Consistency and Coherence as Conditions for Justification of Member State Measures Restricting Free Movement

Abstract

Consistency and coherence have become increasingly visible in the 2000s as substantive preconditions for the justification of Member State measures restricting free movement. In particular, the ECJ has lately taken to insisting that restrictive national legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it “in a consistent and systematic manner.” In substance, similar exigencies are however also found in earlier case law. Consistency, in this context, may be understood to mean that nothing is allowed to counteract the attainment of the objective (purportedly) pursued by the restrictive measure, whilst coherence may be used to describe that a measure is intelligible as a means to attain the objective. On this basis, it is argued that a requirement of consistency and coherence is neither fundamentally new nor separate from a traditional EU law model for justification, whereby a restrictive measure must pursue a legitimate objective and be suitable, necessary and proportionate stricto sensu. The analysis carried out also shows that some inconsistencies might frequently have to be accepted and do not necessarily thwart justification of a restrictive measure. At the same time, consistency makes even relatively restrictive measures easier to justify; and the better the coherence between a restrictive measure and its objective, the better chances are that a Member State will gain acceptance for it.

Keywords: Consistency, Coherence, Proportionality, Restrictions, Free Movement