Exceptions from EU Free Movement Law: Derogation, Justification and Proportionality (Modern Studies in European Law)

This collection of essays brings together contributions from judges, legal scholars and practitioners in order to provide a comprehensive assessment of the law and practice of exceptions from the principle of free movement. It aims: The book analyses economic, social, cultural, political, environmental and consumer protection justifications. These are examined in the light of the rebalancing of the EU constitutional order introduced by the Lisbon Treaty and the implications of the financial crisis in the Union. Volume 66 in the Series Modern Studies in European Law Foreword Preface Contents List of Contributors Table of cases 1 The Exceptions to the Four Freedoms: The Historical Context 2 Economic Justifications and the Role of the State I. Introduction II. The Constitutional Dimension III. The Cases IV. The Bigger Picture V. Conclusion 3 Citizenship: Reallocating Welfare Responsibilities to the State of Origin I. Introduction II. Non-economic Migration, the Welfare State, and Economic Justifications III. The More Recent Case Law of the Court: Economic Justifications and Allocation of Responsibilities between Member States IV. The Member State of Nationality and its Responsibilities V. Access to Welfare Benefits: the Economic Link and the Sense of Belonging VI. Conclusions 4 (Dis)Enfranchisement and Free Movement I. Introduction II. The European Union as a Union of Democracies and as a Democratic Union III. The Right to Vote and the Exercise of Free Movement in the European Union IV. EU Citizenship: Squaring the Circle between Democracy and Free Movement? V. The EU Citizen"s Right to Vote in Member States" Municipal Elections VI. The EU Citizen"s Right to Vote in Elections to the European Parliament VII. The UK"s EU Referendum Franchise and EU Law VIII. R (on the application of Shindler and another) v Chancellor of the Duchy of Lancaster and another ix. Conclusion 5 Social Justifications for Restrictions of the Right to Welfare Equality: Students and Beyond I. Introduction II. Social Justifications and the Social Mandates of the Treaty III. Economic Considerations as a Function of Social Objectives? IV. Towards a Communitarian Approach to Solidarity? The Centrality of Integration Requirements V. Proportionality Assessment: the Role of Integration and of Directive 2004/38 VI. Concluding Remarks and Future Perspectives 6 The Worker Protection Justification: Lessons from Consumer Law I. Introduction II. The Worker Protection Justification and its Limits III. The Outcome in Cases where States Invoke Worker Protection IV. The "National" Worker Cases V. Migrant and Posted Worker Cases VI. Conclusions 7 Cultural Policy Justifications I. Introduction II. The Constitutional Framework of Culture and EU Law: From Excluded Field to Constitutional Value III. The Case Law before Lisbon: Cultural Policy as an "Ordinary" Legitimate Interest IV. Post-Lisbon Case Law: Uneven Recognition of National Regulatory Choices V. Conclusion: How Much Cultural Diversity in the European Union"s Internal Market? 8 Morality, Free Movement and Judicial Restraint at the European Court of Justice I. Introduction II. The Interaction between Morality and Legality in EU Free Movement Law III. Morally Laden Express Derogations from Free Movement IV. Moral Justifications as Judge-made Public Interest Exceptions to Free Movement V. Conclusions 9 The Constitutional Dimension of Public Policy Justifications I. Introduction II. Doctrinal Basics and Conceptual Foundations III. The Federal Question IV. Theoretical Arguments for National Discretion V. Conclusion 10 Public Security Exceptions and EU Free Movement Law I. Introduction II. Public Security in EU Primary Law-The Case of Trade III. Public Security in Secondary Legislation IV. Wholly Exceptional Clauses in Primary Law V. Conclusion 11 Free Movement, the Quality of Life and the Myth that the Court Balances Interests I. Introduction II. The Meaning of Quality of Life III. Free Movement and Quality of Life IV. Feel the Quality, Measure the Width V. Reconciliation v Balancing VI. The Balancing Myth VII. Deviant Case Law: When Domination Cannot Hide VIII. Quality of Life and Derogation from Free Movement: A Conclusion 12 Justification, Proportionality and Consumer Protection I. Introduction II. The Rise of Consumer Protection as a Justification: Public Health III. Protection of the Economic Interests of Consumers: Beyond Article 36 TFEU IV. Proportionality as Politeness V. Regulatory Room to Breathe VI. Alignment with Fundamental Rights / Margin Appreciation Cases VII. Alignment with Proportionality Review in the Context of Review of EU Measures VIII. Cases before National Courts IX. Conclusion 13 The Proportionality Test: Constructive Dialogue between the English and Scottish Courts I. Legal Context: The Proportionality Principle II. English and Scottish Legislation Banning Tobacco Vending Machines and the EU Law Challenges to Those Bans III. The Status of the "Manifestly Inappropriate" Test as Part of the Proportionality Principle IV. Does Identity of the Author of the National Measure Matter? V. The Relationship between Article 36 TFEU and the Convention/Charter VI. Conclusions 14 EU Secondary Legislation and its Impact on Derogations from Free Movement I. Introduction II. Two Types of Legislative Intervention and the Reaction of the Court III. The Role of the EU Legislature in the Internal Market Context IV. The Role of the Court of Justice V. Conclusion 15 Primary Laws: Judging Free Movement Restrictions after Lisbon I. Introduction II. Free Movement and Public Interest in Primary EU Law: An Overview of the Lisbon Amendments III. Interpreting the Lisbon Amendments IV. Article 4(2) TEU and Respect for National Identity: National or Union Public Interest? V. Conclusion Index The exceptions to the four freedoms : the historical context / David Edward -- Economic justifications and the role of the state / Jukka Snell -- Citizenship : reallocating welfare responsibilities to the state of origin / Eleanor Spaventa -- (Dis)enfranchisement and Free movement / Aidan O'Neill -- Social justifications for restrictions of the right to welfare equality : students and beyond / Sara Iglesias Sanchez and Diego Acosta Arcarazo -- The worker protection justification : lessons from consumer law / Catherine Barnard -- Cultural policy justifications / Bruno de Witte -- Morality, free movement, and judicial restraint at the European Court of Justice / Dimitrios Doukas -- The constitutional dimension of public policy justifications / Daniel Thym -- Public security exceptions and EU free movement law / Panos Koutrakos -- Free movement, the quality of life, and the myth that the court balances interests / Gareth Davies -- Justification, proportionality, and consumer protection / Stephen Weatherill -- The proportionality test : constructive dialogue between the English and Scottish courts / Malcolm Jarvis -- EU secondary legislation and its impact on derogations from free movement / Phil Syrpis -- Primary laws : judging free movement restrictions after Lisbon / Niamh Nic Shuibhne This collection of essays brings together contributions from judges, legal scholars and practitioners in order to provide a comprehensive assessment of the law and practice of exceptions from the principle of free movement. It aims: – to conceptualise how justification arguments relating to exceptions to free movement operate in the case law of the Court of Justice of the European Union and national courts; – to develop a comprehensive and original account of empirical problems on the application of proportionality; – to explore the legal and policy issues which shape the interactions between the EU and national authorities, including national courts, in the context of the efforts made by Member States to protect national differences. The book analyses economic, social, cultural, political, environmental and consumer protection justifications. These are examined in the light of the rebalancing of the EU constitutional order introduced by the Lisbon Treaty and the implications of the financial crisis in the Union.