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EU Law notes
Primacy of EU Law
Simmenthal v Commission – importing beef from France into Italy
...
However, this conflicted with
European Community regulations from 1964 and 1968
...
AG Reischl gave opinion that timing of Italian law was
irrelevant and EU law is supreme
...
Therefore, any national provision or
judicial practice which withholds the national courts power to set aside national provisions which
conflict EU rules from having full force and effect are incompatible with the Treaty
...

Van Gen en Loos – company imported chemicals from Germany, but they had to pay more custom
duty than they envisaged
...
COJ said natural and legal persons are alike and the Netherlands are bound by the
provisions of EU law and the company as an individual can enforce EU law through the national
courts against the member state = direct effect
...
These rights take precedence
over national law due to the effect of the doctrine of supremacy
...

Horizontal direct effect:
Defrenne v Sabena – flight attendant was being discriminated against and sued on the breach of the
treaty
...
COJ held that the direct effect of Article 157 was unaffected by the fact that the
Article talks about applying a principle and is unaffected by the fact that it only references Member
States
...
The
issue concerned whether individuals could sue each other
...

Direct effect of directives – it raises a lot of controversies and doubts
...
If a member state has
correctly incorporated a directive into its national legislation, there will exist some national measure
on which the individual can rely
...

Leading authority is Van Duyn v Home Office where an individual wanted to work for the church of
scientology in the UK, but HM Government said that they should go back to their country
...
This illustrates vertical direct effect as Van Duyn could rely on the
directive against the UK (member state)
...

Tullio Ratti produced chemicals
...
There were huge discrepancies in national laws on
that, the rules were harmonized to support the free movement of goods
...
Then Ratti
changed his labels without consideration of the Italian law and transposition period
...
However, for one of the directives the transposition period
expired whereas the second directive the transposition period was still pending, and Italy had time
to change its law and so Italy was not in breach of EU law yet
...
He relied too early on the second directive, therefore, Italy was not in
breach of EU law just yet
...

Paola Faccini Dori v Recreb Srl where the claimant was walking through the Milan train station and
signed up for the language school
...
She claimed that there was a cooling off period for 7 days that she can pull out of
contract with no consequences
...

Although Italy disagreed, they were in breach of the directive because they didn’t transpose the
directive correctly into national law
...

In addition, consumers cannot derive from the directive itself a right of cancellation as against
traders with whom they have concluded a contract or enforce such a right in a national court
...

COJ held: They explicated denied the horizontal direct effect of directives, in contrast with the
judgment from their Advocate General
...
This is because in Article 288
regulations are and directives serve different objectives
...


Directives are addressed to member states and by themselves cannot impose obligation on
individuals
...

Directives are addressed to member states not individuals
...

Regulations are directly applicable, they are part of the legal systems of member states and can be
invoked by individuals in national courts against other individuals or by state against individuals
...
g
...
They unify the law
...
Hear about it in the news but don’t check the details
and ask our employers for annual leave
...
If there is a problem, I could sue foreign state, I would have
an enforceable right and so its vertical direct effect because its individual suing the member state,
whereas Adam working as an in house lawyer but in a private company cannot rely on this directive
because his employer is a private company
...
Firstly, this was evident where the courts
tried to keep vertical direct effect intact
...
Miss Marshall was dismissed at the age of 62, whereas a man wouldn’t have been
...
The Directive had not been
fully implemented in the UK
...
The UK
Government argued that Directives could only be invoked against the State, and that the Health
Authority in its capacity as employer did not constitute an emanation of the State
...
UK sent a reference of prelim ruling to the COJ
...
It follows that a Directive may not of itself impose
obligations on an individual
...
In either case it is necessary to prevent the State from taking advantage of its own failure
to implement the Directive
...
Marshall had case against the NHS,
as they act as an emanation of state
...

Plaintiff sue British Gas and back then was owned by the state (before it was privatised) and under
the act of parliament, the British Gas Act, the state was deciding the prices, management board etc
...

INDIRECT EFFECT
Provision the individual is relying on cannot produce direct effect
...
The courts developed two other remedies in case
direct effect doesn’t work e
...
indirect effect and state liability
...
2 This case concerned two
women who applied for jobs, but were rejected due to gender (females) prison guards filled with
dangerous men in there
...
The women sued them in the German court with three claims
...
First, they should force the regional
authority to hire them
...
Thirdly, they should have their costs covered which was postage of the application =
£2
...
Problem was the directive didn’t provide
remedies for those who are discriminated
...
Provision at
stake, MS shall provide adequate remedies
...
However, this wasn’t an effective remedy, individuals will be breaching
directives and domestic rules at their leisure because there is no consequences
...
Thus, the COJ said that in this immediate case, the
courts should interpret domestic rules in light of this directive and borrow from areas concerning
discrimination of race, gender or religion etc and where there are sanctions then apply them
accordingly
...

Marleasing – horizontal direct effect case – Spanish company law – two companies litigating based
on Spanish law not EU law, individuals suing each other
Spanish court expressed doubt concerning compatibility of Spanish company law with EU directive
on companies
...

Difference between direct effect and indirect effect – direct effect the claim is based on an EU
provision and if you’re right the court has to entertain your claim and potentially set aside domestic
law according to Simmenthal
...
Whereas, indirect effect applies where the basis of your claim is national law
...
According to the jurisprudence of the court, they may state that
they cannot do it there is too big a difference to fix it with interpretation
...


1
2

Catherine Barnard and Steve Peers, European Union Law
...
156
Pfeiffer (n 10), paras 110 – 115
...

Stemming from the case of Kolpinghuis Nijmegen
...
The Dutch court found him in breach of
the EU directive and was prosecuted to the COJ there is vertical effect
...
Dutch court send a reference to the COJ
...
Directives on themselves cannot impose obligations on individuals
...

Then the courts move to indirect effect because the national courts say should we interpret
domestic law in light of EU directive in order to aggravate the criminal liability of this individual
...
COJ stated the obligation to interpret national law in light of
the directive has limits, you cannot breach legal certainty just by means of interpretation
...

However, direct and indirect effect don’t work? STATE LIABILITY
...
Individual works in a company but doesn’t get paid for up to 3 months salary
...
Nevertheless, all member states have a fund to
which the businesses are aided, and the fund pays out the outstanding salaries
...
However, in this case it wasn’t so
...
Therefore, as the employer went bust, the employees submitted a claim to court arguing
to get their payment back, national court ordered company to pay them back
...
Firstly, they stated that Italy should pay under the
directive as required by the directive since they failed to transpose it, or Italy should pay damages
under state liability
...
Its only
clear, precise and unambiguous when it comes to who are the beneficiaries = employees
...
There is no direct effect
...
COJ held that member state maybe liable
for the breaches of EU law, as Italy failed to implement a directive on worker’s rights on time
...
g
...

Factortame – Spanish fisherman sues UK

Preliminary ruling procedure – Article 267 TFEU
-

-

National courts send a reference for prelim ruling to the COJ
COJ will provide assistance to the judges in interpretation and validity of the EU law
(treaties) and secondary legislation (regulations, directives, framework decisions, decisions),
accordingly the national court will stop their proceedings
COJ rules then national court will reopen their case
...

COJ will not interpret national law of member states, COJ will evaluate national law and
interpret EU law
...

-

-

-

Appeal – is limited to points of law and they need to prove to the SC that their appeal raises
new points of law
...

The SC will then look at the admissibility and see a new point of law, then its admissible
...

If the SC says no, then the CA is the court of last instance with the substance of the case not
SC
...
He was prosecuted and it went to the CA
...

Doubts of interpretation of EU law, they can then send a reference at the 1st stage of
proceedings since it’s from the SC
...
This is useful because the CA wouldn’t have known the judgment of the SC lest they had
submitted the extraordinary appeal
...
However, the court of no further remedy if they fail to interpret EU law in
accordance with domestic law, it’s the final judgment
...

SC sent reference to COJ because they have to according to Article 267, but they had no
doubts of interpretation
COJ agreed – what is clear doesn’t need to be interpreted
...
Its an unwritten rule check French, English and German
...

Under the doctrine of acte claire such courts are released from the obligation to refer if
interpretation of EU law doesn’t raise doubts
...

3) National courts should employ the same interpretation technique as the COJ with a
teleological and contextual interpretation

This created controversy because enables SC in various member states to hesitate in sending
reference to the COJ as they argue that the ‘interpretation of EU law is clear beyond doubt in
circumstances where a reference is, in fact, necessary
...

The effects of a preliminary ruling:
‘The prelim ruling on interpretation delivered by the Court of Justice is binding on the national
referring courts, but other national courts and public authorities should treat the ruling as
authoritative’
...
If in Austria and you’re employed in a university
for 15 years teaching, you receive benefits to be added to you salary
...
Having clocked 15 years yet
...
Therefore, this case went to Austrian supreme
administrative court where there is no further judicial remedy
...
Reference arrived from the administrative court, the registrar stated that
various judgments and sent it back to the court to read on the jurisprudence to help them
...
The final judgment was made by the Supreme court, they ruled this was
3
4

Catherine Barnard and Steve Peers – pg
...
301

in breach of EU law and there was no further appeal as the last instance court
...
They were inspired by the jurisprudence sent over but also, they
are waiting for potentially 3 years to just rule
...
They sent a
reference with a right to COJ, for interpretation of state liability, is he entitled to damages?
Why do they send reference for prelim ruling to COJ?
Court needs to prove the answer is needed for that particular case, it cannot be hypothetical
...

Da Costa – national court asked same question as in Van Gend en Loos, just follow previous case law
and jurisprudence there is no need to refer
Admissibility issues – may not be admissible due to the substance of references, court always
proceeds on the presumption of admissibility, the COJ will always help the national court and keep
the reference regardless of the registrar
...
Then because he was
imprisoned, he challenged the Austrian courts that they deprived him of free movement of persons
rights
...

Attia Vajnai – Hungarian case of a deputy head of the communist party who was caught parading in
the centre of Budapest with a huge red star attached to his jacket, this is a display of symbols of
totalitarian regimes are prohibited
...

However, the COJ stated that this isn’t our jurisdiction this is a human rights case (ECHR) not us
...

Ynos – sent reference regarding the directive on consumer protection, however the facts were
before accession, thus EU law didn’t apply
...
COJ
said EU law doesn’t apply its simply contractual, therefore, either the courts messed up the
reference or it doesn’t link to EU law at all
...
Thus, the COJ had to figure out what they wanted, and so reformulated
the question
...
COJ stated that competition law is
complicated therefore, they couldn’t answer them based on only a set of questions
...
Judge had an academic problem and dilemma on
company law, it looks highly abstract and hypothetical
...


Duration of prelim ruling procedures
The statute and the rules of procedure provide for two fast track procedures:
-

-

-

-

Accelerated procedure (Applicable to all types of cases) e
...
environmental protection, rule
of law, free movement of persons
...
The COJ decides whether it’ll be decided under
this procedure
...

Deadlines are very short, anything from 2 – 3 months, trouble is that no
...
g
...
National court may request it, but COJ will decide
whether they allow it, e
...
child dispute both different countries, which country should
decide then by default it is a PPU
...


Infraction procedures:
Ensure that the MS complies with EU law and the Jurisdiction belongs to the COJ not the General
Court
...
If nothing happens then the commission can resubmit the case under Article
260 and impose a penalty
...
Article is where the Commission v MS is penalised for
their non – compliance with the Article 258 judgment
...

Article 259 – MS can sue another MS for the breach of EU law
...
The court
agreed
...
This was followed by the tax authority and there was a knock-on effect
hence the breach brought by the Commission
...


Article 258: failure to fulfil an obligation under the treaties, is interpreted by the COJ:
-

-

Adoption of legislation contrary to TEU or TFEU – freedom of goods – Commission v
Germany
Failure to transpose a directive/partial/late transposition – Commission v Netherlands – a
single provision missed out
Conclusion of an international treaty – Commission v UK – commission sued member states
as they are not allowed to conclude on international agreements as it was the EU’s
competence
Non – application of EU law in a given case – Commission v Poland – commission submitted
the case to COJ, they also have option to submit interim orders for country to stop particular
practice (Factortame – court ordered UK to not let legislation apply until the judgment is
made)
...
Commission v Italy – COJ stated international law doesn’t work here, ruled out
reciprocity, the other MS didn’t comply the MS in question cannot use as a defence
...

Commission v Italy – MS couldn’t comply with EU law due to forces beyond its control under
force majeure – this maybe acceptable but in this case it wasn’t
...
Force majeure cant
be used for five years later, you had time to fix it
...

Compliance with EU law in practice, despite the lack of legislation – Commission v Belgium
No breach of EU law – Commission v Hellenic Republic – Greece applies reduced rate of
exercise duty on high voltage alcohol
...
Similar alcohol should be the
same tax rate, thus Greece was taken to court as they used a reduced rate of uzo
...
It was approved unanimously, and
they did accordingly
...

Breach of procedure by the European Commission – Commission v Belgium

Article 258 procedure:
-

Commission only with locus standi to commit the case to the COJ
It has wide discretion in this respect allowing the MS to go with minor breaches of EU law
which is controversial in itself – in terms of infraction proceedings
They receive information from individual complaints, individuals fill in a form they don’t
have to have legal interest and you cannot force the commission to take up your case

Two phases under Article 258 are the administrative and the judicial phases
...
There are no deadlines laid down in Article 258, so the Commission
has the discretion to set deadlines
...
(However, if the deadline is too short then the case
can be dismissed for the breach of procedure, as it doesn’t allow the MS to prepare a
defence)
...
It
is more detailed
...
In addition, if the Commission didn’t reply to the MS, though they have full
discretion to deadlines, it has to be reasonable or they’ll lose the case on procedural
grounds and undermining the defence rights of the MS
...
They are also able to request interim measures, which include financial
penalties evidenced in Commission v Republic of Poland
...

-

COJ may impose a financial penalty (lump sum or periodical payment) only in case when the
MS has failed to notify provisions transposing a legislative directive – Commission v Belgium
...

Functions of actions for annulment:
-

Ensure that the EU is in compliance with treaties
EU institutions comply with their conferred powers under founding treaties
Verify the situation where an EU institution has either adopted an illegal acct e
...
enacting a
directive that breaches the general principle of law
Outlet for power struggles

Jurisdiction of AFA:
-

-

Actions submitted by Individuals (natural and legal persons) v EU institutions it will always
go to the General Court but there is a possibility that there will be an appeal on the point of
law to the COJ
...

MS v Commission these cases go to the General Court
...


Applicants for AFA:
Privileged – MS, Council of the EU, European Parliament (initially they had no locus standi then
semi now privy) and European Commission – they can challenge legality of any EU legal act which is
reviewable and binding (regulation, directive or decision), therefore, they don’t need to prove legal
interest
...

Non – privileged – natural and legal persons (individuals) they have a limited locus standi – limited
access to the court, therefore EU legislation cannot be directly challenged by the individuals, thus
that’s where prelim ruling comes in
...

MS disagree with the legislation discussed in the Council of EU, they continue to litigate with AFA –
majority of cases are from the UK
...

Third countries and parts of MS are non – privileged applicants
...
Confederation
Suisse v European Commission – Switzerland challenged the decision of the Commission
...
Venezuela v Council – they challenged sanctions imposed on the
Venezuelan regime
...

Regulatory acts – when it is not addressed to you, you challenge the regulatory acts
...

Therefore, they need to prove that they are directly concerned by that legal act and that
there are no implementing measures required or to adopt legislation
...

Challenging what has been addressed to someone else – you need to prove two things to
have an admissible action for annulment (access to the court) – are you directly concerned
and individually concerned? The latter is incredibly difficult to prove, as the courts are
interpreting this notion in an extremely restrictive way
...
He
submitted arguments as to why him being on the list was illegal, therefore they were in breach
of fundamental rules governing the EU
...
EU decided that it would be better if we did this together with regulations as they are
directly applicable, thus freezing his assets
...
Also, there was no due process on the EU side either, they just copied and pasted
...
Therefore, the COJ annulled legislation because since there is no due
process, you can’t put people on the list
...

Direct concern – Les Verts (1986)
‘Complete set of rules which are sufficient in themselves and which require no implementing
provisions’
...
No implementing
measures are required
...
Sudden increase of cotton yarn (imported goods) from Greece to
France
...
Commission gave permission, decision addressed to France that they
may block import from Greece
...
COJ ruled that Greece were directly concerned and stated
that ‘no doubt any discretion left to the 3rd party (French government) will be exercised’
...

Also, only some of the exporters of Greece who had contracts with French counterparts were
considered to be individually concerned
...


Codorniu – EU regulation – the term ‘crémant’ may only be used for sparkling wines which are
produced in France and in Luxembourg
...
The court agreed and they annulled the legislation, because what made them peculiar
was the trademark
...

Germany asked the Commission authorisation to reduce the customs duty for clementine,
encouraging import
...
Decision is addressed to the government and they
request authorisation, they also got a no
...
He challenged legality of the decision and thus the decision was addressed to the
German government but he as an individual person, so he has to prove to direct and individual
concern
...

Plaumann Formula – there ought to be certain characteristics which are peculiar to such a person
(individual)
...
– INDIVIDUAL CONCERN
3 companies importing exotic fruits – not similar to the situation of the addressee, therefore,
Plaumann is not individually concerned
...

IATA – they challenged the legality of the directive, compensation for flight delays and cancellations
...
Not addressed to airlines but the
ergo unnamed
...
Accordingly, it was found that they were directly concerned as there was nothing
between them and legislation
...
Thus, they triggered the case, asking the UK national court to send reference
for preliminary ruling to check validity of the secondary legislation
...
COJ stated this was a good point, thus if there are serious doubts that national courts
have concerning validity of the directive, they should send a reference to the COJ regardless if they
are a first or last instance court
...

-

EU had no competence to regulate roaming charges, this was a breach of subsidiarity
principle
Suspend proceedings, send reference to the COJ
COJ held that there is nothing affecting the validity of the roaming regulations

Reviewable acts
-

Legislative acts are reviewable only by privileged applicants who have locus standi (MS,
Council of EU, European Parliament and European Commission)
Acts of Council, Commission and ECB other than recommendations and opinions
...


-

Acts of European Parliament and Council of EU intended to produce legal effects (binding
decisions) vis a vis third parties, can be challenged
...
However,
there cases whereby the COJ has allowed review of other types of acts
...
Advocate General stated that Poland could’ve as a non –
privileged state because they’re not a MS of the EU
...
The legal
act that was challenged was adopted in 2003, Poland joined EU 1st May 2004, challenged
the legality of act after the accession – 2-month limit
...

Polish govt, deadline ran from date of accession
...
COJ ruled that Poland had the locus
standi declared the action to be admissible without explaining why
...
Follow up case, for a new
MS two months deadline from the date of accession
...

Case of well-founded actions GC or COJ will declare an act to be void (annul), unless the COJ
decides otherwise
...
Thus, the Commission sued
the Council
...
Those who don’t activate their rights, Article 21 applies
...

-

-

-

-

-

Chinese couple with one child, couple with no financial issues but woman was pregnant
...
Irish law on nationality applies to entire island of Ireland even Northern
Ireland, thus Mrs Chen had a choice whether to make the child Chinese or Irish
...
Then they move to Cardiff and apply for leave to reside, for both the child and
mother
...
Home office stated this is a purely internal situation because you’ve
moved to two parts of the United Kingdom
...
Brother of
toddler and Father Chinese in china
...

COJ starts with the baby girl – start with the person who has the right under EU law, then
third country national can derive residence rights from the EU citizen
...
It’s not a UK citizen in the united kingdom that’s purely internal
...

COJ conditions: you need financial resources, comprehensive healthcare insurance and
cannot be a burden to social protection system – cannot be on benefits or ask for it
...

COJ – mother has right to reside derived from her daughter
...
This was unusual because it
was only the ECHR (charter) was in force as binding and applicable with the Lisbon Treaty in
2009
...
Court considered Article 8 and the child’s
right to reside
...


C-456/02 Trojani:
-

French national living in Belgium in a tent, then living in a hostel, then the salvation army
...

However, he wasn’t happy with the money he was receiving, so he applied for minimax –
which is minimum subsistence allowance from the state to meet his basic needs
...

Belgium sent a reference to the COJ – questions: is he a worker? Is he self – employed? Is he
a service provider covered by free movement of services?
COJ eliminated what was not applicable – He is not under Article 56 – free movement of
services – this covers temporary movement to country to receive or provide a service
...


-

-

-

-

Fundamental question – can he reside under the general right to reside – does he fulfil the 3
conditions as in Chen? No, he doesn’t fulfil, he wanted to receive benefits from the state
...
However, according to
jurisprudence, if the work is part of medical treatment it doesn’t make you a worker, it’s not
a genuine economic activity
...

However, case was pending at the court, then the referring court provided additional
information, Mr Trojani now has a residence permit in Belgium under Belgium law
...
Therefore, COJ looked beyond, at Article 18 TFEU provides prohibition
of discrimination on grounds of nationality
...

Interesting case – substantive and procedural law
...

Mr Zambrano worked for many years and paid taxes, however immigration status not sorted
out properly
...

Zambrano lost his job and applied for benefits to keep the family going till he found another
job
...

Belgium court sent reference to COJ – something wrong because Belgian citizens who are EU
citizens but cannot exercise their fundamental rights they might be deported to Colombia
...
In addition, she addresses the human rights issues, and compares this to Carpenter case
...
Lady from
the Philippines arrives in the UK under a tourist visa and overstays the leave to reside – she is
there illegally in the UK
...
Married, she
goes to the Home Office, but they stated that she will be deported regardless because she
overstayed her leave to reside
...
Lawyer asked the Carpenter – what do you do
for a living? He stated that he sells advertising spaces in medical journals, he meets his clients all
around the EU, he travels – he’s providing services according to free movement of services and if
his wife is deported to the Philippines it’s an restriction on his free movement rights because if he
loves her he will follow her and if not it will violate Article 8 right to family life
...

-

Therefore, in Zambrano – the COJ states if the children are deported that would deprive
them of the genuine enjoyment of their rights as EU citizens and a breach of citizenship
rules in Article 20 – every national of a MS is a citizen of the European Union
...
Thus, the Zambrano family
could invoke Article 20 to stay in Belgium
...

Jamaican husband was threatened with deportation
...

COJ said NO
...

Clear the jurisprudence of the court is very patchy, not always coherent or consistent
...

And Article 3 of the Directive says you need to MOVE and RESIDE
...

Then she acquired UK nationality to have both citizenships – Spanish and British
She got her British government BUT deactivated the movement rights of her husband
Under UK law – moment you acquire British citizenship, you’re treated only as a British
citizen regardless
...

COJ – Toufik is no longer beneficiary of Directive 2004/38 which guarantees the rights of
third country nationals because according to Article 3 you have the rights of EU citizen when
you move AND reside
...

However, COJ states that the aim of the Directive 2004/38 is to allow people to integrate
into the host societies
...
Although, this person doesn’t
derive rights from the directive, but they derive the right to reside under Article 21, thus
they almost create a resident right which in Article 21 isn’t there
...

Reside from 3 months to 5 years – worker (Article 45) if you provide services, renumeration
under someone else’s instruction, self – employed (Article 49) both directly affected
horizontally and vertically, student or self – sufficient (receive pensions or meet 3 criteria
e
...
financial criteria, not a burden etc)
...

Residence from 5 years+ - continuously without a long break unless for medical reasons,
pregnancy or army – there no further conditions and you AUTOMATICALLY have the right

to reside, you’re not granted permanent residence – BUT you can apply for a permanent
resident card, but this doesn’t confer rights but just affirms the rights you have
...
It covers family members in ascending and descending line
...
If it’s a third country who requires a visa to enter the host country, the visa
should be processed very quickly
...
Does the third country national
derive the right from the EU citizen or not?
Ireland – initially, third country nationals could only derive from EU citizens if they arrived
together whether happily or unhappily married
...

Irish court sent reference to the COJ
...
These nationals resided illegally in Ireland
...

This was a fast track procedure – it wasn’t only about the couples litigating but because
there were a lot of similar cases in Ireland
...
If the EU legislator wanted
to provide a restriction they would have done so in the Directive but clearly they haven’t
in the main text, text or the preamble – to suggest that the MS may limit the rights of third
country nationals who enter the country as already married to the EU migrating citizen
...
COJ says the
Directive provides a legal basis for national law for various procedures to check if people
are genuinely married or not
...


Permanent Residence
COJ in C-162/09 Lassal and C-325/09 Dias – periods of lawful residence in accordance with EU law
pre dating Directive 2004/38 counted towards the 5 years
...

Tomasz Ziolkowski– interesting judgment – COJ asked about periods of residence but based only on
national law
...
All of
them were residing on humanitarian grounds, arrived as teenagers
...
German authorities were happy to supply them with
...
Man and woman asked for the issue of permanent residence cards, but it wasn’t
necessary because it doesn’t confer rights, the permanent right to reside is automatic
...


-

-

-

-

-

National courts sent reference to COJ, do they qualify for permanent residence or not
...

Mystery solved = preamble and main text – this preamble explains the rationale of the
legislation and in this case the preamble provided clarity – as to lawfully being under the
Directive
...
To qualify you need to be a worker, self-employed or self-sufficient
...

COJ rather took a strict approach – this was in contrast to AG who suggested reading the
directive in the light of EU citizenship, rather COJ stated that to qualify for permanent
residence under Directive 2004/38 you need to reside continuously for 5+ years in
accordance with condition in the Directive
...


Regulation 492/2011 – applies automatically, it is directly applicable
...


C-310/08 Harrow v Ibrahim
-

-

Question was whether the child of a former migrating worker gives right to reside to the
other parent who is not economically active
...
She
has no children and fully relies on the husband
...
However, Mr
Ibrahim then departs and leaves woman with four children with no income whatsoever,
thus, she applies for benefits to feed children and have somewhere to live
...

She argued that she has the right to reside, triggering the right to education from the father
as a short migrating worker because 2/4 are at school
...

Question is – when does a parent stop being a primary carer? People say when others turn
18, growing old is compulsory but growing up is optional
...


Alarape – when does this period end? If someone resides for more than 5 years under the right to
education (different provision of EU law)– do they have a permanent right to residence?

-

COJ – said NO you have the right to reside, but it only become permanent when you clock 5
years from then and become a worker, student, self – sufficient or self – employed
...


C-480/08 Maria Teixeira v London Borough of Lambeth
-

COJ – Rights of residence ends when the child reaches maturity age unless the child
continues to need presence and care of the parent to ultimately continue their studies
...


Restrictions to Free Movement Rights
Article 45(3) – free movement of workers may be restricted on three grounds including: public
policy, public security, and public health
...
However, then Romania became a
MS in 2007
...

-

However, Mr Jipa argued the procedural requirements laid down in Directive 2004/38 apply
...

Right to exit – is explicitly regulated in Article 4 of the directive EU citizen has right to leave
country of nationality, without any formalities being imposed on one
...

Mr Jipa – didn’t desire to go anywhere, thus, could Article 4 apply in hypothetical situation –
no because it’ll be contrary to jurisprudence

*the rules apply to exit from one MS to another, not to exit to third countries*
Restrictions on grounds of public policy and security
-

MS may restrict free movement right on grounds of public policy or public security
5 – 10 years of residence, you could be deported on grounds of serious public policy or
security grounds
10 years plus – could be deported only on imperative grounds of security

PI case
-

Raping the daughter of his partner at the home
He’s an Italian in Germany lived there for 10 years plus
He was arrested then prosecuted

-

He can only be deported on imperative grounds of public security once served time in jail
German court and the Advocate General – he didn’t commit similar crimes outside of the
household but all at home – is he a threat to public security or not?
What is public policy or security? Cannot be the former because he has been there longer
than 10 years
...

Draw the line of public policy and security – COJ held that the ‘MS essentially retain the
freedom to retain the requirements of public policy and public security in accordance with
their national needs, which can vary from one MS to another and from one era to
another…these requirements must be nevertheless be interpreted strictly…’
...


Restrictions on grounds of health
-

Article 29 – only covers diseases with epidemic potential under the rules of WHO (incl
...

In serious cases, the MS may order a free of charge medical check of a person, but it cannot
be required as a matter routine
...

Individual must present a genuine present and sufficiently serious threat to the fundamental
interest to the society
...
g
...

In PI – Article 28 (2) and (3) are relevant – provides tailor – made rules applicable to
expulsion of persons benefiting from the permanent right to reside or residing for periods
longer than 10 years
...


*Commission v Belgium – Under Belgian rules applicable at the time, you couldn’t work as a
foreigner in the public railways because they were state owned – doesn’t matter if serving coffee,
driving train etc
- Commission took Belgium to the COJ – we know it is state owned but what does it have to do with
public service as that is rather civil service etc
- Commission then successfully brought the case to COJ under Article 258 – the court ruled that it is
an exception to the rule, interpret it narrowly, only applies to those jobs in the public service which
exercise official authority

Free movement of persons
EU citizenship:
-

Allows the right to move and reside freely within the territory of the MS – Article 21 TFEU

*Directive 2004/38/EC – governs free movement rights and only applies in accordance with Article
3 to those who MOVE and RESIDE
...

EU citizenship and internal situations:
C-200/02 Chen – time of one child policy
...
She
arrived in Belfast pregnant, home office didn’t notice so legally in Northern Ireland, she gave
birth to a baby girl
...
Child was an
Irish citizen
...
Back then pre directive 2004/38 had residence permits they had to have –
declaratory, no rights
...
Under legislation at the time – Parents could
derive rights from children but only when they were dependent on the children
...
Therefore, national court of UK sent reference for
preliminary ruling to the COJ
...


-

-

-

-

COJ: this is not a purely internal situation because you have an Irish citizen in the United
Kingdom
...
Even if the
government states that they are not Irish, regardless on paper they are Irish
...

Government disagreed because the child cannot fulfil those conditions, therefore, COJ
stated they have the right because child fulfils conditions despite her age
...
Moreover, the Advocate
General goes into human rights – right to family life – Article 8
...
The court had to consider, if the mother is deported to China, the child would end up
in an orphanage and it would break up the family
...

Accordingly, Ireland changed their rules on nationality after
...

He was covered by social occupational reintegration program – in the Salvation Army the
deal was to clean floors and his room etc and he would be provided with some money
...

Belgium authorities stated you’re not residing legally on the grounds of bot EU and Belgium
law
...

Article 49 – is he self-employed? – he would need to register with the national insurance
...

Is he a worker? – provide services for someone else, receive remuneration and their
control and instruction – he could qualify as a worker
...

COJ – status of social occupational integration program? – is it similar to various addiction
treatments you can receive or is it something else? This is for the national court to decide,
because they know more about this program, this is not for the COJ to decide
...
This
changed everything
...

COJ if he has right to reside under Belgium law, he falls under the Article 18, he is entitled
to the minimax as the Belgian citizens are
...


C-34/09 Zambrano
-

Two Colombian citizens residing in Belgium, received political asylum in Belgium, no longer
safe in Colombia
...
Therefore, Belgian children and Colombian parents residing in Belgium – this is
a purely internal situation because you have Belgian citizens in Belgium
...
Belgian authorities agreed they didn’t want them there anymore, they refused to give
him the benefits and wanted to deport the entire family
...


Advocate General Sharpston – this case encapsulates the weakness of EU citizenship and Article 21
on whether we have two rights – is it the right to move or reside OR right to move and reside? She
makes the points that according to citizenship rules, that goods have more rights than human
beings
...

Carpenter – UK citizen residing in the UK with two children from a previous relationship
...
She meets someone and they fall in love, they get married
...
This is a purely internal situation – because the UK citizen lives in
the UK but is married to a third country national
...
COJ – yes, it’ll be a
restriction on his free movement rights
...
The court
went beyond article 21 (court was heavily criticised for this)
...


C-434/09 McCarthy
-

-

They followed Zambrano
UK citizen with three children married to a Jamaican national but living in the UK
...
In order to protect him, woman figured
out she had Irish nationality and tried to trigger free movement of rights, to extend those
rights to her husband under Directive 2004/38
...
She has made this up, she had no links with Ireland whatsoever, no joy
...


*So, in McCarthy and Zambrano, the Directive 2004/38 doesn’t apply because they haven’t MOVED
...

C-165/16 Toufik Lounes v Sec of State for the Home Department
-

3rd country national residing in UK on the basis of a free movement right derived from his
spouse (Spanish)
Spanish lady arrived from Spain into the UK initially as a student then a worker, she fulfilled
criteria in EU law then married third country national and he derived rights from her
...

Reference sent to the COJ – she upgrades her rights but downgrades her husband’s rights,
thus this has become a purely internal situation
COJ – the MS can do that, acquiring citizen is domestic law and COJ isn’t trying to touch this
jurisdiction
...
So, this doesn’t apply to her and her family
...
This person reaches the ultimate integration and becomes a
national this shouldn’t have a negative effect on the family
...


Directive 2004/38/EC:
-

-

It had to be transposed to national law of MS – 2 years to transpose (April 2006)
This directive provides residence up to 3 months – no preconditions/ formalities required
...
g
...
You have those rights by force of the law, you don’t
need any proof
...


*The right to reside extends to family members, it doesn’t matter what nationality the family
members are
...
The Directive gives
automatic right to reside
...

C-127/08 Metock
•
•

•
•
-

Question raised – which point in time do third country national derive rights from their
family members who are EU migrating citizens?
Do they have to enter the host country happily married or EU migrating citizen arrives in the
host country, works then they fall in love with a third country national, but the latter is
already residing in the host country either legally or illegally
...

Danish and Irish were afraid of paper marriages, which led to the Metock case
...
This was three couples who were married to three
third country nationals
...
All three cases with
evidence submitted, marriages were genuine they were not paper marriages
...

COJ held that Irish law was contrary to the Directive 2004/38
...

Counter argument of the Irish government – we don’t want paper marriages
...
But you cannot restrict free movement rights in this way –
important judgment
...
They could benefit from the permanent
right to reside immediately as of 30th April 2006, which was the transposition deadline
...
People of polish nationality resided in Western Germany from 1989 onwards
...
Neither of them worked or any
self-employment but relying on benefits
...
Then
Directive 2004/38 adopted, and Poland joined the EU the following day, then the transposition
period expired
...
German
authorities said NO you don’t have the right to reside under EU law, you’ve only resided under
national law and you don’t meet the criteria on residence on humanitarian grounds, so they were
threatened with deportation
...
Thus,
Article 16 provides EU citizens who have resided lawfully in the host MS for 5 years plus have
the permanent right to reside – this Article doesn’t specify what lawfully means? This may
mean under the directive or even national law of the MS
...

Those who have resided under national law, do not have permanent residence under the
directive
...

However, one may argue that the fulfilment of this criteria you are fully integrated,
however, you can reside under national law and not engaged in economic activity but rather
social work – so you are integrated into the host society more than when you are under EU
law
...

Residence behind bars? Doesn’t qualify evidenced in Nnamdi v Sec of State
...

-

It deals with the substantive rights of workers

-

Article 10 – children of migrating workers, have the right to education (go to school), not
children of retired or those self – employed but only children of WORKERS
...

Third country national arrives in the UK, with husband who is Danish with four children
...
2 out of 4 children go to school, now the
husband gets a job he is a migrating worker Danish national residing in the UK
...

Local authorities state she doesn’t have legal residence, you’re a third country national and
no one knows where the spouse is, you’re not entitled to the benefits
...

National court sent reference for prelim ruling to the COJ
COJ stated by all means the woman has the right to reside as long as the children are in
education and she is the primary carer of these children
...
Thus, parents remain primary
carers remain so for years
...

In this case, the son was in Edinburgh and mum was in London – is she still a primary
carer? Which factors do you consider or take into account?
COJ – no rules are set in stone, each and every case needs to be assessed individually
...

Right of residence in the host MS of the parent who is the primary carer for the child of a
migrant worker – the child is in education in that MS – isn’t conditional on one of the
parents having worked as a migrant worker in that MS on the date on which the child
started his/her education
...

Right to exit
C-33/07 Jipa – Mr Jipa had been deported from Belgium to Romania in time for Christmas 2006 but
stayed in Belgium illegally, but he got caught and was deported
...
Therefore, Romania authorities issued an exit ban – if someone had been deported for

illegal residence beforehand, so you ground the person for 3 years to prevent shame being brought
to the country again
...

The decision has to survive proportionality test, public health, security and policy
Reference to the COJ – does the Directive apply and the limits with these restrictions
...

However, Article 3 of the directive, it applies only when you move and reside in another
country, so you need to activate your rights
...
Thus, he is a threat to public security
...
MS have room
for manoeuvre
...

infectious diseases or contagious parasitic diseases
...


General rules Article 27 of the Directive 2004/38:
-

Restrictions must comply with the principle of proportionality applied by the courts
Doubts the courts will send reference for preliminary ruling
Previous criminal convictions may not constitute ground for restrictions
...


Article 28 (1)
-

-

Before a person is deported, the authorities need to consider age, how long has been
residing, any links with country of nationality, person has family where is the family?
E
...
case of PI – COJ held Germany can deport man to Italy because he’s a criminal –
however others criticised this judgment suggesting that rather you may just be transferring
the problem to someone else, you don’t what could occur when he goes back to Italy, he
may even be a bigger risk due to no family – risk of re offending increases
...


Charter of fundamental rights – BINDING – courts must consider the charter – it is not
straightforward – applies when the MS act within the scope of EU law – they need to consider the
right to family life in Article 8
C-145/09 Tsakouridis
-

Check in Germany
Made pancakes on Island – Germany heavily engaged as a drug dealer – prosecuted for drug
trafficking
Question – deported? He was between 10 years of residence – public security v policy –
trafficking – could deport him to Greece

Public service exception
-

-

-

Article 45 paragraph 4 TFEU – free movement of workers does not apply to employment in
public service – option that employers may rely on, but doesn’t stop employers to hire non –
locals to perform jobs that exercise official authority – it is discretion
Restriction is an exception to the rule, thus it has to be interpreted restrictively
C-149/79 Commission v Belgium – commission brought case to COJ under Article 258 – that
such posts in fact presume on the part of those occupying them the existence of a special
relationship of allegiance to the State and reciprocity of rights and duties which form the
foundation of the bond of nationality
Furthermore – it applies to ‘posts which involve direct or indirect participation in the
exercise of powers conferred by public law and duties designed to safeguard the general
interests of the State or of other public authorities’

---