Effectiveness of the European Court of Justice - Essay Example

Discuss, in the light of the established case law, the dynamic role played by the European Court of Justice in ensuring the effectiveness of the Treaty and subordinate sources concerning the free movement of persons The European Court of Justice is made up of three Courts: the Court of Justice, the Court of First Instance and the Civil Service Tribunal. This discussion will center on the first of this triumvirate, as it is this court that ensures the uniform interpretation and application of Community law. One of the most controversial aspects in the evolution of the European Community has been the free movement of persons. As Sergio Carrera (2005) suggests, "the right to move freely represents one of the fundamental freedoms of the internal market as well as an essential political element of the package of rights linked to the very status of EU citizenship." So the right to free movement is one of the foundations of the community, but there are "hidden and visible obstacles to the free movements of persons in Europe" (Carrera, 2005) that need to be considered. How many EU citizens has the free movement law enabled The last available statistics are for 1999, when the European Commission calculated that there were 2,700,000 EU Nationals (1.8% of the total workforce) working in a member state other than their own. (European, 2001) While not a massive number proportional to the total population, the migration of the workforce that these people represent are an essential part of the structure of a unified Europe. The whole question of the free movement of people within the EU is in fact part of a much broader question that has yet to be answered or even fully defined. Namely, is Europe heading towards a genuine federal unity or merely a patchwork of relationships between countries that have very close ties but which are still quite clearly separate sovereign states The basic question is, will there be a United States of Europe Until Europeans decide upon how this question needs to be framed, and in what way it will be answered, matters such as the free movement of persons will always be subject to this often unspoken but overwhelming dilemma: what is Europe As Craig and de Burca put it, "despite all the discussion in recent years of a finalite politique, this active, reflexive and constantly changing polity seems unlikely to reach a firm settlement in the near future." (Craig, 2003) This discussion will be divided into two basic sections. First the movement of EU citizens, and second, the movement of non-EU citizens throughout the community. Together with these two sections, the events of 9/11/2001 and the subsequent tightening of security throughout Europe brought about a division between "pre" and "post" 9/11. While the full connotations of the post 9/11 security measures have yet to be fulfilled, it does represent a watershed in law regarding movement. First, movement of EU citizens in the context of the Treaty and subsequent case-law. In 1997 the draft Treaty of Amsterdam was published, and it Article B gave impetus to "the abolition of internal borders between the Member States and the regulation of admission of persons through external borders." (Amsterdam, 1997) While three member states (UK, Ireland and Denmark) opted out of this provision, the European Court of Justice was given jurisdiction to interpret measures that were brought in by the European Parliament, "though with a more limited jurisdiction than in any other field of community law." (Guild, 1998) After the Treaty of Rome and subsequent Treaties that drew European countries into union, the concept of the free Movement of Persons was based upon economic policy. If there was to be free movement of trade then people needed to be included within the equation. As Jeffrey (2004) puts it, "in this context human beings were treated as being simply another economic factor within the new European market: persons were given a right to move freely within that market, but so were investments, professional services, machine tools, and cheeses." But over the last decade or so there has been a gradual but steady movement towards regarding this right as less an economic practicality than an ethical imperative. The European Union Commission, not known for its prose, has eloquently stated that "perhaps the most important right under Community law for individuals, and an essential element of European Citizenship" is the right of free movement. As it would be relatively easy to discourage the movement of workers by subtle discrimination a body of case-law was soon built that ensured that discrimination would not occur. The free movement of workers extended to the free movement of those seeking commercial or educational services (Case 186/87) The Court has steadily increased the rights of all types of citizens when they move throughout the EC. Thus Article 12 was used to guarantee the rights for the self-employed to work, and as Jeffrey (2005) suggests, "the Court held that if a state provides subsidized public transport for large families, or regulates access to leisure activities, it may not favor its own nationals, but must also offer such benefits to free movers from other Member States." The vital point within these changes is that they were designing, in a dynamic and apparently deliberate manner, that "the Free Movement of Persons has increasingly come to be seen as a free-standing social right, as an end in itself, rather than as a means to an economic end." (Jeffrey, 2005) So the individual citizen is being increasingly treated as a unique human being within European Law, rather than as just another form of capital that needs to have the ability to flow across borders for the EC economy to make any sense at all. The Free Movement of Persons has become a clarion-call for a genuinely united Europe rather than one joined merely by economic convenience. Balancing these rights to movement and to receive similar treatment to the citizens of the country moved to are the concerns of those countries that have the most beneficial social and medical programs that they will be inundated with people from less generous regions of the EU. The Court has enabled a system in which some people are in fact "favored" over others when seeking to move freely, while the freedom still officially exists for all. O'Keefe (2000) has summed up this apparent paradox through stating that the law in this area is "impressively substantial and fairly limited". Those with, to coin phrase, 'more freedom than the rest', are those who have a "productive economic factor" (i.e. skilled workers), EU citizens, and third, European law only counts when a worker is involved in a "cross-border" element. Thus unskilled or unemployed workers, those who are not EU citizens, and those who are moving within a single Member State rather than between two member states are favored. Essentially this means that the well-educated and affluent are favored over others. Much of the case-law surrounding moves by these variously favored and non-favored groups has revolved around the rights to social benefits, or lack of such rights. Thus in Echternach/Moritz (C-389, 390/87) the Court held that when a migrant person's children have started their education in a Member State that has been migrated to, they have the right to finish their education in that State even when the migrant parent returns to their State of origin. This case was complicated by the fact that both 'children' (within the joined cases) had in fact finished their education within their host State and needed to return to it in order to receive higher education because their qualifications were based upon the education system in the host State rather than their State of origin. Whether this precedent would apply in the scenario in which a child goes to a host State for a single term of education and then claims the right to another 14 years of education within the same system is unclear. Problems such as this will increasingly arise as the EU expands its membership to the countries of Eastern and Southern Europe and thus heightens not only the number of member states but also the economic, social and cultural disparities between member states. The attempt by Turkey to enter the EU is a case in point: it has far inferior social, cultural, educational and economic opportunities available to its citizens based upon the fact that it is a Developing rather than a Developed country. In an effort to assuage the worries of richer EU countries with concomitantly better social programs, a series of Directives was issued in the early 1990's that granted free movement to all (including students, the elderly and other "non-economically active" persons), but only if they had "comprehensive sickness insurance and sufficient resources so as to not become a burden on the host state." (Jeffrey, 2005) In Grzelczyk (C-184/99), the Court stated that a host country can refuse the right of entry or expel a national who fails to meet the Directives quite stringent economic minimums, but if it fails to either refuse or expel it cannot discriminate against the person on the basis of nationality. This finding would seem to open the door to cases in which a person has lived in a host state for a number of years, while managing to meet the economic conditions of the Directives, but has then fallen on hard times. Could the host country then deport the person based upon the fact that he no longer meets the standards required The ruling in this case would seem to fall under the criticism that has so often been laid against the Court of Justice, namely that its rulings are "as frustratingly vague as they are illuminating." (Shubinne, 2002) Part of this vagueness is due to the fact that with measures such as the implementation of EU nationals becoming "European citizens) and the complete dismantling of border crossings that this 2004 change would seem to eventually imply, the whole question of moving from a member State to a host State may become officially moot. EU citizens should, at least theoretically, have the same freedom of movement as American citizens do within a truly Federal system, the United States of America. This ideal has yet to be realized in law, as member States constantly disagree on the timing and degree to which dismantling of borders should occur. The Court needs to act as an arbiter in a fluid situation in which unforeseeable acts (see 9/11/2001) and the vicissitudes of government changes make solidifying case-law complex. Problems increasingly arise in the treatment of non-EU citizens and their right to free movement, as well as residence, within various member states. The Court has held on numerous occasions that a "cross-border" element needs to be present before European law can be used. But in a recent case it substantially widened the definition of "cross-border" to include situations that would seem to be "cross-border" in theory rather than practice. The case concerned is Carpenter (Case C-60/00) in which a Philippine national had illegally stated in the UK after her visitor's visa had expired. Later she married Mr. Carpenter who was a UK national, and she applied to stay in the country. The UK denied her request and started deportation proceedings against her. On appeal, the Lords found that while the marriage was indeed legal, the deportation order was legal as well. The Carpenters appealed to the European Court of Justice, claiming that as Mr. Carpenter's business required him to travel throughout EU countries, and thus to receive their services, there was a "cross-border element" in their case. This was, as the Carpenters' lawyer later admitted, a last-ditch argument that seemed unlikely to succeed, as "cross-border" had been widely assumed to mean the national of one EU State who wished to work and reside in another EU State. Surprisingly, the argument was accepted by the Court. It stated that a self-employed person who provided services in other EU states was indeed covered by the free movement laws, and further, that European law recognizes the importance of the protection of family life for Member State Nationals. Deportation of Mrs. Carpenter would be detrimental to this family life, and thus detrimental to freedom of movement, and contrary to what the Court called "this fundamental freedom." Freedom of Movement for a member State national can now be used by a non-national who is related to the national to justify staying in a country illegally. This is a remarkable stretch of the law, but illustrates the fact that freedom of movement is not only being increasingly regarded as a fundamental right in and of itself, but also as a kind of umbrella right that can draw other rights into its compass. One of the most basic conflicts that has recently appeared is that between free movement of persons and the need for heightened security in the current world situation. As a European Commission report states, "the freedom EU citizens enjoy to travel, work and live anywhere in the EU can easily be taken for granted . . . to benefit fully from this right, people need to lead their lives and go about their business in security and safety . . . they must be protected against international crime and enjoy equal access to justice. . . " (Europa, 2006) Thus two conflicting interests are revealed: freedom and security. Arguing the case that EU citizens need security in order to travel freely is legitimate, but does not fully answer the dichotomy between the two interests. Absolute freedom would imply no security. Absolute security would necessitate no freedom. A balance needs to be found. The ideal body to produce that balance is the European Court of Justice. The Court has indulged in dynamic action surrounding the rights of family reunification and of a consistency in residency for individuals. Thus in Bambaust and R. (Case C-413/99) the Court held that individuals have the right to stay in a host country even if they have now lost the economic/legal conditions that made their initial habitation in the State legitimate. In the case of Bambaust, a man was a German national who lived and worked in the UK, but then lost his job and was unfortunately unable to find a new one. The other case involved a Mrs. R., a US national who had been married to a French citizen but had then divorced. In both these cases the individuals no longer had the right to stay in the UK that they had once enjoyed. The UK sought to deport them, but the European Court found that they should be allowed to stay because of their former status and because both individuals had children that were attending school in the UK. Here family unity was seen to trump present economic or marital status. The conflict between freedom and security was encapsulated in the case of two Algerian men (married to Spanish women) who were denied entry in to the EC based upon the sole grounds that Germany had issued a warning under the Schlengen Convention of 1990. (C-503) The Schlengen Convention, which followed from the Schlengen Agreement from five years earlier, ensured basic security concerns between various EC countries based "on the gradual abolition of checks at their common borders" (Schlengen, 1990) In this case the Court found that a State must establish that a person's "presence constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society" (C-503), and that Spain had not met this burden through simply stopping entry based upon an general suspicion raised by Germany. As stated at the beginning of this discussion, the free movement of persons within Europe is part of a much broader discussion of how far Europe should go towards becoming a fully federal system of linked states. If it does become a United States of Europe (Reid, 2005) then free movement will become an irrelevant matter as it will be assumed through the very definition of those "United States". Whether such a federal unity will ever occur is somewhat questionable and so until that time, if ever, free movement will become an increasingly difficult quandary as Europe expands the number of Member States and thus creates more opportunity for disagreement among those states. _______________________________________________ Works Cited Case C-60/00. Carpenter. (2002) ECR I-6279 Case C-184/99. Grzelczyk. (2001) ECR 234. Case 186/87 Cowan (1989) ECR 195. Case C-389 & 390/87. (Joined Cases) 1989. ECR 273 Case C-413/99 (2002) ECR I-7091 Case C-503/03 Commission v. Spain Carrera, Sergio. "What Does Free Movement Mean in Theory and practice in an Enlarged EU" European law Journal. vol. 11, No. 6. pp. 699-721. November 2005. Craig, Paul. de Burca, Grainne. EU Law: Cases and Materials. OUP, London: 2002. Europa, Activities of the European Union: Justice, Freedom and Security. http://europa.eu.int/pol/justice/index_en.htm European Commission "Information Note: The Free Movement of Workers in the Context of Enlargement", March 6, 2001. Guild, Elspeth. "After the Amsterdam Treaty". Merger: The Newsletter of the Migration and Ethnic Relations Group for European Research, 1998. Jeffery, Mark. "The Free Movement of Persons within the European Union: Moving from Employment Rights to Fundamental Right" Journal of Comparitive Law and Policy. Vol. 23:211 O'Keefe, David. "Freedom of Movement for Workers in Community Law: Accomplishments and Prospects" in Thirty Years of Free Movement of Workers in the European Union. ed Cartier, Jean-Yves. 2000. Reid, TR. The United States of Europe: The New Superpower and the End of American Supremacy. Penguin, London: 2005. Schlengen Accord, June 14, 1985. Schubhne, Niamh Nic. "Free Movement of Persons and the Wholly Internal Rule". Common Market Law Review. 39, 731 (2002) Treaty of Amsterdam, 1997. Read More