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.
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Chapter
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.
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Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on the Human Rights Act 1998 (HRA), which was introduced to allow individuals to argue cases involving rights contained in the European Convention on Human Rights (ECHR) directly before a UK court. It first explains the background and rationale underlying the HRA, focusing on the arguments for and against a Human Rights Act, as well as the human rights that are covered and not covered by the HRA. The chapter then discusses the judicial powers/duties and remedies under the HRA, along with powers of derogation and reservation, with an emphasis on ECtHR case law, the interpretation clause, and declarations of incompatibility with the Convention rights. In addition, it examines the HRA’s use of proportionality and judicial deference doctrines when deciding whether an act by a public authority is incompatible with a Convention right. The chapter concludes by assessing the future of the HRA.
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Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter focuses Convention rights that are considered ancillary by virtue of the fact that they do not in themselves establish any substantive human rights but are relevant to the way the substantive rights are put into effect. Specifically, the chapter discusses Article 14, which prohibits discrimination in the way Convention rights and freedoms are secured; Article 15, which allows states to derogate from their responsibilities under certain circumstances; Article 16, which allows states to restrict the political activities of aliens; Article 17, which authorises the ECtHR and national courts to refuse to uphold the rights of those who would use them to undermine the rights of others; and Article 18, which insists that rights and freedoms in the Convention can be restricted and qualified.
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Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter first discusses the freedom of establishment, distinguishing between the freedom of establishment for natural persons and the freedom of establishment for legal persons; and then considers the freedom to provide and receive services, explaining the possible derogations to both freedoms.
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David Harris, Michael O’Boyle, Ed Bates, and Carla Buckley
This chapter discusses Article 15 of the European Convention on Human Rights, which enables a state to unilaterally derogate from some of its substantive Convention obligations in public emergencies threatening the life of the nation. The provision is therefore of great importance to the Convention’s general integrity and to the protection of human rights in situations where individuals may be especially vulnerable to the actions of the state in response to a public emergency.
Chapter
Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter first discusses the freedom of establishment, distinguishing between the freedom of establishment for natural persons and the freedom of establishment for legal persons; and then considers the freedom to provide and receive services, explaining the possible derogations to both freedoms. Finally, there is consideration of the impact of Brexit on the freedom of establishment and the freedom to provide and receive services.
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This chapter discusses the reality of human rights protection within States. It addresses the limitations of various rights and the extent to which States can deviate from responsibility in terms of international human rights law. It covers issues such as State discretion in selecting and applying rights, particularly through derogations, reservations, declarations, and denunciations. These are issues which impact on almost all human rights and almost all States in some way.
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This chapter examines the specific derogations under Article 36 TFEU, the mandatory requirements developed by the Court, and the application of the principles of proportionality and fundamental rights. It considers the so-called ‘Mutual Recognition’ Regulation adopted as part of the Commission’s 2007 ‘Package on Internal Market for Goods’ and its revision by Regulation 2019/515
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This chapter examines the nature and diversity of human rights, rather than any particular right. It looks at issues such as the universality, interdependence, and indivisibility of rights. It points to the issue of justiciability and emphasizes the obligation of States in both its negative, as well as its positive, dimension. The chapter examines the role of derogations and reservations to human rights treaties, as well as cardinal principles in such treaties, namely, the margin of appreciation and the scope of application. Finally, the chapter examines in some detail the key aspects and distinctions in international humanitarian law, such as the distinction and legal consequences between combatants and civilians and others.
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This chapter examines the express powers given to the Member States by Union law to prevent or restrict migrants from enjoying in full the rights enjoyed by workers, the self-employed, providers/receivers of services, and of citizens in the host state. The express derogations laid down by the Treaty fall into two categories: general derogations (public policy, public security, and public health); and specific derogations (employment in the public service). It also examines the exceptions found in the Citizens’ Rights Directive 2004/38.
Chapter
This chapter examines the specific derogations under Article 36 TFEU, the mandatory requirements developed by the Court, and the application of the principles of proportionality and fundamental rights. It considers the so-called ‘Mutual Recognition’ Regulation adopted as part of the Commission’s 2007 ‘Package on Internal Market for Goods’ and its revision by Regulation 2019/515.
Chapter
This chapter discusses the reality of human rights protection within States. It addresses the limitations of various rights and the extent to which States can deviate from responsibility in terms of international human rights law. It covers issues such as State discretion in selecting and applying rights, particularly through derogations, reservations, declarations, and denunciations. This builds on the introduction to treaty law provided in Chapter 1. These are issues which impact on almost all human rights and almost all States in some way. Cases and communications are drawn on to illustrate the practical implications.
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This chapter examines the rules concerning free movement of payment and capital within the European Union provided in Articles 63, 64, 65 and 66 of the Treaty on the Functioning of the European Union (TFEU). It explains the scope of and derogations to the free movement of capital. The chapter also considers restrictions on free movement of capital between Member States and third countries. It highlights the willingness of the Court of Justice (CJ) to borrow principles (i.e. rule of reason) from the other freedoms. This chapter also considers briefly the provisions relating to monetary and economic union and the developments in the light of the financial crisis.
Chapter
This chapter examines the rules concerning free movement of payment and capital within the European Union provided in Articles 63, 64, 65 and 66 of the Treaty on the Functioning of the European Union (TFEU). It explains the scope of and derogations to the free movement of capital. The chapter also considers restrictions on free movement of capital between Member States and third countries. It highlights the willingness of the Court of Justice (CJ) to borrow principles (ie, rule of reason) from the other freedoms. This chapter also considers briefly the provisions relating to monetary and economic union and the developments in the light of the financial crisis.
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David Harris, Michael O’boyle, Ed Bates, Carla M. Buckley, KreŠimir Kamber, ZoË Bryanston-Cross, Peter Cumper, and Heather Green
This chapter discusses Article 15 of the European Convention on Human Rights, which enables a state to unilaterally derogate from some of its substantive Convention obligations in public emergencies threatening the life of the nation. The provision is therefore of great importance to the Convention’s general integrity and to the protection of human rights in situations where individuals may be especially vulnerable to the actions of the state in response to a public emergency.
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This chapter examines reservations and derogations, the principal means by which a Contracting Party can avoid the full application of certain provisions of the European Convention on Human Rights (ECHR). It explains that Article 57 of the ECHR allows reservations to certain provisions, while Article 15 permits Contracting Parties to exclude the operation of certain Convention rights on a temporary basis. The chapter also discusses provisions of Articles 17 and 18 which seek to ensure that the Convention is not used to undermine the scheme of protection set out in it, and also considers the limitation of the use of restriction on rights.
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This chapter examines the prohibition of ill-treatment under the European Convention on Human Rights (ECHR). It discusses the provisions of Article 3 of ECHR and explains that the fundamental character of the prohibition is affirmed by the fact that no derogation in respect of its provisions is permitted even in time of war or public emergency. It considers the definition of ill-treatment as developed by the Court. The chapter analyses the judgments made by the Strasbourg Court in relevant cases including removal of a person from the State, investigations, and detention. It also explores evidential issues connected with proving conduct falling within Article 3 and considers the provisions of the European Convention for the Prevention of Torture.
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This chapter examines the express powers given to the Member States by Union law to prevent or restrict migrants from enjoying in full the rights enjoyed by workers, the self-employed, providers/receivers of services, and of citizens in the host State. The express derogations laid down by the Treaty fall into two categories: general derogations (public policy, public security, and public health); and specific derogations (employment in the public service). It also examines the exceptions found in the Citizens’ Rights Directive 2004/38
Chapter
This introductory chapter introduces the book, which is on modern international human rights law. It also introduces key concepts in public international law to ensure those not familiar with that discipline understand sufficiently the relevant concepts in order to work successfully with international human rights. This chapter also outlines the structure of the book.
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