UNIT 8 - EU RETAINED LAW 2 Flashcards
What are the main acts we have to remember for this topic ?
- European communities Act 1972
- EUWA 2018
- WAA 2020
- TCA 2020
- EU(FR)A 2020
- The Charter (The Charter of Fundamental Rights of the EU 2000)
-HRA 1998 - Directive 2004/38
- Brexit freedoms bill
- The practice statement
- Equlity act 2010 could be an interesting one too
- TFEU have some relevance to
What are some important Cases or Directives that are key throughout the EU retained law discussion ?
EU adopted Council Directive 93/104/EC ([2003] OJ L299/9) concerning working times - The UK gov enacted Working Time Regulations 1998/1833 to implement the Working Time Directive.
Regulation (EC) 261/ 2004 ([2004] OJ L46/1) protecting air passenger rights - requires airlines to pay compensation to passengers if a flight is significantly delayed or cancelled unless due to circumstances beyond the airline’s control and in any event to provide assistance.
Article 157 of Treaty on the Functioning of the European Union (TFEU)
- The Equality Act 2010 prohibits sex discrimination in the workplace, so in practice most victims will rely on this but should for any reason the right fall short of that under A157 then the victim could rely on their retained right.
principle of indirect effect has been carried over too, as retained case law includes ECJ judgements such as Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C-106/89) EU:C:1990:395, [1990] - where the ECJ held that national courts of member states were under a duty to interpret national law in accordance with the wording and purpose of EU law, including Directives not yet implemented in the member state.
○ In the case of Re Allied Wallet [2022] High Court applied indirect effect to retained UK regulations originally made to implement
a Directive, so that those regulations had to be interpreted in a manner consistent with the Directive that they aimed to implement.
Kücükdeveci v Swedex GmbH & Co KG (Case C-555/07) EU:C:2010:21, [2010] - CJEU stated national courts had to set aside any provision of national law that breached the general principle of equality - employee was suing his employer for age discrimination before a German court - relied on German legislation that permitted employers to discriminate against employees aged under 25 years on the grounds of age - German court had to disapply the offending law - employee could succeed on their claim.
○ UK courts would have been required previously to do the same but this is no longer the case.
Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] - the Sudanese and Libyan Embassy - employment issues - could only get action under HRA - there was UK leg that couldn’t be disapplied
Francovich v Italian Republic (Joined Cases C–6/90 and 9/90) ECLI:EU:C:1991:428, [1991] - Francovich Damages authority
What is the Case that provides us with guidance on applying Retained EU law into UK Court Cases ?
Lipton & Anor v BA City Flyer Ltd [2021]
1. Nec to determine the status of any relevant EU regulation and whether it has become retained EU law □ found that Regulation 261/2004 was operative prior to IP comp day - so continued in force as direct EU legislation, category (EUWA 2018 S3(1) and (2) □ The principle of supremacy (limited) applied to Regulation 261/04 - took precedence over any other domestic law that pre-dates IP comp day which might be inconsistent (EUWA 2018 S5(2)). 2. Then necessary to consider whether any domestic UK legislation has amended it □ UK version of Regulation 261/2004 was amended to ensure - applies to flights departing from or arriving at UK airports. 3. Necessary to analyse whether retained EU law has been amended or superseded by the TCA and the EU(FR)A 2020. □ TCA provides that the EU and UK must ensure there are effective remedies in pursuit of consumer protection to protect air passengers whose flights are cancelled or delayed □ As Regulation 261/2004 already provided effective procedures - no need to use S29 of the EU(FR)A 2020 to amend it. 4. UK courts should take into account general principles of EU law that have been recognised in case law before IP completion day. □ Lipton there did not appear to be any relevant general principles. 5. Retained EU law should be given a purposive construction. 6. UK courts should take into account pre-IP completion day case law of the CJEU. □ CoA has the power to depart CJEU Green LJ did not consider it necessary. ○ This provides a sound framework for applying retained EU law, though it is possible the proposed Brexit Freedoms Bill will alter the position.
how likely are UK courts to depart from RETAINED EU CASE LAW ?
TuneIn Inc v Warner Music UK Ltd [2021] - confirms courts are likely to take a cautious approach - they would prefer to let the legislature to make the big changes in these sort of cases.
Many reasons COA listed as their reasons:
- no change in Dom leg
- No change in the international legislative framework
- the interpretation of the relevant provision was a difficult task ( they were not given any guidance) and the CJEU has unrivalled experience in evaluating this
- was distinguished academic commentary on both sides
- Jurisprudence from other courts that supported the departing, were from countries with a civil law frame work
- departing from CJEU case law would result in returning to the drawing board and starting all over agin
What effects on the law would the BREXIT FREEDOMS BILL have?
A) sunsetting provisions
B) exemptions/postponements from sunsetting
C) Assimilated Law / End of EU law supremacy
D)Departing from Retained EU Case Law
E) incompatibility Orders
What are the main provisions within the WA?
Citizens rights
Financial settlement
The Northern Ireland Protocol
Governance and Dispute resolution
What does Article 45 TFEU ?
gives the EU worker the right of entry and residence for the purpose of taking up employment.
- Article 45(2) TFEU, Member States must abolish: any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
What does Directive 2004/38 achieve for UNION CITIZENS
- Article 5(1): This grants Union citizens moving from their home State the right to enter another Member State simply on production of their passport or national identity card.
- Article 6(1): This grants Union citizens a right of residence of up to three months in the host State.
- During this period, the Union citizen does not have to satisfy any conditions to qualify for the right of residence, save that they must not become an unreasonable burden on the social assistance system of the host Member State.
- Article 7(1): This provides the following with a right of residence for more three months:
· workers and self-employed (Article 7(1)(a));
· persons with sufficient resources to support themselves and their family members who have comprehensive sickness insurance (CSI) (Article 7(1)(b));
· students who declare that they have sufficient resources to support themselves and their family members and have CSI (Article 7(1)(c));
· family members of the Union citizens referred to in Articles 7(1)(a)–(c), Article 7(1)(d) - This would include children of migrant Union citizens. - Article 16(1): A right of permanent residence after five years.
- Workers therefore have the rights that Article 45 TFEU grants them, and also benefit from Directive 2004/38.
- In particular, Directive 2004/38 confirms that they may bring their family members with them when they move, even if the family are not Union citizens.
- Article 6(1): This grants Union citizens a right of residence of up to three months in the host State.
What does Directive 2004/38 achieve for UNION CITIZENS FAMILY MEMBERS?
- Article 2(2) provides that the following are family members:
* Article 2(2)(a): spouse;
* Article 2(2)(b): the Union citizen’s registered partner if the legislation of the host Member State treats registered partnerships as equivalent to marriage;
* Article 2(2)(c): the direct descendants who are under the age of 21 or are dependants and those of the spouse or registered partner (eg children);
* Article 2(2)(d): the dependent direct relatives in the ascending line and those of the spouse or registered partner (eg parents).- Family members have the right to accompany the migrant Union citizens and have the following rights:
- Article 5(1): the right to enter the host State on production of their passport. The host State may require a visa, but this should be a formality (Article 5(2));
- Article 6(2): a right of residence of up to three months in the host State when accompanying or joining a Union citizen;
- Articles 7(2): a right of residence for more three months when accompanying or joining a Union citizen covered by Article 7(1)(a)–(c);
- Article 16(2): a right of permanent residence after five years.
- The Union citizen has a primary right of residence - rights of family members are contingent on the Union citizen’s rights.
- Other family members, eg non-dependent children over 21 and parents, may benefit from Article 3(2) - which provides that the host State must facilitate their entry and residence in accordance with its national legislation (Article 3(2)(b)).
- However, the rights granted by Article 3(2) are not as extensive as those granted to the family members that come within the scope of Article 2(2).
- A partner of a Union citizen does not qualify as a family member - Netherlands State v Reed (Case 59/ 85) [1986] - ECJ ruled that the term ‘spouse’ did not cover non-marital relationships; thus the cohabitee of a migrant worker was not a ‘family member’ with rights of entry and residence.
- However, Article 3(2)(b) covers ‘the partner with whom the Union citizen has a durable relationship, duly attested’.
- Although cohabitees are not ‘family members’ as defined in Article 2(2)(b), they do benefit from the lesser rights granted by Article 3(2).
- Family members have the right to accompany the migrant Union citizens and have the following rights:
How does DIRECTIVE 2004/38 deal with UNION CITIZEN FAMILY MEMBERS when there has been A) separation or B) divorce?
A)
- Article 12(3) gives a spouse (or registered partner) who has custody of minor children in education a right to remain following the Union citizen’s departure, but it is silent about the position where no children are involved - By implication, the spouse (or registered partner) therefore has no right to remain
- Diatta v Land Berlin (Case 267/83) [1985] - Court of Justice ruled that the rights of a spouse are not dependent on their residing with the worker, and thus can terminate only if the worker leaves the host State.
B) DIVORCE
- Prior to Directive 2004/38 there was no clear European authority as to whether deportation could follow divorce, but Baumbast v Secretary of State for the Home Department (Case C- 413/99) [2002] - mother of children was entitled to remain having been awarded custody.
Directive provides for the spouse (or registered partner) to remain in the country if they have resided for three years, or if they have been awarded custody or access to children, or alternatively if the court considers that allowing them to remain is warranted in the circumstances.
How is Nationality interpreted in EU citizen law?
- Entirely a matter for the domestic law of each Member State inevitably, rules vary.
- Not all Member States permit their nationals to hold dual nationality.
Micheletti v Delegacion del Gobierno en Cantabria (Case C–369/90) [1992] - dual national of Argentina and Italy who sought entry Spain - Entry refused under Spanish law only the nationality of the State in which the person had last been habitually resident was recognised (Argentina)
* The Court of Justice found that as he was an Italian national under Italian law, he was an EC (now EU) migrant worker protected by Article 48 of the EC Treaty (now Article 45 TFEU), so that entry into Spain could not be denied.
What right of residence does a worker obtain under Article 45 TFEU ?
EU national worker has an absolute right of residence so long as employed.
