European public policy and restriction of free movement of persons in EU law

Abstract

The public policy exception is an important tool for Member States to derogate from freedom of movement provisions, especially in the area of freedom of movement of persons. Whilst its use has been framed by the Court of Justice at European level, the exact definition of what public policy covers has traditionally been left to the national authorities. In a relatively recent evolution, the Court of Justice started to introduce European elements of definition within the public policy exception, by referring to European norms such as legislations on drug trafficking or arts 2 and 3 TEU. This first step towards the idea of a European public policy exception triggers questions as to the model of adjudication of such an exception in its European dimension. This Article argues that the current model, which is based on a wide margin of discretion for Member States, would be unfit for the adjudication of a European public policy exception. Instead, for cases where the public policy interest is not only national but also European, the conflict between freedom of movement of the individual and the (European) public policy threat they represent should be understood as a conflict between European interests. The resolution of such a conflict would then entail a reconciliation of those interests at European level.