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The European Court of Justice and the Policy ProcessThe Shadow of Case Law$
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Susanne K. Schmidt

Print publication date: 2018

Print ISBN-13: 9780198717775

Published to Oxford Scholarship Online: February 2018

DOI: 10.1093/oso/9780198717775.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 05 March 2021

Reaching Beyond the Market into State Responsibilities

Reaching Beyond the Market into State Responsibilities

(p.126) 5 Reaching Beyond the Market into State Responsibilities
The European Court of Justice and the Policy Process

Susanne K. Schmidt

Oxford University Press

Chapter 5 addresses policies that are more sensitive to sovereignty. The Citizenship Directive and the Patient Mobility Directive were both highly influenced by case-law development, although member states have largely reserved the right to define citizenship and the shape of their welfare states. The Court, however, consistently holds that member states have to respect the four freedoms also in areas of exclusive competence. Neither did existing secondary law inhibit the Court from partly designing an alternative policy. Regulation through case law is susceptible to creating inequalities, as it is difficult for private actors to understand. By codifying case law, member states wanted to signal their preferences to the Court. However, existing case law does not guarantee the necessary majorities for a common policy. Corporate tax policy is an example of an area where there is a lack of agreement in the face of a great deal of case law.

Keywords:   Citizenship Directive: Patient Mobility Directive, codification of case law, EU case law, corporate taxation

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