COVID19: Thank you on behalf of Fundação Angelica Goulart

The video and message below come from Fundação Angelica Goulart (Pedra de Guaratiba, Rio de Janeiro, Brazil). On behalf of our Fundação, THANK YOU! OBRIGADO! GRACIAS!

Dear all,

First and most importantly:

If you can, stay home

If you need to go out, USE MASKS.

WHENEVER POSSIBLE, WASH YOUR HANDS

Our emergency action plan has just completed a month and the baskets continue to help soften the crisis that the families in Guaratiba are going through.

Throughout this month, we've received several donations: financial, hydroponics, Easter eggs, basic baskets, personal hygiene kits and for the house and eggs (detail information on the video).

All these donations were distributed at the Foundation to more than 1300 families and more than 5000 people.

We follow strict hygiene, health and safety protocols, ensuring that donations were available to families quickly.

To the donors and volunteers, all our gratitude. This action was only possible by the partnership and solidarity

@instituto_phi

@institutoekloo

@bancodaprovidenci

@cacaushow

@begreen.farm

@loreal_brasil

and to several people who have made financial donations in cash or via the internet (see video for details about how you may help us help others).

We're still working: the very basic for those who need it the most.

Follow us on social media and join us.

Help us help others.

THANKS! OBRIGADO! GRACIAS!

Fundação Angelica Goulart

Territorial disputes: Northern Ireland (Part 10) [Post 95]

EU citizenship and its limitations

The posts this week centered 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 the case of Northern Ireland in light of Brexit.

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

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.

Next week the posts will introduce free movement of persons with focus on workers and the highly controversial issue of benefits.

NOTE: This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST: European Union law and Free Movement of People: Workers

Friday 08th May 2020

Dr Jorge Emilio Núñez

Twitter: @London1701

https://drjorge.world

Territorial disputes: Northern Ireland (Part 9) [Post 94]

The Court of Justice of the European Union and art. 18 TFEU (principle of non-discrimination)

The posts this week introduced European Union law and the four fundamental freedoms all European Union citizens have. 

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.

1)   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.

2)   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.

Grzelczyk (C-184/99): 

A French national studying in Belgium who had previously worked there and 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.

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.

NOTE: “The right to equal treatment…does not preclude national legislation which makes entitlement to a jobseeker’s allowance conditional on a residence requirement, in so far as that requirement may be justified on the basis of objective considerations (i.e. the need to show a genuine link between the person seeking work and the geographic employment market of the State) that are independent of the nationality of the persons concerned and proportionate to the legitimate aim of the national provisions.”

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

NOTE: This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST: EU citizenship and its limitations

Thursday 07th May 2020

Dr Jorge Emilio Núñez

Twitter: @London1701

https://drjorge.world

Territorial disputes: Northern Ireland (Part 8) [Post 93]

The Court of Justice of the European Union and EU citizenship

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 we cover today is whether the European Court of Justice has been able to interpret these articles more generously.

The Court of Justice of the European Union: free movement of persons and citizenship

In Baumbast (C-413/99), a German national was a worker in 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, 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) T.F.E.U.)...is conferred directly on every citizen of the Union by a clear and precise provision of the E.C. Treaty (now T.F.E.U.). 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 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, 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 Srates 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.

NOTE: This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST: The Court of Justice of the European Union and art. 18 TFEU (principle of non-discrimination)

Wednesday 06th May 2020

Dr Jorge Emilio Núñez

Twitter: @London1701

https://drjorge.world

Territorial disputes: Northern Ireland (Part 7) [Post 92]

European Union Treaty Law and EU citizenship

The previous post introduced the four fundamental freedoms that have to do with the European Union. This is key in the case of Northern Ireland since after Brexit, the United Kingdom (and therefore, Northern Ireland) will leave behind this legal structure. 

In the context of the four fundamental freedoms, the post referred in particular to free movement of persons and European Union citizenship. Today’s post introduces European Union treaty law relevant to citizenship.

In fact, citizenship provisions included in the treaty do not add any anything substantive to Community rights already existing in European Union law. The European Court of Justice has attempted to “add” to citizenship rights. 

It has failed to be more generous in the interpretation of art. 21 TFEU and an independent right of free movement. However, the European Court of Justice has been progressive in creating wide right to equality for Union citizens under art. 18 TFEU (principle of non-discriminatioin).

Citizenship Provisions Included in European Union Treaty Law

 Art. 21 (1) TFEU: 

“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty.”

Art. 22 TFEU: 

confers right to vote and stand for municipal elections and elections to European Parliament under same conditions as nationals of Member State. Only exercisable when Union citizen exercises right to free movement in another Member State. European Union citizenship is only significant if results in non-nationals participating actively and exercising rights in art. 22 TFEU.

The right to vote in municipal elections and elections to European Parliament in own Member State is conferred by national law.

Art. 23 TFEU: 

confers entitlement to protection by diplomatic or consular authorities of any Member State, on same conditions of nationals of Member State, in territory of third country in which Member State of which European Union citizen is national is not represented.

Assistance offered in cases of death, serious accident, illness, arrest, detention or where victim subject to violent crime. 

Includes relief and repatriation of “distressed citizens” of Union. The right to diplomatic protection not general one. European Union citizens are not entitled to protection of all Member States in any third country. They have only protection where their own Member State is not represented.

Art. 24 TFEU: 

confers right to petition European Parliament and to submit complaints to Ombudsman.

The right to petition Parliament is not new within Union framework. In fact, the right to petition Parliament and complain to the Ombudsman is not exclusively attached to the condition of European Union citizenship, but rather a general right, including third country nationals.

From the above brief account, it is clear European Union law does not grant but simply acknowledges the aforementioned rights. Even the acknowledgment is limited in practical terms.

NOTE: This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST: The Court of Justice of the European Union and EU citizenship

Tuesday 05th May 2020

Dr Jorge Emilio Núñez

Twitter: @London1701

https://drjorge.world

Territorial disputes: Northern Ireland (Part 6) [Post 91]

European Union law and the four fundamental freedoms

In order to understand better the case of Northern Ireland we introduced last week basic elements in relation to the European Union. We presented the relationship between national law and international law, and in particular European Union law as a frame of reference for all Member States (including the United Kingdom and, consequently, Northern Ireland).

This week the posts will centre on European Union law and the fundamental freedoms that the United Kingdom (and therefore, Northern Ireland) will leave behind after Brexit. 

After introducing very briefly the four fundamental freedoms the posts this week will be centre on free movement of persons and European Union citizenship. 

Next week the posts will introduce free movement of persons, workers, and social advantages (including the highly controversial and usually misunderstood issue about benefits).

Four Fundamental Freedoms

Originally, the principal aim of European Economic Community (ECC) was to achieve a greater economic integration via the creation of common market involving abolition of obstacles or restrictions on free movements of goods, services, workers, and capital.

Nowadays, Art. 26(2) TFEU defines internal (common/single) market as area without frontiers in which there is free movement of goods, persons, services, and capital.

Note the subtle but important difference between the original four fundamental freedoms (which referred only to workers in the case of people) and the current text that refers to persons.

Free Movement of PersonsCitizenship

There is no mention of European citizenship in initial European Community Treaty. Originally the recognized free movement principle (of workers) was linked to narrow economic objective of attaining common market.

With time, workers, self-employed persons, providers and recipients of services were gradually conceived as something more than factors of production.

A-G. Trabucci in F v Belgium (7/75): “the migrant worker is not regarded by Community law as a mere source of labour but is viewed as a human being.”

The 90s see a change with regard to European Union citizenship. The Treaty of the European Union (Maastricht 1992) marked a move from European Economic Community to more politically-oriented European Union.

Art.3 TEU: Union set itself objective to strengthen protection of rights and interests of nationals of the Member States through citizenship. Exercise of rights would help to forge identity with Union.

According to art.20 (1) TFEU: Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship shall complement and not replace national citizenship.

NOTE: the European Union citizenship is to complement and not replace Member State nationality.

The post tomorrow will include references to European Union treaty law relevant to citizenship. Art.20 (2) TFEU established that citizens of the European Union enjoy certain rights and are subject to duties provided for in the treaties. This means that European Union citizens enjoy a series of political, civil and socio-economic rights. Some are set out in arts. 21-24 TFEU, others in secondary legislation to be adopted under art. 25 TFEU.

NOTE: This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST: European Union Treaty Law and EU citizenship

Monday 04th May 2020

Dr Jorge Emilio Núñez

Twitter: @London1701

https://drjorge.world

Territorial disputes: Northern Ireland (Part 5) [Post 90]

Supremacy (or Primacy) of European Union Law

The principal of primacy means that when any European Union rule applies in a given situation, the conflicting national norm should be set aside. This is called a duty to disapply national law.

According to the Court in Simmenthal, “a national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary by refusing of its own motion to apply any conflicting provision of national legislation, and it is not necessary for the court to request or await the prior setting aside of each provision by legislative or other constitutional means.”

As the operation of setting aside conflicting national law has to be repeated by the court, and by other courts, in all similar individual cases, the result in practical terms is close to invalidation of the rule. It is important to note, however, that strictly the Court does not require invalidity of the inconsistent national rule, instead the non-application or setting aside of it.

A national rule, which is set aside for being inconsistent with Union law, is inoperative only to the extent of this inconsistency; the rule may continue to be applied to cases where it is not inconsistent, or to cases not covered by the E.U. norm, and it may fully apply again if and when the E.U. norm ceases to exist. Where there are inconsistencies between an E.U. norm intending to harmonize national laws and a harmonizing national law, then inconsistencies can only be removed by repealing the national act.

Treaty of Lisbon 2007

According art.I-6 of the Treaty establishing a Constitution for Europe: “The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.” This Article incorporated the principle of primacy into the Treaty text. In a Declaration attached to the Treaty it was stated that “Article I-6 reflects existing case law of the Court…and does not cause any additional limitations of sovereignty.” 

It was held by the Constitutional Courts of France and Spain that the new primacy clause did not bring any changes to the existing relationship between E.U. law and national law.

The principle of primacy was omitted from the Treaty of Lisbon 2007 and a much longer Declaration was adopted and attached. According to Declaration no.17: “The Conference recalls that, in accordance with well settled case law of the Court, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of the Member States, under the conditions laid down by the said case law.”

According to the Declaration the entry into force of the Treaty of Lisbon did “not in any way change” the Court’s established position as regards to primacy.

In an Annex to the Final Act of the Treaty of Lisbon was also the Opinion of the Council Legal Service on the Primacy of E.C. Law (set out before the Treaty): “It results from the case law of the Court that primacy of E.C. law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the nature of the European Community. At the time of the first judgment of this established case law (Costa) there was no mention of primacy in the Treaty. It is still the case today. The fact that the principle of primacy will not be included in the future Treaty shall not in any way change the existence of the principle and the existing case law of the Court.”

Next week the blog series will introduce the four fundamental freedoms that have to do with the European Union and its members and are so important for the future relationship between the United Kingdom and Northern Ireland in light of Brexit.

NOTE: This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST: European Union law and the four fundamental freedoms

Friday 01st May 2020

Dr Jorge Emilio Núñez

Twitter: @London1701

https://drjorge.world