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Sunday 05 December 2021
Ecole Doctorale 74
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Viva voce examinations of PhD Thesis

National measures applicable without distinction to mobility rights : utility of a jurisprudential theory ? (26-nov-2007, 14:30)

12/11/2007 16:09 Age: 14 an(s)
Category: Public Law PhD, Patrick Meunier, Thèse déposée sur TEL


This Private Law PhD thesis was realised inside the IREENAT and supervised by Patrick Meunier

The notion of barrier for the free movement of goods, persons, services and capital is organized according to a distinction between national indistinctly applicable measures and those which are discriminatory. The consequence of this distinction is to determine if a state measure can enjoy of the concept of imperative requirement or overriding requirement of general public importance because only national indistinctly applicable can of this. Therefore, neither this distinction nor this concept are explicitly identified by the primary common law.
It’s a creation of the European Court of Justice. Thus, a theory about national indistinctly applicable measures is born. Indeed, the Court of Justice arranges for them a specific juridical system by being free of only instrument of the treaty establishing the European Community.

Because such an initiative of the Court of Justice makes difficult the understanding of the notion of impediment of free movement, it’s necessary to wonder about its relevance. If in 1979, the creation by the Court of a theory about national indistinctly measures could be relevant, nowadays, we have to conclude that it is irrelevant. Indeed, juridically, these measures are treated like the discriminatory measures. Moreover, this distinction has no tangible reality. Such a reflection leads the Court of justice to clarify the rules about the free

Freedom of movement, impediment to freedom of movement, derogation to the rules of freedom of movement, imperative requirement, overriding requirement of general public importance.