effects on EU nationals and third country nationals; cross- national case studies covering the different categories of economic rights and a cross-task analysis of the factors which have an impact on linguistic barriers (Ioriatti 2010) making the exercising of economic rights more difficult and costly.
– Barnard C. (2010), The Substantive Law of the EU – The Four Freedoms (Oxford: Oxford University Press)
– Barnard C. (2010), ‘EU ‘Social Policy’: From Employment Law to Labour Market Reform’, in: Craig P. and de G. de Búrca (eds) The Evolution of EU Law (Oxford, Oxford University Press): 641- 686
– Van Eijken H. & S.A. de Vries (2011), ‘A new route into the promised land? Being a European citizen after Ruiz Zambrano’, European Law Review, 36: 704
– Freedland M. & S. Sciarra (1998), Public Services and Citizenship in European Law – Public and Labour Law Perspectives (Oxford: Oxford University Press)
– Van de Gronden J. (ed.), (2009), EU and WTO Law on Services – Limits to the Realisation of General Interest Policies within the Services Markets? (Alphen a/d Rijn: Kluwer Law International)
– Hatzopoulos V. and TU Do (2006), ‘The Case Law of the ECJ Concerning the Free Provision of Services 2000-2005’, Common Market Law Review, 43: 923
– Ioriatti, E. (2010), ‘Draft common frame of reference and terminology’ in Antoniolli A., Fiorentini F. (eds.), Factual Assessment of the Draft Common Frame of Reference , (München, Sellier): 343- 360
– Ioriatti, E. (2004), ‘A methodological approach for a European restatement of contract law’ in Gobal Jurist Topics, No. 3
– Shuibhne N. Nic (2010), ‘The Resilience of EU Market Citizenship’, Common Market Law Review, 47: 1597
– O’Leary S. (2011), ‘The Free Movement of Persons and Services’, in Craig P. and de Búrca G. (eds), The Evolution of EU Law (Oxford, Oxford University Press): 499-545
– Prechal S. & S.A. de Vries (2009), ‘Seamless web of judicial protection in the internal market’, European Law Review, 34:5
– Snell J. (2010), ‘The notion of market access: a concept or a slogan?’, Common Market Law Review, 47:437.
– Reich N. and H.W. Micklitz (2003), Europäisches Verbraucherrecht (Baden-Baden: Nomos Verlagsgesellschaft)
– Spaventa E. (2008), ‘Seeing the Wood despite the Trees? On the Scope of Union Citizenship and its Constitutional Effects’, Common Market Law Review, 45:30.
– Spaventa E., (2004), ‘From Gebhard to Carpenter; Towards a (Non)-Economic European Constitution’, Common Market Law Review, 41:743
– Szyszczak E. (2007), The Regulation of the State in Competitive Markets in the European Union, (Oxford: Hart Publishing)
– De Vries S.A. (206), Tensions within the Internal Market – The Functioning of the Internal Market and the Development of Horizontal and Flanking Policies (Groningen: Europa Law Publishing)
– De Vries S.A., X. Groussot and G. Thor Petursson (2012), Balancing Fundamental Rights with the EU Treaty Freedoms: The European Court of Justice as ‘tightrope’ dancer, (The Hague: Eleven International Publishing)
– Weatherill, Stephen (forthcoming), ‘Consumer Policy’ in Paul Craig, Grainne de Burca (eds.), The Evolution of EU Law (Oxford University Press)