| Abstract [eng] |
This Master thesis focuses on the re-interpretation process of a ‘Member State’ notion in the European Union internal market law. According to the increasing case law of the Court of Justice of the European Union on a matter, the meaning of ‘Member State’ is rather substantial and not limited by the institutional scheme of public authority in different States. The need to ensure the effectiveness of the internal market, in attaining the aims and goals of free market economy and legal regulation, encouraged the Court to establish and maintain functional approach. The Court has been active in the use of functional approach in assessing restrictions of free market. The functional approach allowed the Court 1) to attribute certain restrictions to the Member States responsibility, despite the legal form of the entities who were acting; 2) to move from the explicit wording of the Treaties towards broader way of defining the ‘Member State’ and, as a consequence, broader application of internal market rules. The author in this paper argues that the functional approach is of a practical significance in attaining the purposes of the internal market and defining the ‘Member State’ notion. According to the functional approach, the domestic scheme of public authority and even the traditional way on the public/private divide of law are irrelevant. Since the approach introduce the series of elements, which are of functional nature and maintained to identify the real nature and effect of the restrictions, imposed by different entities. The obstacles and restrictions of free market, which may escape the explicit wording of the Treaty provisions, might be caught, if an entity or the restriction by its nature, are functionally attributable to the “Member States’ notion. The legal definition of a ‘Member State’ must be understood in a broad manner. It’s pointed that the reality is that the effective functioning of the Internal market, primarily, depends on the behavior of ‘Member States’, while the practice shows that the level of a political will of the States on European integration is still variable. Functional definition of a ‘Member State’ prevents States from acting through the private entities. |
