The Reach of Free Movement and the Gradualist Approach of the CJEU: An Introduction

Abstract

The article introduces the topic of this book: the reach of free movement, and the book’s focus on what constitutes a restriction to free movement. That threshold remains low, for all freedoms. However, the discussion of what constitutes restriction continues. That is not surprising: the restriction concept is the most basic component of free movement. The article sets out the argument for different tests, discrimination, market access or de minimis thresholds. It puts forward one explanation for the CJEU’s Keck line of cases on selling arrangements and use restrictions. It is an incremental approach to forms of restrictions without impact on free movement in the Internal Market. The CJEU cannot replace this jurisprudence with a general test different from ‘restriction’, which in practice would mean that many forms of restrictions, including new ones, would not be reviewed by the CJEU. This incremental approach is in the nature of court review. Academic scholarship has criticised the Keck approach, and those defending it have not provided much in terms of analysis. Scholarship should be a force for coherence and convergence, and assist in the development of general free movement and Internal Market concepts. This chapter also provides an overview of the contributions in the book and explains how they fit into this project.