Changing treaty and changing economic context:the dynamic relationship of the legislature and the judiciary in the pursuit of capital liberalisation

Introduction For a significant period of time (the late 1950s--1980s), a lack of capital freedom was a major obstacle to the progress of the internal market project. The free movements of goods, persons and services were achieved, and developed, primarily through the case law of the Court of Justice of the European Union (CJEU). On the other hand, the Court played a (self-imposed) limited role in the development of the free movement of capital. It was through a progressive series of legislation that the freedom was finally achieved. John Usher has noted that the consequence of this is that ‘free movement of capital thus became the only Treaty “freedom” to be achieved in the manner envisaged in the Treaty’. For this reason, the relationship of the Court and legislature in this area is of particular importance in the broader context of the internal market. The rest of this chapter is split into four sections and will attempt to describe (and account for) the differing relationships between the legislature and the judiciary during the different stages of capital liberalisation. Section 2 will deal with the situation under the original Treaty of Rome. Section 3 will examine a single legislative intervention: Directive 88/361. It was this intervention that contained the obligation for Member States to fully liberalise capital movements. It is therefore the most important contribution to the completion of the internal market in the capital sphere. An examination will be made of whether the interpretation of the Directive demonstrates a changed (or changing attitude) of the Court towards the EU legislature. Section 4 will examine the changes brought about by the Treaty on European Union in 1993. It was at Maastricht that the Member States finally introduced into the Treaty framework an absolute obligation to liberalise capital movements. Finally, Section 5 will consider the Treaty of Lisbon and the possibility of future interventions by the legislature. By looking at the patterns that run through the different parts, this chapter will attempt to engage with the question of whether the approaches were products of their historical context, or whether they can be applied to other areas within the capital movement sphere.

The external dimension of EU justice and home affairs after the Lisbon Treaty::analysing the dynamics of expansion and diversification

The article introduces a research framework for analysing the external dimension of EU Justice and Home Affairs after the Lisbon Treaty. The dynamics of expansion and diversification, discernable for both the EU policy-making and the scholarly work dedicated to it, are at the centre of the article and constitute a common reference point for the present Special Issue. These dynamics have been triggered through deliberate decisions of involved policy-makers as well as through unintended spillover effects from other policy areas and/or decisions. The article also engages with the theoretically informed literature on the subject, which struggles with the definition of what this dimension actually constitutes, as well as how to best capture the practices of this field.We take stock of the scholarly debates by comparing the diverse approaches and discussing how much they complement each other and/or present different dimensions of a single ‘policy universe’.