The fundamental freedoms of the single market on the path towards horizontal direct effect: the free movement of capital – lex lata and lex ferenda

The paper examines both likeliness and expediency of establishing horizontal direct effect of the TFEU provisions inaugurating the free movement of capital as the “youngest” of the four fundamental freedoms in the Single Market. In pursuing this aim, author starts with portraying the status quo regarding horizontal direct effect of other fundamental freedoms and attempts to deduce from some of the cornerstone cases the most important arguments given by the CJEU, i.e. key rationale utilized thus far for establishing horizontal direct effect. After these general analyses, the author examines the current scope of application of the free movement of capital provisions in view of the issue at hand and investigates whether in conjunction with the reasoning of the CJEU in other free movement cases similar approach is likely to be utilized in order to establish the same effect of Article 63 TFEU. Finally, notwithstanding certain opposite opinions, the author establishes that this particular fundamental fredom becoming horizontally effective is not something likely to happen any time soon and makes an effort to support such standpoint. Moreover, conclusion is put forward that even if it opts for such course of action the CJEU should take certain preliminary, i.e. precautionary measures.