The Boundaries of the Internal Market after the Lisbon Treaty, A Closer Look at Article 95 EC

Abstract

The present paper aims to explore the boundaries of EU
law following the Lisbon Treaty with specifi c regard to the internal
market. Over fi fty years since its inception, the underlying promise
of the creation of an internal market remains a key parameter to test
the progress of European integration. A constituent aspect of the European
legislative agenda, the exact boundaries of a continually developing
internal market have to date remained fl uid and contested.
This is readily exemplifi ed by considering a provision situated at its
heart, Article 95 EC, which enables Community institutions to adopt
measures intended to promote the establishment and functioning of
the internal market. It is notable that, despite initial suggestions to
this effect, the pivotal Article 95 EC has been little altered by the Lisbon
negotiations. Article 95 EC represents an important constitutional
compromise between the ever-increasing Community competences
and the regulatory autonomy of Member States, as well as between
the often-confl icting interests of economic progress and welfare protection.
This study will revise the complex Article 95 paradigm and
outline some of the possible challenges facing this fundamental fi eld
in the aftermath of the Lisbon Treaty. Revisiting one of the key historical
objectives of the European integration project would not only be
conducive to greater determinacy in this specifi c fi eld, but could offer
a basis for a broader discussion of what values should characterise
the European Union going forward. As the challenges following Lisbon
are crystallising, there would appear to be no better time to revisit the
strategy to be adopted in the continued pursuit of the effective establishment
and functioning of the internal market.