European Court of Justice has consistently refused to award EU law protection Essay Example

the cross-border element must be real, not just potential or hypothetical.

The intention of the ECJ seems to be to discriminate, and both EU and national measures would be considered lawful when looked at separately. However, the ECJ has shown a more liberal attitude in recent cases, indicating a departure from their previous strict stance on internal situations. The nationality of a Member State still plays a role in recent cases, but Article 228 can be relied upon as long as there is some cross border element involved. In the Scholz case, the ECJ ruled that any European Union national who has exercised the right to freedom of movement for workers and has been employed in another Member State is covered by Article 39 and Regulation 1612/68, regardless of their place of residence and nationality. The Kulzer judgement established that the cross border connection can be established through the residence of a dependent family member in another Member State, not necessarily by the worker themselves. The concept of "wholly internal rule" is still present, but the Kulzer outcome demonstrates significant gaps due to the wide scope given to Article 39 and secondary legislation. These gaps are exemplified in the case of Singh, where Mr Singh, an Indian national, married a British national.

Both individuals had previously worked in Germany before coming back to the UK. The UK contended that Mr. Singh's right to re-enter the UK was based on national law rather than EU law, making it an internal matter. However, the ECJ stated that this case is not about a right under national law but about the rights of movement guaranteed by Article [39 and 43]

of the Treaty. These rights cannot be fully effective if someone is discouraged from exercising them due to barriers set within their own country of origin concerning the entry and residency of their spouse. Consequently, when a Community national who has taken advantage of these rights returns to...

According to EC law, if a person from one Member State of the European Union (EU) decides to reside in another Member State, their spouse must also have the same rights to enter and live in that country. However, there is an inconsistency in how UK nationals and French nationals are treated in this matter. The case of Singh has brought attention to the fact that a UK national with a non-EC spouse living in the UK faces disadvantages compared to a French national with a non-EC spouse who has moved to work in the UK. This inequality arises because the former is subject to domestic law while the latter is protected by EC law due to its cross-border nature. The test applied in Carpenter's case further illustrates this situation.

Mrs Carpenter, a non-EC national, claimed the right to reside in the UK with her UK spouse based on his occasional provision of services in other Member States. She argued that a person providing services should not have reduced privileges and that her spouse should have the same rights in the UK as in another Member State. Mrs Carpenter requests the court to grant her residence rights that are against the guidelines and objectives of the UK's immigration authority due to Mr Carpenter's questionable connections with EC law. The idea of deterrence was mentioned in Singh, but the

Advocate General did not consider the connection factor. The Advocate General did not acknowledge that Mrs Carpenter enabled her husband to provide services through her care for their children.

This passage discusses the similarities and differences between the connecting factor and deterrence approaches in relation to reverse discrimination and spousal residence rights. The Advocate General considers the elimination of certain circumstances from the internal reserve through the provision of services. It is argued that Mr Carpenter, a service provider governed by EC law, should have the same rights in his own Member State as in any of the other 14 potential host states, irrespective of the legal differences between Carpenter and Singh. This reflects Singh's philosophy but does not invoke a deterrence principle, which was important in Singh. The Advocate General emphasizes the importance of respecting fundamental rights in Carpenter, even though there is a temporary restriction in place. Concerns are raised about potential abuse of this temporary restriction by nationals, but the Advocate General dismisses these concerns in Carpenter.

The analysis of Carpenter presents various options for the court. The most strict approach would be to abide by the precedent set in Singh and deny Mrs Carpenter residency rights based on her husband's service provision. Alternatively, a more lenient approach would be to allow Mrs Carpenter to live in the UK as long as her husband continues to provide services in other EU countries. This approach would emphasize the element of deterrence. Lastly, building upon the principles established in Singh would establish a strong defense for individuals seeking to exercise their Community rights or freedoms. However, if these cross-border trips can be used to justify

residency rights for non-EU nationals, then the actual movement itself becomes meaningful and ineffective in EC law (Shuibhne, 2002).

Expanding past the conditions of movement and residence rights, the court's decision in Carpenter could lead to a conclusion on reverse discrimination in relation to individuals. The status of citizenship of the Union was introduced by the TEU, with the provisions outlined in Part II EC, Articles 17-22. Article 18 grants the rights of free movement. However, due to the ambiguity surrounding Article 18(1) EC, understanding citizenship is not clear or straightforward. The ECJ's interpretation of citizen provisions indicates an expansion in the scope of EC protection.

The European Court of Justice (ECJ) may be moving towards a more fundamental understanding of citizenship, suggesting a significant change in regulations. This shift challenges the legitimacy of maintaining the wholly internal rule (Shuibhne, 2002). Regarding EU citizenship, nationality is the main criterion - citizens must have the nationality of at least one Member State. Additionally, movement is also required. These two criteria raise concerns about EU citizenship. The judgments in Bickel & Franz10 and Wijsenbeek11 emphasize that the requirements for movement have become more relaxed compared to previous cases. Bickel & Franz and Wijsenbeek demonstrate the right to freely move within Member States' territory without putting strain on their resources.

The interpretation of the ECJ in Bickel and Franz determined that even minimal cross border activity could impact the receiving of services, thereby falling under the jurisdiction of EC law in terms of equal treatment. In the case of Wijsenbeek, the ECJ appeared to be more willing to harness the potential of Article 18 and simplified the requirement for movement

to its true essence. Essentially, crossing a border would trigger the application of EC law. This decision negated the previous requirement for economic activity or a connection between the individual and the host state Member State, as outlined in Kulzer.

The topic of residence rights discussed in Martinez Sala12 and Grzelczyk13 revolves around the wording found in the second part of Article 18(1). This pertains to the conditions for lawful residence in another Member State as outlined in the residence directive. These conditions include having adequate sickness insurance and sufficient resources to avoid burdening the social assistance system of the host Member State. It is evident that the ECK must consider their responsibility towards third party nationals, not only based on their status as workers but also their status as citizens. In Martinez Sala, the ECJ ruled that she, as an EU citizen, was entitled to equal treatment when it came to welfare and other benefits, just like nationals of the host state. Her lawful residence in Germany served as a starting point for applying equal treatment. The ECJ justified their argument in Martinez Sala by referring to Article 17(2) and the rights granted to individuals as Union citizens. This argument was further developed in Grzelczyk, where a French national studying in Belgium was denied social security payments.

The payment was denied to him due to insufficient resources, but the European Court of Justice (ECJ) reversed this ruling and granted Grzelczyk the payment because he is an EU citizen. The ECJ emphasized that Union citizenship is the primary status for nationals of Member States, ensuring equal legal treatment for individuals in similar situations regardless of nationality. While

the reasoning in the Grzelczyk case may be similar to the Martinez Sala case, it remains unclear how "sufficient resources" are defined and when their absence might lead to loss of residence rights. Shuibhne (2002) suggests that a special distinction has been made for EU student citizens, which may not align with the Court's previous emphasis on the fundamental status of all free movers. The Portuguese Government shares a legal opinion on citizenship, stating that limitations on freedom of movement only pertain to public policy, security, and health concerns. To provide further clarification and strengthen the right to reside in another Member State, the Commission has proposed a new directive.

The proposal aims to replace much of the existing secondary legislation. It suggests a comprehensive overhaul of the current legislative framework regarding freedom of movement for all citizens of the union and their families. The intention is to have a unified set of rules that are applicable to everyone, regardless of their reason for relocating to another Member State. The justification for this approach is based on the new legal and political environment created by citizenship of the union. The distinction between economic and non-economic activity is made, with non-economic activities, such as sickness insurance and sufficient resources, falling within specific boundaries. However, these restrictions only apply during the initial four years of residence in the host state. After this period, individuals can establish a new permanent right of residence that no longer requires meeting financial requirements. This move aims to ensure almost equal treatment with nationals.

However, the ECJ has taken a more complex approach to the residence rights of students, which are subject to special

rules. Initially, Article 7 states that the criteria of sickness insurance and sufficient resources do not apply to students. This is reiterated by Article 21(1). According to the comments of the court in Grzelczyk, students should not face discrimination based on their nationality in other areas, such as grants that are not maintenance grants or medium-term loans with special low interest rates for students. Although the Commission's proposals can be made into legal obligations, the residence directives of the Community still hold significant sway for Member States. The Advocate General believes that these residence directives limit the substance of Article 18 (1) EC, and that EU citizenship is far from complete.

The concept of movement and residence in another Member State has significantly developed. However, the meaning of citizenship remains unclear, as affirmed in Grzelczyk. This lack of clarity makes it difficult to understand the necessary criteria. The decisions in Kulzer, Singh, and Grzelczyk do not meet the requirement of movement. If movement is disregarded, reverse discrimination cannot be tolerated. Community harmonisation can be seen as a possible solution for addressing this issue.

According to Maduro (2002), it is contradictory to focus on an internal market while still giving importance to crossing national borders. The prioritization of 'human' freedoms over fundamental freedoms has complexified the issue of free movement. The significance of citizenship in Member States has become crucial, but the idea of some form of temporary or financially insignificant movement remains unchanged. While reverse discrimination is still present in the Community, cases like Carpenter and Grzelczyk, as well as the Commission's proposals, suggest that this discrimination may be reversed. Even though reverse discrimination persists within the

Community, it is more likely that individuals will not be denied citizenship rights if they have not exercised their right to movement.