Morality, Free Movement and Judicial Restraint at the European Court of Justice

Dimitrios Doukas Lord Steyn has famously noted that ‘the law and morality are inextricably interwoven; to a large extent the law is simply formulated and declared morality’. This interaction between law and morality may be particularly evident in the field of the EU internal market insofar as moral considerations may either inform the interpretation of the free movement provisions of the Treaty — on goods (Article 34 ff TFEU) , persons (Articles 45 and 49 ff TFEU) , services (Article 56 ff TFEU) or capital (Articles 63 and 65 TFEU) — and/or relevant secondary EU law, or serve as public interest grounds for justifying restrictions. In stark contrast to that statement, EU law on free movement is not by definition a simple formulation and declaration of morality, and can be readily distinguished as positive law from the concepts of moral or natural law that constitute the permanent underlying basis of all law,...