Export of Study Grants and the Lawfulness of Durational Residency Requirements: Comments on Case C-542/09, Commission v the Netherlands

2012 ◽  
Vol 14 (4) ◽  
pp. 417-437
Author(s):  
Alexander Hoogenboom
Keyword(s):  
The Netherlands ◽  
Member State ◽  
Migrant Workers ◽  
Student Mobility ◽  
Eu Law ◽  
Host Society ◽  
Member States ◽  
Legal Position ◽  
The One ◽  
The Individual

Abstract In Commission v the Netherlands (export of study grants) the Court has rendered an important judgment which has ramifications for the lawful use of durational residency requirements imposed on students wishing to export maintenance grants for study purposes as a means to balance the promotion of student mobility on the one hand and Member States’ desire to protect their educational budgets. Moreover, the judgment also addresses the legal position of frontier workers and migrant workers as regards access to social advantages in the state of employment, and more generally as regards the use of residency requirements for the purposes of assessing the link between the individual and the host society in EU law. Overall the conclusion seems to be that the Court is seeking to clarify its existing position while simultaneously developing new and more extensive obligations for the Member State in its relations with EU nationals of other Member States.

scholarly journals Legitimizing pre-emptive data surveillance under the EU law: the case of the PNR Directive

2021 ◽  
Vol 83 (1) ◽  
pp. 115-127
Author(s):  
Julia Wojnowska-Radzińska
Keyword(s):  
Member State ◽  
Eu Law ◽  
Member States ◽  
Eu Countries ◽  
Serious Crime ◽  
Data Surveillance ◽  
Surveillance Practice ◽  
The Individual ◽  
Eu Commission ◽  
The Eu

The paper analyses the PNR Directive as pre-emptive data surveillance practice. The 2016/681 Directive regulates the use of Passenger Name Record (PNR) data in the EU for the prevention, detection, investigation and prosecution of terrorist offences and serious crime. It obliges airlines to hand national authorities passengers’ data for all flights from third countries to the EU and vice versa, but Member States can also extend it to ‘intra-EU’ ones (i.e. from an EU country to one or more other EU countries), provided that they notify the EU Commission. Thus, PNR Directive affects all passengers who arrive in the territory of one Member State originating from a third country, or who depart from a Member State’s territory to a non-EU country, including any transfer or transit flights. Using PNR data, the individual is profiled and encoded in terms of degrees of risk.

scholarly journals Territoriality Beyond the State: The EU’s Territorial Claims and the Search for Their Legitimacy

2021 ◽  
Vol 22 (4) ◽  
pp. 650-672
Author(s):  
Josef Weinzierl
Keyword(s):  
The State ◽  
Political Community ◽  
The Other ◽  
Main Question ◽  
Eu Law ◽  
European Level ◽  
Territorial Claims ◽  
The One ◽  
The Individual ◽  
The Eu

AbstractQuite a few recent ECJ judgments touch on various elements of territorial rule. Thereby, they raise the profile of the main question this Article asks: Which territorial claims does the EU make? To provide an answer, the present Article discusses and categorizes the individual elements of territoriality in the EU’s architecture. The influence of EU law on national territorial rule on the one hand and the emergence of territorial governance elements at the European level on the other provide the main pillars of the inquiry. Once combined, these features not only help to improve our understanding of the EU’s distinctly supranational conception of territoriality. What is more, the discussion raises several important legitimacy questions. As a consequence, the Article calls for the development of a theoretical model to evaluate and justify territoriality in a political community beyond the state.

Enhanced Cooperation and European Tax Law

2021 ◽  
Author(s):  
Caroline Heber
Keyword(s):  
Member State ◽  
Internal Market ◽  
State Aid ◽  
Entire Group ◽  
Eu Law ◽  
Negative Effects ◽  
Member States ◽  
State Laws ◽  
Cooperation Mechanism ◽  
The Law

The enhanced cooperation mechanism allows at least nine Member States to introduce secondary EU law which is only binding among these Member States. From an internal market perspective, enhanced cooperation laws are unique as they lie somewhere between unilateral Member State laws and uniform EU law. The law creates harmonisation and coordination between the participating Member States, but it may introduce trade obstacles in relation to non-participating Member States. This book reveals that the enhanced cooperation mechanism allows Member States to protect their harmonised values and coordination endeavours against market efficiency. Values which may not be able to justify single Member State’s trade obstacles may outweigh pure internal market needs if an entire group of Member States finds these value worthy of protection. However, protection of the harmonised values can never go as far as shielding participating Member States from the negative effects of enhanced cooperation laws. The hybrid nature of enhanced cooperation laws—their nexus between the law of a single Member State and secondary EU law—also demands that these laws comply with state aid law. This book shows how the European state aid law provisions should be applied to enhanced cooperation laws. Furthermore, the book also develops a sophisticated approach to the limits non-participating Member States face in ensuring that their actions do not impede the implementation of enhanced cooperation between the participating Member States.

scholarly journals How Far Is It from Warsaw to Luxembourg and Karlsruhe: The Impact of the PSPP Judgment on Poland

2020 ◽  
Vol 21 (5) ◽  
pp. 1104-1115
Author(s):  
Stanisław Biernat
Keyword(s):  
European Integration ◽  
Rule Of Law ◽  
Case Law ◽  
Eu Law ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Member States ◽  
Constitutional Tribunal ◽  
Legal Position ◽  
The Impact

AbstractA concern was voiced in commentaries after the PSPP judgment that the BVerfG’s position regarding the refusal to apply in Germany the CJEU judgment as issued on an ultra vires basis might be used in EU Member States infringing the rule of law, and the independence of the judiciary in particular. This issue is presented in relation to Poland. The article sets out the constitutional provisions which proclaim openness to European integration, as well as the union-friendly case-law of the Constitutional Tribunal (CT) until 2016. The CT jurisprudence at that time provided, however, for the possibility of refusing to apply EU law in exceptional situations, even though this never happened. Next, the article discusses endeavors of the new Polish authorities since the end of 2015 which drastically breach the rule of law in the field of the judiciary, as well as the measures taken by EU institutions to counteract these adverse phenomena. The Polish authorities argue that the competence to define the legal position of the judiciary has not been conferred on the Union and remains within the exclusive competence of the Member States. Such a stance was also taken by the politically dependent CT in April 2020. The PSPP judgment was therefore welcomed with joy by Polish politicians. There are major differences, however, between the rulings of the BVerfG and those of the Polish CT in its current composition, and the hopes pinned on the PSPP judgment by the Polish authorities are unfounded.

Iv Lighedsprincipper i fRemmedlovgivningen

1979 ◽  
Vol 48 (1-4) ◽  
pp. 197-200
Author(s):  
Claus Bornemann
Keyword(s):  
Migrant Workers ◽  
Large Population ◽  
Administrative Discretion ◽  
Specific Service ◽  
Judicial Control ◽  
Legal Position ◽  
Legal Security ◽  
Administrative Units ◽  
Set Up ◽  
The Individual

AbstractThe provisions relevant to aliens are not collected in a single legislative act, and administrative practise is not published. An aggregated exposition of the legal position of aliens seems called for. Ordinary aliens from third countries (outside the Nordic countries and EC) are in a weaker position than refugees who are settled here. Refugees are about 100 % safe from expulsion and they are integrated by a specific service body "Danish Refugee Council". Migrant workers show signs of anxiety and insecurity. However unfounded this may be, the insecurity is undoubtedly due to the formulation and administration of the aliens legislation. Critics, who in a number of cases are supported by the ombudsman, have pointed out that the Aliens Act is inprecise, open for construction and not subjected to judicial control. For the individual alien ,expulsion is as serious as a criminal sanction, and may appear as an additional penalty. It is therefore regretable that expulsion is not surrounded by the procedual guarantees of criminal procedure. Many decisions concerning aliens are based on administrative discretion. This pertains not only to the aliens police but also to social authorities who may return aliens in certain cases. Denmark has no central aliens administration such as the Swedish "Innvandrerverket". We have the Refugee Council, but there appears to be an iron curtain between this institution and aliens, who are not refugees. Migrant workers, however have the same need for integration, but the principle here is a total legal equality with Danish nationals. This equality in law is not however, enough to secure equality in fact. Much of the disturbance around the Aliens Act might have been avoided if the migrant workers had the same aid at their arrival as do the refugees. Municipalities with a large population of migrant workers have to set up special administrative units to handle their problems and it is understandable that the question arises why the Refugee Council cannot act as advisor for the municipalities, who have problems with aliens. Greater equality between aliens permanently residing here is called for. This can partly be achieved by enhancing the procedual guarantees in the Aliens Act. Furthermore all aliens should receive the same service as refugees do. I fail to see why greater legal security for aliens should deteriorate the legal position of refugees. Aliens should be looked upon as people, who have been invited to the country, and not merely as labour. Finally I should likt to know, if it is in conformity with humane justice to expel an alien merely because he is a burden to society?

The Implementation of the Directive on the Application of Patients’ Rights in Cross-border Healthcare in the Netherlands

2014 ◽  
Vol 21 (1) ◽  
pp. 65-78 ◽  
Author(s):  
L.M.H. Bongers ◽  
D.M.R. Townend *
Keyword(s):  
The Netherlands ◽  
Member State ◽  
Contact Point ◽  
Health Law ◽  
Special Issue ◽  
National Legislation ◽  
Patients Rights ◽  
Cross Border ◽  
Dutch Health ◽  
The Individual

Abstract This article discusses the significance of the Directive 2011/24/eu on the application of patients’ rights in cross-border healthcare for the protection of individual patients’ rights in the Netherlands by describing how its provisions are implemented in Dutch health law. The responsible Dutch authorities take the view that most of the Directive’s provisions and requirements are covered in existing Dutch law. Implementation of the Directive would only require adaptations to national legislation with regard to the establishment of a national contact point for cross-border healthcare and the recognition of medical prescriptions issued in another Member State. This article looks into the question of how far the Dutch law meets the requirements of the Directive in relation to the individual patients’ rights addressed in this special issue of the European Journal of Health Law.

scholarly journals Goods in Transit and Intellectual Property Under the EU Law and Caselaw of the Court of Justice

2014 ◽  
Vol 14 (2) ◽  
pp. 93-104
Author(s):  
Radim Charvát
Keyword(s):  
Intellectual Property ◽  
Member State ◽  
Case Law ◽  
Trade Mark ◽  
State Courts ◽  
Eu Law ◽  
Member States ◽  
Court Of Justice ◽  
In Transit ◽  
The Eu

Abstract The paper addresses the issue whether customs authorities of Member States are entitled to suspend or detain goods in transit (i.e., products directing from one non- Member State to another non-Member State through the EU) and the evolving case-law of the Court of Justice related to this matter. Prior to the judgment in Philips and Nokia cases, a so-called manufacturing fiction theory was applied by some Member State courts (especially Dutch courts). According to this theory, goods suspended or detained by customs authorities within the EU were considered to be manufactured in the Member State where the custom action took place. In the Philips and Nokia judgments, the Court of Justice rejected this manufacturing fiction theory. But the proposal for amendment to the Regulation on Community trade mark and the proposal of the new Trademark directive, as a part of the trademark reform within the EU, go directly against the ruling in the Philips and Nokia cases and against the Understanding between the EU and India.

scholarly journals Evaluation of Member State Provisions Addressing Land Policy and Restitution by the European Commission

2021 ◽  
Vol 2 (2) ◽  
pp. 101-125
Author(s):  
Ágoston Korom
Keyword(s):  
Member State ◽  
European Commission ◽  
Agricultural Land ◽  
Land Policy ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Eu Member States ◽  
Direct Discrimination ◽  
Quality Of Living

The scope of action of EU Member States’ land policies lies at the intersection of positive and negative integration. Therefore, if a Member State restricts the ownership and use of agricultural land, it implies both the legitimate restriction of fundamental freedoms and that it achieves the targets listed under the Common Agricultural Policy (CAP) on improving the quality of living for farmers in keeping with the case law of the Court of Justice of the European Union (CJEU). Despite this, it is worrisome that the EU’s control over negative integration does not allow Member States to create sustainable regulations. In contrast, the EU law leaves it entirely to the Member States to introduce restitution measures vis-à-vis the properties that were confiscated before their accession. The EU’s control prohibits direct discrimination against the citizens of other Member States. Under certain circumstances, according to the European Commission, the general principles of EU law and the provisions of the Charter can help individuals enforce restitution provisions. Bearing this in mind, we analysed the practice of the European Commission, its statements, and procedures against Member States, given that these are based on professional and/or political considerations. We examine the practice of the Commission and the CJEU vis-à-vis a Hungarian legislation on the so-called ‘zsebszerződések’. We also propose recommendations.

Age Equality after the Employment Directive

2003 ◽  
Vol 10 (1) ◽  
pp. 9-38 ◽  
Author(s):  
Helen Meenan
Keyword(s):  
United Kingdom ◽  
The Netherlands ◽  
Age Discrimination ◽  
Member States ◽  
Eu Member States ◽  
The United Kingdom ◽  
Life Course Approach ◽  
The Usa ◽  
The Individual ◽  
The Eu

This article examines the Employment Directive from the age perspective and endorses a life course approach to ageing. It explores the permitted exclusions on grounds of age and especially the exceptional justification for direct age discrimination, contained in Article 6. In the end, EU Member States may find it more difficult to successfully transpose Article 6 than they imagine. The article reveals special challenges for age and refers to age laws in Ireland and the USA, in particular. It also refers to preparations for transposition in a number of Member States, including the United Kingdom and the Netherlands. Whether and to what extent age will ultimately receive the least protection of all the new grounds, remains to be seen and will depend largely on the individual approaches of the Member States. The ultimate consequence of the additional opportunities for excluding or justifying age discrimination may well be different protected areas throughout the EU.

scholarly journals Member State nationality under EU law – To be or not to be a Union Citizen?

2021 ◽  
pp. 1023263X2098607
Author(s):  
Lorin-Johannes Wagner
Keyword(s):  
Member State ◽  
Case Law ◽  
Eu Law ◽  
Member States ◽  
Union Citizenship ◽  
Set Up ◽  
Union Citizen ◽  
The Uk ◽  
The Eu

The question of who ought to be regarded as Union citizen is a central but not an easily answered question. Drawing on an analysis of the ECJ’s case-law and the underlying constitutional set up of Union citizenship, this article argues that the notion of nationality in EU law is based on a jurisdictional conception that builds on the idea of a genuine link and a territorial link with the EU. Relying on this understanding the article assesses the peculiar cases of Germany, the UK and Denmark, establishing not only if and how Member States can reconfigure the meaning of their nationality under EU law but also highlighting that the notion of nationality as a peremptory marker for Union citizenship is defined within the constitutional realm of EU law. The understanding that Member States are free to define their nationality within EU law, hence, is a misplaced overstatement of sovereignty. Against this backdrop the last part of the article turns to the case of Latvian non-citizens, arguing that Latvian non-citizens, who are generally not regarded as Union citizens, have been Union citizens all along.

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