The intention of my thesis is to shed light on a technique of integration implemented by the European Court of Justice described as 'power-based approach.' Frequently neglected and overlooked, it is distinct from the ECJ traditional rights-based approach. It materializes in a specific range of free movement cases where Member States are suspected of having impinging on the free movement principle understood as encompassing the four economic freedoms and EU citizenship when they exercise what the Court deems as being their retained powers. A variety of fields are concerned, such as nationality, direct taxation, social security, or education. My overall claim is that the power-based approach contributes to defining and shaping the contours of the relationship between the European Union and its Member States, of EU interstate relations and, ultimately, of Union membership. I start with an attempt at deconstruction to identify the defining features of the cases concerned by this approach: (i) they revolve around the structural notion of power; (ii) the applicability of the free movement principle stems from the disjunction of the scope of application of EU law from the scope of EU powers; (iii) the settlement of the conflicts at hand amounts to a 'mutual adjustment resolution, ' which consists in putting limitations on the exercise of the powers retained by Member States, while the Court itself tends to soften its own approach to protect national autonomy. I then proceed with an effort at reconstruction. First, I identify the jurisdictional implications of the power-based approach. Next, I look into its implications for membership of the Union. Lastly, I provide an overall critical and structural reassessment. I show that the silence of the Court regarding the rationale behind its approach has the effect of weakening its legitimacy and its authority. I finally identify its resulting structural model.

This collection of essays brings together contributions from judges, legal scholars and practitioners in order to provide a comprehensive assessment of the law and practice of exceptions from the principle of free movement. It aims: – to conceptualise how justification arguments relating to exceptions to free movement operate in the case law of the Court of Justice of the European Union and national courts; – to develop a comprehensive and original account of empirical problems on the application of proportionality; – to explore the legal and policy issues which shape the interactions between the EU and national authorities, including national courts, in the context of the efforts made by Member States to protect national differences. The book analyses economic, social, cultural, political, environmental and consumer protection justifications. These are examined in the light of the rebalancing of the EU constitutional order introduced by the Lisbon Treaty and the implications of the financial crisis in the Union.

The reach of free movement within the EU Internal Market and what constitutes a restriction are the topics of this book. For many years the tension between free movement and restrictions have been the subject of intense discussion and controversy, and this includes the constitutional reach of the rights conferred by the Treaty of Lisbon. Anything that makes movement less attractive or more burdensome may constitute a restriction. Restrictions may be justified, but only if proportionate. The reach of free movement is fundamental to the Internal Market, both for the economic constitution and increasingly for individual rights in a European legal order that provides constitutional guarantees for rights, exceeding those of free movement. The interaction between fundamental rights and fundamental freedoms to movement distinguishes the EU legal order from the national legal systems. The book falls into four parts: ‘The Reach of Free Movement', ’Justifications and Proportionality’, ‘Fundamental Rights’, and ‘Looking Abroad’. The clear discussion of the fundamentals and dilemmas regarding the subject of this book should prove useful for academics, practitioners, graduate students as well as EU officials and judges wishing to stay updated on the ongoing scholarly debate regarding relevance to case law. Mads Andenas is Professor at the Department of Private Law, University of Oslo and at the Institute of Advanced Legal Studies, School of Advanced Studies, University of London.Tarjei Bekkedal is Professor at the Centre for European Law, University of Oslo and the Chair of the Norwegian Association for European Law. Luca Pantaleo is a Lecturer in EU law at The Hague University of Applied Sciences, who obtained a PhD in International and EU Law in 2013 at the University of Macerata in Italy, and who was previously a Senior Researcher at the T.M.C. Asser Institute and Postdoctoral researcher at the University of Luxembourg. Specific to this book: • Up-to-date analysis of the reach of free movement within the EU Internal Market and what constitutes a restriction• Chapters by leading authorities and a number of young scholars, active in various interconnected fields, such as European law, Constitutional law and Human Rights law, international law, global governance, European trade and commercial law, European Financial Services law, and procedural law.• The strength of the content lies both in its highly practical and theoretical applicability

Presenting a critical analysis of the Court of Justice's jurisprudence on EU free movement rights, this book explains the drivers behind the fragmentation of internal market law. It argues that the Court has a responsibility to articulate coherent framework principles applicable in national law, but also requires greater support from Member States.

The European Union has flourished and expanded over the last fifty years as a unique system that lies midway between a federal state and an anarchical international system. Different actors coexist within a cooperative hegemony of Member States, and the allocation of competences and decision-making among them has always been at the centre of the integration process. In fact, demands for clearer limits to the Unionand’s decision-making power and enduring tension over the nature and purpose of European integration have been the key drivers of integration and change. This deeply informed and thoughtful book thoroughly examines the manner in which the principle of division of powers has developed in EU Law over the course of European integration, and casts light on the path towards a more efficient delimitation of internal competence between the main actors: namely, the European Union and the Member States. Among the topics investigated in depth are the following: the place of the and‘competence provisionsand’ in the current and future EU Treaty structure; the scope and limits of the powers of institutional actors involved in EU decision-making; the contribution of the Court of Justice in declaring the pre-emptive effect and overarching precedence of Community law; the role of subsidiarity as a tool for monitoring the jurisdictional limits of the Communityand’s legislative competence; areas where and‘creeping competenceand’ occurs; the constitutional checks and balances available to Member States against unprecedented expansion of EU competences; and the spectre of a powerful and‘coreand’ Europe and a and‘multi-speedand’ Europe of pacesetters and laggards. Addressing numerous crucial issues and– among them the degree of permanence of the nation-state in a context of ambiguous constitutional authority, and the width of the democratic base of the Unionand’s and‘institutional dynamicand’ of cooperation and consensus and– the author lucidly describes a seeming paradox: an and‘ever-closer unionand’, with a growing democratic legitimacy, congruent with a supranational community that falls short of a fully-fledged democratic political entity. The countless perspectives and clarifications discovered along the way are sure to engage academics and policymakers working in the fields of the European integration project, and will provide ample insights and food for thought.

This book critically analyses the case law on EU citizenship in relation to its personal free movement rights, its status on the primary law level, and EU fundamental rights protection. The book exposes the legal space where EU citizenship variably loses or gains legal relevance, and questions how this space can be overcome. Through a thorough analysis of the core personal free movement rights of residence, family reunification, equal treatment and equal political participation, the book demonstrates how the development of the case law of the Court of Justice of the European Union has generated a two-tiered legal concept of EU citizenship. Depending on the nature of the legal claim at hand, EU citizenship may appear as a poor legal personhood for exercising free movement rights; sometimes pushing the individual who is in a factual cross-border situation out of the scope of Union law. Contrastingly, in other strands of the jurisprudence, we see EU citizenship and its primary law levelled-rights stretch the jurisdictional scope of Union law, triggering the EU's Charter of Fundamental Rights for review of the individual case. The book enhances the understanding of the legal concept of EU citizenship in Union law and contributes to the debate on the future development of EU citizenship, its relationship to the Charter, and the strength of its legal position for the person who exercises freedom of movement.

How 'free' is the free movement of persons? Why does the law that enables it need to be 'revisited'? This collection of essays, curated by Claire Kilpatrick and Joanne Scott for the European University Institute's 2020 Academy of European Law, addresses these questions. Across different examples - migration, posted workers, social security, Brexit, and Union citizenship - each chapter revisits the categories that have become entrenched in EU law on the free movement of persons and the boundaries that have been constructed as a result. Do they still represent meaningful differences? Are they valuable compass points or inhibitors of progress? Do they ensure comprehensive or fragmented protection of the person? In reconsidering the fundamentals of EU free movement law, the book draws attention to tensions that have not yet been properly resolved: between appropriate difference and problematic discrimination, or between the mythology and the experienced reality of free movement for the people who actually move. Its chapters consider how the free movement of persons connects to and is shaped by the EU legal spaces beyond free movement as well as by the space beyond law. The contributors do not shy away from provoking a rethink of core principles. They interrogate these fundamentals and the changing objectives of the free movement of persons to take up the challenge of doing it better: of making it both more protective of people and more resilient in ethical, systemic, and sociological terms.