The New Functionalist Approach of the ECJ Towards the European Freedom of Movement and Residency: Some Lessons from a Constitutional Comparative Survey

Based on a constitutional comparative analysis, with reference to the Canadian and the American experiences concerning the legitimacy of durational residency requirements, the paper suggests that in a territorial pluralistic legal order the free movement and the equal treatment principle between nationals can be evaluated according to an individual right perspective or, alternatively, as functional interests. This means that limitations to free movement and equal treatment can be accepted to the extent that they reflect a fair compromise between national cohesion and self-government interests, a balance usually struck by intergovernmental relations. This pattern is applied to the EU framework. Despite some statements suggest a fundamental right nature to both free movement and equal treatment, the relevant ECJ case law seems to maintain a functional reading of the above mentioned principles. It has changed, however, the usual frame of reference: no longer a freedom instrumental to market integration, but rather to the construction of a supranational polity.