Tag: Eu citizenship

When your neighbour is your enemy, what happens to European integration? Case C 364/10 Hungary v Slovak Republic [2012]

Egle Dagilyte

LLB, LLM, GCAP

PhD candidate at King’s College London and Senior Lecturer in Law at Bucks New University

 

In the judgment, delivered on 16 October 2012, the Court of Justice of the European Union (CJEU) had to resolve a conflict between two Member States that joined the Union in 2004.

What happened?

In this case, Hungary claimed that Slovakia infringed free movement of persons (in particular, Article 21(1) TFEU and the Citizenship Directive 2004/38) by not allowing Mr Sólyom, the Hungarian President, to enter its territory. Slovakia, for its part, stated that this prohibition was valid for one day only – the day of the 41st anniversary of the invasion of Czechoslovakia by Warsaw Pact troops, which included Hungarian troops. In short, the dispute was a conflict of a political nature relating to the soviet history of both Member States, which ended up before the Court as a matter of non-discrimination and free movement of persons under EU law.

Apart from the historical and political context, procedural aspects of the case were also interesting, as indirectly they reflected the European Commission’s attitudes towards current anti-democratic developments in Hungary. Initially, Hungary asked the Commission to bring infringement proceedings before the Court of Justice against the Slovak Republic under Article 258 TFEU.  The Commission considered, however, that the dispute was outside the scope of EU law. Hungary then decided to bring infringement proceedings before the Court of Justice on its own initiative against the Slovak Republic, as authorised by the Treaty (Article 259 TFEU). The Commission decided to intervene in the proceedings in support of the Slovak Republic.

On 6 March 2012 Advocate General AG Bot delivered his opinion, in which he came to the conclusion that the Slovak Republic did not infringe EU law.  The Advocate General considered that “it was indeed in the performance of his duties as the President of Hungary, and not simply as a citizen of the Union, that Mr Sólyom wished to visit the town of Komárno” (para 49). Therefore, the movements of the Heads of State, although made within the Union, fell within the sphere of diplomatic relations that remain within the competences of Member States and were governed by international law, and not by EU law (paras 51-57). The only restriction placed by EU law was the prohibition for Hungary and Slovakia to exercise their diplomatic relations “in a manner that might lead to a lasting break in diplomatic relations between two Member States” (para 58).

The ruling of the Court of Justice

The Court started with the famous statement based on its previous case law that “citizenship of the Union is intended to be the fundamental status of nationals of the Member States” (para 40) and that every person who is a national of an EU Member State is entitled to such a status (para 41), including Mr Sólyom, the Hungarian President. However, the Court stated that “EU law must be interpreted in the light of the relevant rules of international law, since international law is part of the European Union legal order and is binding on the institutions” (para 44). This is an interesting statement in relationship to the recent claims by the Court of the autonomy of the European legal order from international law, which generated extensive legal debates, especially in the context of the UN and EU terrorist lists. The Court went on to distinguish whether, at the time of the expected entry, Mr Sólyom was acting as the Head of State and concluded in the affirmative (paras 45-50). This “specific character” of the EU citizen acting as the Head of State was “capable of distinguishing the person who enjoys that status from all other Union citizens, with the result that that person’s access to the territory of another Member State is not governed by the same conditions as those applicable to other citizens” (para 50). Therefore, Mr Sólyom could rely neither on Article 21 TFEU nor on Directive 2004/38 to gain entry to Slovakia. The Court also rejected Hungary’s argument that Slovakia abused EU rights by relying, during diplomatic communications, on the same Directive when refusing Mr Sólyom’s entry (paras 53-61).

The second and fourth heads of complaint by Hungary related to the future (i.e. hypothetical) infringements of EU law (Article 3 TEU, Article 21 TFEU, Directive 2004/38) by Slovakia. These complaints were rejected as inadmissible. In doing so, the Court pointed to the purpose and nature of the EU law-enforcement procedure under Article 259 TFEU: “as the aim of the Treaty is to achieve the practical elimination of infringements by Member States and the consequences thereof… an action under Article 259 TFEU concerning future possible infringements or limited to seeking an interpretation of EU law is inadmissible.”

The outcome: what does it mean for European integration?

Even though Hungary’s claims on all accounts were dismissed in their entirety, this case was an important one: it was decided by the Court sitting as the Grand Chamber (15 judges). Two important observations could be made.

Firstly, this is only the sixth time in the history of European integration that one Member State has initiated an action for failure to fulfil obligations directly against another Member State.  The enforcement procedure under Article 259 TFEU is rarely used, as Member States generally prefer, for political reasons, to ask the Commission to act under Article 258 TFEU. Of the five earlier cases under Article 259 TFEU, none related to diplomatic relations of Member States and only three were closed by final judgment. These were 141/78 France v United Kingdom (regarding fishing boundaries and the notification of conservation measures), C-388/95 Belgium v Spain (whether the designation of origin “Rioja” wines was Spanish), and C-145/04 Spain v United Kingdom(whether the inhabitants of Gibraltar could participate the European Parliament elections).

Secondly, the use of Article 259 TFEU procedure in diplomatic relations between Hungary and Slovakia illustrates important dynamics for European integration, especially since the enlargements of 2004/2007. Whilst the Court did not refer to AG Bot’s Opinion in its judgment, the Advocate General emphasised that “a lasting break in diplomatic relations between two Member States … would, in fact, be incompatible with the integration process … and would constitute a barrier to the attainment of the essential objectives of the Union, including the aim of promoting peace” (para 58). Interestingly, Hungary and Slovakia are not the only neighbouring Member States that tried solving their diplomatic conflicts through litigation before the Court. One could point out to the recent highly-political Runevic-Vardyn litigation, which touched upon national sensitivities of Poland and Lithuania.

While “my neighbour is my enemy” attitude is not uncommon in the history of European integration (take the initial membership of the UK and the French position as an example), it poses great problems for European project. If Jean Monnet’s vision of the future Europe and the recent Nobel Prize are to mean something, all 27 Member States need to find dialogue not only on political/historical issues, but also on many social and economic ones, which are central for the effective functioning of the Union. Otherwise, in addition to the current economic and Euro crises, we are to face uncertain times, indeed.

 

Note: This article was originally published on 15 November 2012 on the Bucks New University Law Blog (http://bucks.ac.uk/whoswho/school_of_applied_management_and_law/law/blog/c_364_10_hungary_v_slovakia/).

REVIEW: Union Citizenship – Unleashing the Potential, a conference held by Durham European Law Institute (DELI)

Adrienne Yong

LLM in EU Law candidate, King’s College London; LL.B. (Hons) Dunelm

 

December 16, 2011 saw the Institute of Advance Legal Studies in Russell Square play host to a variety (and quite a diverse group) of legal scholars, practitioners and students all with one aim in mind – to uncover, or rather, as the title eludes, “unleashing the potential” of Union citizenship. Whilst this realm of the EU is not always one which is hotly debated or prominently featured in the media, it is nonetheless an extremely pertinent and exciting area where developments are constantly surprising, even for those who have been in it for several years.

The organisers of the seminar invited speakers from different backgrounds – from academics, such as the convenor, Professor Eleanor Spaventa, to representatives of the Citizens Advice Bureau. They dealt with controversial points as well as unorthodox perspectives on Union citizenship and their presentations gave rise to lively debates, especially between legal practitioners (one of whom had represented Mrs. McCarthy in the seminal McCarthy[i] case where perhaps the potential of Union citizenship was not so much unleashed than reined back).

The seminar kicked off with the introduction and discussion surrounding the political technicalities of free movement of Union citizens, spearheaded by Mr. Michal Meduna from the European Commission. This included analysis of Article 20, Treaty on the Functioning of the European Union (TFEU)[ii] as well as Directive 2004/38 (The Citizens’ Rights Directive).[iii] Quite a technical beginning it was, however, the gist of the presentation was to reiterate that Member States have faced significant issues while implementing the Directive, with 1100 mistakes found across the 27 Member States. As an example, Mr. Meduna brought attention to the situation in Denmark, which is notoriously denying Union citizens’ spouses entry, despite it being a right under Article 2 of the Directive (providing for an automatic right of entry and residence for core family members, irrespective of their Union citizenship status). Ms Catherine Taroni, PhD candidate at Durham University, then continued by presenting her take on the UK’s implementation of Directive 2004/38. A particular focus was placed on the case law of family rights to residence, and the fact that British McCarthy case, compared to Avello[iv] and Grunkin and Paul,[v] now demonstrates a clear shift away from potential movement to need of actual movement in order to rely upon the Directive. At least this was the opinion of Miss Taroni, though it is certainly debatable given the different factual situations in the cases themselves. However, for a Union citizenship enthusiast and believer, the shift is nonetheless present, and frowned upon.

This discussion led nicely into Mr. Simon Cox’s (Open Society Justice Initiative and lawyer for Mrs. McCarthy) criticism of the framework for enjoyment of Union citizenship rights. He noted more than few obstacles, with the general consensus being that at least in the UK, pragmatism and bureaucracy rather than formal legal restraints prevented the potential of citizenship rights to be unleashed. It was an eye-opening perspective to the process from a practical standpoint. Mr. Cox noted it was “excessive unpicking” for using the Directive to gain rights to residence, and noted that benefit tourism, a classic excuse against rights conferral, had not yet been proven. At this point, it was clear that whilst Union citizenship rights were aplenty, its potential was still being significantly held back by various different factors, not least the judicial process itself. It was clear that Mr. Cox favoured the empowerment of citizenship rights, and was frustrated at its troubles.

Professor Robin White of the University of Leicester then discussed Article 18 TFEU’s (equal treatment) application to residency seen first in Baumbast.[vi] He noted it filled a lacuna in Union citizenship rights. His topic of discussion was particularly pertinent given Zambrano’s[vii] recent radicalism in its conferral of an independent right to residence on the basis of Article 20 TFEU, separate from Directive 2004/38. Professor Bernard Ryan of the University of Kent then succeeded Professor White by noting the inherent tensions in permanent residence conferral compared to legal residence. The controversy surrounded any time periods spent in residence pre-Directive 2004/38 and whether this counted towards the five years needed for permanent residency. It became evident that there was hesitance because Member States had interest in protecting their social assistance systems, yet it ran counter to the idea of unleashing Union citizenship’s potential. This trend was evident throughout many of the seminar presentations, and it became more and more obvious that there was a significant depression in faith held of the strength of Union citizenship rights, at least held by those who had seen its effects and followed its development since Maastricht.

This tone continued into Dr. Charlotte O’Brien’s (York University) discussion both as an academic and a volunteer practitioner at the Citizens’ Advice Bureau. She took a condemnatory tone having seen the law apply (or not) to citizens who required legal advice, given the blatant disregard by some Member States. This was the rhetoric of the Citizens’ Advice Bureau representatives themselves, and the fact that it was concreted into the application by Member States only served to prove the point that unleashing citizenship’s potential was becoming more and more difficult. However, Richard Drabble QC who featured in Lassal[viii] did note that the UK were willing to recognise when their references to the Court of Justice were necessary, providing a glimmer of hope for citizenship which this author certainly favours. Finally, a completely new turn was taken by Dr. Amandine Garde of Durham University (a King’s Alumni) in her expertise as an Internal Market academic, with the notion that citizenship rights could be better protected if premised upon the best interests of the child principle, also the welfare principle. This was in the context of family reunification and family rights in Directive 2004/38. It provided a fresh outlook on citizenship, considering the downward spiral insinuated by many presentations and indeed in the heated discussions in between. Whilst there was clear uncertainty as to the welfare principle’s application, a fundamental rights discourse had been introduced. This is pertinent given the introduction of Article 6, Treaty of the European Union (TEU)[ix] in the Lisbon Treaty where the Charter of Fundamental Rights and European Convention on Human Rights were finally given equal status with the main Treaties of the EU.

For a Union citizenship fanatic such as me, it was a greatly informative and extremely relevant seminar. The introduction of the fundamental rights discourse also left the attendees with something to ponder, and indeed could be used to further “unleash the potential” of these clearly significant and potentially life-altering rights. Representation from both sides of the legal coin in the presence of QCs, academics and indeed, feeble students such as myself made the discussion and debate a varied and novel one. Even those without the background knowledge and experience some of the attendees had under their belts could see the intricacies and nuances of this particular area of EU Law, and undoubtedly more seminars on this dynamic topic will follow.

[i] Case C‑434/09 McCarthy [2011] ECR I‑0000

[ii] Consolidated version of the Treaty on the Functioning of the European Union [2008] OJ C-115/47

[iii] Council Directive 2004/38 of of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L-158/77

[iv] C-148/02 Garcia Avello [2003] ECR I-11613

[v] C-353/06 Grunkin and Paul [2008] ECR I-07639

[vi] C-413/99 Baumbast [2002] ECR I-7091

[vii] Case C‑34/09 Ruiz Zambrano [2011] ECR I-0000

[viii] Case C‑162/09 Lassal [2010] ECR I‑0000

[ix] Consolidated Version of the Treaty on European Union [2008] OJ C115/13