The Market Freedoms as a Specific Form of Human Rights
(2007)Department of Law
- Abstract
- The market freedoms of the EC Treaty first of all commit the Member States not to erect hindrances to the internal market. Obstacles to the free movement of goods and the other market freedoms may also originate from other authors than the Member States. Individuals may hamper the functioning of the internal market, and even the European Community itself might pass legislation affecting the market freedoms. If one takes market freedoms as a specific form of human rights, it is unthinkable that the European Community as one bearer of state authority is exempted from them. So this thesis will search for an answer to the question if European legislation incompatible with the market freedoms could be legally passed. The thesis is divided in... (More)
- The market freedoms of the EC Treaty first of all commit the Member States not to erect hindrances to the internal market. Obstacles to the free movement of goods and the other market freedoms may also originate from other authors than the Member States. Individuals may hamper the functioning of the internal market, and even the European Community itself might pass legislation affecting the market freedoms. If one takes market freedoms as a specific form of human rights, it is unthinkable that the European Community as one bearer of state authority is exempted from them. So this thesis will search for an answer to the question if European legislation incompatible with the market freedoms could be legally passed. The thesis is divided in four main parts: 1. The first part gives a short introduction to the contents of the market freedoms. Beside the interpretation of the provisions with regard to the addressees (chapter 2) the purpose of that part is to determine the contents of the market freedoms. Since the thesis wants to show that the Community legislator is equally committed to the market freedoms as the Member States, it is important to define the scope of the market freedoms with regard to the main addressees (i.e. the Member States). 2. Then it will be asked how the Community legislator could intrude into the area of protection of the market freedoms. The thesis will approach this topic from two directions. The ''no alien'' argumentation (chapter 3) asks if the market freedoms actually protect the individual against non-discriminatory measures as they can be expected from the Community legislator who typically does not differentiate between domestic and foreign products, workers and so on. The beyond power approach (chapter 4) asks if the Community legislator has the competence for legislation contrary to the market freedoms. 3. Since the ECJ is the decisive interpreter of European law, the central part (chapter 5) of the thesis goes through the Court's case law. Does the ECJ deem the Community legislator committed to the market freedoms? 4. The last part scrutinises to what extent the Community legislator is bound by the market freedoms. Are there other ways for explaining why the Community legislator must obey them? The subjective approach (chapter 6) assumes that it is not the Community itself which is committed, but rather the representatives of the Member States (especially the Council members) who are involved in the legislative process. That would mean that measures of the Community enacted without representatives of the Member States could not be tested on compliance with the market freedoms. The constitutional approach (chapter 7) asks if the implications of the market freedoms on Community legislation could be reduced to programmatic guidelines of constitutional objectives. Finally the market freedoms are regarded as human rights (chapter 8), because that is what would eliminate the shortcomings of the other approaches. So the thesis will first answer the question if the Community legislator is committed to the market freedoms (chapters 3-5). Then it will define the scope of the commitment (chapter 6-8). In fact, the market freedoms could be best explained as a specific form of human rights, as the hypothesis suggests. (Less)
Please use this url to cite or link to this publication:
http://lup.lub.lu.se/student-papers/record/1555140
- author
- Gregor, Stephan
- supervisor
- organization
- year
- 2007
- type
- H1 - Master's Degree (One Year)
- subject
- keywords
- International Human Rights Law
- language
- English
- id
- 1555140
- date added to LUP
- 2010-03-08 15:22:58
- date last changed
- 2010-03-08 15:22:58
@misc{1555140,
abstract = {{The market freedoms of the EC Treaty first of all commit the Member States not to erect hindrances to the internal market. Obstacles to the free movement of goods and the other market freedoms may also originate from other authors than the Member States. Individuals may hamper the functioning of the internal market, and even the European Community itself might pass legislation affecting the market freedoms. If one takes market freedoms as a specific form of human rights, it is unthinkable that the European Community as one bearer of state authority is exempted from them. So this thesis will search for an answer to the question if European legislation incompatible with the market freedoms could be legally passed. The thesis is divided in four main parts: 1. The first part gives a short introduction to the contents of the market freedoms. Beside the interpretation of the provisions with regard to the addressees (chapter 2) the purpose of that part is to determine the contents of the market freedoms. Since the thesis wants to show that the Community legislator is equally committed to the market freedoms as the Member States, it is important to define the scope of the market freedoms with regard to the main addressees (i.e. the Member States). 2. Then it will be asked how the Community legislator could intrude into the area of protection of the market freedoms. The thesis will approach this topic from two directions. The ''no alien'' argumentation (chapter 3) asks if the market freedoms actually protect the individual against non-discriminatory measures as they can be expected from the Community legislator who typically does not differentiate between domestic and foreign products, workers and so on. The beyond power approach (chapter 4) asks if the Community legislator has the competence for legislation contrary to the market freedoms. 3. Since the ECJ is the decisive interpreter of European law, the central part (chapter 5) of the thesis goes through the Court's case law. Does the ECJ deem the Community legislator committed to the market freedoms? 4. The last part scrutinises to what extent the Community legislator is bound by the market freedoms. Are there other ways for explaining why the Community legislator must obey them? The subjective approach (chapter 6) assumes that it is not the Community itself which is committed, but rather the representatives of the Member States (especially the Council members) who are involved in the legislative process. That would mean that measures of the Community enacted without representatives of the Member States could not be tested on compliance with the market freedoms. The constitutional approach (chapter 7) asks if the implications of the market freedoms on Community legislation could be reduced to programmatic guidelines of constitutional objectives. Finally the market freedoms are regarded as human rights (chapter 8), because that is what would eliminate the shortcomings of the other approaches. So the thesis will first answer the question if the Community legislator is committed to the market freedoms (chapters 3-5). Then it will define the scope of the commitment (chapter 6-8). In fact, the market freedoms could be best explained as a specific form of human rights, as the hypothesis suggests.}},
author = {{Gregor, Stephan}},
language = {{eng}},
note = {{Student Paper}},
title = {{The Market Freedoms as a Specific Form of Human Rights}},
year = {{2007}},
}