The Change in the Approach of the Court of Justice of the European Union in the Context of Market Freedoms and Internal Situations

28 Pages Posted: 27 Nov 2018

See all articles by Venelin Terziev

Venelin Terziev

Georgi Rakovski Military Academy, Sofia, Bulgaria

Stefcho Bankov

Vasil Levski National Military University

Marin Georgiev

Kaneff University Hospital

Date Written: October 31, 2018

Abstract

In its jurisprudence the Court of Justice of the European Union (CJEU) has changed its approach towards the purely internal situation rule applicable in the context of the market freedoms. From the 1990s on wards the Court has showed a greater leniency in accepting that certain cases fall within the scope of Union law, as compared to in the years before. This has been done in various ways, depending on the specific fundamental freedom at stake in the case, but always resulted in a relaxing of the fulfillment of the test used for determining whether a case falls within the scope of a market freedom - the linking factor test. More specifically, the Court seems to be accepting that hypothetical future scenarios are sufficient to bring a case within the scope of EU law even though the underlying facts of the case do not satisfy the test, or even to rule in cases which clearly do not fulfill some of the conditions of the test. The overall change of approach towards the purely internal rule can also be seen in an issue of jurisdiction, and not scope, which is still however relevant. This is the fact that the Court has begun issuing preliminary reference rulings in purely internal cases whereby the question referred is in reality hypothetical. It will be claimed that the CJEU does so without requiring sufficient proof by the domestic court that an EU law interpretation is required.

Keywords: market freedoms, the linking factor test, preliminary reference rulings

JEL Classification: H55, H56

Suggested Citation

Terziev, Venelin and Bankov, Stefcho and Georgiev, Marin, The Change in the Approach of the Court of Justice of the European Union in the Context of Market Freedoms and Internal Situations (October 31, 2018). Available at SSRN: https://ssrn.com/abstract=3276590 or http://dx.doi.org/10.2139/ssrn.3276590

Venelin Terziev (Contact Author)

Georgi Rakovski Military Academy, Sofia, Bulgaria ( email )

Sofia, 1000
Bulgaria

Stefcho Bankov

Vasil Levski National Military University ( email )

Bulgaria

Marin Georgiev

Kaneff University Hospital ( email )

Rousse
Bulgaria

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