The Internal Market as a Legal Basis (Article 114 TFEU)

Article 114 TFEU is the core provision and the main legal basis in the chapter on ‘approximation of laws’ in the TFEU. ‘Approximation’ is used more or less synonymously with harmonisation; the main purpose of the EU measures adopted is to do away with regulatory differences between the Member States. More specifically, measures shall be taken on this legal basis for the achievement of the objectives set out in Article 26, that is, establishing or ensuring the functioning of the internal market as an area without internal frontiers in which the free movement of goods, [1] [2] [3]

persons, services, and capital is ensured in accordance with the provisions of the Treaties. According to the Court of Justice, recourse to Article 114 TFEU is justified where there are differences between the laws, regulations, or administrative provisions of the Member States which are such as to obstruct the fundamental freedoms and thus have a direct effect on the functioning of the internal market. It can also be used when the aim is to prevent the emergence of future obstacles to trade resulting from multifarious development of national laws, provided that the emergence of such obstacles is likely. If either of these conditions is fulfilled, Article 114 TFEU may be relied upon as a legal basis even if other considerations, such as public health protection, are a decisive factor in the choices to be made.[4] The purpose of the laws and regulations among which differences have been identified or are likely to develop is thus not decisive, as long as the main reason for the EU legislator to want to harmonise them is to further the functioning of the internal market. The laws that are being harmonised can very well be motivated, for example, by environmental protection objectives.

In order to achieve ‘approximation’, harmonisation measures—that is, normally directives or regulations—are adopted by the EP and the Council in accordance with the ordinary legislative procedure (see section 1.7). This applies unless otherwise provided in the Treaties. Fiscal provisions and those relating to the free movement of persons or to the rights and interests of employed persons are exempted from this general provision and may instead be adopted unanimously by the Council after consulting the EP. (Arts 114 and 115.)

Before the entry into force of the SEA in 1987, what was then Article 100 EEC required unanimity for the adoption of harmonisation measures. In order to accelerate the realisation of the internal market a new Article 100a was added which enabled qualified majority decision-making in most cases. It also required the Council to cooperate with the EP. A full co-decision procedure was introduced in 1993 through the Treaty of Maastricht and is reflected in what is now the ordinary legislative procedure. This gives the EP the same level of influence as it has in the adoption of environmental measures under Article 192(1) TFEU. With the entering into force of the Treaty of Amsterdam in 1999, Article 100a became Article 95 EC, which in turn became Article 114 TFEU in 2009.

In its proposals for measures under Article 114 concerning health, safety, environmental protection, and consumer protection, the Commission is required to take as a base a high level of protection. This requirement, which was introduced by the SEA, emphasises the need to combine the promotion of economic objectives with a high level of protection of humans and the environment. The meaning of a ‘high level of protection’ was discussed in section 2.4.4. Here it is sufficient to recall that it is only the Commission that is under an obligation to take as a base a high level of protection. In doing so it shall in particular take account of any new development based on scientific facts. The EP and the Council, in whose power it is to amend and eventually adopt the legislative proposal, are merely required to seek to achieve such a level of protection.

Article 114 (10) provides for the inclusion of a safeguard clause in harmonisation measures. Directives and regulations having Article 114 as their legal basis shall, in appropriate cases, include a clause authorising the Member States to take, for one or more of the non-economic reasons referred to in Article 36 TFEU, provisional measures. Such measures must be subject to a Union control procedure. Safeguard clauses are further discussed in section 4.5.

  • [1] Case C-194/01 Commission v Austria ECLI:EU:C:2004:248, para 39. See further section 1.5.
  • [2] Case C-6/03 DeponiezweckverbandEiterkopfe (n 15), paras 61—63.
  • [3] J H Jans and others ‘“Gold Plating” of European Environmental Measures?’ (2009) 6 Journal forEuropean Environmental & Planning Law 417—35; H T Anker, K de Graaf, R Purdy, and L Squintani‘Coping with EU Environmental Legislation—Transposition Principles and Practices’ (2015) 27Journal of Environmental Law 17—44, 28—31.
  • [4] Case C-380/03 Germany v Parliament and Council ECLI:EU:C:2006:772, paras 36—39 and thecase law cited there.
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