382004CE Limits challenges perspectives Alessandra Lang University of Milan Control on the implementation of directive 200438 in the 5 countries No infringement procedure pending ID: 388366
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Slide1
The Union citizenship and Directive 38/2004/CE Limits, challenges, perspectives
Alessandra Lang
University
of MilanSlide2
Control on the implementation of directive 2004/38 in the 5 countries
No infringement procedure pending
Just three preliminary rulings on the free movement of persons and none on the problems emerging from the report
France → C-325/08 [2010]
Olympique
Lyonnais
Italy → C-270/13 [2014]
Haralambidis
Romania → C-33/07 [2008]
JipaSlide3
Free movement of personsDirective 2004/38 is not the only source of relevant law
Right to reside stemming from other sources of EU law
Right for workers’ children to reside where they study (case 389-390/87 [1989]
Echternach
and Moritz
)
Right to reside for the parent of the worker’s child who studies (C-413/99 [2002]
Baumbast
)
Right to reside for the spouse of the citizens of the Union in their State of origin if not recognizing it amounts to an obstacle to free movement (C-370/90 [1992]
Singh
; C-60/00 [2002]
Carpenter
)
Right to reside for the parent of minor children who reside in a MS under EU law (C-200/02 [2004]
Chen
)
Right to reside for the parents of minor children who are citizens of the Union living in their State of origin (C-34/09 [2011]
Zambrano
)
Cases not dealt with by Directive 2004/38
Family reunification of citizens of the Union in their State of originSlide4
Directive 2004/38Giving rights to the citizens of the Union and their family members
Protecting the interests of the StatesSlide5
How does Directive 2004/38 protect the interests of the States?Free movement for many, but not for all
First 3 months: no right to social assistance benefits under the directive and removal if the citizen of the Union becomes an unreasonable burden on the social assistance system of the MS
Up to permanent residence:
Right to reside if and until the citizen of the Union is economically self-sufficient
Entitlement to social assistance benefits, but the State may check if the citizen of the Union still meets the conditions for residence
Departure on grounds of public order and public security Slide6
Social assistance system
for
the purposes of Article 7(1)(b) of Directive 2004/38, the concept of ‘social assistance system’ “must be interpreted as covering all assistance introduced by the public authorities, whether at national, regional or local level, that can be claimed by an individual who does not have resources sufficient to meet his own basic needs and the needs of his family and who, by reason of that fact, may become a burden on the public finances of the host Member State during his period of residence which could have consequences for the overall level of assistance which may be granted by that State”
(
Brey
C-140/12 [2013
] paragraph
61). Slide7
Some States complain about abuses and frauds“certain immigrants from other Member States … avail themselves of the opportunities that freedom of movement provides, without, however, fulfilling the requirements for exercising this right.”
Marriages
of convenience
Welfare tourism
The
Directive offers answers, but requires in-depth case-by-case scrutiny
States prefer automatic reactions Slide8
The EU’s responseCouncil of MinistersCommission
Handbook on marriages of convenience
Guidelines on the concept of habitual residence on coordination of social security schemes
Better use of EU financial resources
Helping local authorities apply EU fee movement rules
European CouncilSlide9
A reversal of perspective? European Council, 26/27 June 2014, Conclusions, EUCO 79/14
“12
. As one of the fundamental freedoms of the European Union, the right of EU citizens to move freely and reside and work in other Member States needs to be protected, including from possible misuse or fraudulent claims
.”Slide10
FutureAmendments to the Directive?Fine tuning by the Court of Justice
Right of permanent residence
Directive 2004/38 does not offer an answer to poverty