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Enchelmaier, Stefan --- "Horizontality: the application of the four freedoms to restrictions imposed by private parties" [2017] ELECD 267; in Koutrakos, Panos; Snell, Jukka (eds), "Research Handbook on the Law of the EU’s Internal Market" (Edward Elgar Publishing, 2017) 54

Book Title: Research Handbook on the Law of the EU’s Internal Market

Editor(s): Koutrakos, Panos; Snell, Jukka

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781783478095

Section: Chapter 4

Section Title: Horizontality: the application of the four freedoms to restrictions imposed by private parties

Author(s): Enchelmaier, Stefan

Number of pages: 28

Abstract/Description:

The horizontality of the four freedoms is here understood as their application to restrictions imposed by private parties, as opposed to restrictions contained in Member States’ legislation or administrative action. This chapter is going to explore whether and under which conditions private parties can be addressees of the four freedoms. The question is not whether the legal relations between private parties can at all be influenced by the four freedoms. It is taken as given that the supremacy of the Treaty freedoms and of secondary EU law can render national law inapplicable, including norms of contract, commercial and company law. In substance, though not necessarily in (procedural) form, the supremacy of EU law is raised as against the Member States and the laws and regulations that they have created. Whether individuals can invoke supremacy as against other individuals or companies is less clear. Horizontality so understood is both empirically relevant and dogmatically intriguing. It is empirically relevant because the Member States have over the last three decades increasingly withdrawn from the regulation of some markets in goods and services, as much as that of the labour and capital markets. On some of these markets, rules set by private (that is, non-governmental) actors had always been prominent. On other markets, privately set rules took over, in whole or in part, where the state had rescinded public regulation.