European Court of Justice - Free

European Court of Justice Free Movement of Persons Essay From early on it became clear to close observers of the EU that the role and rule of law were going to be critical in anchoring EU policy regimes. If the legal system could ensure a high rate of compliance, a way of giving authoritative interpretation to disputed texts, and a means of redress for those for whom the law was created, then the EU process as a whole would gain solidity and a predictability that would help it to be sustained. The ECJ was established in the first treaty texts; these have been virtually unchanged since then, except to cater for the increasing workload and successive enlargements of the EU membership. The ECJ, sited in Luxembourg, is now composed of fifteen judges, as well as the nine advocates-general who deliver preliminary opinions on cases. The SEA in 1986 established a second Court of First Instance, composed now of fifteen judges, to help in handling the heavy flow of cases. The EU has thus something like a supreme court, able to provide an overarching framework of jurisprudence, as well as to deal with litigation, both in cases referred via the national courts and in those that are brought directly before it. The Courts sanctions are mostly the force of their own rulings, backed up in some instances by the ability to impose fines on those (usually companies) found to have broken EU law. The T EU gave the ECJ power to fine member governments for non-application of European law. Also, as a result of its own rulings (especially one of the Factortame cases on fisheries see Chapter 13), damages can be claimed against governments that fail to implement European law correctly. The Courts take their cases in public, but reach their judgments in private by, if necessary, majority votes; the results of their votes are not made public, and minority opinions are not issued. A series of key cases has, since the early 1960s, established important principles of European law, such as: its supremacy over the law of the member states, its direct effect, a doctrine of proportionality, and another of non-discrimination. In doing so the ECJ has gone further in clarifying the rule and the role of law than had specifically been laid down in the treaties. In some policy domains court cases have been one of the key forces in developing EU policy regimes. Table 1. summarize the pattern and volume of cases before the Court. Table 1 New cases at the European Court of Justice, 1972-1997 (no.) (five-year, periods, Since 1972; five-year 1992-1997; each year given) Subject-matter Cases 1972 1977 1982 1987 1992 1993 1994 1995    1997    until       1971    Agriculture and 99 36 61 83 81 198 210 65 70 60 66 fisheries Transport 3 2 4 5 14 10 11 5 3 11 Taxation 27 1 2 9 35 20 21 25 36 33 61 Free movement of 53 3 25 56 45 33 58 86 79 50 61 goods and customs Competition and 38 6 10 42 34 54 35 20 35 28 45 state aids Freedom of 3 2 4 12 12 20 47 34 46 39 establishment and to provide services Free movement for 37 11 19 17 35 49 59 44 54 70 51 workers and social policy Environment 15 11 11 42 59 47 Rest a 2 16 21 44 23 43 29 26 54 34 Staff of EU 268 23 25 85 77 9 10 5 15 13 14 institutions b Other(ECSC, EAEC, 25 27 11 9 4 13 4 15 privileges and immunities) All 895 82 162 348 395d 438 486c 347 409 420 444 a Inc. common commercial policy and cases under agreements with third countries. b These are contract and social security cases of EU civil servants, mostly dealt with by Court of First Instance created in 1989, except for appeals to ECJ. This strong legal dimension has a large influence on the policy process. Policymakers pay great attention to the legal meaning of the texts that they devise; policy advocates look for legal rules to achieve their objectives, because they know that these are favoured by the institutional system; policy reformers can sometimes use cases to alter the impact of EU policies; and in general there is a presumption that rules will be more or less obeyed. Hence policy-makers have to choose carefully between treaty articles in determining which legal base to use, and to consider car Efully which kind of legislation to make (Reich Harbacevica, 2003). Regulations are directly applicable within the member states once promulgated by the EU institutions. Directives have to be transposed into national law, which allows some flexibility to member governments, but within limits set by the ECJ. Decisions are more limited legal instruments applied to specific circumstances or specific addressees, as in competition policy. All three kinds of law may be made either by the Commission (under delegated powers), or by the Council, or jointly by the Council and EP (under co-decision). And all are subject to challenge through the national and European courts. The vigour of the European legal system is one of the most distinctive features of the EU. It has helped to reinforce the powers and reach of the EU process, although in recent years the ECJ has become a bit more cautious in its judgments. We should note also that in some policy domains member governments have gone to considerable lengths to keep the ECJ out of the picture. Part of the reason for the three-pillar structure of the T EU was to keep both CFSP and JHA well away from the reach of the European legal system. Even though the ToA goes some way towards incorporating parts of JHA and Schengen more fully within the system, it remains contested how far they will be brought within the jurisdiction of the ECJ. One issue which floats in the debate is how far the other European legal order, based on the European Convention of Human Rights attached to the Council of Europe, is to be linked to the EU, and whether the EU should adopt its own Charter on Fundamental Rights. The wider institutional setting The EU institutional system includes in addition a number of additional organizations that have an impact on, or provide instruments for, EU policies. Some are consultative. Some provide control mechanisms. Some provide autonomous operating arms. Consultation and lobbying The founding treaties established the Economic and Social Committee (and the Consultative Committee for the ECSC) as a point of access to the policy process for socioeconomic groups. Its creation borrowed from the corporatist traditions in some of the founder member countries. It has not, however, become an influential body in the policy process. Instead socio-economic groups have found their own more direct points of access since the 1960s, both through EU-Ievel federal associations and through sector-specific trade and producer organizations. These became even more active in the period around the development of the single European market (Forder, 2002). Individual large firms have also taken pains to develop links with the EU institutions, again some since the 1960s, but many more and with more vigour since the early 1980s. A more recent development has been the increased activity of groups and lobbies representing societal interests, the consumers, the environmentalists, womens groups, and increasingly a range of other advocacy groups and nongovernmental organizations (NGOs). Illustrations of the activities of these different kinds of groups can be found in many of our case-studies (Groenendijk Guild, 2001). The TEU introduced a second consultative body, the Committee of the Regions, in response to the extensive involvement of local and regional authorities in seeking to influence those EU policies that impacted on them. The Committee provides regional and local politicians from the member states with a multilateral forum, and an opportunity to enhance their local political credibility. At least as important, however, is the direct lobbying by infranational (local and regional) authorities, many with their own offices in Brussels. These same infranational authorities also engage in efforts to influence national policy positions and the implementation of Community programmes. Chapters 9 and 13 comment on this in relation to the structural funds and the common fisheries policy. Control and scrutiny In the mid- 1970s concern started to be voiced that the EU policy process was subject to few external controls. The EP at the time had few powers, and national parliaments paid rather little attention to EU legislation and programmes. It was the growing scale and scope of the EU budget and spending programmes that led the arguments about the inadequacy of scrutiny. This led to the creation of the European Court of Auditors by the 1975 Budget Treaty. Since 1978 it has, from its seat in Luxembourg, endeavoured to evaluate systematically both revenue-raising and spending. Both in its Annual Reports and in specific reports it has drawn attention to various weaknesses in the budgetary process, as handled by the Commission and national agencies. Here we should note that about four-fifths of EU budgetary expenditure is disbursed by national agencies. Chapter 8 describes some of the Court of Auditors activities and impact. We note here that many of its criticisms fell for many years on deaf ears member governments that were reluctant to face up to some of the issues, an EP that had other preoccupations, and a Commission which repeatedly undervalued the importance of sound financial management. In late 1998 this situation was reversed by the row over alleged financial mismanagement by the Commission. Another new instrument of post hoc control is provided by the Ombudsman attached to the EP under the provisions of the TEU. The aim is to provide a channel for dealing with cases of maladminstration vis-à  -vis individuals. Thus far the existence of this office has not had a large impact, although it may have contributed to making the policy process a little more open than hitherto. Some control and scrutiny of policy depends on national institutions, both parliamentary and financial. National parliaments had no official recognition in the institutional system until the early 1990s. Each member state had developed its own, mostly rather limited, procedures for national parliamentary scrutiny of EU policy. The same discontent that had led to some strengthening of European procedures started to provoke a debate on national scrutiny. Both the T EU and the ToA mention the importance of encouraging this, although there is little likelihood of standardized procedures emerging. Instead it seems likely that EU-level policy-makers, especially in the Commission, will pay more attention to national parliamentary discussions and appear more readily before national parliamentary committees of inquiry. This heightened sensitivity to country-level preoccupations is becoming a more marked feature of the EU policy process. It may well be emphasized by the establishment of national parliamentary offices in Brussels (by September 1999 from Denmark, Finland, France, and the UK). From market citizenship to political and social citizenship As mentioned previously, 184 it was at the 1972 Paris Summit that European economic integration was put into a broader perspective of social welfare. Since then, the neo-liberal philosophy that was at the basis of the European Economic Community (and still is, to a large extent, at the basis of the European Community, that is, the first pillar of the Union) was gradually turned into a more socially oriented philosophy. From a perspective of citizen rights, this means that the rights that citizens enjoy by virtue of EC law are no longer only â€Å"market rights† but have been enlarged to include â€Å"political rights† as well, and slowly also â€Å"social rights† in the broad sense of the word, that is, rights (and duties) concerned with peoples welfare generally, including work, education, health, and quality of life. 185 This transformation started with the incorporation, by the Maastricht Treaty, of a new part II in the EC Treaty, entitled â€Å"Citizenship of the Union† and composed of Articles 17–22 (ex 8–8e) EC. According to Article 17 (1) EC, citizenship in the Union, â€Å"complement[ing] and not replac[ing] national citizenship, † is established and accorded to every person â€Å"holding the nationality of a Member State.† The rights enjoyed by Union citizens are, according to Article 17 (2), â€Å"the rights conferred by [the EC] Treaty †¦ subject to the duties imposed thereby.† Those rights are in the first place the internal market freedoms (in the exercise of which discrimination on the basis of nationality is prohibited) and related consumer and worker rights specified elsewhere in the treaty. Then, in Articles 18 to 21 EC, a limited number of rights are enumerated, starting with the general right to move and reside freely within the territory of the Member States and followed by a number of specific political rights: the right to vote and stand as a candidate at municipal and European Parliament elections, the right to diplomatic protection in a third country, 186 the right to petition the European Parliament and to address complaints to the European Ombudsman. In Articles 39–46 of the (as yet non-binding) EU Charter of Fundamental Rights, this list of citizen rights was consolidated, and it was expanded with the rights to good administration and access to documents (Peers, 2004). The enumeration of these lists of rights in the EC Treaty, as amended, and in the EU Charter may seem rather symbolic, many of the rights mentioned being already specified in other treaty provisions. However, the fact should not be overlooked that the rights enumerated in Articles 18 to 21 EC are granted to all citizens, that is, they are unconnected with the exercise of any economic activity. That obviously holds true for the political rights, but it is also becoming increasingly true, as we will see below, for the general right of citizens, established in Article 18 EC, to move and reside freely within the territory of the Member States. Among the rights conferred by other treaty provisions are the rights that workers from other Member States, and by extension members of their family (so-called â€Å"dependents†), enjoy in the Member State where they work. These rights remain connected, however, to the status of â€Å"worker† in the sense of Article 39 (1) EC (relating to freedom of movement for workers), as interpreted by the ECJ in numerous judgments. It means, in concrete terms, that nationals from one Member State who want to work in another Member State need a residence permit, for which they must produce proof of engagement from an employer. Similarly, family members, whether from a Member State or a third country, must produce proof of their relationship with the worker. it was expanded with the rights to good administration and access to documents. The enumeration of these lists of rights in the EC Treaty, as amended, and in the EU Charter may seem rather symbolic, many of the rights mentioned being already specified in other treaty provisions. However, the fact should not be overlooked that the rights enumerated in Articles 18 to 21 EC are granted to all citizens, that is, they are unconnected with the exercise of any economic activity. That obviously holds true for the political rights, but it is also becoming increasingly true, as we will see below, for the general right of citizens, established in Article 18 EC, to move and reside freely within the territory of the Member States (Pettit, 1997). Among the rights conferred by other treaty provisions are the rights that workers from other Member States, and by extension members of their family (so-called â€Å"dependents†), enjoy in the Member State where they work. 188 These rights remain connected, however, to the status of â€Å"worker† in the sense of Article 39 (1) EC (relating to freedom of movement for workers), as interpreted by the ECJ in numerous judgments. It means, in concrete terms, that nationals from one Member State who want to work in another Member State need a residence permit, for which they must produce proof of engagement from an employer. Similarly, family members, whether from a Member State or a third country, must produce proof of their relationship with the worker. [1] A financial burden on the host Member State, the students right of residence was directly based on Article 18 EC, with the effect that he was entitled in Belgium to financial assistance available to Belgians. In fact, not only EU citizens but also third-country nationals enjoy social rights under certain conditions, principally when they are family members of migrant workers, or migrant workers from countries with which the EU has special agreements. In this context, the Mary Carpenter case deserves to be mentioned: it concerned the right, under EU law, of the non-EU spouse of a U.K. national to remain with him in the United Kingdom, despite her having violated immigration rules. The ECJ ruled in that case that, since the deportation of his spouse (who cared for children from his previous marriage) could adversely affect the husband in the exercise of his (EC) right to provide services in other Member States, the situation fell within the scope of EC law. Furthermore, the Court held that although a Member State may limit the right to provide services on grounds of public policy or public security (as mentioned in Article 46 referring to Article 55 EC), the Member State concerned is bound to observe the human rights requirements embodied in EC law, including respect for the right of family life, as laid down in Article 8 ECHR. Citing the Boultif judgment of the Court of Human Rights, the ECJ held that the U.K. would be violating the right to respect for family life if it expelled Mrs. Carpenter without a more significant public policy reason than violation of immigration laws. The ECJs case law deriving social rights for Union citizens from the free movement and residency right embodied in Article 18 EC raises the delicate issue of how far the ECJ can go in imposing financial burdens on Member State social security systems in the name of solidarity between Union citizens. The issue is underlying many recent judgments, but is most apparent in Baumbast. In that case, the ECJ ruled that Article 18 (1) EC is sufficiently clear and precise to be directly applicable (and directly effective), and this despite the fact, as pointed out previously, that the article submits the free movement and resident right â€Å"to the limitations and conditions contained† in the treaty and in secondary legislation. The question at issue was whether the U.K. immigration authorities could reject Mr. Baumbasts application for renewal of his residence permit on the grounds that he and his family were not insured for emergency treatment in the U.K., where the family lived (although they were covered by comprehensive medical insurance in Germany, of which Mr. Baumbast was a national). Such a residence permit is needed under the three EC directives granting rights of residence to categories of persons other than workers. These directives provide that rights of residence are subject to two conditions: first, the applicant must possess sufficient resources, and, second, he or she must have comprehensive medical insurance for all risks. It was clear, as the court observed that Mr. Baumbast had sufficient resources, but it was equally clear that he had no health insurance for emergency treatment within the U.K (Dougan Spaventa, 2003). In its judgment, the ECJ ruled that the refusal of the British authorities was unfounded. It recognized that the requirements in the directives were permissible, being based on the idea that exercise of the Union citizens right of residency can be subordinated to the legitimate financial interests of the Member State, including the fact that foreign nationals should not become an â€Å"unreasonable burden† on the public finances of the host state. Nevertheless, those limitations and conditions, laid down in secondary Community legislation, must be applied in compliance with general principles of Community law, and in particular with the principle of proportionality. The Court then found that to deny Mr. Baumbast residence solely on the grounds that he lacked medical insurance for emergency treatment within the United Kingdom would be a disproportionate interference with the exercise of his residency right under Article 18 (1) EC. Conclusion The difficulty with the ECJs case law in this case, but also in other â€Å"social rights† cases, is that the Court, and the EU, â€Å"cannot simply grant full rights of residency to all its citizens, because it cannot foot the consequent welfare bill, especially in respect of economically inactive individuals. The aspiration towards a supranational form of social citizenship, which many see embodied in Article 18, must therefore remain sensitive to domestic conceptions of belonging to (and being excluded from) the welfare society.† Apart from this basic question, many other issues of a more specifically legal nature arise, such as which general principles other than proportionality will be permitted to qualify restrictions imposed by secondary Community legislation. The question is most acute with regard to economically inactive and financially dependent persons: What are the benefits of Union citizenship for them? Should they not be able to derive residency rights from fundamental rights provisions, such as respect for private and family life and for human dignity? Should these rights not have an impact upon the ability of Member States to expel individuals who would otherwise be considered an unreasonable burden upon the public purse? A straight answer to that question would be to grant Union citizens who have been lawfully resident in another Member State, for example, at least five consecutive years â€Å"permanent resident† status regardless of their economic or financial status, as is proposed by the Commission in a draft general directive which, if adopted, would replace much of the existing secondary legislation. References Bright; Christopher. Business Law in the European Economic Area. Oxford University, 1994 Case C-413/99, Baumbast and R v. Secretary of State for the Home Department, [2002] ECR I-7091. Case C-60/00, Mary Carpenter v. Secretary of State for the Home Department, [2002] ECR I-6279. Dougan, Michael and Spaventa, Eleanor; â€Å"Educating Rudy and the (Non-) English Patient: A Double-bill on Residency Rights under Article 18 EC, † 28 ELRev., 2003, 699–712. Forder, Caroline; â€Å"Editorial: Common Minimum European Standards in Immigration Matters, † 9 MJ, 2002, 221–29. Groenendijk, Kees and Guild, Elspeth; â€Å"Converging Criteria: Creating an Area of Security of Residence for Europes Third Country Nationals, † 3 EJML, 2001, 37–59, at 52. Goyder; D. G. EC Competition Law. Oxford University Press, 1998 Jarvis; Malcolm A. The Application of EC Law by National Courts: The Free Movement of Goods. Oxford University, 1998 Leibfried, Stephan; Pierson; Paul; European Social Policy: Between Fragmentation and Integration. Brookings Institution, 1995 Pettit, P. Republicanism: A Theory of Freedom and Government (Oxford: Clarendon Press, 1997). Peers, Steve; â€Å"Implementing Equality? The Directive On Long-Term Third-Country Nationals, † 29 ELRev., 2004, 437–60. Proposal for a European Parliament and Council Directive on the Right of Citizens of the Union and their Family Members to Move and Reside Freely within the Territory of the Member States: COM (2001) 257 final. Reich, Norbert and Harbacevica, Solvita; â€Å"Citizenship and Family on Trial: A Fairly Optimistic Overview of Recent Court Practice with Regard to Free Movement of Persons, † 40 CMLRev., 2003, 615–38. [1] The most important of these measures are: Council Directive 68/360, containing formal requirements for workers and their family members, and Council Regulation 1612/68, concerning the substantive rights and social advantages that workers and their family members enjoy. Further directives relating to rights of residence granted to categories of persons other than genuine workers are: Directive 90/366, replaced later by Directive 93/96, covering students exercising the right of vocational training; Directive 90/365, dealing with persons who have ceased to work; and catch-all Directive 90/364, governing all those persons who did not already enjoy a right of residence under Community law. These three residency directives have in common that the persons involved must have adequate resources not to become a financial burden on the social assistance schemes of the host Member State and must be covered by sickness insurance. For references, see Craig and de Bà ºrca, n. 36 above, 756. Th e scope of these directives was reconsidered by the ECJ in its Grzelczyk and Baumbast judgments mentioned later in the text.