Category: Free movement of persons

Free Movement of Same-Sex Spouses within the EU: The ECJ’s Coman judgment

By Alina Tryfonidou

Introduction

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’. 

Continue reading

Neues aus dem Elfenbeinturm: April 2018

Conference “Sovereigns and citizens in the Brexit bargain: Do rights count?” (Prof. Takis Tridimas)

Université de Liège, Amphithéâtre Portalis, 23 April 2018 (15:30-16:30).

Summer School “Parliamentary Accountability and New Technologies: Transparency, Privacy and Security Challenges”

LUISS Guido Carli University, Rome, 9-20 July 2018. Deadline for applications: 29 April 2018.

Call for papers: Edited Volume “Legal Impact Assessment of Brexit”

Deadline for submissions: 9 May 2018.

Workshop “The International Legality of Economic Activities in Occupied Territories”

T.M.C. Asser Institute, The Hague, 17 October 2018. Deadline for abstract submissions: 15 May 2018.

Conference “Procedural rights in criminal proceedings in the EU”

Universities of Utrecht, Leiden and Maastricht, 13-14 September 2018. Deadline for applications: 15 May 2018.

Conference “Human Rights Laws at a Crossroads: What Directions after Brexit?”

University of Leicester, 25 May 2018. (Free) registration necessary.

Workshop “Constitutional Protection of Minorities – Comparing Concepts, Models and Experiences in Asia and in Europe

University of Trento, 4-5 May 2018. Registration necessary.

Summer School “Comparing Constitutional Adjudication – Islam in Constitutional Adjudication in Europe”

Dimaro, Italy, 30 July-3 August 2018. Deadline for applications: 26 April 2018.

Seminar “The Western Sahara Campaign Case”

Queen Mary University of London, 3 May 2018. Registration necessary.

Case C-355/16 Picart: The narrow interpretation of the Swiss-EU Agreement on the Free Movement of Persons as a lesson for Brexit?

By Benedikt Pirker

Last week, the Court handed down a decision on the provisions of the Agreement on the Free Movement of Persons (AFMP) between Switzerland and the EU. It denied that a French national who had moved to Switzerland and who wanted to rely on the AFMP’s freedom of establishment provisions to challenge a French legal mechanism of exit taxation on unrealised capital gains could do so. The case is of interest for those following Swiss-EU relations, as the ECJ had (and missed) the opportunity to say more on the rather specific version of freedom of establishment enshrined in the Agreement. At the same time, there are also certain lessons to be learned for the interpretation of future agreements of the EU with third countries dealing with access to the internal market and the free movement of persons (looking at you, Brexit). Arguably, there is a certain meandering in the reasoning of the Court on the AFMP, and this latest case seems to demonstrate a return to the early days of a more restrictive interpretation, based to a substantial degree on the fact that Switzerland has said no to the internal market. Below, I will briefly explain the facts of Picart and the decision of the Court. Then, I will examine in more depth the above claim on the Court’s shift in interpretive methodology and the alternative approaches to the interpretation of the AFMP that could have been taken. Continue reading

The EU Single Market Information Tool: The European Commission’s new investigative power in 2018

By Gianni De Stefano and Jaime Rodríguez-Toquero

The European Commission is about to gain a new investigative power through the Single Market Information Tool (SMIT).  The SMIT will allow the Commission to request information (including factual market data or fact-based analysis) from private firms or trade associations when the Commission initiates or substantiates infringement proceedings against one or more Member State(s) that may have failed to fulfil an obligation under the applicable Single Market legislation.  This post will discuss the background of the SMIT, its purported rationale, and critically reflect on the powers granted to the Commission under the SMIT.

The Commission is at pains to clarify that the SMIT initiative does not aim to create new enforcement powers allowing it to pursue infringements of Union law in the Single Market area against individual market participants.  That said, the Single Market rules can be infringed by either Member States or private companies.  Therefore, companies responding to such information requests will not only incur administrative and financial burdens, but they will also have to be careful not to incriminate themselves in doing so, as we will see below.

Continue reading

Neues aus dem Elfenbeinturm: October 2017

Call for Papers : Workshop on Challenges and Opportunities for EU Parliamentary Democracy – Brexit and beyond

Maastricht University, 18-19 January 2018. Deadline for abstract submissions : 20 October 2017.

Workshop « The Political and Legal Theory of International Courts and Tribunals »

University of Oslo, 18-19 June 2018. Deadline for abstract submissions : 1 November 2017.

Workshop: « Resolving the Tensions between EU Trade and Non-Trade Objectives: Actors, Norms, and Processes »

Utrecht University, 10 November 2017. Deadline for registration: 3 November 2017.

Conference « The future of free movement in stormy times »

The Hague University of Applied Sciences, 21 November 2017. Deadline for (free) registration: 13 November 2017.

Call for Participants : European Law Moot Court 2017-2018

Deadline for team registrations : 15 November 2017.

Call for Papers: « The neglected methodologies of international law »

University of Leicester, 31 January 2018. Deadline for abstract submissions: 15 November 2017.

Call for nominations: International Society for Public Law Book Prize

Deadline for nominations: 31 December 2017.

Call for Papers : ESIL Annual Conference « International Law and Universality »

University of Manchester, 13-15 September 2018. Deadline for abstract submissions : 31 January 2018.

Neues aus dem Elfenbeinturm: May 2017

Conference on the Legitimacy of Unseen Actors in International Adjudication

The Hague, 26-27 October 2017. Deadline for abstract submissions: 31 May 2017.

Call for applications: Summer School „Fundamental Rights and EU Trade Agreements”

University Centre of Bertinoro, 25-30 June 2017. Deadline for applications: 15 June 2017.

Conference “Freedom under Pressure – Data protection and privacy, the freedom of movement in the EU and property protection”

Ghent University, 7-8 December 2017. Deadline for abstract submissions: 15 June 2017.

Workshop “Resolving the Tensions between EU Trade and Non-Trade Objectives: Actors, Norms, and Processes”

Utrecht University, 10 November 2017. Deadline for abstract submissions: 1 July 2017.

Conference “Constitutionalism in a Plural World”

University of Porto, 22-23 November 2017. Deadline for abstract submissions: 15 July 2017.

Call for Papers for the Irish Journal of European Law Volume 2017 on Brexit

Deadline for submissions: 28 July 2017.

Neues aus dem Elfenbeinturm: August 2016

PhD Forum “Law and Governance in a Crisis-Ridden Union

Netherlands Institute for Law and Governance, Vrije Universiteit Amsterdam, 17 November 2016. Deadline for abstract submissions : 4 September 2016.

Call for papers “The Migration Crisis as a Challenge for Democracy

Centre for Direct Democracy Studies, University of Białystok. Deadline for abstract submissions : 10 September 2016.

Could it all have been avoided? Brexit and Treaty-permitted restrictions on movement of workers

By Gareth Davies

Of course, it wasn’t all about immigration. But that claimed flood of Eastern Europeans was certainly at the heart of the leave campaign, and, unusually for an immigration debate, it was their right to work in the UK that was the political issue: there were too many of them, they were pushing down wages, they were keeping the low-skilled native out of work, they were costing the government a fortune in in-work benefits, they were making towns and villages unrecognisable and alienating the more established inhabitants.

Whether or not they were true, a lot of these claims seemed to be shared by both sides. Cameron didn’t so much deny them, as offer counter-claims (but they do add to the economy) and promises of change (if you vote remain, we’ll have a new deal and be able to do something about it!).

So the question is this: if the government thought that free movement of workers was causing such terrible problems, why didn’t it impose restrictions years ago when the post-Enlargement flood was at its high point and the issue first became prominent? Continue reading

Neues aus dem Elfenbeinturm: July 2016

Conference “The Concept of International Constitutional Law”

Vienna University of Economics and Business, 23 September 2016. Deadline for (free) registration : 16 September 2016.

Conference “Movement of People – A Comparative Conference on Migration

University of Hamburg, 23-24 September 2016. (Free) registration necessary.

Conference “An Administrative Procedure Act for the EU?”

University of Lund, 24 November 2016. Deadline for (free) registration : 10 November 2016.

After the referendum and before Brexit… Where now for workers’ rights in the EU?

By Rebecca Zahn

The British referendum on the country’s continued membership of the EU has dominated the political and media landscape both in the UK and abroad for the last few months. There has been a plethora of academic commentary on the possible consequences of a British exit (‘Brexit’). On 23 June, based on a turnout of 72%, 52% of the electorate voted for Leave, while 48% supported Remain. This narrow majority disguises dramatic differences between different regions: Scotland, Northern Ireland and large parts of London voted to Remain whereas substantial sections of Wales and most of England voted to Leave.

In the run-up to referendum day, workers’ rights were invoked repeatedly by both sides of the campaign as either a reason to back or oppose Brexit. Leave campaigners, such as Patrick Minford, Professor of Economics at Cardiff Business School, argued that the UK needed to reset its relationship with the EU to ‘jettison excessive protection and over-regulation, notably in the labour market’. Domestic employment laws originating from the EU legislature, such as the much vilified Working Time Directive, have often been described as a burden on business, inflexible, uncompetitive and inefficient. On the other hand, Remain campaigners such as Frances O’Grady, General Secretary of the British Trades Union Congress (TUC), warned repeatedly that ‘working people have a huge stake in the referendum because workers’ rights are on the line’ and the link between the UK’s membership of the EU and better protection of workers’ rights featured heavily in campaign material opposing Brexit. Continue reading

Restriction of the freedom of movement for beneficiaries of international protection (Joined Cases C‑443/14 and C‑444/14, Alo and Osso v Region Hannover)

By Margarite Helena Zoeteweij

Introduction

On 1 March 2016 the Court of Justice of the European Union gave its judgment in the joined cases of Ibrahim Alo and Amira Osso, Cases C-443/14 and C-444/14, ruling that the EU’s Qualification Directive does not sanction the imposition of restrictions of the freedom of movement for beneficiaries of subsidiary protection, and that such a limitation is not justifiable for reasons of territorial sharing of social assistance burdens, while at the same time leaving it up to the referring German Federal Administrative Court to decide whether the limitation can be justified for  reasons of migration and integration policy. The judgment comes in the midst of Europe’s biggest migrant crisis since World War II, and affects especially the rights of the beneficiaries of subsidiary protection status – those seekers of international protection that do not qualify as ‘refugees’, – the number of which is currently booming in Europe. The judgment will have instant and far-reaching consequences on the leeway of the national authorities in their dealings with beneficiaries of subsidiary protection status, especially since the Court confirms that, in principle, refugees and beneficiaries of subsidiary protection status are entitled to the same catalog of rights contained in Chapter VII of the Qualification Directive. Continue reading

Short-term Residence, Social Benefits and the Family; an Analysis of Case C-299/14 (García-Nieto and others)

By Dion Kramer

Following its strict findings in the Dano and Alimovic judgments, the Court of Justice of the European Union could not but state the obvious in case C-299/14 (García-Nieto and others): Member States may exclude economically inactive EU citizens from social assistance who are residing in the host Member State for a period shorter than three months. Again, the Court opts for legal certainty in rigorous and explicit terms and emphasises the objective of preventing the foreign EU citizen from becoming an unreasonable burden on the host Member State’s social assistance system. However, just like with Dano and Alimanovic, this comes with a human cost. This time the Court neglected the possibility to give a more substantial meaning to the unity of the family, allowing discrimination towards the migrant worker. Continue reading

Neues aus dem Elfenbeinturm: January 2016

Seminar „Rethinking EU Competences“

Inter-University Center, Dubrovnik, 17-23 April 2016. Deadline for abstract submissions: 31 January 2016.

Conference „Europe’s crisis: What future for immigration and asylum law and policy“

Queen Mary University of London, 27-28 June 2016. Deadline for abstract submissions: 15 February 2016.

LCII Conference „Regulating Patent ‘Hold-up’“

Brussels, 29 February 2016. Deadline for (paid) registration: 25 February 2016.

ASIL Interest Group Meeting „Regional Approaches to International Adjudication“

Washington, 30 March-2 April 2016 (exact date TBD). Deadline for abstract submissions: 1 February 2016.

POMFR: Reviewing Protecting Vulnerable Groups – what about Hector Salamanca and Donald Gately?

By Thomas Burri

Francesca Ippolito/Sara Iglesias Sánchez (eds.), Protecting Vulnerable Groups – The European Human Rights Framework, Hart Publishing 2015

Hector Salamanca was vulnerable. The Mexican was old and, after having suffered a stroke, tied to the wheel chair. He had no means of communication save a tiny bell he barely managed to ring. After most of his family was dead, he lived the life of a lonesome vegetable in a nursing home.

Donald Gately is vulnerable. His sense of honour and duty as a staffer at Enfield House Drug and Alcohol Recovery House had practically compelled him to defend a drug addict who had got involved in a fight. In the fight, Don G. was shot in the shoulder. Now, he is tied to the hospital bed, suffering from inhuman pain, pain from which only opioids could bring relief – though not for him, for opioids had been the focus of his long history of substance abuse and now he is desperately abstinent.

Protecting Vulnerable Groups is a great book. It made me see all of the above (and more) in a new light. To be sure, Protecting Vulnerable Groups is not a book about Breaking Bad or Infinite Jest. It is not an economic, sociological, or socialist book either, despite the appearance the title creates. No, Protecting Vulnerable Groups is a rock solid book on the law, in particular case law. It explains how the European Court of Human Rights and the European Court of Justice attend to the vulnerable. Sometimes, the courts explicitly find persons vulnerable, as in MSS v Belgium and Greece when an asylum-seeker was declared “particularly vulnerable” (Protecting Vulnerable Groups, p. 249); sometimes the idea of vulnerability is merely inherent in the courts’ case law. Both occurrences are discussed extensively in the book. Continue reading

Top ten most read posts of 2015

By the editors

As is becoming a tradition with our blog (albeit a bit late this year), we present to you our top 10 most read posts of the last year. We have had another good year of blogging behind us: more readers contributing to the content of the blog with 33 posters coming from approximately 14 different countries this year. Equally important is that readership is steadily increasing according to Google Analytics (plus: we now have almost 1600 email subscribers and 2400 followers on twitter). Most of you are from the UK, followed by the Netherlands, Belgium, Germany, the United States, Italy, Sweden, France, Ireland and Poland, respectively.

Keeping in mind that there is a certain bias in favour of older posts which have had more time to become popular, this is the 2015 list of most read posts of the year: Continue reading

Had they only worked one month longer! An Analysis of the Alimanovic Case [2015] C-67/14

By Dion Kramer

In November 2014 the Dano judgment attracted unusual public attention, not least because of its importance for UK Prime-Minister David Cameron’s campaign against the phenomenon of ‘welfare tourism’. Although political and administrative attention has been redirected towards the mounting refugee crisis, scholars, administrators and some politicians have been eagerly awaiting the CJEU’s Alimanovic judgment in the sensitive field of EU citizens’ right to equal treatment as regards access to national welfare benefits. Dano made clear that Member States may reject claims to social assistance by EU citizens who have no intention to work and cannot support themselves. Alimanovic gave the Court the opportunity to clarify the application of this principle in the more complicated factual situation of an EU citizen who applies for social benefits after having worked for 11 months. In its bid to contribute to ‘legal certainty’ and ‘transparency’, Member States will for sure welcome the Court’s judgment, but the legacy of Brey still complicates the desired carte blanche for national authorities to refuse any claim to social assistance by indigent EU citizens. Continue reading

POMFR: Viking, Laval and the Question if Anybody Cares

By Christopher Unseld

Viking, Laval and Beyond”, edited by Mark Freedland and Jeremias Prassl, constitutes the first volume of Hart’s new series on “EU Law in the Member States”. In the series’ foreword Sacha Prechal lays out how crucial it is to understand the “genuine life of EU law in the Member States” since EU law – of course – is generally transposed, applied and enforced at the domestic level. But that is easier said than done. One needs good knowledge of EU law, domestic and comparative (EU) law to come close to some understanding of what Prechal calls EU law’s genuine life. And, let’s be honest, it is often hard enough to keep up with the current developments in EU law while not losing touch with domestic legal issues. Continue reading

Neues aus dem Elfenbeinturm: May 2015

Summer Schools “Dublin III: Two Years on”, “Venice School of Human Rights”, “Venice Academy of Human Rights”

European Inter-University Centre for Human Rights and Democratisation, Venice, 19-21 June/26 June – 4 July/6 – 15 July 2015. Deadline for application: 21 May 2015/check website.

Conference “The European Convention on Human Rights and General International Law”

European Court of Human Rights, Strasbourg, 5 June 2015. Deadline for registration: 28 May 2015.

Summer School “The Protection of Fundamental Rights in Europe”

University of Bologna, 28 June – 3 July 2015. Deadline for application: 10 June 2015.

Conference “20 Years Later: The Legacy of Bosman”

TMC Asser Institute, 18 June 2015. No deadline for registration.

Neues aus dem Elfenbeinturm: March 2015

Seminar “The Future of EU Free Movement”

University of Edinburgh, 26 March 2015. No deadline for registration.

Call for Papers: Soft Law before the European Courts

Maastricht University, November 2015. Deadline for abstract submissions: 30 March 2015.

Call for Papers: The Extraterritorial Application of EU Law

Vigo, 18-19 June 2015. Deadline for abstract submissions : 1 April 2015. Continue reading

Top 10 Most Read Posts of the Year

With the end of the third year of operation of the European Law Blog approaching, it is once again 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