Dictionary of Statuses within EU Law: The Individual Statuses as Pillar of European Union Integration

630 Pages·2019·8.97 MB·English

by  Antonio Bartolini, Roberto Cippitani, Valentina Colcelli

Antonio Bartolini · Roberto Cippitani 
Valentina Colcelli E ditors
Dictionary of
Statuses within
EU Law
The Individual Statuses as Pillar of
European Union Integration
Dictionary of Statuses within EU Law
Antonio Bartolini • Roberto Cippitani •
Valentina Colcelli
Editors
Dictionary of Statuses
within EU Law
The Individual Statuses as Pillar of European
Union Integration
Editors
Antonio Bartolini Roberto Cippitani
Department of Law Department of Medicine
University of Perugia University of Perugia
Perugia, Italy Perugia, Italy
Valentina Colcelli
National Research Council
IFAC Institute, Sesto Fiorentino
Firenze, Italy
The present work has been carried out within the activities of the Eurostatus Project of the
Department of Law of the Università degli Studi di Perugia, with the support of the Programme
Erasmus+-Jean Monnet of the European Union (Grant Decision no. n.2016-3354_001-001).
ISBN 978-3-030-00553-5 ISBN 978-3-030-00554-2 (eBook)
https://doi.org/10.1007/978-3-030-00554-2
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Foreword1
Inquiry into individual statuses within the European integration process is, without
doubt, a multi-layered and interdisciplinary topic. It can be approached from a vari-
ety of disciplines and perspectives, including, but certainly not limited to, law. Still,
individual statuses play an essential—even primordial—role in the European inte-
gration process and, in particular, in European Union (‘EU’) law, to which this
volume makes a valuable contribution in mapping out the contours of specific indi-
vidual statuses in numerous fields.
Indeed, statuses pervade EU law and are continuously shaped by it. This is illus-
trated by the ways in which the Court of Justice of the European Union (‘the Court’)2
uses the concept of individual statuses in its case law. Thus, I would like to provide
some reflections on individual statuses in the European context, considering the
impact of the EU and the Court’s jurisprudence in this regard.
As one useful approach, the concept of ‘status’ may generally be viewed as a tree
with different branches. The root of the tree may be called the ‘constitutional sta-
tus’, which is composed of four key elements: (1) the concept of citizenship, (2) the
fundamental principles that provide common grounding for this status, (3) the rights
and duties to realise this status and (4) the guarantees that afford judicial protection
to enforce those rights and duties. Then, there are the many branches of the tree that
denote the various types of statuses found in the different spheres, such as those in
the workplace and private life. It should be noted, however, that this is not a hierar-
chical construction.
With regard to the impact of the EU on statuses, there is another tree conception.
Importantly, however, it is not an absolute replica of the first tree, since the EU is not
a State. Thus, the EU is not characterised as having a constitution in the national
sense, though the EU has a ‘constitutional charter’, as recognised initially by the
1 All opinions expressed herein are strictly personal.
2 Under the first paragraph of Article 19(1) of the Treaty on European Union (‘TEU’), the institu-
tion of the Court of Justice of the European Union encompasses the Court of Justice, the General
Court and specialised courts. This contribution refers to the Court of Justice as the Court in the
sense of the highest court of this institution.
v
vi Foreword
Court in its landmark judgment in Les Verts v. European Parliament (1986).3 The
EU, therefore, is not a replica of the existing national structures. Nevertheless, the
two trees coincide—they are connected (or entangled) to some degree. This is
because, for instance, when it comes to Union citizenship, it is ‘additional to and
[does] not replace national citizenship’, as established in the Treaties.4 As for the
branches of this tree, they represent the various statuses recognised in EU law. Here,
too, there is no hierarchy: the rights and duties afforded to statuses are functionally
linked, one not being more important than another. In effect, the rights and duties
associated with a particular status may be considered two sides of the same coin.5
The Court’s jurisprudence has an important role in this setting, in terms of the
ways in which individual statuses are recognised, shaped and developed by the
Court in the case law. By and large, the Court’s case law involving individual sta-
tuses cuts across many spheres of EU law, and it can be classified (and sub-c lassified)
in many ways. In part, the Court’s case law may ‘follow in the footsteps’ of the
Union legislator, for example, in the context of Union measures that implicate mat-
ters of ‘civil status’, such as those involving succession.6 Moreover, certain statuses
may intersect with significant events affecting the EU, such as the global economic
crisis or the Syrian ‘refugee’ crisis, which, in turn, prompt litigation before the EU
courts and bring those statuses to centre stage. Thus, without claiming to be exhaus-
tive, I would like to draw your attention to a few salient examples which help to
illustrate some interesting features of the Court’s case law on statuses.
One of the first references to ‘status’ in the case law concerned the Court’s
engagement with the status of ‘worker’ in its 1964 judgment in Unger.7 This was in
connection with the interpretation of a measure on social security for migrant work-
ers, whereby the Court proclaimed it to be an autonomous EU concept not depen-
dent on national law. Recently, in its judgment in Matzak,8 the Court held that both
professional and volunteer firefighters qualify as a ‘worker’ within the autonomous
meaning given to that term under the so-called Working Time Directive,9 irrespec-
tive of classifications under national law.
3 Judgment of 23 April 1986, Les Verts v European Parliament (294/83, EU:C:1986:166, paragraph
23).
4 Article 20(1) of the TFEU.
5 In regard to the status of Union citizenship, see also note 25.
6 Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on
jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforce-
ment of authentic instruments in matters of succession and on the creation of a European Certificate
of Succession (OJ 2012 L 201, p. 107). See, in that regard, judgments of 12 October 2017, Kubicka
(C-218/16, EU:C:2017:755), and of 1 March 2018, Mahnkopf (C-558/16, EU:C:2018:138). For
other measures, see, e.g., the Commission’s website, https://ec.europa.eu/info/policies/justice-and-
fundamental-rights/civil-justice_en.
7 Judgment of 19 March 1964, Unger (75/63, EU:C:1964:19, paragraph 2).
8 Judgment of 18 February 2018, Matzak (C-518/15, EU:C:2018:XX, points 28–31).
9 Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 con-
cerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).
Foreword vii
Likewise, the status of ‘consumer’ commands a growing body of case law that
traverses various spheres of EU law. A salient example is the Court’s judgment in
Schrems.10 The Court held, inter alia, that a private Facebook account user did not
lose his or her ‘consumer’ status within the context of EU rules on private interna-
tional law (the ‘Brussels I Regulation’11) on account of his or her activities of pub-
lishing books, lecturing, operating websites, fundraising and being assigned the
claims of other consumers for the purposes of their enforcement.12
In his Opinion, Advocate General Bobek stressed the following in light of the
provision at issue:
[T]he determination of consumer status must be made by reference to the position of that
person in a particular contract, having regard to the nature and aim of that contract. Thus,
… as confirmed by the Court, the concept of ‘consumer’ is ‘objective in nature and is dis-
tinct from the concrete knowledge the person in question may have, or from the information
that person actually has’. This means that the same person can, even on the same day, be
acting as a professional and a consumer, depending on the nature and aim of the contract
that has been concluded. For example, a professional lawyer specialising in consumer law
may still be a consumer, despite his professional activity and knowledge, whenever he
enters into a contractual relationship for private purposes.13
In fact, as cited in that Opinion, the Court held as much in its judgment in
Costea,14 within the context of the interpretation of the so-called Unfair Contract
Terms Directive,15 which lays down a set of common rules to protect consumers
against unfair clauses in standard form contracts drawn up by traders. The Court
ruled that a natural person who practises as a lawyer and concludes a credit agree-
ment with a bank has the status of ‘consumer’ under that directive where that agree-
ment is not linked to the lawyer’s profession. The fact that the debt arising out of
that credit agreement is secured by a mortgage taken out by that person in his or her
capacity as representative of his or her law firm and involving goods intended for
the exercise of that person’s profession, such as a building belonging to that firm,
was not relevant.16
10 Judgment of 25 January 2018, Schrems (C-498/16, EU:C:2018:37).
11 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition
and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1). It has been
repealed by Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12
December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters (OJ 2012 L 351, p. 1).
12 Judgment of 25 January 2018, Schrems (C-498/16, EU:C:2018:37, paragraphs 25–41).
13 Opinion of Advocate General Bobek in Schrems (C-498/16, EU:C:2017/863, points 32–33)
(citations omitted).
14 Judgment of 3 September 2015, Costea (C-110/14, EU:C:2015:538).
15 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L
95, p. 29).
16 Judgment of 3 September 2015, Costea (C-110/14, EU:C:2015:538, paragraph 30).
viii Foreword
Of note, the Unfair Contract Terms Directive has been the focal point of a grow-
ing body of the Court’s case law that involves the ex officio application of EU law,
obliging the national courts to assess the unfairness of contract terms of their own
motion, so as to guarantee the system of consumer protection intended by that direc-
tive.17 As such, the status of ‘consumer’ under this directive is crucial since it allows
the person concerned to be afforded such protections under EU law.
Surely, one of the preeminent spheres involving individual statuses concerns the
Court’s case law on Union citizenship—the ‘vast jurisprudential endeavour by
means of which the Court has made citizenship of the Union an effective reality’.18
The Court has consistently held, starting in Grzelczyk,19 that:
Union citizenship is destined to the fundamental status of nationals of the Member States,
enabling those who find themselves in the same situation to enjoy the same treatment in law
irrespective of their nationality, subject to such exceptions as are expressly provided for.20
The Court’s famous declaration in that case built on the previous Opinion of
Advocate General La Pergola in Martínez Sala,21 which heralded EU citizenship as
‘the fundamental legal status’ guaranteed to the citizens of the Member States by
the Union legal order.22 It has been further stated in many Opinions of the Advocates
General thereafter, such as Advocate General Szpunar’s Opinion in Chavez-Vilchez
and Others,23 which emphasised:
As the fundamental status of Union citizens, Union citizenship embodies, particularly for
new generations, the opportunity to build a Europe in which all citizens may, as human
beings, move, reside, work, study, provide a service or settle in another Member State,
prosper, marry or choose to live in an equivalent form of partnership, found a family, if they
so wish, and live in peace and security.24
This finds expression in the Court’s recent rulings on Union citizenship, in the
light of the relevant provisions of primary and secondary EU law.25 For example, in
17 See recently, e.g., judgment of 17 May 2018, Karel de Grote (C-147/16, EU:C:2018:320, para-
graphs 26–37 and citations therein). See also ibid., paragraphs 45–60: the Court held that an edu-
cational establishment had the status of ‘seller or supplier’ within the meaning of the Unfair
Contract Terms Directive and in the circumstances of those proceedings.
18 Opinion of Advocate General Szpunar in Rendón Marín (C-165/14, EU:C:2016:75, point 110).
19 Judgment of 20 September 2001, Grzelczyk (C-184/99, EU:C:2001:458, paragraph 31).
20 Emphasis added.
21 Opinion of Advocate General La Pergola in Martínez Sala (C-85/96, EU:C:1997:335, points 18,
20–21).
22 Ibid., point 18.
23 Opinion of Advocate General Szpunar in Chavez-Vilchez and Others (C-133/15, EU:C:2016:659,
points 80–84 and citations therein). See also, e.g., Opinion of Advocate General Poiares Maduro
in Huber (C-524/06, EU:C:2008:194, points 18–19).
24 Opinion of Advocate General Szpunar in Chavez-Vilchez and Others (C-133/15, EU:C:2016:659,
point 80).
25 For a listing of the rights attached to the status of Union citizen under primary Union law, see, in
particular, Articles 20–25 of the TFEU and Title V of the Charter of Fundamental Rights of the
European Union (‘the Charter’), titled ‘Citizens’ Rights’ (Articles 39–45). For a recent application
Foreword ix
K.A. and Others,26 the Court reiterated that although the Treaty provisions on Union
citizenship do not confer any autonomous rights on third-country nationals, there
are ‘very specific situations’ developed in the case law, whereby a right of residence
is granted to a third-country national who is a family member of a Union citizen
who has not made use of his or her free movement rights under certain circum-
stances, so as to ensure that the effectiveness of Union citizenship is not undermined
if, as a consequence of refusal of such a right, that citizen would be obliged in prac-
tice to leave the territory of the EU as a whole, thus depriving him of the ‘genuine
enjoyment of the substance of the rights conferred by that status’.27
On that basis, the Court held, inter alia, that Article 20 of the Treaty on the
Functioning of the European Union (‘TFEU’) precluded a Member State’s practice
of not examining applications for a residence permit by third-country nationals for
the purposes of family reunification with a Union citizen who has never exercised
his or her free movement rights, solely on the grounds that the third-country national
is the subject of a ban on entering the territory of that Member State without any
examination of whether there exists a relationship of dependency of such a nature
that the Union citizen would in practice be compelled to leave the EU territory as a
whole and, hence, be deprived of the genuine enjoyment of the substance of the
rights conferred by that status.28
Moreover, in Coman and Others,29 the Court recalled the ‘fundamental status’ of
Union citizenship and confirmed the rights that nationals of Member States enjoy
under Article 21(1) of the TFEU include the right to lead a normal family life,
together with their family members, both in the host Member State and in the
Member State of which they are nationals upon return.30 The Court also pointed out
that even though ‘a person’s status, which is relevant to the rules on marriage’, is a
matter falling within the competence of the Member States, it is well established
that the Member States must comply with EU law, including the Treaty provisions
on the freedom conferred on all citizens to move and reside in the territory of the
Member States.31 Consequently, the Court held that the refusal by the authorities of
a Member State to recognise, for the sole purpose of granting a derived right of resi-
dence to a third-country national, the marriage of that national to a Union citizen of
the same sex and lawfully concluded during their genuine residence in the host
involving the political dimension of the status of Union citizen, see judgment of 6 October 2015,
Delvigne (C-650/13, EU:C:2015:648). Further, it should not be overlooked that the Treaties refer
to both rights and duties in respect of Union citizenship. The first sentence of Article 20(2) of the
TFEU states: ‘Citizens of the Union shall enjoy the rights and be subject to the duties provided for
in the Treaties.’
26 Judgment of 8 May 2018, K.A. and Others (C-82/16, EU:C:2018:308).
27 Ibid., paragraph 51.
28 Ibid., paragraphs 52–62.
29 Judgment of 5 June 2018, Coman and Others (C-673/16, EU:C:2018:385).
30 Ibid., paragraphs 30–32.
31 Ibid., paragraphs 37–38.
x Foreword
Member State32 would interfere with the rights conferred on that citizen to move and
reside freely because it would have the effect of denying that citizen of the possibil-
ity of returning to the Member State of which he or she is a national together with
his or her spouse.33 Thus, Article 21(1) of the TFEU precluded the competent
authorities of the Member State of which the Union citizen is a national from refus-
ing to grant a third-country national of the same sex—to whom that citizen is law-
fully married—a right of residence on the grounds that the law of that Member State
does not recognise same-sex marriage.34
Along similar lines, in Freitag,35 the Court underlined—in the light of settled
case law—that although the rules governing the way in which a person’s surname is
entered on certificates of civil status are matters falling within the competence of the
Member States, those competences must be exercised in compliance with EU law,
including the Treaty provisions on the freedom of every citizen to move and reside
in the territory of the Member States.36 Therefore, it follows from the case law that
the refusal by the authorities of a Member State to recognise the name of a national
of that Member State who exercised their right to free movement in the territory of
another Member State, as determined in that second Member State, is likely to hin-
der the exercise of the right to move and reside freely under Article 21(1) of the
TFEU on account of the confusion and inconvenience arising from the divergence
between the two names used for the same person.37 In the circumstances of that
case, the Court made clear that the discretion enjoyed by the competent national
authorities—in respect of an existing procedure allowing for changes of name—
must be exercised so as to give full effect to Article 21 of the TFEU.38
These foregoing cases help to illustrate some interesting features of the Court’s
case law on statuses. First, statuses are context dependent. Statuses under EU law
may differ from their counterparts under national law. Moreover, depending on the
32 In accordance with the conditions laid down in Article 7(1) of Directive 2004/38/EC of the
European Parliament and of the Council of 29 April 2004 on the right of citizens in the Union and
their family members to move and reside freely within the territory of the Member States amend-
ing Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/
EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L
158, p. 77; corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34). In regard to the Court’s
interpretation of the term ‘spouse’ within the meaning of that directive, see ibid., paragraphs
33–36, and Opinion of Advocate General Wathelet in Coman and Others (C-673/16, EU:C:2018:2,
points 33–80).
33 Judgment of 5 June 2018, Coman and Others (C-673/16, EU:C:2018:385, paragraphs 39–40).
34 Ibid., paragraph 51. The Court hastened to add that an obligation to recognise same-sex mar-
riage, for the sole purpose of granting a derived right of residence to a third-country national in the
circumstances of the present proceedings, did not undermine the national identity or pose a threat
to the public policy of the Member State concerned, and that the right to respect for private and
family life guaranteed by the Charter is a fundamental right. See ibid., paragraphs 42–50.
35 Judgment of 8 June 2017, Freitag (C-541/15, EU:C:2017:432).
36 Ibid., paragraph 33 and citations therein.
37 Ibid., paragraphs 35–39.
38 See ibid., paragraphs 40–46.