Derogations

Question 1

Van Duyn v Home Office

Answer 1

Facts: a Dutch national who wanted to work as a secretary for the Church of Scientology – membership of the church was permitted in the UK but she was refused entry into the UK because British authorities considered the activities of the church as socially harmful

ECJ held that an individuals’ present association with an organisation could be considered personal conduct because it reflects participation in the activities of the organisation and identification with its aims. The organisation’s activities need not to be unlawful before a member state could rely on the public derogation (socially harmful then its ok)

The derogation can be used to put restrictions on nationals of another MS even though there are no similar restrictions placed on its own nationals
Public policy derogation

Question 2

Adoui and Cornuaille

Answer 2

ECJ held that it was arbitrary to rely on the derogation to expel or refuse admission to nationals of another MS by reason of their conduct where its own nationals would not be subjected to repressive measures intended to combat the same conduct

Question 3

Bonsignore

Answer 3

Deportation cannot be effected for the purpose of deterring others

ECJ emphasised that measures adopted on the grounds of public policy and public security could not be justified on the basis of factors extraneous to the individual case.

A deportation order may only be used for breaches of the peace and public security which might be committed by the individual affected

Question 4

R v Bouchereau

Answer 4

1) The personal conduct must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society
2) Past criminal convictions are not in themselves a ground for deportation

Question 5

Rutili

Answer 5

Public policy derogation must be proportional and compatible with fundamental human rights (ECHR)

Facts: public policy derogation cannot be used to justified an order prohibiting an Italian national from entering a particular region of France – it can only be used to justify the expulsion from the entire country of France

Also acknowledged that restrictions on fundamental human rights must be ‘necessary in a democratic society (enshrined in article 8-11 of ECHR

Question 6

Orfanopoulos

Answer 6

Public policy derogation must be proportional and compatible with fundamental human rights (ECHR)

ECJ held that the right to respect for family life guaranteed by Article 8 of ECHR had to be taken into account as he was being removed from a member state where close members of family are living

Question 7

Sotgiu

Answer 7

Public service exemption - must be determined by EU law – not member states themselves what jobs constitutes employment tin the public service

Question 8

Commission v Belgium (public employees)

Answer 8

Removes from article 45 (for the free movement of workers) a series of post that involved direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the interest of the state or other public authorities – Various posts in local authorities fell within the exemption (which were reserved for Belgian nationals in Belgian local authorities)

However, certain roles were not exempted e.g. Posts within Belgian national railway companies