Englands Social Assistance System - Research Paper Example

?EUROPEAN LAW of The Development of the Doctrine of “Supremacy” and “Subsidiarity” Paying Particular Attention To The Question Of The Enforceability Of Directives By Individuals Introduction It is no doubt that Europe has made remarkable progress towards integration. For over the years now, the European Union (EU) has witnessed increasing economic cooperation which has transformed into one the biggest entities in the world, thus calling for closer cooperation and intensive integration. Apart from enhanced economic cooperation among European countries, more progress in integration of Europe has been witnessed in regard to the Establishment of European Constitution. It is agreeable that legal cooperation and integration is the most important premise for political and economic integration. There should be horizontal and vertical legal cooperation and integration; that is, among member states themselves, as well as between the Union and its member states. This means that such integration should be in such a way that, despite the fusion of legal processes, each state do not lose their individual legal characteristics.1 It is in the light of this that a question arises of how supreme law can be established while each state still maintains their inherent laws. In practice and theory, this question point at two most crucial European Law doctrines: the doctrines of “supremacy” and “subsidiarity”.2 So, how is the doctrine of “supremacy” and “subsidiarity” developing and how can it address the question of enforceability of directives by individuals? The Doctrine of “Supremacy” The doctrine of “supremacy” is one of the basic principles of EU law that was developed by the European Court of Justice (ECJ) in the Costa v Enel [1964]3 to ensure supremacy of EU laws over individual member states law. The development of this doctrine was based on the pacta sunt servanda principle that the EU laws should not be prejudiced by national laws. Since the EU laws respect the fundamental rights, the ECJ is of the opinion that member states should not prejudice EU laws under the excuse of protecting human rights. The ECJ’s ruling followed the principle that the courts of individual member states must not apply national laws that are not consistent to EU Laws. The EU Treaty provides the EU laws with supremacy over individual states laws.4 It should be noted that the doctrine of supremacy of the EU law is a debatable concept that is still evolving. Since the ruling in Costa v Enel, there have been various reactions to the opinion held therein. The ruling has been challenged in the members’ states constitutional courts, as noted in German Constitutional Courts in the case of Spa Granital v. Amministrazione delle Finanze dello Stato5. In the case, it was held that Community law should be given precedence because of its competence over any relationship aspect between national law and Community law. Also, the Treaty of the European Union has been challenged through a series of Maastricht cases. The enforceability of the doctrine of supremacy directives by individuals is very possible. However, such enforceability is only within the ECJ’s conditional jurisdiction; in some cases, EU laws do not have direct effects to the national Acts hence implying that its provisions cannot be enforced in such circumstances.6 The Doctrine of “Subsidiarity” The Maastricht Treaty on European Union (TEU) sets out that the doctrine of subsidiarity enjoins the European Community to act in areas where there is concurrent competence. The doctrine requires the EU institutions to refrain from acting in situations where their objectives can be served effectively at member state level. This doctrine is informed by the need to ensure that the EU laws do not trample on the principles of cultural diversity and democratic self- governance, needlessly. This doctrine implies that the EU will only act when the individual members states action are deemed to be inadequate7. Additionally, this doctrine applies in areas where the Community is deemed not to have exclusive competence. The enforceability of subsidiarity directives by individuals is determined by whether, in a given context, it meets the criteria of the doctrine such as: individual states’ autonomy; the action must be beneficial; and bringing decisions close to the citizens criterion.8 Conclusion It is no doubt that legal cooperation and integration is the most important premise for political and economic integration of the European Union. Since EU brings together distinct and sovereign states, it is important that the supremacy of the Union be maintained without interfering with the independence and sovereignty of individual states. As noted, the doctrine of “supremacy” and “subsidiarity” are critical in achieving this end. 2) The concept of Union Citizenship added nothing to the framework of rights already provided by the free movement provisions contained within the treaty. Critically examine and illustrate with case examples this statement with reference to the relevant CJEU jurisprudence paying particular attention to Baumbast and R. V Secretary of state for the Home Department (Case C-413/99 and Grzelczyk v CPAS (Case C 184/00). Introduction Even though the Maastricht Treaty on European Union signed in 1992 introduced the concept of union citizenship, the proposition that the concept was not the innovation of the Treaty. This concept had been considered at the earliest stages of the development of European Community. The provisions of the European Economic Community (EEC) Treaty created the initial platform upon which union citizenship was founded. Its provisions on the free movement, and specifically those relating to free movement of workers played important role in entrenching the sense of union citizenship. The Maastricht Treaty was only critical in introducing formal provisions on union citizenship through Articles 17-229. The treaty establishes citizenship that is common to their countries’ nationals. The treaty argues that the main objective of establishing union citizenship is to strengthen the interests and rights’ protection of the member states’ nationals. It has been argued that these provisions sought not only to formally declare union citizenship of the member states’ citizens but also to show the commitment to implement measures relating to the same. Since it is evidently clear that these provisions bear similarity with framework of rights already provided by the free movement provisions contained within the treaty, the questions abound as to whether it added anything to the framework.10 The Concept of Union Citizenship Added Nothing to Free Movement Provisions The Treaty on European Union seems not to have added anything new to the framework of rights already provided by the free movement provisions contained within the treaty, since Community law covers all nationals of member states, whether economically active or not.11 The Commission that was mandated to prepare the treaty took note of this fact (the existing framework provides for economic actors) and therefore there was no need for legislation on the same. However, they were of the view that it was necessary to have directives on non- economic actors. This view was unnecessary still, because the existing framework covered economic and non- economic actors12. The framework was such citizens could not, in all circumstances, be excluded from other members’ states even if there are justifiable grounds to do that. The Treaty seemed to take this into consideration in Article 18 regarding direct effect. Member states could not exclude union citizens from their states on the basis of issues such as public health, public security, and public policy, because such issues do not deprive Article 18 of the direct effect concept. In the case of Baumbast and R v. Secretary of State for the Home Department13, the ECJ ruled that a union citizen who does not enjoy residence right as a migrant worker in the member state country hosting him still enjoys residence right in the same country by applying Article 18(1), directly. As noted in the case of Grzelczyk v CPAS14, the framework of rights as it was in the free movement provisions was informal and often led to unjust rulings, such as discrimination on nationality grounds. The Treaty was vital in ensuring full application of union citizenship concept as it extended the rights of citizens in the area free movement. Although it can be said that the concept of union citizenship added nothing new to the already existing framework, it is agreeable that it enhanced the importance of the concept of union citizenship. Conclusion As noted, there is nothing new added to the framework of rights already provided by the free movement provisions contained within the treaty. However, something new can be added if further legislations are done on the basis of Article 18 of the Treaty that establishes union citizenship. Therefore, it can be argued that whereas Community law provided the general framework for union citizenship, the Treaty went ahead and introduced formal provisions on union citizenship. The Treaty also established secondary legislation to the marginal categories of migrants such as pensioners, the disabled, and the unemployed among others. 3. Advising Rosia of her rights (if any) under Community law Introduction Rosia’s scenario put the entire European Union law in perspective, especially in regard to the right to residence. The Treaty on European Union is very categorical that each citizen of the member states has a right of residence in any of the member countries, the right of which is derived from the status of “citizen of the union” as well as the general residence right provided for under Article 18 of the Treaty.15 Rosia’s scenario can be best considered under these legal positions. The advice given to her will be based on the rights provided under the Treaty, as well as the exceptions to those rights. Advice Rosia should be alive to the fact that the rights of citizens of any European state are subject to Community law, whereby fundamental rights form the integral part of the law, as demonstrated in Stauder v City of Ulm16. The citizenship of the union consists of individuals possessing rights vis-a-vis member states’ public authorities. In addition, the Treaty provides that citizens of member states have the right to reside and move freely within member states’ territory. These provisions notwithstanding, Rosia should know that the competence to regulate laws on nationality is vested on the member states, as Declaration 2 of the Treaty of Maastricht explicitly express. The declaration stipulates that in cases where the Treaty refers to member states nationals, the nationality of the member state citizen can only be settled by referring to the concerned member state’s national law17. The case of Mario Vicente Micheletti and others v Delegacion del Gobierno en Cantabria18 showed that a citizen of one of the member states can be denied residency based on the national law. The ECJ in this case emphasized that regulation of nationality competence remains in the hands of member states. The ECJ clarified this position further by stating that under the international law, each member state should lay down the nationality acquisition and loss conditions, with due regard to the Community law.19 Since the right of free movement of people has been extended beyond economic dimension, any restriction by the member states to restrict movement and residency of EU member states nationals should be justified objectively by those particular member states20. Garston Benefits Agency advice to Rosia was right because three months grace period (usually 3 months) that is given to EU citizens to enter and reside in the member state territory was about to lapse, and they would have been required to obtain residence permit in order to continue residing in the England. Granting of such permits depend on the citizen’s status: retired, student, active or inactive, and employment status21. There is a possibility that the status of the citizenship of her mother in law would compromise her residency if she cannot provide for them. Her residency in England will depend on whether she can find a job or get self- employed because residence permit can only be given if there is proof of employment or self- employment.22 In the absence of a job, Rosia has to prove that she has sufficient financial resources without exercising any study or activity so that she (and her dependents) does not become a burden to the social assistance system of England23. She should also prove that she has insurance policy for sickness, for herself and her family who are entitled to reside in with her in England. Conclusion Since, as it is now, she does not meet any of these criteria the child and mother in law have to return to Spain immediately. This advice is based on the fact that she cannot support them, they do not have private medical insurance, and most likely they will be a burden to England’s social assistance system. On her part, Rosia should hasten her effort of getting employed or being self- employed because failure to engage in any activity without prove of sufficient financial resources would mean she will not be granted residence permit. In an event she gets employed or engages in self-employment her young nephew and mother in law can continue residing with her in England, since she can support them. Bibliography Chalmers, D. (2010). European Union Law Text and Materials, Cambridge, Cambridge University Press. Craig, P. P., & DE Bu?rca, G. (2008), EU law: text, cases, and materials. Oxford: Oxford University Press. Fairhurst, J. (2010), Law of the European Union, Harlow: Pearson Longman. Horspool, M. (2006), European Union law, Oxford: Oxford University Press. Kaczorowska, A. (2010). European Union law, London: Routledge-Cavendish. Read More