Fundamental Freedoms, Fundamental Rights and the Scope of Free Movement Law

Francesco De Cecco 

Newcastle University - Newcastle Law School
October 8, 2013

German Law Journal (Forthcoming) 
Abstract:      

This paper explores the question whether “fundamental freedoms”, the four EU internal market freedoms, should be regarded as fundamental rights. The Charter of Fundamental Rights appears to treat some, but not all, fundamental freedoms as fundamental rights. The paper tries to make sense of this dichotomy by relying on an account of fundamental rights that adopts a non-instrumental focus on the right-holder. It argues that certain free movement provisions, namely the free movement of goods and of capital, cannot be characterised as fundamental rights because they are inherently instrumental — they are a means to the internal market end. By contrast, the other free movement provisions appear to match the account of fundamental rights adopted here. As this paper aims to show, the classification of certain or all of the fundamental freedoms as fundamental rights is a question that affects the interpretation of the scope of the free movement provisions. Moreover, as will be seen, the question is closely related to, and has an impact on, the debate on the convergence between the free movement provisions and on the persistence of the wholly internal rule.

Number of Pages in PDF File: 24

Keywords: EU Law, Fundamental Freedoms, Fundamental Rights.

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2337577