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II. Free Movement of Persons

Published online by Cambridge University Press:  17 January 2008

Jules Lonbay
Jules Lonbay
Affiliation:
Director, Institute of European Law, University of Birmingham.
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Extract

As mentioned in the previous note1 the Amsterdam Treaty significantly alters the treaty structure as regards the free movement of persons. The EC treaty now has, as one of its formal activities as set out in article 3(1)(d), “measures concerning the entry and movement of persons as provided for in Title IV”. The creation of a new Title IV in the EC Treaty on establishing an area of freedom, security and justice moves a corpus of subject matter2 from the inter-governmental pillar on Justice and Home Affairs to the Treaty of Rome. The aim clearly set out is to establish, within five years, all the measures necessary to create “an area without frontiers” in accordance with Article 143 together with “flanking measures with respect to external board of controls of asylum and immigration” as well as “measures to prevent and combat crime in accordance with the provisions of Article 31 (e) of the Treaty on European Union”.4 Co-operation between the Member States is also to be strengthened and encouraged5 as well as measures in the field of police and judicial co-operation in criminal matters though the latter is in accordance with the provisions of the Treaty on the European Union.6

Type
Current Developments: European Community Law
Information
International & Comparative Law Quarterly , Volume 50 , Issue 1 , January 2001 , pp. 168 - 175
Copyright
Copyright © British Institute of International and Comparative Law 2001

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References

1. J., Lonbay, “Free movement of persons, recognition of qualifications, and working conditions” (1998) 47 I.C.L.Q. 224 at 228.Google Scholar

2. Visas, asylum, immigration and other policies related to free movement of persons. Art. 65 deals with judicial co-operation of civil matters. As such it is beyond the scope of this note. Art. 66 requires co-operation between administration of the Member States in the areas covered by the new Title IV.

3. Art. 61 then requires that within five years measures necessary to ensure free movement of persons in accordance with Article 14 are adopted.

4. Judicial co-operation in civil matters has also been communitised; Arts 61 and 65.

5. Art. 61 and Art. 66.

6. Art. 64 explicitly reserves to Member States their role with regard to maintenance of law and order and the safeguarding of internal security.

7. Measures dealing with sharing the burden on receiving and bearing the consequence of receiving refugees and immigration conditions of entry and residence and legal residence are not subject to the five year period.

8. See Peers, (1999) 48 I.C.L.Q.Google Scholar

9. Art. 69.

10. See Walker, in (1998) 47 I.C.L.Q. 231 at 237.CrossRefGoogle Scholar

11. The real dampener to this advance for the area of freedom, justice and security is found in Art. 69 which reads:

The application of this Title shall be subject to the provisions of the Protocol on the position of the United Kingdom and Ireland and to the Protocol on the position of Denmark and without prejudice to the Protocol on the application of certain aspects of Article 14 of the Treaty establishing the European Community to the United Kingdom and to Ireland.

12. There are exceptions recognised in Art. 67(3).

13. Art. 68(2).

14. Art. 68(3).

15. Case 340/89 Vlassopoulou [1991] E.C.R. 1–2357; See Lonbay, (1992) 41 I.C.L.Q. 212CrossRefGoogle Scholar at 215, and Lonbay, “Picking over the bones; rights of establishment reviewed” (1991) 16 E.L.Rev. 507.Google Scholar

16. Common Position (EC) No. 20/2000 of 20 March 2000 adopted by the Council, acting in accordance with the procedure referred to in Art. 251 of the Treaty establishing the European Community, with a view to adopting a Directive of the European Parliament and of the Council amending Council Directives 89/48/EEC and 92/5 I/EEC on the general system for the recognition of professional qualifications and Council Directives 77/452/ EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor (Text with EEA relevance) O.J. C 119/1.

17. Case C–234/97 Teresa Fernández de Bobadilla v. Prado Museum [1999] E.C.R. I– (8 July 1999).

18. Idem, at para 27.

19. C–164/94 Aranitis v. Land Berlin [1996] E.C.R. 1–135; see further Lonbay, (1998) 47 I.C.L.Q. 224 at 231.Google Scholar

20. Para. 45.

21. I.e. the authority that authorises the practice of a particular profession.

22. Directive 1999/42/EC establishing a mechanism for the recognition of qualifications in respect of the professional activities covered by the Directives on liberalisation and transitional measures and supplementing the general systems for the recognition of qualifications; [1999] O.J. L201/77.

23. Directive 98/5/EC of the European Parliament and of the Council of 16 Feb. 1998 to facilitate the practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained. [1998] O.J. L77/36. See Lonbay, “Lawyers bounding over the borders: the draft directive on lawyers' establishment” (1996) 21 E.L.Rev. 50–58.Google Scholar

24. Directive 98/5/EC, Art. 14. Less than half the Member States had notified the EC Commission of implementation measures by May 2000.

25. According to Art. 1(2)(a) “lawyer” means any person who is a national of a Member State and who is authorised to pursue his professional activities under one of the following professional titles:

26. The Directive applies to both salaried and self-employed lawyers, subject to Art. 8 which allows practice as a salaried lawyer only if it is permissible by home State lawyers. This allows Belgium, for example, to maintain its rule against permitting employed lawyers.

27. Directive 98/5/EC Art. 3. In fact lawyers could establish in the U.K. under home State title even before this Directive without registering.

28. Art. 3(3) seeks to preserve the distinctions between barrister/advocate and solicitor in the U.K. and Ireland.

29. Art. 7 allows the application of the local disciplinary regime and provides for communication between the host State authorities and those in the home Member State.

30. H., Adamson, Free Movement of Lawyers (Butterworths, 2nd ed.) p.107.Google Scholar

31. See Lonbay, (1998) 47 I.C.L.Q. 224 at 246Google Scholar; noted at (1996) 33 C.M.L.Rev. 1073.Google Scholar

32. Directive 89/48/EEC Art. 4(1)(b) which, in fact, has allowed the requirement of an aptitude test everywhere in the EU except Denmark.

33. These are likely to be the Bars and Law Societies in the U.K.

34. Art. 10(4) allows the possibility of a “public policy” based refusal.

35. Luxembourg has challenged the validity of the Directive before the European Court of Justice. The Advocate General M. Dámaso Ruiz-Jarabo Colomer has dismissed their arguments. Case C–168/98 Luxembourg v. Council (24 Feb. 2000) http://europa.eu.int/jurisp.

36. By virtue of Article 6 of the Directive these will prevail over any conflicting rules for activities in the host State territory.

37. Though the definition of “grouping” in Art. 1 includes a wider category of possible bodies.

38. Art. 11(5) provides a blocking power to prevent multi-disciplinary partnerships from operating in a host State.

39. SI 2000:1119 The European Communities (Lawyer's Practice) Regulations 2000 and SI 2000: 121 The European Communities (Lawyers' Practice) (Scotland) Regulations.

40. This is expressly reserved in Art. 10(2) of Directive 98/5/EC.