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Regulatory Trust in EU Free Movement Law: Adopting the Level of Protection of the Other?

Groussot, Xavier LU ; Pétursson, Gunnar Thor and Wenander, Henrik LU (2016) In European Papers 1(3). p.865-892
Abstract
The principles of mutual trust and mutual recognition are well established features of EU law. On a technical level, it is clear that the principles may require adoption of foreign levels of protection in individual cases as well as in legislation. At a closer look, however, the principles through “the rule of reason” also may imply quite the opposite: the imposing of domestic requirements on foreign goods, services etc. The CJEU case law following the Cassis judgement may be seen as striking a balance between cooperation and Member State self-determination, or between trust and distrust, in different fields. This contribution aims at looking into the regulatory function of the legal principle of trust in EU law. Taking this wider... (More)
The principles of mutual trust and mutual recognition are well established features of EU law. On a technical level, it is clear that the principles may require adoption of foreign levels of protection in individual cases as well as in legislation. At a closer look, however, the principles through “the rule of reason” also may imply quite the opposite: the imposing of domestic requirements on foreign goods, services etc. The CJEU case law following the Cassis judgement may be seen as striking a balance between cooperation and Member State self-determination, or between trust and distrust, in different fields. This contribution aims at looking into the regulatory function of the legal principle of trust in EU law. Taking this wider regulatory perspective, the mutual recognition regimes of EU must be seen from a holistic perspective. Rather than dwelling upon harmonized and non-harmonized fields separately, we will approach mutual trust as one, albeit multi-faceted, concept, where harmonization, proportionality assessments and Member State actions in various fields of law form part of the same wider picture. In this regulatory perspective, the law on mutual trust and mutual recognition may be seen as a balancing between the regulatory interests of the EU (promoting free movement and cooperation) and the various Member States (promoting their interests of – alleged – protection of safety of various kinds). Through this perspective, we will be able to address the tension between regulation and deregulation, between integration and disintegration, and between unity and diversity present in EU law on a very general level. The first section of this contribution will look at the constitutional life of mutual trust within the CJEU case law: looking at its origins and main logic. The second section will attempt to clarify why the principle of mutual trust is mostly invisible in the free movement jurisprudence. This section also argues for understanding mutual recognition in terms of Regulatory Trust. The last section focuses on the thorny issue of the levels of protection and attempts to understand which are the key factors used by the CJEU in reviewing the (host) States measures that restrict free movement law and thus may constitute a break to the application of the principles of mutual trust and mutual recognition. (Less)
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author
organization
publishing date
type
Contribution to journal
publication status
published
subject
keywords
EU-rätt, EU Law, Mutual Recognition, Mutual trust, Level of protection, Regulation , Free movement, Internal market , Habermas
in
European Papers
volume
1
issue
3
pages
28 pages
ISSN
2499-8249
DOI
10.15166/2499-8249/109
language
English
LU publication?
yes
id
4676ba95-8335-450e-8d3a-2743a97a9170
date added to LUP
2017-02-03 11:49:29
date last changed
2017-02-27 10:49:51
@article{4676ba95-8335-450e-8d3a-2743a97a9170,
  abstract     = {The principles of mutual trust and mutual recognition are well established features of EU law. On a technical level, it is clear that the principles may require adoption of foreign levels of protection in individual cases as well as in legislation. At a closer look, however, the principles through “the rule of reason” also may imply quite the opposite: the imposing of domestic requirements on foreign goods, services etc. The CJEU case law following the Cassis judgement may be seen as striking a balance between cooperation and Member State self-determination, or between trust and distrust, in different fields. This contribution aims at looking into the regulatory function of the legal principle of trust in EU law. Taking this wider regulatory perspective, the mutual recognition regimes of EU must be seen from a holistic perspective. Rather than dwelling upon harmonized and non-harmonized fields separately, we will approach mutual trust as one, albeit multi-faceted, concept, where harmonization, proportionality assessments and Member State actions in various fields of law form part of the same wider picture. In this regulatory perspective, the law on mutual trust and mutual recognition may be seen as a balancing between the regulatory interests of the EU (promoting free movement and cooperation) and the various Member States (promoting their interests of – alleged – protection of safety of various kinds). Through this perspective, we will be able to address the tension between regulation and deregulation, between integration and disintegration, and between unity and diversity present in EU law on a very general level. The first section of this contribution will look at the constitutional life of mutual trust within the CJEU case law: looking at its origins and main logic. The second section will attempt to clarify why the principle of mutual trust is mostly invisible in the free movement jurisprudence. This section also argues for understanding mutual recognition in terms of Regulatory Trust. The last section focuses on the thorny issue of the levels of protection and attempts to understand which are the key factors used by the CJEU in reviewing the (host) States measures that restrict free movement law and thus may constitute a break to the application of the principles of mutual trust and mutual recognition.},
  author       = {Groussot, Xavier and Pétursson, Gunnar Thor and Wenander, Henrik},
  issn         = {2499-8249},
  keyword      = {EU-rätt,EU Law,Mutual Recognition,Mutual trust,Level of protection,Regulation ,Free movement,Internal market ,Habermas},
  language     = {eng},
  number       = {3},
  pages        = {865--892},
  series       = {European Papers},
  title        = {Regulatory Trust in EU Free Movement Law: Adopting the Level of Protection of the Other?},
  url          = {http://dx.doi.org/10.15166/2499-8249/109},
  volume       = {1},
  year         = {2016},
}