EU Law Blog

Right of Residence, Children, Parents and Means of Support: Case C-310/08 and Case C-480/08

The Court of Justice has handed down not one but two important judgments on the the free movement of persons and the tight of residence.

In Case C-310/08 Ibrahim and Case C-480/08 Teixeira the Court of Justice held that a child of a migrant worker migrant worker has an independent right of residence in connection with the right of access to education in the host State and that a parent who is the primary carer of the child who is in education also has a right of residence which is not conditional on the parent having sufficient means not to become a burden on the social support system of the host State.

Here are the stories.

First, Case C-310/08 Ibrahim.

Ms Ibrahim, a Somali national, arrived in the United Kingdom in February 2003 to join her husband, Mr Yusuf, a Dane, who worked there from October 2002 to May 2003. They had four children of Danish nationality.

From June 2003 to March 2004 Mr Yusuf claimed incapacity benefit. After being declared fit to work in March 2004, he left the United Kingdom. Between ceasing work and leaving the United Kingdom, Mr Yusuf ceased to satisfy the conditions for lawful residence there under EU law. Ms Ibrahim separated from Mr Yusuf after his departure from the UK. She was never self-sufficient, and depends entirely on social assistance. She has no comprehensive sickness insurance cover. In January 2007 she applied for housing assistance for herself and her children. Her application was rejected on the ground that only persons with a right of residence under EU law could apply, and neither Ms Ibrahim nor her husband were resident in the United Kingdom under European Union law. Ms Ibrahim appealed to the national courts against that decision.

Next, Case C-480/08 Teixeira.

Ms Teixeira, a Portuguese national, arrived in the United Kingdom in 1989 with her husband, also Portuguese, and worked there until 1991. The had a daughter Patricia, born t on 2 June 1991. Ms Teixeira and her husband then divorced, but they both remained in the United Kingdom. From 1991 to 2005 Ms Teixeira worked for intermittent periods in the United Kingdom, and Patricia went to school there.

In November 2006 Patricia enrolled on a child care course at the Vauxhall Learning Centre in Lambeth. In March 2007 Patricia went to live with her mother. In April 2007 Ms Teixeira applied for housing assistance for homeless persons. Her application was rejected because she did not have a right of residence in the United Kingdom, as she was not in work and was not therefore self-sufficient. She challenged that refusal before the national courts, arguing that she had a right of residence because Patricia was continuing her education.

Thus both cases turned on whether Ms Ibrahim and Ms Teixeira could claim a right of residence in the UK under EU law as they are the primary carers of children in education in the UK even if they could not support themselves without state assistance.

The Court of Justice held in both judgments that the mothers could indeed claim such a right of residence.

Article 10 of Regulation 1612/68 on the freedom of movement o workers within the Community provided that the members of the family of a migrant worker who was a national of one member State and employed in another member State had the right to install themselves with that worker, whatever their nationality. Its Article 12 also provides that the children of such a worker are entitled to attend general educational, apprenticeship and vocational training courses if they are residing in the host Member State.

In Case C-413/99 Baumbast the Court held that article 12 means that the child of a migrant worker has a right of residence if he or she wishes to attend educational courses in the host member State, even if the migrant worker no longer resides or works in that member State. That right of residence extends also to the parent who is the child’s primary carer.

Regulation 1612/68 was subsequently amended by Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. It 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 cover and sufficient resources not to become a burden on the social assistance system. It repealed Article 10 of Regulation 1612/68 replacing it with a right of residence for members of the family of citizens who satisfy the conditions for residence. It did not, on the other hand, repeal Article 12 of the regulation, on the right of access to the educational system. It also provides that the right of residence of a child enrolled at an educational establishment, for the purpose of studying there, and that of the parent who has actual custody of the child are not affected by the departure or death of the citizen.

The Court held that Article 12 of Regulation 1612/68 allows the child of a migrant worker to have an independent right of residence in connection with the right of access to education in the host member State. Before the entry into force of Directive 2004/38/EC, when Article 10 of Regulation 1612/68 was still in force, the right of access to education laid down by Article 12 of the regulation was not conditional on the child retaining, throughout the period of education, a specific right of residence under Article 10. Once the right of access to education has been acquired, the right of residence is retained by the child and can no longer be called into question. Article 12 of the regulation requires only that the child has lived with at least one of his or her parents in a Member State while that parent resided there as a worker. That article must therefore be applied independently of the provisions of EU law which expressly govern the conditions of exercise of the right to reside in another member State (Case C-7/94 Gaal [1995] ECR I-1031, paragraph 25).

The Court also held that the independent application of Article 12 of Regulation 1612/68 was not called into question by the entry into force of the new directive: Article 12 of the regulation was not repealed or even amended by the directive, unlike other articles of the regulation.

Interestingly, the Court referred to the legislative history of the directive which shows that it was designed to be consistent with Case C-413/99 Baumbast.

Next, the Court held that the grant of the right of residence for the children and the parent is not conditional on self-sufficiency. That interpretation is supported by the directive, which provides that the departure or death of the citizen does not entail the loss of the right of residence of the children or the parent.

Consequently, the Court finds that that the right of residence of the parent who is the primary carer of a child of a migrant worker who is in education is not conditional on that parent having sufficient resources not to become a burden on the social assistance system of the host Member State.

A specific question was raised in Case C-480/08 Teixeira as to whether the parent’s right of residence ends when the child reaches the age of majority. In 2009 Ms Teixeira’s daughter Patricia reached the age of 18, thus coming of age under the law of the United Kingdom.

The Court answered that there is no age limit for the rights conferred on a child by Article 12 of the regulation: The right of access to education and the child’s associated right of residence continue until the child has completed his or her education.

As for the right of the parent to reside, the Court held that in principle children who have reached the age of majority are in principle assumed to be capable of meeting their own needs. But, the Court continued, the right of residence of the parent may nevertheless extend beyond that age, if the child continues to need the presence and the care of that parent in order to be able to pursue and complete his or her education (Case 413/99 Baumbast, paragraph 73) It is for the national court to assess whether that is actually the case.

Northern Cyprus, Applying ECJ Judgments in National Courts and Claims of Bias in Case C-420/07

Here's a very unusual and odd case which the English Court of Appeal had to deal with recently. In Meletios Apostolides v. Orams and Orams, the Court of Appeal had to decide whether or not a judgment of the Court of Justice should be applied or not when one of the parties to the national proceedings made the allegation that the President of the Court of Justice was apparently (not actually) biased and should have recused himself.

The Court of Justice had handed down its judgment in Case C-420/07 Meletis Apostolides v David Charles Orams and Linda Elizabeth Orams, referred by the English Court of Appeal, on whether Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters applied to a judgment given by a Cypriot court sitting in the area of the island effectively controlled by the Cypriot Government, but concerning land situated in areas not so controlled (Northern Cyprus).

As a consequence of that judgment, the proceedings resumed before the English courts. But then, surprise, counsel for the respondents in the national proceedings (including, incidentally, Ms Cherie Booth, the wife of the former British Prime Minister, Tony Blair) submitted, amongst other things, that President Skouris, who presided over the Grand Chamber formation that handed down the judgment in Case C-420/07, was apparently biased and should have recused himself. As a result, the respondents claimed the English courts should take no account of the Court of Justice's ruling.

The respondents claimed President Skouris was apparently biased, but not actually biased, because he had received and met with Cypriot judges and parliamentarians, because he had attended a dinner at which the President of Cyprus was present and gave a speech, because he had attended a conference organized by the University of Cyprus and also because he had received an honour conferred upon him by the President of Cyprus. All that, according to the respondents, created an "insuperable problem" of apparent bias.

The Court of Appeal examined each allegation made in some detail. It came to the firm conclusion that President Skouris was not in any position to be biased. Lord Justice Pill concluded roundly:

"As President of the court, the President can be expected to wish to promote knowledge of the court and its workings in Member States, and in particular new Member States. Making official visits and receiving visiting delegations is a valuable and appropriate part of the office of President. That approach is likely to be reciprocated by Member States, including new Member States. Further, any commendation of the Republic of Cyprus in the presence of the President must be seen in the context of numerous international instruments calling for respect for its territorial integrity and independence. In that context, commendation is of the sovereign entity as a whole.
In my judgment, no appearance of bias arises from the visit of the President, together with other judges, to Cyprus in May 2005. [...] No appearance of bias arises from the political nature of a speech said to have been made by the President of Cyprus during the visit. There is no suggestion that the President adopted or approved the sentiments expressed. The same applies to the President of Cyprus's speech when the honour was conferred on the President in November 2006. The reasonable informed observer would have no fears that the remarks might influence the President or other judges in their judicial capacity. Nor does the fact that the honour was conferred by a Head of State, rather than by a head of the judiciary, create a fear that the President might be influenced in his judicial capacity. Such honours will normally be conferred by the Head of State and concern based on a distinction between executive and judicial honours (Bangalore 38(d)) has little relevance.
The purpose of the President's visit to Cyprus in February 2009 was to attend a conference organised by the University of Cyprus. Neither his presence, nor the company he kept, creates an appearance of bias in the President of the judicial organ of the Union which is concerned to promote in Member States of the Union understanding of its role. His meeting, in March 2009, with a delegation of Cypriot MPs to discuss the role of the court does not demonstrate an attempt by the delegation to influence the President, still less does it create an appearance that he may be influenced by the delegation. It was the role of the court that was under discussion and not political issues or particular cases.
The present case was to be decided, and was decided, by a Grand Chamber according to legal principles. The perception of the reasonable and informed observer would be, as is my perception, that there was no real possibility that the President would be influenced by the honour he received or by his other contacts. The judgment of the court is in no way tarnished by those contacts, considered either individually or cumulatively. The judgment may be applied and no further reference is appropriate."

Operating Rules of Judicial Selection Panel

Article 255 TFEU requires the establishment of a panel to give an opinion on candidates' suitability to perform the duties of Judge and Advocate-General of the Court of Justice and the General Court before the governments of the member States make the appointments referred to in Articles 253 and 254. The process for setting up such a panel is initiated by the President of the Court of Justice.

The President of the Court has now communicated to the Council his recommendations for operating rules of the panel to start the process.

He also made a recommendation on the composition of the panel which is available here.

As his letter explains, his recommendations draw on the experience of the committee set up under Article 3 §3 of Annex I to the Protocol on the Statute of the Court of Justice which draws up the list of candidates having the most suitable high-level experience to perform the duties of judge of the Civil Service Tribunal. Consequently, his recommendations deal with referral to the panel, the confidentiality of its deliberations, the panel’s freedom to request additional information and to convene hearings, and the presentation of the panel’s opinion to the governments of the member States meeting in the Council.

Unfortunately, the draft Council decision setting out the rules of procedure of the panel is not available to the public. Secrecy strikes again.

Death of Pierre Pescatore

Pierre Pescatore died on February 2nd, 2010, aged 91.

He was one of the representatives of Luxembourg government at the negotiations of the Treaty of Rome. Then he was a judge at the Court of Justice for 18 years. If that were not enough, he was also a prolific writer, a profound thinker and one of the people who founded and shaped modern European law and the EU. His 1974 book "The Law of Integration" remains a classic.

Above all, he was a fine representative of his generation: Of learned, decent men and women who sought to guide European nations away from the murderous habits of the first half of the Twentieth century and towards a more peaceful path of cooperation, commerce and obedience to the rule of law.

Judge Pescatore was also a true gentleman and a friend and guide to young scholars.

Here is a short bio in French.   

If you go to ENA.lu and search for interviews of Pierre Pescatore, you will find some truly remarkable archives.

With his passing, an era comes to a close.

Horizontal Direct Effect of Directives (?) and Age Discrimination: Case C-555/07

The Court of Justice has handed down a major judgment on the horizontal direct effect of directives. And on age discrimination, again.

The judgment of the Court in Case C-555/07 Seda Kücükdeveci is a difficult and subtle one and is sure to keep commentators busy for quite a while. Here's our take on it.

Our pals at Adjudicating Europe have written some very insightful stuff on the case here, here, and here.

First the story. The young Ms Kücükdeveci was employed from the age of 18 by a private German company called Swedex. In 2006, ten years after she started work for them in 1996, Swedex dismissed her. Swedex calculated that she had accumulated only three years of length of service, not ten years. How come ? Because German legislation stated that the employer should not take account of periods of employment prior to the employee's 25th year of age in calculating the length of employment. Ms Kücükdeveci challenged her dismissal before the German labor courts claiming that the German legislation which disregarded employment before the age of 25 constituted illegal age discrimination and that she was not given the proper period of notice corresponding to her length service.

The German court referred two questions to the Court of Justice: Whether the German legislation constituted illegal age discrimination according to EU primary law and Directive 2000/78 and if so, whether the national court should disapply national law in a dispute between two private individuals.

As to the first question, the Court of Justice held that it is a general principle of EU law that all discrimination on grounds of age is prohibited and Directive 2000/78 "gives expression" to that general principle. The Court refers to Case C-144/04 Mangold in which it had held that held that that directive does not itself lay down the principle of equal treatment in the field of employment and occupation, which derives from various international instruments and from the constitutional traditions common to the member States, but has the sole purpose of laying down, in that field, a general framework for combating discrimination on various grounds including age.

Significantly, the Court also refers to the Charter of Fundamental Rights which now has legal force since the entry into force of the Lisbon Treaty. The Court held that Article 6(1) TEU provides that the Charter of Fundamental Rights of the European Union is to have the same legal value as the Treaties. Under Article 21(1) of the charter, ‘[a]ny discrimination based on … age … shall be prohibited’.

But, for those general principles to apply, the case at hand must fall within the scope of EU law. The Court held that it does because the discriminatory conduct complained of in this case was adopted on the basis of national legislation and occurred after the expiry of the deadline for implementation of Directive 2000/78 by the member States. Consequently, this case could be distinguished from Case C-427/06 Bartsch [2008] ECR I-7245.(For our post on that case, see here).

Having held that the discrimination in question was prohibited by EU law as a matter of principle, the Court then answered the second question on the consequences of such a finding. It held that the national court must ensure that the principle of non-discrimination is complied with by disapplying any contrary provision of domestic law.

The Court recalled the general rule that a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against an individual (Case 152/84 Marshall [1986] ECR 723, paragraph 48; Case C‑91/92 Faccini Dori [1994] ECR I‑3325, paragraph 20; and Joined Cases C-397/01 to C-403/01 Pfeiffer and Others, [2004] ECR I-8835, paragraph 108).

That is not the end of it, however. The Court went on recalling the member States’ obligation arising from a directive to achieve the result envisaged by that directive and their duty to take all appropriate measures, whether general or particular, to ensure the fulfillment of that obligation are binding on all the authorities of the Member States including, for matters within their jurisdiction, the courts (Case 14/83 von Colson and Kamann [1984] ECR 1891, paragraph 26; Case C‑106/89 Marleasing [1990] ECR I‑4135, paragraph 8; Case C‑91/92 Faccini Dori, paragraph 26; Case C‑129/96 Inter-Environnement Wallonie [1997] ECR I‑7411, paragraph 40; Joined Cases C-397/01 to C-403/01 Pfeiffer and Others, paragraph 110; and Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others [2009] ECR I‑0000, paragraph 106).

The Court held that, as a consequence, when it applies national law the national court must ensure, as far as possible, in the light of the wording and the purpose of the directive in question, that the result pursued by the directive is achieved and thereby comply with the third paragraph of Article 288 TFEU (von Colson and Kamann, paragraph 26; Marleasing, paragraph 8; Faccini Dori, paragraph 26; and Pfeiffer and Others, paragraph 113). The requirement for national law to be interpreted in conformity with EU law is inherent in the system of the Treaty, since it permits the national court, within the limits of its jurisdiction, to ensure the full effectiveness of EU law when it determines the dispute before it ( Pfeiffer and Others, paragraph 114).

Importantly, the Court stated that the German legislation in issue was perfectly clear and could not be interpreted in such a way as to comply with EU law.

Because Directive 2000/78 merely gives expression to, but does not lay down, the principle of non-discrimination on grounds of age as it is a general principle of EU law ( Mangold, paragraphs 74 to 76), the national court, hearing a dispute involving the principle of non-discrimination on grounds of age as given expression in Directive 2000/78, must provide, within the limits of its jurisdiction, the legal protection which individuals derive from EU law and to ensure the full effectiveness of that law, disapplying if need be any provision of national legislation contrary to that principle (see, to that effect, Mangold, paragraph 77).

That seems like a rather convoluted way of saying that even if a directive does not have horizontal direct effect, the national court should seek to achieve the same result as if it did have such an effect when the directive gives expression to a general principle of EU law.

Lastly, the Court looked at the question whether the national court must refer a preliminary question on the basis of Article 267 TFEU before disapplying national law contrary to EU law.

The Court held that the national court need not make such a reference. It stated that the need to ensure the full effectiveness of the principle of non-discrimination on grounds of age means that the national court, faced with a national provision falling within the scope of EU law which it considers to be incompatible with that principle, and which cannot be interpreted in conformity with that principle, must decline to apply that provision, without being either compelled to make or prevented from making a reference to the Court for a preliminary ruling before doing so.