Living in another Member State: barriers to EU citizens' full enjoyment of their rights Germany 2017 Contractor: German Institute for Human Rights (Deutsches Institut für Menschenrechte) Author: Dr. Maren Burkhardt Reviewed by: Dr. Petra Follmar-Otto DISCLAIMER: This document was commissioned under contract as background material for comparative analysis by the European Union Agency for Fundamental Rights (FRA) for the project ‘Living in another Member State: barriers to EU citizens' full enjoyment of their rights‘. The information and views contained in the document do not necessarily reflect the views or the official position of the FRA. The document is made publicly available for transparency and information purposes only and does not constitute legal advice or legal opinion. 1 Contents 1. Table 1 – Case law ....................................................................... 3 2. Table 2 – Overview ..................................................................... 56 2 1. Table 1 – Case law X1) non-discrimination on grounds of nationality ☐2) freedom of movement and residence 1. - linked to which article of Directive 2004/38 Subject matter ☐ 3) voting rights concerned ☐ 4) diplomatic protection ☐ 5) the right to petition Decision date 17 February 2014 Deciding body Bundesverfassungsgericht (BVerfG) (in original language) Deciding body Federal Constitutional Court (in English) Case number 2 BvQ 4/14 (also European ECLI:DE:BVerfG:2014:qk20140217.2bvq000414 Case Law Identifier (ECLI) where applicable) Parties Applicant (Italian national) Frankfurt am Main Higher Regional Court (Oberlandesgericht, OLG) 3 Web link to the decision (if www.bverfg.de/e/qk20140217_2bvq000414.html available) Legal basis in Articles 3 (1) and 16 (2) of the Basic Law of the Federal Republic of Germany (Grundgesetz, GG). national law of the rights under dispute Key facts of US authorities requested the extradition of the applicant, an Italian national, for the prosecution of offences the case (max. under Title 15 of the United States Code. This was based on an arrest warrant and a prosecution of a Grand 500 chars) Jury of August 2010. The applicant was arrested while entering Germany at Frankfurt am Main airport in 2013.The OLG Frankfurt ordered provisional arrest pending extradition on 24 June 2013. After having received the formal extradition request, the OLG Frankfurt declared the applicant’s extradition to be permissible on 22 January 2014. The applicant applied for a preliminary injunction before the BVerfG on 6 February 2014 to prevent extradition. The court defeated the motion on 17 February 2014. Main reasoning The applicant argued that Article 16 (2) of the GG was applicable not only to German but also to EU nationals, / since a different interpretation would infringe on Article 18 of the Treaty on the Functioning of the European argumentation Union (TFEU). (max. 500 The court argued that the decision of the OLG Frankfurt to extradite an Italian national did not constitute chars) inequality in the sense of Article 3 of the GG. It was constitutional that Article 16 (2) of the GG only provided for protection against extradition to foreign countries for German nationals. This also constituted no violation of Article 18 of the TFEU because extraditions to third countries did not fall within the scope of application of the Law of the European Union. Therefore, there was also no need to request the Court of Justice of the European Union (CJEU) to give a preliminary ruling. Key issues The Federal Constitutional Court has, in this decision, confirmed a former decision (see BVerfG, Decision (concepts, 2BvR1347/08 of 28 July 2008) and has therefore reaffirmed that the protection of Article 16 (2) of the GG interpretations against extradition to foreign countries applies only to German nationals. 4 ) clarified by the case (max. 500 chars) Results (e.g. The applicant was extradited to the USA and sentenced to a two year prison sentence. After having served this sanctions) and sentence, he applied for compensation to the District Court of Berlin (Landgericht, LG). The LG Berlin key suspended the procedure with its Decision of 18 March 2016 and requested the CJEU to give a preliminary consequences ruling. The LG argued that Article 16 (2) of the GG was applicable to non-German nationals. The case is still or implications pending. The decision of the BVerfG has thereby been called into question by a lower court. Both the decision of the case of the BVerfG and the LG Berlin have, however, issued their decisions prior to the decision of the CJEU in the (max. 500 case Petruhhin v. Latvijas Republikas Generalprokuratura of 6 September 2016 chars) Key quotations „Die Annahme des Oberlandesgerichts, das Deutschenprivileg aus Art. 16 Abs.2 Satz 1 GG müsse nicht auf in original Unionsbürger angewandt werden, ist verfassungsrechtlich unbedenklich. Das Bundesverfassungsgericht hat language and bereits entschieden, dass der Auslieferungsverkehr mit Drittstaaten keine Materie ist, die in den sachlichen translated into Anwendungsbereich des Unionsrechts fällt, und das europarechtliche Diskriminierungsverbot daher in diesem English with Zusammenhang nicht zu berücksichtigen ist“(See BVerfG, Decision 2 BvQ 4/14 of 17 February 2017, para. 22). reference details (max. Translation: 500 chars) The OLG’s assumption that the privilege for German nationals in Article 16 (2) of the GG is not to be applied to EU citizens is constitutional. The Constitutional Court has already decided previously that extraditions to third countries do not fall within the scope of application of the Law of the European Union. The European right to non-discrimination on grounds of nationality is therefore not to be considered in this context. 5 Has the No. deciding body referred to the Charter of Fundamental Rights? If yes, to which specific article. X 1) non-discrimination on grounds of nationality ☐ 2) freedom of movement and residence 2. - linked to which article of Directive 2004/38 Subject matter ☐ 3) voting rights concerned ☐ 4) diplomatic protection ☐ 5) the right to petition Decision date 16 November 2016 Deciding body Verwaltungsgerichtshof Hessen (VGH) (in original language) Deciding body Higher Administrative Court of Hessen (in English) 6 Case number 9 A 242/15 (also European Case Law Identifier (ECLI) where applicable) Parties Bulgarian national Local aliens’ registration office (Ausländerbehörde) Web link to the decision (if www.lareda.hessenrecht.hessen.de/lexsoft/default/hessenrecht_lareda.html#docid:7731309 available) Legal basis in Sections 28, 30 and 44 of the German Act on the Residence, Economic Activity and Integration of Foreigners in national law of the Federal Territory Residence Act (Aufenthaltsgesetz, AufenthG), and Sections 2, 4a, 5 and 11 of the German the rights Act on the General Freedom of Movement for EU Citizens (Freizügigkeitsgesetz/EU, FreizügG/EU) (for the old under dispute version of the code covering the period until 23 June 2011, see www.buzer.de/gesetz/4720/al28677-0.htm). Key facts of The claimant applied for the issuance of a residence card for EU citizens according to Section 5 of the the case (max. FreizügG/EU. According to Section 5 of the FreizügG/EU, the claimant had to prove that she was entitled to a 500 chars) right of entry and residence according to Section 2 (1) FreizügG/EU. According to Section 2 (1) of the FreizügG/EU, EU citizens and their dependants entitled to freedom of movement shall have the right to enter and reside in the federal territory. Section 2 (2) of the FreizügG/EU establishes which persons are entitled to freedom of movement, for instance EU citizens who wish to reside in the federal territory as employees (No.1). Section 2 of the FreizüG/EU does not require EU citizens to provide proof of knowledge of the German language. The decision does not mention on which grounds a right of entry and residence was claimed. But the decision mentions that the claimant was receiving unemployment benefits at that time. The authorities, therefore, announced the loss of the entitlement to entry and residence and only issued a residence card after 7 the claimant had started working. After having married a German national, the claimant additionally applied for a residence permit according to Section 28 (1), No. 1 of the AufenthG. Section 28 (1,) No. 1 of the AufenthG provides for a temporary residence permit for spouses of German nationals. According to Section 28 (1), sentence 3, the temporary residence permit should be granted in derogation of Section 5 (1), No. 1 of the AufenthG according to which the foreigner’s subsistence needs to be secure. According to Section 28 (1), sentence 5 in conjunction with Section 30 (1), No. 2 of the AufenthG, the spouse has to be able to communicate in the German language at least on a basic level. The local aliens’ registration office did not grant residence as the claimant was unable to provide proof of knowledge of the German language as foreseen in Section 28 of the AufenthG. The claimant argued that, as an EU citizen, she did not have to provide such proof. The Administrative Court of Gießen (Verwaltungsgericht, VG) dismissed the case by reasoning that the premises of Section 28 (2) of the AufenthG were not fulfilled because the claimant had been involved in criminal proceedings. The VGH ruled that Section 28 of the AufenthG due to a most favourable clause (Section 11 (1), last sentence) was applicable. According to Section 11 (1), last sentence, the AufenthG shall apply if it establishes a more favourable legal status than the FreizügG/EU. The VGH further stated that the conditions of Section 28 of the AufenthG still had to be fulfilled. Main reasoning The claimant argues that Article 28 of the AufenthG is applicable to EU citizens without them having to provide / proof of language skills and income. Otherwise they would be discriminated against in comparison with third- argumentation country nationals, who according to Section 30 (1), sentence 3 of the AufenthG did not have to prove language (max.