Free Movement, Market Failure and the Protection of Culture
Iris Goldner Lang2024, European Union Economic Law and Culture: Towards a European Culturally Corrected Market Economy
The EU internal market is based on the presumption of unhindered movement. National restrictions, which limit free movement, are perceived as antipodes of the internal market, which limit its successful functioning. This paper takes a different view and approaches the internal market from the perspective of market failure logic and by taking the protection of culture as a case study. It argues that national restrictions, whose aim is to protect important public interests-such as the protection of culture-and which are proportionate, are the precondition for the successful functioning of the internal market, as they contribute to the social optimum which could not be achieved by the unhindered play of market forces. Consequently, Member States' reliance on justifiable reasons to restrict free movement should be viewed as a corrective of market failure and an inherent, constituent part of the internal market logic, even if limiting cross-border movement. In this context, it is argued that a Member State would make a more convincing argument when justifying a national restriction by relying on a market failure test and showing that a social optimum would not be attained without state intervention. It is also suggested that in areas where free movement overlaps with issues under national competence, such as culture, Member States should be given more leeway when defending their restrictive measures, which prevent market failure.
