The Margin of Appreciation

This chapter examines the application of the margin of appreciation in free movement cases. It identifies the doctrine’s legal scope and investigates the scenarios in which the European Court of Justice defers to national authorities. A statistical analysis suggests that there is a significant gap between theory and practice, with only a small number of factors influencing the way in which the margin of appreciation is used. The results show how much regulatory autonomy Member States retain in free movement law. They also expose which concerns the Court prioritizes in its jurisprudence and which decisions it feels safe, or forced, to delegate to domestic institutions.

Introduction

This introductory chapter sets out the themes of the book. Doctrines of judicial deference have begun to appear with growing regularity in the European Court of Justice’s free movement case law, especially in relation to Member State action. Their application has been controversial, which is unsurprising in light of the constitutional issues which deference raises: should judges intervene in the work of the legislators? How far can the EU restrict national autonomy? And what is the division of power between European and Member State courts? The chapter sketches the approach taken in the book and explains the empirical study on which the analysis is based. The idea of the ‘passive virtues’ is introduced and linked to the developments in EU free movement law.

Conclusion

This chapter summarizes the findings of the book and concludes. It explains the implications of deference for free movement law, the internal market, and Member State autonomy as well as for our understanding of judicial behaviour in the EU. The Court of Justice’s growing restraint in parts of its case law will set free capacities for greater activity in others, which may lead to a change of priorities within free movement law but also prompt a shift in attention towards other fields. Although the book identifies long-term developments in free movement adjudication, it, ultimately, remains a snapshot: the internal market is a dynamic process which will continue to evolve.

Discovering Passive Virtues

This chapter provides a normative evaluation of the use of deference in free movement law. It pursues the question as to whether the European Court of Justice's increasing withdrawal from exercising substantive scrutiny over national laws is a welcome or worrying trend. The issue touches upon some fundamental questions of EU constitutional law. Since the Treaty of Maastricht, the EU has embraced a number of conflicting constitutional goals. They concern the place of democratic governance, the question of federalism, and the uniformity of European law. The margin of appreciation and decentralized judicial review stand in the crossfire of these developments, which makes delineating an appropriate scope for the two doctrines challenging. The chapter proposes a solution based on the ideas of representation and expertise, which reconciles the fundamental constitutional commitments of the EU with insights from comparative institutional analysis.

Decentralized Judicial Review

This chapter explores the practice of decentralized judicial review and its implications for the European Court of Justice’s relationship with Member State courts. The division of judicial powers in the EU is assessed with a focus on justification and proportionality review. Drawing on the data from the case law survey, the analysis sheds light on the role allocation between European and national judges in free movement disputes. It investigates to what extent the distinctions between law/fact and interpretation/application capture their respective functions. The findings show that the power of Member State courts has grown significantly over time, with the Court of Justice delegating an ever greater number of decisions to the domestic judiciaries. As a result of this, EU free movement law is being increasingly shaped at the national level.

The New Free Movement Architecture

This chapter provides a conceptual analysis of judicial deference in free movement law. It argues that the reason for the growing relevance of deference in free movement cases is rooted in a shift in focus away from the scope of rights towards justification and proportionality. The European Court of Justice has created two deference doctrines: the margin of appreciation and decentralized judicial review. While the margin of appreciation doctrine is employed to pass certain regulatory decisions over to national legislatures and executives, decentralized judicial review is used to delegate responsibilities connected with free movement review to national courts. Both deference techniques represent a departure from the Cassis de Dijon approach, which has, for a long time, defined large parts of free movement adjudication, and have significant institutional consequences.

Proportionality and Its Discontents

This chapter focuses on one element of judicial review which is particularly affected by deference: proportionality analysis. It argues that the connection between proportionality and deference is not accidental. Constitutional scholarship has overly focused on the benefits of proportionality analysis for judges. Yet, the test equally creates a series of duties which can become a burden, a burden which courts will try to reduce by resorting to deference techniques. The chapter offers a historical, theoretical, comparative and empirical argument in support of this thesis. It traces the development of proportionality in EU law and compares it with the American ‘standards of review’ model. An empirical analysis of free movement case law reveals that the more frequently the European Court of Justice applies proportionality, the more frequently it opts for deferential forms of scrutiny.

The Rise of Deference

This chapter presents a macro-level analysis of the phenomenon of judicial deference in free movement law. It focuses on two questions: how frequently does the European Court of Justice defer to national authorities? Has its intensity of review of Member State action changed over time? A systematic analysis of free movement jurisprudence reveals that deference to domestic institutions has increased since the 1970s, a development which challenges some common beliefs about the Court of Justice and free movement law. The chapter looks at possible reasons for this evolution, arguing that it is connected to broader legal, political, and institutional changes that have taken place in the EU.