Is the Union legislature bound by the fundamental freedoms? Can it harmonize measures that would, at Member State level, be prohibited restrictions on internal market freedoms? And is it allowed to use secondary law to authorize Member State measures that would other wise conflict with market freedoms? Assessments diverge widely in the European legal literature. To clarify the issue two conflict sequences are analyzed: the disputes over the directive on the prohibition of tobacco advertising and the posting of workers directive, including its most recent revision. It turns out that the Union legislature is bound by the fundamental freedoms. However, the binding is loose and its contours as yet unclear. The European legislator should actively and courageously test the unclear limits of the discretion allocated to it.
Das Dokument ist öffentlich zugänglich im Rahmen des deutschen Urheberrechts.