Top

Published in:

2018 | OriginalPaper | Chapter

6. Free Movement of Persons and Articles 45, 48 and 21 TFEU and Articles 28 and 29 EEA

Author : Karin Fløistad

Published in: The EEA Agreement in a Revised EU Framework for Welfare Services

Publisher: Springer International Publishing

Activate our intelligent search to find suitable subject content or patents.

search-config

AI-assisted search

Off

Abstract

This chapter introduces the second overall topic included in the study, namely free movement of persons and the EEA Agreement. This chapter explains broadly the relevance of including this topic and establishes the structure for Part II to inform the reader of a rather complex analysis. The complexity is partly due to the manner in which the relevant secondary legislation became part of the EEA Agreement. Thus, this chapter has a section devoted to the interaction between primary and secondary EU law and a section devoted to the actual incorporation of both the Citizenship Directive and the coordination regime of social security benefits. Furthermore, this chapter introduces the division into four sections of the case study on free movement of persons; beginning the EU integration process in regard of Union citizenship (Chap. 7), and followed by the EEA integration process where Chap. 8 concerns the Citizenship Directive and Chap. 9 concerns the coordination regime and finally Chap. 10 provides overall reflections.

Dont have a licence yet? Then find out more about our products and how to get one now:

Springer Professional "Wirtschaft+Technik"

Online-Abonnement

Mit Springer Professional "Wirtschaft+Technik" erhalten Sie Zugriff auf:

über 102.000 Bücher
über 537 Zeitschriften

aus folgenden Fachgebieten:

Automobil + Motoren
Bauwesen + Immobilien
Business IT + Informatik
Elektrotechnik + Elektronik
Energie + Nachhaltigkeit
Finance + Banking
Management + Führung
Marketing + Vertrieb
Maschinenbau + Werkstoffe
Versicherung + Risiko

Jetzt Wissensvorsprung sichern!

inform now

Springer Professional "Wirtschaft"

Online-Abonnement

Mit Springer Professional "Wirtschaft" erhalten Sie Zugriff auf:

über 67.000 Bücher
über 340 Zeitschriften

aus folgenden Fachgebieten:

Bauwesen + Immobilien
Business IT + Informatik
Finance + Banking
Management + Führung
Marketing + Vertrieb
Versicherung + Risiko

Jetzt Wissensvorsprung sichern!

inform now

previous chapter Some Reflections on the EEA Integration Process Extending Into Healthcare and Educational Services Publicly Financed and Mostly Delivered Through Benefits in Kind

next chapter The EU Integration Process and the Right to Free Movement, Residence and Equal Treatment for Union Citizens

Corresponding provisions in the EU legal order are Articles 45 and 48 TFEU.

Corresponding provisions in the EU legal order are Articles 49 and 56 TFEU.

Ross and Borgmann-Prebil (2010). See for a recent contribution in the field of Union Citizenship, Guild et al. (2010). See also Shaw (2000). There is an argument being made critiquing that the principle of solidarity has suffered a setback or at least has been given too little weight in the present economic situation in Europe by the European Courts, see for instance the critique in Countouris and Freedland (2013), see also Kilpatrick (2014).

In EU literature on free movement rights of Third Country Nationals (TCNs) is extensively debated and it is argued that the concept of Union citizenship is inadequate given that it does not include TCNs. This debate will not be part of the EEA analysis given that free movement rights does not in principle include rights for TCNs neither in the main part of the Agreement nor in the annexes, with the exceptions in the Citizens Directive, see Sects. 6.3.2 and 8.3 and the Jabbi-case E-28/15.

Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 44, Case C-140/12 Brey EU:C:2013:565, paragraph 72 and for a general analysis Giubboni (2010), pp. 166–197, see for a recent analysis of Union Citizenship, Tryfonidou (2016).

See also Article 20(2) TFEU.

The consequences of the most recent case law from the CJEU limiting this right in specific circumstances will be analysed further in the chapter, see Cases C-333/13 Dano EU:C:2014:2358 and C-67/14 Alimanovic EU:C:2015:5, see also the case on the exporting of child benefits from the UK and Ireland, Case C-308/14, Commission v. UK and Ireland decided 14 June 2016, EU:C:2016:436.

In the case law analysis it will be explained what is meant by the term ‘deserving’.

See as an example the recent case law on migrating student’s right to export student financing analysed in the previous chapter.

Verschueren (2015), pp. 363–390.

See i.a. the arguments of the Member States in Case C-333/13 Dano EU:C:2014:2358.

De Witte (2012), p. 704 onwards, point IV, de Witte (2011), pp. 86–107.

For example the discussion by the CJEU in Case C-147/03 Commission v. Austria [2005] ECR I-5969 on the sustainability of the Austrian educational scheme, see the previous Chap. 4.

The two most important pieces of the current harmonising legislation in the field of social rights for moving individuals are the Citizens Directive (Directive 2004/38) and the coordination regime for social security benefits (Regulation 883/2004). Both the Citizens Directive and the coordination regime for social security benefits are included in the annexes of the EEA Agreement. The Directive entered into force in the EEA on 1 March 2009 and the Regulation entered into force in the EEA on 1 June 2012.

This includes the CJEU, the EFTA Court and the EFTA Surveillance Authority. The view of the Commission is clarified in a number of oral and written observations in various cases, see as an example the submission to the EFTA Court in case E-28/15, see Written observations, Brussels, 4 February 2016, paragraph 26.

For a comprehensive analysis of derived rights of family members in EU law, see Guild et al. (2014).

For an analysis of the right to family reunification in the EEA, see M. Grønvik, [2015] Fri bevegelighet for hele familien? Tredjelandsborgeres avledede oppholdsrett etter EU/EØS regelverket https://www.duo.uio.no/bitstream/handle/10852/45475/7/212.pdf.

See Part I.

Syrpis (2015), p. 462. The recent Cases C-333/13 Dano EU:C:2014:2358 and C-67/14 Alimanovic EU:C:2015:5 seem to construe the conditions for free movement in light of the Treaty as more narrow than previous case law on Union citizenship, see below.

Case C-34/09 Zambrano [2011] ECR I-1177, paragraph 39, see also the later O. and B. case, Case C-456/12, EU:2014:135.

A recent critical comment on the CJEU’s approach termed as judicial lawmaking can be found in Horsley (2013), pp. 931–964. Horsley point out that what is required of the Court’s lawmaking it to pay sufficient deference to the policy choices of the EU legislature as expressed in secondary EU law. ‘The Court should not read these choices as incomplete statements on the scope and intensity of EU law in particular substantive areas’, p. 960.

Case C-46/12 L. N. EU:C:2013:9, paragraph 35, Case C-341/05 Laval [2007] ECR I-11767, paragraph 61. The EFTA Court has made statements to the same effect, see Case E-3/12 Jonsson, paragraph 57, see also Case E-2/11 STX, paragraph 35.

Case C-92/01 Stylianakis [2003] ECR I-1291, however, the CJEU has not always been consistent, e.g. Cases C-274/96 Bickel and Franz [1998] ECR I-7637, C-135/99 Elsen [2000] ECR I-10409, see also Dougan and Spaventa (2003), p. 699.

Cases C-100/01 Olazabal [2002] ECR I-10981, C-392/05 Alevizos [2007] ECR I-3505 paragraph 80, C-152/05 Germany [2008] ECR I-39, paragraph 18. For a more recent example in the field of free movement rights for students see Advocate General Sharpston’s opinion in Case C-359/13 Martens EU:C:2014:2240 where this approach is clear from the systematic approach to the questions asked by the national court. First, the right to free movement as a dependent family member of an economically active person is assessed and then second, the individual right as a non-economically active Union citizen is examined.

Cases C-60/00 Carpenter [2002] ECR I-6279, C-291/05 Eind [2007] ECR I-10719, C-228/07 Jørn Petersen v Arbeitsmarktservice [2008] ECR I-6989, joined Cases C-502/01 and C-31/02, Gaumain Cerri and Barth [2004] ECR I-6483.

Confer Citizenship cases analysed in this chapter and the observation by Hailbronner (2005), p. 1254 stating that ‘[t]he Court, however, deviates from secondary Community law without saying so’ and p 1255 that ‘[t]he reasons given for the disregard of secondary Community law are unconvincing’.

Confer Case C 333/13 Dano EU:C:2014:2358.

Labour law has, however, come under dispute in the EEA, in particular, with the decisions by the CJEU in Viking Line and Laval, Cases C-341/05 Laval [2007] ECR I-11767 and C-438/05 Viking Line [2007 ECR I-10779, see for a recent example Case E-14/15 Holship.

Different opinions exist regarding the extent to which the EU legal order is about creating supranational social regulation or about introducing any common social policy, see i.a. the debates leading up to the UK referendum on continued membership of the Union and the Agreement between the EU and the UK anticipating continued membership of the UK in the EU from February 2016.

European Commission, Completing the internal Market, COM (85) 310 final.

On 9 December 1989, the Heads of State or Governments of eleven of the then twelve Member States (the UK signed the Charter in 1998) adopted the text of the Community Charter of Fundamental Social Rights of Workers.

Jonsdottir (2013), pp. 96–112.

Jonsdottir (2013), p. 97, 103.

The usual adaptations such as substituting the words ‘Union citizen(s)’ with the words ‘national(s) of EC Member States and EFTA States’ were naturally included in the incorporating decision, confer Decision annex VIII 1(c).

Decision by the EEA Committee No 158/2007, OJ 2008L 124, p. 20, and EEA Supplement No 26, 8 May 2008, p. 17.

Union citizenship destined to be the fundamental status of nationals of the Member States was first formulated in Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 31.

See the analysis of the incorporation process of the Directive into the EEA in Jonsdottir (2013), pp. 96–112.

Case E-15/12 Wahl, paragraphs 72–92.

Case E-15/12 Wahl, paragraph 75. The case concerned the issue of membership of an organisation (Hells Angels) and the denial of entry into Iceland based on a risk assessment. While acknowledging the lack of the concept of Union citizenship in the EEA, the Court seemed less principled in its reasoning compared to earlier decisions such as Case E-1/01, Einarsson, and Case E-2/01 Post doc and more inclined towards an analysis based on a case-by-case approach. In the Einarsson and Postdoc cases the Court rejected any application of revised EU Treaty provisions either directly or by analogy.

See for the analysis of this case Sect. 6.3.3 below.

See the EEA Agreement annex VI Social Security, http://www.efta.int/media/documents/legal-texts/eea/the-eea-agreement/Annexes%20to%20the%20Agreement/annex6.pdf.

Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ L 166, 30.4.2004, p. 1.) and Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ L 284, 30.10.2009, p. 1).

Case C-431/11 United Kingdom v Council EU:C:2013:589, judgment 26 September 2013.

Note, however, that the CJEU reached the same interpretative result in cases involving other association agreements (Switzerland and Turkey) perhaps reducing the significance of the result being EEA specific, see Cases C-656/11 UK v Council and C-81/13 UK v Council.

Opinion 1/91, European Court reports 1991 Page I-06079.

First paragraph second section states the following: ‘[w]ith regard to the comparison of the objectives of the provisions of the agreement and those of Community law, it must be observed that the agreement is concerned with the application of rules on free trade and competition in economic and commercial relations between the Contracting Parties. In contrast, as far as the Community is concerned, the rules on free trade and competition have developed and form part of the Community legal order, the objectives of which go beyond that of the agreement. Indeed, the EEC Treaty aims to achieve economic integration leading to the establishment of an internal market and economic and monetary union and the objective of all the Community Treaties is to contribute together to making concrete progress towards European unity’.

The string of cases started with Case C-72/09 Rimbaud and continued with Cases C-267/09, C-342/10, C-387/11, C-112/14. The cases all concern the application of Article 40 EEA and the lack of corresponding provisions in the EEA to those of Directive 77/799/EEA (now Directive 2011/16/EU) on mutual assistance between Member States’ authorities in the field of direct taxation.

Case 270/80 Polydor [1982] ECR 329.

In this context it should be added that Regulation (EU) No 1231/2010 extending in the EU legal order the application of the coordination regime for social security to nationals of a third country who are not already covered solely on the ground of their nationality never was included in the annexes of the EEA Agreement, see the decision of the EEA Joint Committee 9 July 2014 explicitly stating that coordination regime applies without this addition in Article 1(b). Hence the Case C-431/11 United Kingdom v Council was only about EFTA States’ national s being considered as TCNs.

Council Decision 2011/407/EU of 6 June 2011.

See also the analysis of the case in Rennuy and van Elsuwege (2014), pp. 935–954. The authors conclude on p. 945 that ‘[N]ationals of the four EFTA States are not to be regarded as third-country nationals as far as the application of the EU’s social security rules is concerned. On the contrary, they have the same status as the nationals of EU Member States.’

Rennuy and van Elsuwege (2014), p. 947.

Burri and Pirker (2013), p. 220.

See in particular the analysis of the Case E-26/13 Gunnarsson, Sect. 8.3.

See also more details in Part III in report from the law firm Simonsen Vogt Wiig AS 4 January 2016to the Norwegian administrative authority on immigration (Udi), Legal study on Norway’s obligations under the EU Citizenship Directive 2004/38/EC.

Burri T, Pirker B (2013) Constitutionalization by Association? The doubtful case of the European Economic Area. Yearb Eur Law 32:207–229CrossRef

Countouris N, Freedland M (2013) Resocialising Europe in a time of crisis mostly focusing on labour law. Cambridge University Press

de Witte F (2011) The ends of EU citizenship and the means of discrimination. Maastricht J Eur Comp Law 18:86–107CrossRef

De Witte F (2012) Transnational solidarity and the mediation of Conflicts of Justice, Europe. Eur Law J (ELJ) 18(5):694–710CrossRef

Dougan M, Spaventa E (2003) Educating Rudy and the (non-)English patient: a double-bill on residency rights under Article 18 EC. Eur Law Rev 28:699–712

Giubboni S (2010) A certain degree of solidarity. In: Ross M, Borgmann-Prebil Y (eds) Promoting solidarity in the European Union. Oxford University Press, pp 166–197

Guild E, Gortázar Rotaeche CJ, Kostakopoulou D (eds) (2010) The reconceptualization of European Union citizenship. Brill Nijhoff, Leiden

Guild E, Peers S, Tomkin J (2014) The EU citizenship directive, a commentary. Oxford University Press

Hailbronner K (2005) Union citizenship and access to social benefits. Common Mark Law Rev 42:1245–1267

Horsley T (2013) Reflections on the role of the Court of Justice as the “motor” of European integration: legal limits to judicial lawmaking. Common Mark Law Rev 50:931–964

Jonsdottir J (2013) Europeanization and the European Economic Area. Routledge, pp 96–112

Kilpatrick C (ed) (2014) Social rights in times of crisis in the Eurozone – the role of fundamental rights challenges. EUI Working Paper 2014/05

Rennuy N, van Elsuwege P (2014) Integration without membership and the dynamic development of EU law: United Kingdom v. Council (EEA). Common Mark Law Rev 51:935–954

Ross M, Borgmann-Prebil Y (2010) Promoting solidarity in the European Union. Oxford University Press

Shaw J (2000) Social law and policy in an evolving European Union. Hart

Syrpis P (2015) The relationship between primary and secondary law in the EU. Common Mark Law Rev 52:461–488

Tryfonidou A (2016) The impact of Union citizenship on the EU’s market freedoms. Hart, Oxford

Verschueren H (2015) Preventing ‘Benefit Tourism’ in the EU: a narrow or broad interpretation of the possibilities offered by the ECJ in Dano? Common Mark Law Rev 52:363–390

Legal study on Norway’s obligations under the EU Citizenship Directive 2004/38/EC, Advokatfirmaet Simonsen Vogt Wiig AS, 4 January 2016

Title: Free Movement of Persons and Articles 45, 48 and 21 TFEU and Articles 28 and 29 EEA
Author: Karin Fløistad
Publisher: Springer International Publishing
Book: The EEA Agreement in a Revised EU Framework for Welfare Services
Print ISBN: 978-3-319-95042-6

Electronic ISBN: 978-3-319-95043-3

Copyright Year: 2018
DOI: https://doi.org/10.1007/978-3-319-95043-3_6

Springer Professional

Abstract

Please log in to get access to your license.

Dont have a licence yet? Then find out more about our products and how to get one now:

Springer Professional "Wirtschaft+Technik"

Springer Professional "Wirtschaft"

Premium Partner