A classical dilemma remains whether the right to free movement is exhausted by the right to equal treatment, in law and in fact, or whether the Treaty rights reach further, and protect individual freedom as such. All solutions give rise to constitutional concerns, affecting the balancing of power between legislators and courts and the EU and domestic levels, and a core question is if they potentially leave too much in the hands of the European Court of Justice. But it is also possible to consider the Court as an enabler. A far reaching restriction criterion will vest the institutions of the European Union with far reaching competences to pursue the project of European integration. The Court itself, can apply the principle of proportionality as a filter, to show deference towards the democratic processes of the Member States, especially in the fields where no secondary legislation exists.
What constitutes a restriction?
One aim of the conference is to revisit the reach of free movement and the focus on what constitutes a restriction to free movement. The threshold remains low. In the field of goods suggestions to extend the Keck exception to Article 34 TFEU (ex Article 28 TEC) to use restrictions have not been adopted. The interplay between the fundamental freedoms also remains a central cross-cutting theme.
The reach of free movement will also be constitutive of the European integration project as the flexible term “restriction” is dependent upon, but also defines, the objectives of the European Community. One well established objective is to provide those who conduct business access to the European market. Another and more general objective, which also can serve as a source of legitimacy, is to provide the European citizen opportunities, possibly at the cost of the protection traditionally provided for by the national states.
What makes a restriction on the right to free movement proportionate?
A challenge for legal scholars is that the fundamental freedoms apply not only to goods, services, establishment and capital, but also cover a lot of different fields, which will require that a great variety of objectives and concerns is taken into account in the legal process. It is perhaps no longer possible to assess the fundamental freedoms as legal rules. As the integration project has become both wider and deeper, the freedoms function more as true constitutional principles, which vest the final arbiter with power and discretion. Provocatively therefore, one could argue that the question today is not the reach of free movement, but whether it is possible to develop and identify limits to the reach of free movement.
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