Free Movement of Persons in the EU v. in the EEA: Of Effect-Related Homogeneity and a Reversed Polydor Principle

Tobler, Christa. (2020) Free Movement of Persons in the EU v. in the EEA: Of Effect-Related Homogeneity and a Reversed Polydor Principle. In: European Citizenship under Stress. Social Justice, Brexit and Other Challenges. Leiden, pp. 482-507.

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When the EEA Agreement was concluded in the early 1990s, it reflected, in the fields covered, the state of the then Community law, also with respect to the free movement of persons. Since then, both EEA and EU law have developed further, though with certain marked differences. Notably, the EU Treaty revision of Maastricht led to the introduction of Union citizenship. The fact that there is no corresponding concept in the EEA Agreement led to certain challenges within the EEA with respect to the free movement of persons, due notably to the double nature of Directive 2004/38 as a further development of the free movement law of the Communities and a Union citizenship instrument. Today, the EEA and the EU rules are identical with respect to the market access rights of economic agents. In contrast, it is debated whether and to what extent the incorporation of Directive 2004/38 into the EEA legal system is indeed limited for those purposes. This relates in particular to case law of the EFTA Court on persons who are not economically active, where the Court, in the EEA context, gives Directive 2004/38 a broader interpretation than the CJEU does in the EU context. The EFTA Court's aim, despite the lack of Union citizenship in EEA law, is to arrive at the same level of protection. Commentators speak about a particular understanding of homogeneity and of the Polydor principle. This approach raises questions also with respect to the external relations of the EU with other non-Member States, including notably the United Kingdom of Great Britain and Northern Ireland following its withdrawal from EU membership ("Brexit").
Faculties and Departments:02 Faculty of Law > Departement Rechtswissenschaften > Fachbereich Öffentliches Recht > Professur für Europarecht (Tobler)
08 Cross-disciplinary Subjects > Europainstitut > Europainstitut > Europäisches Recht (Tobler)
UniBasel Contributors:Tobler, Christa
Item Type:Book Section
Book Section Subtype:Further Contribution in a Book
Publisher:Brill Nijhoff
Series Name:Nijhoff studies in European Union law
Issue Number:16
Note:Publication type according to Uni Basel Research Database: Book item
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Last Modified:07 Oct 2020 14:52
Deposited On:07 Oct 2020 14:52

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