The reach of free movement. a defence of court discretion

Abstract

This chapter argues that the reach of the fundamental freedoms and the content of the notion of a "restriction" cannot and should not be expressed in a rule-like manner. To the contrary, the fundamental freedoms function as overarching constitutional principles that both demand and legitimize the execution of court discretion. Public bodies, like courts, are vested with discretion in situations where rules are to be avoided, due to the magnitude of phenomena that are subject to regulation. Because of their stiffness, rules cannot serve the purposes of a legal system that pursues numerous, shifting and colliding objectives, such as the EU legal order. Any attempt to establish tests or categorizations that aim to define and exhaust the reach of the fundamental freedoms in a rule-like manner will obstruct the nature of the principles through which free movement is established, secured and developed, and the nature of the legal order in which they operate. The chapter explores the legal basis for court discretion, whether discretion is compatible with the principle of legal certainty, how discretion can fit a conception of the right to free movement as a personal individual right and the constitutional limitations to court discretion.