Regulatory Trust in EU Free Movement Law – Adopting the Level of Protection of the Other?

European Papers - A Journal of Law and Integration, Forthcoming

Lund University Legal Research Paper Series No. 02/2016

27 Pages Posted: 19 Sep 2016

See all articles by Xavier Groussot

Xavier Groussot

Lund University; Lund University

Gunnar Thor Petursson

Reykjavik University

Henrik Wenander

Lund University - Faculty of Law

Date Written: September 17, 2016

Abstract

The principles of mutual trust and mutual recognition are well-established features of EU law. On a technical level, it is clear that the principles may require adoption of foreign levels of protection in individual cases as well as in legislation. At a closer look, however, the principles through “the rule of reason” also may imply quite the opposite: the imposing of domestic requirements on foreign goods, services etc. The ECJ case law following the Cassis judgment may be seen as striking a balance between cooperation and member state self-determination, or between trust and distrust, in different fields. This contribution aims at looking into the regulatory function of the legal principle of trust in EU law.

Taking this wider regulatory perspective, the mutual recognition regimes of EU must be seen from a holistic perspective. Rather than dwelling upon harmonized and non-harmonized fields separately, we will approach mutual trust as one, albeit multi-faceted, concept, where harmonization, proportionality assessments and Member State actions in various fields of law form part of the same wider picture. In this regulatory perspective, the law on mutual trust and mutual recognition may be seen as a balancing between the regulatory interests of the EU (promoting free movement and cooperation) and the various member states (promoting their interests of – alleged – protection of safety of various kinds). Through this perspective, we will be able to address trust in the intersection, more precisely the tension between regulation and deregulation; between unity and diversity; and between integration and disintegration, present in EU law on a very general level.

The first section of this contribution will look at the constitutional life of mutual trust within the ECJ case law: looking at its origins and main logic. The second section will attempt to clarify why the principle of mutual trust is mostly invisible in the free movement jurisprudence. This section also argues for understanding mutual recognition in terms of Regulatory Trust. The last section focuses on the thorny issue of the levels of protection and attempts to understand which are the key factors used by the ECJ in reviewing the (host) States measures that restrict free movement law and thus may constitute a break to the application of the principles of mutual trust and mutual recognition.

Keywords: Mutual Recognition, Mutual Trust, Cassis, Melloni, Level of Protection, Regulation, ECJ, Free Movement, Internal Market, Habermas

JEL Classification: K00

Suggested Citation

Groussot, Xavier and Petursson, Gunnar Thor and Wenander, Henrik, Regulatory Trust in EU Free Movement Law – Adopting the Level of Protection of the Other? (September 17, 2016). European Papers - A Journal of Law and Integration, Forthcoming, Lund University Legal Research Paper Series No. 02/2016 , Available at SSRN: https://ssrn.com/abstract=2840172 or http://dx.doi.org/10.2139/ssrn.2840172

Xavier Groussot (Contact Author)

Lund University ( email )

Lilla Gråbrödersgatan 4
Lund, 222 22
Sweden

Lund University ( email )

Box 117
Lund, SC Skane S221 00
Sweden

Gunnar Thor Petursson

Reykjavik University ( email )

Ofanleiti 2
Reykjavik, 103
Iceland

Henrik Wenander

Lund University - Faculty of Law ( email )

Lilla Gråbrödersgatan 4
Lund, 222 22
Sweden

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