General Rights of Eu Citizens Essay

Introduction

Since our company New Foods plc is planning to set up a new regional headquarters in other countries of the EU, we who comprise the company’s legal team are presenting this brochure for the benefit of all those employees who desire to move to another country in the EU.  In this connection The European Community Law offers several fundamental freedoms and one of them is the right to free movement of persons. This fundamental freedom encompasses the right to live and work in another Member State. This right of free movement within the Community is applicable not only to workers, but also to students, pensioners and EU citizens.

This right is the most important right granted by the Community law to individuals, and constitutes a fundamental ingredient of not only the Internal Market but also the European citizenship. Since migrating to another country is a major decision, it is essential to provide our employees with accurate information regarding their rights. In the EU it is illegal to discriminate on the basis of nationality. As far as access to jobs is concerned it is the duty of the Member States to accord a higher priority to workers from Member States over workers from non – EU countries. However, we draw the attention of our employees to the fact that the host Member State is well within its rights to reserve some jobs in the public sector to its nationals[1].

Family members

Moreover, it should be very encouraging for our employees to know that irrespective of their nationality, the following family members can accompany and stay with them in the host Member State, namely, a spouse; a partner with whom the employee has entered into a registered partnership in a Member State (however, the laws of the host Member State should accord the same status to registered partnerships as they do to marriage and in accordance with the stipulation of the host Member State), descendants of the employees as also the descendants of the employee’s spouse or registered partner whose age is less than 21 years or dependant descendants, the employee’s and the employee’s spouse’s or registered partner’s dependent relatives in the ascending line.

Moreover, certain other family members of the employee have to be permitted and facilitated to enter and reside in a Member State and such persons are other dependant family members and members of the employee’s household who require the employee’s personal care on account of serious health grounds, and the partner with whom the employee has a duly attested long-lasting relationship.

The employee’s family members who are EU citizens may have to register with the competent authority and thereafter they will be provided a certificate of registration. In general, only the following documents are insisted upon for issuing the registration certificate or the residence card, either a valid identity card or passport; if the family members belong to a third-country then they have to furnish a valid passport; documentary proof regarding the family relationship or registered partnership; in addition family members of the employee have the right to take up permanent residence in the host Member State if they have been living there continuously for five years or more.

If these family members of the employee are EU nationals, then on application they will be given a document that certifies their permanent residence. In the event of these family members of the employee being third country nationals, they can apply for and will be provided with a permanent residence card, which can be renewed every ten years.

Another benefit that these family members of the employee enjoy is that under certain specific conditions, they can retain this right of residence in the event of divorce, annulment of marriage, termination of registered partnership, death or departure of the worker.

Furthermore, our employee’s family members who have the right of residence in the host Member State, also have the right to work in the host Member State without any reference to their nationality. Most importantly, this implies that in case these family members are third country nationals, they will not be required to possess a work permit and moreover, these persons have the right to equal treatment and social advantages.

The offspring of the employee, irrespective of their nationality, have the right to be educated in the host Member State at par with the children of the nationals of that Member State. For example, this included the very important right to have the same eligibility for study grants as children of nationals of the Member State[2].

In addition, an employee in another Member State has the right to be accorded the same priority as nationals of that Member State in respect of access to employment and the aid provided by employment offices in the host Member State. A very important right in this respect is that recruitment has to be independent of medical, occupational or other criteria which discriminate on the basis of nationality.

Exercising an Occupation and Equal Treatment

Further, employees, who are nationals of a Member State, cannot be accorded treatment, in another Member State, that differs from that of the national workers with regard to working and employment conditions due to their nationality. Moreover, these employees have similar rights in respect of obtaining occupational training and retraining and will be entitled to social and tax benefits that are akin to what national workers enjoy.

In respect of trade union activities and rights a national of a Member State employed in another Member State is entitled to receive the same treatment as its nationals in the matter of trade union rights and some instances of these rights are the right to vote and the right to be elected to the administrative and management posts of a trade union. However, such eligibility may be absent in respect of the management of bodies under public law and the exercise of an office under public law. These employees are eligible to participate in workers’ representative bodies in any undertaking.

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The above discussion and facts should make it very clear to all our employees that barring a few exceptions, the necessary legislative framework for freedom of movement is well established and most of the problems that employees are likely to encounter have been addressed by the extant legislation. Hence, our employees should find this development, which has been contemplated by our company to be very beneficial to their interests.

FAQS

My elderly mother-in-law lives with us. She’s had a stroke so she can’t manage on her own. Can she come with us?

The following members of your family are entitled, irrespective of their nationality, to reside with you in the host Member State, first, your spouse; or a partner with whom you have a registered partnership in a Member State, but this is valid only if the legislation of the host Member State grants the same status as marriage to such partnerships; your descendants and descendants of your spouse or registered partner whose age is less than twenty one years of age; relatives who are dependent upon you in the ascending line and those of your spouse or registered partner.

Moreover, the Member States must assist the entry and residence of your family members who can be deemed to be dependants or members of your household or those who need your personal care due to serious health grounds. Since, the person who has to stay with is your mother – in – law who has suffered a stroke and who therefore cannot manage her affairs on her own; you can definitely take her to live with you[3].

My son is sixteen, and about to take GCSE’s. He’s planning to go on to Sixth Form College. Can he go to college in the country we move to?

The children of the employee, irrespective of their nationality, have the same right to education in the host Member State as the children of its nationals and on the same terms. For example, such children of an employee have the right to be accorded the same right to equal treatment in relation to the award of study grants[4].

Thus, your son can go to college in the country that you move to. Moreover, if any grants are available, then he cannot be denied the same on the mere basis of his nationality.

My husband is a lawyer. Will his qualifications be recognised in another country? How will the extension of the regulatory regime affect solicitors working from within the DPB regime?

Any lawyer is allowed to practice on a permanent basis in any other Member State under his home-country professional title without the imposition of any time restriction whatsoever[5]. However, such a lawyer has to indicate his home-country title “in an intelligible manner and in such a way as to avoid confusion with the professional title of the host Member State[6].”

The Law Society, as a DPB, has suitably modified its Rules in order to accommodate the new activities. The amended Scope and COB rules require that any firm must, in the usual course, have at least one principal who has been admitted for three years. Furthermore, every solicitor who is either a partner in private practice or whose employment in private practice is concerned with providing legal services must possess a practising certificate[7]. Hence, your husband’s qualifications will be recognized and the only requirement of the regulatory regime is that he should possess a practising certificate.

My partner and I aren’t married, but we’ve been living together for seven years and have two children together. She is an Australian citizen. Her two children from a previous relationship also live with us. Will we be able to move as a family?

The following family members, whatever their nationality, have the right to reside with you in the host Member State:

your spouse; the partner with whom you have contracted a registered partnership in a Member State, but only if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down by the host Member State;

your descendants and those of your spouse or registered partner who are under the age of 21 or are dependants;

your dependent relatives in the ascending line and those of your spouse or registered partner.

The Directive provides a right to be joined in another Member State by: ‘the direct descendants who are under the age of 21 or are dependents and those of the spouse or partner…[8]’ and it can be reasonably assumed that descendant connotes biological children; adopted children and any other children for whom the employee is a legal guardian.  Moreover, the Member State has to facilitate entry and residence to the unmarried partner of the employee[9]. Therefore, you can go with your partner and her dependant children.

I’m a bit worried that my past will be a bit of a problem. Years ago, when I was a student, I was involved in political demonstrations and was arrested several times. I’ve heard that some countries are not very tolerant of people with convictions for public order offences.

According to the Treaty establishing the European Community it is possible to restrict the free movement of persons on grounds of public policy, security and health. Therefore, a citizen can be prohibited from entering or residing in another Member State on these grounds. The European Court of Justice has held that such restrictions can be imposed in individual cases only if sufficient justification exists. Therefore, the Member States have to specify on a case-by-case basis the exact reasons for imposing such restrictions.

Moreover, such restrictions imposed on the grounds of public order or public security has to be on the sole basis of behaviour of the concerned person and should be consequent to “a present and serious threat affecting one of the fundamental interests of society. A Member State cannot impose restrictions to serve economic grounds or solely on the basis of a previous criminal conviction[10].”

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Therefore, your entry to a Member State will be subject to a thorough scrutiny by its officials; however, justice will be rendered to you.

Sources of Further Information

Article 2 of the Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998

Article 2(2) (c), Directive 2004/58/EC.

Article 3(2) of the Regulation 1612/68.

Article 4 of the Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998.

Article 5 of Title I of the EU Regulation 1612/68.

Council Directive 77/249/EEC of 22 March 1977.

European Parliament and Council Directive 2004/38/EC of 29 April 2004.

 

EU Directive 77/486/EEC.

Providing safeguards and guarantees limiting the power of Member States to restrict the fundamental right to free movement within the EU. Freedom, Security and Justice. Available at http://ec.europa.eu/justice_home/fsj/citizenship/public /fsj_citizenship_public_en.htm.

The Solicitors’ Financial Services (Insurance and Mortgages) Amendment Rules 2004.

[1] Article 5 of Title I of the EU Regulation 1612/68.

[2] Employees requiring more detailed information in respect of the provisions on family unification can consult   Directive 2004/38/EC.

[3] European Parliament and Council Directive 2004/38/EC of 29 April 2004.

[4] EU Directive 77/486/EEC.

[5] Council Directive 77/249/EEC of 22 March 1977 facilitates the effective exercise by lawyers of freedom to provide services. Article 2 of the Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 facilitates the practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained.

[6] Article 4 of the Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998.

[7] The Solicitors’ Financial Services (Insurance and Mortgages) Amendment Rules 2004.

[8] Article 2(2) (c), Directive 2004/58/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.

[9] Article 3(2) of the Regulation 1612/68 on the freedom of movement of workers.

[10] Providing safeguards and guarantees limiting the power of Member States to restrict the fundamental right to free movement within the EU. Freedom, Security and Justice. Retrieved on December 25, 2006 from http://ec.europa.eu/justice_home/fsj/citizenship/public/fsj_citizenship_public_en.htm.

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