PROTEGIDO LIBERTAD ORDEN MIGRATORIO

It has been shown in section 2.3 that current ECJ case law formally requires that only ‘compelling’ or ‘overriding’ reasons in the general interest can serve as a limit to the principle of free movement. It will be argued in the present section, however, that any competing principle may be a limit. Although this seems to be going against settled ECJ case law, chapter 8 will show that no practical difference exists between both approaches, as a result of which the least complicated formulation should be adopted (i.e. the formulation proposed here).

Principles require a maximally extensive protection of interests. The limitation of these interests thus implies a limitation of the prima facie position of a principle. This brings Alexy to the following definition of limits to principles: limits to principles are norms

193 _{Alexy 2002, p 179-184.} 194 _{Alexy 2002, p 214-217.}

195 _{Alexy 2002, p 216. It is, therefore, doubtful whether a wide scope actually leads to a growth in}

limiting prima facie positions of principles.196 _{Alexy then turns to the question of what it}

is that turns a norm into a limit. He starts with a general point. A norm can only limit a principle if it is itself ‘constitutional’. This means that norms are only limits to principles (e.g. constitutional rights) if they are themselves compatible with the constitution197 _(or

in case of EU law: the Treaty on European Union and the Treaty on the Functioning of the European Union). The importance of this cannot be underestimated. It means that all norms which are compatible with norms of a similar status – e.g. enshrined in the constitution or in the TEU and TFEU – are capable of being a limit to a principle. No additional requirements, such as a certain weight of the norm before it can serve as a limit, need to be met.

The question arises as to how to identify limits to a principle. Commanding and prohibiting norms have by definition a limiting character, so that they come within the scope of the principle limited by them. A different approach applies to formative powers. Alexy gives the norms of private law institutions as an example. Without the norms of property law the constitutional guarantee of property would be meaningless. So the norms which give meaning to this constitutional guarantee cannot be regarded as limiting it. In other words, the creation of (private law) powers as such has no limiting character. Sometimes, however, a power may be removed. According to Alexy such a removal would have a limiting character if it hinders the realization of a principle. If the removal of a power obstructs the realization of a principle, it is not merely outworking that principle, but it is limiting it.198 _{An example from tax law relates to the impossibility for a company}

to carry forward losses in case of a change of ownership (e.g. 50% of the shares in the company are acquired by a third party). This removal of the power to offset losses against future profits may equally limit the realization of a principle.

As stated, commanding and prohibiting norms addressed to the citizen, as well as norms removing certain powers, may function as a limit to a constitutional right (a principle). According to Alexy it is of fundamental importance to distinguish between rules and principles in this context.199 _{A rule limits a principle when, if it is applicable, a}

definitive ‘no-liberty’ or ‘no-right’ of the same content applies in place of a constitutional prima facie liberty or right. An example of a no-liberty is the obligation to drive on the right side of the road. This rule limits the basic principle of freedom of action (the general right to liberty of Article 2 of the German Basic Law). An example of a no-right concerns the obligation to grant the tax inspector access to one’s building or premises insofar as this is deemed necessary for purposes of fiscal supervision (Article 50 of the Dutch General Tax Act). This limits the principle of Article 8 of the ECHR in the sense that the owner of these premises has no right to invoke the prima facie right to respect for private and family life. A principle can also act as a limit to another principle, but the mechanism of limitation is different. As Alexy explains, limiting principles on their own are not capable of putting the individual in specific, definitely limited, positions (no-liberties, no-rights). In order to reach a definitive limitation one needs to balance the relevant principle with its limiting

196 _{Alexy 2002, p 181-182.} 197 _{Alexy 2002, p 182.} 198 _{Alexy 2002, p 219-221.} 199 _{Alexy 2002, p 183-184.}

principle. Thus, the extent to which principles limit another principle is not clear from the start – this is the case with limiting rules – but becomes apparent only after a balancing exercise. Alexy gives the following definition of limiting principles: a principle is a limit to another principle if there are cases in which it is a reason that in place of a prima facie liberty or right, a definitive no-liberty or no-right with the same content applies.

Thus, principles are capable of being limited in the light of countervailing principles. The extent of this limitation is itself also limited. An actual limitation of a (constitutional) principle arises only if that principle has a greater weight than the principle underlying the limit in the concrete situation at hand. The question arises of whether the limit should meet additional criteria besides the possession of sufficient weight in such a case and the requirement that it is compatible with the constitution.200 _{Article 19(2) of the German}

Basic Law seems to answer this question positively, because it provides: “In no case may the essence of a basic right be affected.” This provision seems to set another criterion to a norm before it counts as a limit by prohibiting action in the core of each right (a guarantee of an inalienable core as a limit to limits). Alexy takes the position that this provision is redundant in the theory of principles. He explains this position by distinguishing between absolute and relative guarantees of an essential core. According to the relative theory, the essential core is what is left over after a proportionality analysis has been performed (is the limit suitable, necessary and well balanced in relation to the limited principle), even if in the end nothing is left of the principle in an individual case. This would make Article 19(2) of the German Basic Law redundant. According to the absolute theory, however, there is a core to each principle which cannot be limited under any circumstances. Alexy rejects the absolute theory which implies that there is such a thing as absolute principles. He explains this as follows. Principles can be related either to collective interests or individual rights. If an absolute principle relates to a collective interest, constitutional rights of others would be non-existent in that area. Obviously, this cannot be the case. If an absolute principle guarantees individual rights it may result in a conflict with itself if the right it protects of one person comes into conflict with the similar rights of other individuals; in such a case the latter must give way, which is inconsistent. From this, Alexy draws the conclusion that absolute principles are either incompatible with constitutional rights or can only apply where the rights which they create benefit just one person.201 _{This shows that principles}

are by their very nature relative and never absolute. This does not mean, however, that relative limits cannot look like absolute limits in concrete cases. Alexy argues that the more a principle is restricted, the more ‘resistant’ it gets: the strength of the countervailing principles has to grow disproportionately. This, Alexy argues, corresponds to the ‘law of diminishing marginal utility’. There are thus conditions under which it is almost certain that no countervailing principle will take priority. The level of certainty, however, remains a result of the relation of the different interests involved.202

It will be clear from the above that a ‘compelling interest’ test does not form a part of Alexy’s theory. The process of optimization of competing principles evolves around the aim or reason of the measure which infringes a principle. Alexy’s theory does not

200 _{Alexy 2002, p 192-193.} 201 _{Alexy 2002, p 62.} 202 _{Alexy 2002, p 195.}

require that this aim has any special weight in advance. It does not have to be ‘compelling’ or in any other way special. Also, nothing in Alexy’s theory prioritizes rights from the start. There is no conceptual hierarchy between the principle and its limitations, because both the principle and its limitations are interests that seek optimization of legitimate interests.203 _{Neither does it seem reasonable to overprotect certain interests through a}

compelling interest test. Indeed, if proportionality analysis, taken seriously, means that all relevant considerations must be taken into account and accorded the weight they deserve, then what could justify protecting an interest beyond what proportionality requires?204

According to Kumm, the absence of a compelling interest test has at least two advantages. In the first place, a court which uses the model of constitutional rights as principles might plausibly produce better outcomes because of the emphasis this model places on reason- giving in concrete cases. In the second place, this reason-giving in concrete cases without the development of a list of possible ‘compelling’ aims improves the way in which the courts justify their decisions to the public. Such a list may be perceived as exhaustive and would in each case require an in-depth investigation into precedents which would have to reveal whether a certain motive is sufficiently fundamental or compelling. This may result in a public rights discourse which is “shrill, dogmatic, and categorical”.205 _{A possible}

illustration of this is provided by Lang who has argued that “the ECJ should refrain from introducing new grounds of justification that lead to uncertainty”.206 _{It is, in my view, a}

fundamental misconception that a court would itself ‘introduce’ justifications, because a court merely examines which objectives underlie a certain measure and whether these objectives may serve as a limit to a principle. Lang is, in my view, however right to point out that the approach advocated by Kumm may lead to legal uncertainty if court decisions become wholly unpredictable. This seems to be a temporal problem, because the case law tends to arrive at categorizations for similar problems: the collisions of principles in similar cases tends to lead to ‘rules’ which are relatively clear to taxpayers and Member States.207