Libre circulation des personnes Flashcards
The freedom of movement of individuals has evolved in stages, initially through secondary legislation and case law.
There are two types of movement for individuals: professional and personal with Maastricht.
There has been a politicisation of the Union. European citizenship is the spearhead of this. It can be found in Articles 18 to 25 of the TFEU.
Initially, we had mainly secondary legislation, directives on workers, employees, right of residence, students…
Van Duyn, Reyners , Van Binsbergen
The Court declares that it is directly applicable - reaction to the slow implementation of the release programmes provided for in the Treaty.
The arrangements for implementing the principle of the free movement of persons will vary according to whether they are employees, natural or legal persons who are self-employed or those who provide a service.
This principle is not absolute, since there will be limits in terms of the OP, public health and public safety.
Art 45 et S TFUE. Le traité, par l’édiction de ces principes et différents articles, va conférer aux intéresses un droit qu’ils pourront faire valoir devant les juridictions nationales puisqu’elles sont d’applicabilité directe.
L’art 45 du TFUE évoque que « la libre circulation des travailleurs est assurée à travers l’Union, elle implique l’abolition, de toute discrimination en raison de la nationalité (…). Les institutions doivent adopter des textes de droit dérivé́ ».
L’art 49 du TFUE prévoit que « les restrictions à la liberté d’établissement des ressortissants d’un État membre dans le territoire d’un autre État membre sont interdites ».
Regulation 492/2011
Directive 38/2004.
Provisions are identical for employees and self-employed, the Court will interpret them in a similar way - CJEC, Royer, 1976
Le champ d’application de la libre circulation
Aubertin ruling of 16 February 1995 = Community law applies only to Community situations
« tout ressortissant communautaire indépendamment de son lieu de résidence et de nationalité qui a fait usage du droit de libre circulation des travailleurs, qui a exercé une activité professionnelle dans un autre état membre »
Le droit d’entrée et de séjour
State of which one is a national has the obligation to renew the identity document in question and the obligation not to impose an exit visa or any equivalent measure. There is also the right to enter any Member State with the presentation of an identity document.
Article 20/21 - Tout citoyen de l’Union a le droit de circuler et de séjourner librement sur le territoire des États membres, sous réserve des limitations et conditions prévues par les traités et par les dispositions prises pour leur application.
Principle of free movement of persons does not have direct effect
Citizen must not be dependent on the host state. Two conditions:
- Health insurance;
- Sufficient resources.
CJUE, G.C., 10 mai 2017, Chavez-Vilchez
Article 20 TFEU must be interpreted as not precluding a Member State from providing that the right of residence in its territory of a third-country national, who is a parent of a minor child that is a national of that Member State and who is responsible for the primary day-to-day care of that child, is subject to the requirement that the third-country national must provide evidence to prove that a refusal of a right of residence to the third-country national parent would deprive the child of the genuine enjoyment of the substance of the rights pertaining to the child’s status as a Union citizen
Affaire Ruiz Zambrano 2011
Its preliminary questions concerned the consequences of the children’s European citizenship on the parents’ right of residence and work.
two fundamental clarifications. Firstly, the provisions of Article 20 TFEU relating to European citizenship may be applicable even if the person concerned has not made use of his or her right to free movement within the Union - the mere fact that a Union citizen has not made use of his or her freedom of movement does not automatically lead to the conclusion that the situation is purely internal.. Secondly, on the basis of EU citizenship, third-country nationals who take care of their young children, who are EU citizens, have a right of residence and work in the Member State of which they are nationals and in which they reside.
In this case, the children, citizens of the Union, had never left the territory of Belgium of which they were nationals. The solution was therefore adopted exclusively on the basis of Article 20 TFEU, not the 2004 directive, since this directive applies only, as the Court points out, to a citizen who “moves to or resides in a Member State other than that of which he is a national”
According to the Court, a refusal of residence and work would have the consequence of depriving the children of the effective enjoyment of the essential rights conferred by their status as citizens of the Union. Indeed, such a refusal would force them to leave the European territory to accompany their parents. Article 20 TFEU therefore precludes Belgium from denying the parents, in such circumstances, a right of residence and work.
Affaire McCarthy 2011
The Court reduces the scope of the Zambrano judgment and casts doubt on the scope of the rights associated with Union citizenship status.
in McCarthy, the Court held that the refusal of the UK authorities to grant Mrs McCarthy a right of residence under EU law, based on her Irish nationality, did not mean that she had to leave EU territory, as she had an unconditional right of residence in the UK as a national (§50 of the judgment). In the light of Zambrano, the Court’s conclusion in McCarthy is surprising because if Mrs McCarthy intends to live with her Jamaican husband, she will be forced to leave her Member State of origin. (if she was granted the RoR her husband would be granted right of residence too).
This distressing consequence cannot have been ignored on the grounds that the national measure giving rise to the questions referred for a preliminary ruling formally affects only Mrs McCarthy, given that the stated aim of the McCarthy couple in applying for a residence permit for Mrs McCarthy - namely to obtain a secondary residence permit for her Jamaican husband - was known to the Court. It is also regrettable that, as in the Zambrano judgment, there is no mention of the fundamental right to respect for private and family life guaranteed by the ECHR and the EU Charter of Fundamental Rights. However, in McCarthy, this absence is explained by the Court’s conclusion that the situation in question does not fall within the scope of Union law.
CJUE, 6 septembre 2016, Aleksei Petruhhin
The Court of Justice drastically limits the possibilities of executing an extradition request from a European citizen to a country outside the European Union. While the Court recognises the importance of this procedure for combating criminal impunity, it requires Member States to give priority to the use of the European arrest warrant so that the perpetrator is tried in a Member State and thus remains in the European Union (not to deprive them of the rights of free movement and residence provided for in Article 21 TFEU). Only if the warrant is not feasible can the extradition request be executed subject to the third State’s compliance with the prohibition of the death penalty, torture and inhuman and degrading treatment in accordance with Article 19 of the Charter of Fundamental Rights of the European Union.
The Court of Justice has upheld this requirement of non-discrimination on the basis of nationality, which derives from Article 18 of the Treaty on the Functioning of the European Union (TFEU), as long as the person is within the scope of EU law. The judges state that this principle applies in this case, as the Estonian citizen made use of his mobility in accordance with Article 21 TFEU. Regardless of whether international conventions fall within the competence of the Member States, this right to equal treatment arises directly from movement and residence in another Member State. The Court of Justice logically finds that the principle of non-discrimination is infringed, under Latvian law, by the introduction of a difference in treatment depending on whether the extradition concerns nationals or citizens of other Member States. While nationals cannot be extradited, non-nationals can be extradited, affecting their freedom of movement.
Freedom of movement and residence is not unconditional, and the Court of Justice has accepted that this difference in treatment may be justified by objective considerations of general interest. In this case, the Court relies on the fight against crime, which is an integral part of the achievement of the area of freedom, security and justice. The effectiveness of this objective is guaranteed by numerous instruments, including extradition.
However, the identification of an objective is never sufficient for the Court of Justice, as the measure must also be necessary and proportionate
Directive 2004/38/CE du Parlement européen et du Conseil du 29 avril 2004 relative au droit des citoyens de l’Union et des membres de leurs familles de circuler et de séjourner librement sur le territoire des États membres
relative au droit des citoyens de l’Union et des membres de leurs familles de circuler et de séjourner librement sur le territoire des États membres
The right to reside in a territory is granted to persons who go there “with a view to taking up and pursuing an activity as an employed person” as well as the right to reside in order to seek work
The Court has ruled that a period of 6 months is allowed for the search for employment and that this period must be extended if the person proves that he/she is continuing to look for work and that he/she has a real chance of being hired (ECJ, 1991, Antonissen).
The right of residence continues for a person who has reached retirement age as well as for a person who is unemployed in a Member State where he has worked
The worker’s family members can settle in the territory, the only condition being that the worker has “normal” accommodation. Family members may have access to all activities throughout the territory: children obviously have access to learning and “all general measures facilitating the attendance of education” such as the granting of scholarships, allowances… (ECJ, 1974, Cassagrande.)
La carte de séjour issued if person:
Present a valid identity document.
To provide a declaration of employment
This card is valid for 5 years and automatically renewable, at the end of this renewal, it will be valid for 10 years
It can only be withdrawn if the person is absent from the territory for more than 6 months, it cannot be withdrawn if he/she is ill, injured or retired.
It is not necessary to apply for this residence permit for an activity of less than 3 months or for frontier or seasonal workers (ECJ, 1988, Bergemann).
Failure by a national to obtain a residence card = a fine may be imposed (ECJ, 1980, Pieck).
Les exceptions d’ordre public, de sécurité publique et de santé publique
To be interpreted strictly. - The Court has jurisdiction to review each Member State’s assessment of the concept of public policy under Community law (ECJ, 1974, Van Duyn)
Measures taken by states must not be disproportionate to the objective pursued (ECJ, 1988, Bond)
the public policy reservation, which includes public security and then public health, allows a Member State to refuse entry into its territory
