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.

 

Article

Effective judicial protection in the European Year of Citizens 2013

Mehmed Yuseinov

LLB Law and European Studies graduate from the University of Portsmouth

 

In its practice exceeding more than fifty years, the Court of Justice of the European Union (CJEU) has developed several seminal legal principles with an aim to ensure a uniform and consistent application of the EU Treaties.[i] Guaranteeing smooth interpretation and application of EU law is not only an aspiration, but also the CJEU’s duty established under Article 19 of the Treaty on European Union (TEU).[ii] This article seeks to provide a general overview of the principle of effective judicial protection. It aims to outline the role of the EU and national bodies which can advise on EU citizens’ rights in cases of misapplication of Union law. Further, the article will appraise how the seminal principles developed by the CJEU enabled individuals to obtain remedies in their national courts.

Effective judicial protection can be interpreted in a three-stage process. The first stage concentrates on the question if the EU citizens are aware of their rights. The second stage is defined with the concept of access to justice. The final stage is focused on the effective co-operation between the national courts of the Member States and the CJEU and enforcement of the decisions of the national courts.

I.             Awareness of the protection of EU citizens’ rights

Protecting the rights of EU citizens and ensuring that the objectives of the concept of European citizenship are observed is a necessity. Although the 1957 EEC Treaty[iii] was silent on the protection of fundamental rights and European citizenship, from the 1970s onwards many initiatives have been put forward in order to establish a “Europe for Citizens”.[iv]

In the current Treaty framework, European citizenship and its objectives are defined in Art.20 TFEU[v] which identifies and accentuates the advantages of being an EU citizen. European citizenship provides us with many benefits: the rights to move, work and reside within the Union; right to study in another Member State; the right to vote in the European Parliament elections in the country where you reside and the right to receive protection from another EU Member State in the country you are visiting if your country of origin is not represented.[vi]

In 1975, Belgian Prime Minister Tindemans clearly enunciated that ‘[n]o one wants to see a technocratic Europe. European Union must be experienced by the citizen in his daily life.’[vii] Thus, if the EU seeks to fulfil its aspiration to create ‘an ever closer Union among the peoples of Europe’, it needs to place the citizen at the heart of its decision making.

The 2010 Eurobarometer survey[viii] revealed that the majority of the EU citizens were unaware of their rights granted by the EU.[ix] The purpose of the European Citizenship Report 2010[x] was to identify the obstacles to EU citizens’ rights and suggest practical solutions in order to overcome the problems that EU citizens might encounter. The outcome of the consultations was the launch of a website called ‘Your Europe’.  The web page provides practical information about Union citizens’ rights and about national rules and procedures from which the Union citizens can benefit. Another proposal in line with the European Year of Citizens 2013 includes the organisation and promotion of events on EU citizenship and citizens-related policies which will potentially increase the civic involvement and thus strengthen citizens’ awareness of their EU citizenship status.

II.           Access to justice: the role of EU and national bodies

Once EU citizens are aware of their rights, the second fundamental point which needs to be considered is which institutions or bodies can advise EU citizens on their rights? As the 2012 Eurobarometer survey[xi] revealed, the EU citizens need more information about where to turn in cases of violation of their EU rights.

On 6 December 2012, the Fundamental Rights conference was held in Brussels. The topic of the conference was access to justice and the speakers stressed that it is a fundamental matter as it not only ensures the democratic governance within the EU, but also ‘gives practical effect to the foundation stone of the rule of law on which the Union is built’.[xii]

Commissioner Reding in her speech in this conference[xiii] acknowledged that 21% of the EU citizens will turn to their national courts in cases of violation of their Charter rights and 20% will bring their case before the Ombudsman. What is surprising is that EU citizens are still unaware of the role of EU bodies such as SOLVIT or Europe Direct. This suggests that citizens require additional information about the role of EU bodies that can provide legal advice and aid. This can be achieved through co-operation with national media. The roles of national media are not only to inform us about the debates in our nation states, but also to educate us. The launch of a successful partnership with national media of the Member States could have huge benefits. The most valuable contribution would be that the EU could reduce the mistrust between itself and the EU citizens. Once citizens have an objective opinion about the benefits of EU membership then there will be also a decrease in the eurosceptic attitudes in the Member States.

III.         National courts of the Member States and the CJEU and effective enforcement of the national courts’ decisions

As noted earlier, the national courts seems to be the first place where the EU citizens will turn if they encounter misapplication of Union law. Thus, in theory if effective judicial protection exists in the EU, it can also be described as a result of an effective relationship between the CJEU and the national courts of the Member States. This relationship should be based on sincere co-operation and mutual respect as demonstrated by Art.4(3) TEU.[xiv] Maintaining effective relationship between the national courts and the CJEU is vital as in procedural terms individuals do not have the right to appeal to the CJEU. It is the national courts or tribunals of the Member States which have the discretion under Art.267 TFEU[xv] to decide whether or not to refer questions to the CJEU.

For example, the wording of paragraph 2 of Art.267 TFEU states that national courts, which are not the last instance in certain case, ‘may’ refer the question related to interpretation of EU law to the CJEU. This demonstrates that it is solely for the national courts to decide whether or not refer questions to the CJEU. This position is reaffirmed if the Court’s reasoning in CILFIT is taken into account where the Court stated that ‘in all circumstances national courts and tribunals (…) remain entirely at liberty to bring a matter before the Court of Justice if they consider it appropriate to do so’.[xvi] The national courts are enabled to use their discretionary powers not to refer to the CJEU if such question of law was irrelevant or was previously interpreted or when the doctrine of acte clair applies.

Entrusting the national courts of the Member States with such powers is an indication of a mature relationship between the national courts and CJEU. The potential positive outcome of such relationship means that straightforward cases are decided at national level by the national courts and the CJEU has more time to resolve more problematic cases. [xvii]

However, Article 267 TFEU makes a clear distinction between discretionary and mandatory references. For example, the Lyckeskog [xviii] judgment of the CJEU underlined that if a question concerning the interpretation of Union law arose before a court of last resort, it would be under an obligation to request a preliminary ruling in accordance with Art.267 TFEU, either when analysing admissibility or at a later stage. This position was reiterated in the Köbler[xix] case where the CJEU held that non-compliance by a top national court with its obligations under Art.267(3) might render the state in which it is situated liable in damages to an individual who was in that way deprived of his rights under EU law.

One should note, that the relationship between the CJEU and the national court in proceedings under Art.267 TFEU is co-operative rather than hierarchical in nature. Both courts have distinct but complementary roles to play in finding a solution to the case which is to be solved in accordance with EU law. A reference to the CJEU is not an appeal against the decision of the national court. The CJEU does not rule on the application of the law to the facts or the compatibility of national law with the requirements of EU law. These are matters within the exclusive jurisdiction of the national court.

It is also the national courts of the Member States which will award remedies to individuals. Nevertheless, from the early 1990s onwards the Court has requested adequacy and effectiveness in the award of remedies in the domestic enforcement of Union law. As De Burca notes, national courts are required to undertake a case-by-case review of the national rules and disapply any restrictive national provisions whenever necessary in order to award adequate and effective remedies in the spirit of EU law. [xx] This is primarily because national remedies must secure the effectiveness of EU rights.[xxi]

IV.         Conclusion

Effective judicial protection is a fundamental right of EU citizens and, as a result, EU citizens must be aware of their fundamental rights so that they can understand in practice the benefits of their EU citizenship status. Thus it is suggested that the efforts of the EU in the European Year of Citizens 2013 should be primarily focused on educating and informing citizens about their rights and providing information about EU legal advice and aid centres. These are the two fundamental points which will ensure that effective judicial protection finds its place not only in theory, but also in practice.


[i] Consolidated versions of the Treaty on European Union and  the  Treaty on the Functioning  of the European Union  [2010]  OJ  C 83/1.

[ii] Consolidated version of  the  Treaty  on European Union [2010]  OJ  C 83/1.

[iii] Treaty Establishing the European Economic Community, March 25, 1957, 298 U.N.T.S. 11.

[iv] Tindemans, Leo, ‘ European Union. Report by Mr. Leo Tindemans, Prime Minister of Belgium, to the European Council. Bulletin of the European Communities, Supplement 1/76.’ (1975)  http://aei.pitt.edu/942/1/political_tindemans_report.pdf accessed 10 January 2013.

[v] Consolidated version of  the  Treaty  on the Functioning of the European Union [2010]  OJ  C 83/1.

[vi] Consolidated version of  the  Treaty  on the Functioning of the European Union [2010]  OJ  C 83/1.

[vii] Tindemans, Leo, ‘ European Union. Report by Mr. Leo Tindemans, Prime Minister of Belgium, to the European Council. Bulletin of the European Communities, Supplement 1/76.’ (1975), page 12 http://aei.pitt.edu/942/1/political_tindemans_report.pdf accessed 10 January 2013

[viii] European Commission, ‘Flash Eurobarometer: European Union Citizenship Analytical report’ (2010) http://ec.europa.eu/public_opinion/flash/fl_294_en.pdf accessed 10 January 2013.

[ix] Although the majority (79%) of EU citizens claim familiarity with the term “citizen of the European Union”, only 43% say they know its meaning and  less than one-third (32%) of respondents from the 27 EU countries consider  themselves well informed about their rights as citizens of the European Union.

[x] European Commission, ‘the European Citizenship Report 2010’ (2010) http://ec.europa.eu/commission_2010-2014/reding/factsheets/pdf/citizenship_report_en.pdf accessed 10 January 2013.

[xi] European Commission, ‘Speech – A European Union grounded in justice and fundamental rights’ (speech, 6 December 2012)  http://europa.eu/rapid/press-release_SPEECH-12-918_en.htm?locale=en  accessed 16 December 2012.

[xii] European Commission, ‘Speech – A European Union grounded in justice and fundamental rights’ (speech, 6 December 2012)  http://europa.eu/rapid/press-release_SPEECH-12-918_en.htm?locale=en accessed 16 December 2012.

[xiii] Ibid.

[xiv] Consolidated version of the Treaty on European Union [2010] OJ C83/01.

[xv] Consolidated version of the Treaty on the Functioning of the European Union [2010] OJ C83/01;

[xvi]Case 283/81  Srl CILFIT and Lanificio di Gavardo spA v Ministry of Health [1982] ECR 341, para. 15.

[xvii] P Craig and G De Burca, EU Law: Text, Cases and Materials (4th ed., OUP 2008) 478-479; T Tridimas, ‘Knocking on Heaven’s Door: Fragmentation, Efficiency and Defiance in the Preliminary Reference Procedure’ (2003) 40(1) CMLR 9, 12.

[xviii] Case C-99/00 Criminal Proceedings against Lyckeskog [2002] ECR I-1327.

[xix] Case C-224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239

[xx] P Craig and G De Burca, EU Law: Text, Cases and Materials (4th ed., OUP 2008) 306.

[xxi] P Craig and G De Burca, EU Law: Text, Cases and Materials (4th ed., OUP 2008) 312.