The several internal markets

Journal article

‘[F]ree movement of people is one of the four essential freedoms. These four freedoms are indivisible. This is how our Single Market works. And let me be clear: the integrity of the Single Market will never be compromised in these negotiations’ (Michel Barnier).

‘In a colourful interview with the Czech daily Hospodářské noviny Mr Johnson [was quoted] as using the word "bollocks" in reference to the idea of the free movement of people being a founding principle of the EU. To many EU officials the union’s four freedoms – goods, services, capital and the free movement of people – are essential to membership. But in the interview, Mr Johnson, added: "It's a total myth - nonsense. It is stupid to say that freedom of movement is a fundamental right. It's something that has been acquired by a series of decisions by the courts. And everyone now has in his head that every human being has a fundamental, God-given right to go and move wherever he wants. But it is not. It was never a founding principle of the European Union. It's a complete myth. Total myth’ (Boris Johnson).

Michel Barnier wants to defend the four freedoms as indivisible, while Boris Johnson wants to shatter their unity. Michel Barnier adopts an elegantly thoughtful tone while Boris Johnson prefers oafish truculence. But in the background both are working on a common understanding: that the EU’s internal market is a political construct, and that its nature is open to contestation. They are right. It is not only a political construct – internal market lawyers are not out of a job. But there is a remarkably range of ambiguities in the legal definition of the EU’s internal market (and related phenomena such as the EEA) and within those vacant spaces political choices are required to determine its shape and direction.

The internal market is a legal concept that is both ambiguous and marked by heterogeneity. The purpose of this paper is to traverse the ambiguous and heterogenous character of the EU’s internal market (and related phenomena such as the EEA) and to explain that there are in fact several ‘internal markets’ to be found in and beyond the EU. This paper is not about Brexit: it is about the definition of the internal market. But Brexit has brought into focus that troublingly imprecise definition, and some of the confusion about hard and soft versions of Brexit stems from the absence of a secure anchor for the debate (though some too stems from calculated misrepresentation of the options, not least by the egregious Mr Johnson).

Authors: Weatherill, S

• Publication status: Published
• Peer review status: Peer reviewed
• Publisher: Oxford University Press
• Journal: Yearbook of European Law
• Volume: 36
• Issue: 1
• Pages: 125–178
• Publication date: 2017-10-16
• Acceptance date: 2017-09-25
• DOI: 10.1093/yel/yex007
• EISSN: 2045-0044
• ISSN: 0263-3264