- 219 reads
Table of Contents: I. Starting point: reaffirming supranational oversight – I.1. Curtailing exceptional non-compliance under art. 72 TFEU – I.2. Distinct political choices with regard to migration – II. Overlap with and distinction from Union citizenship- II.1. Association agreement with Turkey as a test case - II.2. Fahimian: discrepancies within supranational legislation - III. “Chameleonlike”: operationalising context-specific interpretation - III.1. Identifying abstract criteria for the interpretative exercise - III.2. Criteria to be taken into ac-count - IV. Feedback loops with Union citizenship - IV.1. Family members with the nationality of a third state - IV.2. “Integration” and enhanced protection against expulsion - V. Proportionality as a corrective tool - V.1. Con-text-specific outcomes - V.2. Abstract or individual assessment? - VI. Conclusion.
Abstract: Exceptions to the fundamental freedoms are cornerstones of the single market case law. Numerous Court judgments have elaborated upon their meaning over the past 50 years; they take centre stage in university courses across Europe. Much less discussed is a parallel development in the field of migration. More than a dozen cases have explored the meaning of the “public policy" and “public security” caveat in the supranational legislation on migration over the past decade. They exhibit instances of parallelism with free movement law as well as examples of deviation and distinction. Throughout these judgments, the Court gradually established a coherent approach. Judges insist on the uniform meaning of “public policy” and “public security” to start with, while recognising the potential for deviation and context-specific solutions in light of the wording, general scheme, objectives, and drafting history of the instrument under analysis. In the same way as the chameleon lizard adapts its colour to the environment, the interpretation of the public policy and security exception responds to the legal context. Closer inspection of the judicial practice on migration can serve as a case study on the relevant benchmarks for parallelism and divergence in the approach to public policy exceptions in other domains of Union law. In doing so, our analysis will highlight feedback loops with the restrictive twist of the case law on Union citizens. It will also introduce readers to the distinction between an abstract and individualised proportionality test which is rarely discussed by experts of EU law.
Keywords: public policy – public security – free movement – migration – association agreements – proportionality.
-------------------
European Papers, Vol. 9, 2024, No 3, pp. 1366-1384
ISSN 2499-8249 - doi: 10.15166/2499-8249/813
* Professor of Public, European, and International Law, and Director of the Research Centre Immigration & Asylum Law, University of Konstanz, daniel.thym@uni-konstanz.de.
