Limits to Express Derogations and Judge-Made Public Interest Grounds

The primary limit set to the potential defence of national measures restricting the free movement on the basis of either express derogations or public interest grounds is compliance with the principle of proportionality, i.e. the measure in question must be suitable, necessary and reasonable for the attainment of the particular public interest objective pursued. As a rule, the question of suitability is answered in the affirmative except in cases where the national legislation or policy does not reflect a genuine concern to protect the public interest(s) in a consistent and systematic manner (e.g. Case 243/01, Gambelli [2003] ECR I-13031). As regards, however, necessity (i.e. the question where the same public interest can be achieved by other, equally effective but less restrictive means) and reasonableness (i.e. the question whether the measure is not excessive in its scope or does not go beyond what is necessary for the attainment of the public interest objective pursued), the extent of the review of proportionality by the Court of Justice seems to vary significantly, depending on the subject-matter at hand (“sliding scale of judicial review”); ranging from a more rigid proportionality test - e.g. with regard to express derogations such as public policy (Joined Cases 115 and 116/81, Adoui and Cornuaille [1982] ECR 1665) or in fields that seem to have been pre-empted by EU law or extensively harmonised by secondary legislation, such as consumer protection or the fairness of commercial transactions (Case C-470/93, Mars [1995] ECR I-1923; Case C-220/98, Lancaster [2000] ECR I-117) to a less intensive and very lax or deferential proportionality test – e.g. with regard to fields that are not (fully) harmonised and/or where Member States enjoy a very wide margin of discretion, such as the protection of public health (Case C-429/02, Bacardi [2004] ECR I-6613) or the field of gambling (Joined Cases C-338/04, C-359/04 and C-360/04, Placanica [2007] ECR I-1891).

A second limit set to the defence of restrictions on free movement relying on either express derogations or judge-made public interest grounds is the prohibition of arbitrary discrimination (e.g. Case C-55/94, Gebhard [1995] ECR I-4165).

A third limit is the exclusion of purely economic / budgetary considerations (e.g. Case C-109/04, Kranemann [2005] ECR I-2421).

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