Article 45 of the Charter of Fundamental Rights of the European Union - Essay Example

Free Movement Of Person in EU “Article 45 lists…….. This trend continued with the adoption of the Directive 2004/38 and will continue further now that the Lisbon Treaty is in force.” Assess the validity of the above statement. Is there any danger that the current liberal trend in favour of the free movement rights of the EU citizen can be reversed in the near future? Introduction Article 45 of the Charter of fundamental rights of the European Union confers the right of moving and residing freely within the areas of Member Stats for every citizen of the European Union. Incidentally, Article 45 of the Treaty on the Functioning of the European Union (TFEU) deals with free movement of workers this freedom of movement and residence is also available to the nationals of third countries as envisaged by the Treaty establishing European Community. It is the fundamental right of any one who is legally present in a State to move within the State and the right of residence in that State is but a logical extension of right of movement. The issue sought to be reviewed in this paper is whether the current liberal trend of right of freedom of movement can be reversed in the near future. Background The EU law on free movement of persons and allied rights which had been scattered on the various treaty provisions, secondary legislations was only recently consolidated into one Act. The European Court of Justice (ECJ) had always felt that rules regarding the free movement of persons in the EU had been narrowly drafted giving no room for the increasing demands of the enlarging Union. The ECJ in its judicial activism reflecting the EU’s objective of ensuring full mobility of persons has at times given decisions contradicting the treaty provisions. Originally, the ECJ had been concentrating on the narrow area of right of workers in regard to freedom of movement. After the introduction citizenship rights in the Union, the court is broadening its approach in safeguarding the rights of free movement of citizens thus resulting in land mark decisions relating to students’ rights, job-seekers and non-union family members. This culminated into the promulgation of Community directive 2004/381 which incorporated some of the important decisions of the ECJ in this area. To predict the trend of continuation of these rights, historical background and legal framework in this regards have to be reviewed. Legislative Framework Article 2 of the EC envisages that the community should promote economic activities, a high level of employment and social protection, enhancing the standard of living and quality of life and increasing the economic and social cooperation amongst the Member States.2 Article 3 reflects article 2 by creation of internal market by removing all the impediments to the free movement of goods, persons, services and capital between the Member States 3 Articles 39, 43 and 49 of the principal treaty are concerned with economic freedoms. Article 39 enables freedom of movement of workers within the Community and abolishes the possible discrimination based on nationality between workers of the Member States in the matters of employment, working conditions and wages. Article 43 prohibits restrictions on the freedom of self employment of the Union national in a host State. Article 49 deals with labour law removing restrictions on freedom to nationals of Member States within the community in providing services. However, since these provisions are very brief without any guidelines and they could not accommodate the evolving concept of mobility of persons, ECJ is forced to interpret the provisions in the broadest possible manner even to the extent of contradicting the treaty provisions while dealing with cases in Levin v. Staatssecretaris van Justitie, Steymann v. Staatsecretaris van Justitie and Luisi and Carbone v. Ministero del Tesoro4. In the case of Antonissem5, ECJ held that an individual can enter into a Member State and stay there for seeking job although it was contrary to the Article 39 that allows persons to enter and reside only for accepting employment offers actually made. ECJ rightly did this since without a right to enter into a State to seek a job, mobility of persons would be seriously affected. Secondary legislation It was realized that merely allowing workers to cross borders and set up residence in the host State without equal treatment along with nationals of the host State would not result in free movement. The EC solved this by introducing a number of secondary legislations envisaging equal treatment in the relative fields of social protection, financial assistance and education. Thus, Regulation 1612/68 6 as a primary source of labour law for the Community in its Article 1, provided that workers could take up employment in their host State on the same conditions applicable to nationals. Article 7 enabled equal treatment to migrant workers and nationals of the host State in the matters of social assistance and taxation. Most importantly, Title III facilitated the family members to reside with the worker in the host State , seek employment and pursue education 7 It however clearly mentioned that the rights of the family member were dependant on the rights of the worker and there was no such independent family members. Citizenship of the European Union. Maastricht Treaty of the EC 8 made EU citizenship formal through its articles 17, 18, and 19. Article 17 states that every person who is national of a Member State is citizen of the union. It is complementary to the national citizenship. The Union citizenship confers both rights and duties. Article 18 enables every citizen of the Union to move and reside freely within the territory of the Member States subject to limitations and conditions. Article 12 of the EC already prohibits discrimination on the basis of nationality. ECJ considered that articles 17 & 18 are subordinate to the other treaty provisions on free movement of workers and the right of establishment in Skanavi and Chyssanthakopoulos [1996]9. However, the ECJ has been emphasizing ever since on the citizenship by giving more and more weight to it. Thus, substantive rights under citizenship rules were examined in Sala 10 in which case a Spanish national was denied child-raising allowance from German authority even though she had been in Germany for 30 years and had worked on various periods. She was having residence permits until 1984 after which she had been having only a document showing extension of the permit though in 1993 she did not have a residence permit. The reason was that she was not a German citizen and had no residence permit. Sala challenged the denial as an infringement of her treaty rights while the State argued that since Sala was not a worker, she could not rely on the treaty. ECJ held that Sala could be considered as lawfully residing in Germany as she fell within the scope of ratione personae of the Treaty provisions. Article 17(2) of EC provides for the right not to be discriminated on the ground of nationality11. Craig and de Burca opine “[t]he ECJ applied the general principle of non-discrimination on grounds of nationality to Sala, and did so on the ground of citizenship. The ECJ was therefore willing to ‘explode the linkages’ which had previously been required in order for the principle of nondiscrimination to apply. It was not necessary for there to be involvement in an economic activity as a worker, or service provider, nor was it necessary to show preparation for a future economic activity as a student etc “12. Article 18 could have been invoked by the EJC but it did not do so until it was forced to address article 18 in Bickel and Franz 13 who were German and Austrian citizens and charged with criminal offences in Italy. They asked for use of German language in the proceedings which the ECJ allowed looking at their demand under “the right to receive services’ perspective and stated that the defendants were seeking their right to free movement as EU citizens as per article 18. In Grzelozyk14, a French national was working for three years for his living expenses while he was studying in Belgium. During the fourth year of his studies, he applied for a subsistence allowance but was denied for reasons of his not being a Belgium national and that Regulation 1612/68 applied to workers and not students. ECJ was asked to view this case under angle of citizenship instead of economic provisions angle. ECJ rightly found that since a Belgium national would be eligible for subsistence allowance under similar circumstances, denial of the same to a French national in the host State of Belgium amounted to discrimination prohibited under article 12 EC. ECJ further observed that “Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for.” 15 However, in the case of Brown16, opposite stand had been taken since at that time assistance to students for maintenance and training were outside the scope of Article 12. Thus the trend of decisions would point out that Union citizenship provision was becoming more relevant and powerful than economic rights of free movement considered to be the cornerstone of the Community law. The ECJ was trying to update the treaty drafted fifty years ago which became incapable of accommodating the growing demands of the Union. In the case of Baumbast17, the ECJ gave full effect to the concept of free movement provisions. Here, a Columbian was married to a German national living in U.K. with two daughters. The family had been granted residence permit for five years. Baumbast was engaged in economic activity first as a worker and then as self-employed person. In 1993, his business failed and he took job again with a German company in China and Lesotho. The couple had a house of their own in U.K.and their children went to school in U.K. They were not availing medical services in U.K. since their German company gave them medical facilities for which they travelled to Germany whenever necessary. In 1995, Mrs Baumbast’s application for indefinite leave to remain for herself and her daughters was refused and the adjudicator found that Article 12 of regulation 1612/68 (right of children to education) gave Mrs Baumbast indirect rights. In further appeal, the ECJ was asked to rule whether Mrs Baumbast was entitled to her direct right to reside in the U.K. under article 18. The ECJ held that even if the children did not live with their working father, the right of education remained and the primary carer of the children also had the right to live and reside with children regardless of nationality and factual circumstances. As to the direct right of Mrs Baumbast, it was held that the treaty did not envisage that citizens should be engaged in a professional or trade activity for enjoyment of rights of citizenship as provided for in Part Two of the EC Treaty. And Mrs Baumbast had the direct right under Article 18 18 The Directive 90/364’s provision that migrant national should not become an economic burden on the host State’s resources by obtaining medical insurance could not be invoked in this case as the family had been receiving medical assistance in Germany. Mrs Baumbast’s case demonstrated that the ECJ would uphold rights of Union citizens and their family members disregarding conflicting provisions or require the Member State to interpret with caution and proportionality of other rules that may be conflicting with the paramount objective. Directive 2004/38 The Regulation 1612/68 and other secondary legislation in this regard have now become part of Commission’s directive 2004/38. Article 1 states the conditions governing the right to move and reside freely in a Member State, right of Permanent Residence and Union citizens’ rights and their family members’ rights. The directive enables the union citizens and their family members to move freely and reside within the territory of a Member State. Meaning of the family members has been widened in the directive. Thus the Article 7 of the directive provides that union citizens and their family members can reside in a Member State (host State) in the capacities of workers, students, self-employed persons for more than three months or they should have sufficient resources to support themselves and their family members. In other words, all union citizens can enter any other Member State carrying an identity card or valid passport without any entry or exit visa for stay of less than three months. If they do not have travel documents, the host Member State must provide all assistance to obtain them. Every family member who has no nationality of a Member State can also have the same rights as the E.U. citizen whom he/she has accompanied though he/she can be asked to have short-stay visas which are equivalent to Residence Permits as per EC Regulation No 539/2001. For stay less than three months, all they require is valid identity document 19 Right of residence for more than six months. As seen above, the citizen who wishes to enter a Member State should be engaged in economic activity either by employment or self-employment or should have sufficient funds and health insurance in order to avoid being a burden on the social service of the host Member State during the course of their stay. Or they should be on vocational training as a student with sufficient resources and health insurance. Or he/she can be a family member of a Union citizen who falls into any of the above categories. Although resident permits are not required, a Member State may require them to register with a specified authority within a period of three months from the date of their arrival. Proof of registration will be given on production an identity card or valid passport. If the family members are not nationals of a Member State, they should obtain resident permit which will be valid for five years. In case of death of a Union citizen, his departure from the host State, divorce, annulment of marriage or termination of partnership, it does not affect the right of family members not being nationals of a Member State to continue residing subject to conditions 20 Right of permanent residence Union citizens automatically acquire permanent residence in a host Member State if they have lived for a five year period of uninterrupted legal residence if there are no expulsion proceedings pending or enforced against them. Similar rule applies to the family member who is not a national of a Member State and who has lived with the member for five years. They lose right of residence if they are absent for more than two successive years from the host Member State 21. Provisions common to right of residence and permanent residence. All union citizens whether on three months, permanent residence or their family members, should be treated by the host Member State equally though the Member State is not required to give them social security in the first three months of residence if they other than employed or self employed and members of their family. The Member State is also not required to give study assistance, vocational training, grants or loans before they acquire right of permanent residence 22 Derogations The three derogations to the right of residence which is the right of freedom of movement are public policy, public security or public health. Thus, Union citizens or members of their family can be expelled from the host Member State on the grounds pubic policy, public security or public health. Economic reason cannot be a ground for expulsion. The measures against the freedom of movement must be based on the proportionality principle and based on the personal conduct of the citizen concerned without having regard to any prior criminal convictions. The conduct must constitute a threat affecting the fundamental interests of the concerned host Member State. Merely because the documents have expired, one cannot be expelled. If the member has resided for more than ten years or is a minor, serious consideration involving public security for expulsion may be exercised. Unless it is emergent, at least one month time must be given to leave the host Member State. The expulsion orders cannot be lifelong. Expulsion orders can be reviewed after three year on application by a concerned citizen 23 Final provisions Member States have the right to refuse, terminate or withdraw any right conferred by the above directive 2004/38 in cases of abuse of rights, fraud such as marriage of convenience. However, the directive does not prevent a Member State to give more favourable treatment than envisaged in the directive 24 Articles 12 and 13 in fact reflect the judgement in Baumbast. Article 28 stipulates important restrictions against expulsions and deportations. The brief overview would show that ECJ considers that the right of free movement of persons is the primary objective of the Community that relegates other requirements which are in conflict so as to facilitate maximum mobility. Earlier, the court had been expanding the concept of free movement of labour only often interpreting contrary to the treaty provisions. After the introduction citizenship concept and provisions, the court has not hesitated to change its perspectives to uphold citizenship rights without strictly following economic provisions of the treaty. The trend until the promulgation of the directive 2004/38 definitely shows that ECJ has not had any reservation in enabling maximum mobility in terms of free movement sidelining the minor community legislation for the purpose of realising the overarching goal. Lisbon treaty The Lisbon Treaty came into force with effect from 1st December 2009. With this, the EC or European Communities become European Union. And instead of EC law, its law will be known as EU law. And the European Communities Treaty (EC Treaty) has been renamed as Treaty on the Functioning of the European union (TFEU). Common market has been renamed internal market and the European Court of Justice is renamed as the Court of Justice. In renumbering of the respective articles, articles 39, 43, 49 and 56 have been renumbered as articles 45, 49, 56 and 63 for free movement of workers, freedom of establishment, freedom to provide services and free movement of capital respectively. There has been literally no change in the Lisbon Treaty from the substantive law contained in the European Community Treaty 25 “The following, however, merit a brief note: The Lisbon Treaty provides a more secure legislative platform for the EU to legislate on areas such as Energy and Intellectual Property, potentially widening the scope of existing forms of legislative intervention. Lisbon also offers the potential for greater legislative involvement in the field of data protection (Art 16(2) TFEU) and in alternative methods of dispute resolution (Art 81(2) (g) TFEU). Fundamental rights are given an elevated legal status, but within a narrow straightjacket. The Charter of Fundamental Rights of the European Union (2000) will have equal legal status with the TFEU and Treaty on European Union (save for a number of express derogations, including the fact that the Charter will not create any new social or employment rights that could undermine existing UK Law). Furthermore, the Lisbon Treaty states that the Charter will not extend the competences of the EU. The relaxation of locus standi under Art 263 TFEU (ex Art 230 EC) for individuals seeking judicial review of certain types of regulatory acts made by the European Commission etc. The removal of the requirement to prove that the regulatory act was also of "individual concern" to the claimant could widen the number of challenges made to European Commission activities.”26 Yet the treaty is called the Reform Treaty perhaps due to more qualified majority voting conferred to the Council of Ministers and more involvement of European Parliament envisaged in the legislative process and elimination of the pillar system. The treaty is also the cause for the creation of Union’s human rights charter, the Charter of Fundamental Rights legally binding which was seen at the out set in this paper. The aim of the treaty was to complete the process of started by the Treaty of Amsterdam (1997) and Treaty of Nice (2001). Danish member of the European Parliament opposed the changes stating that it would centralise the EU and weaken the democratic process by taking away power from the national electorates. In fact, the change process which was started in 2001 took so long to be completed in 2009 due to rejection by the French and Dutch voters in 2005. The Treaty also envisages changes in the size of the Commission by 2014. It remains to be seen how far these changes will have any effect on the freedom of movement of persons within the territories of Member States. However, commentary of Ward and Ward 27 are worth noting. It says that European leaders have opted for a different approach for European Integration reflected by difference in approach from treaty or functional federalism to constitutional federalism. However failure to ratify by France and Netherlands resulted in return to old method of treaty federalism. Federalism has always been an important goal of European Integration. The founders had aspired for a United Europe but differed on whether it should be capitalist or socialist but agreed that integration could be achieved by some form of federalism. Although the same old approach of treaty federalism has however kept democracy, transparency and efficiency in tact, Lisbon treaty aims at deepening of federal relations within the Union. The European Council will be headed by a president for two and a half years instead of six months rotating presidency. This will pave way for long term planning. The new presidency can improve the domestic affairs of the Union while new High Representative for Foreign and Security Policy will be able to represent the union internationally. As stated above, the size of the commission will be reduced to 18 from 27 from 2014 meaning two thirds of the members will deliver a Commissioner for a five year period. The new Commission will become closer to the public by way of a “citizen initiative’ in which one million signatures collected allow a public interest organisation to petition the Commission to initiate any legislative proposal. The council will be the most important decision making body. The new double majority voting system from 2014 will enable passing of proposals carrying the support of 55 % of the Member States and 65 % of the EU population. The new system will be more proportional and gives more weight to the more popular Member States. The Council also can meet in public adding transparency to the decision making process of the Council which was not earlier available. Most importantly, in regard to the Charter of Fundamental Rights though not yet part of the Lisbon Treaty text, U.K and Poland have opted out of the Charter as it would involve significant alteration of British labour laws and the Polish government is not in agreement with some of the social provisions of the Charter. There are no symbols yet for EU such as flag, anthem and the motto. There is no reference to “an even closer union”. As such Lisbon Treaty is not a constitutional document. It just amends the existing legal order instead of creating a new one. It does not fundamentally differ from the Constitutional treaty 28 Sbragio29 States “It is quite possible however that the Constitution, once approved by Governments, will not come into force due to problems of ratification. If that should be the case, I would expect the confederal model to emerge even without the Constitution.” Thus, the Lisbon treaty displays both hope and despair towards furtherance of freedom of movement of persons within the Union with the possibility of more opt-outs for Charter of fundamental rights hanging in balance. The prospect of more populous Member States controlling the future policies gives hope however that there will be even more liberal approach to freedom of movement by persons within the Union since it is only the smaller States tending to display Protectionist character. On the other hand, they should realise that their citizens will be more benefited by being able to migrate to other Member States The free movement of persons being one of the pillars of the Union and a fundamental right of the EU citizens, it gains significance as already eight million EU citizens live and work in another Member State and every year millions of citizens travel for pleasure and business within the EU. This means more economic prosperity for the Member States. However, as on 10 December 2008, the transposition and application of the Directive 2004/38/EC of 29 April 2004 in the matter of freedom of movement of persons has not been encouraging as per the Commission’s report. The Commission’s guidelines to the States summarised below shows the commitment of the EU towards making the freedom of movement of persons within the EU even more intensive. “The Guidelines are part of a wider effort to ensure the effective implementation of Directive 2004/38. The Commission will continue discussing with the Member States at technical level through the experts group and is currently preparing bilateral meetings with all of the Member States to review the State of play of the transposition and application of the Directive. The Commission will make full use of the powers conferred on it by the Treaty. The Commission will also continue with its efforts to improve communication to the citizens. To this end, it is working on an updated version of the simplified guide for the citizen. ”30 Conclusion The forgoing account of the freedom of movement by persons within the Union only shows progressive implementation of the EU directives and the Court of Justice has been all along been tempering the resistances on the part of Member States on petty grounds. The Court of justice has been consistently handing out decisions within the broad frame work of the objective rather than being guided by the literal meaning of the secondary legislations. The Court has already shown that if the guidelines are in conflict, the main objective of the Union shall prevail. To recall the main objective of the union is “community should promote economic activities, a high level of employment and social protection, enhancing the standard of living and quality of life and increasing the economic and social cooperation amongst the Member States”31 Neither the Lisbon treaty nor the EC Directive 2004/38 indicates that there will be reversal of the liberal trend of the freedom of movement of the persons within the EU. The original aim of the founders envisioning a United Europe on the lines of United States of America should always remain the watch word to scuttle the slightest provocation for the reversal of the trend. It should be remembered that European Union has in reality has all along prevented a third World War ever since the end of the second World War. It was Schumann who proposed an Economic Community only to prevent another world war and to enable judicial use the economic resources of steel and coal by the founder Member States as a result. Britain who opposed at the beginning to become a member, had to wait for decades together to join the EC. Even now potential Member States are in the waiting to join the EU. Bibliography Books P. Craig and G. De Burca, 2003, EU Law: text, cases, materials, 3rd ed., Oxford University Press Ward Ann and Ward lee, 2009, The Ashgate research companion to federalism, Ashgate Publishing Ltd. Journals S. O’Leary, 1999, ‘Putting Flesh on the Bones of European Union Citizenship’ (1999) 24 ELRev. 68, 77-8. Cases Case 53/81 Levin v. Staatssecretaris van Justitie [1982] ECR 1035; Case 196/87 Steymann v. Staatsecretaris van Justitie [1988] ECR 6159 Cases 286/82 and 26/83 Luisi and Carbone v.Ministero del Tesoro [1984] ECR 377. Case C-292/89 R. v. Immigration Appeal Tribunal, ex parte Antonissen [1991] ECR I-745. Case C-85/96 Maria Martina Sala v Freistaat Beyern] 1998] ECR I-2691 Case C-274/96, In re Bickel and Franz, [1998] ECR I-7637. Others Article 2 of EC Treaty (Maastricht consolidated version) http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12002E002:EN:NOT Council Regulation (EEC) No 1612/68 of 15 October 1968 on the free movement of workers within the Community, OJ L 257 of 19.10.1968 retrieved Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 retrieved 5May 2010. Europa, Right of Union citizens and their family members to move and reside freely within the territory of the Member States, retrieved < http://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l33152_en.htm > 5 May 2010 Wood Adrian, The Lisbon Treaty: a guide for in-house lawyers, retrieved < http://www.out-law.com/page-10566>5 May 2010 Read More