Cases C-456/12 O. and B. and C-457/12 S. and G.: Clarifying the inter-state requirement for EU citizens?

It is common knowledge that, barring exceptional circumstances, only EU citizens who exercise their free movement rights can invoke the right to be joined or accompanied by close family members. An EU citizen who moves to another Member State can take his close family members along, even if the latter are not EU citizens themselves; the same is true when the EU citizen later returns to his home Member State. So far, everything is pretty much clear.

 However, there still remains a large degree of uncertainty as to how much ‘movement’ is in fact required in order to be able to invoke this right. Does it suffice to go on a daytrip to another Member State (e.g. to visit an amusement park)? Does it suffice to work in another Member State without moving there? Is it necessary to reside in the other Member State for a number of months or even years?

 In her recent Opinion in Cases C-456/12 and C-457/12, AG Sharpston urges the CJEU:

‘to take the opportunity afforded by these two references to give clear and structured guidance as to the circumstances in which the third country national family member of an EU citizen who is residing in his home Member State but who is exercising his rights of free movement can claim a derived right of residence in the home Member State under EU law.’

 In what follows, I will briefly discuss the CJEU’s judgments and analyse their key points. As will become clear, the Court did in fact respond to the AG’s call, by providing further clarification on this point. Continue reading

Joined Cases C-293/12 and 594/12 Digital Rights Ireland and Seitlinger and Others: The Good, the Bad and the Ugly

In its eagerly anticipated judgment in the Digital Rights Ireland case, the European Court of Justice held that the EU legislature had exceeded the limits of the principle of proportionality in relation to certain provisions of the EU Charter (Articles 7, 8 and 52(1)) by adopting the Data Retention Directive. In this regard, the reasoning of the Court resembled that of its Advocate General (the facts of these proceedings and an analysis of the Advocate General’s Opinion have been the subject of a previous blog post). However, unlike the Advocate General, the Court deemed the Directive to be invalid without limiting the temporal effects of its finding. This post will consider the Court’s main findings before commenting on the good, the bad and the ugly in the judgment. Continue reading

Luxemburgerli: Groundhog Day in Luxembourg with Case C-322/13 Grauel Rüffer

luxemburgerli BildRemember the movie Groundhog Day, in which Bill Murray is caught in a time loop and relives the same day over and over again? Well, that’s a bit how the Court must have felt when being asked this question by the Landesgericht Bozen:

“Does the interpretation of Articles 18 and 21 TFEU preclude the application of provisions of national law, such as those at issue in the main proceedings, which grant the right to use the German language in civil proceedings pending before the courts in the province of Bolzano only to Italian citizens domiciled in the Province of Bolzano, but not to nationals of other EU Member States, whether or not they are domiciled in that province?” Continue reading

Neues aus dem Elfenbeinturm: March 2014

Strengthening the Rule of Law in Europe

University of Innsbruck, 3-4 April 2014. Registration still open.

Judicial Education and the Art of Judging:  From Myth to Methodology

University of Missouri’s Center for the Study of Dispute Resolution on Friday, 9-10 October 2014. Deadline: 26 May 2014.

Academy of European Law Summer Schools in Human Rights (16-27 June 2014) and EU law (30 June – 11 July 2014)

European University Institute, Florence. Deadline for applications: 10 April 2014.

The outer limits of article 18 TFEU? Case C-628/11 International Jet Management

On the face of it, one might consider the outcome of this Grand Chamber ruling unsurprising. The Court held that EU law precludes German legislation which establishes an authorization requirement for undertakings established in another Member State to provide services in Germany. That authorization requirement was not required for German undertakings, was established for reasons of protecting the national economy (!) and did not factually recognize an operating license granted on the basis of EU legislation by another Member State.

Yet, this ruling concerned the regulation of air transport services, which is not only subject to a particular regime under free movement law, but is also politically highly sensitive (national airlines are still seen as a source of pride by many) and still operates much in an international regulatory context which is not always in line with EU law and policy. The Court was therefore still required to answer some tough legal questions, in particular how to reconcile article 58 (1) TFEU (the prohibition on restrictions to provide services of article 56 TFEU does not apply to transport services which has its own regime) with article 18 TFEU (the prohibition of discrimination on the basis of nationality). The issue was further complicated by the fact that the authorization requirements were only required with respect to flights from and to third countries.

Continue reading

STC 26/2014: The Spanish Constitutional Court Modifies its case law in response to THE CJEU’s Melloni judgment

On 13 February, the Spanish Constitutional Court (“SCC” or the “Court”) handed down its awaited judgment in the Melloni case (STC 26/2014). The case concerned the problematic issue of differing levels of protection of fundamental rights at national and European levels in relation to the execution of a European Arrest Warrant (“EAW”). This affair was the source of the SCC’s first-ever preliminary reference to the Court of Justice of the European Union (“CJEU”). Following the CJEU’s ruling last year (Melloni, Case C-399/11, 26 February 2013), which has already been covered in this blog by V. Franssen, the SCC has now agreed to lower the degree of protection afforded by the Spanish Constitution in line with EU law.

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Case C-206/13 Siragusa: A further piece for the Åkerberg Fransson jigsaw puzzle

In this case of last week, the Court was confronted once again with the question of the scope of application of the Charter of Fundamental Rights as regards Member State action. Many will remember the landmark decision in Åkerberg Fransson on the subject; the decision essentially equated the scope of EU law with the scope of application of EU fundamental rights: where Member States act thus within the scope of EU law, they are bound by EU fundamental rights and the CJEU is the ultimate interpretive authority. The case has caused quite some controversy, with some suggesting a judicial overreach by a Court determined to become the final instance for fundamental rights in the EU to the detriment of national catalogues of fundamental rights and the national courts called to protect them. Nonetheless, other observers – to which I would count myself – have rather read the decision as the confirmation of the principles laid out by the Court in its previous jurisprudence on the topic (see also the coverage of the case on this blog). Siragusa seems to strengthen this view in a number of ways. First, the result of the case can be considered as due deference towards national courts and fundamental rights protection at the national level. Moreover, the Court also uses extensive and systematic references to earlier case law to put its decision in context with the previous jurisprudence. Lastly, there is a valuable attempt to develop a first set of explicit criteria which might serve as future guidance to separate the national and the EU spheres of judicial competence in fundamental rights protection. Continue reading

Melloni as a Wake-up Call – Setting Limits to Higher National Standards of Fundamental Rights’ Protection

I plead guilty: this post on the Melloni ruling of the CJEU should have been written long ago. However, instead of invoking attenuating circumstances, I prefer to draw your attention to the reasons why a blog post on this case still is highly relevant today. First, Melloni is a true landmark case with respect to the relation between EU and national standards of fundamental rights in the field of criminal justice. Central issue in this case was whether Member States are still allowed to impose a higher level of fundamental rights’ protection for cross-border cooperation in criminal matters than the standard set by EU law. Second, Melloni has become ‘hot’ again thanks to the recent follow-up judgment of the Spanish Constitutional Court, which shows the real impact of the CJEU’s ruling and which will be discussed in a separate post by M. García García.

Continue reading

Prison time and EU Citizenship: Cases Onuekwere (C-378/12) and M.G. (C-400/12)

Two recent cases dealt with the question whether periods of imprisonment must be taken into account for the calculation of periods of residence under the Citizenship Directive. The cases are interesting for European citizenship law, as they provide further insight into what the ‘fundamental status’ of EU citizenship entails. In particular, the cases are interesting because the Court was required to meander between a more republican reading of citizenship (rights need to be earned) and a liberal reading of citizenship: rights are granted to all citizens even if they are no model citizens.    Continue reading

Neues aus dem Elfenbeinturm: February 2014

The Image(s) of the ‘Consumer’ in EU Law: Legislation, Free Movement and Competition Law

St. Anne’s College, University of Oxford, 27-28 March 2014. Registration deadline: 28 February 2014.

What Form of Government for the European Union and the Eurozone?

Tilburg Law School, 5-6 June 2014. Deadline : 9 March 2014.