ABSTRACT
Summary 705
25.1 Introduction 707
25.2 The concept of “employment in the public service” and “the exercise of official authority” 707
25.3 Derogations justified on the grounds of public policy, public security and public health 710
25.4 Protection against expulsion for long-term residents and minors in a host Member State 714
25.5 Procedural Safeguards under Directive 2004/38/EC 716
Aide-mémoire 718
SUMMARY
1. There are two main Treaty-based exceptions to the free movement of persons. The first allows a host Member State to restrict access of EC migrant workers to “employment in the public service” (under Article 39(4) EC) and of self-employed persons to posts where it is necessary for the holder to “exercise official authority” (under Article 45 EC). The second applies to all persons exercising their right to free movement within the EU and is based on the grounds of public policy, public security and public health. 2. The ECJ has interpreted the first exception as meaning that only high profile posts connected with the vital interests of a Member State can be reserved to nationals of a host Member State, for example, that of a judge or other posts in the higher echelons of the civil service, or the police or the armed forces. It is submitted that the only difference between Article 39(4) EC and Article 45 EC is that under Article 45 EC a Member State is allowed to rely on the exception when holders of the post carry out activities connected with the exercise of official authority “occasionally” while under Article 39(4) EC holders of a post are required to exercise the official authority on a regular basis and the exercise of official authority must constitute a major part of their activities. 3. The second exception concerns derogations based on public policy, public security and public health. None are defined in EC law. All have been restrictively interpreted by the ECJ so that
Member States’ discretion, when denying an EC national the right to move freely and reside in a host Member State, can only be exercised within the limits allowed by EC law, in accordance with the requirements of the principle of proportionality. This restrictive approach in the case law was confirmed and clarified by the conditions set out in Directive 2004/38/EC 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. Most articles of the Directive are directly effective. 4. Derogations based on public policy and public security. The concepts of public security and public policy are interrelated and often public security is invoked as an alternative to public policy, for example, terrorist or other criminal activities pose a threat to both public security and public policy. The concept of public policy is vague and bearing in mind that a wide range of activities may be found by a Member State as jeopardising its public policy (such as organising demonstrations, or walking nude in public places, or being a member of a religious sect), it is the most controversial. For that reason Member States are not allowed to determine the scope of either derogation unilaterally. Directive 2004/38/EC and the case law of the ECJ set the following limitations on the use of public policy and public security derogations:
Such measures must be based on the personal conduct of the individual concerned. It does not have to be illegal, but a Member State must provide evidence that it has taken repressive or other effective measures to combat such conduct in order to rely on the derogation. What constitutes personal conduct was clarified by the ECJ in Case 41/74 Van Duyn in which the Court held that past association with an organisation does not count as personal conduct, although present association does.
