Explaining the Constitutional Drivers behind a Perceived Judicial Preference for Free Movement over Fundamental Rights

The ECJ’s use of a breach/justification methodology to adjudicate tensions between free movement and fundamental rights has led to criticism that it prioritizes the former over the latter. While this article agrees that the structural presentation of fundamental rights as a “defence” to a prima facie restriction of free movement under the current adjudicative framework is problematic, it rejects the argument that this is evidence of some contestable subjective attitude on the part of the ECJ. Rather, it develops the position that the breach/justification model is the product of free movement’s historical and ongoing significance within EU law. Crucially, it explains the specific constitutional drivers – such as the expansion in free movement’s material and personal scope, the extension of its direct effect, and the strengthening of a decentralized enforcement system – that brought free movement into more frequent and more abrasive contact with fundamental rights. It is these developments that rendered the previously unproblematic breach/justification methodology a cause for concern