1. Introduction
What is the relationship between comparative law and free movement law? Although the relationship between comparative law and European Union (EU) law has been analysed extensively in the academic literature,Footnote 1 the specific role of comparative analysis in free movement law remains much more ‘terra incognita’.Footnote 2 This is despite the fact that, based on its structure and aims, free movement law could be regarded as an interesting ‘laboratory’ for comparative lawyers. The interaction between comparative law and free movement law takes place on two different levels.
First, many free movement cases involve processes of interaction between the legislation of two Member States. In these cases, it is argued that the fact that the rules in one Member State (e.g. on the required ingredients of a product, or the safety standards that a product must comply with before it can be placed on the market) are different from the rules in another Member State creates an obstacle to trade in the internal market. Parties can rely on the free movement provisions in the Treaty on the Functioning of the European Union (TFEU)Footnote 3 to challenge restrictions on free movement created by the Member States. This strategy to remove obstacles to free movement is called ‘negative integration’: national obstacles to free movement are reviewed—and potentially removed—under the free movement provisions. This strategy to improve the functioning of the internal market is supplemented by ‘positive integration’, which means that the EU relies on harmonisation to remove obstacles to free movement by adopting EU legislation.
Because of the close interaction between different national rules, negative integration in free movement law could be characterised as a comparative dialogue between Member States.Footnote 4 This requires detailed discussion on the differences between national laws throughout the structure of free movement cases, from the analysis of the scope of application of the free movement provisions to the proportionality test.Footnote 5 The Court of Justice of the European Union (CJEU) is responsible for structuring and facilitating these comparative dialogues. This exercise in ‘legal empathy’Footnote 6 results in a process of interaction in which Member States are required to engage with each other’s regulatory choices—and, in particular, to explain on what basis they have made different regulatory choices and explore the extent to which national legislation differs.
Second, the CJEU can rely on comparative analysis in adjudicating on free movement cases. This is a much more concrete interaction between comparative law and free movement law. Intuitively, free movement lawyers will immediately turn to the proportionality test. The question whether a restriction on free movement is necessary to protect a particular public interest requires analysis of potential alternative measures which would be less restrictive of free movement, opening up the possibility of comparative analysis. Even if the CJEU does not always explicitly link its analysis of alternative measures to the specific Member States in which they have been adopted, the necessity test regularly involves a comparative perspective, also through the interventions of other Member States in the proceedings. However, it is argued in this article that the role of comparative analysis in free movement cases is not limited to its application in the proportionality assessment.
This article focuses on the latter interaction, examining the extent to which the CJEU relies on comparative analysis in its judgments in free movement cases. This comparative analysis should go beyond the specific legislation of the Member States involved in the particular case to take into account the position in national law of Member States whose legislation is not directly being challenged or scrutinised. Such a comparative perspective might be provided—or triggered—by Member States which are intervening in a case, or by the European Commission (Commission) when it refers to examples from other Member States. However, the key starting point of this article is that this ‘external perspective’ must have been adopted by the CJEU in its reasoning, in the sense that the CJEU explicitly referred to—and engaged with—the position in national law of Member States which were not directly involved in the case.
From a broader perspective, this article seeks to identify free movement law as a field of comparative analysis and to highlight the important role of comparative analysis in free movement cases. This close connection between comparative analysis and the free movement provisions provides an important message to EU lawyers: the direction that the CJEU takes in free movement cases is much more closely connected to the national laws of the Member States than is often assumed, and the specific purpose of comparative analysis in free movement cases is often to protect differences rather than to eliminate them. In identifying free movement law as a field of comparative analysis, it is hoped that this article will also provide the foundations for a bridge between free movement law and comparative law more generally, and will invite comparative lawyers to analyse free movement law as a specific field of comparative law.
The article begins by providing some background to the scope and purpose of comparative analysis in free movement cases. First, the ‘location’ of comparative analysis in the structure of free movement cases will be analysed, asking whether it primarily takes place in the context of the proportionality test, or whether it has a broader role in the analysis of free movement cases? Second, the comparative methods employed by the CJEU will be examined. It is unusual for the CJEU to specifically refer to the national laws of Member States in its judgment in a free movement case,Footnote 7 but it could be that more comparative analysis is conducted by the CJEU behind the scenes. Does it only rely on comparative analysis in an abstract—or intuitiveFootnote 8—way, or does it also engage in a detailed comparison of national laws which are not directly involved in a specific free movement case? What are the comparative methods relied on by the CJEU, and is it possible to characterise negative integration as a comparative method in itself? Third, the article will analyse the CJEU’s reasons for relying on comparative analysis in free movement cases.
Against this background, three main claims are made. First, it will be shown that the CJEU relies on comparative analysis in all the structural stages of free movement cases, not merely in the proportionality assessment. In particular, it plays an important role in the identification of the scope of application of the free movement provisions.
Second, a direct link can be made between comparative analysis and the effective application of the free movement provisions. The CJEU relies on comparative analysis to decide which situations fall within the scope of application of the free movement provisions. The latter decision is linked to the CJEU’s analysis of the extent of differences between national laws. Whilst, in some cases, comparative analysis is relied on to determine the appropriate standard or level of protection in free movement law (with the aim of eliminating differences in national laws),Footnote 9 in most cases, it is directly linked to the CJEU’s aim of protecting differences in national laws.
Third, it is argued that as a result of the close link between comparative analysis and the effective application of the free movement provisions, negative integration can be characterised as a comparative law method. One dimension of this method is based on the traditional, functional comparative method: comparative analysis is used to identify the most effective and most efficient solution in national law, and this standard is adopted in free movement law.Footnote 10 However, the dominant method of comparative analysis in free movement cases is based on a cosmopolitan pluralist method, which seeks to manage differences in national laws in a non-hierarchical way.Footnote 11 Through this approach, the purposes of negative integration are to: first, identify differences in national laws; second, analyse the extent of these differences; and, third, assess the legitimacy of these differences in the context of the internal market. From this perspective, free movement law deserves closer attention from comparative lawyers. Furthermore, the CJEU’s emphasis on the protection of differences in national law shows that the development of free movement law is much more closely connected to—and dependent on—the national laws of the Member States than is often assumed.
The structure of the article is as follows. Section 2 analyses the relationship between free movement law and comparative law. Section 3 provides an overview and analysis of the main free movement cases in which the CJEU has relied on comparative analysis, focusing on the location of comparative analysis and the comparative methods used by the CJEU. This facilitates a detailed focus on the aims of comparative analysis by the CJEU in Section 4. Section 5 analyses the relationship between comparative analysis and the effective application of the free movement provisions. It divides the cases into five different categories, four of which support the aim of comparative analysis being to protect differences between national laws. Finally, Section 6 looks at the broader implications of this argument, characterising negative integration as a comparative law method, labelling it ‘the law of differentiation’. Section 7 concludes.
2. The relationship between free movement law and comparative law
Although the relationship between free movement law and comparative law has not been analysed extensively, the interaction between comparative law and EU law has been a more regular topic in the academic literature.Footnote 12 Many of these contributions have come from judges of the CJEU,Footnote 13 and most of them have a similar undertone: even if comparative analysis is not being explicitly conducted in the judgments of the CJEU, primarily because of its emphasis on the uniform and effective application of EU law,Footnote 14 comparative analysis does take place behind the scenes.Footnote 15 The CJEU’s Research and Documentation Directorate provides important information on the national laws of the Member States, and the European Commission (Commission) is often asked to provide an overview of the legal position in the Member States in proceedings before the CJEU.Footnote 16 Moreover, the judges of the CJEU themselves bring a comparative perspective to the deliberations on individual cases.Footnote 17 Judicial academic contributions on this subject could almost be seen as a ‘PR exercise’ on the part of the CJEU, aiming to convince the Member States of the bottom-up nature of EU law, and to emphasise the respect for national law and for the regulatory approaches developed in national law. As such, analysis of the relationship between comparative law and EU law is part of the ongoing dialogue between the CJEU and national courts on the autonomy and primacy of EU law.
In an early contribution on the subject, Pierre Pescatore identified a number of substantive fields of EU law in which comparative analysis plays a particularly important role: the EU’s legislative system, the protection of fundamental rights and the EU’s non-contractual liability.Footnote 18 In the field of fundamental rights, the development of general principles of EU law, based on the legal principles and traditions common to the Member States, provides an important vehicle for comparative analysis by the CJEU. In addition, Pescatore identified a role for comparative analysis in resolving ‘specific legal issues’,Footnote 19 including one example of a free movement case.Footnote 20 He emphasised the important role of the Commission in conducting and presenting the results of comparative analysis in proceedings before the CJEU. In relation to the comparative methods employed by the CJEU, Pescatore distinguished between an analytical method, in which comparative analysis is relied on to resolve specific legal issues, and more intuitive comparative analysis, which is mostly linked to the development of general principles of EU law.Footnote 21 In analysing the aims of comparative analysis, Pescatore focused on how it could be used to identify solutions to legal issues which would be acceptable to most—or a majority—of the Member States. He used the French term ‘moyenne raison’,Footnote 22 which is best translated as ‘a middle way’ in this context.
About 20 years later, Koen Lenaerts suggested three main roles for comparative analysis in EU law: gap-filling (similar to one of the roles identified by Pescatore), interpretation of an EU law concept, and the review of the compatibility of national law with EU law.Footnote 23 With gap-filling, if EU law is silent on a particular issue, the CJEU relies on comparative analysis to fill the gap left by EU law. In these cases, Lenaerts argued that if there is already strong convergence between national legal orders, this makes it possible for the CJEU to adopt a solution which is ‘the biggest common denominator’, or which provides the ‘highest standard of protection’ or which is the ‘most performing law’.Footnote 24 He emphasised that if there are significant contradictions between national laws, this would be an important reason for the CJEU to take a hands-off approach and to refrain from imposing an EU-wide solution which would not be supported in certain Member States. Lenaerts noted that the situation was different if the CJEU relied on comparative analysis in the interpretation of an EU law concept. If there are significant differences between national legal solutions, this could be a justification for the CJEU to adopt an autonomous EU law interpretation of a particular legal concept.Footnote 25Alternatively, the CJEU might choose to ‘import’ a national interpretation of a concept and adopt this into EU law. In analysing the compatibility of national law with EU law, Lenaerts described the CJEU as engaging in a ‘reconciliation process’ of national law with EU law.Footnote 26 If such reconciliation was not possible, national law would be declared incompatible with EU law, or national law would have to ‘live with the consequences’ of a particular regulatory choice.Footnote 27 Free movement law did not feature prominently in the analysis by Lenaerts, except in the context of remedies for breaches of the free movement provisions.
The clearest link between comparative analysis and free movement law was made by Miguel Poiares Maduro in We, the Court. One of his core arguments was that, in the context of Article 34 TFEU,Footnote 28 the CJEU would regularly adopt the solution proposed by the Commission as the appropriate legal standard in free movement law.Footnote 29 The position adopted by the Commission would reflect the position of the legislation of a majority of the Member States. As such, Maduro developed the terms ‘judicial majoritarianism’ and ‘majoritarian activism’ in the context of free movement law: the CJEU relies on the position adopted by a majority of Member States to decide on the relevant standard or level of protection in EU law.Footnote 30 It is clear that Maduro’s thesis was more closely based on—and linked to—comparative institutional analysis than comparative analysis.Footnote 31 He did not engage in detailed analysis of the ways in which the CJEU conducts comparative analysis in free movement cases; rather, his focus was on the interaction between national and EU institutions in deciding on the outcome of free movement cases. His ‘impressionistic’ use of comparative analysis was criticised by Robert Schütze, who argued that, in the context of Article 34 TFEU, the CJEU does not engage in comparative analysis on a regular basis.Footnote 32 The fact that the CJEU adopts the arguments made by the Commission cannot be relied on as an indicator of a majoritarian approach, because the Commission (as the EU’s supranational institution) does not necessarily represent the position of a majority of the Member States.Footnote 33 Having read all CJEU judgments on Article 34 TFEU, Schütze argued that, in most cases, the CJEU’s comparative analysis is limited to analysis of the legislation of the two Member States involved in the specific case.Footnote 34
Most free movement lawyers will agree that there is little detailed comparative analysis in free movement judgments. At the same time, the CJEU does engage with the national laws of the Member States on a regular basis. The next section identifies cases in which the CJEU went beyond comparative analysis of the legislation of the two Member States involved in the case, and in which it explicitly engaged with—and relied on—the legal position of Member States which were not directly involved in the specific dispute. It will be shown that a distinction can be made between comparative analysis in abstracto and comparative analysis in concreto. When the CJEU engages in comparative analysis in abstracto, it does not engage in detail with the specific differences in national laws.Footnote 35 The aim of the comparative analysis is to indicate the existence of differences between the laws of the Member States, and potentially also the extent of these differences. With comparative analysis in concreto, the CJEU engages explicitly with a particular regulatory choice made by a Member State or a number of Member States. The focus is not only on the fact that there are differences in national laws—the CJEU also engages with the substance of the regulatory choices made by the Member States.
At this point, it should be emphasised that it is impossible to search for comparative analysis in free movement cases simply by using search terms on the search form of the CJEU’s website. As indicated by Pescatore and Lenaerts, the comparative analysis conducted by the CJEU is less explicit. For that reason, the present analysis began with free movement cases in which the author knew that the CJEU had relied on comparative analysis. After a preliminary analysis of these cases, a search was undertaken for a number of different ‘formulae’ used by the CJEU when it engaged in comparative analysis, such as phrases like ‘in certain Member States’ and ‘from one Member State to another’. References to other cases in the judgments which had been identified were also followed up on. The cases which are analysed in Section 3 are representative of the different ways in which the CJEU relies on comparative analysis in free movement cases. However, the analysis is not intended to be exhaustive. The purpose is to identify the different ways in which the CJEU uses comparative analysis in free movement cases (the methods of comparative analysis), and to analyse in which stages of free movement cases comparative analysis is relied on by the CJEU (the location of comparative analysis). The specific aims of comparative analysis by the CJEU in free movement cases are analysed in more detail in Section 4.
3. Comparative analysis in the free movement judgments of the CJEU
As a starting point, it should be emphasised that comparative analysis can be identified in all the stages of assessment of free movement cases. Section 3.1 will show how the CJEU relies on comparative analysis in the identification of the scope of application of the free movement provisions. Moreover, comparative analysis is relied on in the analysis of the direct effect of the free movement provisions. Section 3.2 will analyse the role of comparative analysis in the assessment of restrictions on free movement, the grounds of justification and the proportionality test.
3.1. Comparative analysis in the assessment of the scope of application and direct effect of the free movement provisions
In relation to the scope of application of the free movement provisions, in Josemans, the CJEU had to decide whether the local authorities in Maastricht could adopt a rule which provided that soft drugs could only be sold to citizens who were resident in the Netherlands.Footnote 36 This residence requirement was challenged under Article 56 TFEU. In analysing whether Article 56 TFEU was applicable, the CJEU compared national legislation on the sale of cannabis. It found that ‘since the harmfulness of narcotic drugs, including those derived from hemp, such as cannabis, is generally recognised, there is a prohibition in all Member States on marketing them, with the exception of strictly controlled trade for use of medical and scientific purposes’.Footnote 37 On that basis, the CJEU held that Article 56 TFEU was not applicable to a service which was unlawful in all Member States. Whilst this assessment should be regarded as comparative analysis in concreto because the CJEU relied on the specific legal position on the sale of cannabis in all Member States, it did not have to engage in a very detailed or complicated comparative assessment. The reason for the similarity in the legislation of the Member States was that they had all signed up to the same international convention.Footnote 38 The CJEU chose to take a formalistic approach which focused on the form of the national legislation—it did not explicitly deal with the issue that, in practice, the sale of cannabis was ‘tolerated’ in the Netherlands (in the sense that no prosecution would be brought for the sale of cannabis below a certain amount).
The CJEU held that Article 56 TFEU was not applicable in Josemans because the Member States had all adopted the same legal position. However, the outcome is different when Member States have made different regulatory choices and when there are significant differences in national laws. Grogan provides one of the main examples.Footnote 39 In this case, an Irish non-governmental organisation applied for an injunction to prohibit Irish student unions from distributing leaflets with information about abortion clinics in England. At the time of the case, abortion was still prohibited by the Irish Constitution. The CJEU held that abortion services fell within the scope of application of Article 56 TFEU despite the fact that they were unlawful in Ireland. It found that, because abortion is ‘lawfully practised in several Member States’,Footnote 40 it did fall within the scope of the concept of ‘services’ under Article 57 TFEU. Moreover, the CJEU held that ‘[i]t is not for the Court to substitute its assessment for that of the legislature in those Member States where the activities in question are practised legally’.Footnote 41 As a result, if a service is lawfully provided in one Member State, this is sufficient to bring the case within the scope of application of the free movement provisions. Although the CJEU referred to ‘several Member States’ in its judgment, the way in which it relied on comparative analysis was rather abstract. While Advocate General (AG) Van Gerven engaged in a comparative assessment of the legislation on abortion in certain Member States in his Opinion,Footnote 42 the CJEU did not appear to be interested in the detail of national legislation—what mattered was the fact that the service was lawful in some Member States, while unlawful in others. In Grogan, the main purpose of the comparative analysis was to find that, if a service is prohibited in one Member State, but lawfully provided in another Member State, the service recipient is protected by Article 56 TFEU. Although the CJEU ultimately found that Article 56 TFEU was not applicable because of a missing economic link between the student unions in Ireland and the abortion clinics in England, EU citizens have a free movement right to receive abortion in Member States in which abortion is lawfully provided.
From Grogan, a link can be made to the CJEU’s earlier judgment in Daily Mail. Footnote 43 In this case, the Daily Mail wanted to transfer its central management from the United Kingdom (UK) to the Netherlands for tax purposes. Because the UK had adopted an incorporation approach to the seat of companies, Daily Mail could transfer its central management to another Member State without losing its status as a company under UK law. However, UK law imposed a condition: the UK Treasury had to consent to the transfer of the Daily Mail’s central management from the UK to the Netherlands. This requirement was challenged by the Daily Mail under Article 49 TFEU. The CJEU recognised that the Commission had explicitly referred to the differences in national company law, noting that some Member States used the incorporation approach, whilst other Member States had adopted an approach based on the ‘real seat’ of a company.Footnote 44 The CJEU engaged in a detailed assessment of the differences in the approaches adopted by the Member States. It recognised that companies ‘exist only by virtue of the varying national legislation which determines their incorporation and functioning’.Footnote 45 Because of the significant differences in national company law, the CJEU found that, in the absence of EU legislation in this area, the situation fell outside the scope of application of the free movement provisions. It held that, because of the significant differences in national laws, EU law regarded these situations as ‘problems which are not resolved by the rules concerning the right of establishment but must be dealt with by future legislation or conventions’.Footnote 46 As a result, in Daily Mail, the CJEU engaged in comparative analysis in concreto to find that the case fell outside the scope of application of free movement law. The differences between national laws were too significant for free movement law to be applicable.
Finally, the CJEU has engaged in comparative analysis in its assessment of the direct effect of the free movement provisions. This kind of comparative analysis is usually more abstract. It is relied on to justify the application of the free movement provisions to the actions of private parties. The clearest example of comparative analysis can be found in Walrave and Koch. Footnote 47 In deciding whether Articles 45 and 56 TFEU should be applicable to the actions of the International Cycling Union (UCI), which sets the rules for professional cycling competitions across the world, the CJEU held that:
since, moreover, working conditions in the various Member States are governed sometimes by means of provisions laid down by law or regulation and sometimes by agreements and other acts concluded or adopted by private parties, to limit the prohibitions in question to acts of a public authority would risk creating inequality in their application.Footnote 48
Therefore, a direct link was made between the differences in national laws and the effective and uniform application of the free movement provisions.Footnote 49 The comparative analysis was relied on as a justification for the application of the free movement provisions to ensure that the same standards of protection would be guaranteed in all Member States—regardless of the public or private status of the regulator who had adopted the rules in question. This kind of reasoning was also relied on by the CJEU in cases such as Viking Footnote 50 and Laval,Footnote 51 in recognition of the fact that some Member States provide a more significant role to trade unions in the regulation of the conditions of employment in the labour market, whilst other Member States rely more on legislation. Walrave and Koch was an example of comparative analysis in abstracto. The precise nature of the differences in national laws did not matter—what mattered were the differences in the public or private nature of the rules.
3.2. Comparative analysis in the assessment of restrictions on free movement, the grounds of justification and the proportionality test
In many free movement cases—particularly those which are brought on the basis of Article 34 TFEU—the CJEU is required to analyse the differences in the national legislation of the two Member States involved in the case as part of the analysis of whether a restriction on free movement can be identified. This is especially clear in cases in which the CJEU applies the principle of mutual recognition.Footnote 52 The focus in this article is on comparative analysis beyond the specific parties to a free movement case.Footnote 53 The CJEU can still rely on such broader comparative analysis in the identification of a restriction on free movement. In Peralta, an Italian sea captain challenged the validity of Italian legislation which imposed an obligation on Italian vessels not to dispose of any chemicals in international waters—even outside Italian territorial waters.Footnote 54 This prohibition was challenged under several free movement provisions, including Articles 49 and 56 TFEU. One of the arguments was that this prohibition made it less attractive for companies to establish themselves in Italy, because they would be under an obligation which did not apply to vessels established in other Member States. In the analysis under Article 49 TFEU, the CJEU held that ‘a Member State may certainly impose, directly or indirectly, technical rules which are specific to it and which are not necessarily to be found in the other Member States’.Footnote 55 The CJEU reached a similar outcome in the analysis of Article 56 TFEU. It concluded that ‘the application of national legislation cannot be held contrary to the principle of non-discrimination merely because other Member States allegedly apply less strict rules’.Footnote 56 In other words, the difference in legislation was too insignificant to constitute a restriction on free movement. This rationale formed the foundation for the development of a remoteness approach to restrictions on free movement, which was developed by the CJEU in subsequent cases such as Viacom Footnote 57 and Mobistar. Footnote 58
The most detailed comparative analysis takes place in the justification stage of free movement cases. Again, a distinction can be made between comparative analysis in abstracto and comparative analysis in concreto. An example of comparative analysis in abstracto can be found in several public health cases, in which the CJEU provided a broad margin of discretion to the Member States in reviewing the ground of justification and the proportionality of the national measure. In these cases, the CJEU usually states that, because of the significant differences in the legislation of the Member States, they enjoy discretion to determine the appropriate level of public health protection. The proportionality of the measure is assessed against the Member State’s chosen level of protection—not against an EU-wide level of protection. In BS, which was about a French citizen who was prosecuted for the supply of hemp oil electric cigarettes, the CJEU held that the Member States could decide on the level of protection in the field of public healthFootnote 59 and, ‘[s]ince that level may vary from one Member State to another, Member States should be allowed a measure of discretion’.Footnote 60 As such, because of the sensitive nature of the public interest in this case, and because of the significant differences between the legislation of the Member States, the CJEU took a hands-off approach in the analysis of the proportionality of the restriction. This is a clear example of comparative analysis in abstracto: the CJEU only refers to the differences in the level of public health protection without going into the specific nature of these differences. The fact that there are differences, and that these differences are significant, is sufficient to provide a broad margin of discretion to the Member States.
A similar approach was taken in the recent case of Booky.fi Oy. Footnote 61 A Finnish company challenged a requirement to provide information about the age limit below which programmes could not be viewed in its online store. The CJEU held that it is for the Member States to determine the level of protection of minors. In holding that a broad margin of discretion should be provided to the Member States, the CJEU stated that:
the measures adopted by a Member State to protect minors against such content do not necessarily correspond to a conception shared by all Member States as regards the level of protection and the detailed rules relating to it. As that conception may vary from one Member State to another on the basis of, inter alia, moral or cultural views, Member States must be recognised as having a margin of discretion in that regard.Footnote 62
The CJEU confirmed that the proportionality test should be conducted by reference to the level of protection pursued by the Member State.Footnote 63
The common denominator of BS and Booky.fi Oy is that the CJEU provided a broad margin of discretion to the Member States based on comparative analysis of the extent of the differences between the regulatory approaches adopted by the Member States. The CJEU recognised that these differences were particularly significant in cases concerning public health. However, it is also possible for the level of discretion to be reduced on the basis of comparative analysis—even in the field of public health. This can be seen in Humanplasma, which was about an Austrian ban on blood donors receiving any kind of financial compensation for the donation of blood—including reimbursement of travel costs.Footnote 64 The CJEU confirmed that Member States enjoy a broad margin of discretion in the field of public health. However, ‘the fact that a number of other Member States reimburse blood donors’ costs may be relevant when assessing the objective justification put forward in relation to the Austrian legislation, and, particularly, concerning the assessment of its proportionality’.Footnote 65 The CJEU held that the Austrian ban was not necessary, because the legislation of other Member States had shown that the quality of blood could still be protected if blood donors received reimbursement of their travel costs. This shows that the fact that Austria was regarded as an ‘outlier’ in this field reduced its margin of discretion. As such, Humanplasma could be regarded as confirmation of Maduro’s judicial majoritarianism thesis.Footnote 66 Furthermore, Austria’s margin of discretion was reduced because the EU had already adopted legislation which protected the quality and safety of blood.Footnote 67 A similar approach was taken in Commission v France, in which the Commission challenged a French prior authorisation scheme for foodstuffs whose preparation involved the use of processing aids from other Member States, even when they had already been lawfully placed on the market in another Member State.Footnote 68 The CJEU held that ‘the absence of a prior authorisation scheme with regard to the use of processing aids in the preparation of foodstuffs in all or nearly all of the other Member States may be relevant’Footnote 69 in the assessment of the ground of justification and the proportionality assessment. Again, this provides a clear indication of a majoritarian approach.Footnote 70
In comparison with the abstract comparative analysis in cases like BS, the comparative analysis in Humanplasma and Commission v France constituted comparative analysis in concreto because the CJEU engaged with the substance of national rules.Footnote 71 This kind of analysis is not only employed by the CJEU to reduce the margin of discretion provided to Member States. In some cases, the CJEU has relied on comparative analysis in support of the solution adopted by the Member State. In Commission v Hellenic Republic, the CJEU reviewed Greek decisions to prohibit and delay the import of various types of frozen chicken into Greece because salmonella had been found on the chicken, or because there was a suspicion that the chicken contained salmonella.Footnote 72 The CJEU found that ‘a number of other Member States carry out the tests in question in the same way as the Hellenic Republic’.Footnote 73 On that basis, Greece could successfully defend its actions under Article 36 TFEU.
Finally, in the field of free movement of establishment, another example can be found in a series of infringement proceedings in which the Commission challenged a nationality requirement to be able to work as a notary in certain Member States. The Commission brought infringement proceedings based on Article 49 TFEU against six Member States. In all these cases, it argued that ‘accession to the profession of notary is not subject to any national requirement in some Member States and that requirement has been abolished in other Member States, such as the Kingdom of Spain, the Italian Republic and the Portuguese Republic’.Footnote 74 As such, the Commission not only relied on comparative analysis in concreto of the position in a number of Member States (which were specifically named)—it also used comparative analysis to identify a ‘converging trend’ among the Member States, many of which had decided to abolish their nationality requirement for notaries. Because the Member States had only relied on the exception for the exercise of official authority in Article 51 TFEU to argue that this requirement should not come within the scope of application of Article 49 TFEU, the CJEU did not engage with a potential ground of justification and the proportionality of the restriction. It held that the activities of a notary were not protected by Article 51 TFEU and that the direct discrimination constituted a breach of Article 49 TFEU. It is clear that the CJEU relied on the converging trend in rejecting the reliance on the official authority exception. The comparative analysis was employed, to use Pescatore’s term,Footnote 75 to ‘push’ the other Member States in a similar direction.
4. The aims of comparative analysis by the CJEU
Following the analysis of the methods and location of comparative analysis in free movement judgments, the aim of this section is to analyse the aims of comparative analysis by the CJEU. Two main aims will be identified: demarcation and calibration. In some cases, the CJEU’s only aim was to engage in a demarcation or a calibration exercise, while in others demarcation was a first step towards calibration. This connection between demarcation and calibration will be analysed in more detail in Sections 4.1 and 4.2.
4.1. Demarcation
One of the main findings of the analysis in Section 3 is that comparative analysis is relied on by the CJEU to decide which types of situations should fall within the scope of application of the free movement provisions. In other words, comparative analysis is used to determine whether the issue in the case should be resolved by free movement law at all. Comparative analysis in abstracto and comparative analysis in concreto can both be relied on to demarcate the ‘zones’ or ‘spheres’ of application of free movement law. This is a very fundamental aim of comparative analysis in free movement law, going beyond those identified by Pescatore and Lenaerts.Footnote 76 Demarcation is not just a question of interpretation or gap-filling—it is about the very question whether free movement law is applicable in the first place. This creates a direct link between comparative analysis and the effective application of the free movement provisions, which will be analysed in more detail in the next section.
At this point, it should be emphasised that the CJEU uses comparative analysis to engage in a demarcation exercise in two ways, each of which takes place at the ‘outer limits’Footnote 77 of free movement law. First, comparative analysis can show that the national laws of the Member States are similar—or sufficiently similar—to avoid any real or significant obstacles to the exercise of free movement rights. As a result, it is not necessary for free movement law to get involved, and these cases are held to fall outside the scope of application of the free movement provisions. Second, at the other end of the spectrum, comparative analysis can show that the differences between the national laws of the Member States are significant and can be found in areas of the internal market in which the Member States have a legitimate claim to protect their own competences and interests. For that reason, the free movement provisions should not be applicable. Both these approaches employ comparative analysis to ‘cut off’ a certain number of situations at the outer ends of the spectrum of free movement cases from the reach of the free movement provisions. In the zone ‘in between’, the free movement provisions are applicable and comparative analysis can be relied on to engage in a calibration exercise (see Section 4.2).
Josemans and Peralta provide the main examples of cases at the ‘no or minimal differences’ end of the spectrum. In Josemans, it was not necessary for free movement law to be applicable because all the Member States had adopted identical legislation on the issue. As a result, there was no need to intervene to prevent or eliminate obstacles to free movement. Similarly, in Peralta, the CJEU found that the differences in national laws were not sufficiently significant to create obstacles to free movement. Therefore, it was not necessary for the free movement provisions to be applicable. This also creates a link to the adoption of harmonisation in the internal market.Footnote 78 If harmonisation has been adopted in a particular field, it is no longer necessary for the free movement provisions to be applicable, because all Member States should now rely on the same set of EU-wide rules.Footnote 79 It is only in situations where the harmonisation makes it possible for Member States to maintain or create differences—for example, because the EU rules constitute minimum or partial harmonisation, or because options are offered which are deemed equivalent by that harmonising legislation—that the degree of difference is again sufficient to justify the application of the free movement provisions.Footnote 80
A similar demarcation exercise, but one taking place at the other end of the spectrum, can be observed in Daily Mail. The CJEU found that the differences in national company law were so significant that the Daily Mail’s transfer of its seat from the UK to the Netherlands did not fall within the scope of application of free movement law. The main justification for this finding was the close connection between national law and the existence of companies (companies as ‘creatures’ of national law), and the CJEU’s aim of protecting the differences in the national laws of the Member States. Therefore, Daily Mail was a case at the ‘too significant differences’ end of the spectrum, and Article 49 TFEU was not applicable.Footnote 81 In these cases, the CJEU made a connection between the extent of the divergences in national law and the limited competences on the part of the EU. Although it might be possible for the EU legislature to intervene, which was explicitly recognised by the CJEU in Daily Mail,Footnote 82 in the absence of EU legislation, the differences in national laws were too significant to justify the application of the free movement provisions. A similar approach was taken in PreussenElektra. Footnote 83 Although the CJEU found a restriction on Article 34 TFEU, it explicitly recognised that the harmonisation which had been adopted left room for national differences, and that this meant that the significant differences in the national regulation of renewable energy should be protected under Article 34 TFEU so long as the EU had not adopted more far-reaching measures.Footnote 84 Such measures had already been proposed by the Commission at the time of the judgment.Footnote 85 Although the national rule technically fell within the scope of Article 34 TFEU, the review of the ground of justification remained very abstract and the proportionality review was practically non-existent.
Against this background, it might initially seem difficult to reconcile Daily Mail with Grogan. In both cases, the CJEU relied on comparative analysis to identify significant differences in the legislation of the Member States. However, whilst this comparative exercise resulted in the case falling outside the scope of application of the free movement provisions in Daily Mail, in Grogan, the CJEU held that abortion services came within the scope of application of Article 56 TFEU. The two cases can be reconciled by looking at the underlying aim of the demarcation exercise in situations where there are significant differences in national laws. The justification for the CJEU to engage in a demarcation exercise in these cases was to protect differences in national laws, and to ensure that the Member States were able to maintain these differences and enforce them on their territory. The demarcation exercise was necessary to prevent the extraterritorial effect of national legislation. In Grogan, if Article 56 TFEU had not been applicable to abortion services, Ireland would have been able to provide extraterritorial effect to its own national law. The reach of the Irish Constitution would have extended to the UK. For that reason, the free movement provisions had to be applicable to protect the different choice which had been made by the UK legislature. The aim of bringing abortion within the scope of the free movement provisions was to protect national differences—not to eliminate them.Footnote 86 In Daily Mail, the aim was also to protect differences in national legislation—in this case, the requirement to obtain consent from the UK Treasury before a company’s central management could be transferred to another Member State. If the free movement provisions had been applicable to this case, the Dutch rules on the taxation of companies would have been applicable to the UK without any kind of control on the part of the UK authorities. As such, the aim of the demarcation exercise was to protect the regulatory choices made by the Member States. In Daily Mail, this meant that the free movement provisions should not be applicable, whilst in Grogan, it meant that the free movement provisions had to be applicable.
The differences between the two judgments show the important connection between demarcation and calibration, which means that free movement law is used to determine what level of protection should be achieved in national law. In Josemans and Peralta, the two cases fell outside the scope of the free movement provisions because there was no need for calibration: this had already been achieved without the intervention of free movement law (because all the Member States had signed the same international convention, or because the differences in national laws were already minimal). In Daily Mail and Grogan, demarcation was necessary to prevent calibration from taking place, thus preserving national differences. In another category of cases, demarcation was a first step towards calibration. This can most clearly be seen in Walrave and Koch. The CJEU held that the free movement provisions were applicable to the actions of a private party to enable calibration to take place. For free movement law to protect the right to non-discrimination on the ground of nationality, it had to be applicable to the actions of private parties as well as public regulators. Therefore, in these cases, the comparative analysis was directly linked to the uniform application of EU law. To make it possible for calibration to take place in all Member States, the free movement provisions had to be applicable to the actions of private parties which collectively regulated a particular sector or activity on the basis of the exercise of legal autonomy.Footnote 87 The effect of the application of the free movement provisions was to ensure the effective application of EU law without the elimination of differences in national laws. The relationship between comparative analysis and the effective application of the free movement provisions is analysed in the next section, examining the ways in which comparative analysis is used to achieve calibration in free movement cases.
4.2. Calibration
The CJEU achieves calibration in free movement cases both through comparative analysis in abstracto and comparative analysis in concreto. Two main methods of calibration can be identified.
First, the CJEU relies on comparative analysis to determine the intensity of the CJEU’s review of national law under the free movement provisions.Footnote 88 In these cases, the calibration exercise focuses on the extent to which differences between national laws can be maintained. The cases fall within the scope of application of the free movement provisions, but the level of calibration is limited to verification of the aim which is being pursued by the Member State. The CJEU verifies that the aim which is pursued by the national legislation is consistent with—and protected by—free movement law. However, the precise level of protection and the tools used by the Member State to achieve this level of protection are set by the Member States, with the CJEU limited to conducting the proportionality test based on the level of protection which the Member State seeks to achieve.Footnote 89
Jan Zglinski has argued, based on empirical analysis, that this kind of deference to the policy choices made by national authorities is becoming more frequent in free movement cases.Footnote 90 The CJEU’s deference on the intensity of the review is closely linked to where the proportionality review takes place: the CJEU regularly delegates (aspects of) the proportionality review to national courts.Footnote 91 The broad margin of discretion is provided in recognition of the fact that, from the perspective of free movement law, the national differences are legitimate and should be protected by free movement law. From the point of view of comparative law, the CJEU is willing to adopt a pluralist perspective and accept that the levels of protection, and the tools through which these levels of protection are achieved, vary from one Member State to another. BS and Booky.fi Oy provide good examples of this kind of calibration exercise. The cases were brought within the control of the free movement provisions, meaning that the national differences were not so significant that they should fall outside their scope. At the same time, the CJEU analyses whether the aim is compatible with the free movement provisions, and whether this aim is in fact being pursued by the national legislation in the case.Footnote 92
In a second category of calibration cases, the CJEU relies on comparative analysis to determine the precise level of protection under free movement law, and to assess what the most effective tools are to achieve this level of protection. This kind of calibration requires comparative analysis in concreto, because the CJEU engages directly with the substance of the regulatory choices made by the Member States. The proportionality test is applied strictly and precisely to set the appropriate level of protection. In many of these calibration cases, the EU has already adopted harmonisation. Even if this harmonisation is not directly applicable to the specific circumstances of the case, it provides a legal context in which the CJEU is more willing to engage in calibration, given that the EU has already made a move towards reducing national differences in the field. Moreover, the CJEU can decide to intervene and set an EU standard in cases in which a Member State has adopted a position which is too far removed from the position of other Member States. This kind of calibration is most clearly linked to Maduro’s majoritarianism thesis, because the CJEU occasionally refers to—and relies on—the number of Member States which have adopted a specific legal position.Footnote 93 However, to analyse these cases exclusively through a ‘majority-minority lens’ would be too simplistic. It should be emphasised that the CJEU’s assessment is qualitative rather than quantitative: the CJEU focuses on the substantive differences between the Member States. The fact that a majority of the Member States has adopted one legal position is less significant if the qualitative differences between the majority and minority are very substantial. This can be seen in cases like Daily Mail and Grogan.
In Humanplasma, Austria had adopted such an extreme legal position (no reimbursement for blood donors at all) that it was legitimate for free movement law to intervene and for the CJEU to force Austria to adopt a position which was more in line with the position of other Member States. The calibration exercise had a strong ‘pedagogical’ purpose:Footnote 94 the comparative analysis showed that it was possible for Member States to guarantee the quality and safety of blood without having to adopt such a rigid measure. In other words, the CJEU compared and analysed which measures Member States relied on to protect the quality of blood and found that the effectiveness of the protection was not compromised by a less extreme or far-reaching measure. This finding was reinforced by the presence of EU-wide standards on the quality and safety of blood. Similarly, in the notaries case (Commission v Hellenic Republic), the CJEU recognised that certain Member States had to ‘move along’ with a trend started by another group of Member States. The CJEU’s judgment was not a ‘numbers game’, but the CJEU recognised that direct discrimination by a number of Member States could no longer be justified in light of the trend among Member States. The nature of the restriction was so severe—based on direct discrimination on the ground of nationality—that it was legitimate for free movement law to intervene. Furthermore, the cases were linked to the existence of EU harmonisation in the field: the EU has adopted legislation on the recognition of the professional qualifications of lawyers.Footnote 95
5. The relationship between comparative analysis and the effective application of the free movement provisions
The close relationship between comparative analysis on the one hand, and demarcation and calibration on the other hand, shows that, for the CJEU, comparative analysis in free movement cases is directly linked to the effective application of the free movement provisions. In other words, comparative analysis is used to determine what effect the free movement provisions should have. In this section, the relationship between comparative analysis and the effective application of the free movement provisions will be analysed through distinguishing between five different categories of cases. In all categories, comparative analysis was relied on by the CJEU to determine which differences in national laws should be eliminated through the application of the free movement provisions, and which differences should be protected by free movement law.
In the first category, the differences in national laws require that the free movement provisions are applicable to enable the CJEU to engage in a calibration exercise based on existing EU-wide standards. In this scenario, the focus of the CJEU is on the uniform application of EU law: the application of the free movement provisions is required to ensure that the same standards are applicable in all Member States. However, this combined process of demarcation and calibration does not require the elimination of national differences. Rather, the application of the free movement provisions is necessary to mediate between these differences to protect the relevant EU-wide standard in free movement law. Walrave and Koch provides the clearest example. The free movement provisions had to be applicable to the actions of private parties to ensure that the principle of non-discrimination on the ground of nationality could be enforced in all Member States—regardless of whether the rules which were challenged had been adopted by a public body or a private party. In other words, whilst national differences could be maintained, these differences required the intervention of the free movement provisions to ensure that the same standards of non-discrimination were applied in all Member States.
In the second category, the free movement law provisions are applicable despite the differences in national laws. In this category, two different types of case can be distinguished. The first type is based on Grogan. The difference with the first category is that the aim of the application of the free movement provisions is not to achieve a uniform standard or level of protection in all Member States but, rather, to prevent one Member State from imposing its own standard—in this case, an ethical or moral standard on the lawfulness of abortion—on other Member States.Footnote 96 Demarcation was necessary to prevent calibration from taking place. The effect of the application of the free movement provisions was to protect national differences and to protect the ability of Member States to adopt and enforce their own rules on particularly sensitive issues, which are regulated in a different way across the EU. The second type of case in this category is based on BS and Booky.fi Oy. These cases are primarily about calibration—the focus is on the intensity of the review of national measures. Although the review takes place at the justification and proportionality stage, which means that national measures are ‘under threat’ of elimination, the purpose of the application of the free movement provisions is to provide scope for national diversity, and to protect this diversity within the limits set by the CJEU. Overall, cases in this second category have little to do with the uniform application of EU law: the CJEU accepts that diversity of national rules will continue to exist in the internal market and actively relies on the free movement provisions to protect these national differences. The effect of the free movement provisions is focused on the protection of diversity rather than the creation of uniformity in the internal market.
The third category builds on the second category. In this category, the free movement provisions are not applicable because of the differences in national legislation. This is what happened in cases like Daily Mail. The aim of the CJEU is the same as in the second category: to protect national legislation in an area of law in which there are significant differences. The aim of the demarcation exercise is to prevent calibration from taking place. However, the difference from the second category is that, in this category, the CJEU recognises that the protection of the diverse choices made by the Member States requires that the free movement provisions should not be applicable. Therefore, the free movement provisions should ‘withdraw from the battlefield’,Footnote 97 since their application could otherwise result in calibration at the European level. This would go against the CJEU’s aim of protecting the legitimate differences in national legislation.
In the fourth category of cases, the free movement provisions are not applicable because there are no—or only very minimal—differences in the national laws of the Member States. This category covers cases like Josemans and Peralta. In this category of cases, it is not necessary for the CJEU to apply the free movement provisions to protect or eliminate differences, because these differences are non-existent or have already been removed voluntarily by the Member States, for example, by an international law commitment made by all the Member States, such as in Josemans. Footnote 98 Similarly, if the differences in national laws are so minimal that they do not result in obstacles to free movement (Peralta), it is not necessary for the free movement provisions to be applicable. This fourth category is also exclusively about demarcation, because the calibration has already taken place without the involvement of free movement law.
Finally, in the fifth category, the free movement provisions are applicable to ensure that differences in national laws are removed. In these cases, there is a direct link between demarcation and calibration: the aim of the application of the free movement provisions is to bring the national laws of the Member States into line and to achieve uniformity in the required standard or level of protection. The effective application of the free movement provisions is directly linked to the uniform application of EU law. The outcome of the application of the free movement provisions requires that Member States take active steps to remove differences in national laws. Humanplasma provides the best example. In this case, the aim of the application of the free movement provisions was to bring Austrian legislation in line with most of the other Member States. The reason why demarcation could be combined with calibration was because the differences between the Member States were already relatively minimal. All Member States were agreed on the aim, and an EU-wide level of protection had been set through the adoption of harmonisation in the field.Footnote 99 On that basis, the CJEU felt able to require Austria to modify its national legislation. There was sufficient consensus about the level of protection which should be provided, but the regulatory tool which had been chosen by Austria was found to be out-of-line with the tools adopted by other Member States.
Overall, the analysis of the relationship between comparative analysis and the effective application of the free movement provisions shows that, in four of the five categories of cases, the outcome of the comparative analysis was that differences in national laws were protected by free movement law. The aim of the application or non-application of the free movement provisions was to protect the different regulatory choices which had been made by the Member States. This tells us something about the relationship between comparative analysis and negative integration: most of the time, the aim of comparative analysis in free movement cases is not to work towards the elimination of differences in the internal market. Rather, the intention is to analyse the extent to which national differences can and should be protected—sometimes to achieve uniformity in the level or standard of protection in free movement law; sometimes to protect different standards or levels of protection through free movement law. From this perspective, negative integration can be characterised as a specific comparative law method, which focuses on the identification of differences in the internal market, on analysis of the extent of these differences and on an assessment of how much variation in national law is acceptable in the context of the internal market. In the next section, the article will ‘zoom out’ and analyse the specific characteristics of negative integration as a comparative law method.
6. Negative integration as a comparative law method: ‘the law of differentiation’
Because of the close link between comparative analysis and negative integration, and the extent to which the effective application of the free movement provisions is dependent on comparative analysis, it is possible to characterise negative integration as a comparative law method. This comparative law method should be ‘situated’ in the context of the internal market as a regional integration project.Footnote 100 It has been shown in Section 4 that, in most of the categories of cases, the aim of the CJEU’s comparative analysis in free movement cases is not to remove differences in national laws but, rather, to protect national differences through the application of the free movement provisions.
Negative integration as a comparative law method has two main dimensions. The first dimension is based on the traditional comparative method, which has a functional focus,Footnote 101 seeking to analyse the particular issue and identify the most effective and efficient solution in the national laws of the Member States.Footnote 102 The aim is to achieve convergence through the application of comparative analysis. The application of the free movement provisions is focused on the reduction or the elimination of differences in national laws. The purpose of the comparative analysis is to push a Member State in the direction of the most effective or efficient regulatory solution which has been identified by the CJEU. In the context of free movement law, this comparative method is primarily employed in the assessment of the proportionality of national restrictions. When the CJEU held in Humanplasma that a complete ban on the reimbursement of travel costs of blood donors was not necessary to protect the quality and safety of blood, this had a strong functional undertone. Austria was made to learn from the other Member States in the identification of the most efficient aim to protect the quality of donated blood. The comparative analysis resulted in a learning process: the application of free movement law was necessary to confront Austria with the regulatory tools chosen by other Member States.Footnote 103 In these cases, the traditional comparative method is also closely linked to Maduro’s judicial majoritarianism: the CJEU will rely on this method if it is sufficiently confident—given the number of Member States which have adopted this tool—that a particular regulatory tool provides the most efficient or effective solution.
The second dimension of the comparative law method is very closely linked to Paul Berman’s concept of cosmopolitan pluralism.Footnote 104 Although the foundations of this approach derive from the conflict of laws,Footnote 105 cosmopolitan pluralism has been ‘adopted’ by comparative lawyers in the broader context of the interaction between comparative law and legal pluralism.Footnote 106 Cosmopolitan pluralism is based on the idea that, in a transnational setting, procedural mechanisms, institutional designs and discursive practices should be developed to make different national laws interact with each other in a way which is genuinely non-hierarchical. As a result, the aim is to protect pluralism in a setting which makes different legal regimes interact with each other. Berman discusses mechanisms such as the principle of mutual recognition, the principle of subsidiarity and the margin of appreciation.Footnote 107 Based on the relationship between comparative analysis and the effective application of the free movement provisions, negative integration could be characterised as a combination of the main ‘elements’ of Berman’s cosmopolitan pluralism. The structure of free movement cases provides a procedural mechanism, the institutional design is focused on the interaction between national courts and the CJEU in the preliminary reference procedure, and the discursive practice is the process of interaction that takes place on the substance of the regulatory tools developed to tackle a particular problem. Therefore, negative integration, which integrates mechanisms such as mutual recognition and the margin of appreciation, can be identified as a comparative law method which is founded on the concept of cosmopolitan pluralism. As the analysis of the case law has shown, this comparative law method is much more prominent in free movement law than the functional, traditional comparative method.
Pierre Pescatore has used the famous term of the ‘law of integration’ to characterise the legal project of the EU.Footnote 108 The analysis in this article has shown that, in the context of the internal market, this does not necessarily mean the progressive removal of differences in national laws. From a cosmopolitan pluralism perspective, negative integration is not confined to a single direction, requiring harmonisation or the elimination of differences. The internal market and free movement law provide the legal structure in which Member States engage with differences in each other’s national laws. The law of integration provides the overarching frame for these discussions: Member States are committed to resolving cases through exploring differences through the application of free movement law, which provides a structure in which national differences are protected to the extent that they are compatible with the overall aims of the internal market. From this perspective, negative integration can be characterised as ‘the law of differentiation’.
The role of negative integration cannot be analysed in isolation: it should be connected to the role of positive integration, when the EU relies on harmonisation to remove differences in national laws. In the EU legislative process, Member States commit to discussing differences in national laws with a view to adopting similar rules. In the context of the internal market, this means that the EU relies on Article 114 TFEU to adopt legislation to achieve harmonisation. Therefore, as a next step in the analysis of the interaction between free movement law and comparative law, it is important to analyse the role of comparative analysis in the EU legislative process when Article 114 TFEU is relied on as the legal basis. In this scenario, the institutional actors are different: the comparative analysis is no longer conducted by the CJEU but, rather, by the Commission (in developing a proposal for legislation) and the European Parliament and Council of the EU (in their negotiations on the proposal). Furthermore, in assessing the role of comparative analysis in the EU legislative process, a distinction would have to be made between the process (e.g. where it is relied on by the Commission in a proposal for legislation, or by a Member of the European Parliament to propose a particular amendment to the proposal) and the substantive output of the legislative process (e.g. where it is referred to in the recitals of a legislative instrument).Footnote 109
The cosmopolitan pluralist method in negative integration has three main dimensions. First, negative integration provides a method to identify differences in national laws. Fundamentally, negative integration is based on the interaction between different legal orders, which may have developed different legal solutions to similar regulatory challenges. The application of the free movement provisions requires that Member States recognise these differences and decide how they position their own legislation in comparison with that of other Member States. During a free movement case, it might also become clear that the differences are not in fact as significant as the Member State might have claimed. Conegate provides an excellent example.Footnote 110 In this case, the UK customs authorities had seized inflatable sex dolls imported from Germany on the basis that they were indecent or obscene articles. However, the same type of dolls was sold in the UK. The CJEU’s judgment highlighted that the standards of morality which the UK enforced at the border were inconsistent with the standards of morality enforced on UK territory.Footnote 111 As such, the application of the free movement provisions showed that there were no actual differences in legislation between Germany and the UK.
Second, another important aim of negative integration is to identify the extent of differences in national legislation. The application of the free movement provisions is dependent on a degree of difference between the national legislation of the Member States. The CJEU is required to identify whether the differences in national laws are too minimalistic for the free movement provisions to be applicable, or whether the differences in national laws are too significant for the free movement provisions to be applicable. In engaging in this demarcation exercise, the CJEU relies on analysis of the qualitative nature of the differences in national legislation to determine the types of situations which should fall within the scope of application of the free movement provisions. Furthermore, the extent of the differences is relevant in the analysis of the ground of justification and the proportionality of a restriction on free movement. At this stage, the extent of the differences in national laws is used by the CJEU to determine whether—and to what extent—Member States should be granted a margin of discretion by free movement law.
Third, and finally, after having identified differences and analysed the extent of the differences in national laws, the cosmopolitan pluralist method requires the CJEU to conduct an assessment of the legitimacy of differences in national laws. This legitimacy assessment is the most abstract component of the method. As a result, it might be difficult to identify this explicitly in the judgments of the CJEU. The aim of this analysis is not to eliminate differences but, rather, to establish whether the differences in national laws are worthy of protection by free movement law. If the answer is yes, negative integration will aim to protect national differences. As such, negative integration as the law of differentiation is not just about Member States learning from differences—it is just as much about Member States learning to live with differences.
What are the factors which the CJEU takes into account in analysing the legitimacy of differences in national laws in the context of negative integration? As a starting point, the extent of the differences in national laws still plays an important role in this assessment. The demarcation exercise by the CJEU creates a zone or sphere of application in which the differences in national laws are sufficiently significant for the free movement provisions to be applicable, whilst at the same time they are not so different that they should fall outside their scope of application. Moreover, the sensitivity of the specific topic or issue regulated by national law is taken into account. This is not just done from the perspective of a particular Member State (‘national interests’), but also from the broader perspective of the internal market, in which the CJEU recognises that certain interests are more sensitive than others.Footnote 112 This assessment is closely linked to the question whether the EU has the competence to adopt harmonisation in the particular field of national law. If the EU is competent to legislate in this area, this means that the Member States have already indicated a willingness to engage in discussions about potential convergence,Footnote 113 thus indicating that the CJEU does not have to be quite as stringent in protecting differences in national laws. Finally, the presence of EU harmonisation in the field—even if not directly applicable to the case—provides an indication to the CJEU that there is a willingness on the part of the Member States to work towards common solutions, which could again be an indication that the Member States are less worried about protecting differences in national laws in that area.Footnote 114
7. Conclusion
In Section 1, it was explained that legal empathy is the principle which requires that, in the structure of free movement cases, Member States recognise and respond to the differences in the national laws of other Member States.Footnote 115 The analysis in this article has shown that negative integration is not just a structure or a procedure through which Member States are required to engage in comparative dialogues. Although an important consequence of legal empathy is that Member States learn from the regulatory tools or techniques developed by other Member States, legal empathy also means that Member States learn to live with differences in the shared environment of the internal market. Given that learning to live with differences is necessary to promote peace and the wellbeing of EU citizens under Article 3(1) Treaty on European Union (TEU), legal empathy can be seen as linked to and based on Article 3(1) TEU.Footnote 116 At the same time, the concept of legal empathy is embedded in the specific substantive and territorial structure of the internal market.Footnote 117 The internal market is not genuinely cosmopolitan, in the sense that it is restricted to the 27 Member States of the EU. Legal empathy constitutes the tool which provides the quality and depth with which Member States engage in comparative dialogues in free movement law. This requires a genuine commitment on the part of the Member States to explain differences in national laws through the structure of free movement cases.
The analysis in this article has shown that there is not only a horizontal dimension to legal empathy: it is not just about comparative dialogues between Member States. Legal empathy also has an important vertical dimension, in the way in which the CJEU interacts with the Member States (and with national laws) in the context of free movement cases. Through its reliance on comparative analysis, the CJEU recognises the laws of the Member States, and by making a close link between comparative analysis and the effective application of the free movement provisions, the CJEU responds by protecting differences in national laws in and through free movement law. As such, the use of comparative analysis in free movement cases by the CJEU can be regarded as an exercise in legal empathy. Differences in national laws are only removed through the application of the free movement provisions if comparative analysis of the position in national law provides sufficient indication that convergence is possible and desirable. Therefore, legal empathy means that the CJEU must also accept differences in the context of the internal market. This vertical dimension of legal empathy is again directly linked to cosmopolitan pluralism: the extent to which differences in national laws can be ‘managed’ through free movement law is determined by comparative analysis. In most cases, managing pluralism means protecting differences in national laws. A perspective which focuses on the role and scope of comparative analysis in free movement cases shows that negative integration is not exclusively or even primarily about integration through the elimination of differences—it is about integration through interaction on differences in national laws, which should ultimately result in improving mutual understanding of such differences.Footnote 118
Finally, the important role of comparative analysis in free movement cases means that, in the context of negative integration, EU law does not autonomously determine its own effect in the legal orders of the Member States. Negative integration provides an autonomous method or process through which the national laws of the Member States are made to interact.Footnote 119 However, within this autonomous structure, the Member States maintain a degree of control over the direction of negative integration in the internal market. They do so in a less explicit way than in the context of positive integration, in which they take the role of co-legislators in the Council of the EU. In the context of negative integration, the CJEU determines the required effect of the free movement provisions by reference to comparative analysis of the national laws. This has a strong collective dimension and goes beyond the assessment of the national laws of the specific Member States involved in the particular case: it is based on an assessment of differences across the internal market. This assessment is then used to determine what effect the free movement provisions should have, and whether free movement law should be applicable to the situation at all.
As such, negative integration is much more of a bottom-up process than is often argued. The Member States are collectively able to move the CJEU in a particular direction by removing or maintaining differences in national laws. Or, to put it the other way round: the direction that the CJEU takes in free movement cases provides a reflection of the direction that has been taken by the Member States in their national laws. The CJEU’s sensitivity to the qualitative nature of differences in national laws shows that this not a majoritarian project—the more significant the differences in national laws, the more cautious the CJEU will be in deciding whether the free movement provisions should be applicable. This once again confirms the nature of negative integration as a comparative law method and project.
Acknowledgments
I am grateful to the participants in the research seminar at Edinburgh Law School in November 2024, and to the participants at the ‘The Many Futures of European Private Law’ conference at the European University Institute (Florence) in February 2025, for their comments and suggestions.
Open access
