The EU and the Four Freedoms

Aidan O’Neill QC

When being interviewed on BBC Radio 4’s Broadcasting House on Sunday, Brenda Maddox, the editor of Prospect Magazine made the point that, despite the current crises with the Euro, the European Union has been remarkably successful in its original post WWII strategic aim of creating an area of peace (if not always prosperity) in Europe.  If war might be seen as the continuation of economics by other means, then the economic union and integration which the EU has created over the past sixty year has achieved its primary goal of beating the swords of Franco-German rivalry into the ploughshares of the Common Agricultural Policy.

It is perhaps worth reminding ourselves of this achievement of this Pax Europaea and the importance its maintenance, even as fears mount that the Euro-zone project looks set to crash and burn under the weight of Greek insolvency and a loss of confidence in Italian fiscal management. It is important to recall this idealistic foundation when faced with the now vast and sprawling – and ever-expanding – web of Treaties, legislation, principles, rights and duties that is now EU law.

The bigger picture of the EU as a project intended to end the possibility of further war in Europe is present (though hidden) in the phrase “the four freedoms” has commonly been used as a convenient shorthand in EU law to mean the freedom of persons, goods, services and capital to be able cross, without let or hindrance, the national borders of the Member States countries within the Union (see for example Case T-115/94 Opel Austria GmbH v. Council of the European Communities [1997] ECR II-39 at para 108.    These freedoms are fundamental to the European project. They must be respected by the EU institutions and by the Member States.  Public authorities and courts must also ensure that they do not impose or rely on any interpretation of secondary provisions of EU law (directive or EU regulation) which runs contrary to these fundamental freedoms. As the General Court stated in Case T‑16/04 Arcelor SA v. European Parliament 2 March [2010] ECR II-nyr at paras 181-2:

“[B]oth the Community legislature, when adopting a directive, and the Member States, when transposing that directive into national law, are required to ensure that the general principles of Community law are respected. Thus, it is apparent from settled case‑law that the requirements flowing from the protection of the general principles recognised in the Community legal order, which include fundamental rights, are also binding on Member States when they implement Community rules, and that consequently they are bound, as far as possible, to apply the rules in accordance with those requirements. The Court takes the view that those principles apply by analogy to the fundamental freedoms of the EC Treaty.”

But this common EU law understanding of the “the four freedoms” is something of a pale shadow or faint echo of the phrase as originally coined. In his January 1941 State of the Union address before the United States Congress – a masterpiece of rhetoric given at a time when war, tyranny and genocide reigned in Europe – the American President Franklin D Roosevelt proclaimed:

“We look forward to a world founded upon four essential human freedoms.

The first is freedom of speech and expression – everywhere in the world.

The second is freedom of every person to worship God in his own way – everywhere in the world.

The third is freedom from want – which translated into world terms means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants – everywhere in the world.

The fourth is freedom from  fear – which translated into world terms means a world-wide reduction of armaments to such a point and in so thorough a fashion that no nation will be in a position to commit an act of physical aggression against a neighbour – anywhere in the world.   

That is no vision of a distant millennium.  It is a definite basis for a kind of world attainable in our time and generation. That kind of world is the very antithesis of the so-called new order of tyranny which the dictators seek to create with the crash of a bomb.”

These ideals were revived amid the wreckage of a post-war Europe – destroyed in the rage of the dictators – to produce two lasting, transnational European institutions:  the Council of Europe, founded to proclaim and protect the fundamental civil and political rights of the individual against the European State; and the European Union which, as we have seen, was essentially aimed at the economic integration of its European Member States so as to bind them together in inextricable bonds of trading links, such as to make any future war between them not just pointless but impossible. Specifically, war between France and Germany – the cause of so much misery for the 100 years between the mid-19th and mid-20th centuries – has (it is hoped) now become inconceivable because there can no longer be any (economic) casus belli.

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