Article

Restricting Union citizens’ residence on grounds of public security: Where Union citizenship and the Area of Freedom, Security and Justice meet

January 2013

Authors:

European University Institute

“Public policy is an unruly horse to ride”.1. In the past the Court of Justice has striven to “tame” the wild horse in the context of the free movement of persons by striking a balance between the individual’s right to free movement and the legitimate prerogative of Member States to combat threats to public policy.The result of this compromise is now found in Chapter VI of Directive 2004/38/EC, governing the expulsion of Union citizens, in particular in its Article 28.2. While consolidating the case law of the Court, Article 28 innovates by granting an exceptional level of protection for Union citizens resident for more than ten years in another Member Sate.According to Article28(3), “An expulsion decision may not be taken against [these] Union citizens, expect if the decision is based on imperative grounds of public security”.

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Chapter

Competing Conceptions of the Freedom to Conduct a Business as a Fundamental Right

December 2024

Niall O'Connor

The recognition of the freedom to conduct a business as a fundamental right within European Union law has reignited debate as to the proper place of competing economic freedoms and fundamental social rights within the European Union legal order. In particular, the Court of Justice of the European Union has relied on freedom of contract as a component of the freedom to conduct a business in order ... [Show full abstract] to undermine the protection of competing employment rights. Using the employment law context as a case study, this book argues that the potential regulatory consequences of the freedom to conduct a business as a fundamental right can only properly be understood within its wider constitutional and social dimensions. A holistic assessment of the value placed on business freedoms within the legal reasoning of the Court of Justice of the European Union demonstrates that there is nothing inherently deregulatory in granting fundamental rights status to such freedoms, with the freedom to conduct a business as a fundamental right also being contoured by competing ‘social’ rights, interests, and values. The freedom to conduct a business is thereby also shown to be a malleable fundamental rights concept in that its precise reach remains dependent on the underlying constitutional context whether that be within national constitutional law, the general principles of EU law, the Charter of Fundamental Rights, or in those arrangements governing the United Kingdom’s departure from—and new relationship with—the European Union.

Chapter

Full-text available

La libera circolazione dei cittadini nell'Unione europea: i princìpi, le norme e la loro applicazion...

December 2016

Alberto Horst Neidhardt

Nelle seguenti pagine si discuterà della conquista dell'Unione europea (UE) maggiormente apprezzata dai cittadini degli Stati membri, ovvero della libertà garantita dal diritto comunitario di circolare e soggiornare all'interno dei confini dell'Unione. Questo diritto che si configura come sintesi esemplare dell'evoluzione del progetto, dapprima economico e poi politico, della UE è oggi al centro ... [Show full abstract] di controversie e tensioni che ne rendono ancor più indispensabile un'esposizione semplice e comprensibile. Seppur in maniera concisa, il proposito di questo articolo è proprio quello di offrire una spiegazione e un commento ai princìpi e alle norme che ne regolano la fruizione, con riferimento a sentenze che rimandano alla loro applicazione concreta. This article discusses the most cherished right granted by European Union citizenship, the right of nationals of Member States to live, work and study anywhere in the territory of the Union. This right presents itself as the embodiment of the evolution of the European project, first economic and later political in nature. At the same time, freedom of movement is at the centre of controversies and tensions that call for a simple and comprehensive account of the scope of this right. The goal of this short article is to offer an explanation and commentary of the principles and norms that regulate the enjoyment of the right of free movement, also providing references to the jurisprudence of the Court of Justice with the purpose of illustrating its practical application.

Article

Swoboda przemieszczania się studentów w Unii Europejskiej — prawo dostępu do szkolnictwa wyższego i...

April 2017 · Przegląd Prawa i Administracji

Monika Szwarc

FREE MOVEMENT OF STUDENTS IN THE EUROPEAN UNION — RIGHT TO EDUCATION, ACCESS TO EDUCATION AND ACCESS TO GRANTS IN THE TRANSNATIONAL CONTEXTThe right to education, recognised by Article 14 of the Charter of Fundamental Rights of the European Union must be analysed and interpreted in the light of the previous evolution of EU law in this domain, as well as of the preceding jurisprudence of the Court ... [Show full abstract] of Justice. In the present state of EU law there is no doubt that access to higher education as well as access to student grants or loans falls within the scope of EU law. Therefore the article contains the overview of where EU law stands at present in the domain of mobility of students. The main two fields of interest are: access to education of migrant students, when they move from their home Member State to a host Member State in order to undertake studies, as well as access to social benefits, namely student grants or loans, which enable or make easier the mobility of students. The second field of interest concerning student grants or loans is divided into two parts: the first concerns access to grants or loans accorded by the host Member State to migrant student; the second concerns access to grants or loans accorded by the home Member State to its own citizens in order to encourage them to study abroad. The analysis, on the one hand, reveals that the scope of application of EU law to the situation of migrant students, due to the jurisprudence of the CJEU, is very wide, which means the wide scope of rights accorded to students and the narrow scope of freedom left to the Member States. On the other hand, the analysis leads to a conclusion that the case of migrant students is an exemplification of the challenges faced by the Union in the field of free movement, in particular the pressure to limit the social benefi ts for EU citizens exercising their right to free movement.

Chapter

9. Kapitel: Zusammenfassung

January 2021

Christine Hinsch

With the Persche ruling of the European Court of Justice, a subjective right to EU-wide tax advantages for private financing for the common good seemed tangible. The thesis examines the Constitution and Union law for such a right as well as the existence of a subjective right resulting from the influence of the fundamental freedoms on State tax concessions. Insofar as all EU states grant tax ... [Show full abstract] concessions to private financing for the common good, the fundamental freedoms extend these concessions throughout the Union. For this reason, the tax benefits for donations in Sweden and the United Kingdom are examined as examples. Alternatives at the secondary EU law (European Foundation) are also considered.

Chapter

Conclusion

December 2024

Niall O'Connor

The recognition of the freedom to conduct a business as a fundamental right within European Union law has reignited debate as to the proper place of competing economic freedoms and fundamental social rights within the European Union legal order. In particular, the Court of Justice of the European Union has relied on freedom of contract as a component of the freedom to conduct a business in order ... [Show full abstract] to undermine the protection of competing employment rights. Using the employment law context as a case study, this book argues that the potential regulatory consequences of the freedom to conduct a business as a fundamental right can only properly be understood within its wider constitutional and social dimensions. A holistic assessment of the value placed on business freedoms within the legal reasoning of the Court of Justice of the European Union demonstrates that there is nothing inherently deregulatory in granting fundamental rights status to such freedoms, with the freedom to conduct a business as a fundamental right also being contoured by competing ‘social’ rights, interests, and values. The freedom to conduct a business is thereby also shown to be a malleable fundamental rights concept in that its precise reach remains dependent on the underlying constitutional context whether that be within national constitutional law, the general principles of EU law, the Charter of Fundamental Rights, or in those arrangements governing the United Kingdom’s departure from—and new relationship with—the European Union.

Article

The Role of the European Court of Justice in the Protection of Human Rights and Freedoms

December 2019 · Humanities and Social Sciences Bulletin of the Financial University

I. S. Iksanov

The article discusses the role of the European Court of Justice, the specifics of its activities, and its goals. The author also touches upon the historical aspect of the development of the European Court. According to the author, the European Court of Justice has had a beneficial effect on the development of the rights granted by Union citizenship. The actions of the European Court of Justice ... [Show full abstract] have created new ground for persons with Union citizenship, increasing access to social benefits beyond the rights of economic migrants, for all those who exercise their European rights. The European Court of Justice sought to allow students to travel for their education, looking for new ways to ensure their free movement and learning with funding in the event of unforeseen events. It is essential that the court focuses on three core values so that citizenship does not become a limitation: nondiscrimination, the right to freedom of movement and the right to family life. The European court of human rights is an international judicial body; its jurisdiction extends to all member States of the Union. The main thing for the European Court of Justice is to ensure compliance with and enforcement of the Convention by the States parties. Also, when considering cases, the Court can point to gaps in legislation and issues concerning law enforcement practice, positively influencing law enforcement policy and legal proceedings, and, as a result, contribute to the improvement of the law enforcement system. This article reflects the activities of the European Court of Justice aimed at identifying the problematic aspects of the legislation of the European Union.

Article

In Search of (Even) More Substance for the "Real Link" Test: Comment on Prinz and Seeberger

February 2014 · European Law Review

Paeivi Johanna Neuvonen

The Court's ruling in Prinz and Seeberger sheds new light on the question of what constitutes a "sufficient degree of integration" between a Union citizen and the Member State. On further examination, the case also raises important questions about the implications of the "real link" test for the status of EU citizenship. Both A. G. Sharpston and the Court of Justice considered that a "sole ... [Show full abstract] condition of uninterrupted residence" was not proportionate in this case because it failed to recognise that the applicants could be "sufficiently connected" to the society of the Member State on the basis of other relevant social and economic factors. This comment examines how the Court's reasoning provides new substance for rejecting the formalistic definition of a "real link" under EU law. It then considers whether the assessment of integration requirements in the light of the "economic objective" and the "integration objective" can be completed with a more independent "equality objective" condition, which emerges from the status of EU citizenship as the "fundamental status of all Member State nationals".

Article

The Qualification for Being a Refugee under EU Law: Religion as a Reason for Persecution

November 2014 · European Journal of Migration and Law

Alexandra Maria Rodrigues Araújo

The Court of Justice in Y and Z deals with persecution in the form of interference in the right to practise one’s religion. The main aspects of the judgment can be summarized in the following three statements: in order to be granted refugee status under eu law, only a severe violation of religious freedom can be regarded as an act of persecution; the severity of the acts of persecution must be ... [Show full abstract] identified on the basis of the nature of the repression inflicted on the individual and its consequences; the competent authorities cannot expect the applicant to abstain from religious practices upon the return to his country of origin. Y and Z is an undeniable reference towards the interpretation of religion-based persecution provisions of the Qualification Directive. From the perspective of religious freedom, the Court reinforces the commitment of the eu with the European and international human rights standards concerning this right.

Chapter

Literaturverzeichnis

January 2021

Christine Hinsch

With the Persche ruling of the European Court of Justice, a subjective right to EU-wide tax advantages for private financing for the common good seemed tangible. The thesis examines the Constitution and Union law for such a right as well as the existence of a subjective right resulting from the influence of the fundamental freedoms on State tax concessions. Insofar as all EU states grant tax ... [Show full abstract] concessions to private financing for the common good, the fundamental freedoms extend these concessions throughout the Union. For this reason, the tax benefits for donations in Sweden and the United Kingdom are examined as examples. Alternatives at the secondary EU law (European Foundation) are also considered.

Chapter

The Systemic Implications of the Freedom to Conduct a Business as a Fundamental Right

December 2024

Niall O'Connor

The recognition of the freedom to conduct a business as a fundamental right within European Union law has reignited debate as to the proper place of competing economic freedoms and fundamental social rights within the European Union legal order. In particular, the Court of Justice of the European Union has relied on freedom of contract as a component of the freedom to conduct a business in order ... [Show full abstract] to undermine the protection of competing employment rights. Using the employment law context as a case study, this book argues that the potential regulatory consequences of the freedom to conduct a business as a fundamental right can only properly be understood within its wider constitutional and social dimensions. A holistic assessment of the value placed on business freedoms within the legal reasoning of the Court of Justice of the European Union demonstrates that there is nothing inherently deregulatory in granting fundamental rights status to such freedoms, with the freedom to conduct a business as a fundamental right also being contoured by competing ‘social’ rights, interests, and values. The freedom to conduct a business is thereby also shown to be a malleable fundamental rights concept in that its precise reach remains dependent on the underlying constitutional context whether that be within national constitutional law, the general principles of EU law, the Charter of Fundamental Rights, or in those arrangements governing the United Kingdom’s departure from—and new relationship with—the European Union.

Article

Full-text available

Fundamental Rights of EU Citizens in Purely Internal Situations: From Reverse Discrimination to Inco...

December 2021 · Croatian Yearbook of European Law and Policy

Niko Jarak

The phenomenon of reverse discrimination in the EU has been in the focus of academic research and debate due to the inequality it generates between citizens of the European Union, and it continues to create controversies. Reverse discrimination occurs when a Member State treats its own nationals who cannot point to a link with EU law less favourably than those whose situation is covered by EU ... [Show full abstract] law. Such a difference in treatment leads to double standards in fundamental rights protection granted to EU citizens, undermining the EU principle of equality. At the same time, the development of EU citizenship suggests this legal status has the potential to tackle the issues of inequality. The Court of Justice has in its jurisprudence developed EU citizenship as a fundamental status of nationals of EU Member States, provoking many interesting and potentially revolutionary interpretations of citizenship in terms of pushing the borders of EU competences to protect fundamental rights. In this context, it seems relevant to explore the extent and the transformative potential of EU citizenship which rejects the supplementary market paradigm and embraces equality as its underlying purpose. This paper discusses the prospect of using the citizenship provisions of EU Treaties as a legal basis to end reverse discrimination by claiming EU competence in purely internal situations. To explain the possible implications of this option, a parallel is drawn with the US constitutional doctrine of incorporation. To that extent, the paper argues that the effects of applying EU fundamental rights protection in purely internal situations on the basis of EU citizenship would be similar to the effects of the incorporation doctrine in the US. Such a possible development in EU law, even if normatively desirable, would be contrary to the EU's current constitutional design. The right forums to end reverse discrimination based on the principle of equality common to the Member States are, at the moment, only national courts or the European Court of Human Rights acting outside the EU’s own legal framework. Still, a reform of the current system of EU fundamental rights protection would be welcome as the only way to efficiently end this type of inequality. The problem of reverse discrimination should no longer be tolerated under EU law as it contradicts its underlying substantive values and legal principles.

Chapter

The Jurisprudential Significance of the Freedom to Conduct a Business as a Fundamental Right

December 2024

Niall O'Connor

The recognition of the freedom to conduct a business as a fundamental right within European Union law has reignited debate as to the proper place of competing economic freedoms and fundamental social rights within the European Union legal order. In particular, the Court of Justice of the European Union has relied on freedom of contract as a component of the freedom to conduct a business in order ... [Show full abstract] to undermine the protection of competing employment rights. Using the employment law context as a case study, this book argues that the potential regulatory consequences of the freedom to conduct a business as a fundamental right can only properly be understood within its wider constitutional and social dimensions. A holistic assessment of the value placed on business freedoms within the legal reasoning of the Court of Justice of the European Union demonstrates that there is nothing inherently deregulatory in granting fundamental rights status to such freedoms, with the freedom to conduct a business as a fundamental right also being contoured by competing ‘social’ rights, interests, and values. The freedom to conduct a business is thereby also shown to be a malleable fundamental rights concept in that its precise reach remains dependent on the underlying constitutional context whether that be within national constitutional law, the general principles of EU law, the Charter of Fundamental Rights, or in those arrangements governing the United Kingdom’s departure from—and new relationship with—the European Union.