Proving public interest: The growing impact of evidence in free movement case law

Publishers Abstract:
When national measures restrict the free movement rights conferred by EU law, Member States have the opportunity to argue that their actions are, nevertheless, justifiable and proportionate. This article explores the standard that States must satisfy to prove their public interest claims successfully. It will be argued that a critical information gap on what the Court of Justice expects defendant States to establish has been narrowed through a more concerted focus on proof in recent case law; but that significant issues still demand further attention. The incomplete articulation or inconsistent application of evidence standards can generate a suspicion of instrumental application, a risk compounded by the fact that, as an element of procedural law, a State's approach to standard of proof issues is profoundly shaped by national practices: and therefore by national differences.