European Court Of Justice and Free Movement of Persons - Essay Example

Running Head: EUROPEAN COURT OF JUSTICE AND FREE MOVEMENT European Court Of Justice and Free Movement of Persons of the writer] [Name of the institution] European Court Of Justice and Free Movement of Persons Introduction The focus of this essay is to look on the development of the concept of citizenship itself since the conception of the Maastricht Treaty. Of particular interest is whether the introduction of Union citizenship provisions initially added significantly to Community law, thus extending the extent of those rights already existing in the European Treaties, particularly the right of the free movement of persons.1 Furthermore, in addition to addressing the question of whether there now exists a self-standing right under Union citizenship from the perspective of Article 18, the essay will conclude by taking a general look at citizenship and asking whether a concept typically allied with a single nation state can be carried over to a higher level, that is to say, within the supranational boundaries of an establishment such as the European Union, a task which is rendered all the more difficult by a lack of knowledge and enthusiasm on the part of the citizens themselves. Free Movement Of Persons The first part of this discussion seeks to determine whether the inauguration of citizenship of the EU can be classed as a simple political metaphor without any additional significance or whether it can be considered as extending the scope of the rights already existing in the European Treaties, particularly in respect of the right of the free movement of persons. Consequently, specific focus in the paper will be upon the citizens' right to move freely and reside within the territory of the Member States. The move from the European Community to that of European Union was reflected in a number of specific EC Treaty provisions, including the enlargement of competence in the fields of education and culture, and of course the launch of the sacred status of citizenship of the Union2. The Treaty on European Union (here after referred to as TEU or Treaty of Maastricht) has introduced for the first time a systematic concept of citizenship in the Community ambit through Articles 17 to 22 (renumbered after the Treaty of Amsterdam). Article 17 states that Citizenship of the Union is hereby established and that every citizen holding the nationality of the Member State shall be a citizen of the Union. Following the Amsterdam amendment citizenship of the Union shall complement and not replace national citizenship. The rights and obligations emanating from the citizenship of the EU are then specified in the following articles 18-22/ ex-art. 8a-8e. They include the right to free movement and residence (art.18), active and passive electoral rights in the municipal elections and elections into the European Parliament (art. 19), right for diplomatic protection (art. 20), petition rights to the European Parliament and right to refer matters to Ombudsman (Art. 21). The actual TEU provisions are contained in a new Part Two of the EC Treaty devoted solely to this topic. However, it is the right of free movement and the right of residence which, as they have been right through the debate on European citizenship, form the foundations of Union citizenship. 2 Article 18 EC provides for freedom of movement and residence within the territory of the Member States. Ivo Shlosark refers to the Maastricht Treaty introducing the concept of citizenship into community law as something of a new phenomenon3. Despite the introduction of formal provisions on citizenship the concept itself was hardly a policy innovation of the Treaty of Maastricht4. The concept of citizenship itself was considered from a very early stage in the development of the Communities. Indeed, since the Treaties of Rome (1957) the Community has legislated fundamental rights and provisions inherent in freedom of movement. Historical steps on the way to European citizenship include the Tindemans Report (1975)5, the introduction of direct Parliamentary elections (1979), the Adonnino Report (1985), the Single European Act (1986) and the many programmes promoting mobility. The free movement provisions of the EEC Treaty, and in particular those concerning the free movement of workers, were seen as being the first steps in creating "an incipient form of European citizenship"6 aided in particular by the proactive interpretation of the ECJ towards free movement of persons and non-discrimination and observing 'the migrant worker...not as a mere source of labour but as a human being'7. This statement could be interpreted as an effort to assert social values within a system of primarily economic law, although the fact that it was necessary to reaffirm the humanity of workers says a lot about the legal mentality during the first stages of implementation of European Law. Nevertheless, since the 1970s there have been a number of cases, principally based on free movement, which have expanded the legal notion of citizenship rights from the restricted group of economic actors to all citizens of EU member states. 8 Following Maastricht, many scholars have spoken of the potential that EU citizenship holds. Indeed, Meehan notes that 'a new kind of citizenship is emerging that is neither national nor cosmopolitan but that is multiple in the sense that the identities, rights and obligations, associated with citizenship, are expressed through an increasingly complex configuration of common Community institutions, states, national and transnational voluntary associations, regions and alliances of regions'9. Reich on the other hand, argues that Article 17 suggests that the concept of citizenship is simply a metaphor11. Yet, Meehan submits that 'despite such criticisms that European citizenship is cosmetic, the rights associated with citizenship are no longer regulated or guaranteed exclusively by the institutions of nation-states but have, in addition, an increasingly significant European dimension'.12 The Commission itself seems to take this view, claiming that since the Treaty already covers economic actors, and Directives 90/364-366 cover non-economic actors, no additional legislation is necessary, even though the Directives do not cover those who are on the margins of society. The TEU appears only to concentrate on existing Treaty law as regards economic actors, and secondary legislation as regards non-economic actors.13 Thus, it is submitted that the introduction of Union citizenship provisions did not initially, add substantially to Community law, rather the provisions themselves mainly restated or generalised previously existing rights. ECJ and Free Movement of Persons From the initial perspective of the ECJ, its jurisprudence reveals a degree of uncertainty as regards the full employment of the concept of citizenship in broadening citizen's rights in the field of free movement. Indeed, the courts initial interpretation of the citizenship provisions did not seem encouraging.14 In its first judgment on the subject of citizenship, Skanavi v. Chryssanthakopoulos15 the Court declined to consider the application of Article 17, which was considered to be residual and apparently secondary to other more explicit Treaty rights. In Boukhalfa v. Bundesrepublik Deutschland16, the ECJ restricted itself to interpreting the free movement of workers rules since the referral by the Bundesarbeitsgericht simply referred to Article 39 and Article 17 of the EC Treaty and Article 7 of Regulation 1612/68. Approving the decision, Advocate General Lger, spoke openly about the rights afforded by the concept of citizenship holding that although 'the Court has not yet had an opportunity to give a ruling on the 'new' concept of European citizenship...It is for the Court to ensure that its full scope is attained'. In the combined cases 65 and 111/95, The Queen v. Secretary of State for the Home Department ex parte Shingara and Radion [1997] ECR I-3341, Advocate General Ruiz-Jarabo Colomer gave a similar statement. Although obiter dictum he remarked (at para 34) that 'the citizenship of the Union separates the freedom of movement for citizens from its functional or instrumental elements and raises it to the level of a genuinely independent right inherent in the political status of the citizens of the Union' Early cases such as the joined cases Land Nordrhein-Westfalen v. Kari Uecker17, Vera Jacquet v. Land Nordrhein-Westfalen18, however, suggest that there is not self-standing right in Article 18. The Court submitted "Citizenship of the Union is not intended to extend the scope ratione materiae of the Treaty also to internal situations which have no link with Community law"19. References to the ECJ on free movement matters were frequent, yet it took until 1998 for the Court to give its first important pronouncement as to the interpretation on Union citizenship. In the Martnez Sala20 judgment the Court, for the first time, employed citizenship to broaden the rights of Union citizens. The case involved a Spanish resident in Germany claiming a German child-benefit allowance. Firstly, the Court held that lawful and authorized residence in another Member State by a national of one of the Member States is adequate to bring a person within the personal scope of Community law. Secondly, the ECJ matches the benefit sought with the scope of coverage provided by measures conceived originally to deliver equal treatment rights to economically active categories of migrants and their families, namely Regulation 1612/68 and Regulation 1408/7121. This is enough to bring the benefit within the material scope of Community law. Furthermore, the Court used Articles 17-18 to extend the protection against discrimination based on nationality to every Union citizen22. Advocate General Jacobs and the Court, referring to the decision in Cowan, extended the prohibition of discrimination in Article 12 to all nationals coming under the free movement rules under Article 1824. The Advocate General, as well as the Court, said that refusing to allow German-speaking citizens from Austria or Germany to use their mother tongue in the province of Bolzano, where this was allowed to German speaking Italians, amounted to discrimination based on nationality23. The Court referred to its decision in Martinez Sala that a national of a Member State who is lawfully present in the territory of another Member State comes within the scope of the Treaty by virtue of Article 18 and may therefore rely on Article 12. A more restrictive interpretation as regards the application of the concept of citizenship was given in Criminal Proceedings against Donatella Calfa25 where the Court addressed the matter of the exclusion for life of a national of one Member State from the territory of another Member State. In Criminal Proceedings against Florus Ariel Wijsenbeek26, the Court seemed more eager to utilize the potential of Article 18(1) without requiring the support of another Treaty freedom. The Court held that if you cross the border, you activate EC law and, more precisely, the principle of equal treatment - there's no discussion of economic activity of any kind or even of any meaningful connection between the individual and the host Member State. 27The mere presence of an EU citizen in any Member State other than his/her own thus generates at least a basic obligation of equal treatment vis--vis the host State's own nationals, but the presence of that citizen in his/her own member State per se does not generate any EC obligations at all. The ECJ held that the right to dwell within the territory of the Member States under Article 18(1) EC is conferred directly on every citizen of the Union by a clear and precise provision of the EC Treaty.28 Thus, in recapping on the above one can presume that the introduction of Union citizenship provisions in the Treaty of Maastricht did not, at first, add significantly to Community law. Article 18 does not add any new rights, rather it primarily reiterates already existing rights29. In particular, the judgement in Martnez Sala confirms that Union citizenship minimizes the link which EC law required for the principle of non-discrimination to apply, i.e. performance or involvement in an economic activity as workers, established persons or providers or recipients of services, preparation for future economic activity as a student or some sort of relationship with an economic actor as a family member or dependant30. Union citizens now, who lawfully reside in a Member State other than their Member State of origin, are permitted to equal treatment as regards the full array of benefits, which fall within the material scope of EC law. In Baumbast, the ECJ openly acknowledged the direct effect of Article 18 EC. All the same, even though declared to be directly effective Article 18 does not generate a general right for all Union citizens and the nature of Article 18 still continues to be subordinate to free movement rights. The ECJ has indeed given the provisions on citizenship added substance beyond the mere restatement of previously existing rights as reflected in the Maastricht Treaty. Thus, there now exists a bundle of rights branded 'citizenship of the Union' including, to a degree, a right to free movement and residence, active electoral rights in the municipal elections and, as European citizens, we may even petition the European Parliament and refer matters to the European Ombudsman31. Furthermore, as citizens of the Union, we can now express our European identity by parading the array of symbols of European unity including, the European flag31 together with our own European song of praise32, and not forgetting the Europe Day on May the 9th 33. Yet, while some members of the UK and Irish general public may be conscious of a European flag, those who are aware of a Union anthem or the Europe Day on May the 9th would be few and far between. But, even if the majority of the population were fully aware of these symbols together with their rights as Union citizens, would it really make a difference as to how they subjectively viewed their own status within Europe For the citizens of Europe themselves, citizenship is still a question of nationalism rather than supranationalism. In other words, we still identify with our nation more than with the European Union, and accordingly one might agree with Reich to the effect that Union citizenship is simply a metaphor. Elizabeth Meehan quotes Commissioner Lord Jenkins as saying that he "could not foresee the day when citizens of Member States of the EC would say in Japan that they were European instead of French, German or Italian"34. It might be argued that British and Irish citizens are not been asked to surrender their entire national identity in favour of European citizenship. Indeed, following the Treaty of Amsterdam citizenship of the Union shall complement and not replace national citizenship. At the beginning of the constitution it will say that every citizen has dual citizenship of the EU and their own country. The incorporation of the Charter of Fundamental Rights into the Constitution gives a legal force to its provisions35. The Charter had been adopted in December 2000 but had not binding legal force. More than just a list of civil and political rights, the Charter covers important areas for business such as social rights of workers, the protection of personal data and bioethics. Following a meeting in Brussels in June last year in relation to the draft constitution, French Foreign Minister Dominique de Villepin proclaimed 'we are setting up a new political age, more efficient, more democratic, and assuming Europe's full role on the world stage...this project proves that a united Europe is possible'. On top of the daunting task of establishing a super-nation with a stable economy and compatible institutions, the EU authorities are faced with the task of uniting its citizens under one banner. The French Front National is an example. The Belgian Vlaams Blok, the British BNP, and the German Neo-Nazis are further examples of nationalistic politics35. It is submitted that the goal of a peoples Europe, despite the advances in terms of broadening the scope of Union citizenship, remains somewhat distant. Indeed, the problematic question remains as to how a concept usually associated with a single nation state be carried over to a higher level, that is, within the supranational confines of an organisation such as the European Union However, this essay is not denying the progress that has been made, particularly from the input of the European Court of Justice. Yet, a true, tangible and equitable EU citizenship felt and enjoyed by the people of Europe is only possible if the people themselves are brought out of their national shells and fully educated on European social integration. References 1. Reich, N (2001) 'Union Citizenship - Metaphor or Source of Rights' 7 ELJ 4. 2. see footnote 202, pg 719 C&D). 3. Ivo Shlosark, Charles University, Prague Czech Republic, GOVERNANCE AND CITIZENSHIP IN THE EUROPEAN UNION - THE INFLUENCE OF CULTURE 4. Craig, P and De Burca, G (2003) EU Law Text, Cases and Materials 3rd edn., Oxford University Press. Pg 717 5. it was the Tindemans Report, in 1976, when, for the first time, the purpose of going further of a mere common market with an objective of creating a community of citizens was clearly proposed. 6. O' Keeffe, D (1994) 'Union Citizenship', in D. O' Keeffe and P. Twomey (eds.) 'Legal Issues of the Maastricht Treaty' (Chancery/Wiley, London). 7. Advocate -General Trabucci in F v Belgium (case 7/75). 8. Downes, 2001 9. Elizabeth Meehan, Citizenship and the European Union Zentrum fr Europische Integrationsforschung, Center for European Integration Studies, Rheinische Friedrich Wilhelms-Universitt Bonn, 10. Closa, C (1995) 'Citizenship of the Union and Nationality of Member State' 32 CMLRev. 487 11. Reich, N (2001) 'Union Citizenship - Metaphor or Source of Rights' 7 ELJ 4. 12. Meehan, Elizabeth. (1997) Political Pluralism and European Citizenship, in Citizenship, Democracy and Justice in the New Europe, Percy B. Lehning and Albert Weale (Eds.), Routledge, London. 13. O'Keeffe continues that "it will only be if the legislator uses Article 18 as the basis for further legislation that anything new will be added". O' Keeffe, D (1994) 'Union Citizenship', in D. O' Keeffe and P. Twomey (eds.) 'Legal Issues of the Maastricht Treaty' (Chancery/Wiley, London). 14. Duff, A. et al 1994: 26. see Duff, Andrew (ed.), The Treaty of Amsterdam: Text and Commentary. London: The Federal Trust and Sweet and Maxwell 1997, p.100-109. 15. Case 193/94 - [1996] ECR I-929 16. Case 214/95 - [1996] ECR I-2253 17. para 63 18. C-64 & 65/96, [1997] ECR I-3171 19. at para 23 20. [1998] ECR I-2691 21. Fries, S and Shaw J (1998) 'Citizenship of the Union: First steps in the European Court of Justice' 4 EPL 533. 22. As developed in Case 186/87 Cowan v. Trsor Public [1989] ECR 195. 23. Case 274/96 [1998] ECR I-7637 24. paras 23-24 25. Case 348/96 [1999] ECR I-11 26. Case 378/97 [1999] ECR I-6207 27. Case, C-184/99 [2001] ECR I-6193 28. Craig, P and De Burca, G (2003) EU Law Text, Cases and Materials 3rd edn., Oxford University Press, p 759 29. Case C-413/99 [2002] ECR I-7091 30. O' Leary (1999a) 'Putting Flesh on the Bones of European Union Citizenship' 24 ELRev. 68. 31. The twelve stars upon it initially signified the member states, but since this number grew to fifteen it has been declared that twelve is being used as a number that symbolises perfection. 32. The last movement of Beethoven's 9th symphony, the prelude to 'Ode of Joy', with musical arrangement by Herbert Von Karajan. 33. Chosen because it is the anniversary of the Schuman declaration- the declaration of Monnet's proposal for the ECSC and for establishing lasting peace in Europe. 34. Meehan, Elizabeth. (1993) Citizenship and the European Community, Sage Publications Ltd., London. 35. The European Council meeting held in Tampere, Finland on 15-16 October 1999 launched work on drafting a charter of fundamental rights in the European Union. This was a recent development in a long-running debate concerning fundamental rights and a direct result of the conclusions of the June 1999 Cologne Council, which called for the incorporation into a charter of all the fundamental rights currently applicable in the European Union. Bibliography Meehan, Elizabeth. (1991) European Citizenship and Social Policies, in The Frontiers of Citizenship, Ursula Vogel and Michael Moran (Eds.), Macmillan, London. Meehan, Elizabeth. (1993) Citizenship and the European Community, Sage Publications Ltd., London. Meehan, Elizabeth. (1997) Political Pluralism and European Citizenship, in Citizenship, Democracy and Justice in the New Europe, Percy B. Lehning and Albert Weale (Eds.), Routledge, London. O' Keeffe, D (1994) 'Union Citizenship', in D. O' Keeffe and P. Twomey (eds.) 'Legal Issues of the Maastricht Treaty' (Chancery/Wiley, London). O' Keeffe, D (1996) 'Reflections on European Union Citizenship' 49 CLP 347. O' Leary, S (1992) 'Nationality Law and Community Citizenship: A Tale of Two Uneasy Bedfellows' 12 YBEL 353 O' Leary, S (1995) 'The Relationship Between Community Citizenship and the Protection of Fundamental Rights in Community Law' 32 CMLR 519. Closa, C (1992) 'The concept of Citizenship in the Treaty on European Union' 29 CMLRev. 1137 Closa, C (1995) 'Citizenship of the Union and Nationality of Member State' 32 CMLRev. 487. Mancini, G F (1992) 'The Free Movement of Workers in the Case-Law of the European Court of Justice', in D. Curtin and D. O' Keeffe (eds.), Constitutional Adjudication in European Community and National Law (Butterworths Ireland). Craig, P and De Burca, G (2003) EU Law Text, Cases and Materials 3rd edn., Oxford University Press. Fries, S and Shaw J (1998) 'Citizenship of the Union: First steps in the European Court of Justice' 4 EPL 533. Reich, N (2001) 'Union Citizenship - Metaphor or Source of Rights' 7 ELJ 4. Shaw, J (1998) 'The interpretation of European Union Citizenship' 61 MLR 293. Read More