At the very center of the European integration process stands the internal market. The Court of Justice has in several instances ruled on the scope of the rights constituted by the internal market and the thereby following freedoms of movement of workers, capital, and goods, the freedom to provide services, and the right establish.
This synopsis will look into the way in which the Court of Justice balance between promoting the harmonization of the internal market and not pushing too hard on issues of peculiar interest to the Member States (MS). Given the short format of this synopsis, the scope of the inquiry must be limited extensively. This will be performed by means of providing the fundamentals for just one argument, which will be explored through comparative analysis of two cases within the rulings on the freedom of movement of workers, and then discussed in relation to two other cases. The Argument
The argument is that the Court of Justice in general has taken an activist role in promoting harmonization of the internal market, but has taken a reluctant approach in matters concerning public moral. The case law established by the preliminary rulings in the cases of Angonese and van Duyn exemplify this act of balancing. In order to found the analysis more solidly, the important distinctive points in the cases will be discussed in relation to the case law of Centros and Schmidberger.
Angonese and van Duyn relate to the case law concerning the free movement of workers. The cases are essentially concerned with the extent to which the right to free movement of workers grants access to a position. In Angonese the controversy arises upon a provision of a company that states that only individuals holding a certificate of bilingualism from one specific test center will be considered in the competition on a position. In van Duyn the controversy arises upon the face the government of the host MS consider the nature of the organization, in which the potential worker is offered a position, problematic according to their public policy. C-281/98 Angonese
Roman Angonese grew up in Bolzano, Italy, but had German as his mother tongue. The Court of Justice was therefore able to conclude that he as a matter of fact was “perfectly bilingual”. Angonese had studied in Germany, but applied for a competition over a position at Cassa di Risparmio di Bolzano SpA in Bolzano. The bank, however, required a certificate of bilingualism, which could only be obtained in Bolzano. Angonese claimed that this was a breach of the principle of free movement of workers.
When the Court delivered its reasoning, it had to face the claim the case was outside its jurisdiction, because it concerned an entirely internal situation. The Italian government claimed that since Angonese grew up in Bolzano, the case was not a matter for the Court. What is now A. 45 TFEU establishes the right to free movement of workers and lists in § 3 what that right entail. The rights conferred upon the nationals of the MS of the Union is in all of the subparagraphs linked to the actual exercise of the right to move within the Union in order to find or hold a position. As the Court has made clear in inter alia Saunders and McCarthy, the right of the MS national can only be invoked where the situation is not wholly internal. That means that individual involved cannot invoke his/her right, “where there is no factor connecting them to any of the situations envisaged by community law.”
Angonese was an Italian citizen, who applied for a position in Italy. The case left, therefore, justifiable doubts as to the whether this specific case concerns the free movement of workers. The Court responded to the question in the following rather vague manor: “it is far from clear that the interpretation of Community law it seeks has no relation to the actual facts of the case...”. The case touched, however, upon an issue, which is of...