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

Date01 July 2015
Published date01 July 2015
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
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’.
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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