The power to shape the internal market: constitutional implications of the case law of the Court of Justice of the European Union

Thesis

This thesis aims to determine the constitutional implications of the exclusive authority granted to the CJEU to interpret the Treaties in the context of the internal market. In particular, it examines how the Court’s interpretation of the free movement and competition rules – the two principal components of the internal market law – has shaped the constitutional division of competences between the EU and the Member States (the vertical dimension) and between the EU’s legislative institutions and the Court (the horizontal dimension). The argument to be advanced in this thesis is based on a comparative analysis of the Court’s reasoning in cases involving conflicts between, on the one hand, the free movement and competition rules and, on the other, domestic regulatory measures that embody various social policy considerations. The policy areas selected as case studies for the inquiry are healthcare, education, collective labour law, and gambling. None of these areas has been harmonised at EU level, save for the legislation essentially codifying the case law, and therefore come within the purview of EU law mainly through the judgments of the Court adopted in the context of the internal market. The comparative analysis – both among the selected policy areas and between the Court’s free movement and competition case law – reveals the inconsistencies in the Court’s exercise of its interpretative authority in light of the principles that govern the division of competences and powers in the EU. The thesis ultimately argues that, unlike its competition case law, the Court’s free movement case law involving the areas of healthcare, education and collective labour law, but not gambling, has encroached on national regulatory autonomy to an extent incompatible with the principles of conferral, subsidiarity and proportionality, and has reduced the scope of EU legislative action to the point of upsetting the institutional balance of powers between the EU’s judiciary and legislature.

Authors: Velyvyte, V

• DOI: 10.5287/ora-r1p4rwo2e
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English