Environmental Protection as an Exception to the Freedom of Establishment and the Freedom to Provide Services in the European Union

• Date: 01 July 2015
• Published date: 01 July 2015
• DOI: http://doi.org/10.1111/reel.12110

Environmental Protection as an Exception to the

Freedom of Establishment and the Freedom to

Provide Services in the European Union

Lucia Casado Casado*

This article examines the tensions between European

Union policy on environmental protection and the

safeguarding of Community freedoms, focusing par-

ticularly on the freedom of establishment and the

freedom to provide services. It offers an analysis of

the scope of environmental protection as a justifica-

tion for exceptions from Community freedoms in the

case law of the European Court of Justice. It also

examines the specific provisions on environmental

protection set out in Directive 2006/123 on services

in the internal market. In particular, it determines

the scope of the environmental exception under the

provisions of this Directive, according to which pro-

tection of the environment justifies specific deroga-

tions from the regulatory framework governing the

freedom of establishment and freedom to provide

services.

INTRODUCTION

The establishment of an internal market is one of the

fundamental goals of the European Union (EU).

According to the Treaty on the Functioning of the EU

(TFEU), this internal market ‘shall comprise an area

without internal frontiers in which the free movement

of goods, persons, services and capital is ensured in

accordance with the provisions of the Treaties’.1Achiev-

ing this objective is to a great degree contingent on the

full and free exercise of the four fundamental freedoms

that define and uphold the internal market (free move-

ment of goods, people, capital and services).2

However, another EU objective is working towards ‘the

sustainable development of Europe based on balanced

economic growth . . . and a high level of protection and

improvement of the quality of the environment’.3As

such, the environment must be placed alongside eco-

nomic goals. Moreover, the achievement of this objec-

tive requires not only the constitutionalization of a

specific European policy on the environment, but also

the integration of environmental considerations into all

other Community policies.4

Free movement of goods, freedom of establishment and

freedom to provide services are fundamental freedoms

that were laid down in the Treaty of Rome in 1957 and

are maintained in the TFEU. They are, however, not

absolute, and environmental protection can be seen as

an overriding reason relating to the public interest that

could justify specific restrictions to these freedoms. Ini-

tially, then, some tensions seem to exist between the

functioning of the internal market and protection of the

environment, with the latter offering legitimate reasons

for the introduction by individual Member States of

measures different from those established for the inter-

nal market. However, ultimately the internal market

must also serve to support sustainable development,

through the integration of environmental objectives.5

This is a matter of finding the appropriate balance

between the two objectives, which may in certain cir-

cumstances justify the adoption of measures that

restrict Community freedoms.

The tensions between environmental protection and

economic freedoms have surfaced on numerous occa-

sions.6One of the focal points of the conflict, as

reflected in the wealth of European Court of Justice

(ECJ) case law on the matter, is the task of safeguarding

the free movement of goods while pursuing the objec-

tive of environmental protection. While environmental

regulations are often seen as barriers that obstruct free

access to the internal market, open markets can also be

considered a potential threat to environmental quality

* Corresponding author.

Email: lucia.casado@urv.cat

1Consolidated Version of the Treaty on the Functioning of the Euro-

pean Union, [2012] OJ C326/47 (‘TFEU’), Article 26.2.

2On economic freedoms, see C. Barnard, The Substantive Law of the

EU: The Four Freedoms, 3rd edn (Oxford University Press, 2010).

3Consolidated Version of the Treaty on European Union, [2012] OJ

C326/13 (‘TEU’), Article 3.3.

4TFEU, n. 1 above, Article 11.

5See J.J. Pernas, ‘Los Principios de la Política Ambiental

Comunitaria y la Libre Circulación de Mercancías’, 5 Anuario da

Facultade de Dereito da Universidade da Coruña (2001), 599, at 625.

6L. Krämer, EU Environmental Law, 7th edn (Sweet & Maxwell,

2012), at 8, points out that ‘[c]onflicts –for instance between the

establishment of an internal market for goods and the need to protect

the environment via the precautionary principle – are frequent’.

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Review of European Community & International Environmental Law

RECIEL 24 (2) 2015. ISSN 2050-0386 DOI: 10.1111/reel.12110

© 2015 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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