The Influence of the Four (or Five) Freedoms on Property Law

The European Union is built upon a single market, a conglomerate of national markets that is governed by multiple levels of law. European Union law comprises two treaties and provides regulation in the form of Regulations and Directives. EU Law also provides a set of prohibitions that govern trade on the single market. In the absence of EU law, following the principle of subsidiarity as described in article 5(3) of the Treaty on the Functioning of the European Union (TFEU), national law provides market regulation. Finally, also private actors provide rules, through self regulation such as the setting of standards or business practices. The law of the single market - or internal market - is therefore a single, but multi-level system.

This chapter does not concern the various pieces of legislation that govern property law aspects, but rather the four prohibitions in the TFEU. These articles prohibit restrictions of national law ensuring free movement of goods, persons, services and capital. More recently, also aspects of the free moment of data have been added to this as a fifth freedom.

Although there are many differences between the approach the Court of Justice of the European Union (CJEU) takes, they share amongst them that they are ensured by prohibitions that restrict measures taken by Member States, or authorities in the sphere of influence of Member States. The effect of the prohibitions is that, unless justified, the measures of national law cannot exist. Collectively these are therefore sometimes referred to as negative integration.

In this chapter I will discuss some general aspects of EU internal market law in relation to property law. After that I will concisely deal with each of the five freedoms, with an emphasis on the free movement of goods due to the immediate link to the law of property.