Limitations to personal freedoms Tomasz Dąbrowski

! Basic exceptions: restrictions and exemptions! protecting public interest other reasons

Difference? restriction - situation, when prerequisitions from treaties are fulfilled, which effects with a inability to execute freedom (art. 51) derogation clauses (specific for each freedom) exemption - provision that excludes some abstract fact from the scope of the freedoms (art. 52)

Derogation clauses Van Duyn - C-41/74 public policy, public security, Directive 2004/38 public policy, public security, public health. Van Duyn - C-41/74

Pierre Bouchereau

Omega Actions taken and interpretation of terms like „public security” are within competences of MS, but under supervision of the EU.

Directive 2004/38 - art. 27 Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted (Bonsignore).

Directive 2004/38 - art. 29 diseases with epidemic potential as defined by the relevant instruments of the World Health Organization other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the MS

Exemptions Sotgiu employment in the public service the exercise of official authority (Directive 2006/123): bailiff notary Sotgiu

Exemption applied with accordance to the treaties fact of being emploee/officer/official - irrelevant based on private/public law - irrelevant possibility to extract specific activities and reserve them for MS’ own citizens - granted

Posts reserved for citizens (C-149/79) - 1/2 connected with direct/indirect participation in public service - must be entrusted with the exercise of powers conferred with the public law (for example - physical strength vs citizen) the responsibility for safeguarding the general interests of the MS (internal/external safety)

2/2 specific relations between citizen and his/her State mutuality of rights and duties resulting from the bond of citizenship banned: refuse to hire a foreigner, because in the future he/she might get promoted to post with wider scope of competences/managerial functions

Examples of unacceptable posts nurses, teachers electricians, carpenters, gardeners, architects, employees of public research entities.

MANDATORY REQUIREMENTS

SAGER (C-76/90) the freedom to provide services may be limited only by provisions which are justified by imperative reasons relating to the public interest and which apply to all persons or undertakings pursuing an activity in the State of destination, in so far as that interest is not protected by the rules to which the person providing the services is subject in the Member State in which he is established. In particular, those requirements must be objectively necessary in order to ensure compliance with professional rules and to guarantee the protection of the recipient of services and they must not exceed what is necessary to attain those objectives.

CATALOGUE good administartion/courts - Van Binsbergen professional/disciplinary rules - Gebhard, Kraus protection of employees protection of culture language policy - Anita Groener reputation of financial sector national and constitutional identity of MS - Grigan, Omega

Basic conditions of measures without discrimination! justified by demands of public interest proportionate

Services of particular importance for MS games of chance other - relating values protected in constitutions Grogan Omega Schmidberger

OTHER LIMITATIONS protective caluses one MS in extraordinary situation (influx of immigrants entities offering services for public interest (art. 106) production of weapons… previous obligations of MS secondary law directive on services - casinos, non-economical services etc.