Niamh Nic Shuibhne has tackled an important issue that arises frequently within
discourse concerning free movement law, which is the coherence of the complex
case law developed by the ECJ since the inception of the EEC.
The study is grounded on the assumption that the ECJ operates in the mode of a
constitutional court and has the responsibilities associated with such judicial organs.
Coherence is not felt to demand that different sectors must be treated in exactly the
same legal manner, but rather that differences are justified by principled distinctions
as between the application of free movement principles in different areas. Niamh Nic
Shuibhne contends that four main factors have distorted the meaning of free
movement case law, and led to fragmentation of the case law, irrespective of whether
these factors reflect good impulses or not. They are the protection of fundamental
rights, the proliferation of principles, the contested purpose of the internal market
and free movement, and the structure of the Court and its decision-making processes.
These problems are felt to be exacerbated by the Court’s reluctance to engage
with or reverse its previous decisions, even where it seems to be departing from them.
The discussion is organised thematically, focusing on the principles that drive the
developing case law. It is framed so as to consider in turn the negative and positive
scope of free movement law. The former connotes the principles that are applied in
free movement law to exclude something/someone from the scope of the Treaty,
thereby rendering recourse to issues of justification and proportionality redundant.
This includes issues such as the horizontal reach of free movement provisions, and
the status of the rule that wholly internal situations are not covered by free
movement law. The latter, the positive scope of free movement law, is concerned
with the principles that determine the outer reach of the legal rules in this area. The
coverage focuses on the utility of the division between directly and indirectly
discriminatory restrictions, and also the much discussed issue concerning the extent
to which EU law should cover non-discriminatory measures.