GRADE 72%

The wordcount in this paper, 

excluding the footnotes, the explanatory notes, and the bibliography, is as follows: 

Essay: 1,500

PQ 4a: 500

PQ 4b: 500

PQ 4c: 500

Total: 3,000

Question 1

Wordcount: 1500 words

Abbreviations used in this paper: 

EU Law = EULaw; MS Courts = MSCourts; MS = Member State(s); ECJ – European Cour of Justice;  CJEU = The Court of Justice of the European Union

This essay will address the view of most MS constitutional courts that the supremacy of EULaw prevails because the courts have allowed it. The doctrines of the supremacy of EULaw and direct effect are paramount for the EU legal system; they are equivalent to observing the rule of law in each state. While an effective enforcement mechanism is crucial, EULaw cannot be applied uniformly because various MS interpretations arise, leading to failure to enforce it fully or partially. Treaties did not explicitly stipulate the supremacy of the EU. It might be because when the Union was established, MS did not realise to what scale it would expand; or because it started as a Common Market, focusing on trading rather than legal matters, or just because, at the time, it was considered that it goes without saying that all MS would be obeying the same rules sometimes termed ‘the spirit of the Union. On the other hand, treaties have set out public enforcement procedures and remedies, whereas private enforcement had to be developed by the ECJ through case law which established the doctrine of direct effect, supremacy and the rules on MS liability for infringements of EULaw. Supremacy implies that the EU legislation shall take precedence where conflicts between EU and national law arise. Direct effect and enforcement mean that citizens of MS can enforce their rights in the national courts. Landmark cases like Van Gend en Loos, followed by Costa and Simmenthal  clarified these concepts and set precedents in EU jurisdictions. The judgments of CJEU were based on teleological interpretation, focusing on the purpose of the provisions of the law rather than the wording. Consequently, when a country decides to become a part of the Union, they undertake that they submit to the law governing the EU. The Union is not simply a hierarchy where the EU courts take supremacy over the national courts; it is an elaborate structure based on interactive links between the EU authorities and the national institutions. In these circumstances, understandably, many MS consider that EULaw is supreme only because their national courts allow the application of EULaw. This relationship is described as pluralistic and involves a plethora of issues concerning the theory and practice of jurisprudence, analysed in detail by Janneke Gerards,  with a focus on the pragmatic and practical side rather than on the theoretical approach.

Traditional unitary constitutionalism implies that within a union, only one constitution should exist – either the national or the EU one, but this concept has never been implemented in unions. Instead, pluralist constitutionalism was adopted where the Union and the MS have constitutional claims that sometimes may contradict. As interpreted by Neil Walker, all unions should apply the concept of priority through ‘multi-level constitutional orders called ‘constitutional pluralism’. Even though the constitutional courts accept the supremacy of EULaw only where it does not interfere with their national constitutional values, there is a good relationship between the EU and MSCourts, appropriately described by Gerard as “judicial dialectics” which could “prevent the occurrence of situations of real conflict between national and European courts”.   MSCourts give precedence to their national law where they consider that EULaw contradicts the national legal principles or the EU institutions have acted ultra vires. EU courts are in a predicament as they need to tackle a situation where national courts will baulk if the MS constitution is not respected. 

It should be noted that not every MS subscribed to the theory that EULaw is supreme. Some MS could not incorporate fundamental principles and human rights into the domestic law because their constitutions require that the legislator should implement the novel law. The national courts do not observe EULaw as an object to constitutional review; therefore, it should be enforced by the lower courts because in England, for example, we do not have a constitutional court. This way, the highest courts ensure that the lower courts comply with EULaw, even when the procedures involve setting aside conflicting national acts of parliament, which proves Gerard right. Furthermore, the constitutional courts of some MS pushed the lower courts to comply with EULaw by making it a constitutional duty that the higher courts should refer to the ECJ when necessary.  This procedure leads to close collaboration and strongly indicates that EU courts respect national constitutions. 

Currently, the primacy of EULaw over the MS legislation is fully established throughout the Union and documented by the country reports. Moreover, the concept of supremacy is incorporated in Declaration 17. However, in MS, like  Denmark and Sweden, EULaw is only enforceable by national statutes. This implies that the application of EULaw depends on the acquiescence of these MS, which again supports Gerard’s view. 

In the 1990s, in MS, there was an understanding that where EULaw is different to local law, EULaw would take the authority but only if fundamental provisions of their constitutions were not affected, and this is another argument in favour of Gerard’s statement. In Italy, the enforcement of EULaw was a long-standing battle between the local and EU courts. ECJ attempted to make the supremacy of EULaw a key concept, and Italy confirmed that after 1958 the EU legislation had been incorporated into domestic law. After Costa, the law imposed on Italy exceeded their constitution, yet the Italian courts had to apply constitutional principles to recognise the supremacy of EULaw. The first case decided by the Italian Constitutional Court on the grounds of EULaw incorporated into the national legislation was Frontini. Then reform followed in 2001, and Article 117 of the Italian Constitution introduced EULaw, which effectively accepted that EU provisions are a primary source. Then the judgment in Fragd was that the consistency between the EULaw and the national constitution regarding human rights would be controlled by the Constitutional court. Consequently, there was even more tension in the Tarricco saga, but eventually, the Taricco II case indicated conciliation between ECJ and the constitutional court of Italy, where the decision was that the provisions of the Italian criminal law should be disapplied.

Similarly, in Germany, the position of the Constitutional Court in Solange I and II was that where the EULaw contradicts the constitutional law, the national law prevails, which was later modified to the view that as soon as fundamental human rights are protected, the Constitutional Court will not decide on the enforcement of EU secondary legislation. This effectively means that the court has the power to challenge the supremacy of EULaw indirectly, which is another argument supporting Gerard’s view. Later, through the judgment in the Maastricht case the Constitutional court indicated that it would respect the limitations imposed by the EULaw. Then in the Lisbon case, the court exercised its power to scrutinise whether EU legislation threatened the national constitution. 

Identically in Spain, the primacy of EU legislation, incorporated in Article 93, conflicted with the supremacy of the Spanish Constitution and EULaw was subject to constitutional limitations. The primacy of EULaw confers powers to overrule conflicting issues with the national law, whilst the Spanish Constitution claims to be the source where the primacy of EULaw originates and that the fundamental constitutional principles cannot be repealed by EULaw. So far, the Spanish courts have never refused enforcement of EULaw on the grounds of such discrepancies; however, the Melloni case implies that the application of domestic law should be consistent with the EULaw rather than the Spanish constitution, and eventually, the Spanish law was revised in a manner not to obstruct the enforcement of EULaw. The position of the French courts also supports Gerrard’s idea – initially, it proclaimed that the constitution should prevail over EULaw and accepted EU primacy as soon as it “did not affect the position of the national Constitution at the apex of the internal legal order.” 

The comparative analysis clearly shows that issues with EU supremacy exist and are almost identical to the MS discussed in this essay. As scholars say, supremacy is the main challenge to integration because it is a relationship governed by two laws. Janneke Gerard’s views are shared by many professors, and the history of the relationship between MSCourts and EUCourts has proved they are correct. Initially, it was stated that because EULaw is supreme, the MSCourts must set aside the local law if it is contradictory. Over the years, EUCourts faced numerous issues concerning the MSCourts position that their constitutions are untouchable. They realised they had overstepped and sought to find a balance. Recently, EULaw prevails in many cases, which is a positive step in establishing the doctrine of supremacy. How else would MS stay in the Union if they apply EULaw randomly and do not keep ‘the spirit of the Union’? Each MS made a decision to join the EU, therefore, should be held to the standards of the Union and its fundamental principles. Despite these issues, there has been a constructive dialogue and interaction between the MSCourts and EUCourts,  and the author’s proposition is correct – it is actually the MScourts who are allowing for the EULaws to be upheld.

 

Problem question 4a – 500 words

Alicia, a Romanian national living in Ireland, is moving to France on an employment contract. She is looking after her uncle with dementia, who cannot cope independently. The issues are whether Alicia can move to France based on her nationality, whether she can bring her uncle and what rights will Alica and her uncle have in France.

In the beginning, only workers’ rights were recognised across the Union. Consequently, any EU citizen would enjoy the right to move freely within the Union, as provided under Article 21 of TFEU. The definition of “worker” in the context of EU Law comes from case law. Alicia is an employee, she classifies as a worker, and her right to freedom of movement is protected by the Workers Regulation 492/2011. Alicia’s rights as a citizen and a worker are protected under the provisions of Articles 20, 21 and 45(2) of TFEU and case law. She may move to any Member state (MS), including France, for employment and remain there after being employed, because Romania is a MS. Alicia will have equal rights to employment, work conditions, remuneration, social security and healthcare when moving to France. Alicia is an economically active migrant; therefore, she would be entitled to equal access to social benefits and healthcare if she needs any treatment.

Alicia can bring her uncle as an “other dependent family member.” Directive 2004/38 of 29 April 2004 stipulates the rights of citizens of the Union and their family members to move and reside freely within the territory of the MS. The hosting MS should not discriminate against another MS, and her uncle should have the right to benefit from the social services and healthcare in France if treatment for his dementia is needed. However, he is an economically inactive person, and the legal principle is that his “right to free movement is not absolute and is subject to limitations.” On that account, if France is experiencing an economic crisis and considers limiting its expenditure, the uncle might be regarded as a burden to the national social system, and the court will need to decide his case. Should his condition worsen, that may also constitute an unreasonable burden. The French court has the jurisdiction to review the facts and decide whether granting benefits to the uncle will likely place an unreasonable burden on the national social assistance system. If the French court finds that such a burden is disproportionate and it is unjust to spend public funds on the uncle, that would not be considered unfair treatment. 

Therefore, Alicia can move to France as a worker where her rights of equal employment, work conditions, remuneration, social security and healthcare will be protected by Article 45. She can bring her uncle, and he will have the right to access the public funds unless France decides to cut them off due to serious economic reasons or other factors such as the uncle’s condition worsening, then, the French court needs to decide if the uncle is an unreasonable burden. 

Problem question 4b – 500  words

Bradan, an Irish national and Zaiden, a British national, have been living in a civil partnership for five years. The issues are whether Bradan could bring Zaiden to France if he moves to work and whether he would be permitted to work in France. 

All EU citizens have the freedom of movement across the Union. Directive 2004/38 protects the rights of EU citizens and their family members. Civil partnership is statutorily recognised across the EU under Article 2(2)(b) TFEU, which treats the partnership as “equivalent to marriage”. Bradan and Zaiden’s civil partnership is between an EU citizen (Bradan) and a non-EU national (Zaiden). Whereas marriage is legally recognised in all MS, only 20 MS acknowledge civil partnership, and France is one of them. Where an EU citizen works in another MS, their family members have the right to work and live in the host MS even if they are non-EU citizens. It means that Bradan and Zaiden will enjoy the same rights as a married couple would. Same-sex marriage is legal in France, so their right to family life is protected under the provisions of Article 8 ECHR. The Coman case specifies that third countries’ nationals and same-sex spouses should be considered family members. No visa is required for Zaiden, and he can enter France on his British passport. He has the right to stay initially for three months, and the principle is that the longer migrants are residing, the more rights they enjoy in the host MS. Within these three months, Zaiden must apply for a carte de séjour as a “family member of an EU/EEA/Swiss citizen.” This card will allow him to work and will expire after five years. Also, since Zaiden has been living in Ireland with his partner for 5 years, he can now file to become a EU citizen on that basis. 

EU citizens looking for employment have similar rights to workers. These rights apply for three months, although this period could be extended if Zaiden proves that he has got a chance to get a job –  Antonissen. Before that, his rights will be limited compared to a worker’s rights, because the courts have a strict approach to prevent the ‘benefit tourism’ – Dano v Jobcenter Leipzig. Therefore, Zaiden’s situation is more complicated because, as a family member, he will be dependent upon Bradan’s status.   Bradan will enter France as a worker, but Zaiden might be considered a burden on the social system of France if he is not working. To avoid such a situation, Bradan should have health insurance and enough money to support himself and Zaiden because he appears to be non-economically active. Once they have satisfied these criteria, Zaiden will have the right to stay longer than three months, look for employment, and access public health. Bradon and Zaiden will need to compare their diplomas and qualifications because their education and skills need to comply with the equivalent level required in France. Therefore, Zaiden can move to France and can work.

Problem question 4c – 500 words

Cosme will move to France on employment conditions. She enters France as a worker and also as a citizen because Portugal is a member state. The right to free movement across the Union is not absolute and may be limited due to public security concerns. In such cases, EU citizens may be refused entry to the host MS, or they may face deportation. Such derogations from the principle of free movement are not considered unjust or discriminatory because they comply with the scope of Article 45(3). Moreover, the EU institutions scrutinise whether such measures are applied uniformly throughout the Union and whether they are not too restrictive. Each case is reviewed individually, and MS have the discretion to refuse entry based on specific national concepts and values. The common legal principle is that where public policy is concerned, the host MS can decide which route to apply if the actions of the citizen are believed to be ‘socially harmful’, following the decision of the Van Duyn‘s case. Each case is reviewed individually, and MS have the discretion to refuse entry based on specific national concepts and values.

EU citizens with previous criminal convictions may be expelled based on their criminal records. They must have been convicted of serious crimes and must be a serious threat to public policy, so refusing entry or expulsion will be proportional. The past convictions themselves should not be grounds for imposing measures such as entry refusal, refusal to work, live or deportation. The leading authority concerning the relevance of previous criminal convictions is the Bouchereau case, where some restrictions imposed due to criminal convictions are relevant only if they are a serious threat to the public interest. Decisions are based on the person’s current conduct, the seriousness of their crime, how long ago the crime was committed, and whether there are indications for repeated behaviour. EU citizens facing refusal, refusal to live and work or deportation still have rights, for example, to be informed of the reasons and to appeal procedures. 

Cosme was convicted of possessing illegal drugs, which is a short prison sentence and this speaks to the seriousness of the crime itself. Also, at that time, she was very young. Then she was a student, and now she is an adult working for a large company with several operations in EU countries. She has already served her sentence and should be allowed to rehabilitate into society, and that includes the other MS. This crime is not a serious threat to the national security of France. It was committed long ago, and she has not taken any drugs since that time. In this case, denying her entrance will not be proportionate regarding the seriousness of the crime, the time it was committed, the fact that she has never re-offended and is unlikely to re-offence in the future. Therefore Cosme is not likely to be refused entry to France based on her previous criminal record, and she can challenge that decision if it is made. 

Legislation

Article 14(1) CRD

Article 15(4)(b) Directive 2004/38 EC

Article 162 TFEU

Article 2(2)(b) Directive 2004/38 EC

Article 20 Directive 2004/38/EC

Article 27(2) TFEU

Article 3(2)(a) Directive 2004/38 EC

Article 45(2) TFEU

Article 45(3)(a)(b)(c)(d) TFEU

Article 48 TFEU

Article 48(2) TFEU

Article 6(2) Directive 2004/38 EC

Article 7(1)(b) CRD

Article(2) Regulation (EU) No 492/2011 of the  European Parliament and of The Council of 5 April 2011 on freedom of movement for workers within the Union

Articles 258–260 TFEU

Declaration 17 of the Treaty of Lisbon

Directive 2004/38 EC

Directive 2005/36 EC

Workers Regulation 492/11 EU

 

Table of cases 

Amministrazione delle Finanze v Simmenthal SpA [1978] ECR 629

BverfGE 123, 267 (Lisbon) [2010] 3 CMLR 276, Cases C-317/13 and C-679/13

BverfGE 89, 155 (Maastricht) [1994] 1 CMLR Case C-137/09 Josemans v Burgemeester van Maastricht

Cases C-317/13 and C-679/13

CJEU M.A.S. and M.B. (Taricco II)

Costa v ENEL [1964] ECR 595

Dano v Jobcenter Leipzig  [2015] 1 CMLR 48

Fragd v Amministrazione Delle Finanze Dello Stato ECR 1985 -01605

Frontini v Minister delle Finanze [1974] 2 CMLR 372

Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (1970) 

Internationale Handelsgesellschaft mbH v Einfuhr und Vorratsstelle für Getreide und Futtermittel [1974] 2 CMLR 540

Melloni v Ministerion Fiscal (Case C-399/11) [2013] 3 WLR 717

Pensionsversicherungsanstalt v Peter Brey (2013) ECR I-000

R v Bouchereau [1977] ECR 1999

R v Secretary of State for the Home Department, ex parte Vitale and Do Amaral [1996] 2 CMLR 587  

R v Secretary of State for Transport, ex parte Factortame [2002] EWCA Civ 932

The Queen v Immigration Appeal Tribunal, ex parte Antonissen [1991] ECR I-745

Van Duyn v Home Office (1974)

Van Gend en Loos v Administratie der Belastingen [1963] ECR 1

Wünsche Handelsgesellschaft [1987] 3 CMLR 225 (Solange II)

 

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