Case comment

Case Comment: C-423/12 Reyes

 

Re-posted from the Eutopia Law Blog

 

Adrienne Yong

PhD Candidate at King’s College London

 

The recent developments in EU citizenship have been admittedly fairly quiet in comparison to the uproar after the ever controversial Zambrano case where the interpretation of citizenship provisions under Article 21 TFEU went astray. In the case of Reyes, the question concerns a clarification on the Directive 2004/38 and the meaning of ‘dependant’ under Art 2(2)(c). The case concerns third country nationals (TCNs), the cases of which have dominated the scene since Zambrano. The persistence of claimants in this respect is thus admirable, suggesting that Zambrano and indeed, the Directive itself, left a lot to be desired. This persistent pattern is to be received positively, representing good opportunities to clarify confusing positions.

Facts

Ms. Reyes, a Filipina, was brought up by her grandmother in the Philippines when she was three years old after her mother left to work in Germany to support her family. Ms. Reyes’ mother is now a German citizen.

Throughout her life, Ms. Reyes never held a job but similarly never relied on the Philippines’ social benefits. Her mother periodically sent money to support her, her sisters and her grandmother. Ms. Reyes’ mother moved to Sweden to be with a Norwegian man in 2009, whom she married mid-2011. He received a retirement pension which was also sent to the Philippines for Ms. Reyes’ benefit. After moving, Ms. Reyes’ mother did not work, living on her husband’s retirement.

When Ms. Reyes entered the Schengen area early 2011, she was refused a residence permit as dependent family member by the Swedish Migrationsverket for being unable to prove the funds sent by her mother and her partner were to sustain her life in the Philippines (in the form of basic needs, lodging, healthcare) or that any home state public funds were supporting her. This was due to the fact that she was fully dependent on her grandmother and the Migrationsverket decided this indicated she was not dependent on her mother in Sweden.

The appeal by Ms. Reyes to the Migrationsverket was dismissed because whilst they agreed her basic needs were supported by her mother’s funds, there was not enough proof that she would be able to survive without dependence on her mother and partner if she were to remain in her home state. They argued that she was still young, had qualifications from there, lived there, and still had relatives there. Her mother’s choice to support her was not determinative in the decision that Ms. Reyes’ was not dependent.

The first question referred thus aims to clarify if Art 2(2)(c) Directive 2004/38 – the definition of a dependent family member – requires that those over 21 years old must prove that they had searched for employment and failed OR sought support from public funds and it was also not possible before being considered a family member. The second asks if this family member can still be considered a ‘dependant’ if they are considered to be fairly well qualified to get employment AND intends to find a job in that Member State. This would nullify the conditions under which they would be a dependent relative.

CJEU judgment

In 16 short paragraphs, the Court of Justice of the European Union makes a concise and very coherent decision on Ms. Reyes’ situation.

Seemingly considering the Opinion of AG Mengozzi, the Court referred to Jia, where the situation concerned the definition of a ‘dependant’ for over-21 year olds. The standard would be a situation of ‘real dependence’ which must be construed broadly. This is somewhat justified and explained by AG Mengozzi in that whilst the free movement of persons telos is not primarily to maintain family unity, this reasoning does not seem to have been totally ignored. It supports the broad position taken by the Court in its judgment, deciding that the situation where Ms. Reyes’ mother periodically and consistently sent money to support her daughter’s life in her home state would be one of sufficient dependence. This is, furthermore, absent of any necessity to prove they have tried to find work or seek support from public funds to support themselves. This requirement would place an extra burden on the citizen, which is against the spirit of the fundamental freedom to move and reside. The Court is clear in applying Jia that Sweden were in breach of their obligations under the Treaty.

Regarding the definition of ‘dependant’, the decision is fairly self-explanatory. To deny a citizen the status of a dependant purely on the grounds of their intention and chances to seek employment in the Member State would be against Art 23, Directive 2004/38 which expressly protects the right of family to seek employment if they have residence, Lebon also cited. Therefore, this should not interfere with its definition.

Comment

AG Mengozzi places a significant emphasis on the interpretation of Directive 2004/38 in a broad and generous manner in terms of protection of family members and the rights they should derive from it. He draws upon the teleological perspectives of the provisions, which favour the unity of a family whether all Union citizens or not. Though recognisably different conclusions have been reached by the Court in the past in regards to similar questions, it would appear that the CJEU were convinced in this case that Directive 2004/38 should not be considered narrowly for Ms. Reyes’ situation.

Certainly, the judgment is not a surprising decision. Considering the importance of the right to freely move and reside, which includes employment opportunities for family as codified by Directive 2004/38, the case represents a hammering home of the definition of a ‘dependant’. Indeed, it goes to show that Member States cannot arbitrarily try to avoid their obligations to Union citizens’ families by way of minor technicalities and additional requirements.

 

Case comment

Case Comment: C-523/11 and C-585/11 Prinz and Seeberger – AG Sharpston strikes again

 

Re-posted from the Eutopia Law Blog

 

Adrienne Yong

PhD Candidate at King’s College London

 

Yet another chapter of the European citizenship saga sought clarification by AG Sharpston in the Prinz and Seeberger Opinion delivered last week on February 21, 2013. Concerning one of the most prevalent categories of citizens claiming rights under the Art 20 and 21 TFEU – students – Prinz and Seeberger discusses a classic situation that has pervaded the over 20 years of Union citizenship development. Effectively, AG Sharpston aims to explicate the notion of proportionality in citizenship, which has for years escaped valid clarification. She discusses the different strands of objectives of integration, with more substantial meaning than it would appear at first.

 

Facts

In Prinz, a German moved from Germany to Tunisia with her family for her father’s job, then returned years later for secondary school, subsequently deciding to attend university in Holland. She was granted funding from German authorities for her first year, but was rejected for the second as she failed to satisfy the ‘three-year rule’ residency requirement, which stated that a citizen had to be resident in Germany for three years prior to the start of their course.

In Seeberger, a German who attended school in Germany, then moved to Spain with his family for his father’s work in the middle of secondary school, completed his secondary education in Spain and after some time qualifying to university in Spain, sought a grant to fund his studies in Spain from the German authorities. This was denied again on the ‘three-year rule’.

Both argued that Art 20 and 21 TFEU were contravened for impeding free movement, and the Court of Justice of the European Union (CJEU) was asked to clarify whether this ‘three-year rule’ was contrary to EU law.

 

AG Opinion

In her Opinion, AG Sharpston sought to explicate her perspectives on the meaning and justification behind integration and proportionality, particularly referring to the justification behind residency requirements often being the protection of national resources. It is questioned by AG Sharpston whether the consistent invocation of the unreasonable burden reasoning requires reconsideration. Beginning by eliminating the provisions inapplicable in order to conclusively consider the effect of suitable criteria, she then delivers her insightful comments regarding justifications, proportionality and interpretation of the ‘three-year rule’.

Evidently, the three-year rule is a restriction. Germany thus submits two justification objectives, one under the economic rationale, the other socially related. She separates the two and considers the legitimacy and appropriateness of both restrictions in a detailed analysis of each objective’s interpretation.

It is evident that AG Sharpston is unconvinced that Member States should simply lay out economic objectives based on avoiding unreasonable burdens on the financial resources of Member States. This was discussed in Bidar and Morgan and Bucher. She believes it is apt for the CJEU to perhaps guide Member States as to what may constitute reasonable or unreasonable burdens, as this highly variable concept is subject to an element of potential exploitation on the part of the protectionist Member States. Suggested is a thorough analysis of whether the burden truly risks interfering with the balance of Member State resources to avoid invoking protectionism behind a veil of valid justification. She then continues to distinguish an economic objective from an integration objective, which brings into play the political elements of a proportionality assessment.

The interplay between integration and economics as objectives of justifications becomes a sticky situation, but ultimately AG Sharpston aims to clarify whether it suffices to consider integration an objective on its own. There is an inconsistency if integration objectives are cited to justify rendering an economic objective proportionate. This is because choosing to require a degree of integration simply to meet budgetary concerns actually ignores the notion of being integrated.

She goes onto state the ‘three-year rule’ is far too restrictive given it requires uninterrupted periods of residence immediately prior to education, and whilst there is no direct mention of nationality, the inherent connection a national has renders it a difficult factor to ignore when considering proportionality. This is particularly relevant here, as both claimants are German. She opines there are certainly less restrictive measures possible, though interestingly does not suggest any outwardly. Though the ‘three-year rule’ is transparent, efficient and legally certain – the rationales behind Germany’s choice of restriction – this does not translate to it being necessarily proportionate.

Under the social objective put forward by the Germans, solidarity is a feature. Ultimately, AG Sharpston considers that the ‘three-year rule’ has little to achieve by means of social objectives given that the link between requiring citizens to reside three years prior to education and them remaining after their studies is tenuous at best. Again legal certainty, transparency and efficiency did not outweigh proportionality.

AG Sharpston answers the CJEU’s question in the positive: Art 20 and 21 TFEU would preclude the ‘three-year rule’ from preventing the claimants from being granted the funding needed for education outside their own home States. Whilst a simple question in effect, AG Sharpston has managed to delve deeper into the meaning and notion of proportionality in terms of what Member States use as justifications, deconstructing their generic excuses of integrationist and economic objectives to uncover what their argument really insinuates and striking them down by use of the famous tool, proportionality.