Introduction
This essay addresses a multifaceted problem question concerning the application of European Union (EU) law to various scenarios involving rights of residence, family reunification, access to education, and free movement of goods and services. Using the IRAC (Issue, Rule, Application, Conclusion) method, this piece provides legal advice to Jennifer, Anbeta, Denise, and Franz on their respective situations under EU law. The analysis focuses on key provisions of the Treaty on the Functioning of the European Union (TFEU), relevant directives, and case law from the Court of Justice of the European Union (CJEU). The essay aims to demonstrate a sound understanding of EU law principles while offering logical arguments supported by authoritative sources. Each section addresses a distinct issue, ensuring clarity and coherence in the evaluation of rights and potential breaches of EU law.
Jennifer’s Right to Permanent Residence in Germany
**Issue**: Does Jennifer, a US citizen residing in Germany, have the right to permanent residence under EU law despite the German authorities’ refusal due to her lack of employment or self-employment?
Rule: Under EU Directive 2004/38/EC, family members of EU citizens may derive residence rights in a Member State. Article 7 of the Directive stipulates that family members, including spouses, of an EU citizen exercising free movement rights have the right to reside with them for more than three months, provided certain conditions are met (e.g., the EU citizen has sufficient resources and health insurance). Additionally, Article 16 grants the right to permanent residence after five years of continuous legal residence.
Application: Jennifer, as the former spouse of Franz (a Dutch national and EU citizen), lived in Germany for five years during their marriage, a period during which Franz likely exercised his free movement rights under Article 21 TFEU. However, post-divorce, her right to reside depends on whether she retained derived rights under Article 13 of Directive 2004/38/EC. This provision allows retention of residence rights for non-EU family members in cases of divorce, provided certain conditions are met, such as having custody of the EU citizen’s child (Denise) or having lived in the host state for at least one year before the divorce. Jennifer appears to meet these criteria as she has custody of Denise and remained in Germany post-divorce. Furthermore, having resided legally for five years, she should qualify for permanent residence under Article 16, regardless of her employment status, as the CJEU has clarified in cases like Singh (Case C-370/90) that derived rights are not strictly contingent on current economic activity (Baumbast, Case C-413/99).
Conclusion: EU law likely confers on Jennifer the right to permanent residence in Germany. She should challenge the German authorities’ decision based on her derived rights as a family member of an EU citizen and her continuous legal residence.
Anbeta’s Right to Relocate to Austria
**Issue**: Can Anbeta, an Albanian citizen married to Franz (a Dutch EU citizen), claim the right to reside in Austria under EU law despite being denied entry due to prior illegal entry into Italy?
Rule: Directive 2004/38/EC, Article 5, grants entry and residence rights to family members of EU citizens, including non-EU spouses, in the host Member State where the EU citizen resides, subject to conditions like lawful marriage and not posing a threat to public policy. The CJEU has emphasized in cases like Metock (Case C-127/08) that prior lawful residence in the EU is not a prerequisite for non-EU family members to benefit from residence rights.
Application: Anbeta, as Franz’s legally married spouse, should derive residence rights under Directive 2004/38/EC since Franz, an EU citizen, exercises his free movement rights by residing in Austria. The Austrian legislation requiring prior lawful residence within the EU contradicts EU law, as confirmed by Metock, where the CJEU ruled that Member States cannot impose additional conditions on family reunification beyond those in the Directive. While Anbeta’s prior illegal entry into Italy may raise public policy concerns under Article 27 of the Directive, the CJEU requires that any refusal on such grounds must be proportionate and based on a genuine, present threat, not merely past conduct (Rutili, Case 36/75). Without evidence of current risk, Austria’s blanket refusal based on past entry likely breaches EU law.
Conclusion: Anbeta likely has the right to reside in Austria under EU law. She should contest the Austrian authorities’ decision, citing the primacy of EU law over conflicting national legislation.
Denise’s Obligation to Pay the Training Course Fee in Malta
**Issue**: Must Denise, an 18-year-old German and US national working in Malta, pay a 100-euro fee for a training course that is free for Maltese citizens?
Rule: Under Article 18 TFEU, discrimination based on nationality among EU citizens is prohibited. Furthermore, Article 24 of Directive 2004/38/EC ensures equal treatment for EU citizens residing in another Member State, including access to education and training. The CJEU has ruled in cases like Gravier (Case 293/83) that vocational training falls within the scope of equal treatment under EU law.
Application: Denise, as a German national, is an EU citizen exercising her free movement rights under Article 21 TFEU by working in Malta. As such, she is entitled to equal treatment with Maltese nationals under Article 24 of Directive 2004/38/EC regarding access to education and training. The imposition of a fee specifically on non-Maltese EU citizens for a course that is free for locals constitutes discrimination on grounds of nationality, contrary to EU law. The CJEU’s stance in Gravier reinforces that vocational training, such as a tourist guide course, must be accessible on equal terms. Malta cannot justify this differential treatment unless it falls within narrowly defined exceptions, which do not appear applicable here.
Conclusion: Denise should not have to pay the 100-euro fee. She can challenge the decision, relying on her right to equal treatment under EU law as an EU citizen.
Franz’s Challenge to the Dutch Advertising Ban
**Issue**: Does the Dutch ban on advertising Franz’s board game ‘Risking’ on television, due to concerns over encouraging gambling, breach EU law?
Rule: Article 34 TFEU prohibits quantitative restrictions on imports and measures having equivalent effect between Member States, while Article 56 TFEU ensures the freedom to provide services cross-border. However, Member States can justify restrictions on public policy or public health grounds under Article 36 TFEU, provided measures are proportionate and non-discriminatory, as clarified in Cassis de Dijon (Case 120/78). The CJEU also recognizes restrictions on gambling-related activities under public policy in Schindler (Case C-275/92), but these must be consistent and necessary.
Application: The Dutch ban on advertising ‘Risking’ potentially restricts Franz’s freedom to export goods and provide services under Articles 34 and 56 TFEU, as it limits market access in the Netherlands. While the Dutch authorities cite concerns over gambling, the measure must be proportionate and non-arbitrary to be justified under Article 36 TFEU or public policy grounds. If ‘Risking’ is not inherently a gambling activity but merely includes betting elements, the blanket ban on advertising may exceed what is necessary to protect public interest, failing the proportionality test established in Cassis de Dijon. Moreover, if the ban applies only to imported games or disproportionately affects non-Dutch producers, it could be deemed discriminatory. However, if the Netherlands applies similar restrictions to domestic products and can demonstrate a genuine public health risk, the measure might be upheld, as seen in Schindler.
Conclusion: The Dutch ban likely breaches EU law unless it is proportionate and non-discriminatory. Franz should challenge the restriction, requesting evidence of necessity and consistency in Dutch policy.
Conclusion
This analysis demonstrates that EU law provides substantial protections for the individuals in question. Jennifer likely has a right to permanent residence in Germany based on her derived rights and continuous residence. Anbeta should be entitled to reside in Austria with Franz, as EU law prioritizes family reunification over national restrictions. Denise is protected from discriminatory fees in Malta under equal treatment principles, and Franz may contest the Dutch advertising ban if it disproportionately restricts his free movement rights. These cases highlight the supremacy of EU law over national decisions and the importance of proportionality in restricting fundamental freedoms. The implications underscore the need for Member States to align domestic policies with EU directives and CJEU jurisprudence to avoid legal challenges.
References
- Baumbast and R v Secretary of State for the Home Department (2002) Case C-413/99, Court of Justice of the European Union.
- Gravier v City of Liège (1985) Case 293/83, Court of Justice of the European Union.
- Metock and Others v Minister for Justice, Equality and Law Reform (2008) Case C-127/08, Court of Justice of the European Union.
- Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) (1979) Case 120/78, Court of Justice of the European Union.
- Rutili v Minister for the Interior (1975) Case 36/75, Court of Justice of the European Union.
- Schindler (1994) Case C-275/92, Court of Justice of the European Union.
- Singh v Minister for Justice (1992) Case C-370/90, Court of Justice of the European Union.
- European Union (2004) Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, Official Journal of the European Union.
