EU Law - The Single Market

Описание: The single market is a at the heart of the Brexit debate as access to the market also depends on the free movement of labour. The single market is often taken for granted but required a lot of hard work starting mainly with the Single European Act 1986 that now forms a part of the Treaty on the Functioning of the European Union.

Article 26(1) removes the deadline for the single market as this is an ongoing task while 26(2) defines the single market as "an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured". To achieve these aims 26(3) describes the Council taking action based on the recommendations and advice of the Commission. Article 27 states that when doing this the Commission will take into account the effort required on the part of national economies and can allow for derogations in certain circumstances.

The main power for making legislation comes from Article 114 as Article 115 requires unanimity and only allows for the passing of directives. On the other hand Article 114 makes use of the ordinary legislative procedure and allows for regulations as well as directives. This power is not unlimited as seen in Tobacco Advertising [2000] where the ECJ held that the objective has to be the harmonisation of the internal market but even in Tobacco Advertising [2006] a small change to the original directive showed the broad approach the ECJ would be prepared to take.

There are also, however, qualifications within article 114. Article 114(2) state that the procedure cannot apply to fiscal provisions, free movement of people and employment rights. (3) meanwhile states that for health, safety, environmental and consumer protection the base line is a high level of protection based on the latest scientific research. However the most controversial qualification comes from Arts. 114(4)-(9) which potentially allows member states themselves to go against a harmonising measure. This is rarely used though and can only be applied in restricted circumstances. For (4) the concern must relate to environment, working environment or exceptions from art. 36 and only provides for the retention of existing legislation in that state. (5) does allow for new legislation to be passed but must be specific to that MS and based on new scientific evidence. Thus we can see this is not only restrictive within the Article but the checks from the Commission and the judgments of the ECJ will always be towards enforcing the treaty while the burden of proof itself is on the state. Finally Art. 114(10) allows member states to take temporary measures where there is a concern relating to Art.36.

In practical terms the EU uses this legislation to develop the single market through various approaches such as mutual recognition and setting standards in certain industries. The single market is an on going process and while it is scrutinised from a political and social standpoint it continues to harmonise things across all member states.