Express Derogations

Express derogations can be relied upon in order to justify obstacles to the free movement raised by either distinctly applicable (i.e. directly discriminatory) or indistinctly applicable national measures. Primary law prescribes the following express derogations from the free movement provisions:

Art. 36 TFEU/ex-Art. 30 EC (free movement of goods)

Applies only to the quantitative restrictions and measures having equivalent (Art. 34 TFEU), while there are no express derogations from the prohibition of customs duties and charged having equivalent effect (Arts. 28 and 30 TFEU):

The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of 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. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

Art. 45(3)-(4) TFEU/ex-Art. 39 EC (free movement of workers):

1. Freedom of movement for workers shall be secured within the Union.  

3. ... subject to limitations justified on grounds of public policy, public security or public health: ...

4. The provisions of this Article shall not apply to employment in the public service.

Arts. 51(1) and 52(1) TFEU/ex-Arts. 45(1) and 46(1) EC (freedom of establishment) read with Art. 62 TFEU/ex-Art. 55 EC (free movement of services):

Article 51(1) TFEU

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.

Article 52 (1) TFEU

1. The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.

Article 62 TFEU

The provisions of Articles 51 to 54 shall apply to the matters covered by this Chapter.

Art. 65 TFEU/ex-Art. 58 EC (free movement of capital):

1. The provisions of Article 63 shall be without prejudice to the right of Member States:

... (b) to take all requisite measures to prevent infringements of national law and regulations, in particular in the field of taxation and the prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security.

3. The measures and procedures referred to in paragraphs 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.

Art. 21(1) TFEU/ex-Art. 18(1) EC

Applies to the free movement of all EU citizens and cross-refers to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

Express derogations from the free movement prescribed by secondary legislation

Express derogations from the free movement prescribed by secondary legislation include among others, most notably, those prescribed in Art. 3(1) of Regulation 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement of workers within the EU [2001] OJ L141/1 (ex-Art. 3(1) of Regulation 1612/68 ([1968] OJ L257/475), which refers to “conditions relating to linguistic knowledge required by reason of the nature of the post to be filled”; and Arts. 27 – 33 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, [2004] OJ L158/77, corrected version [2004] OJ L 229/35), which refer to “restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health”, and have repealed and replaced the earlier Directive 64/221/EEC ([1964] OJ Sp. Ed. L850/117).

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