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This Thesis Has Been Submitted in Fulfilment of the Requirements for a Postgraduate Degree (E.G This thesis has been submitted in fulfilment of the requirements for a postgraduate degree (e.g. PhD, MPhil, DClinPsychol) at the University of Edinburgh. Please note the following terms and conditions of use: • This work is protected by copyright and other intellectual property rights, which are retained by the thesis author, unless otherwise stated. • A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. • This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author. • The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author. • When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given. Space to Breathe: Subsidiarity, the Court of Justice and EU Free Movement Law By Thomas Horsley LL.B (Hons) LL.M (Edinburgh) PhD in Law The University of Edinburgh 2011 1 Table of Contents Table of Contents 2 Acknowledgements 7 Declaration 8 Abstract 9 List of Abbreviations 10 Introduction 12 Chapter 1 Subsidiarity and its evolution as a legal principle 1. Introduction ......................................................................................................... 21 2. Definition, origins and evolution ........................................................................ 21 2.1 Definition .............................................................................................. 21 2.2 Origins .................................................................................................. 22 2.3 Evolution ............................................................................................... 24 2.3.1 Subsidiarity as a constitutional principle ............................... 25 2.3.2 Subsidiarity as a political principle ........................................ 26 2.3.3 Subsidiarity as an economic principle ................................... 28 2.3.4 Summary ................................................................................ 30 3. Subsidiarity and the European Union ................................................................. 30 3.1 Early expressions .................................................................................. 30 3.2 The Maastricht Treaty ........................................................................... 32 3.3 Subsequent development within EU law .............................................. 34 4. Subsidiarity in the legal literature and case law .................................................. 35 4.1 The initial view from the commentary .................................................. 37 4.2 The case law of the Court of Justice ..................................................... 40 4.2.1 Case C-84/94 United Kingdom v. Council (Working Time) .. 41 4.2.2 Case C-376/98 Germany v. Parliament and Council (Tobacco Advertising) ......................................................... 44 4.2.3 Beyond Tobacco Advertising: retrograde steps? ................... 47 4.3 Renewed critique .................................................................................. 50 4.4 Bolstering subsidiarity‟s effectiveness .................................................. 54 5. Conclusion .......................................................................................................... 58 Chapter 2 Subsidiarity as a legal principle: more than just a restraint on the Union legislature? 1. Introduction ......................................................................................................... 62 2. The view from the literature ................................................................................ 63 2.1 Bermann: Taking subsidiarity seriously................................................. 65 2.2 Schilling: Subsidiarity as a rule and a principle ................................... 67 2 2.3 De Búrca: The Court of Justice as an institutional actor ...................... 72 3. The view from the case law ................................................................................ 74 3.1 Primary law ............................................................................................ 75 3.1.1 Case C-415/93 Bosman .......................................................... 75 3.1.2 Case C-174/04 Commission v Italy (Energy Markets) and Case C-326/07 Commission v Italy (Energy Markets) ........... 77 3.2. Secondary legislation ............................................................................ 81 3.2.1 Case C-332/00 Commission v. Belgium (Butter) and Case C-103/01 Commission v. Germany (Personal Protective Equipment) ............................................................ 81 3.2.2 Case C-518/08 Fundación Gala-Salvador Dali ..................... 82 4. The normative dimension .................................................................................... 84 4.1 Should subsidiarity bind the Court? ....................................................... 84 4.2 How should subsidiarity function?......................................................... 86 4.2.1 Determining subsidiarity‟s scope of application ..................... 87 4.2.2 The limits of subsidiarity ........................................................ 90 4.3 Possible objections to the application of subsidiarity as a restraint on the Court‟s interpretative functions ....................................................... 93 4.3.1 Too many difficulties to overcome? ....................................... 95 4.3.2 Summary ................................................................................. 98 4.4 Is subsidiarity only relevant to the Court‟s interpretative functions? ... 99 5. Conclusion .......................................................................................................... 102 Chapter 3 Obstacles to intra-EU movement: a converging and expanding framework 1. Introduction ......................................................................................................... 106 2. Obstacles to intra-EU movement ........................................................................ 107 2.1 Introduction ........................................................................................... 107 2.2 Excursus: subsidiarity and the justification of obstacles to intra-EU movement .............................................................................. 110 3. What constitutes an obstacle to intra-EU movement? ........................................ 113 3.1 Goods .................................................................................................... 113 3.1.1 MEQRs – Art 34 TFEU ......................................................... 114 3.1.2 MEQRs – Art 35 TFEU ......................................................... 118 3.2 Workers, establishment and services .................................................... 119 3.2.1 Overview ................................................................................ 119 3.2.2 Discrimination ........................................................................ 120 3.2.3 Further expansion ................................................................... 123 3.2.3.1 „Deterrent‟ and „dissuasive‟ effects ........................ 123 3.2.3.2 Market access .......................................................... 125 3.3 Capital .................................................................................................. 127 3.4 Union citizenship ................................................................................. 130 3 4. Conclusion: a converging and expanding framework ......................................... 133 Chapter 4 Existing responses to the problem of judicial overreach 1. Introduction ......................................................................................................... 138 2. The wholly internal rule ...................................................................................... 141 2.1 Origins and function ............................................................................. 141 2.2 Evaluating the impact of the wholly internal rule ................................. 142 2.2.1 Previous and actual intra-EU movement................................ 142 2.2.2 Potential intra-EU movement ................................................. 143 2.2.3 Union citizenship ................................................................... 145 2.2.4 Rottmann, Ruiz Zambrano and McCarthy ............................. 146 2.2.5 Summary ................................................................................ 148 3. Inherent obstacles to intra-EU movement ........................................................... 149 3.1 Overview ............................................................................................... 149 3.2 Joined Cases C-51/96 and C-191/97 Deliège........................................ 150 3.3 Evaluating the inherent obstacle device ................................................ 151 3.4 Summary ............................................................................................... 153 4. Effects too uncertain and indirect ....................................................................... 153 4.1 Overview ............................................................................................... 153 4.2 Case C-69/88 Krantz GmbH ................................................................. 154
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