Research Papers

Building on Schütze’s account of the EU as a federation, my paper explores what one of the most curious features of the federal Union in Europe, namely the possibility which the Union legally provides, to be regulated by the law of one Member State while living / conducting business in another. Classical federalism theory is built on the postulate of territoriality of composing units, thus excluding such legal penetrations, limited exceptions notwithstanding. It is certain that for Publius a federation tolerant of the idea of the law travelling across the border from one federal unit to another would be unthinkable. Yet, EU citizens can legally take the law of one Member State on their travels to another. Home country rule in the free movement of services is just one case in point. Recent case-law on services reinforces this point by defining the ‘temporary’ nature of the service very broadly. Consequently, while classical federalism offers citizens an exit option (i.e. an unconditional right to move from one federal unit to another) as a guarantee of freedom, the nouvelle vague federalism of the EU adds an entry option to it, by playing down the postulates of territorial sovereignty of the Member States. This ability to migrate taking one’s law along is what my paper addresses in meticulous detail. This important addition to the classical understanding of federalism is likely to have important implications on the self-image of the EU and the development of its law in the future.