Public Policy Justifications and Imperative Requirements: A Sliding Scale of Review of Restrictions on Free Movement of Persons

This chapter critically examines the interaction between the two main categories of justification grounds for restrictions on free movement of persons in the EU (ie. express derogations and judge-made overriding requirements in the public interest). It critically assesses the highly nuanced, or even incoherent, approach adopted by the Court of Justice of the EU (CJEU) in striking a balance between the internal market freedoms and the Member States’ regulatory autonomy, including a diversity of standards and a variable intensity applied to the judicial review of justifications of restrictions and their burden of proof, and especially the assessment of whether they comply with the principle of proportionality. The chapter introduces and develops the doctrine of a sliding scale of review, which depends on the level of EU harmonisation and/or the level of discretion enjoyed by national authorities in the pursuit of the public interest objective(s) in question. This may range from a centralised (pre-emptive) or (more) stringent review by the CJEU to a growing tendency for judicial restraint and deference to the national authorities’ margin of appreciation, allowing the scaling down of the intensity of scrutiny of Member States’ action, and/or an increasing decentralisation of the decisions regarding the justification and the proportionality of restrictions to national courts. The analysis explores the interplay of the principles of proportionality and non-discrimination – or other related limits arising from the principles of consistency, transparency or prohibition of abuse – and lays the foundations of an original taxonomy of public interest justifications depending on the varying intensity of judicial review they are likely to attract.