Category: Case note

Conundrum on European Citizen’s Right to Non-Discrimination, Union Citizenship and Right to Reside

* Sarthak Gupta

The Grand Chamber [GC] of the Court of Justice of the European Union (CJEU) in CG v The Department for Communities in Northern Ireland, pronounced a significant ruling on Union citizenship and equal treatment. The judgement deliberates on two issues, protection under European Union [EU] Law of an EU citizen who was conferred pre-settled status under United Kingdom [UK] law during the transition period, and whether the case is indicative of an expanding body of case law concerning EU citizens’ equal access to social assistance whilst residing in a host Member State.

The author in this article addresses the court’s rationale which exemplifies the CJEU’s conservative perception of the right to equal treatment of economically inactive EU citizens, which has been prevalent before Dano v Jobcenter Leipzig.  The author further addresses that CJEU’s resorting to the Charter of Fundamental Rights [herein after CFREU] to address the crevices in the diminishing right to equal treatment of economically inactive EU citizens, in an unanticipated and unfathomable approach.

The ‘Case’

The case concerns the young mother of two small children, ‘CG’, a European national, with dual Dutch-Croatian nationality, who came to Northern Ireland (UK) in 2018 to live with her partner, children’s father who holds Netherlands nationality. She has been residing in a women’s shelter and cares exclusively for her children since separating from her husband due to domestic violence accusations. She has never carried out any economic activity in her lifetime in the UK due to domestic violence and recent pregnancies. Therefore, she has no acquaintances to support her livelihood and her children.  The UK Home Office gave her pre-settled status [PSS] in June 2020, implementing the Settlement Scheme, which was introduced in consideration of the UK’s obligations within Part 2 of the Withdrawal Agreement on citizens’ rights, and is included in Appendix EU of the UK Immigration Rules. This status authorizes EU citizens to continue to stay in the UK for another five years after the transition period ends.

Thereafter, she applied for a social assistance benefit known as Universal Credit, to the Department for Communities in Northern Ireland [DCNI]. The DCNI dismissed her application on the premise that she doesn’t meet the residential requisites. The DCNI contended that only individuals with a right to reside in the UK, as defined under Regulation 9(2) of the Universal Credit Regulations 2016, are perceived to have their habitual residence in the UK and are thus qualified to assert Universal Credit. The applicants who are Nationals of Member States, such as CG, who have a right of residence under the EU Settlement Scheme are excluded from the list of prospective Universal Credit recipients under Regulation 9(3)(d)(i) of the  Universal Credit Regulations, 2016.

CJEU’s rationale

The question before the CJEU was, whether Article 18 of the Treaty on the Functioning of the European Union [TFEU] (the right to non-discrimination on the pretext of nationality and citizenship of Union) precludes the Member States from withholding equal accessibility to social assistance to Union citizens who have a right of residence under domestic legislation?

Jurisdiction

The CJEU on establishing its jurisdiction referred to Article 19(3)(b) TEU and Article 267 TFEU [Para 1 of the Article] that the Court has jurisdiction to give a preliminary ruling on the interpretation of EU law or the validity and interpretation of acts of the EU institutions. The Court held that the case’s concern falls in the realm of ratione temporis of EU law, according to Articles 126 and 127 of the Agreement on the withdrawal of the UK and the court has jurisdiction to issue a preliminary ruling on the referring court’s request, within the virtue of Article 86(2) of that agreement. However, the Court held that it lacks jurisdiction to rule on the first concern, which considers the interoperability of Regulations 9(3)(d)(i) of the 2016 Universal Credit Regulations with the UK’s obligations under the European Communities Act 1972 because that issue does not engage the understanding of EU law or the veracity of an act of the EU institutions within the connotation of the European Communities Act 1972.

from: https://ec.europa.eu/eurostat/web/products-eurostat-news/-/ddn-20210315-1

Right to reside and non-discrimination

The CJEU then proceeded on to the subject of whether EU citizens can be unilaterally prohibited from social assistance and so regarded diversely from nationals. The Court observed that in all circumstances arising within the ambit ratione materiae of EU law, every Union citizen can depend on the prohibition of discrimination based on nationality enshrined in Article 18 TFEU. These instances also include incorporating the exercise of Article 20(2) TFEU para (a) and Article 21 TFEU’s right to move and reside within the boundaries of the Member States. The Court reiterated its long-held approach that Article 18 TFEU is a comprehensive right to non-discrimination that cannot be invoked in instances where a more specific expression of the same right also applies established in Dano and Jobcenter Krefeld cases. The Court further referred to Nalini Chenchooliah v Minister for Justice and Equality and held that EU citizens who move to or reside in Member State apart from their national, as articulated in Article 3(1) and Article 24(1) of  Directive (2004/38/EC), such individuals have the same right to equal consideration as nationals of the host Member State.

The Court taking the CG’s circumstances observed that it would fall in the realm of Article 24 of the Directive and Article 18 of TFEU won’t be applicable in the case. The Court held that the financial position of each individual ought to be determined, without taking consideration of claiming social benefits for examining whether the individual meets the requirement of having adequate resources [Article 7(1)(b) of the Directive]. Subsequently, as illustrated in the given scenario, CG doesn’t hold adequate resources, and it is plausible that she would become an unjustifiable responsibility on the UK’s social assistance structure. Therefore, the principle of non-discrimination enshrined in Article 24(1) of the Directive (2004/38/EC). In this instance, the order for reference directive cannot be relied forward upon.

Furthermore, even if the CG has the right to reside [temporarily] under national legislation, such right won’t be recognized as she doesn’t have any constitutional right under EU legislation [on the ground of Directive within the ambit of Article 24(1) of Directive]. The Court further held that the fact that national provisions regarding the right to reside of Union citizens which are more positive than those outlined in the Directive are unperturbed, does not imply that such regulations must be assimilated into the framework formulated by that directive, and it concludes, in specific, that it is up to each Member State to determine, as observed in Tomasz Ziolkowski and Barbara Szeja and Others v Land Berlin.

In the determination of the Charter’s spectrum in Article 51(1), the Charter’s provisions are only directed to the Member States when they are enforcing EU legislation. The Court in Terveys- ja sosiaalialan neuvottelujärjestö (TSN) v Hyvinvointialan liitto held that, according to Article 51(2), the Charter does not broaden the extent of EU law further than the European Union’s authorities, nor does it provide the European Union with any additional powers or responsibilities, nor does it amend the powers and tasks specified in the Treaties.

In this instance, the order for reference indicates that the UK authorities accorded CG a right of residency even though she lacked adequate resources. In regards to the right of residence, those authorities used more favourable norms. Those authorities acknowledged the right of a national of a Member State to reside freely on its territory, which is guaranteed to EU citizens under Article 21(1) TFEU, without giving reliance on the criteria and constraints imposed by the Directive.

This signifies that a Member State’s authorities can only withhold Union citizens, such as CG and her children social assistance after considering that such a rejection would not represent an “actual and substantial risk of infringement of their fundamental rights.” Furthermore, the Court stresses the following three fundamental rights, Article 1 CFREU compels the host Member State to ensure that the Union citizen can live in dignity. Under Article 7 CFREU, the state must also defend citizens’ right to privacy and family life, along with taking the highest concerns of children into account under Article 24 CFREU. The court concludes that when a citizen lacks the financial resources to meet his or her own and his or her children’s necessities and is isolated, those authorities should ensure that, even if social assistance is rejected, that person can nevertheless live with his or her children in a dignified way. Those authorities may consider all means of support given by national legislation, from which the citizen in question and her children are legally entitled to benefit, during that assessment.

CJEU’s labyrinthine rationale

The Court’s rationale in the CG case is far mysterious, at one place, the court held that EU citizens who have been accorded the right to reside under domestic legislation are duly recognized within the preview of the Charter. Subsequently, the court’s rationale on the right to equal treatment is conditionally both stringent and unreasonable. A rigorous understanding of the Directive [primarily Article 7(1)(b)] states, the applicant does not have the right to reside in the EU. However, under domestic legislation, she does have the right to reside. This is consonant with the Directive, which is a mechanism for minimum synchronization and permits the Member States to place more favourable standards under Article 37 of the Directive. The Court has previously in María Martínez Sala v Freistaat Bayern ruled that even though a Union citizen has a right of residence in a host country exclusively under domestic legislation, he/she/they may proceed to exercise the fundamental EU right to non-discrimination.

‘Article 8(2) of the Treaty attaches to the status of citizen of the Union the rights and duties laid down by the Treaty, including the right, laid down in Article 6 of the Treaty, not to suffer discrimination on grounds of nationality within the scope of application ratione materiae of the Treaty.’ [Para 62; Martínez Sala]

The Court’s rationale in the CG’s case took a divergent approach and held, a union citizen who has only been provided with the right to reside under domestic legislation may not exercise the fundamental right to equal treatment under Article 18 TFEU. She may rather depend exclusively on the auxiliary right to non-discrimination [Article 24; Directive]. Nevertheless, since the EU citizen is not granted citizenship and is not a resident under the Directive, the citizen cannot exercise her right to non-discrimination under the same Directive. Thereafter, the Court concludes that a Union citizen with a recognized right to reside would not have the right to equal treatment in the jurisdiction of the host Member State. This narrow rationale of the court draws a delineation between EU citizens who have a fundamental right to reside under EU law and those who have a lawful right under domestic legislation.

Notwithstanding the Court’s errors to uphold the right to equal treatment, CG is not denied all EU constitutional protection. The Court holds that the UK must continue to adhere to the Charter. CG cannot be denied access to social assistance when doing so would violate her EU Charter rights. Significantly, the Court over-looks Article 21(2) CFREU, which also guarantees for the right to non-discrimination on the account of nationality, but instead emphasizes Articles 1, 7, and 24 CFREU, which must be protected by national authorities.

In CG’s case, the protections enshrined under the Charter are accorded because she has a legal right to reside under domestic legislation. As held in Dano, an applicant who lacks sufficient resources and has not been awarded a more preferential residency right under national legislation will be denied access to the Charter.

Article 51(1) of the Charter states that the provisions of the Charter are addressed ‘to the Member States only when they are implementing Union law’. [Para 67, Dano]

Therefore, the Charter does not provide Union citizens with a broader spectrum of protection, but rather is exclusively accessible to the limited group of Union citizens who have been granted the right to reside under domestic law. The Court’s apparent concern was to preserve the individuals in this case, CG and her two children, and to assure that they can proceed to live concludes in Northern Ireland in a dignified manner. Unfortunately, by adopting a very restricted approach, the Court seriously restricted the impact of this judgment on the protection of the greater population of Union citizens and continues to undermine the fundamental right to equal treatment conferred by Article 18 TFEU.

 

* Sarthak Gupta is an undergraduate B.A; L.L.B [Hons] law student at the Institute of Law, Nirma University, India. His scholastic interest follows Constitutional Law, Human Rights & Gender Studies, and International Law.

 

Inadmissibility of the Action Against the EU Climate and Energy Framework

Some Reflections on the People’s Climate Case

by Enzo Elia*

The applicants of the case Carvalho v. Parliament and Council, also known as the people’s climate case, claim that their homes, livelihoods, traditional family occupation and culture are affected by climate change.

Climate change already has severe impacts on ecosystems, the economy, human health, and the well-being of the people around the world, including Europe. We can observe an increasing number of people claiming for more ambitious climate action from their governments and taking action to fight against climate change.

The applicants of the people’s Climate Case, supported by a broad range of NGOs, lawyers, citizens and scientists, are calling for a significant push on the EU agenda regarding its climate action and its 2030 climate target fixed by the 2018 Climate and Energy Framework.

The applicants underline that the climate protection is no longer a political or diplomatic issue rather, climate change has become a concrete problem which severely impacts their homes, livelihoods, and hinders their children’s future. Furthermore, the applicants also argue that a more ambitious EU 2030 climate target below 2 °C, or ideally 1,5 °C would also support the global community to keep within the range of the Paris Agreement’s long-term temperature goal. This would allow the objective to keep temperature rise within globally “safe limits”.

Facts of the Case

The case was filed in 2018 by 36 different applicants from five EU Member States Germany, France, Italy, Portugal, and Romania and two countries Kenya and Fiji, as well as a Swedish association representing indigenous Sámi youth before the General court.

Directly affected by rising sea levels, floods or drought – consequences of climate change – the applicants challenged the 2018 Climate and Energy Framework measures regulating greenhouse gas emissions for the years 2021 to 2030 namely the EU Emissions Trading System Directive, the Effort Sharing Regulation and the LULUCF Regulation. These EU instruments set an overall target of reducing annual greenhouse gas emissions by 40% compared to 1990 emission levels. Alleging a violation of their fundamental rights and invoking the Paris Agreement, the applicants requested the followings from the court : (i) to annul the Union’s legislative package insofar as it sets a target of 40% reduction in greenhouse gas emissions by 2030 compared to the level of the year 1990, and (ii) to order the Council and the European Parliament to adopt measures imposing a reduction of GHG at least between 50 and 60%, in lieu of monetary compensation for their alleged individual losses under Article 240(2) TFEU.

The General Court of the European Union

By order of 8 May 2019, the General Court ruled that the action was inadmissible on the basis that the applicants bringing the action failed to satisfy any of the locus standi criteria. Referring to a strict application of the Court of Justice of the European Union (CJEU) judgement Plaumann of 1963, the General Court decided that the applicants were not individually concerned by the EU Climate and Energy Framework.

The General Court stated that despite the effects of climate change may be different for one person to another, this does not mean that there exist reasons to bring an action against a measure of general application. In its view, a different approach has the effect of rendering the requirements of the Treaty on the Functioning of the European Union (TFEU) meaningless and creating locus standi for all. The General Court then ruled on the claim that the Council and the Parliament should be ordered to adopt more severe measures, which was made in the form of a claim for damages. the General Court considered that this claim sought, in reality, to obtain a result similar to the result of annulling the acts at issue and that, consequently, it also had to be declared inadmissible.

The applicants then appealed against the order of the General Court with the objective of the CJEU authorizing to rely on a possible infringement of fundamental rights to satisfy the conditions of the Plaumann judgment.

The Court of Justice of the European Union

The CJEU reiterated what the General Court held in Sabo, another climate action case. In Sabo, the General Court held that claiming that an act of the Union infringes fundamental rights is not sufficient to establish that the action brought by an individual is admissible.  This would risk violating the conditions of admissibility laid down in Article 263(4) TFEU. The CJEU recalled that the Courts of the European Union may not, without going beyond their jurisdiction, read those conditions in a way which has the effect of setting aside what is expressly laid down in the TFEU, even in the light of the fundamental right to effective judicial protection enshrined in the Charter of Fundamental Rights of the European Union.

Comment

Wouldn’t it have been better to question the relevance, today, of the criteria set out in Plaumann case law, regarding climate actions? Article 263(4) TFEU includes the notion of individual concern. One should not be obliged to read into this notion a requirement that an individual applicant seeking to challenge a general measure must be differentiated from all others affected by it in the same way as an addressee. On that reading, the greater the number of persons affected by a measure the less likely it is that judicial review under the fourth paragraph of Article 263(4) TFEU will be made available. The fact that a measure adversely affects many individuals, causing widespread rather than limited harm, provides a positive reason for accepting a direct challenge by one or more of those individuals. It should therefore be accepted that a person is to be regarded as individually concerned by an EU measure where, by reason of his particular circumstances, the measure has, or is liable to have, a substantial adverse effect on his interests.

In a nutshell, the Plaumann criteria are too restrictive and do not allow adequate access to justice for environmental and climate actions. Climate change, by its nature, affects everyone, present and future generations alike. Following the case-law of the CJEU, the mere fact that the effects of climate change are general renders the corresponding legal acts unsuitable for judicial review.

For the applicants to argue the infringement of their fundamental rights, they relied, inter alia, on the Codorníu case. In Codorníu a Spanish producer of sparkling wines sought to challenge a provision of a regulation which reserved the use of the designation crémant for wines produced in certain areas of France and Luxembourg. That provision could affect the position of all producers of sparkling wines in the EU using, or desiring to use, the designation crémant. The Court found nonetheless that Codorníu registered the graphic trademark Gran Crémant de Codorníu in Spain in 1924 and traditionally used that mark both before and after registration. By reserving the right to use the term crémant to French and Luxembourg producers, the contested provision prevents Codorníu from using its graphic trademark, and it concluded that Codorníu had therefore established the existence of a situation which from the point of view of the contested provision, differentiated it from all other traders.

Therefore, in Codorníu it was established that the applicant was harmed by a legislative act of general application by his individual interest derived from an individual trademark right he had acquired. However, the CJEU rejected the argument claiming the analogy between the people’s climate case with the Codorníu case. As noted in a comment on the Sabo case, the reasoning of the  CJEU was in essence that the Codorníu case concerned the loss of the acquired specific right to use a word within a trademark, while the people’s climate case concerned the protection of their fundamental rights, which are original and universal. Thus, in the current state of CJEU case law, the loss of a specific acquired right that is not originally possessed by its owner would find greater judicial protection than the infringement of fundamental rights granted to one or more individuals.

Given the rigidity of the Plaumann criteria, applicants are inclined to find – sometimes using a loophole as an alternative – other reasons for their claims, rather than relying directly on the violation of fundamental rights. Admissibility is therefore one problem – but not the only one – with which litigation on environmental protection and the fight against climate change must contend. The criteria imposed by Plaumann should be revised to adapt them to the needs of environmental protection. In fact, criteria designed to be applied to human beings are ill-suited to environmental protection, which would only be able to comply with them indirectly using other justifications aimed at demonstrating the presence of an individual interest.

It is also worth recalling that the European Union is bound by the Aarhus Convention. Article 9(3) of the Aarhus Convention requires that “members of the public […] may initiate administrative or judicial proceedings to challenge acts and omissions by private persons or public authorities which contravene provisions of national law relating to the environment”. As noted in another comment on the case, the Compliance Committee of the Aarhus Convention has stated in two reports published in 2011 and in 2017,that the criteria established by the Plaumann judgment were “too strict to meet the Convention’s criteria” because “persons cannot be individually affected if the decision or regulation takes effect by virtue of an legal objective legal or factual situation”.

However, beyond the question of admissibility, it could be argued, as some scholars did, that the possibility for an individual applicant to trigger a reference for a preliminary ruling under Article 267 TFEU provides full and effective judicial protection against general measures, such as measures related to environmental protection and the fight against climate change.

AG Jacobs in his opinion in Unión de Pequeños Agricultores case of 2002 criticised this assumption.

In fact, under the preliminary ruling procedure the applicant has no right to decide whether a reference is made, which measures are referred for review or what grounds of invalidity are raised and thus no right of access to the Court of Justice; on the other hand, the national court cannot itself grant the desired remedy to declare the general measure in issue invalid. Furthermore, there may be a denial of justice in cases where it is difficult or impossible for an applicant to challenge a general measure indirectly (e.g. where there are no challengeable implementing measures or where the applicant would have to break the law in order to be able to challenge ensuing sanctions. Finally, indirect challenges to general measures through references on validity under Article 267 TFEU present several procedural disadvantages in comparison to direct challenges under Article 263 TFEU before the General Court as regards for example the participation of the institutions which adopted the measure, the delays and costs involved, the award of interim measures or the possibility of third-party intervention.

Conclusion

In 2002 AG Jacobs has started calling for the Plaumann criteria to be significantly revised and this is more than acceptable. However, the CJEU has strictly applied the individual concern requirement up to now. While the preliminary ruling does not represent a complete protection against infringements resulting from measures of general application, it is also true that it can confer some protection on individuals and can therefore be an alternative to direct action at least until the CJEU is willing to change its approach on the concept of individual concern.

Beyond the question of the application of Article 267 TFEU, in a case like the people’s climate case, appeals under Articles 263 and 277 TFEU would also have failed. The Plaumann criteria would have constituted an obstacle to the application of Article 277 TFEU. Furthermore, the level of partial harmonisation of the 2018 Climate and Energy Framework would have made a possible appeal to the CJEU under Article 263 TFEU against the implementing acts of the member states inadmissible.

The CJEU’s restrictive approach now differs from those adopted by national courts regarding the locus standi of natural persons in climate actions. But the admissibility of a climate action at national level to safeguard a fundamental right is influenced by national laws, which leads to differences in protection depending on the Member State in which action is taken. A second problem is the often very high costs that claimants must bear for a nationwide action, as well as possible delays in the procedure.

Today, the European Union is one of the main global actors for the adoption of ambitious climate policies, but there is still a lot to be done in terms of access to justice for environmental and climate action.

* Enzo Elia is a teaching and research assistant, and he is carrying out a Ph.D. in EU and international climate change law at the University of Geneva. His Ph.D. research aims to understand how and to what extent the EU contributes to the development and implementation of the global climate regime through the analysis of the compositional elements of the concept of EU actorness. The analysis will lead to the redefinition of the concept of EU actorness in the field of climate change. Furthermore, ascertained that the discipline still lacks a generalizable conceptual framework, an attempt will be made to propose a new model to bring research on actorness to a systematic level.

His current areas of interest and activity include EU and international environmental and climate change law, EU and international governance, the relationship between climate change and human rights, the relationship between the global climate change regime and other global regimes, the systemic relationships between regional and international organisations, international dispute settlement, sustainable development.

 

The Withdrawal of the Notification under Article 50, or How to Stop Brexit

The Editors

The United Kingdom is due to leave the European Union on 29 of March 2019. On what terms it will do so, it is yet uncertain when less than three weeks are left before Brexit day.

On Tuesday next week, 12 March 2019, the UK Parliament will cast a vote on the new deal reached by Theresa May and the EU – ‘new’ because the parties re-open the negotiation talks after the UK Parliament had rejected the previous deal on 15 January 2019, inflicting a historic defeat to Theresa May.

On 12 March, the deal with the EU on the conditions for leaving the European Union may either be approved or rejected. If it is rejected, the conservative party has promised to the Parliament the opportunity to vote on whether to go ahead in just over three weeks’ time without any kind of negotiated deal; or whether to ask the EU to push back Brexit day in order to extend negotiations. In the latter case, it is not excluded that the UK will hold new elections, a new referendum, or even eventually halt the Brexit process. We dedicate this blog post to the European Court of Justice’s decision on whether the UK can withdraw the notification of the intention to leave given in March 2017.

The Wightman case originates from a request for a preliminary ruling made by the Court of Session –  the Scottish Supreme Civil Court – to the European Court of Justice in October 2018. The case in front of the referring court concerned a petition for judicial review brought by some Members of the Scottish and the English Parliaments before the Scottish Court on the 19th December 2017. The referring Court asked the CJEU whether the notification to withdraw from the EU sent to the European Council by the UK government on the 29th March 2017 could be unilaterally revoked by the government itself before the expire of the 2 years period envisaged in article 50(3) TEU.

Continue reading “The Withdrawal of the Notification under Article 50, or How to Stop Brexit”

Is Uber a taxi service? Socio-legal reflections on the ECJ decision and beyond  

Serena Natile – Postdoctoral Researcher at King’s College London and Associate Lecturer at Kent Law School, University of Kent

Just before the holiday break, the Court of Justice of the European Union (ECJ) in its first ruling on the gig economy decided that the global digitally-enabled taxi company, Uber, is a transportation and not an information service and can be regulated by Member States (MS). This judgement has raised important questions regarding the regulation and social implications of digital platforms according to EU law and beyond. While the ECJ’s decision created more grounds to protect workers’ rights in the sharing economy and contributed to the debate on the allocation of EU/MS competences within the digital domain, it also offers useful insights to reflect on the social role of digital platforms more generally.

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‘One for all, all for one’: the sweeping notion of defects in product liability case Boston Scientific

Luigi Lonardo, LLM in EU Law, King’s College London

The Court of Justice of the European Union’s (CJEU) first ruling on what is a ‘defective product’[1] will likely not be the last one, since it was highly ambiguous to say the least. The judgement is doomed to have broad repercussions indeed on European product liability litigation and consumer protection law.

The Court found that, with reference to medical devices implantable in the human body, “a product is defective“ within the meaning of Article 6 of Directive 85/374[2] (“the Directive”) “if products belonging to the same group or forming part of the same production series have a potential defect“. In other words, there is no need to prove the defect in each individual case, if other products in the same batch have a potential defect. Moreover, the Court stated, under Article 9 of the same Directive, the producer is liable for the damages caused by a surgical operation necessary to replace a defective product.

Even if limited to implantable medical devices, such a definition may nonetheless surge compensation claims against producers and insurers for two reasons. First it simplifies what the claimant has to prove. Second it resorts to ill-defined concepts that may lead national courts to request further clarifications and plaintiffs to try action by taking advantage of the indiscriminate wording of Boston Scientific.

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