The recent judgement of the European Court of Justice in C-591/17 Austria v Germany was a Member State dispute about the enactment of a motorway charge in Germany. The Court of Justice of the European Union (hereinafter: CJEU) addressed one of the core concepts of the European legal order – the non-discrimination principle enshrined in Article 18 of the Treaty on the functioning of the European Union (hereinafter: TFEU). Questions had to be answered: (1) Can the cumulative introduction of a vignette system and a vehicle-tax relief amount to an indirect discrimination? (2) Should political considerations be taken into account by the Court? (3) Is Article 259 TFEU a suitable tool to solve Member State disputes?
The case is particularly interesting due to the use of Article 259 TFEU, which Austria invoked to bring Germany before the CJEU. Article 259 TFEU is rarely used due to its blaming character of the alleged rule-breaker. Many Member States would prefer that the European Commission (hereinafter: EC), as guardian of the treaties, leads the investigations into an alleged breach of EU law by a Member States. However, Article 259 TFEU can be seen as a last resort measure by a Member State, if the Member State sees its interests or the interest of its citizens jeopardized.
In the case at hand, Austria brought the measure before the CJEU since many Austrians use the German highways due to proximity and transnational road travels through Germany. Austria based its claim on two characteristics. First, (i) the new motorway charge would be payable by all users of the motorway network in Germany and second (AG opinion, para. 5); (ii) owners of vehicles registered in Germany are granted a tax relief equal to the amount of the motorway charge (AG opinion, para. 5). Austria argued that the combination of these two measure factually amounts to an indirect discrimination of EU citizens when they use German highways.
This commentary presents the relevant political backgrounds leading up to this case, discusses the Court’s judgement and reflects upon the wider implications of Case C-591/17 for the development of an EU-wide vignette system for light vehicles, the use of Article 259 TFEU and the questions of political accords between the EC and a Member State. Continue reading →
Tjebbes is a bold and yet thoughtful judgment. It pushes the boundaries of the role of EU law in nationality matters and yet does so in a manner that both respects the primacy of the Member States in regulating this area of law, and acknowledges the genuine Union-interest in the manner in which denaturalisation decisions impact on Union citizens. It provides a follow-up and elaboration of the judgment in Rottmann, confirming the applicability of Union law in nationality law and detailing the nature of its intervention. This intervention is of both a procedural and a substantive kind, requiring an individual examination of any decision withdrawing nationality having regard to a set of consequences linked to the status of Union citizenship. Continue reading →
In the domain of politics, trial and error are frequent occurrences. Through trial and error we tend to discover that political decisions, policy choices and even customary ways of doing things are no longer sustainable and thus in need of revision. There is nothing wrong in recognising mistakes or misjudgments and changing course. The doors of perception are not always fully open for human beings; information asymmetries, errors of judgement, ideological standpoints and self-interest often lead individuals to poor visualisations of the future and thus to imprudent actions. Continue reading →
Part II of the UK-EU Withdrawal Agreement provides extensive protection of the rights in the United Kingdom and the EU-27 that EU citizens currently derive from Article 21 TFEU. However, the Agreement is silent on the preservation of the rights to vote and stand as candidates in municipal and European Parliament elections that EU citizens derive from Article 22 TFEU. This ossifies a conception of EU citizenship as a status of passive ‘juridical objectity’ to the detriment of a conception of the status as one of political self-determination. This means that following the United Kingdom’s withdrawal from the European Union the voting rights of EU citizens within the United Kingdom and UK citizens within the EU-27 will revert to the discretion of the national legal orders. Therefore, I will argue in this piece that it would be more normatively desirable for the European Union’s legislature to adopt measures in order to preserve these electoral rights for UK citizens. The first section below will detail the arguments for why this would be acceptable, before the second section considers the legal methods by which this could be implemented. Continue reading →
Some have assumed that one of the consequences of Brexit is that EU citizens, who can currently vote in all elections in the UK except for those which choose MPs in the UK Parliament, will lose that right once, and if, the UK leaves the EU. In fact, Brexit will not automatically mean EU citizens in UK will lose the right to vote in elections for local government and the devolved legislatures. That is because the right of EU citizens to vote in local government elections is set out in the UK’s own domestic legislation. Therefore, all the rights of EU citizens to vote in other member states arises out of EU law, because that right is now contained with UK law, the fact that UK will no longer be a member of the EU does not change that provision giving EU citizens the right to vote in local elections. In that respect, they will join the citizens of many other countries who, although they have no right deriving from a treaty to vote in UK elections, nevertheless have such a right. For example Commonwealth citizens, if they have leave to enter or remain in the UK, or do not require such leave, can register, vote, and stand in all UK elections even though there may not be any reciprocal right for UK citizens to vote in elections in that Commonwealth country. Continue reading →
The UK is scheduled to leave the EU on 30th March 2019 at midnight, Brussels time, by automatic operation of EU law (Article 50(3) of the Treaty on European Union(TEU) and, indeed, according to section 20(1) of the UK’s EU (Withdrawal) Act 2018. Consequently, the UK will not be participating in the May 2019 European Parliamentary (EP), Elections. Its 73 MEPs, including the 3 MEPs representing Northern Ireland, will be gone. This post appraises, first, the ramifications of Brexit for electoral rights of EU-27 citizens resident anywhere in the UK as a ‘third country’ and, second, the unique electoral predicament of residents in Northern Ireland. It argues that, unless Member States (MS) act promptly, hundreds of thousands of their citizens, qua Union citizens, stand to be disenfranchised this coming May – a democratic outrage that can and should be averted. Continue reading →
On 22 October 2018, New Europeans and the Federal Trust held the event ‘EU citizenship rights in the shadow of Brexit’. Since that date, the end-game of Brexit has gathered pace. On 14 November, the Draft Withdrawal Agreement and political declaration on the future relationship between the UK and the EU was published. The UK government announced that a ‘meaningful vote’ would be held in the House of Commons on 11 December, before postponing on the eve of the vote leading to the Prime Minister weathering a vote of no confidence by Conservative MPs and the announcement that the vote would be held in the third week of January. Part 2 of this Agreement provides extensive protection for the legal rights of UK nationals in the EU-27 and EU citizens in the UK; however, it may be argued that this ossifies a conception of EU citizenship as one of juridical objectity rather than political self-determination. At the European level, the Court of Justice of the European Union held in its Wightmanjudgment on 10 December that the United Kingdom would be free to unilaterally revoke its notification under Article 50 in accordance with its own constitutional requirements. Continue reading →
The story of Romano Pisciotti is the first ever case that resulted in extradition of an EU citizen to the US on antitrust charges. On 10 April 2018, the Court of Justice rendered its second ruling in the saga. Before, in Case C-411/14 P, the Court declared inadmissible Pisciotti’s complaint that the European Commission had not instigated infringement proceedings against Germany for breach of EU law. In the most recent case (C-191/16), the German court referred questions to Luxembourg concerning compatibility of the different treatment in extradition cases of German nationals and other Member States’ nationals with EU law. When Member State nationals are treated differently than nationals of other Member States, such extradition practices may raise questions of compatibility with EU free movement law and the principle of equal treatment. Continue reading →
In its much-awaited judgment in Coman, delivered earlier this month, the Court of Justice ruled that the term ‘spouse’ for the purpose of the grant of family reunification rights under EU free movement law, includes the same-sex spouse of a Union citizen who has moved between Member States. This means that in such situations, the Union citizen can require the State of destination to admit within its territory his/her same-sex spouse, irrespective of whether that State has opened marriage to same-sex couples within its territory.
This is a landmark ruling of great constitutional importance which has the potential of changing the legal landscape for the recognition of same-sex relationships within the EU. It is, also, a judgment which is hugely significant at a symbolic level, as through it the EU’s supreme court made it clear that it considers same-sex marriages as equal to opposite-sex marriages, in this way reversing the discriminatory stance it had adopted in the early 00’s, when it ruled in D and Sweden v. Council that ‘[i]t is not in question that, according to the definition generally accepted by the Member States, the term marriage means a union between two persons of the opposite sex’.
On 8 May 2018, with the judgment in K.A. and others vs. Belgium, the Court of Justice of the European Union (ECJ) has added another piece to the now quite big puzzle that surrounds the legal status of EU citizens (and their third country family members). It ruled that Article 20 TFEU can be violated if a Member State refuses to examine a request for family reunification of a EU citizen with a third country national solely on the basis of an existing entry ban against the third country national. The Court argued that if the refusal compels the EU citizen to leave the territory of the EU as a whole, it deprives EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status. Like in the Zambrano case, the EU citizens in K.A. had never exercised their right to free movement.
Just a quick reminder of the Court’s main findings in Zambrano: In that case, Belgium had denied a right of residence to a Colombian father of two Belgian minors. The Court held that, by not giving the father of a Belgian child a derived residence right, Belgium will oblige the child to leave the territory of the EU as a whole, and therefore deprive the child of the genuine enjoyment of the substance of the rights’ conferred by the EU citizenship status. It was argued – and here is the revolutionary aspect – that this even applies in purely internal situations, e.g. where the EU citizen has never exercised his or her right to free movement. Normally, EU law only applies in situations with a cross-border element. Continue reading →
Many Europeans in the United Kingdom and British citizens on the continent are currently wondering whether they should adopt the nationality of their host state, in order to guarantee their residence rights after Brexit. One disadvantage of doing this is that they cease to be foreigners, people living in a state ‘other than that of which they are a national’ (Article 3, Citizenship Directive) and so lose all the specific rights that EU law grants to migrants in a host state, most notably those concerning family members. These migrants’ rights are largely found in the Citizenship Directive, and are the basis for the provisions on Citizens’ rights in the draft Brexit Withdrawal Treaty. Ceasing to be a foreigner thus creates legal risks, as well as advantages.
Lounes has now added an interesting twist to this situation. The essence of this judgment is that a migrant Union Citizen who naturalizes cannot be compared to a native citizen – their migrant history means that they should be treated differently, and continue to enjoy the rights they had as a migrant. It holds out the possibility of the best of both worlds for the potential Brexit victim. On the one hand, all the security that comes with possessing the nationality of their host state. On the other, all the privileges that come with being seen as a migrant in EU law. The draft Withdrawal Treaty, published on 28th February, seems to take this approach too. However, before the champagne can be uncorked we must wait for the final Treaty text, for it would only take small changes in the way that it defines those it protects to spoil the naturalization party. Continue reading →
Update (19/6/2018): On 19th June 2018 the Amsterdam Appeal Court decided not to refer the question of whether EU citizenship is automatically lost with Member State withdrawal to the Court of Justice of the European Union. The questions were declared ‘insufficiently concrete’ in light of the hypothetical nature of the complaint. It remains to be seen whether the legal dispute could re-surface if and when the issue of the loss of EU citizenship does become concrete when the United Kingdom’s withdrawal from the European Union is finalised. The judgment (in Dutch) can be found here, and a summary (in English) here.
Introduction: A New Route from Amsterdam to Luxembourg
Despite the United Kingdom’s impending withdrawal from the European Union, a direct Eurostar train route from London to Amsterdam will soon be established. This route will enable, amongst others, all of those holding the status and rights of EU citizenship to move ‘freely’ between the two metropolises. This class still includes nationals of the United Kingdom, and ostensibly will continue to do until that Member State’s withdrawal is concluded in accordance with Article 50 TEU. An incorporeal yet no less direct route has now also been established between Amsterdam and Luxembourg as a result of a preliminary reference by the Rechtbank Amsterdam (‘District Court’) to the European Court of Justice (‘ECJ’) under Article 267 TFEU. Such a judicial pathway may facilitate retention of the status and rights created by Article 9 TEU and Article 20 TFEU for the aforementioned nationals of the withdrawing state. Continue reading →
When Britain leaves the EU there will be several million citizens of other Member States living in the UK, and probably around a million UK citizens living elsewhere in the EU. What happens to their rights when they suddenly cease to be living in the EU, or to be a Union citizen? This was one of the three ‘divorce’ issues that were addressed in the first phase of Brexit negotiations (the others were the Northern Irish border and the financial arrangements around withdrawal). That phase ended in December 2017 with a joint report to the Council setting out a basis for a future withdrawal agreement.
The citizen’s rights chapter of this report (paras 6-41) was the easiest to negotiate. The reason for this is that the UK, even fervent Brexiteers, had always maintained that it had no desire to throw out Union citizens already living in the country, and so very quickly the two sides could agree on a guiding principle: a freezing of the status quo. Those with Union rights at the time of the breakup would continue to enjoy them for as long as they remained, even if that be for life, while those who migrated after the Brexit date would fall under whatever new regime might be negotiated. The position of those who may arrive during a transition period, if one is negotiated, was not discussed, and is now the subject of fierce exchanges.
Thus where Union citizens and family members live in the UK on the basis of the citizen’s rights directive (2004/38), or Article 21 TFEU, or where UK citizens and family members live in other member states on either of these bases, at the date of withdrawal – which will probably be 30th March 2019 – then they will continue to enjoy the same rights, including non-discrimination and rights regarding social assistance, as they did before. The rights of their future children will also be the same as if the directive still applied, even if the children are adopted, conceived or born after Brexit. Moreover, the right to be joined by family members falling within Article 2 or Article 3(2) (partners in durable relationships) will continue after Brexit, provided that the relationship existed before Brexit day. The right to be joined by other Article 3 family members, such as more distant dependents, appears to be dropped after Brexit. For those who have lived in their host state for more than five years, their right of permanent residence, which gives them a right to social assistance if necessary, will continue provided they do not spend more than five years continuously abroad. Continue reading →
Economic activity has been the Holy Grail of free movement of persons since the start of the European integration project. In case of unemployment, through article 7(3)(b) of Directive 2004/38 mobile EU citizens keep their status as ‘worker’ if they have worked for more than a year in their host Member State and thereby earn a continued right to reside and access to social benefits. However, does this provision also apply to mobile Union citizens who have been self-employed? In contrast to the Irish Department of Social Welfare, the Court of Justice of the European Union answered this question positively in the Gusa-case of 20 December 2017: EU law also protects the self-employed when they cease work due to circumstances beyond their control. Although this outcome is perhaps not so spectacular in terms of legal reasoning, it might help strengthen the rights of a significant number of self-employed EU citizens in the run-up to the ‘Great Divorce’ following the Brexit-vote. The case was also spiced up in advance by a controversial interpretation of the right to permanent residence by the Advocate-General. Continue reading →
Can the Netherlands deny a third-country national (TCN), who is the primary carer of Dutch children, the right to reside? Two weeks ago, the Court of Justice of the European Union (CJEU) held in Chávez-Vílchez and Others that under EU law it cannot. In this important Grand Chamber decision, the CJEU has reaffirmed and expanded its landmark Ruiz Zambrano decision. Continue reading →