EUROPEAN UNION LAW: CASE STUDIES
EUROPEAN UNION LAW: CASE STUDIES
The Treaty for the Functioning of the European Union is the European Union legal instrument that is in operation for the smooth running of the community bloc of Europe. With 27 states having ratified it, principles of international law adopted in this statute are binding upon signatory states. The country of Andrzej and his family’s origin as well as UK are both signatories to the Treaty and hence the application of the treaty to the extent of their case is valid. The European Court of Justice upon appeal from courts in the UK would thus have jurisdiction to arbitrate issues raised in this case (Steiner & Woods 2012).
Andrzej and his family are legally in the UK under ex Art. 3 of the EC treaty that provided for the abolition to the freedom of movement among persons who are citizens of the Member States. In respect to working and conducting business in the host country, these rights are covered under Article 39-42 which guarantees the free movement of workers while Articles 49-55 afford members the right to provide services in the State to which they relocate to.
Issues in Contention
Andrzej’s right to seek employment in the host state of UK is not in contention. Since the term ‘worker’ is not directly specified in its meaning under the provisions of Art 12, the community reserves the right to discreetly interpret its meaning. However, the general characteristic was described by the European Court of Justice (herein after referred to as the ECJ) as the performance of services for or under the direction of another in return for remuneration during a certain period of time. This was the case in Lawrie-Blum V Land Baden-Wuerttemburg and is essentially the case in Andrzej’s issue.
The matter of receiving less payments and holidays than the rest of the workers indeed amounts to discrimination against him in his terms of employment as outlined in article 12 which provides that nationality as a basis of discrimination is strictly prohibited. This was reiterated in Walrave & Koch V Association Union Cycliste Internationale case. Discrimination in this case amounted to the prejudicial treatment of Andrzej at his workplace and can be actionable under Article 12 TFEU (Kent, 2008).
However, to the extent of Andrzej’s application for a social security number, this may fall under the host nation’s discretion that is given under Article 39 (3). In this provision, members of the union that have moved from another nation are subject to limitations for such applications. In this case, Andrzej is hindered by Directive 2004/38 which gives provisions that for one to be registered as a permanent resident then they are required to have been lawful residents for at least 5 years, and that is when one can apply for a social security number. There is no evidence for any timeline for which Andrzej has worked or resided in the UK. However, the matter of lawful residence is put to question after he began selling counterfeit goods in his residence while living there. This tainted his conduct and the term ‘lawful’ couldn’t be used to describe his residence in the country. In the case of issuance nevertheless, the principles of non-discrimination based on nationality and non-entitlement to double benefits as is envisaged in Regulation 1408/71 shall be observed.
When Andrzej also applied for a family rail card, it is within the host country’s discretion to issue it to him as a matter of public policy. To attain the status of a permanent resident (after which they could now enjoy full access to UK services), they had to have resided in the host country for at least five years. Therefore if this time hadn’t lapsed, it is within the powers of the host state to decline this request.
Isabela on the other hand while applying for the post of a civil servant faced bars under Article 3 of the treaty which permits Member States to restrict work positions in the public service on basis of nationality. However, this statute has not been at work to bar qualified members from the public service simply because they aren’t nationals of the host country. In Sotgiu V Deutsche Bundespost, the ECJ held that this restriction does not apply to all positions in the public service but only go as far as the exercise of official authority. Isabela is thus entitled to a post as a nurse for which she has shown competency. A further case of Commission V Belgium saw the ECJ rule that public service reserved for Belgian nationals who were working in the capacity of nurses, plumbers and architects employed by the government was in contravention of Article 39 (4) TFEU because the exercise of authority at a junior level was not covered by this statute.
It was thus held in Sotgiu that the terms of employment were not in contention, rather the access to employment. Isabela is thus entitled to the nursing job under Article 39 and the supporting authorities. Poland being an Accession State and having joined the European Union in 2004 began enjoying full access to the labor market of the 11 original members as of April 2011. Therefore, there is no further reason to bar Isabela (Costela 2009).
In the matter of her English test that bars her from the receptionist job, this is covered under Articles 56-62 TFEU (Craig and de Burca 2011). As a rule, freedom to provide services within the host state is assured without any restrictions. The principle of mutual recognition as expounded in the Cassis de Dijon case (Hatzopoulos Vasilis and Do 2006) prevents the justification of standards posed on a person continually in State A that the subject was imposed on in State B. therefore, the English test that she was subjected to in Poland was sufficient proof of her proficiency in English; and pursuant to the de Dijon case, she should not be subjected to another test (Kaczorowska 2009).
For Katarzyna, her case is covered under Article 12 of the Regulation 1612/68 which provides that children of migrant workers be admitted to the Host’s state educational and vocational training under the same conditions as those of the citizens of the host state. This precedent was confirmed by Article 12 (3) of Directive 2004/38. However, to the extent that she was subject to paying an extra fee was not illegal as was decided in the case of Belgian State V Humbel and Edel. The ECJ ruled that article 12 did not disallow institutions from charging an extra fee to children of migrant workers as opposed to their counterparts of nationals of the member state. Therefore, it is well within the jurisdiction of the college to charge her extra for her migrant status (O’Brien 2009).
Marek on the other hand who was studying away from his family in Scotland was denied access to student grants and loans. The case of Casagrande V Landeshauptstatdt Muenchen is similar to this one where the son of a deceased Italian was denied access to student grants in a German institution. The ECJ held that article 12 not only guarantees students access to educative institutions but also to the grants and loans that come alongside (O’Leary 2009). Therefore, in respect of denying Marek student loans on the basis that he is not a UK national is not applicable in this case (Kent 2008).
Migrant workers and their children are entitled to rights to engage in trade union activities under Article 8. However, the administrative roles in these unions may be restricted but so long as Marek can prove that he was acting within his role as the member of a trade union or any such body for student, and further for having no role in brewing violence at the demonstrations then it can be held that he was acting in an official and legal capacity.
The UK’s decision to expel the family can be seen as rash since in one way or another, the government’s failure to enforce the rights of the members have led to the improper conduct of the family. It would be a matter of public policy if the family is expelled after massive infringement of rights and be an impediment to the provision on the free movement of persons in the Union and the right to non-discrimination if any local court ruled in favor of the government. In this case, the family could appeal to the ECJ citing infringement of rights (Currie 2009).
In furtherance of provisions of the TFEU on free movement of persons, the right of access to educative and vocational studies as well as the rights of migrant workers, the court would be prudent to let the family remain in the UK, albeit with a warning against future fraudulent and unruly conduct that may jeopardize their stay there. The family should as well provide optimum surroundings that will enable the government not to view them as a threat to public safety and end up ejecting them.
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