Advise Karen and Henry. A)Karen There are three acts concerning Karen which could affect her rights under EU law: firstly, she was denied access to a tender process for exhibition space; secondly, she was subject to a deportation order; and thirdly the Court action she brought in relation to these first two acts was held in Italian. Article 20 of the Treaty on the Functioning of the European Union (“TFEU”) provides that all nationals of a Member State are citizens of the European Union( See Kochenov & Plender ‘EU Citizenship: From an incipient form to an incipient substance?The discovery of the treat text’  EL Rev 369 ). Article 18 TFEU prohibits, in relation to all Treaty matters, discrimination on the grounds of nationality. Article 21 TFEU provides that these nationals have the “right to move and reside freely within the territory of the Member States”.
Article 45 TFEU grants freedom of movement to “workers of the Member States” and prohibits discrimination on grounds of nationality. “Worker” is not defined in article 45 TFEU, or in secondary legislation. However, it has been interpreted widely by the ECJ( See Levin v.Staatssecretaris van Justitie (1982) and Steymann v. Staatsecretaris van Justitie (1988)) and by national courts( Mohammed Barry v Southwark London Borough Council (2008)).
Article 45 TFEU applies to national laws which discriminate directly( Union Royale Belge des Societes de Football Association (ASBL) v Bosman (1995)) or indirectly( Allue v. Universita degli Studi di Venezia (1993)) against migrant workers on the grounds of their nationality or where the law has a restrictive effect and amounts to an obstacle to the free movement of workers.Directive 2004/38 also provides that all EU citizens have the right to enter and remain in another Member State( Articles 5(1) and 6(1) Directive 2004/38).
The Directive sets out the grounds on which Member States are permitted to restrict these rights, which are on the grounds of public policy, public security and public health( Chapter VI – Articles 27-33 Directive 2004/38). The TFEU contains a number of provisions which require equal treatment in specific situations( e. g. Articles 18, 19 and 157 TFEU).Nevertheless the general principle of equal treatment is a fundamental right in EU law and the ECJ will seek to apply this wherever possible( Royal Scholten-Honig Holdings Ltd v. Intervention Board for Agricultural Produce (1978)). Article 24 of Directive 2004/38 guarantees that EU citizens residing in another Member State will receive equal treatment( See Dawson et al.
“ Enforcing the EU’s rights revolution: the case of equality”  EHRLR 276). Article 67 TFEU provides for a single “area of freedom, security and justice” and provides that the EU must facilitate access to justice.Free movement of goods is a fundamental freedom of the EU( Art. 26(2) TFEU) and article 34 TFEU prohibits Member States from implementing quantitative restrictions, or measures having an equivalent effect to quantitative restrictions (“MEQRs”). This prohibition applies to measures hindering imports, including those which “make importation more difficult or costly than the disposal of domestic production”( Art. 2(1) Directive 70/50) where domestic and imported products are treated differently – ‘distinctly applicable’ measures. The Cassis de Dijon case( Rewe-Zentral AG v.
Bundesmonopolverwaltung fur Branntwein (1979)), which concerned specifically free movement of goods, the ECJ set out principles to govern when national restrictions on fundamental rights may be permitted. The first principle, “the rule of reason”, allows indistinctly applicable laws where they are necessary to fulfil a mandatory requirement, so long as they are proportionate. The second principle of “mutual recognition” provides that products lawfully manufactured in one Member State should be marketable in another without restriction.Under article 7(2) of Regulation 1612/68 all workers of a Member State are entitled to the same social and tax advantages as national workers. Article 24(2) of Directive 2004/38 provides that Member States are not required to provide social assistance to EU citizens who have been resident in that State for less than three months.
The ECJ held that “those who find themselves in the same situation [should] enjoy the same treatment in law irrespective of their nationality”( Grzelczyk (Rudy) v CPAS (2001)) where they are lawfully resident in that Member State.Deportation order As a German national, Karen is an EU citizen. ( Art. 20 TFEU) As an EU citizen, she has the right to move and reside freely within the Member States( Art 21 TFEU ) and the rights of entry( Art. 5 Directive 2004/38) and of residence, without conditions or restriction, for up to 3 months( Art.
6 Directive 2004/38). Consequently, Italy’s decision to deport Karen on the grounds that she has no right to reside in Italy breaches her rights of free movement under Article 21 TFEU and Directive 2004/38, unless it can justify its actions.The grounds to justify restrictions on free movement are contained in Chapter VI of Directive 2004/38.
The authorities will struggle to argue that the measure is justified on grounds of public policy, public health or public security( Art 27 Directive 2004/38) as purely economic reasons for discrimination are not sufficient( Art. 27(1) Directive 2004/38) and any public security or public policy grounds must relate to Karen’s personal conduct, which must constitute a “genuine, present and sufficiently serious threat” to the fundamental interests of society( Art. 7(2) Directive 2004/38; See also “Case Comment: Expulsion of EU citizen requires present threat”  EU Focus 23) and there is no evidence that such grounds exist, notwithstanding the Italian authorities claims that Karen’s artwork is offensive to regional public morals. Refusal of tender It could be argued that Karen is also a worker, for the purposes of article 45 TFEU, as she is a professional artist and could be classed as self-employed.Alternatively, Karen could argue that her artwork amounts to goods or that she is providing services, performing activities of a craftsman( Art. 57 TFEU).
As set out above, article 18 TFEU prohibits discrimination on the grounds of nationality. Consequently, Italy’s decision to exclude Karen from the tendering process to rent exhibiting space because she is not an Italian national will be in breach of article 18 TFEU if it cannot be justified. Article 24 of Directive 2004/38 will also apply to ensure Karen receives equal treatment, if she is residing in Italy.Karen could argue, in the alternative, that the refusal to allow her to tender hinders her ability to provide services or will make importation of goods more difficult or costly than the disposal of domestic products as Karen will have to find alternative ways of exhibiting her artwork, which Italian artists will not have to do.
The decision is a distinctly applicable measure, discriminating directly on the grounds of nationality. Karen can argue that she is to be considered a ‘worker’ and that refusal to allow her to tender constitutes a denial of a social advantage.Karen would be unable to rely on Grzelczyk as she is not resident in Italy and it is possible that the Italian authorities may argue that renting the exhibition spaces amounts to social assistance, which they would not be required to provide to Karen under article 24(2) of Directive 2004/38 as she has not been resident in Italy for over three months. Nevertheless, article 61 TFEU prohibits distinctions being put in place on the grounds of residence so such an argument on the part of the Italian authorities may not be successful.The Italian authorities would not be able to rely on Cassis to justify the decision as there is direct discrimination on nationality grounds. As set out above, the Italian authorities will struggle to justify the restriction on the grounds set out in Directive 2004/38.
Language of court proceedings Karen’s court proceedings were held in Italian, which is the same for all non-residents. However, in light of the significant minority of German speakers in Italy, Italian nationals have the option to select whether to have Court proceedings held in Italian or in German.The Italian authorities may argue that this measure does not discriminate on grounds of nationality, as it is residence that is the deciding factor as to whether or not the individual can choose the language of Court proceedings. Consequently, if Karen were resident in Italy she would have been able to choose the language of proceedings. However, Karen will be able to argue that, whilst on the surface this is an indistinctly applicable measure, foreign nationals are impacted by it more significantly than Italian nationals (particularly as Italian nationals will prima facie suffer no detriment from Court proceedings being held in Italian).
In addition, article 61 prohibits distinctions on the grounds of non-residence. It seems likely therefore that Karen would be able to argue successfully that her rights to access to justice have been breached and that she has been discriminated against on the grounds of her nationality. It appears therefore that Karen’s rights under EU law have been breached in all three circumstances and that the grounds for justification do not appear to apply. B)Henry Henry’s employer, an Italian university is refusing to recognise Henry’s service at a UK university when considering his eligibility for a salary increment to reflect 15 years’ service.Henry has worked at the Italian university of 10 years and worked at a UK university for 5 years prior to that. The Italian authorities claim that the measure is justified for pressing public interest reasons – rewarding the loyalty of Italian university professors to their employer, the Italian State. As a UK national, Henry is an EU citizen( Art. 20 TFEU; See also Tryfonidou “Further steps on the road to convergence among the market freedoms”  EL Rev 36).
Henry is resident in Italy and is therefore entitled to equal treatment with Italian nationals under article 24 of Directive 2004/38.On the face of it, the University’s measure is indistinctly applicable, it applies in the same way to Italian nationals as it does to migrant nationals. However, the measure affects foreign nationals to a greater extent than Italian nationals, as they are more likely to have spent time at university institutions in other Member States. Consequently, unless the Italian authorities can justify the measure, it will breach Henry’s rights to equal treatment. As the measure is indistinctly applicable, it would be open to the Italian authorities to seek to rely on Cassis de Dijon to justify the restriction.The first principle in Cassis permits Member States to create indistinctly applicable laws which are necessary to fulfil mandatory requirements, provided that the law is proportionate. The reasons given by the Italian authorities to justify the measure do not appear to satisfy the ‘mandatory requirements’ test. In any event, rewarding loyalty to the Italian State as an employer does not appear to be a ‘pressing public interest reason’ as claimed and would appear to be contrary to the fundamental rights and freedoms upon which the European Union is founded.
It could be argued that the measure in fact hinders free movement of persons as it actively discourages it. In fact, the Italian authorities measures demonstrate the conflicts which exist between national identity and national measures and the concept of EU citizenship and the single market devoid of internal borders( See Konstadinides “La fraternite europeene? The extent of national competence to condition the acquisition and loss of nationality from the perspective of EU citizenship”  EL Rev 401). There are no grounds of public security, public health or public policy that could apply in this situation to justify the measure.There appears to be no justification for the university’s refusal to grant the salary increment to Henry and the decision is therefore in breach of his right to equal treatment. Both Karen and Henry have been subject to discriminatory decisions by institutions of the Italian State which violate their rights under EU law for which there is no justification.
They should therefore be able to bring successful claims against the Italian authorities. BIBLIOGRAPHY Treaty on the Functioning of the European Union C 83/50 (“TFEU”) oArticle 18 oArticle 19 oArticle 20 oArticle 21 Article 26 oArticle 45 oArticle 57 oArticle 157 Directive 2004/38/EC (29 April 2004) oArticle 5 oArticle 6 oArticles 27-33 Directive 70/50/EC oArticle 2 Royal Scholten-Honig Holdings Ltd v. Intervention Board for Agricultural Produce (cases 103 and 145/77)  ECR 2037 Rewe-Zentral AG v. Bundesmonopolverwaltung fur Branntwein (case 120/78)  ECR 649 Levin v. Staatssecretaris van Justitie (case 53/81)  ECR 1035 Steymann v.
Staatsecretaris van Justitie (case 196/87)  ECR 6159 Allue v. Universita degli Studi di Venezia (case C-331, 332/91)  ECR 1–4309Union Royale Belge des Societes de Football Association (ASBL) v. Bosman (case C-415/93)  ECR I-4921 Grzelczyk (Rudy) v. CPAS (case C-184/99)  ECR I-6193 Mohammed Barry v Southwark London Borough Council  EWCA Civ 1440 Dawson et al.
“ Enforcing the EU’s rights revolution: the case of equality”  EHRLR 276 Kochenov & Plender ‘EU Citizenship: From an incipient form to an incipient substance? The discovery of the treat text’  EL Rev 369 Konstadinides “La fraternite europeene? The extent of national competence to ondition the acquisition and loss of nationality from the perspective of EU citizenship”  EL Rev 401 Tryfonidou “Further steps on the road to convergence among the market freedoms”  EL Rev 36 A Valcke, “Five years of the Citizens Directive in the UK: Part 2”  Journal of Immigration Asylum and Nationality Law 331 “Case Comment: Expulsion of EU citizen requires present threat”  EU Focus 23 P Craig & G De Burca, EU Law: Text, Cases, and Materials, (2003) 3rd Edn Oxford University Press, Oxford AM Arnull et al. , Wyatt & Dashwood’s European Union Law (2000) 4th Edn Sweet & Maxwell, London