New Book about Judicial Authority in EU Internal Market Law

Dr Vilija Vėlyvytė, British Academy Postdoctoral Fellow at the Law Faculty, has recently published a book titled Judicial Authority in EU Internal Market Law: Implications for the Balance of Competences and Powers” (Hart Publishing 2022). 

An image of the front cover of the book, "Judicial Authority in EU Internal Market Law: Implications for the Balance of Competences and Powers"

The book examines the role of the Court of Justice of the European Union in the regulation of the internal market from a competence perspective. The EU’s internal market measures have been described as ‘the most impactful, politically inflammatory and contentious of all its actions’ (Davies, 2017). Most accounts analysing EU action in this area criticise the EU’s legislative institutions for failure to respect the limits of EU competence and the Court for failure to police those limits. Yet they largely overlook a related, and equally important, question: does the Court itself observe the limits of EU competence and limits of its own institutional powers in the interpretation of the rules of the internal market laid down in the EU Treaties? The book provides an answer to this question through a two-fold inquiry: a comparative analysis of four areas of free movement case law which are generally regarded as sensitive from a national point of view; and the assessment of the legitimacy of that case law in light of the constitutional principles which govern the allocation of competences and powers in the EU. These are the principles of 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 EU judicial practice, as opposed to legislative and executive practices? To what extent are these principles observed in the free movement case law?

The book argues that the Court’s observance of the principles which govern the scope and exercise of EU competences has been inconsistent. In some of the most sensitive areas of national public policy, such as healthcare, education and labour law, the Court has advanced the free movement in the EU by overstretching the principles of conferral, subsidiarity and proportionality. Doing so has undermined the regulatory autonomy of the Member States, thus creating an imbalance in the vertical division of competences in the EU. It has also upset the institutional balance of powers between the EU legislature and judiciary, depriving the former of the core of its legislative prerogatives. This practice not only compromises the legitimacy of the Court as the guardian of the rule of law in the EU, but also implicates the legitimacy of the EU as a supranational polity and threatens to jeopardise the integrity of its legal order.

In light of this analysis, the book proposes certain interpretative solutions on the part of the Court which would rectify inconsistencies in its case law and the constitutional and institutional imbalances which have resulted therefrom.

The book launch will take place on Friday, 3 February 2023, at 5 PM. It will involve contributions from Jeremias Adams-Prassl (Oxford), Sacha Garben (College of Europe), Vasiliki Kosta (Leiden) and Jan Zglinski (LSE). Further details to follow closer to the event.

The book is available to purchase online now.