European Court of Justice - Free

European approach of evaluator Free Movement of Persons EssayFrom previous(predicate) on it became clear to close observers of the EU that the role and ascertain of law were going to be critical in anchoring EU policy regimes. If the ratified trunk could understand a high rate of compliance, a way of giving authoritative interpretation to disputed texts, and a means of redress for those for whom the law was created, then the EU routine as a whole would ingest solidity and a predictability that would help it to be sustained. The ECJ was established in the first accordance texts these take a shit been about unchanged since then, except to cater for the increasing workload and successive enlargements of the EU instalmentship.The ECJ, sited in Luxembourg, is now dispassionate of fifteen judges, as well as the nine advocates-general who deliver preliminary opinions on guinea pigs. The SEA in 1986 established a second Court of First Instance, composed now of fifteen ju dges, to help in handling the heavy flow of grands. The EU has thus fewwhatthing like a supreme court, able to supply an whollywherearching framework of jurisprudence, as well as to deal with litigation, both in cases referred via the theme courts and in those that atomic number 18 brought straight off before it.The Courts sanctions ar mostly the force of their own rulings, backed up in some instances by the ability to impose fines on those (usually companies) found to have broken EU law. The T EU gave the ECJ power to fine member governments for non-application of European law. Also, as a result of its own rulings (especially adept of the Factortame cases on fisheries see Chapter 13), damages can be claimed against governments that fail to implement European law correctly. The Courts take their cases in usual, entirely reach their judgments in underground by, if necessary, majority votes the results of their votes ar non do public, and minority opinions argon not issued.A series of key cases has, since the early 1960s, established important principles of European law, such as its supremacy over the law of the member states, its direct effect, a doctrine of proportionality, and an early(a) of non-discrimination. In doing so the ECJ has gone further in clarifying the rule and the role of law than had specifically been laid slew in the treaties. In some policy domains court cases have been one of the key forces in underdeveloped EU policy regimes. Table 1. summarize the pattern and volume of cases before the Court.Table 1 tonic cases at the European Court of Justice, 1972-1997 (no.) (five-year, periods, Since 1972 five-year 1992-1997 each year given)Subject-matter Cases 1972 1977 1982 1987 1992 1993 1994 1995 1997 until 1971 Agriculture and993661838119821065706066fisheriesTransport32451410115311Taxation2712935202125363361Free driving of533255645335886795061goods and customsCompetition and386104234543520352845state aidsFreedom of32412122047 344639establishmentand to provide goFree movement for3711191735495944547051workers and heartypolicyEnvironment151111425947Rest a2162144234329265434Staff of EU268232585779105151314institutions bOther(ECSC, EAEC,2527119413415privileges andimmunities)All89582162348395d438486c347409420444a Inc. common commercial policy and cases under agreements with tertiary countries.b These atomic number 18 contract and social security cases of EU elegant servants, mostly dealt with by Court of FirstInstance created in 1989, except for appeals to ECJ.This strong legal belongings has a large influence on the policy process. Policymakers pay great attention to the legal moment of the texts that they devise policy advocates look for legal rules to achieve their objectives, because they know that these are favoured by the institutional system policy reformers can some judgment of convictions use cases to alter the impact of EU policies and in general in that location is a presumption that rules g o forth be oft or less obeyed. Hence policy-makers have to submit carefully between treaty articles in determining which legal base to use, and to consider car Efully which resistant of legislation to make (Reich Harbacevica, 2003).Regulations are directly applicable within the member states once promulgated by the EU institutions. Directives have to be transposed into content law, which allows some flexibility to member governments, but within limits set by the ECJ. Decisions are more limited legal instruments applied to specific circumstances or specific administerees, as in competition policy. All three kinds of law may be made either by the Commission (under delegated powers), or by the Council, or jointly by the Council and EP (under co-decision). And all are subject to challenge through the national and European courts.The vigour of the European legal system is one of the most distinctive features of the EU. It has helped to reinforce the powers and reach of the EU process, although in recent years the ECJ has become a bit more cautious in its judgments. We should note to a fault that in some policy domains member governments have gone to considerable lengths to keep the ECJ out of the picture. Part of the reason for the three-pillar structure of the T EU was to keep both CFSP and JHA well away from the reach of the European legal system.Even though the ToA goes some way towards incorporating parts of JHA and Schengen more fully within the system, it remains contested how furthermost they will be brought within the jurisdiction of the ECJ. One issue which floats in the debate is how far the other European legal order, based on the European Convention of Human Rights attached to the Council of Europe, is to be linked to the EU, and whether the EU should wed its own lead on Fundamental Rights.The wider institutional settingThe EU institutional system includes in addition a number of additional organizations that have an impact on, or provide instruments for, EU policies. round are consultative. Some provide control mechanisms. Some provide autonomous operating arms.Consultation and lobbyingThe psychiatric hospital treaties established the Economic and Social Committee (and the Consultative Committee for the ECSC) as a point of addition to the policy process for socioeconomic groups. Its creation borrowed from the corporatist traditions in some of the founder member countries. It has not, however, become an potent body in the policy process. Instead socio-economic groups have found their own more direct points of door since the 1960s, both through EU-Ievel federal associations and through sector-specific trade and producer organizations.These became even more active in the period around the development of the single European market (Forder, 2002). Individual large firms have also taken pains to develop links with the EU institutions, again some since the 1960s, but m both more and with more vigour since the early 19 80s. A more recent development has been the increased activity of groups and lobbies representing social interests, the consumers, the environmentalists, womens groups, and increasingly a range of other advocacy groups and nongovernmental organizations (NGOs). Illustrations of the activities of these different kinds of groups can be found in many of our case-studies (Groenendijk Guild, 2001).The TEU introduced a second consultative body, the Committee of the Regions, in response to the extensive involvement of topical anaesthetic and regional authorities in seeking to influence those EU policies that impacted on them. The Committee provides regional and local politicians from the member states with a multi posterioral forum, and an opportunity to enhance their local political credibility.At least(prenominal) as important, however, is the direct lobbying by infranational (local and regional) authorities, many with their own offices in Brussels. These same infranational authoritie s also utilize in efforts to influence national policy positions and the implementation of conjunction programmes. Chapters 9 and 13 comment on this in relation to the structural funds and the common fisheries policy.Control and scrutinyIn the mid- 1970s tending started to be voiced that the EU policy process was subject to few external controls. The EP at the time had few powers, and national parliaments paid rather little attention to EU legislation and programmes. It was the growing outmatch and scope of the EU budget and spending programmes that led the arguments about the inadequacy of scrutiny.This led to the creation of the European Court of Auditors by the 1975 Budget Treaty. Since 1978 it has, from its seat in Luxembourg, endeavoured to evaluate systematically both revenue-raising and spending. Both in its Annual Reports and in specific reports it has drawn attention to various weaknesses in the budgetary process, as handled by the Commission and national agencies.Here we should note that about four-fifths of EU budgetary expenditure is disbursed by national agencies. Chapter 8 describes some of the Court of Auditors activities and impact. We note here that many of its criticisms fell for many years on deaf ears member governments that were reluctant to face up to some of the issues, an EP that had other preoccupations, and a Commission which repeatedly undervalued the importance of sound fiscal management. In late 1998 this situation was reversed by the row over alleged financial mismanagement by the Commission.Another new instrument of post hoc control is provided by the Ombudsman attached to the EP under the provisions of the TEU. The aim is to provide a channel for dealing with cases of maladminstration vis--vis individuals. Thus far the existence of this office has not had a large impact, although it may have contributed to making the policy process a little more open than hitherto.Some control and scrutiny of policy depends on national inst itutions, both parliamentary and financial. National parliaments had no official recognition in the institutional system until the early 1990s. Each member state had developed its own, mostly rather limited, procedures for national parliamentary scrutiny of EU policy. The same discontent that had led to some strengthening of European procedures started to provoke a debate on national scrutiny.Both the T EU and the ToA mention the importance of encouraging this, although there is little likelihood of standardized procedures emerging. Instead it seems likely that EU-level policy-makers, especially in the Commission, will pay more attention to national parliamentary discussions and appear more readily before national parliamentary committees of inquiry. This heightened sensitivity to country-level preoccupations is becoming a more marked feature of the EU policy process. It may well be emphasized by the establishment of national parliamentary offices in Brussels (by September 1999 from Denmark, Finland, France, and the UK).From market citizenship to political and social citizenshipAs mentioned previously, 184 it was at the 1972 Paris Summit that European economic integration was put into a broader perspective of social welfare. Since then, the neo-liberal philosophy that was at the basis of the European Economic Community (and still is, to a large extent, at the basis of the European Community, that is, the first pillar of the amount) was gradually turned into a more socially point philosophy.From a perspective of citizen flops, this means that the objurgates that citizens enjoy by virtue of EC law are no longer only market rights but have been enlarged to include political rights as well, and behind also social rights in the broad sense of the word, that is, rights (and duties) concerned with peoples welfare generally, including work, education, health, and quality of animateness. 185This transformation started with the incorporation, by the Maastricht Tre aty, of a new part II in the EC Treaty, entitled Citizenship of the coupling and composed of Articles 1722 (ex 88e) EC. According to Article 17 (1) EC, citizenship in the substance, complementing and not replacing national citizenship, is established and accorded to every person holding the nationality of a extremity State. The rights enjoyed by Union citizens are, according to Article 17 (2), the rights conferred by the EC Treaty subject to the duties imposed thereby.Those rights are in the first place the internal market libertys (in the pattern of which discrimination on the basis of nationality is prohibited) and related consumer and worker rights specified elsewhere in the treaty. Then, in Articles 18 to 21 EC, a limited number of rights are enumerated, starting with the general right to move and engross freely within the territory of the element States and followed by a number of specific political rights the right to vote and stand as a candidate at municipal and Eur opean Parliament elections, the right to diplomatic protection in a third country, 186 the right to petition the European Parliament and to address complaints to the European Ombudsman. In Articles 3946 of the (as yet non-binding) EU Charter of Fundamental Rights, this list of citizen rights was consolidated, and it was expand with the rights to good administration and access to documents (Peers, 2004).The enumeration of these lists of rights in the EC Treaty, as amended, and in the EU Charter may seem rather symbolic, many of the rights mentioned organism already specified in other treaty provisions. However, the fact should not be overlooked that the rights enumerated in Articles 18 to 21 EC are apt(p) to all citizens, that is, they are unconnected with the exercise of any economic activity. That obviously holds true for the political rights, but it is also becoming increasingly true, as we will see below, for the general right of citizens, established in Article 18 EC, to move a nd reside freely within the territory of the piece States.Among the rights conferred by other treaty provisions are the rights that workers from other member States, and by extension members of their family (so-called dependents), enjoy in the Member State where they work. These rights remain connected, however, to the status of worker in the sense of Article 39 (1) EC (relating to freedom of movement for workers), as interpreted by the ECJ in numerous judgments.It means, in concrete terms, that nationals from one Member State who want to work in another(prenominal) Member State need a sign of the zodiac permit, for which they must produce proof of engagement from an employer. Similarly, family members, whether from a Member State or a third country, must produce proof of their relationship with the worker. it was expanded with the rights to good administration and access to documents.The enumeration of these lists of rights in the EC Treaty, as amended, and in the EU Charter may seem rather symbolic, many of the rights mentioned being already specified in other treaty provisions. However, the fact should not be overlooked that the rights enumerated in Articles 18 to 21 EC are distributeed to all citizens, that is, they are unconnected with the exercise of any economic activity. That obviously holds true for the political rights, but it is also becoming increasingly true, as we will see below, for the general right of citizens, established in Article 18 EC, to move and reside freely within the territory of the Member States (Pettit, 1997).Among the rights conferred by other treaty provisions are the rights that workers from other Member States, and by extension members of their family (so-called dependents), enjoy in the Member State where they work. 188 These rights remain connected, however, to the status of worker in the sense of Article 39 (1) EC (relating to freedom of movement for workers), as interpreted by the ECJ in numerous judgments.It means, in concrete terms, that nationals from one Member State who want to work in another Member State need a conformation permit, for which they must produce proof of engagement from an employer. Similarly, family members, whether from a Member State or a third country, must produce proof of their relationship with the worker. 1A financial burden on the host Member State, the students right of residence was directly based on Article 18 EC, with the effect that he was entitled in Belgium to financial assistance available to Belgians. In fact, not only EU citizens but also third-country nationals enjoy social rights under certain conditions, mainly when they are family members of migrant workers, or migrant workers from countries with which the EU has special agreements. In this context, the Mary Carpenter case deserves to be mentioned it concerned the right, under EU law, of the non-EU spouse of a U.K. national to remain with him in the unify Kingdom, despite her having violated immigrat ion rules.The ECJ command in that case that, since the deportation of his spouse (who cared for children from his previous marriage) could adversely affect the husband in the exercise of his (EC) right to provide services in other Member States, the situation fell within the scope of EC law.Furthermore, the Court held that although a Member State may limit the right to provide services on grounds of public policy or public security (as mentioned in Article 46 referring to Article 55 EC), the Member State concerned is sharpness to observe the human rights requirements embodied in EC law, including respect for the right of family life, as laid tweak in Article 8 ECHR. Citing the Boultif judgment of the Court of Human Rights, the ECJ held that the U.K. would be violating the right to respect for family life if it expelled Mrs. Carpenter without a more significant public policy reason than violation of immigration laws.The ECJs case law deriving social rights for Union citizens from the free movement and mansion house right embodied in Article 18 EC raises the delicate issue of how far the ECJ can go in frightful financial burdens on Member State social security systems in the name of solidarity between Union citizens. The issue is underlying many recent judgments, but is most apparent in Baumbast. In that case, the ECJ control that Article 18 (1) EC is sufficiently clear and precise to be directly applicable (and directly effective), and this despite the fact, as pointed out previously, that the article submits the free movement and resident right to the limitations and conditions contained in the treaty and in secondary legislation.The question at issue was whether the U.K. immigration authorities could reject Mr. Baumbasts application for replenishment of his residence permit on the grounds that he and his family were not insured for emergency treatment in the U.K., where the family lived (although they were covered by comprehensive medical insurance in Germany, of which Mr. Baumbast was a national).Such a residence permit is needed under the three EC directives granting rights of residence to categories of persons other than workers. These directives provide that rights of residence are subject to two conditions first, the applicant must possess sufficient resources, and, second, he or she must have comprehensive medical insurance for all risks. It was clear, as the court observed that Mr. Baumbast had sufficient resources, but it was evenly clear that he had no health insurance for emergency treatment within the U.K (Dougan Spaventa, 2003).In its judgment, the ECJ ruled that the refusal of the British authorities was unfounded. It recognized that the requirements in the directives were permissible, being based on the idea that exercise of the Union citizens right of residency can be subordinated to the legitimate financial interests of the Member State, including the fact that foreign nationals should not become an unreasonable burden on the public finances of the host state.Nevertheless, those limitations and conditions, laid down in secondary Community legislation, must be applied in compliance with general principles of Community law, and in particular with the principle of proportionality. The Court then found that to deny Mr. Baumbast residence solely on the grounds that he lacked medical insurance for emergency treatment within the United Kingdom would be a disproportionate interference with the exercise of his residency right under Article 18 (1) EC.ConclusionThe bar with the ECJs case law in this case, but also in other social rights cases, is that the Court, and the EU, cannot simply grant full rights of residency to all its citizens, because it cannot foot the consequent welfare bill, especially in respect of economically inactive individuals. The aspiration towards a supranational form of social citizenship, which many see embodied in Article 18, must therefore remain sensitive to domestic con ceptions of belonging to (and being excluded from) the welfare society. away from this basic question, many other issues of a more specifically legal nature arise, such as which general principles other than proportionality will be permitted to qualify restrictions imposed by secondary Community legislation. The question is most acute with regard to economically inactive and financially dependent persons What are the benefits of Union citizenship for them?Should they not be able to derive residency rights from fundamental rights provisions, such as respect for private and family life and for human dignity? Should these rights not have an impact upon the ability of Member States to expel individuals who would differently be considered an unreasonable burden upon the public purse? A straight answer to that question would be to grant Union citizens who have been lawfully resident in another Member State, for example, at least five consecutive years permanent resident status regardless of their economic or financial status, as is proposed by the Commission in a draft general directive which, if adopted, would replace much of the existing secondary legislation.ReferencesBright Christopher. Business equity in the European Economic Area. Oxford University, 1994Case C-413/99, Baumbast and R v. Secretary of State for the Home Department, 2002 ECR I-7091.Case C-60/00, Mary Carpenter v. Secretary of State for the Home Department, 2002 ECR I-6279.Dougan, Michael and Spaventa, Eleanor Educating Rudy and the (Non-) incline Patient A Double-bill on Residency Rights under Article 18 EC, 28 ELRev., 2003, 699712.Forder, Caroline pillar Common Minimum European Standards in Immigration Matters, 9 MJ, 2002, 22129.Groenendijk, Kees and Guild, Elspeth Converging Criteria Creating an Area of Security of manor hall for Europes Third Country Nationals, 3 EJML, 2001, 3759, at 52.Goyder D. G. EC Competition Law. Oxford University Press, 1998Jarvis Malcolm A. The Application of EC Law by National Courts The Free Movement of Goods. Oxford University, 1998Leibfried, Stephan Pierson Paul European Social Policy Between atomisation and Integration. Brookings Institution, 1995Pettit, P. Republicanism A Theory of Freedom and Government (Oxford Clarendon Press, 1997).Peers, Steve Implementing Equality? The Directive On Long-Term Third-Country Nationals, 29 ELRev., 2004, 43760. object for a European Parliament and Council Directive on the Right of Citizens of the Union and their Family Members to Move and Reside freely within the Territory of the Member States COM (2001) 257 final.Reich, Norbert and Harbacevica, Solvita Citizenship and Family on Trial A Fairly Optimistic Overview of Recent Court Practice with Regard to Free Movement of Persons, 40 CMLRev., 2003, 61538.1 The most important of these measures are Council Directive 68/360, containing formal requirements for workers and their family members, and Council Regulation 1612/68, concerning the substantive ri ghts and social advantages that workers and their family members enjoy. Further directives relating to rights of residence granted to categories of persons other than genuine workers are Directive 90/366, replaced later by Directive 93/96, covering students exercising the right of vocational training Directive 90/365, dealing with persons who have ceased to work and catch-all Directive 90/364, governing all those persons who did not already enjoy a right of residence under Community law. These three residency directives have in common that the persons involved must have adequate resources not to become a financial burden on the social assistance schemes of the host Member State and must be covered by sickness insurance. For references, see Craig and de Brca, n. 36 above, 756. The scope of these directives was reconsidered by the ECJ in its Grzelczyk and Baumbast judgments mentioned later in the text.