Space to breathe: subsidiarity, the Court of Justice and EU Free Movement Law
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Date
26/06/2012Author
Horsley, Thomas
Metadata
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.