HUMAN RIGHTS OF EU CITIZENS AND TCNs AND LIMITS TO ACCESSING EU LAW copyright: iris goldner lang this presentation is protected by copyright and its origin should be acknowledged in any use made thereof. Prof. dr. sc. Iris Goldner Lang Jean Monnet Professor of EU Law UNESCO Chair on Free Movement of People, Migration and Inter-Cultural Dialogue Faculty of Law – University of Zagreb igoldner@pravo.hr

OUTLINE EU citizens: Third-country nationals (TCNs): The role of CJEU? Internal situations as limitats to EU citizens’ access to EU law Third-country nationals (TCNs): Asylum seekers: Field of application of the Charter as a limitation to asylum seekers’ access to EU law The role of CJEU?

EU CITIZENS: INTERNAL SITUATIONS AS LIMITATS TO ACCESSING EU LAW

FREE MOVEMENT ↔ EU CITIZENSHIP EU internal market rules: active Free flow of G/P/S/C Abolishment of cross-border hindrances Heavily relies inter-state movement Internal situations & reverse discrimination EU citizenship rules: static? Is EU citizenship limited to situations where there is cross-border movement or is it a step towards true abolishment/ignorance of inter-state movement? Should EU citizenship make a change: self- pertaining, self-standing rights?

INTERNAL SITUATIONS 35 & 36/82 Morson & Jhanjan: The Treaty provisions on freedom of movement for workers and the rules adopted to implement them cannot be applied to cases which have no factor linking them with any of the situations governed by EU law . It follows that EU law does not prohibit a MS from refusing to allow a relative of a worker employed within the territory of that state who has never exercised the right to freedom of movement within the EU to enter or reside within its territory if that worker has the nationality of that state and the relative the nationality of a non- member country.

INTERNAL SITUATIONS 64 & 65/96 Uecker & Jacquet (para. 23): Citizenship of the Union, established by Art. [20 TFEU], is not intended to extend the scope ratione materiae of the Treaty also to internal situations which have no link with EU law.

ART. 20(1) TFEU GENERAL DEFINITON Citizenship of the Union is hereby established. Every person holding the nationality of a MS shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

ART. 21(1) TFEU THE RIGHT TO MOVE AND RESIDE The right to move and reside freely within the territory of the MSs subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

POINT OF DEPARTURE But narrowed down by: Consolidated by: C-34/09 Ruiz Zambrano (8 March 2011) But narrowed down by: C-434/09 McCarthy (5 May 2011) C-256/11 Dereci (15 Nov. 2011) Consolidated by: C-165/14 Rendon Marin & C-304/14 C.S. (13 Sept. 2016) C-133/15 Chavez-Vilchez (10 May 2017) C-82/16 K.A. and Others (8 May 2018)

C-34/09 RUIZ ZAMBRANO Article 20 TFEU is to be interpreted as meaning that it precludes a MS from refusing a TCN upon whom his minor children, who are EU citizens, are dependent, a right of residence in the MS of residence and nationality of those children, and from refusing to grant a work permit to that TCN, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of EU citizen.

RUIZ ZAMBRANO EU citizens have a right to: “the genuine enjoyment of the substance of the rights attaching to the status of EU citizen” No need to move → Self-standing right of residence of domestic nationals (EU citizens) who have not exercised their free movement rights, and consequential derivative rights of TCN family members → EU citizenship: - self-standing right - source of real rights

BUT... MCCARTHY National measures at issue in the main proceedings do not have the effect of depriving Mrs. McCarthy of the genuine enjoyment of the substance of the rights associated with her status as a Union citizen, or of impeding the exercise of her right to move and reside freely with the territory of the Member States, in accordance with Article 21 TFEU. (para. 49).

ASYLUM SEEKERS: LIMITS TO ACCESSING THE CHARTER OF FUNDAMENTAL RIGHTS

ART. 6(1) TEU The Union recognises the rights, freedoms and principles set out in the Charter ..., which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.

FIELD OF APPLICATION (ART. 51) 1. The provisions of the Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the MSs only when they are implementing Union law ... 2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.

C-617/10 ACKERBERG FRANSSON Criminal proceedings against AF due to tax offences Providing false information on income tax and value added tax (harmonised by Directive 2006/112 on the common system of the value added tax) which exposed the Swedish exchequer to a loss of revenue In 2007 AF received tax penalties for 2004 and 2005 In 2009, criminal proceedings against AF are initiated for the same tax frauds AF claims that the criminal charges must be dismissed on the ground that he has already been punished for he same acts in other proceedings Are criminal proceedings contrary to the principle ne bis in idem contained in Art. 50 of the Charter?

ART. 50. OF THE CHARTER No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law12

C-617/10 AF - PROBLEM Art. 51 of the Charter: Is the Charter applicable (as a means of protection against national law before a national judge)? In case the Charter is applicable + in case it is contrary to Swedish law the national judge has to apply directly EU law and disapply national rules contrary to EU law (106/77 Simmenthal) Art. 51 of the Charter: 1. The provisions of the Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the MSs only when they are implementing Union law ...

C-617/10 AF - CJEU It follows from Dir. 2006/112 on the common system of VAT that every MS is under obligation to take all legislative and admin. measures appropriate for ensuring collection of all the VAT due on its territory and for preventing evasion (para. 25). It follows that tax penalties and criminal proceedings for tax evasion ... Constitute implementation of ... EU law for the purpose of Art. 51(1) of the Charter (parag. 27). The fact that national legislation upon which those tax penalties and criminal proceedings are founded has not been adopted to transpose Directive 2006/112 cannot call that conclusion into question, since its application is designed to penalise an infringement of that directive and is therefore intended to implement the obligation imposed on the MSs by the Treaty to impose effective penalties for conduct prejudicial to the financial interests of the EU (parag. 28)

THE CHARTER AND THE RIGHT TO ASYLUM No one shall be subject to torture and inhuman or degrading treatment or punishment (Art. 4). The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention ... (Art. 18) No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. (Art. 19)

C-638/16 PPU X&X On 12 October 2016 , a Syrian couple and their three young children, Syrian nationals living in Aleppo (Syria) , applied to the Belgian Embassy in Beirut (Lebanon) for visas. They returned to Syria on 13 October 2016 . Their applications were for visas with limited territorial validity, pursuant to the EU Visa Code, to enable the family to leave the besieged city of Aleppo, with a view to making an asylum application in Belgium. One of the applicants claims, inter alia, to have been taken by an armed group, beaten and tortured and finally released on payment of a ransom. The couple maintains that the security situation in Syria in general, and in Aleppo in particular, has deteriorated and point out that, as Orthodox Christians, they are at risk of persecution on account of their religious beliefs. They add that it is impossible for them to register as refugees in the neighboring countries because, among other reasons, the border between Lebanon and Syria has in the meantime been closed. 16

C-638/16 PPU X&X Art. 25 (1)(a) of the Visa Code: A visa with limited territorial validity shall be issued exceptionally, in the following cases: (a) When a MS concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations, i. To derogate from the principle that the entry conditions laid down by the Schengen Borders Code must be fulfilled;

C-638/16 PPU X&X Opinion of AG Mengozzi ≠ CJEU’s judgment

AG MENGOZZI: C-638/16 PPU X&X The situation of the applicants in the main proceedings is governed by the Visa Code and, therefore, by EU law, including if it were to be held that their application were rightly refused (para. 61). By adopting a decision under Art. 25 of the Visa Code, the authorities of a MS implement EU law for the purpose of Art. 51(1) of the Charter and are, therefore, required to respect the rights guaranteed by the Charter (para. 84). A MS is required to issue a LTV visa if there are substantial grounds to believe that the refusal to issue that document will have the direct consequence of exposing that national to treatment prohibited by Art. 4 of the Charter, by depriving that national of a legal route to exercise his right to seek international protection in that MS (para. 163).

CJEU: C-638/16 PPU X&X It is apparent ... that the applicants ... submitted applications for visas on humanitarian grounds, based on Art. 25 of the Visa Code, at the Belgian embassy in Lebanon, with a view to applying for asylum in Belgium immediately upon their arrival in that MS and, thereafter, to being granted a residence permit with a period of validity not limited to 90 days.(Para. 42). Such applications, even if formally submitted on the basis of Art. 25 of that code, fall outside the scope of that code, in particular Art. 25(1)(a) thereof .... (Para. 43). Since the situation at issue in the main proceedings is not ... governed by EU law, the provisions of the Charter, in particular, Art. 4 and 18 thereof ... do not apply to it (see, to that effect judgment Åkerberg Fransson ... (para. 45).

CONCLUDING REMARKS CJEU’s conscious decision not to decide on these matters: CJEU’s message that a different ruling would require legislative amendments of EU law? CJEU’s message to EU institutions, MSs and other political actors? CJEU’s desire to accommodate itself to political reality and MSs’ intentions?

Copyright: Iris Goldner Lang This presentation is protected by copyright and its origin should be acknowledged in any use made thereof.