Public Interest and the fundamental freedoms of the EU internal market

According to Art. 26(2) TFEU (ex-Art. 14 EC),

“the internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties”. 

Free movement of goods entails the prohibition of customs duties and charges having equivalent effect (Arts. 28 and 30 TFEU / ex-Arts. 23 and 25 EC); and, more importantly the prohibition of quantitative restrictions (on imports or exports) and all measures having equivalent effect (Arts. 34-35 TFEU / ex-Arts. 28-29 EC).

Free movement of persons comprises the free movement of workers (Art. 45 TFEU), the freedom of establishment of self-employed professionals and companies (Arts. 49 and 54 TFEU / ex-Arts. 43 and 48 EC), and the more general and overarching guarantee of the free movement of EU citizens (Art. 21 TFEU / ex-Art. 18 EC), which also includes the protection of the free movement of EU citizens who are not economically active either as workers or self-employed professionals (e.g. jobseekers, students or pensioners).

Free movement of services entails the freedom to provide or receive any cross-border economic activity, which is exercised on a temporary basis in the Member State of destination (or host Member State) and which is not governed by the provisions relating to the free movement of goods, persons or capital. (Arts. 56-57 TFEU / ex-Arts. 49-50 EC).

Art. 63 TFEU (ex-Art. 56 EC) prohibits all restrictions on the movement of capital and payments between Member States and between Member States and third countries.

Public interest provides valid grounds for justifying derogations from or restrictions on the free movement provisions on goods, persons, services and capital. There are basically two types of such public interest justifications: on the one hand, the express derogations, which are explicitly and exhaustively prescribed by the Treaty or secondary legislation; and on the other hand, the judge-made public interest grounds, which have been developed as an open-ended list by the case-law of the Court of Justice. 

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