INTRODUCTION

This chapter contains an overview of the current system of written and unwritten justifications. It successively addresses the Treaty exceptions (section 8.2.), the rule of reason exceptions (section 8.3.) and the justification on grounds of protecting fundamental rights (section 8.4.). In addition, it briefly considers the important role played by the principle of proportionality in the substantive assessment of a party's reliance on one of these exceptions (section 8.5.). The chapter ends with a brief conclusion (section 8.6.).

TREATY EXCEPTIONS

The free moment provisions do not amount to absolute prohibitions; the Treaty provides for exceptions. Article 36 TFEU, for instance, states that the rules on free movement of goods (Articles 34 and 35 TFEU)

The list of Article 36 TFEU is exhaustive: it contains all written grounds that may justify distinctly and indistinctly applicable measures. Less extensive, but likewise exhaustive is the list of exceptions to the prohibitions of Article 45 TFEU. Under Article 45(3), discriminatory and non-discriminatory restrictions on the free movement of workers may be justified ‘on grounds of public policy, public security or public health’.

This trio returns in Article 52(1) TFEU, which provides as follows in regard to the freedom of establishment (Article 49 TFEU) and the freedom to provide and receive services (Article 56 TFEU):