Eu Law - Rights of Entry and Residence of Eu Nationals and Implementation of Directives by Member States.

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  • Topic: European Union, Four Freedoms, Court of Justice of the European Union
  • Pages : 7 (2062 words )
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  • Published : April 7, 2013
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QUESTION 1

In order to determine whether the German authorities can, under the provisions of EU law, refuse Nic and Igor entry into Germany, this essay will first look at the right of Nic to enter and reside in Germany and then finally whether under EU provisions he has the right to bring with him his son Igor.

Article 45 of the Treaty on the Functioning of the European Union (TFEU) makes provisions for the freedom of movement of “workers of the Member States.” The Treaty does not itself give a definition of the term “worker,” however subsequent European Court of Justice (ECJ) cases have provided this definition. The two main cases are Levin v Staatssecretaria van Justitie (case 53/81) [1982] ECR 1035 and Lawrie-Blum v Land Baden-Württemberg (case 66/85) [1987] 3 CMLR 389, the latter of which provides a refined definition of the employment relationship. Unfortunately, under the definitions provided by these cases Nic cannot be considered a “worker.” However, the ECJ judgment in the case of R v Immigration Appeal Tribunal ex parte Antonissen (case C-292/89) [1991] ECR I-745, provides protection for those who wish to move to another Member State in order to seek employment. Further protection has also now been included into EU legislation by Directive 2004/38, which provides at Art 6(1) for “Union Citizens” to have the right of residence in the territory of another Member State for up to three months without any conditions being imposed (so long as he can produce an identity card or valid passport). This is supplemented by Art 14(4)(b) which states that expulsion measures may not be adopted against Union citizens if they can prove they are continuing to seek employment and have a genuine chance of being engaged.

Applying the provisions mentioned above to Nic’s case, it is clear that the Germany authorities would be unable to refuse Nic entry into Germany. He would then have the right to reside there for three months by virtue of being a “Union Citizen” as created by Art 20 TFEU. The fact that Nic hold Bulgarian nationality should not be relevant for the purposes of entry into Germany as Bulgaria joined the EU in 2007 and all issues relating to freedom of movement of workers should have been resolved by 1 January 2012 according to Bamford et al. (2012). Further to this, Nic will also be allowed under the provisions of R v Immigration Appeal Tribunal ex parte Antonissen (case C-292/89) [1991] ECR I-745 to remain for up to six months in Germany to seek work, after this he must provide the same evidence prescribed by Art 14(4)(b) of Directive 2004/38.

It can therefore be concluded that as a matter of EU law, the German authorities cannot refuse Nic leave to enter and reside in Germany for the purposes of seeking work.

The second issue here is of course whether it is legal for the German authorities to prevent Igor from entering Germany with Nic. Of course, Igor has no EU rights of his own to enter and reside in Germany because Russia are not members of the EU and therefore he cannot be considered a worker of the Member States and have rights under Art 45 TFEU. Igor’s only option under EU law is to try and gain leave to enter the country through his relationship with Nic.

The first issue here is whether the German authorities are correct in stating that they are able to deny Igor leave to enter the country because he is not a family member of a Union citizen. The definition of family member provided for the purposes of Directive 2004/38 is set out in Art 2(2) of the Directive. Under this definition, Igor would not be considered a family member because he is over the age of 21. However, Art 3(2) of the Directive states that the host Member State shall facilitate entry and residence for any other family members which do not fall within the definition provided in Art 2(2) but who meet certain criteria. Art 3(2)(a) of the Directive provides the criteria relevant to Igor’s situation. It allows for facilitation of...
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