Expanding the EU internal market without enlarging the Union : constitutional limitations

Abstract

One of the most significant roles of the EU in the world is that of being a norms exporter. The EU has concluded numerous agreements with countries in its neighbourhood with the aim of encouraging third countries to adopt EU acquis in exchange for access to the internal market. The most ambitious of these agreements are the three multilateral agreements establishing the European Economic Area, the Energy Community and the European Common Aviation Area, respectively. The common feature of these agreements is the aim of extending to third countries either the entire internal market or a sector thereof. Achieving this objective is, however, challenged by the difficulty of circumscribing precisely the scope of the internal market and delimiting it from other EU policies, the sui generis nature of the EU legal order and the proclaimed need to protect its autonomy. An analysis of the concept of the internal market, the EU’s foundational principles and the institutions and procedures in place in the EU and in the three agreements for achieving and maintaining homogeneity within the expanded internal market reveals that it is, indeed, possible to extend the internal market to third countries. However, the level of homogeneity in the expanded market depends heavily on the goodwill of third country decision-­-makers, national administrators and, especially, courts to adopt and give the same effect to rules of EU origin outside the EU as within the Union. The objective of full homogeneity within an expanded internal market inevitably requires a certain transfer of supranational characteristics also to the agreements exporting the acquis.