Judge-Made Public Interest Grounds

The Court of Justice has developed an open-ended list of public interest justifications (“rule of reason”) for national measures restricting or otherwise impeding cross-border movement of goods, persons, services or capital. Unlike express derogations, judge-made public interest grounds can only be used to justify restrictions on the free movement arising from indistinctly applicable measures, whether they discriminate indirectly against goods, persons, services or capital from other Member States or are non-discriminatory but may otherwise impede market access. If they are satisfied (and if the principle of proportionality is complied with), the measures in question will not be caught in the net of the free movement provisions of the Treaty, i.e. Art. 34 TFEU (on the prohibition of measures having equivalent effect to a quantitative restriction on imports), Art. 45 TFEU (on workers), Art. 49 TFEU (on establishment), Art. 56 TFEU (on services), Art. 63 TFEU (on capital) or Arts. 18 and 21 TFEU (non-discrimination and EU citizenship). From the outset this judge-made rule of reason has been integrated into the principle of mutual recognition as the cornerstone of the internal market. Thus, any good or service lawfully produced or marketed in one Member State, as well as any EU citizen lawfully residing, educated, trained or employed in one Member State, or any company lawfully incorporated under the law of one Member State should be able to lawfully access the market in another Member State without restrictions unless there is a valid reason why such restrictions should be imposed.

Such judge-made public interest exceptions from the free movement provisions of the Treaty include a wide range of grounds, such as the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions, consumer protection, environmental protection, the preservation of media pluralism, cultural policy, the protection of the working environment, compliance with professional qualifications, ethics and standards, road safety, the integrity of the financial sector, the prevention of crime and fraud, the maintenance of the public and social order, the prevention of incitement to squander and gaming, the maintenance of the financial and competitive balance in sports, and the need to ensure the proper functioning of sporting competitions, the need to encourage football clubs to seek new talent and train young players, the specific characteristics and in particular the social and educational function of sports, etc.

They take the form of:  

  • mandatory requirements in the field of the free movement of goods
    e.g. Case 120/78, Cassis de Dijon [1979] ECR 649; Case C-368/95, Familiapress [1997] ECR I-3689
     
  • pressing reasons of public or general interest in the field of the free movement of workers
    e.g. Case C-415/93, Bosman [1995] ECR I-4921; and Case C-325/08, Bernard [2010] ECR -2177
     
  • imperative or overriding requirements in the public or general interest in the fields of freedom of establishment, free movement of services or free movement of capital
    e.g. Case C-55/94, Gebhard [1995] ECR I-4165 (establishment); Case C-288/89, Gouda [1991] ECR I-4007 (services); Case C-367/98, Commission v Portugal (“Golden Shares”) [2002] ECR I-4731 (capital)
     
  • the public interest requirement of establishing a sufficient link with or level of integration into the society or the market of the host Member State in the field of the free movement of (economically inactive) EU citizens
    e.g. Case C-138/02, Collins [2004] ECR I-2703
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