Law of European Union - Essay Example

 Ans 1: The Right to free movement, the freedom of establishment and the freedom to provide cross border services have been deemed to be vital in the creation and preservation of a free internal market within the European Community1. Article 43 of the EC Treaty enables a permanent economic activity such as the provision of model rockets, if it is of a stable and continuous nature, to be carried out in one of more Member states. Article 49 even permits provision of temporary services. The principle of equal treatment to all nationals within the Community under Article 59 of the EC Treaty will also apply in this case, since the Government is proposing to restrict the production and distribution of rockets and mandate their sale only through certain registered outlets. The purpose of allowing free movement of goods as set out in Article 2 of the EC Treaty is to establish a common market. According to Article 14(2) of the EC Treaty, the “internal market shall comprise an area without frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the principles of this Treaty.” Under this principle, the measures that could be equivalent to measures to impede the free functioning of the common market would include customs duties or discriminatory taxation systems, any quantitative restrictions on imports and exports or measures that are equivalent to the imposing of import and export restrictions.2 In the light of the above, the measures that are proposed by the UK include restrictions on imports of rockets and therefore constitute trade barriers to the common market. Similarly, the restrictions on purchasing, possessing or supplying rockets could also constitute similar barriers to trade and free movement of goods within the European Union and undermine the Common Market. The meaning of quantitative restrictions on the free movement of goods was defined in the case of Riseria Luigi3 where any measure that amounts to a “total or partial restraint” on imports or exports would constitute a restriction. On this basis therefore, the imposition of regulations for rockets as per Section 2 of the proposed statute could in itself be viewed as a partial restriction on imports. Similarly, Section 3 has specifically included restrictions on individuals in importing rockets. One example that may be cited in this context is the case of Commission v Italy4 where a complete ban was mooted on pork products. In a similar fashion, Section 4 is in effect imposing a partial ban on the manufacture and sale of rockets by allowing for such sales only in specific authorised locations. Therefore, it would appear that there are excellent grounds to argue that the free movement of goods mandated under EU Law is being violated and that the Government of the UK is guilty of interfering with the free movement of goods within the Common Market of the European Union. However in this connection, it must be noted that while Articles 28 and 29 have stipulated that there are to be no restrictions on imports or the imposition of any measures equivalent to such restrictions, an important qualification has been made under Article 30 of the EC Treaty. Article 30 states as follows: “The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans…..such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between member states.” Applying the criteria specified in Article 30, it may therefore be noted that derogation from the movement of free goods may be justified by the ECJ when other interests have to be balanced against the free movement of goods. For example, the provisions of Article 30 were invoked in the case of Commission v Ireland5. In the case of R v Henn6 the issue in question was public morality and a restriction on the free movement of goods was justified to safeguard public morality. In the case of the manufacture and distribution of rockets, the reason why the UK Government is proposing the regulations is because they may be converted into dangerous weapons which could endanger public safety. This could therefore form valid grounds under Article 30 and constitute a reasonable exception to the general rule regarding free movement of goods. For instance, public security was also an issue in the case of Campus Oil Ltd v Minister for Industry and Energy7 and the ECJ held that restrictions were permissible in the interest of public safety. This would also be the case where the rockets are concerned, since public safety would definitely be endangered by the manufacture of dangerous weapons from materials used in the rocket models. On these grounds therefore, such restrictions as are being proposed by the regulations may be justified. In the case of Commission v UK8 it was stated that there must be a real risk that must be demonstrated to public health before the exceptions specified under Article 30 would apply. However, where the rocket manufacture is concerned, it is likely that the UK Government will be able to demonstrate that such a risk to public safety and health does exist and therefore on this basis, it may be permissible for the Government to introduce such regulations. In conclusion therefore, it may therefore be stated that the entire statute is compatible with the EU law on free movement of goods. It must also be stated that the UK Government is not imposing a total ban on the manufacture of the product, rather it is permitting the sale through outlets where sale and distribution activity can be carefully monitored, such that the rocket model materials are not used for unauthorized purposes. In imposing restrictions on imports, etc, the Government is only trying to ensure the safety and security of the citizens. Dangerous weapons which could potentially be manufactured from the rocket product parts constitute a real threat to the safety and security of the public. Therefore the Government may be justified in imposing quantitative restrictions. The statute with the specified regulations is therefore unlikely to be construed to be a violation of the EC law on the free movement of goods but is likely to be fully compatible with its provisions. The grounds for the exceptions are well provided for under the provisions of Article 30 of the EC Treaty. Ans 2: In considering Carlos’ case, it may be noted that he is being arrested on the basis of possession of drugs. Moreover, what worsens the case against him is the fact that he has been guilty of the same offence before. Under Directive 64/221 of the European Union, a Member State can restrict or deny rights to entry, residence and employment of persons who are causing any infringement to public policy, public health or public security. This aspect was clearly spelt out in the case of Bonsignore v Oberstadt director of the City of Cologne9, where it was stated that “a deportation order may only be made for breaches of the peace and public security.”10 Therefore, in effect Carlos may be deported only if he is viewed as a genuine threat to public health, security or order. In arriving at this decision, a Member State must examine the current offence and cannot be influenced by previous offences. Under Article 3(2) of Directive 64/221, it is clearly stated that “previous criminal convictions shall not in themselves constitute grounds for measures taken on public policy grounds.”11 Therefore, Carlos’ previous convictions cannot per se, form the basis of his deportation, rather the severity of his crime needs to be assessed. The issue of illegal possession of drugs was also at issue in the case of R v Bouchereau12 where the defendant was also convicted of possession of illegal drugs. However in this case, the ECJ held that his conduct did not amount to that fit for deportation, since in view of Article 3, the defendant’s crime and his past personal conduct was not of a level significant enough to amount to a threat. In a similar manner, the case of Donatella13 the Court held that a defendant’s rights to residence and avoiding deportation would depend upon the severity of the personal conduct of the defendant in relation to the crime, and such illegal conduct would have to be serious enough to constitute a genuine threat to public peace and order.14. The principle laid out under Article 3 of Directive 64/221 was also reiterated in the case of Ruttli v Minister de l’interieur15 where it was also stated that before the residency of a person can be restricted, the nature of his/her offense must constitute an infringement of public policy, security or health. In Carlos’ case, his offense would not fall into this category, moreover, his previous offences cannot be a factor in arriving at a decision on whether or not to deport. Moreover, the offences relate to recreational drugs, where issues of privacy and freedoms of individuals also arise, therefore the nature of the offence as a danger to public health will be tempered considerably. On this basis therefore, it is unlikely that Carlos’ offence will be considered that serious as to merit deportation and he can rely upon the above case law to establish his right to residency, since his crime is not serious enough to constitute an infringement of public health, policy or security. Another aspect is that he is not singly responsible for the previous offences, but rather committed them as a part of a student group, which may further serve to mitigate the seriousness of his offence. Moreover, another factor that must also be considered is the fact that Carlos has been working in England for a year. By virtue of his employment, certain rights will accrue to him. Carlos will qualify under the definition of a worker that is laid out in the case of Lawrie Blum v Land Baden16 wherein the essential characteristics of a worker are defined thus, “…where for a certain period of time he performs services for and under the direction of another in return for remuneration.” Therefore, because he is a worker, Carlos has rights to entry and residence in England. Moreover, Under Article 12 of Regulation 1612/68, he will be eligible for a residence permit on the same basis as individuals who are nationals of England. On this basis also, he will be able to claim his right of residence and can appeal against the deportation. He can therefore appeal against his conviction on the following grounds: (a) the inapplicability of his previous convictions (b) the fact that his crime does not constitute a serious enough offence (c) the fact that he is a legal resident of England because he has worked there and therefore has the right against deportation. In Gloria’s case, the situation is somewhat different, because she is only a tourist and is not an actual worker or student in England. However EU law permits free movement of people within the European Community, under Article 39, while according to Article 18, “every citizen of the Union shall have the right to move and reside freely within the territory of the Member States.” Article 18 of the EC Treaty allows the right to free movement of persons within the European Union, while Article 12 lays out a general principle of non discriminatory conduct to be applied to all EU citizens. Directive 2004/38 has in fact expanded the scope of Article 12 and has put in place new provisions for the free movement of persons within the EU. In fact, Closa has argued for a supranational democratic citizenship for the European Union, on the basis that a citizenship regulated by national considerations is undemocratic in its origin.17 However, it must be noted that several rights that are available to workers within the European Union will not necessarily be available to those who are non workers. While this may be a justification to argue that Gloria is not entitled to rights such as equal pay or social security benefits, the mere fact that she is not a worker within the European Union cannot constitute grounds for deportation. In this context, all the arguments that may be offered in support of Carlos on the nature of his offence will also hold good in the case of Gloria. Her offence is only that of remaining in England, however because her association with Costas cannot constitute grounds for deportation. The nature of her actions do not constitute such a flagrant violation of public policy as to merit deportation, since as a European national, she does enjoy certain rights to free entry and residence within any of the Member States. In reference to the threatened deportation of individuals who are not classified as workers within the European Union, Directive 64/221, article 28 offers protection from expulsion and in the case of Adoui, it was stated that “reasons given for expulsion must be …detailed to enable the person to protect interests.”18 In this instance, the Home office cites its reasons for deportation as being the fact that Gloria is not a worker. However, the question that must be considered is whether her conduct indeed justifies deportation. Under Article 39, in certain instances there may be restrictions even of the rights of workers to free movement within the European Union, which may be justified due to the circumstances.30 Article 3(1) of Directive 64/221 states that such measures are undertaken on grounds of protecting public security and will be decided on the basis of conduct of individual, as was the case in Van Duyn and the Court held that the individual’s “present association” would be considered a part of his/her personal conduct.31 However, while Gloria’s present association with Carlos, who in turn was affiliated within an international drug group may have to be taken into consideration, it may not satisfy the criterion laid out under Article 3 cited above, whereby the nature of an individual’s actions must constitute a threat to public policy, security or health. This is not so in Gloria’s case and in fact there is no criminal conviction against her except for her association with Carlos therefore there is no justification for deportation. The mere fact that she is not a worker cannot construe grounds for deportation, in view of the right to free movement of persons that forms the basis of EU law. Bibliography Books/Journal Articles: * Closa, Carlos. “Supranational citizenship and democracy: Normative and empirical Dimensions” IN “European Citizenship: An international Challenge” (M.Torre, ed) Kluver Law International. * Craig and deBurca, 1998. “EC Law: Texts and materials” (2nd edn) * Green,Hartley and Usher, "The Legal Foundations of the Single European Market". * Woods and Steiner (2000) “Text book on EC Law” (7th edn) Blackstone at pp 360 Case law: * Bonsignore v Oberstadt director of the City of Cologne, 67/74 * Cases 115 & 116/81 Adoui and Cornuaille * Donatella Calfa case, C-348/96 * Campus Oil Ltd v Minister for Industry and Energy (Case 72/83) (1983) ECR 2727 * Commission v UK (Re UHT Milk) (Case 124/81) (1983) ECR 203 * Commission v Italy (Re: Ban on pork imports) (Case 7/61) (1961) ECR 317 * Commission v Ireland (Re: Restrictions on importation of souvenirs.” (Case 113/80) (1981) ECR 1625 * Lawrie Blum v Land Baden Wurttemburg Case 66/85 * Riseria Luigi Geddo v Ente Nazionale Risi (Case 2/73) (1973) ECR 865 * R v Henn (Case 34/79) (1979) ECR 3795 * R v Bourchereau, Case 30/77 * Ruttli v Minister de l’interieur, Case 36/75 Read More