FREE MOVEMENT OF PERSONS IN THE EUROPEAN UNION BARRIERS TO MOVEMENT IN THEIR CONSTITUTIONAL CONTEXTPDF电子书下载

Chapter 1. The Rights of Economic Migrants: An Overview 1

1. The Personal Scope of the (Economic) Free Movement Provisions 2

1.1. Article 39 EC and the Definition of 'Worker' 2

1.1.1. Work Seekers 4

1.1.2. When can Article 39 EC be Invoked? 6

1.2. The Personal Scope of Article 43 EC 6

1.3. The Personal Scope of Article 49 EC and the Notion of 'Service' 7

2. The Material Scope of the Free Movement of Persons Provisions: The Rights Granted by the Treaty 11

2.1. The Right to Leave, Enter, Stay and Move 12

2.1.1. The Right of Residence 14

2.2. The Right Not to be Discriminated Against 16

2.2.1. Direct Discrimination 17

2.2.2. Indirect Discrimination 20

3. Examples of Indirect Discrimination in the Context of Free Movement 24

4. Indirect Discrimination and the Free Movement of Services: Mutual Recognition and Double Burden 26

5. The Scope of the Principle of Non-discrimination 27

6. The Family of the Economic Migrant 30

7. Conclusions 32

Chapter 2. Exploding the Boundaries: The Case Law on the Free Movement of Services in the 1990s and Beyond 35

1. The Free Movement of Goods-the Sunday Trading Saga and the Keck Ruling 36

2. Non-discriminatory Barriers to the Provision of Cross-Border Services 42

3.(Un)Lawfully Providing a Service? Challenging the Rules of the State of Establishment 44

4. The Health Care Cases and the Definition of a Service Provided for Remuneration 50

5. A Critical Analysis of the Court's Reasoning 54

6. The Authorization Requirement 58

7. Conclusions 60

Chapter 3. Barriers to the Free Movement of Workers and Establishment Beyond Discrimination 63

1. Non-discriminatory Restrictions to Freedom of Establishment and the Free Movement of Workers 64

2. The Post-Gebhard Case Law 68

3. The Case Law on Free Movement of Capital 70

4. The Gebhard Test, Tax and Social Security Rules 71

5. Conclusions 73

Chapter 4. Providing a Framework to the Free Movement Provisions:The Narrow Approach 75

1. Discrimination, Double Burden and Mutual Recognition 77

2. The Mutual Recognition Approach 80

3. The Narrow Approach as a Prescriptive Model 84

4. Conclusions 88

Chapter 5. Market Access: A Concept in Search of a Definition 89

1. Market Access as (Almost) a Descriptive Model:The Case Law on Persons 90

2. Market Access: A Concept in Search of a Definition? 93

3. Substantial Hindrances to Market Access:An Intuitive View? 95

4. The Gebhard (R)evolution 99

5. Formal Restrictions to Market Access:Not All that Glitters is Gold 102

6. Market Access and the Internal Market 105

6.1. Formal Barriers and Absolute Bans 105

6.2. Formal Barriers and Internal Market 106

6.3. Formal Barriers and Movement 108

7. Conclusions 110

Chapter 6. Union Citizenship 113

1. From Sala to Baumbast: The Tortuous Path Towards Union Citizenship 115

2. The Right to Challenge National Rules Falling Within the Scope of the Treaty and Beyond 123

3. Mr Carpenter as a Citizen 126

3.1. The Purely Internal Situation 127

3.2. Giving Effect to Article 17 EC 128

3.3. The Elimination of Reverse Discrimination Articles 17 and 12 EC 132

4. Conclusions 133

Chapter 7. Mr Gebhard Meets Mr Baumbast: Towards a More Coherent Theory of Free Movement 135

1. Union Citizenship and the Other Free Movement of Persons' Provisions: Creating the 'Fundamental Status' of Union Citizens 137

2. Similarities in Interpretation: The Hermeneutic Technique Adopted by the Court 138

3. Mr Gebhard Meets Mr Baumbast: Towards a Coherent Constitutional Framework 142

3.1. A Right to Exercise an Economic Activity in Another Member State 143

3.2. The Gebhard Case Law 146

3.3. The Different Approach Adopted in Relation to Tax Rules 148

4. Seeking Consistency - the Case Law, the Treaty and the Cross-Border Element 149

4.1. The Cross-Border Element 150

5. Conclusions 153

Table of Cases 157

Bibliography 167

Index 177