Journal article

Publication details

Reconciling secondary legislation and the Treaty rights of free movement
in journal: European Law Review

Volume number: 36
Issue number: 3
Release year: 2011
Page range: 339-361

Author(s) details

Karsten Engsig Sorensen

Publication description

Administration of justice, eu law, European Court of Justice, Freedom of movement, Harmonisation, Statutory interpretation, Subordinate legislation
Since the rights of free movement have been given both a broader and more precise scope through the case law of the Court of Justice of the European Union, it seems inevitable that secondary legislation will contain elements which may infringe them. There is already extensive case law dealing with such conflicts, and this article examines the two main avenues pursued by the Court to reconcile secondary legislation and the rights of free movement: the duty to interpret secondary law so that it is consistent with the free movement rights, and the review of the validity of secondary legislation based on an assessment of infringement of the free movement rights. It is established that, although the Court uses both these avenues, it appears to have a preference for using the former. There are, however, indications that in future the Court will be ready to make a more intensive review of the validity of secondary legislation. It also appears that the Court often uses a third avenue, that of applying the free movement rights as a supplement to secondary legislation.