The Right of Establishment and Free Movement of Service have Enhanced the Right under Article 17 - Report Example

EUROPEAN UNION LAW ARTICLE 17 Introduction The regime of protection of rights of citizens in EU Law is unique. It has no parallel in the world. It offers citizens of all members states equal rights to own property, and move freely in all members’ states for business or leisure. Such fundamental rights are essential in a democratic society and for a free-market economy. The role of the State is to respect and protect these right against any form of encroachment, and to regulate the exercise of this right in order for it to be accessible to everyone, taking public interest into due consideration. According to topic of this essay, it would be quite appropriate to mention two relevant of articles of EU Law here. The Article 17 of European Union Law states 1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby. This article is further added by Article 39 to provide free movement, business, and service rights to all the citizens of EU equally. Article 39 states 1. “Freedom of movement for workers shall be secured within the Community”. 2. “ Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment”. 3. “ It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health”: (a) “ to accept offers of employment actually made”; (b) “ to move freely within the territory of Member States for this purpose”; (c) “ to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action”; (d) “ to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission”. 4. “ The provisions of this article shall not apply to employment in the public service. Because of the general importance which protective measures have in this sensitive area of labour law, it is explicitly stated that Member States in which collective agreements are not legally enforceable or in which laws on working time are in force must allow derogations by way of collective agreements (Article 17.3). Regulatory powers remain in the hands of national legislatures whenever questions of public policy are at stake; this takes place either through national statutes 'ensuring the conclusion of collective agreements' or through a formal authorization made by the state to undergo derogations”. EU Law and Members state with special reference to UK The above stated articles of EU Law are very good looking on the paper. But the member states have certain reservation about them. These laws created some anomalies and discrepancies. A very interesting case surfaced in UK and became very famous. This case of citizenship can be quoted here. This case is famous with the name of Chen case in UK. The story goes like this. Kunqian Catherine Zhu also known as Catherine Chen was born on 16 September 2000 in Belfast to Chinese parents who were working for a Chinese firm in Britain. In what became known as the Chen case, it emerged the child's mother, Mrs Chen, had deliberately selected Northern Ireland as a birthplace for her second child, whose birth in China would have contravened China's One Child Policy. As Catherine's parents were only temporary migrants, she was not eligible for British citizenship simply by virtue of birth in the United Kingdom. However, by giving birth in Belfast, Mrs Chen automatically obtained Irish citizenship for her daughter, with the intention of using the child's status as a European Union national to move the family permanently to Cardiff, Wales. However, British authorities rejected the Chens' applications for permits to reside permanently in Britain. The case was taken to the European Court of Justice, which ruled that, as a citizen of the European Union, Catherine Chen has an inalienable right to reside anywhere in the EU, and that denying residency to her parent(s) at a time when she is unable to look after herself would conflict with this basic right. Possession of Irish citizenship does not give Catherine Chen a right to register as a British citizen. However, as a United Kingdom born person, she will be eligible for British citizenship by registration. Either of her parents become a British citizen or settled in the United Kingdom and an application is made before she turns 18; or if she remains resident in the United Kingdom until age 10, she will have an entitlement to registration as a British citizen irrespective of her parent's immigration status. Position of UK and Irish Governments The Irish and United Kingdom Governments’ contention that a person in Catherine’s situation cannot claim the benefit of the provisions of Community law on free movement of persons and residence simply because that person has never moved from one Member State to another Member State must be rejected at the outset. The situation of a national of a Member State who was born in the host Member State and has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation, thereby depriving that national of the benefit in the host Member State of the provisions of Community law on freedom of movement and of residence (to that effect, see, in particular, Case C-148/02 Garcia Avello [2003] ECR I-11613, paragraphs 13 and 27). Moreover, contrary to the Irish Government’s contention, a young child can take advantage of the rights of free movement and residence guaranteed by Community law. The capacity of a national of a Member State to be the holder of rights guaranteed by the Treaty and by secondary law on the free movement of persons cannot be made conditional upon the attainment by the person concerned of the age prescribed for the acquisition of legal capacity to exercise those rights personally (to that effect, see, in particular, in the context of Regulation “(EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition, Series I, 1968 (II), p. 475), Joined Cases 389/87 and 390/87 Echternach and Moritz [1989] ECR 723, paragraph 21, and Case C-413/99 Baumbastand R [2002] ECR I-7091, paragraphs 52 to 63, and, in relation to Article 17 EC, Garcia Avello, paragraph 21)”. Moreover, as the Advocate General made clear in points 47 to 52 of his Opinion, it does not follow either from the terms of, or from the aims pursued by, Articles 18 EC and 49 EC and Directives 73/148 and 90/364 that the enjoyment of the rights with which those provisions are concerned should be made conditional upon the attainment of a minimum age. This reference for a preliminary ruling concerns the interpretation of Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services (OJ 1973 L 172, p. 14), of Council Directive 90/364/EEC of 28 June 1990 on the right of residence (OJ 1990 L 180, p. 26) and of Article 18 EC. Judgment of European Court of Justice “The reference was made in the course of proceedings brought by Kunqian Catherine Zhu (hereinafter ‘Catherine’), of Irish nationality, and her mother, Man Lavette Chen (hereinafter ‘Mrs Chen’), a Chinese national, against the Secretary of State for the Home Department concerning the latter’s rejection of applications by Catherine and Mrs Chen for a long-term permit to reside in the United Kingdom”. Conclusion This may arise, for example, where the English court believes that there is a choice of court agreement which Article 17 would regard as giving exclusive jurisdiction to the English court. What happens if the respondent appears to defy that agreement by launching proceedings as plaintiff in another contracting state? Assuming that Article 17 would have given jurisdiction to the English court, does Article 21 of the Convention nevertheless remove it, on the footing that the same cause of action was commenced in another contracting state, first in time? Acknowledgement It is hereby acknowledged that following European Union website and links were accessed to retrieve information for writing this paper. http://eur-lex.europa.eu/en/treaties/dat/12002E/htm/C_2002325EN.003301.html http://www.europarl.europa.eu/comparl/libe/elsj/charter/art17/default_en.htm http://curia.europa.eu/jurisp/cgi-bin/gettext.pl?where=&lang=en&num=79958980C19020200&doc=T&ouvert=T&seance=ARRET Works Cited Albors-Llorens, Albertina. Private Parties in European Community Law: Challenging Community Measures. Oxford: Oxford University, 1996. Blanco, Luis Ortiz. European Community Competition Procedure. Oxford, England: Clarendon Press, 1996. Clapham, Andrew. Human Rights in the Private Sphere. Oxford: Clarendon Press, 1996. Book on-line. European Community Labour Law: Principles and Perspectives: Liber Amicorum Lord Wedderburn of Charlton. Edited by Paul Davies, Antoine Lyon-Caen, Silvana Sciarra, and Spiros Simitis. Oxford: Oxford University, 1996. European Community Law in the English Courts. Edited by Mads Andenas and Francis Jacobs. Oxford: Oxford University, 1998. Book on-line. Evans, Andrew. European Community Law of State Aid. Oxford: Oxford University, 1997. Book on-line. Wyatt, Joan, A. Barav, and D. A. Wyatt, eds. Yearbook of European Law. Vol. 17. Oxford: Clarendon Press, 1998. Book on-line. Read More