European Single Market Issues - Assignment Example

Part I Our country becomes a Member of the European Union with effect from January acquiring the rights for its citizens enumerated below. The rights are subject to some restrictions until the year 2015 during which period, the rest of the member states except the U.K., Ireland and Denmark will be requiring the Euralians entering their respective countries for employment to obtain work permits and these restrictions will be phased out with effect from January 2016. Similarly, Euralia will place restrictions on nationals of the Member States entering Euralia except that of the U.K., Ireland and Denmark. EU Directive2005/36/EC1 stipulates General and Specific segments under which professions are listed with requisite qualification. Euralians must consult the Directive in this connection. Union Citizenship The citizens of member states become citizens of the European Union by virtue of Article 17(1) of the EC Treaty. They start enjoying the rights under the treaty in conjunction with duties imposed on them. The rights are conferred by article 17 (2) of the treaty.2 Free Movement of Persons Under Article 18(1) Euralians as citizens of EU shall enjoy the right to move freely within the territory of Member States subject to certain conditions.3 Free Movement of Workers Article 39 (1) of EC treaty governs the right of a citizen of a Member State to move freely in any other Member State for employment. Euralians can accept offers of employment from any other Member State and stay in that member state for employment purposes governed by the same conditions as may be applicable to the nationals of that state.4 Freedom of Trade and Commerce and Service While article 43 gives freedom of trade and commerce for self employment of the individuals to carry out trade and commerce, article 49 enables providing and receiving of services by the individuals of Member States subject to restrictions5. The Secondary Legislation to the freedom of movements is provided in EU Directive No 2004/38/EC of 29 April 2004 which Euralians must consult. 6 Needless to say, the cooperation between the Member Nations will result in significant reduction in business costs by removal of artificial constraints to trade. This will reduce a lot of paper work, intensify competition and increase efficiency. The convergence will result in creation of jobs for Euralians and for all the union citizens besides wealth creation.7 Part II Qn 1) As per the ascension treaty, Euralians will not have any restrictions for availing of job offers in the U.K. But conditions in the EU Directive 2004/38/EC of 29 April 2004 8 will be applicable. As per article 2 of the directive, following are considered as family members and they are allowed to accompany the Euralian national who will ultimately get employed. (a) the spouse, (b) partner in a marriage partnership if recognised in the host state, © the direct descendants under the age of 21 or dependants and dependants of the spouse or marriage partner (d) the dependant direct relatives in the ascending line of the citizen, his/her spouse or marriage partner. Accordingly, in the instant case, the daughter being her direct descendant and dependant but aged 23 can accompany the citizen as per clause (c) above. If she is already employed and not dependant on the citizen, she cannot accompany the citizen as a dependant. If she is below age 21, she can accompany her mother to the U.K.under sub-clause (a) above. Since she is aged 23, she must establish her dependency. It has been the stand of the court of justice that dependent status should be decided on the factual situation as to whether the mother who is going to U.K. on employment, has been actually providing support to her daughter aged 23 and not based on factors that may justify giving support as held in Lebon.9 Hence it will be sufficient if her daughter is able to establish her dependency on her mother. If she happens to have medical insurance, she can manage to live with her mother independently for more than three months. And if she is able to procure employment on reaching there, she can very well continue to reside as an independent worker after three months. 10 Qn 2) Answer: Article 2 (c) of the directive permits dependants regardless of relationship and even nationality, to accompany. Hence, the ex-husband who is disabled and dependant on her can accompany. Only problem that will arise in future is that if and when the worker dies leaving behind the disabled ex-husband. Or if she simply leaves the country without taking him. If he happens to be third-country national, he will not be eligible to continue under EU law as a dependant of a EU citizen unless he has lived with her at least for a year provided he is able to show that he is financially independent so as not to become a burden on the social assistance program of the host state. Otherwise, he has no right to continue as a permanent resident under EU law.11 Qn 3) Answer: Article 2 (b) of the directive allows the host country recognise partner in a civil marriage as a family member and hence he is permitted to go with the citizen. Earlier, court of justice had held in Netherlands State v Reed as not eligible.12 Now Article 2 (2xb) of Directive 2004/38 provides as “ the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State” 13 Qn 4) My dog. Answer: Generally host country would insist on the pet being vaccinated before its entry in to its state in order to prevent rabies. A pet can be taken as a personal effect, if properly vaccinated evidenced by certificates. Once, the U.K. had rules for quarantining the animals for six months. The rules do not exist now.14 The above answers to Qn 1 to 4 are subject to the persons’ obtaining residence cards in the U.K. Qn 5) Answer: He can go to U.K. to pursue his law degree only with sufficient financial support. Mere visits to U.K. earlier on tour will not make him eligible. The prospective student should take comprehensive sickness insurance in the host State and give assurance to the national authority of possession of sufficient financial resources and that he will not be a burden on social assistance system of the host State. Or he should be a worker already or become a worker so that he can pursue his study with his earnings and he will also become eligible for study grant as an existing worker. In Brown15, as the student had worked for eight months in the U.K., he desired to study with the grant from the British Government under article 7 (2) by joining Cambridge University in engineering. But his work was a part of the curriculum of his earlier course of study. Hence his claim was rejected. Article 24 (2) of Directive 2004/38 stipulates that a person is eligible for study grant only after he/she completes five years of residence in the host State. Otherwise unless he/she should be a worker or self employed in the host State.16 Court took the stand in Brown that he took the job mainly to avail grant. As he had only worked as a learner or trainee as part of his curriculum in pre-university industrial training, the court held that he did not have an economic activity in the host State and found him ineligible to claim grant as a social assistance which he could claim only as a regular worker. His earlier work was held to be merely as an extended course of study for practice. 17 Qn 6) Internal market means area without internal frontiers and hence EU nationals enjoy the right of freedom of movement as per articles 30 to 42 of the treaty. As per article 6(1) of the Directive 2004/38, a EU national can stay for three months even if he is a retired person without any conditions but with valid identity card or passport of the country he belongs. He can also take his family along with him as per article 6(2). He will be allowed stay longer only if he can show sufficient proof of having financial resources and comprehensive insurance both for himself and his family members vide article 7(1) (b) of the directive and register himself and family members in the host Member State as per article 8(1). Article 16 grants him permanent right of residence if he has resided in the host Member State for a continuous period of five years without having to satisfy the conditions of articles 6 & 7 of the Directive. If he becomes insolvent before the expiry of five years, he can be expelled as per article 14 of the Directive since he will become a burden to the social assistance system of the Member State.18 On the other hand, he will not be disturbed if he has already put in five years of continuous residence in the Member State. Thus the five years’ stay confers a EU national right to continue to stay in the Member State without being economically active. He can claim equal status of the national of the Member State and become eligible for all the benefits and privileges enjoyed by a national of the Member State.19 If however, he is threat to the security and acts against the interest of the host Member State violating public security or public policy, he can be deported to his country of origin. But the host Member State is given the discretion to let him continue if he has put in more than ten years of residence continuously vide article 28(3) of the Directive. In case of fraud or abuse, the host Member State can refuse or withdraw as envisaged by Article 35 of the Directive 2004/38. However, there is no case law yet on this issue except in the case of fake marriages merely to claim residence. 20 Article 33 of the Directive prevents expulsion on the ground of conviction as a measure of penalty unless article 27 of the directive is conformed. Thus the person in this question can stay permanently if he has resided for a continuous period of five or ten years as the case may be regardless of being insolvent subject to of course his conduct not being repugnant to public policy or threat to public security. Bibliography Books Bernard Catherine (2007) The Substantive Law of the E.U.: the four freedoms, Oxford University Press, p 304 Berry Elspeth, Sylvia Hargreaves, (2007) Deards Elspeth, European Union Law, Oxford University Press, Edn 2, p 224 Craig P Paul, Burca De Grainne, (2007) EU Law: text, cases and materials, Oxford University Press, page 754 Hargreaves abd Berry, Chapter 10, Free Movement of Persons, Workers, the Self-Employed and Their Families, European Union Law Text Book 2e, Oxford University Press Medhurst David (2001) A brief and practical guide to EU Law, Wiley-Blackwell, Edn 3, p 121 Websites Article 17 (1) & 17 (2) Consolidated Version Of The Treaty Establishing The European Community, Accessed on 28 April 2009 Directive 2004/38/EC dt 29 April 2004, Accessed on 28 April 2009 [ EU Membership – The Four Freedoms, Accessed on 28 April 2009< http://www.berr.gov.uk/whatwedo/europeandtrade/europe/single%20market%20intro/EU%20Four%20Freedoms/page45648.html> Greaves R 2008, The Internal Market and Free Movement of Persons, Accessed on 28 April 2009 Professional Qualifications, The EU Single Market, Directive 2005/36/EC, Accessed on 28 April 2009< http://ec.europa.eu/internal_market/qualifications/future_en.htm> Section one, Part one, An Introduction to the EC and the EEA and the Free Movement of Workers, accessed on 28 April 2009 from < http://www.welfare.ie/EN/Policy/EU/Euguide/Documents/chapter1.pdf> Travelling to another EU Country, Pets, Accessed on 28 April 2009 < http://ec.europa.eu/youreurope/nav/en/citizens/services/eu-guide/travelling/index_en.html> Read More