The European Union

The EU comprises 28 Member States. EU law is composed of treaties and secondary EU law. The treaties, namely the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), have been approved by all EU Mem- ber States and are also referred to as ‘primary EU law’. The regulations, directives and decisions of the EU have been adopted by the EU institutions that have been given such authority under the treaties; they are often referred to as ‘secondary EU law’.

The EU has evolved from three international organisations established in the 1950s that dealt with energy, security and free trade; collectively, they were known as the European Communities. The core purpose of the European Communities was the stimulation of economic development through the free movement of goods, capital, people and services. The free movement of persons is thus a core element of the EU. The first regulation on the free movement of workers in 1968[4] recognised that workers must not only be free to move, but also able to take their family members – of whatever nationality – with them. The EU has developed an accompanying body of complex legislation on the movement of social security entitlements, on social assistance rights and on healthcare as well as provisions relating to the mutual recognition of qualifications. Much of this law which was developed for EU nationals primarily also applies to various categories of non-EU nationals.

Nationals of non-EU Member States – namely of Iceland, Liechtenstein and Norway – that are part of the European Economic Area (EEA), which entered into force in 1994, have the same free movement rights as EU nationals.[5] Similarly, based on a special agreement concluded with the EU on 21 June 1999,[6] Swiss nationals enjoy a right to move and settle in the EU. The EU and EEA states, together with Switzerland, are all members of the European Free Trade Association (EFTA), which is an intergovern- mental organisation set up for the promotion of free trade and economic integra- tion. EFTA has its own institutions, including a court. The EFTA Court is competent to interpret the EEA Agreement with regard to Iceland, Liechtenstein and Norway. It is modelled on the CJEU and tends to follow its case law.

Turkish citizens may also have a privileged position under EU law. They do not have the right to freedom of movement into or within the EU. However, in 1963 the European Economic Community (EEC)-Turkey Association Agreement (the Ankara Agreement) was concluded with Turkey and an additional protocol was adopted in 1970 (‘Additional Protocol to the Ankara Agreement’).[7] As a result, those Turkish citizens who are permitted to enter the EU to work or establish themselves enjoy certain privileges, have the right to remain and are protected from expulsion. They also benefit from a standstill clause in Article 41 of the Additional Protocol to the Ankara Agreement, which prevents them from being subjected to more restrictions than those which were in place at the time at which the clause came into effect for the host Member State. The EU has also concluded agreements with several other countries (see Chapter 8, Section 8.2.6), but none of those are as wide-ranging as the Ankara Agreement.

The Treaty of Maastricht entered into force in 1993 and created citizenship of the Union, although predicated on possessing the citizenship of one of the EU Member States. This concept has been widely used to buttress freedom of movement for citizens and their family members of any nationality.

In 1985, the Schengen Agreement was signed, which led to the abolition of internal border controls of participating EU Member States. By 1995, a complex system for applying external controls was put in place, regulating access to the Schengen area. In 1997, the Schengen system – regulated thus far at an international level – became part of the EU legal order. It continues to evolve and develop in the context of the Schengen Borders Code, which consolidates EU rules relating to border manage- ment. In 2004, the EU agency Frontex was created to assist EU Member States in the management of the external borders of the Union.

Since the Treaty of Rome in 1957, successive treaty amendments have enlarged the competence of the European Communities (EC), now the EU, in issues affecting migration; the Treaty of Amsterdam gave the EU new competence across the field of borders, immigration and asylum, including visas and returns. This process culmi- nated with the Treaty of Lisbon which afforded the EU new competence in the field of integration of third-country nationals.

Against this background, there has been an ongoing evolution of the EU asylum acquis, a body of intergovernmental agreements, regulations and directives that governs almost all asylum-related matters in the EU. Not all EU Member States, however, are bound by all elements of the asylum acquis (see Annex 1).

Over the past decade, the EU has adopted legislation concerning immigration to the EU for certain categories of persons as well as rules on third-country nationals resid- ing lawfully within the Union (see Annex 1).

Under the EU treaties, the EU established its own court, which was known as the European Court of Justice (ECJ) until the entry into force of the Treaty of Lisbon in December 2009; since then, it has been renamed the Court of Justice of the Euro- pean Union (CJEU).[8] The CJEU is entrusted with a number of competences. On the one hand, the Court has the right to decide over the validity of EU acts and over failures to act by the EU institutions under EU and relevant international law, as well as to decide over infringements of EU law by EU Member States. On the other hand, the CJEU retains an exclusive competence in ensuring the correct and uniform applica- tion and interpretation of EU law in all EU Member States. Pursuant to Article 263 (4) of the TFEU, access to the CJEU by individuals is relatively narrow.[9]

However, individual complaints having as an object the interpretation or the valid- ity of EU law can always be brought before national courts. The judicial authorities of EU Member States, based on the duty of sincere cooperation and the principles that rule effectiveness of EU law at national level, are entrusted with the responsibil- ity to ensure that EU law is correctly applied and enforced in the national legal sys- tem. In addition, following the ECJ ruling in the Francovich case,[10] EU Member States are required, under certain conditions, to provide redress, including compensation in appropriate cases for those who have suffered as a consequence of a Member State’s failure to comply with EU law. In case of doubt on the interpretation or the validity of an EU provision, national courts can – and must in certain cases[11] – seek guidance from the CJEU using the preliminary reference procedure under Article 267 of the TFEU. In the area of freedom, security and justice, the urgent preliminary rul- ing procedure (PPU) was created to ensure a quick ruling in cases pending before any national court or tribunal with regard to a person in custody.[12]

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4. Council Regulation (EEC) No. 1612/68, 15 October 1968.

5. Agreement on the European Economic Area, 2 May 1992, Part III, Free Movement of Persons, Services and Capital, OJ 1994 L1.

6. Agreement between the European Community and its Member States, on the one part, and the Swiss Confederation, on the other, on the free movement of persons, signed in Luxembourg on 21 June 1999, entered into force on 1 June 2002, OJ 2002 L 114/6.

7. EEC-Turkey Association Agreement (1963), OJ No. 217 of 29 December 1964 (Ankara Agreement), which was supplemented by an Additional Protocol signed in November 1970, OJ 1972 L 293.

8. This handbook refers to the ECJ for decisions and judgments issued prior to December 2009 and to the CJEU for cases ruled on since December 2009.

9. This, for example, was the case in ECJ, Joined Cases C-402/05 P and C-415/05 P [2008] I-6351, Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, 3 September 2008.

10. ECJ, Joined Cases C-6/90 and C-9/90 [1991] ECR I-05357, Francovich and Bonifaci and Others v. Italian Republic, 19 November 1991; ECJ, Case C-479/93 [1995] ECR I-03843, Francovich v. Italian Republic, 9 November 1995.

11. According to Art. 267 (3), such obligation always arises for courts against whose decisions there is no judicial remedy under national law and concern also other courts whenever a preliminary reference concerns the validity of an EU provision and there are grounds to consider that the challenge is founded (see, for example, ECJ, Foto-Frost v. Hauptzollamt Lübeck-Ost, C-314/85 [1987] ECR 4199, 22 October 1987).

12. See Statute of the Court of Justice, Protocol No. 3, Art. 23 a and Rules of Procedure of the Court of Justice, Art. 107-114. For a better overview of cases that might be subjected to a PPU, see CJEU, Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (2012/C 338/01), 6 November 2012, para. 40: “for example, consider submitting a request for the urgent preliminary ruling procedure to be applied in the case, referred to in the fourth paragraph of Article 267 TFEU, of a person in custody or deprived of his liberty, where the answer to the question raised is decisive as to the assessment of that person’s legal situation, or in proceedings concerning parental authority or custody of children, where the identity of the court having jurisdiction under European Union law depends on the answer to the question referred for a preliminary ruling”.

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