Free Movement of Capital: Could the CJEU Smooth Brexit?

A large part of the debate on Brexit and financial services has focused on the political dimension, and the contours of the new arrangement between the UK and the European Union. Less attention has been paid, however, to the implications of the constitutional framework that is already in place, and will remain so, even after Brexit. This is the case of free movement of capital, the only fundamental freedom that purportedly applies also to third countries. Despite this remarkable innovation at the Treaty basis, the Court of Justice of the European Union has construed the freedom narrowly, which has hindered its usefulness. In this chapter we discuss the difficulty of the Court's current view, and the desirability of a change in it, in order to shift the focus from a political into a legal debate