Maletić, Isidora --- "Derogations from the regulation of free movement: Article 114 TFEU" [2017] ELECD 280; in Koutrakos, Panos; Snell, Jukka (eds), "Research Handbook on the Law of the EU’s Internal Market" (Edward Elgar Publishing, 2017) 384

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 17

Section Title: Derogations from the regulation of free movement: Article 114 TFEU

Author(s): Maletić, Isidora

Number of pages: 15

Abstract/Description:

Article 114(1) TFEU (formerly Article 95 EC and, before that, Article 100a of the EC Treaty), enables the European legislature to adopt ‘measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market’. Even though certain limitations have been drawn as to the type of action that may be lawfully pursued in the name of market integration, legislative practice and judicial review are generally reflective of a broad discretion for the approximation of national laws pursuant to Article 114 TFEU. Accepted custom in this field has, over the years, given rise to unexpected paradoxes: centralized intervention for the purposes of harmonization has been regarded as not presupposing the existence of an actual link with free movement between the Member States in every situation; the possibility of future obstacles to trade has been viewed, subject to fulfilment of certain contested conditions, as a rationale for the co-ordination of national standards; bans on products or services have been seen as capable of promoting the establishment and functioning of the market. Inherent in the constitutional text of the clause, which has been thwarted by political compromise, is perhaps the most notable contradiction of all: the ambitious aspiration for harmonized standards is ultimately subject to the possibility for national derogation. Indeed, Article 114 TFEU (paras (4) and (5)) enables Member States, following harmonization, to maintain or introduce national provisions deviating from the attained approximation legislation.