EU Law Blog

Right of Residence, Free Movement of Persons, Non-EU Spouses: Case C-127/08

How could this have happened ? We're kind of embarrassed..... Here's a major case dealing with the free movement of persons in which the Court of Justice overruled itself and handed down a judgment that's very "citizen friendly". And we did not blog about it !

The case is C-127/08 Metock and Others v Minister for Justice, Equality and Law Reform and the judgment was handed down on July 25th 2008.

Here's the story (of the case, not how we managed to overlook it). The case came to the Court of Justice on a reference from the Irish High Court. There were four cases before the Irish court concerning a non-EU member State national who arrived in Ireland and applied for asylum. In each case the application was refused. While resident in Ireland the four asylum seekers married citizens of the Union who did not have Irish nationality but who were resident in Ireland. None of the marriages was a marriage of convenience. After the marriage, each of the non-EU spouses (the asylum seekers) applied for a residence permit as the spouse of a EU citizen. The applications were refused by the Minister for Justice on the ground that the spouse did not satisfy the condition of prior lawful residence in another Member State.

The reason why the residence permits were refused is the following. Directive 2004/38 - which we have commented on before here and here - provides that all citizens have the right to move and reside in the territory of another member State as workers or students or if they have comprehensive sickness insurance and sufficient funds not to become a burden on the social assistance system. The family members of a citizen of the EU have the right to move and reside in the Member States with that citizen. They can enter a member State if they have an entry visa or residence card issued by a member State.

The Irish legislation implementing Directive 2004/38 in Ireland provides that a citizen of an EU country who is a family member of an EU citizen may reside with or join that citizen in Ireland only if he is already lawfully resident in another member State. And that was not the case for the applicants in Case C-127/08.

Consequently, the Irish High Court asked the Court of Justice whether the condition of prior lawful residence in another Member State is compatible with the terms of Directive 2004/38.

The Court of Justice held - to the surprise of many - that the condition of prior lawful residence was not compatible with Directive 2004/38. It held that the application of the directive is not conditional on family members having previously resided in a member State. The directive applies to all EU citizens who move to or reside in a member State other than that of which they are a national, and to their family members who accompany them or join them in that Member State. The definition of family members in the directive does not distinguish according to whether or not they have already resided lawfully in another member State.

The Court examines its previous case law and expressly overrules its judgment in Case C-109/01 Akrich (which it had previously tried to confine to its facts in Case C-1/05 Yungying Jia). In Case C-109/01 Akrich the Court had upheld the condition of prior lawful residence in another EU state.

It is really quite rare for the Court of Justice to overrule itself.

The European Court's Political Power: Article by Karen Alter

Professor Karen Alter of Northwestern University has published an article entitled "The European Court's Political Power Across Time and Space".

Here's what the abstract states:

"This article extracts from Alter's larger body of work insights on how the political and social context shapes the ECJ's political power and influence. Part I considers how the political context facilitated the constitutionalization of the European legal system. Part II considers how the political context helps determine where and when the current ECJ influences European politics. Part III draws lessons from the ECJ's experience, speculating on how the European context in specific allowed the ECJ to become such an exceptional international court. Part IV lays out a research agenda to investigate the larger question of how social support shapes the role of judges in politics.

You can download the article here.

It is definitely worth reading. In fact, that article is part of a much larger project: Professor Alter has a book coming out on the subject as the introduction to the article makes clear:

"This article is adapted from the introduction and conclusion of my new book The European Court’s Political Power (Oxford: Oxford University Press, 2009), which brings together 15 years of my articles and book chapters regarding the European Court of Justice’s political role in European politics. The introduction and conclusion pull out a common narrative from extensively researched chapters that focus on different pieces and parts of the ECJ’s history. The common story told across analyses is that the ECJ gains influence by allying with societal actors within states to encourage greater respect for European rules. The larger volume shows that societal actors do not always choose to draw the ECJ into their campaigns. Also, the ECJ’s agency matters—the ECJ at times chooses to play a minimalist role, interpreting law narrowly and even illogically when there is little social support for the law it is asked to apply. The analysis suggests that factors exogenous to the ECJ, activation by others and the presence of societal actors who share the ECJ’s substantive objectives, are the largest factors shaping the role the ECJ plays. The larger book embeds this narrative across issues and cases so that we can see what makes societal actors want to work with the ECJ, and vice versa.

Annual Report of Commission for 2008

The Commission has published its annual report for 2008.

Like last year, there's a special web page devoted to it which you can access here.

The annual report is a rich source of information about what is going on in EU law. There's a brief but informative section on the ratification of the Lisbon Treaty here, and a section of the global financial crisis here. The annexes are informative too, particularly this one on budgetary revenue and this one and this one on expediture.

We're not sure what the title "levers of prosperity" is supposed to cover, but hiding under it is some more classic and informative material on things like the internal market.

Tennis Rackets, Aviation Security, Unpublished Regulations: Case C-345/06

Anyone for tennis ? Just don't carry tennis rackets in Europe. Read on to find out why....

A recent judgment of the Court of Justice – Case C-345/06 Gottfried Heinrich – sets out the principle that part of a regulation that has not been published cannot be enforced against an individual who cannot, by the very nature of things, know what the regulation in questiàon lays down.

The facts of the case are really remarkable. Mr Heinrich tried to board an aircraft at Vienna airport but he was intercepted by airport security. Why ? Because he was carrying tennis rackets in his carry-on luggage. Airport security considered that tennis rackets were articles prohibited by a series of EU regulations on aviation security.

First, Regulation 2320/2002 of the European Parliament and Council on aviation security provided for common basic standards applicable to aviation security measures and the annex stated in general terms, the kind of items that would be prohibited on board aeroplanes, which included ‘Bludgeons: Blackjacks, billy clubs, baseball clubs or similar instruments’. The regulation also provided that some measures would not be published but only made available to the competent authorities. That regulation and the annex were published.

Then the Commission adopted Regulation 622/2003 implementing Regulation 2320/2002. Its annex, amended in 2004, set out the kind of prohibited items but was never published even though the amending regulation emphasised, in the preamble, the need for passengers to be clearly informed of the rules relating to prohibited articles.

Anyway, Mr Heinrich, doubtless a man of as much character as he is keen on his tennis, tried to board his plane nevertheless. The security staff took the view that a man of character with tennis rackets posed a clear and present danger to aviation security and ordered him off the plane.

Mr Heinrich brought an action before the competent Austrian Administrative Court seeking a declaration that the measures taken against him were illegal. The Austrian court asked the Court of Justice whether regulations or its unpublished parts in the Official Journal may have binding force.

The Court of Justice held that an unpublished regulation or part of a regulation cannot impose obligations on individuals.

It recalled that, under Article 254(2) EC, regulations of the Council and of the Commission are published in the Official Journal and enter into force on the date specified in them or, if not so specified, on the twentieth day following that of their publication. Consequently, an EU regulation cannot take effect in law unless it has been published in the Official Journal (see Case C-161/06 Skoma-Lux, paragraph 33 - a case we noted here). Also, an act adopted by an EU institution cannot be enforced against natural and legal persons in a member State before they can make themselves acquainted with it by its proper publication in the Official Journal (Skoma-Lux, paragraph 37).

The Court also held that the principle of legal certainly requires that EU rules enable those concerned to know precisely the extent of the obligations which are imposed on them. Individuals must be able to ascertain unequivocally what their rights and obligations are and take steps accordingly (see Case C-158/06 ROM-projecten, paragraph 25).

The Court made clear that those principles must also be observed, and have the same consequences, where EU legislation obliges member States to adopt measures imposing obligations on individuals. The measures adopted by the member States to implement EU law must comply with the general principles of that law (see, Case C-313/99 Mulligan and Others, paragraphs 35 and 36, and Case C‑384/05 Piek, paragraph 34). Therefore, national measures which, to implement EU legislation, impose obligations on individuals, must be published in order for the individuals to be able to ascertain those obligations (see, to that effect, Mulligan and Others, paragraphs 51 and 52).

The Court emphasized that is all the more vital in the case of EU regulations since individuals must be able to request a national court to ascertain whether national implementing measures comply with an EU regulation (see, Case 230/78 Eridania‑Zuccherifici nazionaliand Società italiana per l’industria degli zuccheri, paragraph 34). In such a situation, not only the national legislation at issue must be published but also the EU regulation which forces the member States to take the measures imposing obligations on individuals.

The Court observes that Regulation 2320/2002 seeks to impose obligations on individuals in so far as it prohibits certain items on board aeroplanes, defined in a general manner, in a list attached as an annex to the Regulation. It also finds that the list of prohibited articles does not fall within any of the categories of measures and information which are treated as secret and which are not published under Regulation 2320/2002.

Thus, the Commission could not apply the rules on confidentiality to the measures amending the list. It follows that, if Regulation 622/2003 had in fact modified that list of prohibited articles that regulation would, for that reason, have to be held invalid.

By the way, you'll notice that the relevant annex is still not published or publicly available. Anyone for the rule of law ?

CORRECTION! Thanks to a commentator, we stand corrected: The annex is published - as an annex to Regulation 820/2008. The relevant part is section 4. But you will see that tennis rackets are not expressly listed but could be characterized as a "blunt instrument capable of causing injury". Funnily enough, skateboards are on the list even though they are more dangerous to those using them than to the general public. Regulation 820/2008 was adopted on August 8, 2008 and published on August 19, 2008, ahead of the Court of Justice ruling.

Cross-border Health Care and the House of Lords Report

We are big fans of the reports of the British House of Lords Select Committee on the European Union.

The recent report entitled "Healthcare across EU borders: a safe framework", available here or here in pdf format, is well worth reading.

The Commission recently made a proposal for a directive on the application of patients' rights in cross-border health care (COM (2008) 414). That proposal naturally follows from the Court of Justice judgments in Case C-158/96 Kohll v. Union des Caisses des Maladies, Case C-120/95 Decker v. Caisse de maladie des employés privés and Case C-372/04 Watts v. Bedford Primary Care Trust which we noted here.

The House of Lords Select Committee report, which is a very full one, reaches a number of conclusions and in particular

"Article 49, within which the freedom to receive healthcare services falls, forms one of the fundamental freedoms of the Community and is one of the key principles underpinning the internal market. Article 95 is the legal base for measures which have as their object the establishment and functioning of the internal market. Article 152(5) states clearly that Member States retain full responsibility for the organisation and delivery of health services and medical care. We agree that Article 95 is the appropriate legal base for the Directive but emphasise the principle embodied in Article 152(5) and urge the European institutions to ensure that Member States' responsibility for the organisation and delivery of health services is fully respected in the negotiation and implementation of this Directive."

The House of Lords Committee also recalls the 2006 "Common values and principles in EU-health systems - Council conclusions" available at page 33 of the document here.

Judicial Appointment in the Court of First Instance

Judge Virpi Tiili, from Finland and a long standing member of the Court of First Instance has resigned with effect from September 1st 2009.

She is to be replaced by Heikki Kanninen who has been appointed for the remainder of her term, that is until August 31st, 2010.

You can find Judge Kanninen's resume at the end of this document.

Congratulations!