Restrictions on Free Movement of Workers due to Public Policy, Public Security and Public Health
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Abstract
The subject of the analysis in this publication is the exception of public policy, public security and public health (further to be referred to as an ordre public exception) according to the article 39 (3) of the EC Treaty. In this publication some of the particular issues related to application of the ordre public exception will be emphasized.
Firstly, we will analyze the application of the ordre public exception in regard to the subject which is to be regulated.
In this aspect there was one particular question that caused the major part of discussions – can the right to employment employed be restricted on grounds of ordre public? The right to employment derives from the principle of non-discrimination on grounds of citizenship, which is why this right is incorporated into the article 39 (2) of the EC Treaty, next to the right to equal working conditions. However, the right to employment is once again embedded into the article 39 (3) of the EC Treaty, as well, next to the so-called free movement rights (right of free movement, right of residence and right to stay), that without any doubts fall under the scope of the ordre public exception. In spite of that, we will try to give reasons to deny the ability to restrict the right to employment on grounds of the ordre public. To be noted, that the latter approach is predominant in the doctrine of EC law and has been further endorsed in the case law of ECJ.
Further, on the grounds of the secondary EC law and the case law of ECJ, we will try to distinguish and discuss the conditions of the application of the ordre public exception. Assessing the conditions is especially important, because application of the article 39 (3) of the EC Treaty is related to the so-called ‘restricting the restrictions’ rule, which means, that Member States, applying the ordre public exception, are limited by the particular conditions (restrictions) set by the EC law. The latter restrictions are now set in the Chapter VI of Directive 2004/38, which, in comparison with the former Directive 64/221, sets even more rigorous conditions for the appli- cation of the ordre public exception. The case law of ECJ also plays an important role, assessing and interpreting the abovementioned conditions for the ordre public.
Finally, the issue of the application of the ordre public exception in regard with the territory of the sate will be discussed. In this aspect we raised an issue: can the application of the exception be terminated to a particular part of a national territory? Looking for a possible answer we estimated the case law of ECJ and the approach, proposed in the EC law doctrine.
Firstly, we will analyze the application of the ordre public exception in regard to the subject which is to be regulated.
In this aspect there was one particular question that caused the major part of discussions – can the right to employment employed be restricted on grounds of ordre public? The right to employment derives from the principle of non-discrimination on grounds of citizenship, which is why this right is incorporated into the article 39 (2) of the EC Treaty, next to the right to equal working conditions. However, the right to employment is once again embedded into the article 39 (3) of the EC Treaty, as well, next to the so-called free movement rights (right of free movement, right of residence and right to stay), that without any doubts fall under the scope of the ordre public exception. In spite of that, we will try to give reasons to deny the ability to restrict the right to employment on grounds of the ordre public. To be noted, that the latter approach is predominant in the doctrine of EC law and has been further endorsed in the case law of ECJ.
Further, on the grounds of the secondary EC law and the case law of ECJ, we will try to distinguish and discuss the conditions of the application of the ordre public exception. Assessing the conditions is especially important, because application of the article 39 (3) of the EC Treaty is related to the so-called ‘restricting the restrictions’ rule, which means, that Member States, applying the ordre public exception, are limited by the particular conditions (restrictions) set by the EC law. The latter restrictions are now set in the Chapter VI of Directive 2004/38, which, in comparison with the former Directive 64/221, sets even more rigorous conditions for the appli- cation of the ordre public exception. The case law of ECJ also plays an important role, assessing and interpreting the abovementioned conditions for the ordre public.
Finally, the issue of the application of the ordre public exception in regard with the territory of the sate will be discussed. In this aspect we raised an issue: can the application of the exception be terminated to a particular part of a national territory? Looking for a possible answer we estimated the case law of ECJ and the approach, proposed in the EC law doctrine.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
