Editorial of February 2017

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by Alessandra Silveira, Editor
 ▪

On the Southern EU countries summit – challenges of democracy in times of austerity and dismay

Last Saturday, 28 January 2017, seven Member States from the south of Europe (Cyprus, France, Greece, Italy, Malta, Portugal and Spain) gathered in Lisbon to send the message of their national public opinions to the public opinions of the other Member States of the Union: surely the EU has to fight terrorism and to adopt a cohesive migration policy but such issues cannot bypass the attention towards the economic problem. It is a clamour of the Southern Europe in the regard that economic convergence becomes priority in the EU’s strategy through policies that create financial capacity in the euro zone and the development of European programmes to support investment. In the horizon, there would be solutions which involve a larger risk sharing – as the adoption of common taxes, an European system of bank deposit guarantee, common debt issue (eurobonds) as well as policies of positive discrimination in favour of indebted Member States that fulfil the adjustment rules.

The message of the citizens from the south of Europe holds that they advanced in the structural reforms and budgetary consolidation as much as it was possible (and the results in Spain and Portugal, mostly, are clear). But under the current circumstances of strong indebtedness and high unemployment it’s impossible to carry on without some relief from the financing constraints. Otherwise the Mediterranean societies will be driven to a situation of social rupture with unpredictable consequences, considering the populisms that lurk around. All that is inserted in a broader debate that the European institutions are facing on how to produce more jobs and better economic performance so that the European citizens can again see the European integration as an asset in their lives. It wasn’t for a different reason that in the first session of January the European Parliament approved a report on the Social Pillar (here). In the same regard, in March the European Commission will submit proposals aiming at reinforcing the social rights – that is, the access to minimum wage and minimum insertion allowances, access to a compulsory health insurance, extinction of unpaid internships, etc. In a year in which there are elections in several Member States, the strengthening of social protection means a European strategy to hinder the adhesion to populist movements.

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Fundamental freedom and names in the EU

by George Rosa-Acosta, student of the Master's degree in EU Law of UMinho

Case law from the European Court of Justice demonstrates that in the domain of establishing identity and citizenship, the names of natural persons are paramount. Naming practices straddle public and private law: they are the means by which a state identifies its citizens and by which those citizens embark upon most joint activities with others. In order to rationalise these practices, European Union harmonisation through its long historical arc — helped along copiously and often quietly by the ECJ — involves an evolving system of principles for answering the politically charged imbroglios provoked by disputes over naming rights and formulae. Three cases are of singular importance in defining this emerging EU naming regime: Konstantinidis v Stadt Altensteig, Garcia Avello v Belgian State and Sayn-Wittgenstein v Landeshauptmann von Wien. These cases demonstrate that the ECJ is willing to oblige Member-State liberalisation in conformity with the emerging EU personal nomenclature regime, but not at the point of surrendering bedrock cultural-juridical values that are consistent with the progressive ideology of EU human rights principles.

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Summary of Rottmann – Case C-135/08

by Daniela Cardoso, Jurist and Collaborating Member of CEDU 

Keywords: Citizenship of the Union; nationality of one Member State acquired by birth; nationality of another Member State acquired by naturalisation; loss of original nationality by reason of that naturalisation; loss with retroactive effect of nationality acquired by naturalisation on account of deception practised in that acquisition;  statelessness leading to loss of the status of citizen of the Union.

Court: ECJ | Date: March 2 2010 | Case: C-135/08 | Applicants: Janko Rottmann v. Freistadt Bayern

Summary: The European Court of Justice (ECJ) was referred for a preliminary ruling on proceedings that concerned a decision withdrawing the nationality, granted by way of naturalisation that, in turn, would result in the loss of the status of citizen of the Union.

Rottmann, an Austrian citizen, had acquired the German nationality through a naturalisation process from which, in accordance with the Austrian legislation, he automatically would lose his nationality of origin. The German authorities later found out that Rottmann had omitted the fact of being previously involved in serious criminal proceedings, and of being the main target of an arrest warrant. Due to this predicament, the German authorities decided to withdrew the German naturalisation with retroactive effect, on the grounds that the applicant had obtained German nationality by deception. Since these proceedings would result in the loss of the German nationality and, therefore, the citizen of the Union status as well, leaving him stateless, Rottmann challenged the decision from the German authorities.

The analysis made by the ECJ started to consider that, according to international law, it is within the competence of Member States to establish the conditions in which there is acquisition or loss of nationality. However, it also acknowledged that the exercise of this power can be subjected to further judicial control, when it affects rights and guarantees covered by EU law.

In fact, it is in the legitimate interest of the Member States to protect and foment the solidarity and good-faith relations among the State and their nationals, guaranteeing their loyalty, relation in which the concession of nationality is based. Accordingly, the ECJ states that EU law does not oppose to a decision of a Member State decision withdrawing the nationality, granted by way of naturalisation, when it was obtained by fraud, and as long as that decision goes through the proportionality test in regard to its consequences and effects in terms of EU law.

It is also relevant to highlight the opinion of the Advocate General which defended that there is a relation of reciprocity between the acquisition of nationality and the exercise of the rights that arise from the Treaty. Accordingly, the imposition of loyalty and good-faith in the process of acquisition of nationality, demanded by Germany, does not violate any EU law provision. Moreover, international law does not prohibit the loss of nationality even when the result is the statelessness.

The decision can be accessed here and the conclusions here.

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Social citizenship: quo vadis? – Inaugural Editorial

by Alessandra Silveira, Editor
and Sophie Perez Fernandes, Junior Editor

The European citizenship as the “the fundamental status of nationals of the Member States”[1] has been shaping the process of integration itself. Unquestionably linked to the protection of fundamental rights, European citizenship has always been focused on the approximation of the legal status of the nationals of Member States, providing the legal base to the eradication of legal gaps of protection and, therefore, contributing to the further development of the integration process. However, recent case law of the ECJ seems to be influenced by the current political-economic dynamics that characterise the current crucial momentum that we are facing, raising perplexity and concern when compared to past rulings which compose the jurisprudential acquis in matters of citizenship and fundamental rights – mainly in what concerns citizens that move in the Union seeking jobs and the maintenance of the status of migrant worker.

The Dano ruling of 2014[2] represents a setback in regard to the previous case law of the ECJ regarding the granting of special non-contributory cash benefits to citizens who are not economically active. Despite the fact that, in this concrete case, a residence certificate of unlimited duration was previously granted to the applicant – a fact apparently disregard by this ruling – the national court considered that the main proceedings concerned persons who could not claim a right of residence in the host State by virtue of Directive 2004/38/CE. The ECJ accompanied the reasoning of the national court stating that the access to social benefits is dependent on the residence in the host Member State as set out by Article 7 of the mentioned Directive – i.e. sufficient economic resources and health insurance[3]. The goal would be to prevent economically inactive citizens from becoming an unreasonable burden on the social assistance system of the host Member State[4], or from using the host Member State’s welfare system to fund their means of subsistence[5]. Admitting otherwise, according to the Court, would go against the objectives of the Directive[6].

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