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

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.

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

Subsidiarity, democratic deficit and posting of workers

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by Professor Alessandra Silveira, Editor

The Lisbon Treaty introduced new contents to the role of national parliaments in the EU decision making process alongside the respect for the principle of subsidiarity by the European institutions. According to article 5, No. 3, TEU under the scope of non-exclusive competences, the Union only intervenes if the objectives of certain action (i) cannot be sufficiently achieved by Member States (efficiency criterion) and (ii) can be better achieved by the EU due to its dimension or intended effects (added value criterion).

So, since the entry into force of the Lisbon Treaty, Protocols No. 1 and No. 2 annexed to the treaties allow that national parliaments evaluate the compliance of the European draft legislative acts with the principle of subsidiarity – and if they conclude that there is incompliance, the respective reasoned opinion shall address this understanding. Under the ordinary legislative procedure, if the reasoned opinions represent at least a simple majority of the votes allocated to the national parliaments, the European Commission proposal must be reviewed. It can be amended, withdrawn or sustained (Article 7, No. 3, Protocol No. 2).

Nevertheless, it is important to test the national parliament’s arguments in order to confirm if (i) they have legal grounds to claim the infringement of subsidiarity and (ii) the result of such parliamentary intervention can be regarded as positive to the EU legal system as a whole. Even though this proposed exercise does not compromise, theoretically, the democratic relevance of national parliament’s participation in the EU’s decision making process, it can point out some fragilities concerning (i) the appreciation of the European integration process by national parliamentary authorities and (ii) the adequacy of the EU democratic deficit narrative and the instruments created so far to face it.

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National Parliaments’ yellow card to posted workers reform

Social rights are at the core of current debates on the EU, from budgetary deficit limits to mechanisms fighting unemployment, passing by the “Brexit/Bremain” referendum.

Recently, some national parliaments have expressed their opinions about one relevant aspect to the social model of the EU, the posted workers’ rights which may undergo a revision after the Commission issued a proposal.

Here is a sample of how the parliaments consider the matter.

Eleven EU member states have shown a yellow card to the European Commission over its recent proposal to warrant equal pay to posted workers“, via euobserver.

 

According to several European diplomats, the national parliaments of 11 countries, including Poland, Denmark, the Czech Republic and Slovakia, have enough votes under EU rules to trigger the “yellow card” procedure against the Commission’s revised new text on so-called “posted workers. It would be only the third time the yellow card procedure has been used since it was set up under the Treaty of Lisbon“, via politico.eu.

 

An attempt by the European Commission to revise the contentious Posted Workers directive is likely to fail, as the national parliaments of at least ten member states from Central and Eastern Europe are reported have used a yellow card to stop the legislation“, via euractiv.