Juanita is a Colombian citizen which is not a member state of European Union (EU). Consequently, she does not have any right on her own status under European Law (EU). However she is married to Roger who is a British citizen. As a British citizen Roger is also citizen of the European Union. Article 20(1) Treaty on the Functioning of the European Union (TFEU). Juanita can claim certain rights under EU law as Roger’s spouse. So, Roger’s status and rights need to be determined. As a European Union citizen Roger can move to any member states of EU and take up employment.
Article 45 of Treaty on the Functioning of the European Union (TFEU) provides, “freedom of movement for workers shall be secured within the Union”. In “Lawrie-Blum” the European Court has laid down three essential characteristics for a European citizen to be recognised as a worker, which are: S/he is providing some type of service, under the direction of another person and in return for remuneration. We can assume from the fact that he is working full time for the University. From the given fact we can say that Roger fulfils these criteria and therefore he is a worker.
Article 7(2) of the Directive 2004/38 provides that worker’s family members, irrespective of their nationality have the right to accompanying or join with the worker in the host country if they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State. Article 2(2) of the Directive 2004/38 provides that family member includes spouse.
In State of the Nederland v Reed it has been decided that ‘spouse’ refers to genuine marital relationships only. It is immaterial where or when the marriage was solemnised. Article 10 of the Directive 2004/38 provides that, on the application a non EU family member of a Union citizen, the host state has to provide a “Residence card of a family member of a Union citizen” within six months.
The family member has to provide a valid passport, a document attesting to the existence of a family relationship or of a registered partnership and the registration certificate or, in the absence of a registration system, any other proof of residence in the host Member State of the Union citizen whom they are accompanying or joining. Article 23 of the Directive 2004/38 provides that “Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self-employment there”. From the above mentioned treaty articles and cases it can be argued that Holland is under treaty obligation to provide Juanita “Residence card of a family member of a Union citizen” and allow her to take up employment.
Juanita and Roger have to show documentary evidence that Juanita would not be a burden on Holland’s social assistance system during her stay and she has comprehensive sickness insurance cover in Holland. Juanita and England visa: If Juanita apply for entry to England while Roger is working in England and has not moved to any other EU country to exercise his right of free movement than they cannot invoke EU law. This is a pure internal situation and England’s immigration law will be applicable.
However, if Roger move to Holland and bring Juanita there to join him and then on returning to England they can invoke Art 45 of TFEU. The purely internal rule mentioned above does not apply where a person has exercised his/her rights of free movement, by working on other member state and then ‘returning’ home. Article 35 of Directive 2004/38 provides “Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. ”
In Akrich European Court of Justice held that, “where the marriage between a national of a Member State and a national of a non-Member State is genuine, the fact that the spouses installed themselves in another Member State in order, on their return to the Member State of which the former is a national, to obtain the benefit of rights conferred by Community law is not relevant to an assessment of their legal situation by the competent authorities of the latter State” and “Where a national of a Member State married to a national of a non-Member State with whom she is living in another Member State returns to the Member.
State of which she is a national in order to work there as an employed person and, at the time of her return, her spouse does not enjoy the rights provided for in Article 10 of Regulation No 1612/68 because he has not resided lawfully on the territory of a Member State, the competent authorities of the first-mentioned Member State, in assessing the application by the spouse to enter and remain in that Member State, must none the less have regard to the right to respect for family life under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, provided that the marriage is genuine”. In Carpenter the court held that, if there is some cross-border element the ‘the internal rule’ would not apply. Answer 2:
Article 21(1) of TFEU provides that “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 the Treaties and by the measures adopted to give them effect”. Article 18 provides that, ‘Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited’. Article 22 of the Directive 2004/38 provides that, “The right of residence and the right of permanent residence shall cover the whole territory of the host Member State. Member States may impose territorial restrictions on the right of residence and the right of permanent residence only where the same restrictions apply to their own nationals”.
Host member state may restrict the freedom of movement on grounds of public policy, public security and public health. However article 27(2) of the Directive 2004/38 provide further guidance, “Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned…….. , The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted”.
In Orfanopoulos and Oliveri the European Court of Justice (ECJ) stated that ‘the use of drugs constitutes a danger for society such as to justify special measures against foreign nationals who contravene its laws on drugs, in order to maintain public order’. In Adoui and cornuaillethe ECJ made it clear that public policy measures could only be invoked in situation when the Member State concerned took ‘repressive measures’ or other ‘genuine and effective measures’ against its own nationals. This was reiterated in Jany and others. Member States’ discretion to impose effective measures has been narrowed even further in a latter case. In Grzelczyk (C-184/99) it was stated, ‘those in the same situation enjoy the same treatment in law irrespective of their nationality’.
From the fact we find that the City Mayor did not restrict locals’ using of drugs and cannabis but only the foreign national and therefore not justified. Roger’s entry to the cafe could only be restricted; if his conduct represents a genuine and sufficiently serious threat affecting a fundamental interest of the society as it is mentioned in art. 27(2) and general prevention is not accepted. From above mention articles and case laws we can arguably say that Roger can complain about the unlawfulness of the local law. Answer 3: Article 13(2) of Treaty on European Union states ‘Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them.
The institutions shall practice mutual sincere cooperation’. If any institution exceeds its power or acts unlawfully, the victim may bring an action for judicial review in the European Court of Justice (ECJ). To bring an action for judicial review there has to be a reviewable act, the party wants to bring the action has to have enough interest towards the issue, within the time limit and the grounds set out in the article 263 of TFEU. Under article 263 TFEU the ECJ could review an EU regulation which intended to produce legal effect vis-a’-vis third parties. In the fact the EU regulation was created to produce legal effect vis-a’-vis third parties (Roger).
Article 263 of TFEU entitle any natural or legal person to challenge an EU regulation where an act addressed to the applicant, an act addressed to the other person which is of direct and individual concern to the applicant and a regulatory act, which is of direct concern to the applicant, and which does not entail implementing measures. In plaumann & co the ECJ had laid out a test to ascertain whether the applicant was ‘individually concerned’ with the measure. These are; certain characteristics which are peculiar to them or by reason of circumstances in which he is differentiated from all other persons, closed class of applicants, as if the act were addressed to him. The exchange rate was adjusted yearly which affected his salary and that has differentiated from others. Thus, he is a closed class of applicant.
Article 263 para 6 TFEU provides that applicant should start the proceeding with in two months of the day on which the measure came to the knowledge of the applicant, as the case may be. Article 263 para 2 TFEU provide four possible grounds for a challenge of a Union act. Which are: lack of competence, infringement of an essential procedural requirement, infringement of the treaty or any rule of law relating to its application and misuse of powers. From the given fact we can assume that the regulation is not lacking of competence or infringed an essential procedural requirement. Arguably we can say that ‘infringement of the treaty or any rule of law relating to its application’ is an issue in this case.
What does it mean by ‘infringement of the treaty or any rule of law relating to its application’ is an EU institution before applying a measure should consider the general principal of fairness which is fundamental principles of Union law. EU institutions should also consider the effect of the rights set out in European Convention of Human Rights such as non discrimination, proportionality and legal expectation. The exchange rate was adjusted yearly and thus reduces Roger salary significantly which is not fair on him. That might discriminate him with others as well. Instead of adjusting the exchange rate yearly that could be done daily or more frequently which would be proportionate. Roger can bring an action of judicial review under article 263 TFEU for annulment of the formula fixed by EU regulation. Answer 4.
Article 267 of TFEU provide that, if there is a question about the interpretation of the treaty or validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the European Court of Justice to give a ruling thereon. The ECJ has interpreted the phrase ‘court or tribunal’ very widely. It is not necessary that body or organization have the name ‘court’ or ‘tribunal’. Sometime a body might have the name ‘Tribunal’ but it is not regarded as tribunal by Court of Justice.
In Dorsch Consult ECJ held that ‘In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 267 of TFEU, it is important to take account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent’. In the fact there is not enough information about the Eastminster University Grievance Tribunal. If the University Grievance Tribunal fulfills all of these criteria mentioned above than it would be considered as a tribunal by ECJ. Thus the Tribunal can refer the issue to ECJ. Bibliography: 1. Burbidge, P. , The Public Law & The Substantive Law Elements: Art. 263 & 267 TFEU, Worker’s right, European Union law, University of Westminster, 17/10/2011 – 05/12/2011 2. Fairhurst, J. , Law of the European Union, 8th edn (Essex: Pearson Education Limited, 2010) 3. Kaczorowska, A.
, European Union Law, 2nd edn (Oxon: Routledge, 2011) 4. Storey, T. and Turner, C. , Unlocking EU Law 3rd edn (London: Hodder Education, 2011) 5. http://eur-lex. europa. eu/LexUriServ/LexUriServ. do? uri=OJ:C:2008:115:0013:0045:EN:PDF accessed 18/02/2012 6. http://eur-lex. europa. eu/LexUriServ/LexUriServ. do? uri=OJ:L:2004:158:0077:0123:en:PDF accessed 18/02/2012 7. http://eur-lex. europa. eu/LexUriServ/LexUriServ. do? uri=OJ:C:2010:083:0047:0200:en:PDF accessed 18/02/2012 ——————————————– [ 1 ]. Article 20(1), Treaty on the Functioning of the European Union. [ 2 ]. Article 45, ibid 1 [ 3 ]. Lawrie-Blum (case 66/85)  ECR 2121 [ 4 ].
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 [ 5 ]. Ibid 4 [ 6 ]. Case (59/85)  ECR 1283 [ 7 ]. Case (C-127/08)  ECR I-6241 [ 8 ]. Ibid 4 [ 9 ]. Ibid 4 [ 10 ]. R v Saunders (Case 175/78)  ECR 1129, Mayeur (Case C-229/07)  ECR I-8D’Hoop v Office National de I’Emploi (case c-224/98)  ECR-6191 [ 11 ]. Singh (Case C-370/90)  ECR I-4265, D’Hoop v Office National de I’Emploi (case c-224/98)  ECR-6191 [ 12 ]. Ibid 4 [ 13 ]. Secretary of State for the Home Department v Akrich (Case C-109/01)  ECR I-9607 [ 14 ]. Carpenter v Secretary of State for the Home Department (Case C-60/00)  ECR I-6279 [ 15 ]. Ibid 4 [ 16 ].
Ibid 1 [ 17 ]. Ibid 4 [ 18 ]. Art. 27(1) ibid 4 [ 19 ]. Ibid 4 [ 20 ]. (Case C -482/01)  ECR I-5257 [ 21 ]. Adoui and Cornuaille v Belgium (Case 115/81)  ECR 1665 [ 22 ]. Jany and Others (Case C-268/99) ECR I-8615 [ 23 ]. Case C-100/01 (2002) ECR I-10981 [ 24 ]. (Grzelczyk V Centre Public d’Aide Sociale Case C-184/99)  ECR I-6193 [ 25 ]. Ibid 4 [ 26 ]. Art. 263 ibid 1 [ 27 ]. Ibid 1 [ 28 ]. Ibid 1 [ 29 ]. Parti Ecologistie v European Commission  ECR 1339 [ 30 ]. Ibid 1 [ 31 ]. Plaumann & Co v Commission  ECR 95 [ 32 ]. Ibid 1 [ 33 ]. Ibid 1 [ 34 ]. Ibid 1 [ 35 ]. Ibid 1 [ 36 ]. Case C-54/96  ECR I-4961.