EU Free Movement Law Research Articles

Marriages across borders within the European Union

The present paper tackles the issue of the recognition of cross-border marriages and their effects within the European Union. The current praxis allows interesting remarks on the cross-border effects of foreign marriages and their recognition in the perspective of the rights to free movement and to family life. In this framework, the paper scrutinizes a potential definition of the marriage, whether according to EU free movement law or to European human rights law. Due to the lack of a commonly accepted definition, it tests the classic approach to the circulation of foreign documents and certificates, i.e. the conflict of laws perspective. Leading on, it analyses the more fashionable method of the mutual recognition of situations created abroad, as modelled by some States and tested in some cases by the European Courts, too. Despite important advantages, this method does not seem easily accepted for the circulation of the status of spouse(s) and of the institution of marriage. With the aim to push towards enhanced free movement rights and strengthened human rights, the present paper offers some final remarks regarding the legal value of (international) family law in the framework of a social Constitution of the EU.

Solidarity and the Bond of Nationality in Union Citizenship Law

While solidarity as an ideal in the legal relationship between a host Member State and the non-national Union citizen has all but vanished from the discourse of EU free movement law, it has resurged in another line of case law concerning Union citizenship. The relationship between the Member States and their own nationals is at the centre of the case law on loss of Union citizenship rights under Article 20 TFEU. The bond of nationality between the individual and the state is there designated as one of ‘solidarity’ and ‘good faith’. This article argues that solidarity, as an ideal, is also relevant for understanding the case law dealing with returning, or naturalising Union citizens who have made use of freedom of movement under Article 21 TFEU. The article provides a discussion on the various expressions of solidarity as a component of the ideal bond of nationality between a Union citizen and their home Member State. Conclusively, it is argued that the meaning of the bond of nationality will continue to develop together with the legal evolution of Union citizenship.

The Evolution of the Public Security Defence in EU Free Movement Law: Lessons from the Energy Sector

AbstractThis Article analyses the evolution of the public security defence to justify restrictions on free movement within the EU in the context of the energy sector. Taking the seminal 1984 Campus Oil case as the point of departure for its analysis, the Article focuses on the interplay between public security and energy security and shows two key changes in the case law of the Court of Justice of the European Union. First, it demonstrates how the scope of the public security defence in the energy sector has gradually narrowed. Second, it shows how the public security defence has developed to take into account evolving social, technological, and legal contexts in the EU energy sector. Culminating in cases like Hidroelectrica in 2020 and OPAL in 2021, analysis of the relevant case law suggests that, despite the societal dependence on energy and the ongoing geopolitical turmoil in Europe, the Court of Justice interprets exceptions from free movement in an increasingly strict manner, highlighting the primacy of internal market approaches to energy security.

Pathways to interpersonal justice in European private law: top-down or bottom-up?

AbstractKatharina Pistor’s recent work has revealed a deep justice deficit in private law, raising fundamental questions about how it could be reduced. While Pistor favours piecemeal bottom-up solutions to instances of injustice, Martijn Hesselink proposes a more radical top-down strategy – the adoption of a progressive European code of private law. This article explores the top-down and bottom-up pathways to justice in private law, focussing on the role of interpersonal justice as justice between substantively free and equal persons in European private law. It shows that although concerns about a balance of the competing interests of private parties pervade many of its areas, they do not take central stage in European private law. The substantive private autonomy embodied in national private law systems, the regulated private autonomy enshrined in EU secondary private law and the unregulated private autonomy with an interstate element underpinning EU free movement law sit uneasily together. It is argued that in order to enhance the role of interpersonal justice in the internal market and develop a more coherent European private law, the current bottom-up pathway thereto could be complemented by a more top-down roadmap towards the EU principles of private law justice.

Counting Swines at a Satan’s Ball: Book Review of Jan Zglinski’s Europe's Passive Virtues: Deference to National Authorities in EU Free Movement Law

Counting Swines at a Satan’s Ball: Book Review of Jan Zglinski’s Europe's Passive Virtues: Deference to National Authorities in EU Free Movement Law

Limits of Law in the Multilevel System: Explaining the European Commission's Toleration of Noncompliance Concerning Pharmaceutical Parallel Trade*

AbstractThis article aims to explain the under‐researched phenomenon of why the European Commission (the Commission), as ‘guardian of the Treaties’, tolerates member states’ noncompliance with the EU law. While major accounts of selective enforcement depict the Commission as a self‐serving political entrepreneur, this paper assumes that it is a trustee guardian of EU treaties that aims to safeguard the stability and integrity of the EU legal order. For this purpose, the Commission is theorized to strategically utilize toleration of noncompliance to evade jurisdiction overlap and norm collision. Relying on the detailed tracing of the Commission's enforcement leniency towards Slovakia regarding pharmaceutical parallel trade, this illustrative case study indicates that toleration of noncompliance is a necessary evil for the Commission and other stakeholders to navigate through a legal and political impasse. And it simultaneously preserves the delicate integrity of the existing legal order of EU free movement law.

Designing Aviation Taxes Within the EU

This Article focuses on environmental taxes, specifically aviation taxes, and the challenges and limitations EU law imposes on individual EU Member States when they attempt to enforce both national and international environmental policy goals. Both the former Irish and the recently implemented Swedish aviation tax are used as comparative examples when chartering and discussing what (legal) obstacles are posed by EU law and, subsequently, the options available to individual Member States when attempting to design and implement environmental taxes. Further, common political obstacles are addressed in the Swedish and Irish case studies to further enhance the understanding of why and how aviation taxes are designed the way they generally are. A holistic approach, resulting in the inclusion of not only tax law and environmental law elements but also EU free movement law and EU state aid law in parallel legal systems (at domestic level and EU level) is applied to provide a more coherent and transparent outlineof the studied matter. The Article affords, through a tax technical study combined with environmental and economic theories, a conceptual framework on how an aviation tax may be designed to fulfil environmental goals and generate tax revenues while still complying with EU law. The Article comprises differing methods in calculating CO2 emission offsetting. Calculating factual taxation of individual flightsoffers the reader further understanding of the polluter-pays principle and present (in)efficiency of aviation taxes at Member State level. Despite the Article only covering aviation taxes applied within the EU, these discussions are of great relevance to scholars outside of the EU considering the increasing interest in climate law and the potential of environmental taxes when pursuing climate goals at both national and international levels. Additionally, policy discussions will only become more relevant over time due to ongoing environmental discussions and the implementation and enforcement of the UN’s sustainability goals.

Comparative Internal Market Law: The UK and the EU

Abstract The United Kingdom Internal Market Act 2020 introduces a new field of enquiry for scholars. It allows reflection on the model of an internal market chosen by the United Kingdom to regulate relations between its four constituent elements now that, after Brexit, the authority of the EU’s common rules has come to an end. It allows comparison and contrasts between the UK’s chosen model and the longer established patterns of the EU internal market. It is an invitation to develop a comparative study of the law of internal markets. The overall structure of the UK internal market envisaged by the 2020 Act is readily compared to that which exists in the EU, but there are also points of contrast. The most significant is that the UK model is less tolerant of regulatory diversity among its constituent elements than applies under EU free movement law. The scope to justify rules that obstruct trade within the UK is less generous than in the EU, with the consequence that the UK’s internal market has a more deregulatory flavour than the EU’s. This model of limited availability to protect local regulatory autonomy over unrestricted intra-UK trade pays little regard to sensitivities in Scotland and Wales, while the position of Northern Ireland, locked into the Protocol attached to the EU–UK Withdrawal Agreement, is different but also fragile. Internal markets possess economic motivations and they are built on legal rules, but they involve political choices and they have political implications. The UK Internal Market Act presents challenges to the stability of the United Kingdom itself. Accordingly the ambition of this paper is to explain the shape of the UK internal market and to compare and contrast it with the EU’s internal market. It also aims to demonstrate the political sensitivity of the choices that need to be made in designing an internal market against the background competing tensions of unhindered market access, on the one hand, and, on the other, respect for the regulatory autonomy enjoyed by the constituent units.

Private Pensions and EU Internal Market Law: Enhancing Retirement Provision through Harmonisation

Pensions, pension policy, and retirement provision has been historically associated with Member States alone. However, this is not so any longer. For years, occupational pension schemes have been brought within the scope of the internal market of the European Union. Extensive judgments from the Court of Justice of the European Union, as well as harmonised legislation from the EU legislature have followed to improve the marketplace for work-related pensions. Today, the market freedoms are now being furthered to cover not just occupational pension schemes, but also, the private pension market. In light of such developments at EU level, including the development of pan-European Personal Pension (PEPP) products, what is evident is a significant shift in the establishment of an EU-wide private pension market, mirroring developments in the United States in what are known as ‘individual retirement accounts’ (IRAs). In light of these EU advances emanating from free movement case law and the PEPP Regulation, with effects for both individual Europeans as future retirees, and financial services undertakings as pension product providers; this article analyses the complementary aspects of both positive and negative integration in the private pension market. The article elaborately demonstrates the significant effect of legal progress, through slow-moving developments, that are collectively contributing to closing the deficit in the retirement provision of Europe’s retirees of the future. EU internal market law, EU free movement law, pension law, private pensions, national personal pension products, PPP, Pan-European Personal Pension Products, PEPP, retirement, harmonisation

Book Review: Europe’s Passive Virtues: Deference to National Authorities in EU FreeMovement Law (Jan Zglinski). 1st edition. Oxford University Press. 2020

View Book Review: <i>Europe’s Passive Virtues: Deference to National Authorities in EU FreeMovement Law</i> (Jan Zglinski). 1st edition. Oxford University Press. 2020 by Filipe Brito Bastos - Legal Issues of Economic Integration

The Liminal European: Subject to the EU Legal Order

Abstract This contribution suggests that recent changes to EU free movement law have led to the emergence of a new type of subject: the liminal European. This subject is deemed to deserve the protection of EU law, in terms of the rights of residence and equal treatment in the host state, only when she is economically productive and socially adaptive. These changes pose a fundamental challenge to the authority of the EU, whose legal order is premised on its ability to challenge domestic processes of subjugation, exclusion, and precarity, which it is now, instead, starting to perpetuate. Being European is increasingly a status that is deeply precarious and conditional: a transitory state that is bestowed on rather than inhabited by the European. This notion of liminality is not only a useful descriptive category with which to analyse recent changes in EU free movement law. It also comes with significant normative implications for the EU and its legal order.

Is It Time to Abolish the Substance of EU Citizenship Rights Test?

Abstract It is almost ten years since Ruiz Zambrano decided that Article 20 TFEU precludes national measures which deprive EU citizens of the genuine enjoyment of the substance of their citizenship rights. The CJEU has since then clarified when the substance of rights test applies. This article highlights several inconsistencies and unresolved puzzles in the case law. First, contrary to what was initially suggested, EU citizens can be deprived of the substance of their rights. Second, contrary to what initial judgments suggested, the substance of rights test is not independent of but grounded in the right to free movement. This suggests that the same level of protection can be provided to EU citizens without this test, simply by relying on EU free movement law. The paper concludes by suggesting that these deficiencies can only be resolved by reconsidering the substance of rights test altogether.

Who cares? Caregivers’ derived residence rights from children in EU free movement law

Under EU free movement law, caregivers may derive a right to reside from a child who is enjoying rights granted under Union law. This article puts three different legal routes to such derived residence rights next to one another, as interpreted and applied in judgments from Baumbast and R. to K.A., to determine their commonalities, divergences, and potential conflicts. The article exposes how recent legal developments have put into question the relevance of the legal basis for derived residence rights of children and their primary caregivers in Article 10 of the Workers Regulation 492/2011, while expanding the scope of application of Article 20 TFEU; prompting a need for further clarification in this area of Union law.

Designing Aviation Taxes Within the EU – Chartering Ongoing Challenges and Proposing Future Solutions

This paper was presented at the Levin College of Law´s Tax Colloquium in April 2020. It focuses on environmental taxes, specifically aviation taxes, and the challenges and limitations EU law imposes on individual EU Member States when they attempt to enforce both national and international environmental policy goals. Both the former Irish- and the recently implemented Swedish aviation tax are used as comparative examples when chartering and discussing what (legal) obstacles are posed by EU law and, subsequently, the options available to individual Member States when attempting to design and implement environmental taxes. Further, common political obstacles are addressed in the Swedish and Irish case studies to further enhance the understanding of why and how aviation taxes are designed the way they generally are. A holistic approach, resulting in the inclusion of not only tax law and environmental law elements but also EU free movement law and EU state aid law in parallel legal systems (at domestic level and EU level) is applied in order to provide a more coherent and transparent outline of the studied matter. The article affords, through a tax technical study combined with environmental and economic theories, a conceptual framework on how an aviation tax may be designed to fulfil environmental goals and generate tax revenues while still complying with EU law. The paper comprises differing methods in calculating CO2 emission offsetting, based upon not only a selection of aviation taxes but also the distance travelled combined with the Swedish carbon tax alternatively the EU emission trading scheme. Calculating factual taxation of individual flights offers the reader further understanding of the polluter pays principle and present (in)efficiency of aviation taxes at Member State level. Despite the paper only covering aviation taxes applied within the EU, these discussions are of great relevance to scholars outside of the EU as well, as all airlines and passengers will be subject to them when travelling within the EU. Additionally, policy discussions such as these will only become more relevant over time due to ongoing environmental discussions and the implementation and enforcement of the UNs sustainability goals.

Subversive citizens: using EU free movement law to bypass the UK’s rules on marriage migration

ABSTRACT In 2012, new and restrictive spousal reunification laws were implemented in the UK. EU free movement rules, however, have enabled British citizens to circumvent those restrictions by residing for a period in another Member State, and then returning with their family member to the UK. The article examines the resulting tension between national and EU law. It explores use of the Surinder Singh route (named after the court case which established the rule) against a background in which a much wider group of British citizens than previously are now ineligible for family reunification under national laws. The route is perceived as a threat to government authority in a critical area of national sovereignty, as demonstrated by its invocation in the Brexit process. The article draws on interviews with twenty families who used or planned to use the route and discusses how it provides a safety valve for those with high cultural, but insufficient economic, capital to fulfil the domestic rules. It provides insight into how legal categories are fluid and contingent, demanding analytical flexibility and awareness of their dynamic effect on the lives of marriage migrants and sponsors.

Tell me where you come from and I will tell you the price: Ambiguous expansion of prohibited geographical price discrimination in the EU

This article outlines some of the ambiguities arising from the endeavours of EU legislators to tackle the problem of direct and indirect price discrimination based on nationality or residence of the customer – in this article referred to as geographical price discrimination (GPD) under EU free movement law. It is submitted that prohibiting direct and indirect GPD on the sale of goods and services with an unclear system of derogations potentially covers a variety of established pricing practices (including uniform prices and de minimis price differences). While it is submitted that Article 20(2) of the Services Directive should be repealed, a cautious approach towards interpreting and applying Article 4 of the new Geo-Blocking Regulation is suggested in order to avoid disproportional restrictions of parties’ contractual freedom, especially in respect of traders with insignificant market power.

EU Free Movement Law and the Children of Rainbow Families: Children of a Lesser God?

Abstract EU citizens and—through them—certain of their family members, derive from EU law the right to move between EU Member States and reside in the Member State of their choice. This right is enjoyed by all Union citizens irrespective of their sexual orientation. However, when rainbow families (ie families comprised of a same-sex couple and their child(ren)) exercise this right and move to a Member State which does not provide legal recognition to same-sex couples and/or their families, they are faced with the possibility that that Member State will refuse to legally recognize the familial ties among all or some members of the family, as these have been legally established elsewhere. This means that such families are not treated in the same way as the typical nuclear family which has an opposite-sex, married, couple with children as its basis; the familial links among the members of the nuclear family are only very rarely—if ever—legally contested. The question that emerges, therefore, is whether the severance in the host Member State of the legal ties among the members of rainbow families, amounts to a breach of EU law. This article will focus on the parent–child relationship and will examine the above question by taking a child-centred approach: does the refusal of the host Member State to legally recognize the relationship between a child and one or both of his same-sex parents when the family moves to its territory amount to a breach of any of the rights that the child enjoys under EU law?

The rise of deference: The margin of appreciation and decentralized judicial review in EU free movement law

An institution erstwhile known for its activism, the ECJ has, in recent years, rendered a growing number of judgments marked by caution, especially when reviewing Member State acts. Through doctrines such as the margin of appreciation, the Court has granted national authorities substantial deference. This article investigates how and when the Court defers to the Member States. It focuses on free movement adjudication and, more specifically, on the way in which the ECJ conducts justification and proportionality review. Drawing on an empirical study of free movement case law (1974–2013), it is argued that an important shift has taken place in EU law: the ECJ is scaling down its control over Member State measures and increasingly delegates decision-making tasks to national institutions, both political and judicial.

Book Review: Exceptions from EU Free Movement Law. Derogation, Justification and Proportionality, edited by Panos Koutrakos, Niamh Nic Shuibhne and Phil Syrpis. (Oxford: Hart Publishing, 2016)

Book Review: <i>Exceptions from EU Free Movement Law. Derogation, Justification and Proportionality</i>, edited by Panos Koutrakos, Niamh Nic Shuibhne and Phil Syrpis. (Oxford: Hart Publishing, 2016)

In Search of the Laww: Governing Homeless EU Citizens in a State of Legal Ambiguity

This research paper studies the government of Union citizens leading a homeless life in a different Member State than their own. Homeless organisations and scholars have pointed at the ambiguous and complex nature of EU free movement law as a factor aiding homelessness amongst Union citizens and a lack of support by domestic authorities. This paper takes up this observation by asking how Member States – both at the central and local level – actually receive, interpret and enforce EU (case) law when coping with homeless Union citizens in their territory. After laying out the sociological and legal position of homeless Union citizen in the EU free movement framework, the paper presents the findings of empirical research that takes the government of homeless Union citizens in the Netherlands as a case study. It will be described how an increase in homeless Union citizens after Eastern enlargement triggered a process of ‘finding the law’, in which a range of actors strategically explore the possibilities and limits of EU law. While local authorities first engaged in independent efforts to interpret and apply EU law to determine entitlement to social support and access to shelter facilities, these were increasingly supported by the central government and migration authorities. The result is that a coherent, yet still locally fragmented structure for the support, exclusion and removal of homeless Union citizens is now in place in the Netherlands. This offers the reader both a (critical) prospect into which policies and practices might feedback – through litigation and policy emulation – to the European level and a ‘state of affairs’ for a more normative approaches to the question of how the European Union should govern homelessness amongst its mobile citizens.