'From Gebhard to Carpenter: towards a (non-) Economic Constitution'

Abstract

The free movement provisions have always been generously construed by the European Court of Justice. Through a teleological rather than a literal interpretation, the Court ensured that individuals would enjoy tangible benefits from their State’s membership of the Community. Further, the Court has adopted a dynamic interpretation, reflecting both the evolving nature of the Community integration process, and changes in society. If, following Keck, the scope of the free movement of goods has been (at least partially) curtailed, the scope of the free movement of persons provisions has been considerably broadened. The step towards a non-discriminatory assessment of the workers and establishment provisions, together with some developments which have occurred in the field of services, have made it considerably easier for individuals (and companies) to bring themselves within the scope ratione materiae of the Treaty. Consequently, an increasing number of rules are subject to the necessity and proportionality assessment demanded by the imperative requirements doctrine. This creates three main problems. First of all, it is debated whether such intrusion into the regulatory autonomy of the Member States is justified by the Treaty. Secondly, it is increasingly difficult to assess the boundaries of the free movement provisions. Thirdly, the practical difficulty in drawing a demarcation line between rules which can be construed as obstacles to the exercise of the movement rights, and rules which should fall altogether outside the scope of the Treaty, is reflected in the difficulty of providing a satisfactory conceptual framework capable of defining the scope of the Treaty rights whilst also accommodating the developments of the often confused case law. This article aims at exploring these problems by focusing on the case law on non-discriminatory restrictions in the field of free movement of persons. It will be argued that whilst the discrimination/double burden approach does not reflect the State of the law, the market access theory either cannot explain the post-Gebhard case law, or, if it can, it does not provide us with any indication as to the content of the free movement provisions. It will then be suggested that the internal market rationale does not provide a valid explanation for some of the Court’s case law. Rather, the rulings in Gebhard, Gourmet and Carpenter are part of a broader phenomenon, where the Court is protecting the citizen qua citizen, rather than simply qua mover, thereby assuming a role which traditionally pertained to national constitutional courts. Thus, it will be argued, these cases should be seen in the context of the introduction, and development, of Union citizenship. We will start by outlining the different conceptual frameworks elaborated in relation to the free movement provisions, to then turn our attention to the case law to assess how the theory relates to the practice, and to suggest a new framework of analysis.