Who’s a national and who’s a European? Exercising public power and the legitimacy of Art.39.4 EC in the 21st century

Article abstract:

The European Union has experienced dramatic internal and external changes within the last few decades. These changes have deeply affected and changed the traditional concepts, meaning and importance of the principles of sovereignty and nationality. The discussion about the pros and cons of the exception clause to the free movement of workers principle (Art. 39.4 EC) has to been seen from a national and European point of view. Although we agree that there is no reason to transfer to the EU tasks and functions which could be better dealt with on a national basis (e.g. competence to regulate national civil services), this does not apply to the provisions of Art. 39 EC. Today, the number of civil servants moving throughout the Union is very low - a situation which is unlikely to change in the future. This implies that even if Art. 39.4 were deleted there would be no massive increase in mobility in Europe.

In addition, a number of developments have taken place in the past few decades which have rendered Art. 39.4 EC old fashioned. Today it poses artificial obstacles to the free movement principle and is more and more difficult to justify. We therefore propose that Member States should restrict its provisions to specific areas of the public sector.