Fundamental rights in internal market legislation

Abstract

This thesis places the debate on the relationship between fundamental rights and the internal market outside the field of negative integration (where it is usually takes place) into the field of positive integration. It examines the extent to which there is an internal market competence to deal with fundamental rights and analyses new mechanisms for fundamental rights protection outside the Courts. Against this backdrop, this thesis analyses the existing harmonisation practice in the EU through the lens of four fundamental rights: (i) data protection, (ii) freedom of expression, (iii) fundamental labour rights [the right to collective bargaining and the right to fair and just working conditions] and (iv) the right to health. The research reveals that there is a considerable amount of internal market legislation dealing with fundamental rights (even pre-existing the EU Charter of Fundamental Rights) but that most of it is not couched in fundamental rights terms. This thesis identifies the determinants, which account for the current prevalent conceptualisation and assesses the consequences of such approaches both for the substantive content of legislation and for its judicial review. The thesis provides a much more differentiated account of the EU's fundamental rights policy in and through the internal market than perhaps initially expected. It builds the case for a conscious approach to dealing with and enhancing fundamental rights protection in and through internal market legislation, and advocates a leading role for the legislator in the establishment of an internal market that is firmly based on respect for fundamental rights.