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

Ryan Murphy*

*Corresponding author for this work

Research output: Chapter in Book/Report/Conference proceedingChapter (peer-reviewed)

Abstract

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.

Original languageEnglish
Title of host publicationThe judiciary, the legislature and the EU internal market
EditorsPhil Syrpis
Place of PublicationCambridge (UK)
PublisherCambridge University Press
Pages274-301
Number of pages28
ISBN (Print)978-1-107-01005-5
DOIs
Publication statusPublished - May 2012

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judiciary
treaty
liberalization
capital movement
economics
obligation
market
freight traffic
court of justice
case law
EU
legislation
examination
interpretation
human being
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Cite this

Murphy, R. (2012). Changing treaty and changing economic context: the dynamic relationship of the legislature and the judiciary in the pursuit of capital liberalisation. In P. Syrpis (Ed.), The judiciary, the legislature and the EU internal market (pp. 274-301). Cambridge (UK): Cambridge University Press. https://doi.org/10.1017/CBO9780511845680.015
Murphy, Ryan. / Changing treaty and changing economic context : the dynamic relationship of the legislature and the judiciary in the pursuit of capital liberalisation. The judiciary, the legislature and the EU internal market. editor / Phil Syrpis. Cambridge (UK) : Cambridge University Press, 2012. pp. 274-301
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Murphy, R 2012, Changing treaty and changing economic context: the dynamic relationship of the legislature and the judiciary in the pursuit of capital liberalisation. in P Syrpis (ed.), The judiciary, the legislature and the EU internal market. Cambridge University Press, Cambridge (UK), pp. 274-301. https://doi.org/10.1017/CBO9780511845680.015

Changing treaty and changing economic context : the dynamic relationship of the legislature and the judiciary in the pursuit of capital liberalisation. / Murphy, Ryan.

The judiciary, the legislature and the EU internal market. ed. / Phil Syrpis. Cambridge (UK) : Cambridge University Press, 2012. p. 274-301.

Research output: Chapter in Book/Report/Conference proceedingChapter (peer-reviewed)

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Murphy R. Changing treaty and changing economic context: the dynamic relationship of the legislature and the judiciary in the pursuit of capital liberalisation. In Syrpis P, editor, The judiciary, the legislature and the EU internal market. Cambridge (UK): Cambridge University Press. 2012. p. 274-301 https://doi.org/10.1017/CBO9780511845680.015