Category: Free movement of persons

Mutual trust and transnational ne bis in idem: A further step made by the CJEU (C-398/12, M., 5 June 2014)

By Michele Simonato

Ne bis in idem is one of the key principles of EU criminal law. On the one hand, it is an important individual safeguard for suspects and convicted persons in the EU, as it protects against double prosecution and double punishment. On the other hand, it is the only mechanism – although imperfect and insufficient – to regulate conflicts of jurisdiction in the Area of Freedom, Security and Justice (AFSJ). A final judgment in one Member State indeed prevents another Member State from (further) prosecuting the same person (again) for the same facts.

Last June the Court of Justice (CJEU) issued an important judgment regarding the scope of the transnational protection against double jeopardy. The decision of the CJEU further expands the concept of ‘final decision’ triggering the ne bis in idem, confirming the validity of the previously consolidated trend which, on the one hand, recognises a strong importance to the mutual trust between Member States, and on the other hand acknowledges the inherent link between ne bis in idem and the freedom of movement in the EU.  Continue reading

EU-freedom of movement: No protection for the stranded poor

By Gijsbert Vonk

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.

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Detention of irregular migrants – The Returns Directive shows its true colours in Mahdi (C-146/14 PPU)

By Niovi Vavoula

Directive 2008/115/EC on the returns of irregular migrants (or, less neutrally, ‘illegally staying third-country nationals’) has been the subject of fierce criticism and not without good reasons. In an attempt to make the legal framework clearer, the Court of Justice of the European Union (CJEU) has been called to interpret its provisions on numerous occasions (such as Kadzoev, El Dridi, and Achughbabian). In particular, with regard to Article 15 on the detention of irregular migrants prior to their removal the Court has so far explained how the period of detention should be calculated and when there is a ‘reasonable prospect of removal’ (Kadzoev); it has precluded the incarceration of irregular migrants during the return process on the sole ground that they remain on the territory of a Member State even though an order to leave exists (El Dridi), and it has attempted to strike a balance between the right to be heard and the efficiency of the administrative procedure to extend the period of detention (G & R).

In the past few months one has witnessed the re-emergence of the issue of pre-removal detention. The judgment in the case of Mr. Mahdi, released on the 5th June 2014 by the Third Chamber, is central in this regard and raises mixed feelings. On the one hand, the Court provides the national authorities with important guidelines with a view to ensuring –at least to a certain extent- the right of irregular migrants to effective remedies. On the other hand, it seems to lack inspiration when dealing with harder questions that require a constructive approach beyond the mere replication of the provisions of the Directive. Continue reading

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

By Nathan Cambien

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

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

luxemburgerli BildBy Benedikt Pirker

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

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: Recent calls for papers from December 2013

12th session of the Jean Monnet seminar in Dubrovnik: The Legal Profession Before and After Accession

Inter-University Centre in Dubrovnik, 13-18 April 2014. Deadline: 15 January 2014.

Seminar & workshops on the rights of Third Country Nationals under EU bilateral treaties

Özyeğin University Faculty of Law, Istanbul 22-23 May 2014. Deadline: 1 March 2014.

C-418/11 Texdata: All quiet on the Åkerberg Fransson Front

We have covered on this blog the remarkable Åkerberg Fransson decision (see here and here), in which the Court essentially held that the scope of application of EU fundamental rights was identical to that of the scope of application of EU law itself. The Texdata case – apart from some internal market law aspects we will subsequently cover as well – can mostly be seen as a confirmation of that case law. This is remarkable because the setting in the case is less contentious than in Åkerberg Fransson, but the Court seems to be willing to use already this early opportunity to confirm and emphasize that Åkerberg Fransson is the law and here to stay. The case concerns a requirement in Austrian company law which creates – based on Article 12 of Eleventh Council Directive 89/666/EEC – a system of automatic penalty payments for the failure of a capital company in another Member State with a branch in Austria to submit certain accounting documents within a nine-month period. The Court was called to examine the compatibility of this system with the Directive, with the freedom of establishment and with the principle of effective judicial protection and the rights of defence as enshrined in Articles 47 of the Charter of Fundamental Rights and 6 (2) of the European Convention on Human Rights.

While I cannot go into every detail of the case for the present post, I will first cover the scrutiny by the Court under the requirements of the Directive, which helps to understand the details of the Austrian regime of sanctions; I will then briefly address aspects of the freedom of establishment; and last but not least I will focus on the scope of fundamental rights review exercised by the Court. Continue reading

Case E-15/12 Jan Anfinn Wahl: Hells Angels invade Iceland

An interesting case not only for ‘Sons of Anarchy’ fans was handed down by the EFTA-Court this week. The scenario is somewhat similar to the early, well known Van Duyn case law, where the Church of Scientology was at issue. In the present case, a member of the Norvegian Hells Angels was denied entry into Iceland because the Icelandic authorities argued that he played a central role in the final stage of accession of an Icelandic motorcycle club as a new charter in Hells Angels. The Supreme Court of Iceland referred a number of questions to the EFTA Court, most interesting to us regarding the interpretation of Article 27 of Directive 2004/38/EC. To quite some extent, the EFTA Court reiterates here what it had already established in Van Duyn long ago. However, there are three points I find interesting: The insistence on the need for the individual in question to constitute a genuine and sufficiently serious threat; the treatment of the dangerous organization by the State in question; and finally the findings on the alleged discrimination of non-nationals.

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From a formalist to a substantive understanding of equal treatment in higher education (Case C-20/12 Giersch)

The case Giersch, decided on the 20th of June, dealt with residence-based restrictions on financial aid for students. According to Luxembourg law, students received financial aid if they were residents in Luxembourg, regardless of nationality. The measure was challenged on the basis of Article 7(2) of Reg No 1612/68 (now Reg No 492/2011), which requires equal treatment in regard to social advantages, which also includes financial grants for children of workers who are students (Bernini).

The plaintiffs were children of frontier workers employed in Luxembourg, who would not receive student aid, however, because they had not resided in Luxembourg. The Court found the residence requirement to be indirectly discriminatory. Luxembourg replied that the measure was justified as a means of „increasing the proportion of residents with a higher education degree in order to promote the development of the economy“. The Court accepted this as a legitimate objective able to justify differential treatment, and also recognized that a residence requirement could be an appropriate instrument to achieve that goal.

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President is not (primus inter) pares among ‘his’ own EU-citizens, since he is not equal to them

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.

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