Summaries of judgments

 

Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
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Judgment of the General Court (Ninth Chamber, Extended Composition) of 24 October 2019 – T 310/18 – EPSU and Goudriaan v European Commission

“Social policy – Dialogue between management and labour at European Union level – Agreement entitled ‘General framework for informing and consulting officials and other servants of central government administrations’ – Joint request by the signatory parties for application of that agreement at European Union level – Refusal by the Commission to submit a proposal for a decision to the Council – Action for annulment – Act against which proceedings may be brought – Admissibility – Commission’s discretion – Autonomy of the social partners – Principle of subsidiarity – Proportionality”.

1 – Facts

On April 10th 2015, the European Commission invited the social partners, on the basis of Article 154(2) TFEU, to comment on the possible direction of EU action to consolidate the Directives on information and consultation of workers. That consultation focused in particular on the possible extension of the scope of those Directives to officials and other servants of public administrations in the Member States.

On June 2nd 2015, the social partners of the Social Dialogue Committee for central government administrations, namely the Trade Union Delegation of the National and European Administration (DSANE) and the European Public Administration Employers (EPAE), informed the Commission, on the basis of Article 154(4) TFEU, of their wish to negotiate and conclude an agreement on the basis of Article 155(1) TFEU.
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Summaries of judgments

 

Summaries of judgments made in collaboration with the Portuguese judge and référendaires of the CJEU (Nuno Piçarra, Mariana Tavares and Sophie Perez)
 ▪

Judgment of the Court (Fourth Chamber) of 29 July 2019, Hochtief Solutions AG Magyarországi Fióktelepe v Fővárosi Törvényszék, Case C-620/17, ECLI:EU:C:2019:630

Reference for a preliminary ruling — Public procurement — Review procedures — Directive 89/665/EEC — Directive 92/13/EEC — Right to effective judicial protection — Principles of effectiveness and equivalence — Action for review of judicial decisions in breach of EU law — Liability of the Member States in the event of infringement of EU law by national courts or tribunals — Assessment of damage eligible for compensation

Facts

In 2006, a call for expressions of interest for a public works contract was published in the Official Journal of the European Union. According to the call, a candidate whose balance sheet showed a negative result for more than one of the last three financial years would not fulfil the conditions for economic and financial capacity. Hochtief Solutions, which did not fulfil that criterion, challenged its lawfulness before the Közbeszerzési Döntőbizottság (Public Procurement Arbitration Committee) arguing (i) that that criterion was discriminatory and (ii) that it was not by itself capable of providing information on the financial capacity of a tenderer. The Arbitration Committee partially upheld Hochtief Solutions’ action, ordering the contracting authority to pay a fine, but did not find that that criterion was unlawful.

Hochtief Solutions brought an action against the decision of the Arbitration Committee before the Fővárosi Bíróság (Budapest High Court), which took the view that the results of the balance sheet constituted a suitable criterion for providing information about economic and financial capacity and, accordingly, dismissed the action. Hochtief Solutions then appealed against this judgment to the Fővárosi Ítélőtábla (Budapest Regional Court of Appeal), which decided to stay the proceedings and to submit the request for a preliminary ruling that led to the judgment of 18 October 2012, Édukövízig and Hochtief Construction (C‑218/11, EU:C:2012:643). The Fővárosi Törvényszék (Budapest High Court), which had meanwhile succeeded the Fővárosi Ítélőtábla, having taken account of that judgment of the Court, upheld the judgment delivered at first instance, holding that the criterion used by the contracting authority to assess economic and financial capacity was not discriminatory. The Kúria (Supreme Court) dismissed the appeal lodged by Hochtief Solutions against the judgment of the Fővárosi Törvényszék. The Alkotmánybíróság (Constitutional Court) dismissed as inadmissible the constitutional appeal lodged by Hochtief Solutions against this judgment of the Kúria.

In 2014, Hochtief Solutions filed an application before the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court) for review of the above-mentioned judgment of the Fővárosi Törvényszék. In support of its application for review, Hochtief Solutions claimed that the question whether the results of the balance sheet were an appropriate indicator for assessing the economic and financial capacity of a tenderer, and the judgment of 18 October 2012, Édukövízig and Hochtief Construction (C‑218/11, EU:C:2012:643), had not, in fact, been subject to any examination. In addition to rejecting Hochtief Solutions’ request to make a reference to the Court for a preliminary ruling, the Fővárosi Közigazgatási és Munkaügyi Bíróság dismissed the application for review, finding that the facts and evidence relied on by Hochtief Solutions were not new, the conditions of national law for the admission of a review appeal not being met. Hochtief Solutions then appealed against the order dismissing its application for review before the Fővárosi Törvényszék, which confirmed the order at first instance.

Hochtief Solutions then brought an action before the Székesfehérvári Törvényszék (Székesfehérvár High Court) seeking compensation for the damages that, it argued, the Fővárosi Törvényszék had caused in exercising its jurisdiction. Hochtief Solutions claims, in this regard, that it had not been given the opportunity, in accordance with EU law, to have account taken of the facts or circumstances that it had put forward before the Arbitration Committee and in the main proceedings, but on which neither that Committee nor the national courts seised of the case had given a ruling. In those circumstances, the Székesfehérvári Törvényszék decided to refer for a preliminary ruling several questions to the Court seeking guidance on, in particular, the principles laid down by the Court concerning, on the one hand, the liability of a Member State for damage caused to individuals as a result of an infringement of EU law by a national court adjudicating at last instance, and, on the other hand, the review of national judgments which acquired the force of res judicata.

Decision

As regards, on the one hand, the principles relating to the liability of a Member State for damage caused to individuals as a result of an infringement of EU law by a national court adjudicating at last instance, the Court of Justice recalled that that liability is governed by the conditions laid down by the judgment of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513), without excluding the possibility that the State in question might incur liability under less strict conditions on the basis of national law. The Court of Justice also recalled that that liability is not precluded by the fact that the judicial decision in question has acquired the force of res judicata. In the context of the enforcement of that liability, the judgment reaffirms previous case-law according to which it is for the national court or tribunal before which the action for damages has been brought to determine, taking into account all the factors which characterise the situation in question, whether the national court or tribunal adjudicating at last instance committed a sufficiently serious infringement of EU law by manifestly disregarding the relevant EU law, including the relevant case-law of the Court. The judgment also clarifies that EU law precludes a rule of national law which generally excludes the costs incurred by a party as a result of the harmful judicial decision from damage which may be the subject of compensation.

As regards, on the other hand, the second set of questions referred for a preliminary ruling, the Court interpreted EU law as not precluding legislation of a Member State which does not allow review of a judgment, which has acquired the force of res judicata, which has ruled on an action for annulment against an act of a contracting authority without addressing a question the examination of which was envisaged in an earlier judgment of the Court in response to a request for a preliminary ruling made in the course of the proceedings relating to that action for annulment. However, when the applicable domestic rules of procedure include the possibility for national courts to reverse a judgment which has acquired the force of res judicata, for the purposes of rendering the situation arising from that judgment compatible with an earlier national judicial decision which has become final –– where both the court which delivered that judgment and the parties to the case leading to that judgment were already aware of that earlier decision –– that possibility must, in accordance with the principles of equivalence and effectiveness, in the same circumstances, prevail in order to render the situation compatible with EU law, as interpreted by an earlier judgment of the Court of Justice.

Judgment of the Court (Third Chamber) of 12 September 2019, Cofemel – Sociedade de Vestuário SA v G-Star Raw CV, Case C-683/17, EU:C:2019:721

Request for a preliminary ruling from the Supremo Tribunal de Justiça – Freedom of establishment – Freedom to provide services – Approximation of laws – Intellectual, industrial and commercial property –  Directive 2001/29/EC – Article 2, c)

The Case C-683/18 dealt with a question referred by the Supremo Tribunal de Justiça (Portugal) on whether the directive on copyright precludes provisions of national legislation whereby that protection is granted if a specific condition is satisfied, namely that designs must, over and beyond their practical purpose, produce a specific aesthetic effect.

The case before the Supremo Tribunal de Justiça (Portugal) concerned a dispute between Cofemel – Sociedade de Vestuário, SA (‘Cofemel’) and G-Star Raw CV (‘G-Star’), two companies which are both active in the sector of design, production and sale of clothing. The dispute concerns compliance with copyright claimed by G-Star, which accuses Cofemel of producing and selling jeans, sweatshirts and t-shirts copying some of its own designs.

The Court of Justice answered the question referred by the Supremo Tribunal de Justiça in the affirmative.

The Court recalled that any original subject matter constituting the expression of its author’s own intellectual creation can be classified as a ‘work’, within the meaning of the directive on copyright. Consequently, a design may also, in a particular case, also be classified as a ‘work’. However, the Court then recalled that the protection of designs, on the one hand, and copyright protection, on the other, pursue different objectives and are subject to distinct rules. Therefore, the Court explained that the grant of protection, under copyright, to subject matter that is already protected as a design must not undermine the respective objectives and effectiveness of those two sets of rules, which is why the cumulative grant of such protection can be envisaged only in certain situations. In this context, the Court explained that the aesthetic effect that may be produced by a design does not constitute a factor that is relevant to the determination, in a particular case, of whether that design can be classified as a ‘work’, since such an aesthetic effect is the product of an intrinsically subjective sensation of beauty experienced by each individual who may look at the design in question.

The Court underlined that the classification as ‘work’ does, however, require that, first, there exists a subject matter which is identifiable with sufficient precision and objectivity, and, second, that subject matter constitutes an intellectual creation reflecting the freedom of choice and personality of its author. As such, the fact that designs produce, over and above their practical purpose, a specific aesthetic effect, does not, in itself, require that such designs can be classified as ‘works’.

 

Summaries of judgments

 

Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
 ▪


Judgments of the General Court (Fifth Chamber) of the 12th of July 2019, 
T-762/15, T-763/15, T-772/15, T-1/16 and T-8/16

Competition – Agreements, decisions and concerted practices –  Market for optical disk drives – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Collusive agreements relating to bidding events concerning optical disk drives for notebook and desktop computers – Infringement by object – Essential procedural requirements and rights of the defence – Jurisdiction of the Commission –  Obligation to state reasons – Unlimited jurisdiction – Principle of good administration – Fines – Geographic scope of the infringement – Single and continuous infringement – 2006 Guidelines on the method of setting fines – Particular circumstances – Error of law

1 – Facts

On 21 October 2015, the European Commission adopted the Decision C(2015) 7135 final, relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39639 – Optical Disk Drives, hereinafter “ODDs”) and, more specifically, to collusive agreements relating to bidding events concerning ODDs for computers organised by two computer manufacturers. Eight ODDs suppliers were covered by this decision, which imposes fines totaling EUR 16 million.

ODDs are used in computers produced by Dell and Hewlett Packard, the two main worldwide manufacturers in the market.

According to the Commission, between June 2004 and November 2008, the suppliers Philips, Lite-On, Philips & Lite-On Digital Solutions (their joint venture), Hitachi-LG, Data Storage, Toshiba Samsung Storage Technology, Sony, Sony Optiarc and Quanta Storage coordinated their behaviour in procurement tenders organised by the two computer manufacturers referred to above. During that period, they exchanged commercially sensitive information, communicated to each other their bidding strategies, and shared the results of procurement tenders.
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Summaries of judgments

 

Summaries of judgments made in collaboration with the Portuguese judge and référendaires of the CJEU (Nuno Piçarra, Mariana Tavares and Sophie Perez)
 ▪

Judgment of the Court (Grand Chamber) 24 June 2019, Commission V Poland, (Case C- 619/18, EU:C:2019:531)

Failure of a Member State to fulfil obligations — Second subparagraph of Article 19(1) TEU — Rule of law — Effective judicial protection in the fields covered by Union law — Principles of the irremovability of judges and judicial independence — Lowering of the retirement age of Supreme Court judges — Application to judges in post — Possibility of continuing to carry out the duties of judge beyond that age subject to obtaining authorisation granted by discretionary decision of the President of the Republic.

Facts

On 3 April 2018, the new Polish Law on the Supreme Court (‘the Law on the Supreme Court’) entered into force. Under that law, the retirement age for Supreme Court judges was lowered to 65. The new age limit applied as from the date of entry into force of that law, and included judges of that court appointed before that date. It was possible for Supreme Court judges to continue in active judicial service beyond the age of 65 but this was subject to the submission of a declaration indicating the desire of the judge concerned to continue to carry out his duties and a certificate stating that his health allowed him to serve, and had to be authorised by the President of the Republic of Poland. In granting that authorisation, the President of the Republic of Poland would not be bound by any criterion and his decision would not be subject to any form of judicial review.
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Summaries of judgments

 

Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
 ▪


Judgment of the General Court (Ninth Chamber, Extended Composition), T
307/17 – Adidas Ag / Euipo (Three Parallel Stripes), 19 June 2019

EU trade mark — Invalidity proceedings — EU figurative mark representing three parallel stripes — Absolute grounds for invalidity — No distinctive character acquired through use — Article 7(3) and Article 52(2) of Regulation (EC) No 207/2009 (now Article 7(3) and Article 59(2) of Regulation (EU) 2017/1001) — Form of use unable to be taken into account — Form that differs from the form under which the mark has been registered by significant variations — Inversion of the colour scheme

Link: http://curia.europa.eu/juris/document/document.jsf;jsessionid=7B33A741BDC26F1AC10417E8B24C5012?text=&docid=215208&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3595544

1. Facts

In 2014, the European Union Intellectual Property Office (EUIPO) registered, in favour of adidas, the following EU trade mark for clothing, footwear and headgear:

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In its application for registration, adidas had described the mark as consisting of three parallel equidistant stripes of identical width, applied on the product in any direction.

In 2016, following an application for declaration of invalidity filed by the Belgian undertaking Shoe Branding Europe BVBA, EUIPO annulled the registration of that mark on the ground that it was devoid of any distinctive character, both inherent and acquired through use. According to EUIPO, the mark should not have been registered. In particular, adidas had failed to establish that the mark had acquired distinctive character through use throughout the EU.

2. Decision

The General Court (GC) upholds the annulment decision, dismissing the action brought by adidas against the EUIPO decision.

The GC notes that the mark is not a pattern mark composed of a series of regularly repetitive elements, but an ordinary figurative mark, and that the forms of use which fail to respect the other essential characteristics of the mark, such as its colour scheme (black stripes against white background), cannot be taken into account. Therefore, EUIPO was correct to dismiss numerous pieces of evidence produced by adidas on the ground that they concern other signs, such as, in particular, signs for which the colour scheme had been reversed.
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Religious freedom, equal treatment in employment and occupation and case C-193/17 (22 January 2019)

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 by Maria João Lourenço, Assistant lecturer at UMinho

The phenomenon of globalization, contrary to expectations, has made cultural diversity and pluralism even more evident[i]. Because of multiculturalism, States are confronted with an increasing number of conflicts between minority legal orders and their national law, which is intended for the cultural majority.

In this chronicle, based on a recent decision of the Court of Justice of the European Union, we will reflect on a question which, although not new, continues to deserve particular attention since it violates the most basic principle of equality and, in the context of industrial relations, a clear discrimination on grounds of religion.

The case

A request for a preliminary ruling was made about the interpretation of Article 21 of the Charter of Fundamental Rights of the European Union and Article 11, Article 2(2)(a), Article 2(5) and Article 7(1) of Directive 2000/78/EC, which establishes a general framework for equal treatment in employment and occupation during professional activity.

The reference for a preliminary ruling was made in the context of a dispute between Cresco Investigation GmbH and Markus Achatzi concerning the right of the applicant to receive a supplementary compensation in respect of the remuneration paid due to work on a Good Friday.
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Summaries of judgments

 

Summaries of judgments made in collaboration with the Portuguese judge and référendaires of the CJEU (Nuno Piçarra, Mariana Tavares and Sophie Perez)
 ▪


Judgment of the Court (Grand Chamber) of 26 March 2019, 
SM v Entry Clearance Officer, UK Visa Section (Case C-129/18, EU:C:2019:248)

Reference for a preliminary ruling — Citizenship of the European Union — Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States — Directive 2004/38/EC — Family members of a citizen of the Union — Article 2(2)(c) — ‘Direct descendant’ — Child in permanent legal guardianship under the Algerian kafala (provision of care) system — Article 3(2)(a) — Other family members — Article 7 and Article 24(2) of the Charter of Fundamental Rights of the European Union — Family life — Best interests of the child

1. Facts

The request for a preliminary ruling was made in proceedings between a couple of French nationals and the Entry Clearance Officer, UK Visa Section, concerning the latter’s refusal to grant SM entry clearance for the territory of the United Kingdom as an adopted child. Abandoned by her biological parents at birth, SM was placed in the guardianship of the couple in 2011 under the Algerian kafala system. The application for entry clearance for the United Kingdom was refused on the ground that guardianship under the Algerian kafala system was not recognised as an adoption under United Kingdom law and that no application had been made for intercountry adoption.

The Supreme Court of the United Kingdom was called upon to hear the case on appeal and referred to the Court of Justice questions for a preliminary ruling on the interpretation of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158, p. 77).
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Summaries of judgments

 

Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
 ▪

Judgment of the General Court  (Third Chamber) of the 14th of May 2019, T-795/17, C. Moreira/EUIPO (Neymar)

http://curia.europa.eu/juris/document/document.jsf;jsessionid=2F7E92B2A7F19F8025819B84B2292322?text=&docid=214045&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=8873348)

EU trade mark — Invalidity proceedings — EU word mark NEYMAR — Declaration of invalidity — Bad faith — Article 52(1)(b) of Regulation (EC) No 207/2009 (now Article 59(1)(b) of Regulation (EU) 2017/1001

1. Facts

In December 2012, Mr C Moreira filed an application for registration of the word sign ‘NEYMAR’ as a EU trade mark, in respect of clothing, footwear and headgear. The mark was registered in April 2013.

In February 2016, Mr Neymar Da Silva Santos Júnior, filed an application with EUIPO for a declaration of invalidity against that mark in respect of all the goods covered by it. The application for a  declaration of invalidity was upheld by EUIPO.

Mr Moreira then brought an action before the General Court against the decision of EUIPO.

2. Decision

The Court begins to note that  it is demonstrate that Mr Neymar Da Silva Santos Júnior was already known in Europe at the relevant date and was already recognised as a very promising football player, having drawn the attention of top-flight clubs in Europe in view of future recruitment, several years before his actual transfer.

The Court also confirms that Mr Moreira possessed more than a little knowledge of the world of football, as proven by the fact that he filed an application for registration of the word mark ‘IKER CASILLAS’, a mark corresponding to the name of another famous football player, on the same day he sought registration of the mark ‘NEYMAR’.
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The latest on the Zambrano front – the Chavez-Vilchez judgment

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by Sophie Perez Fernandes, Junior Editor

Back in 2011, the ECJ delivered a pivotal decision in the Zambrano case. With reference to the Rottmann case, the ECJ held that “Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.”

By this criterion are included within the scope of application of EU law situations which, a priori, fall within the competence of the Member States (the so-called purely internal situations). The Zambrano-criterion indeed allows EU citizens to rely on their status as EU citizens against their own Member States of nationality even when they have not exercised their rights of free movement. The immediate consequence of the Zambrano ruling was to preclude Member States (in casu, Belgium) from refusing third country national parents of minor EU citizens a right of residence in the Member State of residence and nationality of those children in so far as such decisions would result in the children having to leave the territory of the Union as a whole.

The subsequent case-law gave a rather narrow interpretation to the criterion, as can be confirmed by the judgments delivered in McCarthy, Dereci, Iida, O and S, Ymeraga, Alokpa and NA. The ECJ held the Zambrano-criterion as a specific criterion as it relates to “very specific situations” in which a right of residence may not, exceptionally, be refused to a third country national without the EU citizenship enjoyed by (minor) Member States nationals being (fundamentally) undermined. It thus follows that any right of residence conferred on third country nationals pursuant to Article 20 TFEU are rights derived from those enjoyed by the EU citizen of which they are members of the family and have, in particular, “an intrinsic connection with the freedom of movement and residence of a Union citizen”.

Without calling into question or reversing this line of jurisprudence, the ECJ seems however willing to revive the Zambrano-criterion in more recent cases, addressing some issues so far left in the open. In CS and Rendón Marín, though admitting the possibility of limiting the derived right of residence flowing from Article 20 TFEU to third country nationals (limitation based on grounds of public policy or public security), the ECJ framed the scope of such a limitation, making its application conditional on a case-by-case analysis and upon respect for fundamental rights as protected by the CFREU, namely Articles 7 and 24(2) CFREU. The ECJ further clarified the scope of the Zambrano-criterion as the ultimate link with EU law for the purposes of the protection of fundamental rights in the Chavez-Vilchez judgment delivered last week.
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On the CJEU’s post-Brexit case-law on European citizenship. The recovery of the identity Ariadne’s thread?

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by Professor Alessandra Silveira, Editor

The CJEU over the years has helped forging a concept of citizenship directed to be the “fundamental status of Member States nationals”. However, since the ruling Dereci of 2011, the proactivity of the CJEU concerning the development of the European citizenship seemed to have gradually exhausted its potentialities, mostly on the so-called social citizenship. It happens, tough, that the crucial moment the European Union faces demands the enhancement of its vertical relation with the citizens it upholds – it is either this or fragmentation. And maybe this is the subliminal message from the CJEU in three post-Brexit rulings that, decided in the Grand Chamber, surprisingly recover and develop the most emblematic case-law about the European citizenship – namely the Rottmann[i] and Zambrano[ii] rulings – whose political potential and/or identity potential seemed irrevocably muzzled.

In the ruling Rendón Marín[iii] and CS[iv], the core issue involved the expulsion and the automatic refusal of the concession of residence to third states nationals who have a dependent minor European citizen – in  both cases due to the parent’s criminal records. The CJEU recovered the Zambrano assertion, according to which Article 20, TFEU precludes national provisions that have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union[v] and, in this sense, it must be attributed the derived right of residence to the national from a third State, under this risk of the useful effect of the European citizenship being affected, if the minor is forced to leave the territory of the Union to follow his/her parent[vi]. In both rulings, the novelty is the way the CJEU appreciates, in the light of the fundamental rights of the European citizen, the possibility of a Member State to introduce limits to such derived right of residence which arises from Article 20, TFEU.

Continue reading “On the CJEU’s post-Brexit case-law on European citizenship. The recovery of the identity Ariadne’s thread?”