Abstract/Summary

This article advances the EU competence debate by demonstrating that the interpretation by the Court of Justice of the free movement rules enshrined in the Treaties is a major, and often dominant, cause of EU competence creep. To that end, the article examines the Court’s free movement case law in four sensitive areas of national policy (healthcare, education, collective labour law and gambling) in light of the constitutional principles that govern the scope and exercise of EU competences—conferral, subsidiarity and proportionality. The comparative analysis of the case law allows to identify patterns of judicial reasoning that lead to competence creep in areas that are constitutionally and/or politically sensitive from an EU law point of view. The Court should avoid these patterns of reasoning in order to maintain its legitimacy as a guardian of the rule of law in the EU and, more broadly, preserve the integrity of the EU legal order.