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

Schepel, Harm (2012) Constitutionalising the Market, Marketising the Constitution, and to Tell the Difference: On the Horizontal Application of the Free Movement Provisions in EU Law. European Law Journal, 18 (2). pp. 177-200. ISSN 13515993. (The full text of this publication is not available from this repository)

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Official URL
http://dx.doi.org/10.1111/j.1468-0386.2011.00593.x

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.

Item Type: Article
Subjects: K Law > K Law (General)
Divisions: Faculties > Social Sciences > Kent Law School
Depositing User: Harm Schepel
Date Deposited: 30 Mar 2012 07:16
Last Modified: 03 Apr 2012 11:16
Resource URI: http://kar.kent.ac.uk/id/eprint/29232 (The current URI for this page, for reference purposes)
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