Tag: citizenship

COVID-19 – Nationalism and its toll on citizenship and mobility rights in the European Union

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 by Patrícia Jerónimo, JusGov, University of Minho
▪

There is still much that we do not know about COVID-19, but by now it has become very clear that, far from being ‘the great equalizer,’ the disease is disproportionately impacting the poor and the most vulnerable (including racial and ethnic minorities), fuelling nationalist and xenophobic sentiments,[i] and prompting a resurgence of borders and mobility restrictions all over the globe. The siege mentality that has been brewing under the threats of mass migration and terrorism is now at peak intensity, as States barricade themselves, adopt increasingly protectionist measures and compete against each other for medical supplies and personnel.[ii]

In Europe, the first national responses to the outbreak were unilateral and selfish, which should come as no surprise to anyone familiar with the European integration process, but is nevertheless disheartening. In early March, when Italy became the epicentre of the outbreak and the WHO acknowledged that we were facing a pandemic, Austria and other Schengen States rushed to reintroduce border controls at their land and air borders, in rapid succession.[iii] Flights to and from Italy were blocked by several EU Member States.[iv] EU citizens were denied admission in Italy, Hungary, Croatia and the Czech Republic, to name a few.[v] The Hungarian government banned the entry of all non-Hungarian citizens, with minor exceptions, and suspended submission of asylum claims.[vi] Cyprus even barred entry to its own nationals returning from hotspots abroad.[vii] Boats of migrants intercepted in the Mediterranean were hastily returned to Libya.[viii] The list could go on.
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Europe’s hopes and fears

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by Mariana Canotilho, Editor
 ▪

According to the latest Eurobarometer, published in December 2018, immigration is the EU citizens’ main concern at the moment. With terrorism quickly falling, citizens are increasingly worried about Member States’ public finances (again!), the economy, and climate change (which is reaching new highs in every barometer).

The common feature between all these concerns is the fear of losing one’s way of life. European democracies are supposed to be about just that – democracy – but also about social cohesion, a broad catalogue of fundamental rights (including social and economic rights), freedom and peace. A citizen of a EU Member State expects to ‘live a good life’; a safe and prosperous life, using his or her capabilities to the fullest. A life that is free from fear of poverty, of economic and social turmoil and of uncertainty.

The multiple and complex crises of the last decade have highlighted that such a life is no longer possible for many people, in the EU. In a way, all the crises have flown into the big sea of the Union’s fundamental problem, which seems to be a crisis of solidarity. Solidarity towards migrants, who flee from war and disaster, but also towards southern countries dealing with economic and social upheaval (due to decisions that were not only their fault) or eastern European countries facing a scary turn in the direction of ‘illiberal democracies’. The Union’s answers have been late and not nearly enough.
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Editorial of November 2018

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 by Alessandra Silveira, Editor

▪


In the face of globalised populism, European Union as a kind of “life insurance”

In case C-619/18, Commission v Poland, pending judgment by the Court of Justice of the European Union (ECJ), the European Commission has requested the Court, in the context of interim proceedings, to order Poland to suspend the application of the provisions of national legislation relating to the lowering of the retirement age for Supreme Court judges,[i] among other measures.

As the ECJ Press Release No 159/18 briefly explains, on 3 April 2018 the new Polish Law on the Supreme Court entered into force. Under that Law, the retirement age for Supreme Court judges has been lowered to 65. The new age limit applies as of the date of entry into force of that Law. It is possible for Supreme Court judges to continue in active judicial service beyond the age of 65 but this is subject to the submission of a statement indicating the desire of the judge concerned to continue to perform his/her duties and a certificate stating that his/her health conditions allow him/her to serve, and must be consented to by the President of the Republic of Poland. Thus, according to the Law, serving Supreme Court judges who reached the age of 65 before that Law entered into force or, at the latest, on 3 July 2018, were required to retire on 4 July 2018, unless they had submitted such a statement and such a certificate by 3 May 2018 inclusive and the President of the Republic of Poland had granted them permission to continue in active service at the Supreme Court. In making his decision, the President of the Republic of Poland is not bound by any criteria and that decision is not subject to any form of judicial review. Furthermore, the Law on the Supreme Court gives the President of the Republic of Poland the power to freely decide, until 3 April 2019, to increase the number of Supreme Court judges.

As we know, the Vice-President of the Court, Ms Rosario de Lapuerta, on 19 October 2018, provisionally granted all the Commission’s requests – and Poland must immediately suspend the application of the new Polish Law on the Supreme Court.[ii] The legal basis of such ruling, relying upon judicial independence as a general principle of EU law and as a fundamental right protected in its order, has been built in the recent ECJ case-law, especially in judgments Associação Sindical dos Juízes Portugueses (ASJP) and LM[iii].
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State of the Union 2017 scenario: with full breath ahead

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by Sergio Maia, Managing Editor
▪

On September, 13th President Jean-Claude Juncker addressed the annual speech of the State of the Union (here). Against the background of the White Paper on the Future of Europe and in solid dialogue with the European Parliament, President Juncker presented some new ideas as well as highlighted previous proposals. More importantly, the European Commission demonstrates that it is effectively holding the position of initiative with which the Treaties empower it – in close democratic discussion with the Parliament.

Here we intend to comment the first impressions about key aspects of some of the topics the Juncker Commission brought to life and debate.

1. After valuing the European institutions role on “helping the wind change” for growth, job creation and control of public deficits, he expressed the will to strengthen the European trade agenda by negotiating international agreements. It seems that after the cases of the Paris agreement (on environmental issues) and the uncertainty around TTIP, there are two messages underlying this point. The first is to make the EU the main business platform worldwide (Canada, Japan, Mexico, South America and the proposal to open negotiations with Australia and New Zealand). Reliable and stable, Europe wants to be the ideal partner and the first in line in global economy. With many interrogations amounting over the US, this also seems to be an external policy strategy (“we are not naïve free traders”, he said). Alongside investment, the idea is to make the industry stronger and more competitive as well as being the leader in fighting climate change. More and more signals of the projection of the leadership of the Union in the world.

2. As far as migration, external borders and the Schengen area are concerned, migration will remain a priority. So will the support to Italian authorities who are “saving Europe’s honour in the Mediterranean”. In parallel, the Commission wants to work on legal pathways to end illegal activities like trafficking at the same time it calls for solidarity in welcoming refugees. This is a novelty. After Germany’s policy of opening doors, now the EC looks like the new leading actor in this matter. Contrary to the position of his political family, which never clearly came out, President Juncker took on a stand closer to the approach of S&D. It will be interesting to follow the next parliamentary debates and what the EPP’s reaction will be, even though its following remarks were in a more agreeable way to these terms. Finally, suggesting that Romania, Bulgaria and soon Croatia should become members of the Schengen area is a political movement on a critical region where Russia has been growingly active. The idea seems to be to overpower its influence there – the direct reference of the 100th anniversary of Estonia, Latvia, Lithuania and Romania proves just that.

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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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Editorial of April 2017

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by Alessandra Silveira, Editor
▪

What future do we want for ourselves, for our children and for our Union? (as for the 60 years landmark of the Treaty of Rome: please open the fridge!)

Two weeks ago I went to Rome at the European’s Commission invitation for the celebrations of the 60 years of the constitutive treaties of the current European Union. The Commission had decided to gather a group of Jean Monnet chairs from 34 nationalities for a seminar with the title “The future of Europe: a commitment for You(th)” and for a meeting with the EC Vice President, Federica Mogherini, and the (rotating) President of the Council of the EU, Joseph Muscat (Prime-Minister of Malta). It is my duty to share on this blog what I have heard there.

The EC is moving forward with a series of proposals about the management of globalisation and the future of the European finances, but also tending to develop the European social dimension. And, mostly, proposals tending to conclude the Economic and Monetary Union – that takes monetary and exchange sovereignty from the Member States whilst keeps their financial and fiscal sovereignty, what provokes clear imbalances between the more and the less robust economies of the euro zone. Moreover, the Commission presented on 1 March 2017 a White Paper on the future of Europe[i]  – which prospects the changes we will be subject to over the course of the next 10 years and presents 5 scenarios to face the challenges.

After a large debate – that will take place at the European level in the next months and in which the European Parliament, national parliaments, local and regional authorities and the society in general will participate – President Jean-Claude Juncker will address his considerations on the occasion of the speech of the State of the Union, in September 2017, hence contributing with the European Council for reaching its first conclusions by the end of the year and deciding about the actions to take over the period that precedes the European Parliament’s elections, in June 2019.

Naturally, the outcome will also depend on the electoral results in France and Germany – it couldn’t be any different. Not exactly for the narrative of the “French-German axis”, but because 40% of everything that is built with European funds is money from the French or the German tax payer. Is it not of the most elementary coherence that who pays the most should have a word? Anyhow, the European citizens from the other Member States may not be unrelated to the definition of their future – that’s why they need to know the proposals and pressure political decision-makers towards better choices. The European Union is not made by aliens – it’s our representatives who are there: in the Parliament, in the Council, in the Commission.

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EU Citizenship and Protection of Social Rights in the Court of Justice case-law

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by Cinzia Peraro, PhD student in European Union Law at the University of Verona
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1. Introduction

This post aims at analysing the fundamental freedom of movement of workers and the protection of social rights in light of the recent EU Court of Justice case-law. The arising question is whether fundamental social rights may assume the same hierarchical level as general principles when a balancing test is exercised within the assessment of compatibility of national measures with EU law.

The definition of EU citizenship and the codification of rights granted to EU citizens are covered by the Treaties, namely by Article 9 TEU, Article 18 ff. TFEU and Chapter V of the EU Charter of Fundamental Rights. EU citizens can freely move across the Union in order to work or look for a job or establish their place of work in one Member State different from the one of origin, where they can enjoy the rights granted by the EU. Indeed, EU citizenship creates rights upon EU citizens and therefore could be defined as a “comunidade de direitos”[i].

Nowadays, the free movement of citizens became a core issue within the debates on present threats and challenges that the EU is facing, amongst which the EU immigration policy that is not only linked to the free movement of persons, but also to the underlying process of integration. In general, a more positive approach should be welcomed when addressing current issues.

2. Free movement of workers

Originally, the four fundamental freedoms were established with the aim of increasing and developing the European internal market and workers were granted rights abroad. The Union offered workers the possibility to move across Member States in order to provide their services or capabilities or establish their place of work. Then, the personal dimension was considered and individual rights were recognised, such as the right to family reunification. Thus, the free movement of workers should not be seen in macroeconomic terms, that is to say linked to the development of the internal market, but rather as a personal freedom to choose the country in which citizens want to work.[ii]

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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.

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Editorial of May 2016

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by Pedro Madeira Froufe, Editor
and Joana Covelo de Abreu, Junior Editor
▪

Competition, Public Procurement and Citizenship

Last 18th April 2016, the transposition deadline for new public procurement Directives passed: Directives 2014/23/EU, 2014/24/EU and 2014/25/EU. The first one deals with the award of the concession contracts and the latter have to do, respectively, with public procurement (and repealing Directive 2004/18/CE) and procurement by entities operating in the water, energy, transport and postal services sectors (repealing, for that matter, Directive 2004/17/CE).

Public procurement has a fundamental role in the European Union, namely in the EUROPE 2020 Strategy context, since it appears as an internal market instrument that is adequate to promote a sustainable development, an intelligent and inclusive growth, aiming, equally, a more reasonable use of public funding. Besides, public procurement regulation, in the European context, always prosecutes competition’s preservation and reinforcement – the background where internal market edification was set.

With those new Directives, there were some aspects of the previous regime that were revised, namely the European thresholds (which define the scope of application of European rules on public procurement). Those were supposed to be updated every two years if necessary. Still, a new proceeding was created: the innovation partnership established between the contracting entity and the participants, which allows setting successive stages and intermediate objectives. E-procurement gains a more relevant role.

According to information provided by European Institutions, public procurement contracts have a significant weight in Member-States economies, representing about 16% of the Union’s GDP. But before public procurement had been regulated by the European Union, only 2% of economic operators that had won public contracts were non-national companies. In this perspective, application of Internal Market rules (namely freedom to provide services and free competition) allowed a better usage of public resources and a better and more fruitful competition, demanding economic operators in the European context to improve their services and to provide them to a lower price (to a more competitive price). With public procurement Europeanization there was also a reinforcement of transparency and equality principles’ respect and a diminishing of fraud and corruption’s risk.

As stated, competition policy always ends up to be in the base (even when indirectly) of the functioning dynamic’s type that we aim to the Internal Market and to the economic integration. Besides, to a large degree, the creation of a competition culture in Europe is the result of integration. Actual challenges are connected, in a great extent, by the balanced markets’ regulation, by the implementation of an economy that is always competitive but also socially aware. New technologies set today new realities not always easy to ordain, safeguarding, in a balanced way, economic efficiency (more competition) and what we can call, in a detailed way, common interest manifestation (and, therefore, of a socially balanced regulation). In the “common economy” field, difficulties of that balance are particularly evident and immediate. Let’s consider an illustrative example: the tension between a (very closely) regulated sector of providing services – taxi services – and the emergence, also in Europe and with great success, of the UBER phenomenon. This is something to follow with interest. It is also a challenge to the densification of European citizenship (economic, directly connected to European consumers).

Picture credits: Numbers and Finance  by Reynermedia.