MITOS Y «MASS-MEDIA»

The general expansion of interactions between free movement and fundamental rights is not limited to instances of clash. In view of setting further the thesis’ boundaries, it is worth taking a moment to acknowledge, in practical terms, the different free movement/fundamental rights interfaces that have emerged. Although these all merit further examination, the subsection will also highlight the practical fundamental rights implications of the use of a

45 two-stage approach in instances of clash, that demonstrate why particular focus on this phenomenon is warranted here.

In addition to the clashes between free movement and fundamental rights, visible in Viking, Laval, Schmidberger, Omega and Dynamic Medien, fundamental rights can act as facilitators of free movement within the two-stage model. A corollary of this development has been the facilitation of fundamental rights by free movement, since the former can now benefit, in certain situations, from the procedural priority that the two-stage approach offers to free movement. Finally, clashes between fundamental rights might arise as a result of the operation of the internal market, leading to simultaneous instances of clash and congruence between free movement and different Member States’ fundamental rights rules.

The classic case demonstrating the ability of fundamental rights to facilitate free movement is

ERT.190 Here, the Court held that Member States must adhere to EU fundamental rights standards when acting in the scope of EU law.191 Accordingly, in addition to the evidentiary hurdles imposed at the justification stage by the principle of proportionality, activity restricting free movement must respect fundamental rights before it can constitute a justified derogation. This increase in evidential burden facilitates free movement.192

This development clearly also has the potential to benefit fundamental rights since it provides a new opportunity for external fundamental rights review of domestic measures. Moreover, in this context fundamental rights running congruent to free movement are able to share the procedural benefit of the two-stage approach. Domestic measures restrictive of fundamental rights face the evidentiary obstacles imposed as a result of the finding of a prima face breach of free movement. This potential was realised, most famously, in Carpenter.193 Mr. Carpenter ran a business in the UK that offered services to operators in other Member States. His third country national wife faced deportation. When the matter came before the Court of Justice, it held that:

190 _{Case C-260/89 ERT, n.53}

191 _{The use of the phrasing ‘implementing Union law’ in the Charter, cast doubt on this approach but was}

maintained in post-Lisbon Case C-617/10 Åklagaren v Fransson [2013] EU:C:2013:105

192 _{This development has itself led to debate in the literature e.g. F. Jacobs has argued that derogations, by their}

very nature, should fall outwith the scope of EU law, ‘Human Rights Law in the European Union’(2001) 26(4) ELRev 331, 337; by contrast, J. Weiler asks what is so revolutionary about obliging Member States to respect fundamental rights when availing themselves of derogations created by Union law, ‘Fundamental Rights and Fundamental Boundaries’ in The Constitution of Europe, (CUP, 1999), 123; see also Spaventa, n.184

46 It is clear that the separation of Mr. And Mrs. Carpenter would be detrimental to their family life and, therefore, to the conditions under which Mr. Carpenter exercises [the fundamental freedom to provide services]. That freedom could not be fully effective if Mr. Carpenter were to be deterred from exercising it by obstacles raised in his country of origin to the entry and residence of his spouse.194

Here, the fundamental right to family life under Article 8 ECHR not only ran congruent to Article 56 TFEU but was actually facilitated by it. At national level the normative clash in

Carpenter was between the Carpenter family’s Article 8 ECHR rights and immigration policy as a public interest. By engaging EU law, the conflict becomes one between the fundamental right to family life and the free movement of services, on the one hand, and national immigration rules on the other. It is also worth noting here, though the point will be developed in chapters two and four, that the connection between the family issues involved in the case and Mr. Carpenter’s exercise of the freedom to provide services has been described as ‘ephemeral’.195

The Court merely declares that the separation of Mr. and Mrs. Carpenter would be ‘detrimental’ to his provision of services with no concrete explanation of the direct impact it would have.196 Nevertheless, the automatic use of the two-stage model when free movement is restricted in any way triggers the imposition of the proportionality test on conflicting measures. Not only has a fundamental right been restricted, but free movement has been breached. Thus, the scales are more heavily loaded in favour of fundamental rights than they might be outside of the EU framework.

In this context, the two-stage approach might be viewed as unproblematic, since it works to the benefit of fundamental rights.197 Indeed, the broad definition of a breach of free movement, displayed in Carpenter, creates a portal through which individuals, dissatisfied with how fundamental rights issues have been adjudicated domestically, can access a potentially different result at EU-level. However, this raises the important question of whether restrictions on free movement, especially those of a tangential nature, are sufficient, on their own, to render the CJEU an appropriate locus for assessing complex and diverse policy

194 _Para.39 195

N. Nic Shuibhne, ‘(Some of) The Kids Are All Right: Comment on McCarthy and Dereci' (2012) 49 CMLRev 349, 374

196 _{Although the Court makes an unconnected reference to Mrs. Carpenter’s childcare role during its justification}

analysis, para.44. The referring court had also asked whether childcare might have provided indirect assistance to Mr. Carpenter’s provision of cross-border services, although this question was not directly addressed by the CJEU, paras.19-20.

47 decisions made at Member State-level. This issue is unpacked in s.4.3 from the point of view of the division of competences between the Union and its Member States.198 Chapter two additionally highlights that such policy review, by the CJEU, can limit Member States’ abilities to design systems of social protection in instances of clash between free movement and fundamental rights. Here, the structural preference rests with free movement, working

against fundamental rights. Indeed, the same imbalanced structural framework that benefits fundamental rights in Carpenter places them at a disadvantage in Viking and Laval.

Our next free movement/fundamental rights interface, involves clashes between fundamental rights that are caused by the exercise of free movement. Familiapress provides a good example of this phenomenon.199 German publishers, wishing to sell magazines containing prize competitions in Austria, challenged a ban on such publications by that Member State as a breach of Article 34 TFEU on free movement of goods. The prohibition operated to protect the freedom of expression since smaller publishers could not offer such incentives to purchase, putting their continued existence at risk in a Member State that already suffered a lack of press diversity. The CJEU noted, however, that the Austrian measure also interfered with the freedom of expression of both the German publishers and their potential readership in Austria. This rights clash, between the German interpretation of the fundamental right to freedom of expression and that of Austria, only occurs because free movement allows for the flow of goods across their borders. In such a situation, the suitability of the CJEU as the site of adjudication is less open to challenge. As Nic Shuibhne argues, such a ‘rights review [arising from the operation of the internal market]…ultimately can only fall to the Court of Justice’.200

However, it remains arguable that the CJEU’s current two-stage approach challenges its capacity to address this new fundamental rights challenge. This model will automatically favour the protection of the fundamental right running congruent to free movement over Member State fundamental rights norms that clashes with it. On the one hand, Member States might have to accept alteration to their methods of fundamental rights protection in light of their commitment to the internal market. On the other, as chapter two discusses in more detail, the breadth of free movement subjects important areas of Member State law and policy, having only oblique and incidental impact on the internal market, to CJEU review. Moreover, situations idiosyncratic to the Member States, such as low press

198 _{See also Perišin, n.181, 80} 199

Case C-368/95 Familiapress, n.19

200 _{N. Nic Shuibhne, ‘Margins of Appreciation: national values, fundamental rights and EC free movement law’,}

48 diversity in Austria, might warrant specific methods of fundamental rights protection. Nevertheless, the Austrian rules are exposed to the evidentiary hurdles operating at the justification phase of the two-stage approach, not imposed on the German approach to freedom of expression, which runs congruent to free movement. This type of free movement/fundamental rights interface is relevant to this thesis. As Nic Shuibhne highlights,

Omega can be re-categorised as a conflict, activated by the exercise of free movement, between the German understanding of the right to human dignity, which did not allow for ‘playing at killing’ and the UK definition of that right, which did.201

Dynamic Medien, Viking

and Laval can also be viewed in this way.

The above discussion of the distinctive fundamental rights needs of Austria in Familiapress

has already highlighted one component of our ‘impact trio’ i.e. the ways in which the two- stage approach can threaten fundamental rights standards within the Member States. A full investigation of the practical fundamental rights consequences of the two-stage model is best conducted in chapters two, three, and four since they only arise as a result of the constitutional developments discussed in those chapters. In general, the CJEU only has occasion to review Member State fundamental rights rules, in this context, because of the expansion in the scope of the free movement provisions. However, a brief explanation of the other constituents of this ‘impact trio’ will be provided here as a point of reference.

It will be recalled that as part of the proportionality test, which operates pursuant to the two- stage model, fundamental rights must be protected in a way that is necessary for that goal. This is generally determined by reference to whether there are methods for attaining the relevant objective that are less restrictive of free movement.202 However, viewing necessity through a free movement lens does not always offer adequate legal space to consider the

effectiveness of alternatives, particularly in light of the specific characteristics of a Member State. Familiapress gives us one example in this regard. Similarly, in the context of consumer protection, safeguarded by Article 38 CFR, the Court’s reliance on labelling as an alternative to Member State measures aimed at minimising consumer confusion arguably neglects to consider, in some cases, unique consumer needs arising from a Member State’s language or

201 _Ibid

49 traditions.203 Second, an approach to necessity focused on what is least restrictive of free movement can underappreciate the inherently restrictive nature of some fundamental rights. Thus, commenting on Viking and Laval, Novitz remarks that ‘[i]t seems highly problematic that the legality of unions engaging in industrial action…depend[s] on whether…it would have been possible to achieve their objectives in a way which was, perhaps marginally, less restrictive of the free movement rights of, in many cases, the very enterprise with which they are in dispute’.204 Finally, where complex Member State programmes for the protection of fundamental social rights restrict free movement, alternative means of attaining such social goals might not be feasible in light of practical and budgetary concerns. For instance, in

Watts,205 the Court held that recipients of medical services were entitled, pursuant to Article 56 TFEU, to claim reimbursement from the UK’s National Health Service for treatment received in other Member States, in certain circumstances. Since the NHS is funded from general taxation, is free at the point of delivery, and had no method for such reimbursement, the ruling arguably posed a risk to the UK’s programme of protecting the fundamental right to health.206

This subsection has outlined the different types of fundamental rights outcomes that are possible as a result of the use of the two-stage model. It has conceded that in cases of congruence between free movement and fundamental rights, the two-stage approach can actually operate to the benefit of fundamental rights but has argued that this is insufficient to neutralise the problems arising from the adoption of this imbalanced framework in instances of clash. Specifically, the focus of the proportionality test on whether fundamental rights can be protected in a way that is less restrictive of free movement reduces legal space for consideration of the idiosyncratic fundamental rights needs of the Member States, the peculiarities of certain types of fundamental rights, and the logistical and financial complexities involved in designing systems of social protection. Having delineated the key practical issues at stake, the discussion now turns to the theoretical justifications for affording special protection to fundamental rights.

203 _{Detailed in ch.2. See Case C-315/92 Verband Sozialer Wettbewerb v Clinique Laboratories and Estée Lauder}

[1994] EU:C:1994:34

204 _{T. Novitz, ‘A Human Rights Analysis of the Viking and Laval Judgments’ (2007–2008) 10 CYELS 541, 560-}

561

205 _{Case C-372/04 Watts v Bedford PCT [2006] EU:C:2006:325} 206 _{Defined as ‘fundamental’ by Art.35 CFR. Discussed further in ch.2}

50

4.2.Undermining the fundamentality of fundamental rights? Theoretical justifications