Nic Shuibhne, Niamh --- "Fundamental rights and the framework of internal market adjudication: is the Charter making a difference?" [2017] ELECD 274; in Koutrakos, Panos; Snell, Jukka (eds), "Research Handbook on the Law of the EU’s Internal Market" (Edward Elgar Publishing, 2017) 215

Book Title: Research Handbook on the Law of the EU’s Internal Market

Editor(s): Koutrakos, Panos; Snell, Jukka

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781783478095

Section: Chapter 11

Section Title: Fundamental rights and the framework of internal market adjudication: is the Charter making a difference?

Author(s): Nic Shuibhne, Niamh

Number of pages: 24

Abstract/Description:

Article 26(2) TFEU establishes that ‘[t]he internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties’. This wording suggests that the goal of realising a free movement-driven internal market sits within – and is in fact contained by – the wider structure of the Treaties and the many objectives committed to therein. The breadth of parallel Union ambitions outlined in Article 3(3) TEU reinforces that interpretation. Fundamentally, it reflects too the idea that ‘the Union is not only a market to be regulated, but also has values to be expressed’. However, some analyses of pre-Lisbon case law argued that the objective of free movement too strongly ordained the legal shape of the internal market in the framework of judicial review applied by the Court of Justice; that other – legitimate – values were improperly side-lined in consequence; and that this approach was particularly problematic when the values in question had the status of fundamental rights. As a consequence of the entry into force of the Lisbon Treaty, the Union now ‘recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union … which shall have the same legal value as the Treaties’ (Article 6(1) TEU). That provision solves half of a problem by communicating legal equivalence for Treaty freedoms and fundamental rights. But where does that leave the question of value distinctiveness?