Catch Me If You Can? The market freedoms’ ever-expanding outer limits

Abstract

This Article submits that questions of institutional ability and legitimacy should play a more important role in the Court of Justice’s decision-making process. In effect, both the legal literature and the Court’s reasoning process tend to disregard such questions, thereby ignoring relevant comparative institutional choices which take place whether they are acknowledged or not. The deficiencies arising from the current approach will be exemplified by an analysis of developments in EU‘s free movement law on the requirements of cross-border elements, economic aim of free movement, and on the complementarity of these two requirements. In particular, it will be argued that the absence of properly reasoned institutional comparative analysis, when coupled with under-theorised normative foundations and the introduction of European Citizenship, has potentially explosive consequences for the scope of the EU’s market freedoms.