Free movement of persons through the lenses of 'discrimination' and 'restriction'

Abstract

The notions of 'restriction' and 'discrimination' are the soul and life of EU free movement law. These are the notions that define what is caught within the net of the free movement provisions, as well as the limits that are placed on their scope of application. These concepts are not monolithic but their interpretation is constantly changing and adapting and, together with this, the relationship between them is redefined. This chapter will seek to consider the reach of the provisions governing the free movement of persons, taking as its point of reference the ECJ's interpretation of the notions of 'discrimination' and 'restriction' in this context. In particular, it will analyse how the meaning of the above notions has developed through the years and it will explore how the relationship between the two has evolved from originally being one of interdependence to one that is of (almost) complete independence. The chapter will conclude that the main reason behind these developments is the (gradual) attribution to the free movement of persons provisions of a double status of instrumental freedoms and fundamental (citizenship) rights.