Book review: Exceptions from EU Movement Law – Derogation, Justification and Proportionality
| Published date | 01 September 2018 |
| Date | 01 September 2018 |
| Author | Jaan Paju |
| DOI | 10.1177/1388262718798219 |
| Subject Matter | Book reviews |
Panos Koutrakos, Niamh Nic Shuibhne and Phil Syrpis (eds.), Exceptions from EU Movement Law –
Derogation, Justification and Proportionality, Hart Publishing, 2016, ISBN: 9-781-5099-0034-3
Reviewed by: Jaan Paju, Faculty of Law, Stockholm University, Sweden
DOI: 10.1177/1388262718798219
The anthology Exceptions from EU Movement Law focuses on the justification and proportionality
stages in EU free movement law. By doing so, it differs from most literature on free movement law
which focus on what constitutes a hindrance to the free movement of goods, services, capital or
persons. The anthology is therefore a very welcome ad dition to the literature on the Internal
Market, analysing, discussing but also problematising derogation, justification and proportionality.
The justification stage is something that, in many cases, is given less thought as the widely-
accepted view since Cassis de Dijon is that hindrances are hard to justify. However, it is not true
that the Court of Justice does not pay attention to justification arguments. Think, for example, of
Kohll, Decker, and Dano, where the Court accepted welfare state justifications.
Proportionality is one of the most complex principles in EU free movement law as the Court
sometimes provides guidance, sometimes mixes justification arguments with proportionality argu-
ments and sometimes decides this question itself.
Given the Court of Justice’s tendency over the years to adopt an ever broader understanding of
what constitutes a hindrance to f ree movement, the justificati on stage is now at heart of the
competing poles of integration and autonomy. It is therefore more important than ever that all
stages in an internal market case before the Court of Justice are analysed and discussed.
The anthology comprises 15 chapters written by prominent academics, judges and practitioners.
This mix of contributors generates the added value of a ‘reality check’ on how justification
arguments are constructed, challenged and evaluated.
The reality check starts off with an honest yet insightful foreword by Judge Allan Rosas, of the
Court of Justice of the European Union, in which he emphasises that ‘judges are there to resolve
cases rather than to construe do ctrine’. The legal framework is set out with the primary and
secondary law alongside the facts of each case, the national setting and the parties’ reasoning.
This means that, according to Rosas, ‘an overall and clear picture may be difficult, if not impos-
sible’. From a more positive perspective, however, the foreword highlights the importance of a
consistent legal method when analysing a ‘terrain and material [that] are simply so broad and
diverse’. Rosas’ wise words are taken on board by the editors as the different chapters analyse
various aspects of the internal market and do not aim to provide a general take on justification and
proportionality.
The anthology can be divided into five parts, where David Edward and Jukka Snell, in the first
two chapters provide an overview on the exceptions and the Court’s understanding of economic
justifications vis-a
`-vis the role of the state.
The following chapters (3, 5 and 6) have a social theme. Eleanor Spaventa (chapter 3) takes a
look at the justification reasoning with regard to the recent (harsher and less generous) develop-
ment of Union citizenship. Sara Iglesı´as Sa´nchez and Diego Acosta Arcarazo (chapter 5) discuss
the Court’s understanding of social justification for restricting welfare equality with regard to
students. Finally, Catherine Barnard (chapter 6) conceptualises worker protection from two com-
peting perspectives: worker protection (from the perspective of host states and trade unions
Book reviews 301
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