One of the cornerstones of EU internal market law and international trade law more generally is the separation of the questions whether there is a restriction to trade and, if so, whether that restriction can be justified. This paper aims to show that this analytic separation was absent in the early free movement jurisprudence of the European Court of Justice. Instead, the Court conflated the stages of restriction and justification into one analytic stage, which also included the question of whether the case falls within the scope of EU law in the first place. The paper shows how this one-stage model prevailed until the late 1980s, and was only definitively abandoned by the case of Keck and Mithouard. In doing so, this paper sheds new light on several landmark judgments. The paper also connects this revisionist history of free movement jurisprudence to recent histories of neoliberalism in order to analyse to what extent the Court’s free movement case law can be seen as “neoliberal”.
We look forward to welcoming you on July 3-5, 2023 for our Annual Conference entitled "Islands and Ocean: Public Law in a Plural World." The conference will take place at the Victoria University of Wellington, in New Zealand. We will be announcing more details about the conference soon, including financial support to early career and global south scholars!