Citizenship is typically conceived of as membership in a political community, carrying with it certain rights and obligations, and especially the right to participate in the government of that community. Union citizenship has until recently been deficient in that regard. Despite the existence of a democratically elected assembly since 1979 in the form of the European Parliament, the links between this parliament and the status of Union citizenship have been ambiguous with the parliament representing not a single group of Union citizens but rather the ‘peoples’ of Europe, those peoples being defined by Member States and national law.
The Treaty of Lisbon changes that paradigm, stating boldly that the European Parliament represents no longer the peoples of Europe but rather the ‘citizens of the Union’. The link between Union citizenship and the European Parliament being made apparent, it was perhaps only a matter of time before the Court drew the conclusion that the rights of Union citizenship contained a stand-alone right to vote in European Parliamentary elections. That decision has just occurred in the judgment in Delvigne. Continue reading →
This judgment triggers a myriad of socio-legal questions pertaining to the EU multi-level health governance, including the rising area of sexual risk regulation, as well as questions regarding EU sexual citizenship, and more particularly the discrimination of Lesbian Gay Bisexual Trans (LGBT) individuals. The case, moreover, sheds light on the role scientific expertise plays in domestic and supranational courts, and the interplay between legal discourse, scientific knowledge, rights and identity politics. In this blog post, we offer a brief outline of the Court’s decision and highlight some of its controversial legal and normative aspects. Continue reading →
With the end of the third year of operation of the European Law Blog approaching, it is onceagain time to take a brief look back at the most popular posts of the year. Based on our Google Analytics statistics and keeping in mind that there is a certain bias in favour of older posts which have had more time to become popular, we receive the following little tour d’horizon of EU law… Continue reading →
A perceptive follower of the development of the case-law on access to court and justice in general might have noticed that the less willing the Court of Justice to loosen up the constraints in regard of the locus standi for non-privileged applicants, the more generous it seems to be towards the actual acts which can be amenable to judicial review. Be it for the reasons of democracy and rule of law or for the broadening of its competences, it is apparent that the Court is following this path.
This post shall provide a concise view on one of such cases, namely the recent judgment of the Grand Chamber of the Court of Justice in case C-261/13 P Schönberger v Parliament, where the Court assessed the decisions adopted by the Petitions Committee of the European Parliament (Parliament), by which a petition is either found admissible and further processed or declared inadmissible, in view of the possibility to challenge such decisions before the EU Courts. Continue reading →
Case-note on C-333/13, Elisabeta Dano v Jobcenter Leipzig
The Dano case goes right to the heart of the debate on social tourism. Are economically inactive EU-citizens, residing in a Member State of which they are not a national, entitled to social assistance which is granted to nationals of that host Member State? Directive 2004/38/EC (the EU Citizenship Directive) does not oblige Member States to provide for such assistance, but Art. 18 TFEU, Regulation 883/2004 on the coordination of social security and the Charter of Fundamental Rights might do so in the end. These were the elements at stake in the Dano case.
On 16 January 2014, the CJEU ruled on case Reyes regarding dependent family members in the EU free movement law. The Court was asked to consider whether a family member of an EU/EEA citizen can be required to have unsuccessfully searched for employment in the country of origin in order to be regarded as a ‘dependant’ and whether for the interpretation of the same notion any importance should be attached to the intention of the family member to find employment in the host Member State.
In its judgment, the Court stated that family members cannot be required to prove that they have searched for a job in the country of origin and that whether they will eventually manage to find employment in the host Member State is an irrelevant factor with regards to the interpretation of ‘dependant’. The judgment is useful as it complements the previous jurisprudence of the Court regarding this issue and adds further details on the notion of dependence which is particularly important in the field of immigration law.
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?
‘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 →
Remember 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 →
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 →
2013 is the European Year of Citizens and so we kick off the New Year with a discussion of one of the more contested aspects of EU citizenship, namely the right of (static) EU citizens to be accompanied by third country national (“TCN”) family members in their own Member State. Specifically, in joined cases C-356/11, C-357/11 O, S & L, decided on 6 December 2012, the Court was asked whether a TCN step-parent could derive a right of residence from the Union citizenship of his step-child
Situated at the interface between EU citizenship, immigration law and the fundamental right to family life, this issue has proved to be a vexing one for the Court of Justice. Continue reading →
On 16 October 2012, the CJEU delivered its Grand Chamber judgment in the infringement procedure (Case C-364/10 Hungary v Slovakia) which was initiated by Hungary against Slovakia for refusing the Hungarian President entry into Slovakian territory. It is already quite rare that Member States initiate infringement procedures against each other. Normally the Commission takes up this task, as guardian of the Treaties, but it refused to do so in this case.
Mr Sólyom, the President of Hungary, was invited to a ceremony for the inauguration of a statue of Saint Stephen of Hungary (a Medieval Hungarian King) in the Slovakian town of Komárno. The ceremony was planned for 21 August 2009. 21 August is a sensitive date in Slovakia, since Warsaw Pact troops, among which were Hungarians, invaded Czechoslovakia on 21 August 1968. Therefore, Slovakian authorities found the planned visit inappropriate.
This period around the end of summer breaks is probably a busy time for everyone, so I will keep it short; as always, readers of this blog are very much welcome to point out and discuss some points in more detail in the comments if so desired. In this case, the Court was asked about the content of the obligation to ‘facilitate’, in accordance with national legislation, entry and residence for ‘any other family members’ (set out in Article 3(2) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely) who are dependants of a Union citizen. For this wider circle of ‘other family members’ (as opposed to the narrow circle of family members set out in Article 2 (2) of the Directive), Member States enjoy a broader margin of discretion and do not have to grant an ‘automatic’ right of entry and residence (para 20). The Court also clarified some matters on the situation of dependence that must be given for such a family member under Article 3 (2), but I’ll focus on the first point for the purpose of this post. Continue reading →
Removing persons from a community because of a crime they committed is a common phenomenon in law. In medieval England, sources show that men ‘of particular ill-repute’ or presented for serious crimes were forced to ‘abjure the realm’, sometimes even if they passed the procedure of an ordeal (J Hudson, The Formation of the Common Law, Longman, London 1996, 177). More modern international law renders such a mixture between an immigration measure and criminal punishment somewhat more complex: A state can no longer simply expel its own nationals. Still, for foreigners the question continues to arise whether a crime they committed should exclusively be tackled with the tools of criminal law or whether that crime should be seen as a rupture of the bonds of integration between the foreigner and society, resulting in the foreigner’s expulsion.
This thorny question is raised by the case of P.I. Mr I has lived in Germany since 1987. From 1990 onwards, he comitted acts of sexual coercion, sexual assault and rape on his former partner’s daughter who was 8 years old when the offences began. His acts were only discovered later, because he continuously threatened and isolated his victim. In 2006, he was eventually convicted to a term of imprisonment of seven years. By a decision of 2008, Mr I was ordered to leave the territory and lost the right to enter and reside in Germany.
In the appeal to this decision and the subsequent preliminary reference to the CJEU, the question arose whether the long period of residence should prevent an expulsion or whether the nature and context of the crime Mr I committed called for a different solution. Directive 2004/38 on the right of EU citizens to move and reside freely creates a system substantially based on an ever ‘greater degree of protection against expulsion’, the ‘greater the degree of integration of Union citizens’ becomes (recital 24). For Union citizens who have resided for ‘many years in the territory of the host Member State’, an expulsion measure should only be taken ‘where there are imperative grounds of public security’ (ibid.). Putting these objectives into practice, Article 28 of the Directive requires in its first paragraph that before taking an expulsion decision based on ‘public policy or public security’, factors to be taken into account by a Member State are the period of residence, age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of links with the country of origin of the EU citizen. The second paragraph raises the bar, requiring ‘serious’ grounds of public policy or public security for those Union citizens having gained the right of permanent residence. Finally, the third paragraph provides that in cases where a Union citizen has resided in the host Member State for the previous 10 years, ‘imperative grounds of public security’ must be brought forward to justify an expulsion decision.
In his Opinion in the P.I. case delivered on March 6 this year, AG Bot came up with a curious reading of ‘integration into society’ when dealing with a potential expulsion of an EU citizen who is a permanent resident. In the view of the learned AG committing a crime ‘shows a total lack of desire to integrate into society’ (para. 60), disqualifying the criminal from protection against expulsion (para. 49). This curious reasoning potentially deprives the status of permanent residence under directive 2004/38/EC of much of identifiable meaning.
The Citizenship directive (directive 2004/38/EC) regulates the conditions under which nationals of a Member State can move to and reside freely within the territory of the Member States. In short, the directive introduces a system in which the longer you live in another Member State, the more rights you have. For the Court, the length of residence is proof of a certain level of integration into the society of the host Member State (see for instance case C-158/07 Jacqueline Förster).
Expulsion, for example, is almost impossible after 10 years of prior legal residence. Article 28(3)(a) provides that an expulsion decision may only be taken against Union citizens legally resident for a period of 10 years on ‘imperative grounds of public security, as defined by Member States’. From Tsakouridis (C-145/09) we already know that dealing in drugs can provide such an ‘imperative ground of public security’. But what if we are dealing with the rape of a step-daughter? The issue of the case in P.I basically comes down to the need for the Court to clarify when EU citizen permanent residents can be sent back to their Member State of nationality, which, in turn, necessitates answering the question about the meaning of the ‘imperative grounds of public security’.