Contractual Discretion and the Limits of Free Movement Law

The article explores the interplay between the principle of freedom of contract and free movement law. The former is not only expressed in the freedom to choose with whom to enter into a contract and shape its content, but it is also manifested in the freedom to decide whether or not to opt out of non-mandatory contract law rules. In this regard, the article examines the extent to which the boundaries of free movement law in a contractual context could be considered to be essentially defined by the reach of such forms of contractual discretion. In addressing this query, it draws a distinction in the role of contractual discretion in the context of individual ways of coordination of contractual relationships in the form of individual contractual preferences and national ones in the form of non-mandatory contract law rules. Unlike the former, it is submitted that contractual discretion should not be taken as a decisive factor in determining the scope of free movement law as regards non-mandatory contract law rules. In particular, it is suggested to consider these rules to fall outside the scope of free movement law because of them themselves not having an effect on free movement as such, rather than due to contracting parties' discretion over their applicability.