DOCSLIB.ORG

Obstacles to the Right of Free Movement of EU Citizens

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Obstacles to the Right of Free Movement of EU Citizens DIRECTORATE GENERAL FOR INTERNAL POLICIES POLICY DEPARTMENT C: CITIZENS' RIGHTS AND CONSTITUTIONAL AFFAIRS CIVIL LIBERTIES, JUSTICE AND HOME AFFAIRS PETITIONS Obstacles to the right of free movement and residence for EU citizens and their families Comparative Analysis STUDY Abstract This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the LIBE and PETI Committees, presents a synthesis of in-depth studies in nine Member States in addition to broader EU and national research. Based on an analysis of selected provisions of Directive 2004/38/EC in Belgium, France, Germany, Ireland, Italy, Poland, Spain, Sweden and the UK, it identifies the main persisting barriers to free movement for EU citizens and their family members. The study also examines discriminatory restrictions to free movement, measures to counter abuse of rights and refusals of entry and residence rights, in addition to expulsions. It finds that, ten years after the deadline for transposition, there is general compliance, though some challenges remain. More systematic data collection, evaluation and guidance is thus required. The nine country studies are made available separately. PE 571.375 EN ABOUT THE PUBLICATION This research paper was requested by the European Parliament's Committee on Civil Liberties, Justice and Home Affairs and Committee on Petitions and was commissioned, supervised and published by the Policy Department for Citizens’ Rights and Constitutional Affairs. Policy departments provide independent expertise, both in-house and externally, to support European Parliament committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny over EU external and internal policies. To contact the Policy Department for Citizen's Rights and Constitutional Affairs or to subscribe to its newsletter, please write to: [email protected] Research Administrators Responsible Ottavio MARZOCCHI and Darren NEVILLE Policy Department C: Citizens' Rights and Constitutional Affairs European Parliament B-1047 Brussels E-mail: [email protected] PROJECT MANAGERS/AUTHORS Marta BALLESTEROS, Principal Legal Advisor, Milieu Ltd. Gillian KELLY, Legal Advisor, Milieu Ltd. Nathalie MEURENS, Legal Advisor, Milieu Ltd. Anna PEREGO, Legal Researcher, Milieu Ltd. SENIOR EXPERT Jo SHAW, Director of the Institute for Advanced Studies in the Humanities, University of Edinburgh NATIONAL EXPERTS Austria Elena FRIES-TERSCH Belgium Nathalie MEURENS and Jozefien VAN CAENEGHEM Bulgaria Zravka OUGRINOVA, Elena VARBANOVA and Aleksandar DORICH Cyprus Valentina DIMITRIOU Croatia Damir PETROVIC Czech Republic Hana SPANIKOVA Denmark Nina Joye SMITH Estonia Kristjan KALDUR Finland Laura ISOTALO and Johanna SKIPPARI France Jean-Christophe NICAISE CHATEAU, Vanessa LEIGH, Sophie MOREL and Isabell BÜSCHEL Germany Ferdinand WOLLENSCHLAGER Greece Magdalini-Emmanouela KOLLATOU Hungary Katalin CSÁSZÁR Ireland Gillian KELLY Italy Silvia BRUNELLO and Anna PEREGO Latvia Linda DE KEYSER Lithuania Monika RUDYTE Luxembourg Laura JACQUES and Benoit CAVEZ Malta Emma PSAILA Netherlands Nienke VAN DER BURGT and Sophie VANCAUWENBERGH Poland Paulina ROICKA Portugal Gonçalo MOREIRA Romania Mihaela MATEI Slovakia Zuzana LUKACOVA Slovenia Neža Kogovšek ŠALAMON Spain Roberto VALLINA HOSET and Carmen ROMAN VACA Sweden Ida Otken ERIKSSON and Hanna PETTERSSON United Kingdom Stephanie REYNOLDS LINGUISTIC VERSIONS Original: EN Manuscript completed in September 2016 © European Union, 2016 This document is available on the internet at: http://www.europarl.europa.eu/supporting-analyses DISCLAIMER The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the publisher is given prior notice and sent a copy. Policy Department C: Citizens' Rights and Constitutional Affairs __________________________________________________________________________________________ CONTENTS LIST OF ABBREVIATIONS 8 LIST OF TABLES 10 EXECUTIVE SUMMARY 11 1. INTRODUCTION 17 1.1. Legal Context 17 1.2. Application of Directive 2004/38 until 2008 19 1.3. Objective and methodology 21 2. OVERVIEW OF THE TRANSPOSITION OF KEY PROVISIONS OF THE DIRECTIVE IN MEMBER STATES 24 2.1. Context: Difficulties in Transposition 24 2.2. Overview of the transposition of key provisions of the Directive 27 2.2.1. Analysis based on selected provisions 27 2.2.2. Transposition challenges regarding the selected provisions 29 2.2.3. Additional transposition issues in the selected Member States 34 2.2.4. Topical transposition issues 37 2.3. CJEU interpretation of the Directive 48 3. ANALYSIS OF THE PRIMARY BARRIERS TO THE RIGHT TO ENTRY 51 3.1. EU Legislation 51 3.2. EU citizens 52 3.2.1. Obligation to report their presence in the Member State within an unreasonable period of time 53 3.2.2. Others 53 3.3. Family members of EU citizens 54 3.3.1. Accelerated procedure for entry visas refused 54 3.3.2. Excessive delays in obtaining a visa 55 3.3.3. Visas not issued free of charge 56 3.3.4. Refusal of visa on invalid grounds or without a justified reason 56 3.3.5. Excessive documentation required to obtain a visa 57 3.3.6. Scarce and confusing information regarding visas 58 3.3.7. Others 58 4 Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis __________________________________________________________________________________________ 4. ANALYSIS OF THE PRIMARY BARRIERS TO THE RIGHT TO RESIDENCE 59 4.1. EU Legislation 59 4.2. Recurring obstacles 61 4.2.1. Excessive delays 61 4.2.2. Excessive documentation requirements 62 4.2.3. Denial of the right of residence on invalid grounds 64 4.2.4. Lack of information concerning the right of residence 65 4.2.5. Restrictive interpretation of proof of health insurance 66 4.2.6. The situation of TCN family members of EU citizens 67 5. ANALYSIS OF THE PRIMARY BARRIERS RELATED TO SOCIAL SECURITY 68 5.1. Directive 2004/38 and other EU acts 68 5.2. Types of benefit 69 5.2.1. Old age pensions 69 5.2.2. Health care 71 5.2.3. Family benefits 72 5.2.4. Unemployment benefits 73 5.3. Main types of obstacles 73 5.3.1. Lack of coordination and communication between national authorities of different Member States 73 5.3.2. Social security contributions 75 5.3.3. Ignorance of the rules determining the applicable legislation 75 6. OTHER RECURRING BARRIERS 77 6.1. Accessing employment in other Member States 77 6.1.1. Non-recognition of professional qualifications from other Member States 77 6.2. Using vehicles in another Member State 78 6.2.1. Requirement to register vehicles in another Member State 78 6.2.2. Vehicle taxation for use of a foreign car 79 6.3. Double taxation 80 6.4. Administrative Services 80 6.4.1. Difficulties in obtaining information 81 6.4.2. Poor quality of the information available 81 5 Policy Department C: Citizens' Rights and Constitutional Affairs __________________________________________________________________________________________ 6.5. Additional requirements for EU citizens seeking to register to vote/stand as a candidate in European and municipal elections in another Member State 82 6.6. Issues with the recognition of diplomas from another Member State 83 7. REVIEW OF LEGAL OR PRACTICAL INSTANCES OF DISCRIMINATION 84 7.1. EU non-discrimination requirements in the context of free movement 85 7.2. Discrimination on grounds of nationality 87 7.2.1. Discrimination on grounds of nationality in accessing employment: 87 7.2.2. Discrimination on grounds of nationality in accessing education 91 7.2.3. Discrimination due to fees/price differences and discrimination in access to services 92 7.3. Discrimination on grounds of civil status/sexual orientation 94 7.3.1. Recognition of same-sex partnerships in Member States’ legislation 95 7.3.2. Recognition of same-sex couples in a civil partnership and free movement rights 96 7.3.3. Discrimination against same-sex couples in a civil partnership in exercising their free movement and residence rights 97 7.4. Discrimination on grounds of racial or ethnic origin 100 7.4.1. Discriminatory barriers for Roma in exercising their rights to residence 100 7.4.2. Roma inhibited from accessing employment in EU Member States 103 7.4.3. Discriminatory barriers for Roma in accessing education, housing, social assistance and services 104 8. COMPARATIVE OVERVIEW OF MEMBER STATES MEASURES TO COUNTER ABUSE OF RIGHTS 106 8.1. Overview of the Directive’s requirements on measures to counter abuse of rights 106 8.2. Comparative overview of national measures 109 8.2.1. Marriages of convenience 109 8.2.2. Fraud 111 8.2.3. Sanctions 112 8.2.4. Impact of these measures on the right to free movement and residence 112 8.2.5. Implementation of these measures in practice 113 9. OVERVIEW OF THE EXTENT OF THE REFUSAL OF ENTRY AND RESIDENCE EXPULSIONS IN MEMBER STATES 115 9.1. The Directive 115 6 Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis __________________________________________________________________________________________ 9.2. Overview of existing data 118 9.2.1. Refusal of entry 118 9.2.2. Refusal of residence rights 119 9.2.3. Expulsions 121 9.3. Main problems identified 122 9.3.1. Economic grounds 122 9.3.2. Public policy and public security 124 9.3.3. Increasing level of protection 126 9.3.4. Vagueness of grounds justifying refusals of entry, residence and expulsions 127 9.3.5. Safeguards 128 10. CONCLUSIONS 130 11. RECOMMENDATIONS 134 11.1. Recommendations for the European Parliament and the European Commission 134 11.1.1. Recommendation 1: Collect more systematic and comparable information and data at Member State level 134 11.1.2. Recommendation 2: Enforce full transposition 134 11.1.3. Recommendation 3: Clarify terms 135 11.1.4. Recommendation 4: Address citizens’ complaints as a priority and supplement SOLVIT with a hotline 137 11.1.5.
Load more

Recommended publications
  • The European Court of Justice and the Scope of Workers' Freedom of Movement in the European Economic Community
    American University International Law Review Volume 6 | Issue 2 Article 2 1991 The urE opean Court of Justice and the Scope of Workers' Freedom of Movement in the European Economic Community David Stoelting Follow this and additional works at: http://digitalcommons.wcl.american.edu/auilr Part of the International Law Commons Recommended Citation Stoelting, David. "The urE opean Court of Justice and the Scope of Workers' Freedom of Movement in the European Economic Community." American University International Law Review 6, no. 2 (1991): 179-201. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. THE EUROPEAN COURT OF JUSTICE AND THE SCOPE OF WORKERS' FREEDOM OF MOVEMENT IN THE EUROPEAN ECONOMIC COMMUNITY David Stoelting* INTRODUCTION Since the adoption of the Treaty of Rome1 in 1957, the European Court of Justice has played an essential role in the drive toward Euro- pean unity. The European Court of Justice is the most successful of the European Economic Community's (EEC) institutions2 in implementing the Treaty's goal of economic integration.3 As the countries of the EEC4 work towards political and monetary union," the primary in- * Law Clerk for Judge Nathaniel R. Jones of the United States Court of Appeals for the Sixth Circuit. 1. Treaty Establishing the European Economic Community, Mar.
    [Show full text]
  • Bulgaria 2000
    Welcome to Bulgaria 2000 ISTANBUL, Turkey May, 1999 By Whitney Mason With his stylishly coifed hair and well-cut clothes, Giorgi Kuzmov, known as "George" to his many foreign friends, might not look like someone interested in international affairs. My old friend Frederic, working at the French Embassy in Sofia as the attachd audiovisuel, had introduced me to George because, as one of Bulgaria's top TV executives, he knew a lot of Bulgarians who spoke English and most of them happened to be beautiful young women. But one of the joys of the Balkans, for a reporter, is that here politics is not a subject of interest only to specialists but a universally fascinating aspect of the drama of everyday life. And so it was perfectly natural that night, as Giorgi and I drove through Sofia's pot-holed streets in his Dodge Voyager van, that he brought up the sub- ject of Kosovo, where NATO would begin air strikes a few weeks later. Wasn't it hypocritical of the U.S. to moralize about Kosovo, Giorgi asked rhetorically, while never raising any opposition to Turkey's oppression of the Kurds? Since then, I have heard that question repeated many times; I have never had a re- sponse to offer. A cool acid jazz tune by US3 was playing loudly when we walked into E1 Cabana. Giorgi introduced me to three beautiful friends and ordered gin and tonics all around before segueing seamlessly back to Kosovo. "What would Americans say if blacks in New Orleans (where he'd just spent ten days) de- clared that they wanted independence?" Giorgi asked.
    [Show full text]
  • The Law of the European Union
    levasseur EU2e p1 00 fmt 7/9/13 8:58 AM Page iii The Law of the European Union second edition Alain A. Levasseur Hermann Moyse Senior Professor of Law, Director, European Studies Louisiana State University Paul M. Hebert Law Center Richard F. Scott Distinguished Professor of International Law, Thomas Jefferson School of Law Arnaud Raynouard Professor, Université Paris-Dauphine Christine A. Corcos Associate Professor of Law and an Associate Professor of Women’s and Gender Studies, Louisiana State University Law Center Joël Monéger Professor of Law, Université Paris-Dauphine Jean-Claude Piris Former Legal Counsel, Director General, European Union Legal Service Carolina Academic Press Durham, North Carolina levasseur EU2e p1 00 fmt 7/9/13 8:58 AM Page iv Copyright © 2013 Carolina Academic Press All Rights Reserved ISBN 978-1-59460-899-5 LCCN 2012950550 Carolina Academic Press 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www.cap-press.com Printed in the United States of America levasseur EU2e p1 00 fmt 7/9/13 8:58 AM Page v Dedications To my beloved petits-enfants: Francis, Gabriel, John Paul, Bridget, Peter Daniel, Libby Kate, Mary Benton, and Helen Quinn – Alain Levasseur For my wife Lorraine, our children Karen, Jeffrey and Holly, and our grandchildren Chelsea, Michael and Paul, with love and admiration – Richard Scott For Cullen and Avery – Christine Corcos levasseur EU2e p1 00 fmt 7/9/13 8:58 AM Page vii Summary of Contents Foreword lxvii Acknowledgements lxx Table of Cases lxv Table of European
    [Show full text]
  • Perju Ages of European
    Draft for NYU Colloquium (October 2015). Do not cite or circulate without permission. THE AGES OF EUROPEAN LAW Vlad Perju∗ Prologue: Habermas on the Transnationalization of Democracy European integration poses fundamental challenges to political and legal thought. Over the past two decades, Jürgen Habermas has been engaged in a bold and influential project of articulating the normative foundations of political integration in Europe. Habermas’s starting point is that the pacification of European states created the preconditions for political decision-making beyond the national level. Once state power was tamed, and states accordingly “civilized”, national governments could pursue common policies in response to the pressures of economic globalization. The problem, however, is that the preconditions for political life at the supranational level have not been properly realized. Habermas sees a growing disconnect between the demands of integrated markets, which form one part of the larger, systemic integration of world society, and lingering political fragmentation in Europe. Perhaps the diagnosis of political fragmentation seems surprising given that the member states of the European Union have over the decades consented to ever-greater transfers of powers to the supranational political institutions. But the reality is more complex. The political crises of the past ∗ Associate Professor, Boston College Law School and Director, Clough Center for the Study of Constitutional Democracy. 1 decade, and most notably the recent “crucifixion”1 of Greece in the recent debt negotiations, reveals a state of affairs where the European Council – that “complete anomaly”, as Habermas calls it2 – remains central to the EU’s political life. This development is both unfortunate and unnecessary.
    [Show full text]
  • Kinship Terminology in Karashevo (Banat, Romania) // Slověne
    Patterns and Паттерны и Mechanisms of механизмы Lexical Changes in the лексических Languages of Symbiotic изменений в языках Communities: симбиотических Kinship Terminology сообществ: термины in Karashevo родства в Карашево (Banat, Romania) (Банат, Румыния) Daria V. Konior Дарья Владимировна Конёр The Institute for Linguistic Studies Институт лингвистических исследований of the Russian Academy of Sciences Российской академии наук St. Petersburg, Russia С.-Петербург, Россия Abstract This article deals with the ethnolinguistic situation in one of the most archaic areas of language and cultural contact between South Slavic and Eastern Ro- mance populations—the Karashevo microregion in Banat, Romania. For the fi rst time, the lexical-semantic group of kinship terms in the Krashovani dia- lects from the Slavic-speaking village of Carașova and the Romanian-speak- ing village of Iabalcea is being analysed in a comparative perspective as two Цитирование: Konior D. V. Patterns and Mechanisms of Lexical Changes in the Languages of Symbiotic Communities: Kinship Terminology in Karashevo (Banat, Romania) // Slověne. 2020. Vol. 9, № 1. C. 381–411. Citation: Konior D. V. (2019) Patterns and Mechanisms of Lexical Changes in the Languages of Symbiotic Communities: Kinship Terminology in Karashevo (Banat, Romania). Slověne, Vol. 9, № 1, p. 381–411. DOI: 10.31168/2305-6754.2020.9.1.14 This is an open access article distributed under the Creative Commons Attribution-NoDerivatives 4.0 International 2020 №1 Slověne Patterns and Mechanisms of Lexical Changes in the Languages of Symbiotic Communities: 382 | Kinship Terminology in Karashevo (Banat, Romania) separate linguistic codes which “serve” the same local culture. The main goal of the research was to investigate patterns of borrowing mechanisms which could link lexical (sub)systems of spiritual culture under the conditions of in- timate language contact in symbiotic communities.
    [Show full text]
  • The Rise of Bulgarian Nationalism and Russia's Influence Upon It
    University of Louisville ThinkIR: The University of Louisville's Institutional Repository Electronic Theses and Dissertations 5-2014 The rise of Bulgarian nationalism and Russia's influence upon it. Lin Wenshuang University of Louisville Follow this and additional works at: https://ir.library.louisville.edu/etd Part of the Arts and Humanities Commons Recommended Citation Wenshuang, Lin, "The rise of Bulgarian nationalism and Russia's influence upon it." (2014). Electronic Theses and Dissertations. Paper 1548. https://doi.org/10.18297/etd/1548 This Doctoral Dissertation is brought to you for free and open access by ThinkIR: The University of Louisville's Institutional Repository. It has been accepted for inclusion in Electronic Theses and Dissertations by an authorized administrator of ThinkIR: The University of Louisville's Institutional Repository. This title appears here courtesy of the author, who has retained all other copyrights. For more information, please contact [email protected]. THE RISE OF BULGARIAN NATIONALISM AND RUSSIA‘S INFLUENCE UPON IT by Lin Wenshuang B. A., Beijing Foreign Studies University, China, 1997 M. A., Beijing Foreign Studies University, China, 2002 A Dissertation Submitted to the Faculty of the College of Arts and Sciences of the University of Louisville in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy Department of Humanities University of Louisville Louisville, Kentucky May 2014 Copyright © 2014 by Lin Wenshuang All Rights Reserved THE RISE OF BULGARIAN NATIONALISM AND RUSSIA‘S INFLUENCE UPON IT by Lin Wenshuang B. A., Beijing Foreign Studies University, China, 1997 M. A., Beijing Foreign Studies University, China, 2002 A Dissertation Approved on April 1, 2014 By the following Dissertation Committee __________________________________ Prof.
    [Show full text]
  • Public Policy As an Exception to Free Movement Within the Internal Market and the European Judicial Area: a Comparison
    CYELP 10 [2014] 189-213 189 PUBLIC POLICY AS AN EXCEPTION TO FREE MOVEMENT WITHIN THE INTERNAL MARKET AND THE EUROPEAN JUDICIAL AREA: A COMPARISON Tena Hoško* Summary: This article compares the public policy exception to free movement of goods, services, persons and capital (the four freedoms) with the public policy exception to free movement of judgments (the fifth freedom). A comparison is made on the basis of the following elements: types of public policy (domestic, international, purely inter- national; European; substantive and procedural), restrictiveness of interpretation, variability, content, nature and the addressees of pro- tection. The conclusion is that there is only one concept of public policy that varies from time to time and from Member State to Member State, although there are some differences in the operation of the uses in the two areas of public policy. 1. Introduction The European Union (hereinafter: EU) is based on the free movement of goods, services, persons, and capital,1 known as the four freedoms. In order to secure the impeccable functioning of the internal market, a ‘fifth freedom’2 has emerged in the Brussels Convention3 and the follow- ing Brussels I Regulation4 – the free movement of judgments.5 Although all of these freedoms are of utmost importance for the EU, there are some restrictions to them. Restrictions are necessary since there are still spe- cificities of each Member State’s legal order that need to be safeguarded, notwithstanding the well-functioning internal market.6 One of these is * Faculty of Law, University of Zagreb. The author is grateful to Dr Justin Borg-Barthet for his comments on an earlier draft of the paper.
    [Show full text]
  • National, Arrived at Gatwick Airport in Ters of Which Are at Saint
    OPINION OF MR MAYRAS — CASE 41/74 OPINION OF MR ADVOCATE-GENERAL MAYRAS DELIVERED ON 13 NOVEMBER 1974 1 Mr President, Miss Yvonne Van Duyn, a Dutch national, arrived at Gatwick Airport in Members of the Court, England on 9 May 1973. She declared that her purpose in coming to the United Introduction Kingdom was to take up an offer of employment as a secretary, made to her This preliminary reference is of special a few days earlier by the Church of interest for two reasons. Scientology of California, the headquar­ It is the first time that a court of the ters of which are at Saint Hill Manor, East Grinstead, in the County of Sussex. United Kingdom, the High Court of Justice in London, has made a reference After an interview with the immigration to the Court of Justice for interpretation authorities, she was returned to the of Community rules under Article 177 of Netherlands that same day. the Treaty of Rome. The ground of refusal of leave to enter This is also the first time that the Court the United Kingdom is stated in the has been called upon to decide the document handed to her by the important problem raised by the immigration officer. It reads: limitations, expressed in Article 48 of the 'You have asked for leave to enter the Treaty, to the principle of freedom of United Kingdom in order to take movement for workers within the employment with the Church of Community imposed by considerations Scientology but the Secretary of State of public policy and public security.
    [Show full text]
  • REPORT on the Situation of Roma Migrants in France
    2009 2010 REPORT On the Situation of Roma Migrants in France © David Delaporte [slogans on demonstrators' placards in photograph] Stop transitional measures The right to work for ALL Europeans Romeurope National Human Rights Collective September 2010 Collectif National Droits de l’Homme Romeurope (Romeurope National Human Rights Collective) ABCR (Association Biterroise Contre le Racisme) (The Béziers Association Against Racism) – ALPIL (Action pour l’insertion sociale par le logement) (Action for Social Integration Through Housing) – AMPIL (Action Méditerranéenne Pour l’Insertion sociale par le Logement) (Mediterranean Action for Social Integration Through Housing) – ASAV (Association pour l’accueil des voyageurs) (Association to Welcome Travellers) – ASET (Aide à la scolarisation des enfants tsiganes) (Educational Assistance for Gypsy Children) – ASEFRR(Association de Solidarité en Essonne avec Les familles roumaines et rroms) (Essonne Association for Solidarity with Romanian and Rroma Families) – Association Solidarité Roms de Saint-Etienne (Roma Solidarity Association of Saint-Etienne) – CAM (Comité d‘Aide Médicale) (Medical Assistance Committee) – CCFD (Comité Catholique contre la Faim et pour le Développement) (Catholic Committee against Hunger and for Development) – CIMADE (Comité intermouvements auprès des évacués) (Intermovement Committee for Evacuees) – CLASSES (Collectif Lyonnais pour l’Accès à la Scolarisation et le Soutien des Enfants - des Squat) (Lyonnais Collective for School Enrolment Access and Support for Children of
    [Show full text]
  • Direct Effect of Directives - an Instrument for Uniformity Or the Cause of Incoherence?
    J U R I D I C U M Direct Effect of Directives - An Instrument for Uniformity or the Cause of Incoherence? Josefin Johansson & Lisa Lindström VT 2017 RV600G Rättsvetenskaplig kandidatkurs med examensarbete (C-uppsats), 15 högskolepoäng Examinatorer: Annina H Persson & Eleonor Kristoffersson Handledare: Senem Eken Abstract Over 40 years have past since the Court of Justice (the Court) established direct effect (of directives). Direct effect enables individuals to invoke – rely on a European Union (EU) directive provision(s) before a national court, presupposed that the directive has direct effect and the national rule(s) is in conflict with this directive. However, the Court has limited direct effect to vertical situations, meaning that an individual can invoke a directive against a Member State (vertical situations), but directives cannot be invoked between two individuals (horizontal situations). The Court has relied on different legal reasoning to exclude horizontal direct effect. However, despite the rule of no-horizontal direct effect, the Court has adopted a broad definition of state and has introduced the doctrines of incidental direct effect and consistent interpretation. Furthermore, the concept of state liability has been established as a form of remedy. One argument for these developments is to maintain (full) effectiveness of EU law. Consequently, the evolutions of the Court is a controversial issue, which has been subject to discussions in the doctrine and is facing criticism/challenges due to the emerged tension between the rule of no-horizontal direct effect and the doctrines created by the Court that impinge this rule. The purpose of the thesis is to examine whether the ‘exceptions’ restraining on the rule of no-horizontal direct effect in fact amounts to horizontal direct effect and consequently affects state sovereignty adversely.
    [Show full text]
  • The Free Movement of Capital and Financial Services: an Exposition?
    The Free Movement of Capital and Financial Services The Free Movement of Capital and Financial Services: An Exposition? By Graeme Baber The Free Movement of Capital and Financial Services: An Exposition?, by Graeme Baber This book first published 2014 Cambridge Scholars Publishing 12 Back Chapman Street, Newcastle upon Tyne, NE6 2XX, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2014 by Graeme Baber All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-4438-6359-9, ISBN (13): 978-1-4438-6359-9 To my family, especially my mother, for loyalty and support in the preparation for and writing of this work. [I]n examining the cross-border out-shopping phenomenon, we postulate that those consumers who engage in international (cross-border) out- shopping exhibit low levels of economic patriotism. —Dmitrovic, T. and Vida, I. (2007), ‘An examination of cross-border shopping behaviour in South-East Europe’, European Journal of Marketing, 41(3/4), 382-395, 386. CONTENTS List of Figures............................................................................................. ix Preface ........................................................................................................ xi Acknowledgements .................................................................................
    [Show full text]
  • THE PRINCIPLE of LEGAL CERTAINTY in EC LAW Law and Philosophy Library
    THE PRINCIPLE OF LEGAL CERTAINTY IN EC LAW Law and Philosophy Library VOLUME 64 Managing Editors FRANCISCO J. LAPORTA, Department of Law, Autonomous University of Madrid, Spain ALEKSANDER PECZENIK, Department of Law, University of Lund, Sweden FREDERICK SCHAUER, John F. Kennedy School of Government, Harvard University, Cambridge, Mass., U.S.A. Former Managing Editors AULIS AARNIO, MICHEAL D. BAYLESt, CONRAD D. JOHNSONt, ALAN MABE Editorial Advisory Board AULIS AARNIO, Research Institute for Social Sciences, University of Tampere, Finland ZENON BANKOWSKI, Centre for Criminology and the Social and Philosophical Study of Law, University of Edinburgh PAOLO COMANDUCCI, University of Genoa, Italy ERNESTO GARZON VALDES, Institut fur Politikwissenschaft, Johannes Gutenberg Universitiit Mainz JOHN KLEINIG, Department of Law, Police Science and Criminal Justice Administration, John Jay College of Criminal Justice, City University of New York NEIL MacCORMICK, European Parliament, Brussels, Belgium WOJCIECH SADURSKI, European University Institute, Department of Law, Florence, Italy ROBERT S. SUMMERS, School of Law, Cornell University CARL WELLMAN, Department of Philosophy, Washington University THE PRINCIPLE OF LEGAL CERTAINTY IN EC LAW by JUHA RAITIO SPRINGER-SCIENCE+BUSINESS MEDIA, B.V. A C.I.P Catalogue record for this book is available from the Library of Congress. ISBN 978-90-481-6264-2 ISBN 978-94-017-0353-6 (eBook) DOI 10.1007/978-94-017-0353-6 Printed on acid1ree paper All Rights Reserved © 2003 Springer Science+Business Media Dordrecht Originally published by Kluwer Academic Publishers in 2003 Softcover reprint ofthe hardcover Ist edition 2003 No part of this publication may be reproduced Of utilized in any form or by any means, electronic or mechanical, inc1uding photocopying, recording or by any information storage and retrieval system, without written permission from the copyright owner.
    [Show full text]