Constitutionalising the Market, Marketising the Constitution, and to Tell the Difference: On the Horizontal Application of the Free Movement Provisions in EU Law

24 Pages Posted: 18 Feb 2012

See all articles by Harm Schepel

Harm Schepel

University of Kent - Kent Law School

Date Written: March 2012

Abstract

Ever since the Court's judgment in Walrave, there has been a concerted effort in caselaw and doctrine to limit the horizontal direct effect of free movement provisions to exceptional circumstances. This article suggests that this effort has always been incoherent, and is simply untenable after Viking and Laval. The implications are far reaching, especially in the sphere of the free movement of capital and corporate governance where the Court is well on its way of imposing a model of shareholder primacy on European company law. Full direct horizontal effect will also have important repercussions for private law and its ability to resolve conflicts between economic freedoms and fundamental rights. Given the nature of the free movement provisions, their horizontal effect will sometimes lead to a constitutionalised market and sometimes to a marketised constitution, without there being any principled way of distinguishing between the two. In that light, horizontal direct effect is very unlikely to enhance the effectiveness of internal market law - whichever model of the social market economy it is thought to embody - and is best abandoned.

Suggested Citation

Schepel, Harm, Constitutionalising the Market, Marketising the Constitution, and to Tell the Difference: On the Horizontal Application of the Free Movement Provisions in EU Law (March 2012). European Law Journal, Vol. 18, Issue 2, pp. 177-200, 2012, Available at SSRN: https://ssrn.com/abstract=2007386 or http://dx.doi.org/10.1111/j.1468-0386.2011.00593.x

Harm Schepel (Contact Author)

University of Kent - Kent Law School ( email )

Canterbury, Kent CT2 7NS
United Kingdom

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