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The European Fundamental FreedomsA Contextual Approach$
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Pedro Caro de Sousa

Print publication date: 2015

Print ISBN-13: 9780198727729

Published to Oxford Scholarship Online: May 2015

DOI: 10.1093/acprof:oso/9780198727729.001.0001

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Restricting Free Movement Rights—Unpacking the Normative Foundations

Restricting Free Movement Rights—Unpacking the Normative Foundations

(p.117) 4 Restricting Free Movement Rights—Unpacking the Normative Foundations
The European Fundamental Freedoms

Pedro Caro de Sousa

Oxford University Press

This chapter explains that the reason why the main judicial formulae used to identify restrictions on the market freedoms are so unsatisfactory is that such judicial formulae incompletely reflect normative debates concerning the ideal levels of centralization, harmonization and regulation in the EU’s internal market. Instead of fitting neatly into normative theories, judicial tests contain within them a variety of potentially conflicting normative approaches. In particular, this chapter shows how tests concerning the concept of restriction on free movement reflect specific perspectives on what negative integration is supposed to achieve, and that discussions about them fail to take into account how such tests impact on, and are affected by, European integration more generally. This demonstrates the limitations of legal analysis that focuses exclusively on the internal dimension of free movement law.

Keywords:   free movement law, market freedoms, restriction on free movement, European integration, negative integration, positive integration

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