Territorial disputes: Brexit (14) [Post 214]

The posts this week center the attention on European Union law and one of the four fundamental freedoms all European Union citizens have: free movement of persons. In particular, the posts presented European Union treaty law (arts. 18, 20-24 TFEU) and a few decisions by the European Court of Justice. Both the treaty articles and the judicial decisions are key in understanding the implications that Brexit will introduce.

Free movement of persons before Brexit

It should be clear to the reader now that the civil, political and socio-economic rights laid down in arts. 21-24 TFEU are limited. However, the European Court of Justice has been able to interpret European Union treaty law in a more generous manner.

On the one hand, from decisions such as Baumbast, it appears that the right to free movement under art. 21 TFEU does not constitute a truly independent right to free movement decoupled from economic status. On the other hand, the ECJ has been able to “extend” the right to equality with decisions in Martinez Sala and Grzelczyk. It is true the decisions in later cases such as Collins and Bidar narrowed the effect of previous decisions and enabled Member States to require fulfilment of residence period before successful claim to show sufficient link to territory.

Indeed, the rights that have to do with European Union citizenship are limited. Arguably, The ECJ has been able to interpret the right to equal treatment (or non-discrimination) more broadly. Time will tell whether the integration will be a reality and this and other civil, political and socio-economic rights are fully fleshed for European Union citizens. In any case, the United Kingdom will give up these rights in the weeks to come when Brexit finally will be a reality.

Free movement of persons after Brexit

The legal situation would change after Brexit for any British national who wanted to move and reside in any Member State part of the European Union or any European Union citizen who hoped to move and reside in the United Kingdom. Indeed, this is an issue that the representatives on both sides of the negotiations have yet to agree about.

As things stand, Brexit without a deal would imply that any individual moving to and from the United Kingdom from or to any of the European Union Member States would be considered legally as any other third country national and therein, would not have the right to free movement and residence.

EU citizens living in the UK

For individuals who are European Union citizens already residing in the United Kingdom, they are able to apply to the EU Settlement Scheme to continue living in the UK after 30 June 2021. If the application is successful, they will get either settled or pre-settled status.

More detailed information about settled and pre-settled status of EU citizens and their families following the link below:

Link to the complete publication

UK nationals living in the EU

For United Kingdom nationals currently living in the European Union, if there is a deal, during the Implementation Period (30 March 2019 to 31 December 2020), free movement rights will continue to apply to you as a UK national. This means that you will be able to live in an EU country.

The situation remains unclear in case of no deal. Continuing to live in an European Union country after the United Kingdom has left the European Union depends on the European Union and its Member States.

More detailed information about UK citizens living in the European Union following the link below:

Link to the complete publication

The following posts will introduce free movement of persons with focus on workers and the highly controversial issue of benefits (often used by Brexiters in their campaign).

Thursday 28th February 2019

Jorge Emilio Núñez

Twitter: @London1701

https://drjorge.world

Territorial disputes: Brexit (13) [Post 213]

The posts this week introduced European Union law and the four fundamental freedoms. The focus for the last three posts is on free movement of persons. So far, European Union treaty law seems to only acknowledge a set of limited rights. In tune with this, the European Court of Justice seems to have a very narrow interpretation of these rights. It is time now to present art. 18 TFEU (principle of non-discrimination) and examine whether the ECJ is more generous when interpreting this text.

The European Court of Justice, free movement of persons and citizenship: art. 18 TFEU (principle of non-discrimination)

The European Court of Justice has developed a different line of interpretation about equal treatment for Union citizens lying outside formal terms of arts. 21-24 TFEU.

Martinez Sala (C-85/96): on the basis of Union law could an unemployed Spanish national, residing in Germany, who was legally entitled to reside there under a provision of international law (here, the European Convention on Medical and Social Assistance), claim a child-raising benefit open solely to German nationals and foreign nationals having a German residence permit.

The mere fact of her lawful residence, here under a provision of international law, was sufficient to attest to exercise of her right to free movement under art. 21 TFEU. This brought her within the personal scope of the Treaty.

Because of this she was able to invoke general non-discrimination in art. 18 TFEU in respect of any situation falling within the material scope of the Treaty.

As a Union citizen, lawfully residing in a Member State, Martinez Sala was able to claim the benefit because it fell within the scope of Union law and was, thus, subject to general non-discrimination principle in art. 18 TFEU.

In Grzelczyk (C-184/99), a French national studying in Belgium who had previously worked there, applied for minimex, a minimum subsistence allowance. The benefit was open to all Belgian nationals and to all Community nationals qualifying as workers. Therefore, the Belgian authorities refused the application.

The ECJ stated that Grzelczyk was entitled to minimex based on wider reasoning than that adopted in Martinez Sala. A Union citizen, lawfully resident in territory of host Member State is able to rely on art. 18 TFEU in all those situations falling within material scope of E.U. law.

Following Grzelczyk, it seems that a Union citizen who is lawfully resident in another Member State, either under provisions of national, European or international law, will be seen to have exercised the right to free movement under art. 21 TFEU.

As a result, the citizen may rely on art. 18 TFEU, a general right of non-discrimination in relation to nationals, to claim all those advantages that fall within the material scope of European Union law.

In Collins (C-138/02), an Irish jobseeker in the United Kingdom claimed for jobseeker’s allowance. The claim was refused by British authorities on ground he was not habitually resident in the United Kingdom.

Collins fell into the personal scope and the benefit fell into material scope of European Union law. In other words, lawfully in United Kingdom as jobseeker and the benefit being linked to his fundamental right to move and reside freely in another Member State (art. 18 TFEU), was able in principle to enjoy same treatment in law, irrespective of his nationality, in claiming this benefit intended to facilitate his access to employment market.

There are many other cases that indicate the broad interpretation of art. 18 TFEU by the European Court of Justice: Bidar (C-209/03), Ioannidis (C-258/04), Forster (C-158/07), etc.

Wednesday 27th February 2019

Jorge Emilio Núñez

Twitter: @London1701

https://drjorge.world

Territorial disputes: Brexit (12) [Post 212]

Our previous post referred to free movement of persons and citizenship with particular focus on European Union treaty law. The post introduced arts. 21-24 TFEU and showed treaty law only acknowledges certain rights. The question today’s post will cover is whether the European Court of Justice has been able to interpret these articles more generously.

The European Court of Justice, free movement of persons and citizenship

In Baumbast (C-413/99), a German national was a worker in the United Kingdom until 1995. In 1995, on retirement, he applied for renewal of residence permit but this was refused by the Home Secretary on grounds that he was no longer a worker in the country nor able to fulfil conditions for general right of residence under Directive 90/394 [now repealed and its provisions replaced by Directive 2004/38 art.7 (1) (b)]. He had sufficient resources but lacked comprehensive sickness insurance.

The ECJ, on one hand, maintained that the right to reside in another Member State is conferred directly on every E.U. citizen by “clear and precise provision” of the Treaty. The ECJ, on the other hand, stated that it is granted subject to conditions and limitations laid down elsewhere in Treaty. The ECJ made clear that such conditions are subject to its own interpretation of fundamental right to free movement. In other words, conditions be interpreted in light of principle of proportionality. This was first pronouncement of the ECJ attempting to place fundamental right to move and reside freely across Union above purely economic considerations. In what is important here, the ECJ stated:

“The right to reside within the territory of the Member States under art.18 (1) E.C. (now art.21 (1) TFEU) ... is conferred directly on every citizen of the Union by a clear and precise provision of the E.C. Treaty (now TFEU). Purely, as a national of a Member State, and consequently a citizen of the Union, Mr. Baumbast therefore has the right to rely on art.18 (1) E.C. (now art.21 (1) T.F.E.U.).”

In Olazbal (C-100/01), the ECJ held, “art.45 T.F.E.U.…finds specific expression in art.45 T.F.E.U.” In this case and that of Stylianakis (C-92/01), it was held that right of movement and residence in art. 21 TFEU is subject to limitations and conditions laid down elsewhere in Treaty and secondary legislation.

These cases fail to affirm “compromise” position offered in Baumbast; that art.21 (1) T.F.E.U. contains clear and fundamental right to free movement but that is subject to limitations and conditions, interpreted in light of principle of proportionality.

From Baumbast and later cases of Zhu and Chen (C-200/02), Trojani (C-456/02) and Commission v Belgium (C-408/03) appears, however, that art. 21 TFEU does not constitute directly effective, unconditional and independent right to free movement.

While free movement may, according to Court, constitute fundamental right of Union citizenship under art.21 TFEU, conferred directly on European Union citizens, may only be exercised in conjunction with provisions laid down in other parts of Treaty and secondary legislation (for example, art. 45 TFEU, Directive 2004/38 EC., etc.), in light of principle of proportionality.

In principle, it seems there is no right of unconditional free movement for those who are economically inactive (exceptions may be that European Union citizens have permanent right of residence under Directive 2004/38 EC. art. 16 after 5 year’s lawful residence, and all European Union citizens have the right of residence in Member States for up to 3 months without having to fulfil economic conditions under Directive 2004/38 EC. art. 6).

The post tomorrow will introduce art. 18 TFEU (principle of non-discrimination) and discuss whether the European Court of Justice has been able to broaden the scope for European Union rights conferred to citizens by means of interpreting this article.

Tuesday 26th February 2019

Jorge Emilio Núñez

Twitter: @London1701

https://drjorge.world