.1 ^

A,/ ' r -

58 P>c

FREE MOVEMENTOF PERSONS IN THE

ENLARGED EUROPEANUNION

LONDONSweet and Maxwell

CONTENTS

ForewordPrefaceGlossaryTable of European CasesTable of UK CasesTable of European Community TrcatiesTable of RegulattonsTable of DirectivesTable of DecisionsTable of International Treqties qnd ConventionsTable o;f National LegislationTable of Statutory Instruments

PART ONE-FUNDAMENTAL PRINCIPLES OF EU LAW

Chapter l: Treaty Foundations and Institutions

l. Treaty Foundations(a) Introduction(b) The Treaty establishing the European Coal and Steel

Community(c) The Treaty establishing the European Atomic Energy

Community(d) The Treaty establishing the European Econornic

Community(e) The Single European Act(f) The Maastricht Treaty(g) The Amsterdam Treaty(h) Treaty of Nice(i) The Constitution for Europe

2. The EU Institutions(a) Introduction(b) The European Parliament(c) The Council of the European Union(d) The European Commission

vItXXY1Ixxlx

XXXIX

xlixlivxlvi

xlviiixlix

lili i

I -01

1-01I{1

r47

1{8

l-10l -161-18t-22

tJ1

1-29tJ91-31142

t*il

I

CoNTENTs

Chapter 2: The Community Legal Order

L Sources of Community Law(a) Treaties(b) Secondarylegislation(c) Agrcements with Third Countdes(d) Rulings by the ECJ and CFI

2. Principles of Community law(a) Introduction(b) Supremacy(c) Direct Effect(d) Indirect Effect(e) General principles

Chapter 3: Relationship between EU and HumanRights Law

l. The Sources of Human Rights in EU Law(a) The Treaty on European Union(b) The Charte! on Fundamental Rights(c) Relationship between the ECHR and the EU

Charter

2. The Protection of Human Rights by the EuropeanCourt of Justice(a) The path to Human Rights Protection(b) The special protection of the ECHR(c) Consequences today for free movement of persons(d) The impact of the EU Charter on fundamental

dghts(e) The future for Human Rights Protection in the

community legal order

Chapter 4: Union Citizenship

1. Introduction2. Historical Background3. Article l7 EC Treaty: A New Form of Citizenship

(a) Introduction(b) Rights and benefits flowing from Union citizenship(c) Tension between Union and national citizenship

24r

2412-022432482-13

2+72-272-292,36

258

3-01

3{13-{ I344

3-08

3-123 t9321

3-30

4 01

H1q3N9+49412432

[*ii]

A

Collret.rrs

Articlel8: The right of Union Citizens to Move(a) Introduction(b) A restrictive interpretation(c) A resfiictive obligation(d) A free standing right(e) The future of Article l8 EC Treaty

PART TWO-FREE MOVEMENT OF EU CITIZENS AND

THEIR FAMILY MEMBERS

Chapter 5: Beneficiaries of Free Movement Provisions

1. Citizenship of the Union(a) The Union CitizenO) Nationals of Member States(c) Third Country Nationals

2. The Free Movement Rights(a) The right to move and reside: the basics(b) The specified Free Movement Rights(c) Qualifying the limitations and conditions(d) Beyond the basic Free Movement Rights(e) The Citizenh Directive

Chapter 6: Enlargement of the European Union 2004

1. Background(a) Introduction(b) from co-operation to association(c) From association to accession: the Copenhagen

Criteria(d) The other candidate countries and accession

2. Trealy of Accession(a) Introduction(b) The general saheme of the TrcatY(c) The Act of Accession(d) The Protocols(e) The Declarations in the Final Act

3. Free movement of persons under the Accession Treaty(a) Rights of free movernent

[xiii]

+37

439ul4494-57

5{l

5-O15-{ 15-055-33

) J/

)-J /

5-39

5-44546

ffi1

ffi1elfi9

6-l I6-t'l

Gl8Gl86-196_20G216_28

6-30G30

z.

l.L,,rl,sJ--r ::i!:-=rE6edErr.rfrijrritx*;^j lXlF

Corrrurs

(b) Derogation from free movement for w<irkers andservices: the transitional provisions

(c) Family members of CEEC Nationals(d) Measures to be taken by Accession Countries(e) Posted workers(f) The 'Standstill' Provision and other measures

Chapter 7: Workers

G3l6-56642ff i '16 7|

7 01

741

't4r'742'145't46'74'7

7087-08'149

'7-t2'7-137-16'7-44'749'1-.61

8-Ol

8-01

8-018-O4

8-058-068-O88-12

8-15

Introduction(a) Fundamental importance of free movement fot

worKers(b) Treaty provisions on workers(c) Secondarylegislation(d) The community conc€pt of worker(e) Community concept of worker depends on context

The Definition of Worker(a) Generally(b) Services of economic value(c) Services for and under the dircction of another

person(d) Remunemtion(e) Application of principles(f) Work seekers(g) Prcvious emplo).ment(h) Frontier \ryolkers(i) The public service exception

Chapter 8: Establishment and Services

1.

2.

1. Treaty Provisions and Subsidiary Legislation onEstablishment(a) General Treaty aims and relationship with

provisions on workers(b) Secondarylegislation

Concept of Establishment(a) Definition of economic activity(b) Cross-bordercharacter(c) Stable aDd continuous nature of economic activity

3. Establishment of Persons

lxM

5.

CoNTENTs

4. Establishment of Companies(a) Primary establishment-head omce(b) Secondary establishment-branches, subsidiaries and

agencies(c) Nationality of the company(d) Natiomlity of the employees

Tieaty Provisions and Subsidiary Legislation on ServiceProvision and Recipients of Services(a) General Treaty aims and rclationship with

establisbment provisions(b) Articles 49-55 EC Treaty(c) S€condary legislation-Directive 731148

Service Proyiders(a) Economic activity(b) Cross-borderelement(c) Temporary character(d) Nationality of natural persons

7. Companies as Service proyiders(a) Nationality of company(b) Personnel of company

8. Recipients of Services(a) Concept of recipients of services(b) Personal scope of recipients of services

Chapter 9: The Economically Inactive

8-236-2]

8-28

8-.298-338-35

8498-498-51

8-208-2r

8J9

8-388-388-428-458-4'1

8-578-576-)E

9-01

9-{1

9-{69-129-21

9-239-259-309-30

914

l .2.

3.4.5.

Introduction: Beyond the Econonically ActiveGeneral Requirements of the provisions Relatins to theEconomically Inactive(a) Conc€pt of self-sufficienry(b) Sickness insurance

Directive 90/364 (The General Right of Residence)Directive 90/365 (The Retired person)Students(a) Generally(b) Specific provisioDs relating to the dght of residence of

studetrts

lxvl

4.5.

Cor\IImrs

Chapter 10: Family Members

1. Introduction(a) General Community law principles(b) Interelationship with the dght to family life in

xuxE! rrEur! raw

(c) Which family members can be installed with the EUnational?

2. Spouse(a) Legal spouse(b) Unmarried partners(c) Transsexuals

3. Descendants(a) Under the age of 2l(b) Dependent on parents(c) Adopted and foster children

Relatives in the Ascending LineOther Family Mernbers(a) Other dependants(b) Living as palt of the household(c) Beyond the scope of regrrlations

Chapter 11: Right of Residence

1. Introduction(a) Right of residence as a corollary of right to move(b) Deriving the right of residence from the Trcaty

itself(c) Human ghts and proportionality

2. Formalities(a) Declaratory effect of residence permits and visas(b) Member States cannot ask for more than permitted

in legislation(c) Failure to comply vrith formalities(d) Timelimits for providing visas and residence

permits(e) Fees(l) Visas(g) Residence permits

l0 {1

10-o1l0-41

1H6

10-19

10 24t0-2410 32l0-54

tH,410-64l0-6610-68

t0 l3to t510-75t}-'t'7l0-78

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l1-{11l-01

I l {211 {3

l1 {6l l-{8

11-11tt-t'1

ll-20n26tr1'7|-32

t*"i1

CoNTENTs

3. Specific Rights of Residence for the EU Nationals and.theirFamily Members(a) The rights of residence for the five.categories of free

movel(b) Permanentresidence(c) Family members(d) Remaining beyond the worker or self_employed

peffon

. l l -J)

1l-35t l-65I l -85

l1-100

1241

Chapter 12: Discrimination and Other Obstacles toFreedom of Movement

l. General principle of non_discrimination in theCommunity law context(a) Introduction(b) The scope and application of Article 12 EC-heaty(c) Inter-relationship withothernon_discdmination

provisions(d) Indirectdiscrimination(e) Justification

2. Obstacles to the Free Movement of Workers(a) Introduction(b) The provisions of Regulation 161216g(c) Personal scope(d) Material scope(e) Prohibited forms of discrirnination(0 Justification

3. Obstacles to Establishment(a) Definition of restdctions of freedom of

establishment(b) Prohibited discrimination based on natronality(c) Non-prohibitsd restrictions

Mutual Recognition of Diplomas/TrainingUbstacles to Service provisionObstacles to the Exercise of Free Movement by theEconomically Inactive(a) Introduction(b) Application to the econornically inactive

^5.6.

124112-011244

t2-11

t2-t7

12-21t2 2lt2-22l2-2812 3412451249

12-51

t2-51l2-56t2-61

12,68l2-81

12-86t2-8612-89

[xvir]

.

CoNrENrs

Chapter 13: Access to Social Security

1. Introduction2. Social SecuritY Provisions

(a) Introductron(b) Who beDefils("j Th" b"o"fitt

"ou"red by the regulation

(d) Frontier workers

3. Access to Social Security for the "Economically

Inactive"+. a.."rt to So"iof Security Flowing from Citizenship

of the Union

Chapter 14: Exclusion

1. Introductioni.

^C"--""i v f"* provisions on the expulsion and

exclusion of free movers3. Grounds for Exclusion'/Expulsion

(a) Genelalobservatlons(b) Public Policy(c) Public secufltY(d) Public health

4. Procedural Safeguards against Exclusion or Expulsion

of Free Movers(a) Notincation of aecision to exp€l or exclude

(b) Legal remedies

5. The exclusion/expulsion of other EU Nationals

PART THREE-ASSOCIATION AGREEMENTS WITH

THIRD COLINTRIES

Chapter 15: Agreements with Third Countries

1. Treaty Provision for Agreements with Third Countries

2. EEA Agreement(a) BackgroundO) Free movem€nt ol Pelsons

13-{1

13-{1i3-{413,o413-07l3-2613-53

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14-24

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lxfil

3.

A

CoN.TENrs

Agreement with Switzerland(a) Background(b) Free moYement dghts

Agreement with Turkey(a) Background(b) Free Movement of persons

5. Agreements with Bulgaria and Romania(a) Background(b) Free movement of persons

6. Agreernents with Western Balkan States(a) Background(b) Free movement provisions

7. Agreements with other European and Central AsianCountries(a) Background(b) Free Movement Provisions

8. Euro-Mediterranean Agreements(a) Background(b) Free movement provisions

9. Ageements with African, Caribbean and PacificCountries(a) Background(b) Free movement provisions

10. Association Agreement with Chile(a) Backgrouud(b) Free movement provisions

Chrpter 16: Association Agreements in Community Law

l. Introduction2. Mixed Agreements3. The Agreements as a tool to Accession4. Jurisdiction of the ECJ5. Direct effect

15-19t 5-19t5-20

1524rl24tt2't

152815-28l5-31

15l2tl32l!38

154'71547l5-51

t5-5',7l5-59

15-6415-641tr8

l5-71IsJ Tt514

164116421Gl016_1516-24

lxixl

CoNTENTS

CtNrn,t lNo E'qsrtnN CoUNTRIES

Chapter 17: Introduction to the Europe Agreements

1. Backsround to the Agreemenrs2. The S"tructure und Content of the Europe Agreements

3. The Objectives of the Europe Agreements(a) Preamble to the Agreements(b) Article I

Chapter 18: Workers under the Europe Agreements

L lntroductton2. Non-discrimination of Workers

(a) Introductlon(b) Direct eflect

1cj rctationship with national laws permitted by

Article 59(d) Meaning of the non-discrimination provision

(e) The meaning of "legally employed"

(f) The meaning of "worker"

ig; f.-po.ul .tt""t of the non-discrimination provision

for workers

l7-01

l7-{1t'743l7-11l'l-12

18-{1

l8-01l8-06l8-06t 8-07

l8-10l8-14l8-21l8-24

t8-26

18 2818-31

19--01

l9-{1r947194',7t9-11l9-15l9-16

19-1919-1919 2219 2519-30

I

3. Family Members4. Key personnel

Chapter 19: Establishment under th€ Europe Agreemen6

1. Basic Provisions

(d) Nature of activities

lxxl

CourBvrs

(e) The dght of establishment of companies(0 Limitations on the exercise of the right of

establishment

Chapter 20: Right of Entry and Stay under the EuropeAgreements

l. Basic Provisions(a) Article 59(t)(b) The public policy proviso

2. Right of entry and stay as a corollary of right ofestablishment

t9-34

t9-36

3.A

5.

(a) In general in Community law(b) Under the Europe Agreements

FormalitiesFamily MembersExclusion under the Agreements(a) Expulsion on limited grounds(b) Prohibited activities(c) Appeals

20-01

204120412042

204320-t)320 {5

20-382042204420-4420452047

ASSqCIATI'N AGREEMENT WITH TURKE.

l .2.

Chapter 21: Introduction to the Ankara Agreement

l .

Background to the AgreementThe Structure and Content of the Ankara Agreementand the Additional protocol(a) The Ankara Ageement(b) The Additional Protocol

The Objectives of the Ankara Agreement and itsProtocol(a) Preamble to thc Agreement(b) Other provisions in the Agreement and its protocol

Decisions of the Association Council(a) Decisions relating to free movement(b) The direct effect of decisions of the Council of

Association

2t-01

2141

214621462t49

4.

z\- lJ

2t-1421-t6

21-1921-19

2t-32

lxxil

CoNrENrs

Chtpter 2}zWorkers under the Ankara Agreement'

of Assoaiation

2. The Worker's Right to Continued Ernployrnent

(e) The right of residence

(D -m" tigttt of non-discrimination

(g) The standstill clause

Chapter 23: Establishment uniter the Ankara Agreement 23-{l

1. Provisions in the Ankara Agreement and Additional

Protocol(u)- e*utu agt""-ent proYisions relating to

establishment and servrces

tul iiatii"t"Lpttocol relating to establishment and

services

2. The Right of Establishment and Right to Provide

Services under the Agreement(a) Entry aod establishment ..(b) Lawful residence and estabhshment

3. The Standstil l Provision(a) The coocept of a standstill provrsroo

rbr Applicabiliry of the snndstill clause

ic) Tte scope oi rtte standstill clause

Chapter Z: Family Members under the Ankara

Agreement

l. Provision for Family- Members in the Ankara Agreement"

^oO ,t. Decisions of the Council of Association

(a) The A$eemeut(i) Decisions of tte Council of Assoctatton

4,

z24l2241

2244

224922-0922-13

22-i422-5022-5622-63

23-01

234r

2345

23-{823-08

23,1723-1723-2023-23

z4-{r

24--oT2+4124-{5

lxnil

colrrENrs

fust three Years(d) Right of residenc€ of fanily members of workers

after thrce Years' residence

3. Children(a) Provisions in Decision l/80 relating to children(b) Chiklren who have completed vocational training(c) Children and education

4. Family Members of those Established in Business

Chapter 25: Expulsion under the Ankara Agreement

1. Workers and Their Family Members

rights

2. Self-employed Turkish Nationals(a) The self-employed in a regular position(b) Self-employed covercd by the standstill provision

PART FOUR-UK LAW AND PRACTICE

Chapter 26: Introtluction to UK Law and Practice

Chtpter 27t Incorporation of Conmunity Law intoUKLaw

l. Relerrant legislationi. rhr L"gut F

"-"*ork for Community Law in the United

Kingdom(a) IDtroduction(b; Main provisions of th€ Euopean Conmunities'

Act 1972

2+08244824-10

2+15

2+\8

24-3024-30

2441

24-44

241

254r

25-01

25-10

25-ll2ll3

2ffi1

2741

2741

27422742

n44

lxxinl

II

v;'

CoN'TENTS

3. Reference to the ECJ from UK Courts"'

i"j' io""-u-"es in which a case will be referred

from a UK court(b) Which Enghsh courts or tribunals are entided

to refer questions to the ECJ

2749

2'149

27-lr2',1-142'1-16G)

(d)(e)

The final courtAppeals against the making of a reference

Costs

28: Free Movement of Union Citizens anil

Their Families

MembeIS(a) Introduction6j sen"ficiaries of free movement rights

rc) Family members

iil eJru.t.t "f EU Dationals and their familv

members(e) Residence Permits - .(0 Exclusion and expulslon(g) APPeats

4. Accesston(a) Relevant legislatiotr(b) General Provisions(cj workers aud their family members

(d) Work seekers(e) Students(f) Indefinite leave to remarn

5. Social Security and Student Finance

(a) Relevant legislation(b) Social security law overvlerrv

i"j L""r, to to"iut security for A8 nationals

(d) Studentsi""j iJl",i"""r' tot cover€d bv the EEA R€gulations

1.2.3.

Chapter 28-01

28-{ I2842

28-4528-O528-1028-16

28-2928-.34284528-55

28-6128-6128-5228-4'l28''62V'7928-80

28-8128-8128-8228-8628-8928-a9

txxivl

CorreNrs

Chapter 29: Agreements with Third Countries

1. Swiss Agreement(a) ReleYantlegislation(b) General provisions(c) Posted workers

2. The Europe Agreements(a) Relevantlegislation(b) Provision in the Immi$ation Rules(c) Visas(d) On entry(e) In country appliaations(f) The position of overstaye$ and illegal entrants(g) Family members(h) Compatibility of the regime for Bulgarian and

Romanian nationals with Community law

3. EC-Turkey Association Agreement(a) Residence of Turkish workers under Article 6

of Decision 1/80(b) Self-employed Turkish nationals

PART FIVE-APPENDICES

PNMARY LEGISLANON

Appendix l- Tieaty establishing the European Union (excerpts):Articles I 7(2)

Appendix 2- Treaty establishing the European Community(excerpts): Articles 2 , 3 , 5, 12, 13, 17, 1 8, 39-5 5,149,150, 234, 249, 251-255, 300, 310

Appendix 3- Treaty on AccessionAppendix 4- Declarations adopted by the Plenipotentiaries

(annexed to the final act)Appendix 5- Act of Accession, Article 24 and Annex V to the

Treaty on Accession (excerpts): Chapter I(Free Movement of Persons)

S ac a n o,qnv Lte ts 2lrrc N

Appendix 6- Dirrectiva 641221including AnnexAppendix 7- Regulation 1612168Appendix 8- Council Dircctive 68/360/EECAppendix 9- Regrrlation (EEC) 1251/70Aooendix 10- Council Direcnve 72l194lEEC

294r294129422943

29442944294s29-tl29-t429-r'729-2029 23

29-24

29,2'1

29-2'129-31

Al-{l

A2 {lA3-01

A4-41

A5-{ I

A6-01A7-OlA8-{lA9-01

AIHl

Ixxv]

I

Col.rrENrs

ADDendix I l- Council Directive 73I148/EECAiriendix 12- Council Directive ?5/341EECAipendix 13- Council Directive 75I35/EEC

A7REEMEN'\| wrn Tano CqUNTNES

+-

Agreement on the EEA (excerpts): Articles28 -35, Annex VAsreement with Swiss Confederation on Frcem-ovement of persons,O! Ll 14 of 1010412002p. 1-480Ec-Turkey Association Agreement, 1963(excerpts): preamble; Articles 7, 12-14Additional Protocol to EC-Turkey AssociationAgreement (excerpts): Artialss 36-41, 58-59Decision l/80 of Association Council of19 Septembet 1980 on the development ofthe Association-Agreement between E.C. and Bulgaria(excerpts): preamble, Articles l, 38-56, 59

Al1-01Al2 {1AlHIAl4-01Al5-01Al6-01A17-Ol

Appendix 18-

Appendix 19-

Appendix 20-

Appendix 21-

Appendix 22-

Appendix 23-

Al8 { l

A19-Ol

A20-01

.{2l-{ I

n'2241

A23 01

A24{1A25-{ l

A^2641A2741

A28-Ol

A29-{1

UK LEGISLITION

Appendix 24-Appendix 25-Appendix 26-

Appendix 27-Appendix 28-

Appendix 29-

TABLES

Appendix 30-

Index

The Citizen's Directive

Immigration Aat 1988Immigration Rules HC 395, parcs.255-257Immigration EECRezulations 2000 as amendedEuiopean Union (Acc€ssions) Act 2003The Accession (Immigntion and WorkerRegistration) Regulations 2004The Immigration (European Economic Area)and Accession (Amendment) Regulations 2004

A3HI

649

lxx"il

Cuerrrn 1

TREATY FOT]NDATIONS AND INSTITUTIONS

This chapter examines the foundation stones of Community law and charts thedevelopment of the Treatles establishing thi European bommunity and theEuropean Union. The principal Cammunity institutions .rre described, as arethet Dowers. !

l. TREAry FoUNDATTONS

(a) Introduction

The creation of the European Union as a political and econornic collective of 1-01states has been a gradual process that began in 1950 in the wake of theSecond World War. The six original Member Statesrof the European Coala_nd Steel Community (ECSC) aimed to use European integratiori to ensurethat the events of the Second World War would not be r€Deated.2

rrising of 25 Member States.s It rep- l--02rlocs io the world, with a total pop-le. Whilst originally the ECSC and

economic-co-op€ration,leaving"i"il#J;T'ilJ"*::r1l;;t:t".YT:Council of Euope, the European Union is now involved ini ranse of Doht-ical areas including freedom, security and justice, defence and enironmintalprotectron.

Co-operation between the Member States of the European Union is based on 1-03four lounding Treaties:

(a) thr_Treaty establishing the Europea.n Coal and Steel Communiry(ECSC), which was signed on April 18, 1951 in paris, entered into forceon July 23, 1952 and expired on July 23, 2002 (see para. l_07 betow):

(b) the -Treaty establishi g the European Atomic Energy Comrnunity(EAEC), which was signed (along with the EEC Treaty) in Rome onMarch 25, 1957, and entered into force on January l, 1958 (see parasl-{8 to l-O9 below);

1950. This d_ate the 'binhday_ of whar is now lhe EU, is cetebmled anoually as europe Oay.I D.mmark. IrelaEd and rhe United KiDgdom joined in 197j. creece io 198 t, Spa;o uoj lonug-in 1986, Austria, Fmland and Sweden in 1995. On May 1.2004 rhe laryest ;nlars€ment tookplace wilh l0 D€w couotries joinjng: Esronja, Latvia, Littua a, Slovenia, Stovakia, Czech+eej!li:. yalg Cyprus. Poland and Hungary Bulgaria, Romaoia and Turk€y are litely to joitrtbe EU in 2007

I Cermany, France. Belgium, N€rherlatrds, LuxeDbourg and haly.'z It was-6rst proposed by rhe Fremh Fordgn Minister Roben Sclumann in a speech on May 9,

, t3l

Tntarv Fot uoerto'ls A\D INSTIrtmoNsr-o3

{c) the Treaty establishing the European Economic ' Community (EEC)

"' i::it. i#,v ol Rome") (see parail-10 to I'l5 below)r

{d} the Treaty on European Union' which was signed in Maasrricht on

''' ff'lx,1?;l;::i:;''; :}':T* jlll ff r' :i' ilil5T'" I 1 qe 3 ('1he

Each of these Treaties is analysed in further detail below'

r-{6 rhere have ar,e g:.1.I:: n;'.::i"T5t::$:*[fi'-f ?#tIT:",#J"1"rlffi " llt ..'" ;'." f,Htt' J r""ti"'

,",t.,*;,.*iLl';ly,:ff i['|H'*"*1,t1X'"tl':ii:3:n'iiiTJ",J:ii* iul'" EuroPean Communities;

' r"{*t*,i!, 1;lil"fii'.ffflxt:fl'*idi,iJllifi"l'}{i1for the achievementbelow);

below);

G,;"-T.:"-'r"t*"",'1fl"'li.!l^ilL?,flr-'1',ii*:l'T#tttJJtr;8iiJJ"t i*J p"t"t t-2s to l-26 below)'

E:llfflXH: J.'iu:"i,,:3oJ#"'$i'lJ'll; #illl'*o estabrishing a

t4l

Tr.Berv Four'toerroNs

taken generally iu relation to the free movement of \torkers pursuant toI reatv ol Kome-'

In the field of free movement of persons, Art.96 EAEC contains a provisionon the free movement of those working in the field of nuclear energyM€mber States were required to abolish all restrictions on the free movementof workers in the nuclear industry In 1962 a directive was adopted by theEuratom Council to give effect to Art.96.6 Its scope is limited to those inskilled employment in the fi€ld of nuclear energy. Skilled emplo)'rnent is con-fined to ttiose with specialist knowledge or undertaking particular tasks lnthe industry The 1962 Directive is a very shod directive and Provides onlythar Member States will adopt measurcs for the "automatic granting ol-authorisations" of any skilled employment in the field. The Directive makesclear that all other aspects of free movement are to be regulated by measures

1-10

(b) The Treoty Establishing the European Coal and Steel Community

The Treaty establishing the European Coal and Steel Community (ECSC)was signed on April 18, l95l in Paris and entered into force on Idy 23,1952-It contained a chapter on workers and movement of worke$ (Chapter VIID.The provisions were restricted to those employed in the coal and steel indus-tries. Although provisions relating to discrimination in remuneration andworking conditions are replicated throughout subsequent Treaty of Romeprovisions, the free movement provisions themselves were much weaker thanahose contained in the Treaty of Rome. In the ECSC Treaty Member Statesrctained their competence as r€gards the free movement of workers whereasin the Treaty of Rome competence in this area was ceded to the Community.aThe ECSC Treaty expired on July 23, 2002 and its significance is now onlyhi storical.5

(c) The Treaty Eslablishing the European Atomic Energy Community

The Treaty establishing the European Atomic Energy Community (EAEC)was signed along with the Treaty of Rome on March 25, 1957, and enteredinto force on January l, 1958. As with the ECSC Treaty, Art 232(2) of theTreaty of Rome provides that its provisions do not derogate from those of theEuratom Treaty.

(d) The Treaty Establishing the European Economic Community

The Trcaty establishing the European Economic Colnmunity is morc com-rnonly referred to as the Treaty of Rome. It was the central plank of th€

a An 69(1) and (3) ECSC Treaty.5 A(.23i il) of the Treaty or Rome staied that its prolisions did not afiect tlose of the EcscTrcaty. Thli whilst th€ ECSC Treaty remained in forc€ those falling within the personal scoPe of4.(.69 of that Treaiy would not be gov€med by the Tr€atv of Rome or more recentlv t}le ECTreaty.6 EAEC Courcil Directive on fr€€dom to take sk led emploj, n€nt in the fi€ld of nuclear enerBv119621OJ. P 057 t 6507 In DrinciDle this m€ans tbat the free movement of those employed in the nuclear en€rgy indus'try ii govemed by Reg. 1612/68 and Dir. 68/360 other than where the 1962 Dir€ctive applies

t5l

1-10 Tnrerv Fout'p,lrto "r s AND INSTrrtrrIoNS

European Economic Community ("the EEC"). Art.2, which was amended bythe Maastricht Treaty, laid down the objectives of the EEC: to establish acommon market and economic and monetary union in order to promotethroushout the Community development of economic activities, socialcohesi-on, high levels of employment and social protection and to raise thestandard of living in the Member States.

1-11 The creation of a "cornmon market" would involve the elimination of obsta-cles to trade between Member States to create conditions as close as possibleto an intemal market. National frontiers therefore were intended to beabolished as regards the fiansaction of commerc€'

1-12 Article 3(c) sets out the four freedoms which are the comerstone of qeation

of that intemal market:

(a) free movement of goods,

(b) free movement of Persons;(c) free movement of services;

(d) free movement of capital

l-13 Article 5 directed Member States to take all apprcpriate measures to ensurethe fulfilment of the obligations arising out of the Treaty or resulting fromactions taken by the institutions of the Community B Article 7 contained a

leneral prohibiiion on non-djscrimination on grounds of nationality in arcasof application of the Treaty'

1-14 It is the provisions iD the Treaty on the ftee movemJnt of persons which are- - -

of prncipat interest in this book. Free movement rights were clearly conflnedto areas of economic activity. Articles 48 to 5010 provided for the free move-merrt of .aorkers which are discussed in detail in Chapter T Articles 52 to 58tt

"oniaineO pro,risions rclati[g to the right of establishment Articles 59 to 6612

oi*ia"o fit the freedom to provide sirvices. Both the freedom.of establish-i"*i

-d freedom to provide sewices are discussed in detail in Chapter 8

(paras 8-{1 to 8-{1).

Th€ Treaty contains provisions establishing the institutioN of th€ European

-o-munity

incfuaing the European Comrnission andlhe European court ofi;1." Th; principa't community institutions are discussed in paras 1-29et seq.below

1-15 Whilst many of the subsequent Treaties amended wording and numbering of^ --

the orovisions containcd;ithin the Trcaty of Rome, its principal provisions

s s€e further discussion in paras 2-2? 1o 2-35 on tbe ColDmudty l€gat order Th€ provision has

been reworded post Amsterdam Treaty signficantly defining the.competence of lhe cotrImunrryiiil ,fr; ;6i;; p""ie-'l"ia^i' r*"tv-see tu.tr'er discussion

'" pafts 2 53 to 2 46

on non-discriminationro No]} Arts 39 to 42 EC Treatv post Amsterdam Treatvrr Now Arts 4l to 48 EC Treaty post Amsiedam TrcaryD Now Arts 49 to 55 EC Treatv post Ansterdam Tr€aty'

t6l

TREATT FoU\DATIONS

(f') The Maastricht Treaty

r-19

relatiqg to the four freedoms remain at the heart of the Treaty today. Whllstthe core acrivities of the Cornmunity have expandedrr and th;lr;;,i;; ;i;""Duropeau uruon has added a political dimension to the co_oDeratiotrbe tweer the Member States, the iniernal murt"t ,"-"in, oi t"vil;#^

(e) The Single European Act

The Single European Act was simedtiye of the Act was the completion ofTo that end Art.l3 of th€ Act inserwhich stated that the Communitv woploeres.sive]y esrablishing the intemal marker over a period exoirine unDecember 31, 1992. It further stated that:

"The intemal marker shall comprise an area without intemal frontiers in which therr€e movement o-l goods. persons, services and capital is ensurcd in accordance r*,rurthe provisions of this Treaty".

Article 13 of the Act has been the cause of considerable controversy sinoethere is a divergence in understanding of that provision b;a;;;M;;",States. The UK Governmeqt maintainJ the position that the provi.ion .nearNthat sitrce not all p€rsons are covered by ttreintemat mart<ei frin;;b, ;;;",clrT$ nus^t 1emair_iu place. other Member Stat., .."riJ.i"d'it1"J"J ir,"aOOlrUOn Ol all Checks_

To some extent this controv€rsy has been alleviated by the creation of thercnengen Agreement (1985) and the Schengen Convention (1990) whichcreale a border lree area lbr the partjcipating Member States

l li",I.jly__"1 furopean Unio-n was signed iD Maastricht on February 7,rvyz ano entered lnto torce on November l. 1993 (the ,.Maastricht Treaty...1.The luaastricht-Ireaty creared the European U"il;bj;;;;i;"d;jr"rne European Lommunrties and was to reprcsent ,,a n€w stage in theprocessing of creating an ever closed rnion,,.li

],ts^l:l j* Maastricht Treaty contaiued provisions amendiDg the Treaty trn:::: y]ll a vrew to. establishing the Europeatr Communityl,,tle fC,,j.Thereafter the Treary of Rome was-ro be ,.f.o.o i."r-tfr"JiJu;y;;["ri_rng rne EuropeaD communiry The most signmcant amendm;nt to tharrreary was tbe rDctusion of Art.8r6 which signified the creation of theEuropean Union citizen and Art.8ar? whi"n gr-iJ tt

" iilii"i-i,",'rv iitir".

rr An.3 Ec rre,atyno.n,lisr tt."o."zt@i,"l*:Tj." :*":ly-."-mt and consumer pror€crion ro mcreasins i;dustrial cornpetiriveiess'i |.*.^,1 y Fq T!.",r p",r e^.,.,auln ii"'u,y.,' An.A of Title I of rhe Maasrrichr Treary, now An.t TEU posr Amsrerdam.'d Now An. | 7 EC Treary post A-msrerdanTr€ary.'' Now ful. I 8 EC Treaty posr AEsterdam Tr€ary

m

1-19 Tnrarv Fouroartols At{D INsrITL,"l toNs

of the European Union to move ,These orovisions are discussed in tTitles iII and IV of the Maastdchlsions of the ECSC Treaty and the Ithe European Union

1-20 The second pillar was set out in Title V which contained provisions on com-mon foreign and security policies. Member States agreed to co-operate rnaieut of fiteien policy ini security and to suPport the Union's extemalforeign and s€curities Policies.

l-21 The third pillar was set out in Title VI which contained Provisions on co-ooeration in the fields of justice and home allairs Of principal interest wasiie lreation of a list of ireas of common interest for the Member Statesincluding asylum policies, immigration policies relating to external bordersand adrnlssion of ihird country nationals and matters relating to policing andiudicial co-operation in botb iivil and criminal matters The inclusion of thisittita pittut *u, $gnificant since it demonstrated a broadening of the arcas ofi"t"t"ii U"yona ti" internal market As a result of the inclusion of Title VIih" Memb"t States made a number of resolutions in the areas of justice andhome affairs such as the London Resolutions on asylum 18 However thirdpillat meurures

-ade under Title VI werc considered as soft law and did nol

iall within Community competence until the Amsterdam Treaty'

(g) The Amsterdam Treaty

l-22 The Treaty of Amsterdam was signed on October.2' 1997 and eltered intoforce on ltiay 1, 1999. It amended both the Maastricht Treaty and the Treatyestablishing iheEuropean Community.re To avoid confusion.we^refer to theseTreaties as'the EU neaty and the EC Treaty, respectively, following theA;'i;"; Treaty since a significant number of the changes were in theDumbering of both the EU and EC Treaty provisions'

1-23 Under the Amsterdam Treaty the third pillar of the Maastricht-Treaty wasmoved to be included in the Treaty establishing the European commurutyii"" Uringl"g tft" areas of justice and home afTairs within the competenca of

iii" co-fiuilty. rrte Com-munity would thus be able to make directives andresulations in areas such as asylum and the immigrahon ol thlrd countrynaiionals. This significantly broadened the scop€ of the EC Treaty'

l-24 These provisions are not the subject of this book since.they are not gellerally- - -

"onceroed with the dghts of frie movement l'/ithin the Community or the

titfrir- "i

gu citizens]Rather they are concerned with the movement and

iiEiiit oi trtiia "ou"try

nationals from outside the European Union to within

rsThe London Resolutions iDclude the conclusion on countries in which th€re is generallv no

serious risk of pe,secunon: Resolu(ion on manifesllv unrounded ap.pl'::llT' 9.'-,i:/ii:i:d

;i;;;i;,i;; ;;;;;d approach to qu€stions concemrns host rhird countries Londo''

November 10, and Decembef l. 1992 rSN 2836/93 (WGI 1505))iq oricinauy lhe Trealy of Rome' renamed by Maaslricht Treary

t8l

it. To date the Council has adopte(regards inrmigration measures thisecommon visa list.2r the righrs of long_in rhe European Union22 and the rieht tcountry nationals resident in the European Union.23 However none of the

Ttrerv FouvparroNs 116

(h) neaty of Nice

The Treaty ol Nice was signed on Feon tebmary l, 2003. It amended a nr

)rporate those Member States into the

Revision of the Tieaties took place in four key areas:

fa) size aod composition of the Commissioo;(b) weighting of votcs in the Council;(c) extension of qualified-majority voting; and(d) enhancedco-operation.

s Asylum Eeasurcs adopt"d uod;;i;;F i;tud;1. D_ec.2000/595,€C on EuropTn rcf,rsee fuDd [2000] OJ.L25A\2.i ff,lr^'"T,?T :lty* r,000!.oi_!-r.q/i;i;;i;;i,ii-*ii".y I s, :oo:3. Dir.200r/55 oo rempora,vi-r*|"" rzoriiiij j'iz;i;ii;-;:ftffJi'6H"._b.,r,

20024. Rec

*e_s;4^0:j2^002 imetementins Eurodac Resuration [2 M2.!o.t. L6at.f . Pi,:?P3je_* l":-.p!gn co;didons [200Jj or L] ti r8.6 Du-btinI Reg_J411200: Pno:jo.L. Lsolil t ro."e Seplember I,200j.l ff:;'^'l'1:ig'"rg:riri'e b"',' iipoiiii-oi lizlil"iJ r.#t'"p".u* e. :oor" "T3Tl','*'":*l;::t":",:*tEr;^;i { il;;;#";ffi "';H;Tiib'.Yfu

prot€ctiotr (not y€t publisheo; adopted by ApJ ji;tidli[ ;;ffiti

1i5",1:,.:-:l1y,f**9":.s (coM rm00) 578; ao€nded coM (2002) 362) has arso been,"ff-:d.,i-,l1f 11 1rJ, igf qa 9.11e1,11. ri_"i;i;;#:Jffi?.#;:,fr,#.

i"lf;i:',,,,"1E:::*"..*':":",,';1119*i6,lr'_'..^-J;""J-Rd;;1;,tilT"#Jt."",",i"'l*i .'"",1 ;T::,'H:i::ltTql ", JJ,;; ;;d G;:5;;"0bi ;'#,' ;:itro,ffTtil1The UK and lretand iave -.pr.a Jui .i.ri ir,-.* rn.u.*";il l?."*.fll,"yf_,llo.l*"i"" 1z,xiat or ii;/aa rbe Lik has opted our or rhis measurenDir 200y86 ;, r"-,iy i.,,iir."i,iJrrdiid; ffsi/i#il:t?T"l' jf;k :Ji:i

",.i R::'-.3-.^yE"":l *re^criv€ rcOM (200r) t86) which rle UK is unlikery ro oDr into.' ulrecuve oD mrsmtjoD of third-couDrrv srudenrs rua

"otr"t.*r, COM il6(D jii n""i *t "o

!v'as s€ne'lly ageed at rbe Aprit 29. 2004 JHA Co*"ir. n" UX-*i, "pi""i;i#;il;"

tel

t-26 TRgerry FouNp.qrrols AND INSTIu oNs

t-21

1-28

legal changes brought about bY the

:nts to address deficiencies. -ln tne

ossible imbalance which could result

States.

(l) The Constitution for EuroPe

changes.

2 THE EU INsrrnmoNs

(a) Introductlon

1-29 The EU's decision'making process involves three main institutions:

(a) the European .t-I"-:{. Y_F:.-h- represents the European Union's

"iil*t uiu it ait."tly elected by themi

(b) the council of the Euopean Union which reprcsents

Member States;

@rovisionsandtheircolEspondingprovisionir in the draft EU Conslilulron ." r-afr Trcary esrabtishiog a Coosrjrutioo for Eurcpei7 For a fur analysis of the evolution ol tle ot .. -.-.^-.^t^L ̂ .olaihn\nhltbn.htmt ttotl:7 For a fur anarvsls 0r 1". *",',,"" "1 -":;;ii*_."iiiii",a.i,gr"""nstit tiotLhtm) frcmraders are referred lo lbe Stat€watch -tw€oiiilir'itr.'.",1." '"

rbis scctron is obrarned'

lr0l

the individual

TrrE EU INsrrrmoNs

(.) ffl,lu.orcan Commission. which seeks to upholdunron as a whole.

r_34

the interests of the

There are two other institutions of principal importance:

o' Ht

"i:t#ffitf;unoof Justice which upholds the rule of raw in the

(r) l*fi":l

of Audirors which checks the flnancins of the Uaron.s

(b) The European parliament

(i) The power to LegistateThe.influence and power that the European p^arliament exerts over lhe Ireglstatlve process depends on the l€different piocedures ;; ;; il il;i:lr?iffj.;Ff;:,; quesrion. rhe

yffff LT'*::H"l',:ffr :f :S:?TlilT,# jtl?#";i,f ?#*fj:tf" An.l90 Ec Treaty

l tr l

1-3r

.)j

1-34 TneATy FouNoATIoNs el'p lNstttutIoNs

However the Parliam€nt's influence in such cases is not nugatory lf the

fartlurnent is not ptoperly consulted on the legislation in question' it will bevotCl. ' '

l-35 Article 252 EC Treaty sets out a "c

mon Dosition in which case the Council must adopt the measure in accor-

a-un"J*iiiirl" "o--on

position. Altematively the Parliament may reject the

cornmon position in whiih case the Council may sti1l adopt the measure but

it can only do so on the basis of unanimity Thirdly the Parliament may pro-

oora u..ndrnant, to the common position ln such a case the Commicsion is"r.*ii.a ,o rc-examine the meisure and either adopt or reject thepuifiu..ntt amendments. The re-examined measure is then retumed to the-C."t"ii,

*tti"tt may adopt it by qualified majority or arnend it only by

unanimitY.

1-36 The most common procedure for ilaid down in Art.251 EC TreatY.the Council on morc of an equal icedure are joint acts of the Council and Parliament l he proc€dure appllei.olttutioni" a wide range of fields As with the co-opention procedure the

i3'"*ii rO.p" u ""oilton position" which is communicated to the

iutil-u-"ot. et tn" tecond reading the Parliam€nt must take.a position on the

common position lf the Parliament by absolute majonty rejects the commonposition, the Council is informed. The Council may then convene a meetrngii-ti" ;'Coo"irtutio" committee" which is composed of equal numbers of

ieor"sentatiues from the Council and Parliament The Committee is requircd

i"""J "gi""-"tt "n

the joint text within six weeks 30 Agreement will only

L"i"""it"iUi q""rned majority of theCouncil representatives and absolute

maioritv of ihe Parliament repiesentatives lf either of the two institutionsiliito oi."" *itfti" the time pe;iod, the measure is deemed not to be adopted'

(ii) D emo cratic SuP e r v ision

1-37 Parliament exercises democratic stions. It does so in several waYsaPPointed, Parliament intervie\'(Prisident of the Commission (no

!ast,

1e C^se 1l8t1s Roquetk v Colrcl / [1e80] tCR 3331ro Art.25l(t EC TreatyrrArt 241 EC Treaty.

' An.20l EC Treaty.

lr2l

I

THE EU INSTITUTIoNS 1-43

More generally, Parliamelt exercises_ control by regularly examining reportsse-nt to_it by the Commission (general reports, reports on the impli:mintatronof the budegt, tlre application of Community 1aw, etc.). Moreover, MEps reg_ularly ask the Commission written and oral questions. The members of tlieCommission attend plenary sessions of parliament and meetings of the par_liamentary committees, maintaining a continual dialogue between the twoinstitutions. Parliament can also exercise democlatic control by examiningpetitions from citizens and setting up temporary committees of inquiry

Finally, Parliament provides input to every EU sumrnit (the EuropeanCouncil meetings). At the opening of each summit, the presideni ofParliament is invited to express Parliament,s views and concerns abourtopical issues and the items on the Euopean Councilt agenda.

(iir) The Budgetary powers

The European Union's annual budget is decided jointly by parliament andthe Council of the European Union. Parliament debates it in two successivereadings, and it does not come into force until it has been signed by thePresident of Parliament. Parliamentt Committee on Budgetiry Control(CggOBU) rnonitors how the budget is spent, and each yiar Farliamentdecides whether to approve the Commission's handling of ttie budget for theprevious financial year This approval process is iechnically lnown as"granting a discharge".

The division of powers between the Council and parliament depends onwhether the expenditure is "compulsory expenditure", which iniludes allexpenditwe to enable the Community to meet its obligations under theTreaties, or non-compulsory expenditurc, which consists mainly of expendi-ture on the common agricultural policy and aid to non-Europian countries.The Parliament has the final control over tbe non-compulsory expenditure.

(c) The Council of the European (Jnion

(1) Organisation of the CouncilThe Council is the EU's rnain decision-making body responsible for policyand legjslative decisions. It represents the Member States, and its meitingsare att€nded by one minister from each of the EU,s national sovemmenrs.Attendance by particular ministers at meetings depends on whai subjects areon the agenda.

Altogether there are nine diflerent Council confgurations:

(a) General AIIairs and External Relations;(b) Ecouomic and Financial Alfairs ("ECOFIN"):

(c) Justice and Home Affairs;(d) Employrnent, Social Policy, Health and Cousumer Affairs:(e) Competitiveness (Internal Market, Industry aud Research);

[131

143

+

TREATY FoLTNDATIONS AND INSTITUTIONS

(0 Transport, Tel€communications and Energy;

(g) Agriculture and Fisheries;

(h) Environment;

(i) Education, Youth and Culture.

Nevertheless, the Council remains one single institution Each rninister in the

Council is empowered to commit his or her govemment ln other words, theministert signature is the signature of the whole government Morcover, eachminister in the Council is answerable to his or her national parliament and to

the citizens whom that parliament reprcsents. This ensures the democraticlegitimacy of the Council 's decisions

(ir) Powers of the Council

144 The Council has a wide range of powers and responsibilities which are laiddolim in Art.202 EC Treaty and which include legislative powers shared withthe European Parliament. The legislative process is examined inparas 1-33

to l-36 above. In principlg the Council acts on a proposal from theComrnission, and the Commission normally has responsibility for ensunngthat EU legislation, once adopted, is correctly applied.

1-45 Each year the Council "concludes" (r'.e officially signs) a number of agree-

ments between the European Union and non-Eu countries, as well as with

international organisations. These agreements may cover broad areas such as

trade, co-operati-on and development or they may deal with specific subjectssuch as textiles, fisheries, science and technology, tmnsport, etc

1-46 It is the Council's duty to co-ordinate the broad economic policies of theMember States and to approve the Ewopean Union's budget with theParliament. The Council is also charged with developing the EuropeanUnion's Common Foreign and Security Policy and co-ordinating co-

oDeration between the national courts and police forces in criminal matterc''Iitese two responsibilities in foreign and security policy and police matters

relate largely to areas in which the Member States have not delegated theirpowerc to the Community but are co-operating at an rnter-govemmentallevel.33

(iii) The Council PresidencY

l-47 The Presidency of the Council rotates every six months amongst all Member

States. During its Presidency each EU Memb€r State in tum takes charge of

tft"'Cou""if "ug""au and c-hairs all the meetings for a six-month pdriod,

piomoting legislative and political decisions and brokering compromises

between the Member States.

rr posr Amsterdam co-operatior on foreig! and security poliry and co-oPeration in-policing

r"-ni" una"t "t""o"a" ind "tlird Pillars" of the Tr€atv on European Union and therelore out-

side of the comD€tence of the Community.

tl4l

THE EU INSTITI,TIoNS

(iv) Decision-making in the Council

I-s!

From November 1.2004, thenurnberoure new Member stat"r) i, u, follo*.,'f

ootes each countrycaq cast (including

Ce,1m.1nl- _France Italy and the

unrrec tengdomSpain and poland

Netherlands

Be-lgium. Czech Republic, Greece.ilungary and portugal

Austria and SwedenDenmark,.lreland. Lith uania, Slovah ra

aoo f lnland

CY^p3t;,!r.liu Latvia, LuxembourganO Jlovenia

Malta

29

27

t3

t2

l0

7

4

l l5l

r-52

4t

1-53 TREATY FoLTNDATIoNS AND INSTITITTIoNS

(t) Constitution ond Organisation of the Commiss.ion

l-53 The term "Commission" is used in two senses. First, it referc to the membersof the Commission namely the team ("Co11ege of Commissioners")appointed by the Member States and Parliament to run the institution andtake its decisions. Secondly, the t€rm "Commission" refers to the institutionitself and to its staff.

Informally, the members of the Commission are known as "commissioners".Generally they will have all held political positions in their countdes of o -gin, and many have been government ministers, but as members of theCommission they are committed to acting in the interests of the Union as a\ryhole and not taking itrstuctions from national governments.

1-54 A new Commission is appointed every five years, q?ithin six months of theelections to the European Parliament.3a From November 2004 there will be25 members of the Commission, as each Member State will have onecommissioner.s5

The Commission remains politically answemble to Parliament, which has thepower to disrniss it by adopting a motion of censure.36 The Commlsslonattends all the sessions of the European Parliament, where it must clarify andjustify its policies. It also replies regularly to written and oral questions posedby MEPs. The day-to-day work of the Commission is done by its adminis-trative olicials, experts, translators, interpreters and secretarial staff. TheCommission is based in Brussels although it has representations in all EUMernber States and delegations in other countries around the world.

l-55 The Commission's stalf arc orgauised into departments, known as"Directorates-General" (DGt and "services" (such as the Legal Service).Each DG is responsible for a particular policy area and is headed by aDirector-Geneml who is answerable to one of the commissioners.

(r,) The Functions of the Commission

l-56 The European Commission has four main roles:

(a) to propose legislation to Parliament and the Council;

(b) to manage and implement EU policies and the budget;

(c) to enforce European law (jointly with the Coud of Justice);

(d) to rcpresent the European Union on the intematioqal stage, for exampleby negotiating agreements between the Eurpoean Union and othercountnes

s Art.214 EC Treaty.rr Art.213 EC Treaty.16 S€e para. 1-37 above.

tl61

7

THE EU INSTITUTIONS l-oz

P ro p osing netv Ie gis lat io n

Under the Treaty, the Commission has

ns' representatives) and the Committeetives ;f local and regional authoriti€s)

'arliaments and governments

Implementing EtJ policies and the budget

rdy, the Commission is responsible forJ budget and the Polici€s and Pro-the Council. Most of the actual worklocal authorities, but the Commission

The Commission handles the budget under the supervision of the Court of

euditors. Soth institutions aim to ensure good financiat management Only

if it satisfied with the Court of Auditors' annual rePort cloes the turop€an

ilJiu-""i gtunt ttt" Commission discharge for implementing the budget'

Enforcing EuroPean law

The Commission acts as "guardian of the Treaties" This means that the

a;;;;;, iogether with-the Coud of Justice, is responsible for makrng

sure EU law.is pioperly applied in all the Member States

Article 226 EC Treaty provides that if the Commission considers that a par-

i."f". ftl"-U"t State ias faitecl to fulfil a particular obligation under the

i;;;;. ii;"y ,;k; ;ction against that Membir State ln the first instance the

i.-iiittil;'r""t"ttes a lelal process called the "infringement procedure"'

iliil"i;;&;-;;iiivi"e it'" Member state of the allesed breach ofao.i;;iti;;;il living tne Member state an opportunitv to respond'The Commission will ihen deliver a reasoned opinion'

If the Member State fails to comply with Commission's opinion the latter

-Jih""-t"i* itt" *atter to the European Court of Justice' which has the

power to impose Penalties.

Representing the EU on the internalionat stsge

A central aspect of the Commission's functions revolves around its conduct

.i Bil'J"*-i"'-"i i*Je relations The Comnission also has the responsibility

.i ".g"dffit;*"tional

agrcements on behalf of the Euopean IJnion 3t

r7 The ContoDou AgreementCommission for instance

discussed in paras 1q7 to

tl71

15-70 was n€gonat€d bY the

1. SoURCES oF CoMMUNITY LAw

Before consid€ring the way in which Community 1aw interacts with the legal 2Jlsystems of the individual Member States of the European Union it is neces-siry to briefly examine the five sources of Cornmunity law. These include:

(a) Treaties;

(b) Secondary legislation including regulations, directives and decisions;

(c) Agreement with third countdes;

(d) Rulings of the European Court of Justice and Court of First Instance;and

(e) General Principles of Community law

(a) Treatrcs

The primary source of Community is the EC and EU Treaties as amended by 2{2various other Treaties such as the Single European Act and the Treaty ofNice. These Treaties and thet evolution are discussed in detail in Chapter I

CII\Prf,R 2

THE COMMUNITY LEGAL ORDER

This chapter examines lhe sources of Community law and the system andcontext in v,hich Community lar) operLtes- The intetrelationship belweenCommrnity law and national legal systems is considered as arc fundqmentalprinciples which arc zpplied in the Community legal order'

(b) Secondary Legislalion

The Community institutions are given the power under Art 249 EC Tr€aty to 2-43adopt three types of secondary legislation in order to give effect to theprovisions of the Treaty Regulations, Directives and Decisions:

Article 249 EC Treaty

In order to carry out their task and in accordance with the provisions ofthis Tr€aty,the European i'arliament actil8 jointly with the Council, the Council and th€Commission shall make regulations and issue directives, take decisions, makerecommendations or deliver opinions.

A regulation shall have Seneral application It shall be binding in its entirety anddirectly applicable in all Member States-

A directive shatl be binding, as to the result to be achieved, upon each MemberState to which it is addressed, but shall leave to th€ national authorities the choiceof folm atrd methods.

ll el

.ai

THE CoMMr,'I.urY LEGAL ORDER

A decision shall be binding in its entirety upon those to whom it is

Recommendations and opinions shall have ro binding force

2-44 There is a considerable volume of secondary legislation inCommunitv law and the field of free movement of persons is no e:that. Part Ii of this book will focus on lhe primary and secoodary

which specifically relates to the free movement of persons wi

Eurooean Union.

As is evident the three different types of secondary legislation aretheir effect.

Regulalions are the most powerful form of secondary legislation ti''iilrtions can make. As is discussed further in paras 2-44 ro 241regulations are directly applicable in all the Member Stater Regulatino"t addressed to Member-states or private individuals specifically lnot require any implementation into the national legal systemsv.*t"'. stut.i in order to make tbem effective. In fact as will

Member States are not Dermitted to adopt national implementing

unless the regulation itsalf requires it or it is necessary in order to give

to the rczulation in the national legal system'

Directives in contEst are weaker forms of secondary legislation Th

addressed to the Member States and impose an obligation on the M

States to which they are addressed to adopt all the-measutes,necess.nrui. tttut tft. oUl"itives of the dircctive are given full ellect'lt4ernber

^i" ""titf"a to clioose how to implement a directive and therefore

-aotion rnaututat do vary from Member State to Member State The

efTect oT directives is discussed in paras 2 48 to 2-53 below'

A7 Decisions of the Community insdtutions are addressed to specific MenStates or particular individuals They take eq:ct upgn:o+r.nunicaifl to

243

245

2-46

2-{8

ofbe

person or'Member State to whom they are addressed Decisions addlessoi v"-u* Srate are binding on all the organs of that Srate. including

courts. Decisions differ fronregulations in that they are addressed to sp€lstates or individuals. Only the addressees are boundby the-decision Decisidiffer from directives in that they are directly effective rather than merelyti-ng o"ittr" oUi""tiues to be achieved pxarnnfs 9! wh;1e d""ttl:it-?:our'.Jut. in tei"tion to competition policy, state aid and imposition of

(c) Agreemenls with Third Countries

The Euopean Union is not simply a supranational body.coniled tonui u.tiuit^i.t. it interacts considerably within the international arena.senting both a powerful trade bloc as well as an lnflu€ntlal

-pollrlcalir*'i'"rrp."" f titn concludes agreements with third tou.nlti:t 3:, T!int.-Jo'nui Uoat.t to give effect to its trade, cusloms' social' political

"lono-i" "i-, within -the intemational arena There are three types

;;;";;t which are of pa icular importance : AssociationC-o-operation Agreements and Trad€ Agreements'

[20]

Sor,.RcES oF CoMMUNrry LAw 2-14

Association agreements have been concluded with a \ride variety of non-Eu 2-_09countries. Such agreements go beyond mere tmde or aid agreements and arcexpressions of political and economic co-operation between Member States.Association agreements are often used as a prc-accession tool to prepare thirdcountri€s to possible accession to the European Union. The European Unionhas association agreements with Bulgaria. Romania and Turkey; the EU has astabilisation and association agreement with Macedonia; and is in the Drocessof negotiating such agreement with other states in the westem Balkans

Co-operation agreements are not as far rcaching as association agreemeDts in 2_10that they are only aimed at economic co-operation at an intensive level. TneEuropean Union has co-operation agreemeots with Algeria, Morocco andlunNla.

Trade agreements have been concluded with a very large number of countries 2_11and intemational bodies. The most important trade agreements are with theWorld Trade Organisation (WTO) and the multilateral agreements derivingfrom it including the General Agreement on Trade and Tariff (GAIT).

Part Three of this book will focus on agreements with third countries. It rvill 2_12examine agrcements which have provisions which potentially impact on thefree movement of persons and provide detailed analysis of certain associa-tion agreements, namely those with Bulgaria, Romania and Turkey exploringthe free movement provisions in those individual agreements.

(d) Rulings by the ECJ and CFI

At the heart of the Community legal system is the European Court of Justice 2-13(ECJ) and the Court of First Instance (CFII. Judgmenis of these courts arebinding on nationals courts. They are the only courts with judicial authorityover Community law. The ECJ is the highest judicial authority. Since theTreaty of Nice the CFI has power to determine a wider range of actions inorder to alleviate the pressurc on the ECI

There are a several types of action that can be brought before the ECJ and Ll4CFI. It is important to note that there is no mechanism for individuals to takedirect action against Member States for failure to act in conformity withCommunity law.r An individual with a complaint that a Member State hasfailed to implement Conrnunity law correctiy or has breached Communitylaw would have two mechanisms for bringing the matter before the ECI Theindividual could either bring the matte! to the attention of the Commission(or another Member State) in order that the Commission (or the otherMembsr State) might bring infringement proceedings against the offendingstate under Art.226 EC Trcaty or the individual would have to bring legalproc€edings in the national legal system and request a reference by thenational coud under Art,234 Ec'fteaty.

L This is entirely dilTerent from the p(oc€dures before the European Cou( of Human Rrghtswh€re for hstance an aggrieved individual who has extrausled all possible domesric remedies hasa nght of individual p€titioD to that court.

[2U

2-15 THr Covvurqrv LrcAL ORDER

2-15 There are however two exceptions to the principle that individualsbdng direct actions in the ECJ or CFL First *here a decision is ially directed at a person an action for annulment under Art.230might be brought. Secondly, where the person has sufferedresult of the action of EC staff an action for damages uDder Artbe appropriate.

All procedures before the ECJ and CFI, including those mentiare described briefly below.

(i) Treaty Infringement Prcceedings ( Anicle 226 EC Treatv)Lt6 These are proceedings for establishing whether a Member State

an obligation imposed upon it by Community law. Thcse must be !by a preliminary procedure in which the Member State concerned iiopportunity to defend its action or lack of action. If the matter isat this stage either the Commission or another Member State canproceedings against the Member State concerned in the ECJ. Thethen determine whether the Member State has breached an obliCommunity law' Most actions arc brought by the Commission.

2-17

Lt9

The Commission has brought a number of infringement proceedingsthe Member Stares in the free movement field., This mechanism isfactory for an individual agg eved by the infringement of Communia Member State since it will result in no compensation or ideterrnination regarding his panicular siruation.

(n) Actions for Annulment (A icle 230 EC Treaty )L18 These actions can be brought against a Community institution in

annul a legally binding measure. If an action is brought by an indirmust be brought iu the CFL lndividuals or companies can onlv bridirect action against decisions personally addressed to them.3 Actibe based on allegations of alrra rrres, breach of procedural requir€breach of Community law. Actions for annulment rnust be brouehttwo months of the impugned decision.

(iri) Complaints for Failure to Act ( Article 232 EC Treatv )Complaints for failure to act may be taken against the CommissiCouncil, the Parliament or the European Central Bank. When actibrought by individuals or companies it will be for a breach ofobligations in failing to address a decision to them as required bv the

2 For instance Case C-424/98 Conmission v Itaty 120001 E C R I-{001 See CommiReport to th€ Council and Parliament on th€ jmplemenration of Dir€criv€s 90/364,93/96 (nght of residence) wher€ the Commissron describes th€ number of proc€edinqscornmenced for iEcorrect implementation of the sett-sufrci€nt direcrives -rA person named on the Taliban sanctions list might for instanc€ bdng such actionconsider€d thar th€ inclusioD of their name oD that list was llr.a

'risr or procedurallv in

l22l

SouRcES oF CoMMUMTY LAw L26

(iv) Actions for Damages (Articles 235 and 288(2 ) EC Treaty )

Individuals and companies who su{Ier damage as a result of the action of EC 2-20staff can bring actions before the CFI. Member States which suffer suchdamage may bring actions before the ECJ. The complainant would need todemonstrate that there had been an unlawful act by a Community institutionor a membel of its staff in the exercise of his functions. Actual harm musthave been suflered.

(t) Actions by Communi4, Staff (Afiicle 236 EC Treuty)

This is a mechanism for Community stall to bring actions before the CFI in 2-21relation to disputes regarding their employrnent relationship.

(vi) Appeals Procedure (Article 225(l ) EC Treaty)

There is a ght of appeal against decisions of the CFI to the ECJ on pointsof law. The appeal must be on grounds of lack of competence by the CFI, abreach of procedure or a breach of Community law.

(vltr) Pro'tisional Legal Protection (Articles 242 and243 EC Treaty)

Actions before the CFI or the ECJ do not automatically have suspensive effect.It is possible to apply the CFI or the ECJ to have the contested act suspended.Applications for provisional legal protection will be considered on the basis ofprospects of success of the main action, urgency of the order and weighingof the interests of the complainant against the interests of the Communityin implementation of the measure and any third parties' interests.

(viii) Preliminary Rulings (Article 234 EC Treaty)

This is the mechanism whereby national courts can seek the guidance of the 2-24ECJ on matters of Community law- The national court will stay proceedingspending reference to the ECJ on questions of interpretation of Communitylaw or regarding the validity of a Community law measure. The ECJresponds with a judgment which is a mandatory ruling binding on al1Member States rvhether or not they were party to proceedings. The objectiveof the preliminary ruling procedure is to ensure uniform application ofCommunity law across the Member Stat€s. It is a mechanism whereby indi-viduals and companies can ensurc the proper application of Community lawbefore national courts. Once the ECJ has given its judgment the matterreturns to the national court for final rulins on the case and determination ofissues such as costs and damages.

The subject-matter of a preliminary reference must be confined to 2-25Community law measures only. The ECJ will not entertain referencesconcerning the interpretation or application of national law.

The reference procedure is available to all courts of the Member States. In 2-26this sense "court" means any independent institution which is empowered toresolve disputes under due process of law. Thus a "coud" may range from theCoDstitutional court to a tribunal or adjudicator, Whether a coud makes areference to tie ECJ will depend on a number of factors, pdmarily whether ii

l23l

2-26 TTIE CoMMUNITY LEGAL ORDER

the matter rs " acte c/air"a and therefore whether the Cormunitv Irequires any further interpretation by the ECls Where a qCommunity is considered by the fina1 cout of appeal ih any Mthat court is obliged to refer to the ECJ unless the referral wouldmaterial diflercnce to the outcome of proceedings, or if thealready been answercd by the ECJ or if the interpretation of thelaw provision is not open to reasonable doubt.6

2. PRTNCTPLES oF CoMMr,.Nrry LAw

(a) Introduction

The legal system created by the European Union is unique and thcrelationship between the Community legal order and national legalis not reflective of any other supranational arrangements. A natisystem is self-contained. By contrast the Community legal order reliessupport of the national legal systems. It is the national legal systemsbring EU law into the lives of people living within the Member States.

L28 European Union law is founded on a number of basic principles whichin understanding the inter-rclationship between the Member StatesCommunity. It clearly imposes obligations on Member States as wellCommunity and it is impodant that those obligations as well as thefor enforcement are defined and adhered to. The ECJ has Dlaved anificant role in defining the principles which guide th€ interpretatiotrapplication of EU law. Equally the EU and EC Treaties themselvesmany of the principles which underpin EU law

@) Supremacy

L29 Numerous provisions of the EU and EC Treaties and secondary legiimpose obligations on Member States requiring them to ensure thatnational legislation is in conformity with these obligations. EitherCommission or another Member State could brins an action before thefor breach of such obligations by a Member State. Failure by theState to abide by the order of the ECJ will result in a financial penalty.

aThe tetm"acte clair" neans that nahonal courts. bearins in mind th€ risk ofjudicial decisions within the Community, must be convilced that the interpretation orof an issue taken by the national court is equally obvious to th€ coun of the otlerStat€s or the ECJ: see Case 283181 CILFIT lt982l E.C R. 3415.5 For the test to be appli€d by UK cou(s, s€e R y L tentotiokat Stock Exchange Ex p. ElseI A E.R. 420d Th€ procedure for preliminary references to the ECJ is not the subject-matter of thisReaders ar€ refened to the comprehensive book entitled, Refercnces to the European CourtbtAnd€rson Q.C. aDd M. Demetriou (2nd ed, Sweet and Maxwell, 2002).

p4l

i ,

Pnnrcrplrs or Cour'rt}.rlTy LAw 2-i5

Article l0 EC Treaty states:

"Member States shall take all appropriate measures, whether gene(al or particular,to ensure fulnlment of the obligations arising out of this Treaty or resulting fromaction taken by the institutions of the Community. They shall facilitate the achieve-ment of the Communityt tasks. They shall abstain from any measure which couldjeopardise the attainment of the obj€ctives of this Treaty."

Whilst it is not made express in either the Treaty of Rome or the subsequentamendments to that Treaty, the ECJ has repeatedly referred to the supremacyof Community law. According to the ECJ national courts of Member Statesare under an obligation to make their judgments in line with the ECJ. In anumber of decisions the EcJ has established the primacy of Community law.

ln Yan (rend en LooJ tne iLJ SIateO:

"... the Community constitutes a new legal order of international law for thebenefit of which the states have limited their sovercign rights, albeit within limitedfields . . ".

The doctrine of supremacy was further explained it Costa v ENELB wherethe ECJ held:

"By creating a Comrnunity of unlimited duration, having its own institutions, itsown personality, its own legal capacity and capacity of reprcsentation on the inter-national plane and, more particularly, real powers stemming frcm a limitation ofsovereignty or a transfer of po\rers ftom the States to the Coffnunity, the Membe(States have limited th€ir sovereign rights, albeit within limited fields, and have thuscreated a body of law which binds both th€ir nationals and themselves

The integration into the laws of each Member State ol provisions, which derivefrom the Community, and more generally the terms and the spidt of the Treaty,make it impossible for the States, as a corollary, to accord precedence to a unilaFeral and subsequent measure over a legal system accepted by theh on the basis ofreciprocity. "

As the ECJ stated in Costq I ENEL, the'fteaty: ". . . has created its own legalsystem which . . . b€came an integral part of the legal systems of the MemberStates and which their couds arc bound to apply."

The ECJ went even fwlher it Internalionale Handelsgesellschale in makingclear that national courts will be obliged to disapply any national law provi-sion or practice which contradicts a Treaty provision. As put by the ECJ "thelaw born from the Treaty . . . [cannot] . . . have the cou s opposing to it rulesof national 1aw of any nature whatever".

The consequence of the doctrin€ of supremacy is that Community law has avery significant impact both on the legislation and the administrative and

7 Case26162 Van Gend en Inos v Nede an^e Adntnistrulie det Berkstinsen 119631 E C.R.l3 Case 6164 Costa I ENEL [964]E C.R. 585,Case ll/70 I tenationale Hahdelsgese schalt I EihfuhHnd Yonatssteelb rti Getrcide u dFutternittel 119101 E.C.R. 1125

L30

2-31

)-17

L34

2-35

Bsl

iudicial practices of the Member States Where an EU la\t provisiq

i,ifi"i "":y

pt""iti"t of domestic law that conflicts,with that EU

il;; ;;fii;,t;;llt inafplicable This principle applies regardlessthe national law takes the form of primary or seconoary, regr.ir*i#iiii"

""iir""l law came into forie before or after the EU lar

i,il;"i;";t "t" prevented from applying^an] national law whi

;iliii;;;ul;; ;tt;ision. Anv provision of domestic law' and I

ir"1i"" "ti"ai.i"iptactice.

which might prevent Community laws

2_35

i-tr.ir futt iff."t -utt

be set asider0

THE COMMUNITY LEGAL ORDER

(c\ Direct Effect

(L') Meaning of "direct effect"

2-i6

z-31

z-34

2-49

It is well established in Community law that in aertain instanaes O

iu* rrut pii.u"y o""r Member states' dorn:ui",l"E :l$^it^:]l::ri"^ tr'C".ti,"titv law are said to have direct ellect The conseqt

p'-r'irJ":"tii a;ect €ffect.is that it sr"*' :'.chp j9.l?tlll]-lili;;:'ii; ;;";fi"" .an be relied upon bv that individual btforecou.ts and authorit ies of the Member States regardless ol any

ri;il;;;ttr" l"* and without the need for incorporadon of the

into domestic law

thus "unconditional".

;};"3pil'3:#,:f'fl :f"1:lJT'"33HH1,11#i""3J"'i'i::ii*ifv

"ff""ti* ift" following three conditions must be satisfied:

the provision must be clear and precrse;

the Drovision must be capable of conferring rights on individ

irs operation must not be dependent oo further action being

iit t"t-ttitv or the natiooal autborities or any other bo

( l )

(2)

(3)

In essence the criteria seek to id€ntify whether a provision is capd

ilililiiciai;;io,""'*nt. Not uti p'""1'i:t :l PI"tllll'l};T'.'i,J.l ;:lr,:i"":: {'ll''l"';t t',"# tJ,""'.T:.'fii:ilH fi '.lH:?:tr"Li'i"ldsl*rt.n

nas not been updated rz

H',TJi?ili$'f I3'.T:"1:;T:Y#,ili1"fi::ff'ffifi :"{ffi:;iii i'iriliii," *ri;*" it uluintt "

rrlJ-uer stats the provision is d;;';i;;;;,;i;il; "n"ctiv.in

the area of free -::T"11f" Y:T::11

#Vih;;il;;l;ffect of a provision tbat is of concem as it is in

',:,-Ltru*:";g"'t-::'*';;;:',lx'Ji;il#'f ;1'f ::ff {iii:{ilii[;;diltii"ffi;;;i"'l"e"i *ii t*"a oo 'i' "rsument

that that Ensrish raw was

?fffiJiil'iT; *^o ""

Loos v Nede ond'e Adn'nisnatie det BettLttinsenlrs6llD [1983] O.l C17?n3.

t26l

-

l:

a

*

PruNcrpr,es or ColruuNrrY LAw 243

l

Ii

state authorities and courts which may facilitate or frustrate frce moyementrights. However the actions of pdvate individuals such as employers mightinterfere with directly effective free movement dghts.r3

It is important to distinguish between a provision which may be "directly 2-40applicable" and one which may be "directly effectiye". A provision may bedirectly applicable in that it can be applied by a national court or autho ty.However that same provision might not be directly €ffective if for instancefurther legislative measures are required to make it eflective. Dir€ctly appli-cable but not directly effective provisions can be regarded as binding onMember States although they may be too vague to form the direct source ofrights and obligations for individuals, and still other provisions are tooincomplet€ and require extended measures of implementation before theycan be fully effective in law.ra

The direct effect of va ous EU law Drovisions are discussed below

(rl) Trcaty Provisions

lt Van Gend en Loos the ECJ said that certain provisions of Commu[ity lawcreate ". . . individual rights which national courts must protect". In that casethe ECJ concluded that a "new legal order" had been created by the Treatywhich "... independently of the legislation of Member States ... not onlyimposes legislation upon individuals but is also intended to confer upon themrights which become part of their legal heritage".

The ECJ has determined that a large number of EC Treaty provisions aredirectly effective. Ofpadicular importance inthe free movement field, the ECJhas held Art.39 EC Treaty on the free movement of workers, Art.43 ECTreaty on the freedom of establishment and Art.49 EC Trcaty on the freedomto provide services to have direct eflect.

This means that not only do the relevant Treaty provisions provide theframework for the free movement of persons, they also provide specihcrights that caD be relied upon by individuals before their national courts andauthorities to assert specific rights. This can be significant particularly wherethere is no secondary legislation to cover the arca of concern or the sec-ondary legislation itself is not directly effective.r5 Thus for instance the freemovement of work-seekers is said to dedve directly from Art.39 EC Treatyin the absence of any secondary legislation specifically refefiing to thesituation of work-seekers.16

rr It is to be noted that directiv€s do not hav€ hodzontal efrect. See further para 2-53 belovara Th€re is consid€rable academic debate about the true distinction b€tween "dircct applicability"and "direct efI€ct". Some have a4ued that th€ dralters of the Tr€aty must have Int€nd€d thatre$ ations alone had direct effect. However the ECJ has gone out of its way to find that othermeasures and provrsions are capable of dir€ct efl€ct so the distinction belwe€n the Tr€aty refer-ence to "applicability" which applies only to regulations and "direct effect" is dra:l!'ll. See forinstance Craig,Paul and de Birca, Gra]nne, tUZrtr: Text, Ca:es and Matetlatu2rded, (OxfordUniversity Prcss, 1998); and Pescatore, Pi€Ire, "The Doclrine oJ Dbect Effect: An Inlant Diseaseof Comnuni.ty Law" (1983) 8 E L Rev 155-1??.rrThis rigtt be th€ case with ce(ain dir€ctives. Further discussion of the direct effect oIdirectives, s€e below.'" See turther Daras ?-4410 7 48 on workets

7Al

243

l21l

?,-44

2-4,6

2-41

2-48

2-49

Articre 24e. EC TI..lr_ _ql3'J9..:-,11, ^i#il1^l',""il::+1.*,:'itiltentirety and directly appbcable In arl

m fr mm w:i:;HI "T:i"ffi;Li:t9:i?'lr'rr"""i],i#lil

i,i i'iii" i";ud"jg;"" to th" '"gulation bv the ECr In

the ECJ stated:

2-4 THE COMMUNITY LEGAL ORDER

(iii) Regulations

Article 249 EC Treaty provides that: " -'it" t"tutt to be achieved, upon each

#jriril:"i,':'"1#i:T*::"'st'Hllhi:ssi#:*r';ff il:'ililT"$";.

f "ff #HJl:ilJ:"{i';J'j-'fi :,:li."Ti$l'8"'tr.,:l fi !1",::Tilm#;;til;;i;;.;i the provision is obscured bv national impleme!

it'",li"lii" lv *"r tbe iCJ considers that national implementation

;r."lllkl': n",':ru#ffi T:i'"'"'"'llil,:::iili"T*:'::"'^l::.T;.lgpt'Jon it pu.potts to implement re

(iv) Directites

iiili 'ii ii"i,i, oi,JJt eii:ea. rnis woua ue-tue position where a provi

.i"irr"ii""lt ""t *m"ietrtly Prccise or is too conditional'

a dtective shall be binding,Member State to whom

:'i'.#il: ;;,;"ll-;;; lfii nationat aur'horities the choice of

and methods"

l'"fi '::f l:i3".Hi:1f.1'*1"313f'fi ffi 1.'ilH;:l5"TJJ:;l"iiffifiJl,"r,#: # ";ilil;*ilisiui"

e"t tt'i' a6e s not mean that Member

".o "ftor. not to i-plement a directive, nor to do so in diluted forrn'

*,,f i^!3,,:,i8"#*i#:'l1J*-f i"':xiJlit};"""1$'tlxT#l;a;;ws u,""*; M;ira,. Er"eric,iru'e [re78l E c R 242e,' iuse t osies co..i""irn v r"4 { 1986) E c.R 2945

-.,--^r :-^u--.r"r;

l;!;i#iim"#",rffi lrtitrf*t':l;iff r*iiqlriip1.t*ii]""rx:::xi*1i:,:ffi1",:'i::i"d;;:;:#lt;;L;;; fi ';'v€r in rb; inter€sts or craritv andiii'Jiiiiiii"i''r'", 'r'"

nationar rneasuresimpo'. )Y1i:1T,Y2ii'T"'l,iiiol,,' i#!r,f:i ^ * ffi ::, :',- -: "A{ *'Y"::; "::mt:t,,i3i:r l:: ::l;";'"ut'Lt];f;)tl;"

-, , Home ofrce tts1[rE.c.R. t3ii.

[28]

4i

PnrNctprrs oF Co N,{v L,.l.,lrry LAw L52

glrion which a direcrive imposes mav rtr4s V n Duyn sought ro reiy on Arr.Jmeasures taken on grounds of publicpersonal conduct of ths individual cc

The ECJ. held that ]\4s_Van Duyn could rely on Art.3 of D|jective 641221because it was. sumciently precise and unconajtioual. nemartin;;;;;;i;.,lhe stalus of direcrives the ECJ stared:

,'where the Community authorities have, by directivq imposed on Member Stalesthe obligation to pu$ue aparticular course or conduct, the useful errect of such anact would be w€akened if individuals !n"tionur "ou,rs ana iii;. ffiil;o1:[il?ilj.f ,TiilJ:IIT,::]:,::?JilHi.rn element of Conxnunity law...

The direct effect of directives is not the norm. This is because the MemberState to whom the directive is addresseo musr lncorporate that directive intoirs own narional law. The position thus,directly applicable wirhour the need faOnly the failure to implement a directrequired by the directive will result in Ineeding to) rely on the provisions of tr

L50

7_S1

However. the ECJ _retied on Art.l0 EC Tieaty which provides t hat:,,Member z_Szstates shall take all appropriate measures. whether i.*iJl. p""ilrr"lensure fulfitmenr of the obligations arising o"t oiiruTii.;ri: .i::'--"' '

The ECJ laid _down three conditions that must be met before the individuarcan , s uccessfully claim damages against the U"-U", ii"t.- *ii"f, -f"lt?lmplement a directive correctly or i-n trme.

fi:llltH:::.S ff ,ffi c";,"-i ';;;tin1"i:",i',"iii,iii ti'iJil'il

l2el

,_<7 THs CoNrN.trNrrr LecAL ORDER

(1) The result laid down by the directive involves the attriattached to individuals.

(2) The contents of those dghts must be capable of idenoroyisions of that directlve.

(3) A causal link must exist between the failure to imdamase suffered.

2-53 Dircctives do not have horizontal direct ellect. This was confirmedn the case of Marshal/2r in which it stated:

"With regard to the argument that a directive may not be relied uponindividual, it must be emphasized that according to A.ticle ... [249]Treaty the binding nature of a directive, which constitutes the basisbility of rellng on the directive before a national court, exists o y itr'each Member State to which it is addressed'. It follows that a directiveitself impose obligations on an individual and that a provision of anot be relied upon as such againsL such a person . . .". a

The definition of "Member State" in this context however is broand thus a1l directives are binding upon all public bodies ialised industries.25 police authorities26 and health authorities.2T

(v) Decisions

2-54 According to Art.249 EC Treaty a decision is "binding in its enthose to whom it is addressed". Whilst the provision makes nothe direct effect of decisions. However the ECJ has held that decisidirectly effective.'8

(d) Indirect Effect

z-55 Where provisions of Community law are found not have directmust still be taken into account by national courts when interprctingnational legislation. This reflects the obligation of good faith impoMember States by Art.l0 EC Treaty. This concept of "indirectrelied upon by the ECI in Marleasingje where the action wasoperaton. The ECJ reiterated that directives cannot impose obliindividuals. However the ECJ qualified this by holding that the a

'z! Case 15A84 Ma6ha t) Southanpton and South-West Hahpshirc Arca Hea h AE C.R.723.,a Case C l52Ja4 Marsha lt So thanpton and South lyest Hlmpshrc Arca Health[1985] E CR. ?23, para.48.?5 Cas€ C-188/89,Forrel

' Btt6h Gas plcItg9olEC.R. I-3313, r'ara. 20.

'16 Czse222l84 Johnsto,t y ChieJ Constable of the Roral Ulstet Constubulary It986lE.'11 Czse 15A84 Marcha v Southanpto and South-West Hahpshirc Arca Healh AECR,723:3 See discussion in Craig and de Brirca, tU Zalr. Text, Cases and Mate dls (znd ed,Umv€rsrty PresE 1998), p178.,e Czse C-lO6l89 Ma easkg SA y Ia Conercial Internaciokal de Alimentaci6n SA llI-4135.

[30]

PRrNcrprEs oF CoMMrrMTy LAw L60

l

IiII

(e) General principles

.ron or interpretation of the Treaties or

(i) proportionality

The principle of proportionalitv is ordecrs.rons. The principle requirei thatsrve burctens or interferences. The mtarm must therefore correspond to thenecessary to achieve thar aim. Considthere was a less intrusive or harsh mar

I[ll:lt]:."t oqporrionatiry may be used to cballenge measures adoptedoy ( ommuntty institulions and the legislation enacted b,y M"nrb.;St";Jr;"gve efiect to community law.

L57

2-58

z-59

z-40

, : :cbb: t ! ! :4i t Carso i UKJ a/dLragj lWL.R.49",ca.e.C )68t95 Lk.ian A,ca.o lrgo;l E 6.R. r 4705.' For insralc_e An. t2 EC r*"iy'."

"1,"'_ii*rilnln^,_r.;"EIIi;i,',1:ff:#i,:,';:"::x::;ly:y:,i,;iilconnhno,sof ,he Ecr'e77tEC.R,'24,,

t3 tl

THe Coultrt'IrY LscAL ORDER

(il') Legal Certainty and Legitimqte Expectation

2-61 The principles of legat cerlainty and legitimate expectallon

related. The principle of Iegal certainty means that tnose

Co^rnonitv law should not bi placed tn a situation of uncertatheir legal ;ights and obligations Therefore measures directed at ior com-oanie-s must be clear and precise. They must be able to aso

iime at'which the measure comes inro effect so thal th€y may bri

-"r,t pto"""dittgt under Art.230 EC Treaty rtithin the strict tr

rime-limit. Li*;d to this principle is the principle of non-r€troactiDroyides that Community measures should not take eflectbetore tl

iished. Th"re ute ex"eptions to this rule where there is justificatio^n

rluiw fi if,oufa be noted however that nearly all judgmerts of the.",i6.o..tiu. unless the ECJ expressly limits tbe retroactive effect Idoctrine of ternPoral effects.lt

2-62 The principle of legitimate expectation dictateslhat an individualr,ble to acr in reliance that Community law wlll be properly applleo

The principle is generally used whether decisions are directed at Indr

co.panies for in'.tance in cases concerning the recovery oI State ait

i"""ii io. Co*unity staff and compensation Additionally it maygeneral application where for instance the indwidual haj an exP^eri aii""t# *o"n rc given proper effect through national measures lM-.-b"t Stut" hut u degree of discretion however in Community law

il" noligitirnut" "*pectlation

of how that discretion will be exercised

(iii) N on- D is t imi n a t i o n

2-63 The fundamental character and importance- of -the

principle of

ment (or ''equality" or "non-discriminatio-n r') ls beyond co.uolpf" ir'i"nJ"o in the preamble to the Universal Declaration of'n-igf,tt ruoffn) ttttich iharacterises the

-"equal and inalienable rigl

-""-l"it "r tr,,j human family" as the foundarion of freedom' j

p"o"" in tft" word. The principle is confirmed by Arll1llD.Il,'iiao tiioi;:ou n"."n beings ari born free and equal in dignity and riUy A.t.Z UOnn *ttich provides the-entitl"P::lt, of :'"u"tv:l", -,..19uia it"iaornt *irftout distincuon of any kind" {such as race colour,guage. religion. political or othe r opinton{.ui:o"^' ol:o:t-1,9t:.q}_Bitif,-ti oirr"t-itut"s). Further,.qrt.Z UOnn provides that "allbefore the law and are entitled without any discrimination to equaloi-ttr" i"*" fUo."ou"r the dght is a rule of customary internationalit tir"

"o-"ttton" of internationat human rights lawr3

t'S"r f- Sil, t"*r"* C"* C- ISAne Grzelczyk and Cenrre Publk d aid? tocial? d O

la-lvelve 1200ll E.C.R I-6191i; i"" r* i".,"i* c"" l5ot88 socieft fnnqhe de' Btstuitt Delacte .u C^on'nl's:o:Il

r iii lii"Ci'i i -:i"et8't oiiarc"ii roio,io ,twonona rabac(hilteetlE c R Ii''ii'"..i*ioi" i.

"u;.*lv describ€d as'the PrinciPle of equalitv""'equal trealme

discriminati;n", used herein wi!houi drstinction;i;;;;;p[;i";"se decided in the refus€€ coniexr.bv the Hous€or Lo-rds-rn

,r'"i"ii" "?.iJi""a"-"'ial

principle on non d$cnm;Dar\o '*e Islam! sectetary o{

;;; H;;-D;;;;;;;;, i t innig)aion Appeat rribunt and secrctarv of state Iot I

Depatmen Ex p Shahl199912 A C 62e

l32l

pnrNc[,us or Covltr,NrTy LAw Z_4j

rnc€ntrlc circles of graduated excluston.,u-us . . _ and theretbre has the appear-nlsj rbakes it all rhe hard to a.u.r.l th"

(iv) Fundamental Human Rights

1911se{ lxnresstr in rhe Trearies 2-67rD tbe held of the ftee movement'a srgnfrcanr impact and wil l be

iIi

i'lh'e

t33l

PrrNcrpres or Couut'N[y LAw

"Our societies to be constructed on concentdc s of graduated.. . ln larg€ance of nat

this process is unconscious . . , A therefore has the aDDit all the hard to revial

implicit exclusion,and inevitabi l iry, {and thislmuch iess reform if'.al

There is at least oneple by Europeans is

reason why the imising. This is thatl tbough the principle is ii

regalded as a comers of all human ights protection it is correctobserve that the principle articulation through other riThus in the context of the E tion on Human Rights forple, non-discrimination is not ing right itselli but ratherlinked to the enjoyment of the o screte Convention rights.a2

However ths poll result does reflect the importance of thein the context of the Communityple lies at the very heart of the Er

order. The non-discrimination pri

exercise of free movement righapplication of the principle in

Union. The principle underpins

dealt with in detail in Chap

on persons by the EC Treaty. :. of free movemeut rights wi

(iv) RightsFundamental human ri expressly in the Treatjand by the ECJ on a n of th€ freeof persons, fund t impact and willexamined in detail i

r"Tbepol that m perc€nt ofEuropeans rank€d equatily in the €yes law as a righa

agalnstat all ti.trler and more lhan 80 per cenr betieved io a ri;hr ro protertion

By conlrast. a m€Ie 66 p€r ceol lhought the righ! to{ See

,dlou. Dy conrrasr. a m€re oo p€r ceol thought the right to v\re should b.al I cr rcumsLa nces (sou rce: Eurobaromerer Op No.4? ( | 9o?), I )"The Hnman Righrs of People wjth Disabitiries Un de; EU'LN- in jhe EU andftsrh (:g.by_P Alsto_n, Oxford Univ€rsity presq 1999), Chaprer 9

Quinn 'The Hurnan Rre]rts of peopte wirh Disabitiries Und;r EU t^aw.,in fr" fUdndR|grrr {ed. by P Alsron, Oxford.Universiry press. I999r. Chdprer q

14. ECHR prov'des rhat. -rh€ enjoymenr of rl. rigtN and freedoms set fonh in rhis[::",.":!"1 lttl :f:..a '';tr'out Ji'..ii,ni,"tio" ;; ;;7;.;;;;; ;.',;"e *I;*!"19"1e;. priq*. p"ri";;i .; ;;;-;;i;;ffi;il1 il::ffil,?*:ffi: ;:fiTnarional qrinority, piop€rty, binh or oth; status"

ascribed to the

of occasions. In theal human rights have a si

[33]

f-j

';i

Cuerror 3

RELATIONSHIP BETWEEN EU AND HUMAN RIGTTTS LAW

U law of intemational human irhts lawqhts. Over recent years human ri'ghts la,"tt tole in decisions concerningfrie mote-

l THE SouRcES oF HUMAN RrcHTs nr EU LAw

(a) The Treaty on European [Jnion

The protection of fundamental human rights is clearly provided for in Art.6 Hlof the Tieaty on European Union (EU Tiiaty) which s6a;s:

Article 6 EU Trcaty

1- The Union is fouDded on the principles of liberty, democracy, respect for humanrights aDd fundamenral freedoms, andthe rul. "f

d;,;;";;l;i;;il;;;";;""to the Member States.

1The Union shall respect fundamental r ights. as guaranteed by the Eurooeanronven0on tor the Protecl lon ol Human Rights and Fundaminral freejom:signed in Rome on 4 November 1950 and as tlfr"y,"r.ft fi.^ lf," ""ir.1,t-"-if.""atraditions common to the Mehb€r Stares, as g"n-irt p.in"ipl., oi-Co_rnroitvlu*.

3. The Uniot shall respect the natiotral identities of its Member States

4. The Union shall provide itself with the means nec€ssary to attain its objectivesand carry through its policies.

Luman rights is made elsewhere in theLes for a mechanism for the suspension+ts in a Member State, includine vor_

serious and persistent breach of ,l*c" thu'the Member state has bJen in

Tieaty. Article I I EU Treaty provideslorms an objective of tbe EU's comm49 EU Trealy provides that applicanUnion should respect the princitles la

As is plain from Art.6(lJ EU Treaty, the European Convention on HumanRights (ECfiR) is central ro the European Unio"t tr".nan'.i!-fr;;

";;;ment. As all Member States of the European Union are partie. i" t'fr" 6i:-iiinand the ECHR has legally binding standards, tt "

,.f"r*"" io if," -i-CHfi'i"

the lreaty ts logical. However there is inevitable tension caused by referenceto the standards of an intemational instrument which is

"tr""Oyirp"*iria

342

3-{3

[35]

H3 RELATIoNSFuP BETWEEN EU AND HUMAN RIGHTS

and enforced by other international bodies, namely theand the European Court of Human Rights (ECtHR). The inbetween the ECHR and EU law is discussed in sreater detail

(b) The Chater on Fundamental Rishts

r44 The prospect of the European Union having its own humanm€nt has been under discussion for a number of years. TheUnion has got in attaining that object is th€ EU Charter onRights (the EU charter).

H5 The EU Charter is a statement of the principles and values wthe European Union. On December 7, 2000, the Presidents ofParliament, the Council and the Commission simed the EUon behalf of the three institutions. However no reference to thcwas included in the Tieaty of Nice. The EU Charter thusany binding legal force. The current negotiationsConstitution for Europe include the possibility of making thepart of that Constitution and therefore legally binding.

3-.06 The EU Charter is broad in content bringing together in onethe rights previously found in a variety of legislative inational laws and international conventions from the Council ofUnited Nations and thc Intemational Labour Orsanisation.

3-47 The EU Charter contains a prcamble and 54 articles, groupedchapters:

. Chapter L Dignity (human dignity, the right to lifg theiotegrity of the person, prohibition of torture and inhumaning treatment or punishment, prohibition of slavery andChapter II: Freedoms (the right to liberty and security, revate and farnily life, protection of personal data, the right tofound a family, freedom of thought, conscience and religion,expression and information, freedom of assembly and associdom of the arts and sciences, the right to education, freedoman occupation and the right to engage in work, fre€dom tobusinesg the right to property, the dght.to asylurn, proevent of removal, €xpulsion or extradition);

. Chapler lll Equqlity (equaliry before the law,cultural, religious and linguistic diversity, equality betweenwomen, the rights of the child, the rights of the elderly, ipersons with disabilities);

Chapter Molidqrity (workel.s' right to information andwithin the unde aking, the right of collective bargainingthe right of access to placement services, protection in theunjustified dismissal, fair and just working conditions,child labour and protection of young people at work, famibfessional lifg social security and social assistance, health ca

t36l

THE SouRcEs or HUMAN RTGHTS rN EU LAw H)9

to seryices of general economic intercst, environmental Drotection.consumer protection);

Chapter V. Citizehs' rights (the right to yote and stand as a candidate atelections to the European Parliament, the dght to vote and stand as acandidate at municipal elections, the dght to good administration, theright of acc€ss to documents, the ombudsman, ihe right to petition, iree-dom of movement and residencg diplomatic and consulai proteciion);Chapter yl: J stice (the right to anprcsumption of innocence and the :ity and proportionality of cdminalto be tried or punished twice incriminal olfence):

Cbapter VII: Generul prorisions lincluding righrs speci_6callv relatine tocirizenship ol the European Union such as free rnovement i ightsl. -

(a) Relationship Betrveen the ECHR and the EU Chqrter

Whilst the text of the EU Charter largely mirrors that of the ECHR, it ismore generous than the ECHR with respect to certain rishts. Dartjculaflvsocial and.economic rights, such as the right to engage in w:ort til.f jf, tfri,right to_ education (Art.14) and collective labour rights (Art.l2)- For histor_ical and political reasons the ECHR did not originally have ai its core arrysocial or_economic rights. However with the passing of time such rights havecome to be seen as increasingly fundamental.

There are inherent limits to the EU Charter. In particular Art.5l EU Chartcrslates:

1. The proyisions of this Charter are addressed to the instjtutions and bodies of theUnion with due (egard for the p nciple of subsidiarity and to the Member Statesonly when they are implemenring Union law t hey shali therefore resDect rhe rishr<observe the p nciples and promote the applicatioo thereof in accordl""" *iifr-ifr"iirespective powerc.

2. This Charter.does not establish any new powet or task for the Coomunity or theunron. or modtty powers and tasks defined by the Treaties.

and Art.52 EU Charter states:

L Any limitation on the exetcise of th

2. Rights recognised by this Charter which arc based on the Community Treaties orthe Treaty on European Union sball be exercised under the conditioni and withilthe limits defined bv rhose Trearies

3-.08

g)9

1371

3_10 Articles 51 and 52 make clear that the EU Charter does not alterof rights conferred by the EU and EC Treaties and is not applitions not covered by the Tieaties. The more general protectionECHR in all areas is th€refore not mirored by the EU Charter.

1-11 Article 52(3) defines the relationship between the EU CharterECHR. Its purpose is to ensurc the necessary consistencyCharter and the ECHR by establishing the pdnciple that, in sorights in the present Charter also correspond to rights guaranECHR, the meaning and scope of those rights, including authoritions, are the same as those laid down by the ECHR- Howevet asscope of the EU Charter is clearly broader than the ECHR, wiemphasis on social and economic rights than the ECHR. Articlein any way prohibit this more extensive protectioo of rights.

2. THE PRorEcrroN oF Huvau Rrcnrs ny rne Europr,qN Counr or

(a) The Path to Human Righls Protection

3-12 In its early case law the ECJ did not see itself as a guardian of hand r€jeated any submission that a Cornmunity measure shoulddown for non-compliance with human rights provisions enshrined iconstitutions or in intemational agreements to which the relevaolState was a signatoryt Member States were thus left to ensurewith own their human rights obligations even in areas falling withiaof the Treaties.

3-13 This position taken in these early cases was clearly not sustainable ithe ECJ'S view of the primacy of Community law and itsnational law. Such supremacy could only be maintained ifwas itself able to guarantee the protection of basic human rights iaance with Member States' intemational oblieations. It was onlv toter of time before the European Court of Human Rights assened itsof compliance witb ECHR standards and found that the transfer ofa supranational body would not absolve a contracting party to thcfrom its oblisations under the ECHR.2

rJoined Cases 16 & 18159 "Geitlifls Ruhrkohle -ve*oulssesellschaJr nbH, "Ruhkohlen-Ue*aufssese schafi nbH 'Prbsi.le t Ruhtkohlen-le*aufssesellschafl

H9 Rnlarrorqsnrp BerwlxN EU AND HUMAN RTGHTS LAw

3. In so far as this Charter contains dghts which correspond to rightsby the Conveltion for the Protection of Human Rights andFreedoms, the meaning and scope of those rights shall be thelaid down by the said Corvention. This provision shall not preventproviding more extensive protection.

Assocruted Conpanies v High Authotity oJ the European Coal an.l Steel ConmunitySsa ata v Conn|ssiok [19651 E C.R. 215.l Ind€ed in t999 in the case of Matthews t) Unted Ktngdor' (Applrcalion no 24833i94,18, 1999) th€ European Court of Human Rishts stated uneqDivocally that Memberbe r€sponsible for Community actsunder the ECHR.

[38]

1

Tur PnorpcrroN on HuMAN RrcHTs 3_18

The potential then for conflict betweengreat if the ECJ continued to assert rhe sout regard to human rights. The firsr a

neral principles of Communitv taw'n its facts the ECJ did not consider

6ine, this judgmeat represented " ,[l?il:l','iliF,tT I#;LT.:'il#:*il1:the protecrion of human rights in Community law.

In the yeals that followed the ECJ bcsanrights. lnit ially this was by referenci roStales. It In t ema tiona le H ande ls ges e I ls chalits protection of fundamental riAhts was .ditions common to the member itates',. On the facts the ECJ stated that rneimpugned regulation should have its validity .;uOg.a Oy i.f.r.n"""il' tfr"fundamental rights which it said formed .,ari intelrl pLri

"i tfr" n**aprincipJes of Comrnunily law prolected Uy rne Coui oi iu.t i;:.-""

*^

refering to "mtemational trcaties 3_16presentmg an additional source of) years that followed the ECJ wasln the application of sDecific pro_Its and international trJman riitrts

These incremental developnenlr curminated within about a decade in the 3_17position reached rn Cinethesue1 bv which time rn. fij *, itr.ii.r^ir,ybound to ensure the obser-vance' or ru"aarenta ".[i;

t"'ffi ;:d".fr the EU Treaty and therefore oriorded to in the Trealies governing tneved 'respect for and protectioq oftlegnl. inhereDr, transverse priuci_i and powers of tbe Communitv.sfor such principle.

Of further significance in llachauf,e the FCJ held that as a consequence of 3_lgthe. place that fundamental huniin rights fr"fa i" til" -c"_-"ittv'iJ*r

order the Community could not u"""pi -"urrr.",

*hiJh "i"li""'irrr""iBf"

,.^o,. ro,o" "to^",- rd!f, ll/10 Inrcmalionate Hahdpt\."vt^h"n nbH I EinJuhtsund yotatstctle fit Gewide un(tqtu tu,tutrtcueJur \'erfetae u a

R.491ue.,r/ s75l E.C.R. l2t9andCase t j0/7s pra,Jlerence to specific provisions of rhe ECHR,derctian Natio ale des Cinenas hancais llg1'l

rces in Human Rilht, io fhc Eu and HunurPress" 1999.,. p.I57.

{aal Il989l E.C.R. I-2609, para.l9.

[3e]

3_18 RELATIoNSHF BETWEEN EU AND HUMAN RIGHTS

rrith observance of human rights protected by nationalinternational human rights standards

(b) The Special Protection of the ECHR

U9 Tbe particular significance of the ECHR in the protection ofhuman rights in

-ommunity

jaw bas been repe^ated by-rhe ECJof o"""ti6nt. In 1986 in the case of "Iorrtrror,ro the ECJ urcial sisrificance that the ECHR had in protection of funishtsln Community law. As the ECJ explained in tRl

"the Court has consistently held, fundamental rights form an in1

general principles of.law, the observance of whf! 1!-"i:l'-":-1:bourt diaws inspiration lrorrr the constitutioral traditions common Iitates and fromthe guidelines supplied by international trcaties forof human riglts on which the Member Slates have collaboraled or

aie signatoriis {see, in panicular. the judgment in Case C-4l71 Nr,ld

Il974iECR 491, paragraph I J). The European ConventioD on Hipeciil simificance in that respect" "

3-20 In Kremzow,r2 the ECJ pointed to the importance of the ECHRIdation of the fundamental rights which are the integral part ofprinciples of Community 1aw.r3 Reiterating earlier jurisprudence

the ECJ held:

"The Convention (i.e the ECHR) has special signifrcaflce Ut f(

ures are not acceptable in the Communiiy which are incompatibleof the human ghts thus recognised and guaranteed" r+

(c'1 Consequences Today for Free Movemenl of PersoE

1-21 Undoubtedly the specific reference to the ECHR in Art 6(3) EUfo*ified the ECJ in its approach to the ECHR. In recent years lnfree movement of persons the ECJ has made increasing use oftected by the ECHR, in partiaular Art.8, to justify its conclusi

,?2 ln Caruenter,r5 the ECJ considered the position of the family

spousei of a provider of services who had infringed the imfiugn

7o c^n 222t84 Joh^ron, chicl constable oJ the Roval ul er consnbularv Ll98q

[40]

THE pRorEcrroN oF HUMAN RTGHTS 3_26

the United Kingdom. Notwithstanding the breach of nationals laws the ECJheld that she was entirled to reside in.tie t.-t"ry *itiih;;;;;id". I.;;,rsso, the ECJ read Art.49 EC Tieaty in light ot the iundamenial ,i*f,i ," ,"*_"",for family tife so as to infer a righi of rJsid;".;'ir;d;;i;il';;:;'-"

hlMRAX,|6 theEc! ruled, inter qlia, that a Member State may not refuse to 3_23rssue a residence permit to a third country national maried t,j "

,"i[""i "ra Member State who entered the territort or that Naen;er S;;;;;i;ii;'r"the sole,$ound that the visa expired before th.y

"tpli;Ji;;;;;#:"""Dermlt. ' /

These-two cases illustrate the determination of the ECJ to ensurc the protec_ 3_24tion of the family life of Member State nationut, i" oia", to "fi_i;;#;;,"_cles to the exercise of the fundamental I

"[t]he decision to deport Mrs Carpenter constitutes an inteaference with the excr_cise by Mr c^arpenter of his right io respect fo, his f.mittiii;;ifin ;il ;^*'sot Anicte 8 of the Convention for the protection of Urrnuo il_il;';;.I-u,ldameltit Fr€edoms.. signed at Ro-" on + Noue.obii tgso,-*irl"il ri

"fiji_ ur"tundamental rights wbich, according ro th€ Court,s settled casiJaq i"ri"t"a'Ui ifr"Preambte ro lhe Sjngle European Acr and by Anict. 6(ri;rj- ;; o-i."ija',"Communitv law" re

The ECJ took a similar statce in Baumbasof Reg-1612/68 on the free movement oflight of the requirement of respect for[ECHRI''. As a consequence thi ECJ fourights of the child to enter into educationto live with his primary carer.

(d) The Impact of the E(J Charter on Fundamental Rights

As slated above at the present time rhe EU Cbarrer is nor legalJy binding in J_26Communiry law and is not referred to in rhe Treaties. The Etj?d c';i h";.uot tended to use the EU Charter as a primary source of funau."nt"f ,i!frt,but more an ancillary source.

17 Se€ paras 1l 08 to t l-10.'" C-601O0 Catpente. v Setelary of State lot the Hone Depa nen! LIOOZI E.C.R. t_62:,9.e c-6u0io carycntet , secnri,y' o1 srirc ror rhe n"^1" o"p*,i*, iloozf iii. j rzr".h Czse C4l3lgg Baunbo.st and R I Seoetary of Statefor the Hone Depatunent I2XO2IE.C.R.

[41]

3-27 RELATIONSHIP BETWEEN EU AN-D HUMAN RIGHTS LAW

3-2? In the few cases in which the CFI has even referred to the EUrefeffed to the fact that fundamental rights in Community law areth€ common constitutional traditions of the Member States andwhich are "affirmed" by the Charter,"

as a source of specific inspiration for the protection of fund

3_28 DesDite the number of times that the Advocates-General rcfer toCharter in their opinions,22 the ECJ itself has yet to druw on the EU

Cou of Human Rights considered the rights of transsexuals torefered to the fact that Art.9 EU prcvides the dght to marry Y'iinclusion of the words "men and women" which appears in theDrovision in Art.l2 ECHR.

3_29 It is notjust to that the ECJ is out of step with the ECTHR in thisKB,z a case which followed on from the European Court of Hdecision in Goodwin,the ECJ failed to even refer to the EUdemonstrating its ingrained resistance to reliance on the EU

(e)) The Future for Human Rights Prctection in the Community

3-30 Despite the ECJ'S apparcnt willingness to adhere to fundamenrights, particularly more rccently the standards of the ECHR,tainly criticisms that can be made of the ECJ'S approach. Thereoccasions when the interprctation given by the ECJ to human risions is more restrictive than that afforded by the ECIHR. By way

rights in the community legal order. This is somewhat surprisingthe ECJ out of step with the European Court of Human Rightsitself refe[€d to the EU Charter and specifically drawn inferenceswording of specific provisions. In Goodwin v tlnited Kingdomz3 thc)

ple there is a clear conflict between /{oe chst (ECJ)25 and Niemitzover whether the right to privacy as guaranteed by Art.8 ECHRbusiness premises.

3_31 There are a number of occasions when the ECJ has failed todamental human rights questions raised by a litigant in proceeding!not be necessary for the ECJ to address a human rights issue every

'1t CaseT-171t1t Jiso-8u6ft et Cie SA v Connissio l2002lE C.R II-2365, paE347: see also Cas€ T-54i99 Max Mobil I Connsslon [2m2] E.C.R Il-313.

" According to the European Institutions website the A G have referred to the EUrnor€ than 1b0 of thejr opmions since lt was agreed in2o}o: SoUIce http:lleuropa eLaI eel e n I I vbl 13 3 50 I h tn.

'1t Goodwin ! UK (2002\ 35 E H R.R 18, para 100,a Czse C-lr1 tll KB t ( 1 ) Nanosal Health Se^rce Pensions Asenq (2 ) Secrctu tHealth (2004) judgment of January 7,2004, not vet reported.15 C^seT-tollg Hoechst AG I Connhsionlt992lE.CRrI-629!6 Nienitz rl German),,December 16, 1992, Series A 251-8.)1c^se B6n9 National Panasonic (UK) Linited , Connission [1980] ECR.C-168191 Ch stos Konstantindis | (I) Stadt Altensteig (2) IandrutsamtIl993l E.C.R. I-1191 at:d C r59l9o Society fot the Prctectio of the hbo' ChAitssti g.C.n. r+oss. por fu(her analy$s see spi€lmann in P Alston (ed.)' flie EU!nrgr/J (Oxford University Pre3x 1999). p7g.

l42l

,j

] I

THE PRoTEOIoN oF HUMAN RIGHTS 3-34

raised, particularly if the answer to the qu€stions referred by the nationalcourt can be provided by reference to

'

However it leaves a sense that the ECJ relirit has no other arguments to employ rn a(is correct then the consequence is likely totection wil l not be consistenr. This is prhr-rman rights protection must be con;istently available, interpreted andapplied if it is to be real and meaningfirl and not illusory.rr

There is also an apparent reluctance on the part of the ECJ to finrt 3_32C_ommunity institltion^g as opposed to individual Member States, in breachof fundarnental rights.3o This is a padicular cause for concern since absolv_ing Conmunity institutions from fundamental human rights oblisationsundoubtedly creares a frame\ ork in which there is n-o incentii,e io.CorDmunity institutions to act compatibly with fundamental human riehrs.The application by the European Parliament to stdke down a council direc_tive on the basis that it does not conform with human rights demonstrates thefrustration of at least one Community institution thaifundamental humaDrights are not at the heart of all acts of the Community.sr

These problems might be resolved however in the near future by the incor_ 3_33poration of rhe EU Charrer into the Consrirutjon lor Europe ani the possi_ble accession of the European Union as a legal entity to the ECHR. Inclusiolof the EU Charter into the Constitution for durope will undoubtedlystrengthen the Charter's position in the Community legil order and make ltsprovisions legally binding on the Member Statea a;d institutions of theLOmmumty.

However inconsistency between the ECJ and ECTHR will not be rcsolved by 3_34incorporation alone; neither will the reluctance of the ECJ to arrswe, humaorights questions necessarily disappear. There arc som€ who thercfore haveargued for the accession of the European Union to the ECtHR.3z

rB C-oppe-ll and O'Neill, who in "The Europ€an Court of Justice, Taking Righrs Seriousty?,,(1994 29C.M L.Rev.669; state ..[e]videdlylt is economic mtesration, ro-b€ a;hiev€d rhro;ghthe acrs ol Communiry In*rruronj uhrch tre Cou"

" . ." r , nr iuna".*,ut ; ; ; i ; l ; ; ; , -ing and adapung lhe slogan of prcrection of human ri8hts Lhe coLrrr has s€ized the'moral hi"hgrcund. How€ver, the hish rhetoric of human rishb paotction can be seer

", .";;iirrr-;

lpact of European la]v".

| (ed.r, European Civil Libe4ier a d the EurcDean64 at p.3?6, of ihe WachauJ czse \hete the'ECIrd the €fect of depriving a lessee of rhe ftuits ofArt.l, Protocol 1 ECHR) and chose jnstead ioe i t is Member Srares qhicb ' .musr. as far as Do$e requirements" of fundamental human rishts.rcil of the Europ€an Union in respecr of Co;ncilh th€ Parliam€nt alleges that the Directive onals is in certain respects "unacceptable,' in viewre Court should annul, pursuant to Art.230 ECof the Directive This case is pending.

session reeel2000 on th€ EU cha(€r or Fun;',?:"ffiTlr[iJffijf:;,'rb'lJ, l?t';, 'ii,$:0 t0 406?00 4.

1431

3_35 RELATIONSHIP BETWEEN EU AN-D HUMAN RIGHTS

35 In its Opidot 2/94 the ECJ held that as the law stood atCommunity had no competence to accede to the ECHR andto the ECHR would entail a substantial chanse in thetem for the protection of human rights in that itCommunity entering into a distinct international institutional

3_36 However the significance of such issues of competence willthe inclusion of Ad.I-7(2) in the EU Constitution which s

"The Union shall accede to the European Convention for theRights and Fundamental Freedoms. Such accession shall nolcompetences as defined id the Constitution".

The EU Constitution was agreed in June 2004 although it isand ratified by all Member States,33

rr The omcial sigriature of the EU Constitution is planned to take place beforcactordhs to tle conclusions of t-he June 2004 EU summit meetiDeThereafler national Parliamenls musl ratify the Conslitulion. a proc€ss thalyears to conclude See discussion above at paras l-27 lo l-28 on Treaty

wl

,1, '

". Cnarror 4

UNION CITIZENSHIP

This chaptet examines the creation of Anion citizenship and the rishs sive toUniot citizens flowing from such citizenship. The intirpretation -sivei bv theECJ to these tighrs will determihe the ttue rea(h of lrie movenent rightt lorpe\ons throughout the EU.

Article 17 EC Treaty

l. Citiz-enship of the Union is hereby established. Every person holding the natiorFality of a Member State shall be a citizen of the Union. Citizenship o1th" Unionshall complemell and not replace national citizenship.

2. Crtizens of the Union shall enjoy the rights conferred by this Treaty and shall besubject to the duties imposed thereby.

Article 18 EC Treaty

l. Every citizen of the Union shall have the right ro mov€ aod reside freelv withinrhe rerri lory of lhe Member Stares. subjecr to the l imitarions and condtLi;ns laiddown in this Treaty and by the measures adopted to give it eflect.

2..I f lcr ion.by the Cornmunity should prove necessary to atrain this objecLive andthis Treaty has noL provided rbe necessary potrers, the Council mav ajool orovi_sions with a r iew to laci l irat ing the exefcise of lhe r jghls referred ro i ; paraeraoh I.The Council shallacr in accordance wirh rhe procedure referred to in Art ic-le i5l.

3. Paragraph 2 shall not apply to provisions on passports, identity cards, residetrcepermrts ot any other such document or to provisions on social secudty or socialprotection.

l. IuropucrroN

The principat concern of this chapter is the analysis of tbe impact on thenghts of nationals of the Member States of the establishment ofUnion ciri_zenship conferred by Art.17 EC Treaty and of the right of Union citizens tomove and reside freely contained in Art.l8 EC Tieaty. The uniqueness andpoteltial enormity of these provisions-based on the creation of the novelconcept of citizenship of a supranational body-should be acknowledged.

rk$ound to inclusion in the EC Treaty'of the Union". two questions are con-of Union citizenship has added any-s of Member States- Secondly, whetherd in Art.18 EC Trcaty creates discretealready contained elsewh€re in the EC

,Hll

442

t45l

,H)3 UMON CIIZENSInP

2. HTSToRICAL BAcKcRoUND

443

,1-05

A6

As already acknowledged. Union cit izenship and the.rights

ruit u t',ig. uouun.e on the ethos and d1m?1i:t "l'.1!tIL:

i"i"-."ti"-,il**ft.d bv the Treaty establishing tle Eurgg^c'"ii-"iiiitdil ln Rome in 1257 (see generallv chapter l)

i-ii'i" *6"" T*"ty within the Euopean community was lir

ii,*.'iJtri.-""* ui nationals of .Memb":,s11-":':-tlj.l:t:i'i",ii"t st"i.t

"r ;onomic activiry-whether as employee'

service provider'

int€mal frontiers

' 119891Or c20J.

Houever. as obsened by the Commissionr such state of aflain

uiior.J io .on,inu. indefinitely since it-did not fully. comply !t

ffi';;;,;t*d;;;ri" oi *'" rt"utv or Rome or "the abolitii;;;;;; s,;;;, of obstacles to the free movement of I.uj..i*.

"it

"t, one linked to the performance. o[ ec(

M"oreover. such state of affairs did not meet the polrttcal lsil;i;h;;;i;it;;, in 1e74 to move towards a "crtizens' E

The first step away from the necessity to carry out.economlc 2

precondition of the exercise. of frt: t"::lt^l:^:l::t^H:i::

[..i"r"i .]'iols; i" extend the freedom of movement of per:o

!"oiorni."ffv acrive. The proposal -larer YithdrllJ',,:-a:e-;;;ili; as an important step towards the completion of

-"if"i.- et, it was the adoption of the Single P"Tp"ul 1

l::${yJ : g ,Jff: run ll":l''.:lr*,TJ::iii'iiiiii;; ii; ?;ffi;rn pu-t forward three proposals coverins slpersons and others not ensaged"ll:::-1:1':"1::y'?;,I^1lt;lffi;ilp;i;;;;i;; zs, t6sb oi olrecti"es e0/364' e0/365 and

The final stage in attaining the general right to movemeot am

""rt"i""Ji"i.tt f 8(1) EiTreatv was thJ t"":-ry--"ti9",9f :l:

it"ti#'i"ri;.iti,,p 'ionruineo iit Part Il of

^Maastricht.TreattF"i:rr.i'i, insi..'the provisions (Arts 8 and 8a-€ of the

E-s..n"po,,r,o'',t.co'n-r,.ion,ott'c""T:lr":iJ!*i'if ff ;l:?'lTJ*1999 oD the rmplementalion ol Drrs vu/ro'+'

'r

l'*lll';"- *" "".-T"lq" T^*? gi'^'l::r."ll,,H'.T?I:3,T'fffi::,:i;#f #J:r+F$'*J'l"m:z:m:l''.r.lr*lr.:tf; l; $'i:',1';:T:lj iT?'yl#'il$iq:fl it:I"?.: t'"1',," .."*"rrr,-11'j "rr$ *T:,rrlffi ,;::iii"y;";:*l'*1i,xilit'n"l,g'**l mn::'"'"];,'i,;;i$xiili J

" Bt"?'uY.';iu l .',* rishl or residence; Dir' 90/165 on rhe risht of residt^nc!

*1'"ri-.*pr.v.a p.^."s who have ceased their.o':111"-""1^'l :::li:,,i:0":K::il"Tli;:::ii;iili:'i'iii.'i"'i.. "pr*"a-uv

o;r e3ie6 arrer annur''eor or trricii'-i"t. c zqvso p,i tiancnt v couhciltggzlE C R l-4193)'

[46]

ARrrcLE 17 EC TREATT: A NEw FoRM oF CrTrzENSHrp 449

4-{8

'ii

came into force on November l, 1993. After the signing of the Treaty, theDeclaration by th€ Birmingham European Council in October 1992 statedthat ". .. citienship of the Union brings our citizens additional rights andprotection without in any way taking the place of their national citizenship".A Declaration attached to the Trcaty setting up the European Communitynotes that "the question whether an individual possesses the nationality of aMember State shall be settled solely by reference to the national law of theMember State concerned".

However, the ghts of free movement and residence throughout the Uniondo not represent the totality of rights enjoyed by Union citizens. Specificprovision is made also in Part II EC Treaty for:

. the dght of eyery Union citizen residing in another Member State tovote and stand as a candidate in municipal elections and in elections tothe European Parliament in the state where the Union citizen resides(Art.19 EC Treaty);

. the right of every Union citizen in the territory of a third country toprotection by the diplomatic or consular authorities of any MernberState where the state of which the person is a national is not representedin the non-member tbird country (Art.20 EC Treaty); and

. the ghts of every citizen of the Union to petition the EuropeanParliament, to apply to the Ombudsman and to write to EU instituiionsor bodies in their own language and have an answer in the samelanguage (Art.2l EC Treaty).

Moreover, citizens of the Union, and indeed third country nationals residingin the European Union, also enjoy fundamental rights. Such rights, and theirinter-relationship with the coDmunity legal order, are considered in Chapter3. The Amsterdam Treaty completed the list of civic rights of Union citizensand clarified the link between national citizenship and European citizenship.T

447

3. ARrrcLE 17 EC Tne.,Lnr A Nrw Foru or CrrrzBNsnrp

G,) Introtluction

The creation of the Union citizen was heralded as the dawn of a new era in 4{9Conmunity law, with Union citizenship 'dcstined to be the fundameqtal sta-tus of nationals of the Member States'. Two particular questions arise inrelation to Union citizenshiD.

? Art.l? EC Treaty was amend€d to clarify the link between European and national cirizenshrpwith the addition of the unequivocal text that "citizenship of th€ Union shall complement andnot replac€ national citrzenship" Further the Amsterdam Treary established the n€w right (con-tain€d in An 2l) for Europ€an citizens to write to the European Parliamenr, rhe Council, theCommissron , the Court of Jusdce, the Court of Auditors, the Economic and Social Coffnrtlee,t}le Committee of the Regions or the Ombudsman in one of the languages of the Treaties andr€ceive an answer in the sane language.

l47l

4-10 UNroN CmzeNsHrp

,{-10 Firstly, what dghts and benefits are there for holders ofover and abovq those that accrue as a result of other ri

4-11 Secondly, what is the relationship between Union ciizenship? Whilst Union citizenship is not intended tozenship, if rights accrue to its holders then Union cienhances national citizenship. At the same timg however,undoubtedly also creates a potential tension with natiotralticularly where such citizenship has consequences forarc wider than anticiDated.

(b) Rights and benefits flowing frcm [lnion citi

(r) Non-discrimation and Article 12 EC Ti

+12 Union citizens may find themselves residing in Memberthat of their nationality for differcnt reasons. Wh€re uning Treaty rights the obligations consequently imposed onwhich they reside is the subject matter of Part II of thismost part laid down in primary and secondary legislation-Uniou citizens who exercise free movement riehts

the EC Treaty? In summary the answer to this question itain circumstances Union cirizens will enjoy lhi proteddiscrimination provision contained in Arl,l2 EC'freatyare exercising lree movement rights.

Treaty enjoy the right to equal treatment entailing the rightECJ in Bickel and Franz8) to "be placed on an equal footirof the [host] Memb€r State"

4-13 However, wbere Union cit izens do not fall wirhin suchl€gislation as free movers, their rights and the obligationsthe Member States in which they reside arc far morc coninclusion of Art.l? in the EC Treaty such persons obtaimatter of Community law since their status in such otherno Community nexus. Moreov€! still less were Memberobligation to treat such persons any differently than theycountry nationals.

3 Casec-214196 Bickelatd Frunz Il998lE C.k I-?637 The case concemed(r€spectively) an Austrian lorry driver charg€d with driving while under rhc iand a German tourist charged with possession of a piohibited knife. The iBickel and Mr Franz could rely on the principle of non-discrimination onity iD order to b€ graDted the dght to have the criminal proceedingsother than Iralianwhere that right is granted to certain Italian nationalsG€neral had pointed to the Iack of any obvious link with Communityitself on its earlier d€cisionin Cowan (Czse 186187 Cowan I T6sor publicltthat the situations of both Mr Bickel and Mr Franz fell withm the scoDe ofbecause the situations gov€med by Community law included thos€ coveredthe recipients of servic€s to go to another M€mber State in oder to receiv€An.59 EC Treaty As such they w€re "entitl€d, punuantloArt 6lnow l2l ofment no l€ss favoDrable than that accorded to natronals of the host Stale souse of languages which are spoken there" (para. 16).

[48]

irl those States.

Sincerhecreat ionofUnioDci t izenshiptheEcJhasconsistent lyamrmed.the+15-importance of this inlerrelationship bltween Arts I7 and l2 EC Treaty'As

the ECJ stated i\ D HooP:tu

ldamental status of nationals of thenselves in the same situation to eojoythe same treatment in law irrespective

Id that the ECJ is here deferring toge variation in Practice between

ARTTCLE 1? EC TREATT: A NEw FoRM oF CITIZENSUP ,+-18

There is no doubt that the creation of Union citizenshiP.has lllrllllfj?lY tt4

irli''llJi liriil;d;. u"r"'-"iit.",t',p l"' ol9Y19:11'S:1TX'P"1:Y;H;:il;;f;il i.rnio" "iti,."'

guin ttre prote^ction oi {r,t.? l-c::"^":vunJui" tft"i"Uy able to aacess a rangc of benefits and.rights on.aion-

ii:".ri;i;r"ry'b;i;ltti'r'"' vt*u.' -states This protection,Tt:::^Yl:T:lil:"ifiil;ii"#;Jrig to establishing a Commu;itv law risht of residence

@te d ouicniev LowainJo-Ne'v? [2001]

E di.rii'jj, c"" c 4i3tse Ba rnbast.and R u.)"*":!11:{:'f:!::",'!:,I;I""o{An"

r"l j""#-m.#1';f !i:"-:f,til#i'i:#;"11stT11Y'HEcRr-6rert,:*riz,#:l#'#li';:::z',Y:ffi|\B:,!E:l',#l

Member States.l1

exercising free movement righ-tsration on Member States to tacllFiext the scoPe of Art l2ECTrcatY}le exercise of the free movementol exercising free movement rightsrther Member Statq the scoP€ ofited because of the absence ot thet.

The case of Sc/ar2 was the first to identify the benefit that Art lT EC lelty.: +r8

"t""-it-"iif't"t "itrt e" iz ec rt"utv, t;"rd b ng to^Union cit'1111 t*ft'

;4"""#ffi^s;;;ttrt t^ti"*r wto ttad lived in Germanv s'ce 1968'

afii*-g'ii" "tipf"v-""t

doing various jobs until 1989' she had since then

[4e]

,t-18 UNroN ClrzENsHrP

been in receipt of social assistance. In January 1993 an apchild-raising allowance was refused on the ground that sheGerman nationality, t residence entitlement or a residence

4-19 The ECJ had no doubt that child-raising allowance fell withinscope of Community law. This was the case both as a familythe meaning of Art.4(l)(h) of Reg. 1408/71 and as a socialthe meaning of Art.7(2) of Reg. 1612/68.15 As regards perconalreferdns cou were to conclude either that Mrs Sala retainedworkerG or of employed personl? her unequal treatment would

- : ) But what if Mrs Sala rctained neither status? The Cornmissioqthat Mrs Sala would be able to rely on her Art.l8 EC Treaty dmore to bring hercelf within the pe$onal scope of the Treaty.according to the ECJ it was not nec€ssary to decide whether Mrsrely on Art.l8 EC Treaty to obtain recognition of "a new rightGermany since she had "already been authorised to resiAccording to the ECJ she was within the personal scope of theprovisions on Union citizenship as a national of a Memberresiding in the tenitory of another Member State. As such sheunder Art.l2 EC Treaty not to suffer discrimination on groundsality in matten falling within the material scope of the Treatystated included child raising allowance). In the words of the ECI

"63. . . . [A] citizeb of the European Union, such as the appellant inceedings, lawfully resident in the territory of the host Member State-Article 6 of the Treaty in all situations which fall within the scope ratiof Commudty law, including the situafion where that Memberrcfuses to Brant to that claimant a benefit that is provided to all personsident in the territory of that State on the ground that the claimant ission of a docunent which nationals of that same State are not requiredthe issue of which may be delayed or refused by the authorities of tlar

ra Until May 19, 1984 Mrs Sala obtained residence Permits running more or lessruption; ther€after she obtained only documents cedfying that the extension ofpermit had been applied for. However the Europ€an Convention on Socia.lAssistance of December I l, 1953 did not allow her to be deported. A residenceoq Apnl 18, 1995 was issued on April 19, 1994 (whch was extended for a funh€r20. 1995).t5 C^se-85196 Maninez Sala v Frchtat Baye ltggSl E.C R I2691,para57.rd Within the meaning of Art.39 EC Treary and of Reg 1612/68u Witlin tlrc meaDing of Reg. 1408/71 .

'3 A.G fa P€Eola also focuss€d on Art.18 EC Treaty. In his opiDion since th€of Art.8a: 'The right of resid€nc€ can no longer be considered to have b€e! created90/3641. . . The right to rnove and reside freely throughout the whole of the Udorin an act of primary law and does not exist or cease to exist depending on wheth€rbeen made subject to limitations uDder olher provisions of Community law, inchdileeislation The limitaiions in Art 8a itself concern th€ actual €xercise but not thcthe risht.. Art.8a extract€d the kemel from th€ other freedoms of movem€nt-which we trow 6od characlerised as tbe righl. not only to move. bul also 10Member Slate: a primary rigllt, in tlrc s€nse that it apPears as the firct of thecitizenship of the Union" (para.l8)te CNe-86196 Martinez Sala , Freistat E lreth ll998l E C R l-2591, para 60: s€epal|as 4-25 to 4-29 fot the rcl€vance and meaning of beng "authorised" to resid.iMember State.

[50]

,i

Sal4 was noyel insofar as it provided the link between Arts l7 and 12 EC +20

Trcaty with the consequenc€ that Union citizens lawfully residing in otherMember States fall to be treated on an equal footing with own nationals lt lsto be emphasised that ,Sa/a concerned a benefit that was expressly provided

for in secondary legislation and therefore that the benefit fell within the scopeof the EC Treaty was less open to question. However more dimcult qu€stions

would arise if the Union citizen sought protection against discrimination inan area which did not so obviously fall within the scope of the EC Trcaty

Where a Union citizen is exercising free movement rights in another 'tl!-

Member State that Memb€r State is expected to comply with Communitylaw, and in particular to pr€vent discrimination, even when exercisingcompetence in areas that fall outside Community law and within the exclu-sive iompetence of the Member States themselves.2o But how should thrspdnciple'apply in situations where th€ Un.ro!..9giz,e-n- 1!'uo!-q(ercisi!g -f-r.eertroY94941 riChls?

ARrrcLE 17 EC TREAT\a A NBw ForM or C[rzsNsHrp 4-23

The ECJ had to grapple with this questiot it Atello.2r The case concerned -dispute between Mr Avello and the Belgian State concerning an applicationto ihange the sumame of his children who were dual Belgian and Sparishnationali.22 The ECJ expressly acknowledged that the subject-matter of thedispute (namely the rules governing a person's surname) was one fallingwiihin the exclusive competence of the Member States iather than theCorDmunity.2s However, according to the ECJ the fact that the Union citizenchildren were residing in another Member State provided them with a sulfr-cient link to Community law enabling them to be allorded protection underArt.l2 EC Treaty. Such a conclusion was not undermined by the fact thatthey also held the nationality of the host Member State to which the hostMember State wished to give preference to.2a

Whilst the Belgiar authodties were entitled to apPly their own rules as 4-23resards surnamis to their own nationals, where those nationals also held thenationality of a second Member State, the Belgian authorities werc not enti-tled to treat them as if they were Belgian Dationals alone without p€rmittrngthem to benefit from the holding of their second state natiooality. If a

'a Case- C-224102 Pusa v Osuaspankkien Keskmainen Uakuutus'-htio'indsment of April 29, 2tMconc€med the taxation of a Union citizen who was €xercising the right to move and resrde inanother M€mber Stat€. Whitst taxation is not harmonised at Community law level and ther€foreis normallv said to fall v.ith the exclusiv€ comp€tence of the individual Member Stateq the ECJheld thal ;uch compelence must be exercised n complianc€ with Conmunitv law and thus rnArt 12 EC Treaty. 3irrulzny iA Eken (Case C-135/99 Elsen rt Bwdesl)enichetunssanstalt tu'Ansestellte)1*f'ECI cotrid€red the rules relating to the calculation ol old age pension allowancefeliwithin the comoelence of Member Stdtes' However such legi(lalion musl be compaiible with

Community law. If national legislaion is disadvantageous to thlse who have exerqsed their fr€emov€ment riShts such legislation would be incompatible with Colunumty law

'1t Case C-l48lO2 At'ello | -Be1gnm, iudgment of October 2' 2003:1 Mr Garoa Avello, a Spaniah national, and Ms I Webq a Belgian national r€side in B€lgiumwhere they mafied ln^1986. Applying Provisions of Belgian law the registrar entered the

Datronvmic surname of their father ("Garcia Avello") on tleir certificates as their own sumamein application to change the sudame to "Garcia Weber" (in accordance with well-establishedusase in SDaDish law) \tas refus€d

' l t CaseC-l48to2 Ave oI a?/sun 120041c M.L R. l , para.25

'?a For a discussion on dual nationalitv, see Chapt€r 5 below.

rl

t5u

Spanish national were residing in Belgium he would be enrirledsumame conferred in accordance with Spanish law. A dual Belnational should not be ih a worse position by virtue only of holdinationality.

Further development of the relationship between Arts 12 and l7is to be found in the decision of the ECJ n Trojani.zs'fhe case wfrqlg.h natiooal residing 91 a Salvation Arm_y hostel. io Belgi,um runqenooK vanous Jobs ltr return tor board. lodglng and sorcmoney". He approached the Belgian authorities for payment of thesubsistence allowance (thg minimex) which was refused on the grhe was not Belgian and r.iali6t a worker The ECJ left the dereiuithe question whether Mr Tiojani was a worker to the nationalevent that the natiotral court were to conclude Mr Trojani was notand since due to his lack of resources he could not derive anyfrom Art.18 EC Treaty, the ECJ considered his position as a Unialone. Mr Trojani was in possession of a residence permit issuedthe Belgian authodties. The ECJ held that a Union citizen in such acould rsly on Art.12 EC Treaty in order to be granted a social assiefit such as the minimex. The ECJ canvassed the possibility of theState taking measues to remove a person who has recourse to publiHowever, any such measures could be undertaken by the Membersubject to two important caveats. First, the ECJ recalled thatnot be the automatic consequence of having recourse to publicSecondly, and most importantly in the present context, ths ECJthat whilst the person contiques to reside in the host Memberentitled to benefit from the fundamental principle of equal

(i) Lawful residence

+25 The ECJ appears to make as a precondition to the benefit of theequal treatmcnt guaranteed by Art.12 EC Treaty that the Union"la\vfully resident" in the host Member State.2e Lawful residencepurposes is defined by reference to national laws and practices.therefore there is scop€ for significant divergence of approach as reconstitutes lawful residence as between tb€ various Member Statesful residence" is an absolute precondition to access Art.l2 EC Ttection there is a potential for Member States with restrictive ilaws and practices to limit the benefits of Union citizenship forzens residing in rheir territories Whether the ECJ woulddivergence is doubtful. Moreovel the case law suggests tlat lawfulis not to be strictlv construed.

ts Cas€ CA56l02 Trojani r Centre public d'aide sociale de Bnfietles (CPAS),Septcmber 7, 2004.!6 Sec funher ChaDter 7.

'CasE C456t'2'nojani v Centre public d aide soeiale de Bn&etles (CPAS),September 7, 2004, at para.45.

':3 See Case C- 184/99 Grze lczyk I Centre Public d'aide sociale .l'Ouignies-Louvain-la-E.C R. tjl93.:'See tunher Case C-456to2 Trcjafi r Centre p blic d'aide sociale de Bruxe es (CP,m€Dt oI September 7, 2004, para.39.

Is2l

Arrrcle 17 EC Tteerr: A Nrw Fonl'r or Cnrzsusntp 4-3o

In S4la,ro Mrs Sala at the releYant time could not be removed by virtue of 4-26piouirio". contained in thq, European Convention on Social and Medical

issistance. She had only documenis confirming that an application had been

made for a residence permit. Although the ECJ describes her as having been;u,ritroiir"a to ,"rioe'i. her situation was in fact not one of authodsation, but

raiher one of toleration on the part of the host Member State'

There may be a wide variety of situations in which Union citizens reside in 4-27

ttre tertito'ries of otfter Member States without having fulfilled administrative

ioimalities and in which their presence there is apparently tolerated Firstly,

Learine in mind the administritive difficulties of actually seeking to enforce

the rerioval of Union citizens who do not possess residence permits, such tol-

eration is likely to be common in Member States Secondly, in hght oi the

Ui"uaii of tft" "o""epts

of (for example) worker and work seekel there will

frequently be a \ery fine line between who is and who ls not ln lact exerclsmg

ir.e moue-ent.ights. Thirdly, it may also occasionally be the case that Union

citizens will havJmoved to Member States intending to exerctse a particular

frce movement right, without ever actually doing so

The Sa/a31 decision therefore apparently includes in the beneficiaries.of pro- 4-28

tection of Art.12 EC Treaty a broad spectrum of Union citzens res-tdrng ln

Member States who are not in possession of resideoce permits Plarnly ttus rs

io U" *.t"o^"a if Union ciiizens are not to be socially excluded and

disadvantaged in other Member States.

Even however if the foregoing analysis of residence and toleration is. too 4-29

broad, and lawful residence it required. such lawful residence need,no-t-have

been aontinuous or for apredetermined period of timein ordjr that the-Unron

citizen is able to benefit from the protecti'i,li#itl,"t":;ff3ly;;:"ij'#i

t in a Member State "for a c€rtanrcrson whose residence was initiallyain a reasonable period to find work

and who thereafter c€ases to fall within the scope of thc Aee mivementpi-iti""., ttt"Ua

"n the ECJ'S analysis nonetheless benefit from Art 12 EC

Treaty,

(lii) ScoPe of Article 12 EC TrcttY

The scope of situations in which Union citizens have b€nefitcd from the equal 4-30

tr"ut-"ii p.o"itio" .ontained in Art.l2 EC Treaty has been both broad and

"-i.a. ii fl", included non-discriminatory access to: Ibe minimex (froJ:a't):

.r"iJ-i"iiitn all,cwance (Sala; and the ability to change surnames ('4vello)'

iii."iit is ,lveltotr makes clear, the ECJ has even been prepared to extendiri" t""p"

"i Lt.rz Ec Treaty for Union citizens into areas that fall.within

iii" "*"iuri* "o-p"tence

of Ir4ember state$ However, in particular in such

10 Case-85196 Ma inez Sata v Frcistat Bavem ll998l E C R I-2691'! aasE 85196 Maaihez sata I Frcistat BavemLlgggl E c'R I-2691

-6:^"i-c-t\iitcn i;i;i v cenie pubiic d';ide ;ociate de Bruxettes (cP'4s)' iudsinent of

SeDtember 7. 2004, Para 41.

" tase C-148102 Av; o ! Relgiflrn [20041 C M.L.R l. para 25

I[531

4,30 UutoN CnrzBr'rsH rp

areas fallinc within the exclusive competence of Member Stat6emphasised that the plot€ction provid€d bJ Art.l2 EC,Tr:ajy is nand wi be subject fd objective justification invoked by Membacontentious areis of social policy, for example, a Member State Ito suard iealously its right to maintain and uphold such policy

deference would likely be given by the ECJ to such pleas.

Moreovet there will plainly be limits to the ECJ willingness to exEthe material scope of Art.12 for Union citizens Where the Udseeks non-discriminatory access to a right or benefit whose prousl

have financial ramifications for the Member State concerned tbcrequire substantial objective justification for the discriminatory Ilryh"t" ott the other hand there are financial consequences f6Member State from the provision of any such right or benefit,likely to take a more restrictive^ approach. Such analysis.is not cbv the ECJt decision it Trojan?a wl:Lich concerned non-discrimrto the minimex (a non-contributory means tested benefit), sinceis a benefit guaranteeing only a minimum level of subsistence q

given arguably engages the Member State's human rights obligati

4-31

4-32

4-33

those cases it is the obligation of Member States to facilitate the '

such rights and to eliminate any obstacles to.free movement l5.All

benefiti which in any way impact on the ability of Union citizt

cise the right to move and reside in other Member Stat€s must

the scope of Art.12 EC Treaty since such Union citizensdisadvantaged by their having moved.36

k\ Tension between Union \nd nation^l citizenship

responsibility.

In its original form as it appeared in rhe Maastricht Treaty. ArLlArt.l7(l) EC Treaty] conrained no reference to- Union citizenshiprn.niing'rutf,.t than- replacing national otrenship. It was the

3a C^se C456nZ Tojani I Centre public d'aide sociale de Bruxelles (CPAS)'

S€pkmber 7, 2004;1.. r.ii*i.pr. c"* c-t38lo2 Cottin v Secretrtry oI slarc lor .wo'k and.

oi rnlu."fr z:. ZbOa ",n"t"

th€ ECJ held that a work seeker was €ntitled to jo

on a non-discriminatory basls

" s"" C"'" C-r:srss i/"- v Bndeeetsnhe nssa stalt Jb A seslelhe L2lvnlpztz.34.

t54l

ARTIcLE 17 EC TREAT\a A New Fonlr or Crrrzolsnrp 4-35

Treaty siened more than five years laterrT which clarified the link between

Eurooeai and national citizenship adding to Art.17(l) EC Treaty the

uneqidvocal statement thaf"citizenship of the Union shall complement and

not replace national citizenship".

If such clarification was not reassurance enough for Member States, the ECJ +34

has reaffirmed the sovereignty of Member States as regards the dght of

Member States to determin; the acquisition of nationality and also the con-

ferrins of the status of Union citizenship.38 As made clear in Chapter 5, the

natioiality of the Memb€r States is determined by reference to the domestic1aw of fi; individual Member States alone. A Member State may change its

laws relating to the acquisition of nationality without reference to any. EU or

other bodv.-and it is permissible also for Member States to define which of

their nationals are to be considered EU citizens for the purposes of EU law

Nationality is thus a matter exclusively within.the competenc€ of the

Member Siates, although where a Member State wishes to preclude some-of

its nationals from obta-ining EU law benefits it must do so by means of a

declaration.3e

DesDite such reassurance however the tension remains. It is well shown by the 4-35

June 11, 2004 citizenship referendum in Ireland which was proposed by Irish

Justice Minister Michael McDowell to end what he claimed was an incentNei.t i.i"i*

-.tft"rt to sive birth in Irish hospitals, so called 'baby toudsts' 4

When th"e Advocare Ge-neral gare his opinion in Clcn ar Mr McDowell took)Dort the Uovernment s reletenoumion sent out a clear message Lhat ifthey have to do is get to either Part

It is not inconceivable that the holding of the Irish referendum was motivated

in part by pressure put on the Irish by other Member States'

see ChaDter I above.;i* CL" c-zsilss Chaol| Chiu Huns' iltd]ttlent of Julv 12, 2001 and Case G1e2'9-9

-LeO,in v Sec,eta,y ol St"tefoi rhe Home bepanmen Et p Manj Kawl}0oll.All E R- rECl2s0ETle ttK: aectararion means lbat lhe lollowing are to be considered as nahonals lor.InepuF

oiecls with rbe right of abode in the UK and c)€ that citizenship as a result of a connection to(Cmnd 9052, 1983)orah Condon Gosted on April 7, 2004 on then an An. by Mark Brenn ock in afhe hbh I:inesto citiz€nship") Mr Brennock refers to Mr

Y€sterday, however, h€ said: _Thrs is nor ao issue about mtii"

""rv iiu .,",. .n

'l"g nadonal and therefore Eu-wid€ titizenshp rights to babrcs whose

Darents came bere solelv for lbis purpose" - - ,. ll:C^i C.iinnz u', i*arc Cien v Kunqnn Cathetine zhu

' strctatv of stale lot the Ho4e)

3r The Amsterdam Treaty was signed on October 2, 1997 and came into force on Mav 1, 1999i

Depd.tuetl, opinion of May 1 8, 2004;K; ::R;;;lj- d; i ,iijenship referenaun" tv Deborah co16on (?ost€d on Mav 1e' 2004

or the website vtvw. ishhealth com)

t5t

,-n

4-36 In theory a Member State could seek to prevent its citizens fromthe benehts of Union citizenship the greater such benefits becomewhilst such concerns might well dictate the wishes of certain

authorities to curtail dghts, the rcality is that it is too late lt is not

to dissociate Union citizenship from the citizenship of Member Stito create categories of persons who could enjoY the frde movementthe economically active and inactive, but not the rights associated I

citizenship. This does hot mean, howevet that a-Member Stateseek to e'nter a declaration which would have the effect of delnationals of all benefits of EU law (as for example in the case ofdeclarations), nor that a Member State would not seek tocitizenship laws as Ireland has done

4. Arrrclr 18 EC Tnftrv: Tus RIGHT oF UNIoN CITIZENS ro

(a) Introduction

4-37 'fhe insertion of Art.8a (Art.l8(l) EC Treaty) into the Mwas svmbolically importanl. It placed at the heart o[ the EC Treatyrfor ali Union citizeni to move and reside freely in the Member States.free movement rights had always been iore to the EC Treaty, theintended beneficiaries wete th€ economically active. Until the MTreaty. the substance of free movement rights for the economicallyiwas described only by secondary legislation.

4-38 The extent to which Art 18(1) EC Treaty was more than merely sla question that the ECJ is still answering. 'There is potentially aintirpretations which could be given to Art.l8(1) EC Treaty:

Art.18 EC Treaty adds nothing of substance to free moverwhich are conferred exclusively by (other) existing EC Treatyand secondary legislation. The aonditions and limitations laidthose other provisions are to be stdctly construed and al

4-36

"rcstrictive interpretation").

UNIoN CITIZENSHIP

Art.I8(1) EC Treaty itself founds the right to move and residereference to any neid to establish that the ght is already pror

ar Subject of cours€ to Treaty amendment-

ts6l

'r,-

ARrrcLe 18 EC TRsart THE RIGHT oF UNroN CITIZENS ro MovE 4-42

elsewhere inthe pre-existing speciic provisions contained in the Treaty orsecondary legislation rclating to free movement (a "free standing right").

Each is considered in turn below.

(b) A restricti|e interpretstion

The narowest interpretation of Art.18(l) EC Treaty would deprive th€ pro-vision of any legal impact at all, in eflect charactedsing it as having littlemor€ than political significance. Such approach is reflected by (for example)the submissions nade to the ECJ in GtzelczyW by rhe Belgian and DanishGovernments that Union citize$ did not obtain through Art.18 EC Treatyrights that were "new" ot "mote extensive" than those already derived fromthe EC Treaty and secondary legislation. As the ECJ itself charactedsed theirsubmissions: "The principle of citizenship of the Union has no autonomouscontent, but is mercly linked to other provisions in the Treaty".a5

The ECJt response to such exho ations by some Member States has beenone of resounding rejection. As stated by th IECJ in Baumbast a6 (and as con-sistently rcstated thereafter), Art.18 EC Treaty $ants a right to reside whichis conferred directly on every Union citizen. Although the ECJ acknowledgesthat the right confer,Jqd is qr,bject to limitelion!.and--c.o,n-ditions, th€ applica-tion of tho€iirnitations and conditions is subject tojudicial revierd. The nar-row approach advocated by some Member States is thus plainly not onewhich the ECJ approves.

(c) An inlerpretatite obligation

The majority of the cases to date in which the ECJ has considered Art. I 8 EC ,|-4lTreaty reflect "the interpretative approach". This approach sees the "limita-tions and conditions" refefied to in Art.l8 EC Treaty as those provided forin existing primary and secondary legislation, but insists that they must beconstrued against the backdrop of the fundamental right to move and reside.

The cases of Grzelczyka1 and Baumbasla\ provide good examples of thrsapproach,

Grzelczykae concemed a French student studying in Belgium who during the 4-42final year of his studies was refused pa)ment of the minimum subsistence

4 Case C-184/99 Grzelczyk t Cmrre Public d'aide sociale d'Oxignies-Louvoin'la'Nene l200llE C.R. I-6193.6 Case C-184199 Gzelezyk I Cenfe P blic d'aide sociale d'Ottignies'Louwitt'la-Neuve 120011E.C.R.I 6193, para.214 Caf€ C4l3l99 Baunbast and R I Secrclatr of State lor the Hohe Depd nent [2tD2] E.C.RI709t.a? Case C-184/99 GEelczyk I Cente Prblic da le sociale d'ottignies-I'ouvain'1a-Newe l200llE.C.R. t-6193.8 Czse C4l1l99 Baumbas! and E I Secrctaty o.f Stotefor the Home Depa ne I200AE-CRI-7091{' cas€ C-l 84/99 Gzelczyk I Centre Public d aide sociale d'o ignies-I'ouvain-la-Ne ve L200llE.C.R.I ,6193.

+39

440

[57]

442 UrroN Crrrzrlsurp

allowance known as the minimex because he was not aECJ emphasised that Union citizenship was ,,destined to bi tstatus of natiooals of-the Member States, enabling those whorn the same situation to enjoy the same treatmeniin law inationality. subject to such exceptions as are expresslysituations included those involving the exercise of the'fguaranteed by the Tieaty and those involving the exercisemove and reside freely in another Member State as conferredrreary.

u3 Iq the context of Art.18(1) EC Treaty the limitations andto Mr GEelczyk were those contained in the Studentreading those limitations in conjunction with Art.lg(1) ECemphasised the following features of the Directive;

whilst Art.3 makes clear that the directive does not eto payment of maintenance grants, there are no provisionrtive that preclude those to whom it applies from riceiving rbenefits;

. as to resources, Art,l does not require resources ofamount, nor that they be evidenced by speciic doArt. refers merely to a declaration (or equivalent

Community law, either to withdraw his residence permit or notHowever, according to the ECJ "in no case may sucn measuresautomatic consequence of a student who is a national ofState having recourse to the host Member State,s social assistancethese circumstances the ECJ h€ld that:

enabling the student to satisfy the national authority as toity of sufficient rcsources (the rruthfulness of whic-h fell tonly as at the time when made)t and

the directive thereby dillered from Directives 90/364 anddo indicate the necessary minimum level of available j

Such factors did not prevent a Member State from takins the vdent who has recourse to social assistance no longer fulf i ls thehrs flght of residence or from taking measures, within the limis i

'Articles 6 lnow 12] and 8 [now l8] of the Tftary preclude entitlecontributory social benefii, such as the minimex, from beine madethe case of natiotrals of Member States other than the hosi Statelegally resident, on their falling within the scope of Regulation No Ino such condition applies to nationals of the host Member State,'.52

5t Dn. 93196119931O.J L3t7t59'C-a e 9-l8ai99 Gzelczyk I Centrc Public daide soci!'te d,Ouisnies-Louwin-ta-E.C.R.I-019. Dara.46

[58]

+-

ARrrcLE 18 EC TREATY THE RIGHT oF UNIoN CITIZENS To MolT 4=48

Whilst Member States might have previously construed the Student Directiveas placing an absolute bar o-[ access to social assistance, the ECJ has madeclear by reference to Art.18 EC Treaty that such a narow interpretation isno longer open.

ln Baumbastsl lhe ECJ considered the limitations found in the general ghtof Residence Directive.5a The limitations and conditions contained in thatDirective require that those wishing to enjoy the right to reside (and membersof their families) must be covered by sickness insurance in respect of a/lrisksin the host Member State and have sumcient resources to aYoid becoming aburden on the social assistance system of the host Member State during theirperiod of residence.55

Mr Baumbast satisfied the condition relating to sumcient rcsources. At issuewas whether his sickness insurance covered all risks.56 Howevel whatever theactual position as regards sickness insurance (a matter for determinalion bythe national tribunal), the ECJ acknowledged that the limitations and condi-tions laid do\vn by Directive 90/364 were based on the notion that the exer-cise of the dght of residence could be sub-ordinat€d to the legitimateinterests of the Member States which (according to the fou h recital in theprcamble to Dkective 90i 364) included the requirement that beneficiaries ofihe right must not become an "unreasonable" burden on the public financesof the host Member State.

Howeyer, reflective of the interPretative approaah the ECJ held that such lim-itations and conditjons were to be applied "in compliance with the limitsimposed by Community law and in accordance with the general principles ofttrdt taq iir pa icular the principle of proportionality".5? This meant thatnational meaiures adopted were required to be both necessary and appropri-ate to attain the objective pursued. APplying the principle of proportionalitythe ECJ stated:58

"92. In respect of the application of the principle of proportiolality to the facts ofttre Bawnbist case, it must be recalled, first, that it has not been denied that MrBaumbast has sufficient resources within the meaning of Directive 90/364; second,that he worked and therefore lawfully resided in the host Member State for severalvear& initially as an employed person and subsequently as a self-employed person;

ihird, that during thar plriod bis family also resided in the host Member State andremained there even afier his activities as an employed and self-employed person in

that State came to an end; fourth, that neither Mr Baumbast dol the members ofhis family have become burdens on the public finances of the host Member-Stateand. fifth. that both Mr Baumbast and his family have comprehensive sicknessinsurance in another Member State of the Union

446

447

448

5t Case C413tgg Baumbqst and R I Sec.etary of SlAte lot the Home Depattmeht I2$2lE C'R'1-7091.5a Dir. 90i354 U9901Ol Ll80/26.55 Dn. 90/364, Art.l(1)56 lt trad beenfound bi the UK first instance court that Mr Baumbastt sickn€ss insurance could

not €mergency treatment given in th€ UK: Case C 413199 Baffibost and R v Secrctaty of State

Jor the Home Departne"l, [2002] E C.R I-7091, para 89.''1 Case C413196 Baumbas; andk v SecrctLlv oJ Starc lot the Hone Dep tnent'I2002lEC R'

I-7091 Dara.gl.5s CaC4r3tgg Baunbast attd R v seoetar oJ State Ior *e Hone Depa merr [2002] E c R

I-?091.

[5e]

u8 UriroN CnzeNsrrrp

9J. Under those circumstances, to refuse to allo\r Mr Baumbast to

insurance does not covet the emergency treathent given in the hostwould ahount to a disproportionate interfercnc€ with the exercise of

(d) A free standing right

49 The most liberal interpretation of Art.l8(l) EC Treaty sees it asprovision founding the dght to move and reside for those notthe free movement provisions otherwise contained in the ECsecondary legislation.

Opponents of such interpretation would doubtless maintain thatpretatioo would render entirely otiose the phrase in Art.l8 ECthe right is "subject to the limitatiors and conditions laid down iqand by the measurcs adopted to give it ellect". In fact the inmore nuanced.

4-50 Such approach was first articulat€d by Advocate GeneralBaumbast.5e ldertifying the economically active and the ecoactive by reference to two discrete sets of rules60 Advocate Ceneralstated that Art.18 EC Tieaty added to such sets of rules "a generalresidence in favour of citizens of the European Union" which he

right of residence which is conferred on him by Article l8(l) EC byapplication of the.provisions of Directive 90/364 on the ground that

"a fundamental right in favour of citizens of ths European Unionand reside freely within it".

4-51 In Advocate General Geelhoed's view Art.l8 EC Trcaty hassigniicance in two respects. Firstly, the unconditjonal nature of theof Art.l8(l) EC Tieaty entails that the right of residence must benisable dght of substance for citizens. Whilst the provision laysments to be met such requirements must b€ neither arbitrary, norright of residence of its substantive content. Any limitations mustessence of the rights and freedoms, be proportionate and benecessary and genuinely meeting obj€atives of general interestthe Union. Secondly, the provision imposes an obligation on thelegislature to ensure that a citizen of the European Union canthe rights conferred on him under AIt. I 8 EC Trcaty.

The approach is summarised Advocate General Geelhoed6r in these

"Finally, the unambiguous nature of Anicle 18(l) EC entails that a personded to a right of residence under other provisiofls of Conmunity law catrless acquire such a right by reliance on Article 18. Since there is no si

5' Case C4l3l99 Dannbast and R v Secretary of State tor the Hohe Departften,t-7091.mAns 39 er req EC Trcaty dealing evith the economically activ€ and Dirs 90/354,93/95 d€aling v'it} the ecoDomically non-activ€-pam 104.6t C^se C4l3l99 Baunbaxt and R y Secretory of State Ior the Hohe Depa.tment,5,2001.

[60]

ARTICLE 18 EC TREAT!| THs RrcHr oF UNro]'r CITIZENS ro MovE 4-55

and all-embmcing set of rules conceming the exercise of the right of residence inCommunity law recourse mu,st be had in cases for which the Community Iegislaturehas mad€ no provision to Article I 8 EC. Howevet that does not mean that an unre-stricted right of residence is recognised in those-special -{as€s. The conditionsand limitations imposed on thal righi by EC law must be applied by analogy as faras possible to persons who derive their right to reside directly from Article 18 EC.The wording of the second part of Article l8(1) EC forms the basis fo! that."

The first (and to date only) example of a case in which the ECJ has embraced 4-53this approaah is D'Hoop62 in which the ECJ considered the positioo of aBelgian national who had completed her secondary education in Francebefore commencing university studies in Belgium. After she had completedher university studies she applied for a "tide-over allowance"-a social bene-fit intended for young unernployed people in search of their fust job Theallowance was refused by the Belgian national employment office because MsD'Hoop had completed her secondary education in France.

In assessing the provisions on Union citizenship the ECJ-as it had done in +54Grzelczyk-emphasised both that Union citizenship was destined to be the"fundamental status" of nationals of the Member States6r and that the situ-ations falling within the scope of Community law included those involvingthe exercise of the fundamental freedoms guaranteed by the Treaty "in par-ticular those involving the freedom to move and reside within the territory ofthe Member States, as conferred by Article l8 EC Treaty".6a

Of particular relevance for present purposes is the that the ECJ characterised 4-55Ms D'Hoop as someone who had exercised "the opportunities offered by theTrcaty in relation to freedom of movement".65 She had exercised her funda-mental right to move having undertaken her secondary education in France.This was an entirely novel approach. Sho ly stated this is because there is nospecific right recognised in the EC Treaty (or secondary legislation) to move forthe purposes of secondary education.66 Whilst the decision of the ECJ inRaulin61 reqtt:res equal t!€atment as regards vocational 1,Iai:I.i0Jg, the principledoasnot apply to general secondaryeducation. Although Art.12 of Regulation16 1216 8 provides a discret€ dght for the children of workers to be admitted to aM€mb€r State's 'general education, apprenticeship and Yocational traiDingcourses'thereis no indication thatMsD'Hoopwas exercising her own discreteright of access to secondary education as the child of a worker. Thus-at leastby implication-D'IIoop6E can be characterised as the firs t case in which the ECJtreated Art. I 8 EC Trcaty itself as founding the right to move and reside.

62 Case C-224198 D'Hoop 1) Olfice "ationol

de I enplot, judgment of July 11,200251 Case C-224198 D'Eoop 't olfce ha tional de I enplor, pam.28: as stat€d at para 3I of Gaelczyk,the ECJ stat€d that the status enabled tlos€ who find th€mselves in the sam€ siiuatron to enjoyelithin ttle scope ratione ndt€ra€ of th€ Treaty the same treatm€nt in law inesPective of theirnationality, subject to such exceptions as are exptessly Piovided for.s Case C-224198 D Hoop , Ofice national de I'enplo', para.29, as the ECJ had stated in CaseC-274196 Bickel and F nz u9981 E.C.R. l-?63?, paras 15 and 16, and G'zelczyk, Pztz336s Cas. C-224198 D Eoop v Offce national de I emplo;judgrnent of July I I , 2002, paras 30 and 33tr Save for the Art.12 right contaiftd in Rcg. 161268 considered below.61C,ueC-35789 Rrulin I Ministet va Onderwijs et WetenschaPpen ll992lB C.k.l-t027.6E Case C,,4198 D'Hoop v Offce tutianal de I'enpro, judgement of July I l, 2002.

t6u

4-56 UNroN CttzeNsnrp

4-56

4-57

,1-58

+41

4-59

4-40

Funhermore. it is important to apprecrate the significance of:li^,i11.i] 1"^"gl not.in torce at such time rtre p"rovisions Jn

;if f i{ft iltri1,:t?fi i,Tf ?x*:if, .H."#ilj,i;"i.,f;1,"",,1i*:il":l,llltf .il,H;,'lll::;"li,t{.t1i:,lry;she undertook her s""ooau.y .au"Jo"""ii"iiii;..

(e\ The fwure ol Arricle lB EC Treaq.

(r) Children

As Advocate General Geelhoed hasjffi ,x;:*1",1",: j]:illlJiil1ri,ff :1"*:'f ,fi *r,Lteducation. In essince rhose not "r;.;;;;;;;;li"lil',flI;#

As regards children, without Armov€ment rights, oth€r than as tt

::?ij'{fi:'iff .;ilL",T?!L:5

ilf j:l'n"":il.#:"iilTff#i'r* ji:,e chirdren who are not iThis category of children was conside

;^*.:"_iin:::ll#:!.t::i,::;T,'"?1;5'":ill:*1t'J',7ff*i,ff iiiil:"{!}:f ",::jri.,f;r$:ir*i;;yri.;s:rtf ]iLll"lii.::f!r,'.il:fl :'.ly*:hrul#;*"*{applied to the UK authodties f;;;;]e;;;;;";Hhi;#:fj

rhe. Directive. The ECJ h;ld,t "i I i *", irin.i""i ;; ;;:iil:i,:j:;stafes simply to -have'. the necessary resources in ora.. to U.n.ii

'' Dir. e3le6 o;rhe rigb;.i.*a."* i.?,i"i*"..'' t_ase C-224/98 D Hoop v Ofice natuaat .te 1, ;*: i".;f#1ru:#i#,3;::' "ffi, i".t;ffi:"1:;ti:tr:y;; j\i;,:;:;0,"r,,".

162l

ARTTCLE 18 EC TREATY THE RIGHT oF UNroN CITIZENS ro MovE fi6

right of residence given by Directive 901364.'fhal Directive lays down norequirement whatsoever as to-the origin of such resources.?a Furthermore, asregards the child's mother and caret the ECJ applied Baumbastl5 ar'd heldthat unless Mrs Chen was able to reside with her daughter this would deprivethe child's right of residence of any useful elfect.TsA

The result in Chen is unsurprising. As regards sufficiency of rcsources, theCommission has long held the view that Directives 90/364 and 90/365 do notmean that the requiremenl must b€ satisfied by the beneficiaries owaresourc€s, o! indeed resources originating from any dependents.?sB There rsno reason why the position should be dillerent for an EU national child withresources, whatever rhe origi of such tesources. As regards the position ofthe child's carer, the judgment in Cle, reinforces the firmly established prin-ciples that family members facilitate the exercise of EC Tieaty rights and thata child will usually be unable to exercise free mov€ment rights without beingaccompanied by a primary carer. The ECJ was clearly fortified in its views bythe existence of the childb Article 18 EC Treaty right to move and reside inanother Member State.

This decision will undoubtedly be of considerable benefit to EU nationalchildren whose parents are not themselves EU nationals. 'the ECJ rn Chenwas clear that the primary carer of such children should have a right of resi-dence. Such right of residence must include the right to work, which has longbeen recognised in secondary legislation as a corollary to the right of resi-dence of family members. In assessing the ability of the child to meet theresources requirement of Directive 90/364 the income derived forrn any workby the carer should be included in considering the level of available r€sources

(li) The poor

The present position (children aside) is that those who are not economicallyself-sumcient or economically active do not benefit from free movementrights. Clearly this is a deliberate choice made by the Cornmuniry institutionsin determining the beneficiaries of free movement rights.

As discussed abovq the "lawfully resident" and even just tolerated Union cit-izens are ablg by virtue of Arts 12 and 17 EC Treaty, to obtain a non-contributory benefit payable to own nationals on a non-discriminatory basis,thercby facilitating their further residence in other Member States.

It would undoubtedly be a considerable step forward for the ECJ to establisha frce movement right for the poor from Art.18(1) EC Treaty, although it isto be acknowledged that such steP would for some Member States be both

1a C^se C-2OO|02 Mdn Lavette Che and Kunqian Cathe ne Zhu 1) Secrctary oJ Stale lot theHone Depd ment O.rober 19, 2004, para 30t5 Case C-413lgs Baunbast and R v Seoenry oJ State fot the Hone Depa.rme'r [2002] E C RI-7091.15A C^se C-2oOtO2 Mak lal,ette Chen and Kunqiw Calhetine Zhu v Secrctdry of State Jot theHo e Depa ment Ocrobff 19, 2004, paJa 45tsB See ChaDter 9 at Daras F12 to 9 l8

4-42

M3

4-64

4-65

446

163l

44

M8

4-49

447 UNroN Cnrznrsgtp

resources. Thus financial limitations wllI not always operate so as

particularly objectionable and a step too far. However, it remains [o'ho* rnu.h longer rhe ECJ is prepared to countenance the re!

situation in which the already socially excluded find themselves discri

against fu her by Community law.

(lli) Limitatinns and conditions

Firstlv. the limitations are likely to include some financial constrgenerai principle it would doubtless-be said that.the,exercise.oflehts ousht not place an unreasonable financial burden on Vcirtainlfsuch prlnciple is one expressed (for-cxample) in.thethe irr.iJ ait""ti*,

"oncerning the economically inactive T6 Howeveq

settled that such principle could not be interpr€ted so as to.exclude ato anv finaocial benefirs. lndeed. such proposition is vouchsafed by

that Sala,11 Grzelczykls and D'Hoople each concerned access to I

the exercise of the right to move and r€side freely where such free-mo

becomes) impecunious. The conditions and limitations already laid

.*irii"g t..oilAu.v legislation relating to the economically inactiveusefU !aratrict in th'is respect. subject also to the"^interpretative gl'

"pon til"- Uv tn" gCJ (in for exaniLple Baumbastso)'

Secondlv. it is plain tbat the limitations justified on grounds of pupubtic iecurity and public lealth-rs provided exp:es:ly r9l.:Ltutlon io toit..t Ui ett.3gt3) gC Tt

"ty -must apply to any free

?6 Th€ Dreambles to Dirs g1l3(/, gc,t165 ar,d 93196 each contain the following recila&

tl" i"ri"na".i"" "r

,n.;gnt of r;sidence must not become an unr€asoDable burd€n orl

finances of thc host memb€r state;i ai C-arso uoann sata I Frcistat Bavem lt998l E c R t 2591a ia-se C-184/99 G1elevk v Centrc Public d aide so'iale d Otigniet-

E.C.R.l-6193.n it*i-'iiiige o'n*p v offce Mtional de I'enuloi' iudgment-of Julv I t' 2002'* Ci iJilgs n',-'ios, and R v Secrctary oJ state fol the Home Deparhenlt-1wr.

t641

^" Part TwoFREE MOVEMENT OF EU CITIZENS AND

THEIR FAMILY MEMBERS

In this chapter we consider who benefts Jrom the EC Treaty provisionsmovement of persons. The primqry focus is the identif.catioi of EU rualthough we also examine which third country nation;ls haye rights inlext of free mo|ement law

- Culrrrr 5

BENEFICIARIES OF FREE MOVEMENT PROVISIONS

l. CrrrzENSHrp oF THE UNroN

(a) The Union Citizen

The historical and conceptual basis of citizenship of the Union hascussed in Chapter 4. A rt. I 7. EC Treaty makes clear rhat Union ciridependent on holding the nationality of one of the Member States. Inlwords, anyone who is a national of a Member State is considered toUnion citizen but the European Union itself cannot confer status on anational of a Member State:

Article 17 EC Treaty

1..Citizenship of the U or is hereby established. Every person holding theality of a Member State shall be a citizen of the Union- CitizenshiD o--f theshall complement and not replace national citizenship.

. 2. Cjtizens of the Union shall enjoy the rights conferred by this Treaty andbe subject to the duties imposed thereby.

Such an approach concords with the well defined principle of internalaw that the ganting of nationality is the ultimatiact oi state sovereirelating to notions of diplomatic and coosular protection which onlv ais considered able to provide. Since the European Union is not equitala nation state. and has not replaced the siare in rerms of inrirnresponsibiliry., it is therefore logical rhat Union citizenship should bedeferential to that of the Member States_

The specific and detailed rights and duties confe[ed on Union citizenst1i$ Aoyp in the EC Treaty. In addition since the Maastdcht Treaty Uicitizenship has conferred four special rights:

. freedom to move and take up residence an],\rhere in the Union;

. the dght to vote and stand in local government and EParliament elections in the country of residlnce;

I Not tebohn, Case (Liechtenstek v Guatanata) rCJ Reports (1955), p4, Matlhevs y aK l999l28 E.H.R.R. 351: r,t '

Ur pirool LNL.'ri. 2l l Ar the sam€ tiheiDol inpossjble tbat rbe EU would replace rhe nation State iE intemational law r€rms, 4s ifEU were to accede to intemadonal covenants as a Slate Danv

t6n

5-{)3 BENT,FTcIARTES oF FREE Mov'EMENT PRovISroNs

544

r{5

5-{6

5-.07

. diplomatic and consular protection from the authorities of any MemberState where the country of which a person is a national is not repre-sented in a non-Union country, and

. the right of petition and appeal to the European Ombudsman.

It is the Art.l8(l) EC Treaty freedom to move and reside in other MemberStates that is of pdncipal concern in this book.

The extension of free movement rights to EEA nationals through the EEATreaty is discussed in Chapter 15. It is important to note ho\ryever that EEAnationals are not Union citizens for the purposes of Ad.18(1) EC Treaty.Whilst EEA nationals therefore do enjoy the free movement rights discussedin this Part, they do not eDjoy the additional rights that flow from Art.l8(1)EC Treaty itself.

(b) Nationals of Member States

(i) Who is a National?

Nationality of the Member States is determined by reference to domestic lawof the inAividual Member States alone. As the ECJ held in Michelexi\"[u]nder intemational 1aw, it is for each Member State, having due regard toCommunity law, to lay down the conditions for the acquisition and loss ofnationality". It is possible for a Member State to change its laws relating tothe acquisition of nationality without reference to any EU or other body Thefact th;t it is much easier to acquire the nationality of some Member Statesaas compared others5 does not alter the position in Community law

Moreover, it is also permissible for Member States to define which ol theirnationals are to be considered Union citizens for the purposes of Communitylaw. For most Member States this has no relevance at all and all their nation-als are to be treated as Union citizens and accordingly acquire full free move-ment dghts within the European Union. However for the Member Statessuch as the United Kingdom, which wish to preclude some of their trationalsfrom obtaining the benefits from Community law, the EuroPean Unioo mustbe put on notice by means of a declaration.6

This and other such declarations by Member States werc generally made atthe time of the Member State joining the European Union and were ullder-stood to define who nationals of Member State were for the purposes ofTreaty provisions such as the provision on freedom of establishment con-tained in Art.43 EC Treaty which refers to "nationals of a Memb€r State".When the Maastricht Trcaty then developed the concept of th€ Union citizen

3 Case C-369lgO Micheletti v DelesacioA del Gobierno etr Ca tabrialtgg2lEcR 142]9a eg. Greec€[reland5 e e France/Cemarv." T"he UK sdeclamrion means rhal the fol lowingare lo beconsidered as nat,onals iorthepur-ooses of EU law: (at British citizens; (b) Bndsh subj€cts with the right of abode in the UK and

ic) Bnl ish D€p€ndant Terrilones citizens who acquire that ci[zenshp as a r€sult of a cotrrcctiontocibrakar january 28. l98l !98J1 o.J. C2J Crnnd. s062 t198J)

[68]

CrrrzENsHrp oF THE UNroN

in.Art.l7 EC Tieaty there was debate as to whether the declarationsvalid for interpretation of that provision.

l!{1['ili:Jf ff :['-Ti'Jfj.ffi n?,;,U:..f,l1;11'il.#i:i;Treaty. Withour refercnce to the full court, the president "f

tfr" iCJ IClamber)_ruled that in orde! to deterrnine-wt "tt

er aJers;; ;;;;of a Member srate for the purposes of Co.rnuoiryluil'it-i,;;;#;;rerer lo^any declaratrons made by the govemment ol that Member StatJ

i1"o*o.i,ffi'lL,lo"l.lli,:Til,;lt:"lljl';.ln:*"#*a:,,:H';Member State" was.

move to aDd reside in another Membt-Union citizen could have availed her

(ii) Internal S ituationsl Own NationqlsIt is well established in the case law of the ECJ that in order to fall within rhcscope of the.Treaty, there must be a ,,Community

lu* """u.;

Gt*""n ttactivity and the Treaty. Communiry law will t """

,i" u""rir! ",

."ii"rrii.

oD "nationals ol Member States" and rhe de^claralions entered by the UniSltgdom

d:lninq who its..narion* are ror rhe purposes ot Commurlaw were valid and unchallengeable.ro

;8:tr f;ir#r rhe Sueeh v seuetary of state Iof the Eone Department Ex p. Kam putt

In Kazr,8 the ECJ was also referredlaratiotre and whether Art.l7 EC Tiwere not defined as "nationals,' unlcl1i: "":e"::it

in its r_esponse ,

rcstroned as it s/as made without any statutory

atory trealmenr of Bririsb natroDals odghariotrgdorn! declaration. For a cririque ot the ,(,dsal Elements of Ewopear ldentiir (Kj\\wer ta*

t6el

5-ll BeNerIcIAtIns or tsrEE MoVEMENT rRovlsloNs

fall outside its scope. The ECJ has stated that a situation will be "whollyinternal" to a Membar State where "there is no factor connecting them to any

of the situations envisaged by Community law" rr

5-12 Prior to the creation of Union citizenship, the ECJ had repeatedly held that

in order for nationals of Member States to benefit from the rules rclating to

free movement and rights of residence contained in the Treaty and second-

ary legislation, they niust generally be outside thefu-own Member State 12 As

the fo-llowing chapters discusq Union citizens who exercise their Treaty

ti"fttt to mo-ne and reside in another Member State, acquire a number of

riihts as a result. These include the riBht to install family members and the

ri;ht. in certain circumstances, to tax and social benefits Subject to the

.i""ptiottt set out below, as a general rule Union citizens residing in their

own Member State cannot benefit from these rights as a matter of

Community law.

5-13 It might have been thought that the crcation of the concept of Union citi-- --

,"tt.tIp *otld bring benefits to all Union citizens, even in their own Member

States. However thJinclusion of Arts l7 and 18 EC Treaty has not altered the

ECJ's approach to the question of internal situations ln Uecker and

la"qu" t.if ttle ECJ confirmad that Art.17 EC Treaty had not been intended to

extJnd ihe material scope to include internal situations Moreover, absent an

express arnendment to the EC Treaty, Art 47 EU Treaty makes clear that

nothing in that Treaty will afTect the EC Treaty

(itt) Exceptions to the "Internal Situations" Rule

5-14 There are tr#o exceptions to "internal situations" rule wherc own nationals

might benefit from iree movement provisions in their own Member State:

(a) wherc the person is a dual national; or

(b) where the person has exercised Treaty dghts outside their own Member

State: "the Stri,?der SmgI" principle'

In other areas of Community 1aw, provisions arc tmnsposed into domestic

law and will apply to own nitionals. For instance provisions relating to sex

discrimination in'"nployment appty to all.Eu nationals ifiespective as to

whether they have exercised free movement '"

t casE t7st78 Th? Queen v sa{,deru ll979lE C R ll2e

',i"i'"i i"'i.:iE:oiez Monon and Jhinian v stdte oI lhe Neheiands lie-811E !-R li23'

Dara.l6; Cas€ l4'll8'7 Zaou I CramtI U98\ ECR 55ll' paral5l tas€ c'3t2teu rleen.''ti*i",i"-a-iiai'0"" Ir992l E c R r-J'il, p;ra 9; case C-153/91 Petit I olfice National des

i","-- risrii-i.C.tl r-n :, para.t; and'case i'2o6t9r Koua Paitrcz 1' Caisse d'AttocaLions

Fano'?rd1e; Il992l E.C.R t.6685. pam ll.;;i"i'"Jbl'*" 6 er I o,ts6 I'a;d No rhein'Ia/estJaten I uecket and racquet I Iand Nordtheinwestlalen It997]| E.C R l'31 t | -i; i"l- i",' iiri"pr" Pannick. Lewis & Hewson -Communitv Law Emplolmenr and

Ol*-";""ti"" t'Crt"pt" r i4\ n naaitioners' na dbook of EC Iaw (ed Barling and Brearlev'

Trenton Pubhshing, I 998)

BeNerrcr,qrlns or FREE MoVEMENT PRovISIoNS

ti0l

CrrrzENsrrrp oF TflE lJNloN

Dualnationality

State of which they are also a national.

It is now well established that a dual national of two Member Statesrely on rheir second nationality lo obtain righrs una.. Co.runiivlvlemoer stale ot whtch. they may also be a national. irrespective oithe.person has ever resided in the second U.rnu.i si"i..,rifr.r.-r"'r,iinclude the right to non-discrimination as,. n, g.n.rJ fr"..*.rn""o?The ECJ has con firmed thar rhese principt", *ill ippfy."." i" ,lt""ii"*a ouar nattonat has never exercised free movemeot rights outside the ltl

ln Avello.t6 the ECJ examined rhe situation of dual Spanish and XlitJ::il-.-hit1-r:" who were.born.and r ivea att trreir riveil"'lr.G,.;;lalher brought an action in rhe Belgium courts in respect of the fa-ilurebergran authontres to allow the alteration of the children.s sumalaccordance with Spanish pracrices. The three Governmen,, *fri.f,r i"tim rne case argued that as rhe children_ had been born io Belgium andmoved outside of ir. rheir dispute with the Belgian uurf,-iti?, *u.rnrernat and thus o_utside the scope ol' Community law Tbe rG^eneral argued that their situation;u, in""t.i"uUfy 1i,it"a *,h;;;;of free rnovement^rights by their father, u Spunirf, irutlon"f *lif, *f,ofrresided, ard thus Cohmuruty law rnust appty ," tfr"t ,iir"ti"r. ifr"i"?"its wider impact is discussed in detail in C-hioter 4.

For presen t purposes ir is ro be emphasised rhat rhe ECJ held thar tbewere enu ed to beneht lrom Community law However the ECJ.S rldiffered from that of the Advocate Generil ff," fCf ".n"*t*t"J-that the children were nationals of _one Member State r";ia;;;

Memb^er State, regardless of wherc they wer" b"r"."ii;EC;l:j;;X_"y" :f.I",r:: t.. tF tink between the e_xercir" of fr""

-ou*ni .igitillather and the rights of residen"" of th. .t itOr.n. -fh;Eal';;;;T

.:I^.t 1":191" 5.lt rhe children as Spanish narionats the Betgium a

fi{t"'fir,""},f ,fi if !ff i,,'::#ll"",",ilf 'r'fi ft,ff"i:"ffi t'J,"#Community law even where they have not "xercised

free mou"meoi.i.were born and reside in one of the Memb", St"t", .itfr"" ,"ii".""iir"l

In addition, although somewhat tdte it must be emphasised that tonationals of a Member State and a non-Member State ure uUt" io i

:1"il13f,H''iil: tii:ilxiT -""?l"LTJi:$:1 ff ',:gilj ;','1n fnationals in other Member States.

;,',."' f iii'ilil iil:,::x,* !;.":;;':li;uffiil;:n:*ii: ntuti:.*:.f1";t"'ii','i,ll,iltf i'i'J#"'"1 iff iffi 3iiil,:l#:,*:xffii,i* iutfJJmlffi1,"&n"ir?",x"J'""f?ff:"fiH,T:'.*,':1,Jiiy#;,E: ecJi :,;i"";' ;;d ;';;fiH)3 Case C-36ete0 Mi.hetetli v D?tesaci'n iet Gobiemo in Coi,ii,a 1tssz1t.C.a. uzts-

t71l

s-l9

,),,

BelrerrcrARrrs or FRxn MoveNjgNr PF.ovrsroxs

" Returning" nationals: The frst cases

5-19 EU free movement law is principally concerned with the renoval of obstaclesthat woulcl deter a Unioniitizen from exercising the right to move and resideiolnoitt"t Member State.re The landmark case of Surinder Singhzo estab-iirtt"Jittut u

"utio"ul of a Member State must not be dete[ed from exercis-

irr!fr"" .ou"m.nt tighcs by facing conditions on^retum to the national's own

Mimber State which are more restrictive than Community law The condl-

tions in that case related to the right of entry and residence of the third coun-try national spouse of a British citizen on the couple's return to the UnitedKlnedom foliowing a two year period of residing in Cermany where theeiiti'th cititen had-worked. The ECJ held that tbe third country nationalspouse should attain at least the same rights as if accompanying the EUnational to another Member State.

5-20 Since the ECJ's judgment in Strrn der Singh focused ot the specific regulation- -

;J directives ielaiing to the free movement of workers, some natioDal

alrthorities attempted io limit the application of the Strr,lder Singl principle

io outionutt *ttoi^"rcise their righiiof free movement as workers for a sub-

stantial period of time in another Member State However the ECJ has nowextendei this pdnciple to students2L and to the self-employed and serviceproviders.22 Thi principle must apply equally to all free rnovers

5-21 Furthermore since the ECJ's decision it Carpentef3 there is no requirement-

io. the EU national to exercise the right to live in another Member State

Lefore invoking Community law in his oun Member State, provided that the

iU national cin show that failure to grant an equivalent to the CommunityG-.igtti in qu".tion would constituta an obstacle to the fundamental rightof free movement. Mr CarPentelKingdom with his third countryand that of his sPouse was cover€

ted Kingdom. The ECJ concluded that aself of the right to provide seryices guaran-lation was covered by Community law. The

fact that Mr Carp€nter remarned established in the United Kingdom' his

own Memb"t St;te, did not affect the outcoms The ECJ recalled its ownclecisions where it had found that the rights flowing from Art 49 EC TreatycoJJ be retl"cl on by a provider in the State in which he is established' if the

,"--i"". ui" ptouia"i foi persons established in other Member States 2a

I

D Case 11815 Walso and Belwtnnlt916l8 C R 1185,para16

-iii CitUgo n" Oy"en v Inmrgrarion Appeat Tribinat Ex p Surintter Sinsh 11992)E CR'

t-4265)'-6in C-ZUtge O'noop v Offce katio al .le enploi [2002] E C R I'619l This,decis'on,mav be

more far reaching rhanfrst thought given th€ FcJ suEEests that a secondary s'hool stuoenl nas

.*"r"ir" "

it"O"i""tuf ft"" mo*-ent .ight' utgoabli going bevond the scope of ihe students'

Dircctive 93/96.;V-al i-rf,iii c*p*"t v se.rcnry ol stale Ior he Hone DePa men! I200ol E c R I-6274,, iii i-iotio c'i*r"r u secrctarv il stoteior lhe Home Departn?nt 120001 E C R I-627s

'za Cise C-384193 Aipke hvalme'b [ls95] E C R I'll4l paras 15 22'

v2l

\4"

CrrrzeNsHtp op ttrB UNtoN

Akrich-A step backwards?

Progression_by the ECJ in its approach ro the question of internal situaano rne apptrcatron ot the Suri der Singh principle has not been a coDsimove forwards. lndeed thejudgment in thi case of Akrkhr;;i;;;;;l.:lq,l:1"l,r.gr.rr.,.on. The case concerned a Moroccan narion;l wh;,two prior deportations from the United Kingdom, entercd theKingdom again clandestinely and marriea a gririrt

"ii ir.". ' iu"in; "deportation order. he then moved to Jreland with the Brirish ciLize-n.period of residence in Ireland the couple then sought to ;o";-l;;[;United Kingdom. During the entry clearance prociss, it *", ua-ild Ithey had gone to Ireland in order to put thernseives in a positi;;;;;United_ Kingdom_ lau'fully. The UK Gove--"nt u.grr"d'tl"f ;h[;;;mJanrlfts_Akrich was not a genuine worker in Irelaid, and the ImrniAppeal Tribunal asked whether these circumstances constituted a;Community law The ECJ confirmed its consistent positlon tfratprompting the exeraise of the Community rights were irrelevant toing whether Comrnunity law applied to the situation.

However..entirely_ unprovoked by rhe national coufi's questions, the ECJ:i1.,t:1Jn:jl* !l. rpouse ol an EU nationat who had been untawt-ultyent in the EU national's own Member State coutd rety on Co;;;i;enter and reside in another Member State. The ECJ ;tated ttrat the iil.precluded such reliance on Communitv law:

"In order to be able to benefit ilr a situation such as that at issue in the main:Tginq flo- the_r-ights provided for ir Articte tO of neguratio; Nt GiZlnational of a non-Member State married to a citizen of the-Union musi bercsident in a Member State wh€n he moves to another Member State,,.

At first blush it is extremely dimcult to see how the statement that a tl|country national spouse must be lawfully resident in one Member Stabefore rehance can be- placed on Regulation | 61216g can srand *iif, tt. ,.Judgment in MM X.,6 The ECJ was clear in MMX in holding thar rheure to comply wirh immi$ation controls (and specifically unlurifU .nt- ithe temtory) would not be a ground for refusal of a residence permit forspouse of an EU national exercising free movement shts.

r Cas€ C-109/01 S?crerary of State lor rhe Hine D"porr."nr u ,t*ri"t . Srptr^tuit,frl-6 Case C-459199 Moweneht conne te ratisne, I antisenitisne et ra xtioptioti eini'fU'izt,e-Relsiun Starc I2oo2l E.C. R. t-65et."_Case C-29289 The Queen v Inmieruion Appeat hibunat, Ex p Artonissefi [l991l E.C,Rt-745'18 CAse C459D9 Mouyement contrc le rucbhe, I'antisemitisme et ta xenophobie ASBL ( MMX)I Belshn state 120021E.c.R. I-6s91.

Indeed the statement regarding legalllong-established principles of ComrCommunity law iccords direcrly eff€exercisiDg Treaty ghts in other Memlthat Member States act proportionalwhen applying Cornmunity law28 Th

173l

r25 BLNr Fr. l^Rtr 's oF Fnrt Movrvt " ' l

Pnovtstotis

fl,.an'no,.u..naim.utrt-,t'.cc:.o',gg.,'lli,^l:lr:::l:,i1T:1i::#ll'"',lT'flX'li:;:iil"";un"i.'.TliJ"i;i';;l';:i.;;;3i;;;;l:'.."e1:'i::'"T.':TI"""'#Jii.i5o|ender mrsnl consrrLU Ir -' "^-'- '" "- 1i;; *r,", ii r,"i*t t*. p.s€d by rhe natioDal

FCJ fell il elen necessary lo address thrs ques

these fundamental principles of Community law lndeed .by. aplJyinc th9

li in"iot., of propoitionil i ty and respect for human.rights to the '41lic4judgmenr the ioniequences of the decision are mrnrmal'

5-26 Moreovel at worst the judgment could be considered as a refinement of the"* '{i*aii''stign

Itln"ipt" t'i"tt tttut a returning national should be no worse

.ii irrun rt. *olira r,ave been if he had not lefi his Memb€r State- to exercise

ir"" -ou"rn.rrt

tigftts lt mighf be said that since Mr' Akrich had been a seri-

""t i-*itt"ii".?n".Oer alnd Mrs Akrich did not enjoy-the benefit of hav-

i"g iit iiit"irii'.?r"ifu-llv residine with her in the united Kingdom before shei"fi fo, Ir"la.ra, she is not "wori off" if her husband is not to b^e treated as

ffiiJ;;;;;;.; ro the United Kingdom 2e However even if she is not

;;;;;fr;;'b;a.te she left the Unite-d Kinsdom'.the refusal to admit her

ilutUuna Inigftt.tilt "onstitute

a breach of Community law tor other reasons;

namely humin rights and proportionality'

couple resided together in anotherSta; of which the EU national is

the ECJ rciteraled that ihere are limits to

e in the right to family life' even whereitted.

to have in Placa agamst abuse'

5-2g Can the ECJ have intended furthat the ECJ has created a Precedthe lesal status of the third countMem6er State of origin- The E(

i"l*"r*n:{lx tl,i,l,lf ,"J'ilHi;[]"'1:li1iT" .'"0,n*,n" o"b,ic pohov exceptions ia to be very narrowlv construed

- -^:1- s'iiti , s"i'ia-a Qoolr ll E H R R^so:,illiliirli\iiiiiiXir','Xipi'iJ'r'"'i'"iiisu,oo.'!r.r,1,092,:l::ir:"-,s."1:^':::':!::ii#effi:lfi:l' #"it:ilil?:5:i"..il, io' ioi'iii;a htdi; 'y Austia(Apptica'io"no 17ze5te't'October 31, 2002)

l74l

.4"

C[rzENSHrp oF THE UNroN

i:lTli'lq.'j}'.'#::H:a1ff :?::.,,1i,.J"3:"il.,J:X',ilJ"1'#11y'*td' ffi iiii:,ffi :l:l *ii:r; ;xt' [,rs:,t il *:;i;h;il"i,1p,!ltl"lti:,.6ti,rym:*ifi "lt,.,ffi #..}.Jiilil:t;;l:'&':Ji:i:'9,':,1* xli.,,',,::: r;i;;'ili;.:: :i1:.:ffi":

XT,;':fi'ffJ:o;,[::'"'l',f:,,,#i".'"",'"',ilHffi li l;il_,?li!fi ii,?f;#''flrdyifl l+:i:iitiil"f'"##".T"::'ilil? Hilf'T-' D'il?#*lii!:!,;"*:::1,:lv,:":;i: j*;[*i,*rnil:llfi j#*$rl#lifr ll,Fitip;,41 p*ll ;r,:lxfillj:ft: l* 1wr.n nls spouse trom within the CommunitvJ4

. Th€ procedural deficiencies What

.":.i::T ^I l:, .i I'.T 1I *.pri,," r iilll ll'"' Hltf J":l,i:H"ff *iembark on this unprecidentid p;ih;;ilin'; ;i'j,,il liil.pii.f:|#:TT:r:jTl:9':q rhe Commission. to address it fulry.on thise

.i.ssui

ti,{"tT;i!iT:.tm;r;ju:1,;i;f T8i"i.".#it:;llii'"'ffi x?l#f i::i1::H'1",1"#i*;1*r:,*ki,,"A final rote on Mr Akrich's oosition What.consequences the decision vil

i"""1: :r'*.^i:o^yj:"{\'l:l li:l:.'":. remains ro de seen. ir.I"Jg,"i"llfocused on MrAkr ich! Iegal post . - - - : - " rusjuugmentr

*t".#liirfr;"*4"!ii,"1,T:TJ"'l[Jl'xI',f :ilx.^xl,ilf i::ffi

,,:1rySgqg.^tl ^r p"*irr r ri,Jl'i"f;f;^il#,{;1,;y:f ,f:Si.:.;:::,"r:"::i:pni,ismc a ro xanophobie AsBL , vRAX, ,,?iiflT",j::1,"9?l:;:::l;:::il:rl+;r;;ift:.;ii##:il?#ft".:;.",".,,:T{iifti:I";:,:.,".rr1'"lll,':n*:,',"j1.:j*,'l'-;;; ;::il#fflli: fi,:iJ#l';:;[1ffror exclusion

-or refusar or

" *,ia*L ji^ii.

i#;jil"dl#,:-*, rorr.*a iv ir," i:.u,t *"s iDrroduced in rhe opinion siv€n

l7 sl

by thc

5-33 BENEI.TCTARIES oF FRIE Mo!.EMEN.I PRovISIoNS

(c) Thircl Country Nationals

5-33 As a general rule third country nationals are not the direct beneficiaries ofEU free movement law save in certain limited circumstances, namely wherethey are:

(a) the family members of EU nationals;

(b) stateless persons and refugees;

(c) employees of national companles.

(i) The Family Members of EU Nationals

5-34 One of the immediate benefits for EU nationals exercising their rights of freemovement is that they have the right to install their family members withthem. As the secondary legislation itself makes clear, the right to install fam-ily members exists irrespective of the nationality of the family membefs. Therights of family members are considered in Chapter 1l.

(t1) Stateless Persons and Recognised Relugees

5-35 Stateless persons and those who have been recognised as refugees in oneMember State do nol enjoy fiee movement rights under the EC Treaty or sec-ondary legislation. However if they are admitted to another Member Statethey are entitled to bring with them any accrued social security benefits in thesame way as EU nationals arc within the terms of Regulation 1408i71. Thereis no right of admission although some commentatots have suggested thatthe Council has given a clear indication of the favourable treatment thatstateless persons and refugees should be accorded if they wish to movearound the Community.s6 The rights to social security benefits are consideredin Chapter 13.

(rii) Employees of Nalional Companies

5-36 Companies registercd in a Member State arc entitled to exercise rights ofestablishment and provide services in other Member States. In so doing theyare entitled to transport employees under the umbrella of their organisationin order to fulfil the provision of services in the other Member State. Thoseemployees might be third country nationals previously employed in theMember State where the company is registered3T or in a third country outsideof the Conmunity.r8 These principles are considered in Chapter 8.

16 The European Agreement on the abolition of visas for refueees (1959), does abolish therequirem€nt to obtarn visas for lhe purpose of visiting another cortracting state for tlree yearsHowever this ls not a Community taw instrument and therefore does not aftect the position ofrefus€es under EU law37 Case C-lt3l89 Rush Po usesa Lda t) ONI l199ol E C.R. I-141733 Case C-43/93 Vander EIst v OMI ll994) E C R. t-3803.

116l

F- '_ ' - . -IF

Tne Frpe Moveltlrr RrcHrs

2. THE FREE MOVEMENT RIGHTS

(a) The Right to Moye and Reside: The Basics

Article l8 EC Treaty was included in the Treaty following thesummit. It coutains the clearest expression of the free movement rishtEU citizens and would appear to signal the completion of the internal mket as regards the free movement of peNons:

Article 18 EC Treaty

L Every citizen of the Uoion shall have the .ight to move and reside freelythe rerrirory of the Member Stales. subjecr to the limirations and conditionsdown in this Treaty and by the measures adopted to give it effect.

2. ff action by the Community should prove necessary to attain this objectiyethis Trealy has not provided the necessary power! lhe Council may adopt Fit,sions with a view to facilitating the exercise of rhe rights referred ro in parier;lThe Council shall act in accordance with the procedure rcfefied to in Article

The reference to the "limitations and conditions" in the Treatv and seary legislation adopred ro give it effect suggest thar those provisions sbe the first reference point for the establishment of any specific free unmcnt rights, Primary and secondary legislation however does not reflectfull scope of free movement rights. As discussed in Chapter 4, Art.lgTreaty has the potenlial lo go beyond that legislarion.

(b) The Specifed Free Mowment Rights

The Treaty of Rome included the right of free movement for workersrethose wishing to establish themselves€ or to provide and receiv€ servirvithill the Communit/r: in other words the "economically active,,. Thfounsu4rrisiug given the origins of the Commrnity as an economic uaidesigtred to foster qoss-fertilisation of economies and skills.

Following case law developments of the ECJ, free movement dghts

The rights of all these categories of pe$on are discussed in detail in thisFor discussion of the historical context of the develoDment of thesemovement rights se€ Chapter 4.

re Contain€d in Art.39 EC Treaty and EC R€gulation 151?J68oAns 43-45 EC Treaty and Council Dir.731148a'A.ts 49-50 EC Trcaly and Council Dir. ?3/148a'] CouDcil Dir. 93/96.ar Council Dir. 90/364.{ Council Dir. 90/365.

extended in the 1990s through secondary legislation to the economically ilative but self-sumcient: students,a2 the self-sumcientaI and the retired oersor.,

l77l

542 BENEFICIARIES oF FR|! MOVEMENT PRovtsIoNS

5'12

(c) Qualifying the Limitations and Conditions

As will be seen in the chapters which follow, the Treaty provisions themselvesand the more detailed secondary legislation attach conditions and limitationsto the exercise of the free movement dghts which are not intended to be over-ridden by Art.l8 EC Treaty. Such conditions include in certain cases iherequirement to obtain sickness insurance for all risks in order to obtain thebenefits of certain free movement provisionsas or the requirement to engagein "genuine and effective" economic activity in order to obtain the benefits ofa worker.46

Whercas Memb€r States have tended to treat these conditions and limitationsas absolutes, the ECJb recent case law would suggest that Art 18 EC Treatyhas meant a softening of tbe approach to be taken. Whilst Member Statesmay exDect an EU national to abide by the conditions and limitations laiddown in the Treaty and secondary legislation, the application of such condFtions must be in conformity with general principles of Community law, prin-

cipallv thar of proporlioDality. Thus the failure of an EU national to obtainsiikniss insurance in compliance with Direcli\e q0/lb4 might not be futal tothe establishment of his right of residence, if he has generally complied withother conditions laid down in that Directive.a?

${J

(d) Bq)ond the Basic Free Mowment Rights

5-44 Article l8 is now recogaised by the ECJ as having dircct effect Il Baumbast,the ECJ considered Art.18(1) EC Treaty to contain "a clear and precise pro-

vision of the EC Trcaty".as

5-45 It is arguable that Art.l8(l) EC Treaty provides that any EU citizen should

have th; dght to move and reside in the territory of another Member State

simply by iirtue of being a Union citizen. The true reach of Art l8(l) ECTreaty has yet to be settled by the ECJ - although as we discuss i! Chapt€r 4recent decisions give cause for optimism that Art.l8(l) EC Treaty doesind€ed establish a discrete right of free movement fo! a person not previouslycatered for by Community law. However despite this optimism it is quite clearthat the firsi port of call will always be the substantive provisions of theTreaty and secondary legislation which both unambiguously give speciic freemovement rights, as well as other attendant rights.

G) The Citizen's DirecliTe

5-46 The remainder of this Part of the book will examine the Treaty provisions and

secondary legislation applicable to both the economically active arld econom-

45 See for inslanc€ the Council

a6 See for instance reYn, etc

Direcdve on the €conomically mactive but self-sumcient

aTcas€ C-413/99 Baumbast and RE C.R I-7091.a3case C-413/99 Baunbast olrd RE.C R.I-?091, para 84. '

I the Secrctary oI State fot the Home Depa ment 120021

| lhe Secrctary of Stute lot the Home Depo ment 120021

F8l

Tnr Fnrr Movrr,lgNT Rtcurs

ically non-active free movers. Much discussion therefore necessarily invollj,jl:.":l::r,'i::1.::9i11""", and direcrives *hi.h have ;;;;";;;#

tr:'i*:ffi!i,f.:1x,F,.;mr:mi.trru:** jtri*$:#tu{ijl,lfi :iT',l..TitT..""rSltd..*,.8'ni**nlintregulations and directives considered betow are identified.

Readers will need to be aware that a

::,fi^,::,fl",-1".1:l:1,",^-y "f rh. "*:,'i+p..jl,:|;,,111r",1Ji1#,l:H:ln+H.;*:{*'."r::,.:,,,fi if ru*ffi trtrx,1#T:;itrJt.""tlondary^legistation wirr tn

-unly ""r", u." iil;;;i#;iT: il.";ilil;t"Tgrven to the new provisions.

ll-?I. .:"oo+.,eac gl,tffi nngnts ot crriens of tbe Unior __, " " nove and reside fr€ely within theuuvE ano resroe lr€ety wrthjn rbe

5i,,irl 6llti!!,ii""""8 Di' 64t22t' 68tt6o'nt Dites 64t221. 68860. 13 48,75t34, 7St3\I1 of Reg. I6tr68 wilt be repcAea on ap;t i6,

ITel

CHAPTER 6

ENLARGEMENT OF THE EUROPEAN UNION 2OO4

to the accession of the 10 new Membet,n on May 1, 2004. Detailed considera-\e Trcaty of Accessiok whi.ch as will be'ee movement rights of worke$.

l. BACKGRoUND

h\ Intrcduction

On Mav 1. 2004 Cypruf the Czech Republic, Estonia, Hungary Latvia, G'01Lithuania. Malta. P;land, the Slovak Republic and Slovenia becameMembers of the Eurcpean Union

rhe scale of enlargement crcated bv *. lTt#,;f,,{"t'"iff:il:l i;?i?:

*'

otal of nine new Member Statesrhad applications to join made bY3d abortiye-the former after a ref-

against membershipl. Of the other

three candidate countries, Bulgaria and Romania are expected to become full

m"-bers ,n 2007 and if Turfey succeeds in meeting the requisite political

and economic criteria for membership, the end of the decade could see a

European Union of some 28 Member States''

Undoubtedly such enlargement is to be welcomed and the achievement rep- G03

resented by the successful accession of a further 10 Member States from May

i, ZOO+ "unnot

Ue underestimated. However it is regrcttable that the EU insti-

iotiottr t "u"

b""n upparently less interested in the accession counfiies'recordon human dshts thin their ability tg olIer economic benefits to the Udon

and that the EuroDean Union did not take full opportunity to addrcss some

itt

tUnd€r th€ t€nns of the tust Acc€ssion Treatv srgned on Januarv 22 1972 Denmark lr€land'

Norwav and the IJK joined the six M€mber Sta(es from JaDu-ary 1., 1973 to m^t' : C.1''--11'11

"i *rlvr-i"i s"t*; the s€cond Accession Tr€alv saw lhe Member States gtow to l0 \r'rth the

admission of Gr€ece with efiect from January I . I 98 I I lhe third AccessroD t reaty a-ccou n teo Ior

Portueal and SDarn who b€came fullmembers from January l l986and voth ellecl lrom Januarv

i rsrTih;li'M;.u"i slates became 15 wilh the fourlh Accession Trearv bv which Austria'

Finland and Sweden.; ffr. i*r." *ulJ U" ftigter still. In Jaouary 2004 Croaria {whrch has been rega rded as a 'poten-

,i"f:."iJia"ri **r.v-rince June 20001 voiced the hope lhai it would becotne an offrcial caodi-

date counlrv in June 2004 However there area number of problems slandrog In (roatEs waq

i""r"ai* i# t""a ttrtv to co-operate witb the UN war crimes tnbunal at Th€ Hague' problems

\viil -iti".i

v ;gltt, .!f"rm of'the judiciary and the iesolutjon of a bordet tow with Slove a

See further Chapter 15

t8rl

6-n4

6-05

6-06

643 ENLARGEMENT oF THE ETJRoPEAN UNroN 2004

of the deep-rooted problems in some of the accession countries,relating to the Roma Community.

Nationals of the l0 accession states who became members of theUnion on May 1, 2004 at the same time became Union citizens. Asare enlrtled by Arr.l7 EC Treary to enjoy the rights conferred blrecty.'However. not all are treated in the same way. The accedsions draw a distincrion between C)?rus

"nd tvtutra on the one iri(entrat tastern Luropean Countries (CEECS) on the olher. To

and purposes_it is only Cyprus and Malta whose nationals enjorymovement dghts from May l, 2004.

In relation to the CEECs the Annexes to the Treaty of Accessionl5-Member Statesa to derogate-potentially for up'to seven ye;obligation to guarantee freedom of movement f,j, rvo.t rs iuoC icircumstances, freedom of movement for service providers). TLe drlsidered below Shortly stated all will depend on ihe ext"ni to \vhlmeasures glve access to the labour markets of the 15 Member Sand the United Kingdom are the only Member States \rhich haccess to their labour markets for CEEC nationals.

However, the situation of workers and certain service providen abe emphasised that derogations cannot be made in relition to theestablishment of the self-employed, nor to the freedom of meconomically non-active (students, the retited or self_sufficient).

Accession affa_ngements have aluays accompanied enlargementPortugal and Spain Lhere was a phasing-in period of 7-ro l0 .subsequently shortened). The di{ierent accesston armngements'ilsCyprus and Malta on the one hand and the CEECT on'the other Ivastly difTerent positions in terms of their own and thenrsrory

G08 Moreover, as will be seeu, in order to address serious distcific sensitive sectors of the labour markets in Aust a and

ter rhe Member Stztes be1orc accession are reienea ro as irre -is- n ..U.il€lgium, Denmark.

-Cermany. Creece Spain. France. tretaDd, ttaly.

Netherlaods. Austria. Porlugal. Fintand. Sweden aod rhe Unjted Kiosdo;1.

647

cial provision is made in the legislation enabling thosederogate from Art.49 EC Treaty for up to seven yeari. Thesereflect the fact that throughout the negotiation process account warthe particular sensitivities of Austria and Geimany. Such sensitirshown by the rcsults of research published in 2000-and 2001the two countries-which between them share borden withCzech Republic, the Slovak Republic, Hungary and Slovenia-are

I.Art l7t2) EC Treary provides lhat -CiLizens of lhe union .t utt .njoyrt. ,gb,.-tbrs TreaLy and shall be subjed ro the duries imposed rhercby. .See genera[y fhala In rhe Aone,(es rderence is made ro -presenr" Me.Oe. Siur.s rJairrtnli,iJ [iMemoer srares ar lrme ot signal urc of the Treary and r he I0 joinioS on accession tr

t82l

6-10BAcKcRoUND

,t of the actual terms of the Treaty)vision for a seven-year phasrng-ln

period.

(b) From Co-operation to Associltion

)n.

r,ffi i?iii#:-r;-:t'.*3fi '-stl;i:f, :l#"':0.K,,'i;:';{"?*:il3iiut83l

Customs Union entered into force in December 1995 A

Asreements are considered in detail in Part Thrce'

(c\ From Association to Accession: the Copenhagen CriteriL

6-11 In the meantime at the landmark June 1993 meeting of the Lu

bouncil? in Copenhagen an ambitious proc€ss was launched with the

i"i*'"Ui..i".tl -e"rcoming

the tegacy of conflict and division.in.Eu

Of lundamental importance was the agreement by the. Louncll tnat

il;;il';;;;i'i; in central and Eastern Europe that so desire-;;;;;;;b;;t of the European union" subject to- the wishes of;;;;;";;;;"ity. it was no longer a question of y' the cEECs'become oart oI the European UDion. but lt'el'

6-12 The Council agreed that accession would take place as soon- as an a!- .-

"oooity u,u, ibl. "to assume the obligations

"{ -:Pb:t:,hl b]^:

;h. -;4";.

and political conditions requircd" .. Those. memb€

conditioDs-known as the "Copenhagen cfltena -requrre tDar

candidate country has achieved:

(a) stabil iry of institutions guaranteeing democrlcy'. the rule of law'

rights ind respect for and protection oI minorit ies:

(b) the existence of a functioning market economy as well as the (

'" i" "t""

titrt *mpetitive pressure and market forces within the

6-10 ENLARGEMENT oF THE EURoPEAN UNIoN 2004

and

#;.te?; ;;ti"" i" tr'" tceecil, in particular throush the

t the -eetiog

took pta"" on lnne 2l-22,21n3

(c) the abil ity to take otr tbe obligations of membership including'- '

ence to the aims of polit ical. economic and monetary union

The Council would closely lollow the progress m-ade in each associated-cr

trv towards fulfllliDg these criteria' Moreover' luture co-operauon wrL

6in-Cr *"Ja u" ""geared to the objective of membership which.has t

Oeen estaUtitUea". Ii this context the Council approved a propos.al thd'

CEECs would enrer into "a structured relatioDshlp ltrlth the lnsutuuo

irrlll""i"" *itrtlt in" framework of a reinforced and exterded mula-i^Ao-n* u"a

"on"""tration on matters of commoo interest"'

The Council agreed to regular meetings between its-President ad-

President of the Commission with their counrerparts lrom tne ass@

".".ri"t. ", t"ff

"t:oint meetings of all the Heads of State and Gover

i.iTt"""i tp""in" itiues. Furthei the Council recognised "the cru,cral i

;;,iJ-#i,"iJJilil;ituntiiion to u tutt"t economv" and aseed to acqoi" ti"

-Co--unity's elfo s to open up its markets' It was exp€cted thal

;;"1; ";-i;;J il hand with furthei development of-trade tretweeq

counuiei themselves and between them and thelr tradrtlonal traqmg

ners". Specific trade concesslons werc approved. The Community ';to"tln"i to devote a considerable part of the budgetary resou.rc€s lo,l

6-13

6-14

[841

programme". The Community would also "make full use of th€ possibil-

ity -fo."r"en

under the temporary lending faciliiy of the .EuropeanInvestment Bank (EIB) to -finance trans-European network projects" and

"where appropriate, part of the resources under the PHARE programme

may be used for major infrastructural improvements".

rhe council welcomed th€ participation "jjl: ;..:::#1r."?J:ffi?tJ,5'3i

ttt

rmes. The-Council underlined thethe CEECS to those applicable rnLt ofncials from the CEECS should

be offered training in Community law and practice and decided that a task

force composed of representatives of the Member States and the

Commission shall be esttbtsh€d to co-ordinate and direct this work ln the

context of accession such approximation was of fundamental importance in

relation to the protection of workers, the environment and consumers'

The decision that the eight CEECs were to join the European Union in 2004 G16

was endorsed at the Copenhagen European Council meeling on December 12

and 1 3, 2002. rhe Presidency conclusion::["jj$;j,'"..,l;iffit;1t .1ff:i;

onclusion of the accession negotia-slonia, Hungary. Latvia. Li lhuania.I Slovenia. The conclusions looked

forward to "welcoming these States as members from 1 May 2004" The

conclusions include the following statements:

This achievement testifies lo the common determinatioll of the peoples of EurcPe

to come together in a Union that has become the driving force for peace, democ_

racy, stabili-ty and prosperity on our continent As fully fledg€d member-s of a

Unlon bu""i on solidarity, tLese States will play a full tole in shaping the further

development of the European project '

The current enlargement provides the basis for a Union with strong prospects for

sustainable growti and an imPortaat role to play in consolidating stability peace

and democracy in Europe and beyond. ln accordance wlth their natlonal ratlDca_

tion procedureg the curient and the acceding Slates,are invited to ratify the Treaty

in du; time for it to enter into force bn I May 2004.'u

BAcKcRol,\.D

6\ The Other Candidate Counties and Accession

The Copenhasen meeting also considered the positions of the other candi- 6-17

dare countriei. ln relation to Bulgaria and Romania' the Presidency

Conclusions refer to the successful conclusion of the accession negotlatlons

6-t7

sThe conclusions are available at v)tirw eurcpd'web deleurcpalq3euinJll1counclcopconcl h!n'

n'

para.3.e P^f t .3

'o Para 9.

t85l

*.:

with l0 other candidates as lending "new dynamism.to the a

Bulgaria and Romania as part of.the same rnclusrve a1l it:t:tt i ]

iinT oto."rt-." The stated objective r'ras "to welcome B

n -"tii^ "t...U.rs

of the European Union in 2007" r']

Gt1 ENLARGEMENT oF THE EURoPEAN UN'roN 2004

2. TREAfi oF AccESsIoN

(a) Intoduction

annexed io the Final Act to the Treaty:

to accomplish these goal$

Our aim is One EuroPe."

(b) The General Scheme of the TrcatY

"Todav is a grea! moment for Europe We have today concluded-accessiG

tiffi-6;;J.!;ihe iuropean Union and cvprus the czech.Republic'ir*grD. i"i"i i . l- i,huinia. Malra. Poland. Slovakia and.Slovenia'peopie will be welcomed as new citizens of the European Union'

We. the current and acceding Member Slates' declare our full support ffil

,l"""tt,l".l"ii"" r"a irreveisible en la rgemen t .process Tlte accession 9q

*itfr n,if*"ti. o"a nomania will continue on the basis of the sam€ pnEi

tt""" -e"i,i"Jiltt

""i.tiations so far'. The results already" achieved in the:

ii.r-r"*iri ".i

u. u,i"ght into question Depending on funher progress i

ing with the membership c-rjteria the objective ts l:"Y"f:T:-^T

ii5-;;; ;;;"* ;;.beri of the European Union in 2007 we also

ii i"ri"", i". it i"^. t"ken loday concer;ing the nex! stage of rurkey\

foi membership of the Europ€an Union'

our common wish is to make EufoPe a continent of democracy' lre

;;; ;;;e;.;. it'" unlon will remain delermjned,!o 1]:19 TY,1'J:;;;.;;;;il" ;,;*;i" siubilitv ano pro'p";tv within and bevond the n

of the Union. we are looklng lorwaro to worling together in our joiot

6-18

6-19

The Trcatv of Accession was signed on April I6' 2003 in Athens

of the simatories are reflected by the following "Une Lurope

The TreatY of Accession itself contains three articles' Article I

ii*"r-*rritrt ;'u""o^e members of the-European^Union andTit""*i"t ii*rtltiiirt" Union is founded" Article 2 deals with ratifi(

*t" pi"* lv epiiil0.2004) and entry into force (on May [' 2004)'

a?"]t'""ly 'i,iit'iitt. formaliiv of deposit of

'l:, ttlgiil-tiAtll:

i;;;iy (;it;h; ";;hives

of ttre Goue'n'ent of the ltalian Republic!

Trrr-rop*,"ta"n*opatlleuillllnundcopconclhtmipan'1.3't, wwveurioa-weh dcleuropal13 euinn l0counctcopconct hlmi pzra tq

t86l

6-25

(c) The Act of Accessnn

The Treatyt implementation is dealt with by the Act of Accession.which.is 6-20

annexed to the ireaty. The provisions of that Act, as stated in Art l(2) of the

Treatv. is an integral pari of the Treaty. Part IV of the Act entitled"T.moorarv Provis-ions'; consists of two titles ("transitional measures" and

"othei provisions").

(i) The Ttansitional Protisions

Of Darticular relevance under the fust title is Art 24 which provides that 6-21

"the'measures listed in Annexes [V-Xnl to this Act shall apply in respect of

the new Member States under the conditions laid down in those Annexes"The Annexes deal separately with each new Member State and set out the

detail of the transitional prbt isions, in particular in relation to freedom of

movement for persons. Thi detail is considered below in paras G3l to G72'

Gi\ Other Ptotisions: Proleclive Measures

The second title makes provision for transitional measures to be taken in G22

specified circumstances f6r up to three yeats in areas related to criminal law

oi civil matters (Art.39), the application of the common agncultural polrcy

(Art.4l) or the application of Community veterinary and phytosanitary rules(Att.42).

Of more potential interest in the context of the free movement of persons are 6-23

Arts 37 and 38.

Article 37 enables protective measures to be taken for up to three yeals in the 6-24

event of serious eionomic difficulties in any sector of the economy of the

accession Me-ber States. Such protective measures may be applied for by

anv acc€ssion State or any of the 15 Member States "with regard to one. or

more of the new Member States" Such protective measures are taken "!n

order to rectify the situation and adjust the sector concerned to the economy

of the cornmon rnarket", Decisions on such measules arc to be taken by the

Commission and may involve derogations "from the rules of the EC Treaty

and from this Act to such an ext€nt and for such periods as are strictly nec-

essary." Moreover, priority must be given to such measurcs "as will least

disdb the functioning of the common market"'

Article 38 makes similar provision for measures to be taken where 4 r:€w 6-25

Member State has failed to imptement commitments undertaken in the con-

text of the accession negotiations causinine of the intemal market". The Czech Rth; Slovak Republic and Slovenia madeFinal Act which states their understan(

re arising from the original TreatiesI conditions laid down in the Act ofr this Act". The declaration goes on

to state the understanding of those countd€s "that the Cornmission will

Trearv or AccessroN

t81

6-25 ENrarceupNr or TIIE EuRopEAN UNroN 2004

6-26

6-27

6-28

G29

consider applicarion of Art.38 only in cases of alleged violationsobitqatrons felerred to"

In view of the transitional provisions relating to workers, it isanticipate Art.38 measures, being invoked in ihe area of l,ree npersons. Howeveq the potential breadth of such measures should benis"rl Subj€ct always to proportionality and the safeguards mentioaecould apply in principle to any EU nationals and could includefrorn any rights and guarantees otherwise given by the EC Treaty.

(d) The Protocols

There are l0^Protocols to th_e Trcaty. These deal with specific sectoral iA number ot these deal with matters of relevance to the free movedp_ersons. These are Protocol No.3 (on the Sovereign Base Areas of the IlKingdom of Great Britain aud Northern Ireland in Cyprus), protocol(on the tmnsit o[ persons by land between the resion of Kalininrother parts of rhe Russian Federation), protocol No.6 ton the acour:secondary residences in Malta) and Protocol No.l0 (on Cyprusri).

(e) The Declqratiotts in the Final Act

The Final Act to the Tieaty of Accession contains 44 declaratiotr!relate to fresdom of movement for workers. There are specific idrlworded declarations for each acceding CEEC which state (using thatrelation to the Czech Republicrat as lollows:

"The EU stresses the strong elements of differentiation and flexibilirvarrangement for the free movement of workers. Member States shall end;grant ilcreased labour markel access to C^ch nalionals under narionallanview to speeding up the approxihation to rhe acquis. As a consequencq rbeim€nt opportunities in the EU fbr Czech nationals should improve suupotr the Czech Republic's accession. Moreover the EU Memb;r Statesbest.use of the_proposed aarangement to move as quickly as possible toapplication of the acquis in the area of free movement of workirs.',

In reiation 10 Malta there is a declaration which states that, shouldaccession give rise to "difficulties" relating to the free movement of ,the matter may be brought before the institutions of the Union inobtain a solution to this problem.rs Therc is no such declaration ioto Cyprus.

rrThis principai relevance of dris prolocol is apparen! from Arr.t(lt wbicb orovidJalplicatjon of lhe acquis shatt.be suspended in rhose areas of rhe Repubtic oi Cypnrsitbe Covernmenr of the Republic of Cyprus does nor exercise ellecrivi conrrol,''' Declaration 6

rF

15 See further para. 6 56 below.

t88l

FREE MoVEMENT oF Persorqs UNom. rur AccnssroN TnBery 6-31

3. FREE MoVEMENT oF PERSoNS UNDER TrrE AccEssroN TREATY

(a) Rights of Free Mowment

Of principal inter€st in the context of the frc€ movement of persons is the exam- 6-30ination of the transitional provisions for workers and (in certain specific cir-cumstances) companies providing serviceswho send workers to Member Statesfrom the CEECS. It must be borne in mind that the transitional Drovisions areexhaustive in their identification of the restrictions on the exercise offreemove-ment dghts. Workers and posted workers apart, derogations from the EC Treatyprovisions catrnot be made in relation to the freedorn of establishment nor tothe freedom of movement of the economically non-active (students, theretired or self-sufficient).r6 Moreover, even in relation to workers and postedworkers, derogation is permitted only to the extent specifred in the transi-tional provisions. This means, for example, that from the date of accession thenon-discriminationprovision containedinArt. l2EC Treatymaybeinvokedbynationals of all accession states in relation to the futwe effects of all situations.includingthose arisingpdor to the new Member States' accession.lT

(b) Derogation from Free Motement for Workers and Services:the Tta sitional Provisiofis

(1) Intrcduction

In relation to the eight CEECq the Annexes to the Act of Accession, each 6-31contains an identical section dealing with "freedom of movement for p€r-sons". Commentary herein is based on Annex V which deals with the CzechRepublic, although the same comments apply in relation to each CEEC.There is no such section in Alnex VII for Cyprus. Annex XI which deals withMalta does contain provisions dealing with freedom of movement for per-sons,r8 although these relate not to an ability for pre€xisting Member Statesto limit access to their labour markets of Maltese nationals, but rather to theability of Malta to derogate from Ad.39 EC Treaty by taking measues toprotect its own labour market if Malta "undergoes or foresees disturbanceson its labour market which could seriously threaten the standard of living orlevel of emplolment in a given region of occupation".re Malta may resort tosuch procedures for seven years following the date of accession.

16 Subject to the possibility of the taking of fie m€asues refered to in Arts 37 and 38 of the Actof Accession refered to above at paras G22 to 6-26.11 See Case C-122J96 Saldhana and MTS v Hnoss Houing AG, Octobet 2, 1997 , paft 12-14.rB Se€tion 2, AnDex XL

'' Broadly stated Malta is oblig€d to iDform the Commission and other Member Stat€s of sucheventuality and may r€quest that the Commission suspend wholy or partly Arts I to 6 of Reg.1612/68 "in order to restore to normal th€ situation in tllat region or occupation." Malta mayalso 'ln urgent and exc€ptioml cased' itself srrsp€nd th€ application of Ans I to 6 "follow€d bya.easoned ex-post notificatioD to the Commlssion." ln order to have advance warning of anysuch situation Malta may rctair its wo* permit system for nalionals of otlEr Member States,although work permits must be issued atlomatically.

t l

!

r

t8el

6-32

#

ENLARGEMENT oF THE EuRopEAN UNroN 2004

(n) Trunsitional Arrangements for ltrorkers and Posted Worketthe CEECS

6-32

(iii\ The Transitional Scheme in Outline

G33 In broad terms, the scheme in outline is as follows:

for the fiISt two years following accession national laws will

Paragraph I of Annex V (the Czech Republic) provides that frumovement for Czech workers is subject to the transitional Drovi$down in paras 2 to 14 of the Annex. The same is true for Czechworkers" (that is to say workers sent to Member States by Czech crproviding services2o). Paragraphs 2 ro l2 and t4 of the Annex applyers; para.l3 applies to posted worke$. However, the provisionsposted workers enabling derogarion from the first parigraph ofTreaty "in order to address serious disturbances or the threatsp€cific sensitive sectors" apply ort to Germany and Austria.

right of access to the labour market for CEECs seekins todghts of free movement as workers;

. during this injtial two-year period national authorities willsive jurisdiclion over the scope of application of such right dsince this is a matter of the national law of each of the 15 llStates concerned rather than a matter of Community law;national laws may be kept in place by the 15 Member Statesfive years upon notification to the Commission before the efrfirst two years following accession;for those Member States which retain national laws for fivelaws may continue to be applied for a further two years (makingof seven years) in case of serious disturbance to the labour Brsuch Member States;after two years any of the 15 Member States may choose tosions of Community law to the right of access to the labour mfrom the date of accession Community law applies to all CEECas regards matters other than access (for example conditions dsocial aDd tax advantageq rights of residence of family memin cases where farnily members accompany CEEC workers duriperiod when national measures are in place, access to the labourfor those family members is rcstricteq.

(iy) Nqtional Measures for the First Two Years for llorkers

6-34 Paragraph 2 of Annex V establishes the principle that for twoposition of Czech national \vorkers entering the labour markets ofMember States will be governed by national measures (or thosefrom bilateral agreements). The two-y€ar period may be extended brMember States to five years.

'?o As defined in Art.I of Dir. 96/?l of th€ European Parliamenr and of rhe CouDcil of16, 1996 concerning the posting of workeN in the framework of the provision of

[e0]

(\) The ScoPe of the Derogtttion

aw to workers for two years, with 6-35o "derogation from Arts I to 6 off access to the labour market ofe movement rights). The scoPe ofa.9 which provides for derogationwhich cannot be dissociated fromthat Directive's obligation to granta residence permit2r could not beto access the labour market of oneerogation from Arts I to 6.

It must be emphasised however ---consistent also v/ith the principle that 6-36

i".-tri"tio"t on ihe exerci.e of a fundamental freedom must be narrowly

construed-that the other provisions contained in Reg 1612186 (namely- Arts

i t" S d."ffu;tth *orkers'rights of equal treatment and Arts l0 and 1222

dealing with the rights of the workers'family members) will apply where a

Czech-worker is in emplolment in a M€mber State'

t Lopes de /erka2r in which the ECJ G37Portueuese Act of Accession. This

1 to 6 of Regulation 1612168 nr other Member States and in the:tuguese nationals until JanuarY l,

1993. As the ECJ stated at para.g of its judgment:

"It follo)vs fiom an a contrario inlerPletation of that provision that Article 7 er re4'

of the regulation, which are not covercd by that derogating provision app-ly as lromI Januar-v 1986. the date on which lhe Act of Accession came lnto lorce

Such interDretatlon \tas consrstent with the ratio of the tmnsitional arrange- 6-38

."it. tuti""aioe the application of the provisions of Arts I to 6 of Reg'

ieizos uitil ruo-uu.y I,' i993 (in the words of the ECJ) "in order to prevent

aisrubtlo" of tne faUour markets of the old Member States thfough a mas-

sive iirflux of Portuguese nationals seeking ernployment" But th€re was no

i"uronlo r"for" toilow the provisions o'f nti"'l to 12 of tbe Regulatronideulne with enplov-ent andiquality of trcatment), nor those of Dircctive

b8ii60i"" ,h" righiof residence) to be applied to Portuguese workers who

*.r" uft'""av "-pjoyed

in the territory of bne of the old Member states 24

'rAri4 to the labour market of familv memb€rl iscation of Ans I to 6 is suspended The effect ofworkers to work Th€ detail of this is discussedr'here the rig:ht of access to the labour market of

,,f)*ir," ttntq t...*. tttn.'' Note a.lso. as slaled bv the ECJ in Lp6 at para ll of irsjudgrnenr' in relarion to the similar

',;;;#;;i il;"-";;*"*i

'r'" c.!,a,i." or Accession of tbe Herlenic Repubric' rbe Ecr

i.liJi-' ii"-raiv-:,j, issijuJgmiot in case los/s? con r',ission v &eecelre8elE C R 146l'that;"'r,r'l"giiG' ii'""ito""i an:angements suspenaed tho apPlication of a number of Provisions or

FREE MovEMEN'r oF PsF.sol{s UNpen rHn AccEssIoN TREATY 6-38

[el1

6-39

6*4l

642

The correctness of the proposition is yet further -colfirmed

bY the con

i"-.si"e""*v*r'i"t'.!Pe$olt.th:.sc-o-e-e^,'ll*.d:l^"5:Plf""::ffi;il.ii';in*. iiizoi. rn' a"uit is c;nsidered below but thellt l'"iigl"" .-p;#tv from Art l l demonslmtes how srytll-t^t^T,1:;;.:'i;;;U;# ui.* or ut least one Member state derosation is tr

il;;;; ii: ;;,t;;,v oI Res l6 l 2/68 (or indeed Art 3e Ec rreatv) bd

6-39 ENLARGEMENT oF TIIE EURoPEAN UNION 2004

noiurther thau expressly provided for'

market access".

(\i) Justiciability of Access Provision"

No l612168 instead"

For the fust two years at least during wbich time "by way of derogauon

i;t'i; ;;ili# 16 rzlis -ttt" t rsi-lnlt'ober sjates wrl applv natiotral

th:::i;:i;ru,'*f; ,:ii::ll':ilfl '":ffi :';i,'R:,11?"1il j:: l,ff .r;1"' *:xn*; w*l::ilii;i:"#$Jl$i':+;ililttriluf llll"'lxhlfl;1tl't;lliiil'..,',.t.':*Tffi;i;;:;il; ioo.-li tt" nrt"*l tnlember state[s]applving n;.#.:";; il"virme oeclae to apptv Articles I to 6 of Regulatioo

"Any member state putling into place lwelfare] rules that discriminate ac

",:,i;i'iiiiiv,,i'., ad"minite beiween mrember. :l,iT .li:::.q-T::::l

iii;'ffi",,il-i;;riil,i" .'oota luu" to took at those rules very carerullv'

"uir. o.rrJi" aft"t"

"oulal be a contmvention of exisling Community law"

Member States can elect to apply national law measures which have the

il tllfi'.??,i"#;nt..iog iiri 'igt''' of free movement to czech src

ini..a. puru.tT rtutes expresslv that anv "Jre "l^1!t,l:,Y:l9:l:tlj::

il:**?fl"1#:T['*ti"rr,"fl"J:#iTriK:'"':H""'".1lTifii

m$mffi :,miiFF'"fi :'!iiil-',r''.i'yi"':.:',1!*1:,i:r,*i,;*tHiHi:ffi""'il ;"# i*'t"iri '-pr"v"a ' 'd'

H;renh Republic b€rore I ranuarv

""ruor"J,. u..lDpfov"a $ere after that dare or lhose who were la$'fully employed lh'

fi:tffi:lI ltLtffiread unravourabre mtdia arrention beins siven to th€ uK''

"u.* i'ie'C ""ii.u ";rkers

accesr to the.labour :"11!:l .-^,.E,,,"-, ^^rhcFrr;#)j##;;lmr,mr;:ilii;;";tffi*ri;#;;iJ:;";t3,2004.

le2)

FREE MoVEMENT oF PsrsoNs UNoen rrIE AccESsroN TREATY 647

Such limitation of the ECJ'S jurisdiction however would not apply as regardsother matt€rs. As emphasised above the derogation applies only as regardsArts 1 to 6 of Reg. 1612168 dealing with access to the labour market. Mattersadsing for example in relation to other provisions (namely Arts 7 to 9 deal-ing with workers'rights of equal treatment and Arts 10 and 12 dealing withthe rights of the workers' family members) would be justiciable before theECJ since these arc rcmain quintessentially matters of Community law andthus \ryithin the ECJ'S competence. Moreovet the ECJ will retain jurisdictionover the interpretation of the Trcaty of Accession itself (and any Annexes).Thus for example were a dispute to arise as to whether a matter fell within thescope of Arts 1 to 6 of Reg. 1612168 it would fall to the ECJ to resolve suchdispute. This is because the resolution of such dispute would involve theinterpretation of a Community law instrument.

(vll) CEECI Working Legally in One of the 15 Member States on Accessionor Permitted to Do so

Paragraph 2 of Annex V plovides also that Czech nationals legally working inone of the 15 Member States at the date of accession and admitted to thslabour market of that Memb€r State for an uninterrupted oeriod of 12 monthsor longer will enjoy access to th€ labour market- of tial Member Stare.However it is emphasised that the ght of access does not extend to the labourmarkets of o/rer Member States. Thus for example a Czech national who hadbeen given a one-year permit to live and work in a specific job in a MemberState for 12 months prior to accession must be allowed to continu€ to resideand work there in any capacity or for any employer. Since this may be at oddswith the national law provisions otherwise in force in one of the 15 MemberStates such a person's posilion would be governed by Community law

The dghts of access to the labour market are given also to Czech nationalsadmitted to the labour market of a Member State for an uninterruDtedperiod of 12 months or longer following accession. The right of accesJw lbe to the labour market of lral Member State. The worker will also have theright of access to the labour markets of any other Member State which is nolonger applying national measures.2?

Czech nationals cease to enjoy such rights of acaess to the labour market ofthe Member State in which they work if they "voluntarily leave" the labourmarket of the Member State in question. Although not defined, "leaving"should not be construed literally enabling a Member State to deny such dghtswhere (for example) the Czech worker retums to the Czech Republic for aholiday. Any such interpretation would at the very least offend the principleof broad construction aheady identified.

For those Czech nationals legally working in a Member State on accession(or during a period when national measures are being applied), but who haveb€en admitted to the labour market of that Member State for a period of leJJthan 12 months, parc.2 states cxpressly that such rights are not enjoyed.

']7 It is to be recalled that two years afler accession Member States choose whelher to coDlinueto apply natioml m€asures Beforo May 2006 however only national measures will apply.

643

L

6-44

645

u6

u7

[e3]

6-4tl

G50

6-5r

6-48 ENLARGEMENT oF TIIE EURoPEAN UNIoN 2004

('tiri) Periods of Employment Before Accession Relevlnt lo Sand Tax Adwnlages

ln )sterreichischer Gewerkschaftsbund,2s the ECJ considered prcvii

Austrian law providing that previous periods of employment spent ioJare treated diilerently from those spent in oth€r Member States forpose of determininglhe pay of contractual teachers and teaching aihe third question ionsidered by rhe ECJ sought to determine whods of employment spent by such staff befote Austria's accessiontaken into aciount. The ECJ noted that the case did not concern thcnition of rishts under Community law allegedly acquired before thcsion, but raiher current discriminatory treatment of migrant workeEabsence of specific transitional provisions concerning free mort

workers, the ECJ held that "previous periods of employment mustilv be taken into account." This case is thus lmportant in establisEp'roposition that time spent as a worker prior to accession must be ta.b

iccount in calculating access to social and tax advantages in Commuqi4

u9(ix) Period of Application of Nstional Measures: ftom Ttt'o to Fie

Whether national measures are extended beyond two years will bethe disqetion of each individual Member State Howevel the

required to carry out a review. Such review is non-binding The proviias follows.

ParagraDh 3 of Annex V requires that the Council. acting on the

repoit fiom the Commission and_before the end of the two--yearlowins the date of accession, shall review the functioning of the pan

sitionil provisions. On completion of this review, and no later than al

of the two-year period following the date of accession, the l5 Memt

shall notify the Commission whether they will continue applying

measures or measures resulting from bilateral agreements, or wh(will instead apply Arts I to 6 of Reg. 161'2168 |.t the absence^ofnotification, Aiti I to 6 of Reg. 1612/68 shall applv. Paragraph 2 ofmakes clear that the continuation of national measures is permil

DesDite the non-binding nature of the Council's review' its findings o

to be rhereby regarded as completely irrelevant.. Early indicationsu"""trio" ttit n6t substantially allected the labour markers ofMember States which have given the right of access to their labourfireland and the United Kingdom). Nor do there appear to hav€ I

Lms experienced by Austria and Germany Yilh lalge.nYb:rs :fState nationals exercising other Treaty rights. lndeed the- Saxo

Minister in charge of European AJTairs. Sranilaw Tillich said in Jq

that his fegion of Germany desperately needed Polish and Czech

despite its unemplo)'nent rate of 20 per cent to servlce pattrcunr rI

further thrce years until MaY 2009.

,s C^se C lgslgl Ostefteichischet Geteerkschaftsbund Gette*scha'ft dflentlicher Dieir

Bltlii l;'i;ll1li;r,e or tr€ apprication or the pnnlipre idendned at-pala G.nref"r"o.e lo Cuse C-|ZZ96 SaldanhaT Hircss Eoldins AGll99TlBCF. l-5325'

[e4]

J.-.

FREE MoVEMENT oF PERSoNS UNDER THE AccEssroN TREATY 6_51

Mr Tillich stated "Our automobile, IT and health sections suffer from ashortage of highly qualified employees, whereas Saxony,s own unemployedconsist mainly of poorly or non-qualified workers".3o If such appareni trandcontinues it would be dimcult to regard the continued withhoiding of therighl ol access to the labour market asjusrif ied.

(x) Extension of National Measures to Seven years in Cases of SetioruDistwbance

Paragraph 5 of Annex V makes provision for a further two-year extension of 6-52national measures, potentially until May 201l, thereby enabling the mainre-nance of national measures for a total of seven years from accession.Howevel the provision applies only to Member States maintaining nationarmeasures (or measures resulting from bilateral agreements.l beyond the firsttwo years to the end of the five-year period. Such a Member Statel may. rncase of serious disturbances to its labour market or threat thereof and ifternotifying the Commission, continue to apply these measures until the end ofthe seyen-year period following the date of accession. In the absence of suchnotification, Arts 1 to 6 of Reg. 1612/68 shall apply.

Similar commeuts can be made here as made above about the apparent trends 6-53which have followed accession. In view of the need for the M;mber State rodemonstrate actual or threatened serious disturbance to the labour market,the question may not simply be whether continued use of national measurcsis politically justified but rather whether it is lawful. However it is difficult toanticipate how the necessary threshold could be established by a M€mberState which has not given access to its labour market.

(x1) Labour Market Disturbances llhich Seriously Threqten Standard ofLiting or Level of Emploryent in Given Region ot Occupation

The limitation on the possibility of extension of national measures to seven 6-54years to those Member States who have extended the initial two-vear oeriodto five years does not however mean that the l5 Member States ari oowerlessin the event of serious disturbances to their labour markets. Paragiaph 7 ofAnnex V makes provision for the situation where a Member State undergocsor foresees disturbances on its labour market which could seriously threitenthe standard of living or level of employment in a given region or occupation.The procedures can be invoked for seven years following accession byMember States in which Arts I to 6 of ReE. 1612168 apply as regatds Czechnationals. Howevet not only is the threshold of disturbance arguably higherthan under para.s, but the decision is generally taken by the Commission.Such diflerence is more than justified by reason of the fact tbat MemberStates relying on this provision will already have ceased derogating fromArts I to 6.

r0 M Beundernan, "cernan Border Regron Presses for Labour Mobilrty', avaitabl€ arhttp:Ieuobse ercom, J'0l.r 14,m04I' Namely 'A Memb€r Srat maintajning national measures or m€asures resulting fmm bilateralagr€ements at t}le end of th€ five y€ar period indrcated in paragraph 2."

te5l

G55

6-56

6-58

G59

Such a Member State is rcquircd to inform the Commission and therv"-t"i stut"r of the situition and to supply all relevant particulaE

Member State may request the Commission to state that the appli

e.ir i L O of Reg 1612168 be wholly or partially suspended "in

;;;i;; i" normil the situation in that region or -occupation'"-Co-rrtitrOn

-utt aecide on the suspension and on the duration aod I

theieoi not later than two weeks after receiving such a request- The C

-"ti U" i"iot-.a of such a decision. Within two weeks from the date

Co*.ittio" t O""irion, any Member State may request the Council.tor

"'t "*ita tU" O""ition. The Council must act on such arequest v/idi

.eets. Uv quafinea majority. ln "urgent and exceptional cases" a

State may itsell suspend the application of Arts I to 6 ot Reg';iJit*.i uv u i"utoned ex-posinotification to the Commission "s2

Gs5 ENLARCEMENT oF THE EuRoPEAN UNIoN 2004

(c) Family Membets oJ CEEC Nationals

(i) The Right to Install Themselves with the llorker

Article l0 of Reg. l6l2/68 gives rhe right to family members to inslal

se-tues *ittt a wo-rker who ii a national of a Member State.The righl

uti'f" uppfi."tioo of Arts I to 6 of Reg. 1612168 is suspended The od

ily membirs covered are the spouse and descendants ,under I I years or

"' "-;tlilnot aependant relatives in rhe ascending line)'

What these family members get depends on whether they are legally

*ii'rr it "

*"ii.t ii ,t e territot of ; Member state at accession or froiui.i ih- u...ttlon during thi period of application of the transi

visions. In the former case. upon acc'ession the tamlly memDers

#-"JiuG o"""tt to the labour market of the host Member Smte'

iftiriiJfri ar"r ".t "pply

to famib members of a worker legally a(

i'rr. r"3""t*t-i.if""'a'period of less than l2 months' In the latter

i This power mirrors that giv€n to Malta'rr Arts 10(I)(a) and (b).;; il: ;l;';i#;i; *.u or Res. r6tz68,tsivioq,h:"c\l_.y::1,'^",rT:',v,-"those _ourcuing an activity as employed or sell employed persoo I wnlcn app|l6

;'"ltHff "Tilj illl".i'"i:,1r Res., 61 ,,68.

irr.spe"tiue of the nutionality of farnily members and extends to spou

theii descendants under 2l or dependants' and cl^ependant relauv€s

".i."Jitr ii".." As already observed the scope of derogatio-n is lim

Arts I to o of the Reg. 1612/68 relating to access.lhus rI LLtsL

;;";; if in "..o.din..

with nationai law provisions-are residi

Member State they will be able ro be joined b), therr tam y memDers

(li) The Right to Work

"Bilxfl Lxl,"?',*ftTJ,**,*i*:trljl:i,?r;J'1"iil::PThe orovisions apply without prejudice to more favourable measurts

."|f."*air "",i.iti"i

law {or resuliing from bilaterat agreements) forr

te6l

li

FREE MoYEMENT oF PERSoNS UNDER THE AccrssroN Tnnary 6-64

family members shall have acc€ss to the labour market of the Member Stateconcerned once they have been resident there for at least 18 months or fromthe third year following accession, whichever is the earlier.

It is to be noted that para.8 thus limits the scope of applicatioo of Art.llof Reg. 1612/68 (which otherwise gives a// family members the right to workwhenewr a \ationalt of a Member State pursues an activity as an employedor self-employed person). This is however not surprising since the ability ofthe principal worker to accass the labour market at all is a matter ofnational law (namely whilst the application of Arts I to 6 of Reg. 1612/68is suspended),

What then is the position of the family mernbers of a CEEC worker whobenefits from para.2 of the Annex (having been legally working in a MemberState at the time of accession for 12 months and thus enjoys access to thelabour market of that Member State)? Despite the fact that the CEECnational has obtained free access to the labour market of the Member Stareconcemed, the fanily members are still govemed by para.8 and are thus lim-ited in their access to the labour market because para.S is dependant onnational measures being in place in general (namely "as long as the applica-tion of Arts I to 6 . . . is suspended"). However, any dispute about such ques-tion would be a matter of Community law relating to the true scope of para 8and thusjusticiable before the ECI

(d) Measures to be Taken by Accession Countries

(r) Equittalent measures Takm by the Czech Republic

Paragmph l0 of Annex V makes provision for equivalent measures to betaken by the Czech Republic "whenever national measures, or those resultingfrom bilateral agreements, are applied by the [15] Member States by virtue ofthe transitional provisions". In these circumstances the Czech Republic "maymaintain in force equivalent measures with regard to the nationals of theMember State or States in question."

For Czech workers for the fust two years after accession derogation from therights of access to the labour markets of 15 Member States is automatic. Bycontrast, if the Czech Republic does not take equivalent measures fullCommunity law provisions will apply in relation to workers from the 15Member States. Thus any EU national of the 15 Member States would beable to exercise full free movement rights in the Czech Republic.

(11) Disturbances Wich Seriously Threaten Standard of Liting or Level ofEmployment in Gi,en Region or Occupqtion in the Czech Republic

Paragraph l l of Annex V provides that the Czech Republic may rcsort to theprocedures laid down in pan.7 of Annex V36 with respect to Estonia, Latvia,Lithuania, Hungary Poland, Slovenia or Slovakia. Such resort may be had

6-61

6-60

642

G{3

&

{i

16 See paras 6_54 to 6-55 above.

I9T

645

6-46

6-.61

6-68

bv the Czech Republic -if the application of Articles I to 6 ol- Reg'

is'susoended by ;ny of the [t5l Member States"'

Thus for example if the Czech Republic is-by reason of par

e""i""ii"""t fiws laid down bv.o:: of, the-:1-I{:*"1,1^liiil;; i;;;;;,t;;tkeis go to su"h Member State it can likewise at d

; ;;i;;; i,; ;*; I auo u r rn'.'ke t f rom in fl uxes ft ".1 ""It: 9 u^^lS:-l5

ii, "i

*"rt of which will be similarly prevented from accessrng

Member State)

(ir\) fueedom of Movemenl Amongst Accession States

It is clear that, subject to the triggering of para l l measures by a p

CEEC as against olher CEECs. lhere is free. molemtlt nt 9:ly-t11

i""#;h il;i Annex v is exhaustrve of the limitations which are

il ;il; on th" .".t.i.. oi free movements ,ttch,ttj.l1v-":k-tjt.l

$::i:..,,'*:li*1ff '.T:i;*ff f liii:l'ili'?f; id,i+l:;:til;;" ;h;r;;;pectiv'e labour markets lt should be recalled hower

;;;h;;;;il"t are subject to the possibilitv flih"t, v."3': "'l'-ih';; ' i l-;;;;;;;; measuies contained in Arts 37 and 38 or tbe

l,*"tri,io.t- Moreover.l* Malta may also take measures to protect

labour market.

6-44 ENLARGEMENT oF THD EURoPEAN UNIoN 2004

(e)) Posted llorkers

Paragraoh I3 of Annex V deals with posted workers thai is workers

Memiei States by Czech companies providrng servrces ' i l" ' i l t9l

;;-rffi.il;; a;"ch Republii "ompimes to Germanv and Austria d

;;;;;;;p"h *;il;'.;ision for derogation TI tT T:ing1fl?*.giATJi,)t'iil;t'd* io address serious disturbances or the threat tb

ipi"in"?"titi"-" **ice sectors on theiri"btg - :*lt:1.,1'-".1, i:*1:fi;i; t""d;;@ii;"m the transnational provision of services" (as

Art.1 of Directive 96/71).

Austria and Germany may so derogate for as long as natlonal meaq

A;#""itc il'bilatetal ugteeitentsl are being anllied-to-fl11

t#t***$'**"1i'*ilr:*Hml':fi";mr#'8"';r7 Refened to at paras 6-22 lo 6'26 above

l: ffii"Eli:.:,','**,f.'11 li,ilii,""."iii",.--{ .' :\1:"1:i"t","::,.Ij :::}r#"*:**hf*m'n;l*ti:::'"lut':i*}3:#*:"f '"li"fi {a'stt""',:?,-$:f"lii:",-J1'""lii"'T"'llj"l" o, o:.r*I -d

A],1,1"-1lfl*,:=;:nn*: *

"u;,ulrl i:ii'u ;r t'.iii: Kl r:",ii":ii'l i:: ffii

":i'ili'rlii'.liri.i'iirr. oi c.'*unv and rhe Replbtc or Ausrda io.agr€emrtrt

ilt.-;"i"" "t

.ii";te that'cerkin regjons may where appropnatq also compnse

national temlory"

[e81

*"

FREE MovtrMENT oF PERSoNS UNDER THE AccDSsloN TREATY 6-72

sectors are construction (including related branches); industrial cleaning andactivities of interior decoralors. In relation to Austria the same sectors arespecified, plus horticultural service activities; cutting, shaping and finishingoi stone; manufacture of metal structures and parts of structures; securityaclivities; social work and activities without accommodations and homenursing. To the extent that Germany or Aust a derogate under this provi-

sion, the Czech Republic may a1so, "after notifying the Commission, takeequivalent measures".

There is also a "standstill" provision in para 13 of Annex Y Application ofth€ para$aph must not result in conditions for the temporary movement ofwo.k"rs ln ihe context of the transnational provision of seryices betweenGermany or Austria and the Czech Republic which are more restrictive thanthose existing on the date ol- signature of the Treaty of Accession or

It is to be emphasised that this derogation applies to workers employed byCzech companies (or indeed companies established in other CEEC AccessionStates).It d;es not however apply to companies established in the l5 MemberStates who may indeed seek to post Czech or other CEEC national employ-ees. This is however subject to satisfaction of the criteda that such employeeshave been habitually employed by the company established in one of the l5Member States. Thus for example a company established in the UK couldDost a Czech emDlovee in Germany in order to fulfi1 a contract for construc-iion. The onlv pie-condition would be that the Czech employee had pdor tosuch postingibien habitually ernployed by the UK company. For discussionof the posted workers requirements see Chapter 8.

(fi The'Stanhtill' Provision and Other Measures

A similar standstill provision to that contained in para.13 is contained rnpara.l4 of Annex V in relation to workers. This provides that the application-of

oaras 2 to 5 and 7 to 12 must not result in conditions for access of Czechnationals to the labour markets of the 15 Member States which are morerestdctive than those prevailing on the date of signature of the Treaty of

Accession.a2

Moreover, para.14 provides also that duing any period when national meas-ures are being appliid preference must be given to workers 'flho are nationalsof the Member-States over workers who are nationals of third countries as

G49

6-70

6-7r

'r ADril 16. 2001 {as oDposed to lbe dale of acc€$ion}ar For the aoproach of ihe ECJ to (he standstill clause in relation to Portugal and span$h acces-

sion se€ Ca; C-279l89 Comnission v (tnited Kinsdod [1992] E C R I-578s. (a case in whict,the

Coffnission souqht a declaration that by imPosing certain fishi ng I ic€nce condthons the ut( bad

fail€d to fulfil it;Treaty obligations) The ECJ h€ld that "bv excludhg in th€ same wav thls€

sarne nationah where tirey are ernployed fishermeq the Memb€r State also infnnges An aS of

rh€ Treatv Inow An.39l, since, in the case of restrictions which did not exist Prior to the acc€s-

sion of Soiin and Porrireal. it fails to complv with the standst l clause in Ans 56(l) and 216(l)or rne,rit of Accession of 1985, or, in the case of th€ apPtication of those restnctions to theSDamsh or Portueuese memb€rs of the families of nationals of other Member States, it fails to

;sD€ct the riaht; derived bv them from Regulatior No 161268 or Regdation No l25li70

inJsoeaive of-the transitioD;l provisions of the Acl of Accession of 1985 ''

[ee]

reeards access to the labour market The pa ragraph . fu rther provides

;;;k;";;-ih;i' i"milies lesallv resident and working llil,"-y:t":

*""'," lil ltn*;m""tffi ;i:f : #ii ili!i:+ii!:lyrnm:i:,;*ut;il"*;u'''.',ru*f :'$i::ii:-3:i.:iil1-i|i'Hio:: "ii'b#il;uv ;;'-r;-'A*, workers rrom third cou n triesilriii'[,lr'"g i^ i;czec'h ikp-ublic shall not be reated more favouri

ENLARCEMENT oF THe EuRorelN UNtolr 2004

nationat. oi ttte czech RePublic'

t1o0l

CH pTER ?

WORKERS

This chapter identifies the concept of "workers" in the contexl of the freemovement of persons.

L INrRoDUqroN

(a) Fundamental Importance of Frce Motement for Workers

The freedom of movement for workers is one of the foundations of the ECTreaty.rThis is reflected by Arts 2 and 3(lxc) EC Treaty which provide that,for the purpose of establishing a common market and the promotion of theharmonious development of economic activities between Member States,obstacles to the frce movement of persons between Member States shall beabolished.2 Assuming that economic activities are being undertaken the frce-dom applies to all workers of all Member States rcgardless of occupation.Such free movement provision contrusts the narrower rights of free move-ment contained in the l95l Treaty Establishing the European Coal aod SteelCommunity (ECSC) and the Tieaty establishing the European AtomrcEnergy Conmunity (EAEC) which concemed economic inte$ation in thefields of coal, steel and nuclear energy and gave limited free movement rightsonly in those sectors.s

(b) Treaty Provisions on Workers

The EC Treaty plovisions on workers are contained in Chapter I (Workers)of Title III (Free movement of persons, services and capital). Broadly thescheme is as follows. Article 39 EC Treaty provides the principal means bywhich the abolition of obstacles to free movement of workels is achieved. AsArt.39 EC Treaty makes clear, the abolition of any discrimination based onnationality between workers is of fundamental importance.a Such irnpor-tance is reflected by the principle that the concepts which define "the field ofapplication" of the freedom of movement for workers "may not be

rln the original text of th€ Treaty (as done in Rorne on March 25, 1957) "Part Two" of tleTreaty (which included the Title III provisrons on free movement of persons, services and cap-tal) was entitled "Foundarions ot the Community" The titl€ was dropp€d in 1992 when arnend-ments made by the Treaty on European Union substituted the drle (for "Part Ttuee")"Community Policies": The roots of the "common mafket" can be seen in the 1951 Treaty Establishing the Europ€anCoal and St€€l Conmunity (ECSC), although free movemert rights were limited to skilledemploymert (Art.69 ECSC)r See Art.69 ECSC and An.96 EAEC, see fu rer Chapt€r Ia S€e Chapter 9-

l

I

I

i i

I

7-,01

742

t1011

742 WoRKERS

(c) S e condarY Le gis lat ion

directives or makefor workers as

interprered restrictively".5 Article 3q EC Treaty itself gtres meantng

i;:$;';i :il;;;'Jf movement for workerr bY tbe^so::',1"'ii::#corrc€lrl ur

of the rights to accePt emPloymen

Member States tbr such purpose ard to stay io Member States' t

".pT"r-*l "ta "rrer having-been employed:

Article 39 EC Treaty

l. Freedom of movement for workers shall be secured within the

2. Such frcedom of movement shall enlail th€ abolition of atry discrir

i"*a i. "",i"""ritv

tetween workers "f *"

M:T!:'^:i"*:.::j,tt*d';H; ;;;;;;;i;;";d other conditions or work and emplolmen!'

3. It shall entail the rigit. - subject. !o limitations justified on grounds of

policy, public security or publrc nealrn:

to accept o[Iers of employment actually fiade;

i" il""i r.*lv *i,rtl" ihe'territory of Memb.er stales for this p^urposq

li"'li;itlXU|::;11 :'i:'#{ff."i":T""#:'"'J'T:l[ffi ::"""'Tiliri*l ,.g"lu,Ln o, ud-ministra-tive actior'id 'i."i,ii"

the terrilory of a M'TP:t s.'tl: 3ft" 1:]ili,b1iffd1""i:,':"biJ;-io'naitlon' *t'ict' shall be embodied in im

resulations to be dfawD up by the L ommrsslon'

4. The provisions of this article shall not apply to employment in the public

7--03 Article 40 EC Treaty requires the Council to tssue' *

, i,on, lo bring about rhe freedom of movement

Art.39 EC Treaty'

7-44 Article 41 EC Treaty requrres that Member States th"tt' YI::he

work of a Joint proeramme,.e*t*1ct lT,.tl:111qt",:i"ti:""*"ili,lir'l^i.i] a'c'i;.";tv'itquitt' rr't c-ouncil to adopt such measur€si"io? tl.i"i*.*iry u' u" ottt"ury to provide freedom of movem

(al(b)(c)

(d)

workers.6

7-O5 The tut.40 EC Treaty obligarion referred^ to above h":.11*:9,-'::*"

pal measures imPlemeotrng tne iights of ftte f:.::T:J:t:;"";:H#

"d,*:'i';#/'68 i'r;$;;,i J i.'ou"*iot rn' *orkers within the communn

ii?."w. odljeo t"uolition of -restrictions "l T1":1T:i*,lT:f **

ini'"ii#'"iii t rii' iii'G" oirrl"-u"' sutes and their families)'

ffiri{""'T;ii,T:'3:iU1"ff',13#"',:'"'l;"""r,cri?rlors?;r-]-T1'^1":*T:"i:":T'i:]:$ffT":til",5;XtdTi'iiif"E:ffi l-:il'nf i"r*'"'i""i "*i"t *curitv;easur€s s€€ chapter

'.

[1021

THE DEFINITION oF WoRKER

(d) The Community Concept of llorker

7-O8

The interpretation of who is a worker for the purposes of the frce movement ?j6provisions is a matter Community law which, in light of the fundamentalimportance of the fie1d in which such interpretation a ses, must not be inter-preted restrictively.? Moreover the Community concept of worker for thesepurposes must nol take flayour from national concepts. This principle wasestablished over 40 years ago irr Hoekstras where the ECJ considered theinterpretation of the concept of "wage-earner or assimilated worker" in aprovision concerning social secudty for migrant workers.e As the ECJstated,ro if the definition werc a matter within the competence of nationallaw, "it would be possible for each Member State to modify the meaning ofthe concept of 'migrant worker'and to eliminat€ at will the protectionafforded by the treaty to certain categodes of person". The ECJ has con-stantly emphasised that the definition of worker has a Community meaningever slnce.''

(e) Community Concept of Worker Depends on Context

There is no single definition of worker in Conmunity law. Rather the defini- 7 {7tion va es according to the area in which it is to be applied. For example, asrecognised by the ECJ in Sa1a,r'?the definition of worker used in the Art.39EC Treaty context d oes

'J.ot necessatily coincide with the definition applied in

relation to measures adopted by the Council under Art.42 EC Treaty in thefield of social security, notwithstanding that the focus of both is the freedomof movement for workeN.

2. THE DEFrNrrroN oF WoRKER

(a) Generally

It Lawrie-Blum,ti Ihe ECJ identi.fied the thrce essential criteria which deter- 7-{8mine whether there is an employment relationship and, in tum, whether theperson concerned is a worker for the purposes of Art.39 EC Treaty:

, See Case 53/81 l,e''n v Staatssecretaris van Justitie 09821 E C.R. 1035, para 13.3 Case 75163 Hoeksia v The Netheiatuls 119$18.C.R.17'l'q Councrl Reg. No 3 conceming social security lor mi$ant workers lO. 561/58.taCase7sl63 Hoeksna 1) The Nethe ands I1964IE.C.R. 1?7, para 3.l'See for example Cas€ 53l8l Levin r Staatssecrctatis wn Ju.stilie Ilg8zlE.C.R 1035, "theterm'worker' in Article 48 lnow Art.39] has a community meaning". See also Cas€ C-188/00 r(l/r.z yLand Baden-Wtufienbery [2002] EC.R I-10691 in the cont€xt of the Turkish AssociationAgreem€nt (where r€ference is made to the mierpretation of the €oncept of worker underCommunity law for the purpos€s of det€rmining the scope of tlrc same concept under tlle

tl Czse C-8s196 Martnez Sala v Freistaat BayemU99Sl E.CR I 2691, para.3l. See atso forexample Case C-!A3193 loannis Vousioukas I Idrtna Koinotikon Asfolisseon (IK4) 119951E.C.R. I 4033 in which the meaning of civil s€rvants was distinguBhed frorn persons in public

it Case 66185 Lab,tie-Blum I Iand Baden-Win embers [1986] E.C.R. 2121.

l l03l

7-{8 WoRKERS

@) Services of Economic Value

l'ii'y;:::''ilT","txi'.ffJl:'ff ""'#:',s;q?,:ili+:i"+iwrrr uE scsrr

- ces must be tffective andwhich has emphasised that such servl

(aod not marginal and anqllary)'

Secondly, the performance of such services must be for and

direction of another Person'

Thirdly, in rctum, the person concerned must recelve remunera

These requiremenrs are exhaustive As.the ECJ has stated' "Commr'mit!

;#ililp;;; ;.v additional conditions for a person to be crassuaDE

worker".ls

Try

7-10

1-17

$fJd*:nffi rii'tr'j j#fJp*it",*,H;i1':iilffilffi;;:::'#i;:;;;;;ilJ;;a "'cinary

the activitv w'r ber"a *"""i".

""a tn" requirement satisfied'

:-ix?l:a,*;x:;';;t:::;;';r#::r,Hi:l':--:,1t111"".*'""

[Hljf,#x:*(:t**li'i,i*t,::i' ljllx" l;; Jli $'lill,"-'l"i3iil "! I2 of the TreatY"tu See p?fas'1-i1 el seq

[104]

THE DEFrNrrloN oF WoRKER 7-15

(c) Serlices For ond Under the Direclion of Another person

The second requirement means that the services mustbecarried out in thecon- 7-12text of a rclationship of subordination. Thus for example in Asscher.2t MrAsscher, the director of a company of which he was also the sole shareholderwas not a worker since there was no subordination. However, althoush he wasfound to be pursuing an activity as a self-employed person under Art.43 ECTreaty and thus entitled to benefit from the free movement provisions in anyevent. Indeed, in this respect, the question of whether a person who performsseryices for remuneration does so under the direction oi another peison andis thus a \^orker wil l be unlikely to cause much practical dif iculty. As in.4sscher if the person is not a worker he or she will likely be self-employed andrhis wil l benefit from free movement provisions in any event.

(d) Remunerution

Whilst remuneration is an essential element it is interpreted broadly. l_13Remuneration need not be at a particular lev€I, nor even in the form of wagesas such . The "level" of wages was considered in Levin2z in which the E-CJrejected an argument that rcmuneration had to reach a particular level so asto enable the person to be a worker (subject to the activity being ellective andgenurne and not purely marginal and ancillary).,3

Nor does the nature of the remuneration matter. In Enp Agegate2a the ECJ 7_14considered whether Spanish fishermen working on board British vessels wereworkers when paid as "share fisherrnen" (namely on the basis of the proceedsof sale of their catches). The ECJ emphasised that the identification of anemployment relationship was to be examined "on the basis of all the factorsand circumstances characterizing the arrangements between the parties. suchas, for examplg the sharing of the commercial risks of the businisg the free-dom for a person to choose his own working hours and to engage his ownassistants". The sole fact that remuneration was on a collectively determineqpaid "share" basis could not deprive the.fishermen of their status as workers.

The breadth of approach taken to remuneration is well shown by the decision 7-15of the ECJ in Sreyz4nr.25 The case concemed a German national living in theNetherlands as a m€mbet of the Bhagwan Community (which supplied itsmaterial needs by means of commercial activities, which included runnins adiscothdque, a bar and a launderette). Mr Sle)mann contributed to the lifelfthe Bhagrr'an Community by doing plumbingwork on its premises and general

'1t Case C-107194 Asscher v Staotssecretaris vqn Findrcr?r? t19961 E C.R. l-3089:) See Case 5l/81 Zryrn v \laattvteMrrs tan Justitie Il98)l E.a.R. t0l5'?r See also Case C-456l02 ToJani v Cente pub!ft d aide soiale de Brwetles 1Cp,4S,, Septemb€r7,2004u Case 3187 The Queen I Ministry of Asticulture, Fisheries and Food, Ex p Asesate Ltd llg1glE C R.4459 The questiotr ref€ned related to the transitronal arrangements conrained in Arts 5jand 56 oI the Act concerning th€ Accession of Spain and Portugal ro rh€ EuropeanCommunitles of 1985 Thes€ provisions introduced a derogatlon from the principt€ of the freemovement of workers (excludiDg the application to Spanish work€rs of Arrs 1 to 6 of Res.161268 until January l, 1993)

'1s Czse 196187 Stelnann v Sttutssecrcta s yan Jusrti€ [1988] E.C.R.6159.

I '

! :

l l05l

'7-15 Wonxtns

(e) Application of PrinciPles

(l) Level of PrcductiYitY

(rl) Part-time Work

household duties. He also took part inthe Bhagwan Community's comn

."tritv. i.t io p"tt the Bhawin Community provided for th-e rnaterial

.ilit ,it".u"t, i*rti"h included the palment of pocket money)' iresp€f,i

;#;il;;J ih; ;x1ent ot thelr aitiiities The EcJ considered that tli

i"-un"iutio" *fti"tt was able to be regarded as "an indirect quid pro

iil ;;;l-;;t;il;; bv the members-of the Bhagwan communitv 26

'7-16

1-11

1-18

Sewices will still have some economic value even where the "prod"tft"

i"ito" "o"".-"d is low, or-indeed ev:t tii? :i:1,"1t: l:]

"liiuu i"ttiai.t from pubhc funds As the EcJ stated in Bett'ay "l

in.-f.*f .i p.oau.,iviry nor the origin ol- the funds from, which the

nai",ion it paid can have any consequence in regard to whether or

oeison is to'be regarded as a worker" 2'

A consequence of the irrelevance of the level of pro-ductivity-is that a

rvfro *"tit putt-tirne can still be a worker' In- -Levtlr23lhe ECJ conside

;;;iti";;i; part-time B tish narional worker resident in the Net

married to a third country national. lt was argued by the Dutch.(and

Covernments that the provisioos oI Art']g EC Treaty could.only be

These arguments were rejected robustly by th€ ECJ' not least since it is

missible io define the Community concept ol worker by-releretrce ro !

i.*tli*oft"titi"g the fuutlamental nature of the freedom of mc

*-"tf."^ "fa

tn" t"!d for broad interpretation the ECJ noted the i

"i o"rt-tirn. *-l for a large numbir of petsons "as an effective K

improving their living conditions" and stated that -the e[ecltJ:]::::,

;;;i;f*;;tiJ be-impaired and the achievement of the objectivesr

i'"""i '-.

i."p"Jized if-the enjovrnent of rishts.conferred-1t"*"foi it"'"ao- 6r it*"ment for workers were reserved solely to persons

in full-time emPloYment".ro

ffi ';-,t;x:'"::":,n;;T.',t#iiiliil:F*{1{iil;?il'll-:{s.i:1{n:rx[rr:m#i:rli?,iriiii"'

l l06l

THE DEFTNITIoN of WoRKER

ius-\4/ilbrink and Rinner-Kiihn in 1-19'espectively for 18 and 10 hoursierman national resident in thenusic teacher for 12 hours a week

was also a worker' Moreover it is to b(

personh status as a student

(iii) Contacts for Employment tt'ith Voriable Conditions

Those who undertake work for certain €m

)ted to an agencY suPPlYing court)er of hours as and when required'

Are such persons workers?

rhe ECr considered such contncts in R41'-$,1JJ""Xi,l;Hi;::;i:l,l\ 'tt

person from being a worker and whether tl

or sought to exerclse an economlc activity for only a short time was relevant

to the iuestion of whether such activities are purely margnal and ancrllary

The ECJ held that the natur€ of the oont

rrcase 102i88 Rnziu'-tY bink 1) Bestuw wn de BedliifsverenEins .wot oreil,e'ds!::!:.t-en

rre'8ef#R.;31I (""."" d-"-t"t.p^.'t tg"-l:IE1l-":-:::;*"iT:""i*,T:*^1'il:,1:'il?";io; ;;;;;X;;", ;";"fi"'r;;;;*; ;::Af #i!^!,ft,f"" ';;t ':::,Xf'A;1tr"1:,#;';kiiT.iY{ff ri'il'Tf i:*i";;4;i;;;;;"ilpar'l-timeworkor

1104

nature and limited duration of the services actually pedormed under a

iract for occasional employment." Furthermorq "the fact that the p(

concerned worked only a very limited number of hours in a labour rclal

rfrip -uv

U" u" inai"ation thit the activities exercised are purely marginal

ancrilary'."

was a worKef.

Woexsns

(v) Natwe of Activities lrrelevant

1J1

1-24

1-25

The answer to the quastion posed as to \,vhether such person is a workrthat there is nothing in the nature of such contracts which prevents a pen

being considered a worker for the purposes of the free movement provlsic

subjict always to the activities performed.under-such contractl b:1"91a

undl"n"inJ una not marginal and ancillary. In other words-to be

tlgtJa oo' *ith utt "gencyiannot

make the person a worker if no m

fJ activities are actually performed.^ -er t.guiat n*"a t"rm c-ontracts, the ECJ.has made clear that,"th€ fact

;l*ru:."#$*,"*,.'f,":'iil:HbiH,;Ti1!f3+;[Ti*(iv) Receipt of Supplementary Funds lttelevanl

The consequence of the rejection by the ECJ in levlz of the arguments

u *oit"i iJ t"qurca to wo-rk for a minimurn number of hours and to e:mioimum amounttt is that the means used by part-time worken to

ment their income will not deprive them of thet status as workers'

was irrelevant in levit that the pa -time worker's funds were supplems

Uy itt" itt"o.. fto- the employment of a member of herfami- ly The posi

i-Jti.r. *rn. *rt.t. "public funis" are used to supplement jncome earnedpart-time worker. Thus in y'(ezp/ whele the part-time mustc te-acner sulmented bis income with benefits payable from Public lunds avallable to E

"tr-iii" gti n"iJ ttt"t providecl ihe effective a;d genuine natua of. his

*"r-"tt"Uitft"a, it *as ifelevant that his income w-as supplemented by

i"..i-i.t" ""tit

ttnds.r8 This approach reflects the decision in EertfaJ.Jni"tt r.-u'n.tutioo financed largeiy by subsidies from public funds was

by th€ ECJ to be irelevant to the question of whether the person

The uature of the activities (for example whether they are said to olfend

lic morality) is irrelevant to the question of whether,a p::19i ^-3I

*ot[o itt'ii ftot"""r does not mean that a worker could not face ex(

ifihe activities of the worker posed a genuine and sufficiently senous

"ff""ii.g "t" of the fuodamentat inteiests of society such that a M

3sCase C-357l89 Raulin v Ministet w1 Onde rs ek Wete :charym [1992] ECR

u 081

itX""lfltirot .,o*, Nkni-orasche I Bndesnitlister tut wissenschaft,Novet\bet 6'n ra.25.i7 S€e futher paras ?-13 ?, re{-

""Ci,1isisi i"ipt, saat;eu.ta't' ean Jus tie rle86lEcR lT4l'pam14ts Cae344t81 Ee ;;r v Stuotssecrctaris ,an Justitie tl98il E C R 1621' para 15'

''}i'

THE DEFTNITIoN oF WoRKER 7-24

State is able to invoke the public policy proviso 4 Thus. in /zzy'ar the fact that

the women were working as prostitutes could not affect the concluslon thal

the women were carrying out economic activit ies

k\\ MotiYes Irreletant

There is no requirement that a person who carries out economic-activities ?-26

.r.ift*.1"-i, *u;ective intention to do so in order to be defined as a

worker. In lerin,a2 the ECJ robustly reJect(riehts could be denied to a worker whoseai economic activity. The rights could beally pursue or seriously wish to pursue actthis did not mean:

made to depend upon rhe airns pursued0g for entry upon and residence.in lheed that he there Pu$ues or wlsnes rove and genuine activity as an employed

person".

Once this condition is satisfied the motives which may have prompted^ the 7-27

*"it"i i" ,*t emplo)'rnent in the Member State concerned arc "of no

".-"tt'""J -"rt tiot be taken into considelation" a This will be the case

"ven wher" it is afleged that the person has "sought abusively to create a sit-

;;i;; ilri;; bJio ctaim thi status or worker" According to tbe ECJ';;d;;;;';8;.i rishts can have no bearing" a5 The correctness of this

o.in"iol" *ut t"".otty reiffirmed by the ECJ it Akrich'M

rvi\ Students' Trainees, Apprentices and Au-pai8

Whether a Derson is a worker tt i/sl a student is answered by reference to T-28

;d;;;g;":t;;;;J eff"ciive s"rvicet of tome economic value are performed

oJ"iihi atectio" of another person for lemunention The relevant ques-ionly of the person's status as a student .Butthe activities relied on themselves constitute

))? For example is a student whosetivities as a irainee teacher to be

regarded as a worker?

ffizail/e09821E C'R 1565, para 8;casec-348/96

cdfa 0eeel E.c.R I I l .Para2l.s€eaisocl"pl" l1",.--- r o.,< rr--".. ."^-.Fm..rxJ:":7.11;i;;";';ii;;i'iii,"ii,i*,ii{'i;;rz'.rtEcR I-86ts rhecases.concemedciiil"iaiJi"i i".i"'-'ifu;s in th€ N€th€rlands who iought to benefit from the Associatron

f,*8"#btonrot "".*,ry

of State Iot the Home Departnent I Akrich' j snent of sept€mber

23, 2003, paras 55 56.

u0el

t

1Jg T:ne answe! to such quesuons is provided by the -decision

of the B'--' tt ri-nti^ii io *ni"t a British citizen who had. pas.sed ,ex11.-1t

iil"irlt ":ii'[" u"i""r.ity of Freiburg was-subsequenrlv refus"d ii-*5

i;;;;;;;J;i h.t naiionalitvt tJdo he' teacher trainins ("a ped

;;;r;;.'y service" wtrich.wou'd ht.gPiL:9 .1.:: P,l-1f:::lt;":[#;;;;At;"asium";. The essential issue was whether the

""i".t"t"" O"riig ttte period of preparatory-seryice as a hainee tea

il".t;il rffii?;"'ri"- o"!"itittt"t to be regarded as a workeril*"ni fto- non-discrimination) The Germa^n goveJnmen: lrquil;; ,;;;;;"h"it u"iiuitv *ut a matter of education policv^it#::;";;;; ""ii"iiv;

*itrtin trt" meaning of Art 2 Ec rreat/8the period ot preparatory ser"rce snould

-be regarded as the last

orofessional rriining (as opposed to work)

The ECJ robustly rejected such arg-uments The broad Cornmunlty col

;;;;;;;ti be-dehned in accordance. wirh the objectiv€ cri-teria to

7-29 WoRKERS

t""fr;;il;;tv been made During the enrire period of

service the trainee teacher:

:ilxi:t$"',illlT:Jffi i"J:"3;"l,Tlr"ffi 'Jff "!*lilTiidtl.,ff i"$"t$jt,11*t;ft H:ftti:f il,, i!,'ii!ii:i',1":Jili

^"i*i*''r"""io u. i" the oatu'e "

*TlJ:lr""T:g,ti'ir?["i3spective of the sphere in which it is

Ittf"ti"g',r*- qri"i ion "a trainee teacher who' under the.dire

ffi;iliil"f irt" t"i""r *irt"iLies is undergoing a period or

,ii; """i.ix.loi

ili,;:il; ;':;-;;;;il,t"; ro educalion and rra'Initrs oriie'n.i.ring .f tr'e

".rriures of rhe Member srate!' commutritv policv iD ed'

f * ffirtl:"t tt-rtfff u*na

nod"n wan,"^busll?t-rll -"*3111f..111'"*:'ii. idi-r*rt. srated thar'the oatur€ of rtre l€Aal relarionship betw€€t-

..pi"v*. "r,.ini, .'*rr"c p]-b^ri: Iry .,":: :: 1_Tllji"i^.1" Tl,',lljii.*',iyitHi.d$$',?11i:*nrutti'm,'rf #l':l?""!il!tffi L::

;:H*::iiifJT:Hl'x1t :il3xHi:* ::'l; ;:1i""'J:.-#"h*" lilTx[ru. *,i* :*u:n:run'll* #"";: ii:!::, :L{pS;i;:;'"#;;;;;';:h;ip'pir' i"a thus provides a service or. some

i;iliil; ;;;l ih; amiunts which he riceives mav,be reearqeg-a:

;;; f;; ih1:;;;; p,oui*a una for the duries involved iD completing

;i-p;;;;;;';;y ;"*i.e. consequentlv',.lhe three critena for the exist'

il'ir,o-fi ".iilruti.nrlip are fuLfilled" ae

',TfrtH:'"ffi';t';";;fil t"Ji'; *t'"n did Dot prevent tbe' rrom being

7-30

1-il

u10l

THE DEFrNrrroN oF WoRKER /-J5

preparation for the teaching profession during which he provides services bygiving lessons and receives rcmuneration must be regarded as a worker."

\n light of Lawrie-Blum rt is clear that the activities undedaken by persons 7-32who are students, trainees or apprentices may be "work" and that such per-sons may be regarded as "workers",

Despite the clarity of the position established almost 20 years ago, the ECJ 7-33has been required to restate it on a mrmber of occasions. For example inUSRAFF| (which concerned the charactedsation of a period of practicalvocational training undertaken in France by an Irish national studying voca-tional training at a technical college in Ireland) the ECJ stated that "the factthat a pe$on performs those services under a traineeship contract does notprevent him from being regarded as a workel if he pusues an activity whichis effective and genuine and if the essential charactedstics of the employmentrelationship are fulfilled". The ECJ made the same point ilr relation to voca-tional training h Kurz52 (albeit in the context of a Turkish AssociationAgreement case). Moreover h Gunaydins3 (another Turkish AssociationAgrcement case) the ECJ considered the position of a Turkish national beingtrained in Germany by Siemens for the specific purpose of taking up a postin a Siemens subsidiary in Turkey. The ECJ concluded that the mere fact thatthe employment had been designed solely to qualify Mr Gunaydin to workelsewhere did not deprive it of the character of employment on normalprinciples.

As regards au-pairs, their ability to be considered as workers is beyond doubt, 7-34both on normal principles and in light of Wqtson and Belman t The caseconcerned an au pair employed as a family help who looked after children inreturn for board and lodging. Advocate General Trabucchi stated that the au-pair "would undoubtedly come into one of the categodes of person uponwhom the Trcaty confers the dght to move within the Community". TheAdvocate G€neral conti[ued:

"as this would in fact be work performed for a consideration (board and lodging),she could be classified as coming within a master and servant rclationship or if thrswere not the case she would at least come under the altemative heading of provi-slon oI servlces ."

Although the ECJ did not specifically rule on the issug the ECJI decision 7-35rvas predicated on the au-pair falling within the scope of the Treaty. The oDlybasis on which an au-pair could not be considered a worker would be if theau-pair was not genuine and effective in the activities undertaken. Certainlythere is nothing intrinsic in the nature of the relationship, the activities car-ried out or the form of remuneration which could negate the possibility of anau-pai's being a worker.

5' Czse C-27 191 Unian de Recouvrement des Cot isations de Secu ft Sociale et d A ocationtFaniltales de Ia Sawie (URSSAF) | Hostelle e Le Mano,iSIRL 09911E C.R. I 553152 Case C-lSSl00 Kutz n Land Baden- Wiit t tembets I2002l E.C R. I 1059l, para.34.51C^s.C-)6196 Gtnaydih I Frcirtaat Baymll9911E.C R. l-5179-Ja Case 118/75 Wotson and Belna n lt916l E.C.R. 1185.15 Case 118/75 watson and Belnann U9'l6l E C.R. I185, per A G Trabucahi, p1202

l l l l l

Wonrrts

(\ii) Rehabilitative EmPloYment

'1-i6

7-38

7 -39

1--36

activity if:

life"

rctivities in question are charactenf,g' an apprenticeship' \ lork as an a|F

' such iitivities may be a worker if

vities of some economic value undl

munetation Although such ProPc

mighl. be considered som€what tnte' it is not always reflected by the

of ;ome Member States'o

,#Txil:J:1T':"f l1xi1'.14:i!,til1lii:l:i.iirf,iitT*#xi;"',',*"'lJ';"1,;*";xJili{*1:,:*i';$:ll::t*m""JT"h'i'11:

A conceptual difficulty with such r(

efit to ttre worker) is that it has nouMr Bettray's activities (namely wne

deprive them of being economlc aciiJ.-it""*

"r *.rirployment relarionsbip are otherwise met'

The ECJ's focus on the benefit toconclude that the work is not genu

have promPted a Pelson to utro-enawhether what is done ls wotK. Ivror

an emploYed Person"'53

;*:n2;U;T""1-,'^12ffi ,y.',2y,1i1121"1;tllu',i';E##i\'trli?;,ilT'il;i:;:;;;:i;;;;;i"ig1te'8o1ecn:tztparutc

[112]

ln fact Betlruy is explicable because activities aimed "metely as a means olrehabilitation or reintegration" of the person perforrning them which are ofno value to the employer will not be able to be characterised as work simplybecause the person undertakes the task under the dircction of someone €lseand is remunirated. Although therc may be tome economic value in the activ-ities undertaken, from the perspective of the employer they will likely be atbest marginal and ancillary Rather the relationship is more akin to an act ofbenevolenc€ on the part of the employer'

Bertrayhas notbeen applied to preclude any activity of a rehabilitative naturebeine ionsidered as *bik. In Eirdente the ECJ considered the position of aTurkish national who worked as a semi-skilled odd-job man under a spon-sored social assistance scheme which provided temporary work opportunitiesto "improve the integration into working life of the pe$on seeking^assis-tance"So The fact thaiMr Birden performed "as a subordinate, services for lusemployer in return for which he receives rernuneration, thus satisfying theessintial criteria of the employment relationship"6l and that his wolk was notmarginal and ancillary62 were not affectedby Betttay which theECl irt Birdendisti-nguished lthis deipite the rehabilitative nature of the employmeot)'

The issue of rehabilitative employment was considered by the ECJ again inTroioni6! ir whiah a Frcnch national carried out chores for some 30 hours aweek in a Salvation Army hostel in Brussels where he lived as part of a reha-bilitation project. In retum the hostel provided him with food, Iodgings andan allowance-of €25 per week. In his opinion Advocate General Geelhoed6ainterprets the decisiot in Belrray as based on the ECJ's view that tbe aim ofthe aitivities was solely reintegration and not the carrying out of any realeconomic activiry Ths Advocate GeneGl considered Mr Trojani's relation-ship with the Saivation Army to be one of care rather than work wherein asenlce was being provided to Mr Trojani rather than to the Salvation Army'Thus his activity had no (or virtually no) econornic value.

It would be curious if the national court were to charactedse 30 hours' workdoing chores as marginal and ancillary from the perspective of the Salvationerrni fne pcf in lti decision referred to BettrLy as being partiaular.on itsfactsi5 The ECJ confirmed that the nature of remuneratioD received by MrTroiani was not a bar to him being considered a worker. The ECJ left it to thenational court to determine if in the circumstances the nature of his activitieswere real and genuine. Part of the national court's enquiryrould.rcquirc it toascertain "wh6ther the services actually performed by Mr Trojani are capable

THE DEFn'rrIoN oF WoRKER 143

te Caj* C"llg'l Biden I StadtgemehdE Drcmen ll998l E.c.R I-7447 The case aros€ in the con-

text of fte Turkish Association Agreement.d The issue was whetler he was "tdury registered member of the labour force" within the mean-

ins of An.6{ I I of D€c. I /80 of the E Ec-Turkey A ssocial ioD Council

'l tase C- l/97 sridfl , Stad4cmeinde Brcnen ltge8l EC R I-7447 Para 26.

" ieai i-iigt eia"' " s*&;eneinde Brcne+isssli c R I-7447. p;a 2? He worked tor l8 5

hours a week receiving net pay of DM 2155.70Z;cii cisaia rrc;iant t'Cenre pbtic d'aide socialle de Brwettes ( CPAS) ll.ot v€t d€cided'd A.c. Ceelhoed\ Opilion. February 19. 2004.

" C"* ciNnz r-i*t "

;entu pubiic d aide sociale de Btuxe es (CPAs)'SePtember 7' 2004,

Dara.l9.

tr131

140

741

7-42

of being regarded as forming part of the normal labour market For

pot.. uJ.o,int .uy te taken bi the status and practices oflhe-h^ostel'

iJ'Jiil;;;i;i reintesratron programme, and the nature andp.tionrrun". of the services".66 lt is certainly clear th" lh:

E-91i"*"iJift" fo"t tttut uctivities are of a rehabilitarive nature as being sooow.fich ln itsetf witt necessarily prevent them being elfective and genuiDc

143 Worxlns

(f) Work Seekers

(i) GenerallY

other Member States)

(ll) The Decision in Antonissen6l

ln ,4rloni.rjefl, the ECJ exPressly rejected the argument that Art 39 EC

limited rhe righr to free movement solelv to those acceptlng otlers ol e

-"iil.i""iit- t"0.. such interpretatron could not be upheld since it

.i"i"J. ift. tigftt "f "

national ofa Member Slate to move freely and

745

ini-frJiiiioti ot ottter Member States in order to seek emplolmeDtdii^t" uv i"r.L"* to freedom of movement for workers as one of t

a"ri""r l,i irt. -i"t"munity

and the consequential need for a broad i

tation to be given to such freedom.o'.As made clear ln Letl4"-

^o"...n, rigf,ts may be enjoyed not only by those actually.Pursue

ui-.rlroy.a"p.ttoni. out-itio tho-se who 'seriously wish" to^pu

;Mii;.f AiJit iovelt the ECJ refers to the right to "lookpursue such activities

;E^* castnz rr"j^i , RnIrc pubti. d aide social? de B xelles ICPAS\'

oara.24.ii Cui i-zgzng rn" Ao "-

1) Imtn watio Appeat.Tth unat.Ex p An tonssen Lrgg^rlE*6i'"i c-1ints6 in"b,"en v Innigration ippeat

'rrbunal Ex P Antonissenlteetl

pam.l Li"?.* srler Lein

' Staatssecre'zrut ran Jarji/k [19821E C R 1035

.a;;t;tli I*";" "it'atsv.rctais

Mn rustitieile82lE CR .lol5,.pafa 20,'ii,.Z ;;;;;;;;;;";;;; Roi v Rore, tts76tE.cp.. 4e7, in which the.Ecr descrih.

""i"r'trti Lrl.ry

"t .ther Member states and 10 lesjde there "f:r !h: -e]'-re-:::: ''i"' ji;:;d:;i;;i;il; ileiigbrin p"ni'"t.' ro took ror or pu'sue an occuParios

as employed or sell employed persons'(para Sl)

[114]

THE DEFINITION OF WORKER 7-50

(iir) Scope of Right for llork Seekers

I\ Antonissen, the domestic court had held that Mr Antonissen' who had 7-46

i"* t""t.g !-pt"vment in the United Kingdom for more than six months'

;;;d ;; i;;e"' b. ireated as a comm'nitv worker''2

The UK Government and the Commission had argued that persons could 7-47

onlv be workseekers for three months. The ECJ rejected stnct temporal llmr-

tations. The scope of the right of free movement tot wotk seeKers was

expressed by the ECJ in these tems:

_lt is not conlrary to rhe provisions of Community law governing the free mo'r'e-

*""i "i*"ii.iit

rlrt ,ne legislation of a Member Srite to provide that a national of

u".ll"i U"-t", stut" wh; entered the frrst State in order to seek €mploymen-t may

t" t"" i i "J, l r i *" , r t . lerr i toryof thatState(subject toappeal) i lhehasnol foundooolov-entLhereaftersi,{monthsunlessthepersonconcernedprovldesevloence;i#;J;;;;il;;1; seek emplovment and ihat he has senuine chances of beins

engaged".?l

Antonissen thrs iderLtifies the scope of the right of freedom.of movement fot 7-48

work seekers. Member States may prescribe a period ol six months wlmrn

*fri"ft t.tt should be obtained, alihough not to be enforced if atter such

iil;;ii".n;'lt -pr-ia"a

tnui the peison concemed,continues to seek

emplo).rnent and has genuine chances ol belng engageo '-

(8) PteYious EmqloYment

li) GenerallY

The position considered above of work seekers who have never worked for 7-49

who; the content of the right is about a

Dosilion of persons who have worked pt

i, u s.o.t"l rule (as stated by tbe ECJretatio-nship has ended, the person concwotker".

However,theremaybevariousreasonswhYapersonceasesworking(includ-7_50in! ,edunclancy, ritirement, retraining or- the wish to embark on full-time

l '?C^seC-2sZtBgtheQu"ettvlnnis 'at ionApp?atTt ibunalExpAntonissenl lggl lECRlJ45'

di.i in1lJ.-ie;"i;"'npp*r iatu".r 6*.,a ,L'"P1'j^11-'f :'..'"'::T ::,l1?i11":l ll;Biifti'ift "H:;:i:;

;#l;e;e; R"r'iiic tosi uaopt"a pu.'uaor^ro rhe rm--'sratioo

**nmi$i:;"a1,::*:[: ;::Tfi :Jil"trl'nf.'ff l','"'l':T:l :T,Hx;';i':fiother occuDation .i;"ii"ZZ:{6jii n" a*en t, Innisration Appeat ribmat Ex p Antonissenlreell E c R I-745'

i"ii1t*^" .""u,."u o, fte Ecr in case c-lPprrioa'. t200412 C M L R 8.paral? Howev(remained unemPtoyed for several veats and "lemDlovmeDt": Cas€ C-l7ll91 Tsiot@t v Landes15 iase C-85196 Martinez Sala I Frcisttt Balen

[115]

1-50

\Ji,

WoRKERS

studies). Some such situations are dealt with by expressly secondtion giving rights of residence in specific _circumstances. ^Such

rjfrom-e.t-f e1i1a; EC Treaty which identiies the scope of the ridom of movement as entailing the dght to remain in a Memberhaving been employed in that State" and are considered in Chapter

It is imDortant to identify the circumstances in which lhe status ofable (i; the words of the ECJ in Sa1a.; to "produce certain effectsrelationship has ended". Are thos€ circumstances limited to tbcinstances i; the secondary legislation where rights (principally of n

7-51

1-52

7-53

7-54

are expressly given on cessation of employment (for example on rclior are such circumstances wider?

The answer to this question is undoubtedly that the secondarydoes zot reprcsent the full extent of such circumstances. In a numlthe ECJ has acknowledged that even although no lotrger employe{mav nelertheless continue to be considered workers. By the samenoialways easy to identify precisely wiy the ECJ has reached its .'

although in broad terms such situations have largely arisen whecessati6n of employrnent, the person conc€rned can be regardedretained the objective status of worker

(ii) Status of Worket Not Lost Immediately

The obiective status of worker is obviously ..ollost immediately on

of employment. Just as Community law recognises the riglt of. t

have niver worked to be treated as workers whilst they seek emwhere Dersons have worked previously they will always have aoeriod'within which to seek and obtain furtber employment byihe orinciples discussed above.?6 For such persons where nationalsions sive'benefirs to own Dationals, Community law will requireother -Member States to be teated in the same way, even althoughenolorrynent relationship. However. in this cootext the assessment ofaut'horities will determine wbether the pe$on can be said to retain dtive status of worker. It may be for instaDce that after a certain Peria Member State does not characterise a person who has ceasedactivitv as a worker It would take extreme circumstances for Comrto chaiacterise the national of anothq Member State as retainingtive status of worker where national law no longer did, even tnown nationals.

Al example of a case in which someone retained the objectiveworker wLere the emplolment relationship had recently ende-d is

Th" "uta "oo""-"d

an igricultural workei whose contract of erv/as terminated as a result of the setting aside of land belonging toemolover The ECJ held Mr Meints was entitled to a prynetrt

1:,Y#Il,#;:::f' , Ministe, wn r.andbou ,. Natuuneheer en trsserii tteeltE

l l161

asricultural workers uhose contract of employment was terminated becausepivment depended on the prior existence of his recently ended employment

ielationshin which was thus intrinsically linked to his objective status as

worker.?8

(nI) Those Previously Employed and Capable ol Taking Further Employment

e ECJ interPreted the concept of 7-55case involving a woman who had

rtected worker was not exclusivelyrded logically "to the worker who,ther". Mrs Hoekstra was thus Pro-though no longer in employm€nt

.he possibility to participate rn arevious possession of the status ofIal status.

(iv) Available fot Wotk and Ptepared to Take It Up

The national legislation of some Member States would appear 1o treat own ?-56

nationals as retiining the objectiYe ""* ;,:J":,.":"i: lll:iFlrtHT$J',1i,

^trci known as the "minimex" ls

parcd to accept work (unless Pre-

'r compelling social reasonssr). In

) principle that migrant workers are

entitled to all benefits:

' 'senerallv sranled to national \ orkers primarily because of Lheir objeclive statusai*orkeis-or bl virlue of the mere fact of their residence on the national terfttoryand whose extension to wolkers who are nationals of othermember states thereforer""-.li[av i. f""itit"te the mobility of such workers within the community"

'fhe facts ol Hoeckx are striking because the Dutch national had been unem- 7-57

ofouaO io. torna tuo years and-in receipt of unemployment benefirs in both

France and Betgiurn before the minimex was refused However' f/oecki does

".i ir"fp i" tA"tittfying why a person unemployed.for such a period retained

the status of workir since the matter was not in dispute

fu\ Workers Undertaktug Retfttining

A further example of a situation in which the status of worker is retained 7-58

urlt"r *tt"t" u o^"..on who has ceased employment undertakes some form of

THE DEFrNlrroN oF WoRKER 7-58

7t Czse C-511g6 Mehts v Minirtet van la'ldbouw, Natunbehee' en Vissefii ll99n E C R I 6689

Pf&l! tsrct n**n^ " rne N?lhettands lte(Al E.c.R. ti t.

- i,rim iii iii""'i"e o co'ncir nee r concermlg ::.,ij.trI .iF,i,"T,ii1!ilg1L'?ri9:31C^se lD)84 Sc vner ond Cole v Centrc pub'para.20.iii"* Z+S/83 Hoeckx I openbaar Ce t.um voot Maatschappelijk IT elzijn' Kalmthout Lt985l

E.C R 973, Dara 20.;i""" tzaii'sit*. ,,a Cote t' Cenlrc Pubtic d ai'te sociate de chastre lr985l E C R 1027'

p tz.24.

i

u l7l

rr

7-58 Wotxrns

professional or vocational training. In Lair,sa the ECJ stated thatwho have exercised their freedom of movement are entitled in theas national workers to all the advantases available to suchimproving their_professional qualifications and promoringadvancement. " This will the position even although nb longer inprovided a relationship

-existed between the prwious ociupationatand the cou^rse of study.85 Such a person will be regarded aj having

7-59

7-6,0

Although a person who has ceased to work may retain the status offor the purpose of receipt of a particular benefit rslated to the past rment, such status may not be retained for all other oumoses. InBelgian national who had been employed as a frontiei worker in t

the status of a worker86

(yi) Objective Statlts of Worker Must Be Linked to preyious

until l98l when he was a victim of an accident at work was in recd

for workers on the bi h of a child by the legislation of theresponsible for paying his pension.

(vii) SummaryAs the cases considered demonstrate despite cessation of an enrelationship. Community law provides for the retention of the obitus of worker. The precise consequence of retention of the statuiofmay depend on the national law provisions of a Member State. At

(h) Frcntier Workers

7-41 Frontier workers are defined as those who reside in one Member Sworking in the teritory of another Member State. The various Droyi

of most situations considered is the proposition that it would be dis(tory and contrary to Community law to treat own nationals and freedifferently in terms of benefits and advantages given by national lawwho have been in employment. This is discussed in detail in Chapter

u Case 39186 l^1ir y uhiveqitdt Hanhovet llg88l E.C.R. 3161. See also Cas€ C-19?/16Secrctary of State Jot ScotlMd ll988l E.C.R. 3205; Case C-357l89 Rautin ,t |,hOnderwis en Wetercchapper [1992] E.C.R.I-1027; C^seC-3t90 Betnini.t Nethe andsEducation at'd Sclence ll992l E.C.R. I-1027.

3r An.l(b) of Reg. 140811, AIt.8 of Dir. 68/30, Afl.2 of Res. l25ll70, An.2 of Dir-

ulsl

TIIE DEFTN.ITIoN oF WoRKER 1-43

similarly define the necessary frequency of return from the sta[e of employ-m€nt to the state of residence as being "as a rule, each day or at least once aweek". Il Bergemdnn,8e the ECJ refers to those who "return regularly andfrequently, in other words 'daily or at least once a week' to thet state ofresidence [as those who] may be regarded as having the status of frontierworkers". This did not include a worker who "after having transferred his res-idence to a Member State other than the State of €mployment, no longerreturns to that State".

(i) The Public Sertice Exception

(1) Generally

By Art.39(4) EC Treaty "the provisions of this article shal1 not apply to 7-62emplo).ment in the public service". The exception protects the legitimateinterest of Member States in reserving to their own nationals a range of postsconnected with the exercise of powers conferred by public law and with theprotection of general interests. However the scope of the exception is not sowide as to exclude a// public service employment. Moreover, where thoseexercising free movement rights are admitted to lhe public service the prori-sion cannot be used to justify djscriminatory treatment (for example asregards remuneration or other conditions of employrnenteo). As stated by theECI rt Sotgiuet the very fact that they have been admitted shows that theinterests which justify the exceptions to the principle of non-discriminationpermitted by Art.39(4) "arc not at issue".

(ri) Scope of the Exception

The impodance of the principle that Community concepts in this f,eld must 7 63not be interpreted by reference to national conc€pts has aheady been under-1ined. This is particularly important in construing the scope of this exception.As stated by the ECJ ir Commission v Belgium'.e2

"(ecourse to provisions of the domestic legal systems to restrict the scope of theprovisions of community law would haye the effect of impairing the unity and em-cacy of that law and consequently cannot be accepted- That rule, which is funda-mental to the existenc€ of the community, must also apply in determining the scopeand bounds of Article 48(4) of the Treaty [now Afi 39(4)] . . . It is nec€ssary toensure that the effectileness and scope of the provisions of the Treaty on freedomof movement of workers and equality of treatment of nationals of all MemberStates shall not be restricted by interprctations of the concept of public servicewhich are based on domestic law alone and which would obstruct the aPplicationof commuDity rules".

3e Case 236181 Beryemann t, Bur'desdwtalt fiit Arbeil [1988] E C.R. 5125s See Case 225185 Connission I ltaly[19871E.CR 2625etCase15?-173 Sotstu v Deutsche Bu"despostll914lECR I53e! Case r49l'79 Conntston v Belsitn No. t U9801 E CR 3881, para 19 S€e similarty Case30t184 Connission v Fta"ce [986] E C R. 1725, wh€re the ECJ poirted out thai access to cer-tain posrs may not be limted by reason of the fact that in a given M€mber State personsappointed to such posts have the siatus of ciul servants since this would eDable the Membe(States to determine at will the posts covered by the exception

l i l

l l:

' l l

I

iiil i l

-

l l lel

,t

't44

7-45

7-46

As to the actual posts removed from the ambit of Art l9l l) EC Tre'ntl

i""i".iitti"^ v Belgium defined them as those^which invol"e^d

l;'r*#st$r,*i*:i+;"f*r;:iif#r'#linry;*:$;i;:tlH'm *uU:'": -x ;'s:'i':;::H''li"$

1-44 WoRKERS

F"*axi"" "i

tft" uond of nationality" e3

bond of nationalitY.

i,ft ff :."3Ji:J#:1";ifi iTf "t"iffi *?t{:lq::.?i4,T,"li:i;"i;#;;;;I;;il;i*a""ot^r i'incipie *'at workers in the cor

;ri,iil;;;; .ril;- o]

-ou.^.ni *d;91 :S:: 91:T::1"*.:,;

:::;.1:tr-;""liri6i:';w:ii:'{FqI'+"Tf',+Ta#J$hH[T:'""#*:,:',1:::i:::*:"1!5::,;il'.l:!:"".ff ]:fiil illi;;;;; ;iactivities which contribute towards- the satesua

lil;;;;ii"i;;'i;oiit'istu,.:'"11:t'Jllgll",i:'1""i'::';:Hff *"t1i1*:ii;:tiiil*n;;;:fi lr'fl '#i'.diti?:I;i"tft#fii;;i J" "i"""'tv

l' "lt "'plovment

in the public

]"..f:'13'#,i;:?1?l'ffi ;;.';ir'*; (;A;sraPh 23) thar h had iasumcieor-'

fr." i..iii. :" ""m.i"ntrv

accurate.appraisar i" ::,ll*:I.11-l1;;llll5l,ifl"T'ff5T "i#ff"plf

iii" iJ''aJi'irr,,; tre rigtt or the foregoirg.consideraii'ii.

*pJl,i *ir+-a" oit- cone- wirhin.the coocept o[ public aeNice *rtho' tle

Wrh|'ffiH:Wli:i,*,rnr'1fl ;',Lif,,li3a'"'

i?,'l::fl ,il:'i:;1,:[:13'' lT.T::l;l lff [g:'l!'l"',::::1"',illi'"fi ji:' !liT:'J:lf #i'li''n'#:l;;:il'fi"ffi :.','.H:':!ff i,'i"'l!llq,,..ru m{[:1ru#ij;tl ;:,pnff, ?rfx'i'$lfit+

idi::'ii$ci;'h-;il;.tn"1;gtiSgl$?fl:5iflJlhfil,'.7T:":r1*il1'11,:i..............#ll"J,;'iiiT#;iill,t""J;iii;i'ffi;,f:",_-q

, oarpenteis and electricians)' it is d

: controller or night-watcbman co

rhich involved any special relatiotand duties forming the foundation

[120]

\ .1 . r ,1. . . . ' ,j - l , . r l r ' " ' l l l i

CHAPTER 8

ESTABLISHMENT AND SERVICES

This chapter exqmines the Treaty prorisions and s bsidiary legislltion on thefreedom of establishment and the freedom to prol)ide and receile senices.

l. TREATY PRovrstoNs ANo SussrorARv LecIsLATIoN oN ESTABLISHMENT

(a) General Tteaty Aims and Relationship w,ilh Prcrisions on Workets

The EC Treaty contains a specific provision on the freedom of establish- 8-{1ment in Art.43 consistent with the general aim of promoting free movementof persons. The provision ensures that Member States accord to the nation-als of other Member States the same treatment, as rcgards establishment, asit accords to its orryn nationals:

Article 43 EC TreatY

Within the framework of the provisions set out below, restrictions on the freedomof establishment of nationals of a Membet State irl the territory of anotherMehber State shall be prohibited. Such prohibition shall also apply to rcstictionson the setting-up of agencies, branches or subsidiaries by nationals of any M€mberState established in the territory of any Member State.

Freedom of establishment shall include the right to take up and pursue activities asself-employed peffons and to setup and rnanage undertakings, in particular compa'nies or firms evithin the meadng of the second paragaph of Article 48, under theconditions laid down for its own nationals by the law of the country where suchestablisbment is ef€cted, subject to the provisions of the chapter relating to capital

Article 39 EC Treaty rclating to workers and Art.43 EC Treaty are based on &{}2the same principles that the restrictions on the freedom of moYement ofpersons should be abolished. In this context entry into and residence in thetoritory of Member States are covered by Community law

The right of establishment contained in Art.43 EC Treaty applies to all nat- 843ural persons and to companies. The first paragraph of Art.43 EC Treaty pro-hibits restrictions on the freedom of establishment by nationals of a MemberState in the teritory of another Member State, including the setting up ofagencies, branches or subsidiaries The second paragraph of Art.43 ECTreaty provides the direct dght of establisbment which includes the right totake up and pursue activities as a self-employed person as well as the dght toset up and manage undertakings.

(tt) Se c ondary Le gis lat ion

Directive 731148 implements the right of establishment for nationals of &44the Memb€r States.r It mirors Regulation 1612i 68 (implem€nting the free

t 11913j O.t. Lr',ty t4.

u2u

r -8-{4 Esft sI,rsnMsllr A.r'{o SlRvrcgs

2. CoNcEsr oF ESTABLISHMENT

(a) Definition of Economic Actirity

fr :::?:ili'j??:l,fl J:ifJJLi"i$+'lt"iii$"dti:it+i::l*:ififf'L'#:,'il.?';i#o;;;ffi; lii"iijtrts or residence ror the benenciilir.-"i*-ill +a

"* discussed in Chapter l2'

8-{5

H6

8-{7

fi : l;li:f":f I: lBfiil l"l'Jll',ll; i1;:$,x1iiiil+1i!qi!i"lj"{ffiJ?':Xli::"J;il;'i;"'i"'ia 'r-'! 'J''"e "p and managing orAccording to the ECJ:

;1i.".':[:i]\:l ;'l*[HilJ"illi lilliilfi ilri:]Jj::ii+ sHf;il,:*'ffi['ll'1i*1]i$$-m':'."ru *

:il'f Ti:'il?lniit"!:'il"{':'uil".!"i".=,'*Ti'*jii.*f; i:$Hnul#lg'5jll.',':.x3'il'i:Jl$::i{$i'i:}}i:k:ttfnriif::ruk' ".sg:

jll g;*t,m'*:lil'"11#'"1?'];::temuneration.5

3sl1x:1:#1"'l:sl?3 it':TJ#3. il 4i::T': y::i:Ii,fl-{lrJhi:"ffi dil;l*i:i**r''"'*'J,"il1i:ih'13*$Tfr "+fl.r#[;i?#:i"'.","''*;I;g:txi:$J];Fii,.:H;"ffi tilxl#*t","'#l{i:1pq*:;1;g'"1,';'.,;gi'5il11::.1":.Hi:ii:i,:l "r;'' ffi ;;iikt to?.yi' .::*:l*::;,':'."*:lXlliFJfii'fr1"'1,',i'l:,"'i iv ir" i'"'r*i"'v i""retum ror consideration wi

-J"iiigli i"titt rring material goods'"3

is". oar.s 8-29 to 8 +8 belo* - . . ar recipi€nr of se*ices are nor provid€d1 See oaras 8-57 to 8-61 below It ls nolaDre rn

I'dllltil"li;r. Gebhad v consistio de 'o'dine desli Av,,ocati e P clratoi di Mta's

i&*!i:il"$,'#,)';;:r;n'i:,"::"!:,::n?Y:;i,21;l'f fliu""'o"""^i{*fitxW ;,::ffi:::::::{i"#:i;::,,tiil13r t,*'?;x?::'.il

11221

:1,'

CoNCEPT oF ESTABLISHMENI 8-14

(b) Cro s s- bo rde r C harac ter

In order to provide a Community law nexus to a situation, the activity can- g_{gnot be purely intemal, but must have a cross-border character. If there is noelement of the activity which goes beyond a purely national setting, theprovisions of Community law will not be applicable.e

Intemal situations are discussed iI] Chapter 5 above. The t\ryo exceptions to H)9the purely intemal ru1e, namely those returning to their own Member Stateand those with dual nationality, apply equally to establishmeDt cases as theydo elsewhere.

In respect of retuming nationals, the ECJ has confirmed that even where a g_10national of a particular Member State acquires a vocational qualification inanother Member State which is recognised under Community law, that per-son is to be treated in accordance with the principles of Community law onrcturn to the state of origin 10

The EC Treaty provisions relating to freedom of establishment arc directed 8-11mainly at ensuring that nationals and companies of other Member States arenot treated diflerently compared with own nationals and own companies iDthe host Member State. However the provision are oot limited to tieatmentin a host Member State. Those provisions have also been interpreted as pro-hibiting the Member State of origin from hindering the establishment inanother Member State of one of its nationals or a comDany incoruoratedunder its legislation.rr

(c) Stable and Continuous Naturc of Ecotlomic Activity

According to the case law of the ECI the concept of establishment within the 8-12meaning of the EC Treaty requires the pursuit of aD economic activirythrough a fxed establishment in another Member State without a foreseeablelimit as to its duration.l2

This is to be contrasted with the provision of services, which does not include 8-13an activity caried out oD a permanent basis or, in any event, without a fore-seeable limit to its duration.r3 It is thus the stable and continuous basrson which the services are carried out in the other Member State whichdistiDguishes a situation of establishment from one concemed with the mereprovision of services.

However even where the activities are apparently temporary in nature, &-14whether or not they constitute establishment has to be determined in the lightnot only of the duration of the provision of the service, but also of its

'CasE C-54188 Oinmal Prcceedinss Asainst Eleonol.a,Vezo t19901 E C.R. I-3 537, paft 11.to Case C-19192 Ktsus,t Land Btdea-Wurttembery U 9931 E C R. I-1563, para.15.l' Case C-415/93 Union Ro:'"l Belse des Societe.' de Faotba Astockdon ASBL v BosnanllggslE C.R. 4353, para 97.lr Case C-22U89 The Queen )t Secretary oJ State Jor Ta"iport Ex p Factottane Ltd 11991\E.CR I-3905. oara.20t3 Case 196181 Sreynann t Staakseoetais ,nn Justirje [988] E.C.R. 6159, para 16.

11231

I

resularitv and continuity. tf carried out on a frequent basis or over rca-nt o..iod ol- time, thi provider of the services rnay need to ohdformbf infrastructurg suih as office space. in tbe host Member StaEito carry out these services.ra Obtaining permanent.infrasfuctur€thus regarded as establishment even if the provision of servi

8-14 ESTABLISHMENT AN'D SERYICES

contlnuous.

3. ESTATLTSHMENT oF PERSoNS

anothei Member State.r6 Furthermore there is nothing to prelJEd

E-15 Establishment is granted to natual persons who are nationals ofStates as well as companies. The defilition of an EU national for tbof beuefitine from free movement dghts is discussed rD chaptESubject to tde exceptions and conditioos laid down.in Art.43 EC ITreitv provisions iermit all types ol sell-employed activity to bEand ouisued on thi territory of any other Member State

8-16 Self-emplol'rneut is defined iu Community law as eristingir'herEactivitiei are carried out by a person outside any relationship oftion with resard to the conditions of work or remuneration a8do*o p".rooull t"tponsibility".l5

8-17 According to the case law of the ECJ therc is nothing prevent aoa compaiy in one Member State working in a self-enployed

being established as self-employed in two diflerent Memberwouid be the case for example where a member of a professionsecond professional base in another Member State lT

8-18 Freedom of establishment is to be exercised under the conditiorfor a host Member State's own nationals by the law of that MdIf ori,n nationals do not hav€ to have any specific qualifiaatioor icarry out a particular activity !n a Member- State, then natiodMenber Staies cannot be required ro comply with any additiregulations in order to carry out these same activitle s l'

Tn: I

ihi ouilifications obtained in other Member States is somewhd.ancl iotentially stands in the way of thrc freedom of establishm- €dAs discussed in Chapter 12 below, it is for this reasoo that thercCommuuity law rules relating to the mutual recognition of quafldiplomas in a wide range of professional areas'

ta Case C-55194 Gebha t) Consisol de ' Odine desli Ad'tout AE Procwatoi '

3*; Hriti!T'7; " hatssecrtais w,' rltstitiel2q)11 E.c R r-s6r5' pa'rr-

"ii"iiioAgt n"h,"th I Ministet of Justicelr992l E CR I-3351'para25'

tl Case C-55194 Gebhatd I Cottsigol de Mme degli Advo'at AE Prodrutdl

E3*L"]::,;ft"iik1, co,Bisot de* aidine desti advocat aE p,ocu,atsi

E3*L1]fi,;fti;12" v conrisot de ' o ine desti Adwcat AE P,odna'diE.C.R. I4165, para.34

lr24l

As described in Chapter 7, work seekers in another Member State have free 8 19

;;;#;;;tsh,'-;idflow from Art.lg EC Treatv such that their rish.tof

iesiden"e m.tit b" recognised for a reasonable period of time' ancl at least,srx

;;;th" fiil;;it"iple"must applv similarlv to those who wish to establish

iii.r"r"* rti i.,jir;r MembeiState ancl require a period of time in order to

set themselves uP

4. ESTABLISHMENT oF CovPLNrss

setbing up of either undertakings or agenc

(a) Primary Establishment-H ead OJfice

A company's "primar) establishment" is normally its head ofice where cen- 8-21

tralised decislons are made ano wnere key management functions occut ln

;;;;;il;;;";d"m of establishment'a cotpattv mav wish to move its

primary establishment to another Member State'

If a company is to make its-prim^ary establishment in another Member State 8-22

ihis wootd inuolue the transfer of central fft1?:?::::,"lh:Tffi::ff"'.Hnd control of a comPanY to anothernent of the company in that secondherc the comPany locates its centreer State since this would constrtute

(b) Secondary Establishment-Branches' Subsidiaries and Agencies

As the ECJ has held on a number of occnot confined to the right to create i

Communitv but includes the freedom to

observance of professional rules of conr*irrtin ttt. terriiory of the Member States 22

Thefact thatther ightofestabl ishmentforacompany- iscapableofbeing8_24

"'il*i'"o'iy ii.'.iii"'e w tl1e."X"t,,l'l",ii'; ;tTg1;."l?it'Jf##iby the express provtslon to tnat erl

Estlgltsttvtln or CouPartrs tu

ffi de Be&iil-s'wenisitls wot Ba,k [986] E c B'

cii C-sztss t ."ti , Kemntet lr99f.)E CR r-'to1 '

::tA :,;rilW*rr';; r:"':;n':::*'nl li nb"a re"enue rx p oai tv u airy g * tZI' fti';j' 6:ff iM,,k,1 ll ;,f ;: ;i', "

pa, i s v n o p p rt ss 4l E c R 2e7,, see a,,o

[12s], , , " I t " '

I

a_

8-25

v26

8-28

8-24 ESTABLISHMENT AN-D SERVICES

also exercise its right of establishment by taking part in the ia company in another Member State 23

(a\ Nationality of the CompanY

Member State.

(d) Nationality of the EmploYees

The nationality of a company is determined by the law of theMemb€r States. This is noti matter govemed by Comrnunity law I

oresent time does not include rules relating to the incorpontion and

ing of companies. Such national laws var) grcatly as. regards the.

Liorporation. The EC Treary takes a Rexible approach by treatingrors which could be said to connect a company to tbat state asCommunity law draws no distinction between for example the regrstecentral administration and principle place of business of a company'ibility is necessary to take account of the vadety in national legislati

However there are problems which are yet to be resolved regardingferences in national legislation concerning the factoG connectlng a oto a Darticular Member State Such differences can result in d

Wheri for example incorporation rules in one Member State treat

tion of a company's head office as deterrninative of incorporatton,oanv mie.ht not;ble to establish itself in another Member State

-ouion ltt head office, if incorporation laws are different in

The nationality of the employees is irrelevant to the question.of

lishment of a legal person, whether it be a cornpany or a subsidiary

if the employeis aie third country nationals and tha company Fitiatr"fer tdosi e-ployees on a p€Enanent basis to a branch or subsi'another Member Stitq such transfer will be governed by national iiioo la*s us regards those third country nationals. As described bcompany establ'ished in one Member State will have the right ro 'posr-

couitry national employee oo a temporary basis-in ordeJ to pedorm Ii;;. fu. Posted Worliers Directiv- regulates the legal frameworkrransfers as regards working conditions and applicable employmeDtii* to ruLg"ia tle rights of those employees2o

'13 C^se 81187 The Queen I EM T.easurv and Connissiohets of Inland Re1)enue' Ex p

and Gene,al Ttuit plc19881E.C.R 5483. para l?;?^*itrii tnib,i", "

ilM heawv and connissione' of htakd RevPnue E P'and Generul T'1lst plc Lr988l E.C R 5483, para 2l,5 At Daras 8,51 to 8-57

- iii.'so/iioi ,I'" e"-peao Paruament and of th€ coutrcil of Deceo^ber 16'.1996

tlipo",l'rJ*.it"^ ii the framework of th€ provisioo of serwces [1994 O J L IS/l '

t l26l

TREATY PRovIsIoNs AND SuBsIDIARY LEGIsLATIoN 8-30

5. TREATY PRovISIoNS AND SUB5IDIARY LEG$LArIoN oN SERvlcE

Pnovtstol ,qNo RIcTPIENTS oF SERvtcES

Article 49 EC Treaty

rt out below, restnctions on freedom to

all be prohibited in respect of nationalsstab;f fte Communily other than that

tended.

lhe Council may. acring by a qu-alified mdjority on a proposal from the

commis' ion. extend the provrslons ol Lne Chapter (o nalionals of a (hird country

i io fr* ia. ,"rui.". un6 *|to 61s q51n!l ished within the Communrty

Article 50 EC TreatY

Services shall be considered to be "s€rvices" within the meaning of th".T:-11ry1"I:

i i .V ,* n.i*uiry p-tided for remunerarion in so far as thev are not governeo ot

the Drovisions relatmg lo treeoom oI mo!ement for goods' capiral and persons'

"seivices" shall in particular include:

he chapter relat ing to the r ighl of e5trb-

nay, inbrder to do so, temporarily pursue

is provided, under the same condltlons as

ionals.

(a) General Treaty Aims and Relationship '$th

Establishment Prorisions

The situation of a Commumty narronal who moves to another Member Slate

in otder to pursue an economic actlvrtvisions on free movement ol worKerqvisioo of services. The ECJ has descriEC Treaty provides that perlons- 9r c

state should be able to provlcle thelr sl

rvices and capital"), the free movementi workers wiihin the community and

t

.1iI

lI

v29

&-30

f f i .cat AEPtocwato di Mita o l r995l

P"3t;tJ],f;ftlf,i;* v consisot d; ' o ine desti Adl'ocat AE Prodruto'ii di Mitano tteeslE.C.R.14l65, para.22.

rll2'71

8-30 ESTABLISHMENT AND SERVICES

freedom of esrablishment within the territory of the Member States.eson falls within the scope of the Treaty provisions relating to establihe will be precluded from benefiting from the provisions relatingorovision of services.3o

8-31 It is often advantageous for persons providing services in anotherState to characterise their activities as "Drovision of services" as"establishment" since this might avoid professional rules of conduc

pletion of a building project will likely avoid having to comply withof any professional body goveming the conduct of architects in thatMember State by merely providing services on a temporaryCommunity law does not prevent a Member State from adoptingensure a person who is directing his sewices pdncipally towards thatState from circumventing its laws relating to establishment. In thedispute as to the legality of such measures, th€y fall to beaccordance with Art,43 EC Treaty relating to establishment.

8-32 There ar€ four basic conditions to be met for a person or company tofrom the Community law provisions relating to service provision, Fisewice provision must be a form of economic activity. Secondly,be a cross-border element in that the service provider should be eone Member State and providing services in another Member State.the servic€ provision must be of a temporary nature. Finally theprovider, if a natural person, must b€ an EU national aud, if amust be incorporated under the legislation of a Member State. Thesetions are considered in detail below.l

(b) Articles 49 to 55 EC Treaty

8-33 Article 49 EC Treaty prohibits the restriction on the right ofmovement in order to provide services. The wording of ArL49

Art.45 to 48 EC Treaty are extended to the provisions on the provisiooicer Through An48 EC Treaty the right to freedom of movement inprovide services is extended to companies.

8-34 Article 50 EC Treaty provides that the person providing a serviceporarily pursue his activity in the host Member State, on the sameas owlr nationals are permitted to provide services.

D Join€d Cas€s C-286l82 & 26183 Luisi and Caftone v Mksterc del Teson lI984l

would be applicable if they were established within that state. Thusple the architect travelling to another Member State to advise on

Dara,9,h caf€ C-55t94 Gebhod v Consigol de odine degli Ad|ocat AE Ptocurato diE.C.R. I-4165, para.22.rr S€e oaras 8-38 to 8-48.

' C^; C-55M Gebhad v C,otsigol delt' O i"e dzgli Advocat AE Prod toti .liE.C.R.14165, para.22.

u28l

Srnvtcr Pr.orrprn s 8-38

(c) Secondary Legislation Directive 731148

Directive 7311483r is the implementing directive for the EC Treaty provisions 8-35rclating to the free movement of persons for the pupose of establishment aswell as free movement for the purposes of provision of services. As with thefreedom of establishment, the Directive makes clear that the freedom to pro-vide services in another Member State includes the right to leave the MemberState of origin, to enter the other Member State and to reside there. Howeverunlike establishment, where the right of residence is continuous and perma-nent, service providers only obtain the right of residence as long as theycontinue to provide those services.34

The Directiveis significant because it takes th€ EC Treaty provisions a step fur- 8-36ther than the stdctwordingof those provisions might suggest. As the preambleto the Directive makes clear the "freedom to provide services entails that per-sons provide and receiviftgselrices should have the dght of residence for the timeduringwhich the services are being provided, "35 As discussed below36 those whowish to receive services are given the right to enter the teflitory of anotherMember State andreside thereforso longas there arc rcceiving services.

Service providers and recipients arc not defined by the Directive and thus the 8-37general Cornmunity law definition of service provision applies.

The Directive only covers the situation of natural persons who are recipientsand providers of services in another Member State. It does not cover the sit-uation of employees of companies established in one Member State wishingto provide services in another Member State. The conditions rclating__to theentry and resid€nce of those "posted" employees are discussed below.3?

6. Ssrvrcr Pnolrprtrs

(z) Economic Actitity

The first paragraph of An.50 EC Treaty provides that activities are to be con- 8-38sidered 'tervices" within the meaning of the chapter on seryices in the ECTieaty wherc they are normally provided for remuneration. Whilst Art.50 ECTreaty expressly states that "seryices" include four types of activity this listis not exhaustive and indeed any activity which is economic in characterwould fulfil the requircments of Art.50.

rr Council Dir 731148 of May 21, 1973 on th€ abolition of restrictions on movem€nt and resr-dence withiD the Cornmunity for nationals of M€mber States ]vith regard to establishment andservices U9731 O.l L-1?2,14.! S€€ Chapter 12 on right of residenc€r5 Emphasis added16 See paras 8-57 10 Hl,I'See Daras 8-51 lo 8 55.

n 2el

-

:ilfi $iil1?:xJ*lill':*ifi 'jilT:$J"i'*:iJl{"1'J'x":ffir"f

"i-".i.it,il "f iemuneration ii tirat tt constitutes consideration

ilHil .Iilil. und it notrnulty.ugteed upon between lhe !^rovit;;i;;";;iih; t.*ice. where ther; is no remuneration for the ser

""ii"lftritt. l""JiCons in the EC Treary Thus provision of state

oi " tl"te-piouia"O health services would not constitute servrce

within the meaning of the EC Treaty

l\ Humbel,38 ttLeECJ considered whether the position of state-educa{

:ffiff4;;pt""ttioo rn" ncl held thtt the esential charactd;;;;"ti" ;"it"iiy *as not fulfilled This was because the state.was r

l*;il"t-ru;i*lit*:fi 1iT:ffiJ'Ji'J"*Hx,li*'iy.'f ':iit';"*."1i'*,';*w4li',,3s|:Yti*lii.,T.t#l1:l;fulilling the economic activity con(

8-38

commeicial benefit 3e

of services.

ESTABLISHMENT AN-D SERVICES

(tt) C r o s s -b order EIe ment

8-39

8-40

8-41

u2

The fact that a service provides entertainment or recreation to the rE

a"*^""i a"pti* it of iis economic charact€r, n:I d91.1T 11",:11il"J"""i"-1it

"rt"tirv or public benefit' In this context in the (

' i "iiat"t'

1i F;cl "onsideied

that running a lo-ttery colld.con-strtutciiii jril"l *iirri;. meaningof the E( lreatv lt held that the entertri

5i 'liii,iiiiJiiii;;

of a lottery did not take it outside thesco-pe or-d

;irffi;;;;;;o' aiO trt" fact that rn most Member States thc

.^i" f-- f"f,"iitt could be used only for certain public intercst pur

The condition that the service is oormally provided for remuneratiotr i

r.*;tfi;i;il; ,ervicers paia for ui Gose for whom it is perforr

iltan;;r- ;;; ;; n 'qdvcrteirdetft the ECJ.conside-red th1,::1:

.ii.? tv- ""Ui"

n€twork operators were capable of falli"^g within

ii"uty prouiriont t"tating to services This wis desPite the-fact that

il;;;ft;y p;;"id. to Sroadcasters' namelv relaving their prog

i"t e"t.;iy'p;d t"r by the broadcasrers themselves but by their

ffi ::',r"il:::i'*1',''"1;l1;i?"1lii';Ji:"i.H"Ji;iifi1iiiiiirl"",".irta-.tLiii",..n'i*itL'tt''ESrrla-JYp'o"i'i91':11P,9rnou.rn.ni of p.t.ons and rhe freedom of establishment' those relaxnt

i#;#;"'',-;1;;-i""'do''ot"ltJJ"J:rtJ,l""Yi:n#\:'li:Member State 42 Thus therc must be

E.C.R. I4353.

u30l

' ) " ,

Ssnvrce Plovrosts

However the requirement of the cross-border elem€nt can be satisfied with-out the person or companyt physically moving across the border to providethe service. The offer of services by telephone to potential recipients in otherMember States, for instance, and the provision of those seryices withoutactually moving from the Member State in which the provider is established,will fall withiD the scope of the EC Treaty.43

Further the condition of the cross-border element may be fulfilled by eitherthe provider or the recipient of the service moving across a border. Article 49EC Treaty is aimed at abolishing restrictions on freedom to provide servicesby nationals established in one Member State to persons established in otherMember States. It may be that in order for those services to be provided, theprovider of services would go to the Member State where the recipient of theservice is established or the recipient of the service would go to the MemberState where the provider of the service is established.s

(c) Temp or ary C hatac t e r

Except where the person or company is established, service provision is con-cemed with the te,nporary pursuit of economic activity in a state. The empha-sis on temporary for the purposes of ihe service provisions in the EC Treatymeans that not every cross-border provision of services will fall within thescope of Art.49 EC Treaty. Where a person has a stable and permanent estab-lishment in both the Member States concemed, only Art.43 EC Treaty con-cerning the right of establishmenl is relevant.45 An activity carried out on apermanent basis, or in any event wilhout a foreseeable limit to ils durationdoes not fall within the scope of the EC Trealy provisions relating to services.

The ECJ has held that the temporary nature of the provision of servicesis to be determined in light of its "duration, rcgularity, periodicity andcontinuity".46

(d) Nationality of Natural Persotts

In order to benefit from the EC Trcaty provisions rclating to provision ofservices and the secondary legislation giving effect those provisions, the serv-ice provider must be an EU national. The beneficiaries of free movementprovisions are considered in Chapter 5.

In Svensson,q the ECJ held the nationality of the intended recipient of theseryices to be irrel€vant to the application of the EC Treaty provisions onservices. According to Art.49 EC Treaty the rcquirement is only that therecipient is established in another Member State. Although the judgment rs

ai Case C-38419) Akine hwthen^ BV v Ministet wn Financie ll995lECR l-ll4l.a Jomed Cases C-286/82 & 26181 Luisi and Carhone I Mi sterc del Tesorc ll984l E.C R. 377a5 C^se C-s3195 Inasti v Ken,r/€f [996] E C.R I-701, pam 8a6 Case C-55/94 Gebhatd t) Consisol dell' odine desli Adwcat AE Ptocu tort di Milano lr99slECR 14165, para.39a'Case C484/93 Swnsson and Gustarsson I Ministrc du Logement et de Lursanisne Lt995lE.C.R. I-3955

8-18

H]

HI

8--.15

8-46

&4'7

8-48

l l3u

II

8--48 ESTABLISHMENT AND SERvIcEs

7. CoMpANrEs As SERt'rcE PRovrDERs

(a) Nqtionality of Company

8-49 Article 55 EC Treaty applies the provisions relating to estained in Arts 45 to 48 EC Treaty to sewice provision. This hasquence that companies established in one Member State benefitfreedom to provide services in another. The nationality of acussed in detail above.ae The essential requirement is that theestablished and incorporated in a Member State. Under the ECsions on services as extended to comDanies it is the frcedom to

somewhat unclea! the nationality of the intended recipient is onllrwhen examining the rights of the recipient. However this does notfree movement dght on a third country national recipient of sewicesbeneficiaries of Directive 731148 extending the right of entry and resirecipients of services apply to EU nationals only.a8

ices in other Member States, in addition to setting upestablishments there,so which is of principal interest.

8-50 It can be dilficult to distinguish between the provision of services h'pany on the one hand and the creation of a secondary establishmentcompany on the other. Howeve! it will be the temporary nature ofsion of services that will bdns the companv's activities within thetha EC Treatv Drovisions on services. Wherc a comDanv obtains iture Juch as office space in anorher Member State tbjs will tend tomore permanent establishment with the consequence that the actilikely fall within the scope of the establishment provisions in therather than th€ service provisions.

@) Personnel of Company

8-51 It is not.a requirement of the EC Treaty provisions that thecompany providing the servic€s are EU nationals. If they are EUthen they mav benefit from a free movement dsht under Treatythemselves and gain a dght of entry and residence in other Memberworkers under Regulation 1612168. However, the significance ofsions relating to services under the EC Tieaty is that companies whifer employees who are third country nationals are entitled to domatter of Community law.

8-52 Employees who are transferred to another Member State for theproviding a service in that State on behalf of a company are"posted workers". In a landmark decision in the case of R.ri

aB S€e below al para.8-58.a'q See paras 8-25 to 8-2?-e See palar E-23 to 8-24 on secondary Gtablishm€Dts abo\€.5r Case C- 1 13/89 Rrr, ?o ttusuesa Lda v ONI ll990l E.C R. I-1417.

r7

11321

' i i

Covp,rNtrs es StR.'".rcE PRovtDERs &-55

the ECJ held that a company established in one Member State is entitled totransfer its third country national workforce to another Member State for thcduration of a project to be ca ied out there.

Rush Portuguese was a building works company with its registered olice rnPortugal. It entered into a sub-contract with a French comoanv for works rr_rb€ cafied out on several different sites in France. In ordei to carry out thecontract fr/sPortuguese transfetred some of its portuguese work force toFranc€. Th€ case occu[ed during the transitional period of portuguese mem-bership of the European Cornmunity and therefore Portuguese worken werenot able to rely on free movement rights during that time.52 The Frenchauthorities therefore required that Rrs, Po rtugtese employees obtained workpermits. However Rush Portuguese could still rely on Art.49 EC Treatybecause the transitional provisions applied only to derogation fromReBr ation 1612/68 relating to access to the labour force for workers.5s TheECJ held that A s 49 and 50 EC Treaty meant tha! a company established inPortugal and providing services in the construction indusiry in France mustbe able to move its own work force from Portugal for the duration of the con-tract. The Frcnch authorities were thus not permitted to imDose conditionssuch as lhe obraining of work permirs on rh; RrJ, ponugueie work force.

Although JRrisl Pottuguese occurred during the transitional pedod ofPortugal's entry to the Community, the principles established in it apply toany company registered in a Member State wishing to provide services inanother Member State. This dght to post workers belongs to the companyand not the employee. It is dependent on the employee being posted by thecompany to another Member State to fulfil a contract.

The EcJjudgment in Vander Elstsa makes clear that it is a condition Drecedenrto the application of the principle that the employee can move under theumbrellaof the service providing company that the employee should have beenlawfully and "habitually errployed" by that company prior to being posted(although not necessarily in another Member Statess). The nationality of theemployee is irrelevan t.lr\ Vander Elst ttle employer was established in Belgiumas a specialist demolition business. Some of his employees were Moroccannationals who were legally resident and permitted to work in Belgium. Theemployer sent Belgian and Moroccan stalf to fulfil a contract on a demolition

" Fot funher di(cu(! ion about rmnvtrr ional provisions on accession see Chaprer o."The same derosar'on dpplies as rcgards rhi l0 Dev Member Stdres whoj;ined rhe EU wilheffect from May I , 20M. See Chapter 6.' Case C43/93 Vandet Elst I Offce des Micrations Internatianales, judsment of Ausust 9, t 994,

55 On the facts of both Za nder EIst and Rush Pottusaera the employees had b€en €mployed in rheMernb€r State in which their employers were establish€d- Howev€r t]le tesr of .,habiiual €mptoy-ment" could be sarisfied if the posted worker had been previousty €mployed by rhe company inone of its branch in a non-E U Member Srate providing rhat the company itself is esltbLshedin a M€mber State (other than the Member State to which rhe worker is ro be Dosreo. Howevermore dimcult is the question of how long an employee must *orkfor t}le employer prior to post-ing in order to be regarded as being in "habitual ernptolanenr" This will runon the facts ofiachcase and d€pend on va nous fa€tors includmg imponantty rhe rerms of the employmenr contractaDd rhe.lenglh of time^for rhe employee has b€en employed. lr is suggesred tbar rhe test could besausneo ln a maner ol months

8-53

8-54

8-55

il

1r 331

ff

8-55 ESTABLISHMENT AND SERVICES

sitein France. The French authorities statedthat the Moroccans requirpermits The ECJ held that the requirement to obtain a work per^mitsituarion went beyorrd the permissible r€strictions on service pi"viithe EC Treaty. The ECJ considered that work permits are inteided toaccess to the French labour market and are not necessary therefore forcees of a company who would be temporarily preseni only and whoreturn to rhe home state of the company on completion of [he work-

8-56 Foffowing the ECJ's decisions in Rush portuguese and l/ander Els .Workers Directive56 was adopted io 1996. Tie objective of the Diiavoid social dumplng.betweeq companies from ihe various Meoa-nc to eosure that mmimum rights are guaraoteed for workersthet employers to work in another MemUir State. fne baslc prGfiworking

^conditions and pay in a Member State shou.ld be ap;tcab;

workers frcm that State, and those from other Member State^s'postJthere. The Directive covers undertakings esrablished in a Membwhich, in the framework of the trans-nitional provision of srworkers to the territory of another Member State. It does not.out the dghts of companies to move stalf, or the entry or reridenetions that apply to such workers. These are taken from-the zuidelincECJ in the two landmark cases.s?

8. RECTPTENTS oF SER.!'rcEs

(a) Concept of Recipients of Seryices

8-57 As outl ined above Direcrive 73/148 includes wirhin irs scoDe rhe rEwell as the providers of services. EU nationals hale the right to en

tory of other Member States in the exercise of the freed6m to prorit^= yI"! ]i: ".t"y:d

both by providcrs and by recipients of servborder to enable s:rvices to be i.wiaea, th" p"rr6" p;;iA;iih. ,go to the Member State where the recipient is establishid. A1the recipient may go to the Member State in which the provider of this established in order to receive the service. The movement of theprovider to another Memb€r State is expressly provided for in ArTreaty. Howeyer the ECJ has held that the movemint of the recipieurices is a "necessary corollary" of the right contained in Art.j0"which fulfls the objective of liberalisinC alt gainful actjvity norrthe free movement of goods, person andiapitil'.sr

iiB'i'i'Jlltli"-tt the postins or workers iD the rram€work or the provisi@

57 see Chaptff 12.53 Case C43193 .Uander Elst I Offve des Migations Intemetionates, jrdgmelLt ofaot yet reponed, pam.13.re Joined aases C:286/82 & 26t83 Luisi and Cafiohe n M^tero det r:eson [rgl4j

tl 34]

+-

RscrprsNrs or SeRvrcns

(b) Personal Scope of Recipients of Senices

ID order to obtain the right of €ntry and residence provided for in Directive 8-58731148 and the protection against discdmination envisaged by the Treaty, therecipient of services must be an EU national or the family member of such ape6on. The Directive itself is quite clear on this issue60 and the ECJ has neverextended free movement rights to third country nationals (other than asfamily members) under Title IIL

The risk of ambiguity lies in the fact that the nationality of the recipient of 8-59seryic€s is not r€l€vant if it is the proudel'.t rights that are under considera-tion, since those rights are only dependant on the provider of servicesproyiding them to a person established in another Member State6' (thenationality of the recipient being iffelevant).

There is no restriction on the type of services that the reciPient should be E-60travellitrg to receive in the other Member State. In the case of Luisi andCaftone.z the ECJ held that tourists, persons receiving medical trcatment andpersons travelling for the purposes of education or business are to beregarded as recipients of services. In Bickel and Franz6t the ECJ reiteratedthat a person visiting another Member State falls within the scope of Art 59EC Treaty on the following grounds:

'Article 59 Inow Art.49l thereforc covers all nationals of Member States who, inde_pendently oi freedoms guaranteed by the Treaty, visit another Member State wherethey intend or &e likely lo receiw serrices" .

The ECJ's statement would appear to negate any need for a visitor to estab-lish the particular services that will be received in the course of any visit.

Finally since an essential element of service provision is remuneration, a per- 8-61son will not be regarded as a recipient of services unless the service which lsbeing received is paid for. Such payment need not be made by the recipientdirectly. However, it Humbel, the ECJ held that state school education didnot fu!fiI the rcquirements of the EC Treaty since it was not "normally forremuneration", even if parents do rnake some financial contdbution to theschool.@

M1

60 A 1 See above at para 8-486r See paras 8 42 to 8 -44 above.6'? Join;d Cases C-286/82 & 26183 Luisi ahd Cdftone , Minstero del Tesorc 119841 E C R 377'61 Case C-274196 Bickel and tuahz ll9981E.CR l:763'1.e Czse C-263186 Belsitln v flrl,bel[1988] E.C R.5365 Seepara.8-39 above

ll3sl

-

CHApTER 9

THE ECONOMICALLY INACTII'E

This chapter consider the position of those who exercise thetu ight to ftemoyement without engaging in economic acti.rity. Thrce categories arc consiLered; the self-sfficient pe$ob exercising a generul tight of rcsidence; tret ed person and the student. Each category is dealt with specifically itsecondtry legislation. Together these free movers ate referred to as tlce conomical ly inac tive.

l. INTRoDUcrroN: BEyoND THE EcoNoMrcALLy AcrrvE

The foundations of the European Economic Community as reflected byTreaty of Rome were principally concerned with the free movement ofsorls who wished to further the aim of the EEC throueb economic actiThus the Treaty itself only referred to free movement rights for workersthe self-employed. Secondary legislation gave effect those freerights.l

In 1979 the Commission fust put forward a proposal to extend the rightresidence to other categories of person who were not engaged in anynomic activity.2 Ten years later the original proposal culminated in thetion by the European Council on June 28, 1990 of Directives 90/364 onright of rcsidencg 90/365 on the right of residence of employees andemployed penons who have ceased their occupational activity and 90/366the rieht of residenc€ for students.3

This extension in secondary legislation of the categories of persons ento the right of residence has been formally enshrined at EC Trealy levelthe inse ion of Art.8a into the Maastricht Treaty (now Art.18 EC Twhich statcs that "every citizen of the Union shall have the dght to . . .freely within the territory of the Member States, subject to the limiand conditions laid down in this Trcaty and by the measures adopted toit effect."

Indeed as the European Commission points out whilst the eht of a nof d Member State to reside in the territory of another Membe! State ofEuopean Community was originally subject to that person engaging ineconomic activity in that State:

"such a state of affairs could not be allowed to continue itrdefinitelv. because itnot fully comply with otre of th€ objectives laid down in Article 3c of theRome ('the abolition, as between Member State$ of obslacles to lhe free

' Res. 161268, Dirc 68/360,64122r,73tr48.? Tt€ backgrcund is discussed further in Chapter 4.r This was later replaced by Dir. 93/96.

u3fl

9-O4 TFIE EcoNoMrcALLY INAcrrvn

of . . - pelsons'), nor did it meel the Political aspiration expressed at the ParisSummii in 1974 to move towards a'citizens'Europe"'.

9-45 Prior to the legislative extension of free movement dghts to the economicallyinactive, the EtJ had in fact already be8!n to recognise theirrights, pa icu-

larly where students were "oncernid.

In 1985 the ECJ considered that the

moLilty of students for vocational training was so importani to the aims of

the Tre;ty that, despite the fact that a student did not satisfy the requitements

of existing free rnovement legislation in so far as she could not be considered

a worker.-such a Derson should fall within the scope of the Treaty a

2. GEN-ERAL REOUIREMENTS OF THE PROYISIONS RELATING TO THE

EcolourcelrY lNncrrl'r

As discussed in Chapter 4, Art 18 EU Treaty grants to all EU nationals the

rieht to move and reside in other Member States However the provision

m-akes such right subject to the limitations and conditions laid down in the

EC Treaty and secondary legislation The secondary legislation concemtngtfr- eco"i,-lcatly inactive iircludes an express condition regarding.self-

sufficiency which makes clear that a person wishing to exercise the.right to

move as in economically inactive person must be self-sumcient Furthermoresuch a person is required to obtain sickness insurance for all risks'

As discussed in Chapter 4 in detail the extent to which the limitations and

conditions contained this secondary legislation can be maintained following

inclusion of Art.18 in the EC Treaty is continually evolving'

The decisions of the ECJ in the cases of B aumbasts and Grzelczy6 make clear

that the limitations and conditions placed on the economically inacttve

remain relevant and have not been made entirely redundant by Art lS lUTieaty. However, the ECJ has categorically rcjeated the suggestion that fail-

ure to meet all the conditions laid down in the legislation relating to the eco-

nomically inaoive should automatically lead to the end o^f the ght of

.".ia"n"J. n. conditions laid down in the Dircctives therefore cannot be

treated as absolutes that must be strictly met at all times by all beneficiades

of the Directives.

lt Grzelczyk,l for instance, the ECJ recognised that a Member State could

"oo"fua" iftut a student applyiog for soiial assistance no longer met the

"onai'tioo" to *ftl"ft his rigtri of r6sidence was subject and could-accordingly

reouire him to leave. However, the ECJ held that such a decision rnust be

made "within the limits imposed by Community law" and that "in no case

9{)6

941

9-{8

9{9

4 CasE2g1l83 Graviet I Ci,l o/r,isg€ [1985] E.C R 593'

'i*" clivss so,.r"i ia i i *" Snrcbry of state Iot fie Hone Depaftnent l2o02lE.C.R r,7091.;c*. c-iilisg &zehztk v Centrc Pubtic d Aide Sociale d ottisllies-Lout'ain'la'NeNe 120011E.CR.l-6193.ic-u* c-ld+isg &zelczyk n cente Public d Aide Sociate d otlisnies-I'owain'14-Neuve 12001)E.C.R t-6193.

t1381

-

GerEn,lr RoqutnevENTS oF THE PRoylsloNs

may such measures become the automatic consequence of a student who isnational of another Member State havins recourse to the host MemStatet social assistance system".

lrr Baumbasts the ECJ was referred a question by an English tdbunalthe right of residence of an EU national who had not met the requirementiDirective 90/364 to have sickness insurance for all risks. The ECJ conthat it would be a disproportionate interfercnce with the exercise of the riof residence for the host Member State to withhold a residence permit on$ound that the healthcare insurance of the person concerned did not c(emerg€ncy treatment. The ECJ held that any decision about withholdingresidence permit must be made in compliance with the limits imposed ICommunity law and in accordance with the general principles of Colaw, in particular the proportionality pdnciple.

At the present stage of development of Community law the inclusionArt.l8 EC Treaty has not abolished all limitations or conditions on the fredom of movemert. However the application of any such limitations or con-ditions is subject to the general principles of Community law a.Ddfurthermore to judicial review. The principle of proportionality and the laD-guage of the directives for the economically inactive permit Member Statqto ensure that the beneficiaries do not become "unreasonable burdeDs-_Ho\ryever Member States must accept a "certain degree of financial solidarirybetween nationals of a host Member State and nationals of other Membo-States, particularly if the difficulties which a beneficiary of the rightresidence encounters are temDorary".

(a) The Concept of Self-sfficiency

(i) D ectiyes 901364 and 901365

The concept of self-sufficiency is to some ext€nt explained in th€ relevaddirectives themselves. As Art.l(l) of Directive 90/365 on retired persoEmakes clear, persons are deemed to be self-sufficient if their resources aa"higher than the level of resources below which the host Member State ma$ant social assistance to its nationals." This naturally makes the level iresources required variable from one Member State to another sinc€ levels iwhich social assistance is granted is not uniform across the Member Stat5This lack of uniformity is not surprising in the light of both the lack of socialsecurity harmonisation at EU levelro and the vadable cost of living across tb.Member States. The wording is exactly the same in Directive 90/364 on tbgeneral right of residence.

3 Case C4l3l99 BaMbast an.l R I the Secruory oJ State Iot the Hohe Departnetu 12ryE C.R. I 7091' Case C 184/99 Gtzelc2)k I Centrc Public d Arle Sociale d OttigqieyLo win-la-Neuve C$q

E.C.R. I-6193. Dara.44r0 For furth€r discussion s€€ Chapter 13

[13e]

913 THE EcoNoMrc^LLY INAcrtvE

;

q

9-13 tf a beneficiaty of either Directive is accompanied by one or more familymembers, Member States have the right to require that the amount of familyresources must be higher than where one person alone seeks the benefit of thedirective.rl

9-14 In Conmission v ltaf,tz the ECJ considered a situation where Italy grantedmore favourable tleatment to persons who had previously been gainfullyemployed fallingwithin the scope of Directive 90/365 (retired persons) Lhan tobeneliciaries of Directive 90/364 (the general right of residence). Italy hadrequired the families of those falling within the general right of residenceDirective to demonstrate that they had more resources than families fallingwithin the retired persons Directiverr Overruling the Connission, the ECJheld that this differentiation was permissible since Member States have adegree of discrelion in setiing the amounts required According to the ECJ thehigher amount required for those falling within the general right of residencewas not excessive This is a surprising decision in view of the principle of equaltreatment. Although considered by the ECJ to be justified, the decision isarguably wrong. The ECJ considered that the difference was permissible,based on its view that the Member State had not exceeded its "latitude" in hav-ing in place a regime that is more favourable to the family members of retiredpersons than to the beneficiaries of Directive 90/364 Howevet at issue underboth Directives is the same question: are resources sufficient to avoid the per-son becoming a burden on the host Member State's social security system. It isimpossible to see how the sulhciency of resources can vary as between differ-ent groups of people The "latitude" to be given to a Member State must relateto that state's assessment of the necessary level of resources for anyone to sur-vive in their state. There is no reason why that assessment should difler asbetween either Directive's beneficianes.

9-15 The Commission remains of the view that there is no generul principle thatMember States arc free to fix different amounls of sumcient resourc€s for thebeneficiaries of the two Directives.ra This particular problem would appearpresently to be purely theoretical, as the only Member State which providedfor differentiation was ltaly. Italy amended its legislation to abolish thedifferentiation before the ECJ gave judgment.

9 16 Neither Directive 90/364 nor Directive 90/365 specify what the source of theresources referred to thercin might be. Indeed resources could come from theincome of a spouse or child accompanying the EU national or indeed fromany other family member, whether accompanying the EU national or not.The accompanying spouse and dependent children are entilled to take upemplo).rnent or self-employrnent in the host Member State even where they

I This applies similarly to those seeking to benefit from Dir 90/36411 Case C424198 Connkrto" v lat [2000] E C R I -4001Lr The Commission has understood the drferent level of resources required lo be one thirdmore Accordins to the ECI this calculrlion by the Commission was wrcng ltaljan legislationin fact required resources three hmes higher in respect oI beneficiaries of Dir 90/364 See CaseC424198 Conmxsion I l!ai./ 120001 E C R. l-4001, parr 22.rr Second Cornmission Report to the Council and Parlnmenl on the implementation oiDireciives 90/364, 90/365 and 93/96 (nsht of resid€nce), COM (2003) 101 final, March 5, 2003

!I

u40l

GENERAL REeUTREMENTS oF TH! PRovrsroNs 9-21

are not EU nationals. The income dedved from such activity can be includdin considering the resourc€s of the family as a who1e.

The Commission has taken issue with a number of Member States whicthave required that the EU national has sufdcient resources of his own or oriqinating only from a spouse or a child.ls The Commission considers tharGadds a supplementary condition to the Directives that does not exist on tbface of the Directives. The Commission considers that this is contrary tothos€ Directives which do not exclude the possibility of sufflcient resourcEcoming from a third person such as a parent or unmarried partner.

One Member Stat€, Sweden, even went so far as to require that the sumcifdresources be personal to the EU national and that such requirement couldnot b€ satisfied by reference to the resources provided by any family membqwhether a spouse or child, or any other third party. Following intervention hrthe Commission, Sweden removed this condition from its legislation.r6

(ll). Directive 93196

The concept of self-sumciency for students is articulated diflerently in Arrlof Directive 93/96. This provision, as with Directives 90i364 and 90/36\rcfels expressly to the requirement that resources arc sulicient to avoid thrstudent becoming a burden on the social assistance system of the hdMember State during the pedod of residence. However there is no exp.errcference to the level of resources which are deemed sufficient. Despite this iis difficult to imagine the application of a different test from that containedin Directives 90/364 and 90/365 could be justified.

There is a l'urther diflerence between Directives 90/364, Directive 90/365 afllDirective 93/96. Whereas inthe former Directives the beneficiaries are requirodto iave the relevant resources, students need only a.r.rrre the relevant authorities that they haye sufficient resources by means "of a declaration or by sudalternativs means as the student may chose that are at least equiyalent".l?

(b) Sickness Insurance

All three Directives relating to the economically inactive refer to the requirFment that the EU nationals themselves and their families are covered by sict-ness insurance in respect of d,// risks in the host Member State. Neither thexact form that this sickness insurance should take nor the meaning of "alFrisks is specified. However, a form of sickness insurance which provides corufor general heallh risks should sumce, particularly when it is borne in nidthat €mergency treatment will be covered by Art.19 of Reg. 1408/71.t8 Thiinterpietation is supported by the ECJ in Baurnbast.terr By hsumg reasoned opinions, prior to laking action before the ECJ, Second CommissbReport to the Council and Parliament on the implementation of Dir€ctives90l3@,901365 d,93/96 (right of resid€nc€), COM (2003) l0l final, p.l2 See now decision of the ECJ in C.G200102 Man Lovette Chen and Kunqion Catherine Zhu I Secrctary oI State fot the HEDepadnent, October 19, 2004.ro See Case C-424l98 Co"r/rr$io" v Irat 120001 E.C R. I-4001'? See fudrcr Chapler I I13 See chapt€r 13.t' Case C4l3l99 Baumbast ond R 1) the Secrctary oI Slale Jor the Hone Depaflmefi 12ryE.C.R.I-709I.

l l4 l l

o_tt TIrE EcoNoNIIcALLY INAcTIvE

ffir'i*Jl::,::;'i;l:::or orisin to th€ bost Mem9-'I^l'.'l';"?i \ "il,,i,i;,"':;i'h;-;;;;;';;'' tloo1l E" !:1j1o"l),, ry ro, the Hone Depdrtnpn, 120021 E C R I-

';.i?:f ""111"1."i1f ifl ,if"f ',1 ;# J'i'l,".'-' o "o*'

{

1

:

.l

9-22 Under the reciprocal arrangements- '-

in-i"*. 1408/7i, the beneficiaries of

to reJeive sickness benefits in klnc

al right".2l

I DIREc-rIvE 90/364 (TH! GENERAL RIGnr oF RESIDINCE)

of residence as a:elf-stt lhcient econom!

a". """J ""fV

demonstrate thrt lhey hxve

tming a burden on the social asslslance

and sickness lnsurance'

non-contentlous'

4 DIRECTNE 90/365 (THE RETIRED PERSoN)

Chapter I l '

lr42l

-

SruopNrs

residence they must be in receipl of an invalidity or early retllement penor old age beneflt or of a pension in respect of an industrial accidentdisease.

The amount such persons recejve through these benefits must be sufficientavoid their becoming a burden on the social security system of the hrMember State. They must also be covered by sickness insurance tn respectall risks in the host Member State.22

This righl of residence is obviously very beneficial to those EU nationalstheir family members who have retired and who wish to enjoy their retircIaway from their own Member State. It is most advantageous to thosenati'onals in receipt of benefits from Member States where the rates of tfit are relatively high and who wish to move to a Member State where the c{of living is low ln contrast EU nationals in receipt of benefits fromMember State wherc such benefit rates are relatively low, may lind tt drto fulfil the rcquirements of the Directive if they move to a state wherccost of living is high.

However it is arguable that it would be entirely contrary to the aims ofDirective, nameiy to encourage the frce movement of the retired, if in scircumstances the diflerence in benefit levels was able to prevent theof free rnovement righls by nationals of certain Member States, particuif the diflerence is marginal or temporary Il is to be noted that the prear

to the Directive refers to the fact that beneficiaries of the right otunder the Directive must not become "an unreasonable burden" onoublic finances of the host Member State-a term that must b€ inteionsistently with the principle of proPo ionality.'?l

5. STUDENTS

(a) Generally

Secondary legjslation relating lo workers provides for two categories ofsons who'enjiy educational ; ights: childrin of workers2a and workers tlselves who enter into vocational training.'z5 Furthermorc Dlrective 9:orovides the rieht of residence for students who fall outside the ambit ofiwo provisioni relating to workers.z6 This section examines bothstudents fallins under Directive 93/96 and those whose rights flow fromprovisions of Community law.

Even before DLective 93/96 was adopted, the ECJ had recognised a rightresidence for students who wished to enter into vocational training in anotl

'?! As to the meaning of "all" risks, see palas 9-21 to 9-22.3 Cas€ C-413/99 Bnnbast and R r the Secrctary of State Jot the Eome DeportmenlE.C.R. l-7091, para.9l.?a An.12 of Reg 1612/68-6 An. ?(3) of Reg. 161268.?6 Seeparas F43 b q8.

l l43l

9-31 THE EcoNoMICALLY INACTIV|

Member State more generally than in the circumstances provided for inRegulation 1612168.It Gravier.zT a French student in Belgium challenged therequirement of an enrolmenl fee for non-Belgians. She had no family mem-beis in Belgium and thus no rights of residence there' apart from her claim asa student to such a right. The ECJ stated:

'Article 128 of the Treaty Inow Art.l50lprovides that the Council is to lay down gen-eral principles for rmplemenring a common vocational trrining policy caPable ofcontijbuti;nto the harmonious development both of the national economies and ofthe common malket . . . lt constitutes, moreover, an indispensable element of theactivities of the Communlty, whose objectiles include, r,lel d/la' the free movementof persons, the mobility of laboul and the improlement of the living standards ofwoikers. Access to vocational training is in particular likely to promote free move_ment of persons throughout the Cornmunity . . It follows from all the-foregoing thatthe conditions of access to vocational tnining fall within the scope of the TIexty" 16

9-32 lt Raulin,le the ECJ held that the principle of non-discrimination derivingfrom Arts 12 and 150 EC Treaty meant that an EU national who had beenadmitted to a vocational training course in another Member State must havea right of residence in that State for the duration of the course

9-33 Furthermore as regards students the Maastricht Treaty introduced a newchapter into the Treaty conceming "social policy, educ^ation, vocationaltraining and youth". Article 126 of the Maastricht Treatyro makes clear thatCommirnity iction is to be aimed at "encouraging mobility of students andteachers". In order to contribute to the achie\rement of the objectives, theCouncil is called on to "adopt incentive measures".

(E:) Specifc Ptovisions Relating to the Right of Residence of StLtdents

(r) Childrcn of llorkers

9-34 Article l2 of Reg. 1612i68 provides that where an EU national is or has beenemployed in the territory of another Member State the child of that EUnationil must be admitted to that State's general educational, apprentjceshipand vocational training courses under the same conditions as the nationals ofthat state.

9-35 The ECJ has stated that this provision exists to ensure that a child of a worker

has the possibility of going io school and pursuing further eduration in the

host Member Staie and abli to complete that education successfully rr This is

consistent with the general dm of Reg t612i68. namely that free movementfor workers requirei "the best possible conditions for the integration of the

-ommunity

w6rker's family in ihe society of the host Member State "32

)7 Case29Jt83 Graviet v ci,) o/riese 09851 E C.R. 593.2s Czse 293183 Ganer v Citr o/r,?8e t19851E C.R 593, Paras 19 25)' Case 35'Tlsg Ratlhtl t Minsir lor Eiucation antl Screzca ll992l E.C'R I 10? lro Now Art. 149 EC Treary.rr Joined Cases C-389 390187 Echtenach and Mofit: [1989] E C R 723' Para 2l

'Case C 308/89Dtaea t Land Be'1inllg9llEcl. I-4185' Para 13

[r441

rI

StuopNrs

Th€ corollary of the right to education for the children of workers is the .iof residence for those children. That dsht of rcsidence continues eventhe worker ceases economic activity, or c€as€s to reside in the terdtory ofhost Member State.

Based on a narow reading of the ECJ'S judgment in the case of ,Ec&land Moritz,t3 some Member States considered that the rieht to rcmaibeyond the worker was limited to circumstances where education couldbe continued in the Member State of origin of the worker because of lackco-ordination of diplomas or some other reason.34 In B(tumbast therejected this argument stating that the ght of residence for childrenworkers in education exists independently of the workers remaining in thhost Member State and irrcspective as to whether educatioo could becontinued e1sewhere.35

Where a pareut has ceased to work and reside in another Member State pri6to the birth of a child, the child dedves no benefit from Art.12 of Reg1612/68 in that Member State.36

The dght of residence for the children of an EU national worker exists irre-spective of their nationality. Thus even where the children of an EU natioualworker arc nationals of third countries they will have independent rights ofresideuce. This is consislent with the fact that any descendents of an EUnational worker, irespective of nationality, haye the dght to install themselvGwith the worker.37 The ECJ has held that the dght to be admitted to the edu-cation system of the host Member State must apply to the same descendants.$

Qr) lVorkers Undertaking Voccttional Trcining

Article 7(3) of Reg. l612168 provides that EU national workers in the te[itor!of another Member State shall have access to training in vocational schoolsand retraining centres under the same conditions as national workers.

The ECJ has interpreted the term "vocational schools" relatively restrictively-It has found that the fact that a teaching establishment proyides some voca-tional training is not sufficient to enable it to be regarded as a vocationalschool within the meaning of that provision. According to the ECJ the t€rDvocational school has a narow€r meanins and refers solelv to establishmenLswhich provide only teaching between piriods of employment or teachiugwhich is closely connected with employment, particularly during apprentice-ship. It rejected a suggestion that universities could be regarded as "vocationalschools".3e

1r Jomed Cases C-389-390187 Echtemach ahd Mort,: u9891 E.C.R. 723, para 2lra S€e the Geiman Governm€nt's argument recrted at para.42 of Case C 4I1l99 Daunbq.rt addR v S?crctatr of ShIe Iot the Hone Deparm t120021 L.CR I7091.t5 Case C4t3t99 Baumbast and R e Secrclary of State Jor e Hohe Depdrt'r1"n, 120021 E.C R.l-7091, para. 5336 Case t91186 Btuwn ! Senetaty of State.fot Scola d U9S8l E C.R 3205.r7 Art. 100) oI Res 161?/68tB Case C-413199 Baunbast and R I Secfttary o.f State fot the Hone Depa menr [2002] E C.R.I-7091. Dara.56.1e CasE 197186 BDD\ v Secretary of State lor Scotlazd [1988] E.C.R. 3205, para.l3.

[1451

+:: .

942 THE EcoNoMrcALLY IN,\crN E

/iii) Directive 93196

Directive 93/96 provides that an EU national student, who has been acceptedto attend a vocational training course in another Member State, has theright of residence ir that Member State. The student must provide assur-ance by means of a declaration that he has sufficient resources to avoidbecoming a burden on the social assistance system of the host MemberState. The student must additionally be enrolled in a recognised educationalestablishment and be covered by sickness insurance in respect of all risks inthe host Member Stale.

The difference between the requirement in lhis Directive to provide a declara-tion of means as opposed to having to prove means in the other twoeconomi-cally inactive categories is significant. It reflects a more flexible atlitude towardsstudents and the Commission has taken action against Member States whichrcquire more than a declaration from stud erlrs.ln Commissioll r Itab)a\theECJupheld the Commission's liew that the system of Directive 93/96 on the right ofresidence for students diffe$ from that ol the two other Directives with regardto sumcient resources. The ECJnoted thatDirective 93/96 contains no require-mentregarding a given amount or moreoverthe furnishing ofevidence thergofin theform of specific documents.In the circumstances the ECJ concluded thata Member State could not require a student beneliting from this Directive toprovide evidence or a guarantee of a given amount of tesources. The MemberState must be satisfied with a declaration or equivalent, at the choice of thestudent, even where the student is accompanied by family members.

"vocational training" is not defined in the Directive or in th€ EC Treaty itself.In rclation to Art.150 EC Trcaty the term has been interpreted as "studieswhich prepare for a qualification for a particular profession, trade or employ-ment or which provide the necessary training and skills for such a profession,trade or employment" but excluding education with the aim of improvinggeneral knowledge.a2

9-42 This restrictive definition is somewhal surprising in light of the fact that theECJ has acknowledged consistently thal universities are capable of providing"studies which prepare for a qualification for a particular profession, trade oremployment or which provide the necessary training and skills for such a pro-fession, trade or employment" and that this would constitute "vocationaltraining" for the purposes of Art.l50 EC Treaty which applies to EU nation-als generally as opposed to the narrower class of workers.4

943

944

945

9-46 Whether students in general education fall outside the scope of Directive93/96 is questionable. It is to be noted firstly that there is no need for thestudent to establish any link between the education and any occupationalactivity.lr

4 Case293l93 Gtatriet I At) of Liese Itggsl E.C.R 593atC^seC424198 Conmisrion v lat 120001E CR I400t1'1 Case 39186 trb I Unirersitdt Ha otet U988lE C.R.316lar Which is difierent lron rhose wlshing as workers to benefit from the provisions of Art. 7(2) ofReg. 1612/68. See Case 39186 Iair I Uniwrcitbt Hanrver U9881 E C R 3161

lr46l

-

STUDENTS

Secondly the ECJ has considered even secondary school education towithin the scope of the EC Treaty. h D'Hoop,44 theECJ affirmed the itance of frce movement of persons for educational purposes. As theobserved in that case:

"The objectives set for the activities of the Community inctude, in Article 3(p)lhe Trealy fnow. amendment An. 3(lXq, EC Treaty). a conrriburion ro educatiand training of quality. That contributiol must according to the second indetrtArticle 126(2) of the Treaty (now the second indent of Article 149(2) EC Treat9aimed, inter alia, at encouraging mobility of shrdents and teachers".al

The judgment then makes quite clear that students who move in order roenter secondary school education fall within the scope of Art.l8 EC Treaty-{Since the case was not related to a worker or the child of the worker, the ECImust have intended that A .l8 EC Treaty would be read to include all stu-dents. The right of students to move, howeve! will not be unconditional. Itilikely that the conditions and limitations laid down in Directive 93196 wouldapply by analogy to such other students.

4 Case C 224198 D Hoop I Olfce nalional de I'emploi+' Czse C 224198 D Hoop n Olrtce national de I'enploia6 Czse C-224198 D'Hoo! | OIrtce natknal de I'enploi

[2002] E.C.R.I,619l[2002] E.C.R.I-619r, pam 32.[2002] E.C.R.I-6191, para 33

lt4ll

,l'

CH^prER 10

FAMILY MEMBERS

This chapler considers theright of EU nationalfrce moyers to installfamily mem-bers and the interpfetotion that the ECJ has given to the principle offamily unity.

I. INTRODUCTION

(a) General Commu ity Law Principles

(t) Importance of Family Life

Community law has always respected the notion of family life wilhin the con- 10 {ltexl of free movement provisions.r It recognises that without the righl to fam-rly_reunion, EU nationals would be deterred from exercising free movementrlgnrs.'

The ECJ has recently re-conlirmed the importance of ensuring protection for 1H)2the family life of nationals of Member States in order to eliminate obstacleslo the exercise of the fundamental freedoms guaranteed by the EC Treaty.3Furthermore the ECJ has made clear that the integration of EU nalionalsand their family memben into the lil'e of the Member State in which they areresident is a fundamental objective of Community law.a

In light of theseprinciples the ECJ has even considered in MR4-L that it would lo{)3be contrary to Community law to send back a third countrynationalmarried toan EU national who arrives at the border of a Member State without the appro-priate visa, where he is able to prove his identity and the conjugal ties and thereis no evidence to establish that he represents arisk to the requirements ofpublicpolicy, public security or public health.6 The ECJ also consideredthat itwouldunlawful to refuse to recognise the dght of residence of a thirdcountrynalionalmauied to a national of a Member State where the third country national hadentered the teritory of the Member State unlawfully.?

I Council R€g 1612/68, An.10O) mcludes the right of EC national wofkers to install therrfarnily rn€mbers in the Member S.ate in which they are r€sidins':Case C-3709/90 The Queen I the Imnqrution Appeal hibukal Ex p. Surtnder Singh 119921E.C R. I 4265, para.2oI Case 60-00 Caryettet v Sectetary of State lor fie Home Depa nent 120021E C.R. I 6279,para.38a Case C-3o8189 Dl Leo ! Ia d Be in ltgg0l E C.R. l-4185r "the airn of Resulahon 16lZ68,nanely freedom of movement for workers, requir€s for such fre€dom to be gxaranteed in com-pliance with the principles of liberty aDd dignity, the best possible condirions or the integnlionof the Community workert family in the socieiy of the host country" (para l3).5 Case C-459199 Mourenent contre Ie raciwe, l'@fiAnilisne et Ia xhophobie ASBL (Mk4X)

' Relgrcn State !2oo2lE C.R. t-6591

I' Case C-459199 Mouwthent contrc le racisne, I an sAmitisne et la renophobie ASBL ( MklX)v Belsian State l2002lE.C R. I 5591, para.6l.7 See further Chapter I I .

l l4el

-

10-{4 FAMILY MEMBERS

(i) Interprctation of Family Reunion Provisions

10-.04 In Dtuttte,8 the ECJ made clear "having regard to its context and the otives which il pursues, that provision [Art l0 of Reg. 1612/68] cannot be

1(H5 The Advocate General's opinion in the case of Baumbast\o rcferred to aof residence in favour of the "spouse and other members of the famil-v

strued restrictively". Demonstraling its flexible attitude to the rntelof familv reunion Drovisions the ECJ held that in order to benefitright of iesidence family members wishing to install themselves with awire not required to live permanently with the worker.e

misrant worker". He considered that the terms of the Regulation shoulbedefiied restrictuely in light of the principles identified and was of thethat the ECJ must have regard to both social and Community law (

ments: "If no account we.e taken of those developments the relevantlaw sk losing their effectiveness".lI

(b) Inter-relationship t|,ith the Right to Family Life in Human Rights

(1) Generally

l0-.06 In a series of cases decided since 2001 the ECJ has emphasised the itance of ensuring protection for the right to respect for family life of rals of the Member States in order to eliminale obstacles to the exercisefundamental freedoms guaranteed by the EC Treaty.r2

Belsian State 1200?) E.CR r-6591

10-07 In Chapter 3 the inter-relationship between human rights law, in parE

the European Convention on Human Rights (ECHR), and Communit-uwas examined. Those principles have particular applicatlon in the field ofree movement of perions and the right to respect for family life in thattext. The ECJ has consistently held that free movement provisions minterpreted in conformity with Art.8 ECHR and

-the fundamental ri

respect for family l i fe contained in that provision.rl

(ri) The Scope of Protection Affoded by Article 8 ECHR

10-'08 It must be recalled that the right to respect for family life cArt.8(l) ECHR is not an absolute ght and thus the right of non-nati(to enter a country rs not guaranteed by the ECHR Howeve! the onlr'

missible interferences with the Art.8(1) rights arc those ouurn€d rn Iwhich, although similar, are more extensive than the corresponding

3 CASE 267183 Diatta v I'a d Beiin 119851E C.R. 56'7 ' Parc 17 'q Case 267183 Diatn v Lard BPl/,, [lq85l L.CR 5b7. para l8'oA.G Geelhoed rn Case C-4ll/99 Baunbas aad R v secrctart oJ 5tate Jot IhP

Depo1nen!, delivercd on July 5. 2001, Pata.l9ni.c. ceettroea in cas€ i--4ll/ea baunbosr and R v se.Platv of sate lor lhe

?:s::{#t:'l::;::,:: j!1",1;l#';f Tx,;,'1r",,heHoneDcpa,,nei,t2ooztECR0,,^3ij;*o,

connition v Gamarylrcsql E.c R. r2oJ. para.l0. see atso A G sCasE C-459F9 Mou\ment coh!rc le ru.isme. I antEAmitism? eI Ia x'nophobtc AtEL I

llsol

a1

INTRoDUCTIoN

tions in Community law to the enjoyment of ights given by the EC Treaty'rAssuming there is family life under Art.8(l) ECHR the state must establish alegitimate aim for the interference with the individuul's right which in thcpresent context will likely be sought to bejustified by reference to the need toirave fair and firm immigration conttol in the context of the maintenance ofpublic order. However, the state must establish also that any interference isoroportionate when the state's interest in lhe iDterference in the family life istalinced against the effect that the measure would have on the individual'srights to respect nor that family life.

Thus whether there is a breach of Art.8 ECHR will turn on the followtng 1G{9tssues:

(i) Is there family life?

(ii) Has there been an interference or failure to respect family life?

(iii) Is the interference or failure to resPect family life in accordance with thelaw?

(iv) Is the interference or failure to respect family life necessary in :rdemocratic society and on what basis?

(v) Is the interference or failure to respect family life proportionate to thelegitimate airn pursued?

The statek negative obligations under Art.S are well established and preclude lG-10a state from taking action, ircluding expulsion or removals, which will dis-proportionately inierfere with a person\ dght to the enjoyment of lamilylife.l5 In assessing what is proportionate it will be necessary to examinewhelher there are obstacles to the family life being enjoyed outside ihe con-tracting state. In this context it is to be recalled that the European Court ofHuma; Rights (ECIHR) has even considered language and cultural difficul-ties as impadiments to family life being enjoyed elsewhere L6 The ECHR thusimposes negative obligations on stales to refrain from such interferences.

Additionally however Art.l also demands that states "secure" the ights pro- 10-11tected by the ECHR. The European Court of Human Rights has thereforeheld in many cases that states are under a positive obligation to take steps toensure that Convention dghts are protected, notjust to refrain from negativeinteferences. The state is;bliged to have in place laws that grant individualsthe legal status, dghts and privileges required to ensure, for example, thattheir family life is properly respected.rT

Article 8 also carries positive obligations for the state to protect all aspects of 10-12family life.'8 The judgment of the European Court of Human Rights in Sen

'r As to whrch see Chapter l,l15 See most recently Yiidiz I Austtia (Application no 17295197)' iudgment of October 31 ' 2002,ECIHR.t6 Boultif v Svit.e and (Application no 54273100). iudgmetrt of Ausust 2,2001, ECTHR\r Marckx v BelsiM (t9'19) 2 E H R R. 330, para 36tB Marckx v Belsium (197 9) 2 E H R R. 330

10-12

l r5 l l

-

t0-12 FeNrrr-v MtMsses

v Netherlandste suggests lhat the state has a positive obligation tofamily life which goes beyond protecting the family life that alreadythe territory of a state, but includes an obligation to p€rmit thefamily members who have been living apart and to foster family lifcbest possible environment. In this context the failure to meet thismust be weighed against the state's legitimate aims which will iimmigration control.

(iii) The ECJ's approach ro Arricle 8 ECH R

10-13 In a situation where an EU Member State denies entrv to the familvof an EU nalional exercising EU free movement rights it is not diarsue that to exclude the familv member would be a breach ofwhen read compatibly with the ECHR, irrespective of whether Claw alone would force that conclusion. For the EU national. it wouldtute a breach of fundamental rights of free movement if the only wayfamily life is by leaving the host Member State. Similarly it would be aof Community law if the only way to enjoy free movement rightswerefamily members beingpresent. In other words Community law wouldan EU national to choose between the enjoyment of family lifecontinued exercise of EC Treatv rishts to freedom of movement.

10-14 This approach has been afirmed by Lhe ECJ in Carpenter2o whichthe sDouse of a provider of services. The ECJ found that notwiththat the spouse had infringed the immigration laws of the Unitedshe was entitled to reside in the terdtorv with the Drovider of sdoing so, the ECJ read Art.49 EC Treaty in light of the fundamentalrespect for family life so as to infer a dght of residence for tbe family

10-15 Moreover in MRAX,2| the ECJ ruled that a Member State could notto issue a residence permit to a third country national mafied to aof a Member State who entered the territory of that Member Stateon the sole ground that the visa expired before the application wasa residence permit.22

r0-16 The two cases illustrate the determination of the ECJ to ensurc thetion of the family life of Member State nationals in order to eliminatecles to the excrcise of the fundamental freedoms guaranteed by theeven in the face of contrary domestic legislation.

r0-17 Carpentelt in particular is also indicative of the ECJ's willingness to ipret the EC Treaty obligations in light of the rights protected by theIn itsjudgment the ECJ explicitly relied on the right to respect foras guaranteed by Art.8(1) ECHR, recalling that it is one of the

te Sen I Nethe ands (Applrcahon no. 31455/96), judgment of December 20, 2001rocase 60-00 Carpentet I Sectetat! of State fot the Hone Depa nent 120021E.CR Ipara.38.

')t Case C-459199 Mourcnent co trc le racisme, I anti.timitis,ne et la xinophobie ASBL !120021 E C.R. l-6591i: Td ECJ also held lhat a non-Eu national spouse who had entered the territory of aState unlawfully was not Srounds for €xclusion or r€fusal of residents p€rmit.2t cias,60100 Carpenter v Secretar o.f State Iot the Home Depa.tnent 12u02) E C.R. lJ2?t

1r521

INTRoDUCTIoN t0-21

ghts.which are protected in Community law through the case law of theECJ, the Single European Act and Art.6(i) EU Treat;r4

There has been some criticism of the ECJ.s approach to the ECHR and sugqes_ 10._lgtion rhar it has given undue weighr to rhe right; oI the individuai; ";;;;;f i

,"rnar or rne stale. Hower er such crit icism is not wa rranred if rhe decisions of ttreECJare seen in light of the above observations and the fact that familymembersare seen in Communjry law as being caprble of ..Iacil i tating..fre.

rn6*.n,, nso rar as Lney^may olter support.r ' care26 and in some cases finrncial abil itv toexerclse tnat t ree movement r ight . ln the words of the ECJ i t Carnenter: '

lrs Carpenrer would be detrimental roions under which Mr Carpenter exer_n could not be lully eflective if Mr

origin to the entry and residence of his spoulge,it2Py obstacles raised in his country

(c) llhich Family Mernbers can be Installetl h,ith the EU National?

The righl. to insralj family members is set out in detail in secondary legisla- 10_19uon rera ng to iree movement. The diffe_rent -categories

of person eierciisingfree mgveTlnt have the right to install differeit f"-ify'-"mb".r-!r"f'1.,"rcspectrve nghts of residence are considered in detail in Chapter 11. For Dres_ent purposes the beneliciaries of the right to install farnily memUers toriactrcategory of free mover are listed below.

(l) Wo*ers2e anrl the Self-employecl 3a

y:lfi:_l"d the self-emptoyed have the right to instalt the following persons 10_20trr lespecltve oI nrt lonali tv):

(4] spouse;

(b) descendants of the EU national and spouse who are under the age of 2lor are dependants;

(c) dependent relatives in the ascendin'g line of the EU national and spouse.

Member States are further required to facilitate the admission of any mem_ 10_21ber of.the family who does not fall into the above *t"gor*r, unJ'*iio "dependent on the EU national or living under ttre trls rJoi i" tfr.1"r.t.v

from where he comes.

] ArI.612) EL Treaty pro"iO.. .T* Union .r,utt ,especl tundamental riglr., a, glla,anreea Uy:le

E}r:oejan convention for rhe prctedion of Human Righrs ana Fi,ai.",i "r

i.""a"-"sisned in Rome on 4 Novemb€r te50 and as they r€slh fromihe coDstrtution"iilih;;;-_mon ro the^Member Stales. as general princrple\ of Communily las....' \ase ovtlJu . atpenter I Secrc@r) olSrdtplor thc Hane Depa ncN12002) E.CR.I b)7a.,." case c4t3tee Bounbll anJ R r sa renrv ol sr.r" 1", i" n"^. i"p")iii,, iio6u 1l.c.nI -7091:- S€ercase 60/00 (d.p€,tt v Sertctary ol Sta!? tot ftc Hone Depath?at I2002lE.C R t 62?q,rr See Chapt€r 1l-r Res. 161268.ro Dir ?3/148.

ll s3l

--l

tw22 FAMILY MEMBERS

(lt) Directive 90/364 (Generul Right of Residence) and Directive 901( Retirecl Persons )

lo-22 Thos€ EU nationals exercising the general right of residence as self-spersons or those EU nationals who arc retired have tbe right to install:

(a) spouse;

(b) the EU nationalt and spouse's descendants who are dependants:

(c) the ascsndants of the EU national and spouse who are dependanE-

(ltr) Directile 93196 (Students)

EU national students have the right to install their spouse and theirent children.3l For those students falling outsider the scope of .

10-23

t0-2A

l(F25

t0-26

The ECJ case law suggests that the term "spouse" refers to "a maritaltionship only". Thus relationships outside legal marriage cannot be regi

93/96, there is no express right of residence conferred for familyTheir position is considered below.

2. SPousE

(z) Legal Spouse

(i) Meaning of Spouse

as "spouses" for the purposes of Community law.

Stales.

rr Note the use of the word 'children' instead of 'descendants', see belo\{12 C^x 59185 Reed I the Nerlerlardr U9861 E.C.R 1283.rr In the particular case Reg. 1612168.

Reedsx is the most significant decision of the ECJ in which the meanithe term "sDouse" rcferred to in the free movement DirectivesRegulationsrthas been considercd. Ann Reed, a UK natlonal, attempttobiain a residence Dermit in the Netherlands on the grounds that shecohabiting with a Uk national who was working in the Netherlands Shebeen livin-e in a stable heterosexual relationship with her partner for !than five years. It was argued on her behalf that in view of legal and saidevelopmints since the late 1960s when Community 1aw evolved,^unmardcohabiiing partners should be treated as within the scope of the"spouse".

The ECJ rejected this submission reasoning that the term."spouse" m!$given a Community law meaning and that it should tak€ into.account leind social developments in the whole of the Community and not just

Member State.

"12. According to Article 189 of the EEC Treaty, Regulation No- 161268general applica'iion, is bitrding in its eotirety and is directly applicable in all Mer

[154]

Spousl 10-31

13 It foLlows that an interpretation given by the Court to a provision of thatRegulation has elTects in all of the Member States, and that any interpretation of dlegal term on the basis ol social developments must take into account the situationin the whole community, not merely in one Member State".ra

The ECJ did not consider that social developments in the whole of the 10-27Community could prcmpt the conclusion at that time that spouse could beconstrued so as to include unmarried co-habiting partners. Those in stable co-habiting relationships recognised by the national law of a Member State maynevertheless benefit from the provisions of Art.7(2) of Reg. 1612i68.r5

(11) Dirorce and Separation

It is the corollary of the very narrow definition of the term "spouse" (relat- 10-28ing to the technical legal status of a couple) that, for as long as they remainlegally married, they should be regarded as spouses. This includes situationswhere the couple have separated and even intend to divorc€. It is only whenthe marriage is finally dissolved in law that they can no longer be regarded asspouses lbr the purposes of Community law

In Dralla,r6 the couple in question had separated and were living in differcnt 10-29accommodation. The German autho ties sought to deport Ms Diatta, dSengalese national, on the basis that she had no right of residence lnCommunity law. The German authorities pointed to the fact that the coupleintended to divorce and in that Art.lo(3) of Reg. 1612168 rcfers to therequirement that the EU national has adequate accommodation for hisfamily members

The ECJ held that a marriage could not be rcgarded as dissolved until it had 10-30been terminated by the relevant authorjties and that the requircment that theEU national has adequate accommodation on installing his family memberscould not be translated into a requirement that they remain living together

(rll) Sham Marriages

Consistent with its jurisprudence in other areas, the ECJ has hetd that 10-31Comrnunity law will not act as a front for fraudulent conduct. In the case ofSutinder Singhll the ECJ recalled that Conmunity law does not preventnational authorities from preventing abuse. More recently in Akrichts theECJ held that:

"there would be an abuse if the facilities aflorded by Community law in favour ofmigmnt workers and their spouses were invoked in the context of marriages of con-venience entered into in order to circumvent the provisions rclating to entry andresidence of nationals of non-Member Slates".

! C^se 59185 Reed I the Nethe.lakds l1986lE C R. 1283r5 See paras 10 32 to l(F34 betow.

'1t Case 267 la3 Diafta y Land Berlin lt985l E C R. s6'7t1 CasE C-310190 R. y the IAT and the Secretsry of State lor the Home Departnent Ex p Surinderslrs, [1992] E C.R. I4255.r3 Case C-109/01 Se.rerary of StoteJor the Hone Department v Akrich,J\d9$ent of Septemb€r

[1s5]

--

10-31 Far'.rrry MrvseRs

The ECJ has not defined what would constitute a "mafiiage of conveniqHowever a marriage could only be seen as one of convenience if the solcpose of the marriage were to circumvent the provisions of domestic

(b) Unmarried Partners

(i) The Established Position in Community Law-The SocialAdyantqges Approach

10-32 As discussed above the ECJ has resisted extending the term "spo!se-include a person in a stable unmarried rclationship, whether hehomosexual. This would seemingly end any argument that EU nationabentitled to install their unmarried partners in the teritory of a hostState.

10-33 Howeve! the ECJ has used the concept of a "social advantage" to ppartial solution to the problem faced by an EUnational wishing to bepanied by an unmarded partner when rcsiding in another Member Stateconc€pt of social advantages is discussed in Chapter 12 and is characteri"all advantages, which, whether or not linked to a conhact of employmeotgenerally granted to oational workers . . . and the extension of which toers who are nationals of other member countries therefole seems suitablefacilitate their mobility within the Community".4o

10-34 In Ree4a' the ECJ held that the possibility of a migrant worker's obtaioipermission for his unmarried partner ro reside with him could fall withinconcept of social advantage for the purposes of Art.7(2) of Reg. 16lThe ECJ considered that it would be discriminatory to allow o\arl natiresidence permits for their cohabiting partners, but to refuse to grantsame advantage to EU nationals exercising Treaty rights.

(ii) The Limitations of the Social Advantages Approach

10-35 The "social advantages" approach to the rights of residence of unmpartners is plainly only a partial and somewhat unsatisfactory solution toproblem. The deficiencies of such approach stem primadly from the factno Community law right to install an unmarried padner is crcated. Thisa number of consequences.

10-36 Firstly, the right of an EU national to install an unmarried partner inMember State is entirely dependant oq recognition through domestic legisla-tion of such right of residence for unmarried partners of that Member State!own nationals Where no such dght is afforded to own nationals, the EUnational may not use this argument to asse a right of residence for alunmaried partnsr. This will cause an obvious disparity in rights for unmar-

1 lied partners across the European Union, where the right to be accompanied

} This is to be contnst€d with ce(ain M€mber State's dom€sric int€rpretation of such conceFwhich questron more deeply the motivation for marnage& Czse 122184 Scivener nd Cole y Cekt.e Public d Aide Sociale de Chastrc ll985l E.C.R. l0Z-atCzsE 59185 Reed y fie Nerrerlandr 119861E.C.R. 1283

u 561

l0-41

by an unmarried partner is recognised by some Member States but notothers.42

Secondly, the reliance on "social advantages" will mean thal Community 10-37law rul€s do not govem the rights in question, even if they do exist in theMember States' domestic law. This means that there will be differences ininterprctation between Member States as to what constitutes an unmarriedpartner or co-habitee and the rights attained will vary between MemberStates.

Thirdly, the reliance on social advantages means there is no obligation of 10-38"mutual rccognition" of unmarried partners who are recognised or legallyregistered in one Mernber State. Thus a couple who had been recognised inone Member State may not be so recognised or obtain any rights when theymove to another Member State, creating an obstacle to ftee movement.

A final potential problem with the "social advantage" approach (based as it is 10-39on the application of Art.7(2) of Reg. 1612/68 relating to uorkert is that it rsarguably restricted to workers since there is no comparable provision toArt.7(2) in subordinate Community legislation for other free movers. Howevetthis would be an unnecessarily restrictive interpretation. The "social advan-tages" approach is clearly based on principles of non-discrimination ongrounds of nationality and such non-discrimination extends through ArLl2EC Trcaty to all EU citizens exercising their free movement rights pursuantto Art.18 EC Treaty.

In these circumstances a failure to gmnt an EU national exercising free move- 10-40ment rights the same rights in relation to unmafiied partners as workersenjoy in light of Reedas would be an unwarranted interference with freemovement rights creating an impermissible obstacle to the enjoyment of afundamental freedom guaranteed by the Treaty. It is unlikely that the ECJwould sanction a different result for a self-employed person as against aworker. Such discrimination would be contrary to Art.12 EC Treaty whichprovides that "within the scope of application of this Treaty, and withoutprejudice to any special provisions contained therein, any discrimination ongrounds of nationality shall be prohibited".

However these arguments may still be limited by the fact that no Community 10-41law right is created. Thus the potential success of such argument wouldremain dependent on establishing that a Member State does indeed grantsuch rights to its own nationals. Where no such national laws or practicesexists, the EU national would appear to be precluded from installing anunmarried Dartner.

€ Austria, Ireland, Luxembourg, Spain, Italy, Greece and most Accession States do not fecog-nise unmarried partners in national laws; Finland, Sweden, Denmark, N€therlands, France,Germany, Belgium, UDited Kingdom, Portugal and Hungary do recognise unmalried partn€rsin national Iaws, (2003)3(2) ILGA-Eunpe Ne\,slettetat Case 59185 Reed v the Nethenands II9861E.C.R 1283

Spousr

u 571

-

1042 FANIILY MI MBERS

Community law right to install an unmarried partner will not in fadsignificant problems. Thus the creation of such discrete Community hmay be unnecessary. For many EU naLionals it will be sufficient tonon-discrimiuation arguments to be able to move to another Memwith an unmarried Dartner.

1G-43 However, in those slates where no such right exists it will clearly beto deploy an argument beyond non-discrimination if those inpartnirships are not to be disadvantaged. With increasing nMember States recognising, rcgistering and in one case (the Neven legally marrying same-sex partnerships, there is an ever-growingof EU nationals and their partners who are disadvantaged as comltheir heterosexual, maffied equivalents. They will continue lo betaged for so long as there are any states which refuse to recognise theirneiships and such disadvantage creates a real obstacle to free movemqthe present time for instance a couple, who may be legally recogliDenmark, is immediately disadvantaged in states such as Spainunma ied partnerships are not recognised. This may impact in a siway upon the decision to move with the EuroPean Union

It is necessary th€refore to consider ways in which Community 1a]^] solto these problems might be found. There are two ways in which the

fi42

n)44

1H5

l0-{6

(iii) Crectti g an EU Lav Right to Install Unmaftied Partners the

In light of the existence in many Member States since the ECJ'S deciReed of a domestic law right to install an unmarried partner, the h

restdctive definition of spouse and failure to recognise unmarried coequivalent to those legally married might be overcome The fiIst is

It is arguable that the time has come for the ECJ to re-interpret the t"spousd' to include unmarried partners in a stable relationship, despiteCouncil's failure to do so.4 The decision in Reed was given nearly 15ago and it is undoubtedly arguable that in the light of legal and socialopments over the last 15 yearu, the term "spouse" should be gven-a morEeral meaning. The ECJ is mindful of such developments and,has Ipi"pui"a to il"t" rLilar developrnents in relation to iranssexuals.a5

However there is undoubtedly a risk that the ECJ would reject that argeven today. As recently as 2001 the ECJ did not consider that legal anddevelopments could iupport the conclusion that a consensus hadreached amonsst the Member States a6

ECJ to re-interpret the term "spouse"; the second is to employ an "to free movement" argument.

Re-interpreting the teml spouse

{ It is to b€ noted that Dir 2004/38 on th€ nghts of citizers does not include unmariedneis in the d€finition of a spouse, see Appendix 30a5 See Daras 10-54 to 10-5? below.6 See aase Cl2z99P D v c, r./[2001] E c.R I-4319.

t1581

:Jr"

SPoUStr t 0-51

Even if the ECJ were not prepared to go so far us to interpret "spouse" to l0 '17include unmarried partne$hips, it must surely at least recognlse sltuiltlonswhere sam€-sex partners have legally married. Although the question ofwhether a same-sex couple legally married in the Netherlands would have tobe recognised as "spouses" as a matter of Community law by other MemberStates has not arisen before the ECI a positive answer would surely berequired to be given to such question for the following reasons

A marded same-sex couple who could provide a legal document from the | 0-48Netherlands (or indeed an)ryhere else where same-sex couples can legallymarry) confirming their status have fulfilled the only relevant requiremen-ts ofCommunity law in order to obtain recognition in other Member States aT Forthat Member State to make any further enquiry or require any further docu-mentation would be unlawful as a matter of Community lawa3 The only pos-sible grounds for exclusion therefore would be those that apply generally,namely public policy, public security or public health. Given that the-assess-ment of any oi those grounds musi be made on an individual basis,ae a gen-eral finding that public policy reasons could justify the exclusion of anysame-sex married couple would surely be an affront to Community law.Furthermore, in light of both the intederence with private life that separationof the couple would involve (itself contrary to A .8 ECHR) and societaldevelopments in the European Union, is difficult to suggest that there couldnow be good public policy reasons for failing to recognise such a marriagE

Using "an obstacles to free mo,,temenl" drgumenl

Absent a redefinition of the term "spouse" it may be possible to develop an lG49argument based on "obstacles to free movement" The refusal to recognise asttble relationship is an obstacle to free movement and indeed such a rela-tionship might feasibly facilitate the free movement of an EU nalional. Thefact that an EU national exercising Treaty rights cannot take a partner toanother Member State is an obstacle to free movement This would be par-ticularly so in the case where the couple were able to co-habit in the EUnational's state of origin but apparently not in the host Member State.

As the ECJ held in the case of Bosrntn,so a provision does not need to be dis- 10--50criminatory on grounds of nationality, in order to constitute an obstacle tothe right of frce movement. Thus it would not be necessary to establish thatthe EU national suffers any discrimination /ri-A-vis the host Member Statetown nationals.

It must be recognised that in the case of non-discriminatory rules which form 10-51obstacles to frei movement, Member States are entitled to justify such rulesby reference to pressing reasons of public interest.5l These justifications are

{r Art.4 of Dir 68/360.a3 See Chapter 11a'Extr€m€ cnmrnal activities apart, see Chaprer 1450 Case C':ll5/93 Union RoFl belge des Societes de Footba Association ASBL

"' Boena ll995)

E C.R. r-4921.5r Case C-415/93 UnIo, Rot-al Belge de! Societes de Football Associatio ASBLI) Bosmanllgg5lE.C R. l-4921, para.l04.

I

tlsel

-

sexuality is not tolerated.52

10-52 Th€ recent decisions of ttLeECJ i\ Caryentef\ al'dr]i' Baumbaslsa certainlYsupport to an obstacle to frce movement argument. In thos€ cases thereinforced the view that family members may be necessaryto facilitate thecise of a free movement right and furthermore that Community law shoread in conformity with the ECHR and in particular the ght to family

The only dimculty here is that whilst the ECHR has long given rcc(to de f6cto relationships over and above de /irre relationships, it

-has

subject to a strict proportionality lest. Howeve! it would be difficultMember Slate to justify the failure to give recognition to unmarrled paships on grounds of public intercst at the prcsent stage of societal dment in the European Union wherc discrimination on ground of

tently avoided finding that a same-sex relationship amourts to "familyN€vertheless it has been prepared to accept the application of Art 8 E

10-51 F,lNrrLv Mrl,asens

to same-sex relationships, and has recently found contracting states to

must be extendcd to discrimination arising from gender reasslgnment.

10-53

l0-54

breach of Art.14 taken together with Art.8 where they refuse treatcouples in a discriminatory fashion,

'i.r-a-vr.t their heterosexual equi

In the final analysis, this issue must be addressed and solved by Commlaw It is wholly illogical that Community law is prepared to treat as a fl

ln S v Cornwall County Council56 the ECJ held that the right not to becriminated on grounds of sex constitutes a fundamental human right

member as the distant relativ€ of a worker who happens to live underworker's roof, but is not prepared to recognise the de facto telatlbetween unmarried partners tiving akin to spouses.

(c) Trunssexuals

(r) Community Law

10-55 The case of ,K857 concemed a British citizen who worked for the NatiHealth Service (NHS) for 20 years, dudng which time she paid contributionsthe NHS Dension scheme. The scheme provided for a survivor's pension topayable to a member's surviving spouse. "Spouse" meant the person to.whmihi scheme member had been married. KB argued that h€! partner, R, who badundergone female-to-male gender reassignment surgery, should be entitled lo

5: EU Charter on Fundamental Rights.

't case 6ono carpenter v Secretdri of Stote lot the Hone Depa,tnent B0o21E C l^lJ'zl1.sa Case C-4l3tg9'Baunbast a R v SecruLry oI Stutelor the Hone Department l2002lE CL

I 709155 Ka/net v Austr@, Jlrly 2'J,20035" Care C-l l /q4 s v Coin na Counry Coun. i l I t99ol E C.R. l -214].paras2|-2251 Case C lITlOr KB | ( t ) National Eeahh S1rtice Pensions Asencv 12 ) Seoetatlt oI Stale fGHealth, jndglDe ot Ja r ry '7 , 20M.

discrimination, in the ECJt view, would constitute a failure to respect di!and freedom. The ECJ did not determine whether a relationship involvitranssexual is equivalent to marriage for the pirrposes of Comrnunityuntil recently.

l l60I

Spousr t0-59

recelve lhe widowerkpension. United Kingdonlegislation, however. prevenleot.ansseXualSfIommarryingonthebasisoitheiraiquiredgende

The ECJ rejected an argument thal restricting the widower,s pensions to mar_ 10_56fleo couptes.onty was conrrary to Communiry law The ECJ hild that lhe deci_slon to restnct certain benefits to married couples. while excluding all personswho lir.ed rogerher withour being married from u.*;; ir;;;J ;#{;;",el ner a.ma(er lor lhe legislature to decide or a matrer of the interpretation ofoomesrrc tegat rules lor the national courts. Individuais affected could norclaim that there was discrimination on grounds of ,.*, profriUii.O

- oy

ttlty ol trearment which related to

It was impossible for a transsexual to marrya person of the sex to which he or she belonged prior to gend". i"^Gr_*,t-Tg:?..:1. Unired Kingdom was in breach-of i he .ief,i r. rrruiiy-in'A ri. r :r \ nn. InusrnepensloDs tegls lat ion was incompat ib le u i th the EC Treaty.

'ear ro be thal ir is contrary to l0_57lrblt rranssexuals from marrying.I and unmarried couples is not in

(11) Human Rishts Lar)

)t for private life. Article 12 ECHR 10 58Ld women of marriag€able age', toalso by Art.9 of the Chader of

Inion.se Of further rel€vance for

institutions to take measurcs ro combat d,,3,ff11"[li"3J:1h:1,u"]',.0-:""Ln Goodwih,io

-the Evopean Court of [Iuman Rights considered the position 10_59or rranssexuats rn a latrdmark decision holding that the UK Goveirment,s

failure to alter the birth certificates of transsexuils or to allow them to marlyin their new gender role was a breach of the ECHR. ffr" Eu-f"uo 6ourT.t

ence of rhe ECHR is respecr forArt.s ECHR in particular. whererportant principG underlying theis given to the perconal sphere of

'lish details of identity as indivi<l-t of Human Rights recalled therortance of keeping under reviewhaving regard to scientific and

sE Goo.lttik ' United Kinsdrh 120021 l5 E.H-RR. 18.

- ll rs nolable tlxt Art.9 of rhe EU Charrer does not restnct rhe prot€ction of the righr to mar.yto men and women"6' Goodwin I Ltmpd Kn4doz 120021 l5 E H R.R 18.6' Goodwin v Unitcd Kinsdou 12002] 15 E.H.R.R 18, para 8q.

l l6 l l

-

i ,

10-59 FAMILY MEMBERS

societal developments. In light of such developments the Europea-oHuman Rishts concluded that the treatm€nt of transsexuals nowithin the state's margin of appreciation and lhat there were oo sifactors of public interest to weigh against the interest of the indiobtaining legal recognition of a gender reassignment. Moreover,right to marry the European Court of Human Rights found no jfor barring a transsexual from enjoying the dght to mafiy under atrtstances and thus considered the failure to permit the applicant toa breach of Art.12 ECHR.62

(iti) The Future

1H0 It is now establish€d in Community EC 1aw that the failure to pesexual couples to marry is contrary to the Treaty and in breach ofrights law. If Member States fail to legalise mardages of transsexuahbasis of their acquired gender the consequence must be that they girecognition to relationships akin to mauiage.

10-61 In most Member States there rcmains a legal bar to marriage of aual on the basis of acquired gender. Howeve4 the failure of nationalreflect societal changes should not prevent the couple's being respouses for the purposes of Community law when national law wouldclearly in conflict with Arts 8 and 12 ECHR.

l(F62 In the context of free movement law, absent the ability ofmarry on the basis of their acquired gender, this would have to meanterm "spouse" is interpreted as including the stable relationship of asexual and his or her pa net where on the basis of the acquiredare of the opposite sex. The failurc to do so amounts to indirecttion on the $ounds of sex and is a breach of the ECHR.

1G{3 The ECJ's decision inECHR is incompatibleother jurisprudence thatobligations.m

KFl has made clear that such breach ofwith Community law. This is consistent witCommunitv law must be comDatible with

3. DESCEN'DANTS

(a) Under the Age of 21

1(H4 There is no definition of descendants to be found in the case law of theHowever it should include all blood children, whether legitimate or not.includes grandchildren and great-grandchildrcn. It is notable thatthe age

5'1 coodwin v United Kihgdon 12002135 E H R R. 18., para l04. lD Bellinset v Be inselUKHL 2l th€ House of Lords d€temined that UK law was now incompatibl€ with tbesince lhe UK taws relating to matrimony does not mal(e provision for th€ recognition ofreasslgnment.dca;c Il7l01 rB v / 1) National Heahh se ice Pensnns Asencv (2) secrclary of state

Heahh, jndglx.e t of Jzniuary 7,20M.6a Case 60lc0 Carpenrer t Secretary of State Ior the Eone Depa/henl l2002lE.C R 14279.

1r621

DEscENDANTSr0-58

ow which descendantsry difler from nationalrses as even younger).Itional rules.

It to insrall his spouse lG55nar lhrs rs to be inter-Le descendants of the)tive interpretation togrant worker and hisrounter to the aim ofan EU national are

tild.en/descendants,,

(b) Dependent on parents

rylaw_meanjng.The 101j6,,ebon66 ln whiih the

. . . the provision otrefrntne the reasonsessment of whemerne, namely whetherapproach has bcen

Lnd the relationsupe worker does nor

(c) Adopted and Foster Children

; refer to descen_ 10_6gem that the latterlood descendanrsie in the case of

'"g oi; r:l,rd ":"il:)sli

l l63l

-

1M9

iut ti.t toring tft"lt effectiveness" T2

intended to imPlement.

covered by Art 8 ECHR.

F,A.vrt-v MslaseRs

1M9 Interestingly even where the legislation refers to descendants' -the

I

".". ift. tiri" "children" as if Llhey are were inter-changeable llow

^- i . t^^t" ' l .h i ldren In Diatt1. t t lhei. r"'Ltn"""" iit- the ECJ on;dopted children ln D'a'14"' the.r

ir.:,io'irt"i'i-rt"'i"- v-p.*i'io"t could not be interp-reted restrictir

;;;;;e;;;;;rb opinion in the case.or Baumbasf ' '"f":'^"i t:-1

;;;;;; ; i"";"' oi th. "'po.''" and other members of the

ffiffi "*oiti;;rr"-""""ia"'iatnottt':P=::i^'*:',"913i'f I

ill?#ri.i"*'riti",t* He was of the view that the EcJ must be ablr

iiJ ii'"i,-.,itiJl,"1lir ;JGgd developments, otherwise "the relevant I

, 0-70, r is ax io ma;; J iil:ii ;ffi,g li?J ix;T5.:i:,4:l' nL',lT:'[:*rxr"r*i:*:lrui*ffi +ii4i;."Fff*ii{ig{+}*;:lili*'.'"t',tlullit.lll:'';::'ifi :1":i:Ji;#J:ff ::f,:i*i:iil".*,x1ru;m"u::tlr":;l':ruruu$::

10-71 However even ll adoptton or fostering was not to be equated-wil-h'-' ' or;;'t';t'nerheless shoutd.be eg*"d "'lf 9:fi9:II3::

ti':''#ffi il:i;il;iiil; iul"uitr'iniri.''op' or Ari l0(2) of Res 16l

I 0-?2 In interpreting,T::, fl'lJ:lhlh,: :.:i.:lii: aili;ifr::ttl: sjurisprudence regardlng tne - . ^jr .L^:- ^,r^^re.t nhitr i rq u

ftT:I#:J1*Triti*:,'r::n'*Tru;#ff*fli'$i;

l0-73

to-7 4

;x:#?':ii*'*lff 'fi f ilJ"iliHtlixr:':+!!!!i:"1^,:H;il";;";;. lr';;;tiuiiv in'tua'tt'ttp-parents and adoptive

i". oiih" i.iuti"! i" the aicending line is irrelevant

It is to.be recared t h3lllT ::fnT '1t".".,,JHiil ;lTil*i:fi'::atives being "dependent on tne E'u I , .ilil:il"t ii-irt"'-*-. ai that attaching to descendants and

ioiuoe ernbtionat as well as financial dependency

l :":: 'g"1i3f T t',"::'&iy,l,'fl,k?* 2::;tr'i'k,,"'",' of s,a,e ,h.31%-.l"Rl1'Ji;"4;,!H\;iii il;.""' and R ', se'rc'|ary or s'[arc )Deiarrnenr lZOo2) E.C x' l-709l para-zo; i::r.-#i"i,':,:l* !1:.: :',;:4#l'";Ff:{

ipat d i v Rnman ia' Appticati""'and 78030/01) ludgment o

4. RELATIIES rN THE Ascrrr.prNc LrN's

l l64l

t0_79

(a) OIhet De\enddnts

d in CommunitY law and the ECJ 10-76

is provision. However if the con-IHR it must include dt facto rela-ips. In such cases the nature and:en into account./'

(b) Li'ting as Part of the Household

Altemative to the other lamlly members, being. rJependent .91-,tlt-^lt t t(}-7t

"ri i .". i, ,ft.v ."V Ue li\ ing as pirr of rhe household This pro\ isron has \et

to receive the attention of the ECI

(c) Beyond the Scope of Regulations

nstance the Don-dependent descen-L arises of whether Community law

.hat family rnember to be insialled

The answer is to be found in the bCJ's decisiot n Baumbast'where the ECJ 10-79

i;il;il; iilt;emGi might facilitate the exercise of a free movement

.i*ht;; ;h"t ;;;;iude that firnilv member would constitute an obstacle to

i;il';;;;i. i; Bau*bo,t the persons exercising free movement rights

"iii"'"rt

a# i" "i""ut'io":;

rrt" "itiratt" were.depindent on their non--Eu

tt^t-"ui -otft"t.

The ECJ accepted that the childrcns rights could, iound a

ascendant upon whom l/Ie, werer free movement dghts. This wasr no Regulation or Directive uPonLleo:

OTTIER FANIILY MEMBERS

5. Orrr,r Fanrlv Mslrnlns

"IHf lffiHl"J#::i1 ii""J"n';'i3$'Ji"".lfi.'f l'31''1""""ii''""i'?f f i r he Hane Depatnent lzoo2lECR

' Ltll;fi'.l,1i;, ",

.l ,Apprilation no t34rrr/87' iudsmenr or November 2? ree2 EctHR

" ii*ijl"iiii ili.t: i,r ieg l orzo8 s" "'* ai'i'i"'" or rhe ECr in 9a\e c-20092 v.d'

u*)i"Zi", ^a

x*nn^ c;Iherke zhu v secrclatv of State for h! HonP Department'nctoEct

19, 2004.

u65l

-

1G{0

+-

FAMILY MEMBERS

l0-S0 It is interesting in this context to consider whether an EU national

The ECJ m-ade reference to the right to family life protected by Art.g las being a fundamental ght to which the Community law would gire

entiI led as a matter of Communiry law to install child-carers who mavfamily members in any srrict sense. lt is certainly arguable thaL Corurlaw would entrtle the EU national to install such peison. if to fail towould represent an obstacle to free movement rights. A single parenational, for instance, who requires a carer to 1oo[ after the Jhildren rhe is at_ work, might argue that failure by a Member State to grant theof residence to that child-carer either prevents the EU nationa'l from eing the frce movement dght, or interfercs with the EU national,s rircspecr lor lamily l i le. if the inabil ity ro be accompanied by the carer ithat the children musr be left with the carer in thi sLare oi oriein. Thichorce whlch in Carpenter the ECJ considered unacceptable as aCommunity law when read in conjunction wjth the ECilR.??

host Member Slare necessari ly irnpl ies rhar lhar chi ld has rhe rightaccomp?nied b] the person who is his primary carer and. accordingly. rha-t dson is able to reside with him in that Memb€r State durine his studies ToSrant permission to remain to a parent who is the primar-y carer of the ccising his right to pursue his studies in th€ host Mernber State infrinses thar

71 CasE C{o100 Caryenter v secrctary of Stote Jor the Home Depa nent I2OlZ)E.C.R

tl66l

Cn^rrrn l l

RIGHT OF RESIDENCE

This chapter examines the scope oJ the right of residence enjoyed by personswho exercise free mortement rights, both tltose \rho orc economicalb) activ(norkers, those exercising the right of establishment and protiders and recipt-ents of sertices) and the economically inactive (stude ts, Ihe retired antl thosewith a general right of resitlence).

I. INTRODUCTION

(a) Right of Restlence as a Corollary of Right to Mo\)e

The right of residence in other Member States is the corollary of the funda- ll-{lmental principle contained in Arts 2 and 3(l)(c) EC Treaty that, for the pur-pose of establishing a common market and the promotion of the harmoniousdevelopment of economic activities between Member States, obstacles to thefree movement of penons between Member States shall be abolished.lPlainly this would be impossible without the right to enter into and reside inother Member States.

(b) Deri,ing the Right of Residence from the Trcaty

The ECJ has constantly emphasised that it is the EC Trcaty itself (ot depend- l1--02rng on the case, by the provisions adopted to implement it) which is thesource of the dght to enter into aud reside in the territory of anotherMember State. This has important ramifications, notably that breaches offormalities, whether of speciic provisions of the relevant directives or theuational law of Member States relating to entry and residence, will not jus-tify denial of the right. This principle was firmly established in Royel inwhich a French national faced criminal proceedings and expulsion aisingfrom his illegal entry into and residence in Belgian territory where his wife,also a French national, ran a caf€ and dance hall. As the ECJ stated, the reg-ulations and directives determine "the scoDe and detailed lules for the exer-cise of rights conferred directly by the Tre;ty".r Since the right of residencets acquired independently of the issue of a residence permit, the grant of theperrnit itself does not give dse to rights at all but is simply a measure "toprove the individual position of a national of another Member State with

I See Cas€ I I 8r5 watuon and Belnann lr9161E.C.R. 1 I 85, para. I 6a./ Case 48175 Procurcw de.Roi '

Xoldr U9761 E.C.R 497. S€e atso for example Cas€ 3?0/90 R "Itnnigrution Appeal TtrbMal otd Suinder Singh Ex p Secrelary of Statefor Home Departmenlll992l E.C.R I-4265 whefe at para.l7 the ECJ refers to rhe rieht to entd and resde rn th€ t€rri-tory of other Member States in oder to punue an €conomic activity th€re as €nvisaged by Ans39 and 43 as a right which such persons "derive dir€crly from . . . the Treaty".' Case 4817 5 Procurcur de Roi I Roret 1197 61E.C.R 497 , paft.zg.

11671

-

11-{2 RIGIIT OF RESIDINCE

articulation" to such right.

(c) Human Rights and PtoPortionalily

11-43 Even where the Treaty and secondary legislation does not directly

l1{4 For example ir Carpenteri the ECJ held that Art 49 EC Treaty, reailight of th; fundamental right to respect for family life, gave the righridince in the United Kingdom to a third country national spouse ofacitizen who was providing services to recipients established in ot&er l

exercise of fundamental freedoms under the Treaty

States.

11--05 Further in,RaamDasts the ECJ held that by direct application of Art.

risht of residence, the ECJ has in recent years through the use ofdihts and the principle of proportionality inferred a right of residerticularly in relation to third country national family members. Thls iapparent where not to recognise such right would create an obsta*

Treaty a right of residence in the United Kingdom was conf-ernGerman national who no longer enjoyed a dght of residence as aWhilst the exercise of such right is subject to the limitations and cotrlaid down by the EC Trcaty and by the measures adopted to give

-"the competent authorities and, where necessary the nationalensure that those limitations and conditions are applied in conthe general principles of Community law and, in particular, theproportionality". Such limitations and conditions include the tihai a person'has sumcient resources to avoid becoming a burdsnsocial aisistance system of the host Member State dudng their periodidence and that they are covered by sickness insumnce in respeot ofAs to the latter condition, an adjudicator had found that Mr Baunnot coveled for emergency treatment. Howeve!, in light of the ciof the case the ECJ held that:

"to refuse to allow Mr Baumbast to exercise the right of residence whici

ltl;2Lrr,rn ,*,*"t a d R t, secrcMry oI stutelot the Home Departmehtl-7091, paras 80 94., s€€ A(.1(l) of Dt 90/364.

ferred on him by Anicle 18{ t) E.C. Treaty by virtue of f te application ofvisions of Directive 90/J64 on rhe ground that his sickness insuranc€ do€slthe emergency treatment given in the host Membet State would amountorooortionate interference with ihe exercise of that right".

a Case 48175 Procureur de Rot ! Ro)er [19?6] E C.R 49'1, paft 33.5 See Ca se 8/?7 Sag!]a 8 rcnca and Dakho chellgT?l E.CR 1495 and see also Case

Pr€ck Il980l E.C.R. 2l7l6 Case'4a175 Prccurcur de Roi v Rorer l91q E C.R 497 , pala 231Case c-4oloo Caryenter v Secrera,v if State lor the Hone Depa ment W0ZIECE-

t1681

r 1,09FoRMALITIES

2. FonNt.qlrrrss

-rred

personsr dnd Dir ' s i lso rstud :nr<lr0 Dir. 90/364 (general right oI res'dencer' urr r

" c i* iet is i****7" Roi lRo)e/11976lEcR497 lrr . t /Mpar()'1 (]a* Aat I5 rrocurew ae iemiume er la xinophobie ASBL ( MRAI )rl Case C459199 Moapnent cot'tre 1e racisme'

!.tr!#x;;{i1:H:f;};}"'inl;, ",r

u ". 4e'7, p".a14.

ralities are the same in respect of 1l-{7

{slation. For workers the relevanta8/360 on the abolition of restrrc-

(a) Declaratoty Effect of Residence Permits and Visas

rstified.

u 6el

--

I.11-10

11-11

11-.09 RtcFIT of RESTDENCE

MRIX decision was based. Further, in lftlic, the ECJ did not

of the infringement. "ra Thus where a third country national is able to-proof of identity and marriage to a national of a Member Statejrefusal of a permit nor expulsion "on the sole ground that he has e_nterritory of

-the Member State concerned unlawfully" is permitted.t'

It misht be considered dimcult to square the decision in MRIXI:decision of the ECJ in Akrichts in which the EcJ appeared to rcthird country national family member to be lawfully residentMember State if intending to move to a second Member State witinational exercising free movement rights. Detailed analysis of the Iof the ECJ n Akrich is provided in Chapter 5 More important forD,,$ooses Ak ch did not consider at all either the decision in Mbr lhe fundamental principles long established by the ECJ on

and residence than is prescribed in the ptovisrons themselves.

11-12 Thus for example in relation to the dght of entry of workersArt.3 of Direciive 68/360 Member States may require only thea valid identity document or passport.re Article 3(l) states "Membq

shall allow the persons referred to in Article I to enter their territorlon production of a valid identity card or passport". Articte 3(I) ot731148 is in substantially the same terms.

11-13 In Commission v Netherlandlo anaction was brought by the Ca declaration that the Netherlands had failed to fuifll the obligatioasiby Directives 68/360 and 731148 by maintaining in force legislation-citizens of Member States to answer questions posed byborder offi<i

ta Case C4iglgg Mouvement contre Ie ftcisne, I antisamitisne et la xanophobie ASBL

t"fj"JtriifJfrtlK*?*"'-1'1?l;io'io-,1;o -o u

"o'* 6s/360 and 73l,4E

langlage of Dir 68/360 contemplates marriages c€lebrated abroad sinc€ the ref€r€Ei

umints" issued bv "the competlnt authonty of the state of origin or the state Eh

iuC^iC +SgtgS Uo"u".ent conrre leracrme l'ottis'mitisne et la xanophobie ASBL

v Belpian Stal? 120021E.C.R I-6591, para 80

" ci*ctssl'is ui,r"^ent ronrc te n.isme l a tiseniu\ne et Ia xinophobQ A'BL

v,8elsidr Srrr? Il002l E.C R I-6591''c;C-loei0l Seirerarv of Sntelor rhe Home DePa nent v Akti''.judsnen' of

B.m1te iase 32t187 Connission ! Belsilm Il989lE CR 991xCas€ C-68/89 Conntuion I Nethe andiIlggllE.C.R I-2537

oblieations on a Member State to admit a third country natioaalmember of an EU free mover who arrives at the border. In all therstances, the ECJ'S decision in lkrr'rl cannot be regarded as having ion the Member States' obligations arising from the decision of thMRAX.

(b\ Member States Cannot Ask for More than Pennitted in

Although the Directives are slightly diflerently cast, it is a fundamerciple that Member States cannot ask more of those exercising righs

[170]

q

FonMALrrtls

the purpose and duration of theirjourney and the financial means at their dis-posal. The Dutch Government argued thalthe Directives appliedonly to thosewith a right of residence by virtue of the EC Treaty and that Member Stateswere entitled to carry out spot checks at frontiers to investigate whethernationals have such right of residence. The ECJ granted the declaration,emphasising the gene|altr9htlo entet enjoyed by nationals of Member Statesinthe exercise of the various freedoms. The condition that a valid identitydoc-ument or passport be produced could not be supplemented by a requirementof proving inclusion in any particular category covered by the directives. Normore generally could the obligation to answer questions put by frontier offi-cials be a precondition for entry. The lawfulness of control on €ntry is limitedto assessing whether the identity document produced is valid.

It is clear that Art.3 of both Directives 68/360 and 731148 enables Member 11-14States to require only the production of an identity card or passport. AMember State may not impose any further border checks or require any fur -ther documentation as a precondition to admission. This principle was con-frrmed in Commission v BelgiumLt although at first blush the decision mightbe thought to dilute the principle.

The case concemed the carrying out of checks at the border of a person's res- ll-15idence permit in order to ensure compliance with the obligation imposed byBelgian law to carry such permit. Th€ Belgian Govemment argued thatinspection of residence permits was not a frontier control but part of a gen-eral system of police checks car ed out habitually throughout Belgian terri-tory to which all inhabitants are liable which may "incidentally" be carriedout at the same time as the frontier control. The Commission on the otherhand argued that the controls carried out at the time of entry added to thcrequirement of a production of an identitycard. The ECJ did notconsider thechecks to be inconsistent with Art.3. In particular therc was no dispute that thecontrols were caried out "sporadically and unsystematically" and further thatthey were part of a system of internal control exercised by Belgium over all itsinhabitants. As regards such internal controls the ECJ h€ld:

"The controls at issue are not a condition for the €xercise of the right of entry intoBelgian territory and it is undisputed that Community law does not preventBelgium from checking, \i/ithin its ter.itory compliance with the obligationimposed on persons enjoying a right of residence under commutrity law to carrytheir residence or establishm€nt permits at all times, where an identical obligationis imposed upon Belgian nationals as regards their iientity card".22

'

It was crucial to the ECJ'S decision that the checks were in fact part of a sys- 11-16tem of internal control. Such checks if carried out at the bofder outside ofsuch system of intemal control would constitute a barrier to the free move-ment of persons and be unlawful if carried out in a systematic, arbitlary orunnecessarily restrictive manner.

: Ca'e321t81 Connrs o, y A?/a,rm llq89l E.C R. 9q7t: Ca:e 321t87 Connrssto, y 8?k/',- ile89i E C.R ee7. para I2.

uTll

--

11-16

t1-17

l1-18

11-19

t1-11 RIGHT oF RESIDENCE

k\ Failure to Comply with Formal ies

As is clear from the decisions of the ECJ in Royer23 and MRAX,taperson concerned is able to fulfil the relevant conditions laid downcomply with formalities will not in itselfjustify interference with theeither entry or residence, whether by refusal and return at the bodexpulsion thereafter (nor indeed could any such failure in itselfthreat to public policy). This is because such measures would ne

ghts conferred and guaranteed by the EC Treaty,25 Furthermore, tlary to the principle that Member States cannot ask for more thatr ited in the provisions themselves is that all forms of punishmemprohibited [or disregard of a provision which is incompatr'fCommunity law. This was the position in the case of the national

punishable by fines, provided always that they are at a l€velproportionate to the gravity of the ollence.

(d) Tine-Limits for Providing VisLs and Residence Permits

tt-20 Directives 68/360 and 731148 are silent as to the period of time withinMember States are required to issue visaq although Menber S

sions considered by the ECJ in Sagalo26 which required workers togeneral residence permit instead of the document provided for in68/360.

On the other hand this principle does not preclude the applicationtrons to those exercising free movement rights for infringemeDt ofprovisions which have been adopted in conformity with Coprovisions. And moreover, as stated by the ECJ it Royer..21

"Community law does not prevent the member states from providing, fofof national provisions concerning the control of alieng iny appiopritions- other than heasures of expulsion from the territory-neceiiary itensure the emcacy of those provisions"

What are the possible sanctions for breaches of formalities? InECJ confirmed the entitlement of national authorities to imposerespect of such breaches "comparable to those attaching ro ;iDornationals". However penalties would not bejustified if so disproportithe gavity of the infringement that they become an obstacle tomovement of persons. This would be especially so if the penalty ilmprrsonment. In practice this means that breaches of formalities

obliged to allord third country national family mernbers with "ever;-for obtainins visas".

11Case 48115 Proatrew de Rot y Rorpf llS76l E.C.R. 49?.)'CaseC 45qtq9 Mouvencnt.onli te mcism?. l antisinilisne e! Ia xinophobe ASBL,v Delsian State 1200218.C.R I 6591:i See also Case 157/?9 R l' Pieck tl9801 E.C R 2171, particularty para 18.,6 Case 8t11 Sasuta IIgTTl E.C.R. i495 -11 Case 4817 5 Proamr de Rol r Rrr,?r [l 9?61 E.C.R .4o7. pa.a.42.?'Case 157/7c R v Pi?ci . 9801 E.C.R. 2171, para.I9.

i

11721

FottttteLrttts ll,-25

As to residence permits, Arl.5 of Directive 64l221'?e provides that "a decision 11-21to grant or to refuse a first residence permit shall be taken as soon as possi-ble and in any event not laler than six months from the date of applicationfor the permit". The provisions of Directive 641221 apply to each cat€gory offtee movet.3o

Neither affording "every facility for obtaining visas" not the obligation to 11 22issue a residence permit "as soon possible" are defined by reference to anyoeriod of time. However. it is clear that such docum€nts must be issuedpromptly and without delay since delay could impair the very substance ofrights given by Community 1aw by hindedng their exercise. Furthermore anyunreasonable or excessive delay would be disproportionate and unlawful.None of the forrnalities raise particularly difficult questions: on the contrary,most are straightforward matters.

These propositions clearly reflect the views of the Commission which has 11-23instituted proceedings against Spain for its failure to take a decisionconcerning a residence permit promptly.rr As stated by the Commission:

"The Member State must adopt the decision concerning the residence permit assoon as possibie and in any event not later than sL\ months of the date of applica-tion, it being understood that thrs maximum period of six months is to be takeninto account onll in cases where examnation of the application is interrupted onthe grounds of public policy".r']

ln sum the question of what is prompt will depend on all relevant circum- 11-24stances having regard to the factors here mentioned. Absent substantial jus-tiication residence permits or visas should be issued in terms of days orweeks, rather than months. Certainly if the 'facility' oflered by a MemberState to a third country national family member to obtain a visa was an inter-view with a consular official at an overseas embassy, in some six months'time, this would be contrary to Community law

(i) Time Limits Imposed on Applicants for Providing NecessaryDocuments to Obtain Residence Petmit

As discussed, Member States are obliged to act promptly in providing free 1l-25movers with visas and residence permits. However there is no correspondingobligation on the free movers themselves to obtain residence documentswithin a prescribed period. Thus it would be contrary to Community law fora Member State to make provision in its legislation for the giving of auto-matic notification of an order to leave the country to Union citizens who havenot produced the documents necessary to obtain a residence permit within a

l'Dir. 641221 of Febmary 15, 19(14 on the co-ordinatron of special m€asuies conceming themovement and residenc€ of foreign nationals [t963 54] O.J Spec. Ed 117r0 As extended in rhe pr€amble to Dirs 68/360; 731148; 9Ol1(A;901365

^1d91196 and extend€d by

Dir. 72194 to beneficiaries of Reg 1251/70rt CaseC 15'1103 Comnksion I Spainl2OO3lO.L Cr35l23.rr Emphasis added.

+,.

lr73l

--

(e) Fees

11-26 Directives 68/360 and 731148 distinguish betw€en fees for residence

prescribed period. As pointed out by the Commission in proceedinpshrted asainst Belsium:"

"mhe fact that the administrative procedures for the grant of the residence per

hivi not been complied with may not lead to a pe[alty suchas reiusal to grant

risht of residence or removal from the territory which would eflectively deny tac-tual right of residence conferled by the Treaty The notification of an order

leave thiterritory may be based not on excluslvely administrative grounds' b^ut

facts leading to-the conclusion that the pefton concerned does.not.fulfilconditions sit for his right of residence by one of the lelevant ditectives"'

and visas.l The provisions contain a general prohibition on-the payment

charges for residence permits (to be issued and renewed free of charE

ffo*?ll"t *tt.t" a Member State charges its own nationals for the issue

identity cards the general prohibition against char-ging becomes a limitad

io oo i-o"nt not-exceedig "the dueJand taxes" charged for the issu€identity cards. In relation to visas on the other handr5 these must be fr€E

ll-25

charge in all crrcumstances.

RIGHT oF REsTDENCE

(l) I/tras

(1) EU Nationals

tt-27 As discussed, EU nationals exercising free movement rights must be al

to enter the teritory simply on production of a valid identity card orport.Jo The provisions expressly provide further that Do "entry visa or eq

if.nr ao.u..ot' mav bi demanded of such EU nationals ln Pr?ci]t

Brit ish CoverDment argued that the phrase meant excluslvely^ a (

issued before the traveller arrives at the frontier in tbe iorm ol an

ment on a passport or of a separate document, but not an endo$s

stamped on a pisspo at the time of 4rrival giving ^permissio!

to, enter'giJ i.i."t.o ttt.

"uument. The phrase coveri"any formality for the

of granring leave t6 enter tbe teiritory of a Member State which is*itiiu pu.ipoa or identity card check at the frontier. whatever may be

" Case C-408/01 Cor?ni$ ion I BPIcitm pendirtgbEfore the ECJ'a Art.c, Dir 68/360 (residenc€ permit. and visas): An.? Dir .71/148

(rcsidence pernuts aDd

aocuments ana certincates required for the issue and r€n€wal of resrd€nce documents are 1

i",ft" ""-"

*"v ^

*"a"nce ierrnits themselve$; An 6 Reg .125 U7o.G^esid€nce pe,rmits);

iji,.'lvi+ i."iia.'"" perrniis); Art.2 of Dns 90/3&,90/35s and 93/96 (applvngmurandis fte Drovisions oI Art 9, Dr' 68/160)fi"

"Jairi""li^ bir 68/100 as provided bv An.9.2 in relalion ro !h€ stamp placed

conuact of emplotment of a seasonal worker (as referred to in An 8(2)) - , .

;A; i Di.r 6b/le0 and 7ll148, and Arl l. Dirs 90i 364. 90i 105 and q3/96 (applvinc

nrrandir $e Drovisions of Arl l of Dir' 68/360)

' Case I5?/?q R ! Pprk [1980j E.C R. 2171, in which case a D]lch o-atronal workrog '[

*1o.. o*rpotion "nt.v "as

srimped "given leave to enler lhe United Kingdom for srx

was prisecured for having knowing.ly remained beyond the six months givm

l1'741

FoRMALITIES l1-30

place or time at which that leave is granted and in whatever form it may begranted."l8

(ii) Family Meubers

The position for family members who are not nationals of Mernber States is 11-28different, The provisions do enable entry visas or equivalent documents to bedemanded of third country nationals, although Member States arc obliged toafford to such persons "every facility for obtaining any necessary visas "Plainly this obligation falls to be broadly construed consistent with funda-mental nature of the rights being exercised both by the EU national and hisor her family membels. It would certainly not be met by the olIer of an inter-view at an embassy for consideration to be given to an application for a visasome months away. Following the decision of the ECJ in MRAX3e howeverfor the third country national family member who arrives at the border with-out a visa there is to all intents and purposes little practical differcnce, at leastin terms of the rjght of entry between his or her position and that of the EUnational.

The first question considered by the ECJ in MRAX was whether the provi 11-29sions of the Directives, read in the light of the principles of proportionalityand non-discrimination and the dght to respect for family life, allowed aMember State at the border to send back a foreign national maffied to aCommunity national who seeks to enter without being in possession of eitheran identity document or a visa. The ECJ acknowledged that the exercise ofthe right of entry could be made conditional on possession of a visa.However the obligation to accord every facility would be denied its "fulleffect" unless visas were issued without delay and as far as possible at theplace of entry into the national teritory.l0 Further, in view of the importanceattached to the protection of family life it would be disproportionate andprohibited:

"to send back a third counhy lational mafied to a national of a Member Statewhere he is able to prove his identity and the conjugal ties and there is no evidenceto establish lhat he rcpresents a risk to the requirements of public policy, publicsecu ty or public health within the meanitrg of Article 10 of Directive 68/360 andArticle 8 of Directive 731148".4r

In sum the position is as follows. Member States are er'titled to make the 11-30exercise of the right of entry for family members conditional on possessionof a visa. In practical terms this may mean that the third country nationalwho tries to travel without a visa could face difficulties because of carrier

r3 Moreover to requrre such endonementwould ofend the principle that Member Stat€s cannoiask for mor€ ihan permitted h the legislation d6cussed abov€. Following Preci, the UK's legls-lation was changed: by s7, Immigration Act 1988 tlose ex€rcising Treaty d8!ts do not require"leave to enter orremaiD".t'C459199 Mouvenent contrc le racisme, I'an semitisme et la xinophobie ASBL (MRAX) t'Belstu,n [2002] E C.R. I-6591.ao C459199 Mouvement coklte Ie rucisme, I antiremitxne elt€l8u,r [2002] E C.R I-6591.alCA59l99 Mouvetnent contre le nasne, I'anisani sne et la xanophobie ASBL,e/sftor 120021 E.C.R. I-659 L

la ,enophobie ASBL (MRAX) ,

lr7 sl

(MRAX) t,

--

11-30 RIGHT oF RESIDENCE

sanctions. For those family members who do make it to the border withoudocuments but are able to prove their identity and relationship this potential

orecondition is irrelevant since they will not (subject to the public policy pro-

viso) be able to be returned. This does not mean, howevet.that they mighnot be liable to lesser sanctions than being returned for having failed toobtain necessary visas. The ECJ has suggested that such less€r sanctioEcould take the form of administrative fines

Family members may be required to provide confirmation of the family retionship. However obtaining visas cannot be made subject to any requrments teyond such confumation. Thus for example evidence of means-support must not be rcquired of the third country national spouse ofworker or work seeker.

(E) Residence Permits

-31

t1-i2

11-33

11-34

In respect of each category of lree mover the documentation rsquired toproduied by both principal and family member in order to obtain a reslderpermit is considered below. The documents themselves are issued as proof

ih" ti*ht of residence and are required to take a particular forrn (enti

"Resilence oermit for a national of a Member State of the EEC").

The corollary to the proposition that residence permits are declaratory of tiunderlying rights to which they relate is that possession of a residence pern

"unnoi b. tul.tt to be proof positive of the extstence of a right lo remai

Thus for example the holder of a fwe-year resid€nce permit who is the thicountry national spouse of a worker cannot rely on this document toexoulsion where thi third country national and worker are not merelyraied but divorced.az This is because the right to remain expires on diand possession of a residence permit is not proof to the contrary S-ubjectsuctrdivorced spouse\ having any independent right to remaln (as lor exa

ole it Baumbq;t41 rhrough her child), such a divorcee may face expulsion iiccordance national laws and human rights obligations.

The rishr of entry is evidenced by production of a valid identity card or prnort.4-Article 4 oi Directive 68/160 and A rt.6 of Directive 731 148 la1 downiequirements for obtaining residence permits. Member Statesmay requircIduction of tbe document with which the person enrered the territ

However the person might no longer have the actlnl ideriily card or passl

with which he entere d. lr Giagouiidi{G the ECJ stated that the purpose of

Art.4 of Directive 68/360 requiring ont production of the documeDtwhich tbe person entered for the issue of a residence permit was."to Prethe host IMember State from imposing disproportionate conditions on

a? See Case 261183 Diatla v La rlBe in ll985lE C R.56'1a1 caj€ C4l3tgg Bambast and R \) sedeturtt of Slate fot the Hone Departne t 120021I-7091. See ChaDter 10.a See for example Art.3(l), Dir 68/360

" i.' ioi *"-ir.,c..t.+, Dir 6s/360 (such docurnent will be the aforementioned identitv cad

A6 C;se C-376t89 Giaso nidis I Stadt Rxutlinsmll9gll E CR I 1069'

tl761

SpECrFrc Rrcrrrs or. RlsrDENcD FoR EU NATIONALS l1-39

exercise of Lhe right of residence". Thus the ECJ held that it would be contraryto the principle of freedom of movemeut for workers if issue of the residencepermit were to be made conditional "on productiol of that same document".

3. SpECrFrc Rrcr,rrs oF RESTDENCE FoR EUNATIoNALS AN.D THEIR FAMILY MEMBERS

(a) The Rights of Residence for the Fite Categories oJ Free MoT er

(i) Workers

The specific rights of residence for workers (and members of their families to 11-35whom Reg. 1612/68 applies) are set out in Directive 68/360.47

O b t ainin g re s i den ce p e rfi it s

The Directive identifies two discrete rights for workers exercising free move- 11-36ment dghts. Fifstly, the dght given by Art.3 to enter the territory of M€mberStates simply on production of a valid identity card or passpo Secoudly,the right of residence which by Art.4(l) Member States must grant to thoseworkers able to produce certain specified documents (from the worker thedocument on which the worker entered the territory and confirmation ofengagement from the employer or a certificate of emplo).rnent). Article 4(2)obliges Member States to issue a "Residence permit for a national of aMember State of the EEC" (to take the form set out in the Annex to theDirective) as proof of the right of residence.

Validity

Article 6 deals with the residence permit itself. The article distinguishes 11-37between emploJrment which will last for more than 12 months and employ-ment of between 3 and 12 months. In the former case the residence p€rmitmust be valid throughout the teritory of the issuing Member State for atleast five years and be automatically renewable.

Validity of the residence permit is not affected by breaks in residence not 1l-38exceeding six months or absence oD military service, It is to be inferred that abreak in residence of more than six months may provide grounds for with-drawal of the permit, at least until the Art.4 documents are obtainable.

In the case of employment which will last for between 3 and 12 months a 1l-39"temporary residence permit" shall be issued. The validity of this documentmay be limited to the expected period of the employment. A seasonal workerwith a contract of employment stamped by the compelent authority of therclevant Member Statea8 shall also be issued with a temporary residenceDermit of more than three months.

a7 Council Dr 68/360 of Octo ber 15. I 968 on the abolition of restflctlons on movem€nt and res-idence wrthin th€ Colnmunity for workers of Memb€r States and tneir farnilies [1968] OJL251^3.a3 As provided for in Art.8(l)(c)

lr7'7)

-

.J,-

RIGHT oF RESIDENCE11,40

Renewal and vt ithclrawal

11-40 The live-year residence permit is automatically renewable. However ArLDrovides for an exception in the case of rcnewal for the first time whereworker has been involuntarily unemployed in the Member State forthan 12 consecutive months in which case the period of the residencemay be restricted to not less than 12 months. This applies only in relatiorrenewal for the first time. A temporary residence permit on the otherautomalically renewable. On expiry such worker could obtain atemporary permit on production of the documenls referred to in Art.4.

1l-41 Lengthy involuntary unemployment (even for example throughout afive-year period of residence) would not justify refusal of furtherBeyond the specific Art.7(2) exception, Article 7(l) provides that a valididence permit may not be withdrawn solely on the ground that theno longer in employment either because of temporary incapacity (as aof illness or accident) or because of involuntary unemployment.

Workers not issued rcsidence permits

1142 The deht of residence is whollv discrete from the issue of a residencewhich has only declaratory effect. Article 8 makes specific provision forcumstances in which the right of residence is to be recognised by MStates without issuing a residence permit. These are workers whose actirinot expected to last for more than three months. For such persons (subjone exceptionae), the dooument with which the person entered togethera statement by the employer on the expected duration of the employmemsumcient to cover his stay.

11 4J For frontier workers the competent authority of the State of emmay issue a special permit valid for five years and automaticallyHowever this is not a residence oermit. For seasonal workers whoseof employment is stamped by the competent authority the dght ofin the ter tory is also recognised without issuing a residence permit. Itrcases the worker may be required by the competent authority of the MState to report his presence in the tefiitory

Work seekers

tt-44 The right of free movement extends not only to those pursurngactivities as workers, but includes those who wish to pursue such activitiAs recognised by the ECJ in Antotlissensl there is no Community proviriprescribing the period during which Community nationals seekjngment in a Member State may stay there. Indeed work seekeF are not

ae A stat€men{ by the employer is not required n the case of workers colning withrrprovisions of Dir.64/224 on the attainment of freedom of €stablishment and freedom to pns€wices of the aclivities of interm€dianes m commerce, industrv and small craft rndustrie!

' S€€ Chap 7.5t Case C-292189 The Aueen t lhtnictotion Appeal Ttibuhal, Ex ? Antonissen t199llE.C.R-paft27

l l78l

with at all in Community legislation,5z even although free movement rightsextend to them.

However the absence of such Community law provision cannot mean that the 11-45right of residence enjoyed by work seekers is not required to be recognised byMlrnber States. To the contrary, at the very least in Member States whosenational laws require persons to register their prcsence within three monthsand where the absence of a residence permit may give dse to penalties (as lsthe cas€ for example in Belgium), Community law would the require the issueof confirmation of the right to rcside. Failure to so recognise the dght of res-idence by such Member States would fundamentally undermine the right offree movement otherwise enjoyed. At the same time in Member States whichwould not so penalise work seekers (as would be the case for example in theUnited Kingdom) the right must still be recognised-even by analogy withArt.8 of Directive 68/360, without issuing a residence permit

In these cases io|l]lowi{rg Antonissen,5r the right must be recognised (whether 11-46by confirmation of the right to reside or without issuing such permit) in thefiist instance for six months. At the end of such period a person who hasfound work would be entitled to a residence permit on normal principles.Otherwise a further period of recognition should follow if the person con-cerned is able to provide evidence that he is continuing to seek employmentand that he has genuine chances of being engaged. This is because. as statedin Antonissen, ape$on could not be required to leave the territory of the hostMember State in such circumstances.

(rl) The Self-employed and Service Protidets 1nd Recipients

Obtaining the ght of residence-self-employed

The specific dghts of residenc€ for the self-employed and service.providers 11-4?and recipients are set out in Directive 73l148.5a As recognised by the ECJ inRoyer55 ihe provisions of this Directiv€ are substantially the same as those inDi;ective 6ti/360 for workers. Thus the jurisprudence in relation to one isequally applicable to the other.

51 Ar palz.ll in Antonissenthe ECJ consider€d a d€claration rccorded in the Council m|nutes atthe iime of the adoption R€g 1612168 and Counc Di. 68/360 which referred to work seekersin the following ter;s: "Nationals of a Member State as ref€rred to in Aficle I [of lhe directive]who move to ;nother M€mbu State m ord€r to seek work there shall be alowed a minimumperiod of three months for the purpose; in the €vent of th€ir not havmg found employmenr byihe end of that period, tlleir re$denae on the territory of this second Stat€ mav be brought to anend".HowevertheECJdecl inedtousesuchdeclaral ion' forthepurposeof interprennga,pro-vision of secondary l€gistatron wh€rq as in this case, no reference is made to tb€ contenl ot thedeclaration in the wording of the provhlon ir questioD Th€ declantion ther€fore has no l€galsisnificanc€ "5tVzsec 292189 The Quee v Imnryntion Appeal Tibundl Exp Antoussen l199ll E C R ?45'paras 2l 22.ia Council Drr ?3/148 of May 21, l97l on the abolition of restrictions on movement and resr-denc€ within rhe Communrty'for nationals of Member States with regard to establishm€nt andthe Drovisions of services.'5 Case 48n5 Procureur de Rot t Roler [976] E C.R 497,PzrLls

SpEcrFrc RrcHTs oF Resrosr{cs roB. rHe EU NATIONALS 11-41

[17e]

' -

l1-48 RIGHT oF RESIDENCE

11-48 As with Directive 68/360, Directive 731148 also deals with the discrereof entry and residence. As to the right of entry Art.3 is cast in the same

11-49 Article 6 provides that an applicant for a residence permit is not tolrequired to produce anything other than the identity card or passport id

hand and seryice providers and recipients on the other.

whlch the person entered and proof that the person comes within the classpersons to whom the Directive applies.

Validhy

ll-50 In rclation to the self-employed, Art_4(1) of Directive 731148 deals with

as Art.3 of Directive 68/360. As to the right of residence, Directive 73ldistinguishes between the dght of residence for the self-employed on the r

who establish themselves in order to pursue activities as self-employedsons and provides (somewhat confusingly) that the right of ,,permanentdence" shall be granted to them "when the restdctions on thes; activitiesbeen abolished pursuant to the Treaty". Quite apart from the fact that restsitions on such activities remain,56 the word "permanent,, should be readrcontinuous when compared with the position of service providers.5T AsDirective 68/360. Art.4(l) ol- Directive 73l148 provides forlhe issue as pnof the right of residence of an automatically renewable five-year residtpermit entitled "Residence Permit for a National of a Membir State ofErrropean Communities". Article 4(1) provides also that validity of thedence permit is not affected by breaks in r€sidence not exceeding six m(or absence on military service.

Reneh,al

ll-51 Iq terms whjch reflect Art.7(l) of Directive 68/360, Art.4(l) also pthat a valid residence permit may not be \rithdrawn solely on thc !that the person is no longer in emplolment because he is temporadly ipable of work as a result of ilhess or accident.

Obtaining rcsidence permit seryice proyiders and rccipients11-52 As to service providers and recipients, the right of residence is dealt with

Art.4(2) which provides that the right shall be of equal duration with Ipenod dudng which the seryices are provided. Where such period erthrce months the Member State in which the services are Derformedissue a right of abode as proof of the right of residence. In practice dmeans the issue of a five-year residence permit subject to the productiotrthe Art.6 documents. Where the pedod does not exceed threeArt.4(2) provides that the identity card or passport with which the

fiv€ yean and automatrcally renewabl€. If p€rmanent required the grant of a rcsidenc€ peftiindefinite duration An.4( | ) would not refer to a five-year minimum. Mor€over if not consrlas suggested there would have been no reason for the adoption of Dir. 75/34 giving ',the riremain perman€ntly" to the s€lf€mplo)€d in certain circumstances

l l80l

SpECIFIC RIGHTS oF REsTDENcE FoR TnE EU NArroNALs 11-56

entered is sufficieot to cover his stay, but such person may be required torcport his presence in the teflitory.

(lil Students

Specific rights of residence for students are set out in Directive 93/96 58Article I of Directive 93/96 requires Member States to recognise the right ofresidenc€ for students who are nationals of Member States not enjoying thatright under other provisions of Community law5e The student must assurethe Member State by means of declaration or by such alternative means asthe student may choose that are at least equivalent, that he has sufficientresources to avoid becoming a burden on the social assistance system of thehost Member State during their period of residence'. The student must bealso enrolled in a recognised educational establishment and covered by sick-ness insurance "in respect of all dsks in the host Member State".

ln Commission r, 1raly60 proceedings were brought against Italy because stu-dents were being requircd to prove their ability to suppo.t themselvei ratherthan provide the relevant assurance by means of the declaration prcscribed inArt.l. The ECJ stated that such practice was unlawful. Ii was evident fromthe wording of Art.1 that the conditions for obtaining the right of residencedid not include any requirement to have resources of a specific amount, evl-denced by specific documents. Member States cannot require more than islaid down by the Directive (here the assurance by declaration or altemativemeans of sufficiency of resources, rather than evidence of any such resourcesthemselves).

In practice students at the outset of their stay may 6nd dimcult:rcs in proingtheir means; it is for this reason that the Directive requires only an assuranceby way of declaration. It is to be noted, however, that neither enrolment norsickness insurance is a matter in respect of which an assurance can be given.Rather the Directive refers to the establishment of the facts that the studentrJ enfolled and r.s covered.6r

The right is expressly restricted in Art.2 of the Directive to the duration ofthe course of studies in question. Such limitation as to duration will apply toany person exercising free movement dghts for the purposes of study62Article 2 also provides that the dght is evidenced by a residence permit63

53 Councrl Dir 93/96 of October 29, 1993 on th€ dght of residence for students (replacing Dir.90/366 following suc.essful chall€nge to the legal basis oI the former direchve in Case C-295l90Pannmear v Couwillt992l E.C.R l-4191)5e See ChaDter 9.60 Case C424198 Comni:tion y lat [2000] E.C.R. 14001."'CaseC 424198 Connissiox v ltat 12000j E.C.R. l-4001. para.44."' See Case C-157/89 Raulin v Ministet wn Onderyijs en Wetehschappeh |9921E.C.R l-rl27where the ECJ considered th€ nght of residence for students derived from [Art.7 and 128 ECTreatyl and stated (at para 34): "It follows that the principle of non-discrimination with regardto conditrons of access tovocational trarning deriving hom Articles 7 and 128 of th€ EEC Treatyimplies that a national of a Member State who has been admitted to a vocational training coursein another Member State enjoys, in this r€spect, a right of r€sidence for th€ duration of th€

6rAs in otler prcvisions entitled "Residence p€mit for a national of a Member State of theEEC".

1l-53

1l-54

1l-55

ll-56

usl l

l---.1

tt-57

11-58

11-56 RIGIIT oF RESIDENCE

which may be limited to the duration of the course or to one year (annually) where the course lasts longer. For the purpose of issuing thedenc€ permit the Member State may require only the presentation of aidentity card or passport and proof that the person meets the Art.ltions. Article 4 provides that the dght of residence shall remain for asbeneficiaries of that risht fulfil the conditions laid down in Art.l.

(iv) Retired Persolts

The specific rights of residence for employees and self-employed personshcve ceased their occupational acrivity are contained in Directive 90/165.

s Dir. 90/365 of June 28, 1990 on th€ right of residence for employees and s€lf-€mployed pe|so[rwho have c€ased their occupational activity.65 As in other provisions €ntitled "Residence pemit for a natjonal of a Member State of tEEEC".66 For example Art.6, Dir 68/360 and An.4, Dir. 73lI4867 Dir. 90/365 of June 28, 1990 on th€ right of residence.

The right of residence is provided by Art-l of the Directive to nationalsMember States who have pursued an active as an employee or self-empperson provided that they are in receipt of sufficient pension or benefits sonot to become a burd€n on the social security system and provided theycovered by sickness insurance. These are matters of which proof willrequired. The right (as in the case of all the economically inactive) islinked in any way to the person's having previously exercised freerishts.

11-59 Article 2 deals with the length of validity of the residence permit.65 Themit is issued as evidence of the exercise of the sht of residence for fiveon a renewable basis. Ariicle 2 however differs from other provisionsprovision for five-year residence permits66 since Member States are givendiscrction to require revalidation of the permit at the end of the firstyears of residence. This will mean that the persons concerned will againto demonstrate satisfaction of the Art.l conditions if required to doHowever this can happen only once, namely at the end of /re]trul twoof residence. Thereafter a renewable five-vear residence Dermit must be iwithout the possibility of further revalidation. In practical terms therebe little difference between revalidation and renewal, since Member Srequire production of the same documents on renewal in any event.

11-{0 In terms identical to those in Dircctive93196, ArI.2 also provides that forpurpose of issuing the residence permit the Member State may requirethe presentation of a valid identity card or passport and proof that the p€rson meets the Art.l conditions Article 3 provides that the right of rcsishall remain for as lons as beneficiaries of that risht fulfil the conditions laidown in Art.1.

(v) S e lf-sffi cient P e rsons

ll-61 The specific rights of residence for self-suticient persons ate contained inDirective 90/364.67 Article I of the Directive Drovides that Member States

l l82l

SPTCTFIC RIGHTS oF RESIDENCE FoR TI{tr EU N'qrloN'lt-s 11-{6

shall srant the riaht of residence to nationals of Member States who.do not

"nllu"*"tt tl*tt, inaer other provisions of Community 1aw provided,they are

i"'"."Jtv 1i?tt." insuranc'e and have sufficient resources to.avoid becom-

inn u Uurd.n on the social assistance syslem of Lhe host Member State dur-

in! their period ol residence. As with retired persons these mallers musl to ne

proved.

Article 2 is identically worded to Art.2 of Directive 90/365 in providing fot ll-{2

ih;"*; ;i ; fl""-y"ar renewable residence permitos as evidence oI the exer-

cise of lhe right of residence. subject to the same revalldatlon dtscrellon qrs-

";;;; ;;.: l , i t t imitarlv ia.ntl"at in providing that for the purpose of

issuing the residence permit the Member State ma) requlre only the presen-

iati-on"of a valid ideniity card or passport and proof that the person meets

the Art.1 conditions.

Article 3 (also similarly worded) provides lhat the right of. residence shall 11-63

i.rn"in iot ".

io"g ut benefciaries of that right fnlfil the conditions laid down

in Art.l.

The Commission has sought a declaration from the ECJ that Belgium had 11-64

f"il.d ili1;;blG.iion unier Directive 90/364 bv making the right of resr-a"""" .tUi."ii" ift"

"ondition that persons have sufficient personal rcsources

i;';.;;r;;;;;i his ,tav' rr'" commission emphasised the flexibiliry of

itr" Oit""tiu" *t]i"n *as intended to allow the citizen of the Union to movee4silv within the teritory of the Member States without having to prove tnat

;;';,;';;;;;i totJiti"".. for the entire duration of his stav The

Commission submiled:

"However, the system of the Belgian authorities seeks to intloduce additional guar-

"rii". i",l.a*il,

"*ia ab initio-the citizen of the Union becoming a burden on the

;;;i;i ;"rt;* il"* which is inherentlv contdry to the spi t of Directrve

90t364lEEC" .

lbl PermaneN residence

(r\ Introduction

Those who have been economically active by exercising free movement rights 11-65

in other Member States (employees, the seli-employed and serviceproviders

and recipients) have the iighi to remain permanently in such Member states

in certain circumstances.

As resards workerq Art.39(3)(d) EC Treaty provides that the right of free 11-66

movei-rent for workers shall entail the'ri8ht to remain In the t€rltoq oI a

il;;;;;'ittt. t,uui;g been emploved in ihat state" The conditions under

*$"."1t$,"' f*1T; r; H; ::;; f;3y"ilifliJJ :iT:fiilil:";'"'",I l8] l

-

11 56 RrcHT oF REsrDlNcE

which the right of permanent residence may be exercised fior workers arecoutamed ln Kes. t l) l//u.'"

1l-67 As regards the self-employed, the conditions under which the right of per-manent residence may be exercised are contained in Directive 75134.?t As tbePreamble to this Directive notes, EC Treaty provisions do not expressly proFvide a similar right for self-employed persons (as that contained iuArt.39(3xd) EC Treaty for workers). Nevertheless, as stated in the Preamblq"the nature of establishment, together with attachments formed to the couq-tries in which th€y have pursued their activities, means that such persons havea definite interest in enjoying the same right to remain as that granled toworkers". The provisions of the Directive are substantially the same as thosecontained in Reg. 1251/70.

11 {8

11-69

I r-70

tt-11

(n) Retired Workers

Article 2(l)(a) of Reg. 1251/70 provides the right to remain permanently fora worker who at the time of termination of activity has reached the age laiddown by the law of the Member State for entitlement to an old-age pension-In addition such person must have been employed in the state for at least thelast 12 months and have resided there continuously for more than three yearsArticle 2(2) provides that the additional conditions as to emplo).ment andresidence shall not apply if the worker's spouse is either a national of theMember State concerned, or lost that nationality by marriage to the worker

Article 4 provides that continuity of residence may be attested by any meansof proof in use in the Member State and that such continuity of residence isnot affected by temporary absences not exceeding three months a year, norby longer absences due to military serdce obligations. Further, Art.4 alsoprovides that periods of duly recorded involuntary unemplo)rment andabsences due to illness or accident are to be considered periods of employ-ment within the meaning of Art.2(1)

Article 5 provides the possibility of delaying the exercise of the right for upto two years from the time at which entitlement under Art.2(1xa) and (b)7'?arises.?l During such period the person may leave the territory withoutadversely affecting such right. In other words, once the right has arisen con-tinuity or residence (which was critical to the creation of the dght) ceases tobe relevant. By Article 5(2) no formality shall be required on the part of thepersons concerned in respect of the exercise of the right to remain.

Article 6 provides?a that those coming under the Regulation's provisions shallbe entitled to a rcsidence permit (issued and renewed free of charge or for nomore than the dues and taxes payable by nationals for the issue or renewal of

?0 Commissior Reg 1251170 of J.ulrc29.1970 on the dght of workers to remain in the ierritorvoI a Member State after having been employed m that state?' Council Dir. ?5/3,1of December l?, 1974 concerning th€ righi of nationals of a Mernber Stateto remain m the territory of another Member State.7'z See paJa ll-72 below.?r See Case C-25700 Gtt ahe v Secrctaty of State lot the Home Depattue t l2003l E C.R I 345?a The terms of An 6 reflect those in An.6 of Dt 68/360

[184]

SpEcIFIc RIGHTS oF RESTDENcT rroR THE EU NATIoNALs llJT

identity documents) which must be valid throughout the territory of the issu-ing state for at least five years and be renewable automatically. The validity ofth€ residence permit is not affected by periods of non-residence of less thansix months.

(iil') Incap acit at e d Wor ker s

Article 2(1Xb) of Reg. 1251/70 provides the right to remain permanently for 11 72a worker who, having resided continuously in the terdtory of that state formore than two years, ceases to work there as an employed person as a resultof permaDent incapacity to work. However, if the incapacity is the result ofan acoident at work or an occupational disease entitling the person to a pen-sion payable either wholly or in part by an institution of the relevant state,thel1 there is no condition as to length of residence. Similarly Art.2(2) pro-vides that the condition as to residence shall not apply if the workert spouseis either a natioDal of the Member State concerned, or lost that nationalityby marriage to the worker.

Articles 4, 5 and 6 apply as in relation to retired workers considered above. 11-13

(iv) Frontier Wotkers

Article 2(lxc) of Reg. 1251/70 provides the right to remain permarently 1l-74for a worker who after three years' continuous employment and residencein the territory of the relevant state works as an employed person in theteffitory of another Membet State while retaining his residence in the ter-ritory of the f,rsi state, to which he returns, as a rule, each day or at leastonce a week.

At the very least this provision protects the position of a persoD who becomes 11-75a frontier worker in the period prior to retirement or pdor to becoming inca-pacitated. For such persons the final paragnph of Art.2(1) provides expresslythat periods of employment in the tefiitory of the other Member State as afrontier worker shall "for the purposes of entitlement to the rights referred toin sub-paragraph (a) and (b), be considered as having been completed in theterritory of the State of residence." Without such provision frontier workerswould not b€ able to satisfy the sub-para. (a) or (b) requirements ofemployment at time of retirement or incapacity in the state of rcsidence.

However, Art.2(l)(c) can be read also as giving a discrete right of permanent 11-76residence to those who become frontier workers whilst exercising free move-ment dghts where they have done so for three years. Although some textsinterpret this provision differently,7s there are a number of reasons why theprovision falls to be so construed.

First, the dght-which is unrclated to retirement or incapacity-arises on the 1l-77plain language of sub-para. (c) (without rcference to the last pam$aph ofArt.2(1)). Secondly, such interpretation gives meaning to the rcfercnce in

75 S€€ for example Wyatt and Dasbwood, "European Union Law" (Sweet & Maxwell, 2000)which at p.413 limirs the right to the saving discussed

tl851

-

tt-11 RIGHT oI RESIDENCE

sub-para. (c) to 'three years' which would otherwise be otiose becausethree-year period is surely irrelevant to the provision in the last paragraphArt.2(l). It could hardly sensibly be suggested that the saving could beon only where a person had clocked up three years continuous rcsibefore becoming a frontier worker (not least since in sub-para. (b) the riof permanent rcsidence on incapacity arises after two years' continuousdence which in the case of an incapacitated frontier worker would meanthe provision would not apply for at least a further 12 months). Itunlikely that Community law would so discriminate against frontier woThirdly, it is difficult otherwise to make sense of the use of the prcsentin Art.2(l)(c), which if to be construed as applicable ozly to the provision ithe last paragraph of Art.2(1) would make no sense at all in light of thethat retircment and incapacitation arises on cessation of work. Indeed, inrespect the use of the present tense in sub-para. (c) as against the use ofpast tens€ in th€ context of the last paragraph of Art.2(1) only makes sif construed as suggested. Finally, such interyretation is supported by thelowing recitation in the Preamble which clearly distinguishes betweenright to remain on cessation of work on retirement or incapacitation onone hand and the right to remain ("that right") for the frontier worker:

"Whereas it is important, in the fi$t place, to guarantee to the worker residing ithe territory of a Member State the right to remain in that ter tory when he ceLs8to be employed in that State because he has rcached retirement age or by reasonpermanent incapacity to work; whereas, however, it is equally important lo ensu.r.that right for the worket who, after a period of employment and residence in tb.territory of a Member State, works as an employed person in the territory ofanother Member State, while still retaining his residence in the territory of the firxState: . . " .

1l-'8 This interpretation does not however make the minimum interpretationreferred to above otiose. On the contrary the provision treating periods ofemployrnent in the othsr Member State as if completed in the State of rcsi-dence would appear to be intended to avoid the possibility of the frontierworker's acquiring the right of permanent resid€nce in two Member States.ti

U-79 Furthe4 periods of employment completed working as a frontier worker inthis way are-for the purposes of the rights of retired worke$ and incapaci-tated \,vorkers in Art.2(l)(a) and (b)----considered as having been completedin the tedtory of the state of residence.

11-80 Articles 4, 5(2) and 6 apply as in relatioD to retired and incapacitated work-ers considered above. There is however no ability to delay the time withinwhich the right is to be exercised. The contmst with the retired or incapaci-tated person is made in the Preamble which acknowledges that such personsshould be given a period of time in which to consider where permanently torestqe,

?6Although 't

might be sard that the very definilion of lrontier workerwould preclude an argtr-ment that th€ person r€sides inthe t€fiitory of work, such argument (for th€ purposes at l€asi ofArts 2(l)(a) and (b) of Dir. l25U?0) could well b€ sought to b€ advanced where the frontierworker retums lo the state of residence only once a week.

l l86l

(v) Retued SeLf-employed [lotkers

Article 2(l)(a) of Directive 75134 requircs that Member States recognise the 11-81

iirhiio t.rnoin p.t.anently of self-employed persons in exactly the same cir-

., i*rtun..t as ietired workers atlain the same right in Art2(lXa) ot Keg'

l25ll70. However, where the law of the Member State does not grant the

iight to un old-age pension to certain categories of self-employed workers,

iil? ug" t"quir"-Eniis considered satisfied when the beneficiary reaches 65

y.urt"of ug". fn" att.2(2) caveat is similat as are the provisions contained in

Arts 4, 5 and 6.

(\ r) IncaPacitated Self-employed Workers

Article 2(lxb) of Directive 75134 makes provision for incapacitirted -self-

11-82

..piovJ p"'.Joot It mirrors the provision in Art.2(l)(b) of Reg 125ll70^for

in"ipu"ltui"o *ott"rs The same comments apply in relation to the Art 2(2)

caveat. and Arts 4, 5 and 6 as made in relation to self-emplo)ed retlred

wotkers.

(vrl) Self-employed Frontiet W orkers

The Art.2(l)(c) provision for self-employed frontier workers in Directive 11+3

?5/34 mirrors that in Art.2(lXc) of Reg. 1 25 1/70 for fron tier worken ln par-

ticulat the same detailed comments apply as those made above as to why theprovision should be read as giving a discrete right of permanent residence to

ihose who become frcntier workers after three years- continuous resldence

and activity in a second Member State Although the Preamble recital ls

diflerently worded it is to like effect.

Moreover, the same comments apply in relation to the Art 2(2) caveat'.and 11-{4

Arts 4, 5(2) and 6 as made in relation to retired and incapacltatecl workers

For frontiei workers there is again no possibility of delaying the exercise of

the right (see discussion above)

(c) FamilY Metnbers

(i') GenetallY

)xtend to family members This is 1l-85'tance given bY Community law rote obstacles to the exerclse ot there EC Trcaty. Importantly family

members not only have the right to reside,,but also the right to take up

economic activity in the host Member State.7?

SpECrFrc RlcHTs oF RISIDENCE FoR THE EU NATIoNALS 11-85

'See An. l l Res. lb lro8r Ad 2(2) Dir ' 90/164r An 2{2r Dir ' 90/ lo5 aod An 2(2) Drr ' qJ/90

AllhouEh Dir. ?i/148 i' sjletrl as to such dghl for $e familv of seLl-ernploled p€rsont the ngnr

logically extends to them-

lt8fl

-

*

11-86 RIGHT oF RESIDENCE

(tr) The EconomicallY Active

l1-{6

1r-47

11-88

11-89

11-90

and spouse.?8

Further Art.l0 also obliges Member States to facilitate the admission of any

other family member "if dependent on the worker ' or living under his roof

in the country whence he comes."'Y

The document to be produced by family members8o are the document with

which they entered the Member State' a document issued by the comletent

authority of the state of origin or whence they came provtng- thelt relarlorF

Jio utto (in "ur"t

referred t; in Art.l0(l) and (2) of Reg 1612/68)' a docu-

me'nt ie.tiiying aep"ndency on the worker or that they live under the worker's

rool

For those who are economically active the provisions are largely the

The scheme is as follows. Article 4 of Directive 68/360 requires that M

States shall grant the right of residence-to be evidenced by the rssue ofaforementio-ned residence permit-to those refeffed. to in Art l-ableoroduce soeciied documenti. Afiicle I applies the provisrons of the Directiei. ' r 'arional. and members of their families to whom Reg 16l2168 apples'

Article 10 of Reg. 1612/68 gives family members. iretpective.of their ltion-

a/irl- the right to install themselves with a worker' l 'anxly memoers,arE

l"dti.J ^t

tfi" spouse and their descendents who are under the age of 2l tare deDendants, and dependent relatives in the ascending line of both worker

rs Art.lo(l)(a) and (b) of Reg 161268'7, Art l0(2) of Reg.1612/68.30 Art.4(3) LDir' 68/360

C^eC4sglgg Mouwnent contre Ie rudsme, I a tis'mitisne et Ia xAnophobie ASBL ( MR'4X)

v Belsian State I2002lE.CI..l4se1;.fi'iil;ililr";"-il*ifi para.3l0rvitrat of th€rmmigration Rules(Hc.l??^t!:Ll::::,h.:i'"iiliii'ffiili';r"-;;;;;;;;';;', decision ta-ken bv rh:-coTTi":l 19T':':::::l,iiiiitr."..""i i"-ir' iountrv or oriejn o' tt'" counrry.'|n wbichre is resll:1'j-0.'1i9"",:::l";;ili;;;;i;;;;:^"".i'i...g"i'ia uv,t'" u'i..d. Kingd^om

-:5hrco-:11'::,.,^::i.dilll;'i6Hfi;$';il;;;;:;;ii;i;;G" @"signation oi ovetseas Adoptions) oder reTl

tl88l

The requirement that the document !competint authodty of the state of cMember States seem mtent on queslroof certain third countries. The Nethe

-a.riaqe certjncatet issued by the Pakistani authorit ies (based on the pet-

".iurJ'"oi.uuf"".. of the use of foryeryl ln such cases tbe Dutch authorities

would insist on themselves confirming rhe underlying issue sought. to be

established by production of the document Thus the Dutch would seel( to go

behind marriage certificates, for example req-uiring.a Pakistani . spouse, to

i"t*n to putiitu" to undelgo some iort oi marriage te-st at the Dutch-t;;;*

G;t;. lt is difficult io see how sucb practice could be considered

tawful ii lieht of the decision of the ECJ in MMX 31

Another Droblem relates to adoptioD. where some Member States"do^not

;;;;;;i;"',h. adoption proceedings in ce ain non-Eu countriesbr sucb

itr"fiu"isi"G" -"v

not ;ccept a ciild adopted as having complied with the

(Sl l9?l/19) (ai variouly arneod€d)

documentary requlrcments where the document is produced by a countrywhose adoptiox proceedings are not recognised. Such an approu"h i, ln

"on_trlvention of Community law. The principles relating to formalities are dealtwith above. lt ls a baslc principle that Member States cannot ask for morethan is prescribed.

The- issue of dependeucy-in particular when it is not financial____can be dif_ ll_91ficult to demonstrate. The nature of such difficulties are discussed in Chapter10. The requirement that the competent authority issue a ..document testlfy_ing dependency" can also be hard to satisfy, not least in situations of emo_tional(as opposed to financial) dependency. Indeed, where there has not b""ncourt intervention in family matten. there may be nothing able to be said bythe competent authority going to the very issue about which the DirectivLdsmands documentation. In practicelhe fact that dependency is often soughtto be established by declaration made by family members themsel,res is nottreated by Member States as in itself a failure to cornply, although this isdoubtless a matter to which heightened scrutiny is given'by Membeir States.

For the self-employed Art.I of Directive 7lll4g identifies the family members ll_92to whom the provisions of the Directive apply. They are broadly the samepersons as those covered by Art.l0 of Reg. tOiZeA, iuUlect to minor aifler_ences. As to documents required to be produced, the provlsions of ait.O.rppry.

The differences are as follows. Firstly, wh€reas Reg. 161216g refers to descen_ ll_93dants under 21, Directive 't3/148 tAfe$ to childien urd", ti.-i;;;;;;",rvould cover a grandchild, the latter would not. If dependent tfris

-av "ormrtter (subject to the slight diflerence noted below); if not, then the rinrierI t-year-old grandchild would benefit if the grandchild of a workel but norsomeone self-employed (although such narrow construction mav bernconsrstent wth the aDalysis, of the ECJ in Baumbasts,.

!:::.njly.^ .h"rgll Reg. l6l2i68 refers to ,,their,, descendants, Directive ll_94/r, 146 rerers to -the_spouse and r,e children . . . of such nationals,,. The useur rnerr In the lormer case of workers would potentially exclude ahe face of Dircctive 731148. Asrwever the right in Reg. 1612168fanted both to the descendants ofo require the children to be com-,vould run counter to the aim ofssible conditions for the inteera-the society of the host Member

SpEcrFrc RrcKrs oF RmrotNcE ron rHr EU NAToNALS tt-91

i'.f&Tc-.tr:t"s sA Case C41ll9g Bounbas! and R , Setetary of Statelot the Home Departm?rr 120021 E C.Rr' lue L para.57.

!,):: ;i:.,-.*:,:'^l +: , !*!"!i!p*3 )1.t"oted n Bauhbast and R v secretary ol';::r:::!:l,:::,jr:;*1,rroorr_E-c,l;i-tdiin".,i""'fi K:";iT'#t.h\i;;'ii;'"Iand Baden- wnftknb;rs, s"pt",lt.,lo, ioili.

l l89l

-

Ji

11-95

11-96

11-97

ll-98

1l-gs RIGHT oF RTSTDENCE

Thirdly, the other family members whose adnission is to be "facilitated" rnReg. 1612/68 (or "favoured" in Directive 731148), must in the former case bedependent on lhe worker, whereas in the latter dependency may be on theself-employed person or lhe spouse. It is importaot to emphasise that thrsprovision must not be treated as if the admission of such other family mem-bers was entirely a matter for the discretion of the Member States. Such anapproach would amount to an unwarranted dilution of the obligation tofacilitate the entry of other family members.

The difference in language between Art.lO(l) and Ari.10(2) is acknowl-edged. It may be that a Member State would be entirely justified in seeking toscrutinise the claim of a distant relative to be dep€ndent or living under theprincipal's roof closely. Nevertheless a failure to consider the admission ofsuch family member or routinely to refuse applications from more distant rel-atives would plainly negate the very substance of the obligation otherwseimposed by Art.l0(2). Moreover the importance ascribed by Community lawto Art.8 ECHR in this context must always be borne in mind. The existenceof family life is a question of fact which can be established between moredistant rclatives than those catered for by Art.l0(1).

(tii) The Economically Inact e

Students

For students those family members covered are substantially more restrictedthan either the economically active or the other categories of economicallyinactive persons exercising free movement rights. Article 1 of Directive 93/96extends only to the studenth spouse and their dependent children. The use ofthe word "their" might be thought to exclude step children. However byanalogy with the ECJ's reasoning in Barmbaits6 referrcd to above, to excludea dependent step child would be contrary to Community law since it wouldcreate a disproportionate obstacle to the exercise of a Community law right.Third country national family members must be issued with a residence doc-ument of the same validity as the student on whom the person is dependent.Issue of the permit depends on production of a valid identity card orpassport aDd proof of the relationship.

Retired persons and those exetcising a general fight of residence

For retired persons and those exercising a general right of residence the fam-ily members who have the right to install themselves with the holder of theright of residence are identical and are set out in Art.l(2) of each Directive.8?These are the spouse and their descendants who are dependants and theirdependent relatives in the ascending 1ine. Although reflective of the provr-sions in Reg. 1612/68 dependency is required irrespective of age. The com-ment made above about the use of "their" in relation to students applies here.As with students, third country national family members of both retired per-sons and the self-sufficient must be issued with a residence document of the

36 Case C4l3l99 Baumbast and E I Secrctuy oI State fot rhe Hone Depannent I2002IE-C R.l-?091.37 Drs 90/365 and Dir. 90/364.

tleol

SpEcrFrc RIGHTS oF RESIDENcE FoR THE EU NATIoN^Ls 1l-l0l

same validity as the national on whom the person is dependent; again, issueof lhe permit is subject lo the same limitation as to documents able to berequired of the principal (subject also to proof of the relationship)

(r-t) The PermanentlY Resident

Regulation 1251/70 and Directive 75134 recognise the right to remain perma- l1-99nently for workers and the self-employed in the same circumstances ln each,Art.l extends the scope to the same family members as covered before theactivity ceased. Thus Art.1 of Reg. 1251/70 refers to family members asdelined in Reg. 1612i68, whilst Art.l of Directive 75134 refels to family mem-bers as defined in Art.l of Directive 731148. Those covered are largely thesame, subject to the two minor diflerences noted. No formalities are requiredin respect of the exercise of this right (whether by the principal or familymembers).

33 Art 3(2) of each Directive.

"n Case C z5T l}o Goane v Seuetaty oJ State Jot the Hone Depatnent [lll03l E C R I'345

(d) Remaining Beyond the llorker or Self-employed Peuon

(1\ The Pemqnently Resident

In the situations considered above the right of residence of family members 11-100is derivative of the dght of the Member State national exercising fteemovement rights.

As a general rule such rights will expire when the EU national ceases to exer-cise EC Treaty rights, ceases to reside in the ter tory of the host MemberState ot in the case of spouses, the relationship is permanently dissolved

Article 3(l) of each of Reg. l25ll70 and Directive ?5/34 however give a rightto family members to remain permanently if the worker or self-employed per-son has acquired the fight to rcmain in the teritory of that state in accor-dance with Art.2 of each. Thus the right for family members which is initiallyderived becomes personal. The right arises only where the family membersare residing with the worker or self-employed person. As stated in Art.3(-,the right endures even after death of the worker or self-employed person. Therefercnce to death however is potentially misleading: death is jrrelevant toacquisition of the right which is triggered by the worker or self-employed per-son's having acquired the ght to remain in accordance with Art.2. The ghtwould be retained also in the event of divorce.

Specific provision is also made for the situation where the worket or self- ll-l0lemployed person dies before having acquired the right to remain in the tern-tory concerned.88 In such a situation members of the family have the nght toremain permanently where the deceased on the date of death had residedcontinuously in the teritory for at least two years, or the death resulted frcman accident at work or an occupational disease, or the surviving spouse is anational of that state or lost nationality by marriage to the worker or self-employed person. Itt Givanese the ECJ considered an argument that the

iI

I

l

l leu

--

11 101 RIGITT oF RESIDENCE

lI

provision could be satisfied where Mr Givane had resided continuously in the

ii,.tit"A fingao. for two years at any time prior^to his dealh Although thers

*ut to-" ofrUigoiry in the different ianguages of the text of the Directive the

PCI n"ta that -'ttre period of two yerrs' continuous residence required by

[Art.3{2)ll musl immediately precede lhe worker s dertn'

(11) Children of llotkets in Education

11-102 Article 12 of Reg. 1612168 makes specific provision for the education of the^- ^"-

"ftiiJi."of a nat]onal of a Membei State who "is or has been employed" in

ift" t.rritotyof "nother

Member State' Such children shall be admitted to lhe

sG"ll:g"""ruf educational, apprenliceship and vocationrl traintng courses

""a". ,fi" same conditions ai'nationals of that state" if residing in the

terdtory.

1r-103

11-104

for children where the worker is no

the child "to be able to complete that education successfully-" In-Mr Moritz's

"or" t-tri,

-.u"t tftot when he returned with his family to his father's state of

.tiO". il" ""tla ""fcontinue

his studies there because of the lack of co-ordi-

.ratiiott of tchool diplomas and had no choice but to retum to the country

*tr"r. ft..ti""a"a school in order to continue studying Mr Moritz retained

the risht of tesidence given by AIt l2 as a child "of a nattonal ot a vlemDer

ii;";ii.'tt;;il;eel emplove<t in the territory of another Member State"

This independent right of residence for children however is not limited to sit-

r"lti.rt #fr.." "dt""-ti.n

cannot be continued in the Member State of origin'

il;;A ih. Eai .p;"ifically rejected such submission made by the German

a;";;;;;i* ;.a,'-tasP'i in which a child's German father had -c-eased

;;;i#l;;; unlt"J ringao- and the issue referred. to the F'cJ,was

*tr"ifr"? J.rolt" .u"tt cessation the children could oevertheless conttnue therr

J#ffi;. ii; ;Ci """'ld.i"o

that to prevent a child of a citizen of the

U;;'i.;;;;";;ing eclucation in the host Mernber state bv refusing per-

;itri;" ; remain in iuch circumstances "might dissuade that citizen liom

;;;;"*t";d;;,sh,;-io it""ao- "r -ou"ment:

and would therefore create

^io-Urtu8f. to tft-"

"if.ctive exercise of the freedom thus guaranteed by^the EC

i;;;ffn;il;i", to ti*it ttt" '"op. of the risht as arsueg-!{

-G-^tl**d;;;i"m*il;;;dnJ,'oi o.'tv tnt i"tttr of Aril2 ot Res l6l2i68 (chil-

drcn of a national who has been employed), but also its spirit e3 Thus the ECJ

held that:

'*a Cut.t l8q/8? and 3q0/8t E hten"h oid Motit: 't Min^tet van OnJeri'i\ e

y'".1^!!''Jl,i;Ji'tili;i;l"l'i'i , ,**,*, "r ',a,ero, the Hone Departnent lzooztEc''

I-?091. Dara 42 and 53 55elcasea-4l3tg9Baunb,lstat ldRISecrct"t toJStarcIottheHoneDeptrtnd'r [20021ECR

';'?i;ti\:lA "",*u"!t

and R v seuetary ol s',te lor tt' Honle Depa'tl'en I [2002] E C.R

I-7091, para.54.

ue2l

- "'"

SpEcI c RIGHTS oF RESIDENCE FoR TnE EU NATToNALS 1l-105

"children of a dtizen of the European Union who have installed themselves in aMember State during the exercise by their parent of ights of rcsidelce as a migrantworker in that Member State are entitled to reside lhere in order to attend generaleducational courses there, pursuant to Article 12 of Regulation No 1612/68 Thefact that the parents of the children concerned have meanwhile divotced, the factthat only one parent is a citizen of the Union and that parcnt has ceased to be amiglant worker in the host Member State and the fact that the children are notthemselves citizens of the Union are irrelevant in this rcgard".

(111) Carers of Children of Worken in Education

The corollary of the dght of children of workers to continue to reside in a 11-105Member State is a right for those children to be accompanied by their pri-mary carers during the period of the children's education. As stated by theECJ it Baumbast,ea to rcfuse such right "might deprive those children of a

ght . . grant€d to them by the Community legislature." Thus the Art.l2right necessarily implies "that the child has the right to be accompanied bythe person who is his primary carer . . . [who] . . . is able to reside with him rnthat Member State during his studies".es Since the right is derived throughthe child it is irrelevant whether the mother/carer has divorced from theworker.e6 Furthermore, although in BaanrDaste? the ECJ was concerned withthe posilion of carers who were in facl parents, it is clear that the right is oneenjoyed by any person who is the primary carer. Not only does this reflect thelanguage used by the ECJ itself, but it plainly also reflects the rationale of theECJ's decision of ensuring that children are not deprived of the very essenceof the ght granted to them.

'a Case C413199 Bawlbast a R v Secrctary of State.fot the Home Depq zert [2002] E.C Rl-7091. Dara.?1.e5 Case a-413lgg Bambast and R v Secrchty of Starc fot the Hotne Depa m?rr 120021 E.C.R.I-7091. Dara 73.

'6AsinihecaseofRheard,NithBaunba a dR v Seuetary oJ State fot theEone Depd nenl[2002]ECR.I-7091e1 Case C-413199 Baunbast and R y Secretary of State for the Hone Departfte'l [2002] E.C R-I-7091.

ue3l

-

Curprrr 12

DISCRIMINATION AND OTHER OBSTACLES TOFREEDOM OF MOVEMENT

The principal focus of this chapter is the examination of the pfinciple oJ equaltrcqtment as it applies to those benertting from free movement rights in the ECTrea\) and secondary legislqtion. Other obstacles to the exercise of free moj)e-nent rights arc also considercd including the failure to rccognise professionaloualifictttions.

I, GENERAL PRINCIPLE oF NoN-DISCRIMINATION IN THECoMMUNrry LAw CoNTEXT

6\ Introduction

The general principle of non-discdmination in the cont€xt of Community Ilaw finds articulation in Art.l2 EC Treaty which provides as follows:

"Within the scope of application of this Treaty, and ri.ithout prejudice to any spe-cial provisions contained therein, any discrimination on grcunds of natiolalityshall be prohibited".

The importance of the pdnciple in the Community legal order is apparent Inot only from its articulation in Art.l2 EC Treaty, but also from the fact thatit is repeated throughout th€ EC Treaty and secondary legislation. Thus forexample in relation to worke$, Art.39(2) EC Treaty provides expressly thatthe freedom of movement of rvorkers shall entail "the abolition of any dis-crimination based on nationality between workers of the Member States asregards employment, remuneration and other conditions of work andemployrnent" .

tCase 111176 Albert Ruckdeschel & Co. et Hansa-Lage aus St jh & Co. Contrc Hauptzo anlHanbug-St Annen; Dianah AG1) Hauptro aht ltzehoe I\91T)E.C.R 1753 TheECJwascon-sidering the prohibition contained in Art. 3,1(2) EC Treaty on disc.imination b€tween producersor consumers in the context of the common organisanon of agricultural markets, As th€ ECJstat€d '"This does not alter th€ fact tbat th€ prohibition of discrimination laid down in [An.l4(2)l is rnerely a specific enunciation of the gen€ral principle of cquality lvhi€h is one of thefundamental principles of cohfiunity law".

Moreover, the principle is seen by the ECJ as one of the fundamental princi- l24lples of Community law.r At its core the principle of equality requires thatsimilar situatioos shall not be treated differently unless differentiation isobjectively justified.

tle5J

\);"

1244 DIScRIMINATIoN

(b) The Scope and Application of Article 12 EC Treaty

(l) Discrimmation on Grounds of Nationality

keaty.

(t\) Discriminarion Within the Scope of Applictttion of the Treat))

reciPients of services'

12{8 Since the inclusion of Art tT iD the EC Treaty establishing^ci'tizenship of the

Union. att L nton t 't '"n"t ' id;n!-in ottttt Member States wil l henefit from

the protection of Arr l 'z Ee+;;;t"v; Th; detait is considerea in Chapter 4 In

*-t:::t:xryu';:;:':';:';;':W:l;i;1i;{Jr""a:["'-^",l i::: :;1*1 ry :',:::; ; ;:i;': i "i;: ; :,tJllk a ̂ * " t r ",' c pa s' sepr en be'r 7 2004

-

paras 39-46

lre6l

Crrte, , r r PnttctpLr or NoN-DrscR rvtN ATIoN 12-l l

short, a Union citizen ne€d nol establish that his residence in another

Member State is founded on the exercise of a free movemenl right ln

Community Law in order to so beneflt o

Far more dimcult however is the question of material scope, namely whether

ihe subject matrer in dispute is something to which Community law princi-ples should be applied. This will be dependant on various tactors. rnciudlng

ihe nature of the activity of the Union citizen and the rcason why the unlon

citizen is residing in another Member State. The UDion citizen whose pres-

ence in another i4embet State adses because of the exercise of a free move-

ment right must be accorded every facility to enjoy that free movement right

Such Iinion citizen must be treated on a par with own nationals in all

respects. The scope of that obligation is considered in detail at paras 12 21

onwaros.

ln Elsenl the ECJ stated that Member States are required to act in manner

which is not "disadvantageous to Community nationals who have exercised

their right to move and riside freely in the Member States as guaranteed in

Art.sA;f th€ EC Treaty lnow Art lS EC Treaty]". For those exercising free

movement rights the material scope is by no means limited to acces-s to linan-

cial benefits ;n a non-discriminatory basis.ln Bickeland Fran:8 {following its

earlier decision in Mrl.r./le) the ECJ held that measures which would enhance

the exercise of the right to move and reside freely in another Member State

fell within the mate;l scope Art.12. The ECJ held that the use of a given

language to communicate with the administrative and judicial authorities of

a Siation the same footing as nationals was a measure that would enhance

the exercise of the right to move and freely reside in another Member State'

On the other hand. for the Union citizen whose residence is not derived fromConmunity law material scope is more limited The ECJ has been prepared

to require lvlember States to provide all Union citizens with non discrimina-torv;ccess to minimum forms of social assistance.lo Further, tn Avellolt the

ECi held that the material scope of Art.12 EC Treaty included national rulesgoveming the use of surnarnei for latfully resident Uiion citizen childrento benefii from wider material scope Union citizens will likely need to estab-lish more Community law nexus to their situation. For further discussion of

material scope in these contexts see Chapter 4.

(c) Inter-rclationship with Othet Non-disqimination Provisions

As regards the economically active the Treaty provisions and s:condary leg-islatiJn providing for their fiee movement iuclude specifrc non-discrimination

6 S€e paras 41 25 to 4l-29 for discussion of the m€aning of rcsid€nce in this context1Cas;c-135199 Elsen v Bundesrenichennssandstah ltu Ahgeste teI2ooolE C R I'10409'3 Case C-2'74196 Bicket a d Fran2llgg8lB.CR H63'1.e Case 137184 Mini.stete Pubtic v Mutch 119851E C R 2681*S.e Cas. C-etSO Ma inez Sala v Freisiaat Bavem [1998] ECR I-2691 (child raisins

"lr.*"nc"l- ""a Case C-456to2 Toiani rt Cenne public d'aide sociale de Bruxe es (CPAS)

S€Dtember 7th, 2004 (minimex)tt Cz* C-148t02 Avello v Etat Belse I20Ml I C.MLR I

ueTl

,.""

DtscRrMINATloNl2-ll

case"'

12-14 The breadth of the specrlic non-discrirnination Pl1:ti^o:t, tltt:t Ec Treatv

for the econornically utuut *lii-"un that reliance on Art l-2 EC Treaty may

be unnecessary Plaitlv t;h ;;";;i;;;;ust alwavs be interpreted at least as

broadlY as Art 12 EC TreatY'

ffi

almno & a$istmza assictt'

Treat,

ti Cagha?i Cinzia Porcedd'Il994lE C R I-505

tlesl

I

(d) Indirect D iscriminat ion

Community law does not just prohibit direct discrimination. As stated inArt.12 EC Treaty itsell azy discrimination is prohibited. Indirect discrimina_tion arises where a provision is likely to allect EU nationals in the exercise oftnetr lleary flghts dlsproportlonately. It may arise where a condition isimposed which is sought to bejustified on the b;sis that it appliesboth to thoseexercising Treaty dghts and own nationals, but where the atility of those exer_cising Treaty rights to satisfy any such condition is intrinsically more difflcult.

For example if a residence.requirement is attached to the grant of a particularbenefit, whilst not impossible for EU nationals to satisfy-such criterion, theyare certarnly more unlikely to be able to do so than own nationals. especiallvifthey are "new" free movers, or have only recently exercised such rights.lT asexplained by the ECI such a residence requirement could be justifiid only ifbased on objective considerations independent of the nationalitv of the pe._sons.concemed and if proportionate to the legitimate aim of the nationalprovisions. Ir.is. important to emphasise-as made clear by the ECJ inrrynn "-tnaL tt ls.nol.necessary to prove that the provision does in practicer_rrecr a substantraUy htgher proportion of migrant workers. It will be enoughthat a provision is /ra61e to have such an ellecr.

GENERAL PRINCTPLE oF NoN-DISCRIMINATIoN 7Lt8

(e) Justifcation

A finding ol- discriminarion on grounds of narionatiry however wil l not inand ot ltse mean lhat Art.l2 EC Treaty has beeo contraveoed. As is repeat_edly stated by the ECJ discrimination may bejustified. However, justificitionin practice is not a simple matter for a Member State to establish. To do sothe Member State will have to demonstrate that any condition is:

"based on objective considerations independent of the nationality of the DersoNconcemed and is proportionate to the legitimate aim of the national p;isions(see, to that effect, Case C-15196 Schi)niig-Kougebetopoulou tl998l E.il.R. I-r7,Para.2l)".re

The impodance of the principle of proportionality cannot be oventated. The Ipnnclpte appttes even where a measure justifi€d on objective considerationsmust be proportionate to the legitimate airn of the nati,onal provisions. Thusrn the case of Bickel and Franz2o whilst the ECJ rccognised that rhe protec_tion of an ethno-cultural minodty might constitute i legitimate aim: it didnot consider that the aim would be undermined if the rules in issue, namelythose concemed with the use of language in criminal pro""edinls, wereextelded to cover nationals of other Member States exircisine tieir freemovement rights

lr See for-exanp! Case C-2!1194 O Ftynn t' Chief Adjudicotion OIfce. [1996] E C.R. I_2617,paras 20-21 andCaseC t38t02 Cottins y Secretary of Statelot /o;k and-pens;orr,judgment ofMarch 21,2004. nor ver reDoned.,sCaseC 2t7tt! o itynn; chiel Adjudicatkn olfcet It996l E.c.R. r 26t7" s:e Case C-27 4196 Bkkel and Frunz LtggglE.C.R. L-1$1 .'para.Z1 .^ Case C-214196 Ricket and Frunz ltgggl E.a .R. t-7 637 .

tre9l

12-19 DlscRlMlNATloN

12-19 The principles of objective justification and proportionality are well estab-lished in international human rights law. Under the ECHR, the effect of thediscrimination is weighed against its aims to determine whether the two areproportionate. If the disadvantag€ suffercd is excessive in relation to the legit-imate dm pursued, then the discrimination is unjustified and thus illegal.Part of the analysis involves inquiring as to whether a less restrictive altema-tive exists: if it does, such alternative must be used.

12-20 This stdct level of scrutiny has also been applied to discrimination on thegrounds of nationality in Community law Discrimination is only permissibleif based on public policy, public secudty and public health grounds. Suchgrounds have been narrowly interpreted by the ECI The application of theprinciple is discussed in Chapter 14.

2. OBsrAcLEs ro rHE FREE MoITMENT oF WoRKrRs

(a\ Intrcduction

lZ-21 Artrcle 39(2) EC Treaty gives specific articulation of the principle of non-dis-crimination in relation to workers providing that the freedom of movementof workers "shall entail the abolition of any discrimination based on nation-ality between workers of the Member States as regards employment, remu-neration and other conditions of work and employment". The principle isreferred in provisions of secondary legislation, principally in Reg. 1612i68which implemeuts and facilitates the right of freedom of movement for work-ers laid down in Art.39 EC Treatv

(b) The Provisions of Regulation 16J2/68

12-22 The fundamental importance of the principle to Reg. 1612168 is clear fromits preamble in which more than half of the recitations deal expressly with theimportance of non-discrimination.

12-23 "fiLle I of Reg. 1612168 (entitled "Eligibility for Emplo).nent") is concemedwith the ability of EU national worke$ to access the work forces of otherMember States. For example by Art.6(l) the engagement and recruitment of anational of one Member State for a post in another Member State must notdepend on medical, vocational or other criteria which are discriminatory ongrounds of nationality. It will be recalled that where the European Union hassought to prevent the nationals of zep Member States from enjoying the rightof fre€ movement for workers from accession it has prcvented access to thelabour forces of existing Member States by suspending the Title I provisions.zr

:r See Chapter 6. In relation to th€ eight new Eastern Europ€an Member States who join€d trornMay 1,20t)4, Ans I and 2oltheAnnex inrcspect ofeach such MemberStat€ rcquires the "pres-enlmember Stales"to applyna onal law m€a sures for a lwo year period "by way of derogation-from Adcles I to 6 of Reg.1612l/68". A sm ar approach (as r€gards derogation from Arts I to 6ofReg l61268) was taken wh€n Porlugaljoined (see Art. 216(l) of that Act of Accession) And

[200]

-

OBSTACLES To rHr FRIF MOVTMLNT or woRKrRS t2-28

Title ll of Regulation 1612i68 (entitled "Employment and Equality ofTreatmenf') identifies the specific rights in respect of which equality of treat-ment must be enjoyed. They include (in Art.7(l)) a statement of the refer-ences in Art.39(2) EC Treaty to the general prohibition of discrimination ongrounds of nationality as regards employment, remuneration and other con-ditions of work and employment. Article 7(l) provides as follows:

'A worker who is a national of a Member State may not, in the territory ofanother Member State, be treated differently from national workers by reason ofhis nationality irl rcsp€ct of any conditions of emplo;,rnent and work, in particu-lar as regards remuneratlon, dismissal, and should he become unemployed,reinstatement or re-employhenf '.

By Art.7(2) workers from other Member States must enjoy the same "socialand tax advantages" as national workers. This proyision goes some way toeliminating potential obstacles to the free movement of workers. In light ofboth its impodance and the extent of consideration given to it by the ECJ,Art.7(2) is considered in detail below.

Article 7(3) makes similar provision as regards access to "training in voca-tional schools and retnining centrcs". Article 7(4) provides that discrimina-tory conditions in collective or individual agreements or regulationsconce[ring "eligrbility for emplo].nent, employment, remuneration andother conditions of work or dismissal" will be null and void.

Article 8 deals with non-disc minatory treatment as regards trade unionmernbership, workers' reprcsentative bodies and such like (although with"public law" exceptions reflecting Art.39(4) EC Treaty which states thatArt.39 does not apply to employment in the public services). Article 9 spellsout the non-discrimination obligation as regards "all the rights and benefitsaccorded to national workers in matters of housing, including ownership ofthe housing he needs", including benefits and pdodties given in relation to"housine lists".

(c) Petsonal Scope

(r) Workerc

Workers are unambiguously within the personal scope of the EC Tieaty. Thequestion "who ls a worker" is considered in detail in Chapter 7. It is impor-tant to cmphasise that whilst as a general rule a person loses the status as aworker once the employment relationship has ended,z a person's status as aworker may endure in various circumstances despite the fact that such personis no longer in an employment relationship. Those circumstances are consid-ered in Chapter 7 and include that:

also as regards the accession of Greec€ (th€ tnnsitional provisions of Art 44 to47 of the Act cotr-c€mingtheconditrons of accession of the Hellenic Republic suspeDded, until December 31, 1987,th€ op€Btion of Ans 1 to 6 (and 13 to23) of Reg. 161?68).E See Case-85196 Matinez Sala v Freistat Bayem 09981 E.C.R. I-2591, para. 32.

72-2/t

[20u

{a) the status of worker is not lost immediately on c€ssation of employment;

(b) the status may be rctained where the ferson has previously worked and

remains capable of taking fufiher emPloyment;

(c) the status may be retained where the person is available for work and

capable of taking it uP; and

(d) the status may be retained where workers undertake retraining

2-29 Where in spite of c€ssation of employment the person retains worker status

such persoi remains within the.Personal scope of tbe lieaty lor the purposes

of the non-discrimination provlslons

(i1\ Work Seekers

2-30 As regards work seekers, until Co1l"?J2r a distinction was drawn between work- --

t""t"?, u"a *orkers in terms of their access to social and tal( advantages on

a non-discriminatory basis lt Lebon2a the ECJ considered whe-ther equal

tt""i-*t *itft regard to social and tax advantages in Art T(2) of Reg'

ieijTea oppri"a to-*ork seekers 25 The ECJ held that the right did not applv

to work seekels:

"It must be poinLed out that the right to equal treatment witb regard-to social and

to" Juu"toi"i uppfi"t only to wori<ers Thbse who move in search of employment

qualify for iquaiireatmetrt only as regards access to employment in accordance

i"i,r, Lii"r" +s or *," grc rreaty tnori ert :s EC Treatyi and Articles 2 and 5 of

Regulation No 1612/68".26

l2-3lTheECJreachedthesameconclusionincom/,j. 'Jl.,,nlBelgium2lwhichcott-cerned the dePendent children"tideover allowances".2s The ECJtideover allowances fell within the

tce" which were as such "linked to unem-ld of access to employment in the strlct

sense".

D-24 DISCRIMINATION

'r Case C-138/02 Cor't r v Secrctary oI State fot Woft a d Pe sions' irdsment of March 23'

urcelles I Lebon U987IE.CR 28lI

ver exercis€d the right to freedom of mov€ment

xiTl":T-t;,T:?];1',*.ed to vounspeopre who hav€justcompreted.ther studies?nd,are seek-

*Ji:f*. -T;fti'ffi

*,":'lfrl';r::::il;xr:$'"J.'fi39i;*'"** """ "'

lz-29

12-iO

12021

-

OsstecLss to tflE FREE MoyEMENT oF WoRKERS 1L35

!t91v1e1 tf:sq"aefgions are no longer good law following the decision of rhe IrLJ In Lor'l?.r.'whlch concerned a dual Irish/Arnerican national who_afteran absence of 17 years from the Unite1998 in order to find work ill the sociar sedged by the ECJ by referer|.cg to Lebo,dght to equal treatment enjoyed by workcial nature applied only as regards access to emplolrnent, but not as regardsthe social and tax advantages otherwise enjoyed by wori<ers nfo.*u"i. tfr.provisions of

-Reg. l6l2168 dealing with such iccess did not exor".riu ,"ili,o

benents ol a financial narure. Despite these facts ECJ stated:

"in view of the establishment of citizenshithe caseJaw of the right to equal tteatmelno longer possible to exclude from the scArt 39(2)EC Trearyl-which expresses the Iguaranteed by Article 6 of theTreary lnow Afl. l2 fnature,ntended to facilitate access to employment in the labourmarket of a MemberSrare. I. . .lThe interpretarion of rhe scopi oi the principte of eq Jiieil;",;';;1"-uon ro access to emplo)ment must reflecl this development, is compared wirh theinterprelationfollowedinLebonandinCaseC.ZlZtSqCon^issionvbiirir_.::1i

The position now is clear: the principle of equal trcatment for work seekers 12_33apples both as regards matters relating to acc€ss to emplo).rnent in Title I olReg. 1612i68 and to social and tax idvantages conta'ineA ln iiif" i-f. f.f"longer can any distinction be drawn between iorkers and rv"* ;i.;;

(d) Material Scope

Plainly matters falling wirhin the scope of Reg. l6l2i6g are within the mate_ 12-34nat scope ot rhe EC Treary of rhe purposes of the prohibit ion against drs-cflmrnahon. Identif ication of such matters is for the rn-ost parrstraightforward. The provisions in Arr.7fl ). (3) and (4J

"f n.e. i;iiies'"*

selt-dehnrng.rr For example discriminatory conditions ol- eriplovment asre€ards remuneration prohibited by Art.Tal) need no further ixplanation.rne same however cannot be said for Art.7(2). In particular considerableattention has been given by the ECJ ro rhe meaning of th. phrase liiociuladvaDtage-in Art.7(2). The Art.7(2) provision is coniidered bijow.

(l) Arricle 7(2) Social Advantages's and is important in the elimina- 12-35".ment for workers. Generally then a broad manner, consistent withnl workers who move around tner-ti-yrs own national workers. The

- rase rr rd4 col/rrr v s?crctan o{ Statp for Wo* and pennons, j]UdEment of March 23, 2004.'o, Case 116185 C?nue pubtk d a;d" ndak1e Cowcettes y t€bo,, I t'98i1 E C.R. 28 ii ''.t-c ase C -2ists4 coinnsion v Betsiun ttee6t i.a.ri. l_l:rii' -"' "'"" "" ,Case 116185 Cenfte pubtit d'aide sociat; de iource esv Lebon ItgBT E.C.R. ilt1, paras 63 and64rr As to Art. ?(3) s; furtter Chaptff 9

12031

12-35 DrscRti!rrN^TroN

failure to give EU ntrtional workers the same rights and benefits as ov"1

national workers would constilute an obstacle to fiee movement

12-36 The concept of social advantage was considered by the.ECJ in Eventa The

case concerned the payment of I pension to a French national living in

Belgium who soughtlo a benefit payable to Belgian workers w]1o had lought

in t"he Allied Forcis during the Second World War and had suffeted incapac-

ity lor work attributable to an act of war He argued thal the reilsal of such

a'benef,t constituted discdmination on the grou[ds of nationality The ECJ

described the concepl as follows:

"It follows from aLI its provisions and from the objective pursued that the advan_

tages which this Regulaiion extends to workers who are nationals of other MembetS;tes are all those which, whether or not linked to a contract of emPlo)ment' aregenerally granted to natlonal workers primarily because of their objective status asiorkers oi by virrue of the mere fact of their residence on the oational territory

and the extensron of which to workers who are nationals ol other member statestherefore seems suitable to facilitate their mobilily within ihe community "l5

12-37 Further in talrr6 the ECJ described social advantage in the following terms:

"In additiorl to the specfc right mentioned in Article ? (1) of lRegulation 1612/68]

not to be treated dilierently fiom national rvorkers in respect of any conditions of

employment and work, in particdar as regards rcinstatement or re-employment''roiini uduantug..' include all other advantages by means ol which the mlBrant

worker is guara-nteed, in the words of the lhird lecital in the preamble to the regu-

lation, the possibility of improving his living and working condltions and promot-

lng his soclal advancement "

12-38 There are many examples of ights or benefits-which have been recognised as

social advantages by the ECJ. These include:3?

. benefits guaranteeing a minimum subsistence allowance dependent on rcsidencequalification;'o

14 Case2OT'8 EvenI offce Nationat.tes Pensiotts pdn Ttdtdi ens Sdla isllg7elECR 2019'r5 Para. 22. The defrnition has been consistently repeated eler since see, i'y atn

^Case.tsJ,lt.ai,ia-

",,t ncu" \ LdrtJc,Lrc(titbdn4 BaJt -w;i,tro,be,e s82j LC.R. 11 and Crse llr/R4

,Ltrr* l t t tqSSt l .C.n. )681. On the l rcr ' in Etetr rhe ECJ held rhdr the benel l r ua' nor a socrrr l

.a" l ru! . , U, i t .a ""

, *heme ol nalronal r€cogni l ion i r could nor be con' idere' l n\ an adtan-

i"n.eroirearoanJr ion" lqorkerb)redsonpr imari lvofhis ' Iarusofworkerorre ' idenceonihe

Ca"elqiSorairr tn iv, tutHa a?r l tqsEl FCR J16lrr The l$t is not iDtend€d lo be exhaustive but gLles d fldvour of the breddth or what hJs Deen

t.ealed by the ECJ as social advintag€s:;ii*zigist n*,t

'" openbaar Citttun voot ModtthopFtik tret:u ltessl ECR e7l ana

C"r. rzz,S.as-,,, . t , , t (oD r Ceutrc Pubtr t ! arJc So';;DJP cho'rcl loSsl tCR l02rin;;;ch ihe ECJ held that the mininurn means of subsistence was a social ailvantage which corrld

not be dented to a mrgrant worKer or memoers of his familv lvho wde memb€rs of another-li"-U".

it"t" .*'a*i*ithin ihe terntorv of Lhe srmting State' nor could it be subject to a

residence qualification which was not impos€d on nationals of the glantng state-

[201]

af

grants for training with a view to entry to university;39

o schol^rship to study in another Mehber State granted under a bilateral agree-ment reserving access for nationals of the two Member State Parties to theagrcement;4u

benent in the form of a single payment paid under a compensation scheme fornrricultural workers whose contracts of employment have been terminated as ar;sult of the setting aside of land;ar

child raising allowances;42

childbirth loans given interest free by a credit institution incorpomted underpublic lnw;*'

childbirth and maternity allowances;aa

provisions guaranteeing a minimum wage;45

the right to require that legal proceedings take place in a specific language;ft

disabrlity allowance in the form of a benefit for dNabled adutts for the assistanceof r third person;*' and

the possibilrty of a migrant workers obtaining permission for an unmarriedcompnniou to reside 43

l-hcse mses show the breadth of the ECJ'S approach, both to the interpreta- 12-39tion of social advantages in general and the meaning of "facilitatingn)obil ity" in particular.

In /lcfurle for example the ECJ held that interest-free childbirth loans were 12--40socinl irdvantages the ECJ emphasised that the concept of social advantagccncompassed not only beDefits $ant€d to own nationals as right, but alsothose granted on a discretionary basis.5o Fudher in Mutsch5t the ECJ hadhcld that the right to require that criminal proceedings take place in a lan-guuge other than the language normally used in proceedings before the Court

OBSTACLIs ro rrtE FRIE Mov[MENr ot WoRKERS

E.C.R.3161. The ECJ held also that Art t2ECen assislance which related to palmenl of regjs-x: see to the same €flect Czse l97la6 Brcwn I. 3205. In Case C 209103 The Sueen on theEahnq and the Se.rclatr of Serclot E.lucarion€tenc€ in education has extend€d so as to enableloant fall wdhin An. 12 EC Treaqaunauti fta saire oJ Belsiun and Comni.ssarial. 5589.v, Naruufieheet en yissettll99Z E.C R.I-5589rl t !9981E.C.R. l -2591.* Baden-Wntkmbery 119821 E.C R. 33l3 lEcR r-817.r02l E.c R. l-5899

E C.R I 3OI11283* Baden-W r,enberyIt982l E.C R 33k Baden-Win emberyl1g82lE.C R 33, para.l7rt the benefit was not a social advantage b€caus€ounteract the decline in bi(h rate.

[205]

1240 DISCRtt'IINATtoN

l24l

1242

1243

which tries a worker was a social advantage-the ECJ reached its conclusion

on the basis that:

The rieht io use his own language in proceedings before the courts of the Membershte ; which he tesides, under the same conditions as natlonal worKers' plays an

i.o."oniiof" i" the integration ol a migrcnt worker and his family into th€ host

co;nlfl. and thus in achie!ing the objeclive of free movemenl lor wofkers '

The non-discrimination provisions are enjoyed also by the family members of

a worker, but only where those family members are dependent on tne worKer-

i" ;;j;;iin tr. 'ecl n.ta that an ;lowance for disabled adults granted too*n

"utlonuft must be granted to the worker's disabled adult dependants

il;;;;i;;J" f* exteni'ing the availabilitv of social advartages to familv

*"LU"i, J.p""a."t on thi worker is that if a worker's dependent family

-"-U.i *"i-t. u" aeprived of a social benefit, the worker might be induced

to t"u* ttr" tto.t V"mier State ln Deak54 the ECJ explained the pdnciPles as

follows:

own in Article 7 of Reg No 1612/68 is also:ainst descendents of a worker who areto ensure for his childrcn the enjoyment of

y m€ legislation of the Member States for the sup-

Dort of young persons seeking employrnent would be induced not to remain in the'rti"-u"i iGii itft*" f',e had eitablished himself and found employmentif that state

i""f,l"t"f"t" t" p"y tt" benefits in question lo his children because of their forcign

""ti"-Jtv ... ittt tesult would run counter to the objective of the principle of

1".i". "1.*..""i

t"r workers within the communiiy beadng in mind in!er olia

the risht qranted under thal principle to employed persons and.. lo membefs oT rnerr

r"-ilies t-o te.uin *iLhin Lhi territory of a Member State

It is however to be noted that the extensiou of the principle to familymem-

iltr ir ;-it""t;, that is the dght is not a discrete one given to the family

"r".i"t "t *"ft. n"ther it is onJenjoyed only through the principal on wh-om

the family member is dependent. This was stated expressly by tne rLJ m

It is imDortant to bear in mind that thtreatmint. When relying on the A .7inationals in order to obtain a b€nefilworkers. A worker for instance who wii* iLiJ iftlt it t t""ial advantage which is aflorded to owr nationals' will have

i."-""i irt" ""^aitions

laid d6wn in national legislation This- is of course

entirely different from the position where an EU national worker w$hes to

i"ri"ii'u *"tnU"t of the family covered by Art l0 of R€g 1612168 since only

Community law provisions and condiuoDs may be applleo'

51 C^se 117 184 Mutsch Lr985l E C.R. 268 1 ' para 16

" c"* C-evrO Inziriilo r'Caisse d a ocations faniliales de

E.C.R. 2057, Paras 21-22n iii cad ofnce ,otunat de t enploi v Deak ltgqr.t E c R

I'aftorldissement de b'on [1976l

18'13, patus22-26.

12061

OBSTACLES To rlIE FREE MoVEMENT oF WoRKERS 1246

(1i) Atticle 7(2) Tax Abantqges

The non-discrimination provision in Art.7(2) includes "tax advantages".Howev€r it has very rarely been used by individuals wishing to obtain anysuch advantages. The ECJ has yet to explain the concept of tax advantagesor thef application to a case in any detail. As with social advantages, the con-cept should however be broadly construed and would include any matterreiating to taxation,ss direct or indirect, and social security contributions 56

European Union national workers must not be placed in a worse situationthan own nationals viJ-.i-vr.r the amount of tax they must pay or the condr-tions under which they must pay it. Furthermore they should be able toaccess all the tax incentive and rcbate schemes that own national workerscan. Since issues of taxation inter-relate with issues surrounding conditionsof remuneration, which is specifically provided lor in the principal non-discrimination provision relating to workers (Art.39(2) EC Treaty), it isunsurprising that the ECJ has mainly considered alleged discrimination ontax issues under Art.39 EC Treaty itself.57

(e) Prohibited Forms of Dis$imination

The prohibition in Community law of discrimination against workeff pro-hibits direct discrimination such as where a Member State limits employmentin a particular sector (not cover€d by Art.39(4) EC Treaty) to own nationals.However, the prohibition applies more widely and includes indirect forms ofdiscrimination by the application of other criteria which lead to the sameresult.

The prohibition against indirect discrimination has been consistently restatedby the ECJ. In Sorgrass one of the questions concerned whether Art.7(l) and(4) of Reg. 1612/68 were to be interyreted as containing a prohibition notonly against treating a worker diflerently because he is a national of anotherMember Statg but also against treating him differently because he is residentin another Member State. The ECJ held:

"The rules regarding equality of treatment, both in the Treaty and in Article 7 ofRegulation No 1612168, forbid not only ove.t discrimiDation by reason of nation-ality but also all covert forms of discrimination which, by the application of othercriteria of differcntiation, lead in fact to the same result. This iqterpretatioD, whichis necessary to ensure the ellective working of one of the fundamental principles ofthe community, is explicitly recognized by the flfth rccital of the preamble toRegulation No 1612158 which requires that equality of treatrnent of workers shallbe ensured 'in fact and in law'. It may therefore be that criteria such as place of orFgin or rcsidence of a worker may, according to circumstances, be tantamount, asregards their practical effect, to discrimination on the grou[ds of nationality, suchas is p.ohibited by the Treaty and the Regulation".

rr See for instance Cas€ CJ79l93 Schwnacker ll995l E.C R. I-225 and C^se C-115188 Biehl!9901E C.R l-1779.idCase C-18/95 FC ?rloeirc | Inspecteu van det Belastinsdie,L Paniculiercn !l999l E.C.R.

sl Case C 18195 FC Tefioeve I lt\pecteur van det Belastinsdienst Parlicaie'er [1999] E.C.R.l-345.53 Case 152173 Sotgiu v Deuttche Bundespost Il9'l4lE.C.R. 153,

12-6

tz-$

12011

121'l DIScRrMrNArtoN

12-47 The orinciple of indirect discrlmination was further described by the ECJ in

O'-Fl1,mse is follows:

"[A] provision of national law must be regarded as indirectly discrjminatory if it isdtr sically liable to affect migrant workers more than national workers and ifthere is a cbnsequent risk that it will place the former at a particular disadvantage. - Il is not necessaty in this respect to find that the provision in question does inpractice affect a subsiantialty higher proportion of migrant workers lt is sulicientihut it i. liabl" to have such an eflect Further' the reasons why a mlgrant workerchooses to make use of his freedom of movement within the Community flre notto be taken into account n assessing whether a national provision is discrimina-tory. The possibility of exercising so fundamental a freedom as the freedom ofmovement_of persons cennot be limited by such considerations, which are purely

subjective".

12-48 A form of indirect discrimination could be where national law imposes a res-

idence condition for the payment of a particular benefit in respecl of all

applicants, both EU migrant workers and own nationals alike Whilst per-

hips not at first blush discriminatory such condition.',vould ^generally

beregarded as discriminatory by the ECJ if it was more dimcult for a migrantwdrker to fulfil it than an own national A similar a condition was consideredby the ECJ in its decision in Co1rr.t60 which concemed an application madefor job seekers allowance where the national law provision which introduceda dlfference in treatment according to whether the person involved was"habitually resident" in the United Kingdom ldentifying whether such pro-

vision-wldch on its face applied equally to all nationals-was discrimina-tory the ECJ stated:

"Since lhat requirement is capable of being met more easily by the State's ownnationals, the i996 Regulatio;s place at a disadvantage Member State natlonalswho hav€ exercised theii ight of movement in order to seek employment in the ter-itory of another Member Slate (see, to this effect, Case C-23'1194 O'FlYn 11996lE.c i{. l-2617, para. 18, and Case C-388/01 Commission t Italy p0031ECR'I-721, paras 13 and 14)" ' '

(\ Justification

12-49 A finding of discrimination on grounds of nationality against a worker how-

ever will-not in and of itself mein that the prohibition has been contravened'As discussed above discrimination may be justified if based on ob1ectrve con-

siderations independeDt of the nationality of the worker concerned and ifproportionate to the legitimate aim of the national provisions'

' 'Ca'eC-211tg4OFtrnnv.hPIAdiudhal ionOJl i .Pf I lqqbl ECR I 26|T pata'20 21 . -d Case C-138/oz Cotiins t Secretary of State Iot tvo* okd Plnsio r, iudgment of March 23,

2004i Case C 138/02 Coltins v Secretary of State for Wotk artd Pensio'r' iudsnrent of March 23'

2004. DaIa, 65

[208]

OBSTACLES ro ESTABLISIIMENT tL53

The ECJk analysis in this respect in Col/ir.f2 is instructive Basing its decision 12-50

oi-i Uoop" ti" ECJ stated that it was legitimate for the national legislature

to wish to ensure the existence of a genuine link bet\reen an appllcant ror anldvantage within the meaning of Art T(2)I employment market in question (as was:e). Moreover, the UK authorities could

ink by establishing that the personr fact genuinely sought work. The

ECJ continued:

in principle, appropriate for the pur') be;roDortionate it cannot go beyond:ctivi. More specifically. its applicationr critena known in advance and provl-Leans of rcdress of ajudicial nature ln)nt demands a period of residencg theorder for the national authorities to bercerned is genuinely seekingwork in the

3. Ossracrts ro EsTeBLtsHMENT

(a) Definition of Reslrictions of Freedom of Establishment

Adicle 43 Ec rreaty Precludes anl,nation"irii?'lir;r*i"1,,':rli3llli:.11

Member States arc entitled to rcgu-rns for all traders or persons carryrngose who seek to establish themselvesre placed at a disadvantage or treated

differently from the Member State's own nationals 66

Furthermore even where nationalmeasures arenot applied in a discriminatorywav. thev mav still have the effect of hindering nationals ot othet Memoers""r'iri tn" i-"i"i* of their right of estabfishmcnt For instance national;i;;;i"h i"k"

"; "*ount of tie knowledge and qualifications acquired by

a Derson in another Member State might repres€nt such an obstacie to [teemovement and would therefore be prohibited by Art 43 EC Treaty "'

The rishl.s conferred by Art.43 EC Treaty are unconditional and a MemberState;nnot make resDect for them subject to a condition ot reclproclty*

tL5l

6'1 Czse jjjfjr,Z Conins I Secrctuv of State lor Work and Pensions' iltdsEment of March 23' 2004'

" ii".c+ialge o n*p v oliceiarionat de I enplot [2002] E c R l-6191'

" fiic'rrsisl s"--, rc casa uno s ' sindaco det Comune di Etuusco'flgaolE C R I'2c75

pala.32liiu C tStSZ X,"*

" Innd Baden-Wiiarcnbury l l oq3l E C R 1603'para32

". ii""i-ialtli vt"*.poutouv Mniste unvoriui zliundesundEuropaanselsenheircnBade'lluruenburp ll99l1 ECF. l-2357, pa? | 5"t case c-se-rio c#m'srl' v /,alv [l9el] E.C R I-4191

t20el

12-54 Although Art.43 EC Treary is primarily aimed at ensu ng that nationals andcompo.ties of other Member States are tr€ated in the same way as ownnationals and companies in the host Member State, it also prohibits theMember State of origin from hindering establishment in another MemberState. The ECJ has considered that measures which prohibit undertakingsfrom leaving the Member State of odgin would render the rights guaranteed

by Art.43 E-C Treaty meaningless 6e With respect.to natural persons, the riglttto leave the Membir State of origin is expressly provided for in DirectiYe'731148.10

12-55 A national of a Member State who acquires professional qualifications inanother Member State which are recognised by Community law must be ableto carry out professional services in the same way as any other Communilynation;I. Ex;luding own nationals from such benefit would constitute arestriction on establishment which is contrary to Art.43 EC TreatyTr

(b) Prohibited Disctimination Based on Nationality

12-56 Article 43 EC Treaty ensures that all EU nationals who establish themselvesin another Member State, even where that estabtishment is only secondaryreceive the same treatment as nationals of that Member State The provisionprohibits. as a restriction on the freedom of establishment, any discriminationbn grounds of nationalitY

12-57 According to thc ECJ'S case law the principle of equal ueatment, of whichArt.43 Ea Treaty embodies specific instances, prohibits not only overtdiscrimination by reason of nationality but also more covert forms ofdiscrimination thiough the application oi other criteria of dilferentiation ?2

12-58 For instance a requiremelt that the owners and charterers of a vessel and, in

the case of a comiany, the shareholders and directors, be resident and domi-

ciled in the Member State in which the vessel is to be registered results in dis-

crimination on grounds of nationality. This is not justified by the rights and

obligations which the Member State may claim are created by the $ant of a

nati6nal flag to a vessel. Plainly it is much easier for nationals of the Member

State to saf,sfy the requirement of being domiciled in that State since themajority of them will be resident and domiciled therq whereas nationals of

other Me-ber States would, in most cases, have to move their residence in

order to comply with the legislation ?3

12-59 In certain instances the discriminatory treatment is very well disguised The

ECJ has held that the dillerence in treatment as regards access to sickness

12,54 DlscRrMrNATloN

6' Case Ul5l93 Union Royal Belse des Societes de Football Association ASBL 1) Bowdn 119951E C R I-4353-n Ci*etili'rh" a*-, HM rredsury a d Connissione of Inld d Revenue Ex p Daib MaJand Genercl'rtust PLCU988I E C R 5483'; ii'i itsns t K".ou', Seirerary ot Srare fo, E,ononic AIIansllglelF C l, Lqq: quT l1-." ii", C-tDt Hitt'b*.n serui"Ls

-nv u slaarsseoea s wn Financih lr994l E c R I L ll7'para-15.iii"* C ZU8S The Sueeh t' Secrctary of State fot Tansport Ex P Fattortame Ltd U9911E C.R.I-3905, Para 32

[210]

--

Onsr,q.cles ro Esrenusnuervr t2-43

insurance between directors of a company formed under national law andthose of a company formed under the law of another Member Starcamounted_to dis;imination on grounds of nationality. ihe iCj

"".riJ.*ithat such discrimination againsr employees of a compiny was contrary to theprovision o[ Art.4J EC Treaty since it indirecrly resrricted the freedom olestablishment of the company irself.?"

The case of Gebroeder Beenrjeds concerned a company which submitted atenoer ror a pubirc works contract in connection with a land consolidationoperation. One of the conditions for tender required the tenderer to employlong-term unemployed persons. The ECJ held ihat an obligation to employlong-term unemployed persons could infringe the prohibitidn of discrimina_tion_ if it became apparent that such a condition iould be satisfied only bytenderers from the state concemed or that tenderers from other M#berStates would have difficulties in complying with it.

(c) Non- p ro hib it e d Res tric t io s

(t) Non-dis criminat o ry M e asure sSome restrictions on freedom of establisbment ma, in certain instances, be 12_61justified. S-uch restrictions must, however, fulfil certain general conditions:they must be applied in a non-djscriminatory manner (seJexceptions below);they must bejustified by imperative requirements in the gen€rai interest; theymust be suitable for securing the attainment of the obiectivc which thev our_sue: and they must not go beyond what is necessary in order to attain ihatobrechve.'o

Il Krua!1 the ECI considered that even though a measure was not discrimi- l2-{!natory it could still be contrary to Art.43 EC Treaty as it was liable to ham-per or to render less attractive the exercise of fundamental freedomsguaranteed by the Tieaty. The restriction would only be permissible if it our_sued a legitimate objective compatible wirh the EC Treiry and was iusri'fiedby pressing reasons o[ public interest.T8 lt would also be necessary for theMember State to demonstrate that the national rules are both aDorooriate forensuring the attaioment of the objective and proportionate.?q

ln the Commission v Italyso the ECJ held that imposing a duty of secrecy on l2-f3the stall of companies which if breached wodd lead-to crirninal sanctionswas not justified. The ECJ considered that the Italian Government hadsumcient legal powers at its disposal to be able to adapt the performance of

ia Cas€ 79185 .te.sff 09861 E.C.R 2375." Czse 31t87 Gebnede\ B€eut?r [19881 E.C.R.46]5.16 Czse C 55194 Gebhad v Co;siiot deit' Orctine desti Adtocat AE ptocututoti di Mitano ltgs.lE.C.R. I+165. Dara.37l1-Case C-tgtgi Kraus t land Baden-trr tenberyltgg3l E.C.R. 1663, para.32.13 Case,11l76 Ttuelfty y Counseil de t Ordrc des Tyocai a ta Cour di paris lt97T1E.C.R. las,paras 12-15.1e Czs. C-19192 ka s v Lahd Bade -wntknberyIl993l E.C.R. t663, patr'.32.3o Czse 3t88 Commissioh I Lat tl989l E.C.R. 40i5; pa;.I L

[2 lr ]

1243 DIScRIMINATIoN

contracts to protect the confidenlial naturemanner which was less restnchve

of the data in questiorl in a

1244

(ir) D is cr imin at o ry M e asures

Therc are two exceptions to the general rule that restrictions on freedom ofestablishment should be exercised in a non-discriminatory manner: firstin rela-tion to participation in the exercise of olficial authority and secondly wherepublic policy, public security or public heallh justiies such a discriminatorymeasure.

12-65 It is to be noted that the first paragraph of Art.45 EC Treaty excludes fromthe application of the provisions on freedom of establishment activitieswhich in a Member State are connected, even occasionally, with the exerciseof omcial authority. However the ECJ has made clear that the derogationprovided for in Art.45 EC Trcaty must be restricted to aclivities which inthemselves are directly and specifically connected with the exercise of omcialauthority.sl

12 {6 The ECJ does not consider that professional activities involving regular con-tact with national courts to be connected with the exercise of ofhcial author-ity.82 Nor does it consider the function of an internal auditor to be connectedwith the exercise of olicial authority.sr

12 57 Other than where activities are connected with olicial authority, discrimina-tory measures may only be justified on grounds of public policy, publicsecurity and public health. These are discussed in detail in Chapter 14. It isto be noted that these grounds do not include economic aims8a and thus anti-competitive measures or those that protect a Member State\ market will notbe oermissible.

4. MuruAL REcocNrrroN or Dpr,onas/TnarlrNc

(t) General Treaty Prorisions Relating to Mutual Recognition of Qualifcations12-68 In order to make it easier for persons to take up and pursue activities as self-

employed persons, Art.47 EC Treaty provides that the Council will issuedirectives conc€rning the mutual recognition of diplomas and other formalqualifications. Atticle 47 EC Treaty further provides that the Council shallissue directives for the "coordination of the provisions laid down by law, reg-ulation or administrative action in Member States concerning the taking-upand pursuit of activities as self-employed persons".

12-69 The system of the Chapter in the Treaty relating to establisbment thus pro-vides a "general programme" and the dircctives provided for in Art.47 EC

3t CAse C-42192 Thttssen 1r Con!rcledienst voot de vet2ekermse It993lF, C.R.14M1, par^.831Case2J'74 Ret)kers I Belsl,/, [1974] E.C R. 631, para 51.Br Case C42192 Thijssen I Contrcledienst wor de ret.ekerinsen 11993)E CR I 4047, para 183{ Case 288/89 Stichting Colkctire Antennevottzieni s Gouda I Connbsaiaat wor de Media[1991] E C.R. I4007, para. l l .

pt2l

Q?

Murl'll Rncocxttlor or Dtplorres/TnarNtlrc t2-75

Treaty are intended to accomplish two functions. The first is the eliminationof obstacles to the freedom of establishment and the second is the intro-duction into the law of Member States of a set of provisions intended tofacilitate the effective exercise of this freedom.s5

The ECJ has held that that provision is directed towards reconciling freedomof establishment with the application of national professional rules justifiedby the general interest of states, in particular rules relating to organisation,qualiications, professional ethics, supervision and liability.

Where a directive has not been adopted for a particular profession underAtI.47 EC Trcaty, a peffon subject to Community law cannot be denied thepractical benefit of the freedom of establishment.

There is no specific Treaty provision directing the Council to make legislationrelating to the mutual recognition of professional qualifications for employedpersons. However the system for mutual recognition of qualificationsdescribed below plainly benefits the employed as well as the self-employed.Indeed the failure to rccognise the professional qualifications of EU nationalworkers will act as an obstacle to the freedom of movement of such workersand would plainly nullify and impair the exercise of such rights, if not negatetheir very existence. Moreover the content of the directives themselvesprompts the same conclusion. For example, the sector directives consideredbelow cover seven professions, few if any of which are exclusively the domainof the self-employed.

(rl) Genetal Systemfor Mulual Recognition in Secondaty Legislation

Three Directives have been adopted to provide a general system of mutual 12-73recognition of diplomas and education: Directives 86148,92151 ar.d.99142.The Directives do not provide regulation in the areas in which there arespecific dir€ctives relating to a particular profession.

1210

Directive 86/48,E6 now amended by Directive 2001119,81 was adopted to l2J4enable higher-education professional diplomas gained in one Member Stateto be recognised in another Member State where the profession is rcgulated.The minimum pe od of higher education must be at least three yearc. AMember State which regulates a profession must recognise the qualificationsobtained in another Member State and allow their holder to Dursue his Dro-fession on the territory of the Member State on the same conditions as applyto its own nationals. The Dir€ctive applies to all,the professions for whichhigher education is required and which are not covered by specific directivesgoverning recognition.

Directive 86/48 permitted Member Stat€s to require a percon to take an apti- 12-?5tude test or complete ar adaptation period of up to three years where thetraining and education received substantially different from that required by

3t CasE 2n4 Rethets I BektM [1974] E.C.R. 631.16 Council Dir. 89/48 of December 21, 1988 [1989] O.J. L19l15.u Council Dir. 2001/19 f20011 O.l L206n -

[213]

DrscRrMrNATr^N

the host Member Stale or where the person obtrined quali l lcations in a

Member State in which the particular profession is not regulated However as

a result of amendment by birective 2001/19 Member States are not permit-

ted systematically to require the applicant to- take-m-ersur"s' such as aptitude

tests or adaptation periods, but must simplify and if possible eliminate these

measurcs

12-76 Directive 92l51,8s also amen<led by Directive 2001/19, was intended to sup-plement Directive 86/48, bY extenintroduced bY Directive 86/48 to tlevel of training is not as high or ala very wide range ol qualif,cationssponding to a secondary course orDirectivi 86/48, amendmenl by Directive 2001/19 means that Memher States

"un "o tong". tytt"aarically require aptitude tests or adaptation periods'

l2J7 Diecti\e 99/42e0 was intended to simplify and collate a whole range of tran- -

sitional directives on the mutual recognilion of diplomas in commerce' indus-

trv and craft trades and to supplement the two general system dlrectives A

Member State is not permitted to refuse to permit a person to engage l1l

uctlvitl", sp""ineO i" tiie Directive unless it has examined the skills and expe-

rience of t-he person concerned and satisfied itself thai these are not equiva-

i.niio itt" ttiilt u"a experience lhat own nationals would be expected to have

achieved.

(rir) Mutual Recognition in SpeciJic Fields

l2_T8Therenowexist12sectoralDirect ives9]covel ingthesevenprofessionsof-- - Jocto., nut.e, dentist' veterinary surgeon. midwife, pharmacist and architect'

Additionally there are two Directiveser relating to the authorisaLion to

practice as a lawYer.e3

12-79 It is not proposed to examine the Directives relating to mutual recognition in

to""in" faAi l" u"v detail. The basic aim of the Directives is to facilitate the

ii"" ^ou"-"nt

of itofessionals and to provide a scheme whereby their qual-

in"utions oUtan"a i" other Meqlber States can be recognised To that end the

bi...tiu", harmonise the mininium criteria for certain types of training for-,ft.t"'ptuJt-g

professionally in the particular field' Furtbermore the

bi.""tilt* p-"ia" t"r the mut;al recognition of their diplomas' certificates

and other evidence of formal qualifications

12-80 The Commtsston has proposed a Direcrive to replace all the :ectoral'- *

;i;""il;; wel as thi thiee Directives relating to the general system for

ss Council Dir. 92151 of June 18, 1992119921 O I L209/2s'r" The minimum period of s ludv under this Direcl i \e is one vear '.;;.;%#ili" il'";ea" plaiarnent ana or trrc councl;r rune 7' reee Iis9:r91-L]91117'' ;;;i;;;3/16, tt s2, 77 t4s3, 7 81686 ' 181687. 78t1026, 1811021 , 80tr54' 80/I55, 85/432

85/,133 and 8s/384r Dr$ 77i24o and q8/5

" ii;;il;"%;--n of qualfications are cov€red bv the general svsrem set out in Dtr

89i48.

t2t4l

Ogsr,qcLls ro SnnvtcE PRovlsIoN 12-83

mutual recognition.e" Wlri le maintaining the gurrantees alTorded by each ol

the existing recognition systems. this proposal aims to create a^slngle consls-

tent leAal fri lmework $hich is based on further l lberallsatton ol the provlslon

nJ r.ri i""t, *ot. "utomatic

recognil ion of qualif ications and greater f lexibil-

ity in the procedures for updating the Directive. The Commission is aware

that free movemenl oi worl(ers In ansimpler and clearer system lor the re'in order to increase labour market f5ervices. The proposed Directive iDrocedure.95

5. Onsftcles ro SenvIcE PRovIstoN

As with the freedom of establishment, the EC Treaty provisions relating to the 12J1

ireedom to provide services are aimed at the abolition of restrictions on that

freedom. Ai the head of Art.49 EC Treaty is the requirement that measures

discriminating, directly or indirectly. between national\ ot other Member

ir"i.r- ""J"ift.- ""tidnals

of the- host Member State are abolished e6

Discrimination on grounds of nationality is discussed in detail in relation to

establishment above. The same principles apply in relJtion to servtce proltslon

In the context of service provision the ECJ has found that the requiremenl 12-82

iiiui ttt. t".ui"" provider iesides in the host Member State when this is not

imposed on own ttutionals is discriminatorye? The ECJ has also found that

iu[s which limit the right to play in football matches as professional or semr-professional players solely to the nationals of the Member State in questlon

ir. iit"ri-i"ut-v and incompatible with the Treaty, except where the rules

;;;il;;;;;tet;i"y*s for sporting reasons as opposed to economicones es

ifri. rouia U! tt.,'" "use

for eximple in matches played between national teams

f-- aifi"t.ni "o"ntries

where piayed in the words of the ECJ, fot teasons of

"sporting interest".ee

Furthermore the ECJ has stated that A .'elimination of discrimination against a pelof nationalitv. but also the abolitiotr of an'to Drohibit o; otherwise impede the activillished in another Member State where heSuch a restriction would be prohibited IaDDlied without distinction to national proiher Member States.r

q Proposal for a Dir€ctive of th€ European Parliam€nt and of the Council of Marchl' 2002 on

,h; ;i;;;ir,;" .i;,;a;'sional quatifiiation". coM { 2002 r.r la final [2002] o r' c l8 | t'

"'In Feb-ruarv 200,i parLjameol voled lo ndopt lhe proposal

" iir'"i i".1" clir a ittso c,ini,ot P,ocec,tins' ;caine Lope' Brca and M ca o\ Hidasto

Palacios I t9921 E C.R. 1323-

" cas€ c-186i87 col'a, '

Trisor Pubtrc l1989lE C R l9s'et Case 13l'76 Do a I M.tnterc ll976lE CR 1313'

'e CasE l3n6 Donar Manrel, U9761E C.R. 1333' para la'I iase CJ6l90 saget I D""ni-"vei a co trdlt9s ll E c R I-4221

B15l

l2-a4 Dtscnrlrnatrox

12-34 In Seco'?for instance, the ECJ held that the obligation to pay the employer,sshare of social securily contributions imposed on persons providing ierviceswithin the national territory if extended to persons established in anotnerMember State could create a bafier to free movement. Such persons mightalready be liable to pay social security contributions in their own MemberState and thus the provision of services in another Member State might leadto a heavier social security contdbutions' burden than a person would beliable to if established in one Member State and providing services in thatMember State alone.

12-85 As with any restriction on the free movement rights contained within the ECTrcaty, a restdction on lhe provision of services by nationals or companiesfrom other Member States will only be permissible if it falls within one ofexpress exemptions laid down in Art.46 EC Treaty, namely public policy,public security or public health.l

6. Onsrlcrss ro rHs ExERCTsE oF FREE MovEMENTBY THE ECoNoMICALLY INACTIW

(a) Introduction

12-86 Pdor to the Maast cht Treaty there was no specific Treaty provision for thefreedom of movement for the economically inactive. As outlined in Chapter9 the rights of free movement for the economically inactive were crcated bysecondary legislation. Article 18 EC Treaty now provides the Treaty basis forthe free movement of the economically inactive. This dght, which is one ofthe consequences of the creation through the Maastricht Treaty of UnionCitizenship, is discussed in detail in Chapter 4.

12-87 The secondary legislation providing for the free movement of the economi-cally inactivea contains no express non-discrimination provision, althoughthe preambles to the Directives each identify in the first recitation by refer-ence to Art.3 EC Treaty that the activities of the Community "sha1l include,as provided in the Treaty, the abolition, as between Member States, of obsta-cles to freedom of movement for persons".

l2J8 The economically inactive whose free movement rights are founded upon theprovisions of these Directives plainly fall within the personal scope of the ECTreaty and thercfore will be able to rely on the non-discrimination provisioncontained in Art. 12 EC Treaty.5 Even those EU nationals whose srtuahonis not covered by any secondary legislation will nonetheless also b€nefit ftomthe non-discrimination provision in Art.12 EC Treaty. They will do so

2 Joined Cases 62 & 63/81 Socftti anonyme de droit fran1ais Seco er sociitb anonyne de &otIrantais DesqueAne & Gial v Etablisleneht d'assunnce contrc la vieillesse et Iinwlidite lt982lE.C R. 223r See Chapter 14{ Dts 90/364, 90/365 and 93/96J See for example Case C-224198 D Hoo! | Olfce national de IehplotI2o02lE C.R I-6191.

l2r6l

t]r_rough lhg application of Art.lg EC Treory, although as acknowledsed inChapler 4 the precise paramerers of Arr t8 ECi;.;f;;;;i ';;"#;:;

(b) Application to the Economically Inactiye

:den on the public finances of hosr:rally been the position of studenrs. of non-discrimination.

porred himself through raking oorr was only.at rhe beginning of hiseq Ine mtnmex

been the position that Memberof the prohibition on discrimina_ay tultion fees for EU nationars. However thig requirement does) grants__(as rs expressly stated inLLJ wrl consider whetber such'. Treaty jD Bidar.E -fhe answer ro

rntegrated irto rhe host Member st"," ,n*1"#li:";y;'r:'jf ffflillt:moyement right.

Onsraclm ro rnr ExpERrENcn oF FREE MovEMENT t2-91

comemFdrscrim,nar,on agaiosi a rerhed Fimish n;,t";',ffi;i; $#;;,6;i,,ii;J:,ij:on b$ pension,7 Case Cl€4/99 cr:€/erk v

'," ;fr t'ffi|il:8:: ix: [3?'"{,"3:lt %!,:! Y-i!! | :':' ? "t.J * n u Edu c a r io n L'|;;o ;;o fiilt:r iiiiiri*i #:";,; ; i:,2 tf {,:,tH:';:' "!^#tr :::;,,::ZI :f,:,

Cmtrc Public d aide sociate d Ouignies_Louwin-ta.Neuw l2lltj

12r7l

t.,-:

l INrRoDUcrIoN

J nationals exercising rheir free l]-Oland other social and tax benehts

legislation on free movement

s Member States-

CHA"TER 13

ACCESS TO SOCIAL SECURITY

This chapter pro't'ides an outline lnd general guide to social security Provisions

in Communit! Iab'

;i"r;-.,n.*i* nai."ted. references in rhis cbaprer ro the 'Regulation are to Keg r4ri6/ / |

-

[219]

13-44 AccEss ro SocL\L SECURITY

2. Socter, SscuqrrY Pn.ovtslotls

(b) Who Benefx

(d\ Introduclion

1344 Regulation l408i7l contains the IriLv for EU nationlls.r lt LS extrencal rules relating to soqal secuprovisions have existed for moreamended on numerous occasrons lsocial securitY laws.r

13--05 The basic premise of.the.Regulation is to offer solutionsto most of the cross-

border probl€ms aflsrng rn rne field of social security and to ensure that those

who exercise liee movement rights hlve sufficient social.seculity pro,tecl]9n

Such persons should not be placed in a wotse posltlon than lnose wno nave

resided and worked in one single Member State and never moveo

13-06 Commuoity 1aw aims to solve a number of problems that result from the dif-^- '-

f"i"nces in social security systems across the Member States ln some

fvf.-t", Stut"t, social securiiy insurance is based on residence whereas in

ii#t li it'["t,]o ""

exercise of economic activity community law aims to

.irut" ift"trntg-"t workers are not insured twici or precluded from insur-

""") "fi"*"Gi UV

-aking clear which Member State's legislation applies to

u- *o.t"rlnortt .i problems exist as the result of national legislation often

fit under the legislation of another Member

State.

1M? At Dresent, the Community provisions on social securily do not apply to aI'.-' il5o"' il;;s;hi; th; iuropean.Union Art* 1i.,Y.9-tflf.L,i:g5

"";liilT,;;ffi'" ;;".'"Jiv ii-'" i't'ittns of the Regulation rhe followipersoni are protected:a

tat emoloved and self-employed persons who are Dationals of the Mem'"' ;i;i;;i;; ;ilEinr u'ia *tro ure insured or have been insured under

leeislation of one of these Statesl

tfri, ,i, ,.gutation i, impt.menled lhrougl} R€9 s74l7:

' e" "pa1'la

.o"''r',i"'.d re,(ion oi rhe Reeprall".lyI*-YI:: il:"'"*'":f"i"

Iri".i:xsdtt**+"ql"f *s rl;li,',,f T''l:i:s::l :H?;:i:':1""fi :il:"' ffil,-J:ffi.'i.'lil*il l?lXfii&#; "" ̂ -".ded bv councir Reg 30?/r eee or Ft999 L18 | 12.2.1999-

12201

L-

.J..

SocIAL SECURITY PRovlsIoNS r3-10

I

students;

(c)membersofthefamiliesandsurvivorsof(a)and(b)'regardlessoftheirnationality;

rd) civil setvants and members of their families' provided that they are not

'" ' i ;;;r.d;i,h ; ;ecial scbeme lor civil servants; and

(e) refugees and stateless persons

Frontierworkersaretrcatedsimilarlytoemployedpersonsalthoughthelearel3:!l)8ip..i"it i .t i . i" i"g to them which are detailed below -

Annex I details specific definitions ior the individual Member States'

Each of the categories of beneficiary of the Regulation is examined below'

(i) Employed and Self-employed Petsons6

An employed or self-employed p€rson is defined in the Regulation as a per- 13-{9

qonwhohassocials"".t.t 'yr""'u"t"lnordertoqualifythepersonmaybei"t"i.o,

"".p"i i"rity or on an optional? continued basis:

(i) for one or m)re of the contingencies covered by the branches of a social

security scheme tl,r "'nproyec

oisetf-employed persons or by a special

scheme for civil servants,' or

(ii) a scheme that can be identified as a scheme for employed or self-

"" ;.;i;i;; i.i*n' uv rirtue of its characteristics'q or

{iii) a scheme ascribed according to national legislation laid down in Annex

I to the Regulation 'u

" is not used for an "employed per- 13-10eJterms the two terms could be dif-:ss to benefits under Reg l408/71 is

I person' and 'self-ernployed p€rson' for th€

t)oot Maatschappelik tqelziin, Kalmthout (1985\

E.C.R.973.

l22r)

12221

13-ll AccESs ro SocIAL SEcuRlrY

' 'emDIoved Derson ' in contradistlnctlon toaL there is no single definit ion of worker iorition varied according to its area of appli-

hat the term "employed person" would notL "wotker". It is clear that a p€rson will fallif that person has the necessary lnsurancgperson is to be regarded as curfently in an

receiPt of a sPecific benefit to cer

theY do so bY entering a restrictl(suJh restrictions are narrowly in

restrict access to a benefit to a Paensure that it does so sPecifirconcemed-

|3-|3|\s|i)beranc|PiosaPereira|ztheplopositionthatbeinginsuredagainstonb'-'- ii'""'iii t"' piou,a"a ro' -

{"g'r+6sirrl *^'}m:i"l:g3^1T:,"L:i,*

;Y::itr#'t*fiE'L"jiwi*::t^114;fi"qli:t11ff ilh'"sHilf; I*t;,":::::n*::llqt'Lqqid::f:"#lh::^#ijiiJli:#ftfi;;;",,'pi"'iai"g it did so explicitlv in the Annex toResulation.

13-14 The ECJ rciterated this principle in Maninez- Sala1' Tte Ger

Government had retieo "" 'i-ieiiiiction in Annex I* *li:1.:.1!tlit:1

;ttn;#;;;;;ilri! insured agarnst unemplovnelt o:-11:' j!-s :ii i*tiniutun... obtaini cash benefits under sickness 'i:it"lt:::ihi:il;iffi;;;;'iias'ified as an emploved penon for the purposes

'...i"r"J r"rnitv ienefits However the €CJ Prcinted ont^li1,i:,;fft-

fi tEilfiTTl;"':,:fr :*ti:slm.r'rl'i{!,{:il*ft :$iril.ffit*':tr1'JTl{,1*tltxrylit'it":L':i::li*ni!*"lh*:,;tu:.m*tig:',";:","1*:',"i:"".".:,iiiiTl'T*{:l,l#Tihlrh#J.ti:*lx;:ll:n?'i111!1:r;i#'!#:"f:?!xiti"*""*ix't*ni::':t,ff"::$'i""'i::l.lT,;Ti'.l;J:JAnnex I.

'" i"".ir, i, c C'c*^,nv"l of Res 1408/71'

+;"

SocrAL SEcuRrry PRovrsroNs 13-19

Specific provision is made for unemployed, seasonal workers and frontier 13_15workers in the Regulation. However for such persons to benefit thev must beinsured within a social security system.

0t) Studentstt

Students were added to the scop€ of the Regulation in 1999 in order to pro_ 13_16vide better co-ordination of the social s€curity systems which apply toitu-dents.'6 Whilst harmonisation of those social security systems is 6y no meansachieved in the amended Reg. 1408/71, bettar co-ordination was seen asdesirable to prevent the students concerned from being subject to a doublelery of contributions, or acquiring dual rights to benefits. AJ with employedand self-employed persons it is necessary for students to establisl thatthey arc insured under the general social security system applicable tosruoents.

The Regulation makes explicit that the extension of its provisions to students l3 lTis without prejudica to the application of Directive 93796 on the free move-ment of students. This means that a studenl who arrives in another MemberState in order to study must already be insured under a general social secu_rity syslem or become insured (normally through work) if the Regulation isto apply. Students who are not so insured will need to declarelheir self_suliciency and will not havq nq6ss5 to benefits by virtue of Reg. 140g/71.However they might obtain access to social security beneflts t[rough theoperation of non-discrimination provisions and principles of Communiry

(iii) Members of the Familytg

The Regulation defines "member of the family" as any person defined or l3_lgrecognised as a member of the family or designated as a member of thehousehold by the legislation under which benefits are provided by the legisla-tion of the Member State in whose territory such a person ,"iides. Wh"resuch national legislation treats as a member of the family or a member of thehousehold only a person living under the same roof as ihe employed or self-employed person or student, this condition shall be considered satisfied if thcpe$on in question is mainly dependent on that person. Where the legislationof a Member State does not make clear which members of the fimily rowltich it applies, the term "member of the family" shall have the meanirrggrven to it by the rclevant Member State in an annex to the Regrrlation.te

It may seern surprising that Community law should pay deference to varying 13_19national concepts of the family and family memb€rs when in other areas iucn

i

t i

li

iiiii'Li

ltuillHilr!

'' Art.l(ca) of Reg. 1407/81 defines "studeni" for the purposes of th€ R€gutation.r'Reg. 307/1999 of February 8, 1999 amend'ns Reg. i+Oi],'r on rtre appiicatron of social secu-

iI

loy€d persons and to members of their famitiisproc€dure for implen€nting Reg. 1408/71 wrth a

lhe fdmily for the purposes of rhe tugularior.

panicurar types or ben€n, r,,,r, *,,r,,,n" ,.$1t 11'o'lRljli"fi3 '"-*' " tn" *ttt t"'

12231

I '

1T20

13-21

t3-22

t3-23

t3-a

13-25

concepts have strict Community law meanings. However it is to b€ recalled

that social secudty legislation across the Member States varies greatly aDd

Community law in this area does not attempllo harmonise lhose systems bdsimolv to io-ordinat? lhem. Community |aw in the area of social security bnot sufficiently developed to require that social security benefits are provided

to any particular family members

Where the benefits concerned are benefits for disabled persons granted under'll nationals of that State who fulfill thenber of the family" means at least tbaved Derson or student and the childrenor dependent upon such Person

"Suryivor" means any person defined or recognised as such by the legislation

under which the benefifs are granted. Where, however' the national legislation

i"euid, ut u tu*iuo. only a pirson who was living under the same roof as thtdelceased. this condition shall be considered satisfied if such person va5

mainlv deDendent on the deceased

(iv\ CiYil SerYants2o

Civil servants were added into the Regulation by amendment in l998rrtD

reflect the special insurance schemes that Member States may have In plac

for their civil sewants and to provide rules of co-ordination for sud

schemes.22 There is no definition of the term "civil servant" in th€ Regulatiq

and thus national definitions of the term will apply

\q Refugees and Stateless Personszj

It is unusual for Community law relating to the free movement of EU

nationals to exteDd to any third country national other than the lamlly meo-

bels of EU nationals. However the Regulation is explicitly extended to covtr

recognised refugees and stateless persons

13-19 AccESS To SocIAL SECURITY

on September 28. 1954

Asvetthere has been no case law concerning the application of thisRegulatiq

to iefugees or stateless person! However. given the general reterence tolb

d""u"ritiont on Refugeis and Statelessness, as opposed to domestic

:0 An. l{a){ i ) of neg. i+Ogl; t includes'ci t i l <er\ants 'with rhe def ini t ion of 'emploved peIY

""i '.ii iirpi"v.a p*'.ns . Aa lua, defines 'special scheme lor ci\il servan ts ' (relenins

sDeciat rnsuance schemes lor civil servanls):i Councit Res 1606/98 of JuDe 29. 1998' ili;i;;'"-'id it;i i;c.'laoalrr *l'i.l' in essence provide rhat a person emploved as a c'!i,ervant in a Member Slate will be subiect lo that Stale\ legislatton. lr th€y ire so emproyeo_

Refusees are defined as those falling within tbe scope of Art l o[ tb

a;;:;;i."tutG1o in" stut"t or -Refugees. done ai Gene-ve on-Julv 2tiqJi. siut"r.tt p"rJoo ut" those falling within the scope of-Artl of

-thrConvention Relating to the Status of Stateless Persons' adopted in New Yort

i*o Sl"l"t ,l* t" "i"it "ervant

will be subject to the legrslatron ol both States;i i[-li6j

"J 1"; .i n"g l408fil define'lefug€e" and "stateless person" for th€ purposs

th€ R€gulation

12241

ii

13-28

13-28 The pdnciple of equality means that if a person is insured in one MemberState such a person will be €ntitled to the same rights and obligations asnationals of that Member State. It does not matter for instance that theMember State of origin of the person concerned has a less generous systemof benefits than the host Member State where the person is now insured.

Q) Sickness ot Maternity26

l!29 Chapter I of Title III of Reg. 1408/71 contains detailed provisions on sick-ness and maternity benefits with special rules for workers, unemployedpersons, pensione$, students and members of their family,

In order to ensure continuous entitlement to these particular benefits, when-ever the completion of a waiting period is required for entitlement to bene-fits, the pedod of insurance, residence or employment completed in otherMember States must be taken into account.

13-30 Sickness and matemity benefits are differenr in each of the Member States,There are two major categories of benefits: benefits in cash and benelits inKlnO,

Sickness benefits in cash are benefits normally intended to replace incomewhich is lost lhrough sickness. In some Member States national legislationprovides that wages will be paid for a period of time once a person becomesincapacitated. The ECJ regards these paJments as sickness benefits in cash.Sickness benefits in cash are paid according to the legislation of the MemberState in which the person is insured, regardless of place of residence.

13-31 Sickness benefits in kind comprise medical and dental care. Sickness benefitsin kind are provided according to the legislation of the Member State inwhich the person resides rather thall place of insurance. If the person is resi-dent in a Member State other than where he is insured, he is entitled to a1l thebenefits in kind provided utrder the legislation of the Member State in whichhe resides, even where that might be more generous thaD that of the MemberState in which he is insured.

13_32 In cases where a pe$on is temporarily staying in a Member State other thanwhere he is insured, he is entitled to all "iDmediately necessary beneflts",which means all urgent medical treatment which is necessary with regard toths state of health of the person. Pensioners are entitled during a temporarystay to a1l benefits in kind which become necessary dudng their stay.

1!33 It is not unusual for EU nationals to move to other Member State specifr-cally to obtain medical treatment there. In such cases the costs will only becovered by the relevant sickness insurance institution if permission is receivedin advance. Normally this is a matter of discretion for that sickness rnsuranceinstitution, However, in cases where the treatment in question is among thebenefits provided for by the legislation of the Member State of the person butnot available within the time normally necessary with regard to the person'shealth, the permission may not be refus€d.

AccESs ro SocrAL SEcuRrrY

,6 Ans 18 to 35

12261

SocrAL SEcuRrry PRo\'rsroNs 13_38

(rr) Accidents at Work and Occupational Diseases21

Chapter 4 of Title III of Reg. 1408/71 provides the rules relating ro benefits l!34paid following an accident at work or an occupational disease.

Where someone suffels from an accident at work or an occupational disease,such a person is entitled to benefits in kind according to the legislation in theMember State of rcsidence. If the person resides in a Member State which isdifferent from the one in which such a person is insured. the Member Stateof residence will provide rhe benefits in kind according to its legislation andwill be reimbursed by the competent institution in the Member State in whichthe person is insured. A frontier worker can opt to get benefits in kind in theMember State in which the frontier worker is insured instead of the MembcrState of residence.

Cash benefits are paid according to the legislation of the Member State in l3-3Swhich the person was insured at th€ time when the accident or diseaseoccufied. If the amount of cash benefit depends on the number of membersof the family there are, account will be taken of family members residing inanother Member State.

(11i) Invalirhty2s

Chapter 2 of Title III of Reg. 1408/71 provides the detailed rules rclating to 13_36invalidity pensions. Invalidity pensions are extremely variable across theMember States. In some Member States invalidity peusions are only paid tothose who are actually insured at the time when the invalidity occurs, at a ratewhich is independent of the insurance period. In other Member States pen-sions are paid to those who were insured and the amount depends on thelength of insurance period.

As a general rule, on becoming incapacitated a worker exercising free move- l3_3?ment nghts must not be in an inferior position when compared with someonewho has always lived and worked in one single country If a person has beeninsured in several Member States the calculation of the amount of Densionpayable is determined differently according to whether the person wasinsurcd in Member States where the amount of Dension deDends on thclength of i:nsurance periods or where the amount of pension is independent ofthe length of insurance periods. The rcsult may be that the person ends upwith two separate pensions on the basis of the payments being split betweenthe t\ryo States according to the length of time spent iD each Member State.

(iv) Old-age Pensionsze

Chapter 3 of Title III of Reg. 1408/71 provides the detailed rules concerning 1!38old-age pensions. In an increasingly ageing Europe, old-age pensions areamongst the most impo ant social security benefits. The following plinciplesapply to a person who stops working in one country and continues activitiesln anothel:

rTArts 52 to 63.13 Arts 37 to 43.:' Arts 44 to 51.

ACCESS TO SOCIAL SDCURITY

(a)

(b)

1!38

(cJ

Person was insured the insurance

Person reaches Pensionlble 'age'

' Jnother Member State or Plrid out

I that Member Slate'

son was insured for at least one year

n when the Person reacnes Penslon-n three Member States' the Person

The pension will be calculated according the insurance record in the

Member State rn questton'

13'39

13-40

13-42

1J-43

('v) Surtttors' Benefts and Deqlh Gronls3l

concerned.

Pensionable eges rre defined,by Member strte's domestich$s rall: 'LH: bt

Communily law Member srutt' o" iu'rht' permitted to have dillerenl

pensionable ages for uomen and men "

f€as-J c-.t%tr8 H;ph;A'tl"'tt-t'" otn"er [2000] E c R l-3701

12281

SocrAL SEcuRrry PRovIsIoNs

('ti) tJnemployment Benef tr2

Chapter 6 of Title III of Reg. 1408/71 makes detailed provision for the pay- 13-44ment of unemployment benefit. Compared with the provisions for other cat-egories of benefits, unemployment benefit rules are relatively restrictive andless generous.

If a person becomes unemployed, the Member State in which the person 13-45claims unemplolrnent benefit is obliged to take account of periods of insur-ance or employment completed in any other Member State, if this is neces-sary for entitlement to unemployment benefit. This only applies, however, ifthe person completes such periods immediately before becoming unem-ployed. In other words it is not possible for a person to claim unemploymentbenefit in a Member State wherc that pelson was not insured immediatelybefore becoming unemployed.

If the pe$on is insured in the Member State of rcsidence, the person is enti- lg6tled to unemployment benefits according to its legislation under the sameconditions as the nationals of this state.

If the calculation of unemployment benefit is based on the amount of prcvi-ous wages or salaries, only wages or salaries which the person received in theMember State where the person was most recently employed are taken intoaccount, providing the person was employed for at least four weeks there.

In order tq obtain unemployrnent benefit whilst looking for work in another 13-47Member Statg the person must satisfy certain conditions. The person musthave rernained available to the unemployment services of the state which paythe unemployment benefit for at least four weeks after becoming unem-ployed. This period may be shortened by the unemployment services con-cemed. Within seven days of departing, the person must register with theunemplo).ment services of the Member State in which he is looking for work.Unemployment benefits will be retained for a maximum of three months. Ifthe person is unable to find a new job in that time pe od, such person willcontinue to receive unemployment b€nefit only in the event of retum to theMember State in which the person was last employed. If the p€rson returnslater than this, entitlement to all benefits is lost. Entitlement to the three-months payment may only occur once between two periods of employment.

The clear scheme of these provisions is to provide only the transfer of enti- 13_48tlement to unemployment benefit when a work seeker moves from oneMember State to another Thus those not e[tided to unemplo]ment benefitin the fiIst Member State will not obtain such entitlement in a secondMember State. A person who has not previously worked in any Member Stateis unlikely to be able to obtain unemploynent benefits in a second MemberState, unless the first Member State has generous provision in respect ofpersons who have never worked.3l

rl Arts 67 to 7lrr Such as for instance young people having recentb completed education

l22el

13-48

13-.1.9

ffi/(dnaP'*nr, ludg€ment of March23' 20ct

r5 Arts 72 to 7616Art.71 of R€g. 1408/71r? Art-20

Accrss to Soct,rr StcuaL tY

13-19

13'50

13-51

t3-52

The scheme outlined above is concerned with the ability of an-EU national

t"'-.u" ttit unemployment benefit if he moves to seek work in another

ivtenl"r Stat". Howe"er, for thos€ unable to benefit from the scheme' noD-

Ji."ri^-"ti"t arguenis maybe able to be deployed la See further para

13-57 below.

(Yt1) FomilY Benefts\s

Chapter 7 of Title III of Reg. 1408/71 is concened with tbe payment of fam-

ii" Uir"ntt. fft" nature andamounts of family beneflts available in the dif-

iJ.J fU.*U.t States vary greatly As in the case of entitlement to other

l"""ntr,1-rr. v".U"r State uihich has to pay family benefits is obligedlo take

int" u"""unt periods of insutance or employment completed under the

legislation of any other Member State'

If the members of the family reside in the same Member State under whose

i""irr"i ion,tt" principal is insured as an employed or self-employed, person 'th-at Member State wil l be obliged to pay the benefirs lhe prrncrprl rs enlr-

tred to the same amounts of be*fi" iliit"J*iJJll::';i;#,:4ffi:I;oal is insured. as a rule the family will*r is provided for in one of the Membere principal resides or is insured.

Unemploved persons drawing unemployment beneht under the legislation of

;il#;;i-s,il;;" enrlrted io femiiv benefit' according to the legislarion ol

;h;iis;;tq;;Jf- -;mbers

of their families residing in another Member

Siate.

Pensioners normally receive family benefits from the state which pays their

#;i;;.;.";;;;;t"."1n" p"tttiott"t receives more than one pension' in

;.J;;;;;;;;,i;;;;ais to ttri t'igh"'t ue"efits which are provided bv one or

the states concerned.

(d) Frontier llorkers

es a frontier worker' Generally such work-mistant workers in the Member State of!,orLers have an entitlement to unemPloy-'esidence rather than the state of employ-

ment 16 Thev are able to choose between either their state- of residence or

il;i.y;;;;";;;g;ids health care rT Their familv members' bv contrast' have

no such cholce u, ."guto' t'"uittt care: they ire covered by the state of

residence.

[230]

Access ro Socrqr SecuRrry FoR THE "EmNoMICALLY INAfirr" 13_56

3. AccESS To SocIAL SECURITY FoR THE "EcoNoMIcALLY INAcrIvE"

The economically inactive are described in Chapter 9. It is a basic pr€-

condition attached to those who are economically inactive that they are se-lf-

sufficient. tttey tnigtrt have acquired dghts to certain social security benefits

under the provisions of national law or Reg. 1408/71 (e3: as an old-age pen-

sioner) and plainly they may be regarded as self-sufficient if they are in

ieceipi of ,"& tenints by virtue of that Regulation. Thus a pjnsioner will be

able io rely on pension payments received in other Member States if moving

to the territory of a Member State. A person exercising a gen-eralright of res-

idence under Directive 90i364 may be in receipt ot Invahdlty benent or a

death grant which can provide the resources necessary to establish that such

a person is self-sulficient.

Howevgr where the person does not acquire dghts to benefits under social

security provisions of Reg. 1408/?1, what entitlement is there to any form

of sociaf assistance? The ECJ has now established that in certain circum-

stances, wherc the need for social assistance is temporary and where the

oerqon preyiously full i l led the condirions and limitations placed on resi-

len.., s.,ch acceis should not be denied. This is consistent with the Prin-ciple of non-discrimination protected by Art.12 EC Treaty and with

Community principles of proportionality. These principles are discussed in

Chapter 12.

Thns in Grzelczyk'| a student, who had studied for three years during which

time he had bAen self-sufficient in compliance with conditions placed on himbv Directive 93i96. could not be denied access to social assistance because itwas requested on a temporary basis. The ECJ rccalled thal the fourth recitalto the birective land indeed to Directives 90/365 and 90/364 on the self-sufficient and retired persons) refers to the fact that beneficiaries of the

Directive should not become an"unreason able burden" on the finances of the

host Member State. According to the ECJ this meant that Member StatesacceDt "a certain de$ee of financial solidarity betlveen nationals of a hostMember State and nitionals of other Member states, particularly if the dif-ficulties which a beneficiary of the right of residence encounters are tempo-rary". The ECJ acknowled'ged the possibility for Member States to^tak€ theview that a student who has recourse to social assistance no longer fulfrls thercquirements of the Directive and thus withdraw the residence permit orrefuse to renew it. Howevet the ECJ emphasised that this should never be thstlutomatic co\sequence of recoutse to social assistance lt is implicit in theECJ'S iudsment ihat the Member State must always act proportionately and,as statid ibove, accept a certain degree of "financial solidarity"'

13_54

13-55

t3_56

rs Case ClE4/99 G elczyk I Cen|e Public d'aide sociale d'Ottignies'Louwin-la'Neu)e l,jnllE.C.R.I-4921.

123tl

13,s7

4. AccESS To Socml SEcuRrry FLowrNG FRoM CrrrzENsHrp oF rHE UNroN

13-57 There is no doubt that access to social security benefits is widening as a resultof the inclusion in the EC Treaty of the provisions on Union citizenship con-tained in Arts 17 and l8 EC Treaty. Citizenship of the Union is considered indetail in Chapter 4, whilst in Chapter 12 the potential non discriminatiotrarguments enabling EU nationals to access certain benefits are considered.

1!58 In summary for those falling within the scope of Art.18 EC Treaty as freemovers access to benefits on a non discriminalory basis will extend to thosebenefits that facilitate the ex€rcise of the rights of free movement. This willmean for instance that a work seeker who falls outside the scope ofRegulation 1408/71 may nonetheless be entitled to job seekers allowance ona non discriminatory basis where he seeks work in another Member State.le

13-59 More broadly, as Union citizens all EU nationals resident in other MemberStates, iffespective as to whether or not they are exercising EC Treaty dghts.have the ght to enjoy at the least non discriminatory access to mintmumforms of non contributory means tested social assistance. Thus for instancen Trojania\ the ECJ held that an EU national deriving no benefit from Art.18EC Treaty nonetheless derived the right to be granted a social assistance ben-efit by relying on Arts 12 and l7 EC Treaty.

} Case C-l38/02 Collins t) Secretary of State Iot Work and Pensio6. judgm€nt of March 23.2004, not yet reponedao Case C456n2 Tojani I Centrc public d aide sociale de Btuxe es (CPAS) Seplember 7,20tla.not Yet report€d.

AccEss ro SocrAL SECURTTY

t2321

d,"

CHAPTER 14

EXCLUSION

This chaptet examines the rights of ftee mowrs and other E(J natio ols y'henthey face exclusion or expulsion from the territo es of the Member States.

l. INrRoDUcrroN

Community law clearly provides the dght of EU nationals and their familymembers to enter and reside in the teritories of other Member States und€rcertain conditions. This dght plainly impacts on the sovereign right ofMemb€r States to control their borders. Where the EU nationals and theirfamily members can demonstrate a Community law frce movement dght,their entry and stay can be int€rfered with only on very limited grounds ofpublic policy, public security and public health and subject to strict provi-sions of Community lawrThe meaning of these provisions and th€ protec-tion enjoyed by such persons from exclusion and expulsion are considered rnsections 2 to 4 below. Where on the other hand EU nationals and their fam-ily membels can establish no Community law nexus to their situation in ahost Member State, that Member State may be entitled to take expulsion orexclusion measures on a broader basis. Such measures are coniidered insection 5 beldw.

2. Conur,lrrry Lrw PRovrsroNs oN THE ExpuLSroN AND ExcLUSroNoF FREE MovERs

Article 39(3) EC Treaty makes clear that the right to move within the lrHlMember States and remain in other Member States for the oumoses ofemployment is "subject to limitations justified on grounds of pubtii policy,public security or public h€alth". Likewise Art.46 permits Member States tohave in place measures for the special treatment of self-employed nationals ofother Member States on grounds of public policy, public security or publichealth.2

Dttective 641221,3 which applies to both employed and self-enployed pe:! 1442sons, contains provisions to ensure consistency in the application of the

rAs from April30,2006, EU nationals who have resded in a host Membff Srare for l0vears ormore will face expulsion or exclusion only "on imperarive national security groundJ , A;icte 28of the Dir 2004/38/EC on the rights ofcitiz€ns ofthe Umon and their family members See fur-ther ADDendix 30.r-TheEaJ has held that the slight d Terence in wording between t}le Arts 39(3) and 46 EC Trealyshould not make any differenc€ to the appLcation of these provisions. See Case 48t75 Procu@r.te Roir Royet It976lE.C.R. 49'7 ." Dn. 641221 of February 15, 1964 on the co-odination of special measur€s concem;ng rhernovement and residence of foreign nationals: 11963-641 O I Sp€c. Ed. 117.

12331

l-

IIf.

1442

Lt4 4.

ExctusroN

1443 The EC Treaty provisions conremplate rhar Member States wilt be

'public policy. public security and.public health" pro\isos laid doR.E iEtt treaty and provldes procedural saleguards to ensure proper applitrand co-ordinarion in this area. Drrectrve 641221 is e"t"ndeO tv *i.JDirectives to workers who remain in Lhe territory of a Membei Stacbeen employeda and to persons who remain in i Member State after hrpursued self-employed activity there.5 The provisions of Directive 6413Ifinally exrended ro the economically sell--sufficient categories by exoruerence to Direclive 641221 in the rhree Directives creating rhe righs ctr:dence for the self-sumcient. All thre€ Directives provide tliat d".o;;;the right of residence wil l only be on grounds of public policv, oubticrity or public health and thar Directive 641221 shall apptyf thi provis;tDirecrrve 641221 apply equalJy ro the lhird countrv naiionuf fu"il iuof EU nationals exercising Treaty righrs as to rhe-EU nationals the

prevent a national of another Member Stale from entering their terri lorrremaining there on gro-unds of public policy. public securiry or public h=These measures are referred ro both in the EC Treaty and iecondan Gtion as "special trealment" because they oflend rhe basic principles of-lmovement and because they caDnot be used against own nationals.them discriminatory

In view of rheir discriminarory application as well as rhe facl rhat the!.ooDsracres to lree movement these measures have to be justif ied bnMember State using them by reference to very restrictive definitions ofthreelgrounds for such measures. As with any measure which restricts outhe fundamental freedoms guaranteed by the Tieaty, measures takeo usuant to Arts 39(3) and 46 EC Treaty will be justified only if they uwith the pdnciple of propodionality: "In that iespect, .uch a

-eai r..

be approp ate for secudng the attainment of the objective which itand must not go beyond what is necessary in order t; attain it".8

Apart from grounds of public policy, public security or public healtb. Iare no other grounds for the exclusion or expulsion of either an EU nariexercisin€ Treaty rights or that EU national's family members, regardlernationality. In other circumstances the right of stat; to exclude or-expel unationals is both recognised by international law and jealously guaided

a Council Dir. 721194 of May 18, 1972 extending the scope of Dir 641221 to workers er€nthe riglt to remain n the t€rritory of a Member Stare after having been employed in tbawrthin the meanmg of Re E. l25ll 70 L19721 O L L12U12I Council Dir 75135 oI Decenber t7, 1974 exlendiDs rhe scope of Dir 641221 to inctudeals ol a Member Srale who exercise rhe nghl (o remdin in the rerr i tory of anorher Menb.r:al ler havrng pursued lherein an acr iv iry In a setf-empto)ed capici ly under Dir 75i34 [ t9-n

1444

r.l{5

6see for instance Dr 90/364 provjdes in its prearnbl€ .,Wtereas the benefrcianes eDir€.trv€ should be cov€red by admjnistmhve arransem€nrs emitar to those taid doqr inticular by Directive 68/360/EEC and Direch\e 64t22t/EEC". Art 2(2) srares .Mernb€rshall nol derogare from rhe provis'ons of rhis Drrective sare on sroundr of Dubtir DoLerecuri ty or publ ic health. In lhal evenr. Direct ive 04/22t lEEC sh; appty..1 Art.l 2\ of Dir. 64/221.3 Case C-55/94 Gebhard v Cotsigol de Ordine desti Advocat AE procututoti di MitaroE.C.R.I-4165. Dara 37

1234\

Grot^ros FoR Excl-usloN/Expulsrorrr ol Fner Movrr<s l.l_-0g

States. In the Community context. howe\er. lhis right cannot be applied rohu nauonals and thetr Iamilies unless the strict requirements of thi Trearyand secondary legislation are met. The importance;f tfre fuuOumenij.tlftcaused by the impact of Community law on the exercise Uv,tut", oi il""r,otherwis€ seen as reflective of theii own sovereignty ;;";;;;;;;dIndeed, there is at times a tendency by national authoritie. ana couris tJloitpropefly ro renecl the tmportance of the Community law context in this area.However antithetical to notions of national sovereignty, MemU"i Si"i"r:

"Ufigrtrons properly to reflect priociples of Community-iaw i" tt" "o"t."t

ofexcru$on am exputston must always remain at the forefront of the minds ofoeclston-maKers.

Member States have not co-ordinated criminal legislatione and in principle 14_06such legislation is a matter for individuat pr"mu.i stutes. aii"ii'isiii EcTreaty implies that Member States continue in principle to U. fi.. t" il,t..f:i:lji.lr.oyl ll9]lc poricy and pubticsecuriry'needsi H.;;; i;;-;;i,ytaw sers ltmrts on the exercise by Member States of this power where such€xerctsen Inre eres wrth the lundamental freedoms set down in the ECI realv "

3. GRouNDS FoR ExclusroN/ExpulsroN on Fnre Mowns

(a) General Obsenations

(\) Grdunds for Taking Special Meosures Against E(J Nationals

Jl: secgngary l^eqllation.implementing the EC Treaty provisions as well aslnrerpretatton ol thts legislation by the ECJ have provided a number of prin-

crptes to guide Member States on the application ol the three oo,,na! r",taking special measures against EU nationirs ex".cisi"giiee ;ou""rnrririi ,under the EC Treaty.

tlsion or exclusion of an EU national

Secondly, a decision to expel or exclude an EU national must be limited toclrcumstarces relating to the conduct of the individual concerned onlvll andnot.based on general considerations of public interest tr""f, ,, ifi" ngitagainst drugs or organised crime).

- r,rc f,u r rcary aoes contarn chapters on co-operation between Member States on criminalpolrcrng_

,0 Case-t86187 Cowk v Tft\o, p,rri llg8ql E.C.R. t95.'' see ror lDsrance Case 41 t7 4 Van Durn v Hone O/y'.? [l 974] E.C R. I ll7.t,z C ase.36l1s Ruili v M i"boe de I int;ieu, Itg:' Sl E.C .i\. | 2ig.l'An.3{ lr of Dir. 54/22t. s€€ ako Case 48/i5 p;c, ftw de Roi v Roret ltg76l E.C R. 497.

11-07

r.LO8

12351

I

Iz1{8 ExcLUsloN

Thirdly, a Member State employing expulsion or exclusion measuresneed to demonstrate that the use of such measures does not amount totaking of arbitrary measures against nationals of other Member Statesit will be necessary for the Member State in question to demonstrute thItakes genuine and eflective measures against its ouTn nationals in ordqcombat the conduct justifyiDg the expulsion or exclusion.ra

(i) Economic Reasons for Expulsion

1.H)9 As Art.2(2) of Directle 641221makes cleat the three srounds foror exclusion cannot be invoked "to seryice economic ends". In Dracticewill mean that the Member States will be unable to justify expulsion orsion against EU nalionals and their family members simply on the basisthey are an economic burden on the Member State. if those personsretained a right of residence under the EC Tieaty or secondary legiFurther the failure to meet administrative requirements laid downMember States for registration or taxation of employment or self-emplactivit ies \,! i i l oot constirute grounds lor expulsion or exclusioD.l5

(tti) Failure to Cofttply r,lth Formalities

1,t-10 As outlined in Chapter ll above, the mere failure to comply withtion formalities such as obtaining visas or residence permits is not a basisexclusion or expulsion under the EC Treaty or Direct:Ne 64122I.t6

(iv) Restrictions on Free Mowment llithin a Member State

1,1-11 Instead of expulsion or exclusion, a Member State may takemeasures limiting an EU national's ght of residence to a part of the terlitory However there is no distinction in the principles that are applied tomeasure restricting movement within the territory as against those expliin expulsion cases. Such measures may only be taken if, by reason of theousness of the individual's conduct, he could otherwise be liable to exDulsior exclusion from the whole of the teritorv of that Member State.rT

(b) Public Policy

(i) General Test to be Applied in Public Policy Cases

t4-12 "Public policy" is the ground most frequently invoked against EU natiand their family members when expulsion or exclusion measures are conplated. However as the ECJ has made clear consist€ntly, this ground is tonarrowly construed. The test for whether public policy $ounds exist formeasures to be taken is that the individual poses a "genuine andserious threat aflecting one of the fundamental intercsts of society."ls

la S€e for instance Case C-348196 Ctininal Proceedinss Asainst CsAa l999l E CR.l-tll5 Case C-361/89 Rorx v Belsntn [199]lE.CR.12'13tr Case 48175 Ptocweut de Rot y Ro)e/ [19?6] E C R 49'7; Czse C4s9l99 Mouvement cohtdR'cisme, I antisemitisne et la xenophobie ASBL (MR 4X) \' Delgiun Sta te l2OO2l E.C R.t1Ca..eC-I00l0t Ministrc de I l etieu I OlazabalI2002l E.C.R I-10981, para 45.13 See for fnstance Case 30177 R v BouchercaullgT?1 E C.R. 1999.

12361

GROUNDS FoR ExcLUS toN/ExPULsroN

,y

t4-11

oum level of crime or offence whichrublic policy grounds and thus to somerct is contrary to public policy is left tonever be considered to be of a sufh-

lsion or exclusion of the national ofMember States does not take genuinenationals for that conduct.

lt Adotri and Cornuall/e\e the EU nationals were "waitresses in a bar which

was 'suspect' from the point of view of morals".2o The ECJ held that wher€

own nationals in engaging in similar activities were not subject to any repres-

sive measures, the expulsion of EU nationals could not be justified on public

policy grounds

(il\ General D e t er r ence

Article 3(1) of Directive 641221 provides that any measures taken on grounds

of public policy must be based exclusively on the personal conductof the indi-vidual concerned. Article l(2) states that previous criminal convictions shall

not in themselves constitute grounds for expulsion or exclusion of EU nation-

als or thek family members. The ECJ has read these two provisions together asmeaning that the expulsion of an EU national cannot be justified on thegrounds of general deterrence.

lt Bonsignore,zt anltalian national rcsiding in Germany had purchased-a gun

withouti licence and had accidentally killed his own brother. He was foundguilty of illegal possession of a weapon as well as causing death by negli-gence. The German authorities wanted to deport him for general deterentieasons and not because he was likely to re-offend The ECJ ruled thatArt.3(l) read together with Art.3(2) barred Member States from expellingEU nationals in order to deter others from committing similar offences.

(iri\ Serious Crime

Even where in principle the offence committed is one which is so serious as 14-17to entitle a Member State to regard the personb continued presence as con-stituting a danger to society, it is only the individual's own conduct whichmay juitify expulsion or exclusion. In Calfd2 the ECJ considered a cgsewh;r; the Eu;ational had committed drugs offence which in Belgian lawautomatically led to deportation with a three-year ban ol re-entry TlIe ECJheld that such automatic expulsion following a drugs offence, notwithstand-ing the danger to society that drugs represent, does not fulfil the rcquirementsof Directive 641221since it does not take into account the personal conductof the offender.

l'Joined Cases I l5 & I l6181 Adoui and Cornuaille I 19821E C.R. 1665'r0 Cas€ 30/?7 R v Bouchercau ll9'17lB C-R. 1999, para.2 The women concerned were Frenchnationals working in Belgium as prostitutes1t Czj€ C-6'll'la Bonsisn;re I Obe4tadtdirector der Stadt Ki;ln Ir9151E CR 291t Case C-348196 &ininal Pnceedinss Asainst Cafa [1999] E.C R. l-l I .

14-13

l+14

1+15

l+16

12371

rJ:-

1,1-18 ExcLUsroN

l,r-18

l1-20

When examining the individual's conduct Member States must be satisf€dthat theindividual constitutes apre,renr threat to the ftmdamental interests 6society. Past conduct alone wiJJ not justify expulsion or exclusion. The ECInas hetdlhat a ttndtng that such a threat exists implies the existence of."propensity ro act in the same way in the future,,.2i Thus regardless oit6public interest that Member States might have in combatin-g a panicula.crime, any measure taken agarnst an individual must be on th; ba;is ofindividual's posing a present threat.za

l4-19 In the post-September I I era when Member States are intent on comterrorism, it might.be tempting for them to invoke public policy reasons Iexpelling or excluding a person who ha-s been convicted of i crime relatingterrorism. This is only be permissible if rt can be demonstrated that there'bpropensity to_act in the same way in the future, regardless of any public set iment towards lhose branded as terrorists or indeid any wish on the oartthe Member State Lo deter oLhers lrom engaging in terrorism.

lic order and security). As regards Mr Olazabal himself who was convictfoconspiracy to disturb public order by ,,intimidation or te(or,,, the Bapplied exactly the same principles as with other public policy cases widilution of such principles by reason of any referince to terrorism.

Furrherma_re. the ECJ took rhis approach to the fighr agaiDst drugs, whisrnce lhe l9EU5 has been a maJor concern of Member States, in .lva_1i.ro TlECJ acknowJedged the special measures which Member Stales may wishemploy to deal with rhis problem bur beld fasl to rhe principle rhat an iotfercnce with the fundamental right of free movement ian only bejustif,edreference to the individual's conduct and the threat that he poses:-

"While a Member State may consider that the use of drugs constitutes a dange,society such as tojustify, in order to maintain public ordel special m"urur", iialiens who contravene its laws on drugs, the public policy exception, like alllgations liom a fundamental principle of the Treaty. must nevertheless be i

This pdnciple is shown by the decision of the ECJ in Olazabal2s whjchcerned a member of ETA (whose activites constituted a threat to both

prcted restrictively, so that the existence of a criminal conviction can iexpulsion only in so far as the circumstances which gave rise to that convictiionevidence of personal conduct constituting a presentthreat to the requiremepublic policy (see, most recently, Case C-348196 Calfa ll999l E.C.R.'I_lt,22,23 aDd 24).

The Court has thus concluded that Conmunity law precludes the €xpulsioanational of a-Member State on general preventive grounds, that is to say an eslon ordered for the purpose ol deterring other aliens (see, in particular,'CaseBo signore 1) Stddt Kdln |97 SIECP. 297, paragraph 7), especially where that

GRouNDS FoR ExcLUsIoN/E)cubIoN

.,.e has automatically followed a cnminal conviction' without any account beinB

L'i""Trl-rr" p"tt.n^i "onduct

of-the ollender or of the danger which that-c-ondlct

[|""'"J",f i.i,rt. .q"irements o[ public policy ( cafo cited above' para 27) '

r rights both to cootrol the entry of 14-21combat serious crime can find the: odds with their own domestic lawI human rights instmments (wherey expulsion).28 However MemberIte dght to control their borders, atr family members who exercise theJ Treaty and secondary legislation.I right of free movement whichontext by ensuring that derogation, limited circumstances and where

tbsolutelY necessary

(c) Public SecutitY

lat measures taken on grounds of 14-22r the personal conduct of the indl-re concept of public security mustnly to conduct of the individual

which demonstrates a prop€nsity to pose a public security threat in the

Itture.

Thcre have been no cases where public security has been relied on alone as a 14-23

bnsis for taking measures against an EU national since public policy and

nublic s""u.ity it" often closely inter-related- However the principles outlined

ibove would'apply equatly to any decisions based on the public securityaxceDtlon.

3.C.R. I 957, paras 58-5933 E H-R.R. 50 where the European Court ofcrime committed by the individual, rather thanL into acrouDt in assessing his rights under Art Sfe).

(d) Public Health

Article 4 of Directive 641221 states that only diseases or disabilities which are 14-Zlistcd in the Annex to the Directive justify exclusion or the refusal to issue alirst residence permit on gtounds of public health. The diseases included.inthc Annex aie those which are aubject to quarantine iisted in theInternational Health Regulation of tbe World Health Organization: tubercu-losis and syphilis. Drug iddiction and prolouDd mental disturb,ance are listedls diseases'or disabii it ies which miEht threaten public policy or publicsecurity.

It is notable that AIDS/HMS not included in the Annex. This means that l+25the fact that a pe6on is suffering from AIDS or is HIV positive cannotjustify

l23el

t4-25

ExcLUsIoN

exclusion or refusal of a first residence permiL. Member States iue not eotLtled to introduce new provisions or practices in relation to diseases or dir:abilities which are more rcstrictive than those in force at the time thcDirective was ratilied. If Member Stales wish to include a new disease or dir.ability on the list they would need to amend the Annex by agreement. Thfohas not occurred since the Directive was adopted in 1964

14-26 If the disease or disability occurs after the person has entered the lerritory ofanother Member Slate and obtained a first residence permit, this cannotjlEtify the refusal to renew the permit or expulsion from the terdtory of fuMember state.2e

14 25

M-n

M-24

t4-29

As discussed in Chapter 11, Art 5 of Directive 641221reqlires lhat a deci!

to srant or refuse a first residence permit must be taken wilhin six moo

4. PRoCEDURAL SAFEGUARDS AcAINsr ExcLUsIoN oR EXPULSIoN

or Fnre Movrts

(a) Notifcation of Decision to Expel or Exclude

Thi Commission considers this to be a maximum period of ttme for

which tiie decision is taken, unless the interests of the security

eration of the application for a rcsidence permit where there a re^ po ssiblelic policy, publiciecurity or public health reasons for refusal of the resit

o".mir.ft fther. essentit l, during this Period \4embel States are permrtldobrain records from other \4ember State' ' ' The person must be allowed

remain on the territory of the Member State pending consideration of

application for a residence permit r2

Persons refused a residence permil must be informed of the grounds of pl

lic policy, public security or public health oi the Member State concemd

otherwise.33 This requirement is aimed at ensudng lhat a person faced

such a decision mayprepare his defence According to the ECJ, the rei

eiven must be a precise and comprehensive statement of the grounds lot

iecision, ro enable him to prepare his delence".'a

The oerson must be formally notified of the decision to rcluse an app

for a residence permit or to expel him from the terdtory Where the

has not been granted a residence permit before he must be glven 15 d45

leave the territory save in urgent cases. Where the person has previousl!--h

a residence permit he must be given a month to leave the terdtory of

Member Stites. save in urgsnt cases.l5

: 'Art . l (2).

' a"ii"ii'u-'et't on April 7,2003 bv Case C t57/03 Cohttlli'tion t S/an, Omcial(2003/c 135/23)r, ert .5(2)..r Art.5(l)

1a Case36115 Runli I Minkm rle I itlterieurll91s) E C'R 1219,paral9

[240]

PRoCLDURAL SAFEGUARDS AGAINST ExcLUsroN oR ExpuLSroN 14-32

(b) Legal Relkedies

(l\ Article 8-General Remedies

Dkect:lte 641221provides specific rights as regards 1egal remedies in respect 14-30of any decision concerning entry, or refusing the issue or renewal of a resi-dence permit, or ordering expulsion from the territory. Article 8 of theDirective guarantees EU nationals the same legal remedies as are available torlationals of the state concerned in respect of acts of the administration.

This means that Member States cannot organise "legal remedies govemed by 14-31special procedures affording lesser safeguards than those pertaining to reme-dies available to nationals in respect of acts of the administration".36However this does not guarantee nationals of other Member States the rightto the same remedies that might be aflorded to nationals in disputes con-cerning entry since they are not in comparable situations given the inabilityof Member States to expel their own nationals. If national law aflords a dif-ferent remedy in respect of acts of the administration generally, it is thisremedy which the nationals of the Member States are granted.3T

(tr) Specif.c Procedutal Requirements Follov,,ing Refusal to Renev, qResidence Permit or Expel a Person After the Grant of a Residence Permit

Article 9 complements the provisions of Art.s and is intended to mitigate the 14-32dellciencies of any remedies contemplated by Art.8.r8 Article 9(l) providesfor a decision to refuse to renew a residence permit or to expel a person to bereferred to "a competent authority" of the host Member State before whichthe person enjoys such rights of defence or representation as provided tndomestic law In order to obtain this right of reference to a competentauthority the national law remedies must be defective in one of three ways:where national law provides no right of appeal to a court of 1aw; where suchan appeal may be made only about the legal validity of the decision; or wh€rethe appeal cannot have suspensory eflect,re The refeffal to a competentauthofity must take place before a final decision to refuse the residence per-mit or to expel the person is made. Where the right of appeal is restricted toconsideration of the legal validity of the decision, the purpose of theinvolvement of the competcnt authority refefied to in Art,g(1) is to enable anexhaustive examination of all the facts and circumstances to be carried outbefore the decision is finally taken.@

16 Joined Cases C65 & 1lll95 R v Seerctary of State lor rhe Hone Deparrment, Ex p Shingarcand Rodion II99TJ 3 C.M.L R 703, para 25; see also Cas. Dzod'i v Belsim l199ol E.CR

" Joined Cases C-65 & l l Il95 R v Secrctary of Stale Iot the Eone Depa dent, Ex p. Shinsaruand Radion tl99n 3 C.M L R. 703, para.3o'" Joined Cases C-65 & 111195 k v Secteta4r of State fot the Hone Depa menL Ex p. Shingaruand Radion 1199113 C M.LR '703.$ Art.90) oa Dir 64122racase 131/79 R y Secretary oJ State Iot Hone Alfa^ Ex p Santi o tl980l EC.R. 1585,pa|a.lz Jomed Cases 115 116181 Adoui aid Comuai e 11982)E.C.R 1655, para.15, and CaseC-175194 R I Sectetaty of State lot the Home Deparlnent, Ex p. Ga asher It995) E.C.R.14253. oaft.l1 .

12411

'ii

r,L33

Any decision refusing the issue ofexpulsion of a person before the issperson concemed be referred to the

il?lll"^n::l:*"erned is onry en

ExcLustoN

ili:,:T" **#1l"Jt!;i'.xT'.:H,Til:Hfi :."'i:.,:H1i:?:,ffexpuf sion of the person. However i" cottogi"r; tlle iefi;i;',;;,;irfimaking the decision to expel or refusl

tt-,-it^t*y11"iiir. o-,lra.o',i'"iiirl": ffi f;ffi i.ilil,"llJi3ll5pendently. Thus a criminal court recomm"naing a6pbrtution rnieirt t.e,fed a comperenr.a urhoriry. provided that ,t..Jr" i, "Ul.

to ,ntii".the rndrvidualt circumsrances and is noL requi.ed ro rnak" d."iiioorigeneral public policy considerations such aith" ngt t "t"i"rt-d*gr.i,

(iil) Specifc Requirements Following Refusttl of Fbst Resitlence pe

petent authority on the basis of one ol the three deficiencies in nationalremedies listed in Art.90).4

(w) Refusal of Entry to the Territorl

(y) Decisiohs oh Re-entry

1.1-33

t4-34

r4-35

t4-36

By contrast Art.9 ol the Directive does not lay down azy particular reor

lifi :i?1Tlffii", jf#:1:iJil'l'i,"J:i,:::;:::n'::t:i:*#:granted the same legal remedies as are av"iliui" i. ,"ii"r"i,

"r tir"'ri#i

::,t:"^d^ii_*:-p-.j!"f icts ofihe.administuation.a5 tre tCr has jusiinJii;s

f, it':'*ii,n#r,u-n*ffi $ii*:**;,'...'..l.;"*r+jItff fi 1?#il:.#ff ;$*ul"l,li#..1Xi1,,.,':..;iil*#fi H;Where a person seeks to re-enter a I:Il_rl"d1rh9 E9{ }T statea that *offi :',::::",."rll"HXtl,i.rifr Jelapsed, he is entirled ro have a fr6sh affid;;;i;;;;ffi#:iTI^"i,"TT"d Ir,rlose circumstances the person will be'eniitlJl;;

frli:'i #"lirfiil{}}'#i'iili.:,ilifllil*'',i,'*,,1*#expulsion at the time the original decision rl", ;;e"..iTh"'EUh;

r'jj;ic- | ?sr4 R " s"u", o,y o1 s, * p@

i191se c-175e4 R r, sec retao: of state for the Hone Departhent, Ex p. Ga asher tlssr)

i Art 9(2)

iffi[lirxit ilit.1t,,,::,,::,::,:.t #,;*, trigD""p* * *, E- p sh i,,c.^I Case C-r5 e8 R |

" secrcMry of staiii, in" n,." o"p*,_ent Ex p. Ndna yaa

Yia.lotn E.C.R. l-9165

;'}fft#iffi'itrilf:i:il3s:cre'ary ot s'dleto' '|t'Ie Eone Depa*nent. Exp

n/.)1

Tlr! ExclusroN/Expulsror or ornln EU NATIoNALS

"vnl;rined what a 'reasonable" amount of time would be before re-entry

ilirta U" sougttt. but certainly following a cltange of circumstances the

iJJiuiauut tttouta be entitled to re-examination a'

5. THE ExcLUSIoN/ExpuLsroN or ornsR EU NerroNer.s

in another Member State who is l,l-37:-erent from that of the free moversuch EU national without relianceral on the protection provided by

This means that the non-economically active EU national who is unambigu- 1'l-38ouslv unable to support himself may face expulsion measures on the grounds

ih,rt-he no longer miets the conditions laid down in the secondary legislation

applicable to his situation.4s However, any such expulsion will be permissible

oniv subiect to other relevatrt international obligations (such as theConvention on Social and Medical Assistance and ECHR obligations)'

Furthet such expulsion measure could be taken only within the limitsimposed by Community law, namely the principles of proportionality andprocedural safeguards.

Principles of proportionality if properly applied could have an important l'l-39

impaci on thJ exircise by a Member State of the power to expel an EUnaiional who does not meet the limitations and conditions contained in sec-ondary legislation. For instance, such principles would dictate that where anEU national was only tempotarily unable to meet the conditions laid down rnrelevant secondary legislation, an automatic decision to expel would be con-trary to Community law The position would be the same wherc only a minorcondition was unable to be met.

For example ir Grzelczykae a French national student who had been self- 14-40sufficient ior the first three yeals of his studies in Belgium apPlied to theBelgian authodties for payment of the minimex, a minimum form of socialassiitance. Although the ECJ acknowledged that community law would notprevent a Member State from taking the view that a student having rccouneio social assistance no longer funled the condiiions of his right of residence,or from taking measures either to withdraw his residence permit or not rcnewit. "in no case mav such measurcs become the automatic consequence of asiudent . . . having iecourse to the host Member State's social assistance sys-tem".so Furthet it Trojanist the ECJ reiterated that it remains open to

r?'A Community national against whom such a prohibition has be€n issued must therefor€ beenrirled ro applyio have hrs ihuation re-examrned rl he considers tbat lhe citcumslances whichjustrfied prohibiling him from enlering rhe country no longer exist"' para.40.i3 Art.I of Directives 90/364 and 90/365 referI'Case C-lM/99 Gzelcztk I Centre pubtie d aide sodal d Ottisnes'Lolledi Ja-Neuve l2o0llE.C R I-6193jocase C-184/99 Grzelc4,k t) Centrc public .t'dirle social d'Ottisnies-Inn)ainJq'Ne w I200llE.C R.I-6193. Dara.43.51 Case Ca56i62 Toiani v Cente public d aide social de huxelles (CPAS) ' S€ptember 7, 2004

1440

12431

l+40 ExcLUsIoN

rMl

t4-42

ln Baumbast'\ the tCJ took a similar approach where it appeared th.at

Baumbrst did not have sickness insurlnce lor 4l1rISks ln compllance \vlttr

;;;ii;;;;i bit*tive 90/364..The EcJ considercd tha-i :P^I":t^:l*

[^r*l"rl't ti&"*t insurance did nor cover emergenoy trealment could

iuilit "

t"i"*r t" allow him to exercise his right of residence in the l

Member States to remove EU nationals who no longer fulfil the condiri

of their right of residence. Again, however.any such measures mtr5t:*iit ' in tnJii.i" i*posed by Cbmmunitv law" '2

irl.-U"i Stit" ,1n"" such refusal would be dlsproportionate

DfuecLive 641221 .

; C; C4sAo, r,"l",t , C.',," p'ut" d aide sodat de Br^ettes fcP'4s) ' septenber -'

li'lu. aora,rn u*.u"st and R t' secrcntv of shle for lhe Hone Depa nent P$a'

l-?091, paras 91 93

Althoush as stated EU nationals facing exclusion or expulsion measure

these circumstance" cannot place reliance on the prolectlon provlqeq

;l;;,ilAttti identified above, this does not mean that thev are *i

uny f*- of pto."A"ral protection An EU nattonal agatlt] I-1ii:1^:

;i"r';;;i;;l; ;"de must at least be accorded the same procedural

;fu;lh;t would be afforded to own nationals in respect of \

:;;i"it;;;;*" decisions have been made lt would be absurd. if a Mt

s;;i; ;;;ld;;,.t;*e that an EU Dationat had no right to reside.in is

i.'y "J ii,."r"'. could be expelled. without anv l9'I :l]:.d5lit-:l

ti.i ir,-it'."JJi""a to arbrtrary decisions berng taken against E,U nari€as regards their continued status as kee *tltt,!1t5%

"^"-"-Y]l"Yrt4.-iirlt"i. l.

"ircumvenl all protections otherwise given expressb'

1244\