When, If Ever, Can Restrictions on Free Movement Be Justified on Economic Grounds?

Abstract

In a seminal ruling of 1961, the Court held that what is now Article 36 TFEU is directed only to “eventualities of a non-economic kind”. The basis for this principle, which governs all four freedoms, is simple: if restrictions were generally permitted on economic grounds, the internal market would be wholly undermined. Although this principle has been slightly eroded over recent decades as the four freedoms have been applied to increasingly sensitive sectors, the only clearly established, consistent and unambiguous departure from it relates to health care. In other fields, particularly social law, the case law is bedevilled with ambiguity and contradictions, no doubt because the Court is fully aware of the continuing central importance of the principle.