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Euro law Qtns combined final Essay
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Nov 26th, 2019

Euro law Qtns combined final Essay

Question ThreeEuropean union members can freely move within member states a fundamental freedom of the European union internal market Article 26 TFEU. A union member and their spouse are allowed to move to any member state up to a period of three initial months, as long as they hold a member state national identity card or passport but if they intend to stay more than 3months (Article 7)(1) for a union citizen should be a worker in this case as the authority of (Lawrie-Blum).

Defined a worker as any persons performing services for and under the direction of another in return for remuneration . However A non-Eu family member staying over 3months should be accompanying or joining a union citizen but should have among others a job, sufficient resources, with valid insurance.A union member once out of employment retains privileges as a worker (if a job seeker (Antonissen, ( Directive 2004/38Art.14(4)(b) It further advances that right to a union family members too (Diatta),.

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A union member may acquire permanent residence after 5years (ART.16) if as a union citizen has been resident for a continuous period the host country in question. Which applies to anon Eu “family member whom is resides with a union citizen. And in addition before 5years (Article.17) similarly to any other union family member to a worker or self employed.MARYS ADVICE MARYS RIGHT OF ENTRY AND RESIDENCEMary is an Irish citizen a member state thus a union member in Spain with aright provided for in (Article 20(2) Treaty on The Functioning of the European Union (TFEU), It is also contained for Mary in (Article 21TFEU) that citizens of the union enjoy aright to move and reside freely within territory of member states. Mary is provided for by Article 45(TFEU)(1) Freedom to move as a worker secured within the union (2) free movement entailing abolition of discrimination on a basis of nationality between workers of union members in regards to, remuneration and Employment. The secondary Legislation identifies scope to Mary’s rights of Article 21 by directive 2004/38. Mary as a union citizen rightly can enter and live in Spain initially for 3 months, without formalities (Article 6). Since she is living and worked in Spain she has Already exercised her right of entry to Spain this provides her a benefit to remain in Spain for more than the initial 3month as par Directive 2004/38 Article (14)(b) (Antonissen).Mary’s prior employment provides her arrange of worker rights as a union member (under the Treaty and secondary legislation) where the European Court of justice suggests a worker to be persons that are in employment relationships essentially featuring a period of time persons perform services for and under the direction of another of which in return they receive remuneration (Lourie-blum). Therefore the ECJ regards Mary a union worker (Hoestra case) doesn’t base on any national classification of workers and self-employed persons rather a community law concept here its recognized that Mary could retain her status as a worker though not actually employed (Levin case).Mary’s part time job at the bar is an undertaking effective as a genuine economic activity that falls in the definition as a worker (Levin, bettra). Since Mary has been working in Spain and the decisions in the Levin and Kempf cases remain key authorities on defining of who is a worker under what is now (Article 45 TFEU).Mary enjoys a benefit of worker status established under (Article 45 TFEU) which among others a right to remain in a member state upon finishing work either as a result of retirement or disablement.There for as a migrant worker Mary has aright under Article 45(3) TFEU to remain in Spain for the purposes of employment as a union citizen with worker status she has the right under Directive 2004/38,to remain in Spain for more than three months Article 7(1)(a). Mary having been employed for some time enjoys the benefit of retaining worker status because she was employed which qualifies her equal treatment with nationals in elation to a whole craft of potential benefits and one of Mary’s battleground has been entitlement to financial support as a student.Mary is further advised that her access to financial support for studies is an entitlement arising under community law (Gravier case) established that equality of access to vocational training required equal treatment of all nationals of the member states in relation to Tuition fees. Mary continues to qualify as a worker under the EEC Treaty she is entitled to financial support for her studies which is a benefit that falls under Article 7 regulation 1622/68 Mary is a worker economically integrated into her host state and she ceased work and trying to undertake training in a university article 7(2) provides for equal access to social and tax advantages.Mary’s rights to access student finance, Employment andFreedom From Discrimination Mary is provided for in article 18 Tfeu sets out the general principle of freedom from discrimination on grounds of nationality within the scope of application of this treatyMary under Article 45(2) Tfeu provides that workers of the member states shall be free from discrimination based on nationality as regards employment, remuneration and other conditions of work and employment Mary can apply for student finance because under Directive 2004/38. Provides that all union citizens residing in another member state on the basis of the directive shall enjoy equal treatment with nationals of the host state within the scope of the treaty (Article24) and Mary as a migrant worker is entitled to these rights their scope as defined by Regulations (492/2011)MARYS RIGHTS ACCESSING STUDENT FINANCEMary may positively be able to challenge the refusal to be granted a student loan through her right provided for by article 45 TFEU (2) which sets out that such freedoms of movement shall entail the abolition of any discrimination based on nationality between workers of the member states as regards to employment, remuneration and other conditions of work and employment.Mary benefits from aright as the advocate general states That nationals moving between for purposes of employment in a capacity of a worker has entitlement to be awarded educational grants for maintance subject to the same criteria and on the same terms as national workers. Firstly in respect of general education as asocial advantage under Article 7(2) of regulation no 1612/68 and also In respect of training in vocational schools under Article 7(3) of the regulation.Mary has an advantage with the ECJ’s reasoning that(a) An education grant to enable a person to pursue university studies leading to a professional qualification is asocial advantage within Article 7(2) of regulation 1612/68.(b) A person who has been a worker who undertakes university studies leading to a professional qualification is to be regarded as retaining worker status and is entitled to equal treatment with nationals in access to such education grants provided that there is a link between the previous occupational activity and the studies in question.ADVISING DANIELDaniel’s Rights, work and Formalities to immigrationDaniels is a spouse (husband) to Mary a union member with aright to join his spouse in Spain. Daniels as a worker and spouse of a union citizen has got limitations on residence and rights based on grounds among others of public policy, and public security, of the Spanish state stated in Article 45(3) TFEU, and Directive 2004/38.Daniels Minor Public Order OffenceDaniels offence may not compromise personal conduct as it’s regarded as minor therefore not likely to justify his expulsion from Spain. Because its provided for in Article 27 of Directive 2004/38 that measures taken based on public policy be proportionate and exclusive on the personal conduct of persons in question, yet represent a genuine, present and a sufficient major threat that would affect any one fundamental interests of society.Daniel further still before the Spanish court orders his deportation it is provided for Under article 28 of the directive 2004/38 that the Spanish court must take account and consider among other things how long Daniel has lived in Spain, his age state of health, Family and economic situation social and cultural integration into Spain and links with any member state.Daniel is also entitled to procedural rights and safe guards accorded by Directive 200/38.And also entitled a right to be notified the basis and grounds of deportation. He also has aright of appeal and aright to remain in Spain pending the completion of the appeal to the minor public offence. However if Daniel hasn’t lived long enough in Spain he may loose his entitlement to protection as provided for by Article 27 of the Directive 2004/38 against expulsion.Daniel in this process after a reasonable period in any event after three years he may submit an application to have the order lifted on the grounds that there has been a material change in the circumstances, which justified the exclusion decision (articles 30-32, directive 2004/38). Question One European union laws under the doctrine of supremacy member states have limited their sovereign rights, albeit within limited fields (Van Gend). Constituting anew-legal order. That forms abasis of the direct, indirect effect and state liability created by the court of justice. The ee treaty has created its own legal system which become an integral part of the legal systems of member states (Costa V Enel) thus EU sovereignty is the supremacy of EU law which takes precedence over national law (costa v enel),(factor tame II).European union law is categorized in two ways a primary sources basing on treaties (Lisbon) and charter of fundamental rights of the European union, yet the secondary source and as per (article 288 TFEU) are regulations which are directly applicable measures that take effect in the legal system without further action.Directives are addressed to member states, binding as to the result to be achieved, which should be implemented by each member state within a specified time limit and discretion is left to member states over methods of implementation however each member state is given the opportunity to use its own legislation to implement the directive.(Decisions(binding only for the addressee(recommendations and opinion’s (soft law).The Doctrine of Direct effect came into existence in the Van gend loos (1963) where the European union confers upon individual’s rights that national courts must protect. The rational of direct effect is the new legal order of international law, community of people, and teleogical interpretation of the treaty. The court of justice limited the scope of its effect to provisions that are sufficiently precise and unconditional.Direct effect might be vertical or horizontal; vertical established in the van gend where a treaty obligation falls on an organ of state, it is known as vertical as it reflects the relationship between individual and state.The European court of justice broadened direct effects of treaty articles also in horizontal situations by this horizontal direct effect is where the obligation falls on individuals, reflecting the relationship between individuals however the treaty of direct effect treaty articles may be applicable to horizontal situations (Defrenne v Sabena (2) if they are clear precise and unconditional.In reference to the case study this does not refer to the primary source but it does to the secondary sources of law.The European court of justice directives differ from European union acts because member states must implement the directives and thy are binding upon each member state as to the result to be achieved. However the method and or form to be used by the members state to reach that result envisaged in a directive has been left to the national authorities to choose Directives have to be implemented (transposed) by member states and not directly applicable in the same way as regulations, however where the criteria for direct effect are satisfied Ie precise and unconditional the COURT Of Justice has held that directives may be Directly effective (case 41/74 van Duyn.home office (1945) CMLRScenario to see if the non-implemented directive is sufficiently clear and precise to have direct effectThere for Jake has an action against the employer (case c-188/89 FOSTER V BRITISH GASThe emanation of state doctrine states a body made responsible by the state for providing a public service under state control and which possesses special powers exceeding those normally applicable to relations between individuals.Advising Jake here that However as the authority of DOUGHTY V ROLLS ROYCE (1992) CMLR 1045)CONSIDERING LUKE.CONSIDERING HORIZONTAL DIRECT EFFECT OF DIRECTIVES.Directives can not have a horizontal direct effect as confirmed by the court as the authority (faccini Dori )there fore a directive which fulfills the criteria for direct effect cannot be enforced against an individual.Directives are addressed to member states so individuals cannot be held liable for the failure of member states to implement their obligations.(152/84 Marshall v Southampton and south west Hampshire)Case c-91/92 Paolo faccini Dori v recreb srl (1994) ecr 1-3325.here a strict reinforcement approach to direct effect of directives in Marshall.Considering our scenario Luke has the following options The indirect effect also called the interpretative obligation or the principle of harmonious interpretation which means courts must interpret their national law, wherever possible in the conformity with European union law (case 14/83 Von colson v Nordrhein-Westfalen (1986) 2 CMLR 430.CHECK NATIONAL WETHER THERE IS NATIONAL LAW IN THE SAME AREA OR NOTIT ALSO APPLIES, UNLIKE THE DIRECT EFFECT OF DIRECTIVES IN HORIZONTAL SITUATION CASE 79/83 Harz v Deutshe TRADAXITS also useful where the provisions of the European union measure are not sufficiently clear, precise and unconditional for direct effect to apply also consider if indirect effect is limitedIt may be impossible to apply case c-334/92 Wagner Miret v Fondo de Garantia salaria(1993)ECR 1-6911 a case where it was impossible to interpret national law to comply with a directiveWhat if the time limit for the implementation of the directive has not expired?Case c-212/04 Konstantinos Adeneler et al v Ellinikos Organisation galaktos(206)ecr 1-6057 the general obligation owed by national courts to interprete domestic law in conformity with the directive exists only once the period for its transposition has expiredAdvise to Luke Considering state liabilityState liability provides an alternative means of redress rather than being a means to enforce Eu rights it provides that where a member state has failed to implement EU LAW and a citizen suffers loss or damage as a consequence, then the member state will be liable for the damage caused.Consider conditions for state liability (in Damages) Away in which to solve the limitations of both direct and indirect effect. Case c6 and 9/90 Francovich and Bonifaci v Italy(1991) ECR1-53571993)2 CMLR 66 damages for loss incurred as a result of a states failure to implement a directive Conditions (the directive entails the grant of rights to individuals, its possible to identify the content of those rights, and a casual link btn the states failure and the loss. Firstly is the rule of law breached must be intended to confer rights on individuals ALSO CASEc-46/93 and c-48/93R v secretary of state for transport,ex parte factortame and brasserie du pecheur v federl republic of Germany(1996) 1CMLR 889 .damages for other kinds of breach and set out conditions are sufficiently serious breach factors considered(clarity ,excusable application of factortame iii,legislation infringing eu law,incorrect implementation of directives (BT),ADMINISTRATIVE BREACHES(HEDLEY LOMAS),INCORRECT implementation of eu law by a national court last instance (kobler)Thirdly there must be a direct causal link between the breach and the damage suffered by the injured party.Secondly the breach must be sufficiently serious sufficiently serious is defined, as when a member state manifestly and gravely disregarded the limits of its discretion the failure to implement a directive is always a serious breachSo national courts have to look at the following Whether the EU rule breached is clear and precise. Whether the member state or the EU have any discretion,was the breach or damage intentional,was any mistake excusable?,if the EU institutions may have contributed to breach ,whether any national measures contrary to EU LAW have been retained Advise LukeConclusion Direct effect,indirect effect and state liability all play a crucially important role in the protection of individuals European union law rights in national courts BIBLIOGRAPHYCasesGrzelczykBaumbast Lawrie BlumLevinKempfCommission v BelguimJOURNAL ARTICLESLonbay,, The Free movement of persons (2004)(53(2)ICLQ 479-487-Examinatio o relevant case law with critical commentary.Barrett, Family Matters European Community Law and Third-country family members’ (2003) 40 cmlrev587BOOKS Elspen Berry, Mathew J, Homewood and Barbara Bogusz, European union Law (3rd edn, oxford, 2017)Starey t and Turner c, Unlocking European Union LawBernard, C, The Substantive Law of the EU,The Four freedoms,(5th edn oxford university press ,2016)Berry, E, Homewood M, J, and Bogusz, B, Eu Law Complete,(2nd edn, oxford university press ,2015)ENEWS PAPERS

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