Case C-93/18 Bajratari – Unlawful Employment and the Right to Free Movement

By Maria Haag

On 2 October 2019, the CJEU delivered an important decision, which clarifies the ‘sufficient resources’ condition of Article 7(1)(b) Directive 2004/38 and simultaneously reinforces the right to free movement of Union citizens.

The case concerned the right of a third-country national mother of two minor Union citizens to reside in Northern Ireland in her capacity as their primary carer. The UK authorities had found that the mother could not claim a derived right of residence as the children did not fulfil the requirements set out in Article 7(1)(b) of Directive 2004/38. This provision sets out two conditions for the Union citizen’s right of residence in a host Member State for a period longer than three months: having (i) sufficient resources for themselves and their family members not to become a burden on the host state’s social assistance system, and (ii) comprehensive sickness insurance cover.

Specifically, in this case, the UK authorities argued that the minors could not prove compliance with the requirement for sufficient resources. While their father did place resources at their disposal, the UK authorities argued that such resources could not be taken into account for the purposes of Article 7(1)(b), as they had derived from employment carried out unlawfully after the expiry of his residence card and work permit.Continue reading

Fashion-ID: Introducing a phase-oriented approach to data protection?

By René Mahieu and Joris van Hoboken

Introduction

Fashion ID revolves around a German consumer protection organization, Verbraucherzentrale NRW (a public service organization), which filed a lawsuit against Fashion ID, an online fashion shop, about the placement of a Facebook “Like” button on the shop’s website. The inclusion of the like-button on Fashion ID’s website results in the transmission of personal data to Facebook’s servers when a visitor enters the website. This happens (i.) without the visitor being aware of that, (ii.) regardless of whether the visitor is a member of Facebook, and (iii.) regardless of whether the visitor actually clicks the like-button. According to the Verbraucherzentrale, the website operator has not provided information, nor collected consent for this processing of personal data, in accordance with its obligation under the Data Protection Directive (DPD). Continue reading

Tracing Root of Movement Rights: EU and Mercosur

By Kim Rust

The attribution of regional free movement rights is not a European phenomenon. Academia and political discourse, however, often frame EU policy as the masterpiece among a sparse variety of approaches which grant free movement rights to regional nationals. The oscillations of Brexit and wave of refugees into Europe over recent years have brought to the surface tensions and uncertainty surrounding movement rights in the EU, which Ursula von der Leyen and a newly composed Commission will be called upon to respond to in the near future. This blog post is a reorientation in our approach to free movement, stepping away from the euro-centric approach which often characterises academic and political discussion. The following contribution offers a comparison between free movement in the EU and Mercosur. South America is ill-explored in migration literature, though it represents a rich ground for comparison. This blog builds upon the work of Dr Diego Acosta in his recent publication The National versus the Foreigner in South America, and strives to map a series of “membership configurations” in the EU and Mercosur. These configurations help to identify the bases of movement rights for regional nationals, test the strength and accessibility of these rights and draw conclusions as to whether movement rights can be more concretely guaranteed, and liberally, indiscriminately attributed.Continue reading

Neues aus dem Elfenbeinturm: September 2019

Conference “Recognition of status filiationis established abroad: European perspectives and national resistance”

University of Udine, 24 October 2019. Deadline for abstract submissions: 15 September 2019.

2020 ESIL Research Forum “Solidarity: The Quest for Founding Utopias of International Law”

University of Catania, 23-24 April 2020. Deadline for abstract submissions: 30 September 2019.

First Jean Monnet NOVA-EU workshop “Digitalisation, Ethics and EU Fundamental Rights”

Maastricht University, 9-10 January 2020. Deadline for abstract submissions: 31 October 2019.

Call for Papers “European State Aid Law Quarterly”

Manuscripts accepted on a rolling basis.

Advocate General Bobek on One of us – Legal Clarity vs Political Debate

By Jasmin Hiry

On 29 July 2019, Advocate General Bobek confirmed the General Court’s ruling in One of Us. His opinion in Case C-418/18P Puppinick and Others v European Commission has been much awaited, as it deals with a so far largely unaddressed aspect of the European Citizens’ Initiative (ECI) – the potential outcome of a successful initiative.

Background

The ECI was introduced with the Lisbon Treaty and constitutes the first supranational tool of participatory democracy. It allows one million citizens, from at least one quarter of the Member States to invite the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties (Article 11(4) TEU & Article 7 Regulation 211/2011). Regulation (EU) No 211/2011, which will soon be replaced by Regulation (EU) 2019/788, lays down the concrete procedure and conditions required for an ECI. The procedure consists of three steps – (1) registration, (2) collection of support and ultimately, (3) submission of a successful initiative, which is one that meets the threshold of one million supporters, to the Commission for examination. So far, the case law has largely dealt with the first stage of this procedure (see e.g. C-589/15 P Anagnostakis or C-420/16P Izsák and Dabis). Puppinick, however, is the very first case before the Court of Justice dealing with the outcome of an ECI.Continue reading

Commission v Germany (c-377/17): Do exceptions in tariff regulation matter?

The European Law Blog will be taking a summer recess. We’ll be back end of August with new commentaries, including on key Summer developments. Please do send us on your contributions throughout this period and we will get back to you in due course. Happy Holidays to all our readers!

By Valentin Vandendaele

Lawyers, engineers, architects, and other liberal professions, i.e. ‘occupations requiring special training in the liberal arts or sciences’, tend to be subject to heavy regulation. Such regulation may preserve a high service quality or shield consumers against malpractice (see the European Commission’s Report on Competition in Professional Services (COM(2004) 83 final, paras 1 and 28). In a similar vein, Member States have adopted legislation setting minimum and maximum prices in an attempt to ensure service quality by preventing excessive competition on price or to protect consumers from excessive prices.

One example of such legislation is the German Honorarordnung für Architekten und Ingenieure, which was the matter of contention in the Commission v Germany case (C-377/17). This decree fixed minimum and maximum tariffs architects and engineers could charge for their planning services. In its judgment, the Court of Justice of the European Union (Court) ruled that these tariffs constituted requirements falling within the scope of Article 15(2)(g) of the Services Directive (2006/123/EC). This was true even though the German measure provided for multiple exceptions allowing the legal minimum and maximum tariffs to be disregarded. Advocate General (AG) Szpunar had more openly suggested that these exceptions were inconsequential under Article 15(2)(g). Finally, the Court held that the German tariff regulation did not satisfy the conditions in Article 15(3) to be compatible with the directive.Continue reading

Neues aus dem Elfenbeinturm: July 2019

Conference “EU Agencies as ‘Inbetweeners’? The Relationship between EU Agencies and Member States”

Maastricht University, 4-5 December 2019. Deadline for abstract submissions: 31 July 2019.

3rd Young European Law Scholars Conference “Shaping the Future of Europe”

University of Salzburg, 27-28 February 2020. Deadline for abstract submissions: 1 September 2019.

Conference “Application Of The Succession Regulation In The EU Member States”

University of Silesia, Katowice, 12 September 2019. Deadline for registration: 2 September 2019.

Yearbook of European Law Annual EU Law and Policy Conference “EU Law in the era of the Fourth Industrial Revolution”

University College London, January 2020. Deadline for draft paper/extended abstract submissions: 8 September 2019.

Wolves and the Habitats Directive, a misread opinion in C-674/17?

By Anna Heslop

On 8 May the CJEU issued an Advocate General’s Opinion in case C-674/17 Luonnonsuojeluyhdistys Tapiola, on the hunting of Wolves in Finland.  With the final decision of the court due in the coming weeks it is useful to analyse whether the nuance of that opinion is being lost in the public reaction by interested groups, who have taken it as a green light for hunting protected species.

The Habitats Directive (Directive 92/43/EEC on the conservation of natural habitats of wild fauna and flora) requires member states to establish a system of strict protection for animal and plant species listed in Annex IV of that Directive, including Canis Lupus – Wolves[1].  Article 16(1) allows member states to derogate from that strict protection in limited circumstances and provided certain stringent tests are met.  There must be no satisfactory alternative, the derogation must not be detrimental to the maintenance of the population at favourable conservation status in their natural range and derogations may only be applied for specific reasons, in summary:

  1. in the interests of protecting wild flora and fauna and conserving natural habitats;
  2. to prevent serious damage to crops, livestock, forests, fisheries and water;
  3. in the interests of public health and public safety, or for other imperative reasons of overriding public interest;
  4. for the purposes of research or education, for example for repopulation or reintroduction;
  5. to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens in limited numbers specified by the competent national authorities.

These derogations have been the subject of a number of legal cases over the years, and the case law of the CJEU makes it clear that any derogations should be interpreted strictly (see e.g. C-6/04, para. 111 and C-508/04, para. 110).

Case C-674/17 concerns a preliminary reference from the Supreme Administrative Court of Finland for guidance on the interpretation of Article 16(1)(e) of the Habitats Directive in relation to derogations for the hunting of wolves.  A final decision in the case is awaited in the coming weeks. Continue reading

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