Rethinking the structure of free movement law : the centralisation of proportionality in the internal market

Abstract

This article analyses three important developments in EU free movement law from the perspective of the structure of free movement law. Each of these developments – market access, horizontal direct effect and the assimilation of justifications – is caused by structural changes in the application of the free movement provisions. Firstly, the Court of Justice of the European Union has used 'backwards reasoning', which means that the Court no longer maintains the consecutive order of the structure. Moreover, the Court has increasingly merged what were previously distinct stages of inquiry in free movement cases. The result is that the proportionality test has become the most likely tool to solve free movement cases. This process of centralisation can be explained by the Court's aim to guarantee the effet utile of the free movement provisions. However, the centralisation of proportionality has a number of important consequences. Ultimately, the (almost) exclusive reliance on proportionality to solve free movement cases does not improve the functioning of the internal market. Therefore, the Court should also develop and rely on the other pillars of the structure of free movement law.