Internal Market Adjudication and the Quality of Life in Europe

Abstract

The cases decided by the Court of Justice concerning free movement of goods and services are often seen in terms of a difficult balance between trade and consumer protection. This paper suggests that their major consequences are not for the consumer at all, but for quality of life in European societies. Legislation which restricts what can be sold, and who can sell it, has consequences for equality, autonomy, social cohesion, and identity which are greater in importance than any consumer-protective effect. That the Court’s focus is so unbalanced – it ignores these social concerns – is to do with several factors. Firstly, the Court has a transactional fixation, seeing contracts as essentially private matters which are of no concern to wider society. This view point is common in economic law, but unrealistic, and embodies some very controversial implicit political standpoints. Secondly, when the Court approaches the judicial review of national measures which restrict free movement it does not in fact engage in balancing at all, but seeks to reconcile interests, and to push integration forward. The ability of a national community to determine its own quality of life and express its values is something which evades easy reconciliation with a single market. On the contrary, integration brings unavoidable costs in autonomy and social concerns, and denial of this fact is harmful to both Europe and the EU. This argument proceeds by an examination of the case law concerning free movement, and the process of judicial review found within that law.

Keywords: Internal market; Court of justice; Balancing interests; Diversity in Europe; Proportionality