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:

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

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

3.1 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

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 [36] 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.

4.1 General principles

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

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.

5.2 Appropriateness

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

5.3 Necessity

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.

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.

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.