The criterion of "consistent and systematic manner" in free movement law

Abstract

The conflict between the four freedoms and national regulation is not merely about colliding interests but also of colliding values and thus has, potentially, constitutional implications. The conflict has often been phrased as one between national sovereignty and European integration, but is far more than this. It is about marked liberalism and market regulation, the latter constituting the very fundament upon which the European welfare states rest. In settling conflicts between the two constitutional orders-the ordo-liberal and the welfare-state constitutions- the Court of Justice of the European Union (CJEU) applies the proportionality principle. However, the proportionality principle is arguably of such a discretionary character that one could question its legal credentials. The discretionary character of the proportionality principle thus threatens to undermine the legitimacy of the Court and, in turn, the legitimacy of the European legal order. In this chapter, the author discusses the invocation of the "consistent and systematic manner" criterion. Has it contributed to the formalization of the proportionality analysis, and thus decreased its discretionary character? Does it secure the legitimacy for the Court's proportionality analysis and its corresponding market liberalizing effects? In answering these questions, the point of departure is taken in the gambling case saga.