Free movement of people, discrimination on the grounds of nationality, the legitimacy of an EU regulation - Essay Example

?EU Law The various incidents and experiences of Rodger and Jaunita involve EU law relative to the free movement of people, discrimination on the grounds of nationality, the legitimacy of an EU regulation or the application of it and the grounds upon which a reference can be made to the EU Court of justice. Each of these issues will be discussed in detail below. 1. The Free Movement of People within the EU Article 45 of the Consolidated version of the Treaty on the Functioning of the European Union (TFEU) covers the free movement of workers within the European Union.1 Essentially, the right to freedom of workers of EU nationals within member states shall be “secured within the European Union”.2 The freedom of movement of workers contained in Article 45 is thus exemplified and regulated by virtue of Regulation ECC 1612/68 (Replaced by EC Directive 2004/38) which confers upon EU workers the right to have family members reside with him/her when working in another member stae.3 Together this regulatory framework as applied the European Courts means that Freedom of movement of EU nationals intrinsically means that all obstacles to the freedom of movement must be eliminated.4 Thus, the EU law regulating the free movement of workers confers upon Rodger, an EU national to work freely within the EU and he should be secure in that right in that all obstacles to this right should be removed. It appears that the main obstacle to Rodger’s right to work freely within the EU is the immigration status of his wife Jaunita, who is a non-Member national (Columbian). Rodger who has had difficulties obtaining residential status for Jaunita in England has obtained an entry visa for her in the Netherlands where he has taken up work at a university there. Under the family reunification principle, Rodgers has the right to now return to England with his non-member state wife. It was held in C-370/90 Singh [1992] that a member state could not apply its national immigration laws to a case where an individual national of one member state exercised his or her right to the free movement of workers. If this were the case, EU nationals would not exercise the right to free movement of workers for fear that they could not return to the home state with their families.5 It therefore follows that while England could have rejected Rodger’s application for a residence permit for his foreign spouse initially, England cannot stop Rodger going to another member state to work, obtaining a residence permit for Jaunita and returning to England with the right to continue to have Jaunita residing with him in England.6 By exercising the right to the free movement of workers within the EU, Rodger is entitled to the protection conferred upon him under EU law and with that comes the right to the protection of his private and family life.7 At the end of the day, once a EU citizen exercises the right to the free movement of workers under Article 3(1) of Directive 2004/38, they will have the rights of residence and employment in the host member state continue in the home state upon return.8 It has also been held that once an EU national exercises the right to the free movement of workers within the EU, his/her spouse, including non-member state spouses have the right to work in the host state.9 Based on the authorities discussed, it is concluded that Rodger has the right to have Jaunita reside with him in the Netherlands. Jaunita also has the right to work in the Netherlands as a dependent on Rodger. Moreover, based on the family reunification principle, Jaunita and Rodger may return to England with Jaunita continuing to exercise the right to reside with Rodger and work, rights transferred from the host state to the home state under Community law relative to the free movement of workers. 2. Discrimination on the Grounds of Nationality Juanita and Rodger have the right to the protection accorded all individuals within the EU under the non-discrimination principle expressed in Article 21 of the Charter of Fundamental Rights of the European Union, 2000.10 The right to equal or non-discriminatory treatment is extended to all persons within the EU, including non-members and includes the right to provision of services in a manner that does not discriminate on individuals on the grounds of ethnic or national origins.11 Pursuant to Article 21 of the Charter of 2000, discriminatory treatment on the grounds of race, nationality or ethnic origin is absolutely prohibited.12 It therefore follows that the Dutch proprietor of the bar contravened Article 21 of the 2000 Charter by denying Juanita and Rodger the right to enter his bar. The Dutch proprietor was acting under the auspices of a decree by the Maastricht city mayor intended to curtail the drug trade by tourists Accordingly, Article 56 of TFEU applies as it establishes the non-discrimination in the supply and receipt of services.13 In this regard, services may only be denied pursuant to an objective that is non-discriminatory in nature, has a realistic objective, and is proportionate to the objective.14 The exclusion of non-Dutch nationals is discriminatory and thus from the outset is prohibited by Article 21 of the 2000 Charter and Article 56 of the TFEU. Secondly, it is an unrealistic method for obtaining an objective to curtail the abuse of drugs by tourist in cafes. Once individuals are in the Netherlands they are presumed to have the right to enjoy the rights conferred by all Dutch nationals under the principles of non-discrimination under the 2000 Charter, Article 56 of TFEU and the general law relative to the free movement of workers, people, goods and services within the EU. Therefore Rodger has a legitimate complaint against the mayor’s decreed and the proprietor’s application of it. 3. The Legitimacy of EU Regulation The main problem with the regulation impacting Rodger’s pay is that it is community law since it is contained in exchange rate formula directed by an EU Regulation. It appears that that EU Regulation applies a different formula for workers employed under the programme that Rodger is employed under than it does for other workers. Thus Rodger may challenge this reg ulation by applying for judicial review pursuant to Article 263 of TFEU.15 In order to apply for judicial review Roger is required to illustrate that an official decision or act was made by an administrator or administrative body that should be reviewed by virtue of judicial review. Secondly, Rodger must establish what the acts or decisions are that should be reviewed. Thirdly, Rodger must establish the grounds for review. Finally, Rodger must establish that as an interested person he has the standing to pursue judicial review.16 Under EU law and the administrative acts of the EU, Article 263 sets forth the parameters for identifying standing, grounds, decisions and grievances giving rise to an application for judicial review.17 The ECJ has the authority to “review the legality of legislative acts, or acts of the Council, of the Commission”.18 Any formal act conducted by the EU Council in terms of regulations, directives, legislation or decisions are reviewable by the ECJ. 19 There are essentially four grounds for judicial review under Article 263 of TFEU. They are, incompetence/lack of competence; failure to follow procedure; failure to follow rule of law; and an abuse of power.20 Based on the imbalanced application of the exchange formula and its reduction of Rodger’s pay, he has standing to challenge the legality of the Regulation. In particular Article 263 of TFEU provides that: Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.21 Since the Regulation directly impacts Rodger he has standing pursuant to Article 263 of TFEU. Thus Rodger has both grounds and standing for seeking judicial review. His grounds for seeking judicial review are obviously that the Regulation is inconsistent with the non-discrimination principles of the EU Charter 2000 which mandates that all workers, individuals in the EU are accorded equal treatment and protection of the law. Rodgers also has standing in that he is a person who is directly affected by the regulation setting out the exchange formula. However, Rodger must bring his application for judicial review within 3 months otherwise the application will be time-barred.22 4. Reference to the ECJ Article 267 of the TFEU provides the basis upon which the Eastminster University Grievance Tribunal or some other body may refer the issue of the exchange formula under the regulation as a preliminary question of Community law to the European Court of Justice (ECJ) before making its decision should Rodger seek judicial review before a national court.23 According to Chalmers et al, the usual method for making a reference begins with an application for judicial review before a national court. This is followed by the national court making a reference to the ECJ for determination of a matter of community law. Essentially, the national court seeks the ECJ’s response to a question relative to whether or not a specific act or measure by the EU is which “provides the legal authorisation for the national measure, is lawful or not.”24 The preliminary reference process is therefore the “principle procedural link” connecting national courts with the ECJ and thus comprising the breadth of the legal system of the EU.25 Ultimately, it is suggested that the preliminary reference process provides for the integration of all of the legal systems within the EU, since it makes provision for national courts to have a system in which EU laws are implemented and enforced consistently within the EU.26 There are two main reasons for the existence of Article 267 of the TFEU. Firstly, Article 267 of TFEU has as its goal the retention of judicial independence of the national courts. Secondly, Article 267 of the TFEU is intended to enable and promote consistency with respect to the interpretation and application of EU law among the EU member states.27 In fact it was ruled in Hoffman La Roche v Centrafarm that the preliminary reference process has as its primary goal, the prevention of a “body of national case law not in accord with the rules of Union law from coming into existence in any Member State.” 28 However, there are limitations placed on the liberal use of the reference system contained under Article 267. The duty to refer a preliminary question of EU law to the ECJ is only compulsory when the matter is before the court of final appeal and no further national remedies are available to the complainant.29 Thus it is entirely up to the national body or the tribunal whether or not to refer the issue to the ECJ. There is no compulsory duty to do so at this stage unless the matter is on its final leg of the appellate process or the matter is brought before the court of final appeal. There is one caveat established by the ECJ however in cases where the national court is of the opinion that a particular EU law is unlawful or not valid. In such a case, the court has a compulsory duty to refer the matter to the ECJ for a preliminary ruling regardless of whether or not national remedies have been exhausted. This caveat is necessary for safeguarding against inconsistency of EU law as one national court may rule a regulation or law valid, and another may rule that it is.30 Otherwise the doctrine of acte clair will apply. The doctrine of acte claire dictates that if an issue “is so obvious in its meaning to the domestic court, then no reference need be made”.31 Thus the tribunal or any other party hearing Rodger’s complaint for judicial review will likely refer the matter to the ECJ for a preliminary ruling since it involves a legislative measure on the part of the ECJ. This will happen regardless of whether or not the doctrine of acte claire can be invoked. Bibliography Alexander, W. “Free Movement of Non-EC Nationals: A Review of the Case-Law of the Court of Justice.” EJIL, (1992), Vol. 3: 53-64. Barnett, H. and Jago, R. Constitutional & Administrative Law, Oxon, UK: Routledge, 2011 Blutman, L. “The Cartesio Judgment: Empowering Lower Courts by the European Court of Justice.”(2010) Pravo I Politika, (2010), Vol. III(2): 95-106. Carrubba, C.J. Carrubba and Murrah, L. “Legal Integration and Use of the Preliminary Ruling Process in the European Union.” International Organization, (Spring 2005), Vol. 59(2): 399-418. Case 314/85 Firma Fotofrost v Hauptzollant Lubeck-Ost [1987] ECR 4199. Case 2/74 Jean Reyners v the Belgian State [1974] ECR 631. Case 60/81 IBM v Commission [1981] ECR 2639. Case C-188/92 TWD TExtiwerke Deggendorf v Germany [1994] ECR 1-833. Case No. 102/77 Hoffman La Roche v Centrafarm [1978] ECR 1139. Case C-99/00 Lyckeskog [2002] ECR I -4839. Chalmers, D; Davies, G. and Monti, G. European Union Law: Cased and Materials. Cambridge, UK: Cambridge University Press, 2010. Charter of Fundamental Rights of the European Union, 2000. C-60/00 Carpenter [2002] ECR 1-6279. C-370/90 Singh [1992] ECR 1-4265. Consolidated Version of the Treaty on the Functioning of the European Union. Official Journal of Journal of the European Union, C 83, Vol. 53, 30 March 2010. Council Directive 2000/43EC. Fairhurst, H. Law of the European Union. 8th Edition, Harlow, UK: Pearson-Longman, 2010. Guild, E. The Legal Elements of European Identity: EU Citizenship and Migration Law. The Hague, The Netherlands: Kluwer Law International, 2004. Judgment in Case C-434/09 Shirley McCarthy v Secretary of State for the Home Department 5/05/11 http://europeslog.weebly.com/6/post/2011/5/judgment-in-case-c-43409-shirley-mccarthy-v-secretary-of-state-for-the-home-department.html (Retrieved 19 February, 2012). Land Nordrhein Westfalen v Kari Uecker; Vera Jacque v Land NOrdrhein Westfalen, Joined Cases C-64/96 and C-65/96 ECR, 1997, 3171. Regulation ECC 1612/68 (Replaced by Directive 2004/38). Read More