p. 51016. Exceptions to the free movement rules
- Niamh Nic Shuibhne
This chapter examines when Member States can lawfully displace the obligations placed on them by free movement law. Free movement rights can be restricted under EU law in two ways. For discriminatory or distinctly applicable restrictive measures, a derogation ground expressly provided for in the TFEU must be engaged. For indirectly or non-discriminatory measures, that is, indistinctly applicable restrictive measures, if an overriding requirement relating to the public interest can be demonstrated the measure will be lawful. In both cases, the restriction also has to satisfy a proportionality test, that is, it is both appropriate and necessary for achieving the relevant public interest objective.
The free movement rights conferred on natural and legal persons by EU law are at the heart of both Union citizenship and the achievement of the internal market. However, these rights are not absolute. The realization of free movement rights is a core Union objective, but it is also recognized that other interests and values should sometimes take precedence. This means that, in certain circumstances, free movement rights can be restricted in compliance with EU law if (a) for discriminatory or distinctly applicable restrictive measures, a derogation ground expressly provided for in the TFEU can be engaged; (b) for indirectly or non-discriminatory, that is, indistinctly applicable restrictive measures, an overriding requirement relating to the public interest that is capable of justifying a restriction of the fundamental freedoms established by the Treaty can be demonstrated; and (c) in both cases, the restriction also satisfies a proportionality test, that is, it is demonstrated to be both appropriate and necessary for achieving the relevant public interest objective.
This chapter explores derogation, justification, and proportionality; and asks when Member States can lawfully displace the obligations placed on them by free movement law. The approach taken is to explain how the derogation and justification systems work by exploring the principles that underpin their application, rather than to examine various public interest grounds in a substantive sense.1 The chapter also outlines the more specific rules that apply to derogations from the free movement of persons, which are underpinned by the rights attached to the status of Union citizenship and are codified in EU legislation.
p. 511↵The topic of exceptions to the Treaty’s free movement rules reflects an important theme that shapes much of EU law: how to balance the acknowledged need for common citizenship and internal market standards that apply uniformly in all of the Member States, on the one hand, with appropriate recognition of respect for national regulatory diversity and for the limits of Union competence, on the other. A secondary theme that emerges through the discussion is that while the frameworks applicable to derogation and justification can, at one level, be presented in a relatively systematic way, there is far more inconsistency with respect to their application in case law practice. A more explicit review and recalibration of the framework on exceptions in free movement law would therefore be welcome.
2 The Treaty framework: derogations
Following a brief overview of the role and purpose of derogation in free movement law, and of the broader Treaty framework that frames the resolution of these questions, this section then outlines the explicit derogation grounds provided for in the Treaty.
2.1 The role of derogation and the broader legal framework
The EU Treaties establish a complex system in which many different objectives, interests, and values are accommodated, but also need to be balanced against each other. For example, Article 3(3) TEU provides that ‘The Union shall establish an internal market’. But it goes on to list a series of other tasks and objectives that include sustainable development, balanced economic growth and price stability, a highly competitive social market economy, full employment, social progress, protection and improvement of the quality of the environment, equality between women and men, protection of the rights of the child, and respect for cultural and linguistic diversity. Article 4(2) TEU requires that ‘competences not conferred upon the Union in the Treaties remain with the Member States’ and that the Union ‘shall respect the equality of Member States … as well as their national identities’. Article 4(2) TFEU confirms that the internal market is an area for which regulatory competence between the Union and the Member States is shared.
The fact that States can legitimately restrict free movement rights in certain circumstances—on the basis that another interest should take precedence over free movement objectives—is one expression of the resulting regulatory balance.2 An important challenge for the Court of Justice is thus to ensure the achievement of effective internal market integration while still allowing for more localized regulatory diversity that fits with the constitutional mandate of shared EU/Member State competence.3
To resolve disputes connected to EU free movement rights, the Court of Justice normally addresses three distinct questions:
Does the challenged measure constitute a restriction of the free movement rights guaranteed by the Treaty?
If it does, can the measure be justified?
If it can, is the measure proportionate?
p. 512↵It has been shown in several chapters of this book that it is not difficult to establish an actual or potential restriction of free movement rights within the meaning of the Treaty. For example, in CaixaBank, the Court defined restrictions on freedom of establishment as ‘All measures which prohibit, impede or render less attractive the exercise of that freedom’.4 A national measure that falls within this definition will therefore have to be disapplied unless it can be shown that the measure is both justifiable and proportionate. Even an overtly discriminatory restriction of free movement rights can be ‘saved’ if a Member State can demonstrate that there is a good—that is, justifiable and proportionate within the limits of EU law—reason for it.
2.2 Derogation and EU legislation
Where EU legislative measures establish harmonized regulatory standards for a particular issue, no derogation is permitted unless expressly provided for by the relevant legislation. The basic rule here is that ‘A national measure in a sphere which has been the subject of exhaustive harmonisation at [Union] level must be assessed in the light of the provisions of the harmonising measure and not those of the Treaty’.5 This means that any permitted derogations will normally need to be accommodated within the legislation from the outset. EU legislation can provide for (a) a general derogation clause, establishing that the Commission will examine difficulties that a Member State might encounter when applying provisions of the measure on a case-by-case basis, and may decide to permit the Member State to derogate from the relevant obligation for a specified period; or (b) specific derogation clauses, establishing a particular exception for a Member State vis-à-vis part of the measure’s requirements. Examples of both of these mechanisms can be found in Directive 2005/36/EC, which regulates the recognition of professional qualifications to facilitate freedom of establishment and the provision of cross-border professional services.6 Article 114 TFEU, the legal basis used for most internal market harmonization measures, also establishes a post-adoption derogation procedure for the grounds specified in Article 36 TFEU (see section 2.3) or relating to the protection of the environment or the working environment.7
Where EU legislation provides for minimum harmonization, States remain free in principle to adopt more stringent standards to protect the public interest at national level. In the classic language of minimum harmonization, the standards prescribed by Union legislation constitute only the ‘floor’, that is, a threshold that any related national measures must implement and respect. However, following the judgment in the first Tobacco Advertising case,8 EU minimum harmonization measures must also now include a free movement clause. For example, in the revised version of the Tobacco Advertising Directive9—adopted after the Court of Justice annulled the original measure—Article 8 provides that ‘Member States shall not prohibit or restrict the free movement of products or services which p. 513↵comply with this Directive’. In such circumstances, national measures that go beyond the standards mandated by the Directive can still be tested against the derogation and justification framework established by the Treaty and related case law. Thus, while EU legislation marks the ‘floor’ for public interest protection, the Treaty represents a boundary or ‘ceiling’ for national regulatory discretion.
However, for most areas of free movement law, the question of derogation normally arises when there is no relevant Union legislation in the first place, that is, in the context of negative integration.10 In such situations, national measures can be tested against the exceptions to, or limits of, the freedoms provided for by the Treaty or, in the absence of direct discrimination, within the justification framework developed through the case law of the Court of Justice.
2.3 Overview of the Treaty-based derogation grounds
The derogation grounds specified in the Treaty can be used to defend State action taken for a variety of public interest reasons that are protected as Union concerns, as Table 16.1 shows.
p. 514↵As these provisions demonstrate, the Treaty freedoms may be derogated from for reasons connected to, broadly speaking, concerns linked to public policy, public security, or public health. The protection of public health is the Treaty-based derogation raised most frequently in the case law on free movement restrictions, especially for restrictions on the free movement of goods. The Court considers that ‘the health and life of humans rank foremost among the assets and interests protected by the Treaty’.11 In recognition of that special position, the Court also acknowledges that
it is for the Member States to determine the level of protection which they wish to afford to public health and the way in which that level is to be achieved. Since the level may vary from one Member State to another, Member States must be allowed discretion.12
There is clearly some variation of approach to derogation across the freedoms, with a more extended list of grounds for Article 36 TFEU, for example, and also for the free movement of capital. Moreover, Article 36 TFEU requires that ‘Such prohibitions or restrictions shall not … constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States’.13 This proviso means that a Member State’s derogation arguments will not normally be accepted if the State has not placed comparable restrictions on goods produced domestically.14 Although the proviso in Article 36 TFEU is not an express part of the derogation provisions for the other Treaty freedoms, the broader principle that it contains is more generally applicable.15
Table 16.1 Summary of Treaty derogations available for the four freedoms
Article 21 TFEU
Citizenship: movement/residence rights
Article 21 TFEU
‘limitations and conditions laid down in the Treaties and by the measures adopted to give them effect’
Articles 34 and 35 TFEU
Goods: quantitative restrictions on imports/exports
Article 36 TFEU
‘public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property’
Article 45 TFEU
Article 45(3) TFEU
‘limitations justified on grounds of public policy, public security or public health’
Article 45(4) TFEU
‘employment in the public service’
Article 49 TFEU
Article 51 TFEU
‘exercise of official authority’
Article 52 TFEU
‘grounds of public policy, public security or public health’
Article 56 TFEU
Article 62 TFEU
Article 52 TFEU grounds ie ‘public policy, public security or public health’
Article 63 TFEU
Article 65 TFEU
‘exercise of official authority’; ‘public policy or public security’ plus taxation and ‘prudential supervision of financial institutions’
Article 30 TFEU provides that ‘Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature’. Exceptionally, however, no corresponding derogation grounds are provided for in the Treaty. A charge that is imposed purely because goods have crossed a frontier can fall outside the scope of the Treaty only in very limited circumstances that have been established through case law:
such a charge escapes that classification if it relates to a general system of internal dues applied systematically and in accordance with the same criteria to domestic products and imported products alike, if it constitutes payment for a service in fact rendered to the economic operator of a sum in proportion to the service, or again, subject to certain conditions, if it attaches to inspections carried out to fulfil obligations imposed by [Union] law.16
p. 515↵The concept of public policy might be construed as a generic notion that could offer considerable leeway to Member States in principle. However, the Court of Justice has interpreted the scope of this derogation ground very strictly in practice.17 This narrow approach was of particular importance before the Court had fully developed a broader justification framework (outlined in section 3) that is not confined to the public interest grounds listed in the Treaty. In early case law, States sought recognition from the Court of public interest concerns, such as protection of the environment or consumers, which were simply not recognized as important public interest grounds by the Treaty’s drafters in the 1950s. However, the Court declined to expand the concept of public policy to emerging public interest considerations in this way.18
It should also be noted that the way in which restrictions on the movement and residence rights of EU citizens may be limited is distinctive, in the sense that such rights are subject not only to the derogation grounds listed elsewhere in the Treaty (ie public policy, public security, or public health) but also to ‘measures adopted’ to give effect to the Treaty, that is, to limits established in secondary legislation. The way in which Articles 20 and 21 TFEU are constructed thus marks an exception to the normal understanding that secondary law cannot adjust primary law. This point becomes particularly important for the discussion in section 6, which focuses on the provisions of Directive 2004/38/EC on the free movement of Union citizens and their family members within the territory of the Member States that govern expulsion decisions.19
Finally, Article 45(4) TFEU provides that ‘The provisions of this Article shall not apply to employment in the public service’. Similarly, for freedom of establishment (and also, through Article 62 TFEU, freedom to provide services), Article 51 TFEU states that ‘The provisions of this Chapter shall not apply, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority’. Again, however, the Court curtailed the potential breadth of both of these exclusions. The scope of ‘employment in the public service’ has been interpreted to mean only
posts which involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities and thus presume on the part of those occupying them the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality.20
Similarly, the ‘exercise of official authority’ as it relates to establishment and services ‘must be restricted to activities which in themselves are directly and specifically connected with the exercise of official authority’ and, conversely, ‘does not extend to certain activities that are auxiliary or preparatory’ in that context.21
The Court has rationalized its narrow interpretative approach to both of these concepts on the basis that they amount to exceptions to the ‘fundamental character’ of free p. 516↵movement rights and, as such, they ‘cannot be given a scope which would exceed the objective’ for which they were included in the Treaty in the first place.22
3 The justification framework: public interest requirements
As explained in previous chapters, restrictions on free movement rights can be (a) directly discriminatory on the grounds of nationality (ie discriminatory in law), (b) indirectly discriminatory (ie not discriminatory in law, but discriminatory in result or effect), or (c) non-discriminatory (ie not discriminatory in law or in effect, but still restrictive of free movement rights).
The basic rule for derogation from free movement rights is that directly discriminatory restrictions can be defended only by recourse to the grounds provided for expressly in the Treaty. However, to defend indirectly discriminatory and non-discriminatory—that is, indistinctly applicable—restrictions of free movement rights, States can raise virtually any public interest argument that they wish, without being confined to policy objectives that are predetermined by the Treaty’s derogation provisions. Their arguments may not be successful; but the critical point is that there are few subject-matter limitations, in principle, on the kinds of public interest concerns that States can assert when they seek to justify the retention of national rules or practices that restrict free movement rights. This open-ended justification framework will now be outlined in more detail, followed by consideration of whether the formative distinction between discriminatory and other types of restriction still holds. Other limits that constrain the scope of State discretion—for example, that arguments based on economic rationales are normally not permitted—are then discussed in section 4.
3.1 From ‘mandatory requirements’ to ‘overriding requirements in the public interest’
To defend indistinctly applicable national measures, Member States can submit justification arguments based on any public interest grounds that they consider to be relevant. This open-ended justification route could be glimpsed in early free movement case law.23 However, it was first more substantively developed as the doctrine of ‘mandatory requirements’ for Article 34 TFEU in Cassis de Dijon.24 In that case, the Court considered that
Obstacles to movement within the [Union] resulting from disparities between the national laws relating to the marketing of the products in question must be accepted in so far as those provisions may be recognized as being necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer.25
p. 517↵In this way, the Court was able to accommodate genuine policy concerns that were not relevant or prominent when the Treaty of Rome was drafted, such as the protection of consumers (and, in subsequent cases, protection of the environment26); without the need for Treaty amendment of the express derogations, or the definitive resolution of broader debates about the relative value of either an updated but still fixed list of permissible public interest grounds or codification of a more open-ended approach across the board. The rather awkward concept of ‘mandatory requirements’ is rarely used in the case law anymore. Instead, the Court advises that national measures may be justified ‘in order to meet imperative requirements’27 or by ‘overriding reasons in the public interest capable of justifying restrictions on the fundamental freedoms guaranteed by the Treaty’.28 The ruling in Gebhard, which mainly concerned the dividing lines between freedom of establishment and the provision of services, articulates a classic statement of the restriction/justification formula that operates across the different sectors of free movement law:
national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it.29
Some examples of the numerous public interest justification grounds that the Court has recognized in principle include:30
combating drug tourism;31
combating criminality linked to betting and gambling;32
ensuring road safety;33
guaranteeing the effectiveness of fiscal supervision;34
maintaining press diversity;35
protecting national or regional socio-cultural characteristics;36
protecting the recipients of a service through the application of professional rules;37
protecting workers and encouraging employment.38
p. 518↵The justification framework is not premised on public interest concerns that are protected as Union interests in the same way as the Treaty-set grounds for derogation. Rather, the justification system has stronger potential to recognize more national or local understandings of, and concerns related to, the public interest. Through the logic of public interest justification, the Court has created, in other words, a genuinely merits-based system within which national concerns can be examined and evaluated on a case-by-case basis. The Court’s assessment of the public interest can evolve over time, in tune with how conceptions of public interest evolve too.39 It has acknowledged that certain justification arguments overlap with respect for a State’s national identity, as provided for in Article 4(2) TFEU.40 The Court has also confirmed that national measures protecting fundamental rights can constitute valid justification grounds, as discussed in more detail in section 4.4.
The development of the justification framework is also, of course, a striking example of the Court’s significant law-shaping powers in the field of free movement, since the Court has, in effect, recognized significantly more public interest arguments than the limited categories specified explicitly in the Treaty. On the other hand, the Member States have never stepped in to regain constitutional ownership of the issue through Treaty amendment post-Cassis—and so it is arguable that implicit (but nonetheless legitimizing) political acceptance can be attributed to the Court’s approach for that reason.
At one level, the flexibility extended to the Member States through the combination of Treaty derogations and case law justifications is remarkable. It enables them to raise even the most singular, local, or esoteric, but nonetheless genuine, public interest arguments without the need to shoehorn their concerns artificially into the limited grounds available in the Treaty41—recalling, in particular, the Court’s parallel insistence that the meaning of public policy must be interpreted very narrowly on its own terms. However, while States may raise a greater number of justification arguments in principle, this does not mean that they have had notable success in restricting free movement rights in reality.42 This point highlights the importance of both the function of the Court in making the actual determination in these cases and the standard of proof that Member States must reach when shaping their arguments. Both of these questions will be picked up again in section 4.
3.2 Discriminatory and non-discriminatory restrictions
Formally, the distinction introduced in section 1 still stands, that is, directly discriminatory restrictions cannot be justified for any reasons other than the derogation grounds specified expressly in the Treaty. However, it is increasingly difficult to sustain the reliability of that distinction by reference to case law practice. For example, in Petruhhin, the relevant national rules established protection against extradition for home State (in this case, Latvian) nationals only; nevertheless, the Court stated that ‘[s]uch a restriction [of Article p. 519↵21 TFEU] can be justified only where it is based on objective considerations and is proportionate to the legitimate objective of the national provisions’.43
Initially, a particular point of strain emerged when States sought to justify directly discriminatory restrictions of free movement rights on the ground of environmental protection. In such cases, the Court at least endeavoured, if not altogether convincingly, to classify the national measure as non-discriminatory (or indistinctly applicable),44 in order to enable the defendant State’s arguments on environmental protection to be heard by the Court. Attention has been drawn to the confusing case law that developed in consequence.45 However, the Court has never explicitly confirmed that the justification framework can also be applied to save directly discriminatory measures or clarified the basis on which such a step might be taken. It has never, for example, reversed the narrow interpretation applied to the derogation grounds listed in the Treaty in a way that would enable protection of the environment to fit within the concept of public policy.
In more recent case law, the Court has continued to circumvent the issue by sidestepping classification of the nature of the restriction at issue and, in particular, avoiding the language of discrimination altogether. In Commission v Austria (‘Brenner II’),46 for example, the Court was asked to review a ban that precluded vehicles weighing over 7.5 tonnes from carrying certain goods, affecting a motorway route with significant implications for transalpine traffic. Even though the Commission had argued that the measure was discriminatory, the judgment of the Grand Chamber stated very briefly that the contested national rule was a measure having equivalent effect to a quantitative restriction and was therefore precluded by Article 34 TFEU—with no discussion of what kind of restriction this actually was at all. In contrast, the exclusion of local and regional traffic from the scope of the ban informed the Commission’s classification of the measure as discriminatory.47
Importantly, there are several examples of public interest requirements other than environmental protection being considered in cases that involve distinctly applicable restrictions of free movement rights. The issue is not, in other words, confined any longer to the potentially special nature of environmental protection. In Commission v Finland,48 the Court stated that ‘it is clear from settled case-law that national legislation which constitutes a measure having equivalent effect to quantitative restrictions can be justified by one of the reasons of public interest laid down in Article [36 TFEU] or by imperative requirements’49—even though the contested procedural requirements in that case were imposed on imported cars only. Similarly, in Fachverband der Buch—und Medienwirtschaft, concerning pricing restrictions imposed only on imported books, the Court first confirmed p. 520↵the narrow scope of ‘protection of national treasures possessing artistic, historic or archaeological value’ in Article 36 TFEU; but then stated that ‘the protection of books as cultural objects can be considered as an overriding requirement in the public interest capable of justifying measures restricting the free movement of goods’.50 Neither is the issue confined to the free movement of goods.51
In his Opinion in PreussenElektra, concerning restrictions on the free movement of goods, Advocate General Jacobs called direct attention to the weakening distinction between derogation grounds and the broader justification framework established by case law. He noted, first, that the Court had ‘not formally abandoned the rule that imperative requirements cannot be invoked in connection with directly discriminatory measures’ but also, secondly, that ‘In view of the fundamental importance for the analysis of Article  of the Treaty of the question whether directly discriminatory measures can be justified by imperative requirements, the Court should, in my view, clarify its position in order to provide the necessary legal certainty’.52 Weatherill has argued that ‘There is strong normative appeal to a model whereby all types of justification are in principle available, but according to which the presence of discrimination would make the job of the regulator in showing that the chosen scheme is lawful particularly onerous’.53 Similarly, in Commission v Austria, Advocate General Trstenjak supported ‘in principle’ the idea that protection of the environment (at least) should be available as an overriding reason in the public interest to justify discriminatory measures ‘under any circumstances’.54 She then suggested that ‘the discriminatory character of a measure restricting the free movement of trade can be taken into account in a proportionality test in which the necessity and reasonableness of such measures in particular can be examined more closely’.55
If the Court were to reverse the convention that the justification of directly discriminatory measures is confined to the grounds spelled out in the Treaty—whether for protection of the environment only or, as suggested by its case law, more broadly for any public interest requirements to be considered on a case-by-case basis—it would enable the application of the merits-based justification framework across the board. This would, in turn, obviate the need for the Court to distinguish between types of discrimination, which is not always a straightforward exercise.56 Nevertheless, to collapse the distinction between derogation and justification more definitively would challenge the significance of having a limited pool of public interest grounds actually stipulated in the Treaty in the first place. It would also simply push many of the complexities that we encounter in free movement law to the third stage of analysis, that is, the determination of proportionality—a stage of review that is not free from complexity or controversy on its own terms, as discussed further in section 5.
4p. 521 Application of the derogation and justification frameworks
A number of principles and questions that are relevant to the application of both the Treaty-based derogation framework and the case law-driven justification framework are outlined in this section. It addresses (a) the Court’s general approach to, and role in, the determination of public interest; (b) the relevant burden and standard of proof; and (c) specific issues relating to the justification of free movement restrictions on the basis of arguments connected to the protection of fundamental rights.
4.1 General principles
4.1.1 Conceptualizing exceptions in free movement law
Derogation and justification arguments seek to establish an exception to the free movement rights guaranteed by the Treaty. In section 2, it was seen that the Court generally interprets Treaty rights widely and defines any exceptions to them as narrowly as possible, having regard to the ‘fundamental character’ of the Treaty freedoms. On the other hand, we also saw in section 3 that the justification framework has evolved and expanded over time. Adjudication of the extent to which public interest arguments can supersede free movement rights therefore constitutes a prime space within which debates about the character of the internal market, and about the EU polity more broadly, are aired and progressed.
The significance of this point becomes even more apparent when it is remembered that the Court rarely excludes issues from the scope of the Treaty at the stage of establishing a restriction of free movement rights on the grounds of the subject matter in question.57 Instead, it navigates moral and other complexities at the stages of justification and proportionality. For example, it is argued that the Court’s softer approach to proportionality review in cases involving national restrictions on gambling is directly connected to the moral sensitivities associated with this activity, which clearly differ across the Member States.58 This point is explained in more detail in section 5, in the context of proportionality review.
A similarly generous approach, emphasizing that discretion should be allocated to the Member States in determining the measures that need to be put in place to ensure the effective protection of overriding requirements of public interest, can be seen in the Trailers case on national rules regulating the use of goods. Here, the Court considered that the contested national rules were justified on the ground of road safety and proportionate to the achievement of that objective, against the views of two Advocates General.59 In its judgment, however, the Court also widened the scope of Article 34 TFEU to catch non-discriminatory restrictions of the free movement of goods, which suggests that the Court’s p. 522↵‘margin of appreciation’ approach to justification and proportionality was in fact compensating for the greater number of national measures that would actually now be caught by Article 34 TFEU in the first place. This example demonstrates the intricate connection between how restrictions are defined and how they are, in turn, defended.
The Court does not distinguish between or rank different public interest concerns in a formal or systematic way although, as noted earlier, nuanced differences in approach can nevertheless be detected in the case law. However, a more generous approach to a Member State defence at the conceptual level does not mean that the Court will not thoroughly scrutinize the persuasiveness of the State’s claims, as case study 16.1 on public health derogations shows.
Case study 16.1: Derogating on grounds of public health
We saw in section 2.2 that, in DocMorris, addressing the compatibility of national restrictions on the operation of pharmacies with the Treaty provisions on establishment and services, the Court stated that ‘the health and life of humans rank foremost among the assets and interests protected by the Treaty and that it is for the Member States to determine the level of protection which they wish to afford to public health and the way in which that level is to be achieved. Since the level may vary from one Member State to another, Member States must be allowed discretion’.60 This statement would appear to suggest a devolved regulatory space within which the Member States may determine and implement their own responses to public health concerns. In reality, however, the requirements of EU law are much more prescriptive and public health defences rarely succeed before the Court.
First, a State must demonstrate that any alleged risks to public health are genuine.61 Where scientific data is relied upon, it must be ‘the results of international scientific research’ and the ‘latest scientific data available at the date of the adoption of [the national] decision’ in order for the State’s arguments to be persuasive enough to merit a restriction of free movement rights.62 Where contested national legislation is not yet in force, a national court reviewing that legislation for compliance with EU free movement law ‘must take into consideration any relevant information, evidence or other material of which it has knowledge [on the date on which it gives its ruling] under the conditions laid down by its national law’, an assessment is considered to be ‘all the more necessary in a situation … where there appears to be scientific uncertainty as to the actual effects of the measures provided for by the national legislation’.63 The Court has acknowledged that
an assessment of the risk could reveal that scientific uncertainty persists as regards the existence or extent of real risks to human health. In such circumstances … a Member State may, in accordance with the precautionary principle, take protective measures without having to wait until the existence and gravity of those risks are fully demonstrated.64
But the Court also emphasized that ‘the risk assessment cannot be based on purely hypothetical considerations’.65
p. 523↵Secondly, for natural persons, and reflecting the particular implications of—and the level of protection that attaches to—the status of Union citizens, restrictions of freedom of movement on the grounds of public health are strictly delimited by the requirements of Directive 2004/38/EC, Article 29 of which provides as follows:
The only diseases justifying measures restricting freedom of movement shall be the diseases with epidemic potential as defined by the relevant instruments of the World Health Organization and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the host Member State.
Diseases occurring after a three-month period from the date of arrival shall not constitute grounds for expulsion from the territory.
Where there are serious indications that it is necessary, Member States may, within three months of the date of arrival, require persons entitled to the right of residence to undergo, free of charge, a medical examination to certify that they are not suffering from any of the conditions referred to in paragraph 1. Such medical examinations may not be required as a matter of routine.
Finally, in the case law on access to health-care services, the Court has shown that it is willing to review aspects of the structure of national health-care systems—even though these kinds of national policy choices are closely connected to models of social solidarity and to the controversial question of the allocation of resources, picked up again in section 126.96.36.199 This point links to the broader principle that ‘whilst it is established that EU law respects the power of the Member States to organise their social security systems and that, in the absence of harmonisation at EU level, it is for the legislation of each Member State to determine the conditions for the grant of social security benefits, the fact nevertheless remains that, when exercising that power, Member States must comply with EU law’.67
It is also important to recognize that the Member States are generally responsive to their obligations under EU law in such circumstances, notwithstanding the sensitive nature of the national policy change that may be required. For example, in Watts, the Court confirmed that the obligation on States to reimburse the cost of hospital treatment provided in another Member State also applies to a publicly funded national health service that provides such treatment free of charge, such as the National Health Service (NHS) in the UK.68 The implications of that judgment were subsequently given effect in national law, providing a good illustration of the financial as well as regulatory consequences of the primacy of EU law.69
4.1.2p. 524 Economic justifications
It is a core premise of free movement law that ‘aims of a purely economic nature cannot constitute an overriding reason in the general interest justifying a restriction of a fundamental freedom guaranteed by the Treaty’.70 This principle has clear roots in the ambitions as well as the logic of closer integration. Extending equal opportunities to the nationals of other Member States—for example, in the context of employment, or the provision of public goods and services—costs money. If States could plead financial concerns to defend restrictions placed on free movement rights, there is a risk that the whole purpose of the internal market could be negated.
However, a more ambiguous case law thread accepts that ‘none the less … interests of an economic nature’71 can provide a legitimate defence to free movement restrictions. This line of reasoning emerged initially in case law on access to medical services. In Kohll, the Court accepted that
the objective of maintaining a balanced medical and hospital service open to all … although intrinsically linked to the method of financing the social security system, may also fall within the derogations on grounds of public health … in so far as it contributes to the attainment of a high level of health protection.72
However, in Vanbraekel the economic premise seemed to stand more autonomously, with the statement that
it cannot be excluded that the risk of seriously undermining the financial balance of a social security system might constitute an overriding reason in the general interest capable of justifying a barrier to the principle of freedom to provide services.73
This perforation of the economic objective exclusion remains a consistent feature of case law on medical services,74 and has crept outwards into public spending issues more generally—for example, in cases on the funding of education75 and the coordination of social security benefits.76
In many of these cases, the apparently economic aim is arguably not of a purely economic nature. In FKP Scorpio, for example, an accepted justification argument based on ‘the need to ensure the effective collection of income tax’ can be seen to embody broader systemic or structural objectives too.77 But it is difficult to distinguish the economic and p. 525↵other objectives discussed in many of the judgments that veer into economic territory—especially in judgments on access to publicly-funded services. The Court expresses its understanding of the issue as follows: while ‘grounds of a purely economic nature cannot constitute overriding reasons in the public interest justifying a restriction of a fundamental freedom guaranteed by the Treaties’, on the one hand, ‘the Court has accepted that national legislation may constitute a justified restriction on a fundamental freedom when it is dictated by reasons of an economic nature in the pursuit of an objective in the public interest’, on the other.78 Nevertheless, how this case law has evolved does suggest an exception from the conventional approach to economic exceptions that has not been confronted explicitly.79
Finally, the particular impact of justifications having an economic basis in the case law on Union citizenship should also be noted. The conditions under which a State may deport a Union citizen on economic grounds—concerning the lack of financial resources of that citizen—are outlined in section 6.2. However, at a more general level, the Court has accepted that ‘the exercise of the right of residence for citizens of the Union can be subordinated to the legitimate interests of the Member States—[to] the protection of their public finances’.80 Protection of State finances as a public interest reason has been applied both to the conditions and limitations placed on the right to move and reside freely by provisions of Directive 2004/38;81 and to the justification of restrictions put in place at national level.82 This line of case law is closely connected to the complex balance between free movement rights, lawful residence, and equal treatment.83
4.1.3 The horizontal scope of the Treaty
At the level of establishing a restriction of free movement rights, the Court of Justice has effected different levels of horizontality in the case law to date: (a) rules that regulate freedom of movement in a collective manner even if not adopted by a public body (seen in case law on establishment, services, and workers);84 (b) Member State responsibility for private actions that impede free movement (goods);85 (c) rules adopted by a private law body that holds the power to regulate in reality (goods);86 and (d) full horizontal reach (workers).87 If the Treaty can, in certain circumstances, catch the actions of private bodies and even private individuals, it then becomes important to ask whether such bodies and individuals can also rely on the derogation and justification frameworks outlined in the Treaty and developed in the case law respectively.
p. 526↵In Fra.Bo, Advocate General Trstenjak identified two approaches to this question in the case law to date.88 First, she observed that ‘in most judgments’, the Court simply applies the usual justification standard—establishing an overriding reason in the public interest—to private bodies and individuals as well.89 However, secondly, she also identified a limited case law thread on what she termed ‘special grounds in the private interest’.90 In the case law on the regulation of various sporting activities, for example, she noted that the Court has considered justification arguments based on grounds such as the recruitment and training of young players.
In general, the idea of legitimate interest beyond public interest can be rationalized by the limited capacity of private actors either to affect or to influence the kinds of policy issues affected and influenced by State authorities. If the scope of the Treaty reaches into private market behaviour in the field of free movement, then it seems inevitable that the corresponding scope of relevant justification arguments has to be altered in consequence too.
4.2 The jurisdiction of the Court of Justice
The function of the Court is necessarily different in direct actions and indirect actions. In infringement proceedings against a Member State, taken under Article 258 or 259 TFEU, it must decide directly on all aspects of the case—including the outcome of any justification and proportionality arguments that have been submitted. However, for preliminary rulings:
It is one of the essential characteristics of the system of judicial cooperation established under Article [267 TFEU] that the Court replies in rather abstract and general terms to a question on the interpretation of [Union] law referred to it, while it is for the referring court to give a ruling in the dispute before it, taking into account the Court’s reply.91
In essence, this means that the Court of Justice resolves questions of law, but the referring court retains authority over questions of fact. In most cases, then, the final view on justification—and especially proportionality—should be left to the national court.92
In reality, however, the extent of the Court’s review in preliminary rulings does vary. There are several examples in free movement case law where the Court exceeds the baseline of resolving the relevant questions of law and effectively resolves the case itself. The very detailed ‘guidance’ provided for the referring Swedish court in the Laval case provides a useful, and controversial, example.93 There, the Court concluded unambiguously thatp. 527↵
collective action such as that at issue in the main proceedings cannot be justified in the light of the [protection of workers] where the negotiations on pay, which that action seeks to require an undertaking established in another Member State to enter into, form part of a national context characterised by a lack of provisions, of any kind, which are sufficiently precise and accessible that they do not render it impossible or excessively difficult in practice for such an undertaking to determine the obligations with which it is required to comply as regards minimum pay.94
On one view, more definitive Luxembourg rulings reflect the Court’s understandable intention to provide the referring court with a genuinely ‘useful answer’ to the dispute before it.95 More detailed responses are also likely to appeal to national courts for that reason. But not even the acknowledged virtues of procedural economy and judicial cooperation displace the fact that constitutional boundaries written into Article 267 are overridden when the Court of Justice delivers overly prescriptive judgments and makes definitive findings on all aspects of a referred case. Nor do these kinds of responses in preliminary rulings ensure that national courts will assume responsibility for the analysis of cases through an EU legal prism themselves, which would help to embed EU law more seamlessly into national legal orders than has arguably happened to date.96
4.3 The burden and standard of proof
Whether a public interest argument is made on derogation grounds or as an overriding public interest requirement, the burden of proof falls on the Member State seeking to establish that defence.97 The required standard of proof is more difficult to pin down, since the procedural rules for proceedings before the Court of Justice—whether for direct or indirect actions—contain very little detail on the issues of evidence and proof.98 Two general principles can, however, be extracted from guidance that the Court has provided in the case law.
First, it is not sufficient for States merely to assert the relevance of a public interest objective to defend a contested national measure. Relatedly, generalizations will not be enough to meet the required standard of proof. Instead, States must present evidence to support and demonstrate their claims.99 Secondly, that evidence must be sufficiently ‘precise’ in p. 528↵order to ‘substantiate’ the arguments submitted.100 The Court has described the nature of ‘precise’ evidence in different ways—for example, ‘specific evidence’,101 ‘appropriate evidence’,102 ‘conclusive evidence’103—but the common requirement is that it must substantiate the Member State’s arguments. The Court increasingly discusses the required standard of proof that Member States should meet in its free movement case law. Moreover, there are examples of this in preliminary rulings as well as in direct actions.104
4.4 Fundamental rights as limits to free movement
The role of the EU in protecting fundamental rights has long been a controversial issue. But two specific questions arise in the context of balancing freedom of movement and fundamental rights when considering the principles that govern exceptions in free movement law: (a) whether it is appropriate or effective to treat arguments based on fundamental rights in the same way as ‘normal’ derogations or justifications in the first place; and (b) whether the Lisbon Treaty, and especially the resulting binding nature of the Charter of Fundamental Rights, altered the way, in a more general sense, in which free movement disputes are resolved by the Court when Member States seek to displace the obligations placed on them by free movement law.
4.4.1 Fundamental rights as derogations and justifications
Linking back to the discussion in section 3, this issue relates to the extent to which EU law circumscribes the ability of the Member States to invoke justification arguments or, at least, the discretion that they enjoy in that context. Fundamental rights are protected in EU law both as general principles of EU law and through the Charter of Fundamental Rights, which has ‘the same legal value as the Treaties’ (Article 6(1) TEU). As a general rule, ‘A Member State may invoke reasons of public interest to justify a national measure which is likely to obstruct the exercise of [free movement rights] only if that measure is compatible with the fundamental rights whose observance the Court ensures’.105 The intensity of review that the Court will apply in these circumstances is considered in section 4.4.2. It may be noted as a preliminary point at this stage, however, that while Article 52(1) of the Charter establishes the criteria against which limitations on Charter rights should be assessed in general,106 Article 52(2) provides that ‘[r]ights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties’. Thus, for example, although the right to move and reside freely is codified in Articles 20 and 21 TFEU and also in Article 45 of the Charter, the general system for derogation and justification developed for Treaty, not Charter, rights continues to apply.107
p. 529↵In some cases, however, Member States seek to defend a restriction of free movement rights on the ground that the contested national measure exists to protect fundamental rights. Here, potentially different levels of protection provided for within national systems, often required by national constitutions, raise a persisting point of contention between the Union and its Member States, and especially between the Court of Justice and national constitutional courts.
The Court has confirmed that the protection of fundamental rights by a Member State can be a legitimate basis on which to restrict the free movement rights guaranteed by the Treaty. In Omega, a case involving restrictions on laser killing games in Germany on the basis of the degree of protection accorded to human dignity by the German Constitution, the Court stated that
since both the [Union] and its Member States are required to respect fundamental rights, the protection of those rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by [Union] law, even under a fundamental freedom guaranteed by the Treaty such as the freedom to provide services.108
Importantly, the Court underlined that ensuring respect for human dignity was a requirement of Union law, ‘it being immaterial in that respect that, in Germany, the principle of respect for human dignity has a particular status as an independent fundamental right’.109 However, the Court clearly had regard to the specific level of protection provided for under German law in its light-touch assessment of the proportionality of the restrictions. The use of proportionality to accommodate national differences in this way is returned to in section 5.
The earlier judgment in Schmidberger is considered to offer a useful reading of how fundamental rights protection should be managed in free movement cases. There, a decision by an Austrian public authority to authorize an environmental protest—resulting in the closure of a major interstate motorway for just over 30 hours—was challenged as a restriction on the free movement of goods. In its judgment, the Court presented the nature of the decision that it needed to make as raising
the question of the need to reconcile the requirements of the protection of fundamental rights in the [Union] with those arising from a fundamental freedom enshrined in the Treaty and, more particularly, the question of the respective scope of freedom of expression and freedom of assembly, guaranteed by Articles 10 and 11 of the ECHR, and of the free movement of goods, where the former are relied upon as justification for a restriction of the latter.110
Having established that freedom of expression and freedom of assembly are rights that can be limited in certain circumstances under the system of European Convention on Human Rights (ECHR) law, the Court concluded that ‘the interests involved must be weighed having regard to all the circumstances of the case in order to determine whether a fair balance was struck between those interests’.111 The Court added that:p. 530↵
The competent authorities enjoy a wide margin of discretion in that regard. Nevertheless, it is necessary to determine whether the restrictions placed upon intra-[Union] trade are proportionate in the light of the legitimate objective pursued, namely, in the present case, the protection of fundamental rights.112
The Court’s approach to the balancing of the different interests involved in cases where free movement rights and fundamental rights need to be ‘reconciled’ was considered to have broken down, however, in the controversial rulings in Viking Line113 and Laval. In these judgments, the Court confirmed, for the first time, that the right to take collective action is a fundamental social right protected by EU law, on the basis that the protection of workers constitutes a recognized overriding public interest requirement. But the outcomes in the cases, which privileged freedom of establishment and the free provision of services respectively, seemed to dilute the normative significance attached to fundamental rights in cases like Omega and Schmidberger. In that light, Barnard questioned whether the fundamental social rights invoked in these cases can ever have the capacity to displace free movement rights since ‘The moment collective action is found to be a “restriction” … the “social” interests are on the back-foot, having to defend themselves from the economic’.114
Both the realization of free movement objectives and the protection of fundamental rights are provided for in the EU Treaties. In reality, it will fall to the Court of Justice to reconcile these interests in individual cases given that there are no clear signals about their relative normative weighting in the Treaty itself. Reflecting the language used in Schmidberger and Omega, Advocate General Trstenjak has argued against seeing fundamental freedoms and fundamental rights as being in a ‘hierarchical relationship’—emphasizing the role of proportionality to effect case-by-case assessments and considering that ‘a restriction on a fundamental freedom is justified, when that restriction arose in the exercise of a fundamental right and was appropriate, necessary and reasonable for the attainment of interests protected by that fundamental right’.115
However, the protection of fundamental rights was enhanced in many respects by the Lisbon Treaty, not only through the binding status conferred on the Charter but also, for example, by the requirement in Article 6(2) TEU that the EU must accede to the ECHR. Advocate General Mengozzi is among those who interpreted these enhancements as signalling a legal effect:
As a result of the entry into force of the Treaty of Lisbon, when working conditions constitute an overriding reason relating to the public interest justifying a derogation from the freedom to provide services, they must no longer be interpreted strictly. In so far as the protection of workers is a matter which warrants protection under the Treaties themselves, it is not a simple derogation from a freedom, still less an unwritten exception inferred from case-law. To the extent that the new primary law framework provides for a mandatory high level of social protection, it authorises the Member States, for the purpose of safeguarding a certain level of social protection, to restrict a freedom, and to do so without European Union law’s regarding it as something exceptional and, therefore, as warranting a strict interpretation.116
p. 531↵The Court has re-engaged with the ‘fair balance’ method in post-Lisbon cases.117 However, criticism that free movement goals are (still) unduly weighted within that balance, at the expense of fundamental rights protection, must also be acknowledged.118
4.4.2 Review of national measures ‘implementing’ Union law
The extent to which Member State derogation and justification arguments based on public interest grounds can themselves be scrutinized for their compatibility with EU standards of fundamental rights protection is an important question. On one view, when a Member State is trying to extract itself from its obligations under free movement law, a credible argument can be made that the national measure should be treated as, in effect, falling outside the scope of Union law altogether. However, in ERT, the Court ruled that
where a Member State [seeks] to justify rules which are likely to obstruct the exercise of the freedom to provide services, such justification, provided for by [Union] law, must be interpreted in the light of the general principles of law and in particular of fundamental rights.119
On this understanding of exceptions to free movement law, the frameworks of derogation and justification are themselves part of Union law, and any national measures taken for that purpose also fall within the scope of EU law for the purposes of fundamental rights review.
Article 51 of the Charter seemed to indicate a retreat from the position established by ERT. It states that ‘The provisions of this Charter are addressed … to the Member States only when they are implementing Union law’.120 This wording arguably conveys Member State action in a positive or active sense only, such as measures adopted to implement an EU directive. However, in the post-Lisbon case law, the Court continued to interpret the concept of ‘implementing’ Union law broadly—and, for present purposes, as still capturing Member State measures taken to derogate from or justify restrictions of free movement rights. In Åkerberg Fransson, the Court referred to the explanations attached to the Charter,121 which do not have binding effect but have influenced the Court’s interpretation of the Charter in accordance with Article 6(1) TEU’s instruction that it should have ‘due regrard’ to them, to rule that ‘the fundamental rights guaranteed by the Charter must … be complied with where national legislation falls within the scope of European Union law’.122 In Pfleger, the pre-Lisbon position on derogation and justification, as established in ERT, was explicitly confirmed.123 In other words, ‘The use by a Member State of exceptions provided for by EU law in order to justify an obstruction of a fundamental freedom guaranteed by the Treaty must, therefore, be regarded as “implementing Union law” within the meaning of Article 51(1) of the Charter’.124
5p. 532 Proportionality
5.1 Overview of the proportionality test
Even if the Court of Justice accepts that a national measure may legitimately restrict free movement rights in principle, the proportionality test then becomes critical since ‘a restriction on the fundamental freedoms enshrined in the Treaty may be justified only if the relevant measure is appropriate to ensuring the attainment of the objective in question and does not go beyond what is necessary to attain that objective’.125 The first—appropriateness—test is also often expressed as an assessment of suitability. It is more debated whether what is normally referred to as proportionality stricto sensu (ie the greater the impact on free movement, the greater the importance attached to satisfying the public interest objective on which the Member State relies) is a distinct third test or is absorbed by the test of necessity.126 In general, however, the Court articulates proportionality as a two-step test.
The Court sends mixed messages on the need to submit empirical evidence to establish the proportionality of a national measure for the purposes of justifying an exception to free movement rights. For example, in Stoß, in the context of restrictions on gambling, the Court noted that ‘the referring courts are in doubt as to whether, in order to justify restrictive measures … the national authorities must be able to produce a study supporting the proportionality of those measures which was prior to their adoption’.127 It then considered that
if a Member State wishes to rely on an objective capable of justifying an obstacle to the freedom to provide services arising from a national restrictive measure, it is under a duty to supply the court called upon to rule on that question with all the evidence of such a kind as to enable the latter to be satisfied that the said measure does indeed fulfil the requirements arising from the principle of proportionality.128
But it was conceded that ‘it cannot … be inferred … that a Member State is deprived of the possibility of establishing that an internal restrictive measure satisfies those requirements, solely on the ground that that Member State is not able to produce studies serving as the basis for [its] adoption’.129 On balance, however, States have a far greater chance of success if they do submit appropriate evidence to substantiate their proportionality claims.
Linking back to the points made in section 4.2 about the particular role of the Court of Justice within the preliminary rulings procedure, its task in such cases is to provide a coherent guiding structure for the application of proportionality in cases with an EU legal dimension; the determination of the outcome falls to the referring court—since that is the judicial body closest to the dispute itself, to the facts of the case, to the detail and p. 533↵discussion of the evidence submitted, and to the nuances of the public interest conceptions at stake.130 National courts have distinct responsibilities in that respect; in their judgments, they should demonstrate through clear reasoning and engagement with relevant EU case law that they have reached their conclusions on proportionality in accordance with the legal guidance established by the Court of Justice, which they are required to follow even if different kinds of proportionality tests or criteria are more usually applicable under national law.
In reality, however, the division of functions between national courts and the Court of Justice is more complex. For example, we saw both a prescriptive assessment of proportionality in Laval alongside a more devolved ‘margin of discretion’ approach in Omega in section 4.4.1. The reticence of the Court to engage in more extensive proportionality review was also noted in section 4.1.1 for the Trailers case, even though Advocate General Bot had argued persuasively that less restrictive measures could indeed be put in place to achieve the road safety public interest objective at stake.131 We return to this point in section 5.4.
Restrictive national measures taken in the public interest will be considered to be appropriate if ‘the means which they employ are suitable for the purpose of attaining the desired objectives’.132 This criterion has also been expressed as confirming that the national measure is ‘appropriate to ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner’.133 This limb of the proportionality test, which is essentially a procedural review, is normally addressed very briefly, with the Court frequently simply stating that the measure ‘is’ (or is not134) appropriate, without providing detailed reasoning.135
Assessment of the necessity of a national measure normally involves more substantive consideration of whether alternative measures that can achieve the stated public interest objective but have less restrictive effects on EU trade can be conceived.136 Assessing the proportionality of a national measure in this sense will involve consideration of whether alternative measures could be equally effective in terms of achieving the public interest objective that has been accepted as legitimate in principle, but less restrictive having regard to their effect on EU trade.137
p. 534↵The Court has confirmed that ‘the burden of proof cannot be so extensive as to require the Member State to prove, positively, that no other conceivable measure could enable that objective to be attained under the same conditions’.138 At a general level, the Court requires that ‘If a Member State has a choice between various measures to attain the same objective it should choose the means which least restricts [free movement]’.139 Sometimes, it gauges the proportionality of national measures by engaging in a comparative review of solutions adopted in other States.140 But ‘the fact that one Member State imposes less strict rules than another Member State does not mean that the latter’s rules are disproportionate’.141 What does seem clear is that the resolution of questions about proportionality is perhaps the most evidently ‘case by case’ dimension of free movement law, more closely connected to the facts of individual cases as well as to the arguments that the parties actually submit.
5.4 Proportionality as a tool for mediating public interest
Building on the case by case point just above, proportionality is a mechanism that can be deployed to manage the complexities inherent in public interest concerns, which can often differ across the Member States. Where it can be argued, using appropriate evidence, that a contested national measure is both suitable and necessary to achieve stated public interest objectives that the Court has accepted as a legitimate aim for the State to pursue in principle, the contested restriction of free movement rights can be defended. However, when the Court delves into the detail of proportionality, States rarely succeed in persuading it that the measures under review satisfy the necessity test. In free movement law, it is essential to study judgments of national courts too—whether or not a preliminary reference was made—in order to understand the calibration of proportionality in a more complete and also realistic sense.
It is also important to remember that assessments made on the basis of proportionality are at the fringes of law. They often require scientific or other expert, such as economic, evidence to be interrogated by legal practitioners and, sometimes, the outcome seems to amount more to a subjective value judgement than a more neutral legal assessment.142 The underpinning concern is to distinguish genuinely held—and genuinely pursued—public interest commitments from more problematic instances of national protectionism.
The discussion in this chapter has also pointed to several examples of a varying intensity of proportionality review. In section 4, for example, it was noted that areas of particular sensitivity tend to attract a less intensive degree of review from the Court. This message is clearly apparent in the Court’s instructions back to referring courts. These issues are explored in more detail in case study 16.2 on gambling restrictions.
The value of a clear, coherent, and predictable body of case law is obvious when considered from the perspective of legal certainty. It is not, however, the only consideration that can be taken into account in the development of EU law.
In section 4.1, we saw that the unlawfulness, or restricted lawfulness, of an activity within a Member State will not remove the subject matter from the material scope of the Treaty—or, in consequence, from possible review by the Court of Justice if national regulatory measures are challenged as a restriction of EU free movement rights. The regulation of gambling activities provides a good example of behaviour that is perceived and therefore regulated in different ways by different Member States, reflecting divergent underpinning national conceptions of the morality, or otherwise, of such activities. Things become especially interesting in this context when States have to confront the limits potentially imposed on their regulatory discretion by the demands of EU law and the internal market: can they continue to prohibit their own nationals and economic operators from participating in an activity that they seek to proscribe or restrict within their own borders that is lawfully and often more freely accessible in other States—moreover, at the click of a mouse in the online age?
In Schindler, which concerned advertising restrictions in the UK relating to a lottery organized in Germany, the Court was mindful of arguments about the social harm that gambling can create or exacerbate, but it declined to take an overtly paternalistic stance. Applying its standard approach, it held that ‘Even if the morality of lotteries is at least questionable, it is not for the Court to substitute its assessment for that of the legislatures of the Member States where that activity is practised legally’.143
However, such restrictions will almost always be justifiable in principle for reasons connected to protecting the national public interest, especially where a State can show that it clearly takes a ‘consistent and systematic’ policy approach to the restriction of gambling.144 In Liga Portuguesa, Advocate General Bot rationalized the Court’s approach as follows:
the national authorities must be allowed a sufficient margin of discretion to determine the requirements entailed by the protection of gamblers and, more generally, taking account of the social and cultural characteristics of each Member State, the preservation of public order, with regard to the organisational arrangements of gaming and betting and the amount of stakes, as well the use made of the profits to which they give rise. The Member States are therefore free to set the objectives of their policy on betting and gaming and, where appropriate, to define in detail the degree of protection sought.145
In that light, the intensity of the applicable level of proportionality review becomes critically important. And it is apparent that, in the gambling case law, there is consistent evidence of lighter-touch assessment on the part of the Court of Justice. Advocate General Bot defended that level of scrutiny by referring again to the margin of discretion attributed to Member States in this context, arguing that proportionality review in the arena of gambling p. 536↵restrictions ‘should consist in ascertaining that the State in question has not manifestly exceeded its margin of discretion in the context in which those measures were adopted and applied’.146
This deference to national discretion is typically described and discussed in the academic commentary as a more procedural than substantive assessment of the appropriateness and necessity of national measures.147 It is also more likely that the Court will refrain from making a definitive pronouncement on proportionality in the cases that reach it through the Article 267 TFEU procedure.148
Regulation of gambling activities must reflect and accommodate moral sensitivities, but review of restrictions on access to the gambling market must also recognize the fact that it is a lucrative trade sector. On one view, the reticence of the Court to get involved more substantively in reviewing national gambling restrictions makes it difficult to ascertain how, and the extent to which, the rights of citizens and economic actors who wish to participate in such activities are being restricted in different parts of the supposedly border-free EU market. The resulting space created for the meaningful regulatory diversity in a sensitive policy area showcases, on the other hand, how the elasticity inherent in proportionality review can be used to manage a spectrum of divergent, and genuinely held, moral and social views.149
However, it should not be forgotten that the Court is itself, in a sense, making a moral and social decision about these questions too. In prescribing the level of proportionality review that should be applied according to the relevant subject matter, the Court is essentially communicating its own view as to when free movement rights conferred by the Treaty should prevail over and above other interests and values, and when they should not. Choices made about the application of proportionality may, therefore, be merited and they may even prove to be effective when viewed in wider social and constitutional perspective; but they are not neutral.
6 Derogating from the free movement of persons
It was observed in section 2 that the free movement rights of natural persons holding Member State nationality—irrespective of the purpose for which they have moved, that is, whether to exercise economic activity (eg working) or not (eg moving to study or for holidays)—are connected to the status of EU citizenship. These rights are subject to conditions and limits laid down in secondary legislation as well as by the Treaty. Nevertheless, the ethos of citizenship adds a distinct element to the issue of derogation since it imbues the nature of the free movement rights conferred on Member State nationals in the first place. After all, the Court has consistently asserted that Union citizenship is ‘destined to be the fundamental status of nationals of the Member States, enabling those who find themselves p. 537↵in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for’.150 Legislation can, therefore, shape the exercise of free movement and residence rights, and in accordance with the wording of Articles 20 and 21 TFEU, it can attach conditions and limits to their exercise; but it cannot go as far as to undermine the very existence of those rights. In Baumbast, the Court was clear on this point:
the application of the limitations and conditions acknowledged in Article [21(1) TFEU] in respect of the exercise of that right of residence is subject to judicial review. Consequently, any limitations and conditions imposed on that right do not prevent the provisions of Article [21(1) TFEU] from conferring on individuals rights which are enforceable by them and which the national courts must protect.151
Reflecting that understanding, Directive 2004/38 tightly curtails the extent to which Member States can lawfully deport EU citizens from their territories. The rules codified by the Directive capture and strengthen principles developed through case law over many years, two elements of which will be outlined in this section: (a) the general provisions of the Directive that govern derogation from free movement rights in the form of expulsion orders against EU citizens, and (b) the specific issue of deportation on economic grounds.
6.1 Deportation and Directive 2004/38: general principles
Member States may only restrict the movement and residence rights of EU citizens and their family members on the grounds of public policy, public security, or public health.
The limited scope of the public health derogation was already outlined in section 4.1. Article 27(2) of the Directive requires that decisions based on public policy or public security ‘shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned’. This means that expulsion decisions taken in respect of groups of EU citizens that are preventive in motivation and therefore taken without due consideration of the circumstances or behaviour of each individual member of the group are not permissible under EU law. The Directive also delimits the meaning of personal conduct as ‘represent[ing] a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’.152
Other provisions of Directive 2004/38 establish a net of procedural protection for individuals subject to expulsion decisions, establishing conditions that relate to the notification of decisions (Article 30); administrative and judicial review redress procedures, as appropriate (Article 31); the duration of exclusion orders, including the opportunity to submit an application for the lifting of such an order after a ‘reasonable period’ (Article 32); and limitation of expulsion as a ‘penalty or legal consequence of custodial penalty’ (Article 33).153
p. 538↵For all expulsion decisions, Article 28(1) requires a Member State to take into account ‘considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situations, social and cultural integration into the host Member State and the extent of his/her links with the country of origin’. In many respects, these criteria reflect the more general requirement of respect for family life, guaranteed by Article 8 ECHR and Article 7 of the Charter.154 Article 28 also enshrines enhanced protection against expulsion relative to the degree of connection established between the citizen and the host State. Where a Member State national and/or their family member(s) acquire the status of permanent residence in the territory of a host State, in accordance with the conditions in Articles 16 to 18 of the Directive, they can only be expelled on serious grounds of public policy or public security under Article 28(2). According to Article 28(3), only imperative grounds of public security can justify an expulsion decision against a citizen who has either resided in the host State for the previous ten years or is a minor, unless expulsion can be shown in the latter case to be ‘necessary for the best interests of the child’.
Through the levels of protection established by Article 28, the EU legislature clearly intended to strengthen the residence rights acquired by EU citizens in host States over time, noting the progression from ‘serious’ to ‘imperative’ grounds of public policy and/or public security. However, this distinction has been less meaningful in practice, as case study 16.3 on deportation and criminal convictions suggests.
Case study 16.3: Deportation and criminal convictions
Article 27(2) of Directive 2004/38/EC codifies a principle that had emerged through the case law: ‘Previous criminal convictions shall not in themselves constitute grounds for taking’ expulsion decisions. The requirement that an individual must continue to represent ‘a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’ applies in this context. The judgment in Calfa, in which a lifelong ban from Greece imposed as a result of a conviction for a drugs-related offence (which attracted a three-month term of imprisonment) was successfully challenged on the basis of the prospective impact on the applicant’s free movement rights, demonstrates that the application of proportionality is also relevant here since, ‘as the Court has repeatedly stated, the public policy exception, like all derogations from a fundamental principle of the Treaty, must be interpreted restrictively’.155
Expulsion can never be the automatic consequence of a criminal conviction; and neither can preventive expulsion decisions be taken following a criminal conviction unless a real risk of reoffending can be demonstrated. In other words, ‘the existence of a previous criminal conviction can justify an expulsion only in so far as the circumstances which gave p. 539↵rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy’.156 Awareness of these EU legal obligations can be found in national case law reviewing the validity of expulsion decisions issued on the basis of criminal convictions.157
In Tsakouridis, the Court of Justice was asked to consider ‘whether and to what extent criminal offences in connection with dealing in narcotics as part of an organised group’ amounted to ‘serious’ or ‘imperative’ grounds of public security.158 Ultimately, the Court left the decision to the referring court; but against a backdrop of the ‘devastating effects’ of dealing in narcotics and the ‘serious evil for the individual’ as well as ‘social and economic danger to mankind’ of drug addiction, the Court also provided detailed guidance on the scope of Article 28 and the other interests that national decision-makers needed to take into account:
In the application of Directive 2004/38, a balance must be struck more particularly between the exceptional nature of the threat to public security as a result of the personal conduct of the person concerned … by reference in particular to the possible penalties and the sentences imposed, the degree of involvement in the criminal activity, and, if appropriate, the risk of reoffending … on the one hand, and, on the other hand, the risk of compromising the social rehabilitation of the Union citizen in the State in which he has become genuinely integrated … The sentence passed must be taken into account as one element in that complex of factors.159
The Court further emphasized the need for the referring court to take both the requirements of proportionality and the fundamental rights of the individual concerned into account, noting in particular the right to respect for family life.
However, in PI, the gradation between ‘serious’ and ‘imperative’ grounds became blurred. The applicant had been convicted and sentenced to a term of seven years’ imprisonment for sexual assault offences committed over a period of 11 years, the victim of which was his former partner’s daughter. While again reciting the case law on taking decisions on a case-by-case basis and ensuring adequate respect for fundamental rights and procedural safeguards, the Court indicated that
it is open to the Member States to regard criminal offences … as constituting a particularly serious threat to one of the fundamental interests of society, which might pose a direct threat to the calm and physical security of the population and thus be covered by the concept of ‘imperative grounds of public security’, capable of justifying an expulsion measure under Article 28(3), as long as the manner in which such offences were p. 540↵committed discloses particularly serious characteristics, which is a matter for the referring court to determine on the basis of an individual examination of the specific case before it.160
While fully recognizing the grave nature of the offences and the gravity of the impact of the crimes committed for the victim, commentators have questioned whether the legislative intention underpinning the notion of imperative grounds of public security should properly apply to a case of this kind, that is, in the absence of risk to the security of broader State society in more systemic terms.161 The Opinion of Advocate General Bot perhaps gives an indication of the concern that shaped the decision, at paragraph 62: ‘To acknowledge that Mr I. may derive from his criminal conduct the right to the enhanced protection provided for in Article 28(2) and (3) of that directive would, in my view, conflict with the values on which citizenship of the Union is based’.
More generally, however, the Court emphasises that while a period spent in prison in the host State can break the individual’s integrative links with that society for the purposes of considering eligibility for enhanced protection under Article 28(3)(a) of the Directive, this is the case only ‘in principle’ and therefore ‘may–together with the other factors going to make up the entirety of relevant considerations in each individual case–be taken into account by the national authorities responsible for applying Article 28(3) [of the Directive] as part of the overall assessment required for determining whether the integrating links previously forged with the host Member State have been broken, and thus for determining whether the enhanced protection provided for in that provision will be granted’.162 The Court has also underlined the rehabilative dimension of imprisonment for the purposes of undertaking such an overall assessment, observing that ‘the attitude of the person concerned during his detention may, in turn, reinforce that disconnection [from host State society] or, conversely, help to maintain or restore links previously forged with the host Member State with a view to his future social reintegration in that State’.163
In this case law, once again then, we see the recurring tension between the narrow approach taken to exceptions from free movement rights in a general sense; coupled with more circumstance-specific rulings in certain cases.
6.2 Deportation on economic grounds
Article 27(1) of Directive 2004/38 states that the grounds of public policy, public security, or public health may not be invoked ‘to serve economic ends’. However, the link between deportation and financial resources is more complex in reality. For residence rights in a host State beyond an initial (and essentially unregulated) stay of three months, Article 7 establishes the basic threshold conditions of ‘sufficient resources … not to become a burden on the social assistance system of the host Member State’ and ‘comprehensive sickness p. 541↵insurance’ for Union citizens who are neither working nor self-employed there. Recital 16 of the Directive’s Preamble provides more nuance:
As long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance system of the host Member State they should not be expelled. Therefore, an expulsion measure should not be the automatic consequence of recourse to the social assistance system. The host Member State should examine whether it is a case of temporary difficulties and take into account the duration of residence, the personal circumstances and the amount of aid granted in order to consider whether the beneficiary has become an unreasonable burden on its social assistance system and to proceed to his expulsion. In no case should an expulsion measure be adopted against workers, self-employed persons or job-seekers as defined by the court of justice save on grounds of public policy or public security.164
Article 14(3) of the Directive confirms that ‘An expulsion measure shall not be the automatic consequence of a Union citizen’s or his or her family member’s recourse to the social assistance system of the host Member State’.165 But the inverse of this position is that recourse to the host State’s social assistance system can, therefore, be a legitimate basis for expulsion decisions in certain cases—rationalizing economically grounded justification reasons in this strand of free movement law, even if only to a limited extent.166 The irony of the fact that this exception to the general rule on economically-driven exceptions is found within the rights attached to the most ‘fundamental status’ that EU nationals can enjoy is self-evident. It is one of the starkest disconnects between the conceptual potential of Union citizenship, on the one hand, and the legal constraints placed on its realization, on the other.
Importantly, while Article 15(1) of the Directive expressly requires that the procedures provided for in Articles 30 and 31 of the Directive apply in cases of expulsion for non-compliance with the Directive’s conditions, it did not extend the scope of other protective provisions to such decisions. A generous approach was arguably signalled in Rendón Marín, where the Court indicated that ‘in order to determine whether an expulsion measure is proportionate to the legitimate aim pursued, in the present instance protection of the requirements of public policy or public security, account should be taken of the criteria set out in Article 28(1) of Directive 2004/38’.167 However, in Chenchooliah, the Court confirmed that ‘the provisions of Articles 27 and 28 of Directive 2004/38 are applicable only if the person concerned currently derives from [the Directive] a right of residence in the host Member State which is either temporary or permanent’.168
More generally, and linking back to the discussion on protection of State finances in section 4.1.2, it is arguable that the free movement of persons has become more vulnerable over time; that the appropriate balance between the rights conferred, on the one hand, and permitted restrictions of them, on the other, is out of kilter. While events have overtaken p. 542↵the proposals negotiated in February 2016 in the context of the UK’s referendum on withdrawal from the EU, it is worth noting that some of the restrictions on free movement rights agreed as part of that process would have restricted the free movement rights of economically active Union citizens, otherwise the most protected cohort of persons in free movement law.169 Moreover, while that document stated that ‘Encouraging recruitment, reducing unemployment, protecting vulnerable workers and averting the risk of seriously undermining the sustainability of social security systems are reasons of public interest recognised in the jurisprudence of the Court of Justice of the European Union’, the proposed restriction on in-work benefits was framed in directly discriminatory language (‘EU workers’), bringing a new dimension to the eroding distinctions between different forms of free movement restriction discussed in section 3.2.
This chapter has provided an overview of the Treaty-based derogation system and the broader justification framework that enable Member States lawfully to restrict free movement rights in certain circumstances. The general approach taken by the Court of Justice seeks to interpret the public interest concerns that underpin any such restrictions as narrowly as possible, mindful of the fact that the realization of primary Treaty rights is at stake. National measures taken in the public interest are thus also subject to a two-step proportionality review that interrogates both the suitability and necessity of the action taken. As Advocate General Bot pointed out in his Opinion for the Trailers case, ‘It is … the review of proportionality which enables the Court to weigh the interests associated with attainment of the internal market against those relating to the legitimate interests of the Member States’.170 Both the public interest and proportionality elements of a defendant State’s public interest submissions must be properly supported with appropriate evidence.
Notwithstanding the strictness of the scrutiny applied to reviewing exceptions to free movement law in general, however, there are also clear examples of a more hands-off approach in certain sectors of the case law—normally, when sensitivities are involved vis-à-vis the substantive public interest concerned either in a general sense or specifically for the Member State in question. Other points of case law incoherence can be added to this, including (a) the inherently pliable nature of public interest and, especially, proportionality through the process of legal adjudication; (b) the dissolving distinction in the case law between Treaty-based derogations and broader public interest arguments; and (c) the difficult question of the extent to which national public finances should be accommodated as a legitimate defence for free movement restrictions.
The search for the optimal balance between uniform EU free movement rights and respect for national and more local expressions of regulatory diversity clearly continues.
p. 543Further reading
1 For comprehensive discussion of the different grounds of public interest, see C Barnard, The Substantive Law of the EU: The Four Freedoms (6th edn, Oxford: Oxford University Press, 2019) chs 5 and 12.
2 AG Bot expressed it in the following way in Case C-141/07 Commission v Germany, EU:C:2008:218: ‘The rules surrounding the exercise of [a Member State’s] reserved powers mean that if its legislation causes a restriction of one of the fundamental freedoms of movement it must be in a position to provide a legitimate reason … to justify this’ (para 83 of the Opinion).
4 Case C-442/02 CaixaBank France v Ministère de l’Économie, des Finances et de l’Industrie, EU:C:2004:586, para 11.
5 Case C-322/01 Deutscher Apothekerverband eV v 0800 DocMorris NV and Jacques Waterval, EU:C:2003:664, para 64.
6 Directive 2005/36/EC of 7 September 2005 on the recognition of professional qualifications (OJ  L255/22); Art 61 of the Directive is the general derogation clause; for a specific derogation clause, see eg Art 33(a).
7 See Art 114(4) and (5) TFEU.
8 Case C-376/98 Germany v Parliament and Council, EU:C:2000:544.
9 Directive 2003/33/EC of 26 May 2003 on the approximation of the laws, regulations, and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products (OJ  L152/16).
10 This point has been expressed by the Court as the precondition that ‘there are no [Union] harmonising measures providing for measures necessary to ensure the protection of [the relevant] interests’ (Case C-112/05 Commission v Germany, EU:C:2007:623, para 72).
11 Case C-171/07 Apothekerkammer des Saarlandes, EU:C:2009:316, para 19. See further chapter 12.
12 Ibid. For an example of public health concerns that potentially permitted a discriminatory restriction on free movement rights, see eg Case C-73/08 Bressol and Chaverot v Gouvernement de la Communauté française, EU:C:2010:181.
13 Emphasis added. See similarly, Art 65(3) TFEU for capital: ‘The measures and procedures referred to in paras 1 and 2 shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 63’.
14 eg in the context of derogation arguments based on public morality, compare the circumstances of and decision in Case 121/85 Conegate Ltd v HM Customs & Excise, EU:C:1986:114, where a prohibition on certain imported goods was not matched by a prohibition on their domestic manufacture, with the earlier case of Case 34/79 R v Henn and Darby, EU:C:1979:295.
15 For discussion of the absence of comparable restrictions placed on nationals in the sphere of freedom of establishment, see eg Case 115/81 Adoui and Cornuaille v Belgian State and City of Liège, EU:C:1982:183.
16 Case C-389/00 Commission v Germany, EU:C:2003:111, para 23 (confirming Case 18/87 Commission v Germany, EU:C:1988:453, para 6); for further discussion of each of these three exceptions, see Barnard, The Substantive Law of the EU (n 1) ch. 2.
17 Case 231/83 Cullet v Centre Leclerc, EU:C:1985:29, para 30.
18 See eg Case 177/83 Kohl KG v Ringelhan & Rennett SA and Ringelhan Einrichtungs GmbH, EU:C:1984:334, on consumer protection.
19 OJ  L158/77.
20 Case C-405/01 Colegio de Oficiales de la Marina Mercante Española v Administración del Estado, EU:C:2003:515, para 39 (confirming Case 149/79 Commission v Belgium, EU:C:1982:195, para 10).
21 Case C-61/08 Commission v Greece, EU:C:2011:340, paras 77 and 78 (emphasis added).
22 Case 2/74 Reyners v Belgian State, EU:C:1974:68, para 43.
23 Case 33/74 Van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid, EU:C:1974:131, para 12: ‘specific requirements imposed on the person providing the service cannot be considered incompatible with the Treaty where they have as their purpose the application of professional rules justified by the general good’ (emphasis added).
24 Case 120/78 Rewe-Zentrale AG v Bundesmonopolverwaltung für Branntwein (‘Cassis de Dijon’), EU:C:1979:42.
25 Ibid, para 8 (emphasis added).
26 Case 302/86 Commission v Denmark  ECR 4607.
27 Case C-110/05 Commission v Italy (‘Trailers’), EU:C:2009:66, para 59.
28 Case C-384/08 Attanasio Group Srl v Comune di Carbognano, EU:C:2010:133, para 50.
29 Case C-55/94 Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano, EU:C:1995:411, para 37.
30 For a more extensive list of justification grounds, see C Barnard, ‘Derogations, Justifications and the Four Freedoms: Is State Interest Really Protected?’ in C Barnard and O Odudu (eds), The Outer Limits of European Union Law (Oxford: Hart Publishing, 2009).
31 eg Case C-137/09 Josemans v Burgemeester van Maastricht, EU:C:2010:774, para 82.
32 eg Case C-375/14 Laezza, EU:C:2016:60, para 32.
33 eg Case C-55/93 Criminal Proceedings against van Schaik, EU:C:1994:363, para 19.
34 eg Case C-383/05 Talotta v État belge EU:C:2007:181, para 35.
35 Case C-368/95 Vereinigte Familiapress Zeitungsverlags—und vertriebs GmbH v Heinrich Bauer Verlag, EU:C:1997:325, para 26.
36 eg Case C-169/91 Council of the City of Stoke-on-Trent and Norwich City Council v B&Q plc, EU:C:1992:519, para 11.
37 eg Joined Cases 110/78 and 111/78 Ministère public and ‘Chambre syndicale des agents artistiques et impresarii de Belgique’ ASBL v Van Wesemael, EU:C:1979:8, para 28.
38 eg Case C-201/15 AGET Iraklis, EU:C:2016:972, paras 74–75.
39 eg Case C-244/06 Dynamic Medien, EU:C:2008:85, para 44.
40 eg on protection of a State’s official language, see Case C-391/09 Runevič-Vardyn and Wardyn, EU:C:2011:291, para 86; Case C-202/11 Las, EU:C:2013:239, para 26.
41 eg the Court has accepted the possibility that free movement restrictions could be justified in principle by ‘the need to guarantee the stability and security of the assets administered by an undertaking for collective investment created by a severance fund’ (Case C-39/11 VBV—Vorsorgekasse AG v Finanzmarktaufsichtsbehörde (‘FMA’), EU:C:2012:327, para 31).
42 See esp the comparative study of relevant judgments from 1984, 1994, and 2004 in Barnard, ‘Derogations, Justifications and the Four Freedoms’ (n 30) 295.
43 Case C-182/15 Petruhhin v Latvijas Republikas Generālprokuratūra, EU:C:2016:630, para 34.
44 See esp Case C-2/90 Commission v Belgium (‘Walloon waste’), EU:C:1992:310. In Case C-28/09 Commission v Austria (‘Brenner II’), AG Trstenjak described the Court’s approach in Walloon waste as ‘work[ing] around’ the rule on discriminatory restrictions and Treaty-based derogations (EU:C:2010:770, fn 34 of the Opinion).
45 See AG Jacobs in Case C-379/98 PreussenElektra AG v Schhleswag AG, in the presence of Windpark Reußenköge III GmbH and Land Schleswig-Holstein, EU:C:2000:585, paras 222–238 of the Opinion; AG Trstenjak in Brenner II (n 44) paras 79–91 of the Opinion.
46 Case C-28/09, EU:C:2011:854.
47 Even more strikingly, the Court stated in Austria v Germany that, with reference to Article 18 TFEU, ‘the protection of the environment constitutes a legitimate objective for the purposes of justifying a difference in treatment on ground of nationality’ (Case C-591/17, EU:C:2019:504, para 75). However, when discussing the contested national measure as a breach of Article 34 TFEU specifically, the Court framed the issue in terms of indirect discrimination and restrictions on market access (paras 120–132).
48 Case C-54/05, EU:C:2007:168.
49 Ibid, para 38 (emphasis added).
50 Case C-531/07 Fachverband der Buch—und Medienwirtschaft v LIBRO Handelsgesellschaft mbH, EU:C:2009:276, paras 32–34.
51 eg outlining the varied approaches evident in case law on national restrictions placed on gambling, affecting the freedom to provide services, see AG Mengozzi in Case C-153/08 Commission v Spain, EU:C:2009:472, paras 77–81 of the Opinion. In another example, relating to Arts 21 and 49 TFEU, in Case C-524/06 Huber v Bundesrepublik Deutschland, EU:C:2008:724, a case concerning aspects of a data processing system that applied only to nationals of other Member States, the Court considered the objective of fighting crime as an element of protecting public order; but it did not discuss that objective in the Treaty-set language of public policy or public security.
52 AG Jacobs in PreussenElektra (n 45) paras 228 and 229 of the Opinion.
53 S Weatherill, ‘Free Movement of Goods’ (2012) 61 International and Comparative Law Quarterly 541, 544.
54 AG Trstenjak in Brenner II (n 44) paras 83 and 89 of the Opinion respectively.
55 Ibid, para 90.
56 On this point, see AG Sharpston in Bressol and Chaverot (n 12) paras 43–76 of the Opinion (EU:C:2009:396). The Commission raised the same question in Case C-308/14 Commission v UK, EU:C:2016:436 (see para 23 of the Opinion of AG Cruz Villalón, EU:C:2015:666) but the argument was not addressed by the Court.
57 eg Case C-159/90 Society for the Protection of Unborn Children Ireland Ltd (SPUC) v Stephan Grogan, EU:C:1991:378, para 21: ‘medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out, constitutes a service within the meaning of … the Treaty’; Case C-268/99 Jany v Staatssecretaris van Justitie, EU:C:2001:616, para 49: ‘prostitution is a provision of services for remuneration which … falls within the concept of economic activities’. For an exception, when the activity in question was unlawful in all of the Member States, see Josemans v Burgemeester van Maastricht (n 31), para 41.
58 See S Planzer, ‘The ECJ on Gambling Addiction: Absence of an Evidence-Oriented Approach’ (2010) 3 European Journal of Risk Regulation 289; and S van den Bogaert and A Cuyvers, ‘Money for Nothing: The Case Law of the EU Court of Justice on the Regulation of Gambling’ (2011) 48 Common Market Law Review 1175, esp 1206–1210.
59 cf the decision in Trailers (n 27) with the Opinions of AG Léger and AG Bot (EU:C:2006:646).
60 Apothekerkammer des Saarlandes (n 11) para 19; confirmed in Case C-333/14 Scotch Whisky Association, EU:C:2015:845, para 35.
61 eg Case 90/86 Criminal Proceedings against Zoni, EU:C:1988:403, para 13.
62 Case C-95/01 Criminal Proceedings against Greenham and Abel, EU:C:2004:71, paras 40 and 42.
63 Scotch Whisky Association (n 60), paras 63–64.
64 Greenham and Abel (n 62) para 43.
66 eg Case C-158/96 Kohll v Union des caisses de maladie, EU:C:1998:171; Case C-368/98 Vanbraekel v Alliance nationale des mutualités chrétiennes (ANMC), EU:C:2001:400; Case C-372/04 Watts v Bedford Primary Care Trust and Secretary of State for Health, EU:C:2006:325, paras 103 and 104; and Case C-173/09 Elchinov v Natsionalna zdravnoosiguritelna kasa, EU:C:2010:581.
67 Case C-527/13 Cachaldora Fernández, EU:C:2015:215, para 25; confirming Watts (n 66), para 92.
68 Watts (n 66).
69 See para 1 of the Explanatory Notes attached to the Health Care (Reimbursement of the Cost of EEA Services etc) Regulations (Northern Ireland) 2012 (SI 2012/167); National Health Service (Reimbursement of the Cost of EEA Treatment) (Scotland) Regulations 2010 (SI 2010/283); and National Health Service (Reimbursement of the Cost of EEA Treatment) Regulations 2010 (SI 2010/915).
70 Case C-35/98 Staatssecretaris van Financiën v BGM Verkooijen, EU:C:2000:294, para 48.
71 Commission v Germany (n 2) para 60 (emphasis added).
72 Kohll (n 66) para 50 (emphasis added).
73 Vanbraekel (n 66) para 47.
74 See eg Watts (n 66) paras 103–104 and Elchinov (n 66) para 42.
75 eg Joined Cases C-11/06 and 12/06 Morgan and Bucher, EU:C:2007:626, para 36: ‘There is no doubt that the objective of ensuring that students complete their courses in a short period of time, thus contributing in particular to the financial equilibrium of the education system of the Member State concerned, may constitute a legitimate aim in the context of the organisation of such a system’.
76 eg Joined Cases C-396/05, C-419/05 and C-450/05 Habelt, Möser and Wachter v Deutsche Rentenversicherung Bund, EU:C:2007:810, para 83: ‘the Court has accepted that the risk of seriously undermining the financial balance of the social security system may justify a barrier of that kind’.
77 Case C-290/04 FKP Scorpio Konzertproduktionen GmbH v Finanzamt Hamburg-Eimsbüttel, EU:C:2006:630, para 35.
78 Joined Cases C-105/12 to C-107/12 Essent and Others, EU:C:2013:677, paras 51–52.
79 For further analysis and discussion, see P Oliver, ‘When, if Ever, Can Restrictions on Free Movement be Justified on Economic Grounds?’ (2016) 41(2) European Law Review 147; S Arrowsmith, ‘Rethinking the Approach to Economic Justifications under the EU’s Free Movement Rules’ (2015) 68 Current Legal Problems 307.
80 Case C-140/12 Brey, EU:C:2013:565, para 55.
81 Ibid, paras 53–56.
82 Commission v UK (n 56), para 80.
83 See also, Case C-333/13 Dano, EU:C:2014:2358; Case C-67/14 Alimanovic, EU:C:2015:597; for discussion, see chapter 13.
84 Case 36/74 Walrave and Koch v Association Union cycliste internationale, Koninklijke Nederlandsche Wielren Unie and Federación Española Ciclismo, EU:C:1974:140 and Case C-415/93 Union royale belge des sociétés de football association ASBL v Bosman, EU:C:1995:463.
85 Case C-265/95 Commission v France (‘Spanish strawberries’), EU:C:1997:595.
86 Case C-171/11 Fra.bo SpA Deutsche Vereinigung des Gas—und Wasserfaches eV (DVGW)—Technisch—Wissenschaftlicher Verein, EU:C:2012:453.
87 Case C-281/98 Angonese v Cassa di Risparmio di Bolzano SpA, EU:C:2000:296; confirmed in Case C-94/07 Raccanelli, EU:C:2008:425.
88 AG Trstenjak in Fra.Bo (n 86, EU:C:2012:176) paras 38 and 39 of the Opinion.
89 eg Angonese (n 87) para 42.
90 Citing eg Case C-325/08 Olympique Lyonnais SASP v Olivier Bernard and Newcastle UFC, EU:C:2010:143, para 38.
91 Case C-162/06 International Mail Spain SL v Administración del Estado and Correos, EU:C:2007:681, para 24. See further chapter 10.
92 See further Case C-14/09 Genc v Land Berlin, EU:C:2016:247, para 32: ‘The national court alone has direct knowledge of the facts giving rise to the dispute and is, consequently, best placed to make the necessary determinations’.
93 Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsar betareförbundets avdelning 1, Byggettan and Svenska Elektrikerförbundet, EU:C:2007:809. See further chapters 13 and 19.
94 Laval (n 93) para 110.
95 Case C-142/05 Åklagaren v Mickelsson and Roos, EU:C:2009:336, para 41.
96 See further H van Harten, ‘Proportionality in Decentralized Action: The Dutch Court Experience in Free Movement of Services and Freedom of Establishment Cases’ (2008) 35 Legal Issues of Economic Integration 217; J Baquero Cruz, ‘Francovich and Imperfect Law’ in M Poiares Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Oxford: Hart Publishing, 2010).
97 However, in Commission v UK (n 56), the Court appeared to reverse that position; see para 85: ‘the Commission, which has the task of proving the existence of the alleged infringement and of providing the Court with the evidence necessary for it to determine whether the infringement is made out … has not provided evidence or arguments showing that such checking does not satisfy the conditions of proportionality, that it is not appropriate for securing the attainment of the objective of protecting public finances or that it goes beyond what is necessary to attain that objective’.
98 The currently applicable Rules of Procedure of the Court of Justice are published at OJ  L265/1.
99 Case C-333/08 Commission v France, EU:C:2010:44, para 97.
100 Case C-161/07 Commission v Austria, EU:C:2008:759, paras 36 and 37.
101 Case C-147/03 Commission v Austria, EU:C:2005:427, para 63.
102 Case C-319/06 Commission v Luxembourg, EU:C:2008:350, para 51.
103 Case C-400/08 Commission v Spain (‘Shopping centres’), EU:C:2011:172, para 62.
104 See eg the extensive discussion of proof with respect to justification and proportionality arguments in Bressol and Chaverot (n 12) and Scotch Whisky (n 60).
105 Case C-60/00 Carpenter v Secretary of State for the Home Department, EU:C:2002:434, para 40.
106 ‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’.
107 See eg Case C-390/12 Pfleger and Others, EU:C:2014:281, for freedom to provide services (Article 56 TFEU) and the rights protected by Articles 15 and 17 of the Charter (ie freedom to choose an occupation, right to engage in work, and freedom to conduct a business).
108 Case C-36/02 Omega Spielhallen—und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundes stadt Bonn, EU:C:2004:614, para 35.
109 Ibid, para 34.
110 Case C-112/00 Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, EU:C:2003:333, para 77 (emphasis added).
111 Ibid, para 81 (emphasis added).
112 Ibid, para 82.
113 Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti, EU:C:2007:772.
114 C Barnard, ‘Social Dumping or Dumping Socialism’ (2008) 67 Cambridge Law Journal 262, 264.
115 AG Trstenjak in Case C-271/08 Commission v Germany, EU:C:2010:183, paras 186 and 189 of the Opinion.
116 AG Mengozzi in Case C-211/08 Commission v Spain, EU:C:2010:88, para 53 of the Opinion. Similarly, the 2010 Monti Report drew attention to the ‘new legal context’ post-Lisbon in its specific comments on the judgments in Viking Line and Laval (M Monti, ‘A New Strategy for the Single Market: At the Service of Europe’s Economy and Society’, May 2010, http://ec.europa.eu/bepa/pdf/monti_report_final_10_05_2010_en.pdf,p 70).
117 eg Case C-283/11 Sky Österreich, EU:C:2013:28, para 60; AGET Iraklis (n 38), para 90.
118 See eg S Weatherill, ‘Use and Abuse of the EU’s Charter of Fundamental Rights: On the Improper Veneration of “Freedom of Contract”’ (2014) 10 ERCL 167; discussing the judgment in Case C-426/11 Alemo-Herron and Others, EU:C:2013:521.
119 Case C-260/89 Elliniki Radiophonia Tileorassi AE (ERT) v Dimotiki Etairia Pliroforissis, EU:C:1991:254, para 43 (emphasis added).
120 Emphasis added.
121 OJ  C303/17.
122 Case C-617/10 Åkerberg Fransson, EU:C:2013:280, para 21 (emphasis added).
123 Pfleger (n 107) paras 31–36.
124 AGET Iraklis (n 38) para 64.
125 Attanasio Group (n 28) para 51 (emphasis added).
126 See AG Poiares Maduro in Case C-434/04 Criminal Proceedings against Ahokainen and Leppik, EU:C:2006:462, para 26 of the Opinion.
127 Joined Cases C-316/07, C-358–360/07, C-409/07 and C-410/07 Stoß, EU:C:2010:504, para 70 (emphasis added).
128 Ibid, para 71 (emphasis added), referring to Case C-227/06 Commission v Belgium, EU:C:2008:160, paras 62 and 63.
129 Stoß (n 127) para 72 (emphasis added).
130 For recognition of this by the Court, see eg Case C-405/98 Konsumentombudsmannen (KO) v Gourmet International Products AB (GIP), EU:C:2001:135, para 33.
131 AG Bot in Trailers (n 59) paras 167–171 of the Opinion; cf the judgment of the Court (n 27) at paras 65–67.
132 Case C-463/01 Commission v Germany, EU:C:2004:797, para 78.
133 Attanasio Group (n 28) para 71.
134 See eg Case 124/81 Commission v UK (‘UHT milk’), EU:C:1983:30, para 32: ‘It has not been shown that public health in the United Kingdom has been affected in the slightest by such imports’.
135 eg Trailers (n 27) para 64.
136 eg Case C-443/10 Bonnarde v Agence de Services et de Paiement, EU:C:2011:641, para 35: ‘Whilst the requirement … does indeed appear to be … appropriate for the attainment of the objectives of protecting the environment and combating fraud, it must however be verified that it is necessary to attain those objectives and that there are no other less restrictive means of doing so’.
137 eg Case C-205/07 Gysbrechts and Santurel Inter BVBA, EU:C:2008:730, para 53.
138 Trailers (n 27) para 66 (emphasis added).
139 Case 261/81 Walter Rau Lebensmittelwerke v De Smedt PVBA, EU:C:1982:382, para 12.
140 eg Case C-126/91 Schutzverband gegen Unwesen in der Wirtschaft v Yves Rocher, EU:C:1993:191, para 18.
141 Commission v Germany (n 2) para 51; recalling eg Case C-384/93 Alpine Investments BV v Minister van Financiën, EU:C:1995:126, para 51 and Omega (n 108) para 108.
142 For discussion and illustration of these points, and related literature, in an applied context, see C Barnard, ‘A Proportionate Response to Proportionality in the Field of Collective Action’ (2012) 37 European Law Review 117.
143 Case C-275/92 Her Majesty’s Customs and Excise v Schindler, EU:C:1994:119, para 32.
144 eg Case C-42/07 Liga Portuguesa de Futebol Profissional and Bwin International Ltd v Departamento de Jogos da Santa Casa da Misericórdia de Lisboa, EU:C:2009:519, para 61; Case C-49/16 Unibet International, EU:C:2017:491, para 40.
145 AG Bot in Liga Portuguesa (n 144), para 67 of the Opinion (EU:C:2008:560).
146 Ibid, para 258.
147 See F de Witte, ‘Sex, Drugs and EU Law: The Recognition of Moral, Ethical and Cultural Diversity in EU Law’ (2013) 50 Common Market Law Review 1545; van den Bogaert and Cuyvers, ‘Money for Nothing’ (n 58).
148 See eg Case C-258/08 Ladbrokes Betting & Gaming Ltd and Ladbrokes International Ltd v Stichting de Nationale Sporttotalisator, EU:C:2010:308, para 50. But compare more recently, Unibet International (n 144).
149 See D Doukas, ‘Morality, Free Movement and Judicial Restraint at the European Court of Justice’ in Koutrakos, Nic Shuibhne, and Syrpis (eds) Exceptions from EU Free Movement Law: Derogation, Justification and Proportionality (Oxford: Hart Publishing, 2016) 139.
150 Case C-184/99 Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, EU:C:2001:458, para 31.
151 Case C-413/99 Baumbast and R v Secretary of State for the Home Department, EU:C:2002:493, para 86.
152 Reflecting pre-citizenship case law such as, eg Case 30/77 R v Bouchereau, EU:C:1977:172, para 35. A detailed discussion of the foundational case law can be found in Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri v Land Baden-Württemberg, EU:C:2004:262.
153 The procedural guarantees in Articles 30 and 31 of the Directive 2004/38 also apply in situations where a Union citizen or their family members are expelled from a host State without enjoying a right of residence there under EU law; see esp Case C-94/18 Chenchooliah, EU:C:2019:693.
154 These factors are applied by analogy in situations involving the expulsion of family members who reside in a Union citizen’s home State on the basis of the Ruiz Zambrano case law: see Case C-304/14 CS, EU:C:2016:674; Case C-34/09 Ruiz Zambrano, EU:C:2011:124 is discussed in chapter 13.
155 Case C-348/96 Criminal Proceedings against Calfa, EU:C:1999:6, para 23.
156 Orfanopoulos and Oliveri (n 152) para 67 (emphasis added). However, in the context of acts referred to in Article 1F of the Geneva Convention (commission of a crime against peace, a war crime, or a crime against humanity), the Court confirmed in K and HF that ‘while, in general, the finding of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, within the meaning of the second subparagraph of Article 27(2) of Directive 2004/38, implies the existence in the individual concerned of a propensity to repeat the conduct constituting such a threat in the future, it is also possible that past conduct alone may constitute such a threat to the requirements of public policy’ (Joined Cases C-331/16 and C-366/16 K and HF, EU:C:2018:296, para 56).
157 eg R (Chindamo) v Secretary of State for the Home Department  EWHC 3340 (Admin). However, problematic national practice is also evident: see further, N Nic Shuibhne and J Shaw, ‘General Report’ in U Neergaard, C Jacqueson, and N Holst-Christensen (eds) Union Citizenship: Development, Impact and Challenges 695, available at http://fide2014.eu/pdf/FINAL-Topic-2-on-Union-Citizenship.pdf, especially section 6.2.2.
158 Case C-145/09 Land Baden-Württemberg v Panagiotis Tsakouridis, EU:C:2010:708, para 39.
159 Ibid, paras 51 and 52.
160 Case C-348/09 PI v Oberbürgermeisterin der Stadt Remscheid, EU:C:2012:300, para 33.
161 For discussion, see G Anagnostaras, ‘Enhanced Protection of EU Nationals against Expulsion and the Concept of Internal Public Security: Comment on the PI Case’ (2012) 37 European Law Review 627; D Kochenov and B Pirker, ‘Deporting the Citizens within the European Union: a Counter-Intuitive Trend in Case C-348/09 PI v Oberbürgermeisterin der Stadt Remscheid’ (2013) 19 Columbia Journal of European Law 369.
162 Case C-400/12 MG, EU:C:2014:9, para 36 (emphasis added).
163 Joined Cases C-316/16 and C-424/16 B and Vomero, EU:C:2018:256, para 74.
164 Emphasis added.
165 Emphasis added.
166 The lawfulness of this course of action is confirmed in eg Grzelczyk (n 150) para 42: ‘That interpretation does not, however, prevent a Member State from taking the view that a student who has recourse to social assistance no longer fulfils the conditions of his right of residence or from taking measures, within the limits imposed by Community law, either to withdraw his residence permit or not to renew it’.
167 Case C-165/14 Rendón Marín, EU:C:2016:675, para 62 (emphasis added).
168 Chenchooliah (n 153), para 87.
169 See Section D of the Decision of the Heads of State or Government, meeting within the European Council, concerning a new settlement for the United Kingdom within the European Union, 18–19 February 2016.
170 AG Bot in Trailers (n 59) para 101 of the Opinion.