Irreconcilable Differences? Divorce and departure of EU citizens under the Citizens’ Directive

 

Steve Peers

What happens when a marriage between an EU citizen (who has moved to another Member State) and a non-EU citizen ends, after the EU citizen has already left that Member State? The EU Citizens’ Directive contains rules on both issues (divorce and departure), but those rules appear to conflict with each other nearly as much as divorcing couples do. An Advocate-General’s opinion today in the important case of Singh addresses these issues (there is a reference pending from the UK on these issues also). But unfortunately, this opinion is fundamentally flawed, and the Court of Justice should take an entirely different approach than the one which the Advocate-General recommends.

Background

EU free movement legislation, in the form of the Citizens’ Directive, gives EU citizens the right (subject to certain conditions) to move to another Member State, joined or accompanied by their spouse and other specified family members. But what happens if that marriage ends? According to the CJEU case law beginning with Diatta, a ‘spouse’ remains a spouse (and therefore still entitled to derived free movement rights, if that spouse is a non-EU citizen) even if the couple in question is separated, up until the date when the divorce becomes final. After the divorce, the Court ruled in case law starting with Baumbastthat since the Regulation on free movement of workers gives the children of EU workers (or former workers) a right of access to education, they were entitled to stay on the territory to exercise that right, and the non-EU parent who cared for that child had a right to stay too (regardless of any divorce from the EU citizen), otherwise the child’s right would be ineffective.

Other cases where a marriage between an EU citizen and a non-EU citizen end are regulated by the citizens’ Directive. Article 12(2) of that Directive provides for the non-EU family members to retain residence rights in some cases if the citizen dies. Article 12(3) provides for the non-EU family members to retain residence rights if there are children left behind who are still studying, where the EU citizen dies or leaves the host Member State. Article 13(2) then specifies the right to remain of non-EU family members, in the event of divorce or end of a registered partnership. There are four alternative possibilities for retaining the right of residence in this case. The first possibility allows the right to be retained if the marriage or partnership has lasted at least three years, including at least one in the host Member State, ‘prior to the initiation of the divorce or annulment proceedings or termination of the registered partnership’. (After five years’ legal residence, the non-EU family members obtain permanent residence status; the complications arise in the period beforehand).

The Singh case, referred from the Irish courts, concerns three divorcing couples. In each case, the EU citizen first of all departed Ireland, leaving the non-EU spouse behind, and theninitiated divorce proceedings.  So in a case involving both a departure and a divorce, what rules govern the situation?

The opinion

The Advocate-General states that Article 12(3) of the Directive sets out an exhaustivelist of cases where a non-EU family member can retain residence rights after an EU citizen leaves the host Member State (presumably leaving aside the Regulation on free movement of workers, which is only relevant when there are also children involved). Conversely, the Advocate-General believes that Article 13 ‘is intended, in principle, to apply only to cases where both spouses are still residing in the host State until the time of the divorce’. If the EU legislature had wanted to create an exception to the rules on departure for cases relating to divorce, it would have done so expressly.  So Article 13 can only apply where a divorce claim is made before the EU citizen leaves the host Member State. Articles 12 and 13 can only be applied together in the cases referred to in Article 12(3), ie where the EU citizen has departed and there are children in education. This analysis is supported for reasons of legal certainty: it cannot be clear when an EU citizen departs that a marriage will end in divorce or not.

Therefore, in the Advocate-General’s view, once an EU citizen departs from that State without first initiating divorce proceedings, the non-EU citizen left behind loses the right to reside under EU law. On the other hand, if the divorce proceedings are initiated before the EU citizen leaves that Member State, then Article 13(2) applies and the non-EU ex-spouses will retain a right to stay if they meet the other conditions set out there. She admits the inequity in distinguishing between these two cases. However, problems could be avoided if the non-EU citizen accompanied the EU citizen, or began divorce proceedings in the host Member State before the EU citizen left.

She also rejects any relevance of the right to family life and private life referred to in Article 7 of the EU Charter of Fundamental Rights, since there is no family life to protect any longer in the case of a divorce. However, the Charter would protect the position of a non-EU spouse in an ‘intact’ marriage with an EU citizen who had moved to another Member State.

Finally, the opinion confirms prior case law to the effect that an EU citizen can also rely on resources provided by his or her non-EU family member in order to qualify for free movement rights.

Comments

With great respect, this opinion is highly problematic. The starting point is an over-literal interpretation of the relationship between the rules on departure and divorce in the EU citizens’ Directive. This leads the Advocate-General to suggest an interpretation which fails to take account of the consequences of her argument, and leads to results which were surely not intended by the EU legislature.

Let’s start with the purportedly literal interpretation of the Directive. In fact, there is nothing in the wording of Article 12(3) (like the words ‘only’ or ‘except where’) that clearly indicate that it sets out an exhaustive list of cases where non-EU citizens get to stay despite the EU citizens’ departure. We can turn the Advocate-General’s argument on its head here: if the EU legislature had wanted to create an exception to the rules on divorce for cases relating to departure, it would have done so expressly. Anyway, two of the four grounds for obtaining legal residence in the event of divorce (access to children and custody of children) will usually cross over with the grounds to remain after departure referred to in Article 12(3). If Article 12(3) were the only ground for the right to stay after departure, the reference to these cases in Article 13(2) is therefore largely redundant.

As for the argument based on legal certainty, applying a rule based on ‘departure’ of an EU citizen simply does not create any such certainty either. The Advocate-General herself argues for an exception where a marriage is intact despite a cross-border separation, but how can we know if that is the case?  How long a period in another Member State is necessary to count as a ‘departure’? What if the EU citizen decides to come back to the host State? What about cases where the EU citizen steps outside for the proverbial pack of cigarettes – and then goes missing?

Furthermore, the substance of the Advocate-General’s own argument is legally unclear. She mostly refers generally to the departure on an EU citizen from a Member State taking precedence over the rules on divorce set out in Article 13(2). But at one point, she makes a distinction based on whether the divorce application was filed before or after the EU citizen left the host Member State. Which is it? It’s a crucial distinction, because for the other three categories of cases where non-EU citizens retain residence rights despite a divorce (custody of children, access to children, domestic violence), there’s no reference to when the divorce proceedings were initiated. Anyway, her acceptance that the timing of the application for divorce might be relevant for the interpretation of the rules on departure undercuts her basic argument that Article 12(3) constitutes the only basis for non-EU citizens retaining a right of residence following the EU citizen’s departure.

What about the Advocate-General’s suggested solutions? It would be highly awkward, to say the least, to expect the estranged non-EU spouse to accompany his or her family member to another Member State, even though (according to the CJEU’s case law) they would not have to live under the same roof in that country. In any event, the family member would not have a right (under EU law) to accompany an EU citizen who moved to a third country (besides those covered by EU free movement rules: the EEA states and Switzerland). And it would be outrageous to conclude that the estranged non-EU spouse should follow an EU citizen in domestic violence cases.

The Advocate-General doesn’t mention the possibility that the non-EU family member could obtain rights under the EU’s long-term residence Directive, by adding periods of prior legal stay in that Member State to the time spent as the family member of an EU citizen. But not all non-EU citizens have had such a period of prior legal stay; and that Directive anyway does not apply to the UK, Ireland and Denmark.

The prospect of the non-EU spouse bringing divorce proceedings first depends on the interpretation of the EU’s rules on civil jurisdiction, which give jurisdiction to the courts of the Member State where one or both spouses are ‘habitually resident’. But that term is not defined in the Regulation, and so it might be argued that the courts of the host State, at least in some cases, will not have jurisdiction. Anyway, it is not unreasonable to expect the non-EU citizen concerned to devote his or her efforts to saving the marriage – and it’s even possible that he or she is unaware of the problems in it (where an EU citizen is having an affair, for instance).  Also, for the reasons already set out, this possibility should logically only apply where the Directive refers to the initiation of divorce proceedings. But that would mean that bringing proceedings first could not benefit those with custody of children, access rights to children or domestic violence issues.

Finally, it should be noted that the Advocate-General’s interpretation of the EU Charter analysis is simply wrong: Article 7 (which corresponds to Article 8 of the ECHR) does not apply only as regards family life, but also private life. This includes all the relationships which a foreigner has built up in a State, even if he or she no longer has family members there: see the Slivenko judgment, for instance.

So what is the correct approach to this issue? Admittedly, the Directive is very unclear about the relationship between divorce and departure. But the rules on divorce would lose much of their effet utile if they ceased to apply simply because the EU citizen left the country – particularly given that the whole point of EU law in this field is to promote such free movement in the first place. The best way to reconcile the two sets of rules is to rule Article 13(2) can confer a right of residence where a divorce application has been lodged within a reasonable period after the EU citizen has left the country. That’s undeniably vague. But the Directive is full of vague rules, such as the need to assess whether there is a reasonable prospect of finding employment, or to apply a case-by-case assessment of those convicted or crimes or applying for social assistance. And, as pointed out above, the Advocate-General’s alternative of relying upon the amorphous concept of ‘departure’ isn’t any more precise anyway.

 

Picture credit: salon.com

Barnard & Peers: chapter 13

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The new Directive on intra-corporate transferees: Will it enhance protection of third-country nationals and ensure EU competitiveness?

 

Lucia Brieskova, PhD candidate at Oxford Brookes University

 

This post sets the scene for the new EU directive in the area of legal labour (economic) migration - the Intra-Corporate Transfers Directive (ICTD) - in three sections: a) it explains why this Directive was introduced and its relationship with the other EU directives in the area of economic migration; b) it outlines the main novelties brought about by this Directive; and c) it highlights some of the potential issues. These potential issues will be further developed and analysed in the subsequent posts.

 

A.      BACKGROUND

The EU Commission introduced the Proposal for ICTD in July 2010 as a part of a comprehensive package of different measures, which were proposed in the Policy Plan on Legal Migration of 2005, the European Pact on Immigration and Asylum, (adopted in 2008) and further endorsed by the Stockholm Programme (adopted by the EU Council in December 2009), which called for the adoption of an overall European policy on migration. In addition, the Europe 2020 strategy contemplated that a well-structured legal immigration policy will have a role to play not only in filling shortages of the labour markets and enhancing the competitiveness of EU but also in helping to face demographic challenges which most of the Member States face or will face in the near future.

To be more specific, the 2005 Policy Plan on Legal Migration sketched out the EU Commission's vision on how a common policy on economic migration should be further developed by scheduling the adoption of several legislative proposals (directives) on economic migration between 2007 and 2009. As a result, the ICTD was adopted as a new legislative instrument of the EU common policy on legal migration. It complements three already existing Directives, also introduced as a result of the 2005 Policy Plan on Legal Migration:  the 2009 EU Blue Card Directive on highly qualified workers setting out the admission criteria for and the rights of highly qualified third country national (TCN) workers (discussed here), the 2011 Single Permit Directive on TCN workers legally residing in an EU Member States; and the 2014 Seasonal Workers Directive.

The EU Commission, backed up by some Member States in the Council, disagreed with the European Parliament as regards some issues, for example, the right of equal treatment of ICTs and the rights of their family members.  After lengthy negotiations (4 years), the text of the ICTD is a compromise between the EU Council and EU Parliament, where EU Parliament accepted a number of EU Council proposals, for instance in relation to the equality of treatment of ICTs. The EU Council adopted the ICTD on 13 May 2014, following a positive vote in the EU Parliament in April. The ICTD was published in the Official Journal of the European Union on 27 May 2014 and entered into force on 28 May 2014. Now the 25 participating EU Member States have 30 months to transpose this Directive (by 29 November 2016). As with other EU policies on legal migration of third-country nationals, the UK, Denmark and Ireland are opting out of this Directive.

It remains to be seen how the Member States will implement this Directive into their national legal systems and whether this Directive and its national implementation will contribute to or hinder the protection of TCNs within the EU and whether it will contribute to the enhancement of the EU’s competitiveness.

B.      NOVELTIES

So what is new in the EU legislation relating to the area of economic migration after the introduction of the ICTD? Firstly, it covers a group of TCN migrant workers not yet protected by any of the existing EU economic migration directives; secondly it provides for “mixed” set of rules as regards the equality of rights of ICTs; thirdly it creates a unique intra-EU mobility scheme for ICTs; and lastly it offers favourable rights for family members.

 

Aims, Scope & Eligibility

The aims of the ICTD are threefold: a) it should make it easier and quicker for multinational companies to temporarily assign highly skilled TCNs to subsidiaries situated in the Member States; b) it should facilitate intra-corporate transferees’ (ICTs) mobility between Member States during their transfer; c) it lays down a common set of rights for ICTs when working in the EU in order to avoid their exploitation and distortion of competition.

The ICTD will facilitate intra-corporate transfers of managers, specialists and trainee employees to the EU by setting up transparent and harmonised conditions for admission, residence and work. To be eligible for an intra-corporate transferee permit, managers and specialists must have worked at least 3 up to 12 uninterrupted months for the multinational company immediately preceding their transfer. For trainee employees this period is 3 to 6 uninterrupted months. Member States retain the right to set the volumes of admission of ICTs who apply to be admitted to their territory. The permit will be valid for a maximum of 3 years in the case of managers and specialists and 1 year for trainee employees.

The Directive also aims to have speedy application procedures with easily available information about the new ICT permit and fast-track application processes, with only complex cases taking the maximum 90 days allowed for review.

Equal Treatment Rights

The ICTD provides for equality of treatment rights with nationals of Member States as regards remuneration. The rationale for granting equal treatment with nationals to ICTS as regards remuneration is the aim of ensuring that companies established in a third country will not be able to benefit from lower labour standards, thereby distorting competition. Therefore, Member States must request, as a ground for admission, that the remuneration granted to the ICTs is not less favourable than the remuneration granted to nationals occupying comparable positions.

Under the provisions of the ICTD, the ICTs are to be treated on equal footing with another group of migrant workers – posted workers – as regards the terms and conditions of employment other than remuneration (such as maximum work periods or safety at work). This means that these terms and conditions of employment in the Member State to which the ICT will be transferred will be governed by the laws of his or her country of origin (the sending third country). According to the ICTD the reason for this is that the ICTD should not give undertakings established in a sending third country any more favourable treatment than undertakings established in an EU Member State, in line with Article 1(4) of the Posted Workers Directive (96/71/EC).

The ICTD also sets out a clear list of rights for ICTs in relation to freedom of affiliation to a trade union, recognition of diplomas, and access to public goods and services, except housing.

Lastly, equal treatment between ICTs and nationals applies to branches of social security, in practice, in particular to benefits related to sickness, invalidity and old-age. However, EU Member States can make an exemption where the national law or a bilateral agreement with the host Member State establishes that the laws of the country of origin of the ICT will apply. Also, Member States may decide not to grant family benefits to ICTs who stay less than 9 months in the EU.

Intra-EU Mobility Scheme

The intra-EU mobility provisions in the ICTD mean a significant and unique development in comparison with national systems which do not permit ICTs to work in subsidiaries established in another Member State. This is the first work permit that will allow TCNs, under certain conditions, to work in several Member States for entities belonging to the same group of undertakings. Responding to the strong mobility needs of this type of TCN migrant workers, ICTs are not required to obtain the Schengen visas. Subject to a number of conditions, they can enter, stay and work in the Member States other than the one to which they were initially admitted. The ICTD distinguishes between short-term (less than 90 days in any 180 day period) and long-term (more than 90 days) mobility.

Family Members’ Rights

During the negotiations the EU Parliament succeeded in including crucial provisions in the ICTD as regards the rights of family members of ICTs.  This was advocated for with a view to removing an important obstacle to accept an assignment in the EU, meaning that the family members of ICTs will be able to accompany the ICTs at the start of their assignment, if they apply at the same time. In addition, the family members are also entitled to be employed or self-employed in the host Member State throughout the duration of the ICT’s transfer.

 

C.      POTENTIAL ISSUES

It remains to be seen how Member States will implement the ICTD in their national laws in the next two years given that the ICTD only sets minimum standards and includes a number of optional (“may”) clauses. For some Member States, the implementation process will mean modifying visa procedures, whereas others Member States will have to construct an intra-corporate transfer process from scratch. The challenge will be making sure that each Member State agrees to very similar definitions and terms for visas, so that there is not a wide variation among them.

Moreover, one issue of particular concern is intra-EU mobility for ICTs, where the ICTD includes a number of optional requirements (“may” clauses) that Member States may impose and thus also different variants of the scheme for Member States to adopt, which could render the scheme rather complicated. Furthermore, the conditions for assignments lasting longer than 90 days are much stricter than those for short-term transfers lasting less than three months.

In addition, it would appear that the ICTD is likely to impede the wider principle of equal treatment that must be at the core of all EU legislation in the field of migration – TCNs should be treated on equal footing with nationals of Member States. The ICTD contains provisions, advocated for by the EU Council and opposed by the EU Parliament, by which TCN workers employed in the EU in the framework of the intra-corporate transfers would enjoy a protection of rights granted to posted workers. Thus, the equal treatment will be limited to the core provisions of the contentious Posted Workers Directive (PWD). This means that the legislation of the sending third country will be applicable rather than the legislation of the host EU Member State. It was reasoned that ICTs should not be treated more favourably than posted workers by granting ICTs rights equal to those of EU nationals, which would suggest that the ICTD assumes that intra-corporate transfers and postings of workers are of the same or similar character.

However, the ICTD and PWD belong to different legislative spheres. The postings of workers function within the EU single market in support of the provision of services, whereas the intra-corporate transfers are aimed at allowing multinational companies to efficiently utilise their human capital. It is possible to argue that these provisions of ICTD are likely to lead to the bypassing of the EU labour legislation and national labour protection, which was the case with the PWD (see the Lavaljudgment). Thus, the equal treatment of ICTs could be endangered as potentially laws from any sending third country may be applicable to their situation. Consequently, TCNs could be afforded less protection and be subjected to the different forms of exploitation.

 

Barnard & Peers: chapter 26

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Posting third-country workers within the EU: the ECJ squares the circle

Amedeo Arena, Assistant Professor of European Law - University of Naples "Federico II" School of Law

Judgment of the court (Second Chamber) of 11 September 2014, Essent Energie Productie BV v. Minister van SocialeZaken en Werkgelegenheid, Case C-91/13.

The ECJ has repeatedly held that, unlike workers from EU Member States, Turkish nationals are not entitled to freedom of movement within the European Union but can rely only on certain rights in the territory of the host Member State alone (Savas, para 59; Derin, para 66). The Essent judgment provides a recent and clear illustration of how, under certain circumstances, the EU internal market freedoms can be relied upon to overcome those limitations and, indirectly, to broaden the freedom of movement of Turkish and other third-country nationals.

Facts and legal background

Under Netherlands legislation, an employer is prohibited from having work carried out in the Netherlands by a foreign national who does not hold a work permit.

Essent, a company established in the Netherlands, had scaffolding at one of its branches in that Member State erected by a number of workers from Turkey and other non-EU countries. Essent, however, did not hire those workers: it entrusted the construction work to BIS, another Netherlands-based company, which in turn requested Ekinci, a company incorporated in Germany, to post the above workers to the Netherlands for the duration of the construction work.

As the Netherlands authorities had issued no work permit for the purposes of that posting, the Netherland Minister fined Essent EUR 264 000 for infringing Netherlands labour law.

In the ensuing litigation before the Netherlands Raad van State, two provisions came into play: Article 41(1) of the 1970 Additional Protocol to the EEC-Turkey Association Agreement and Article 13 of Decision no. 1/80 of the Association Council of 19 September 1980. Both are standstill clauses, prohibiting, respectively, new restrictions on the conditions of access to employment and on the freedom to provide services between Turkey and EU Member States. The Netherlands court thus resolved to stay proceedings and to seek guidance from the ECJ as to the interpretation of those provisions.

The Judgment

The ECJ first examined whether Article 41(1) of the Additional Protocol and Article 13 of Decision No 1/80 applied to a situation such as the one at issue in the main proceedings. After recalling that such provisions are directly applicable and can be relied upon to have incompatible national legislation set aside, the Court stressed that those provisions confer rights to Turkish nationals “in the territory of the host Member State alone”. In casu, the Court considered that the host Member State was Germany, where the Turkish workers were legally resident and employed, rather than the Netherlands, where the above workers were temporarily posted and whose labour market they had no intention to enter. Accordingly, the ECJ ruled that Article 13 of Decision 1/80 was not applicable to the present case.

The Court reached the same conclusion with reference to Article 41(1) of the Additional protocol. While a Turkish undertaking providing a service in a Member State could rely upon that provision, no such service provision occurred between Turkey and the Netherlands in the present case. The only link with Turkey was the presence of Turkish nationals among the workers posted by Ekinci to the Netherlands, a connecting element that the ECJ regarded as “not sufficient” to trigger the applicability of Article 41(1) of the Additional protocol.

The Court then turned to Articles 56 and 57 TFEU, which secure the freedom to provide services within the EU. It is worth noticing that the order for reference contained no preliminary question concerning those provisions, yet the Court considered that their interpretation could be useful to the referring court in adjudicating on the case pending before it.

Recalling Advocate General Bot’s Opinion, the Court noted that the posting of workers between undertakings established in different Member states (in this case Ekinci and BIS) fell within the scope of the free movement of services, in spite of the fact that some of those workers were not Union citizens. The Court also found that Articles 56 and 57 TFEU could be invoked not only by the recipient (BIS), but also by the end user of that service (Essent).

On those premises, the ECJ considered that the Netherlands work permit requirement, and the related administrative burdens, impeded the making available of foreign workers to a user undertaking established in the Netherlands by a service-providing undertaking established in another Member State.

As no harmonisation had been achieved in the area, the ECJ turned to the issue of possible justifications for the Netherlands measure. Whilst the Court acknowledged that the Netherlands Government’s desire to avoid disturbances on the labour market constituted an overriding reason in the public interest, it noted that posted workers do not seek to gain access to the host State labour market, as they return to their country of residence as soon as their work is over.

The Court also averred that Member States are entitled to check that an undertaking established in another Member State which posts foreign workers to its territory is not availing itself of the freedom to provide services for a purpose other than the performance of the service concerned. Nonetheless, the ECJ considered that the Netherlands work permit requirement was disproportionate to that aim, which could also be achieved through less-restrictive means. For instance, the service-providing undertaking could be required to show the Netherlands authorities that the situation of the workers concerned is lawful as regards matters such as residence, work permit and social coverage in the Member State in which that undertaking employs them. Similarly, the service-providing undertaking could be required to report beforehand to the Netherlands authorities the presence of posted workers, the anticipated duration of their presence and the provision of services justifying the posting.

Accordingly, the ECJ held that Articles 56 and 57 TFEU must be interpreted as precluding national legislation under which, when non-EU workers are posted by an undertaking established in a Member State to a user undertaking established in another Member State, such making available is conditional upon the latter Member State issuing work permits to those workers.

  

Comment

The present ruling highlights the somewhat peculiar situation of Turkish workers posted from one Member State to another in the aftermath of the ECJ ruling in Abatay. Those individuals can rely on Article 13 of Decision 1/80 against the Member State into whose labour market they seek to integrate through the pursuit of uninterrupted employment, but cannot invoke that provision against the Member State where they are posted for limited periods of time. By the same token, while a Turkish undertaking providing services in a Member State, as well as the Turkish employees of that undertaking, can invoke Article 41(1) of the Additional Protocol against that Member State, an EU undertaking employing Turkish nationals cannot rely on that provision to challenge national measures that restrict the movement of its Turkish employees.

In view of these incongruences and of the obvious trade-restrictive effects of the Netherlands work permit requirement, the ECJ’s willingness to expand the scope of the preliminary ruling to include Articles 56 and 57 TFEU is unsurprising. However, not too long ago, in Vicoplus, the ECJ had ruled that the freedom to provide services, read in connection with the 2003 Act of Accession, was no bar to the application of the Netherlands work permit requirement to Polish workers posted to the Netherlands during the transitional period provided in the Act of Accession. While AG Bot devoted several paragraphs of his Opinion to distinguish the factual and legal background in Vicoplus from that of the instant case, it is regrettable that the ECJ did not take the opportunity to account for what might be perceived as differential treatment between Turkish and Polish posted workers.

The ECJ only referred to Vicoplus to support its finding that the posting of workers between Ekinci and BIS, two undertakings established in different Member States, fell within the scope of the freedom to provide services. Neither Ekinci nor BIS, however, sought to rely on that freedom. Could Essent invoke Articles 56 and 57 TFEU against Netherlands labour legislation, even though that undertaking was not the direct recipient of the service?

In its Opinion, AG Bot first observed that, since the freedom to provide services pursues the public interest objective of establishing an internal market, persons “other than service providers and recipients” who, none the less, “have a material connection with a person who has that status” should be able to invoke that freedom against domestic restrictive measures. The Court had taken a  similar approach in respect of the free movement of workers in Las: “Article 45 TFEU may be relied on not only by workers themselves, but also by their employers. In order to be truly effective, the right of workers to be engaged and employed without discrimination necessarily entails as a corollary the employer’s entitlement to engage them in accordance with the rules governing freedom of movement for workers” (para 18).

The Advocate General then relied on an interesting twist of the abuse of rights doctrine. Since nowadays it is common to witness chains of several intermediaries between the principal contractor and the employees, to prevent circumvention of the work permit requirement, Netherlands legislation has adopted a broad notion of employer, making the principal contractor responsible for obtaining work permits for non-EU workers employed by its subcontractors. However, AG Bot argued that, to prevent circumvention of the ban on restrictions on the freedom to provide services, just as the principal contractor’s liability under national labour legislation expands, so should its ability to rely on Article 56 and 57 TFEU.

Unfortunately, the ECJ made no reference to the first argument, which could have provided some clarifications on the ability to invoke fundamental freedoms by persons who do not fall within the scope of such freedoms but have “a material connection” with others who did. In cases such as Carpenterand, more recently, Dogan, the ECJ had taken a different approach, by focusing on the impact on service providers of national measures (e.g. deportation orders, immigration requirements) addressed to persons connected to that provider (e.g. their spouses).

The ECJ, instead, only ran an abridged, three-paragraph version of AG Bot’s anti-circumvention argument, and found that, if Essent were denied the possibility of relying on Article 56 and 57 TFEU, the Netherlands could obstruct the freedom to provide services by enforcing its work permit requirement against the principal contractor. It is worth noticing that in earlier rulings the ECJ had relied on the abuse of rights argument to achieve the opposite result: to narrow the scope of EU provisions in cases where the conditions required to invoke those provisions had been artificially created contrary to the objectives pursued by EU law (Emsland-Stärke, paras 52-53).

Once the ECJ established a link between Essent and the freedom to provide services, the fate of the work permit requirement as a precondition for the posting of non-EU workers to the Netherlands was sealed. The conditions, deadlines and administrative burden involved in obtaining the work permit obviously hindered the making available of workers on a cross border basis. The ECJ rejected the Netherlands government’s argument that the measure was designed to avoid disturbances on its labour market, noting that posted workers do not seek to gain access to that market, “as they return to their country of origin or residence after the completion of their work”. The Court then conceded that a Member State may check that an undertaking established in another Member State which posts to its territory workers from a non-member country is not availing itself of the freedom to provide services for a purpose other than the performance of the service concerned, but engaged in a merciless proportionality assessment of the measure and provided not one, but two less restrictive alternatives to achieve the same aim.

Finally, it is worth highlighting that, unlike recent rulings (such as Dogan) that exclusively concern Turkish nationals, since neither Article 41(1) of the Additional Protocol nor Article 13 of Decision no. 1/80 were found to be applicable, the Essent holding applies to the posting of workers that are nationals of any non-EU country between undertakings established in different Member States.

Barnard & Peers: chapter 14

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Family Reunion for EU Citizens: a separated third country national family member of an EU citizen can acquire permanent residence status

Chiara Berneri, Lecturer at BPP Law School

Article 16(2) of Directive 2004/38 (the EU citizens’ Directive) states that third country national family members of EU citizens who have moved to another Member State can claim permanent residence rights (giving greater protection against expulsion, for instance if they claim social benefits) if they have ‘legally resided with’ that EU citizen ‘for a continuous period of five years’. Can they still invoke that provision, when, before the expiry of the five years’ period, the couple decided to live apart and cohabitate with different partners? Furthermore, can the third country national claim this right despite the fact that the continuous period of five years occurred before the transposition of the Directive?

The Court of Justice gave an answer to these crucial questions in a judgment of 10 July, Case C-244/13, Ogieriakhi v Minister for Justice and Equality.

The facts

In May 1999 Mr Ogieriakhi, a Nigerian national, married Ms George, a French national living in Ireland. From 1999 till 2001 the two lived together in Ireland. In August 2011 Ms George moved out and begun to reside with another man. Soon after Mr Ogieriakhi started to reside with Ms Madden, an Irish citizen with whom, after a while, he had a child. The divorce between Mr Ogieriakhi and Ms George occurred in January 2009 and in July of the same year Mr Ogieriakhi and Ms George got married. The issue Mr Ogieriakhi is complaining about goes back to 2007 when, after the deadline for transposition of Directive 2004/38 into national law (which was 30 April 2006), he applied for permanent residence in Ireland on the ground that he had completed a continuous period of legal residence for five years (between 1999 and 2004) as a result of his marriage with Ms George.

The Irish Minister for Justice and Equality refused his application on the ground that he did not exercise his right of residence under the Directive because there was no evidence of the fact that during the relevant period his wife was still exercising her right of movement and residence in Ireland. As a result of this refusal Mr Ogieriakhi was dismissed from his job because, according to the authorities, he had not any right of residence in Ireland. However, in 2011, the Minister for Justice and Equality reviewed its decision of 2007 and granted him a right of permanent residence following the Lassal judgment (according to which residency prior 2006 may, in principle, be regarded as meeting the criterion of a continuous period of residence of five years).

At this stage Mr Ogieriakhi brought an action for damages before the High Court in order to obtain compensation for the damage he suffered (dismissal from his job) as a result of the failure to transpose the Directive (relying on the case of Francovich and others). The national court found that, in order to succeed in the action, Mr Ogieriakhi had to show that at the time of his dismissal from his job he enjoyed a right of residence for a continuous period of five years. In order to assess whether this was the case, the national court stayed proceeding and asked the Court of Justice whether Art 16(2) of the Directive had to be interpreted as meaning that a third country national who, during the a continuous period of five years before the transposition date for the Directive, resided in a Member State as the spouse of a Union citizen working in that Member State, must be regarded a having acquired a right of permanent residence even though, during that period, the EU spouse decided to reside with another person and did not provide anymore the home in which the third country national lived.

The Court’s judgment

The Court started its reasoning by looking at Art 16(2) of Directive 2004/38. It pointed out that the current interpretation that should be applied to this article, following the Lassal judgment, is that the continuous periods of five years must be taken into account even when accumulated before the transposition of the Directive, when in accordance to the earlier law instruments that the Directive itself “codified, revised and repealed”.  In other words, in order to being able to rely on Art 16(2) for continuous residence accrued before the transposition of the Directive, the third country national has to satisfy both the conditions laid down in Art 16(2) of the Directive and the conditions laid down in the piece of legislation in force – in this case Regulation 1612/68 on the free movement of workers - during the period in which the actual residence occurred. 

According to this preamble, the Court first started to look at whether the conditions under the Directive were fulfilled. It pointed out that the acquisition of a right of permanent residence by third country national EU family members depends a) on the fact that the Union citizen himself or herself satisfies the conditions laid down in Art 16(1) of the Directive (namely having resided for a continuous period of five years in the host Member State) and b) on the fact that the third country national family member has resided with him or her for the above period. According to the Court requirement a) was indisputably satisfied as it was proved that throughout the relevant period Ms George fulfilled the condition laid down in Art 16(1).

As far as requirement b) was concerned, the Court found that the relevant issue to assess was whether the separation of the spouses during the period concerned precluded the fulfilment of the condition. To give an answer to this point, the Court relied on the cases of Diatta and Iida, which stated that what matters is the existence of the marital relationship, even if the spouses are separated. In this case, although Ms George and Mr Ogieriakhi lived separately with different partners, they were still married during the relevant period from 11 October 1999 and 11 October 2004 and that was enough to comply with Art 16(2) and not to make Mr Ogieriakhi lose his status of family member accompanying or joining a EU citizen in the host Member State.

Following the opinion of A.G. Bot, the Court stressed also another interesting point supporting its argument. The Court pointed out that interpreting Art 16(2) as being fulfilled even when the EU and third country national spouses are still married but live with other partners is consistent with the scope of the Directive itself. As a matter of fact, a more restrictive interpretation of Art 16(2) would not be consistent with Art 13 and 18 of the same Directive, which grant more favourable residence rights to third country nationals who divorcedfrom their EU citizen spouses (Art 13 is about retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership. See in particular the conditions laid down by Art 13(2)(a)(b)(c)(d). Art 18 states that the family members to whom the conditions of Art 13(2) apply shall acquire the right of permanent residence after residing for five consecutive years in the host Member State).

Finally, the Court moved on to evaluate whether the conditions laid down in Regulation 1612/68 were fulfilled. In particular, the Court looked at whether the condition imposed by Art 10(3) – the EU worker having available for his or her family a family housing considered as normal for any worker employed in the same region- is satisfied in case the EU worker and the third country national family member live separately and the new house of the latter is neither supplied nor provided for by the EU worker (note that the citizens’ Directive has since removed this condition). To answer this question the Court followed the Advocate General’s opinion and relied on the Diattacase, once again specifying that there is no implied requirement for the family to live permanently under the same roof. 

Furthermore, still in line with A.G. Bot, the Court referred to the case of Commission v Germany (which had interpreted Article 10(3) of that Regulation) and recalled that the requirement to have available housing regarded as normal applies only as a condition under which each member of the worker’s family is permitted to come and live with him or her. This means, as A.G. Bot explained more extensively in the opinion, that if the housing regarded as normal at the beginning of the cohabitation does not fulfil this requirement anymore as a result of a new event- such as in this case the separation of the couple and the new relationship of Ms George with another man- this cannot lead to discrimination between Member State’s nationals and nationals of other Member States.

In light of these considerations the Court concluded that even when the spouses decided to separate and reside with new partners, the third country national family member who has resided for a continuous period of five years in a Member State as the spouse of a EU citizen can acquire the right of permanent residence even if the period of residence occurred before the transposition of the Directive.

Finally, on state liability, the Court concluded that the simple question for preliminary ruling on a matter concerning the transposition of EU law must not, alone, be considered a decisive factor in determining whether there was an obvious infringement of EU law on the part of the Member State.

Comments

If we look at its outcome, this can be considered a good judgment. As a matter of fact, the Court of Justice ended up clarifying the scope of Diattaby specifying that a third country national can be granted the right of permanent residence not just simply when he is separated and not living anymore with the EU citizen but even when they both cohabit with other partners. The broadening of Diatta can only be welcomed, especially by those who believe that the state should not be interested in how a family decides to arrange its family life (for example whether they prefer to live together or not) as long as the marriage bond is not broken. Although the Court referred back to spouses who were separated before the deadline to transpose the citizens’ Directive, its interpretation is still relevant to those who were separated after that deadline, in light of its reference to the Iida judgment (which had already applied the Diattajudgment to the definition of ‘spouse’ in the citizens’ Directive) and its constant case law (see the Metock judgment) insisting that the Directive does not lower standards as compared to the previous legislation.

On the other side, the reasoning proposed by the Court lacks of clarity in some points. This is particularly evident when the Court refers to Commission v Germany. The wording of the Court does not immediately make clear the reason why this case is relevant in this context. As a matter of fact, it is by looking at the more extensive explanation of the Advocate General that it is possible to understand its relevance in the circumstances at stake (see the above discussion).

It is also worth mentioning that the Court lost a chance to specify clearly the meaning of Art 16(2) of the Directive, particularly with regard to the word “with”. According to the Advocate General the word “with” should not be interpreted literally. Hence, it does not mean that the third country national must have lived together with the EU citizen for the entire period of five years but it is enough that he or she has accompanied or joined the EU citizen in the host Member State, despite the fact that they decided [not?] to live together for the entire period of five years. This specification would have been particularly useful if we consider that cases not necessarily involving third country national spouses will be possibly referred to the Court of Justice.

As a matter of fact, as things stand now, the Court will be easily able to rely on Diatta, if needed, to state that a spouse should not necessarily live together with the EU citizen in order to acquire the right of permanent residence. However, as far as other family members are concerned, a similar interpretation of Art 16(2) will result in the same outcome: no family member has to live together with the EU citizen in order to acquire the right of permanent residence in the host Member State.

To conclude, despite these margins for improvement, this judgment should be considered a good and, in a way, totally predictable judgment as it falls within the lines traced already by the Court in Lassal, Diatta and Commission v Germany. The interesting rationale upon which Ogieriakhi is based is, as A.G. Bot clearly pointed out in the opinion, to promote social cohesion and integration not just of the EU citizen but also of the third country national family member. This is the key purpose of the Directive that the Court should bear in mind for future reference in order to apply the same rationale to potential similar cases.

Barnard & Peers: chapter 13 

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Reconciling EU free movement rules with UK border controls

By Steve Peers 

Today’s Advocate-General’s opinion in the McCarthycase raises important questions about the scope of the EU’s free movement law rules and the relationship between those rules and EU or national rules on border controls and visas. It concerns Mr. McCarthy, a dual citizen of the UK and Ireland residing in Spain, with his third-country national (Colombian) wife and their joint child (also a dual citizen of the UK and Ireland).

Each time the family seeks to travel to the UK for short visits, they have to obtain a ‘family visa’ for Mr. McCarthy’s wife. This entails a trip within Spain from their residence in Marbella to the British consulate. Is this compatible with EU law?

As regards short visits, an issue like this one will largely arise only for people travelling between the Member States applying the Schengen rules (22 Member States, plus 4 non-EU associates) and the Member States not applying those rules (the UK, Ireland, Romania, Bulgaria, Cyprus and Croatia). That’s because legal third-country national residents of the Schengen States don’t need visas to visit other Schengen States, whether they are family members of an EU citizen (or travelling with that EU citizen) or not. In any case, they aren’t checked when they cross the borders between those States.

However, the UK and Ireland have negotiated a special protocol relating to border controls with the rest of the EU. They can check people at the borders to determine whether they are really entitled to enter the country in accordance with EU law. The other four non-Schengen States are obliged to join Schengen eventually, and must apply aspects of the Schengen rules in the meantime.

So is Mr. McCarthy’s wife entitled to enter the UK with him, and what rules apply when she seeks to do so? The starting point is the EU’s citizens’ Directive, adopted in 2004, which (among other things) intended to facilitate travel and residence for exactly this category of persons. The third-country national family members of EU citizens resident in other Member States (like Mrs. McCarthy) have to be given a ‘residence card’ to prove their status. If they have such a card – and Mrs. McCarthy does – they can travel to other Member States without having to obtain a visa, even if (for instance, if they are Colombians visiting the UK) they would normally have to do so.

This works both ways: for instance, if a French woman living in the UK wished to visit Germany with her Nigerian wife, Germany could not insist that the third-country national spouse obtain a Schengen visa, if the latter woman held a residence card.

In light of this legal background, what is the problem? There is clearly no possibility for the UK to require a ‘family visa’ for these trips. In fact, three issues arise in this case: the applicability of EU free movement law; the possibility of measures to control ‘abuse’ of EU law rights; and the interpretation of the borders protocol.  

Scope of EU law

At first sight, the McCarthy family’s position falls squarely within the scope of EU law, as he is a British & Irish citizen living in Spain with his family. But the case does not concern his position in Spain, but his visits to the UK, where he is a citizen.

The Advocate-General refers to recent CJEU case law (the S and O judgment) applying the citizens Directive by analogy to cases where a citizen of one Member State moves to another Member State, then seeks to return with his or her family to that first Member State. In his view, it is unsatisfactory to interpret EU primary law (the Treaty free movement rules) in accordance with secondary law which does not apply to that specific case. So he argues that the citizens’ Directive as such should apply to such cases, or at least to short-term visits as distinct from longer-term residence. 

Abuse of EU rights

Article 35 of the citizens’ Directive allows for measures to be taken to control abuse of free movement rights. The UK doesn’t claim that anyone in the McCarthy family is abusing those rights. But of course the ‘family visa’ requirement wasn’t adopted specifically for them, but for all third-country national family members of EU citizens who have moved between Member States, and who seek to visit the UK on the basis of a residence card.

The UK argues that the ‘family visa’ rule is justified because checks by the UK Border Agency found that a significant number of those holding residence cards were not genuinely entitled to them (it exempts from the rule those whose residence cards were issued in a more secure form). However, in the Advocate-General’s view, a measure taken against the abuse of rights can only concern individual cases, not all cases.

Border control powers

Finally, the opinion argues that the UK cannot justify its position by reference to the borders protocol. It allows the UK to check at its borders if people have rights under EU law, but not to breach EU free movement law as regards the position of those who indeed enjoy such rights.

Comments

On the questions actually asked by the national court (on abuse of rights and the borders protocol), the opinion is clearly correct. As regards abuse of rights, the limitation of this principle to individual cases is clearly established in prior CJEU case law. Indeed, the facts of this case show why the principle should be limited in that way, as the UK is seeking to do exactly what the Directive prohibits: to impose a visa requirement upon third-country national family members holding residence cards.

As regards the borders protocol, it is clearly and expressly subordinate to EU free movement law. The approach suggested in the opinion would leave the UK free to check that everyone seeking to enter the country pursuant to EU free movement law was entitled to do so, without restricting the free movement rights of those persons any further.

Undoubtedly, though, the evidence suggests that some individuals with residence cards are not entitled to have them. This is a legitimate concern of the UK government, but its response was simply disproportionate. So the opinion should have referred in more detail to other methods of dealing with this issue, for instance a joint agreement between Member States on common standards to ensure the authenticity of residence cards.

Finally, what about the scope of the Directive, an issue only raised by the CJEU itself? On this point, with great respect, the Advocate-General has led himself down something of a garden path. The key flaw in his reasoning is his implicit assumption that the EU citizens’ Directive can never apply to a citizen of the host Member State who is also a citizen of another Member State. On the one hand, it is correct (based on the case law, and the clear wording of the Directive) to say that British citizens, like Mr. McCarthy, cannot invoke the Directive against the UK. But on the other hand, Irish citizens, like Mr. McCarthy, certainly can. Like Schrodinger’s cat, he is simultaneously covered by the Directive, and not covered by it.

Back in 2011, in a case involving a differentdual British and Irish citizen named McCarthy, the CJEU ruled that the Directive could not apply. But in that case, the McCarthy in question had never resided outside the UK. As I have argued (along with Jonathan Tomkin and Elspeth Guild), in the Commentary on the EU citizens’ Directive, that judgment should only apply where a dual citizen of two Member States has always resided in one of them, which is hardly the situation when the person concerned in fact lives in a third Member State. More broadly, we argue that the 2011 McCarthy judgment is contradictory and confused, and should be set aside at the earliest opportunity. It is a great shame that the opinion does not seize the opportunity either to call for overturning the judgment or for limiting its scope, but rather assumes that its scope is very broad indeed.

Having opened Pandora’s Box by arguing implicitly that nodual citizens of two Member States can everrely on the citizens’ Directive, the Advocate-General immediately tries to close it again, by calling upon the Court to reverse the rule which he has himself created. But it would be better not to create that rule in the first place. One cannot seriously argue that the 2014 McCarthy, a pensioner who has spent only five years of his life in the UK, should be in the same legal position as regards the UK as the 2011 McCarthy, who had never resided outside the country.

Leaving aside the position of dual citizens, the Advocate-General’s opinion would also e relevant to the citizen of one Member State who seeks to visit his or her own country. Since CJEU case law has already confirmed that EU free movement law applies to those who return to their own country to reside there, it must also apply to those who return only to visit.

But does the EU citizens’ Directive apply as such(as the opinion argues) or by analogy(as the CJEU case law says)? Really, this is a distinction without a difference, as the outcome would be the same whichever route is chosen. Either way, the Court would be giving effect to the spirit of the free movement rules. It is unfortunate that the Advocate-General chose to chase this semantic butterfly, while leaving the front door open to the deterioration of the legal position of those who are dual citizens of two Member States. 


Barnard & Peers: chapter 13, chapter 26

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