Space to breathe: subsidiarity, the Court of Justice and EU Free Movement Law

Abstract

This thesis explores subsidiarity‟s untapped potential as an enforceable legal principle in EU law. To date, discussion of the principle‟s function in European integration remains overly focused on its effect as a restraint on the Union legislature. In the first part of the thesis, I seek to challenge this entrenched view. Specifically, I question whether or not the subsidiarity principle could and, ultimately, should apply also as a brake on the interpretative authority of the Court of Justice. Arguing that subsidiarity does indeed have a role to play in this context, I then turn to examine, in the second part of the thesis, the implications of this conclusion for the Court‟s interpretation of the scope of the Treaty provisions guaranteeing intra-EU movement. In the final analysis, I argue that the subsidiarity principle necessitates an adjustment of the Court‟s current approach to defining the concept of an obstacle to intra-EU movement. This adjustment isolates and protects an appropriate sphere of Member State regulatory competence from the Court‟s scrutiny at Union level. In so doing, it ensures that, in the process of establishing and managing a functioning internal market, Member States retain some space to breathe.