Ue legislation

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  • Publicado : 14 de septiembre de 2012
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The case …………………………………………………………………………..……. 3



UE Legislation …………………………………………………………………...…….. 4



Case solution ………………………………………………………………………...…. 9



Referencing ……………………………………………………………………...……. 13


THE CASE

Fred, a German national, marries Maria, an Italian national. They live in Spain for a few months and have a child there called Freya. Fred had lived inGermany all of his life otherwise. The family subsequently moves to settle in Ireland. Fred works part-time as a plasterer and studies modern art, but seeks more stable employment. He used to run a construction company prior to the collapse of the property market. He is refused job seekers allowance on the basis that he had not resided in Ireland for a sufficient period of time. Fred has healthinsurance in Germany, where the family goes for medical treatment.

Fred and Maria had a second child in Ireland recently, Philip, who is now 3 months old. Philip has never left Ireland since birth.

Maria has several convictions for minor road traffic offences in Ireland and Fred has several convictions for drug possession. The Irish authorities seek to deport Fred, Maria and their children.Advise Fred and Maria as to their rights, and the rights of their children, Freya and Philip, under EU law. Support your answer by reference to relevant case law and EU legislation.




EU LEGISLATION

Before beginning with the case study we will analyse some aspects of the European Union law and its relation to the National law of the Member States, which is essential for giving an advice tothis family:

1. The supremacy of EU Law:

2. Direct effect of EU Law

3. European Citizenship

4. Rights of the EU citizens

5. No discrimination of workers




1. The supremacy of EU law

The EU legislation application is mandatory, and to make it totally effective, the European Court of Justice settled down this principle in the Case Costa v. ENEL. It consistsin the preference of the Community law over the National laws, and National law of the Member States has to yield to it.

The Case Simmenthal gave a new developed of this principle: it can’t be applicable a national law incompatible with the Community law, even if it is posterior or anterior to it, and if it is adopted, the national Judges are forced to apply the Community law instead of thenational.





2. Direct effect of EU law

The direct effect of EU legislation consists in the right of individuals to rely on it before their national courts and challenge inconsistent national action. The EU legislation has, moreover, public and private enforcement.

The definition of this concept is derived from the case Van Gend en Loos: “The capacity of a provision of EC law to beinvoked before a national court”.

There are only two conditions to invoke it: the Treaty article has to be clear and unconditional with no reservation on the part of the Member State.



3. European Citizenship

This concept was introduced by TEU in an effort to a political union. The European citizenship is contained in the Article 17, which expresses:

“1. Citizenship of the Unionis hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.”

In this article we have to note some points:

- EU citizenship isexpressly made “complementary” to national citizenship

- Is contingent upon possession of the nationality of Member state.

- The duties imposed are rhetorical, there are no obligations imposed on individuals.

- This article reaffirms the rights given by the Treaty to the citizens of the Member States.

4. Rights of the EU citizens

There are four fundamental rights settled by the...
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