Judicial Authority in EU Internal Market Law: Implications for the Balance of Competences and Powers(Modern Studies in European Law)

This book examines the role of the European Court of Justice in the regulation of the internal market from a competence perspective. However, rather than focusing on the Court’s role in enforcing the limits of EU competence in the EU’s political decision making, it explores a related, albeit understudied, question: to what extent does the Court observe the constitutional limits of EU competence and its own institutional powers in the interpretation of EU internal market law laid down in the Treaties? The book provides an answer to this question through the analysis of EU free movement case law in light of the constitutional principles that govern the allocation of competences and powers in the EU: conferral, subsidiarity and proportionality, on the vertical level, and institutional balance, on the horizontal level. Why should the Court be bound by these principles? What do they mean when applied to judicial practice? To what extent are they observed in the free movement case law? The book argues that the Court’s observance of the four principles has been inconsistent, thereby creating substantive and constitutional tensions in the EU’s relationship with the Member States and upsetting the institutional balance of powers between the EU legislature and judiciary. Shortlisted for the UACES Best Book Prize 2023 Runner-up of the 2024 Peter Birks Prize for Outstanding Legal Scholarship

Table of Contents:
Introduction Context and Aims Methodological Approach Contribution Structure 1. An Unfree Court: Constitutional Constraints on the Exercise of EU Judicial Authority I. Structural Constraints: The Allocation of Competences and Powers in the EU II. Substantive Constraints: The EU’s Constitutional Value Framework III. Justification for Constraining the Court IV. Conclusion 2. Free Movement Case Law in Light of the Principle of Conferral I. The Principle of Conferral in Application to EU Judiciary II. Healthcare III. Education IV. Collective Labour Law V. Gambling VI. The Implications of the Case Law for the Principle of Conferral VII. Conclusion 3. Free Movement Case Law in Light of the Principles of Subsidiarity and Proportionality I. The Principles of Subsidiarity and Proportionality, and their Application to the EU Judiciary II. Healthcare III. Education IV. Collective Labour Law V. Gambling VI. The Implications of the Case Law for the Principles of Subsidiarity and Proportionality VII. Conclusion 4. The Horizontal Balance of Powers: The Implications of Free Movement Case Law for the Principle of Institutional Balance I. The Principle of Institutional Balance in Application to the Court II. The Process of Judicial Lawmaking: Quasi-Legislative Judgments III. The Legislative Process: Political Constitutional Constraints and the ‘Judicial Trap’ IV. Model of Interaction No 1: The Court Predetermines the Content of Legislation V. Model of Interaction No 2: The Court Pre-empts Novel Legislative Solutions VI. Model of Interaction No 3: The Court Prevents Legislative Overturn VII. Conclusion 5. Rebalancing the Court, Rebalancing the EU I. The Conceptual and Legal Basis for a Relaxed Judicial Review II. The Margin of Appreciation III. Fair Balance IV. Exemption V. Conclusion Conclusion Argument Future Research Significance

About the Author :
Vilija Velyvyte is British Academy Postdoctoral Fellow at the Law Faculty of the University of Oxford, UK.

Review :
[A]n enjoyable read, written with great clarity, and with multiple cross-references and periodic summaries, which bring all elements of the analysis together and facilitate an understanding of the issues at stake. Representing an intellectually stimulating analysis of judicial authority, it should spark the curiosity of EU legal scholars and practitioners alike. Velyvyte’s critical stance toward litigation is a healthy and justified antidote to the enthusiasm EU lawyers often show for judge-made law … [W]ell worth reading, offering stimulating and in part novel perspectives on the EU judiciary and its authority relative to other institutions. [This] impressive book ... evaluates the law-making function of the Court of Justice of the European Union (CJEU), and whether it surpasses the limits of EU competences in its exercise of judicial review … Velyvyte's book makes for an interesting read, and with its extensive analysis adds significantly to the already vast literature on the judicial authority of the CJEU.