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Free Movement, Equal Treatment, and Citizenship of the Union

Published online by Cambridge University Press:  17 January 2008

Robin Ca White
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Extract

The prohibition of discrimination, at least on grounds of nationality, has always been a constitutional principle of Community law. Such discrimination can take many forms, since Community law prohibits not only direct discrimination but various forms of indirect discrimination. Furthermore, the Court of Justice has indicated that where discrimination on grounds of nationality is in issue, the requirement of proof is not a heavy one on the complainant. All that is needed to place the burden on the respondent to justify the potentially differential treatment is that complainants show that the requirement applied to them is intrinsically likely, or susceptible by its very nature, to affect them adversely in comparison with the State's own nationals. The modern formulation of the prohibition of discrimination recognizes that protection from discrimination on grounds of nationality is central to the concept of citizenship of the Union. Advocate General Jacobs has said:

Type
Articles
Information
International & Comparative Law Quarterly , Volume 54 , Issue 4 , October 2005 , pp. 885 - 905
Copyright
Copyright © British Institute of International and Comparative Law 2005

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References

1 See Art 6 of the EEC Treaty, now Art 12 of the EC Treaty: ‘Within the scope of application of this Treaty … any discrimination of grounds of nationality shall be prohibited.’ Discrimination on grounds of sex has also always been a part of the Treaty framework, and more recently the EC Treaty has addressed, through Art 13, other forms of discrimination. See generally Dashwood, A and O'Leary, SThe Principle of Equal Treatment in European Community Law (Sweet & Maxwell London 1997);Google ScholarBell, MAnti-Discrimination Law and the European Union (Hart Publishing Oxford 2002);CrossRefGoogle Scholarand van der Mei, AFree Movement of Persons within the European Community: Cross-Border Access to Public Benefits (OUP Oxford, 2003).Google Scholar

2 Sometimes referred to as overt and covert discrimination.

3 Case C-297/94 O'Flynn [1996] ECR I-2617. See also the discussion of the standard by Lord Slynn of Hadley in the English Court of Appeal in Secretary of State for Work and Pensions v Bobezes [2005] EWCA Civ 111, at paras 17–24.

4 Case C-274/96 Bickel and Franz [1998] ECR I-7637, para 24 of the Opinion.

5 See, eg Case C-184/99 Grzelczyk, [2001] ECR I-6193, para 31 of the judgment; Case C- 413/99 Baumbast and R [2002] ECR I-7091, para 82 of the judgment; Case C-148/02 Garcia Avello [2003] ECR I-11613, para 22 of the judgment; Case C-200/02 Zhu and Chen, Judgment of 19 Oct 2004, para 25 of the judgment; and Case C-209/03 Bidar, Judgment of 15 Mar 2005, para 31 of the judgment.

6 Case C-200/02 Zhu and Chen, Judgment of 19 Oct 2004, para 26 of the judgment.

7 Art 39(3) EC; Art 46; and Art 55.

8 See generally Spaventa, E ‘From Gebhard to Carpenter: Towards a (Non)economic European Constitution’ (2004) 41 CMLRev 743.Google Scholar

9 Directive 2004/38/EC of the European Parliament and of the Council of 29 Apr 2004 on the right of citizens of the Union and their families to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/192/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC, and 93/96/EEC [2004] OJ L158/77, corrected at [2004] OJ L229/35, referred to in this article as ‘the Citizenship Directive’. Note that the corrigendum states the number of the Directive as 58 in error; other language editions retain the number 38.

10 A document certifying permanent resident status is introduced in Chapter IV of the Citizenship Directive, but this is not a replacement of the ‘old’ residence permit referred to in Art 4 of Directive 68/360/EEC.

11 Chapter IV of the Citizenship Directive; acquisition of this status is conditional on having resided legally for a continuous period of five years in the host Member State.

12 Case C-413/99 Baumbast and R [2002] ECR I-7091. See M Dougan and E Spaventa ‘Educating Rudy and the non-English patient: A double bill on residency rights under Article 18 EC’ (2003) 28 ELRev 699; see also O Golynker ‘Partial Migration in the EU after the Baumbast case: Bringing Social and Legal Perspectives Together’ (2004) 15 KCLJ 367.

13 Para 94 of the judgment.

14 See, eg para 83 of the judgment.

15 Case C-200/02 Zhu and Chen, Judgment of 19 Oct 2004.

16 Para 41 of the judgment.

17 Signed on 29 Oct 2004, [2004] OJ C310/1. Though there is no difference of substance, there is a difference in emphasis in the way in which the rights are presented.

18 The areas reserved for nationals of the host Member State can vary enormously. Note, for example, that provisions of the Police Reform Act 2002 make provision for the removal of the requirement of British nationality as a requirement to serve as a police officer. Furthermore, service in the armed forces in the United Kingdom is open to Commonwealth citizens who have been resident for a requisite period in the United Kingdom. See further R White Workers, Establishment and Services in the European Union (OUP Oxford 2004) ch 5.

19 Including in due course the restatement of the elaboration of the exceptions in the Citizenship Directive which will replace the provisions of Directive 64/221/EEC in 2006.

20 Note in particular, Commission Communication to the Council and the European Parliament on the Special Measures concerning the Movement and Residence of Citizens of the Union which are Justified on Grounds of Public Policy, Public security or Public health, COM(1999) 372 of 30 July 1999. See further R White Workers, Establishment and Services in the European Union ch 5.

21 Case C-348/96 Calfa, [1999] ECR I-11. She was sentenced to three months' imprisonment and lifelong exclusion from Greece. See also Arts 27(2) and 32 of the Citizenship Directive.

22 Art 2(2) of Directive 64/221/EEC and Art 27(1) of the Citizenship Directive.

23 The right of permanent residence arises when citizens of the Union have ‘resided legally for a continuous period of five years in the host Member State’: Art 16(1).

24 Art 28(3) of the Citizenship Directive.

25 On students, retired persons or persons of independent means, all of which are consolidated into the Citizenship Directive.

26 See below.

27 Case C-184/99 Grzelczyk [2001] ECR I-6193. See also Case C-456/02 Trojani, Judgment of 7 Sept 2004; and Case C-215/03 Oulane, Judgment of 17 Feb 2005.

28 Case C-456/02 Trojani, Judgment of 7 Sept 2004.

29 Case C-209/03 Bidar, Judgment of 15 Mar 2005.

30 Of course, in many cases Community law precludes any suggestion that leave to enter under national immigration law is involved, but Community law does permit administrative checks or enquiries to be made.

31 Since it appeared that any right of residence arose under national law, the Luxembourg Court left the determination of his precise status for determination by the referring court.

32 See below.

33 And it is now well established that using Community law to your advantage does not count as an improper purpose: see Case C-109/01 Akrich, Judgment of 23 Sept 2003 [2003] 3 CMLR 26.

34 See A Adinolfi ‘Free Movement and Access to Work of Citizens of the New Member States: The Transitional Measures’ (2005) 42 CMLRev 469.

35 These arrangements apply both to the new Member States and to the existing Member States, though it is anticipated that the new Member States will take a more liberal approach to the application of the Treaty provisions than the existing Member States.

36 Malta may make such an application during the period of seven years beginning on 1 May 2004.

37 It is unclear whether residence in such circumstances arises under national law or community law.

38 See R White ‘Residence, Benefit Entitlement and Community Law’ (2005) 12 JSSL 10.

39 The rights are explicitly defined in the EC Treaty and Community secondary legislation.

40 Case C-456/02 Trojani, Judgment of 7 Sept 2004.

41 Council Regulation 1612/68/EEC of 15 Oct 1968 on freedom of movement for workers within the Community [1968] II OJ Eng Sp Ed 475, as amended.

42 Council Regulation 1408/71/EC of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to member of their families moving within the Community, see consolidated text incorporated in Council Regulation 118/97/EC [1997] OJ L28 (as further amended).

43 Case C-138/02 Collins [2004] ECR I-2703.

44 See also Case 316/85 Lebon,[1987] ECR 2811. However, those excluded as work seekers may be able to rely on the citizenship line of cases discussed below in order to gain access to social assistance.

45 On social and tax advantages, see generally E Ells ‘Social advantages: a new lease of life?’ (2003) 40 CMLRev 639.

46 Now Art 42 EC. The legal base of Regulation 1408/71 is Art 51 (now 42) EC.

47 See Secretary of State for Work and Pensions v Bobezes, [2005] EWCA Civ 111, at para 12 of the Judgment.

48 ibid.

49 The Social Security Commissioner, whose decision had been appealed to the Court of Appeal, had concluded that the claimant was entitled to rely on Art 7(2) of Regulation 1612/68 notwithstanding that his claim also fell within Regulation 1408/71: see CIS/825/2001.

50 For a summary of the provisions of the regulation, see R White Workers, Establishment and Services in the European Union chap 9.

51 Regulation 1408/71, Art 4(4).

52 Case 85/96 Martínez-Sala [1998] ECR I-2691; see S O'Leary ‘Putting Flesh on the Bones of European Union Citizenship’ (1999) 24 ELRev 68.

53 Case C-184/99 Grzelczyk, [2001] ECR I-6193; see also C Jacqueson ‘Union citizenship and the Court of Justice: something new under the sun? Towards social citizenship’ (2002) 27 ELRev 260. See also Case C-148/02 Garcia Avello [2003] ECR I-11613.

54 Para 31 of the judgment.

55 Para 35 of the judgment.

56 Council Directive 93/96/EEC of 29 Oct 1993 on the right of residence for students [1993] OJ L317/59, as amended; see [1995] OJ L1/1.

57 Art 18(1) EC gives an independent right to reside subject on the limitations and conditions in the Treaty and in the measures to give effect to it. In the Grzelczyk case, the Court limited the circumstances in which a Member State can deprive a person of an entitlement arising under the directive on students.

58 Case C-138/02 Collins [2004] ECR I-2703. For the decision of the Social Security Commissioner on the reference back to the national court, see CJSA/4065/1999, decision of 4 Mar 2005.

59 Case C-13802 Collins, para 73 of the judgment.

60 Para 72 of the judgment.

61 Case C-456/02 Trojani, Judgment of 7 Sept 2004.

62 The minimum subsistence allowance in Belgium.

63 The first concerned whether Trojani was a worker.

64 Case C-456–02 Trojani, Judgment of 7 Sept 2004, paras 41–6.

65 ibid, para 43 of the judgment.

66 Case C-209/03 Bidar, Judgment of 15 Mar 2005. See also Case C-147 Commission v Austria, Judgment of 7 July 20.

67 Essentially a requirement that he was ‘settled’ in the United Kingdom, and had been resident there for three years. Under the national regulations, residence as a student in secondary education does not count as residence for this purpose.

68 The third question related to the temporal application of any ruling of the Court of Justice.

69 Case 39/86 Lair [1988] ECR 3161.

70 Case 197/86 Brown [1988] ECR 3205.

71 Case C-209/03 Bidar, Judgment of 15 Mar 2005, para 35 of judgment, referring to the Court's decision in Case C-224/98 D'Hoop [2002] ECR I-6191.

72 Para 37 of the judgment.

73 Which provides that the host Member State ‘shall not be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families’. Permanent residence is acquired when Union citizens have resided legally for a continuous period of five years: Art 16 of the Citizenship Directive.

74 Case C-209/03 Bidar, Judgment of 15 Mar 2005, paras 49–63 of the judgment.

75 Case C-456–02 Trojani, Judgment of 7 Sept 2004.

76 ibid, para 10 of the Advocate General's Opinion.

77 Case C-456–02 Trojani, Judgment of 7 Sept 2004, para 70 of the Opinion.

78 Case C-209/03 Bidar, Judgment of 15 Mar 2005, para 63 of the judgment.

79 A good example is entitlement arising under Regulation 1612/68 to bring certain relatives to live with you which are not included in national immigration law, as exemplified by cases on reverse discrimination such as Joined Cases 35 and 36/82 Morson & Jhanjan v Netherlands [1982] ECR 3723.

80 See generally N nic Shuibhne, ‘Free Movement of Persons and the Wholly Internal Rule: Time to Move on?’ (2002) 29 CMLRev 731.

81 But not in national elections.

82 Equal treatment is only required where the subject matter in issue is within the scope of the EC Treaty; standing and voting in municipal and national elections (as distinct from elections to the European Parliament) would clearly be outside the scope of the EC Treaty in the absence of Art 19 EC.

83 See generally Peers, S and A, WardThe EU Charter of Fundamental Rights. Politics, Law and Policy (Hart Publishing Oxford 2004).Google Scholar

84 See eg Council Directive 2003/86/EC of 22 Sept 2003 on the right to family reunification [2003] OJ L251/12; and Council Directive 2003/109/EC of 25 Nov 2003 concerning the status of third-country nationals who are long-term residents [2004] OJ L16/44.

85 Case C-109/01 Akrich [2003] ECR I-9607. See also R White ‘Conflicting competences: free movement rules and immigration laws’ 385; and (2005) 42 CMLRev 225.

86 Expansively, and controversially, extended in scope in Case C-60/00 Carpenter [2002] ECR I-6729.

87 Note that the Citizenship Directive opens up broader opportunities for permanent residence than the provisions of the directives concerned with staying on after a period of employment or self-employment.

88 Or has been economically active and can now under Community secondary legislation be treated as if he or she continued to be a worker or self-employed person.

89 This might include those falling within the first two groups where the provisions governing those situations leave gaps in entitlement.

90 Case C-215/03 Oulane, judgment of 17 Feb 2005.

91 Para 49 of the judgment.

92 In the Oulane case, establishing a right to reside as a recipient of services was in issue.

93 Para 55 of the judgment.

94 Particularly those who perceive themselves as offering a high level of social protection.

95 See, for a good example of the debate, Secretary of State for Health v R on the application of Yvonne Watts [2004] EWCA Civ 166, referring questions to the Court of Justice on provision of health care.

96 Case C-209/03 Bidar, Judgment of 15 Mar 2005, though it should be noted that the case did not concern the interpretation of the Citizenship Directive.