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Published online by Cambridge University Press: 17 January 2008
There has been much activity since the last report on this topic,1 not least that the citizenship provisions of the Treaty have burst into life with a series of cases and proposals which threaten to overturn the old order. The Commission's initial proposal2 to consolidate and radically reshape rights of residence has been revised in the legislative process,3 but is still un-adopted; the cases though are more dramatic.
1 Lonbay, J ‘The free movement of persons’ (2001) 50 ICLQ 168.CrossRefGoogle Scholar
2 COM(2001) 257 Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.Google Scholar
3 COM(2003) 199 final; Amended proposal for a Directive of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (presented by the Commission pursuant to Art 250 (2) of the EC Treaty).Google Scholar
4 Case C-184/99 Rudy Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve, [2001] ECR 1–6193. Under Art 1 of Council Directive 93/96 on the right of residence for students (OJ [1993] L317/59) entry is gained only by those students with, inter alia, ‘sufficient resources’ (Article 1). The Court found that the condition was exercised on entry and that later penury should not result in ‘automatic consequences’ or withdrawal of the offending student's residence permit (paras 42–43) which should happen only if they posed ‘unreasonable burdens’ on the State (para 44).Google Scholar
5 Case C-413/01 Franca Ninni-Orasche v Bundesministerfilr Wissenschaft, Verker und Kunst (judgment of 6 Nov 2003, not yet reported), where the Court emphasized the objective nature of the criteria defining a worker under EC law, and confirmed that the status of worker lingered enabling them to become students with full rights to any social advantages (para 35) though abuse of these rights would not be tolerated (para 36).Google Scholar
6 Case C-85/96 Martinez Sala [1998] ECR 1–2691.Google Scholar
7 Above n 4, para 31 ‘Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for.’Google Scholar
8 Ibid, paras 34–5.
9 Case C-413/99 Baumbast v Secretary of State for the Home Department [2002] ECR 1–7091, para 84.Google Scholar
10 OJ, English Special Edition 1968 (II) 475.Google Scholar
11 Joined cases 389/87 and 390/87 Echternach and Moritz [1989] ECR 723.Google Scholar
12 Above n 9, para 72. This was also utilized to bolster Art 49 EC in Case C-60/00 Mary Carpenter v Secretary of State for the Home Department [2002] ECR 1–6279 to enable residence rights for a third country spouse of a service provider resident in her own Member State.Google Scholar
13 Case C-224/98 Marie-Nathalie D'Hoop v Office national de I'emploi [2002] ECR 1–6191.Google Scholar
14 A few, for example, the previously agreed Dublin Treaty, have been adopted as Council Regulation 343/2003 (OJ [2003] L 50/1) establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national.See Lonbay, ‘Free movement of Persons in the EU: the legal framework’, in Arnull, and Wincott, (eds) Accountability and Legitimacy in the EU (OxfordOUP 2002) 437.Google Scholar
15 Case C-61/89 Bouchoucha [1990] ECR 1–3551, Joined cases 3/97 and C-194/97 De Castra Freitas and Escallier [1998] ECR 1–6747 and Case C-108/96 Criminal proceedings against Dennis Mac Quen and others [2001] ECR 1–837.Google Scholar
16 Moreover Arts 149 and 150 EC specifically exclude any harmonization of laws and regulations of Member States dealing with the content of education and training ‘respecting the responsibility of the Member States for the content of teaching and the organization of educational systems’ and ‘vocational training’.Google Scholar
17 Case C-58/98 Josef Corsten [2000] ECR 1–7919.Google Scholar
18 Case C-309/99 JCJ Wouters, JW Savelbergh, Price Waterhouse Belastingadviseurs BV v Algemene Road van de Nederlandse Orde van Advocaten [2002] ECR 1–1577.Google Scholar
19 Case C-294/00 Gräabner [2002] ECR 1–6515.Google Scholar
20 Public health is recognized by Arts 46(1) and 55EC as being capable of justifying restrictions on free movement.Google Scholar
21 Case C-153/02 Valentino Neri and the European School of Economics (ESE Insight World Education System Ltd) (judgment of 13 Nov 2003, not yet reported)). Section 216 of the Education Reform Act 1982 provides that approved bodies may provide courses in preparation for a degree ultimately being granted by a recognized body such as Nottingham Trent University.Google Scholar
22 See case C-439/99 Commission v Italy [2002] ECR 1–305, para 21.Google Scholar
23 Case 263/86 [1988] ECR 5365.Google Scholar
24 Above n 21, para 41. See also Case C-145/99 Commission v Italy [2002] ECR 1–2235, para 22.Google Scholar
25 Ibid, para 45.
26 Ibid, para 46; see also case C-439/99 Commission v Italy above n 22, para 23.
27 Ibid, para 47.
28 COM (2002) 119 final (7 March 2002) Proposal for a Directive of the European Parliament and of the Council on the recognition of professional qualifications.Google Scholar
29 Ibid, Art 4(3).
30 Ibid, Art 15.
31 Case C-313/01 Christine Morgenbesser v Consiglio dell'Ordine degli awocati di Genova, judgment of 13 Nov 2003, not yet reported.Google Scholar
32 Council Directive 89/48 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least 3 years' duration (OJ [1989] L 19/16), as amended by Directive 2001/19 of the European Parliament and of the Council, (OJ [2001] L206/1). Directive 98/5 of the European Parliament and of the Council of 16 Feb 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (OJ [1998] L 77/36).Google Scholar
33 Case C-31/00 Conseil National de I'Ordre des Architectes v Nicholas Dreesen [2002] ECR 1–663.Google Scholar
34 Ibid, para 27.
35 Case C-232/99 Commission v Spain [2002] ECR 1–4235, paras 22 and 25. See Case C-234/97 Teresa Fernáandez de Bobadilla v Museo Nacional del Prado, Comitée de Empresa del Museo Nacional del Prado and Ministerio Fiscal [1999] ECR 4773.Google Scholar
36 Above n 31, paras 57 and 58. Case C-l 10/01 Malika Tennah-Durez and Conseil Nationae de I'Ordre de Méedecins (judgment of 19 June 2003, not yet reported) confirmed that ‘world-wide scope’ of the recognition rule in the context of medical qualification where Directive 93/16 is not explicit on this issue.Google Scholar
37 Competent authorities should have already a ‘list of subjects’ required in their own Member States. This list should be normally reduced to a smaller list of topics, ‘knowledge of which is essential in order to be able to exercise the profession’ (Art l (g) of Directive 89/48/EEC).Google Scholar
38 Above n 31, paras 65 and 66.Google Scholar
39 ‘Without prejudice to Arts 3 and 4, a host Member State may allow the applicant, with a view to improving his possibilities of adapting to the professional environment in that State, to undergo there, on the basis of equivalence, that part of his professional education and training represented by professional practice, acquired with the assistance of a qualified member of the profession, which he has not undergone in his Member State of origin or the Member State from which he has come.’Google Scholar
40 Though in countries where the State regulates access to the stage it could be the organ of the State that is the competent authority, for example the Referendarzeit in Germany.Google Scholar
41 See case C-234/97 Teresa Fernandez de Bobadilla v Museo Nacional del Prado, Comitée de Empresa del Museo Nacional del & Ministerio Fiscal [1999] ECR 1–4773, noted at (2001) 50 ICLQ 168.CrossRefGoogle Scholar
42 Case C-340/79 [1991] ECR 1/2357 and re-affirmed in case C-238/98 Hocsman [2000] ECR 1/6623.Google Scholar
43 Directive 2001/19, above n 32.Google Scholar
44 Case C-285/01 Isabel Burbaud v Ministere de I'Emploi et de la Solidarity (judgment of 9 Sept 2003, not yet reported).Google Scholar
45 JORF, 13 Mar 2000.Google Scholar
46 Above n 41.Google Scholar
47 Above n 44, para 52.Google Scholar
48 Ibid, paras 71–8.
49 Ibid, para 91.
50 Ibid, para 92.
51 Ibid, para 96. The Court relied upon the oft-cited case ofKraus (Case C-19/92 [1993] ECR 1–1663) which indicated that ‘any national measure which although applicable without discrimination on grounds of nationality, is liable to hamper or render less attractive the exercise by a national of a Member State the freedom of movement of workers, is an obstacle to that fundamental freedom guaranteed by the Treaty’.
52 Ibid, para 99.
53 Ibid, para 100.
54 See Case C-294/00 Grabner [2002] ECR 1–6515 para 39.Google Scholar
55 The French legislation moreover did provide an alternative route for public servants to be exempted from the ENSP entrance exam on grounds of experience in the public service. These candidates for public service must only complete a stage of one year following certain courses of the ENSP. Admittedly the scheme would not apply to Community nationals without adjustments and it also presupposes that candidates had sat an earlier competition for public service which would not be the case with a Community national. According to the Court, the alternative regime showed that alternative modes of recruitment were possible which were less restrictive than the ENSP exam and which would allow qualified candidates to have their specific qualifications taken into account. Ibid, at §§ 106–9.
56 Ibid, para 110.
57 Ibid, para 111.