Citizenship of the Union and free movement of persons

Citizenship of the Union and Free Movement of Persons

IMMIGRATION AND ASYLUM LAW AND POLICY IN EUROPE

Volume 14

Editors

Elspeth GuildKingsley Napley Solicitors, London,

Centre for Migration Law, Radboud University Nijmegen

Jan NiessenMigration Policy Group, Brussels

The series is a venue for books on European immigration and asylum law and policies where academics, policy makers, law practitioners and others look to find detailed analysis of this dynamic field. Works in the series will start from a European perspec-tive. The increased co-operation within the European Union and the Council of Europe on matters related to immigration and asylum requires the publication of theoretical and empirical research. The series will contribute to well-informed policy debates by analysing and interpreting the evolving European legislation and its effects on national law and policies. The series brings together the various stakeholders in these policy debates: the legal profession, researchers, employers, trade unions, human rights and other civil society organisations.

The titles published in this series are listed at the end of this volume.

LEIDEN • BOSTON2008

Citizenship of the Union and Free Movement of Persons

by

Massimo Condinanzi, Allessandra Lang, and Bruno Nascimbene

ISBN: 978 90 04 16300 3

Copyright 2008 by Koninklijke Brill NV, Leiden, The Netherlands.Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishers, IDC Publishers, Marti-nus Nijhoff Publishers and VSP.

http://www.brill.nl

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilm-ing, recording or otherwise, without written permission from the Publisher.

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Library of Congress Cataloging-in-Publication Data

Condinanzi, Massimo. Citizenship of the Union and free movement of persons / by Massimo Condinanzi, Allessandra Lang, and Bruno Nascimbene. p. cm. -- (Immigration and asylum law and policy in Europe ; v. 14) Includes index. ISBN 978-90-04-16300-3 (hardback : alk. paper) 1. Freedom of movement--European Economic Community countries. 2. Labor laws and legislation--European Economic Community countries. I. Lang, Alessandra. II. Nascimbene, Bruno. III. Title. KJE5170.C58 2008 342.2408’3--dc22 2008009220

Table of Contents

Introduction ix

Chapter I Citizenship of the Union 1I.1 Introduction 1I.2 The systematic location of the provisions on citizenship 2I.3 The concept of citizenship of the Union 4I.4 Community limits to acquiring and losing citizenship of

the Union 10I.5 Substance of citizenship of the Union. Rights 12I.6 Substance of citizenship of the Union. Duties 181.7 The right of movement and residence. The traditional

concept 19I.8 The right of movement and residence appertaining to

citizenship of the Union 24I.9 Limits and conditions 28I.10 Measures implementing the right of movement and

residence 33I.11 The citizen of the Union in the area of freedom, security

and justice 35I.12 Political significance of the conferral of election rights on

European citizens 36I.13 Participation in municipal elections 37I.14 Participation in European elections 41I.15 The exercise of diplomatic protection by the Community

for the benefit of citizens of the Union 43I.16 Diplomatic protection of a citizen of the Union by a

Member State of which he or she is not a citizen 45I.17 Methods of protecting non-citizens 46I.18 Guarantees for participation in Community public life 48

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I.19 Petitions to the European Parliament 49I.20 Applications to the European Ombudsman 51I.21 The limits ratione materiae to the activities of the

European Ombudsman 54I.22 Access to documents and the right to correspond with the

Community institutions 58I.23 Citizenship of the Union in the Treaty establishing a

Constitution for Europe 60

Chapter II Freedom of Movement of Workers 65II.1 Freedom of movement of workers under the ECSC Treaty

and under the transitional regime. Outline 65II.2 Territorial scope of the Community rules on the freedom

of movement of workers 67II.3 Scope of application ratione personae of the Community

rules on freedom of movement of workers 68II.4 Restrictions applying to “purely internal” situations 71II.5 The requirement of citizenship of a Member State 73II.6 Workers’ family members 75II.7 The right to enter and reside in the territory of a Member

State 79II.8 Restrictions on entry and residence arising from the need

to safeguard the social assistance system of the host State 81II.9 The right to equal treatment with national workers with

regard to access to work and the conditions of work and employment 83

II.10 Exclusion of freedom of movement in the case of employment in the public service 89

II.11 The right to remain in the territory of a Member State after having worked there 92

II.12 Limitations on the right to enter and reside for reasons of public policy, public security and public health 93

II.13 Procedural safeguards 98II.14 Freedom of movement of workers under the Treaty

establishing a Constitution for Europe 102

Chapter III Right of Establishment 105III.1 Introduction 105III.2 The right of establishment in the EC Treaty 105III.3 Differences as compared with freedom to supply services

and free movement of workers 108III.4 The constraint of purely internal situations 110

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III.5 Scope ratione personae. Requirement for nationality/citizenship 112

III.6 (cont.) Establishment of companies 114III.7 Substantive scope 119III.8 (cont.) Exclusion of activities connected with the exercise

of official authority 120III.9 Ways of exercising freedom of establishment. Primary

establishment 122III.10 (cont.) Secondary establishment 123III.11 Content of freedom of establishment. The rule of national

treatment 126III.12 Prohibition of measures applicable without distinction 128III.13 Exceptions to freedom of establishment: abuse of the law 131III.14 Discriminatory restrictions 133III.15 (cont.) Non-discriminatory restrictions 134III.16 Measures designed to facilitate the exercise of the right of

establishment: mutual recognition of diplomas and other evidence of formal qualifications 137

III.17 Right of establishment for lawyers 143III.18 Right of establishment in the Treaty establishing a


Chapter IV Services 149IV.1 Introduction. Freedom to provide services in the context

of the general rules on the free movement of persons 149IV.2 Scope of the rules on services. The definition of “service” 153IV.3 Means of providing services 155IV.4 Scope ratione personae 161IV.5 Scope ratione materiae. Relationship with the common

transport policy and with the liberalisation of the banking and insurance sectors 165

IV.6 (cont.) Exclusion of activities involving the exercise of public authority 168

IV.7 Substance of freedom to provide services. The principle of equal treatment on grounds of nationality 170

IV.8 Prohibition of discrimination based on other grounds: requirement for residence 171

IV.9 Other prohibited discrimination: measures applicable without distinction 174

IV.10 Restrictions on freedom to provide services. Justifications 179IV.11 (cont.) Discriminatory measures 180IV.12 (cont.) Measures applicable without distinction 182IV.13 Implementation of liberalisation 187

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IV.14 (cont.) Recognition of diplomas 189IV.15 (cont.) The directive on services in the internal market 190IV.16 Free movement of lawyers 193IV.17 Services in the Treaty establishing a Constitution for

Europe 198

Chapter V Immigration Policy 201V.1 Historical development of Community immigration

policy: the original EEC Treaty 201V.2 The Single European Act, the Schengen Agreement and

intergovernmental cooperation 205V.3 The Maastricht Treaty 209V.4 The Treaty of Amsterdam and the Treaty of Nice 213V.5 Bringing the Schengen acquis within the scope of the

European Union 216V.6 Immigration policy as part of the area of freedom,

security and justice 221V.7 Scope of application of immigration policy ratione

materiae 224V.8 Scope of application ratione personarum 226V.9 Scope of application ratione loci 232V.10 Competence of the Member States and Community

competence 233V.11 The content of Community immigration policy 236V.12 Immigration policy in the Treaty establishing a


Addendum 247

Table of Cases 251

Index 262

Introduction

In the handbooks on European Community law the reader will find ample treat-ment of the fundamental freedoms guaranteed by the Treaty Establishing the European Community. Among these are of course the freedom of movement of persons, which takes effect in access to employment and freedom to work, the freedom of establishment and, lastly, the freedom to provide services. Against that background, the present work will also examine the separate institution of citizenship of the Union, provided for by Article 2 of the Treaty on European Union and governed by Articles 17 to 22 of the EC Treaty, introduced by the Treaty of Maastricht, and in more recent times brought also within the ambit of the Charter of Fundamental Rights of the European Union (Articles 39 to 46).

The creation and development of the area of freedom, security and jus-tice, as it now appears following the “communitarisation” brought about by the Treaty of Amsterdam, which inserted a new Title IV into the EC Treaty (Articles 61 to 69 on “Visas, asylum, immigration and other policies related to free movement of persons”), and after the limited changes brought about by the Treaty of Nice, has intensified interest in this particular area, in view of both enlargement (the “area” itself being extended to twenty-five Member States) and the Treaty establishing a Constitution for Europe. Whilst this constitutional Treaty is not yet in force, and remains of uncertain future, it is nevertheless a document of fundamental importance in evaluating the present state of Euro-pean integration and the prospects for the future.

The authors of this volume have a particular interest in the study of citi-zenship and freedom of movement of persons. Drawing together the common themes in these two areas, examining them together as a whole, is a natural con-sequence of the affinity of interests which they developed first during their own studies and research and later in teaching, over a period of time when the Euro-pean Communities were undergoing their most intense transformation. Their passion for the subject, the international outlook of their training and experi-

x

Introduction

ence at the universities of Genoa and Milan, which underlie a common school of teaching and study, have led the authors to go further in this research.

The present work, Citizenship of the Union and Freedom of Movement of Persons, sets out to analyse in detail the various provisions of Community law which confer upon individuals the right to move about, reside and work in the Member States. It also examines the procedural safeguards which set those fundamental rights apart from any deriving from other international bodies or organisations and point up the originality of the Community system.

The evolution of Community law over time and the gradual erosion of the sovereignty of the Member States to the benefit of the Community and the European Union, call for constant vigilance in assessing the latest changes and their effect upon current law, whether it be Community law, national law or international law. It is a complex field and not always is it easy to determine and reconcile the various competences of the Union, the Community and the Member States.

One point of reference, other than the rules themselves, is the case-law of the Court of Justice, whose contribution in this field, recording its develop-ment, is essential. It not only describes the content of the freedom of movement and the procedural safeguards of both Community and national origin but also progressively defines the notion of citizen of the Union, that particular status which, belonging to Community nationals, distinguishes them from foreigners of non-Community origin, who remain essentially subject to international and national law. For many years, the case-law has provided a complement to the very concise provisions of the relevant secondary legislation, expanding on them and interpreting them, and only recently has a directive been adopted (Directive No 2004/38/EC) to codify and update the rules, adopting a unitary, horizontal approach to freedom of movement of which signs had previously been seen, to an extent, in practice and in the case-law.

Citizenship of the Union entails freedom of movement under the current Treaties and also under the constitutional Treaty, in which the unified treatment of the rules, by contrast with the existing pillars of Community and European Union law, might be expected to confer new impetus on the realisation of the area of freedom, security and justice (provided for by Article I-3 and Articles III-257 to III-277). If there is truly to be such an area, there must be unified, not merely coordinated action. Judicial cooperation must be tightened in favour of the Union and, more importantly, individuals, be they Community citizens or indeed nationals of third countries, given the increasing trend towards a kind of integration which focuses less on formal data such as nationality and more on factors such as residence, employment and social integration.

Particular attention is paid to this last aspect and its political and legal implications. Whilst the Member States have traditionally regarded this field as falling outside the scope of European integration and have (at most) consigned it to forms of limited cooperation, they nevertheless seem to have understood

xi

Introduction

the importance of a common approach to immigration as a prerequisite to fully achieving the free movement of citizens of the Union. The “communitarisation” of immigration policy (the new Title IV of the EC Treaty mentioned above) and the perspectives opened up by the enlargement to 27 Member States (and more) and by the constitutional Treaty, provide the framework for the treatment given in the present work.

This is the English version of a book which, in Italy, is at its second edi-tion. The translation was prepared with great skill and proficiency by Robert Bray and Jeffrey Davis, whom we thank for the work. Several updates have been added to this book, to the effect that this volume may actually be viewed as a third edition in itself. We have given primary consideration to commentar-ies and studies published by Italian authors. This was done with the intent, and in the hope, to make the Italian doctrine available and accessible to a greater international audience.

The pages that follow are the fruit of a collaborative effort. Individual ideas and contributions are inevitably made more valuable by comparison and it is for this that the most senior of the authors would like to express his sincere gratitude to his younger colleagues.

PostscriptumCertain important events occurred after delivery of the book to the Publish-ers. The Treaty establishing a Constitution for Europe was abandoned and a new Intergovernmental Conference (“IGC”) was convened. The IGC, upon the European Council’s mandate, drew up a “Reform Treaty” amending the exist-ing Treaties. The Reform Treaty was signed at Lisbon on 13 December 2007. The Authors therefore believed it was appropriate to add an Addendum to the book and to summarize the relevant facts and effects of this reform.

Chapter I Citizenship of the Union

I.1 IntroductionThe introduction of citizenship of the Union constitutes one of the best-known innovations made by the Treaty signed at Maastricht on 17 February 1992.1 Significantly, Part two of the EC Treaty, which is expressly devoted to (and entitled) “Citizenship of the Union”, is located immediately after “Principles”2 and before “Community policies”,3 which marks out its general importance within the system of the Treaty. Whereas the most direct and immediate prec-edent for the provisions at present set out in Arts 17-22 EC may be found in a proposal put forward by the Spanish Government during the Intergovernmental Conference which resulted in the adoption of the Maastricht Treaty,4 the idea of identifying a status for individuals benefiting from the process of European integration and its correlative label of “citizen” of the Community or of the Union goes back to the early 1970s. Following an initial initiative at the Paris Summit in 1972, the subsequent summit in 1974 gave rise to a plan for a stan-dard passport for all nationals of the Member States, which was to be followed by a passport union and a core of special rights characterising the position of the Community citizen.5 In pursuance of the mandate conferred upon it by the summit, the relevant working party presented in 1975 the so-called Tindemans

1 The Maastricht Treaty gave rise to the European Union. It entered into force on 1 November 1993 (OJ C 191, 29/7/1992; ratified and implemented in Italy by Law No 454 of 3 November 1992, Gazzetta Ufficiale delle Repubblica italiano No 277 of 24/11/ 1992, ord. suppl.; implemented in the UK by the European Communities (Amendment) Act 1993.

2 Part one, Arts 1-16.3 Part three, Arts 23-181a.4 See Agence Europe, 2 October 1990, No 1653.5 EC Bull. (1974) no 12, 8.

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Chapter I

Report,6 which contained a chapter on the creation of a “Citizen’s Europe”. Those initiatives of the national governments were followed by initiatives from the Commission7 and the European Parliament. The latter adopted a resolution on 12 December 19778 and most significantly the Draft Treaty establishing the European Union of February 1984, Art. 3 of which proposed introducing citizenship of the Union.9 The Single European Act of 17-18 February 1986 (“SEA”), which entered into force on 1 July 1987, did not make any contri-bution towards translating the numerous projects for Community citizenship into law, with the result that the expression itself did not appear in the Treaty despite the preparatory papers which had given rise to the presentation of the report of the Adonnino Committee on a people’s Europe.10 Nevertheless, as a result of the Maastricht Treaty, the progress made by European integration and the diminished importance of economic factors as the determinant for Com-munity legislation, together with the emergence of a higher level of democracy in the Community’s institutional life, led to formal recognition of the notion of citizenship of the Union11 identifying a special status governed by Community rules for Community citizens.

I.2 The systematic location of the provisions on citizenship“Citizenship of the Union” is dealt with in the EC Treaty, is considered by Art. 17(2) EC, which refers to the rights and duties provided for in “this Treaty”, thereby leaving it to be inferred that the substance of the positive rules on citi-zenship of the Union is to be sought in norms belonging to Community law in the proper sense of the expression. However, apart from the obvious remark that in the present state of positive law12 the concepts of the Union and the

6 See EC Bull. (1976) Suppl. 1. For a commentary, see A. Tizzano, The Tindemans Report, It. Yearbook Int. Law (1976) 130.

7 See the report in COM(75) 321 final of June 1975.8 OJ C 299, 12/12/1977.9 See F. Capotorti, Article 3 – Citoyenneté de l’Union, in F. Capotorti, M. Hilf, F.

Jacobs, J.-P. Jacqué, Le traité d’Union européenne (Éditions de l’Université de Bruxelles, Bruxelles, 1985) 33 ff.

10 See EC Bull. (1985) Suppl. 7, at 18 ff.11 For the travaux préparatoires leading up to the Maastricht Treaty as regards the

introduction of citizenship of the European Union, see C. Closa, The Concept of Citizenship in the Treaty on European Union, C.M.L. Rev. (1992) 1137.

12 The proceedings of the “Convention on the future of Europe”, provided for by the Laeken European Council of 14-15 December 2001, resulted in the signature on 29 October 2004 of the “Treaty establishing a Constitution for Europe” (herein-after the “European Constitution” or, more simply, the “Constitution”), OJ C 310, 16/12/2004. The European Constitution provides for the abolition of the European Community and the European Union as established by the Treaty on European

3

Citizenship of the Union

Community are certainly not perfectly coincident,13 neither can it be said that the rules on citizenship of the Union are embodied exclusively in Community provisions. As a result, the qualification “of the Union” is either inaccurate or reflects an aspiration not borne out by positive law.

In fact, it is the provisions of the Union Treaty which locate citizen-ship – subsequently dealt with by provisions of the Community Treaty – in a broader context in so far as they clarify its nature as an instrument designed to “strengthen the protection of the rights and interests of the nationals of its Member States” (Art. 2, third indent, EU), thus identifying it as one of the rea-sons which prompted the Member States to conclude the Treaty on European Union14 (see the preamble to the EU Treaty). It is therefore possible to agree with the argument that, on grounds of systematic coherence, it would have been better had citizenship of the Union been governed by Union provisions and located among the provisions common to the Treaty on European Union and the Community Treaties (Title I of the EU Treaty, “Common provisions”. Arts 1-7), not unlike fundamental rights, which Art. 6 EU enshrined by crystallis-ing a consolidated practice of the Court of Justice determined in cases falling within the ambit of Community law. From another angle, however, the limited jurisdiction of the Court of Justice under the Union Treaty15 would have sharply

Union and the conferral of the relevant competences on the European Union estab-lished by the European Constitution, which is to replace the former entities (see Arts IV-437 and IV-438 of the Constitution), with the result that the “pillars” are to be abolished. For the European Constitution, see § 23, infra.

13 For some time, learned articles have recognised that the Union has legal personal-ity (see A. Tizzano, Note in tema di relazioni esterne dell’Unione europea, Diritto dell’Unione europea (1999) 465; J.-P. Jacqué, Droit institutionnel de l’Union européenne (Dalloz, Paris, 3rd ed., 2004) 177 ff., and, recently, this has been mani-festly confirmed in practice by the conclusion of international agreements: see the agreements between the European Union and the United States of America on extradition and mutual assistance in criminal matters (see Decision of the Council 2003/516/EC OJ L 181, 19/7/2003), which were concluded on the basis of Arts 24 and 38 EU. See also the proceedings of Group III “Legal personality”, in particular final report CONV 305/02 of 1 October 2003, WG III 16, presented to the Conven-tion.

14 In the Preamble to the Treaty on European Union, the Member States declare that they are “resolved to establish a citizenship common to nationals of their coun-tries”.

15 See Art. 46 EU. Under the third pillar, the Court of Justice has jurisdiction only within the limited confines of Art. 35 EU (see S. Peers, Who’s Judging the Watch-men? The Judicial System of the “Area of Freedom Security and Justice”, Year-book of European Law (1998) 337; L. Salazar, Il controverso ruolo della Corte di giustizia nel “terzo pilastro”; prime applicazioni dell’art. K.3 del Trattato sull’Unione europea, Scritti in onore di G.F. Mancini (Giuffrè, Milano, 1998) Vol. II, 905 ff.), whilst it has no jurisdiction at all under the second pillar (CFSP) with

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Chapter I

reduced the judicial safeguards for the rights connected with the status of citi-zen of the Union, which, in contrast, are secured in a manner equivalent to that of any other right derived from Community law.16

Citizenship of the Union identifies a status which only natural persons may enjoy. As a result legal persons are disqualified from having that status even though they qualify for the fundamental freedoms provided for in the Treaty (freedom of establishment, freedom to supply services). Consequently, the institution of Union citizenship is not of any use in resolving problems connected with the primary establishment of legal persons and hence with the transfer of a company’s seat from one Member State to another, which – accord-ing to what is now a controversial approach taken in decided cases – may result in failure to recognise the very existence of a company aspiring to exercise a fundamental right recognised by the Treaty.17 As has been observed,18 this limitation is probably due to the political significance which was intended to be given to Union citizenship: not only as a concept identifying the status of a person entitled to citizenship as the beneficiary of rights provided for in the Community legal order but also as a sign of the citizen’s democratic right to vote and stand for election, given that a citizen of the Union has the right to vote in elections of the European Parliament and in local authority elections in his or her State of residence. From the latter point of view, obviously only citizenship on the part of natural persons has any relevance.

I.3 The concept of citizenship of the UnionThe Treaty makes citizenship of the Union depend on the possession of the nationality of a Member State, and nothing else. As a result, the acquisition (or

the exception of the indirect jurisdiction found to exist by the Court in the case of an actio finium regundorum which, in any event, is based on Community provi-sions and on Art. 47 EU. See, recently, C. Novi, La politica di sicurezza estera dell’Unione europea (Cedam, Padova, 2005) 149 ff.

16 See to this effect B. Nascimbene, Profili della cittadinanza dell’Unione europea, Rivista internazionale dei diritti dell’uomo (1995) 246; U. Villani, La cittadi-nanza dell’Unione europea, Studi in ricordo di Antonio Filippo Panzera (Laterza, Bari, 1995) vol. II, 1006 ff.; A. Lang, Articolo 17, in A. Tizzano (ed.), Trattati dell’Unione europea e della Comunità europea (Giuffrè, Milano, 2004) 249 ff.

17 In Case 81/87 Daily Mail [1988] ECR 5483, the Court of Justice held that trans-ferring the seat of a company from one Member State to another depended on the national legislation of individual Member States or on contractual initiatives taken by Member States and that the Community provisions could not assume any relevance. The effects of the Daily Mail case have been greatly attenuated by Case C-212/97 Centros [1999] ECR I-1459 and Case C-208/00 Überseering [2002] ECR I-9919, albeit using arguments other than Union citizenship. For a fuller discussion, see Ch. III, part 6.

18 A. Lang, supra (note 16).

5


loss) of the nationality of one of the Member States automatically leads to the acquisition (or loss) of Union citizenship. The markedly “ancillary” character of Union citizenship vis-à-vis nationality is evidenced by the change made to Art. 17 by the Treaty of Amsterdam. Completely superfluously,19 that provi-sion reads “Citizenship of the Union shall complement and not replace national citizenship”. Consequently, it was observed from the outset that citizenship was not autonomous, but left to the discretion of each Member State,20 with the result that what persons benefit by the rights comprised in the concept of Union citizenship depends on the individual national legal systems.

As a result, the introduction of Union citizenship has not encroached upon the Member States’ exclusive competence to define the characteristic requirements of citizenship. In the past, Germany and the United Kingdom had already identified those persons entitled to national citizenship for the pur-poses of the application of Community provisions. Upon signing the EEC and EAEC Treaties, Germany declared that “All Germans as defined in the Basic Law for the Federal Republic of Germany shall be considered nationals of the Federal Republic of Germany”.21. In view of the complexity of its domestic nationality law,22 the United Kingdom made a declaration on the definition of the term “nationals”, annexed to the Final Act of the 1972 Accession Treaty. This was replaced by a later declaration of 1982, according to which the fol-lowing qualify for free movement of persons: British citizens; persons who are British subjects and have the right of abode in the United Kingdom, and British Dependent Territories citizens who acquire their citizenship from a connection with Gibraltar. Consequently, other British Dependent Territories citizens and British overseas citizens are excluded.23 The Court of Justice has held that this distinction is compatible with Community law, describing the declaration as an

19 The same conclusion could be reached on the basis of the previous wording of the second sentence of Art. 17 EC: “Every person holding the nationality of a Member State shall be a citizen of the Union”.

20 See B. Nascimbene, supra (note 16) 247.21 The Declaration of the Government of the Federal Republic of Germany on the

definition of the expression “German national”, of which the Intergovernmen-tal Conference took note (reproduced in A. Tizzano, Codice dell’Unione europea [Cedam, Padova, 4th ed., 2005] 128).

22 See N. Blake, British Nationality Law, in B. Nascimbene (ed.), Nationality Laws in the European Union (Giuffrè, Milano, 1996) 679 ff. For the historical back-ground to British nationality see A. Dummett, A. Nicol, Subjects, Citizens, Aliens and Others (Weidenfeld and Nicolson, London, 1990).

23 For the text of the declaration, see OJ C 23, 28/1/1983. For this subject, see, in par-ticular, A.R. Cosi, Cittadinanza dell’Unione e cittadinanza di uno Stato membro: il caso della British Overseas Citizenship, Diritto pubblico comparato ed europeo (2001) 664 ff.

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Chapter I

“ instrument relating to the Treaty for the purpose of its interpretation and, more particularly, for determining the scope of the Treaty ratione personae”.24 This practice has been codified by the aforementioned Declaration on nationality of a Member State adopted by the Intergovernmental Conference and annexed to the Treaty of Maastricht: “... the question whether an individual possesses the nationality of a Member State shall be settled solely by reference to the national law of the Member State concerned. Member States may declare, for information, who are to be considered their nationals for Community purposes by way of declaration lodged with the Presidency”. That declaration has been indirectly but certainly confirmed by the decision adopted by the Heads of State and Government, meeting within the European Council in Edinburgh on 11 December 1992 concerning certain problems raised by Denmark on the Treaty on European Union,25 in which it was stressed that nationality falls within the exclusive competence of the Member States. In one of the “unilateral declara-tions of Denmark, to be associated to the Danish act of ratification of the Treaty on European Union and of which the eleven other Member States will take cognisance”, Denmark made it clear that citizenship of the Union was entirely different from the concept of citizenship within the meaning of the Danish legal system.

In comparison with other concepts which identify autonomously – and hence without regard to the content which they might have in the national legal system – persons qualifying for rights conferred by Community law,26 the con-cept of citizenship of the Union is entirely dependent upon the choices made by the individual Member States. From this angle, therefore, the institution of Union citizenship does not constitute an innovation, since in the past the extension ratione personae of the Community freedoms, in particular, of free movement of persons, invariably depended, according to the relevant Treaty provisions, on the notion of nationality as determined by each national legal system, since those freedoms applied first and foremost to nationals of the Member States. Generally speaking and except where specifically mentioned, the introduction of Union citizenship does not therefore result in any extension of the categories of person qualifying for rights derived from Community law. From another angle, it may be noted that some of the rights expressly connected with the status of citizen of the Union (see Art. 21 EC) are in fact conferred on persons “residing” in the Union (see Arts 194 and 195 EC), regardless as to whether they have the nationality of a Member State. This inconsistency may perhaps be a sign of a tendency for Community provisions to identify as the

24 See Case C-192/99 Kaur [2001] ECR I-1237, para. 24.25 OJ C348, 31/12/1992.26 See, for example, the concept of “worker” within the meaning of Art. 39 as inter-

preted by the Court of Justice in a number of judgments. For a fuller discussion, see Ch. II, part 3.

7


persons “naturally” qualifying under them not so much those having a status civitatis however defined, but rather the residents of a Member State, irrespec-tive of their nationality, thereby fostering integration as between the Member States.27 Moreover, already in the past, not only nationals but also “residents” of the Member States were the beneficiaries of important Community free-doms.28 Whatever the concept of citizenship which one wishes to accept – the legal condition of those who belong to a State or, at all events, of those who have particular rights and obligations in a State29 or else, putting less emphasis on the link with the State as an entity, the status of those who belong to a politi-cal community in the broad sense30 – the distinctive features of Union citizen-ship as compared with nationality under national or international law are plain. In the first place, the Community and, all the more reason, the Union, lack the fundamental characteristics of the political community or the entity of the State as such invested with general competences. Secondly, the fundamental core of rights which the Treaty recognises as belonging to citizens of the Union reduces to a set of rights and special rights which are conferred on nationals of the Member States (but not only on them),31 but those rights do not express the dimension of citizenship whereby the citizen is subject to the State. Neither do they express the correlative participatory aspect made manifest through the exercise of rights characterising the individual’s contribution to the political life of the State.32 In academic writings, the fact that the concept of citizen-ship cannot be traced back to citizenship in the technical and legal sense has

27 B. Nascimbene, Brevi rilievi in tema di diritti fondamentali, cittadinanza e sus-sidiarietà nel Trattato sull’Unione europea, Diritto comunitario e degli scambi internazionali (1994) 233; M. Cartabia, Cittadinanza europea, in Enciclopedia giuridica, Aggiornamento (Treccani, Roma, 1995) vol. IV, 3; S. Greco, Cittadi-nanza europea e tutela dei diritti fondamentali, Giornale di diritto amministrativo (1999) 941.

28 See on the free movement of capital (Art. 67 EC now replaced by Art. 56 EC) A. Santa Maria, Diritto commerciale comunitario (Giuffrè, Milano, 2nd ed., 1995) 197 ff.; L. Flynn, Coming of Age: The Free Movement of Capital Case Law 1993 – 2002, C.M.L. Rev. (2002) 773; S. Fortunato, G. Godano, Articoli 56-60, in A. Tizzano (ed.), supra (note 16) 416 ff.; R. Baratta, Circolazione dei capitali e paga-menti, in G. Strozzi (ed.), Diritto dell’Unione europea. Parte speciale (Giappi-chelli, Torino, 2nd ed., 2005) 273 ff.

29 G. Biscottini, Cittadinanza (diritto vigente), in Enciclopedia del diritto (Giuffrè, Milano, 1960) vol. VII, 140.

30 For a survey of the positions taken in academic writings, see M. Cartabia, supra (note 27) at 3.

31 See Ch. V.32 For being subject to the State and participating therein as specific features of the

legal/political constraint of citizenship, see, for example, R. Clerici, Cittadinanza, in Digesto delle discipline pubblicistiche (UTET, Vol. III, Torino, 1989) 113.

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been made out, in particular in view of the fact that the rights conferred on the Community citizen boil down, virtually without exception, to claims which are legally protected, not vis-à-vis the Union, but vis-à-vis Member States other than the one of which he or she is a national,33 which shows that the ultimate objective is still to integrate the foreigner (from another Member State) into the Member State in which he or she resides.

It has been observed that the notion of citizenship of the Union does not in fact transcend the bounds of the catalogue of rights which has characterised the stages which the idea of Union citizenship has passed through,34 with the sole exception, perhaps, of the European Parliament’s draft of 1984.35 Consis-tently, the Treaty did not lay down any rules on the acquisition and loss of Union citizenship, leaving it entirely to such changes in individual national citizen-ship as occur from time to time and hence to the various national laws. This choice prompted commentators to refer to “dual” citizenship in the sense of two separate, but inseparably linked, statuses36 or to “complementary” citizenship,37 which is simply superadded to national citizenship without being superimposed over it or replacing it. The ensuing rules appear to be substantially consistent with the interpretations of the concept of citizenship as a requirement for the application ratione personae of Community provisions which have emerged so far in the case-law of the Court of Justice. In Auer38 the Court of Justice held that the date or manner of acquisition of the status of a national of a Member State is irrelevant for the purposes of the application of Community law as long as the person concerned possesses it at the time at which he or she relies upon a provision of Community law. From another angle, the Court has held that, for

33 C. Stephanou, Identité et citoyenneté européenne, RMC (1991) 36; R. Adam, Prime riflessioni sulla cittadinanza dell’Unione, Rivista di diritto internazionale (1992) 627; U. Villani, supra (note 16) at 1011 ff.

34 M. Cartabia, supra (note 27) at 2 ff.35 Also on the occasion of the Treaty of Maastricht, the European Parliament advo-

cated the introduction into the Treaty of an article providing that “The Union may establish certain uniform conditions governing the acquisition or loss of the citi-zenship of the Member States, by virtue of the procedures laid down for the revi-sion of the Treaty” (see the resolution on citizenship of the Union of 21 November 1991 in OJ C 326, 21/11/1991), thus helping to reduce Member States’ discretion and partially “communitising” the concept of citizenship of the Union. To like effect, see V. Cuocolo, La cittadinanza dell’Unione europea (prospettive costituzi-onali), Politica del diritto (1991) 663; C. Curti Gialdino, Il Trattato di Maastricht sull’Unione europea (Istituto poligrafico e Zecca dello Stato, Roma, 1993) Vol. I, 77.

36 V. Lippolis, La cittadinanza europea (Il Mulino, Bologna, 1994) 61 ff.37 M. Cartabia, supra (note 27) at 5.38 Case 136/78 Auer [1979] ECR 437.

9


the purposes of the application of Community law, it is irrelevant that the person concerned had the nationality of the Member State of residence, provided that that person also had the nationality of another Member State.39 In Micheletti 40 and the subsequent case of Zhu,41 the Court emphasised the national legislature’s exclusive competence to determine what persons may have the nationality of the Member State in question and the consequent irrelevance of any additional criterion (even arising out of the legislation of another Member State) designed to impose an additional condition for the recognition of the nationality of the first Member State with the view to qualifying for benefits provided for by Com-munity law. The criterion adopted by the Court of Justice therefore seems to diverge from the rule of general international law according to which the grant of nationality, albeit remaining within the exclusive competence of the State, must be based on a real and effective link between the State and the individual concerned, so that a decision by the State to grant its own nationality would not have effects in the international legal order without that connection.42 That prin-

39 Case 292/86 Gullung [1998] ECR 111; Case C-419/92 Scholz [1994] ECR I-505.40 Case C-369/90 Micheletti [1992] ECR I-4239. In that case, it was held that a

person with dual Argentine and Italian nationality had the right to establish him-self in Spain since he was (an Italian and hence) a Community national and that it was irrelevant that under Spanish law his Argentine nationality took precedence on grounds relating to the country of which he was effectively a national. See H.U. Jessurun d’Oliveira, Note, C.M.L. Rev. (1993) 623; D. Ruzié, Nationalité, effec-tivité et droit communautaire, Rev. gén. droit int. pub. (1993) 107. This approach was confirmed in Case C-122/96 Saldanha [1997] ECR I-5325. That case differs in that a person with the nationality of a non-Community country relied on that nationality with a view to the grant of rights provided for by an association agree-ment concluded by the Community with non-member countries. The Court held that if the person concerned also has the nationality of a Member State – in the case in point that of the Member State in which he was resident – it was possible legitimately to regard him as being solely a Community citizen, which made it impossible for him to rely on the relevant provision of the association agreement: see Case C-179/98 Mesbah [1999] ECR I-7955.

41 Case C-200/02 Zhu [2004] ECR I-9925. The Court of Justice, referring to the principles set forth in Micheletti, held that a Member State (the United Kingdom) could not limit the effects of the grant of the nationality of another Member State (Ireland) merely because a national of a non-member country had arranged mat-ters so as to give birth to a child in the territory of the second Member State and the acquisition of the child’s nationality was based on the principle of the ius soli, without there being any requirement for further links with the national territory.

42 See, for example, F. Panzera, Limiti internazionali in materia di cittadinanza (Edi-toriale Scientifica, Napoli, 1984) 64 ff., to which reference is made also for an analysis of the relevant decisions of the international judicial bodies concerned, including Permanent Court of Arbitration, 3 March 1912 Canevaro, Rivista di diritto internazionale (1912) 475; International Court of Justice, 6 April 1955 Not-

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Chapter I

ciple of public international law of effective nationality is expressed by the rule of private international law introduced by the Italian legislature in Art. 19(2) of Law No 218 of 31 May 1995 on “Reform of the Italian system of private inter-national law”, which, in the case of plural nationality, declares that the appli-cable law is that of the State to which the person concerned belongs with which he or she has the closest connection. If the choice of the applicable law led to the law of a third country and to the law of a Member State and any Community legislation applicable being ignored, the provision relied on should be deemed to be incompatible with the Community rules on citizenship of the Union.43

The concept of Union citizenship, albeit left (within the limits which we shall shortly be considering) to the multifaceted definition derived from the various national laws, does, however, express the idea of belonging to a com-munity, which is no longer the Community of States and cannot be reduced to the European Community understood as a set of institutions and bodies which govern it and express its will. Instead, it evokes being part of that “community” which has been underlying Community legal and political thought ever since the judgment in Van Gend en Loos 44 and is made up of the institutions, Member States and their nationals (or citizens), as legal subjects on an equal footing. Citizens “cooperate” (today we would say “participate”) in the activities of the Community through the institutions, principally the European Parliament. What makes that “community”, which finds expression in a “new legal order”, cohesive is a new type of citizenship which was identifiable within the system before the Treaty of Maastricht, but was only made explicit by that treaty.45

I.4 Community limits to acquiring and losing citizenship of the UnionThe option chosen by the Court of Justice of refraining from any review of the effectiveness of the nationality granted by the Member States46 is perhaps due in the case of Micheletti (and also in Auer, Gullung and Scholz) to the require-

tebohm, ICJ Rep. (1955) 13. See A. Adinolfi, La libertà di circolazione delle per-sone, in G. Strozzi (ed.), supra (note 28) at 74, who states that the Court of Justice has not given any importance to the criterion of the effectiveness of nationality.

43 See P. Mengozzi, La riforma del diritto internazionale privato (Editoriale Scienti-fica, Napoli, 3rd ed., 2000) 69 ff.

44 Case 26/62 Van Gend en Loos [1963] ECR 3.45 The Court of Justice raised the idea that there is a measure of (financial) solidarity

between the citizens of the host State and those of the other Member State in Case 186/87 Cowan [1989] ECR 195, well before the introduction of the concept of citi-zenship of the European Union. The same idea was raised again over twelve years later in Case C-184/99 Grzelczyk [2001] ECR I-6193, para. 44, as a consequence of European citizenship.

46 See U. Villani, supra (note 16) 1007 ff. and, on a more critical note, D. Ruzié, supra (note 40) 107 ff.

11


ment to avoid persons whom one Member State considers to be its own nation-als being denied by other Member States the grant of rights deriving from the Community legal order. But it does not enable to draw the conclusion that Community law has no effect on the competence of the Member States. Even though there is no Community competence to define the concept of national-ity in the Member States and, as a result, that of citizenship of the Union,47 the Court does not seem to rule out the possibility that some limitation of the domestic jurisdiction of the Member States may not arise out of Community law, at least in those situations in which the manner in which national citizen-ship is acquired and lost seems to conflict with general principles of Com-munity law. In Airola,48 the Court of Justice, not following the opinion of the Advocate General, held that the concept of nationality which appeared in a provision of the Staff Regulations as a requirement for the grant of an expatria-tion allowance could not be interpreted in the light an Italian provision in force at that time according to which foreign women who married Italian nationals had Italian nationality imposed upon them.49 The justification was rooted in the need to avoid application of a Community provision in a way which discrimi-nated on grounds of dependants’ gender, which would breach the fundamental right to equal treatment.50

Although they are not expressly mentioned, the Court seems to allow, even in the Micheletti case, that there are limits to the Member States’ compe-tence to define the conditions for acquiring and losing nationality. It states in fact – to tell the truth fairly cryptically – that that exclusive competence must be exercised “having due regard to Community law” (see para. 10 of the judg-ment). The Court does not clarify this limitation in any way and the dictum did not have any tangible effect on the outcome.51 However, having regard also to the Airola case, it may be considered that the Court intended to anticipate

47 See, for the view that there is concurrent competence of the Member States and the Community, A. Evans, Nationality Law and European Integration, E.L. Rev. (1991) 190.

48 Case 21/74 Airola [1975] ECR 221.49 Art. 10(1) and (2) and Art. 11(2) and (3) of Law No 555 of 13 June 1912. See,

with regard to this judgment, R. Clerici, Nuove prospettive in tema di cittadi-nanza della donna maritata, Rivista di diritto internazionale privato e processuale (1975) 686.

50 In a more recent case, the Court of Justice did not opt again for the solution adopted in Airola in that it did not review the compatibility with Community law of a French provision which granted French nationality in breach of the principle of equal treatment of men and women, but instead decided the case on the basis of the principle of non-discrimination on grounds of nationality: Case C-55/00 Got-tardo [2002] ECR I-413.

51 See G. Gaja, Introduzione al diritto comunitario (Laterza, Roma, Bari, 2005) 12.

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– even if only vaguely – Community-law limits on Member States’ competence in respect of the grant and, above all, the loss of status civitatis. The idea that such limits – which are justifiable in so far as choices made under the national legal system in the matter may affect freedoms guaranteed by Community law – may be envisaged is fortified by the fact that, following the Maastricht Treaty, nationality entails Union citizenship and hence the enjoyment of rights which one would be otherwise be precluded from enjoying. The specific identification of limits to the exercise of national competences with regard to nationality has been posited at least in relation to the requirement to respect the fundamental rights of the individual as general principles of Community law.52 If Commu-nity limits to the Member States’ competence with regard to nationality were to become affirmed, this would result in a requirement for some form of harmoni-sation of the relevant national legislation by measures of Community law or instruments in the nature of international agreements.53 At present, any process of harmonisation is remote, since importance attaches only to the nationality of a Member State of the Union and having the nationality of another Member State will be relevant only where a national legislature adopts, as is its right in the exercise of its exclusive competence, preferential rules for acquiring the nationality of its Member State. This happened in the case of Italian Law No 91 of 5 February 1992 setting out New rules on citizenship, Art. 9(1)(d) of which enables a national of a Member State of the European Communities to acquire Italian citizenship by naturalisation, provided that he or she has been legally resident in the Italian Republic for at least four years. For non-Community aliens, the period of residence is ten years and, for stateless persons, five.54

I.5 Substance of citizenship of the Union. RightsArt. 17(2) provides that citizens of the Union are to enjoy the rights conferred by “this Treaty” and to be subject to the duties imposed thereby. Essentially, the status of citizen of the Union is defined by means of a general reference to all the rights and duties which the EC Treaty confers on those who have the nationality of a Member State. In spite of this general reference, the subsequent provisions (Arts 18, 19, 20, 21) define a number of rights by singling out those

52 See Art. 6 EU. For loss of citizenship in breach of fundamental rights, see C. Closa, Citizenship of the Union and Nationality of Member States, C.M.L. Rev. (1995) 487; S. Hall, Loss of Union Citizenship in Breach of Fundamental Rights, E.L. Rev. (1996) 129; U. Villani, supra (note 16) 1009 ff.

53 See S. O’Leary, Nationality Law and Community Citizenship: a Tale of Two Uneasy Bedfellows, Yearbook of European Law (1992) 353.

54 See B. Nascimbene, Commentario, Nuove leggi civili commentate (1993) 6; R. Clerici, La cittadinanza nell’ordinamento giuridico italiano (Cedam, Padova, 1993) 336 ff.; S. Bariatti, Le droit italien de la nationalité, in B. Nascimbene (ed.), supra (note 22) 465 ff.

13


which most markedly characterise the new concept: the right of free movement (Art. 18); the right to vote in municipal elections and in European elections (Art. 19); the right to diplomatic protection (Art. 20), and the right to petition, to apply to the Ombudsman and to obtain an answer from the institutions in the same language used to write to them (Art. 21). This list may, however, be extended using the special procedure set out in the second para. of Art. 22 EC.

Before considering more specifically the substance of the rights and duties listed in Part II of the Treaty, it is worth emphasising the lack of homogeneity of the rights referred to in the articles listed above. In the first place, they are not all exclusive to citizens of the Union, since some of them (right to apply to the Ombudsman, right to write to the institutions and obtain a reply) are acknowl-edged by the Treaty itself to anyone who is resident in a Member State of the Union,55 even if he or she is a national of a non-member country. There is still the open question whether Member States have the possibility to extend some or all the rights referring to EU citizenship also to non-EU citizens. This issue had emerged in relation to the United Kingdom law extending to qualifying Commonwealth citizens (QCCs) residing in Gibraltar the right to participate in elections for the European Parliament. The Court of Justice deemed this law conforming to the Treaty, maintaining that it is due to Member States to determine which persons may benefit from the right to vote for the European Parliament.56 However, the Court of Justice underlined that on the one hand, United Kingdom had adopted this controversial law in order to enforce a judg-ment of the European Court for Human Rights, which had sentenced UK for having deprived Gibraltar residents of the right to participate in the elections for the European Parliament. On the other hand, the Court went on to state that, in accordance with its constitutional traditions, UK had granted to QCCs the political rights that in other law systems are reserved to citizens only. It is therefore difficult to draw from this judgment a general advice, even though it is evident that it admits a biunique non-correspondence between EU citizen-ship and right to vote for the European Parliament.

Secondly, the obligations correlative to the rights listed in Part II of the Treaty fall to be fulfilled by different entities: in some cases, the Community institutions are under the duty (applications to the Ombudsman, right to peti-tion, right to write to the institutions and obtain a reply); in others, it is the Member State in whose territory the right is exercised (right to free movement, right to vote in municipal elections). In any event, the list is not exhaustive, not only on account of the fact that it may be augmented by the second para.

55 Whereas Art. 21 CE provides that Union citizens have the right to apply to the Ombudsman and the right to submit a petition, Arts 194 and 195, which set forth more detailed rules on those rights, extend them to “any natural or legal person residing or having its registered office in a Member State”.

56 Case C-145/04 Spain v United Kingdom [2006] ECR I-7917.

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of Art. 22, but above all because the rights listed have to be supplemented by other rights which are typically vested in nationals of Member States (right to equal treatment) and, more generally, by rights for which citizens of the Union qualify, not as citizens of the Union as such, but because they belong to other categories of beneficiaries contemplated by Community law (workers, consumers, etc).57 In so far as, under Art. 2 EU, citizenship is regarded as an instrument for strengthening protection of the rights (and interests) of nationals of the Member States, Part II on citizenship does not include the list of funda-mental rights of the individual, even though such rights are vested in citizens of the Union under the Community legal order, in common with every human being, by virtue of Art. 6 EU and because they form part of that legal order as general principles of law.58

The Charter of Fundamental Rights of the European Union, proclaimed at Nice by the European Parliament, the Council and the Commission on 7 December 2000,59 includes a Chapter V, entitled “Citizens’ Rights”, which sub-stantially reproduces the above-mentioned provisions of the Treaty and adds the right to good administration and the right of access to documents (Arts 41 and 42), already provided for in Art. 255 EC. The provisions of the Charter also exhibit a marked lack of homogeneity as to the beneficiaries of the rights, some of which are restricted to citizens of the Union (right to vote, right to free movement, right to diplomatic and consular protection), whilst others extend to cover “any natural or legal person residing or having its registered office in a Member State” (right of access to documents, right to apply to the Ombuds-man, right to petition) or, even more widely, “every person” (right to good administration).60 Rather than in point of its content, the Charter differs from the provisions of Part II of the Treaty in point of its systematic presentation of the rights of citizens of the Union in that it puts in first place electoral rights (Arts 39 and 40), which, by enabling citizens of the Union to participate in the political life of the Union and the Member State in which they reside, charac-terise them more specifically as having a status activae civitatis, thereby dif-ferentiating them from mere beneficiaries of the rights to access to documents, to apply to the Ombudsman and to petition and even from beneficiaries of the right to free movement and residence, which are extended also to nationals of

57 For the incomplete nature of the list, see D. O’Keeffe, General Course in Euro-pean Community Law. The Individual and European Law, in Collected Courses of the Academy of European Law (1994) Vol. V, section 1, 55 ff., at 124 ff.

58 See S. O’Leary, The Relationship Between Community Citizenship and the Protec-tion of Fundamental Rights in Community Law, C.M.L. Rev. (1995) 519.

59 OJ C 364, 18/12/2000.60 See D. Simon, Les droits du citoyen de l’Union, Rev. univers. des droits de l’homme

(2000) 22.

15


non-member countries legally residing in a Member State, albeit in conformity with the provisions of the EC Treaty.

Although the Preamble to the Charter states that, by establishing citizen-ship of the Union (and creating an area of freedom, security and justice), the Union intends to place the individual “at the heart of its activities”, it does not mention any “right to citizenship of the Union” or specify on what requirements it is dependent, since it refers implicitly to the provisions of the EC Treaty and hence to the national provisions governing nationality in each Member State. All in all, the provisions of Chapter V of the Charter are not particularly innovative. Instead, they have to be assessed, as has already been observed, as components of a larger set of rights which characterise the status of citizen of the Union taken as a whole vis-à-vis the institutions of the Union.61 The Char-ter was incorporated into the Constitution of the Union62 without any major changes to the provisions relating to citizenship which are contained in Title V of the Charter (Arts II-99 to II-106).63 Moreover, the Charter, both the ver-sion prior to its incorporation into the Constitution and the version contained therein, still deals with citizenship by juxtaposing rights which vary in terms of their content and beneficiaries in a list which is not organic, both because it contains rights which are expressly conferred also on persons who are not citi-zens and, in contrast, because it makes no mention of rights which the Treaty expressly reserves for citizens, such as the right not to be discriminated against in the field of application of Community law.

In common with every other right conferred by the Community legal order, the rights conferred on citizens of the Union may be relied on only where the beneficiary finds himself or herself in a situation of Community relevance, in which there is an identifiable factor connecting him or her with a Member State other than his or her own Member State, since those rights remain irrel-evant in purely internal situations, that is to say, in cases where all the facts at issue may be attributed to only one legal order. In such case, the only status of significance will be that determined by nationality and the situation will be governed exclusively by the domestic law of the Member State concerned. In other words, “citizenship of the Union ... is not intended to extend the scope

61 L.S. Rossi, Uguaglianza – Cittadinanza, in L. S. Rossi (ed.), Carta dei diritti fon-damentali e costituzione dell’Unione europea (Giuffrè, Milano, 2002) 109 ff.

62 The Charter of Fundamental Rights of the European Union constitutes Part II of the Constitution (Arts II-61 to II-114).

63 For an article-by-article commentary on these provisions, see L. Burgorgue-Larsen, A. Levade, F. Picod, Traité établissant une Constitution pour l’Europe. Commentaire article par article. Partie II, Vol. 2. La Charte des droits fondamen-taux de l’Union (Bruylant, Bruxelles, 2005) 505 ff.

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ratione materiae of the Treaty also to internal situations which have no link with Community law”.64

By contrast, where situations do fall within the field of application ratione materiae of the Treaty, Union citizenship enables rights conferred by the Treaty to be extended to persons who otherwise could not qualify for them because they are not taken into account by any specific provision of Community law. In the case of Martínez Sala, the Court of Justice, proceeding from the prem-ise that a child-raising allowance provided for by German law fell within the scope ratione materiae of Community law, held that a Spanish national resi-dent in Germany came within the scope ratione personae of the Treaty and, in particular, of the provisions on Union citizenship, simply because she was lawfully resident within the territory of another Member State. The right not to be discriminated against on grounds of nationality within the substantive scope of the Treaty followed from this consideration.65

Obviously, where the actual circumstances fall more precisely within the scope of a specific Community freedom, the situation will be governed by the relevant provisions of the Treaty and there will be no need to rely on the rules on citizenship of the Union, with respect to which the provisions on freedom of establishment, freedom to supply services or free movement of workers con-stitute a species of lex specialis.66 In contrast, it must be pointed out that, at least in the initial phase, in which the provisions on citizenship were invoked in numerous Opinions of Advocates General,67 the Court of Justice preferred

64 Joined Cases C-64/96 and C-65/96 Uecker and Jacquet [1997] ECR I-3171, para. 23. In that judgment, the Court of Justice held that the non-Community spouses of two German nationals could not avail themselves of the right to access to employ-ment conferred by Art. 11 of Council Regulation No 1612/68/EEC, since that right was sought to be relied on against the German State, where the two German nationals resided and worked without ever having exercised free movement within the Community.

65 Case C-85/96 Martínez Sala [1998] ECR I-2691, particularly paras 60-63. See to the same effect Case C-184/99 Grzelczyk [2001] I-6193, para. 32.

66 It follows from this that once it has been determined that national legislation requiring the courts to order expulsion for life from its territory of nationals of other Member States found guilty on that territory of the offences of obtaining and being in possession of drugs for their own personal use is incompatible with Arts 39, 42 and 49 of the EC Treaty and with Article 3 of Directive 64/221, it will no longer be necessary to consider the question of the compatibility of that national legislation also with the provisions on Union citizenship: Case C-348/96 Calfa [1999] ECR I-11, particularly paras 29 and 30.

67 See the Opinion of Advocate General Jacobs in Case C-168/91 Konstantinidis [1993] ECR I-1198, particularly at para. 46, according to which a national of a Member State may rely on his or her status as a European citizen (“civis europeus sum”) in order to challenge a violation of his or her fundamental rights. The Opin-

17


to have recourse to more “tried and tested” rules, such as the Treaty provisions enshrining the traditional economically-oriented freedoms, in some cases by putting a generous construction on the conditions for their application, such as the concept of (self-employed or employed) worker rather than that of a person for whom services are provided.68

It is only in more recent case-law, after the judgment in Martínez Sala, that the Court has seemed to be gaining awareness of the value per se of the provisions on citizenship as capable in their own right of constituting the “fun-damental status” of citizens of the Union and as such capable of conferring the rights recognised in Part two of the Treaty (in the particular case the right of free movement and the right of residence) without any need for the person concerned to fall additionally into another category as an employed or self-employed worker or as a recipient of services.69 It suffices for the person con-cerned to fall within the field of application of Community law for him or her to qualify as a “citizen of the Union” and as such to benefit from the freedoms and rights conferred by the Treaty by reason of citizenship alone. The relevance of the Treaty provisions (and of those on Union citizenship) arises simply because the person concerned is entitled to rely on his or her being legally resident in a Member State other than his or her own State, thereby showing that he or she has exercised freedom of movement for any reason whatsoever, without the need to satisfy any further requirement. As a result of the fact that the indi-

ion of Advocate General Léger in Case C-214/94 Boukhalfa [1996] ECR I-2225 suggested that the Court of Justice should rely (inter alia) on the provisions on citizenship in order to ensure that all Union citizens enjoyed the same rights and were subject to the same duties even beyond the territorial limits to the application of Community law (see para. 63). In his Opinion in Joined Cases C-65/95 and C-111/95 Shingara [1997] ECR I-3345, Advocate General Ruiz-Jarabo Colomer argued that the creation of Union citizenship had separated freedom of movement from “its functional or instrumental elements (the link with an economic activ-ity or attainment of the internal market)” and raised it to the level of a genuinely independent right “inherent in the political status of the citizens of the Union” (see para. 34).

68 See Case C-193/94 Skanavi [1996] ECR I-929, where the Court applied the right of establishment to a Greek national who was in Germany as a director of a commer-cial company, and ignored the provisions on citizenship which had been expressly raised by the national court seeking the preliminary ruling. In Case 186/87 Cowan [1989] ECR 195 and Case C-348/96 Calfa [1999] ECR I-11, the Court held that a British national in France and an Italian national in Greece, both of whom were tourists, were to be categorised as recipients of services within the meaning of the Treaty.

69 This is clearly expressed in Case C-413/99 Baumbast [2002] ECR I-7091, where the Court of Justice acknowledged that Union citizenship was destined to be the fundamental status of nationals of the Member States (see para. 82).

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vidual falls within the field of application of the Treaty on account of his or her being a citizen of the Union, he or she will qualify for the rights conferred on citizens by Community law and, first and foremost, from the right not to be discriminated against on grounds of nationality.70

I.6 Substance of citizenship of the Union. DutiesArt. 17 EC also provides that citizens of the Union are to be subject to the duties imposed by the Treaty. As matters stand, this statement is designed more to satisfy the requirement of reproducing wording typical of the status civitatis – which entails not only rights but duties expressing values of solidarity with the national community to which the citizen belongs – rather than to provide an actual description of the substance of citizenship of the Union. Indeed, it is not possible to identify with certainty either in Part two of the EC Treaty or in other provisions of the EC or EU Treaties any duties to which citizens of the Union are subject. The picture is the traditional one peculiar to international instruments on human rights71, which are designed to circumscribe the powers of the State thereby obtaining areas of freedom for the individual, rather than to configure the relationship between the individual and the State as a set of reciprocal rights and duties. In particular, it does not seem possible to conceive of duties vis-à-vis the Union of this sort to which the citizen is typically subject vis-à-vis his or her own State, such as the duty of allegiance72 and the duty of defence. Neither does it seem that the status of citizen of the Union may be supplemented in terms of duties in the short term by means of Art. 22 EC,

70 In Case C-456/02 Trojani [2004] ECR I-7573, the Court of Justice held that a national of a Member State who did not fall within one of the traditional categories provided for in the Treaty as qualifying for freedom of movement and residence, was entitled to rely on Arts 17 and 18 EC merely because he was lawfully resident in the host Member State, having been issued with a residence permit. As a citizen who had exercised the right to move and reside, the person concerned fell within the field of application of the Treaty and had the right not to be discriminated against on grounds of nationality when it came to the grant of the minimum sub-sistence allowance (‘the minimex’). In a subsequent judgment in Case C-209/03 Bidar [2005] ECR I-2119, the Court of Justice held that where a student who is a Union citizen moves to another Member State to study, he or she exercises the right of free movement under Art. 18 EC and hence is in a situation within the scope of Community law and entitled not to be discriminated against on grounds of nationality.

71 For the way in which protection of human rights by international instruments has been coupled with the protection originally provided for in some national legal systems, see recently B. Nascimbene, L’individuo e la tutela internazionale dei diritti umani, in S.M. Carbone, R. Luzzatto, A. Santa Maria (eds), Istituzioni di diritto internazionale (Giappichelli, Torino, 3rd ed., 2006) 369 ff.

72 For a somewhat different view, see V. Cuocolo, supra (note 35) 667.

19


which provides only for the definition of new rights and has nothing to say about duties.73 This picture is backed up by the Charter of fundamental rights of the European Union, which merely lists rights of persons (and of European citizens), without mentioning duties, except in the Preamble where, in a general form of words without any echo in the rest of the Charter, it is declared that “Enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations”.

Whilst it is true that the absence of any provision on duties means that, not unlike the situation with regard to its normative description as a “list” of rights, Union citizenship is an imperfect, or at least incomplete and to some extent unsatisfactory, concept,74 it is equally true that the ultimate reason for that “imperfection” is to be found in the characteristics of European integra-tion. Those characteristics are such that it is not possible to portray the Commu-nity (or the Union) as an entity with the specific characteristics of a State and as such capable of permitting the creation of that legal and political link of which the situation of subjection of individuals belonging to that entity constitutes a fundamental component.

The proposals designed to codify a number of duties of citizens of the Union,75 such as the duty to respect the laws of the State of residence, other people’s cultural identity and the duty of solidarity, would not, however, have been sufficient to characterise the position of the citizen of the Union as such, since it would ultimately come down to the general duty to comply with the law.76

1.7 The right of movement and residence. The traditional conceptBy virtue of Art. 18 EC, every citizen of the Union has the right to move and reside freely within the territory of the Member States, subject to the limita-tions and conditions laid down in the Treaty and by the measures adopted to give it effect.

73 B. Nascimbene, supra (note 16) 246 ff.74 See J. Pertek, Droit des institutions de l’Union européenne (PUF, Paris, 2nd ed.,

2006) 71.75 See the opinion of the Commission of 21 October 1990, EC Bull. (1991) Suppl.

2.76 For other observations about the absence of duties peculiar to the status of citizen of

the Union, see R. Adam, supra (note 33) 629 ff.; H.U. Jessurun D’Oliveira, Union Citizenship: Pie in the Sky?, in A. Rosas, E. Antola (eds), A Citizens’ Europe. In Search of a New Order (SAGE, London, 1995) 58 ff.; V. Lippolis, supra (note 36) 47 ff.; U. Villani, supra (note 16) 1011 ff. As against this, see, F. Menegazzi Munari, Cittadinanza europea: una promessa da mantenere (Giappichelli, Torino, 1996) 165 ff., who does not rule out the existence of binding duties.

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Of the list of rights going to make up the status of citizen of the Union, the right of free movement and residence in all of the States of the Union con-stitutes the most relevant and characteristic right, also because it is basically through the exercise of that right that nationals of Member States place them-selves in circumstances of Community relevance, which is the precondition for the exercise of other rights appertaining to citizenship of the Union.77 All previous efforts aimed at introducing rules on European citizenship78 covered, first of all, the right to freedom of movement, which moreover was already pro-vided for by Community law and constituted one of the fundamental freedoms enshrined in the EC Treaty. Provision of freedom of movement tout court, as an essential characteristic of the concept of citizenship of the Union, inevitably raises the right of residence, which has always been regarded as a right inherent in the status of citizen, since its justification lies in the individual’s membership of the State as a community.79

As for identifying the beneficiaries of the right in question, Art. 18 EC does not appear to be exhaustive, since it is possible to conceive of situations in which the right of movement and residence is conferred by the Treaty, by provisions of secondary Community law or by international agreements also on nationals of non-member countries: this is true of members of the family of a citizen of the Union and of nationals of non-member countries which are parties to association agreements with the Community. In any event, these are exceptional cases in which the right, in the first case, is closely derived from that of the citizen of the Union and, in the second, conferred to a varying degree by the agreement in question.

It has already been seen that freedom of movement (and of residence) of persons has always been a fundamental freedom guaranteed by Community law and, in particular, already by the provisions of the EEC Treaty. Art. 3(c) EC provides – as a means of attaining the broad objectives of Art. 2 – for the establishment of an internal market characterised by the abolition, as between Member States, of obstacles to, in particular, the free movement of persons, thereby reflecting the essentially mercantilist standpoint which was dominant in initiating European integration in the years in which the founding Treaties were concluded. That objective, which is formulated in fairly broad terms, had to be pursued, however, “as provided in [the] Treaty” (see Art. 3(1) EC).

From this point of view, not unlike free movement of goods, capital80 and services, free movement of persons had an exclusively economic connotation.

77 See part. 5, supra, in fine.78 See part. 1, supra.79 See B. Nascimbene, Lo straniero nel diritto italiano (Giuffrè, Milano, 1988) 12

ff.80 The location of the provisions on payments and capital movements within the

framework of the fundamental freedoms, alongside the free movement of persons

21


Consistently, under the original system of the Community or the Treaty estab-lishing the European “Economic” Community, those who qualified for the free-dom to move and stay in the territory of the Member States were employed workers (Art. 48 EEC, now Art. 39 EC) and self-employed persons, the latter either if they exercised that right in order to establish themselves permanently in the territory of a Member State other than the State of which they were nationals and pursued their activity there (right of establishment: Art. 52 EEC now Art. 43 EC) or if they availed themselves of the right in order to exer-cise it occasionally in a Member State other than the one in which they were established (freedom to supply services: Art. 59 EEC now Art. 49 EC). The conception of free movement of persons as a component of the internal market meant that it was inevitable for it to be construed as a right derived from Com-munity law connected with the pursuit of an economic activity and, therefore, conferred on employed and self-employed persons either where they intended to establish themselves in a Member State other than their own (Art. 42 et seq. EC) or where they went to another Member State in order to provide services (Art. 49 et seq. EC).

Freedom of movement of factors of production in the large market com-prising the sum of the individual domestic markets of the Member States on the basis of similar if not identical conditions to those which obtain in a single national market therefore constituted the first factor in unifying a Community which was still “economic”, marking out its breadth as compared with classic customs unions.81

Consequently, free movement of persons was subject to a limit – even before the specific provisions which permitted it to be precluded on grounds of

and services and the right of establishment, is indicative of their functional nature. On the one hand, the free movement of capital contributes towards the integration of the national markets into the internal market and, on the other, it constitutes a condition for achieving freedom of establishment. In the latter respect, the follow-ing cases are fairly explicit: Case 203/80 Casati [1981] ECR 2595, para. 8, and, more recently, Case C-367/98 Commission v Portugal [2002] ECR I-4731; Case C-483/99 Commission v France [2002] ECR I-4781; Case C-503/99 Commission v Belgium [2002] ECR I-4809. They all concern national rules on “golden shares”, which States retain when they privatise undertakings. The Court of Justice held that (with the exception of the Belgian rules) the legislation at issue entailed restric-tions on the free movement of capital and, as a result, indissociable obstacles to freedom of establishment. Such provisions may be justified only if they pursue an objective of general or strategic interest, if the measures provided for are based on precise criteria which are known in advance and susceptible of judicial review and if those measures may not be replaced by less restrictive ones.

81 A. Tizzano, La libera circolazione dei servizi nella CEE. Profili generali, in A. Tizzano (ed.), Professioni e servizi nella CEE (Cedam, Padova, 1985) 2.

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Chapter I

public policy, public security or public health82 – in terms of the sphere of the beneficiaries of the right, since it was restricted to persons carrying out an eco-nomic activity. In the early days of the Community, distinguishing the category of persons entitled to exercise freedom of movement as guaranteed in one of its various forms by the EC Treaty from those who were not so entitled, appeared to be a sufficiently clear-cut operation, at least from the conceptual point of view. Economic operators were the beneficiaries of the Community freedoms; such rights were not conferred on other persons, except through the status of members of the family of a person who was economically active and, in any event, even in that case subject to major limitations.83 The intensification of the integration process and the change in its objectives resulted in a widening of the beneficiaries of the provisions on free movement of persons in parallel with the attenuation of the rigidly “economic” conception of the Community.

Notwithstanding the fact that the Treaty provisions dealing with the three categories of beneficiaries of the right of free movement and residence were set out in three separate chapters of a single title and differed to some extent as regards their content on account of the different obstacles which had to be eliminated in order to guarantee effective enjoyment of the rights granted by the Treaty, the Court of Justice developed a more or less uniform interpretation of the substance of free movement of persons. The result was that it was suf-ficient to be classed as an employee, a self-employed person or a service-pro-vider to enjoy substantially identical treatment.84 This is particularly obvious in the case of the limits to free movement, which are interpreted uniformly, even at the cost of ignoring their different wordings.85 The Community legislator itself accentuated this unitary approach through continual cross-references in secondary legislation intended to give effect to the Treaty.

The extension of those entitled to exercise free movement emerged as a result of both Community case-law and a number of pieces of legislation.

The Court of Justice effected that extension, not only by giving a broad interpretation of the concept of “worker”, but above all by including in the category of beneficiaries of freedom to supply services, recipients of services86

82 See Arts 48(3), 56(1) and 66 EEC and Council Directive 64/221/EEC of 24 Febru-ary 1964, OJ English Special Edition, Series I, Chapter 1963-1964, 117; see also part 8, infra.

83 See Ch. II, part 6, and Ch. IV, part 4.84 For the requirement for a standard interpretation of the various Treaty provisions

on free movement of persons, see Case 48/75 Royer [1976] ECR 497, para. 12.85 See Ch. II, part 12; Ch. III, part 14; Ch. IV, part 10.86 See Case 118/75 Watson and Belmann [1976] ECR 1185; Joined Cases 286/82 and

26/83 Luisi and Carbone [1984] ECR 377, para. 16. For the various ways in which services may be provided, see Ch. IV, part 3.

23


– even including tourists87 – as well as service-providers themselves, thereby creating a general right of access to the territory of the Member States on the part of Community nationals. The Court held that the right to enter and to reside was vested in virtually anyone who could show a valid identity card or passport at the border – regardless of whether or not they were engaged in an economic activity –, since the Member States are not permitted to check at the border whether a Community citizen falls within the scope of Community law and is hence an employed person or a self-employed person intending to establish himself or herself in the country of destination or intending to provide services there.88

The weakening importance of the economic dimension necessary to exer-cise free movement of persons also emerges from secondary legislation, in particular Council Directive 90/364/EEC of 28 June 1990 on the right of resi-dence89. That directive conferred the right to enter and reside on all Community nationals who did not enjoy this right under other provisions of Community law, provided only that they had sufficient resources and were covered by sick-ness insurance. The right to enter and reside is also subject to the same condi-tions in the case of students and employees and self-employed persons who have ceased their occupational activity.90 However, as far as those persons are concerned, the legislation is less innovative, since, in identifying the beneficia-ries, it is does not completely leave out of account their performance of an eco-nomic activity (in the future or in the past).91 The legal basis chosen was Art.

87 Case 186/87 Cowan [1989] ECR 195, para. 15.88 See Case 321/87 Commission v Belgium [1989] ECR 997, paras 11-15; Case C-

68/89 Commission v Netherlands [1991] ECR I-2637, paras 10-13. For a discus-sion, see B. Nascimbene, Soggiorno dello straniero in Italia e diritto comunitario, Rivista di diritto internazionale (1979) 353; A. Tizzano, supra (note 81) 43 ff.; D. O’Keeffe, The Free Movement of Persons and the Single Market, E.L. Rev. (1992) 3; L.S. Rossi, I beneficiari della libera circolazione delle persone nella giurisprudenza comunitaria, Foro italiano (1994) IV, 97.

89 OJ L 180, 13/7/1990, 26.90 Council Directive 93/96/EEC of 29 October 1991, OJ L 317, 18/12/1993, 59, and

Council Directive 90/365/EEC of 28 June 1990, OJ 1990 L 180, 13/7/1990, 28. See also Case C-424/98 Commission v Italy [2000] ECR I-4001, in which the Court of Justice held to be incompatible with Directive 96/93/EEC a provision of Italian law which required Community students to have resources of a specific amount and did not leave them a choice between a declaration or alternative means of proof.

91 The inclusion of students in the class of non-economically active persons leaves one somewhat perplexed since students are recipients of services in the broad sense of the expression and it therefore does not seem impossible to equate them with beneficiaries of freedom to supply services in like manner to tourists: see A. Mattera, “Civis europaeus sum”. La libertà di circolazione e di soggiorno dei

24

Chapter I

235 EEC (now Art. 308 EC) for the directives on the right to reside and retired persons and Art. 7 EEC (now Art. 12 EC) for the directive on students.92

The choice of Art. 235 EEC and the reference in the preamble to the estab-lishment of the internal market provides an indication of the potential of the Treaty prior to the changes made by the Treaty of Maastricht: a connection between free movement of persons and the internal market, even if only indi-rect, had still to be present in order for the institutions to be able to broaden by secondary legislation the class of beneficiaries of the right to enter and reside. The link with the traditional core of freedom of movement of persons is very clear in any event even if only in the light of the fact that the rules on require-ments for entry, residence and removal are the same as those already laid down for employed or self-employed workers.

I.8 The right of movement and residence appertaining to citizenship of the Union

The most innovative aspect of the right of free movement and residence attach-ing to citizenship of the Union lies in the fact that the only condition having to be satisfied in order to qualify for that right is that of citizenship of the Union without any economic connotation whatsoever. This completes a pattern which was effectively represented by the elimination of the adjective “economic” from the name of the principal European Community.93 Since the category of beneficiaries of freedom of movement had already been enlarged before the Maastricht Treaty, the innovation obviously did not immediately herald major practical consequences,94 although it is not without importance that the prin-ciple is enshrined in primary Community law, thereby providing a sound legal

cittadini europei e diretta applicabilità dell’articolo 18 (ex articolo 8A), Diritto dell’Unione europea (1999) 431.

92 The right to reside in the case of students was initially governed by Directive 90/366/EEC, which, in common with the other directives adopted on the same date, was based on Art. 235 EEC. The Court of Justice annulled that directive on the ground that the wrong legal basis had been chosen (Case C-295/90 European Parliament v Council [1992] ECR I-4193). Directive 93/16/EEC is based on Art. 12 EC in line with the decision of the Court.

93 Throughout the EC Treaty the expression “European Community” replaces the expression “European Economic Community” as a result of Art. G(A)(1) of the Maastricht Treaty, which points, also terminologically, to the fact the initial “func-tional” approach of the Treaty has been superseded (see L.S. Rossi, I cittadini, in A. Tizzano (ed.), Il diritto privato dell’Unione europea [Giappichelli, Torino, 2nd ed. 2006] Vol. I, 97).

94 U. Villani, supra (note 16) 1014 ff., who takes the view that Art. 18 merely con-firms the legislative framework described; M. Cartabia, supra (note 27) 6.

25


basis for any subsequent legislation designed to give effect to it.95 The ques-tion has been raised in academic writings as to whether, in conferring on every citizen of the Union the right to move and reside freely in the territory of the (other) Member States, Art. 18(1) is a provision with direct effect and, as such, capable of being relied upon directly before national courts and of preventing the application of conflicting national provisions. Some doubt is justified by the fact that the right is not formulated in absolute terms, since it is stated to be “subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect”.96 On the basis of the consideration that the “limitations and conditions” to which the provision is subject may at the most affect the forms and methods of exercising the right to move and reside, but not the fact that entitlement is vested in the citizens of the Union, the prevalent view taken in academic writings is that Art. 18(1) has direct effect.97

95 As has already been pointed out, the 1990 directives on the right of residence and the right of residence of retired persons were based on Art. 235 EEC (now Art. 308 EC). See in this connection R. Adam, supra (note 33) 637; U. Villani, supra (note 16) 1015.

96 Art. 45(1) of the Charter of fundamental rights of the Union (just as Art. II-105(1) of the European Constitution) does not contain that limitation on the right to move and reside. However, even if we ignore the lack of binding legal force of the provi-sions of the Charter, Art. 45 could not have a wider scope than Art. 18(1) EC given that Art. 52(2) of the Charter (and Art. II-112(2) of the European Constitution) provides that rights recognised by the Charter which are based on the Community Treaties “shall be exercised under the conditions and within the limits defined by those Treaties”: see L.S. Rossi, supra (note 61) 119; more generally with regard to the difficulties of interpreting the so-called horizontal provisions, like Art. 52, see P. Manzini, La portata dei diritti garantiti dalla Carta dell’Unione europea: problemi interpretativi posti dall’art. 52, in L.S. Rossi (ed.), Carta dei diritti fon-damentali, supra (note 61) 127 ff.; R. Mastroianni, Il contributo della Carta euro-pea alla tutela dei diritti fondamentali nell’ordinamento comunitario, Cassazione penale (2002) at 1880. With regard to the combined provisions of Arts II-112, II-105 and I-10 of the Constitution, see the commentary of J.P. Jacqué on Article II-105, L. Burgorgue-Larsen, A. Levade, F. Picod, supra (note 63) at 574.

97 See, also for the different scope attributed to the provision with some arguing that Art. 18(1) does not permit the limits imposed by the Treaty on free movement to be exceeded and others that those limits have already been superseded at least in part, R. Adam, supra (note 33) 641; D. O’Keeffe, supra (note 57) p 124 ff.; A. Mattera, supra (note 91) 431 ff.; A. Adinolfi, supra (note 42) 49; D. O’Keeffe, P. Bavasso, Fundamental Rights and the European Citizenship, in M. La Torre (ed.), European Citizenship. An Institutional Challenge (Kluwer law international. The Hague, 1998) 94; D. Simon, La citoyenneté européenne, Cah. dr. eur. (1993) 298.

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Chapter I

Responding to suggestions made in Advocate Generals’ Opinions,98 the Court of Justice held that Art. 18(1) had direct effect by substantially repro-ducing the interpretative paradigm which it had used in the past in order to recognise the direct effect of the Treaty provisions on freedom of establish-ment99 and freedom to supply services,100 albeit with the addition of references to secondary Community law. After finding that the substance of Art. 18(1) EC was “clear and precise”, the Court of Justice held that provision could be relied on before national courts, albeit recognising that the right to move and reside is conferred by the Treaty subject to the limitations and conditions laid down in the EC Treaty and in implementing provisions. However, those limitations and conditions, which are amenable to judicial review, cannot prevent the right conferred by the Treaty from being protected by the national courts.101

Even in the light of the judgment in Baumbast, it is impossible to agree with the contention that Art. 18(1) has the effect of abrogating the 1990 direc-tives on residence,102 since Art. 18 lacks any reference to effects on the previous rules and, indeed, those directives may be regarded as being referred to, as will be seen, by the expression “limitations and conditions” to which Art. 18(1) subjects the exercise of freedom to move and reside.

In conferring freedom of movement and residence on citizens of the Union, Art. 18(1), according to its literal wording, seems to leave out of account, not only any connection with pursuing an economic activity, but also with having the nationality of a Member State other than that of the State in which the indi-vidual concerned intends to move and reside freely. Indeed, according to the wording of Art. 18(1), the right enshrined therein seems to be able to asserted

98 See, above all, the Opinion of Advocate General A. La Pergola in Case C-85/96 Martínez Sala [1998] ECR I-2691, particularly at para. 18, and the Opinion deliv-ered shortly after by Advocate General F.G. Jacobs in Case C-274/96 Bickel and Franz [1998] ECR I-7637, particularly at para. 20 ff.

99 Case 2/74 Reyners [1974] ECR 631. For the right of establishment, see Ch. III.100 Case 33/74 Van Binsbergen [1974] ECR 1299 and Case 41/74 Van Duyn [1974]

ECR 1337. For freedom to supply services, see Ch. IV.101 Case C-413/99 Baumbast [2002] ECR I-7091. In that case, Mr Baumbast, a

German national, had resided with his family in the United Kingdom, where he had worked as an employee and, later, as a self-employed person. Mr Baumbast was taken on by German companies and worked in non-member countries, but his family continued to reside in the United Kingdom. When their residence per-mits expired, the British authorities refused to renew them on the ground that Mr Baumbast no longer fell within the field of application of Community law, since he was not a worker in a Member State other than his own and did not satisfy the requirements for the application of Directive 90/364/EEC. The Court held that he had the right to reside in the United Kingdom on the basis of Union citizenship alone.

102 C. Stephanou, supra (note 33) 38.

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also vis-à-vis the individual’s own Member State. If that interpretation were to be accepted, the aforementioned traditional limit to the application of Com-munity law represented by purely internal situations would be rendered nuga-tory.103 If that interpretation were to be followed, a citizen could rely on the freedom of movement and residence guaranteed by the Treaty also against his or her own Member State and could not be required to be involved in situations of Community relevance – or in any event not exclusively national relevance – other than the fact that he or she was a citizen of the Union. This would make citizenship of the Union the very factor of Community relevance capable of triggering the application of Community provisions and the constraint of purely national situations could not be said to have been superseded. To put it simply, freedom of movement and residence throughout of the area of the Union would fall within the competence of the Community legal order for every citizen in so far as he or she was involved in a situation (namely citizenship of the Union) which was relevant to that legal order. A preliminary question on this matter was referred to the Court of Justice with regard to a claim of a British national who sought to pray in aid Art. 18(1) EC in order to avoid restrictions on his freedom of movement within the United Kingdom which had been imposed by his own government.104 The Court was unable to rule on this question since the order for reference was revoked by the national court. Above and beyond the merits of the case, in which the raison d’être for the restrictions at issue was public security, the principle of law in question was precisely that of the appli-cability of Art. 18 in a purely internal situation.105 It has already been pointed that, in order to apply rights deriving from citizenship of the Union, it is neces-sary – in common with every other right conferred by the Community order – that the actual circumstances fall within the substantive scope of the Treaty, and hence there has to be a factor connecting it with the Community. Failing this, the case is purely national and it is precisely the ancillary nature of Union citizenship with respect to the nationality of the Member State to which the

103 The case-law on purely internal situations is part of a consolidated approach: see B. Nascimbene, Il trattamento dello straniero nel diritto internazionale ed europeo (Giuffrè, Milano, 1984) 409 ff., to which reference is also made for the case-law which has subsequently been confirmed by more recent pronouncements. For a discussion and further bibliographical references, see E. Cannizzaro, Esercizio di competenze comunitarie e discriminazioni “a rovescio”, Diritto dell’Unione euro-pea (1996) 351. See also Ch. II, part 4, Ch. III, part 4, and Ch. IV, part 2. See more recently C. Sanna, Articolo 12, in A. Tizzano (ed.), supra (note 16) 235.

104 See Case C-229/94 Gerry Adams, OJ C 275, 1/10/1994. The Court did not have the opportunity to give a ruling, since the case was removed from the register.

105 See S. Douglas-Scott, J.A. Kimbell, Adams Exclusion Order Case: New Enforce-able Civil Rights in the Post-Maastricht European Union?, Public Law (1994) 516.

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Chapter I

citizen of the Union belongs which ensures that such a situation is governed exclusively by national law.

In the cases in which the Court of Justice has held that a person could rely on the rules on Union citizenship as against his or her own Member State, there was, however, that Community connecting factor already required by the pre-ceding case-law.106 That factor may even consist in the fact that the person who availed himself or herself of the right to free movement was a person other than the one relying on Art. 18 EC, provided that the movement affected unfavour-ably the legal situation of the person who remained in his or her home State: this suffices to bring the applicant’s situation within the field of application of Community law.107

I.9 Limits and conditionsArt. 18 EC confers on citizens the right to move and reside freely within the ter-ritory of the Union “subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect”. The right to move and reside provided for in respect of all citizens of the Union is therefore subject to limitations and conditions of a variety of origins which were formerly appli-cable to all categories of beneficiaries as expressly provided for in the Treaty or in secondary legislation (workers, persons exercising the right of establish-ment, providers of services, students and so on).108 The Treaty therefore does

106 For a case in which a national relied on the rules on Union citizenship against her Member State of origin, see Case C-224/98 D’Hoop [2002] ECR I-6191.

107 See Case C-403/03 Schempp [2005] ECR I-6421. In this case, a German national resident in Germany relied on the provisions on citizenship in order to contest German legislation which did not allow him to deduct tax from maintenance pay-ments made to his former wife, who lived in Austria. The Court held that “the exercise … by Mr Schempp’s former spouse of her right to move and reside freely in another Member State under Article 18 EC was such as to influence her former husband’s capacity to deduct the maintenance payments made to her from his tax-able income in Germany” and hence that that situation could not be regarded as an internal situation with no connection with Community law.

108 D. O’Keeffe, supra (note 57) 124 ff. argued, on the contrary, that Art. 18 seemed to permit the entry and residence of Union citizens notwithstanding any require-ment as to their resources and sickness insurance, thereby transcending even the most significant limitation arising out of Directive 90/364/EEC. That argument, which conflicts with the interpretation of Art. 18 posited in the body of this work, seems, however, to have been rejected by the Court of Justice, specifically in Case C-413/99 Baumbast [2002] ECR I-7091 and more recently also in Case C-456/02 Trojani [2004] ECR I-7373, where it was held that the Member States may make residence on the part of a Union citizen who is not economically active dependent upon his or her having sufficient resources (Art. 1 of Directive 90/364/EEC). But this may not give rise to the inapplicability of Art. 12 EC and hence of the right

29


not expressly lay down any limitation on the free movement of citizens of the Union as such, but renders applicable the limitations and exceptions laid down for beneficiaries of that freedom by virtue of their status other than that of citizen.

The reference to the provisions of the Treaty render applicable to free movement within the meaning of Art. 18 the limitations on grounds of public policy, public security and public health which Arts 39(3), 46(1) and 56 of the Treaty indicate in respect of freedom of movement of employed and self-employed persons who intend to set up an establishment or provide a service. Since those provisions have been implemented by Council Directive 64/221/EEC of 23 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, there is no reason for refusing to apply the provisions of that directive as interpreted by the Court of Justice also to the freedom to move and reside of citizens of the Union.109 There is no doubt that, as of 30 April 2006, the limitations set out in Chapter VI (limitations on the right of entry and residence on grounds of public policy, public security or public health) of Directive 2004/38/EC of 29 April 2004 on the right of citi-zens of the Union and their family members to move and reside freely within the territory of the Member States110 apply to the movement and residence of citizens of the Union. The new directive was adopted for the very reason that it was necessary in order to overcome the fragmentation of the pre-existing legislation dealing separately with workers, self-employed persons, as well as students and other inactive persons (see the third recital in the preamble to the directive) in order to have uniform rules on the entry, residence and removal of citizens of the Union.

to equal treatment so long as the person concerned is in possession of a residence permit which makes his or her presence within the territory of the host State lawful (see para. 40).

109 About the directive and the interpretation in the case-law of the limitations of public policy, public security and public health, see B. Nascimbene, Trasferimento e soggiorno delle persone, in A. Tizzano, supra (note 81) 106 ff. See more recently L. Daniele, I limiti alla libera circolazione: gli impieghi nella pubblica ammin-istrazine e l’ordine pubblico, in B. Nascimbene (ed.), La libera circolazione dei lavoratori. Trent’anni di applicazione delle norme comunitarie (Giuffrè, Milano, 1998) 76 ff. See also Ch. II, part 12, Ch. III, part 14, and Ch. IV, part 11.

110 OJ L 158, 30/4/2004, 77. By virtue of Art. 38 of the new directive, Directive 64/221/EEC is to be repealed two years after the entry into force of Directive 2004/38/EC, which occurred, by virtue of Art. 40 thereof, on the day of its publica-tion in the Official Journal of the European Union.

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Chapter I

Exercise of the right to move and of the right to reside is conditional upon the general requirement for possession of a valid identity card or passport.111 The Court of Justice has made it clear that this obligation is not rendered nuga-tory by the provision of a right of movement and residence directly conferred on citizens of the Union, since the Member States retain the right to carry out identity checks at the internal frontiers of the Community in order to be able to establish whether the person concerned is a national of a Member State or a national of a non-member country, not having the right to move or reside. This will be the case at least as long as there is no full harmonisation of national legislation on controls at external frontiers and policy on immigration, visas and asylum.112

Whereas for the purposes of exercising the right of free movement, no fur-ther formalities are required other than possession of a valid identity document, additional formalities are needed as a result of Community secondary legisla-tion in order to exercise the right to reside for more than three months. For instance, there are the conditions imposed by Directives 90/364/EEC, 90/365/EEC and 93/96/EEC which grant to economically inactive persons to exercise the right to reside, essentially in order to avoid their presence within the ter-ritory of a Member State other than their own potentially becoming a burden for social assistance in the host country. In particular, persons with an income have to have sufficient resources and to be covered by sickness and maternity insurance; retired persons have to have a pension and sickness insurance; stu-dents have to be enrolled on a course of vocational training and have sufficient resources and sickness and maternity insurance.

The availability of sufficient resources and the existence of sickness insurance cover are requirements designed to satisfy legitimate interests of the Member States, which are concisely described in the fourth recital in the pre-amble to Directive 90/364/EEC, according to which the right of residence must

111 This requirement was set out in Art. 3(1) of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (OJ English Spe-cial Edition: Series I Chapter 1968(II), 485) and by Art. 3(1) of Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services (OJ L 172, 28/6/1973, 14). Art. 3(1) of Directive 68/360/EEC was referred to by Council Directive 90/364/EEC of 28 June 1990 on the right of residence, Council Directive 90/365/EEC of 28 June 1990 on the right of residence for employees and self-employed persons who have ceased their occupational activity and Council Directive 93/96/EEC of 29 October 1993 on the right of residence for students. The same requirement is laid down for “Union citizens” by Art. 5(1) of Directive 2004/38/EC.

112 Case C-378/97 Wijsenbeek [1999] ECR I-6207, at paras 43-45. For this subject, see Ch. V.

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not become an unreasonable burden on the public finances of the host Member State. Such conditions still answer, however, to an “economic” logic of the market, according to which a person who moves to stay in another Member State is economically active and so does not constitute a “burden” for the host State or, at any event, has sufficient resources and cover to avoid him or her becoming such a burden because he or she has no productive activity. Yet this logic does not appear to be consistent with the development of Community integration as regards free movement of persons. In the first place, it is hard to square with the case-law, which has enlarged the category of recipients of services, and hence of economically active persons, to cover mere tourists and consumers,113 in as much as they are “natural” acquirers or recipients of ser-vices. Indeed, an economically inactive person who resides in a Member State other than his or her home State is, naturally, a consumer of goods or a recipient of services and, as such, a beneficiary of the right to reside on the same footing as any economic operator.114 Secondly, as the Court of Justice has held, “it is none the less the case that [subsequently] Union citizenship has been intro-duced into the EC Treaty and Article 18(1) EC has conferred a right, for every citizen, to move and reside freely within the territory of the Member States”.115 Citizenship must be held to have an effectiveness (effet utile) which enables the extent to which free movement was formerly afforded to be exceeded. From this point of view, to claim that a citizen of the Union should satisfy precisely the requirements as to resources and insurance laid down by the directives on so-called inactive persons is not compatible with the ultimate rationale of the new status of European citizen, namely integration of the peoples of the Member States, and this cannot be “downgraded” by economic considerations – which are certainly worthy of protection – rather the principles of reasonable-ness and proportionality must be respected. The most recent case-law seems – timidly – to be taking this approach. In Baumbast, the requirements for “suf-ficient resources” and “sickness insurance” were interpreted in the light of the principle of proportionality by identifying as their rationale the need to avoid

113 Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, Case 186/87 Cowan [1989] ECR 195, Case C-348/96 Calfa [1999] ECR I-11 and part. 7, supra.

114 In his Opinion in Case C-378/97 Wijsenbeek [1999] ECR I-6207, Advocate Gen-eral Cosmas rightly pointed out that the case where a person does not work but has an income and simply resides in a Member State other than his or her home State constitutes an economic interest from the point of view of Community law, since that person is bound to consume goods and benefit from services. From this point of view, the right of free movement which is conferred on almost everybody, even persons who do not carry out any activity, has an economic impact of relevance to the common market (note 73, at I-6244).

115 Case C-413/99 Baumbast [2002] ECR I-7091, para. 81.

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imposing an unreasonable burden on the host Member State and by consider-ing, by necessary implication, as acceptable any “reasonable” burdens con-nected with the exercise of freedom of movement by Community citizens.116 In any event, non-active citizens of the Union may claim, on an equal footing with nationals of the host State, social assistance benefits117 and student loans.118 This is conditional on their being lawfully resident within the territory of the host Member State and having a valid residence permit and it does not matter that Community law permits a Member State to remove from its territory a national of another Member State who has had recourse in the first Member State to social assistance, thereby showing that the person concerned does not satisfy the requirement of possessing sufficient resources.

It had already been pointed out in learned articles that the requirements laid down by the 1990 and 1993 directives on “inactive” persons, albeit justifi-able in the light of the need to avoid flows of migrants to the Member States offering the most generous support to the less well-off, were liable seriously to jeopardise the innovation that the rules on citizenship of the Union sought to achieve in the very area of freedom of movement.119

Albeit continuing to make the right to reside for more that three months in the case of students and “inactive” persons subject to their satisfying the requirements of having sufficient economic resources and sickness insurance cover,120 Directive 2004/38/EC seems to take account of the requirement of

116 Baumbast, para. 91. In particular, the fact that Mr Baumbast’s insurance did not cover emergency treatment was not regarded as being sufficient to exclude him from the benefit of the right to move and reside within the meaning of Art. 18 EC. The Court of First Instance, exhibiting a more rigid interpretation of the provisions of the directives on so-called “inactive” persons, had observed that the exercise of the right of free movement conferred on citizens of the Union was subject to the limitations and conditions provided for in secondary legislation from which it was clear that “persons ... who are not in active employment, must have sickness insur-ance in the host State” and that “the existence of sickness insurance is a condition ..., to which the exercise of the right of free movement is subject”: Case T-66/95 Kuchlenz-Winter v Commission [1997] ECR II-637, paras 47 and 48.

117 See Case C-456/02 Trojani [2004] ECR I-7373, where the benefit was minimum subsistence allowance (‘the minimex’) provided for in Belgian legislation.

118 See Case C-209/03 Bidar [2005] ECR I-2119 (and before that Case C-184/99 Grzelczyk [2001] ECR I-6193), where the Court of Justice expressly went beyond the cases of Lair and Brown (Case 39/86 Lair [1988] ECR 3161 and Case 197/86 Brown [1988] ECR 3205) by holding, also on account of the introduction of citi-zenship of the Union, that subsidised student loans fell within the field of applica-tion of the Treaty.

119 See B. Nascimbene, supra (note 16) 248. See, to substantially the same effect, R. Adam, supra (note 33) 639 ff.

120 See Art. 7(1)(b) and (c) of Directive 2004/38/EC.

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reasonableness and proportionality required by the Community case-law, since it prohibits Member States from laying down a fixed amount which they regard as “sufficient resources” and requires them to take account of the personal situ-ation of the person concerned.121

I.10 Measures implementing the right of movement and residenceArt. 18(2) EC provides that the Council, acting in accordance with the codeci-sion procedure referred to in Art. 251 (hence by a qualified majority vote),122 may “adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1”. From the procedural point of view, it should be noted that the situation is anomalous in that, whereas for the adoption of mea-sures giving effect to freedom of movement and residence recourse is to be had to the complex codecision procedure and hence the full involvement of the European Parliament, for the introduction of new rights intended to “add to” the status of citizen of the Union, there is merely non-binding consultation of Parliament. From the formal point of view, the difference is due to the fact that the implementation of Art. 18 is left to secondary Community law and the procedures for its production (including, precisely, codecision), whilst the provision of new rights intended to complete Part two of the Treaty is effected by primary law or by law equated therewith by means of provisions which the Council recommends the Member States to adopt in accordance with their respective constitutional procedures. It is a truism that under the present con-stitutional system of the Community and the Union all the mechanisms for amending the Treaties are still left exclusively in the hands of the Member States or, in their place, the Council.

The aim of “facilitating” the exercise of the rights of movement and resi-dence signifies, on the one hand, that failure to adopt measures to give effect to them cannot impose conditions on the exercise of those rights as appears from a

121 In any event, that amount may not be higher than the threshold below which nationals of the host Member State become eligible for social assistance or than the minimum social security pension paid by the host Member State: Art. 8(4) of Directive 2004/38/EEC.

122 In this respect, Art. 18(2) was amended by the Treaty of Nice. Formerly, measures to give effect to that article were adopted by the codecision procedure, but with the stipulation that the Council had to act unanimously “throughout this procedure”. Accordingly, the Nice Treaty put an end to an anomaly in the decision-making process in that generally Art. 251 involves a qualified majority vote in the Council. Moreover, the amendment enables measures giving effect to freedom of move-ment and residence of Union citizens to be adopted in accordance with the same procedure as Arts 40, 44 and 46 EC lay down for the adoption of measures giving effect to freedom of movement for workers, established persons and service-pro-viders.

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now consolidated interpretative practice of the Court of Justice.123 On the other hand, it can be inferred that identifying the limitations and conditions for the exercise of the rights referred to in Art. 18(1) EC cannot be left to the secondary law which the Council is to adopt in order to give effect to Art. 18(2).

Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States has as one of its legal bases Art. 18.124 As already stated, that directive is intended to lay down unitary rules on the right of entry and residence for citizens of the Union in view of the fact that citizenship of the Union, which is destined to become the fundamental status of Member State nationals, has the characteristic of overcoming the differences between the various classes of nationals who qualify for freedom of movement, thereby rendering anachronis-tic and superseded the fragmentation of the rules on entry and residence, and the limitations thereon, in a plurality of instruments of secondary law, which moreover often contained internal references, each relating to one category of beneficiaries (employed persons, self-employed persons, students, inactive persons), by means of which the scope ratione personae of the free movement of persons was extended. From the substantive point of view, the basic idea behind the proposal for a directive was to equate movement within the Union with merely changing one’s residence within a Member State.

In any event, the adoption by the Council of measures to give effect to Art 18(1) is made expressly dependent upon their being “necessary to attain” the objective of freedom of movement and residence. The provision, which was introduced by the Nice Treaty, embodies, specifically as regards freedom of movement and residence of citizens of the Union, the principle of subsidiarity which is already laid down generally by the second and third paras of Art. 5 EC for matters for which no exclusive competence exists. However, the proce-dure provided for in Art. 18(2) EC is “accommodating” compared with other specific powers of action which the Treaty may provide for the purposes of attaining freedom of movement and residence. The provisions in question are those which the Council may adopt in connection with the free movement of persons referred to in Title III of Part two of the Treaty (workers, established persons and services), and such measures as the Council is empowered to adopt under Art. 95 EC with a view to the attainment of the objectives of the internal market, which, in accordance with the definition set out in Art. 14, also include free movement of persons.

123 See Case 2/74 Reyners [1974] ECR 631, para. 26, which is to the same effect but refers to the right of establishment, the fulfilment of which had to be made easier by, “but not made dependent on, the implementation of a programme of progres-sive measures” provided for by the Treaty.

124 In addition to Arts 12, 40, 44 and 52 EC and hence all the provisions of the Treaty relating to the free movement of persons.

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The procedure provided for the introduction of measures with a view to facilitating the exercise of the right of free movement and residence, as gov-erned by Art. 18(2), is not applicable to provisions relating to passports, identity cards, residence permits or any other such document or to provisions on social security or social protection (Art. 18(3) EC). The Commission has interpreted this new provision introduced by the Nice Treaty as meaning that the aspects of freedom of movement concerned cannot be the subject of legislative measures, and has therefore not presented any proposals thereon. Yet it seems hard to conclude that the matters in question cannot be the subject of rules facilitating freedom of movement and residence. Instead it should be considered that, since such rules would serve to attain one of the aims of the Community and there is no specific power to act on account of the express exclusion contained in Art. 18(3), possible measures could be adopted under Art. 308 EC.

I.11 The citizen of the Union in the area of freedom, security and justice

Above and beyond “facilitating measures” within the specific context of Art. 18 EC, further intervention appears essential in order fully and effectively to achieve the freedoms guaranteed by that provision, even if it only serves that purpose indirectly. First, freedom of movement within the Member States requires a common policy on immigration from non-member countries to be framed so as to permit the adoption of uniform rules on crossing the Commu-nity’s external borders, including uniform rules on the right of asylum.125 That objective is certainly not covered by Art. 18 and it does not seem possible to achieve it using that legal basis alone. For some time, the Member States have sought to pursue it using other instruments, initially not Community measures in the strict sense and subsequently using fully “communitarised” instruments. Note should be taken in this connection of conventions such as the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at common bor-ders and the implementing Convention of 19 June 1990, which is now part of the Community legal fabric as of result of the Protocol integrating the Schengen acquis into the framework of the European Union, annexed to the EU and EC Treaties, and Title IV of the EC Treaty, entitled “Visas, asylum, immigration and other policies related to free movement of persons”. Title IV was added to the Treaty by the Treaty of Amsterdam.126

125 See expressly to this effect, Case C-378/97 Wijsenbeek [1999] ECR I-6207, para. 42.

126 For a fuller discussion, see Ch V.

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I.12 PoliticalsignificanceoftheconferralofelectionrightsonEuropean citizens

It is part of the constitutional experience of democratic States to confer on citizens the right to vote for and stand for election to the institutions which express, at various levels, their political will. In that context, status civitatis includes the subjective legal situation appertaining to the right to vote and the right to stand for election for public office.

In so far as the Community and the Union are based on the principle of democracy common to all the Member States127 and now enshrined expressly in Art. 6 EU, its full implementation required that the exercise of the funda-mental freedoms guaranteed by the Treaty, and in particular free movement of persons, should not detract from the principle of democracy by preventing or, at any event, making it more difficult for people effectively to participate in that which crystallises their status activae civitatis.

From another point of view and this serves directly to bring about full achievement of the internal market, the fact that citizens of another Member State could not vote or stand for election in the municipal elections of the Member State in which they resided or in European elections was tantamount to a limitation on the exercise of free movement in so far as it prevented Com-munity foreigners from becoming fully integrated into the host Member State. From that angle, the absence of electoral rights constituted discrimination on grounds of nationality, which, by affecting the exercise of freedoms guaranteed by the Treaty, appeared to conflict also with Art. 12 EC.128

Art. 19 EC confers on persons who are citizens of the Union by virtue of Art. 17 EC two different legal rights: (a) the right to vote and stand as a candidate in municipal elections in the Member State in which they reside, which serves more directly fully to integrate the foreign national into the local community and hence fully to affirm freedom of movement and (b) the right to vote and stand as a candidate in elections to the European Parliament in the Member State in which they are resident, which may be ascribed directly to the affirmation of the principle of democracy as a fundamental value of the process of European integration as reflected in the provisions on the composition of the European Parliament and in particular in Art. 189 EC. The plurality of “peoples of the States brought together in the Community”, which Art. 189 EC still takes for granted, is therefore attenuated to reflect an ideal unification129 which is to be achieved in particular through an electorate that can no longer be identified using the concept of national citizenship alone, since it is based on residence

127 Case 138/79 Roquette Frères [1980] ECR 3333; Case 139/79 Maizena [1980] ECR 3393; Case 817/79 Buyl [1982] ECR 245.

128 R. Adam, supra (note 33) 643; B. Jésus, Article 19, in P. Léger, Commentaire article par article des Traités UE et CE (Bruylant, Bruxelles, 2000) 239 ff.

129 M. Cartabia, supra (note 27) 8.

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in the Member State chosen by each individual, even if it is a Member State of which he or she is not a national.

The tie of residence seems even to prevail over that of EU citizenship, if we consider the Court of Justice conclusions concerning, respectively, Dutch and UK laws.130 The concept of “peoples” stated in Articles 189 and 190 is not clearly defined and may take different meanings depending on Member States and on the different languages of the European Union. United Kingdom, in particular, had granted – lawfully, according to the Court – the right to vote also to non-EU citizens who had stable ties with the territory and participated in national elections. However, the range of this judgment is not clear, consid-ering the specific nature of the issues to be examined, since on the one hand, it deprives EU citizenship of what had seemed one of its typical features, and on the other hand, opens a glimmer of light in favour of an enhancement of ties of fact (such as residence) for the purpose of right to vote attribution.

Both the rights referred to in Art. 19 have been taken up in the Charter of Fundamental Rights of the European Union, of which Arts 39 and 49 (Arts II-99 and II-100 of the European Constitution) reproduce Art. 19 virtually ver-batim except when, as we shall discuss later, it comes to the rights conferred by Art 19(1) and (2).

I.13 Participation in municipal electionsThe original, traditional approach to the process of European integration, as represented by the EC Treaty, excluded any form of involvement of Member State nationals in the political life or, at any event, the processes which help to manifest the sovereign will of another Member State, even it be the Member State in which they reside. In other words, a citizen from another Member State was a mere beneficiary of economic freedoms, which could be taken advantage of in accordance with the rule of national treatment. This attitude, which stems from a still prevalently mercantilist view of the European Community, is con-sistently reflected in the limitations which employees, established persons and service providers come up against with regard to activities which, since they entail manifestations of State sovereignty, are excluded from those activities which may actually be pursued in the host State (“employment in the public service” in the case of workers;131 activities connected “even occasionally” with the exercise of official authority in the case of the right of establishment and the supply of services132), since the host State may reserve them for its nationals alone.

130 Case C-145/04 Spain v United Kingdom [2006] ECR I-7917and Case C-300/04 Eman and Sevinger [2006] ECR I-8095.

131 See Art. 39(4) EC. For this aspect, see Ch. II, part 9.132 See Art. 45(1) and Art. 55 EC. For this aspect, see Ch. III, part 8, and Ch. IV, part

6.

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As far as conferring on foreigners the right to participate in local public life is concerned, Community law was less advanced than what some Euro-pean States allowed in their national legal systems unilaterally or through international agreements. On the one hand, there were cases in which the right to vote and stand in municipal elections was provided in relations between States belonging to homogeneous cultural areas on a reciprocal basis (United Kingdom and Ireland, Belgium and the Netherlands, and Portugal, but only as regards Portuguese-speaking countries). On the other hand, there was the Council of Europe Convention concluded on 5 February 1992 on the participa-tion of foreigners in public life at local level, Chapter C of which deals with the right to vote in local authority elections. It allows foreigners to vote in local authority elections proved that that they fulfil the same requirements as apply to nationals and have been lawfully and habitually resident in the State concerned for the five years preceding the elections. In both cases, however, the practical extension of the right was very limited. In the first case, the right to vote and stand for election was restricted only to nationals of States which had a cultural or linguistic affinity or were linked by major historical and social ties. In the second case, the Convention has been signed by few Member States of the Community and ratified by even fewer: Denmark, Finland, Italy,133 the Netherlands and Sweden. Moreover, under Art. 1 of the Convention it is pos-sible to enter a reservation in respect of Chapter C of the Convention on the right to vote, and the Italian Government did so at the time of depositing the ratification instrument.134

Overall, therefore, before the Maastricht Treaty introduced Art. 19 EC, it did happen that foreign nationals were given the right to vote or stand in local authority elections in Europe, but it happened to a very limited extent. Art. 19 EC extended the right to vote and stand as a candidate in municipal elections in the Member State of residence to all nationals of Member States. This provision of primary law merely imposes the rule of equal treatment with regard to the electoral rights of nationals of that Member State, leaving the “detailed arrangements” to be determined by secondary legislation, which is to be adopted by the Council, acting unanimously on a proposal from the Com-mission and after consulting the European Parliament. The express subordi-nation of the exercise of the right to the adoption of implementing measures (“This right shall be exercised subject to detailed arrangements”) has prompted some commentators to reach the conclusion that Art. 19 EC cannot have direct

133 See, for Italy, the implementing and ratifying Law No 203 of 8 March 1994, G.U. Rep. it. No 71 of 26 March 1994. For the problems created by conferring the right to vote on foreigners in the Italian legal system, see P. Bonetti, I principi, i diritti e doveri, le politiche migratorie, in B. Nascimbene (ed.), Diritto degli stranieri (Cedam, Padova, 2003) 85 ff.

134 See B. Nascimbene, supra (note 16) 246 ff.

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effect in the national legal systems,135 which is borne out by the fact that the arrangements in question may provide for derogations – and hence impose lim-itations on the right – warranted by problems specific to a Member State. In any event, by 31 December 1994136 the Council had adopted Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals.137

Art. 2 of the directive defines “municipal elections” as “elections by direct universal suffrage to appoint the members of the representative council … of a basic local government unit”. The basic local government unit for each Member State is defined in an annex to the directive. It has been observed that the right so conferred is substantially irrelevant for Community citizens given that poli-cies relating to foreigners are formulated at national and not at local level.138 However, that observation underestimates the importance which the exercise of the right assumes in point of the degree of integration into the local com-munity, above all as regards policies other than those expressly dealing with immigration and the circumstance of foreigners, which (in any event) have an effect on Community nationals’ presence in the host country. In any case, the treatment of foreigners who are nationals of Member States is substantially dependent upon Community rules, with the result that the principle of equal treatment precludes any discretion on the part of national, local, regional or State authorities.

Any residence requirements, grounds for being disqualified for standing for election and sources of incompatibility laid down in national legislation for citizens of the host Member State will also apply to Community citizens on the basis of the principle of equal treatment. Under Art. 5 of Directive 94/80/EC, Member States may provide that only their own nationals may hold the office of elected head, deputy or member of the governing college of the executive of a basic local government unit. This appears to be compatible with the res-ervation contained in the Treaty as to nationality (Art. 39(4) EC) in the case of activities connected with the exercise of powers conferred by public law and with the protection of general interests, to which the specific interests of local authorities such as municipalities must be assimilated.139 In legal systems in which the body representative of the basic local government unit helps to make up other constitutional bodies on which public law powers are conferred for

135 R. Adam, supra (note 33) 643 ff.136 The deadline set by Art. 19 EC in the version introduced by the Maastricht

Treaty.137 OJ L 368, 31/12/1994, 38.138 See H. Jessurun D’Oliveira (1994) Neth. Int. Law Rev. 58.139 See Case 149/79 Commission v Belgium [1980] ECR 3881 and Case 149/79 Com-

mission v Belgium [1982] ECR 1845.

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the protection of general interests, implementation of the directive necessitated constitutional reform. This happened in France where municipal elections have an effect on the election of senators to the Assemblée nationale.140

The possibility expressly provided for in the Treaty to introduce deroga-tions in respect of the right to vote and stand for election in accordance with the rule of national treatment where warranted by “problems specific” to the Member State in question resulted in Art. 13 of Directive 94/80/EC. Under that provision, where, on 1 January 1996 (the deadline for implementation of the directive in the Member States), in a given Member State, the proportion of citizens of the Union of voting age who reside in it but are not nationals of it exceeds 20 % of the total number of citizens of the Union residing there who are of voting age, that Member State may restrict the right to vote and to stand as a candidate to voters who have resided in that Member State for a minimum period.

The directive was duly implemented in all the national legal systems: Bel-gium was the last to do so by a law of 27 January 1999 after being found to have failed to fulfil its obligations by the Court of Justice.141

Art. 40 of the Charter of fundamental rights of the European Union states that every citizen of the Union has the right to vote and to stand as a candidate at municipal elections on the basis of equal treatment with nationals without providing for any derogation or conditions taking account of the specific situ-ation of any given Member State. From this point of view, the Charter differs significantly from the more detailed formulation of Art. 19 EC. As a result, should the principles set out in the Charter be held to be legally binding, there could be a problem relating to the compatibility of Directive 94/80/EC in so far as it introduces conditions and limitations relating to the exercise of the right to vote. In any case, since the right in question is “based on the Community Trea-ties”, in accordance with the Charter it has to be exercised “under the condi-tions and within the limits” defined in those Treaties and hence by the directive, and the unconditional wording of the Charter is not significant.

The incorporation of the Charter into the Treaty establishing a Constitu-tion for Europe did not result in any substantive changes to Art. 40 (which became Art. II-100 of the Constitution) and confirmed the systematic inversion of its location to which reference has already been made.

140 See Decision No 92-308 of 26 April 1992 of the Conseil constitutionnel, Rev fr. droit adm. (1993) 373. See M.F. Verdier, Le droit de vote et d’éligibilité des citoyens de l’Union européenne aux élections municipales. Nouvelle manifesta-tion concrète de la citoyenneté européenne, Rev. trim. droit eur. (1999) 59; M. Verpeaux, Article II-100, in L. Burgorgue-Larsen, A. Levade, F. Picod, supra (note 63) 516 ff.

141 See Case C-323/97 Commission v Belgium [1998] ECR I-4281.

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I.14 Participation in European electionsArt, 19(2) CE confers on citizens of the Union the right to vote and stand for election in elections to the European Parliament in the Member State in which they reside. This underscores the political link of participation of citizens in Community decision-taking and, accordingly, helps – even more than the right to participate in municipal elections – to bolster the significance of citizenship of the Union in political and legal terms. The possibility of being elected in a Member State other the State of which the citizen is a national fosters the idea of parliamentary mandates uncoupled from nationality, thereby assisting in enhancing the image of the European Parliament as an institution represent-ing the entire population of the Community and not of the individual national electorates.142 The same reasoning lies behind the fact that members of the European Parliament are organised into groups based on political affinity and not on nationality.143 Likewise, political parties at European level, whose role in expressing the political will of citizens of the Union is expressed by Art. 191 EC, are taking on a consistent transnational dimension.144

This is not, however, an absolute novelty in the spectrum of legislation of the Member States. A number of Member States already granted the right to take part in the election of members of the European Parliament to nation-als of other Member States voting in their State of residence even before the Maastricht Treaty. Italy (in common with the United Kingdom, but only as far as Irish nationals were concerned) conferred the right to vote in European elections on non-nationals.145 As in the case of the electorate for municipal elections, the right to vote and stand as a candidate in European elections in the Member State of residence is conferred subject to detailed arrangements and derogations warranted by problems specific to individual Member States.

142 See A. Pliakos, La nature juridique de l’Union européenne, Revue trimestrielle de droit européen. (1993) 194.

143 See Rule 29 of the Rules of Procedure of the European Parliament, provisional version (January 2007).

144 See the resolution of the European Parliament of 10 December 1996, OJ C 20, 20/1/1997. Art. 12(2) of the Charter of Fundamental Rights of the European Union declares that “Political parties at Union level contribute to expressing the political will of the citizens of the Union”, wording (badly) repeating that of the second sentence of Art. 191 EC. However, systematically speaking, the right to form political parties, at both national and European level, is not included in Chapter V on citizenship but in Chapter II on Freedoms, where it particularises freedom of assembly and association. The relevant provision was not altered when the Charter was incorporated into the European Constitution (Art. II-72).

145 Law No 9 of 18 January 1989 (G.U. Rep. it. No 18 of 23 January 1989) amending Arts 4 and 6 of Law No 18 of 24 January 1979 governing the election of repre-sentatives of Italy to the European Parliament (Gazzette Ufficiele della Repubblica italiana No 29 of 30 January 1979).

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Those detailed arrangements and derogations are left to a Council measure to be adopted unanimously after consulting the European Parliament.

A Member State may reserve to residents in its territory the right to par-ticipate in elections. However, if it extends this right to its nationals residing in third countries, the Member State cannot introduce a differentiation on grounds of residence place.146

Art. 19 EC, which entered into force with the Maastricht Treaty on 1 November 1993, required the Council to adopt the relevant legislation by 31 December 1993 with the obvious aim of enabling the right to be exercised as from the 1994 European elections. The Council adopted directive 93/109/EC laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals147 on time on 6 December 1993.

Under the terms of the directive, Community electors may chose to vote in the Member State in which they are resident or in their home Member State. The directive permits Community voters to stand as candidates for election to the European Parliament in the Member State in which they reside. Community voters are entitled to exercise their right to vote or stand as a candidate only in one Member State (Art. 4 of Directive 93/109/EC). Exercise of the right to vote is voluntary even in those Member States where it is compulsory to vote (Art. 8 of Directive 93/109/EC). Those provisions are the only ones designed to create uniform rules on the election of the European Parliament, since the remain-der of the directive essentially seeks to eliminate discrimination on grounds of nationality as regards the conditions for exercising the right to vote. Moreover, the legal basis of Art. 19 EC did not permit fuller harmonisation or standar-disation of the electoral rules. Indeed, Art. 190(4) CE provides for a uniform electoral procedure to be drawn up – and Art. 19 CE expressly provides that it is without prejudice to that provision – by means of a procedure which has a radically different institutional significance: the Council, acting on the basis of a proposal drawn up by the European Parliament and after obtaining the latter’s assent, has to make a recommendation to the Member States whose provisions are to be adopted in accordance with the latters’ respective consti-tutional requirements. If a more radical directive on European elections had

146 Case C-300/04 Eman and Sevinger [2006] ECR I-8055. In this particular case, Dutch nationals residing in Aruba – which though being part of Netherlands, under the Community law is not a territory to which the law applies, but rather one of the overseas countries and territories – did not have the right to vote, while instead this right was granted to Dutch nationals residing in any third country.

147 OJ L 329, 30/12/1993, 34.

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been adopted on the basis of Art. 19 EC, it would therefore have constituted an infringement of Parliament’s prerogatives guaranteed by Art. 190(4).148

To date, few nationals of the Union have chosen to vote in European elec-tions for candidates in their country of residence. Although the proportion of non-national EU citizens registered to vote in their Member State of residence raised form 5,9% in 1994 to 11,9% in 2004.149

Art. 39 of the Charter of fundamental rights of the European Union pro-vides that every citizen of the Union has the right to vote and to stand as a can-didate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State. In this case too, as in the case of municipal elections (see above), the provision in question seems to create an unconditional right which does not allow of derogations in view of conditions specific to Member States. However, such derogations are allowed under Art. 19 EC and specifically provided for in Art. 14 of Directive 93/109/EC. However, lack of uniformity of the rules of primary and secondary Community law will continue to obtain thanks to Art. 52(2) of the Charter.

It is worth pointing out that electoral rights for both the European Parlia-ment and municipal elections are located differently within the system of the Charter as compared with the Treaty. In the EC Treaty, the provisions on elec-toral rights follow those on freedom of movement and residence (Art. 18). In contrast, the Charter deals with electoral rights first, whilst free movement is left to the penultimate provision of Chapter V (Art. 45). The fact that the order is inverted is due to the desire to emphasise the political value of citizenship of the Union as an institution which legitimates the participation of the individual as a citizen, which is at the heart of the Union (see the preamble to the Charter), in the formation of the political will of the Union itself and its Member States.

As in the case of participation in municipal elections, the incorporation of the Charter into Part II of the Constitution did not result in any change in the relevant provision (now Art. II-99 of the Constitution) and therefore confirmed the value of the principle in question, since the provision is the opening provi-sion of Title V on citizenship.

I.15 The exercise of diplomatic protection by the Community for the benefitofcitizensoftheUnion

Art. 20 EC confers on citizens of the Union, in the territory of a third country in which the Member State of which he or she is a national is not represented, the

148 See U. Villani, supra (note 16) 1023. For the procedure provided for in Art. 190(4) EC, see, more recently, G. Carella, Articolo 190, in A. Tizzano (ed.), supra (note 16) 920 ff.

149 COM(2006)790 fin., Commission report on the participation of European Union citizens in the Member State of residence.

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right to “protection by the diplomatic or consular authorities” of any Member State on the same conditions as the nationals of that State.

Art. 20 EC calls to mind the classic institution of the diplomatic protec-tion of citizens, by virtue of which, provided that certain conditions are satis-fied, there is a right to protection from the State for its own nationals who have been harmed by the conduct of another State in breach of international law.150 Among the requirements which a State must satisfy in order lawfully to exercise diplomatic protection is that the individual in whose interest the State intervenes must be a national, although there are exceptional cases in which a State may exercise diplomatic protection in respect of non-nationals.151

The exercise of diplomatic protection by an international organisation is, in contrast, somewhat controversial, it being accepted instead in the form of the so-called functional protection of the organisation, where, as a result of the internationally unlawful conduct of a State to the detriment of one of the organisation’s officials, the international organisation suffers damage to its own institutional interests.152

In accordance with that approach, it is considered that the Community may act by way of diplomatic protection to safeguard its own interests, as, for instance, in the case of conduct of third countries resulting in injury to Com-munity officials.153

However, it cannot be inferred from the present state of development of general international law that the Community has the right to act to afford dip-lomatic protection vis-à-vis third countries which have damaged the interests of Member State nationals not connected with the Community by a relationship of service, but in a broad sense. The approach taken in the Community case-law does not appear at all consistent with the aforementioned rule of customary law.

150 Note among the best-known international precedents, the judgment of the Perma-nent International Court of Justice in the Mavrommatis Case CPJI Reports (1924) Series A/B, No 2, 12, and the subsequent judgment in The Panevezys-Saldutiskis Railway Case (1939) CPJ, Series A/B, 1939, No 76. As far as learned articles, apart from textbooks, are concerned, see recently L. Condorelli, La protection diplomatique et l’évolution de son domaine d’application actuelle, Rivista di diritto internazionale (2003) 5.

151 I. Brownlie, Principles of Public International Law (Oxford University Press, Oxford, 6th ed., 2003) 459; S. Bariatti, L’azione internazionale dello Stato a tutela dei non cittadini (Giuffrè, Milano, 1996) 38 ff., at 158 ff.

152 See the Advisory Opinion of the International Court of Justice of 14 April 1949, Reparation for Injuries Suffered in the Service of the United Nations (the Berna-dotte Case) in ICJ Reports (1949) 174. For a commentary, see B. Conforti, Le Nazioni Unite (Cedam, Padova, 7th ed., 2005) 115.

153 P. Pescatore, Les rélations extérieures des Communautés européennes: Contribu-tion à la doctrine de la personnalité des organisations internationales, RC (1961) II 218.

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In Adams 154 the Court of Justice did not deny that the Commission was under a duty to act to defend the applicant (who was not a national of a Member State) before the Swiss courts, where he had had criminal proceedings brought against him for having unlawfully disclosed to the Commission practices of a Swiss company which constituted an abuse of a dominant position; it merely rejected the accusation that the Commission had not so acted because it did not square with the facts. In a more recent judgment, the Court of First Instance dismissed a claim for damages for non-contractual liability based, inter alia, on an alleged infringement by the Commission of its duty to intervene actively with the author-ities of Guinea-Bissau to obtain the immediate revocation of an unlawful seizure of a vessel flying the Greek flag and its immediate release. In rejecting this plea, the Court of First Instance observed that, from the purely factual point of view, there was no reason to doubt that the Commission Delegation in Guinea-Bissau had “fulfilled ... its duty to provide diplomatic protection to the master [of the seized vessel] and the applicant”.155 The Court of First Instance therefore seemed to presuppose that there was a power/duty on the part of the Commission to act to afford diplomatic protection in the face of internationally unlawful conduct on the part of a third country vis-à-vis a citizen of the Union, which consisted in the case in question of violation of an international treaty concluded with the Com-munity. The judgment, which lacks any reasoning with regard to the legal pre-supposition underlying it, was welcomed by those who accept that the possibility to act to provide diplomatic protection stems from the fact that the Community has international legal personality under Art. 281 EC.156

The introduction of citizenship of the Union, with the resulting strengthen-ing of the legal/political link between the citizen and the Union – even though it is not yet sufficiently capable of evaluation in terms of its content – could afford arguments in support of the case-law which has just been discussed, which, as has been pointed out, seems to go beyond the rules which may be identified in the present state of development of general international law.157

I.16 Diplomatic protection of a citizen of the Union by a Member State of which he or she is not a citizen

With regard to the ability to construct a right to act by way of diplomatic pro-tection, Art. 20 EC does not seem in reality to make any significant contribu-

154 Case 53/84 Adams [1985] ECR 3595.155 Case T-572/93 Odigitria [1995] ECR II-2025, at para. 77.156 See C. Vedder, H.-P. Folz, A Survey of Principal Decisions of the European Court

of Justice Pertaining to International Law in 1995, European Journal of Interna-tional Law (1997) 519.

157 For the view that it is impossible to infer Union diplomatic protection of its own citizens from general international law, see F. Poirat, Article II-106, in L. Bur-gorgue-Larsen, A. Levade, F. Picod, supra (note 63) 579.

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tion. The provision does not have the aim of conferring on the Community as such an obligation to act by way of diplomatic protection vis-à-vis third coun-tries, since it merely provides for a general duty on the part of the diplomatic and consular representations of the other Member States to protect citizens of a Member State on an equal footing with their own nationals where the citi-zens’ own Member State is not represented in the third country. Instead, what is involved is “reciprocal protection” which the Member States have undertaken to provide,158 does not involve any action on the part of the Community in the field of international relations159 and is reminiscent of institutions already familiar in public international law, such as the delegated diplomatic protection provided for by the Convention on diplomatic relations (Vienna, 18 April 1961) and the Convention on consular relations (Vienna, 24 April 1963), which, how-ever, require the consent of the accrediting State.160

I.17 Methods of protecting non-citizensVirtually the entirety of the cases and ways in which a Member State will be bound to afford protection to citizens of other Member States which do not have a diplomatic mission in the third country in question have still to be deter-mined and are left, on the one hand, to agreements between the Member States, which may also act in the context of and using the legal forms provided by Title V of the EU Treaty (CFSP). On the other hand, the exercise of diplomatic protection by a Member State for the benefit of a citizen from another Member State seems to depend on the conclusion of appropriate international agree-ments with the third countries concerned,161 thereby implicitly confirming the importance of having the nationality of the State exercising diplomatic protec-tion.

Whereas agreements with non-member countries still have to be negoti-ated, the Member States are bound to grant diplomatic and consular protection to citizens of other Member States within the confines of the Decision of the Representatives of the Governments of the Member States meeting within the Council of 19 December 1995 regarding protection for citizens of the European Union by diplomatic and consular representations.162 Under Art. 5 of that deci-sion, the protection that Member States are bound to provide comprises assis-tance in cases of death, assistance in cases of serious accident or serious illness,

158 R. Adam, supra (note 33) 650.159 K. Lenaerts, P. Van Nuffel, R. Bray (eds), Constitutional Law of the European

Union (Sweet & Maxwell, London, 2nd ed., 2005) para. 12-011, 552.160 V. Starace, G. Carella, Rappresentanza (diritto internazionale pubblico), in Enci-

clopedia del Diritto, Vol. XXXVIII (Giuffrè, Milano, 1987) 506.161 D. Carreau, Droit international (Pedone, Paris, 8th ed., 2004) 461.162 Decision of the Representatives of the Governments of the Member States meet-

ing within the Council 95/553/EC, OJ L 314, 28/12/1995.

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assistance in cases of arrest or detention, assistance to victims of violent crime and the relief and repatriation of distressed citizens of the Union. However, no financial help may be given without the permission of the Member State of which the citizen concerned is a national, except in cases of extreme urgency. In so far as this does not constitute an exhaustive list, it is significant that, in the majority of the cases mentioned, there is no injury done to the citizen of the Union and no responsibility on the part of the State in whose territory the assistance is provided. It is therefore not surprising that recourse to the protec-tion referred to in Art. 20 EC is not dependent on prior exhaustion of domestic remedies. Subsequently, a decision was adopted on the practical arrangements to be made by consular officials, although it has never been published.163

Intergovernmental cooperation under the second pillar (CFSP) led to the adoption of the Decision of the Representatives of the Governments of the Member States, meeting within the Council of 25 June 1996 on the establish-ment of an emergency travel document.164 Annex II to that decision makes it clear that the Emergency Travel Document (ETD) can be issued by the Dip-lomatic Authority of a Member State to a national of another Member State which does not have a diplomatic representation in the third country in question for the purposes of travelling to the applicant’s Member State of origin, coun-try of permanent residence or, exceptionally, another destination. By virtue of Art. 2, Decision 96/409/CFSP, in common with all the decisions mentioned in this connection, was to take effect when all the Member States had completed the procedures required by their legal systems for the application of the deci-sion, which did not occur until 2 May 2002.165 The third report on citizenship makes it clear in any event that although such decisions formally have no legal effects for citizens, all the Member States have adopted provisions designed to enable their diplomatic and consular missions to assist nationals of unrepre-sented Member States in the event of death, serious illness or where they have been the victims of violence. Even though what is involved here is essentially reciprocal assistance on the part of the Member States, Art. 20 EU (Title V of the EU Treaty, second pillar) seems to empower Commission delegations to undertake some form of direct intervention, since it provides that, along with the diplomatic and consular missions of the Member States in third countries,

163 See the Third Report from the Commission on Citizenship of the Union, COM(2001)506 fin. and the Commission’s answer to written question No 822/94 from Mr Kostopulos MEP, where mention is made of guidelines for the grant of diplomatic protection to citizens of an unrepresented Member State, OJ C 362, 19/12/1994, 50.

164 Decision 96/409/CFSP, OJ L 168, 6/7/1996.165 France was the last Member State to notify the General Secretariat of the Council that

it had adopted domestic implementing provisions: see Decree No 2002/71 of 29 April 2000, Journal Officiel de la République française, LD 103 of 3 May 2002, 8160.

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the Commission’s delegations are also to step up cooperation by “exchanging information [and] carrying out joint assessments” with a view of contributing to the attainment of the objective of Art. 20 EC.

It should be noted that, unlike the classic international-law approach, dip-lomatic protection afforded by the authorities of a Member State in a third country in which the beneficiary’s State is unrepresented is conceived of as a right of citizens of the Union,166 whose actual exercise is not dependent upon discretional assessments on the part of the Member State to which an applica-tion for protection is made, but conditional solely upon the existence of the requirements laid down by Art. 20 EC and individual implementing measures. This view is supported by the fact that the right to diplomatic and consular pro-tection is now included among the fundamental rights of citizens of the Union included in the Charter of fundamental rights of the European Union (Art. 46). This, too, suggests that what is involved is not diplomatic protection under general international law: if so, it would have to be accepted that there would only be an expectation of protective action by a State in the case of the State of which the person concerned was a national and, paradoxically, a genuine right in the case of a State of which the person was not a national where his is her State had no representation in the third country in question.

I.18 Guarantees for participation in Community public lifeThe list of the rights which the EC Treaty confers on citizens closes with Art. 21 EC, which sets out a number of rights designed to foster “closeness” on the part of the citizen to the Community institutions through instruments of direct democracy (petitions), non-judicial redress against acts or omissions of the Community institutions (applications to the European Ombudsman) or simply increasing the degree of participation of the people who are at the receiving end of the process of European integration in the decision-making process affect-ing them.167 The right to petition and application to the European Ombudsman are governed in more detail in primary law by the provisions of Arts 194 and 195 EC on the European Parliament, the institution to which the exercise of the

166 In academic writings the different interpretation has also been posited to the effect that the adoption of protective measures depends in any event on a discretionary decision on the part of the Member State concerned: see F. Poirat, supra (note 157) 584. This interpretation seems, however, not to take account of the actual word-ing of Art. 20 EC (“Every citizen of the Union shall … be entitled”) or of Deci-sion 95/533/EC, which refers to the duty of the diplomatic or consular authority to afford protection; secondly, the measures of protection and general assistance involved do not appear to be derived directly from the concept of diplomatic pro-tection under general international law.

167 L. Rossi, Con il Trattato di Amsterdam l’Unione è più vicina ai suoi cittadini?, Diritto dell’Unione europea (1998) 339.

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right to petition and to apply to the European Ombudsman can be traced back more or less directly.

The Treaty establishing a Constitution for Europe significantly strength-ens the role of citizens of the European Union as regards participation in public life. As will be seen, the principles of representative democracy and of par-ticipatory democracy (Arts I-46 and I-47), albeit, from the systematic angle, located outside the part expressly dealing with citizenship, constitute the most important innovations in defining the rights of citizens of the Union.

I.19 Petitions to the European ParliamentThe right to petition the European Parliament reproduces a traditional instru-ment of parliamentary democracies which enables citizens to help determine national policy. It has been provided for by the Rules of Procedure of the Euro-pean Parliament ever since 1981 under its power to organise itself.168 Art. 194 EC, to which the first para. of Art. 21 refers, makes the exercise of that right subject to an objective criterion – the matter must come within the Commu-nity’s fields of activity – and a subjective one – the matter must affect the petitioner directly.

As far as the objective requirement is concerned, first Art. 194 EC excludes matters which do not fall within the competences of the Member States but within those of the Member States. If a petition does include such matters it will be declared inadmissible. This does not mean, however, that the strict sub-ject of the petition must be the conduct of Community institutions or bodies, since it may also relate to the conduct of a Member State or of its institutions, at least where that conduct consists of the implementation of application of Com-munity rules, or in any event, of decisions framed at Community level.169 Sec-ondly, taken literally, Art. 194 seems to confine the subject-matter of petitions to the competences of the European Community, thereby excluding matters falling within the competence of the Union, in particular the common foreign and security policy (CFSP, Title V, EU) and police and judicial cooperation in criminal matters (JHA, Title VI, EU). This literal interpretation, which admit-tedly reinforces the image of the second and third pillars operating as much as possible only though the machinery of intergovernmental cooperation and not subject to the scrutiny of the Community institutions and democratic mecha-nisms, leaves out of account the fact that, in the case of some of the matters falling within the competence of the Union (especially those coming under the third pillar), there is a by no means negligible possibility that some of the positions adopted will affect individual interests. Furthermore, the institutional

168 At present, consideration by the European Parliament of petitions is governed by Chapter XXIII of its Rules of Procedure (Rules 174-176) and there is a parliamen-tary committee set up to deal specifically with them.

169 See C. Curti Gialdino, supra (note 35) 190.

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framework of the Union exhibits manifest characteristics of a single institu-tional framework, as expressly mentioned in Art. 3 EU, and it is consistent therewith that the European Parliament is called upon to participate in the deci-sions taken in those sectors through its power of scrutiny and the right to be informed and to contribute, albeit through mere consultation.

As far as the subjective requirement is concerned, Art. 194 EC requires the matter to which the petition relates to “affect [the petitioner] directly”. Since petitions are an instrument of political scrutiny, addressed to a political institu-tion through which the democratic legitimacy of the Community is expressed, any literal suggestion which might lead to the requirement’s being interpreted similarly to the fourth para. of Art. 230 EC as a condition for individuals (natu-ral or legal persons) bringing actions for annulment of acts of which they are not formally the addressees should be rejected.170 Instead, it is preferable to interpret the requirement more flexibly so as to cover petitions relating to mat-ters which, although they do not harm the petitioners’ legal position directly, encourage them to participate because they relate to more general issues in which the individuals concerned are involved, for example as users or consum-ers or simply as beneficiaries of environmental resources.

170 Art. 230(4) EC allows natural and legal persons to bring actions for the annulment of a decision addressed to another person provided that the decision is of “direct and individual concern” to them. The interpretation of that provision has given rise to a lively, never subdued, debate in the case-law and in academic writings. See, among others, D. Boni, Il ricorso per annullamento delle persone fisiche e giuri-diche, in B. Nascimbene, L. Daniele (eds), Il ricorso di annullamento nel Trattato istitutivo della Comunità europea (Giuffrè, Milano, 1998) 53 ff.; A. Arnull, Pri-vate applicants and the action for annulment since Codorniu, C.M.L. Rev. (2001) 7; G. Bonadio, Nuovi sviluppi in tema di legittimazione a ricorrere avverso gli atti comunitari, Rivista italiana di diritto pubblico comunitario (2002) 1157; P. Pallaro, Il ricorso di annullamento degli atti comunitari da parte dei privati: pro-poste di lettura dell’attuale giurisprudenza, Rivista italiana di diritto pubblico comunitario (2002) 87; J.-P. Jacqué, Charte des droits fondamentaux et droit à un recours effectif – Dialogue entre le juge et le “constituant”, Diritto dell’Unione europea (2002) 1; F.G. Jacobs, Effective judicial protection of individual in the European Union, now and in the future, Diritto dell’Unione europea (2002) 203; D. Waelbroeck, Le droit au recours juridictionnel effectif du particulier: trois pas en avant, deux pas en arrière, Cah. dr. eur. (2002) 3; C. Amalfitano, La protezione giurisdizionale dei ricorrenti non privilegiati nel sistema comunitario, Diritto dell’Unione europea (2003) 14; S.M. Carbone, Progetto di Costituzione europea, diritti dell’individuo e tutela giurisdizionale, Diritto del commercio internazionale (2003) 6. For a succinct illustration of the changes introduced by the European Constitution, see M. Condinanzi, Il singolo e la “comunità di diritto” nel nuovo testo di Trattato che adotta una Costituzione per l’Europa, Corriere giuridico (2004) 1545.

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Unlike Art. 21 EC, which sets out the right of petition as an attribute of citizenship of the Union, which is therefore for nationals of Member States only, Art. 194 extends the circle of persons who may petition the European Parliament to include any natural or legal person residing or having its regis-tered office in a Member State. As a result, Art. 194 EC enables a right which is typically political to be exercised by nationals of non-member countries by putting the emphasis on domicile (or, in any event, a geographical connection) rather than on nationality or citizenship as the factor connecting the individual and the community to which he or she belongs.171

Correlatively to the exercise of the right of petition by citizens or residents, there is first of all the duty of the European Parliament to consider petitions in accordance with its Rules of Procedure. If necessary, the Parliament will also carry out an investigation by means of hearings. Petitioners have the right to be informed of decisions taken by the European Parliament. In the event of a shortcoming on the part of the Parliament in considering a petition which takes the form of a failure to act (to take a decision on the petition) vis-à-vis the peti-tioner, an action for failure to act may be brought under Art. 232 EC.

More generally, the fact that a right of petition has been conferred under primary law as an attribute of citizenship of the Union and no longer simply under the power of internal organisation of the European Parliament means that the other institutions have to cooperate loyally with that institution in its activities in considering petitions by virtue of the duty of interinstitutional col-laboration which may be inferred from Art. 10 EC.172

I.20 Applications to the European OmbudsmanIn the tradition of some legal systems, especially in Northern Europe, citizens may seek a non-judicial remedy vis-à-vis the public administration173 (the Ombudsman originated in Scandinavia). A similar solution was introduced in the Community legal order by the Treaty of Maastricht for instances of “mal-administration” by Community institutions or bodies with the exception of the

171 The contradiction is pointed out by B. Nascimbene, Cittadinanza dell’Unione e ricorso al mediatore, Rivista internazionale dei diritti dell’uomo (1995) 246; A. Pliakos, Le médiateur de l’Union européenne, Cah. droit eur. (1994) 563.

172 For the principle of interinstitutional cooperation as a consequence of Art. 10 EC, see Case 204/86 Greece v Council [1988] ECR 5323. For a succinct commentary, see D. Rinoldi, Articolo 10, in F. Pocar (ed.), Commentario breve ai trattati della Comunità e dell’Unione europea (Cedam, Padova 2001) 117. Art. I-19(2) of the Treaty establishing a Constitution for Europe codifies the principle of mutual sin-cere interinstitutional cooperation.

173 De Vergottini, Ombudsman, in Enciclopedia del Diritto, XXIX (Giuffrè, Milano, 1979) 883 ff.; G. Ferranti, I difensori civici nelle esperienze europee e nel trattato di Maastricht, Rivista di diritto europeo (1995) 293.

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Court of Justice and the Court of First Instance “acting in their judicial roles” (Art. 195 EC).

As in the case of the right of petition, the second para. of Art. 21 merely confers on Union citizens the right to “apply to the Ombudsman”, leaving it to Art. 195 EC to lay down the other rules. Also as in the case of petitions, Art. 195 does not restrict access to the Ombudsman only to Union citizens (ignoring their residence) since it also entitles any natural person residing in the Union and any legal person having its registered office in the Union to present a complaint to the Ombudsman.174 The extension of the class of those entitled to cover all residents, even those from non-member countries, is more com-prehensible in the case of the Ombudsman. This is because the Ombudsman is a means of securing protection against conduct of the Community institutions or bodies where they have infringed one of the complainant’s rights or, in any event, deviated from the model of good administration in a case concerning the complainant. Conversely, it is not important that Art. 195 does not require there to have been an actual breach of a right of the complainant, since the complaint may relate to general aspects of the Community administration’s action or dif-fuse interests.175 in any case, it is a means of redress for those subject to the public administration, even when the Ombudsman elects to act on his or her “own initiative” where he or she has identified a case of maladministration. There is no reason for making access to the Ombudsman conditional on Union citizenship: apart from any other consideration, such a limitation would be at odds with judicial protection, since access to the Community Courts is inde-pendent of the applicant’s citizenship, whether it be citizenship of the Union or citizenship of a non-member country.

From an organisational and institutional point of view, the Ombudsman is closely connected with the European Parliament, as witness the fact that, also from the systematic point of view, the relevant rules are set out in section

174 As far as legal persons are concerned, the connection with the Community legal order which is required in order to be entitled to submit a complaint to the Ombuds-man is less demanding than that required in order for a company to be equated to a natural person for the purposes of benefiting from the right of establishment under Art. 48 EC. That provision requires not only a geographical connection but also the fact that the company was formed in accordance with the law of a Member State.

175 From this point of view, it may be said that the Ombudsman’s action boils down to adding to its function of individual protection that of non-judicial review of the action of the other institutions in the general interest of the Community legal order. The Ombudsman therefore also assumes a political function in the broad sense of the expression (see M. Cartabia, supra (note 27) 12; M. Condinanzi, Articolo 195, in F. Pocar (ed.), supra (note 172) 701). This is not, however, to detract from the basic function of complaints to the Ombudsman, which is that of a supplementary instrument for protecting individuals.

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dealing with the European Parliament in Part five of the Treaty. Indeed, it is the European Parliament which appoints the Ombudsman every five years or, in any event, after each election. The European Parliament, after seeking an opinion from the Commission and with the approval of the Council acting by a qualified majority, lays down the regulations and general conditions governing the performance of the Ombudsman’s duties;176 the Ombudsman submits an annual report to the European Parliament on the outcome of his or her inqui-ries177 and, together with the institution concerned, a report on the outcome of each individual inquiry. In addition, from a strictly functional point of view, complaints may be submitted to the Ombudsman direct or “through a Member of the European Parliament” (Art. 195(1), second subpara., EC). Lastly, the Ombudsman’s budget is annexed to the section of the general budget of the Communities which relates to the European Parliament (Ombudsman regu-lations, Art. 12) and the Ombudsman is based at the seat of the European Parliament (Ombudsman regulations, Art. 13). The strong organisational and functional link between the Ombudsman and the Parliament has resulted in the Ombudsman’s being described as an instrument available to the Parliament in order to exercise political supervision of the other institutions.178 Recently, the Court of Justice had occasion to rule on the links between the Parliament and the Ombudsman and on the control exercised by the Parliament over the Ombuds-man in proceedings limited to the finding that an action brought against the Ombudsman for non-contractual liability was admissible against the Ombuds-man but inadmissible against the European Parliament.179 Whilst the judgment in question is valuable for assessing the Ombudsman’s autonomy and the ame-

176 Decision of the European Parliament 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman’s duties, OJ L 113, 4/5/1994, 15, as amended by Decision 2002/262/EC, ECSC, Euratom of 14 March 2002, OJ L 92, 9/4/2002. A consolidated version may be found in B. Nascimbene, Comunità e Unione europea. Codice delle isti-tuzioni (Giuffrè, Torino, 2007) 722 ff., and in English at http://www.euro-ombuds-man.eu/lbasis/en/statute.htm.

177 The Ombudsman’s annual reports are published in the Official Journal of the European Union.

178 For criticism relating to the effective independence of the Ombudsman from the European Parliament, see M.R. Saulle, Mediatore europeo, in Enciclopedia del Diritto, Aggiornamento, II (Giuffrè, Milano, 1998) 538 ff. More recently, see L. Raimondi, Mediatore europeo e mezzi di ricorso giurisdizionali, Diritto dell’Unione europea (2004) 548.

179 Case C-234/02 P European Ombudsman v Lamberts [2004] ECR I-2803. The judgment upheld the judgment of the Court of First Instance in the same case (Case T-209/00 Lamberts v European Parliament [2002] ECR II-2203), which held that the action was inadmissible in so far as it was brought against the Parlia-ment. For these proceedings, see L. Raimondi, supra (note 178); C. Sanna, Profili

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nability of his or her acts and conduct to judicial review, it does nothing to allay the fears that the Ombudsman might be subject to parliamentary control, notwithstanding the fact that it is possible to put a different construction on the matter whereby the Parliament’s powers are reduced to a purely normative or organisational competence which is not such as to effect the Ombudsman’s independence in performing his or her duties.180

I.21 The limits rationemateriae to the activities of the European Ombudsman

In comparison with the scope of the institution of petitions, the competence of the Ombudsman is narrower, since it is limited to the action of the Community institutions or bodies. Hence it does not extend to the conduct of organs of the Member States, not even in connection with the implementation of Community provisions.

Of the Community institutions, the Court of Justice and the Court of First Instance181 are excepted when acting in their judicial role. As a result, the Ombudsman is not competent to review decisions, not even when they are not final, of the Community judicature. The concern to avoid any interference between the activities of the Ombudsman and those of the Community Courts means that when legal proceedings are in progress or have been concluded concerning the facts put forward in a complaint, the Ombudsman has to declare the complaint inadmissible or terminate consideration of it and file the outcome of any inquiries he or she has carried out up to that point without further action (Ombudsman regulations, Art. 2[7]). The activities of the Community Courts may be the subject of an inquiry by the Ombudsman in so far as they cannot be characterised as “judicial” and they relate in contrast to the administrative sphere, for instance the relations between the institution and its staff. According to one view, the Ombudsman could inquire into the same facts with respect to which the Court of Justice is to give or has given an opinion under Art. 300 EC, on the ground that this is not a judicial activity.182

The prohibition on the Ombudsman’s inquiring into cases of maladminis-tration where judicial proceedings have taken place or are under way also covers

istituzionali e processuali di diritto comunitario nella sentenza Lamberts, Rivista di diritto internazionale privato e processuale (2004) 1327.

180 This is the interpretation preferred by Advocate General Geelhoed in Case C-234/02 P European Ombudsman v Lamberts and clearly reflected in learned writ-ings: L. Raimondi, supra (note 178) 552 ff.

181 The ban on “calling in question the soundness of a judicial decision” (B. Nascim-bene, supra [note 16] 926) must also apply to the judicial panels provided for in Art. 225A EC.

182 G.M. Ubertazzi, Considerazioni sull’Ombudsman, Rivista internazionale dei diritti dell’uomo (1992) 915.

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the activities of national courts (presumably the courts of the Member States) given that the second subpara. of Art. 195(1) excludes from the Ombudsman’s competence simply “alleged facts [which] are or have been the subject of legal proceedings”. The ban set out in Art. 1(3) of the Ombudsman regulations is equally extensive for being couched in vague terms. It prohibits the Ombuds-man from “intervening” in cases before courts or from questioning the sound-ness of a court’s ruling. Depending on whether the judicial proceedings are already in progress (or have been concluded) or supervene when an investiga-tion has been started, the complaint will be deemed “inadmissible” (Ombuds-man regulations, Art. 2(7)) or will result in the investigation being terminated and the outcome of any inquiry carried out filed.183

The coordination of the activities of the Ombudsman and judicial review is supplemented by Art. 2(6) of the Ombudsman regulations, according to which complaints submitted to the Ombudsman “shall not affect time limits for appeals in administrative or judicial proceedings”. The time limits for chal-lenging Community acts” are notoriously fairly short with the result that a com-plainant faced with a case of unlawful maladministration will, of necessity, have to give preference to judicial proceedings, since, in so far as they are not precluded by a prior inquiry conducted by the Ombudsman,184 a complaint to the Ombudsman would in fact be precluded in practice because the Ombuds-man’s inquiry would inevitably take place after time for bringing proceedings had stopped running.

In contrast, the rules do not expressly resolve the opposite problem: that of possible activity or resumption of activity on the part of the Ombudsman after a judicial decision which has not tackled the merits of the dispute and therefore not ruled on the “alleged facts” which are the subject of the complaint made to the Ombudsman. The rationale for debarring the Ombudsman from carrying out an inquiry lies in the need to avoid the same facts being considered lawful by a judicial body and, at the same time, regarded as constituting “maladminis-tration” (i.e. as unlawful administration) by the Ombudsman. The force of res judicata, the authority of the judicial function and its legimitation – in short the coherence of the Community judicial system – would be jeopardised by a system lacking such a prohibition.

183 See Art. 10(3) of the implementing provisions adopted by the Ombudsman by decision of 8 July 2002, as amended by Decision of 5 April 2004 (see European Ombudsman – Information No 2004C 93/12, OJ C 93, 17/4/2004). See the con-solidated text in B. Nascimbene, supra (note 176) 708 ff., and, for the English version, see http://www.euro-ombudsman.eu /lbasis/en/provis.htm.

184 No provision precludes court proceedings on account of the fact that a complaint has been submitted to the Ombudsman. This would, moreover, be hard to square with the fundamental right to an effective remedy before a tribunal (Art. 47 of the Charter, now Art. II-107 of the Constitution).

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The same rationale and the same values which lead – above and beyond the ambiguity of the wording of the Ombudsman regulations – to the assertion that a complaint will be admissible whenever the Court does not rule on the merits of the case brought before it and has therefore not taken cognisance of the facts also submitted to the Ombudsman. If those facts have not been inves-tigated by the Court, they will not have been incontrovertibly determined; the authority of the judicial arm is not jeopardised because there is no overlapping of the judicial decision and the Ombudsman’s inquiry; the coherence of the system cannot be jeopardised by a judicial pronouncement, which by deciding on a question of admissibility which prevents the proceedings from continuing, leaves “unexplored” the facts which would have constituted the merits of the judicial proceedings and into which, instead, the Ombudsman is called upon to investigate (or resume his or her investigation).

From the substantive point of view, the Ombudsman’s action is con-fined to cases of “maladministration”. The express reference to the concept of administrative activity makes it clear that the Ombudsman will be competent to consider, not only the substantive conduct of Community institutions, but also measures which the complainant alleges are unlawful or even inopportune from the point of view of good administration. What is less obvious, on the other hand, is whether it is possible to bring within the scope of the Ombuds-man’s inquiry the exercise of legislative powers by the Community institutions, which it is difficult to describe as constituting “administration”. Indeed, unlike committees of inquiry (Art. 193 EC) and the right of petition (Art. 194 EC), whose scope is defined respectively by the concepts of “contraventions” of Community law and of “matters” coming within the Community’s fields of activity, the concept of “maladministration” seems to be limited to the applica-tion of Community law in specific cases where the requirement to protect the individual arises.185 By preferring a broad interpretation of the term “admin-istration”, which is consistent with the requirement to provide an alternative instrument for protecting individuals, it is arguable, however, that the Ombuds-man’s competence extends to considering the unlawfulness of legislative acts. Moreover, it is now certain and established in practice that the Ombudsman may regard as maladministration both unlawful acts or conduct as well as acts

185 Art. 193 EC on committees of inquiry specifies that they may look into “alleged contraventions or maladministration in the implementation of Community law”, which warrants interpreting the two concepts differently. See also S. Marias, The European Ombudsman: Competences and Relations with the Other Community Institutions and Bodies, in S. Marias (ed.), The European Ombudsman (E.I.P.A., Maastricht, 1994) 80 ff.

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or conduct which are simply inappropriate and, without being in breach of rules of law, do not satisfy the tests of transparency and efficiency.186

The Ombudsman’s powers are limited to carrying out inquiries to deter-mine whether a given complaint constitutes maladministration. The institu-tions, and the Member States, are bound, under the Ombudsman regulations but also by virtue of the general provision of Art. 10 EC, to collaborate with the Ombudsman so as to facilitate his or her inquiry. When at the end of the inquiry it is found that the case involved maladministration, the Ombudsman may act in two ways. First, the Ombudsman, together with the institution involved, may endeavour to find a solution capable of remedying the maladministration in the individual case to the complainant’s satisfaction. Where this is not possible, the Ombudsman informs the institution concerned, but may also prepare a draft recommendation, on which the institution, albeit not bound by the recommen-dation, has to prepare a detailed opinion. Once he or she receives the opinion, the Ombudsman informs the Parliament, the institution concerned and the com-plainant of the outcome of the inquiry.

Although it is in no way legally binding, it cannot be said that the Ombuds-man’s activity is without importance, having regard to the manifest political responsibility which the institution concerned assumes in the eyes of public opinion and the European Parliament itself. Bearing in mind that the institution to which the majority of complaints relate is the Commission, the importance assumed by the Ombudsman’s activity in the face of the increased democratic responsibility of the Community executive to the European Parliament is mani-fest. The political scrutiny the European Parliament carries out on the Commis-sion, crystallises the consequences of the Ombudsman’s inquiries.

In certain cases, the Ombudsman’s inquiries have prompted the Commis-sion to adopt new rules of conduct for the exercise of its activities, thereby reducing, by unilateral decision, the discretion conferred upon it by the Treaty.187 In this way, the transparency of the institutional life of the Community and the degree of individuals’ participation therein are significantly increased and this helps, together with the other rights, to give substance to the concept of citizen-ship of the Union, which, albeit atypical, is no longer without content.

186 For the distinction between inappropriateness and unlawfulness of administrative action, see recently G. Carella, Articolo 195, in A. Tizzano (ed.), supra (note 16) 942, and, for an extensive account, L. Raimondi, supra (note 178) 557.

187 Following an inquiry by the Ombudsman into the treatment given by the Com-mission to complaints alleging infringement of Community law, the Commission published a species of “single text” setting out administrative safeguards and pro-cedural rules to be applied in its relations with complainants in the context of an infringement procedure; see Commission communication to the European Parlia-ment and the European Ombudsman on relations with the complainant in respect of infringements of Community law, 2002/C 244/03, OJ C 244, 10/10/2002.

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I.22 Access to documents and the right to correspond with the Community institutions

The third para. of Art. 21 EC confers on citizens of the Union the right to write to any of the Community institutions or bodies in one of the languages in which the EC Treaty is drawn up and have an answer in the same language. The official languages of the EU are listed in Art. 314 as follows: Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish, and Swedish. Those are also regarded as languages of the case by the Court of Justice and the Court of First Instance.188

The right to “write” and “have an answer” from the Community institu-tions constitutes a further affirmation, in primary law, of the right to transpar-ency of the action of the Community institutions, which is also enshrined in the right of access to documents (Art. 255 EC) and, however, was already pro-vided for in provisions of secondary law and in case-law dating from before the Treaty of Amsterdam entered into force. Transparency of the decision-making process has been recognised as helping to reinforce the democratic nature of the Community institutions ever since Declaration No 17 annexed to the Treaty of Maastricht. Following on from that, the Council and the Commission adopted in 6 December 1993 a Code of Conduct on access to documents of the Council and the Commission189 (which, however, was held not to be legally binding by the Court of Justice190). In order to implement that Code of Conduct, the Com-munity institutions adopted separate decisions on access to their documents.191 As has already been noted, right to access to documents of the Parliament, the Council and the Commission was enshrined by the Treaty of Amsterdam in primary law by means of its incorporation in Art. 255 EC, which was used as the legal basis for the adoption of Regulation (EC) No 1049/2001 of the Euro-pean Parliament and of the Council of 30 May 2001 regarding public access

188 See Art. 29 of the Rules of Procedure of the Court of Justice and Art. 35 of the Rules of Procedure of the Court of First Instance.

189 Decision 93/730/EC, OJ L 46, 18/2/1994.190 Case C-58/94 Netherlands v Council [1996] ECR I-2169.191 Council Decision 93/731/EC of 20 December 1993 on public access to Coun-

cil documents, OJ L 340, 31/12/1993, as amended by Decision 97/731/EC of 6 December 1996, OJ L 325, 14/12/1996; Commission Decision 94/90/ECSC, EC, Euratom of 8 February 1994 on public access to Commission documents, OJ L 046, 18/2/1994, as amended by Decision 96/567/ECSC, EC, Euratom of 19 Sep-tember 1996: Economic and Social Committee Decision of 27 July 1997 on public access to ESC documents, OJ L 339, 1/10/1997; European Parliament Decision 97/632/EC, ECSC, Euratom of 10 July 1997 on public access to European Parlia-ment documents, OJ L 263, 25/9/1997.

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to European Parliament, Council and Commission documents,192 which also covers matters falling within the second and third pillars of the Union, thereby confirming the interpretation set out in the case-law.193

As far as access to documents is concerned, albeit intended to secure transparency in the Community decision-making processes, the third para. of Art. 21 has another specific feature in that it guarantees the Community citizen the possibility to have informal contacts with the Community institutions (Par-liament, Commission, Council, Court of Justice, Court of Auditors, European Economic and Social Committee and Committee of the Regions, all of which are mentioned in Art. 7 EC, to which Art. 21 refers) and with the European Ombudsman on matters not determined in advance (and possibly also relating to the second and third pillars). These contacts do not have to regard the appli-cant citizen specifically. Unlike the right of petition and the right to apply to the Ombudsman, in the case of which Arts 194 and 195 EC extend the right to all persons legally resident, the right to correspond with the institutions is limited by the wording of Art. 21 to citizens alone. The similar basic rationale under-lying the rights contemplated by the provision must suggest, however, that the wider class of beneficiaries must also apply in this case.194 This interpretation is borne out by Art. 42 of the Charter of fundamental rights of the Union, which provides that both Union citizens and persons residing or having their regis-tered office in a Member State have the right to have access to documents.

Art. 21 EC has been further implemented by the Code of Good Adminis-trative Behaviour of the European Commission in its Dealings with the Public, annexed to the Commission’s Rules of Procedure. In laying down rules for deal-ing with enquiries, point 4 of that Code requires that replies to letters addressed to the Commission should be sent within 15 working days of the date of receipt of the letter. If a reply cannot be sent within this time period, a holding reply must be sent. The same rules apply to enquiries sent by electronic mail, which may be treated in the same way as letters in view of their nature. The obligation for the Commission to reply in the language used by the enquirer, provided that

192 OJ L 145, 31/05/2001.193 Court of First Instance: Case T-147/95 Svenska Journalistforbundet [1998] ECR

II-2293; Case T-14/98 Hautala [1999] ECR II-2638. For learned commentaries, see C. Morviducci, Diritto di accesso ai documenti delle istituzioni e Trattato di Amsterdam, Rivista italiana di diritto pubblico comunitario (2000) 665; P. Pallaro, Diritto di accesso ai documenti delle istituzioni e protezione di informazioni riser-vate nel diritto comunitario, Diritto comunitario e degli scambi internazionali (2001) 435; A. Rizzo, Il regolamento (CE) n. 1049/2001 e la “nuova” politica comunitaria della trasparenza, La Comunità internazionale (2002) 87; A. San-tini, Il principio di trasparenza nell’ordinamento dell’Unione europea (Giuffrè, Milano, 2004) 190 ff.

194 B. Jésus, Article 21, in P. Léger (ed.), supra (note 128) 249.

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it is one of the official languages indicated in Art. 314 EC or, at least accord-ing to the interpretation posited above, one of the official languages of the new Member States, further facilitates citizens’ contacts with the institutions and brings them closer together. It is worth mentioning that this linguistic require-ment was already imposed on the Community institutions in judicial proceed-ings: Art. 29(2) of the Rules of Procedure of the Court of Justice (and likewise Art. 35(2) of the Rules of Procedure of the Court of First Instance) does not allow the institutions to apply to the Court for leave to use a language other than that of the applicant, although the other parties to the proceedings may apply for such leave, it being, moreover, justified by the rights of the defence and the right to equality of arms.

I.23 Citizenship of the Union in the Treaty establishing a Constitution for Europe

According to the Laeken Declaration,195 the most important task of the “Con-vention” was the so-called “democratic challenge”, which was to be overcome by bringing the citizen closer to the Union. It was therefore reasonable to expect that the proceedings of the Convention and the ensuing Treaty establishing a Constitution for Europe196 would make a significant contribution to the rules on citizenship of the Union, as a legal/political phenomenon used as the basis for the very concept of democracy and the democratic life of the European Union. In actual fact, although the Constitution does include innovations of some importance, it does not seem to have succeeded in creating new and more reliable normative bases on which to recreate the spirit of citizenship of the Union.

In the first place, the Constitution introduces a certain amount of con-fusion into the rules on citizenship from the systematic point of view.197 The provisions on citizenship are distributed among the first three parts of the new Treaty. In Part I, Title II, Art. I-10 is devoted to citizenship of the Union and

195 The Laeken Declaration constitutes Annex I to the Conclusions of the Presidency of the European Council of Laeken of 14 and 15 December 2001, Bull EU (2001) no 12.

196 As already mentioned, the Constitutional Treaty was signed on 29 October 2004 and was to have entered into force on 1 November 2006, provided that all the instruments of ratification were deposited in the mean time (see Art. IV-447 of the Constitution). The negative outcomes of the referenda held in France (29 May 2005) and in the Netherlands (1 June 2005) have probably jeopardised the entry into force of the new Treaty, at least in its present formulation. Among the many learned articles on this subject, see M. Condinanzi, B. Nascimbene, Europa senza Costituzione, Corriere giuridico (2005) 1041.

197 See N. Levrat, La vie démocratique de l’Union, in M. Dony, E. Bribosia (ed.), Commentaire de la Constitution de l’Union européenne (Éditions de l’Université de Bruxelles, Bruxelles, 2005) 86 ff.

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it follows an article on fundamental rights, which are vested in all individu-als and not just in citizens. Art. I-10 summarises, in a single provision, what is now Part two of the EC Treaty, albeit only Arts 17-21, thereby reproduc-ing, in a more succinct form, the “list” of rights conferred on citizens without any significant changes by comparison with the wording of the present EC Treaty. Likewise, there is a reference to duties, although none are mentioned. As pointed out above, the fact that the rights are formulated more definitely without any reference to conditions198 reflects more the summary formulation of the relevant provision rather than an intention to make the rights in ques-tion “absolute”. In fact, the last paragraph of Art. I-10 states that all the rights in question are to be exercised in accordance with the “conditions and limits” defined in the Constitution and by the measures adopted thereunder. It is worth noting that the wording of Art. 1-10(1) diverges significantly from Art. 17(1) EC in that it presupposes citizenship of the Union, which is therefore no longer “established” by the Treaty. In addition, the provision relating to the ancillary nature of Union citizenship in relation to national citizenship has been simpli-fied and made more concise.

In Part II of the Constitution, which consists of the Charter of Fundamen-tal Rights of the European Union, Title V deals with citizenship and substan-tially reproduces the list of citizens’ rights as they appear today in Arts 18-21 EC, albeit in a different systematic order, whose significance has already been mentioned.199 The provision of the rights which in the Charter go to make up citizenship of the Union does not allow any extension of them to be inferred above and beyond that which appears from the other provisions of the Consti-tution. Art. II-112(2) provides in fact that the rights recognised by the Char-ter “for which provision is made in other Parts of the Constitution shall be exercised under the conditions and within the limits defined by these relevant Parts”. The consequence is that the limits and conditions provided for in the Constitution and in the relevant implementing provisions apply to the rights listed in Art. I-10 despite the fact that they are provided for in the Charter using forms of words which may be broader.200

In Part III of the Constitution on the policies and functioning of the Union, Title II sets out provisions on non-discrimination and citizenship. Arts III-125 to III-127 provide the Council with the legal bases to adopt the secondary leg-

198 This is the case with the rights of movement and residence, which Art. I-10(2)(a) provides for without stating that they are subject to the “limitations and condi-tions” referred to in the present Art. 18 EC.

199 The list starts out with the so-called electoral rights, which are the most significant politically speaking. See part. 14, supra.

200 See L. Burgorgue-Larsen, Article II-112, in L. Burgorgue-Larsen, A. Levade, F. Picod, supra (note 63) 672 ff.

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islation necessary to give effect to freedom of movement and residence,201 elec-toral rights and diplomatic and consular protection.

Despite the multiplicity of parts and titles of the Constitution dealing with citizenship of the Union under various heads but with inevitable overlapping, the most significant innovations are to be found elsewhere. Indeed, it is Title VI of Part I on the democratic life of the Union which makes, consonantly with the Laeken Declaration, the most meaningful contributions towards strength-ening the status of citizen of the European Union. Under the system of the Constitution, democracy in the Union is based on three major principles: demo-cratic equality (Art. I-45), representative democracy (Art. I-47) and participa-tory democracy (Art. I-47), which are designed as a whole to increase citizens’ rights and, by this means, bridge the democratic deficit, which has always, albeit to a decreasing extent, marked the institutional life of the Union and affected its acceptance by public opinion and political forces nationally.

Democratic equality boils down to the principle of the equality of citizens and hence to the prohibition of discriminatory treatment by the institutions of the Union. By providing that citizens are to receive “equal attention” from the institutions, Art. I-45 could be understood as being capable of implying that citizens are equal in the context of the procedures for the democratic shaping of the political will of the Union. If it were to be construed in this way, it could be somewhat difficult to square with Art. I-20(2) of the Constitution, which requires that representation of citizens in the European Parliament should be “degressively proportional”, entailing a variation in the democratic weight of the representation of citizens within the Parliament.

The principle of representative democracy is laid down by Art. I-47 on the basis of the operation of the Union and hence of its institutional machinery, with the central role going to the European Parliament, in which citizens are represented. This provision is of key importance for the purposes of institu-tional balance and marks the end of – substantially undemocratic – intergov-ernmental decision-making mechanisms.

The principle of participatory democracy is codified in Art. I-47, although it is significantly anticipated by paragraph 3 of the preceding article, which recognises the right of every citizen to “participate in the democratic life of the Union”. It finds expression in the first place in the election of the European Par-liament by direct universal suffrage. However, the principle finds lesser expres-sions also in those institutions which enable dialogue to take place between

201 Unlike that which is provided in Art. 18(3) EC, measures relating to passports, identity cards, residence permits and social security and social protection may be laid down by a European law or framework law. In that case, however, the Council is to act by a unanimous vote after consulting the European Parliament: as a result, the procedure remains significantly differentiated and heavier by comparison with the ordinary procedure.

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individuals and the institutions and hence permit individuals to take part in the life of the institutions. Some of the rights conferred on Union citizens seem themselves to express this principle, in particular the right of petition and the right to write to the institutions and receive a reply.202 However, it is Art. I-47(3) of the Constitution which embodies in this respect the most important innovation with regard to rights of Union citizens: the right of initiative in the legislative process of the Union. In actual fact, what is involved is an indirect initiative in that at least a million citizens may invite the Commission to submit a proposal. This species of “popular initiative” therefore does not fall out-side the logic of stimulating the Commission to carry out its own institutional functions, including the exercise of the right of legislative initiative, which is already present in the provisions of the EC Treaty but only as far as the Council (Art. 208 EC) and the Parliament (Art. 192(2) EC) are concerned. In any case, the exercise of the initiative provided for in Art. I-47 is dependent upon a vari-ety of conditions: (a) it must emanate from at least one million citizens; (b) the citizens concerned must represent a significant number of Member States,203 (c) it must relate to a legal act which citizens consider is “required”. The last-mentioned condition may be understood in different ways: in a more restrictive sense as meaning that it must be an act the adoption of which is imposed in an obligatory manner by the Constitution or by secondary legislation or, prefer-ably, as meaning that citizens must simply consider the act to be required, in the broader sense of being expedient.

It is worth making a last observation on the wording of Art. I-3(2) of the Constitution. In indicating the objectives of the Union, that provision specifies that the Union is to offer “its citizens” “an internal market where competition is free and undistorted”. The link between the internal market, competition and citizenship is redolent of the functional approach identified at the time when the idea of citizenship was beginning to develop and the significant attribute of the status of citizen of the Union was freedom of movement and residence, the main instrument of the internal market. In the stage of development of the Union’s legal order which the Constitution is intended to mark, this connection seems reductive, since citizenship of the Union has now become the funda-mental status of each citizen of the Member States, including political rights to participate in the life of the institutions which may at least tend to mark a transcending of the plurality of national demoi on the way towards affirmation of a single European demos.204

202 See parts 19 and 23, supra.203 The minimum number of States and other detailed aspects of the provision in

question must be determined by a European law, whose adoption is provided for.204 See the observations of G. Carella, Articolo 190, in A. Tizzano (ed.), supra (note

16) 919. See also A. Von Bogdandy, The Prospect of a European Republic: what European citizens are voting on, C.M.L. Rev. (2005) 913.

Chapter II Freedom of Movement of Workers

II.1 Freedom of movement of workers under the ECSC Treaty and under the transitional regime. Outline

Article 69 of the ECSC Treaty1 provided for the removal of all restrictions based on nationality upon the employment of workers in the Member States. In accordance with the strict sectoral scope of the ECSC provisions, however, that freedom was limited, in functional terms, to workers in the coal and steel industries. Moreover, the prohibition of discrimination laid down in Article 69 related only to workers in possession of a recognised qualification in a coalmin-ing or steelmaking occupation.2 The prohibition of discrimination in access to employment set out in Article 69 was accompanied by a prohibition of all forms of discrimination based on nationality in relation to remuneration and working conditions. However, the provisions adopted by the Member States to give effect to Article 69 were expressly repealed following the entry into force of the Community rules implementing the EEC Treaty, whose general character made them applicable also to workers in the coal and steel sector.3 In the EC Treaty, Title III of part three, which deals with Community policies, addresses

1 On the freedom of movement of workers in the coal and steel industries, see F. Durante, in R. Quadri, R. Monaco, A. Trabucchi (eds) Trattato istitutivo della Comunità europea del carbone e dell’acciaio: commentario (Giuffrè, Milano, 1970) 952 ff.; D. Martin, La libre circulation des personnes dans l’Union euro-péenne (Bruylant, Bruxelles, 1994) 9. Of course, the ECSC Treaty, which came into force on 25 July 1952, lapsed after applying for fifty years, in accordance with Article 97 thereof.

2 The recognised professional qualifications were to be determined by common accord between the Member States (see Article 69[2]).

3 See the Decision of 28 February 1972 of the representatives of the Governments of the Member States of the European Coal and Steel Community, meeting within the Council, repealing Acts passed under Article 69 of the Treaty establishing the European Coal and Steel Community (OJ L 269, 4/10/1974, 25.)

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the “free movement of persons, services and capital”. Chapter I of Title III concerns workers, while the second and third chapters deal respectively with the right of establishment and the freedom to provide services. The rules giving effect to those three freedoms were supposed to have been issued by the Com-munity institutions before the end of a transitional period. However, at the end of that period only the provisions implementing the free movement of workers had been adopted.

The regulation and directive adopted in 19614 gave effect to the freedom of movement of workers, albeit allowing the Member States to attach significant conditions. In particular, to the principle of equal treatment of national workers and workers who are citizens of other Member States as regards the conditions of employment, there was added the rule of the priority of the national market. This meant that the freedom of migrant workers to take up a job was made con-ditional on the absence of candidates for the position holding citizenship of the Member State in question. Furthermore, significant limitations were imposed on the rights of entry and residence of members of the worker’s family.

The second phase of the transitional period began with the adoption of Regulation (EEC) No 38/64 and Directive 64/240/EEC,5 which replaced the 1961 regulation and directive. Whilst the rules thus introduced abolished the principle of the priority of the national market, the Member States were reas-sured by the provision of a safeguard clause which allowed them to suspend the freedom of movement of workers in the event of serious imbalances caused, in certain geographical regions or in certain professions, by labour flows.

In that it called for “the abolition of any discrimination based on national-ity between workers of the Member States as regards employment, remunera-tion and other conditions of work and employment”6 the principle of freedom of movement of workers within the Community demanded the adoption, before the end of the transitional period, of secondary laws broader in scope and more trenchant. On 15 October 1968, the Council adopted Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community7 and Directive 68/360/EEC on the abolition of restrictions on movement and resi-dence within the Community for workers of Member States and their families.8 The 1968 regulation and directive replaced the two 1964 acts and constituted for nearly forty years, in secondary Community law, the main source of rules on equal access to work and conditions of employment. In addition to those

4 OJ 57, 26/8/1961, 1073, OJ 80, 13/12/1961, 1513. (No official English version.)5 Both of 25 March 1964, OJ 62, 17/4/1964, 965 and 981. (No English version of

the regulation.)6 Cf. Article 39(2) of the EC Treaty.7 OJ, English Special Edition, 1968 (II), 475.8 OJ, English Special Edition, 1968 (II), 485.

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instruments, there was a further Directive, 64/221/EEC, on the “coordination of special measures concerning the movement and residence of foreign nation-als which are justified on grounds of public policy, public security or public health”9 which, addressing generally restrictions on the freedom of movement of persons for reasons of public policy and so on, applied equally to employ-ees.

Directives 64/221/EEC and 68/360/EEC and Articles 10 and 11 of Regu-lation (EEC) No 1612/68 were repealed with effect from 30 April 2006, the deadline for implementation of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.10 Following the decision of the Court of Jus-tice of the European Communities according to which the status of citizen of the Union is destined to be the fundamental status of citizens of the Member States,11 workers are treated simply as a species of the genus “citizen of the Union” and the conditions of entry and residence of citizens of the Union are to be established under a single set of rules, no longer different as regards content and source, that is, no longer to be found in separate legal instruments, according to the category to which the person in question belongs, such as self-employed, student and so on.

Directive 2004/38, insofar as it resumes the law in force, integrating it with the case law and the judgments issued by the Court of Justice over time, does not represent a breaking point with the past, but instead helps to better understand the rules. In this regard, as in others, the rules on the free movement of persons suffer, on the whole, from a significant lack of coherence due to the presence in Community law both of rules of very long date and of recently introduced rules characterized by a different, broader outlook. For these rea-sons, on the one hand, the principles worked out and developed by the Court of Justice over the years do not lose any relevance, and instead, continue to remain topical. On the other hand, we should not neglect analyzing the previ-ously enforced law, because it allows us better understanding the regulations included in Directive 2004/38.

II.2 Territorial scope of the Community rules on the freedom of movement of workers

The territorial scope of the system of rules on the freedom of movement of workers is the same as the scope of the EC Treaty, defined in Article 299 thereof. In particular, the rules in question apply not only to the territory of the Member States, but also to the European territories for whose external rela-

9 OJ, English Special Edition 1963-1964, 117.10 OJ L 158, 30/4/2004, 77.11 Case C-413/99 Baumbast [2002] ECR I-7091.

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tions a Member State is responsible (as in the case of Gibraltar) and to the French overseas departments. On the other hand, the rules do not apply to the Faeroe Islands (Article 299[6][a] EC), to the sovereign base areas of the United Kingdom in Cyprus (Article 299[6][b]), to the Åland Islands (Article 299[5]), or to the overseas countries and territories dependent on the United Kingdom, France and the Netherlands, the list of which is set out in Annex IV to the Treaty. As far as concerns the Channel Islands and the Isle of Man, Article 299[5][c] provides that the Treaty applies only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of the United Kingdom and Northern Ireland. Under Protocol 3 to that accession treaty, freedom of movement is not enjoyed by citizens of those islands, and citizens of the Union, including citizens of the United Kingdom who are not citizens of the Isle of Man, have no right to enter that island to work or look for work.12

The provisions on freedom of movement of workers, and notably the principle of non-discrimination, apply not only to activities carried on in the territory of the Union, as defined in Article 299 EC, but also to employment relationships carried on in third countries, provided that they have a sufficiently close connection with the territory of the Union. That connection may be one of fact (as in the case of workers temporarily sent aboard by an employer having its registered office in a Member State13) or of law, in the sense that the employ-ment relationship, whilst permanently carried on abroad, is dependent on a Member State and is subject, at least in part, to the legislation of that Member State.14

II.3 Scope of application rationepersonae of the Community rules on freedom of movement of workers

In order to define the scope, ratione personae, of the rules on the freedom of movement of workers it is necessary to identify the beneficiaries of that free-dom and thus to ascertain the meaning of “worker” intended by the Treaty.

The Court of Justice has assigned a Community meaning to the notion of worker as it appears in Article 39 EC with the result that the Member States may not determine whether or not a person is a worker using criteria that are

12 See the interpretation of protocol 3 given in the judgments of the Court of Justice in Case C-355/89 Barr and Montrose Holdings ECR [1991] I-3479 and Case C-171/96 Pereira Roque ECR [1998] I-4607.

13 See the judgment in Case 36/74 Walrave [1974] ECR 1405 and Case 237/83 Prod-est [1984] ECR 3153, at para. 6. The same principle applies to seamen: see the judgment in Case 9/88 Lopes da Veiga [1989] ECR 2989, at paras 15-16.

14 See the judgment in Case C-214/94 Boukhalfa [1996] ECR I-2253. In that case, the applicant in the main proceedings, a Belgian citizen, was employed in Algeria at the German Embassy.

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relevant in national law. In particular, according to the Court, restrictive inter-pretations should be avoided, it being sufficient to give rise to an employment relationship for a person to perform, for a certain period of time, services for and under the direction of another person in return for which he or she receives remuneration.15 Seen thus, the legal nature of the relationship which, under cur-rent, relevant national law, binds the contracting parties is irrelevant.16

Thus, for example, a person is a “worker” within the meaning of the Treaty if he or she performs part time work for another and, because it is part time, receives remuneration below the minimum level guaranteed by national law in the sector in question, it being irrelevant whether the person concerned is satisfied with the remuneration he or she receives for that work or supplements it from other sources of income. The principle is nevertheless tempered by the fact that the work done must amount to real, effective activity. Any activity which is so minimal as to be merely marginal or ancillary is excluded because such activity would not in the end amount to an economic activity in the proper sense of the term and, as we have seen, the rules on freedom of movement in the Treaty are addressed (or were addressed) only to people carrying on or intending to carry on an economic activity.17 The work is real and effective, however, if the services performed are capable of being regarded as forming part of the normal labour market18 in the sense that there is a demand for and a supply of such services.

15 See the judgment in Case 66/85 Lawrie-Blum [1986] ECR 2121, Case 344/87 Bettray [1989] ECR 1621, paras 11-12, Case 197/86 Brown [1988] ECR 3205, paras 21 to 26, Case C-3/90 Bernini [1992] ECR I-1071, para. 14, Case C-413/01 Ninni-Orasche [2003] ECR I-13187, paras 23-24. See also A. Adinolfi, La libertà di circolazione delle persone, in G. Strozzi (ed.), Diritto dell’Unione europea. Parte speciale (Giappichelli, Torino, 2nd edition, 2005) 110 ff., A. Adinolfi, Arti-colo 39, in A. Tizzano (ed.), Trattati dell’Unione europea e della Comunità euro-pea (Giuffrè, Milano, 2004) 358 ff., F. Pocar, I. Viarengo, Diritto comunitario del lavoro (Cedam, Padova, 2nd edition, 2000) 59 ff., G. Tesauro, Diritto comunitario (Cedam, Padova, 4th edition, 2005) 477 ff.

16 The Court has held irrelevant the fact that the relationship between the employer and the employee is governed by public law, rather than private law (Case 152/73 Sotgiu [1974] ECR 153), or indeed by international law (Joined Cases 389/87 and 390/87 Echternach and Moritz [1989] ECR 723, para. 15, Case C-411/98 Ferlini [2000] ECR I-8081, para. 42, this being a case concerning an official of a Euro-pean Community institution).

17 See Case 53/81 Levin [1982] ECR 1035, paras 15 to 17, Case 139/85 Kempf [1986] ECR 1741, paras 10 to 14, Case C-413/01 Ninni-Orasche [2003] ECR I-13187, para. 32. Activities consisting in rehabilitation or reintegration are not such as to confer the status of worker: Case 344/87 Bettray [1989] ECR 1621, paras 17 to 20, Case C-1/97 Birden [1998] ECR I-7747, paras 30-31.

18 Case C-456/02 Trojani [2004] ECR I-7573, para. 24.

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Again, in the same vein, the Court has held that Articles 39 EC et seq. apply where the worker carries on an economic activity under the direction and supervision of another person for whom the work is done and receives remu-neration for it even if the work is done during a period of practical preparation in anticipation of the true exercise of a professional activity, as is the case with trainees and apprentices.19 The Court has also held that a person must be con-sidered an employee if he or she carries on an activity in a company of which his wife is the director and sole shareholder, provided that the work is done under an employment relationship.20

No relevance whatsoever attaches to the sector in which the work is done. People employed in the maritime transport sector have thus been deemed workers within the meaning of the Treaty; the fact that such transport is the subject of special rules in the Treaty does not remove them from the scope of the fundamental principles of freedom of movement, except where expressly so provided.21 The irrelevance of the features of the economic sector in which the person operates for the purposes of applying the rules on freedom of move-ment of workers has been underlined by the Court with reference to the activ-ity of sports professionals. Article 39 EC applies to them in that their activity may be viewed as an economic activity within the meaning of Article 2 of the Treaty, notwithstanding the fact that it has sporting and cultural aspects which are typically absent from classic types of work.22 Moreover, those aspects can be important in deciding the compatibility of rules or practices which exclude foreign players from certain matches for reasons which are not of an economic

19 Case 66/85 Lawrie-Blum [1986] ECR 2121, paras 17 to 20, and, later, Case C-3/90 Bernini [1992] ECR I-1071, and Case C-313/01 Morgenbesser [2003] ECR I-13467, which deals with a trainee undergoing professional training.

20 See Case C-337/97 Meeusen [1999] ECR I-3289. On the other hand, the director of a company of which he or she is the sole shareholder is not a worker, for the purposes of Community law, precisely because he or she does not carry on his/her activity under an employment relationship: Case C-107/94 Asscher [1996] ECR I-3089.

21 See Case 167/73 Commission v France [1974] ECR 359, paras 20 to 33.22 See Case 36/74 Walrave [1974] ECR 1405, para. 4, Case C-415/93 Bosman [1995]

ECR I-4921, paras 69 to 87, Case C-176/96 Lehtonen [2000] ECR I-2681, para. 60, Case T-313/02 Meca-Medina and Majcen v Commission [2004] ECR II-3291, para. 39. Obviously these same criteria lead to the application to the sporting activ-ity of professionals and semi-professionals of the rules on the freedom to provide services where their activity amounts to the autonomous provision of services: see Case 13/76 Donà [1976] ECR 1333, paras 9-10. See also S. Bastianon, Il diritto comunitario e la libera circolazione degli atleti alla luce di alcuni recenti sviluppi della giurisprudenza, Diritto dell’Unione europea (1998) 901, J.-P. Dubey, La libre circulation des sportifs en Europe (Bruylant, Bruxelles, 2000) 321 ff.

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nature but which relate to the particular nature and context of such matches and are thus of sporting or cultural interest only.23

This broad interpretation of the notion of worker has led the Court to hold that a person will retain his/her status of worker, within the meaning of Article 39 EC, if, after having worked in a Member State other than his/her own, he or she leaves work voluntarily in order to study full time, provided that there is a certain relationship between the earlier work and the studies in question, this being a matter to be decided by the national court. The question whether the studies are undertaken in the Member State of which the worker is a citizen or that where he or she has worked has no bearing on the issue because the freedom allowed to national workers to undertake training courses in another Member State must also be extended to migrant workers, in recognition of the principle of equal treatment.24 The case in question must, however, be distin-guished from that of a student to whom Directive 93/96/EEC applies, because the person retains the more favourable status of worker by virtue of the specific connection between his/her studies and his/her earlier work. The more rigorous requirements upon which Directive 93/96/EEC makes the right of residence conditional do not, therefore, apply to such a case.

The same logic and the same eagerness to expand the categories of ben-eficiaries of the right to free movement are at play in bringing within the scope of the law on workers those who move from one State to another actually to seek work.25Whilst the focus of case-law has been on the definition of worker, it should be remembered that Article 39 EC may be invoked not only by the worker, as happens in most cases, but also by the employer, in order to chal-lenge national laws which prevent him or her from taking on workers from other Member States.26

II.4 Restrictions applying to “purely internal” situationsEven where the objective and subjective requirements mentioned earlier are satisfied, a person may not avail himself or herself of the rules on freedom of movement if the circumstances of his/her case are purely internal to a Member State and thus lack any connection with the cases contemplated by Commu-nity law. In other words, the absence of any “foreign element” from a purely

23 Such is the case of matches between national representatives of two countries: Case 13/76 Donà [1976] ECR 1333, para. 14, Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR 2549, para. 43.

24 Case 39/86 Lair [1988] ECR 3161, para. 37, and Case C-3/90 Bernini [1992] ECR I-1071, paras 18 to 21.

25 Case C-292/89 Antonissen [1991] ECR I-745, para. 37, and Case C-3/90 Bernini [1992] ECR I-1071, paras 18 to 21.

26 See, in particular, Case C-350/96 Clean Car Autoservice [1998] ECR I-2521.

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national situation precludes the application of Community law and brings the case entirely within national law.

The sovereignty of the State in purely internal matters is justified by the fact that, in such cases, there is no issue of equal treatment or discrimination on the basis of nationality 27. Naturally, in governing purely domestic matters, national legislation must nevertheless observe the bonds of other international commitments. Nor is it possible to preclude (or deny) the fact that Community laws have the ability and “power” to influence the choices made in national leg-islation in favour of a higher standard of treatment even of nationals. Any less favourable treatment of purely domestic situations compared with that which would apply to similar situations governed by Community law would indeed by liable to be assessed in the light of the parameters of constitutionality of the national legal system, which provide the foundation for equality, and the subjective position guaranteed by Community law will become a factor against which to measure the rules applicable to purely internal situations.28

Given that the rules on freedom of movement do not apply to purely inter-nal situations, a citizen of a Member state cannot, in principle, invoke those rules against his/her own State.

The Court of Justice has, however, considered how far that principle can be taken and has avoided treating as purely internal cases in which a citizen, whilst invoking Community law against his/her own State, has sought never-theless to protect, albeit indirectly, his/her own freedom to move in the territory

27 This principle has been confirmed many times in connection with the freedom of movement of workers. See Case 175/78 Saunders [1979] ECR 1129, para. 11, Case 180/83 Moser [1984] ECR 2539, para. 15, Case C-332/90 Steen [1992] ECR I-341, para. 9, Case C-60/91 Morais [1992] ECR I-2085, paras 7 to 9, Case C-19/92 Kraus [1993] ECR I-1663, para. 15, Case C-415/93 Bosman [1995] ECR I-4921, para. 19, Joined Cases C-64/96 and C-65/96 Uecker and Jacquet [1997] ECR I-3171, para. 16, Joined Cases C-225/95 to C-227/95 Kapasakalis [1998] ECR I-4239, para. 23. See also, N. Nic Schuibhne, Free movement of persons and the wholly internal rule: Time to move on?, C.M.L. Rev. (2002) 731.

28 See the judgment in Case C-132/93 Steen II [1994] ECR I-2751, paras 8 to 11. Worthy also of mention on this point is the judgment of the Italian Constitutional Court of 16 June 1995, no 249 in Rivista di diritto internazionale, 1995, 813, in which the Court found a connection between the internal situation and the situ-ation contemplated by Community law in the fact that the functions carried out by a national and a foreigner were the same, thus justifying the application to the national of the relevant Community law. See also D.M.W. Pickup, Reverse discrimination and freedom of movement for workers, C.M.L. Rev. (1986) 135, E. Cannizzaro, Esercizio di competenze comunitarie e discriminazioni “a rovescio”, Diritto dell’Unione europea (1996) 351, G. Gaja, La libera circolazione dei lavoratori: diritto comunitario e diritto nazionale. Considerazioni introduttive, in B. Nascimbene (ed.), La libera circolazione dei lavoratori (Giuffrè, Milano, 1998) 20. See also Chapter II, para. 4.

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of other Member States. Thus the Court has held that a citizen of one Member State who has gone to another Member State as a worker within the meaning of Article 39 EC and who returns to establish himself or herself in the State of which he or she is a citizen is entitled to be accompanied by a spouse who is a citizen of a non-member state on the same conditions as are laid down for workers who are citizens of another Member State. Nor is it a valid objection that a national of a Member State enters and resides in that State by virtue of rights attendant upon his/her nationality and not by virtue of those conferred on him or her by Community law. Indeed, according to the Court, a citizen might be deterred from leaving his/her country of origin in order to pursue employ-ment in another Member State “if, on returning to the Member State of which he is a national ... the conditions of his entry and residence were not at least equivalent to those which he would enjoy under the Treaty or secondary law in the territory of another Member State”.29

Much in the same vein, the Court has held Community law to apply to situations where a citizen claims the right to avail himself or herself, in his/her own Member State, of advantages acquired through the possibilities afforded him or her by Community law, such as those relating to professional qualifica-tions gained in a Member State other than his/her own.30 Thus, on occasion, Community law may be invoked in opposition to national laws which place citizens at a disadvantage solely because they have exercised the freedoms guaranteed by the Treaty,31 the reason being that, otherwise, citizens would end up being hampered and discouraged of their efforts to enjoy the freedom of movement guaranteed them by the Treaty.

II.5 The requirement of citizenship of a Member StateIn principle, freedom of movement is accorded only to workers who are citi-zens of a Member State.32 In fact, the requirement of citizenship of a Member

29 Case C-370/90 Surinder Singh [1992] ECR I-4265, paras 19 to 23. The scope of this ruling was further defined in Case C-109/01 Akrich [2003] ECR I-9607, inasmuch as, in order to enjoy a right of re-entry as a family member of the worker, a spouse who is a national of a third country must have been legally resident in the country from which he or she moved to a Member State (see, in particular, para. 50).

30 See Case 115/78 Knoors [1979] ECR 399, para. 20, concerning a professional qualification, Case 246/81 Broekmuelen [1981] ECR 2311, para. 20, concerning the professional qualification of a general medical practitioner, which is the sub-ject of a harmonizing Community directive, Case C-19/92 Kraus [1993] ECR I-1663, paras 15 to 23, concerning an academic qualification, Case C-224/01 Köbler [2003] ECR I-10239, paras 73-74, concerning professional experience gained in other Member States.

31 Case C-18/95 Terhoeve [1999] ECR I-345, paras 27 to 29.32 Case 238/83 Meade [1984] ECR 2631.

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State is expressly provided for in the Treaty with reference to self-employed persons (establishment and provision of services) but not in relation to employ-ees, to whom Article 39(2) EC refers in the broadest of terms as “workers of the Member States”.33 However, that provision has always been understood as referring only to citizens of the Member States and the provisions implement-ing Article 39 EC (Article 1 of Regulation (EEC) No 1612/68, and Article 1 of Directive 68/360/EEC until 30.4.2006, and later on Article 7 of Directive 2004/38) confirm that interpretation.

Citizenship is a matter for the Member States to decide in accordance with the customary principles of international law. Where a person possesses dual citizenship, being a citizen of both a Member State and a non-member state, he or she must, for the purposes of exercising the freedoms guaranteed by the Treaty, be regarded as a Community citizen. A Member State in which he or she proposes to exercise the freedom of movement may not restrict the effects of the grant of nationality by another State by imposing additional conditions.34 As we have seen, the principle has been fully confirmed by the provisions on citi-zenship of the Union and in particular Article 17 EC which provides that every person holding the nationality of a Member State is a citizen of the Union.35

People who are citizens of the Union may, however, be denied the advan-tages conferred by the provisions on freedom of movement of workers, for a limited period of time, if they are nationals of one or other of the new Member States. In more than one case the act setting out the terms of accession laid down a transitional period during which application of Articles 1 to 6 of Regu-lation (EEC) No 1612/68, which deal with access to the employment market, is suspended.36 The consequence of this is that, for the duration of the relevant derogation, national provisions relating to foreigners generally will remain applicable even to such citizens of the Union. Thus, primary Community law (as are the provisions of the accession treaties) introduces a significant, albeit

33 The form of words is different from that in Article 69 ECSC and Article 96 EAEC.

34 Case C-369/90 Micheletti [1992] ECR I-4239, paras 10 to 12. The same approach was taken in Case C-122/96 Saldanha [1997] ECR I-5325, para. 15.

35 For a more complete discussion of citizenship of the Union, see chapter I.36 See Article 45(1) of the Act of Accession for Greece (OJ L 291, 19/11/1979), Arti-

cle 56 of the Act of Accession for Spain and Article 216 of the Act of Accession for Portugal (OJ L 302, 15/11/1985). A similar transitional period was laid down in the acts of accession for Estonia, Latvia, Lithuania, Poland, The Czech Republic, Slovakia, Slovenia and Hungary (OJ L 236, 23/9/2003) and in the acts of accession for Bulgaria and Romania (OJ L 157, 21/6/2005). On the 2004 transitional period, see A. Lang, La libera circolazione delle persone in un’Unione ampliata: il nuovo regime dopo il 1 maggio 2004, Corriere giuridico (2004) 817, A. Adinolfi, Free movement and access to work of citizens of the new Member States: The transi-tional measures, C.M.L. Rev. (2005) 469.

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temporary, derogation from the principle of equal treatment of workers who are nationals of the Member States and discriminates even between citizens of the new Member States.

Workers who are nationals of non-member states are able to enjoy freedom of movement when that is provided for in international agreements between the Community and their country of origin. Obviously, in such cases, the right to move freely will derive not from the Treaty but from the provisions of the rel-evant international agreement and will thus be circumscribed by the limits laid down in that agreement.37

II.6 Workers’ family membersThere has been another kind of extension of the right to move freely. Second-ary Community laws have in fact sought to promote the family unity, making it easier for the families of workers exercising their freedom of movement to join the worker.

It thus follows that there is a dual derogation from the fundamental prin-ciple that the beneficiaries of the right to move freely must be economically active citizens of one of the Member States: first, the benefit of this freedom is extended to people who need fulfil no economic condition, the sole crite-rion being their family relationship to the worker from whom, moreover, they derive the right, and whose fortunes they must follow; secondly, the worker may be accompanied even by family members who are nationals of a non-member country.

For a long time, the relevant rules were included in Article 10 of Regulation (EEC) No 1612/68. It identifies two categories of family member: (a) those who are entitled to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State: a spouse,38

37 For a fuller discussion of the cases in which citizens of third countries may enjoy freedom of movement within the Union, see Chapter V.

38 A spouse is the person to whom a worker is legally married and retains the right of residence until divorce or annulment of the marriage, thus even during separa-tion or in the absence of cohabitation (Case 267/83 Diatta [1985] ECR 567, para. 20). In the event of the decease of the worker, a spouse will have a right to remain under the conditions laid down in Regulation (EEC) No 1251/70, which requires that the worker must have completed two years' uninterrupted residence before his/her decease. An unmarried cohabitant is not regarded as a spouse, although, if a Member State confers a right of residence on an unmarried cohabitant of a national worker, it must grant that same benefit also to a Community worker: the Court of Justice based that conclusion on the right to equal treatment in the enjoyment of social advantages, referred to in Article 7 of Regulation (EEC) No 1612/68 (Case 59/85 Reed [1986] ECR 1283). One particular case, which, never-theless, seems not to contradict the Court's thinking thus far, in that it is based on an assessment of special circumstances, is Case C-65/98 Eyüp [2000] ECR I-4747,

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descendants under the age of 21 years39 or dependant40 and dependent relatives in the ascending line of the worker and his/her spouse; (b) any other member of the family of the worker who is dependent on the worker or “lives under his roof” in the country whence he or she comes. Member States are not, however, obliged to admit to their territory the second category of family members, it merely being provided that they must facilitate their admission. Article 10 then goes on to provide that, before family members may join a worker, the latter must have available housing “considered as normal for national workers in the region where he is employed”.41

Insofar as concerns citizens of non-member countries, the Member States may require entry visas or the accomplishment of equivalent formalities, but in such case they must offer the person concerned every assistance with complet-ing the necessary formalities. The mere fact that a family member has entered

in which the Court held that the cohabitation in fact of a couple which had already entered the Community could be likened to formal marriage. This involved inter-preting Article 7(1) of Decision No 1/80 of the Association Council established by the Association Agreement between the European Economic Community and Turkey, which provides that "the members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State, who have been authorized to join him shall be entitled – subject to the priority to be given to work-ers of Member States of the Community – to respond to any offer of employment after they have been legally resident for at least three years in that Member State". The Court in fact ruled that "in those circumstances, having regard to the particular facts of the case before the national court, and in particular the fact that the Eyüps' period of extra-marital cohabitation took place between their two marriages, that period cannot be regarded as an interruption of their joint family life in Austria, so that it must be taken into account in its entirety for the purposes of calculating periods of legal residence within the meaning of the first paragraph of Article 7 of Decision No 1/80" (para. 36). Whilst dicta on the point are lacking, it seems pos-sible to infer from this same case-law that the notion of spouse within the meaning of Article 10 of Regulation (EEC) No 1612/68 does not include a companion of the same sex, even where there is a registered partnership (Case C-249/96 Grant [1998] ECR I-621 and Joined Cases C-122/99 P and C-125/99 P D and Sweden v Council [2001] ECR I-4319.

39 This rule is in clear contrast with the now general identification of the age of majority at eighteen years.

40 Dependency on parents is a question of fact and requires no justification: Case 316/85 Lebon [1987] ECR 2811, para. 22.

41 See Article 10(3) of Regulation (EEC) No 1612/68. The Court of Justice has, how-ever, interpreted this broadly: see Case 267/83 Diatta [1985] ECR 567, para. 18, in which it was held that the housing, considered as normal for the family, need not necessarily be a single unit. Furthermore, the availability of the housing may not be treated as a condition for renewal of a residence permit: Case 249/86 Commis-sion v Germany [1989] ECR 1263, para. 12.

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the territory of a State unlawfully does not justify an expulsion order, only a sanction proportionate to the gravity of the infringement.42

Family members who are nationals of a Member State must be issued with a residence document having the same characteristics as that issued to the worker.43 The spouse and children under the age of 21 years or otherwise dependent on the worker have the right to engage in any kind of secondary activity throughout the territory of the Member State, independently of their holding citizenship of a Member State.

Dividing family members into two categories, of which only the close family members enjoy a real right of entry and residence, and the inclusion of the condition relating to housing (notwithstanding the broad interpretation thereof given by the Court of Justice) have the effect of reducing the freedom of movement of family members to a degree which is hard to reconcile with the grant of that same right to categories of people who have nothing to do with work or, a fortiori, with the emergence of a concept like citizen of the Union, which, the Court of Justice has maintained, has the effect of unifying the vari-ous categories of persons who have the right to free movement.

The treatment of family members who are citizens of non-member coun-tries, which, as we have seen, is brought under the Community regime, in fact interferes with immigration policy. Traditionally reserved to the competence of the State, it has become a Community matter only in very recent times.44 Moreover, it is inspired by principles quite different from those underlying the freedom of movement of workers: while the free movement of citizens of the Union is conceived as an individual right, immigration policy is characterised by the broad margin of discretion which the Member States retain in the admis-sion of foreigners. The inevitable tensions between national and Community law have been addressed and resolved by the Court of Justice in numerous preliminary rulings, understandably on a case by case basis. It is not surprising, therefore, that Directive 2004/38/EC lays down a quite detailed set of rules on the entry and residence of family members who are citizens of non-member countries. The summary rules previously laid down in Articles 10 and 11 of Regulation (EEC) No 1612/68 have been replaced by longer, more detailed provisions on the subject.

The definition of family member ratione personae set out in Directive 2004/38/EC takes up the repealed Articles and expands on them. Unmarried partners obtain particularly favourable treatment: if the partner has contracted

42 Case C-459/99 MRAX [2002] ECR I-6591, paras 77 to 80.43 See, on this point, Article 4(4) of Directive 68/360/EEC which provides that a

residence document issued to a citizen of a non-member state must have the same validity as that issued to the worker on whom he or she is dependent; cf. Case C-356/98 Kaba [2000] ECR I-2623.

44 See, on immigration policy, chapter V below.

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a registered partnership and provided that the legislation of the host Member State treats registered partnerships as equivalent to marriage (Article 2(2)(b)) the partner has a right of entry and residence which may be relied upon as against the host Member State. If both those cumulative conditions are not satisfied but the partner has a “durable relationship, duly attested” (Article 3(2)(b)), the Member State must “facilitate entry” or undertake an extensive examination of the personal circumstances and justify any denial of entry or residence. As regards other family members who have no right of entry because they do not fall within the definition of close family member, it is provided that the State must facilitate entry “where serious health grounds strictly require the personal care of the family member by the Union citizen” (Article 2(2)(a)). The requirement of normal housing, a symptom of a set of rules influenced by “immigration control” thinking and the requirements of public security, is no longer stipulated.

Family members who are not nationals of a Member State will be granted leave to enter only if they hold a valid passport (Article 5) and an entry visa if the person is a national of a non-member state for which Community or national law requires a visa. Failure to produce the requisite documents does not entitle the State to turn such people back without first giving them an oppor-tunity to prove their status by other means.

In the case of residence of up to three months, a passport will suffice (Article 6). For stays of longer duration, family members who are nationals of non-member countries must obtain a residence card (Article 10 lists the docu-ments that must be presented). After a continuous period of residence of five years, even family members who are not nationals of a Member State acquire a right of permanent residence (Article 16), which is evidenced by the appropri-ate residence card (Article 20). Consequent upon the acquisition of this right of residence are several advantages, including, in particular, protection against expulsion (Article 28(2)).

The rights of family members depend upon their maintaining their status and so changes in family relationships will affect the right of residence. Thus, a national of a non-member country who loses his/her status as family member will, in the absence of relevant Community provisions, be entitled to stay only on the conditions laid down in national (or Community) laws on immigration. Thus expelled from the sphere of Community law, the person will be reas-similated with foreigners. This element of vulnerability warrants close surveil-lance of the family situation. The legal position of family members upon the decease or departure of the Union citizen is addressed analytically (Article 12) as on divorce, annulment of marriage or termination of a registered partnership (Article 13).

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II.7 The right to enter and reside in the territory of a Member StatePursuant to Article 39 EC, this right entails equality of treatment as between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

Article 39(3) specifies the content of this freedom of movement, listing the right to accept offers of employment actually made, the right to move freely within the territory of Member States for that purpose, the right to stay in a Member State for the purpose of employment and the right to remain in the territory of a Member State after having been employed.A logical precondition of the exercise of the right to work in another Member state is the entitlement, which all Community citizens have, to enter the territory of a Member State other than that of which the person concerned is a national. Closely linked with that is the right to exit the territory of the Member State of which one is a national.

The rules governing the worker’s right to leave his/her own country and enter the territory of another Member State, formerly contained in Directive 68/360/EEC, are from 30 April 2006 onwards to be found in Directive 2004/38/EC.

Article 4 of Directive 2004/38/EC provides that the Member States must grant their own nationals the right to leave their territory in order to take up activities as employed persons in the territory of another Member State. The only condition which can be attached to exit from the territory of the State is the presentation of a valid identity card or passport. Such documents must be valid for at least five years and for all Member States and for non-member countries through which the holder must pass when travelling.

Likewise, Article 5 of Directive 2004/38/EC places the Member States under a duty to admit to their territory Community citizens moving there to take up activities as employed persons on production of a valid identity card or pass-port. In the previous set of regulations Directive 68/360/EEC granted the right to entry to the beneficiaries of Regulation (EEC) No 1612/68, thus identifying them as those who move abroad in order to take up activities as workers and their families. The Community provisions did not allow Member States to make entry in their territory conditional upon the ability to demonstrate membership of one of the categories contemplated by Regulation (EEC) No 1612/68. Proof of that kind might only be required on issue of a residence document.45 Nota-bly, the Court of Justice has always maintained that border controls designed

45 See Case 157/79 Pieck [1980] ECR 2171, Case 321/87 Commission v Belgium [1989] ECR 997, Case C-68/89 Commission v Netherlands [1991] ECR I-2637. This is all made much clearer in Directive 2004/38/EC which does not differenti-ate between categories of persons for the purposes of entry. The right of entry (Article 5) is in fact guaranteed to “Union citizens”. Employees figure only in Article 7 (“Right of residence for more than three months”).

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to ascertain whether or not the person falls into the right category must not be made a condition of entry. In the same spirit, it has held unlawful national pro-visions under which a citizen of a Member State is required to answer questions asked by border surveillance officials concerning the purpose and duration of him/her journey and him/her financial means before being allowed to enter the territory of that State. On the other hand, requests designed to ascertain the validity of identity documents presented are lawful as the same provision of the directive requires citizens to present a valid document. The abolition of internal frontiers between Member States, achieved by the Single European Act and the Schengen Agreement (now brought within Community law46) has eased the free movement of persons because identity document checks are no longer provided for.

It has already been made clear in existing case-law that the requirement of possession of an identity document serves to prove the citizenship of the holder. Since that is the objective, it follows that it is not the physical presenta-tion of the document but citizenship that is the sole condition of entry.47 Thus, if the person is able to prove by other means him/her status as a beneficiary of the right to free movement, the mere fact that he or she is not in possession of an identity document cannot amount to sufficient reason to deny him or her entry. That interpretation has now been codified in Article 5(4) of Directive 2004/38/EC.

Secondary legislation prohibits Member States from requiring entry or exit visas or the completion of equivalent formalities and the Court of Justice has held the stamping on a passport of an authorisation to enter a State for a period of six months to amount to the same thing.48

Citizens who are allowed entry have the right to reside in the territory of the host Member State. That right of residence, however, is intended for the purposes of work and so is not of indefinite duration. Secondary legislation lays down the documents which a State may ask of a worker in order to prove him/her status, the State being prohibited from demanding any others.49

Where employment lasts for less than three months, the right of residence may be exercised on the basis of the document by virtue of which the worker entered the State and a document from the employer attesting the duration of the employment.50

46 On this aspect, see chapter 5, paragraph 5 below.47 See, most recently, albeit with regard to freedom of establishment, Case C-215/03

Oulane [2005] ECR I-1215.48 See Case 157/79 Pieck [1980] ECR 2171.49 See Case C-344/95 Commission v Belgium [1997] ECR I-1035 and Case C-363/89

Roux [1991] ECR I-273.50 Article 6 of Directive 2004/38/EC which reflects the content of Article 8 of Direc-

tive 68/360/EEC.

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In the case of employment, and thus residence, of longer duration, the required formalities have been simplified overtime. According to Directive 68/360/EEC, the worker has to be issued with a residence card for citizens of the Member States on presentation of the document on the basis of which he or she entered the territory of the State and a declaration or attestation of employ-ment. The residence document will be valid for no less than five years and will be automatically renewable. Only in the case of employment lasting more than three months but less than a year may the Member States issue a temporary residence document of the same duration as that of the period of work. That document is merely declarative, however, of a right which the worker derives directly from the Treaty 51; it may not be treated as the equivalent of a residence permit allowing national authorities the exercise of a possible discretion, as is usually the case vis-à-vis foreigners. It follows that any infringement of the rules for obtaining the issue of a residence document may not be sanctioned by expulsion, nor may such an infringement be considered in and of itself as con-duct potentially prejudicial to public order, because otherwise that would lead to the negation of a right conferred on the individual by the Treaty. Similarly, it would appear disproportionate to sanction such an infringement with detention, as the Member States still retain power to sanction failure to comply with the rules on the issue of residence documents with proportionate penalties such as a fine of an amount corresponding to the severity of the infringement 52.

Directive 2004/38/EEC simplifies the formalities. The residence docu-ment, as previously known, ceases to exist and a simpler attestation of reg-istration with the competent authorities, issued immediately, takes its place. Moreover, after a continuous period of five years of legal residence in a host Member State, a worker will acquire a permanent right of residence, and atten-dant upon that right is special protection against expulsion.

II.8 Restrictions on entry and residence arising from the need to safeguard the social assistance system of the host State

Article 39 EC contemplates the freedom of movement of workers, literally, for the purpose of accepting “offers of employment actually made”. It is not intended for the purpose of seeking work at a stage prior to the existence of any offer. However, in a statement recorded in the minutes upon the adoption of Directive 68/360/EEC, the Council agreed that citizens of the Member States might go to another Member State for the simple purpose of seeking work and that they had three months to do so. If, after that period, they had not found work, they could be expelled. Whilst the statement cannot be regarded as part of the Directive, the Member States were careful to transpose it into national

51 Case 48/75 Royer [1976] ECR 497, Case 8/77 Sagulo [1977] ECR 1495, Case 157/79 Pieck [1980] ECR 2171.

52 See Case C-24/97 Commission v Germany [1998] ECR I-2133.

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law in such a way that workers did have a right to move in order to seek work, but only for a period of three months.

Nevertheless, the Court of Justice has shown itself to favour a different, more liberal, interpretation of the scope of Article 39 EC, deferring to the fun-damental rule that a provision which enshrines a fundamental right in Com-munity law may not be interpreted so narrowly as to compromise its useful effect. In particular, the Community court has held that it cannot accept an interpretation that would preclude the right of citizens of Member States from moving freely and taking up residence in the territory of another Member State for the purpose of seeking work. That right must in fact be held to exist by virtue of Article 39 EC itself, there being, at most, a need to consider the pos-sibility of temporal restrictions. According to the Court, the right is guaranteed if those concerned are allowed to remain on the territory of a Member State for a reasonable period of time enabling them to apprise themselves of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged. In the specific case of English law, a period of six months was laid down for the right of residence of Community workers in search of employment. That period was judged reasonable, in principle, with the proviso that, if after expiry of the term the person is still continuing to seek employment and has genuine chances of being engaged, he or she cannot be required to leave the territory of the host Member State. The fact that the statement which the Council made is rather dif-ferent in import has been held to be entirely irrelevant and of no legal effect.53 This approach has been confirmed in subsequent case-law, in a case in which the Court affirmed that the right to remain for the purpose of seeking employ-ment lapses only where it is demonstrated that it is impossible for the person to find work.54

A person seeking employment does not, therefore, enjoy under Commu-nity law a full right of residence equivalent to that enjoyed by an active worker. While this may amount to a clear restriction of the freedom of movement of workers and on the possibilities which that right should offer to the employ-ment market, it is justified by the often mentioned need to ensure that the right does not translate into an excessive burden on the social assistance system of host Member States. Indeed, there are several traces of such a restriction in Community law. In addition to a clear judicial approach55 there are the 1990 residence directives which, guaranteeing a right of entry and residence to per-sons who are not economically active, makes those rights conditional upon the

53 See Case C-292/89 Antonissen [1991] ECR I-745, paras 10 to 19. To the same effect, see also Case C-344/95 Commission v Belgium [1997] ECR I-1035.

54 See Case C-171/91 Tsiotras [1993] ECR I-2925, paras 12-13.55 See the cases mentioned above and Case T-66/95 Kuchlenz-Winter v Commission

[1997] ECR II-637, paras 47 to 50.

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person having sickness insurance cover and an adequate income or pension.56 To the same effect, Directive 68/360/EEC provides that, whilst a residence doc-ument may not be withdrawn in the event that a worker involuntarily ceases to work, when such a document is renewed, it may be limited to a period of not less than twelve months if the person has been unemployed for more than twelve months consecutively.

Whilst not contradicting that line of thought, Directive 2004/38/EC seems to dispel some doubts. On the one hand, Article 14 lays down the general provi-sion that the right of residence of up to three months ceases should the person concerned become an unreasonable burden on the social assistance system of the host Member State. On the other hand, Article 14(3) provides that an expul-sion measure is not to be the automatic consequence of recourse to the social assistance system. In any event, migrant workers are always protected from expulsion in such cases. People seeking work are protected from expulsion, even if they have recourse to the social assistance system, provided that they can “provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged”.

A recent case, however, seems to call for revision of the traditional approach in that the Court of Justice held that “in view of the establishment of citizenship of the Union and the interpretation in the case-law of the right to equal treatment enjoyed by citizens of the Union, it is no longer possible to exclude from the scope of Article 48(2) of the Treaty − which expresses the fundamental principle of equal treatment, guaranteed by Article 6 of the Treaty − a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State".57 The State may, however, make the right conditional upon ascertaining that there is a real connection between the person seeking work and the employment market in the relevant State, a con-nection that may be evidenced by residence.

II.9 The right to equal treatment with national workers with regard to access to work and the conditions of work and employment

The right to equal treatment of migrant Community workers with national workers, with reference to access to employment, remuneration and the other conditions of work and employment, is enshrined in Article 39(2) EC and is a specific aspect of the general prohibition of discrimination on grounds of nationality laid down in Article 12 EC. The rules implementing the principle are set out essentially in Regulation (EEC) No 1612/68, both with regard to access to employment and the conditions of work and employment. The principle of non-discrimination is intended to prevent national legislation being applied dif-ferently for workers of different nationalities; it does not mean that national

56 On these directives, see chapter I, paragraph 7.57 See Case C-138/02 Collins [2004] ECR I-2703, para. 63.

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legislations must be uniform.58 Thus, simple differences between national legal systems cannot be resolved in aid of the prohibition of discrimination: in order to achieve that objective the institutions are free to exercise their competence in social policy and adopt measures designed to approximate national laws applicable to workers.

Insofar as concerns the prohibition of discrimination in access to employ-ment, the principle is enunciated in Article 1 of Regulation (EEC) No 1612/68 essentially as the principle of Community priority enjoyed by workers who are nationals of other Member States: nationals of the Member States have the right to take up an activity as an employed person and to pursue such activ-ity in another Member State in accordance with the provisions governing the employment of nationals of that State.

It follows that any national rules which limit, by reference to given per-centages, sectors or geographical area, access for Community citizens to the employment market are inconsistent with Community law. A typical example of national rules that are incompatible with the prohibition of discrimination, other than the cases contemplated by Article 39(4) EC, would be a provision which reserves to nationals of the State in question certain jobs or creates quotas for foreign nationals’ access to certain jobs.59

Moreover, the principle of equal treatment in relation to access to employ-ment must be upheld even in relation to indirect discrimination.60 This means that national laws which, formally applying to both nationals and foreigners, have the sole or principal effect of excluding nationals of other Member States from employment will not be permissible (Article 3 of Regulation (EEC) No 1612/68). That approach has been confirmed by the case-law of the Court of Justice in which it affirms that the principle of equal treatment prohibits “not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead in fact to the same result”, thus achieving the equal treatment “in fact and in law” which underlies Regulation (EEC) No 1612/68 (fifth recital).

58 See, for example, Case C-92/02 Kristiansen [2003] ECR I-14597, para. 38.59 See Case 167/73 Commission v France [1974] ECR 359, and, again regarding

employment on board a ship, see Case C-37/93 Commission v Belgium [1993] ECR I-6295.

60 See, to that effect, Case C-237/94 O’ Flynn [1996] ECR I-2617, paras 17 and 18, Case C-57/96 Meints [1997] ECR I-6689, paras 44-45, Case C-187/96 Commis-sion v Greece [1998] ECR I-1095, paras 18-19, Case C-124/99 Borawitz [2000] ECR I-7293, paras 25 to 29. In legal theory, see L. Daniele, Non-discriminatory restrictions to the free movement of persons, E.L. Rev. (1997) 191, P. Dollat, Libre circulation des personnes et citoyenneté européenne: enjeux et perspectives (Bruylant, Bruxelles, 1998) 20 ff.

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The case-law on discrimination is copious and the types of cases dealt with very varied. Of special relevance to the topic under consideration it is worth mentioning the numerous judgments which address the issue of discrimina-tion in connection with certificates attesting the completion of studies. Indeed, national laws often make access to employment conditional on the possession of such a certificate issued by the authorities of the host Member State and do not take account of certificates obtained by the person concerned in him/her State of origin or in the State from which he or she comes. Bearing in mind the prohibition on covert discrimination, the Court has held incompatible with the Treaty a Spanish law which, for the purposes of access to a certain job, required the possession of a diploma issued by a training institute in Spain, to the exclusion of similar diplomas obtained in other Member States. The Court ruled that where, for the purposes of access to employment, the possession of a certain certificate of studies is required, the authorities of the State may accept foreign diplomas; where they do not do so they must consider to what extent the knowledge and qualifications attested in the diploma are equivalent to those demanded by the rules of the host State.61 The Court ruled similarly in Angonese,62 holding that requiring workers to prove their linguistic knowledge solely by means of a diploma issued in a single province of a Member State (in this case, the Italian Province of Bolzano) constituted discrimination prohibited by the Treaty.

When assessing professional or occupational experience required for the purpose of access to a job in a Member State account must be taken of any such experience gained by the migrant worker in him/her own country of origin.63

Pursuant to Article 3(1), subparagraph 2, of Regulation (EEC) No 1612/68, it is possible to derogate from the principle of equal treatment in access to employment for workers who need linguistic knowledge which foreigners cannot attain. In the only case in which the Court of Justice expressly ruled on this derogation it held that a national rule which required knowledge of the Irish language for a post as professor of fine art in a professional teaching institute was compatible, notwithstanding the fact that knowledge of Irish was not indispensable to performance of the relevant duties and that lessons could well be given in English, the country’s second official language. A broad inter-

61 Case C-234/97 Fernández de Bobadilla v Museo Nacional del Prado [1999] ECR I-4773. See also Case C-313/01 Morgenbesser [2003] ECR I-13467, Case C-171/02 Commission v Portugal [2004] ECR I-5645, para. 66. On the recognition of diplomas, see chapter III, para. 16.

62 Case C-281/98 Angonese [2000] ECR I-4139. On the anomalies of local legis-lation by comparison with Community law, see R. Schulmers von Perwerth, Le condizioni d’accesso al pubblico impiego in Alto Adige alla luce dell’art. 48 del Trattato CE, Rivista di diritto europeo (1996) 235.

63 Case C-419/92 Scholz [1994] ECR I-505, paras 10-11.

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pretation of the linguistic derogation should not, however, be inferred from that ruling as the Court’s solution was, in that particular case, motivated by a con-sideration of the peculiar situation in Ireland where, for some time, there has been a policy of promoting the national language.64 In more recent times, the Court has had occasion to rule on a German law which made the conclusion of an agreement between the national health service and a professional (a dentist, in this case) conditional upon knowledge of the language. The Court found the requirement legitimate and proportional, because it was justified by an impera-tive need to ensure “the reliability of a dental practitioner’s communication with his patient and with administrative authorities and professional bodies”.65 Even though that judgment was interpreting the rules on freedom of establish-ment, the principle expressed in it may be applied to employees.

The rule on equal treatment extends, after access to employment, to the conditions of work and employment, both those closely connected with the performance of the duties (such as remuneration or the duration of contracts) and rights and advantages not directly connected with the job (social or tax advantages, for example).

As regards the first set of conditions, the relevant rule is laid down in Article 7(1) of Regulation (EEC) No 1612/68, which refers to remuneration, dismissal, reinstatement and re-employment.

The principle is designed to apply not only in relation to rules and admin-istrative practices in the Member States but also to collective or individual employment agreements of which any conditions which discriminate against workers who are nationals of other Member States are null and void (Article 7(4) of Regulation (EEC) No 1612/68).

In the case-law of the Court of Justice there are to be found many instances where the principle is applied, evidencing a desire on the part of the Commu-nity judges to render as effective as possible the rule of equal treatment. Covert discrimination in particular is struck down. Thus, the Court has held contrary to Community law a national provision which prevents migrant workers who are obliged to interrupt their own work in order to carry out military service in their country of origin from including their period of service in the forces in the period of time spent with their employer while military service done in the country in which he or she works is taken into account for national workers.66 The Court has also held to apply to workers who are nationals of other Member States a special rule providing protection against dismissal in the event of a loss

64 Case 379/87 Groener [1989] ECR 3967.65 Case C-424/97 Haim [2000] ECR I-5123.66 Case 15/69 Ugliola [1969] ECR 363.

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of earning capacity consequent upon an industrial accident laid down for the benefit of national workers.67

Insofar as concerns the calculation of remuneration or professional arrangements, the Court has confirmed the requirement that Member States take into account periods of service which an official in the public service has completed in the administrative bodies of another Member State.68

There are a great many cases on equal treatment in the enjoyment of social or tax advantages.69 According to this case-law, “the [social and tax] advan-tages ... are all those which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and the extension of which to workers who are nationals of other Member States therefore seems suitable to facilitate their mobility within the Community”.70

It is worth mentioning the cases in which the Court has affirmed the right of migrant workers to enjoy the benefit of financial advantages conferred on nationals in the event of the birth of a child.71or the case in which the Court held the right to reduced rail fares granted by a national railway company to large families to constitute a social advantage within the meaning of Article 7 of Regulation (EEC) No 1612/68.72 Also relevant are the rulings in which the Court confirmed the right to equal treatment for a foreign worker as regards the use of a different language in a procedure when that option was offered to an ethnic minority of the State in which the worker worked73 and the right

67 Case 44/72 Marsman [1972] ECR 1243.68 See, in particular, Case C-15/96 Schöning-Kougebetopoulou [1998] ECR I-47,

Case C-187/96 Commission v Greece [1998] ECR I-1095, case C-195/98 Öster-reichischer Gewerkschaftsbund [2000] ECR I-10497. For a useful summary of the case-law on this point, see Case C-224/01 Köbler [2003] ECR I-10239.

69 Case C-279/93 Schumacker [1995] ECR I-225, Case C-391/97 Gschwind [1999] ECR I-5451, Case C-87/99 Zurstrassen [2000] ECR I-3337. For critical comment on the point, see L.S. Rossi, Principio di non discriminazione e profili fiscali della libera circolazione delle persone, in Bruno Nascimbene (ed.) supra (note 28) 81.

70 Case 207/78 Even [1979] ECR 2019, para. 22. Although broadly interpreted, the concept does not include a service which is not connected with the status of worker, but is provided “to former prisoners of war, who prove that they under-went a long period of captivity, in testimony of national gratitude for the hardships they endured and is thus paid as a quid pro quo for the service they rendered to their country” (Case C-386/02 Baldinger [2004] ECR I-8411, paras 17 and 19).

71 Case 65/81 Reina [1982] ECR 33. The principle was subsequently confirmed in Case C-111/91 Commission v Luxembourg [1993] ECR I-817, paras 9 to 12.

72 Case 32/75 Cristini [1975] ECR 1085.73 Case 137/84 Mutsch [1985] ECR 2681, Case C-274/96 Bickel [1998] ECR I-

7637.

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of the worker, defined in terms of a social advantage, to be joined by him/her unmarried companion, who was thus to be authorised to enter and remain in the territory of the Member State where the worker resided, in that that could lead to greater integration in the host country.74

Criteria based on residence may involve covert discrimination.75 This would include all national provisions which make the grant of a benefit condi-tional on residence in the State, a condition which it is easier for nationals to fulfil than Community workers.76

Still with regard to rights that are not closely connected with the employ-ment relationship, Article 9 of Regulation (EEC) No 1612/68 provides for equal treatment between migrant and national workers insofar as concerns rights and benefits in matters of housing. On this point, access to house ownership is con-sidered by the Court as important for full realisation of freedom of movement for workers, with the consequence that a national provision which makes exer-cise of the right of nationals of other Member States to purchase and enjoy real property subject to conditions which do not apply to nationals is incompatible with Article 39 EC and Article 9 of the regulation.77

Article 8 of Regulation (EEC) No 1612/68 requires equality of treatment as regards the exercise of trade union rights, with the sole exception − which is consistent with Article 39(4) − of participation in the management of bodies governed by public law and the holding of an office governed by public law. This provision too has been interpreted broadly by the Court of Justice which has held that the right of migrant workers to participate in trade union activ-ity transcends trade union organisations proper and includes participation in bodies which, not having the legal status of trade union, also have the task of protecting and representing the interests of workers.78

74 Case 59/85 Reed [1986] ECR 1283.75 Case 152/73 Sotgiu [1974] ECR 153 and Case C-37/93 Commission v Belgium

[1993] ECR I-6295.76 Case C-57/96 Meints [1997] ECR I-6689. The case-law is very extensive. See

Case C-337/97 Meeusen [1999] ECR I-3289, for the incompatibility with Com-munity law of a national provision which made the grant of a student bursary con-ditional upon residence in the State, Case C-299/01 Commission v Luxembourg [2002] ECR I-5899 for the incompatibility with Community law of a national pro-vision which made residence in the State a condition of the grant of a guaranteed minimum income.

77 Case 305/87 Commission v Greece [1989] ECR 1491.78 Case C-213/90 ASTI [1991] ECR I-3507, Case C-118/92 Commission v Luxem-

bourg [1994] ECR I-1891, Case C-465/01 Commission v Austria [2004] ECR I-8291.

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II.10 Exclusion of freedom of movement in the case of employment in the public service

Article 39(4) EC excludes the application of the three previous sections, and thus of all the rules on freedom of movement of workers, from “employment in the public service”.79 The rule is in fact the expression of a principle which goes beyond the ambit of employment relations and affects the whole area of freedom of movement of persons. Indeed, Article 45 EC excludes from the scope of the rules on freedom of establishment activities which are connected, even occasionally, with the exercise of official authority and Article 55 EC goes on to render that exclusion applicable also to the provision of services.

The Member States thus intended to reserve such activities − which they regard as particularly sensitive for the general interests of the country − to their own nationals, irrespective of whether the activities are carried on under an employment relationship or independently.

The fact that the ratio underlying the various rules just mentioned is the same in each case justifies the essential interpretative consistency which the Community court has applied in relation to them, despite the fact that the vari-ous rules are not drafted in precisely the same terms. Indeed, while foreigners are excluded from establishment and the provision of services, by virtue of an objective criterion, only for those activities which are connected with the exer-cise of official authority, in the case of employment the exclusion is operated with reference not so much to the actual function which the employee is asked to perform as much as, more generally, the subjective criterion of having as counterpart in the employment relationship a public authority.

Moreover, the Court of Justice has shown itself keen to interpret the exclu-sion not only on the basis of a connection with public authority but also with regard to the characteristics of the position in issue. The derogation thus applies only to those posts which, involving “direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities”, presume the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality.80 The

79 See, on this point, J. Handoll, Article 48(4) EEC and non-national access to public employment, in E.L. Rev. (1988) 234, D. Traina, La libera circolazione dei lavora-tori comunitari (Giuffrè, Milano, 1990) 87 ff., L. Daniele, I limiti della libera circolazione: gli impieghi nella pubblica amministrazione e l’ordine pubblico, in B. Nascimbene (ed.), supra (note 28) 67, R. Caranta, Libertà di circolazione dei lavoratori nel settore pubblico, Diritto dell’Unione europea (1999) 21, A. Adi-nolfi, Articolo 39, supra (note 15) 373 ff., A. Adinolfi, La libertà di circolazione, supra (note 15) 132 ff., F. Pocar, I. Viarengo, supra (note 15) 69 ff., G. Tesauro, supra (note 15) 506 ff.

80 Case 149/79 Commission v Belgium [1980] ECR 3881, para. 10.

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Court has, in other words, held that a State may not reserve to its own nationals access to posts connected with public authorities or with entities governed by public law without first checking whether those posts entail direct or indirect exercise of the prerogatives and duties which have as their aim the protection of the general interests of the State. The functional criterion, which takes account of the specific characteristics of the post and the question whether it falls into a sector of public administration, must guide the Member States in deciding whether to reserve access to the post to their own nationals. That case-law gives rise to a Community notion of employment in the public service for the pur-poses of applying Article 39(4) EC, rather than merely a reference to national law.81 Thus we arrive at an interpretation of the exclusion not dissimilar from that which the Court gave in relation to freedom of establishment in the well-known Reyners judgment.82

Subsequently, the Court applied this principle to a number of cases in which migrant workers were excluded from posts in public administration. It thus found to fall outside the scope of the derogation laid down in Article 39(4) EC positions of employment as nurses in a public health authority, in view of the nature of the duties and the responsibilities they imply,83 teaching posts in State schools and, a fortiori, private schools,84 posts of foreign language assistant in a university,85 research posts at a national research centre, with the possible exception of posts which involve directing or advising the State on scientific or technical questions.86 Again on the subject of teaching, the Court has ruled that excluding nationals of other Member States cannot be justified by considerations pertaining to the protection of national identity. Whilst that value is recognised by Article 6(3) of the Treaty on European Union, it must be upheld by means which, observing the principle of proportionality rather than excluding from the teaching profession all foreign nationals, focus on require-ments relating to the training and language knowledge of the candidate.87

81 See, in particular, Commission v Belgium, cited in the previous footnote, espe-cially para. 19.

82 Case 2/74 Reyners [1974] ECR 631. For a fuller discussion, see chapter III, para-graph 8.

83 Case 307/84 Commission v France [1986] ECR 1725.84 Case 66/85 Lawrie-Blum [1986] ECR 2121. In relation to secondary education,

see Case C-4/91 Bleis [1991] ECR I-5627.85 Case 33/88 Allué [1989] ECR 1591, Case C-90/96 Petrie [1997] ECR I-6527. The

Italian legislation and practice which gave rise to the cases cited was later held inconsistent with Community law: see Case C-212/99 Commission v Italy [2001] ECR I-4923.

86 Case 222/85 Commission v Italy [1987] ECR 2625.87 Case C-473/93 Commission v Luxembourg [1996] ECR I-3207.

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The Court’s choice of a functional approach, necessitating the defini-tion of posts involving the exercise of power conferred by public law for the purpose of safeguarding general interests, meant that each Member State was left with a certain margin of discretion, notwithstanding the development of a considerable body of relevant case-law. For that reason too, the Commission chose to issue a communication to illustrate its own approach to the application of Article 39(4) EC88 in which it identifies, amongst other things, the specific activities within national public service which fall within the scope of the dero-gation. The Commission does this in two ways. First, it mentions whole sectors of public service, without distinction as to posts or functions: the armed forces, the police, the magistracy, tax administration and diplomacy, with the evident, though debatable conviction that all posts within such services entail the exer-cise of official authority for the purpose of safeguarding general public inter-ests. Secondly, it more correctly identifies certain posts on the basis of their characteristics: posts in ministries, local authorities or central banks occupied by staff whose work is coordinated around a particular public (legal) power of the State or of another public law body, such as the preparation of legal acts, their execution, monitoring of their application and the protection of subsidiary bodies.

Lastly, it should be remembered that any exclusion on the basis of Article 39(4) EC applies only to access to employment and may not be relied upon to justify discrimination in relation to the conditions of work or employment of migrant workers already working for such authorities.89

According to the traditional approach of the Court described earlier, it is a necessary (though not sufficient) condition for the application of Article 39(4) EC that the employer is a public authority.90 However, in a recent case, the Court held that Article 39(4) EC applies also to employees of private natural or legal persons (and in this case it was merchant shipping captains) if it can be “established that, in order to perform the public functions which are delegated to them, masters act as representatives of public authority, at the service of

88 Communication on the freedom of movement of workers and access to employ-ment in the public service of the Member States – Commission action in respect of the application of Article 48(4) of the EEC Treaty (OJ C 72, 18/3/1988, 2).

89 In addition to Case 152/73 Sotgiu [1974] ECR 153 and Case 222/85 Commission v Italy [1987] ECR 2625, see also Joined Cases 389/87 and 390/87 Echternach [1989] ECR 723 and Case C-187/96 Commission v Greece [1998] ECR I-1095.

90 As regards this particular approach, see Case C-114/97 Commission v Spain [1998] ECR I-6717, in which the Court excluded application of Article 39(4) EC to the case of private surveillance undertakings on the ground that they were not public authorities. See also Case C-283/99 Commission v Italy [2001] ECR I-4363, para. 25, which established that, if the employer is a private person, the derogation laid down in Article 39(4) EC is inoperative, whatever the duties of the employee.

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the general interests of the flag State”. However, in order for the derogation to apply, it is not sufficient for the person in question to hold a power of public authority, he or she must exercise that power in fact and habitually.91 That last development makes it even clearer that the judicial approach is to define the derogation within objective and functional limits, the derogation thus coming to represent a unifying trait with the restriction on the freedom of movement of self-employed persons.

II.11 The right to remain in the territory of a Member State after having worked there

The right of a migrant worker to continue to reside in the territory of a Member State in which he or she has worked by virtue of the rules on freedom of move-ment is expressly provided for in Article 39(3)(d) of the EC Treaty. As far as concerns the way in which that right is to be exercised in practice, however, the provision refers to Commission implementing regulations.

The provision is responsive to the need to avoid forcing workers, once their active working life is over, to return to their country of origin, leaving behind a country in which they have managed to integrate sufficiently well. Such a situation might, indirectly, discourage workers from exercising their right to free movement and thus render nugatory, or at least compromise, the objective set out in the Treaty.

The implementation rules were adopted through a regulation issued in 1970.92 That regulation laid down the right for workers reaching pensionable age to to remain in the territory of the State where they had been employed, on condition that they had worked in that State for twelve months at least, and had resided there for more than three years. The same right was granted also to workers who had ceased to work because of permanent incapacity to work, and to workers who after having been employed for three years in the territory of that Stat, and having resided there continuously, had become frontier workers (Article 2 of Regulation (EEC) No 1251/70).

Beneficiaries of the right to remain had to be issued with a residence permit valid for at least five years and automatically renewable.

The regulation laid down an important limitation in that the right to remain applied only to the State in which the person concerned last worked.

91 Case C-405/01 Colegio de Oficiales de la Marina Mercante Española [2003] ECR I-10391 and Case C-47/02 Anker [2003] ECR I-10447, concerning similar German legislation.

92 Regulation (EEC) No 1251/70 of the Commission of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State (OJ, English Special Edition, 1970 (II), 402), repealed by Regulation 635/2006/EC (OJ, L 112, 26/4/2006). For an article by article analysis of Regula-tion 1251/70, see D. Martin, supra (note 1) 235 ff.

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Indeed, States in which a person had worked, but had left it for a ‘long period’, had only the broadly formulated obligation to ‘facilitate re-admission’ (Article 8(2)). This gap was latter filled to a certain extent by Directive 90/365/EEC, which granted the right for citizens to remain in a Member State after having worked in the Community as an employed or self-employed person. However, as already noted, exercise of that right was conditional upon the possession of a sufficient income and sickness insurance.

These regulations have been included in Directive 2004/38. Since the tie between carrying out an economic activity and right to reside has progressively weakened, also the right to remain after having ceased to work has achieved a different relevance. In fact, the acquisition of the right to permanently reside after five years of legal and continuous residence (Art. 16), ensures a particular protection to beneficiaries, regardless of their qualification as workers. In this sense, workers who have ceased their activity before the completion of their five-year residence period, enjoy a preferential treatment, in derogation of the existing general rules. Essential requirements (achievement of retirement age, permanent disability, border-worker condition) are the same as those that had already been provided for by Regulation 1251/70.

II.12 Limitations on the right to enter and reside for reasons of public policy, public security and public health

The legitimacy of limitations on the right of foreign workers to enter and remain for reasons of public policy, public security and public health derives from Article 39 EC itself, paragraph 3 of which permits limitations based on those reasons.93 The same limitations apply to the right of establishment (Article 46 EC) and the freedom to provide services (Article 55 EC).

In line with this, the directive adopted in order to harmonize national laws laying down such restrictions applies not only to employees and their family members, but also to those exercising the right of establishment or the freedom to provide services and to their family members 94, and also to those who enjoy a right of residence 95. The rules were first set out in Directive 64/221/EEC, and extended to the freedom of movement of persons not economically active, as

93 As to legal theory, see L. Daniele, supra (note 79) 76 ff., A. Adinolfi, Articolo 39, supra (note 15) 370 ff., A. Adinolfi, La libertà di circolazione, supra (note 15) 121 ff., F. Pocar, I. Viarengo, supra (note 15) 153 ff., G. Tesauro, supra (note 15) 508 ff.

94 See Article 1 of Council Directive 64/221/EEC of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition, 1963-1964, 117).

95 See Council Directives 72/194/EEC of 18 May 1972 (OJ, English Special Edition, 1972(II), 474) and 75/35/EEC of 17 December 1974 (OJ L 14, 20/1/1975, 14).

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the directive was stated to be applicable even to restrictions which, for reasons of public policy, public security or public health, the Member States intended to apply to the right of residence of students (Article 2(2) of Directive 93/96/EC), of workers who have ceased their occupational activity (Article 2(2) of Direc-tive 90/365/EEC) and of those whose right of residence arises under Directive 90/364/EEC exclusively, and, in addition, of their respective family members, regardless of their nationality.

These rules were thus horizontal in the sense that they covered all the areas of freedom of movement of persons contemplated by Community law. Paradoxically, however, the directive in question was adopted during the tran-sitional period when the first rules on freedom of movement were in force, and consequently it led to certain inconsistencies with respect to general principles in this field, and especially as regards procedural safeguards.

These regulations are included in Chapter VI of Directive 2004/38/EC.Directive 64/221/EEC96 falls into two parts. The first part (Articles 2 to 4)

sets out the substantive conditions affecting the powers of States to raise objec-tions based on public policy, public security and public health. In the second part (Articles 5 to 9), the directive deals with certain procedural safeguards in favour of persons to whom restrictions are applied. Whilst this directive is the principal legislative text in the area, there is no shortage of cases in which the Court of Justice has made reference directly to the Treaty. The directive in fact deals principally with cases where the right of residence is denied or with cases of expulsion; it does not mention other cases in which a State may invoke a derogation on grounds of public policy public security or public health.97

The Treaty leaves the Member States with power to introduce exceptions to the principle of the freedom of movement of persons on the three grounds of public policy, public security and public health.

Whilst it seems that the right to derogate from the fundamental free-doms guaranteed by the Treaty must always be interpreted narrowly, Directive 64/221/EEC does give the Member States a considerable margin of discretion. Indeed, notwithstanding the stated objective of the directive, namely to coor-dinate national provisions addressing the categories mentioned, that objective appears to be fundamentally compromised by the absence of any positive defi-nition of the notions of public policy and public security. There is, however, a negative definition, consisting in a series of situations in which public policy cannot be invoked. In particular, grounds of public policy cannot be relied upon in connection with economic ends; measures taken on grounds of public policy

96 For an article by article analysis of the directive, see D. Martin, supra (note 1) 131 ff.

97 Representative of this approach is the judgment in Case C-100/01 Oteiza Olazabal [2002] ECR I-10981, which concerned a French measure which limited a foreign-er’s freedom of movement to a defined part of the national territory.

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cannot be adopted unless they relate to the personal conduct of the foreigner concerned, nor may criminal convictions in themselves constitute grounds for such measures; the expiry of an identity document which has enabled a person to enter the territory of a State cannot justify him/her expulsion, the State which has issued such a document being obliged to readmit the person on its territory, even if him/her nationality is in dispute (Articles 2 and 3 of Directive 64/221/EEC).

Leaving aside these restrictions, there is lacking from the system any Community concept of public policy such as would allow the national laws of the Member States to share an affinity. Preserving, to a certain degree, the uni-lateral character of the concept, keeping it subject to the different requirements of the various States, has been approved of by the Community court, which has ruled it necessary “to allow the competent national authorities an area of discretion within the limits imposed by the Treaty” in consideration of the fact that “the concept of public policy may vary from one country to another and from one period to another”.98 The constraints on the authority of the State thus derive from the existence of negative definitions found in the wording of the directive itself, but also from the requisite respect for the general principles of Community law and from reaffirmation of the competence of the Community institutions to ensure that the Member States do not make arbitrary use of their power to restrict the freedom of movement of workers for reasons of public policy.99

The reviews conducted by the Court of Justice have made it possible to circumscribe to some degree the limits on the public policy exception. In par-ticular, the mere fact of an offence, even a criminal offence, cannot in itself justify the adoption of public order measures, for one reason because the inter-ests under consideration in the protection of public policy are not necessarily the same as those which led to the imposition of the criminal offence.100 The personal conduct of the person in question must be taken into account in any assessment of risks,101 and therefore, no restrictive measures should refer to

98 Case 41/74 van Duyn [1974] ECR 1337, para. 18, Case 36/75 Rutili [1975] ECR 1219, para. 26.

99 In addition to the judgments cited in the previous footnote, see Case 30/77 Bouchereau [1977] ECR 1999, para. 33.

100 See Case 30/77 Bouchereau [1977] ECR 1999, para. 35. The Court has also ruled that it is necessary to take into consideration a person’s conduct between the date of an expulsion order and that of its execution (Joined Cases C-482/01 and C-493/01 Orfanopoulos [2004] ECR I-5257, para. 82). On this point, see also the earlier judgment in Case 131/79 Santillo [1980] ECR 1585.

101 See also Case C-348/96 Calfa [1999] ECR I-21. On this point, the Court has held that a State may not rely upon Article 39(3) in order to exclude an economic sector or access to certain activities within the ambit of freedom of movement (Case

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whole categories of people or groups. In other words, restrictions based on reasons of public policy cannot pursue general preventive goals.102 It is worth mentioning again in this connection the judgment in Rutili, in which the Court of Justice referred to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and ruled that restrictions in the interests of public safety may not go beyond what is necessary for the protection of that interest “in a democratic society”.103 The protection of the family, enshrined in Article 8 of the ECHR, amounts to a restriction on expulsion.104

Nevertheless, the guidance available from Community case-law does not exclude with certainty a dual notion of public policy, one, more restrictive, applying to nationals, the other, broader, applying to foreigners. Indeed the early case-law in this area regarded it as lawful for a Member State to restrict, for reasons of public policy, the freedom of movement of a national of another State for the purpose of carrying on an activity which was regarded as anti-social, even though it was not prohibited for its own nationals.105 Whilst the Member States have not been deprived of the right to differentiate between nationals and foreigners in assessing behaviour regarded as harmful to society, the Court of Justice has imposed clear limits. It has underlined the obligation to avoid any arbitrary discrimination and inferred from that that conduct may not be considered as being of a sufficiently serious nature to justify restrictions on admission to or residence in a State unless the State has adopted “repressive measures or other genuine and effective measures intended to combat such conduct”.106 Even more clearly, it ruled in a later case107 that behaviour which is

C-114/97 Commission v Spain [1998] ECR I-6717 Case C-405/01 Colegio de Ofi-ciales de la Marina Mercante Española [2003] ECR I-10391, para. 48).

102 Case 67/74 Bonsignore [1975] ECR 297, paras 4 to 6, Case 36/75 Rutili [1975] ECR 1219, para. 29 and Joined Cases 115/81 and 116/81 Adoui [1982] ECR 1665, paras 10-11.

103 See para. 32 of the judgment.104 See, in particular, Case C-109/01 Akrich [2003] ECR I-9607 (paras 58 to 60) and

Joined Cases C-482/01 and C-493/01 Orfanopoulos [2004] ECR I-5257. See, generally, S. Hall, The European Convention on human rights and public policy exceptions to the free movement of workers under the EEC Treaty, E. L. Rev. (1991) 466.

105 Case 41/74 van Duyn [1974] ECR 1337. It was acknowledged in the judgment that membership of and adherence to the Church of Scientology, which was permis-sible for own nationals, was regarded negatively in terms of public policy.

106 Joined Cases 115/81 and 116/81 Adoui [1982] ECR 1665, para. 8; Case C-100/01 Oteiza Olazabal [2002] ECR I-10981, para. 45.

107 Case 249/86 Commission v Germany [1989] ECR 1263, para. 19.

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not repressed by the State when attributable to one of its own nationals cannot amount to a threat to public order.108

In essence, whilst it is not necessary for the behaviour in question to be the subject of criminal sanctions imposed by the State, thus preserving the State’s discretion as to the presence and severity of any threat to the fundamental inter-ests of society, it is nevertheless necessary for the national legal system to have expressed a negative assessment of the behaviour under consideration, quite independently of the nationality of the person responsible for it.

Insofar as concerns exceptions justified on grounds of public health, the State has a much more limited discretion. Article 4 of Directive 64/221/EEC provides that only the illnesses and infections listed in the annex to the direc-tive109 may constitute grounds for restricting freedom of movement. Further-more, the restriction is limited to the refusal of entry into the territory or to a refusal to issue a first residence permit. Should one of the illnesses listed emerge after a first residence permit has been issued, that provides no grounds either for refusing to renew the document or for expulsion.

The case-law of the Court of Justice has however held − with reference both to Article 46 and to Article 39(3) − that the protection of public health is an imperative which may justify prohibition of the practice of a certain activ-ity (in the case in point it was that of lay health practitioner) by persons other than medical practitioners, and the organisation of training courses for access to that activity.110

Directive 2004/38/EC, repealing Directive 64/221/EEC as from 30 April 2006, introduces significant innovations with respect to the restrictions which Member States may impose upon freedom of movement. Of note, the scope of the new directive is not limited to cases of refusal of a first residence permit or revocation of such a document. It extends to all cases where reasons of public policy or public security justify the expulsion of workers, whether those rea-

108 Case C-171/96 Pereira Roque ECR [1998] I-4607 and Case C-348/96 Calfa [1999] ECR I-21.

109 The annex sets out two categories of illnesses: a) those which may endanger public health and b) those which may threaten public order or public security. The list is clearly somewhat dated in that it includes certain illnesses now objectively less likely to endanger public health (such as syphilis and tuberculosis) and omits other more recently emerged illnesses whose dangers can hardly be ignored. See also J. Pais Macedo Van Overbeek, AIDS/HIV infection and the free movement of persons within the European Economic Community, C.M.L. Rev. (1990) 791.

110 Case C-294/00 Gräber [2002] ECR I-6515. On the other hand, a State may not deny citizens of the Union or their family members access to the medical profes-sion for reasons relating to public health: see Case 131/85 Gül [1986] ECR 1573, para. 17.

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sons fall within the competence of an administrative authority or a court of law (Article 33).

There is still no definition of public policy or public security, but the crite-ria developed over the years by the Court of Justice are codified (Article 27). As far as public health is concerned, the out-dated list of illnesses has been done away with. Article 29(1) provides that: “The only diseases justifying measures restricting freedom of movement shall be the diseases with epidemic potential as defined by the relevant instruments of the World Health Organisation and other infectious diseases or contagious parasitic diseases if they are the sub-ject of protection provisions applying to nationals of the host Member State.” Public health may constitute grounds for the adoption of measures restricting the right of entry, rather than residence, inasmuch as, should a disease occur more than three months after arrival, the State may not order expulsion on such grounds.

Of particular interest is Article 28, entitled “Protection against expulsion”. Once a worker has acquired a right of permanent residence, he or she may be expelled only on serious grounds of public policy or public security, and this because him/her setting down roots in the host Member State gives him or her a status similar to that of citizens of that State and thus earns him or her more favourable treatment. Once a worker has resided in a State for ten years, any reasons relied upon for him/her expulsion must be imperative reasons and must relate only to public security, the concept of which differs from that of public policy in that it is more restrictive and most likely confined to the protection of the local community from subversive, destabilising behaviour.

In any event, when taking an expulsion decision a host Member State must weigh the requirements of public policy and public security against the interests and rights of the individual concerned, and must take account of “considerations such as how long the individual ... has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.”

II.13 Procedural safeguardsTurning now to procedural aspects of the guarantees offered to Union citi-zens who are the subject of measures restricting their freedom of movement grounded on requirements of public policy, public security or public health, it should be remembered, first of all, that the State is under an obligation to inform the person concerned of its decision to issue or withhold a first resi-dence document within six months of the application. Meanwhile, the person may reside on a provisional basis. The reasons for the decision must be given to the applicant unless requirements of public security militate against this. A decision to refuse a residence card must be notified to the applicant allow-ing him or her enough time to quit the territory, such term being not less than

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fifteen days or one month, depending on whether the decision concerns the first residence document or a renewal (Articles 5 to 7 of Directive 64/221/EEC). The rules require that the national authority must make it possible for the person concerned to apprise himself or herself properly of the measure, and this requirement extends both to the precise and detailed description of the charges made in it and to the particular language to be used.111

In addition to the guarantee of timely and effective communication of the reasoned decision, there is also the guarantee of a legal remedy against such a measure.

The provisions of Article 8 of Directive 64/221/EEC demand equal treat-ment as between nationals and foreigners insofar as concerns the recourse that may be had against administrative acts. The Court of Justice has defined the scope of this equal treatment in a case in which citizens of the State were able, when challenging decisions concerning admission to the territory, to avail themselves of a special type of procedure distinct from that used to challenge administrative acts in general. In that case the Court held that Article 8 did not require that foreigners should enjoy the same right of actions against measures concerning the right of entry as citizens enjoyed, it being sufficient that there be a similarity with actions against administrative acts in general.112 Where legal recourse is not available, or where such recourse may result only in a decision on the legal validity of the measure adopted, or where such legal recourse has no suspensory effect, the directive requires that, before taking a decision to refuse renewal of a residence document or before making an expulsion order, the relevant administrative authority must obtain the views of a different body before which the person concerned is able to set out him/her own arguments in defence, in accordance with the laws of the country in question. It may decline to do so only in urgent cases. By contrast, in order to challenge a refusal to issue a first residence document or an expulsion order made before the issue of a first residence document, the person concerned may have recourse to the consultative body competent in the other cases mentioned. Derogation here is permissible only for reasons of the security of the State.

Obviously, an expulsion order or a refusal to renew a residence document does not preclude a person from asking for him/her case to be reviewed where

111 Joined Cases 115/81 and 116/81 Adoui [1982] ECR 1665, para. 13, and the Opinion of Advocate-General Capotorti (ECR 1982, 1723). See also the earlier judgment in Case 66/74 Farrauto [1975] ECR 163, para. 6, in which the Court held that the national courts must take care to ensure that legal certainty is not prejudiced by a failure arising from the inability of the worker to understand the language in which the decision is notified to him or her.

112 Joined Cases C-65/95 and C-111/95 Shingara [1997] ECR I-3343.

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he or she believes that the circumstances relied upon to deny him or her entry into the territory do not, in fact, exist.113

In substance, the model provided by the directive calls for the possibility of legal recourse or certain minimum procedural safeguards in the event that only administrative recourse is available. Articles 8 and 9 of Directive 64/221/EEC have been acknowledged to have direct effect such that individuals may invoke them in order to challenge national laws which do not conform or which offer lesser guarantees.114

Where national law provides only for the safeguard of an administrative procedure for the purpose of reviewing a restrictive measure, the suspension of the measure pending the initiation of such an appeal will be a matter of par-ticular importance, for if there were no such suspension the person concerned would be deprived even of the minimal opportunities for defending himself or herself guaranteed by the directive. The right of suspension should not, however, translate into a right to remain in the territory of the Member State throughout the duration of any proceedings brought.115 Furthermore, whilst it is true that reasons of “urgency” are capable of undoing the safeguard of suspen-sion of the measure, the circumstances giving rise to such urgency must never-theless be proved and duly appraised by the administrative authority.116

The rights of defence of the person concerned become apparent also from the characteristics which the consultative body called upon to give an opinion in the cases referred to in Article 9(1) or required to review measures in the cases referred to in Article 9(2) must possess. The directive goes no further than stating that this authority “shall not be the same” as that which has taken the decision and that the person concerned must be able to present him/her argu-ments in defence before it. Whilst it has acknowledged the fact that the Member States enjoy a margin of discretion in organising the proceedings, the Court of Justice has insisted that the authority giving the opinion must enjoy indepen-dence in carrying out its tasks and that such independence would be irreme-

113 See Joined Cases C-65/95 and C-111/95 Shingara [1997] ECR I-3343, paras 40 to 43. See also Case C-348/96 Calfa [1999] ECR I-21, paras 28-29, in which the Court held that Community law precluded “legislation which, with certain exceptions, in particular where there are family reasons, requires a Member State’s courts to order expulsion for life from its territory of nationals of other Member States found guilty on that territory of the offences of obtaining and being in possession of drugs for their own personal use. The legislation in question pro-vided for expulsion for life to follow a criminal conviction automatically, with no account being taken of the offender’s personal conduct or of the danger which that person represented for the requirements of public policy.

114 Case 131/79 Santillo [1980] ECR 1585, paras 12-13.115 Case 98/79 Pecastaing [1980] ECR 691, Case 48/75 Royer [1976] ECR 497.116 Case 98/79 Pecastaing [1980] ECR 691.

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diably compromised if the parties comprising that authority were directly or indirectly subordinate to the decision making body.117 When considered in the round, the system of minimum procedural safeguards provided for in Articles 8 and 9 of Directive 64/221/EEC is less than satisfactory. In particular, the alter-native of administrative proceedings and legal proceedings, whilst conform-ing to the principle of equal treatment with nationals, is open to criticism as regards its consistency with the values set out in the European Convention on Human Rights (ECHR), which has now been brought within the fundamental principles of Community law.118 The Court of Justice has for many years now recognised the general principle that administrative acts must be amenable to judicial review119 and has referred in this regard to Articles 6 and 13 ECHR. Consequently, now that individuals seem to have acquired once and for all the right to bring effective legal proceedings wherever State powers affect their subjective position under Community law, it is difficult to accept those rulings where the Court has, albeit with some uncertainty, found the system of appeals referred to in Articles 8 and 9 of the directive to be consistent with the require-ment of “fair trial” to which Article 6 ECHR refers.120

Indeed, the differentiation which Article 9 of the directive allows between the type of protection afforded to persons who take action against decisions not to issue a first residence document or against the issue of an expulsion order before any such document is granted121 (contingent in that it requires

117 Case 131/79 Santillo [1980] ECR 1585, paras 15-16, Joined Cases 115/81 and 116/81 Adoui [1982] ECR 1665, para. 16, Case C-175/94 Gallagher [1995] ECR I-4253, paras 24 to 26.

118 See Article 6 of the Treaty on European Union and the consolidated Community case-law of which that provision represents the codification. See also paras 32-33 of the Opinion given in Case C-2/94 concerning the accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, ECR I-1759. On the differences in matters of expulsion as between the Court of Justice and the European Court of Human Rights, see M. Balboni, Corte europea dei diritti dell’uomo e Corte di giustizia in materia di trattamento degli stranieri, Diritto dell’Unione europea (1999) 385 ff.

119 Among the many rulings, see Case 222/84 Johnson [1986] ECR 1662, Case 222/86 Heylens [1987] ECR 4112, Case C-213/89 Factortame [1990] ECR I-2466, Case C-97/91 Oleificio Borelli [1992] ECR I-6330, Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677.

120 See Case 98/79 Pecastaing [1980] ECR 691, paras 21-22. As to criticism of this approach, see M. Condinanzi, B. Nascimbene, Lavoro (libera circolazione delle persone: profili generali), in M. Chiti, G. Greco (eds), Trattato di diritto ammini-strativo europeo (Giuffrè, Milano, 1998) special part, t. II, 839 ff.

121 In para. 43 of its ruling in Case C-357/98 Yiadom [2000] ECR I-9265, the Court of Justice held that Articles 8 and 9 of the Directive must be interpreted as meaning that a decision adopted by the authorities of a Member State refusing a Commu-

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active steps on the part of the person concerned) and that of those who have already set down roots in the territory and challenge a refusal to renew a permit or an expulsion order issued after such a permit has been granted (necessary in that it is part of the administrative procedure for the issue of the decision) seems excessively dependent upon a concept of freedom of movement that has become outdated.

Given that Union citizenship is ever more becoming the common, defin-ing characteristic of all Member State nationals for the purpose of determining entitlement to rights laid down by the Treaty, including freedom of movement, it is difficult to see how the protection of those rights can be differentiated by reference to a circumstance which has nothing to do with the concept of Union citizenship itself. This lack of coherence is particularly striking when one considers a normative instrument such as Directive 64/221/EEC, which was applied to a variety of very different freedom of movement cases in which the degree of integration achieved in the host country is of diminishing relevance.

Directive 2004/38/EC brought about innovations even in this area of pro-cedural safeguards and generally made them broader in scope. Expulsion orders must be amenable to challenge before a court of law or review by an adminis-trative authority and the assessment made by either of those bodies must relate both to the merits and to the legality of the decision (Article 31).

II.14 Freedom of movement of workers under the Treaty establishing a Constitution for Europe

Naturally enough, the Treaty establishing a Constitution for Europe contains, in the context of freedom of movement of persons, provisions regarding the freedom of movement of workers.

Freedom of movement of persons is dealt with in Section 2 of Chapter I (“Internal Market”) of Title III (“Internal Policies and Action”) of Part III (“The Policies and Functioning of the Union” of the Constitution. The internal market is classified as an area of shared competence, as opposed to exclusive competence, by Article I-14. Section 2 on freedom of movement is divided into three subsections, the first devoted to “Workers”, the second to “Freedom of establishment” and the third to “Freedom to provide services”. The provi-sions contained within those three subsections replicate almost exactly those

nity national, not in possession of a residence permit, leave to enter its territory cannot be classified as a decision concerning entry within the meaning of Article 8 thereof in a case such as that at issue in the main proceedings where the person concerned was temporarily admitted to the territory of that Member State, pending a decision following the enquiries required for the investigation of her case, and therefore resided for almost seven months in that territory before that decision was notified to her, since such a national must be entitled to the procedural safeguards referred to in Article 9 of the Directive.

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of the current Treaty, the sole difference worthy of note being the names given to the acts which the Community may adopt. As laid down in Article I-33, the institutions may adopt European laws and European framework laws in order to implement the provisions of the Constitution.122 Interestingly enough, the provisions on the free movement of person come before, rather than after, as in the current version of the Treaty, the subsection devoted to goods, suggesting the greater importance attached to them and their centrality in the achievement of the internal market. The difference in drafting between Article III-133 and Article 39 EC, whilst not altering the scope of the rules, expresses a changed philosophy which appears to codify the interpretation of freedom of movement of workers given by the Court of Justice. The freedom is now conceived as an individual right. Even on a literal reading it is the individual that provides the point of reference for the rules: “Freedom of movement for workers shall be secured within the Community” now becomes “Workers shall have the right to move freely within the Union”.

Article III-133(3)(d) corresponds to Article 39(3)(d) EC and lays down that the conditions under which workers are entitled to remain in the territory of a Member State after having been employed there are to be embodied in European regulations adopted by the Commission.123 A European regulation, within the meaning of Article I-33(1)(4), is “a non-legislative act of general application for the implementation of legislative acts and of certain provisions of the Constitution” and may either be directly binding in the Member States or require them to adopt implementing provisions. In the general scheme of the Constitution, therefore, the Commission loses the limited legislative power it has today under Article 211 EC. Yet it would not appear justified to leave it to a non-legislative act to define the conditions for the exercise of a fundamental right such as the right of Union citizens who have ceased to be employed to remain in their host country.

122 The procedure for adopting European laws and European framework laws is set out in Article III-396. European laws are proposed to take the place of Regula-tions and European framework laws that of Directives. See, A. Lupone, Gli atti dell’Unione europea, in G. Adinolfi, A. Lang (eds), Il Trattato che adotta una Costituzione per l’Europa: quali limitazioni all’esercizio dei poteri sovrani degli Stati? (Giuffrè, Milano, 2006) 27.

123 See, on this point, paragraph 11. The rules in force provide that the conditions for remaining “shall be embodied in implementing regulations to be drawn up by the Commission.”

Chapter III Right of Establishment

III.1 IntroductionUnder the system set out in the Treaty of Rome, there is a single set of rules on the free movement of employed workers1; in contrast, there are two sets of rules on self-employed workers depending on the type of connection which a national of a Member State creates with the territory of another Member State in which he or she carries out his or her activities or to which he or she directs the results of his or her activities. Whilst the rules on the right of establishment govern the right of nationals of a Member State to carry out their self-employed activities continuously and on a more or less permanent basis within the terri-tory of another Member State to which they have moved their productive activ-ity on a “stable” basis, the rules on freedom to provide services are directed at Community nationals’ right to exercise their activities in or direct them towards a Member State other than the one in which they are established on a permanent basis.

As with other aspects of free movement of persons, the case-law of the Court of Justice and innovative legislative solutions have extended the ways in which these rights can be exercised by identifying models (secondary establish-ment of natural persons, provision of services with infrastructure, “assimilated” establishment) located in grey areas between establishment and provision of services, also as regards the restrictions which Member States may still apply. This constitutes the most obvious evidence of an increased measure of inte-gration, requiring, in like manner to what happens in the individual national markets, legal legitimacy to be given to intermediate and more flexible forms of mobility of traders.

III.2 The right of establishment in the EC TreatyThe abolition of the restrictions imposed by Member States on the exercise of the right of establishment was to be achieved progressively and presupposed

1 For the rules applicable to the free movement of employed workers, see Chap. II.

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– at least this was the original intention – the active intervention of the insti-tutions in order to eliminate the main obstacles by legislation. In much the same way as the Treaty provided for free movement of workers, it prohibited the Member States from introducing new restrictions on establishment (the so-called standstill requirement in Art. 53 EEC, now abrogated) and provided for a general programme to be adopted before the end of the first stage (31 Decem-ber 1961) which was to set out “the general conditions under which freedom of establishment is to be attained in the case of each type of activity and in particu-lar the stages by which it is to be attained” (Art. 54(1) EEC, now abrogated). The general programme was to have been implemented through the adoption of directives designed to eliminate existing restrictions (Art. 54(2) EEC, now abrogated). In addition, national provisions on the taking up and pursuit of activities as self-employed persons, including provisions on the recognition of diplomas, were to have been coordinated by means of directives to be adopted before the end of the transitional period (Art. 55 EEC, now, amended, Art. 47 EC).

The general programme was adopted in 1962,2 but the implementing directives were not adopted as fast or as fully as the Treaty intended.

Notwithstanding the fact that the provisions of the Treaty ostensibly set forth a programme to be followed, as a result of which the adoption of imple-menting directives seemed necessary in order to specify the obligations defined therein in general terms, the Court of Justice adopted a different interpretation. The absence of implementing directives could have thwarted the achievement of the right of establishment to the detriment of free movement of persons. Yet the Court interpreted the reference in the Treaty to the transitional period in an innovative way. It held that although the Community institutions were to adopt legislation in the course of that period, the failure to adopt directives by the end of the period did not prevent the application of the Treaty, in particular Art. 52 (now Art. 43), which enshrines the prohibition of discrimination on grounds of nationality, a provision which it held to have direct effect.3 According to the approach taken by the Court, the directives provided for in the Treaty do not constitute the basis of the right of establishment, but serve to facilitate the exercise of that right in order to eliminate those restrictions which could not be overcome by reference to the principle of non-discrimination on grounds of nationality.4

2 OJ English Special Edition, Second Series (IX), 7.3 Case 2/74 Reyners [1974] ECR 631, paras 24 to 27.4 “After the expiry of the transitional period the directives provided for by the chap-

ter on the right of establishment have become superfluous with regard to imple-menting the rule on nationality, since this is henceforth sanctioned by the Treaty itself with direct effect. These directives have however not lost all interest since they preserve an important scope in the field of measures intended to make easier

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Secondary legislation on the right of establishment concerns, in particular, three different areas.

In the first place, Directive 2004/38/EC establishes entry, residence and expulsion conditions for a Union citizen who moves to another Member State in order to pursue a non-subordinate activity on a permanent basis.5 A Union citizen has the right to reside for more than three months if he/she is self-employed, and after five years of residence he/she acquires the right of perma-nent residence.

In the second place, Directive 2005/36/EC concerns the recognition of diplomas for acceding and practising regulated professions.6

In the third place, Directive 2006/123/EC7 establishes the standards, basing on which Member States may subordinate the activity of an established person to authorization. Furthermore, the directive imposes to Member States the obligation to revise their own regulations on the basis of the parameters it established, in order to eliminate any prescription considered prohibited, and analyze in the light of the principle of proportionality and necessity the other requirements Member States impose to an established person. This directive should determine an important change: from an examination, case by case, of the obstacles to establishment, carried out chiefly by national judges, under the guidance of the Court of Justice, to a preliminary assessment, which leaves particular cases out of consideration, and is aimed at depurating the national

the effective exercise of the right of freedom of establishment” (ibid., paras 30-31).

5 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, OJ L 158, 30/4/2004, 77. This directive repeals and replaces the previous Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services (OJ L 172, 28/6/1973, 14); Council Directive 75/34/EEC of 17 December 1974 concerning the right of nationals of a Member State to remain in the territory of another Member State after having pursued therein an activity in a self-employed capacity (OJ L 14, 20/1/1975, 10); Council Directive 75/35/EEC of 17 December 1974, for self-employed persons who have ceased to work and Art. 10 of Directive 73/148/EEC for self-employed workers (OJ L 14, 20/1/1975, 14); and Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, OJ English Special Edition, Series I Chapter 1963-1964, 117..

6 About this issue, see para. 16 infra.7 Directive 2006/123/EC of the European Parliament and of the Council of 12

December 2006 on services in the internal market, OJ L 376, 27/12/2006, 36.

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law system from the provisions that already a priori should be qualified as hampering establishment.

III.3 Differences as compared with freedom to supply services and free movement of workers

Freedom of establishment has as many features in common with free movement of employed persons and freedom to provide services as to distinguish it from them. In particular, the distinctive feature as compared with free movement of workers is the non-subordinate nature of the activity carried out by person concerned, which, in contrast, makes a person taking advantage of freedom of establishment more akin to a provider of services. The second para. of Art. 43 EC itself makes it clear that establishment involves access to “activities as self-employed persons” thereby attaching to employment the idea of payment as a subordinated worker. In providing a definition of employment, the case-law has put the emphasis on the fact that employment is carried out under the direction of another person and hence in a relationship of subordination, albeit understood as a Community concept which takes no account of such mean-ings as are from time to time given to this concept in the law of the individual Member States.8 Correlatively, in order to have a situation governed by the right of establishment, the trader must carry out his or her activities independently, which is characterised by independence of management and the assumption of the economic risk. This requirement will apply only in the case of primary establishment, since the agencies, branches and subsidiaries contemplated by the second sentence of Art. 43, through which so-called secondary establish-ment manifests itself, normally have only limited managerial autonomy and do not operate independently.9

In contrast, one feature shared with free movement of workers is the permanent or more or less permanent presence of the trader from a Member State within the territory of the Member State of destination. In other words, the socio-economic link between the worker and the established person in the State in which he or she carries out his or her activities can, in many respects, be equated with that of a national and, in any event, is more intense than that between the provider of services and the country of the person for whom the services are provided. As a result, in the first two cases this justifies the rule of national treatment which, in contrast, is insufficient to ensure full attainment of freedom to supply services.

As regards freedom to supply services,10 the right of establishment is char-acterised by the more or less permanent presence of the provider from another

8 For the definition of worker within the meaning of the EC Treaty, see Ch. II, part 3.

9 For secondary establishment, see para. 10.10 See also Ch. IV.

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Member State in the territory of another Member State in which the services are provided. This presence may in practice take the most disparate forms,11 although they must be the tangible manifestation12 of a permanent presence of the service-provider concerned on the host country’s market, where its popula-tion constitute its target customers, with the result that the provider participates, on a continuous basis, in the economic life of a Member State other than its State of origin, so contributing to economic and social interpenetration within the Community.13 That requirement for permanence must be correctly construed. Accordingly, in the case of services, the transitory or temporary nature of the provision of a service has to be determined in the light also of its regularity, periodicity or continuity and not only in the light of its duration. By the same token, the permanent nature of the activity of the person exercising the right of establishment must not be construed in an absolute way, but having regard to the actual features of the activity as is relevant from time to time. The fact that there is no foreseeable limit to its duration is evidence of establishment, even if it does not result in any actual definitive presence of the person concerned in the host State.14 Likewise, the chapter relating to the right of establishment also covers the case where the person concerned decides from the outset to exercise his or her activity in another Member State for a determinate period of time, provided that the duration is such that he or she has regularly to have recourse to the market of the country in which the services are provided and sets up a centre of activity there in order to benefit by the exercise of his or her trade or

11 Even a mere office managed by staff of an undertaking from another Member State or by a person who is independent but authorised to act on a permanent basis for the undertaking: Case 205/84 Commission v Germany [1986] ECR 3755, para. 21.

12 The mere registration of a vessel is not in itself an act of establishment, although it may become such an act where the vessel constitutes an instrument for pursu-ing an economic activity involving (further) establishment in the Member State concerned: Case C-221/89 The Queen v Secretary of State for Transport, ex parte Factortame [1991] ECR I-3905, paras 19 and 22.

13 It is worthwhile to recall here that the Court of Justice, in Case C-55/94 Gebhard [1995] ECR I-4165, held that the activity of a national of a Member State who pur-sued a professional activity on a stable and continuous basis in another Member State where he held himself out from an established professional base to, amongst others, nationals of that State did not fall under the chapter of the Treaty relating to services but under that on establishment, since he was described as “established” (especially at para. 28). See the judgment in Case 2/74 Reyners [1974] ECR 631, para. 21.

14 Case 196/87 Steymann [1988] ECR 6159, para. 16. For a number of additional considerations, see M. Condinanzi, La libertà di stabilimento, in G. Strozzi (ed.), Diritto dell’Unione europea. Parte speciale (Giappichelli, Torino, 2nd ed., 2005) 174 ff.

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profession. In other words, the relevant factor is the actual and lasting settle-ment of the person concerned on the host country’s market in order to carry out an indeterminate – albeit not unlimited where, for instance, the activity is limited in time – number of periods of his or her economic activity.

Free movement of employed persons, establishment and supply of ser-vices constitute mutually exclusive forms of free movement of persons. Obvi-ously, this does not mean that a person categorised as a worker in one Member State cannot exercise the right of establishment in another,15 whilst it is actually necessary in order for there to be the provision of services that the provider should be established in a Member State. Indeed, in this connection the Court of Justice has held that when considering the distinction between establishment and services, it must be borne in mind that services are subordinate and residual with respect to the right of establishment. It is not only the case that Art. 50 defines particular activities as services provided that they do not fall within the provisions on free movement of persons, or those relating to free movement of goods and capital, but the Treaty defines a service provider as a person “estab-lished” in a Member State other than that of the person for whom the services are intended. The upshot is that logically the notion (and place) of establish-ment has to be identified before a given activity can be categorised as a service. It follows that, once it has been ascertained that a given activity comes under freedom of establishment, there is no point is considering it from the angle of the concept of services.16

III.4 The constraint of purely internal situationsHaving identified the “internal” limits as between freedom of establishment and the other freedoms of free movement of persons, it is necessary to define the former freedom also “outside” the Community legal order by pinpointing those cases in which free movement of self-employed persons falls outside the rules of the Treaty and within the competence of the national legal system.

In order for there to be establishment governed by Arts 43-48 CE, the factual situation must include a transfrontier element, since the absence of “any element going beyond a purely national setting” in a given case means that the provisions of Community law are not applicable. In this way, it has been held that Italians exercising a profession on the basis of professional qualifications acquired in Italy, where they were resident, did not come within the scope of

15 Case 143/87 Stanton [1988] ECR 3877, para. 11, and Case C-106/91 Ramrath [1992] ECR I-3351, para. 26.

16 Case C-55/94 Gebhard [1995] ECR I-4165, para. 22. From the point of view of consistency, Case C-67/98 Zenatti [1999] ECR I-7289, para. 23, is perplexing in that the Court of Justice held that it could not consider the matter in the light of the provisions on establishment since the order of the court requesting a preliminary ruling made specific reference to the provision of services.

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Community law and the right of establishment did not apply.17 This is because issues relating to equal treatment and the prohibition of discrimination on grounds of nationality do not arise, since national sovereignty over the matter remains untouched. It should also be noted that the Court’s case-law has shown a measure of flexibility in identifying in the actual elements which enable them to be given Community relevance. It is sufficient to this end that the person concerned acquired his or her professional qualification in another Member State for him or her to rely on the Community rules on establishment also vis-à-vis the Member State of which he or she is a national and that Member State cannot oppose this by arguing that the person concerned is one of its nationals and is seeking to exercise his or her activity within the State to which he or she belongs.18 Neither is it necessary for the discriminatory measure to affect only the situation of citizens of other Member States, since it may constitute a bar-rier to free movement also in the case of nationals of the State in question in purely internal situations.19

The competence of the State with regard to purely internal situations does not prevent Community law from having some relevance to the rules governing a given case. In so far as they give rise to differences in treatment, restrictions on the pursuit of a given activity may be removed by harmonisation policies of the Community institutions which are used to influence the choices made by the national legislature even by reference to situations without links to the Commu-nity legal order.20 Where there is no harmonisation measure, the different and

17 Joined Cases 54/88, 1/88 and C-14/89 Eleonora Nino and Others [1990] ECR I-3537, paras 10-11. For an earlier case, see Case 204/87 Berkaert [1988] ECR 2029. The approach was confirmed in subsequent case-law. See, also with regard to the right of establishment, Joined Cases C-29/94 to C-35/94 Aubertin [1995] ECR I-301, para. 13; Joined Cases C-225/95 to C-227/95 Kapsakalis [1998] ECR I-4239, paras 21 to 23; Case C-108/98 RI.SAN [1999] ECR I-5219, paras 19 and 23.

18 Case 115/78 Knoors [1979] ECR 399, para. 20; Case C-19/92 Kraus [1993] ECR I-1663, paras 15-16.

19 See, as regards free movement of workers but setting forth a general principle, Case 281/98 Angonese [2000] ECR I-4139. See also the observations in Ch. I, part 7, and Ch. II, part 4.

20 For the importance of harmonisation measures, see R. Mastroianni, Ravvicina-mento delle legislazioni nel diritto comunitario, in Digesto delle discipline pubbli-cistiche (UTET, Torino, Vol. XII, 1997) 457. Numerous judgments of the Court of Justice deal with the impact of Community provisions harmonising the rules gov-erning a professional activity on “purely internal” cases: see, by way of example, Case C-215/97 Bellone [1998] ECR I-2191 (on commercial agents) and C-131/97 Carbonari [1999] ECR I-1103 (on doctors). In contrast, where the directive in question is concerned solely with mutual recognition, Community law will have no bearing on the case where all its aspects are located in only one Member State:

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worse treatment applicable under national law to the purely internal situation will become open to attack under the constitutional principle of equality, where the comparator will be the subjective position guaranteed by Community law,21 which, as a result, still influences the legislature in the Member States to adopt in its decisions higher standards of treatment in favour of national citizens.

The aforementioned approach of the Italian Constitutional Court seems to have been echoed in some respects in a number of recent pronouncements of the Court of Justice, in which, albeit in a piecemeal way and not entirely consistently, the Community Court has considered it worth providing national courts with notions for the interpretation of Community law in a “purely inter-nal” context, at least in those cases in which the referring court was required by national law to guarantee nationals of the Member State concerned the same rights which in the same situation nationals of another Member State would have enjoyed under Community law.22

III.5 Scope rationepersonae. Requirement for nationality/citizenshipThe rules on the right of establishment and, hence, the consequential subjec-tive position are intended to benefit both natural and legal persons. The Treaty provisions seem in point of fact to consider first the position of natural persons and then to extend their application to companies.

see Case C-17/94 Gervais [1995] ECR I-4353, para. 26 concerning veterinary surgeon’s diplomas and, more recently, the order of 5 April 2004 in Case C-3/02 Mosconi, not published in the ECR, paras 37 ff., relating to architects’ diplomas.

21 Case C-132/93 Steen II [1994] ECR I-2715, paras 8 to 11. In judgment No 249 of 16 June 1995 (see Rivista di diritto internazionale [1995] 813), the Italian Con-stitutional Court found that the fact that the Italian citizen and a foreigner prac-tised the same activities constituted a link with Community law, thereby justifying applying the relevant Community rule also to the Italian national, thereby obviat-ing a review of constitutionality under Art. 3 of the Italian Constitution. Subse-quently, a finding of “reverse discrimination” promoted the Italian Constitutional Court to declare unconstitutional for violation of Art. 3 of the Italian Constitution that part of an Italian law which did not allow pasta-makers established in Italy to use ingredients lawfully used in the territory of other Member States: judgment No 443 of 30 December 1997 (Rivista di diritto internazionale [1998] 530). See also Ch. IV, part 4. For learned articles, see E. Cannizzaro, Esercizio di compe-tenze e discriminazioni a rovescio, Diritto dell’Unione europea (1996) 359; G. Gaja, La libera circolazione dei lavoratori: diritto comunitario e diritto nazionale. Considerazioni introduttive, in B. Nascimbene (ed.), La libera circolazione dei lavoratori (Giuffrè, Milano, 1998) 11, at 20.

22 Case C-443/98 Guimont [2000] ECR I-10663, para. 23, order of 17 February 2005 in Case C-250/03 Mauri [2005] ECR I-1267, para. 21. F. Picod, Libre circula-tion et situation interne, Revue des affaires européennes (2003-2004) 1, 47, at 53, regards this attitude of the Court as being “excessive” having regard to the aims of judicial cooperation underlying the preliminary ruling procedure.

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Art. 43 of the Treaty requires natural persons to be nationals of a Member State and hence citizens of the Union (Art. 17 EC). Determination of who is a “national” falls within the competence of the individual Member States and the provision of Union citizenship does not have any bearing thereon, since the Treaty of Amsterdam expressly provides that it is to “complement and not replace national citizenship” (see the second sentence of Art. 17(1)).23 The requirement for citizenship cannot be derogated from, unlike in the case of freedom to supply services where the second para. of Art. 49 provides that lib-eralisation may be extended by Community legislation adopted by the Council to nationals of a third country provided that they are established within the Community.24 In that case it is the factor of prior establishment which guar-antees that the economic agent forms part of the Community’s economic and social fabric and hence safeguards the requirement for “protecting” the Euro-pean market that certainly underlies the rules in question. In the case of the right of establishment, in contrast, to extend the freedom to nationals of third countries would signify failing to observe the fundamental – however much criticised – differentiation between the area of the Community and the non-Community area as regards the enjoyment of a fundamental freedom guaran-teed by the Treaty with a view to greater European integration. As is consistent with this intention, Art. 43 of the Treaty authorises secondary establishment only for those who already have a primary establishment in another Member State.

The possibility for non-Community nationals to establish themselves within the territory of the Community may, however, be derived, not only from national provisions of individual Member States or from international agree-ments concluded by Member States with third countries, which are subject to Art. 307 EC, but also from association agreements concluded by the Com-munity with non-member countries.25 Given the particular nature of the Com-munity Treaties and the model of integration to which they have given rise, it is considered that citizens of third countries are not entitled to avail themselves vis-à-vis a Member State of the most-favoured-nation clause so as to obtain rights which, under the Community rules, are the entitlement of nationals of the other Member States.

23 See to the same effect the case-law of the Court of Justice, in particular Case C-369/90 Micheletti [1992] ECR I-4239. For a full discussion of the concept of citizenship, see Ch. I.

24 See the proposal for a Council directive extending the freedom to provide cross-border services to third-country nationals established within the Community, OJ 1999, C 67, 17. The proposal did not go further and was repealed, in May 2000.

25 See M. Hoffmann, The right to establishment for nationals of European Union associated countries in the recent jurisprudence of the European Court of Justice, German Yearbook of Int. Law (2001) 469, and Ch. V, infra.

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Non-Community nationals who are members of the family of a Union citizen have a special position, since they have a right of access to self-employ-ment on the basis of Community law itself.26

III.6 (cont.) Establishment of companiesAs far as legal persons are concerned, the Treaty confers the right of establish-ment on them too, which means, according to the second para. of Art. 43, the right “to set up and manage undertakings, in particular companies or firms within the meaning of the second para. of Art. 48”. Art. 48 equates companies to natural persons having the nationality of a Member State, provided that they were formed in accordance with the law of a Member State and have their registered office, central administration or principal place of business within the Community. As in the case of natural persons, that provision requires there to be a link with the Community legal order, which for nationals is possession of the status civitatis of a Member State and for legal persons is the fact that they were formed in accordance with the law of a Member State and have an effective connection therewith, namely the fact that their centre of interests is located within the Community territory.27

The second para. of Art. 48 specifies that “companies or firms” within the meaning of the first para. means “companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons gov-erned by public or private law, save for those which are non-profit-making”. On a strictly literal interpretation, the definition set out in the second para. of Art. 48 seems, as regards enjoyment of the right of establishment, to grant the ben-efit of being equated to natural persons to legal persons only. This would mean that those collective entities which are regarded in the various Member States as having a separate legal existence, also from the point of view of their assets, from that of their members, albeit not having legal personality in the proper

26 According to Art. 23 of Directive 2004/38/EC (see n.10, supra), according to which “Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self-employment there”. This right had been already recognized by the previous law. In fact, under Art. 11 of Regulation No 1612/68/EEC, a member of the family of a worker who was a Community national was entitled to take up any activity as an employed person and this was interpreted by the Court of Justice as also covering access to occupations exercised outside an employment relationship: Case 131/85 Gül [1986] ECR 1573, para. 18.

27 For the function of Art. 48 EC, see, more recently, G. Contaldi, Art. 48 TCE, in A. Tizzano (ed.), Trattati dell’Unione europea e della Communità europea (Giuffrè, Milano, 2004) 401.

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sense under the national legal system,28 would be precluded from exercising the freedoms of movement guaranteed by the Treaty. However, a broader and more reasonable interpretation of the Treaty has prevailed. It brings within the definition set out in the second para. of Art. 48 also those firms which, although not possessing legal personality, have sufficient autonomy with respect to their members who go to make them up, and, in particular, constitute independent centres to which subjective legal positions may be imputed, in both the sub-stantive and procedural sense.

In abstract terms, the fact that the first para. of Art. 48 puts legal persons on a par with natural persons means that legal persons may exercise the right of establishment, whether primary or secondary, in the same way as natural persons. We shall see, however, that as matters stand at present companies may exercise only the right of secondary establishment, which boils down to the possibility of opening branches, subsidiaries or agencies, in as much as the case-law does not require the activity of the “secondary establishment” to be in some way subordinated or ancillary with respect to the activity of the primary establishment, which may give rise to cases in which the activity of the com-pany consists solely of that of the secondary establishment.

Since a legal person exists only by virtue of the national legislation which determines its incorporation,29 its establishment in the territory of another Member State presupposes the mutual recognition of companies as between the Member States. In the absence of mutual recognition, it is the actual existence of the entity as a phenomenon of company law in the Member State other than that of the legal system by virtue of which it was formed which is considered. It has to be borne in mind that when it comes to identifying the law govern-ing companies and hence private international law as regards companies, legal experience in the Member States boils down to two opposing theories. The first, the theory of “incorporation”, locates the lex societatis in the law of the State in which the formation of the entity was accomplished. The second is the “real seat” theory, according to which the law governing the company is that of the place in which the management of the entity is actually located.30

28 For instance, the società di persone in Italy, the Öffene Handelsgesellschaft (OHG) and the Kommanditgesellschaft (KG) in Germany and the Vernootschap onder firma in the Netherlands.

29 Case 81/87 Daily Mail [1988] ECR 5483, para. 19. Obviously, should Community law introduce and regulate a particular type of company, the question would arise in completely different terms. See A. Santa Maria, Diritto commerciale comuni-tario (Giuffrè, Milano, 2nd ed., 1995) 180 ff.

30 Among the ample literature on this subject, see R. Luzzatto, C. Azzolini, Società (nazionalità e legge regolatrice), in Digesto delle discipline privatistiche – sezione commerciale (UTE, Torino, Vol. XIV, 1997) at 140 ff.; S. Rammeloo, Corporations in Private international Law. A European Perspective (Oxford University Press,

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Taking note of that profound split and of the potential difficulties to which it could give rise for the “Community free movement” of national companies, Art. 293 EC provided that the Member States were, as far as necessary, to enter into negotiations with each other with a view to securing the “the mutual recog-nition of companies or firms”, the “retention of legal personality in the event of transfer of their seat from one country to another, and the possibility of mergers between companies or firms governed by the laws of different countries”.

This provision was partially implemented by the Brussels Convention of 29 February 1968 on the mutual recognition of companies and bodies corporate,31 which never entered into force and has now been permanently shelved.32

Given that private international law solutions continued to be incom-patible and that the objective of securing mutual recognition by means of an international agreement had failed, the Community legislator embarked on the approximation of the substance of company law in the Member States on the assumption that such harmonisation would in any event foster mutual recogni-tion of companies and, as a result, their free movement in the internal market. Among the measures intended to attain freedom of establishment, Art. 44(2)(g) provides that the Community institutions are to coordinate the safeguards which, for the protection of the interests of members and others, are required by Member States of companies or firms with a view to making such safeguards equivalent throughout the Community. The work carried out to coordinate com-pany law, although still incomplete, has resulted in the adoption of numerous directives on both the formation and structure of companies and their accounts

Oxford, 2001) 95 ff., to which the reader is directed also for other references. On the same subject, but concerning the recent Community case-law on the right of establishment of companies, see M.V. Benedettelli, Libertà comunitaria di circo-lazione e diritto internazionale privato delle società, Rivista di diritto internazio-nale privato e processuale (2001) 569; F. Munari, P. Terrile, The Centros Case and the Rise of an EC Market for Corporate Law, Diritto dell’Unione europea (2001) 18; S.M. Carbone, La corporate governance della ‘società europea’ nel reg. n. 2157/2001: tra norme materiali uniformi e tecniche di diritto internazionale privato, Diritto del commercio internazionale (2002) 133; S. Lombardo, Conflict of Law rules in company law after Überseering: an economic and comparative analysis of the allocation of policy competence in the European Union, Eur. Bus. Org. Law Rev. (2003) 301.

31 Bull.EC (1969) Suppl. 2 (for a somewhat better English translation, see Stein, Harmonisation of European Company Laws, 1971). For this subject, see A. Santa Maria, supra (note 29) 18 ff.

32 M. Benedettelli, supra (note 30) 571 ff., points out that the Convention is not even regarded as being part of the acquis communautaire for new Member States acceding to the European Union.

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and balance sheets.33 A significant step forward was made at the 2000 European Council at Nice, where the last impediments to the inception of the European company were overcome after it had remained for too long only “un rêve plutôt qu’un droit positif ”.34 The agreement resulted in the adoption of two instru-ments: a regulation and a directive.35 The regulation laid down the statute for

33 First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second para. of Art. 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community, OJ English Special Edition:, Series I Chapter 1968(I), 41; Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second para. of Art. 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent, OJ L 26, 31/1/1977, 1; Third Council Directive 78/855/EEC of 9 Octo-ber 1978 based on Art. 54(3)(g) of the Treaty concerning mergers of public limited liability companies, OJ L 295, 20/10/1978, 36; Fourth Council Directive 78/660/EEC of 25 July 1978 based on Art. 54(3)(g) of the Treaty on the annual accounts of certain types of companies, OJ L 222, 14/8/1978, 11; Sixth Council Directive 82/891/EEC of 17 December 1982 based on Art. 54(3)(g) of the Treaty, concern-ing the division of public limited liability companies, OJ L 378, 31/12/1982, 47; Seventh Council Directive 83/349/EEC of 13 June 1983 based on the Art. 54(3)(g) of the Treaty on consolidated accounts, OJ L 193, 18/7/1983, 1; Eighth Council Directive 84/253/EEC of 10 April 1984 based on Art. 54(3)(g) of the Treaty on the approval of persons responsible for carrying out the statutory audits of account-ing documents, OJ L 126, 12/5/1984, 2; Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State, OJ L 395, 30/12/1989, 36, Twelfth Council Company Law Direc-tive 89/667/EEC of 21 December 1989 on single-member private limited-liability companies, OJ L 395, 30/12/1989, 40. For an overview and some thoughts on the future prospects for Community rules in this area, see M.W. Gordon, European Community Company Law, in R.H. Folsom, R. Lake, and P. Nanda (eds), Euro-pean Community Law after 1992 (Kluwer Law and Taxation Publishers, Boston, 1993) 544; J. Wouters, European Company Law. Quo Vadis?, C.M.L.Rev. (2000) 257.

34 F. Synvet, Enfin la société européenne?, Rev. trim. droit eur. (1990) 253. The impediments in question related essentially to employee participation. The cre-ation in 1994 of the European works councils made a substantial contribution to the resumption of the negotiations, even though it was clear that it would not be sufficient to apply the rules on European works councils to the European Com-pany.

35 Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE), OJ L 294, 10/11/2001, 1; Council Directive 2001/86/EC

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the European Company, so that companies which do not deploy their activities solely within the confines of one Member State may reorganise themselves at European level. A regulation was chosen because regulations are the only acts which enable an institution of Community law to be brought into being. In fact, a European Company has no connection with the nationality of a Member State and belongs exclusively to the Community legal order. In contrast, a company of the European type (the alternative put forward) would have been a company governed by its national law for which the uniform statute would have had to be been incorporated in the national law of the Member States.

As regards, on the other hand, employee involvement, recourse was made to a directive, which is more flexible. The directive in question provides that the formation of a European Company must go hand-in-hand with negotiations on employee involvement. In the event that no agreement can be reached, a number of standard principles set out in an annex to the directive are to be applied.

Only time can tell how successful the European Company will be, having regard, in particular, to how many and what type of undertakings opt to become European Companies and from what sectors of the economy.36 At the time of writing, in any event, it should be noted that the same legislative “model” has been applied to cooperative societies through the adoption of a regulation on the European Cooperative Society (SCE) accompanied by the directive on employee involvement.37

of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees, OJ L 294, 10/11/2001, 22. See Fouassier, Le Statut de la Société Européenne: un nouvel instrument juridique au service des entreprises, Rev. marché commun et de l’Un. eur. (2001) 59.; F. Blanquet, Enfin la Société Européenne “la SE”, Rev. droit de l’Un. eur. (2001) 65; R. Cafari Panico, Il regolamento della società europea e le fusioni transfrontaliere, in F. Pocar, U, Draetta (eds), La società europea. Problemi di diritto societario comunitario (Giuffrè, Milano, 2002) 40; S.M. Carbone, supra (note 30); A. Malatesta, Prime osservazioni sul regolamento CE n. 2157/2001 sulla società europea, Rivista di diritto internazionale privato e processuale (2002) 613; V. Edwards, The Euro-pean Company – Essential tool or eviscerated dream?, C.M.L. Rev. (2003) 443.

36 M. A. Frison-Roche, La société européenne, propos recueillis par Pierre Rancé, No 3, Paris, 2001, 290.

37 Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE), OJ L 207, 18/8/2003, 1; Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European Coopera-tive Society with regard to the involvement of employees, OJ L 207, 18/8/2003, 25.

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III.7 Substantive scopeArt. 43 of the Treaty provides no indication, not even by way of example, of the activities which may be pursued under the regime of establishment, it being merely stated that it involves the taking-up and pursuit of “activities as self-employed persons”. It follows that the substantive scope of the rules on establishment is extensive and certainly as extensive as that of the freedom to supply services, for which Art. 50 sets out an indication (industrial activities, commercial activities, activities of craftsmen, activities of the professions), which is considered not to be exhaustive. As observed above, this is borne out by the fact that the aforementioned General Programme of 18 December 1961 contained a general list of activities in respect of which both freedom of estab-lishment and freedom to supply services might be exercised.

Be that as it may, the activity must be an economic one38 in the sense of an activity aimed at the production of goods or services with a view to deriving financial gain. However, the Court of Justice has construed this fairly broadly. Accordingly, the commercial activities of members of a spiritual community were regarded as being covered by freedom of establishment in so far as the community provided services to its members by way of quid pro quo.39 Any economically significant activity may be exercised “across borders” through the exercise of the right of establishment in the same way as it may through the provision of services. In so far as the economic nature of the activity carried out may also be indirect, there must, however, be a direct functional link between the activity actually performed and the activity carried out for payment, since otherwise the former activity would not qualify as an “activity” within the meaning of the Community provisions on establishment and services.40 The same applies with regard to employed work and even the training necessary to enter a profession, in that if it involves the performance of activities which are

38 For the question as to whether a given activity can be classified as economic, see Case C-268/99 Jany and Others [2001] ECR I-8615 and the Opinion of Advocate General Léger in that case. In that case it fell to be determined whether prostitu-tion was an economic activity for the purpose of the application of the rights and provisions associated with freedom of establishment and freedom to provide ser-vices. In the later judgment in Case C-327/02 Panayotova and Others [2004] ERC I-11055, the Court of Justice – following the Opinion of Advocate General Poiares Maduro of 19 February 2004 – held that prostitution constituted a self-employed activity for the purposes of the Treaty.

39 Judgment in Case 196/87 Steymann [1998] ECR 6159.40 Albeit with reference to services, the link between the activities of students asso-

ciations distributing information about abortion in other Member States and the activities of abortion clinics in those States was held to be “too tenuous” for the activities of the students associations to be brought within the category of eco-nomic activities protected by the Treaty: Case C-159/90 Grogan [1991] ECR I-4685, paras 24-25. For a fuller discussion, see Ch. IV.

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“normally paid” or perhaps, more properly, “remunerated”, it will fall within the scope of the right of establishment.41

Art. 45(2) EC confers on the Council, acting by a qualified majority on a proposal from the Commission, the power to rule that “certain activities” should be excluded from the scope of the provisions governing establishment. That provision has never been used and it is hard to envisage how it could be applied now that, following the expiry of the transitional period, Art. 43 has been regarded as having direct effect. This is because in the final analysis the Council’s act would constitute a limitation of rights already conferred on indi-viduals by the Treaty.

III.8 (cont.)Exclusionofactivitiesconnectedwiththeexerciseofofficialauthority

In contrast, it is the Treaty itself which, in Art. 45(1), excludes from the scope of the right of establishment activities which, in the host Member State, are “connected, even occasionally, with the exercise of public authority”. As is well known, this provision expresses a general principle which invests the whole area of free movement of persons. Indeed, apart from services (where Art. 55 expressly refers to Art. 45) liberalisation of the free movement of work-ers is stated not to apply to “employment in the public service” (Art. 39(4) EC).42 This provision is due to the fact that the Member States sought to reserve activities for their own citizens irrespective of whether those activities were employed or self-employed or with or without a permanent establishment where those activities were regarded as being particularly sensitive having regard to the general interests of the country and hence requiring the employed or self-employed workers concerned to exhibit duties and allegiance towards the State such as only nationality can warrant. Since the rationale of the various provisions is the same, this has warranted their being given a substantially uni-form interpretation43. Given that this constitutes a derogation from the general

41 This applies to a praticante or trainee lawyer in Italy. Although his or her activity constitutes the practical part of the training necessary to accede to the profession of avvocato, since it is normally remunerated by the client or by the firm for which he or she works, it falls within the scope of Art. 43 EC: see Case C-313/01 Mor-genbesser [2003] ECR I-13467, paras 59 to 61.

42 See Ch. II, part 10.43 Notwithstanding the fact that the wording differs in that, as far as employed activi-

ties are concerned, an employment relationship with the public administration seems to be excluded without any importance being given to the actual duties of the worker, and, as far as concerns self-employed activities, this exclusion relates to specified activities. The Court of Justice has in fact endorsed the liberalisation of many posts in the public service which do not involve “direct or indirect par-ticipation in the exercise of powers conferred by public law and in the discharge of functions whose purpose is to safeguard the general interests of the State or of

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principle of free movement, it must be strictly interpreted in accordance with the functional objectives of the derogation with the result that only activities involving a direct and specific participation in the exercise of powers conferred by public law are excluded.44

In any event, consideration must proceed on a case-by-case basis having regard to the national provisions which govern the organisation and exercise of the activity in question in the particular Member State and likewise distinguish-ing activities connected with the exercise of the prerogatives of government (to which the exclusion will apply) from those that serve a function merely preparatory to the exercise of those prerogatives45.

As a result, general a priori exclusions relating to a particular profession are not permissible, since, in contrast, what has to be ascertained is whether, within the profession under consideration, it is not possible to identify a central, characterising core of activities not involving the exercise of public authority, leaving possibly the specific aspect of other, marginal and severable manifesta-tions of the profession to which alone, if at all, the exclusion of liberalisation will apply.

other public authority”: Case 149/79 Commission v Belgium [1980] ECR 3881. See also Ch. II, part 5.

44 See, as regards the profession of advocate, Case 2/74 Reyners [1974] ECR 631, in which the Court of Justice held that where a profession is made up of different activities only those activities count which, taken on their own, constitute a direct and specific connection with the exercise of official authority. An extension of the exception to the whole profession would be possible only in cases where such activities were linked with that profession in such a way that freedom of establish-ment would result in imposing on the Member State concerned the obligation to allow the exercise, even occasionally, by non-nationals of functions appertaining to official authority. See also Case C-42/92 Thijssen [1993] ECR I-4047 and Case C-272/91 Commission v Italy [1994] ECR I-1409. The Court of Justice has held that the activities of a company and its staff called upon to carry out security work on the basis of a private-law relationship did not involve participation in the exer-cise of public authority. It can be seen from this judgment that contributing to the maintenance of public security, a task which every citizen can be called upon to perform, does not constitute the exercise of official authority within the meaning of Art. 45(1): Case C-114/97 Commission v Spain [1998] ECR I-6717, paras 34 to 37. See to the same effect Case C-355/98 Commission v Belgium [2000] ECR I-1221 and Case C-283/99 Commission v Italy [2001] ECR I-4363, paras 19 to 22.

45 As regards the activities of Centri di Assistenza Fiscale (CAFs) [Tax Advice Cen-tres] in Italy, see the Opinion of Advocate General Ruiz Jarabo Colomer of 28 June 2005 in Case C-451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I-2941, para. 54.

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III.9 Ways of exercising freedom of establishment. Primary establishment

The right of establishment may be exercised by way of primary or secondary establishment. In the first place, a natural person originating from a Member State sets up his or her own principal centre of activities in another Member State and, apart from nationality, Community law does not impose any further obligations on that person.46 Practically, a primary establishment may take the most varied forms, such as starting up a professional activity by opening cham-bers, purchasing a business or, to use the terminology of Art. 43(2) by “set[ting] up and manag[ing] undertakings, in particular companies or firms” on the con-ditions prescribed by the legislation of the country of establishment for its own nationals. Even the purchase of a holding in a company may constitute a way of exercising the right of establishment by way of primary establishment, which is subject under Art. 294 to the rule that nationals of other Member States must be accorded the same treatment as regards participation in the capital of com-panies and firms.47 The Treaty does not place limits on the legal forms made available by each national legal system which Community citizens may utilise in order to exercise their activity in another Member State.48

In principle, the Treaty also confers the same broad choice of methods of exercising the right to set up a primary establishment also on legal persons49. On that view, a company formed in accordance with the legislation of one Member State and having its seat therein may take part in the formation of a new company in another Member State or transfer its own seat and centre of activity to another Member State while preserving its legal nature as a company formed in accordance with the legislation of its home Member State.50

46 See, by way of example, Case C-172/98 Commission v Belgium [1999] ECR I-3999, in which the Court of Justice held to be incompatible with Community law legislation which made the conferral of legal personality on an association subject to the presence in the association’s administration of a Belgian member or a mini-mum number of Belgian members.

47 Case 81/87 Daily Mail [1988] ECR 5483, para. 17. The Court of Justice has made it clear that the acquisition of a shareholding fleshes out establishment if it is accom-panied by the acquisition of control over the undertaking; in contrast, a sharehold-ing which is not such as to enable control to be acquired must be assessed in the light of the rules on the movement of capital, which also, however, provide for the prohibition of discrimination on grounds of nationality (Case C-251/98 Baars [2000] ECR I-2787). See S. Klass, The transfer of shares of private companies, Eur. Company Fin. Law Rev. (2004) 340.

48 Case 270/83 Commission v France [1986] ECR 273, para. 22.49 See para. 6, supra.50 For this hypothetical possibility, see E. Greppi, Stabilimento e servizi nel diritto

comunitario, in Digesto delle discipline pubblicistiche (UTET, Torino, Vol. XIV, 1999) 521.

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In fact, at the stage reached by Community law at present, the only form of primary establishment which companies are permitted is that consisting of par-ticipating in the formation of a different company in another Member State in conformity with the legislation of that State. This is because under the national legal systems it is the seat of the company which determines its nationality: therefore transfer of the seat may be at odds with retaining legal personality and that drawback cannot be remedied by the provisions on establishment in the absence of fuller harmonisation of company law.51

III.10 (cont.) Secondary establishmentArt. 43 of the Treaty provides that the right of establishment entails a prohibi-tion of restrictions on the setting-up of agencies, branches or subsidiaries by “nationals of a Member State in the territory of another Member State”. Con-sequently, that provision envisages a type of exercise of the right of establish-ment which consists in maintaining two distinct centres of activity: one in the original or primary State of establishment and other in that in which an agency, branch or subsidiary has been set up. This is what is known as “secondary” establishment or, perhaps more properly, secondary set-up in the sense that, as the Court of Justice has held, freedom of establishment “is not confined to the right to create a single establishment within the Community”52 but entails the

51 See Case 81/87 Daily Mail [1988] ECR 5483, paras 23 to 25. In the more recent judgment in Case C-208/00 Überseering [2002] ECR I-9919, the Court of Justice declared that, despite the general terms in which para. 23 of Daily Mail is cast, the Court did not intend to recognise a Member State as having the power, vis-à-vis companies validly incorporated in other Member States and found by it to have transferred their seat to its territory, to subject those companies’ effective exercise in its territory of the freedom of establishment to compliance with its domestic company law. In particular at para. 73, the Court reasserted this statement with regard to the question of recognition of legal capacity and capacity to be a party to legal proceedings. For the assertion that the location of the seat, central adminis-tration or principal place of business serves as the connecting factor with the legal system of a particular State, as does nationality in the case of natural persons, see Case 79/85 Segers [1986] ECR 2375, para. 13; Case 270/83 Commission v France [1986] ECR 273, para. 18; Case C-330/91 Commerzbank [1993] ECR I-4017, para. 13; Case C-264/96 ICI [1998] ECR I-4695, para. 20; Case C-212/97 Centros [1999] ECR I-1484, para. 20. For an analysis of this case-law as regards secondary establishment of companies, see V. Edwards, Secondary Establishment of Compa-nies – The Case Law of the Court of Justice, Yearbook of European Law (1998) 221; E. Kaldellis, Freedom of establishment of companies in the post-Centros Ltd era: how much of a “Freedom” in European Community Law, Rev. hellénique de droit int. (2002) 411; H. Friis, The Free Movement of Companies, Company Law (2003) 147; E. Micheler, Recognition of Companies incorporated in EU Member States, Int. Comp. Law Quart. (2003) 521.

52 Case 107/83 Klopp [1984] ECR 2971, para. 19.

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right to set up and maintain more than one establishment within the territory of the Community, provided that the national rules designed to safeguard require-ments warranting protection are complied with. On the other hand, secondary establishment does not necessary signify that the additional centre of activity should be ancillary or, at any event, subordinate to the first. In fact, the reverse may well be the case. Indeed, it is irrelevant that the entity concerned uses the secondary establishment precisely to conduct “its main, or indeed entire, busi-ness”.53 Secondary establishment constitutes a “specific statement of a general principle”54 which, as such, cannot be subjected to quantitative limitation.

The fact that a company is formed abroad (in a Member State whose leg-islation is based on the principle of “incorporation”) with the sole of aim of subsequently establishing itself in another Member State in order to carry out there the whole of its economic activities through a subsidiary falls within the exercise of the right of establishment, which opens up the possibility of being able to choose the legal system which is the most favourable for forming a company. As will be seen, this does not amount to an abuse of Community law. It follows that legislation of a Member State which, through the mechanism of conflict of laws, amounts to negating the very existence in law of a company formed abroad in accordance with the law of another legal system and hence does not allow secondary establishment is at odds with the right of establish-ment guaranteed by the Treaty.55 By the same token, requirements of national law which, without amounting to negating the existence of a company formed abroad, make secondary establishment dependent on compliance with certain conditions prescribed for companies formed in accordance with that national law introduce a barrier to the exercise of the right of establishment which will have to be assessed in the light of overriding requirements in the general inter-est that Community law permits Member States to protect, provided that they comply with the principles of non-discrimination and proportionality.56 As in the case of all residual competences of the Member States, the rules of private international law or the substantive company law of a Member State may be determined differently by the national legislature, provided, however, that, in exercising those competences, the Member State may not harm or unjustifiably restrict the exercise of the fundamental freedoms guaranteed by the Treaty. As far as substantive company law is concerned, the Court of Justice has made it clear that national rules requiring a trader which is a legal person to have a

53 Case C-212/97 Centros [1999] ECR I-1484, para. 17, and, before that, Case 79/85 Segers [1986] ECR 2375. The principle was subsequently reiterated in Case C-167/01 Inspire Art [2003] ECR I-10155, paras 95 to 97.

54 Case 107/83 Klopp [1984] ECR 2971, para. 19.55 Case C-208/00 Überseering [2002] ECR I-9919.56 Case C-212/97 Centros [1999] ECR I-1484 and Case C-167/01 Inspire Art [2003]

ECR I-10155.

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minimum share capital may constitute an obstacle to the exercise of the right of (secondary) establishment.57

The fact that Art. 43 mentions agencies, branches and subsidiaries gives the impression that secondary establishment is a form of establishment exer-cised only by companies, but, since there is no limitation expressed in the Treaty, it has also been held to be applicable to the liberal professions and hence to natural persons,58 in relation to which national legislation requiring the form of legal person in order to pursue a particular activity is thereby ren-dered incompatible with Community law.59 It should be emphasised, however, that since for the reasons set out above it is ruled out in practice – albeit theo-retically possible – for legal persons to exercise establishment by way of pri-mary establishment, secondary establishment is in substance the only form of establishment available to companies as Community law stands at present. The opening of “agencies, branches or subsidiaries” in another Member State must be regarded as a merely indicative and not exhaustive list of the methods of secondary establishment open to a company established in another Member State. Indeed, the Court of Justice has endorsed the application of the rules on establishment where an insurance undertaking maintained a permanent pres-ence in another Member State “even if that presence does not take the form of a branch or agency, but consists merely of an office”.60

The Treaty does not define what is meant by agency, branch or subsidiary. A similar expression is to be found in Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Art. 5(5) of which lays down a head of jurisdiction relating

57 Case C-171/02 Commission v Portugal [2004] ECR I-5645, paras 53-54. One cannot but agree with those commentators who have stressed that Community law accepts that the Member States are at liberty to lay down varying conditions for the formation of companies governed by their own laws but point out that that liberty is restricted as regards the existence of companies formed in accordance with the laws of other Member States and the obligation to recognise them: see M.V. Benedettelli, supra (note 30) at 605 ff.

58 Case 107/83 Klopp [1984] ECR 2971, para. 19. Mr Klopp was a member of the Bar in Germany where he had Chambers in Düsseldorf. He sought to be admitted to practise at the Paris Bar while retaining his residence and Chambers in Düs-seldorf. See also with regard to the profession of auditor, Case C-106/91 Ramrath [1992] ECR I-3351, para. 21. Given the right for every member of a profession to have more than one centre of activity in the Union, it follows that all national rules requiring professional people to be resident within the district of the relevant professional body or requiring their names to be removed from the register in the event that they move abroad are incompatible with Community law. See to this effect concerning dentists, Case C-162/99 Commission v Italy [2001] ECR I-541.

59 Case C-171/02 Commission v Portugal [2004] ECR I-5645, para. 42.60 Case 205/84 Commission v Germany [1986] ECR 3755, para. 21.

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to disputes arising out of the “operations of a branch, agency or other establish-ment”.61 In this connection, the Court of Justice has interpreted this expression as meaning for the purposes of the Brussels Convention (now Regulation No 44/2001) “a place of business which has the appearance of permanency, such as the extension of a parent body, has a management and is materially equipped to negotiate business with third parties” even if any legal link will be made with the parent body, which has its seat abroad.62 It must be said, however, that recourse to this case-law does not appear at all satisfactory, since its aim was simply to identify a territorial connection between a dispute and the secondary seat of a company and was not designed to distinguish between the various types of secondary seat, which instead are substantially placed on the same footing both in the words used in the legislation (“or other establishment”) and in the Court’s case-law (which is intended to confer jurisdiction on the court of the subsidiary whenever a structure exists which enables third parties to con-clude business directly on the spot with having to turn to the parent body).

III.11 Content of freedom of establishment. The rule of national treatment

As far as the substance of the freedom guaranteed by the Treaty is concerned, the rules on establishment take their inspiration from the principle of national treatment and hence from treating the person from another Member State as if that person were a national of the host State so far as concerns access to self-employment (Art. 43, second para.). As a result, in the first place limitations or conditions on the exercise of the relevant activity are prohibited where the same prohibitions and the same burdens are not also imposed on nationals.

61 OJ L 12, 16/1/2001, 1. This regulation, adopted on the basis of Art. 65 EC, has replaced the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, except as regards rela-tions with Denmark. Art. 5(5) of the regulation corresponds to Art. 5(5) of the Brussels Convention except for a terminological change in the Italian version (“o qualsiasi altra filiale” in the Convention is rendered “o qualsiasi sede d’attività” in the regulation, whereas the French (“de tout autre établissement”) and the Eng-lish (“other establishment”) is the same in both instruments). According to recital 19 of Regulation No 44/2001, the regulation has to be interpreted in the light of the case-law on the Brussels Convention. For Art. 5(5) of the Brussels Convention, see A. Pietrobon, L’interpretazione della nozione comunitaria di filiale (Cedam, Padova, 1990) 154 ff. More recently, see S.M. Carbone, Giurisdizione ed efficacia delle decisioni in materia civile e commerciale nello spazio giudiziario europeo, in S.M. Carbone, M. Frigo, L. Fumagalli, Diritto processuale civile e commerciale comunitario (Giuffrè, Milano, 2004) 25 ff.; A. Layton, H. Mercer (eds), European Civil Practice (Sweet & Maxwell, London, 2nd ed., 2004) Vol. I, 491 ff.

62 Case 33/78 Somafer [1978] ECR 2183.

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What is involved, therefore, is a classic instance of the application of the prohibition of discrimination on grounds of nationality, which is prescribed in general for the whole field of application by Art. 12.63

The prohibition of discrimination on grounds of nationality means in the first place that all restrictive rules of legislation, regulations or administra-tive provisions64 whose application is conditional upon the foreign national-ity of the person concerned are incompatible with Community law.65 In this way, not only provisions directly precluding or making more onerous access to or pursuit of the economic activity in question become incompatible with Community law, but also national rules which discriminate against foreign-ers when it comes to benefiting from instruments or facilities, even if they are only indirectly connected with readier exercise of the economic activity. In this broader perspective, the following have been held to be contrary to the right of establishment: national legislative provisions reserving the right to acquire immoveable property or the right of access to public facilities for the purchase of housing, since they constitute the “necessary complement” of freedom of establishment66. The right of access to recreational activities on offer in the host State has also been held to be the corollary of freedom of movement with the result that national legislation reserving to nationals the right to register a vessel for leisure purposes in the State is incompatible with Community law.67 On the basis of the same principle, national legislation imposing a residence condition only on Union citizens has also held to be discriminatory.68

63 Case 270/83 Commission v France [1986] ECR 273.64 Provisions deriving from collective agreements are treated as such and will there-

fore likewise be incompatible with Community law: see Case C-234/97 Fernán-dez de Bobadilla [1999] ECR I-4773.

65 Measures “affecting foreigners insofar as they are foreigners”: see G. Tesauro, Diritto comunitario (Cedam, Padova, 4th ed., 2005) 524.

66 Case 305/87 Commission v Greece [1989] ECR 1461, paras 20 to 23; Case 63/86 Commission v Italy [1988] ECR 29, para. 16. More recently, the same principles have been reiterated with regard to Austrian legislation: Case C-302/97 Konle [1999] ECR I-3099. See also Case C-423/98 Albore [2000] ECR I-5965, paras 21-22, on a restriction consisting in the fact that only non-nationals must apply for authorisation to purchase immoveable property in an area of military importance.

67 Case C-334/94 Commission v France [1996] ECR I-1307, paras 21 to 23.68 See, for example, Case C-337/97 Meeusen [1999] ECR I-3289, paras 27 to 30,

concerning national legislation which imposed a residence requirement on the children of a trader who had exercised the right of establishment, in order to qual-ify for funding for education whereas no such condition was imposed on children of national traders; Case C-263/99 Commission v Italy [2001] ECR I-4195 con-cerning legislation which required only Community citizens and not Italians to be resident in order to accede to and pursue the activity of transport consultancy.

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III.12 Prohibition of measures applicable without distinctionThe rule of national treatment soon showed its limitations as a means of fully ensuring freedom of establishment.69 This is because national legislation exhib-its over and again provisions which in fact, albeit applied without distinction to foreigners and to nationals alike and thus on the basis of a condition other than nationality, in fact discriminate covertly against foreigners. In other words, the provisions concerned require those wishing to exercise the right of establish-ment to satisfy certain requirements which, albeit not that of nationality, are normally fulfilled by nationals and not by foreigners.

Such requirements, or – as they are known – measures applied without distinction, are also considered by the case-law of the Court of Justice to be incompatible with the right of establishment. A first, typical example is a requirement of residence which is imposed on nationals and foreigners alike, but is certainly more readily satisfied by nationals.70 An obvious example is the Belgian legislation which exempted persons exercising both employed and self-employed activities from paying social security contributions in respect of their self-employed activities provided that both activities were exercised in Belgium. Albeit not formally discriminatory, such a provision ended up by substantially benefiting Belgian nationals, who found themselves more often than foreigners in a position to qualify for the economic advantage in ques-tion.71 Tax provisions requiring those qualifying for the repayment of undue tax to be resident for tax purposes are also indirectly discriminatory, since in fact they disfavour foreign companies which have exercised the right of secondary establishment given that they often have their residence for tax purposes in the State in which their principal establishment is located.72 No differently from

69 Case 136/78 Auer [1979] ECR 437, para. 21.70 The case-law on this area is particularly abundant. The following cases are worth

mentioning: Case C-279/89 Commission v United Kingdom [1992] ECR I-5785, para. 42, concerning an Act of Parliament requiring the crew of fishing vessels to be resident in the United Kingdom in order to obtain a fishing licence; Case C-355/98 Commission v Belgium [2000] ECR I-1221 with regard to legislation requiring managers of security firms to be resident in the national territory; Case C-162/99 Commission v Italy [2001] ECR I-541, which declared to be incompat-ible with Community law Italian legislation on the profession of dental surgeon which de facto required dentists practising in Italy to be resident in that country; Case C-299/01 Commission v Luxembourg [2002] ECR I-5899 relating to legisla-tion making the grant of a guaranteed minimum income dependent upon the dura-tion of residence in the country.

71 Case 143/87 Stanton [1988] ECR 3877, paras 13 to 16.72 Case C-330/91 Commerzbank [1993] ECR I-4017, para. 15. For other instances

of indirect fiscal discrimination, see C-1/93 Halliburton [1994] ECR I-1137, para. 19; Case C-245/97 Baxter [1999] ECR I-4809, paras 18-19; Case C-307/97 Com-pagnie de Saint-Gobain [1999] ECR I-6161, para. 38; Case C-200/98 X and Y

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other barriers to the exercise of the right of establishment, fiscal discrimination is regarded as being incompatible with Community law even if exercised “on the way out”, that is to say by the Member State of provenance where it has enacted legislation such as to discourage the conduct of traders in seeking to go to another Member State.73

The same “indirect” approach is followed by case-law holding incompat-ible with freedom of establishment national legislation which, by restricting access to or the exercise of particular activities to holders of national diplo-mas, discriminated de facto against foreign nationals, at least where national law did not enable account to be taken, following proper assessment, of the correspondence between the knowledge attested to by the prescribed national diploma and that possessed by the person concerned as a result of his or her having required qualifications in his or her State of provenance.74 By the same token, national legislation debarring a natural person from managing more than one business has been held to constitute indirect discrimination: in so far as it is applicable to foreigners as well as to nationals, its effect is to exclude Community nationals from access to a particular activity by way of secondary establishment.75

The endeavour to confer effectiveness (effet utile) on the provisions on establishment has prompted the Court of Justice, at least in some of its pro-nouncements, to regard as being incompatible with Art. 43 et seq. also national measures applicable without distinction and without discriminatory effects where, albeit not constituting a barrier to access to a particular economic activ-

[1999] ECR I-8261; Case C-251/98 Baars [2000] ECR I-2787. See also G. Bizioli, Evoluzione del diritto di stabilimento nella giurisprudenza fiscale della Corte di Giustizia della Comunità europea, Rivista italiana di diritto pubblico comuni-tario (1999) 381; C. Peters, Non-discrimination: the freedom of establishment and European tax law, in H. Gribnau (ed.), Legal Protection against discriminatory tax legislation (Kluwer international law, The Hague 2003) 101.

73 Case C-264/96 ICI [1998] ECR I-4695, para. 21; Case C-251/98 Baars [2000] ECR I-2787, para. 28; Case C-9/02 Hughes de Lasteyrie [2004] ECR I-2409, para. 42.

74 See, with regard to the requirements for access to the occupation of football trainer, Case 222/86 Heylens [1987] ECR 4097, para. 10; as regards the profession of lawyer, see Case C-340/89 Vlassopoulou [1991] ECR I-2357, para. 9; as regards estate agents, see C-104/91 Aguirre Borrel [1992] ECR I-3003, para. 7; as regards trainee lawyers, an activity categorised by the Court of Justice as economic, see Case C-313/01 Morgenbesser [2003] ECR I-13467, para. 62; as regards the qualifications required to be a statutory auditor, see Case C-255/01 Markopoulos [2004] ECR I-9077, para. 67. The principle also applies to occupations which are not subject to any requirement for a diploma in the State of provenance: see Case C-164/94 Aranitis [1996] ECR I-135.

75 Case C-140/03 Commission v Greece [2005] ECR I-3177, paras 27-28.

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ity in the host State, they are nevertheless capable of reducing the economic attractiveness of an activity exercised by way of freedom of establishment as compared to when the activity is exercised by national traders. The judgment in Kraus76 exemplifies this approach. In that case, the Court of Justice held that the situation of a Community national who has obtained a post-graduate qualification in another Member State which makes it easier to gain access to a profession or, at least (simply in practice), to exercise an economic activity is governed by the Community rules and, in particular, those on the right of establishment. This is because, in the absence of harmonisation relating to the diploma concerned and even though the Member States continue to be free to determine its legal value within their territory, such national laws may not constitute a barrier to the effective exercise of fundamental freedoms, such as freedom of establishment77. It is significant therefore in the case in ques-tion that, although the Court recognised that the German legislation precluding the use of the title acquired abroad was not discriminatory, the mere fact that that circumstance might discourage exercise of the right of establishment made it incompatible – at least in principle and subject to an justificatory grounds – with the Treaty rules on establishment. Likewise, in Pfeiffer78 it held that national rules prohibiting a trader from another Member State from exercis-ing its activity under the same name as it used in its home Member State were incompatible with freedom of establishment. The concern shown in the Court’s case-law to ensure that a trader having recourse to freedom of establishment has identical opportunities for succeeding as national traders who already have a presence on the market and already have a customer base emerges clearly from the judgment in CaixaBank France.79 In that case, the Court of Justice held to be contrary to Art. 43 of the Treaty French rules prohibiting banks from paying interest on sight accounts. This was clearly not a discriminatory mea-sure and not such as to prevent the foreign bank in question from gaining access to the market, but since competition in interest rates on sight deposits is one of the most effective ways for a new bank to penetrate the market (and this was the position of the bank in question), the prohibition constituted an instrument which made it more difficult to gain access to the host country’s market. In this way, freedom of establishment serves to produce more effective competition between traders from different Member States and, conversely, homogeneity of the conditions of competition on the national market becomes a yardstick for gauging the full achievement of freedom of establishment.

76 Case C-19/92 Kraus [1993] ECR I-1663.77 See D. Fisichella, Il principio di mutuo riconoscimento e libera circolazione delle

professioni nell’Unione europea, Diritto dell’Unione europea (1999) 53.78 Case C-255/97 Pfeiffer [1999] ECR I-2835.79 Case C-442/02 CaixaBank France [2004] ECR I-8961.

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A trend emerges quite clearly from this case-law for the rules on estab-lishment to align themselves as far as identifying incompatible measures is concerned with the rules on services, where non-discriminatory measures have been held to be unlawful on the ground that they made it less attractive for a non-national to exercise his or her activity by way of provision of services in the Member State in question.80

On a final note, although this approach has not yet been sufficiently con-firmed and, indeed, there have been indications to the contrary, the idea could be floated of having unitary rules on the various freedoms of movement of factors of production within the Community, which would be fundamentally based on the principle of mutual recognition of the legislative choices of the Member States, as a subsequent step and a more developed one at least from the point of view of setting up an effective internal market as compared with mere national treatment.81

III.13 Exceptions to freedom of establishment: abuse of the lawThe right of establishment, in common with the other freedoms guaranteed by the Treaty, is subject to restrictions, partly provided for in the wording of the Treaty itself, partly permitted by the case-law of the Court of Justice.

Generally, the freedoms conferred on individuals by the Community rules may not be abused to the detriment of interests protected by national legisla-tion in the various Member States and considered as being worthy of protec-tion also by the Community legal order.82 In particular, a Member State has the power to adopt measures designed to prevent its own nationals from using the possibilities afforded by the Treaty in order to remove themselves from the ambit of their own national laws. This idea has been developed above all in the sector of freedom to supply services with regard to the practice – not infrequently encountered in practice – whereby traders avail themselves of the freedom guaranteed by Art. 49 et seq. of the Treaty in order to offer their activi-

80 See Case C-288/89 Gouda [1991] ECR I-4007; Case C-22/95 Parodi [1997] ECR I-3899, para. 18; Joined Cases C-369/96 and C-376/96 Arblade [1999] ECR I-8453.

81 There is a trace of this exercise in reading together the rules applicable to the four freedoms in the judgment in Case C-55/94 Gebhard [1995] ECR I-4165 and in commentaries; see G. Tesauro, supra (note 55) at 529 ff. and R. Mastroianni, La libera prestazione dei servizi in G. Strozzi (ed.), supra (note 14) 261 ff. For fur-ther considerations, see J. Lau Hansen, Full circle: is there a difference between the freedom of establishment and the freedom to provide services?, in M. Ande-nas, W.-H. Roth (eds), Services and free movement in EU law (Oxford University Press, Oxford, 2002) 197.

82 For abuse of the law in the Community system, see, by way of example, M. Gestri, Abuso del diritto e frode alla legge nell’ordinamento comunitario (Giuffrè, Milano, 2003) at 82 ff.

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ties mainly on their own country’s market, thereby avoiding the application of stricter rules which would apply to them if they were established there.83 There have, moreover, been a number of judgments relating to the exercise of the right of establishment by which the Court of Justice has recognised the legitimate interest of Member States in avoiding their nationals using the Treaty rules in order wrongfully to evade national legislation on professional training.84 It must be noted, however, that not every intention to avoid the application of stricter national provisions may be regarded as being an abuse of Community law.

In the judgment in Centros,85 the Court of Justice held that the fact that a national of a Member State who wishes to form a company chooses to incor-porate it in the Member State whose rules of company law seem to him or her to be less strict, and create branches in the other Member States, cannot in itself constitute an abuse of the right of establishment. This is because what is involved is a particular way of exercising the right of establishment guaranteed by the Treaty which cannot as such be categorised as an abuse even in the event – as was the case – that the parties have recourse to it in order to evade the stricter provisions of the Member State in which they operate through a branch.86

In the later judgment in Inspire Art,87 the Court of Justice, referring to the principle enshrined in Centros, stressed that the reasons for which one or more persons decide to form a company in a particular Member State rather than another where its main, or indeed entire, business is to be conducted through a company founded in the first Member State are irrelevant with regard to appli-cation of the rules on freedom of establishment. In the Court’s view, the only

83 For this point, see Ch. IV, part 9.84 Case 115/78 Knoors [1979] ECR 399, para. 25, and, as regards the profession of

medical practitioner, Case C-61/89 Bouchoucha [1990] ECR I-3551, paras 14-15.

85 Case C-212/97 Centros [1999] ECR I-1484. See S. Fortunato, La libertà di stabilimento delle società in una recente sentenza della Corte di Giustizia: il caso Centros, Diritto dell’Unione europea (2000) 83; L. Cerioni, The barriers to the international mobility of companies within the EC: a re-reading of the case-law, Journal of Business Law (1999) 59; M. Gestri, Mutuo riconoscimento delle società comunitarie, norme di conflitto nazionali e frode alla legge, Rivista di diritto inter-nazionale (1999) 71; F. Munari, P. Terrile, supra (note 30, and the references in note 27).

86 In particular, it emerges from the judgment that the intention of evading the Danish provisions on the paying-up of a minimum share capital was not even contested since it emerges clearly from the fact that the company was not carrying on any activity in the Member State in which it had its seat, confining its operations to the State in which the branch was located.

87 Case C-167/01 Inspire Art [2003] ECR I-10155, para. 95. See also the Opinion of Advocate General Alber.

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exception is fraud, which it did not define, with the result that the extent to which it is relevant in practice is very doubtful and liable to merge with the requirements relating to the protection of the public interest which Member States may protect by means of rules limiting the right of establishment whilst respecting the principles of non-discrimination and proportionality.

III.14 Discriminatory restrictionsAs regards the permitted exceptions to the right of establishment as described so far, Community law draws a clear-cut distinction between discriminatory measures and measures which are not discriminatory and therefore applicable without distinction.

To start with discriminatory measures, the only exceptions allowed are those expressly provided for in the Treaty, that is to say, by Art. 46.88 As a result, discriminatory national measures based on grounds of public policy, public security or public health are permitted. This exception clause cuts across the whole area of free movement and is even applied in the sphere of services (Art. 55 contains a reference to Art. 46) and the free movement of workers (Art. 39(3)). The resultant substantial uniformity of the rules enabled the Community legislature to adopt a single implementing instrument: Directive 2004/38/EC, and in particular Articles 27 to 33, which go to make up Chapter V, entitled, “Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health”.89

Since they are derogations from the fundamental freedoms guaranteed by the Treaty, measures based on such grounds must be strictly interpreted so as not to exceed what is strictly necessary for the protection of the interests in question.90 The concepts of public policy and public security are defined neither in the Treaty nor in Directive 2004/38/EC, which therefore gives the Member States a measure of discretion, albeit subject to the scrutiny of the Community institutions as to the non-arbitrary use of the derogation. In particular, discrimi-

88 The exclusion of activities connected with the exercise of official authority (Art. 45 of the Treaty), albeit reducing to a “reservation” in favour of national traders, is regarded as being a limit to Community competence (see para. 8, supra) rather than a source of legitimate discrimination against the exercise of the fundamental freedoms.

89 See supra (note 5). This Directive replaces Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and resi-dence of foreign nationals which are justified on grounds of public policy, public security or public health, OJ English Special Edition, Series I Chapter 1963-1964, 117. See also Ch. II, paras 12 and 13.

90 As far as the right of establishment is concerned, the principle was enunciated, inter alia, in Case C-260/89 ERT [1991] ECR I-2925, para. 24; Case C-484/93 Svensson and Gustavsson [1995] ECR I-3955, para. 15.

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natory measures may not be justified on economic grounds, which are regarded as falling outside the notion of public policy, thereby giving it a “negative” definition. Art. 27 of Directive 2004/38/EC makes an – albeit limited – effort to codify the case-law of the Court of Justice on the concept of public policy, and requires Member States to comply with the principle of proportionality in adopting measures limiting free movement which are based on public policy or public security, specifying that the personal conduct of the individual con-cerned must represent a “genuine, present and sufficiently serious threat affect-ing one of the fundamental interests of society”.

The Court of Justice has sometimes applied Art. 46 directly, in particular with regard to public health, although its case-law is not invariably consistent. The question brought to its attention consisted in State limitations on public-health grounds to the exercise of medical or paramedical activities by Com-munity nationals. Initially, the Court denied that a Member State could rely on Art. 46 in order to exclude Community nationals access to a sector of activity;91 more recently, however, it agreed that requirements relating to the protection of public health could justify denying access to the exercise of certain activities as regards the disputed activity of Heilpraktiker (lay health practitioners).92

III.15 (cont.) Non-discriminatory restrictionsAs has been seen, despite the fact that the wording of the Treaty merely prescribes the rule of “national treatment”, the Court of Justice has found incompatible also what are termed measures applicable without distinction, essentially broadening the area of protection of persons taking advantage of the right of establishment to such an extent that it is possible to contemplate equat-ing it with the protection afforded to service providers. However, there remain important State interests which Community legislation allows to be protected requirements limiting de facto the right of establishment. In the case of require-ments which are formally non-discriminatory to the detriment of foreigners, the justificatory grounds permitting such measures to be adopted are not con-fined to those expressly provided for in the Treaty, since the Member States may introduce further restrictions provided that they are based on “overriding requirements in the general interest”. On the basis of this hypothesis, there is an identification of State interests deserving of protection that will change and even diminish with advancing Community integration as a result of the coordination of the various national legal systems, with the result that, at least looking ahead to the future, there should be a trend for the values protected in each system to coincide, albeit not completely, so as to minimise the grounds justifying restrictive measures.

91 See Case 131/85 Gül [1986] ECR 1573.92 See Case C-294/00 Gräbner [2002] ECR I-6515.

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If they are to be permissible, national measures applicable without distinc-tion which are capable of preventing the exercise of the right of establishment or even of only making it less attractive must satisfy four conditions laid down in the case-law of the Court of Justice. In the first place, they must be applied in a non-discriminatory manner; if not, they will be permissible only if they meet the requirement of one of the justifications specifically provided for in the Treaty.93 Secondly, the national measure must be justified on grounds of “imperative requirements in the general interest”. As has been mentioned, iden-tification of the general interest is left to the Court of Justice to decide, which must take account of the stage reached by integration at the particular time and, above all, of the existence of Community harmonising measures. Whilst it is true, as we have observed, that the intensification of the harmonisation of national legislation reduces the leeway available to the Member States to rely on restrictive measures, it is also true that the mere absence of harmonising measures does not signify that, in so far as they are free to lay down rules on the matter or activity in question, the Member States are entitled to detract from the exercise of the fundamental freedoms guaranteed by the Treaty. Even in exercising the competences proper to each Member State (for example, the competence in respect of direct taxation), the national legal system must avoid jeopardizing the right of establishment beyond what is considered strictly indispensable for protecting the general interest which the exercise of that com-petence is intended to safeguard. Generally speaking, it can be said that the interests the protection of which is permitted by the case-law seem to be those allowed by the Treaty as derogations from free movement of goods (see Art. 30),94 even though other values, also constituting overriding requirements, are taken into account, such as for instance the interest in the coherence of the tax

93 On closer inspection, this is question-begging with respect to the actual definition of measures applicable without distinction rather than an actual requirement with regard to the permissibility of the measures in question.

94 In Case C-19/92 Kraus [1993] ECR I-1663, the Court of Justice held that protec-tion of the public against the abusive use of academic titles not awarded in con-formity with the rules of the country of establishment was in the general interest, whilst stressing the absence of coordinating measures in that area. For protection of industrial and commercial property as a ground for restricting the right of estab-lishment (although it was not held to be in point in the actual case in question), see Case C-255/97 Pfeiffer [1999] ECR I-2835.

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system of the Member State in question95 or protection of creditors.96 Thirdly, the national measure must be objectively appropriate for ensuring attainment of the protective aim that it pursues.97 Fourthly, the national measure must not impose restrictions going beyond what is strictly necessary in order to attain the protective objective sought by the measure.98 In other words, where the same result may be attained by means of a measure which is less restrictive in terms of the sacrifice imposed on the exercise of the right of establishment, prefer-ence must be given to the less restrictive measure.99 That condition ensures that the measure complies with the principle of proportionality, which is a general principle of Community law governing the exercise of State competences in sectors subject to the Community legal order.100 A further condition with which restrictive national measures must comply is that the underlying protection of the general interest must not be guaranteed by the legislation of the country from which the person seeking to exercise the right of establishment comes. Obviously, this is a significant deviation from the principle of national treat-ment, at least when taken in its formal sense. This is because where the legal systems of the country of provenance and of the host county share, in the rel-evant respect, similar requirements for the protection of the general interest, the person seeking to exercise the right of establishment will be permitted to do so

95 See, for examples of the review of national measures in the light of the general interest in fiscal coherence in relation to the right of establishment, Case C-245/97 Baxter [1999] ECR I-4809. Coherence of the tax system is a general interest which is distinct from the requirement to avoid a reduction in the tax revenue of a Member State: that requirement can justify measures restricting the right of estab-lishment in the absence of abuse on the part of the person concerned (see Case C-9/02 Hughes de Lasteyrie [2004] ECR I-2409, para. 60).

96 See Case C-167/01 Inspire Art [2003] ECR I-10155, para. 135, where the appli-cation of stricter national rules on share capital was not held to be justified on grounds of creditor protection in so far as creditors are put on sufficient notice that they are coming into contact with a foreign company with respect to which rules different from those laid down for companies governed by domestic law apply.

97 Case 71/76 Thieffry [1977] ECR 765, paras 12 and 15; Case C-106/91 Ramrath [1992] ECR I-3351, paras 29-30; Case C-19/92 Kraus [1993] ECR I-1663, para. 32.

98 For the full test for measures applicable without distinction in the case of the right of establishment, see Case C-55/94 Gebhard [1995] ECR I-4165, para. 37.

99 See, among many cases, Case 3/88 Commission v Italy [1989] ECR I-4035, para. 11, and, more recently, Case C-9/02 Hughes de Lasteyrie [2004] ECR I-2409, para. 54.

100 The principle of proportionality, which is now codified in Art. 5 of the Treaty, together with the principle of subsidiarity, tends to operate in the opposite sense as a limit to the exercise of Community powers with respect to State powers: see L. Daniele, Il diritto del mercato unico europeo (Giuffrè, Milano, 2006) 24.

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on the basis of the conditions to which his or her activity would be subject in his or her country of provenance, which results in substance in mutual recogni-tion of the respective national laws.101

III.16 Measures designed to facilitate the exercise of the right of establishment: mutual recognition of diplomas and other evidence offormalqualifications

In principle, the rule of national treatment requires that a person exercising the right of establishment who intends to take up an activity whose exercise is dependent in the host country upon his or her having a particular professional qualification or a particular certificate issued in accordance with the require-ments of national law satisfies that condition by following the same course of study in the host State. Manifestly, rigid application of that rule would consti-tute a serious obstacle to freedom of establishment, albeit formally respecting the prohibition of discrimination on grounds of nationality.

The importance of this matter is flagged up directly in the Treaty, Art. 45 of which provides that “[i]n order to make it easier for persons to take up and pursue activities as self-employed persons”, the Council is to “issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications”. In accordance with that provision, the General Programme contemplated legislative activities on the part of the institutions aimed, on the one hand, at harmonising the conditions for access to the various professions and, on the other, at achieving mutual recognition of the certificates obtained through harmonised courses of study. The reduced activity of the institutions during the transitional period102 was offset in part by judgments of the Court of Justice which, apart from conferring direct effect on Art. 45, identified, in particular on the basis of the general principle of sincere cooperation set out in Art. 10 of the Treaty, an obligation for Member States to grant recognition when their national rules on the equivalence of evidence of formal qualifica-tions allowed them to do so.103 Whereas that approach certainly helped towards the mutual recognition of professional qualifications, the divergences existing

101 Case C-340/89 Vlassopoulou [1991] ECR I-2357; Case C-106/91 Ramrath [1992] ECR I-3351, paras 29 to -31; Case C-19/92 Kraus [1993] ECR I-1663, para. 38; Case C-55/94 Gebhard [1995] ECR I-4165, para. 38.

102 Council Directive 64/222/EEC of 25 February 1964 for the wholesale trade and activities of intermediaries in commerce, industry and small craft industries (OJ English Special Edition, Series I Chapter 1963-1964, 120), Council Directive 64/427/EEC of 7 July 1964 for industry and small craft industries (OJ English Special Edition, Series I Chapter 1963-1964, 148); Council Directive 68/364/EEC of 15 October 1968 for the retail trade (OJ English Special Edition, Series I Chap-ter 1968(II), 501).

103 Case 71/76 Thieffry [1977] ECR 765 and Case 11/77 Patrick [1977] ECR 1199.

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between the various systems could not be completely eliminated, likewise the limits to access to the various activities, especially those requiring in the dif-ferent Member States complex professional training together with professional titles whose legal value also served as a guarantee for users of the services ren-dered by members of the profession in question. The protection of consumers’ interests or other values – sometimes guaranteed by the Constitution under the national legal system (take, for instance, the rights of the defence or the right to health) – could well be categorised as an overriding requirement capable of producing restrictions on freedom of establishment through measures appli-cable without distinction which may be imposed according to the case-law dis-cussed above.

As a result, there was a need for the institutions to use Art. 47 in order to secure the mutual recognition of diplomas through the adoption of directives. In the 1970s, the Community institutions used the technique of adopting two separate directives for each profession: the first coordinating vocational train-ing in the several States; the second on the mutual recognition of the qualifica-tion obtained after the coordinated training. This technique was used above all for the health professions.104 Around the mid-1980s, the institutions – prob-ably also as a result of the difficulty found in completely coordinating all pro-fessional training – determined to change the policy followed up to then by giving priority to the mutual recognition of professional training, even if not harmonised, possibly with the addition of compensatory measures.105 The first practical symbol of the new approach was Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration,106 which was followed by Council Directive 92/51/

104 See, for doctors, Directives 75/362/EEC and 75/363/EEC of 16 June 1975 (OJ L 167 of 30/7/1975), subsequently replaced by codifying Directive 93/16/EEC of 5 April 1993 (OJ L 165 of 7 /7/1993), as amended, for nurses Directives 77/452/EEC and 77/453/EEC of 27 June 1977 (OJ L 176 of 15/6/1977), for midwives Directives 80/154/EEC and 80/155/EEC of 20/1/1980 (OJ L 33 of 11/1/1980); for pharmacists Directives 85/432/EEC and 85/433/EEC of 16 September 1985 (OJ L 253 of 24/9/1985), for veterinary surgeons Directives 78/1026/EEC and 78/1027/EEC of 18 December 1978 (OJ L 362 of 23/12/1978).

105 A first indication of the new policy was Directive 85/384/EEC of 10 June 1985 (OJ L 223 of 21/8/1985), which provided for the mutual recognition of architects’ qualifications, provided simply that a number of requirements relating to the level and duration of studies were complied with. With regard to the interpretation of the directive, see Case C-31/00 Dreessen [2002] ECR I-3555 and Case C-417/02 Commission v Greece [2004] ECR I-7973.

106 OJ L 19, 24/1/1989, 16, implemented in the United Kingdom by the European Communities (Recognition of Professional Qualifications) Regulations 1991 S.I. No 824. Directive 89/48/EEC applies to diplomas awarded by universities or other

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EEC of 18 June 1992 on a second general system for the recognition of profes-sional education and training, which allows for vocational training of less than three years’ duration.107 The new system is characterised by the abandonment of the sectoral approach, since it applies to all regulated professions access to which is dependent upon possession of a professional diploma awarded after a course of training of such duration as is provided for in the aforementioned directives.108 Secondly, the directives are no longer concerned to coordinate vocational training, since they merely put each Member State under an obliga-tion to recognise that all citizens with a qualification entitling them to prac-tise a given profession in another Member State have the right to take up and practise that profession.109 The absence of coordination justifies making the application of the principle of mutual recognition subject to exceptions and

authorised institutions. The question arose as to whether a Member State could refuse to recognise a diploma awarded by a university in another Member State after a course of study in an institution located in the Member State in which rec-ognition was sought. On the assumption that the organisation of training courses was an economic activity, the Court of Justice held that “an administrative practice such as the one at issue in the main proceedings, under which certain degrees awarded at the end of a university training course given by ESE are not recognised in Italy, is likely to deter students from attending these courses and thus seriously hinder the pursuit by ESE of its economic activity in that Member State” (Case C-153/02 Neri [2003] ECR I-13555, para. 43).

107 OJ L 209, 24/7/1992, 25, as amended, implemented in the United Kingdom by the European Communities (Recognition of Professional Qualifications) (Second General System) (Amendment) Regulations 2001 SI No 200.

108 The directives apply only if the profession in question is regulated in the host State. This is because from the point of view of the host State the professional diploma constitutes a condition for access to that profession. To require possession of only a qualification obtained in that State would constitute, in accordance with the prin-ciple of national treatment, covert discrimination, given that it is more difficult for Union citizens than nationals of the host State to fulfil that requirement. On the contrary, if the profession is not regulated in the host State, the directives do not apply. In such case, the principle of non-discrimination on grounds of nationality will be sufficient to ensure access to the profession: see Case C-164/94 Aranitis [1996] ECR I-135. Also in the event that access to the profession in question is not regulated, the person concerned may have an interest in the administration’s taking into account his or her diplomas awarded in other Member States or in non-member countries: Case C-234/97 Fernández de Bobadilla [1999] ECR I-4773.

109 The diploma must have been awarded, however, in another Member State. The directive does not cover the situation of a person who was awarded a diploma in a non-member country, even if the person concerned is permitted to practise the rel-evant profession in one Member State by virtue of bilateral agreements concluded between the non-member country and the Member State in question. Moreover, this aspect is the subject of a Council Recommendation (OJ L 19, 24/1/1989).

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conditions. In particular, where the training acquired in the Member State of provenance covers subjects which differ substantially from those covered by the host State’s diploma, the host State may make recognition conditional upon an adaptation period or an aptitude test. In principle, the choice between those two compensatory mechanisms must be left to the citizen concerned. There is, however, a further exception for “professions whose practice requires precise knowledge of national law and in respect of which the provision of advice and/or assistance concerning national law is an essential and constant aspect of the professional activity” (Art. 4[1][b], second para. of Directive 89/48/EEC): in such cases, the host Member State may stipulate either an adaptation period or an aptitude test. On the basis of this derogation, all the Member States require an aptitude test for access to the profession of lawyer.

All in all, the system set out in the secondary legislation seems clear: diplomas awarded following a course of training harmonised by Community law are recognised automatically;110 other professional diplomas are subject to a recognition procedure laid down by Community law111 and entrusted to the national authorities, which is based on mutual recognition. Where the profes-sional diploma does not fall within the scope of the directives either because it is awarded in accordance with a non-harmonised procedure or because it was largely studied for in a non-member country, the problem arises as to how the Member State should deal with it.

Initially, the case-law was to the effect that the question fell within the competence of the national authorities, which had to assess the qualification in the light of their domestic law, tempered by the principle of non-discrimina-tion on grounds of nationality.112 In more recent times, the Court of Justice has changed its stance. In case-law as favourable to the Union citizen as it is hard to apply, it has held that it follows directly from the Treaty that Member States are under a duty to assess the qualifications held by the person concerned and to compare them with the qualifications required in that State,113 in other words, to

110 Automatic recognition applies to the exercise of the activity in question in any manner: as an employee, as a self-employed person or as a provider of services.

111 It should be noted that the recognition procedure, which may entail a compen-satory measure, is necessary in order to practise the corresponding profession, irrespective as to whether the activity is to be exercised by way of employment, self-employment or the provision of services.

112 This approach can be seen in Case C-154/93 Tawill-Albertini [1994] ECR I-451.113 The Court of Justice essentially turned to account the judgment in Vlassopoulou

by extending its scope to cover all eventualities not covered by the directives. Accordingly, in the case of an architect’s qualification not appearing in Directive 85/384EEEC, the Court derived from Art. 43 EC an obligation for the national administration to which the person concerned had applied to have his diploma recognised to take into account all diplomas and other evidence of formal qualifi-

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compare the qualifications certified by the diplomas, certificates and other evi-dence of formal qualifications of the person concerned, and his or her relevant experience, with the knowledge and qualifications required by the national leg-islation to practise the profession concerned. If the comparison reveals that the knowledge and qualifications correspond only partially, the host Member State is entitled to require the person concerned to show that he or she has acquired the knowledge and qualifications which are lacking.114

This approach is certainly advantageous for Union citizens, since the diploma held has to be taken into account in any event by the authorities of the State where the person concerned intends to exercise the right of establishment. However, the national administrative authorities find themselves in the position of having to apply principles from case-law which are not always particularly clear or readily applicable in practice. In the final analysis, responsibility for the correct application of Community law rests with the national courts, to which the person concerned will turn in order to challenge the act refusing to grant recognition,115 but they are not appropriately “equipped” to carry out the sort of review that the Court of Justice requires of them.

The recognition of diplomas carried out under each of the procedures pro-vided for means as far as the holder is concerned that he or she is entitled to practice the profession concerned in the host State. What activities a given

cations attesting to the specialist knowledge and abilities attested to by the national diploma, while requiring, if necessary compensatory measures to be taken (Case C-31/00 Dreessen [2002] ECR I-3555). The same reasoning is followed when a qualification has to be evaluated which was obtained partly in a non-member country and was recognised as being equivalent in another Member State where training was completed. If such a diploma has to be recognised in another Member State the administration will have to take account of the knowledge attested to by the diplomas held by the person concerned (Case C-238/98 Hocsman [2000] ECR I-6623); what was involved in that case was recognition in France of a diploma of specialist in urology awarded in Spain. The Spanish authorities had considered a degree in medicine and surgery awarded in Argentina as equivalent to a Spanish degree in order to allow the person concerned to practise as an urologist. More recently, the Court of Justice even considered in circumstances similar to those of Hocsman that a specialised medical qualification had to be regarded as falling within the scope of Directive 93/16/EEC: see Case C-110/01 Tennah-Durez [2003] ECR I-6239.

114 See Case C-340/89 Vlassopoulou [1991] ECR I-2357, para. 19, and Case C-313/01 Morgenbesser [2003] ECR I-13467, para. 70.

115 The Court of Justice has made it clear that the administration’s decision as to the correspondence of professional diplomas must be susceptible of judicial review: Case 222/86 Heylens [1987] ECR 4097, para. 17, Case C-340/89 Vlassopoulou [1991] ECR I-2357, para. 22.

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profession may carry out is determined by the legislation of the host State.116 It follows that a Member State may limit to holders of a particular diploma the exercise of certain activities which in another Member State may be carried out by holders of a different diploma.117

Those difficulties among others justified a renewed commitment for the Community institutions stemming from the Lisbon European Council (23-24 March 2000) to adopt secondary legislation such as to lay down general rules for the recognition of professional qualifications. This commitment resulted in the adoption of Directive 2005/36/EC of the European Parliament and of the Council on the recognition of professional qualifications,118 which, two years after its entry into force,119 will repeal the sectoral directives on the health pro-fessions, Directive 85/384/EEC on architects and the general directives 89/48/EEC and 92/51/EEC (see Art. 62). As far as the recognition of professional qualifications for the purposes of the exercise of the right of establishment is concerned, the new directive is essentially designed to codify the existing rules by introducing a species of “single text” (see recital 9) bringing together the existing sectoral and general provisions. As a result, the rules according to which a Member State is to recognise professional qualifications obtained in the Member State of origin for the purpose of the exercise of a regulated profes-sion are to be found laid down in a single setting. As far as its general lines are concerned, the system of recognition remains unchanged. Art. 13 of the new directive provides that the host State is to allow access to a regulated profession of applicants possessing the attestation of competence or evidence of formal qualifications required by another Member State in order to gain access to that profession. Where the duration of the training in the home country is less than that required in the host country or covers substantially different subjects, the host Member State may require a compensatory measure to be taken, consisting of an adaptation period not exceeding three years or an aptitude test. Under the

116 See Case C-421/98 Commission v Spain [2000] ECR I-10375.117 The Court of Justice has held that Art. 45 EC does not preclude national legisla-

tion restricting the performance of certain examinations of a client’s eyesight to ophthalmologists (rather than opticians): Case C-108/96 Mac Quen [2001] ECR I-837. See to the same effect the judgments holding that it was lawful to restrict certain paramedical activities to doctors: Case C-61/89 Bouchoucha [1990] ECR I-3551 on osteopathy and Case C-294/00 Gräbner [2002] ECR I-6515 on Heil-praktiker.

118 Directive 2005/36/EC of the European Parliament and of the Council of 7 Septem-ber 2005 on the recognition of professional qualifications, OJ L 255, 30/9/2005, 22,

119 The Directive is due to enter into force in conformity with the general provision of Art. 254 of the Treaty on the twentieth day after its publication in the Official Journal of the European Union.

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new system, too, it is in principle up to the applicant to choose which option he or she wishes to take. However, apart from the exception consisting of profes-sions requiring a precise knowledge of national law and in respect of which the provision of advice and/or assistance concerning national law constitute essen-tial and constant aspects of the professional activity, Art. 14(2) of the directive provides that the Member State may, upon making a duly reasoned request and after obtaining prior authorisation from the Commission, impose one of these compensatory measures also in other cases. Dispensation from compensatory measures is granted in all cases in which the Council has adopted measures setting up “common platforms”, which consist of a set of criteria which, within each profession, are considered suitable for compensating for substantive dif-ferences between training programmes in the various Member States. Common platforms are to be proposed by the Commission at the request of the Member States or by professional organisations which are representative at the national and European level.

III.17 Right of establishment for lawyersThe profession of lawyer is among the ones which were slow to obtain full rules on the right of establishment and suffered the consequent inconveniences resulting from measures applicable without distinction with regard to qualifica-tions.120

Also because the substance of the legal professions seemed to be too strongly rooted in the divergent experiences of the law itself to be subject to any – even minimum – form of harmonisation or mutual recognition, the right of establishment as far as lawyers are concerned has not until recently been the subject of specific legislative action to facilitate its exercise. The position is different – also because of its smaller social impact – for the supply of law-yers’ services, where they have been for some time the subject of a Commu-nity directive, on which there exists a settled body of case-law of the Court of Justice.121

120 See, for instance, H. Adamson, Free Movement of Lawyers (Butterworths, London, 1992); M. Jarvis, Freedom of Establishment and Freedom to provide services. Lawyers on the move?, E. L. Rev. (1996) 247; M.P. Belloni, La libera circolazione degli avvocati nella Comunità europea (Cedam, Padova, 1999) 11 ff.; G. Viciconte, L’avvocato e l’Europa (Giuffrè, Milano, 1999) 131 ff.; J. Pertek, Les avocats en Europe (L.G.D.J, Paris, 2000) 11 ff.; B. Nascimbene, C. Sanna, Norme comunitarie e norme nazionali sull’esercizio della professione forense in Italia, Rivista di diritto internazionale privato e processuale (2002) 349; F. Fer-raro, L’avvocato comunitario (Editoriale scientifica, Napoli, 2005) 59 ff.

121 Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exer-cise by lawyers of freedom to provide services, OJ L 78, 26/3/1977, 17. Imple-mented in the United Kingdom by the Supreme Court (Amendment) Ordinance 1997 No. 32. For a fuller discussion, see Ch. IV, part 15.

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Admittedly, however, the Court has had occasion to intervene specifically with regard to lawyers on numerous occasions when it has specified the limits to the permissibility of national measures which – albeit not discriminating on grounds of nationality122 – in fact prevented or discouraged the exercise of the right of establishment. In its first judgment, the Court declared incompatible with Community law national rules which required foreign nationals to have the national diploma required in order to practise as a lawyer even where the diploma awarded abroad had been declared equivalent on the basis of the leg-islation of the country of establishment.123 As has already been remarked, the subsequent judgment in Vlassopoulou requires the Member State in which the lawyer intends to exercise the right of establishment to take into consideration the diplomas, certificates and other evidence of qualifications which the person concerned has acquired in order to exercise the same profession in another Member State by making a comparison between the specialised knowledge and abilities certified by those diplomas and the knowledge and qualifications required by the national rules, even in the absence of a prior declaration of equivalence. It is only where the comparison reveals that there is only a partial correspondence, that the host Member State is entitled to require the person concerned to show that he or she has acquired the knowledge and qualifications which are lacking.

The judgment in Gebhard refers to the same principle, although it restricts the obligation to make a comparison to the lawyer’s activities whose exercise is conditional in the host country upon satisfying specific rules laying down requirements for access to the profession. Other activities, or those not subject to any rules in the host State (merely legal consultancy, for example) may be exercised by way of the right of establishment without the person concerned having to show that he or she fulfils any particular requirement.

Vlassopopoulou and Gebhard, being subsequent to Directive 89/48/EEC, referred to specific cases not covered by that directive. Above and beyond that directive where the specific case is not concerned with a “regulated profes-sion” which is the basis for the rules of the directive, there is the obligation to assess the – still merely – academic qualification held by the person concerned for the purposes of admitting him or her to a training activity which has to be undergone in order to practise as a lawyer, completion of which is a require-ment in order to be able to practise the profession. The qualification acquired abroad must be taken into account by the authorities of the Member State of establishment in order to check whether the knowledge of the person seeking to be allowed to exercise an economic activity such as that of a trainee lawyer

122 The prohibition of formally discriminatory measures was declared through the conferral of direct effect on Art. 43 in a judgment yet again relating to lawyers: Case 2/74 Reyners [1974] ECR 631.

123 Case 71/76 Thieffry [1977] ECR 765, para. 19.

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is equivalent. To ignore this by requiring possession of the national qualifica-tion or a foreign qualification which has been declared equivalent constitutes a breach of Community law.124

As will be recalled, Directive 89/48/EEC introduced a general system for the recognition of diplomas attesting to professional training of three or more years and allowed the Member States to require a compensatory measure of an aptitude test for the legal professions.125 The mechanism provided for in Direc-tive 89/48/EEC did not, however, replace the comparative evaluation prescribed by the case-law, since these were two separate methods for implementing the requirements of the directive as far as access to the profession was concerned. In any event, the possibility of subjecting the person concerned to aptitude tests constituted in fact a severe limitation on the exercise of the right of establish-ment, especially where the tests were designed with a severity which did not always reflect the rationale of the Directive, which was certainly not that of subjecting the foreign professional to an academic course ex novo.

It was only with Directive 98/5/EC of 16 February 1998126 that the Com-munity legislature introduced the principle of mutual recognition of the profes-sional qualifications to practise as a lawyer by enabling lawyers to establish their activities in another Member State on the basis of their home-country title.127 The directive provides that a lawyer entitled to practise in one Member

124 Case C-313/01 Morgenbesser [2003] ECR I-13467, paras 56 to 58.125 The Court of Justice found against Italy for incompletely implementing Directive

89/48/EEC. It failed to define by legislation or regulation the content of the apti-tude test imposed on lawyers from other Member States: Case C-145/99 Commis-sion v Italy [2002] ECR I-2235.

126 Directive 98/5/EC of the European Parliament and of the Council of 16 Febru-ary 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained, OJ L 77, 14/3/1998, 36. See J. Lonbay, Lawyers Bounding over the Borders: the Draft Directive on Lawyers’ Establishment, E. L. Rev. (1996) 54. The Member States had to implement Directive 98/5/CE by 14 March 2000. By Law No 526 of 21 December 1999 the Italian legislature delegated the power to the Government to adopt legislature decrees to implement the directive in Italy (Legislative Decree No 96 of 2 February 2001, Gazzetta Ufficiale della Repubblica italiana, No 79 of 4 April 2001. ord. supp). It was implemented in the United Kingdom by the European Communities (Lawyer’s Practice) Regulations 2000, Statutory Instru-ment 2000 No 1119 (England and Wales and Northern Ireland) and the European Communities (Lawyer’s Practice) Regulations 2000, Statutory Instrument 2000 No 121 (Scotland). In Case C-351/01 Commission v France [2002] ECR I-8101, the Court of Justice found against France for failing to adopt the laws, regulations and administrative provisions necessary to comply with the directive.

127 See J. Pertek, L’Europe des professions d’avocat après la directive 98/5 sur l’exercice permanent dans un autre Etat membre, Rev. marché commun et de l’Un.

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State has the right to practise the activities specified therein on a permanent basis using his home-country professional title. The permitted activities are characteristic of a lawyer: giving advice on the law of his or her home Member State, Community law, international law and the law of the host Member State; representing or defending a client in legal proceedings, where the host State may require the lawyer “to work in conjunction” with a lawyer practising before the national judicial authority. The only excluded activities are those reserved in the home Member State for professions other than that of lawyer, even if they form part of lawyers’ activities in the Member State of establishment. Where a lawyer can prove that he or she has “effectively and regularly” pursued for a period of at least three years under his or her home-country professional title an activity in the host Member State in the law of that State including Com-munity law, he or she is to be given “like treatment” as compared with lawyers of the host Member State and exempted from having to taking the aptitude test referred to in Directive 89/48/EC, thereby acquiring the right to practise using the professional title of the host Member State. A lawyer practising under his home-country professional title who has effectively and regularly pursued a professional activity in the host Member State for a period of at least three years but for a lesser period in the law of that Member State may obtain like treatment by way of derogation from the provisions of Directive 89/48/EC by proving his professional experience of the law of the host Member State or by means of an interview designed to verify the regular and effective nature of the activity pursued, albeit without any reference in this case to practising the law of the host State.

An action for annulment was brought against Directive 98/5/EC by Lux-embourg,128 which included amongst the grounds for annulment infringement of Art. 42(2) EC, in as much as the measure allegedly introduced a difference in treatment between nationals and migrants and prejudiced the public interest in consumer protection and the proper administration of justice. In refuting the latter argument, the Court of Justice emphasised that, in order to foster freedom of establishment for lawyers, the Community legislature had opted to create a mechanism for the assimilation of knowledge through practice while abandon-ing that of verification of prior training. As far as the argument that the directive would end up by effecting a contrario discrimination against national law-yers was concerned, the Court maintained that the Community legislature had not infringed the principle of equality, “since the situation of a migrant lawyer practising under his home-country title and the situation of a lawyer practising

eur. (2001) 117.128 Case C-168/98 Luxembourg v European Parliament and Council [2000] ECR I-

9131 and see F. Spitaleri, Accesso alla professione forense e discriminazioni “alla rovescia” nella sentenza Lussemburgo c. Parlamento europeo e Consiglio, Diritto dell’Unione europea (2001) 179.

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under the professional title of the host Member State are not comparable”.129 At the same time, it made no pronouncement on reverse discrimination, merely stating that “the prohibition of discrimination laid down in Art. 52 of the Treaty is only the specific expression of the general principle of equality which, as one of the fundamental principles of Community law, must be respected”.130

Directive 98/5/EC differs significantly from the traditional approach fol-lowed in measures on the free movement of professionals. As mentioned in the preceding paragraph, free movement of professionals used to be linked to the harmonisation of training or subordinated to recognition of the relevant profes-sional diploma, which was essential in order for the person concerned (albeit a qualified professional authorised to practise in his or her country of origin or provenance) to practise in the host country. Relatively favourable treatment is given to lawyers in that it is sufficient that they are authorised to practise in their country of origin or provenance and transfer their residence from one State to the other. Recognition of the professional diploma is still possible, but is not obligatory, since the lawyer concerned may still practise on the basis of the home-country title.

The system provided for lawyers has not been extended to any other pro-fessions. Its specific features may be justified, as emerges from the preamble to the directive, by the instrumental character of lawyers’ activities with regard to the exercise of the rights ensured by Community law and ensuring observance of those rights by the Member States and traders.

III.18 Right of establishment in the Treaty establishing a Constitution for Europe

As already mentioned with regard to free movement of workers,131 the Treaty establishing a Constitution for Europe deals with “Freedom of establishment” in subsection 2 of Section 2 (“Free movement of persons and services”) of Chapter I (“Internal market”) of Title III (“Internal policies and action”) of Part III (“The policies and functioning of the Union”). Arts III-137 to III-143 reproduce Arts 43 to 48 EC, with some minor formal alterations. References in the provisions at present in force to the directives to which the institutions may have recourse in order to facilitate the right of establishment are replaced by references to framework laws. Where the present text does not define the

129 Luxembourg v European Parliament and Council, cited in the preceding note, para. 24.

130 Ibid., para. 23.131 See Ch. II, part 14. For further references, including bibliographical ones, on the

Treaty establishing a Constitution for Europe, see also Ch. I, part 23.

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type of act which may be adopted, the Constitutional Treaty makes reference to European laws or framework laws.132

Since establishment may plainly also be achieved through the acquisi-tion of company shareholdings in the host State, reasons of systematic coher-ence prompted the authors of the Constitutional Treaty to incorporate in the subsection dealing with freedom of establishment a provision corresponding to the present Art. 294 EC (Art. III-143). Although the wording of the provi-sion remains unchanged, its positioning within the system of the Constitutional Treaty bolsters the interpretation that the reservation of national competence with regard to the rules on financial holdings in companies’ capital is strictly subordinated to respect for freedom of establishment.

132 As in Art. III-139 of the Constitutional Treaty, which otherwise reproduces Art. 45 CE.

Chapter IV Services

IV.1 Introduction. Freedom to provide services in the context of the general rules on the free movement of persons

Among the freedoms defining the content of the internal market (Art. 3[c] and Art. 14 EC) – the instrument for unifying the Community when it was still “economic”1 and a measure of its greater breadth as compared with classic customs unions2 – free movement of persons involves the various manifesta-tions of human economic activity, which may be reduced, initially, to employed work and self-employed work.

As already pointed out with regard to established persons, since Commu-nity law has no interest in the purely internal situations of the Member States, self-employed traders become important for the Community legal order in so far as their activities are characterised by a transborder element3. That element consists in starting a continuous stable activity in a Member State other than the trader’s Member State of origin or in the performance in such a State of an economic activity which is not characterised by its stability but, on the con-trary, by its occasional and episodic nature and, even more significantly, by the absence of any permanent presence on the part of the trader in the territory of the Member State to which his or her activities are directed. These two distinct

1 The expression “European Economic Community” has been replaced throughout the Treaty by the expression “European Community” as a result of Art. G(A)(1) of the Treaty on European Union and signifies, also terminologically, that the original “functionalist” approach of the Treaty has been superseded.

2 The intention to raise the Community from the rank of a mere customs union to a common market is evidenced in particular by A. Tizzano, La libera circolazione dei servizi nella CEE. Profili generali, in A. Tizzano (ed.), Professioni e servizi nella CEE (Cedam, Padova, 1985) 2. For a general discussion, see S. O’Leary, The Free Movement of Persons and Services, in P. Craig and G. De Bùrca (eds), The Evolution of EU Law (Oxford University Press, Oxford, 1999) 377 ff.

3 See the observations in Ch. II, part 4, and Ch. III, part 4.

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practical means of performing a professional activity in a Member State other than the trader’s home State, which will probably (but not necessarily) be the State of which he or she is a national, necessitate different rules so as to guaran-tee the real integration of the foreign trader in to the territory in which he or she chooses to operate, while respecting the fundamental rule of equal treatment by comparison with local traders.

In this context, Title III of Part three of the Treaty, which deals with free movement of persons, services and capital, alongside the first chapter set-ting out the rules on employed persons,4 introduces two sets of rules for self-employed persons depending on the type of connection which citizens from a Member State establish with the territory of the other Member State in which they exercise their activity. Whilst the rules on the right of establishment (Arts 43-48 EC) govern the right of nationals of a Member State5 to pursue their self-employed activities continuously and permanently by establishing themselves in another Member State, the rules on the provision of services (Arts 49-55 EC) relate to the right of Community nationals to pursue their activities in a Member State other than their State of provenance on a temporary, occasional and non-stable basis. However, as will be seen, the activity may be sometimes exercised repetitively (entailing a more intense presence) in a given Member State6 and the trader’s activities may be aimed at the market of a Member State other than the one in which he or she is established.

The EC Treaty treats the three main types of free movement within the area of the Community (workers, establishment and services) significantly dif-ferently, also from the formal point of view. The substance of the concept of the internal market mentioned in Art. 14 and Art. 3(c) of the EC Treaty is defined by reference to free movement of goods, persons, services and capital almost if as services, which are listed – in the same way as goods and capital – separately from persons, were the subject-matter of a distinct freedom of movement relat-ing to the services (that is to say, the provision of services) as such, uncoupled

4 See Ch. II.5 See Ch. III.6 The following definition is still valid albeit requiring qualification in the light of

the subsequent case-law of the Court of Justice. Establishment it is a concept that is, in a manner of speaking, static, whilst the provision of services is a eminently dynamic concept: in the one case, the transborder element is present only at the time of establishment; in the other, that element is permanent, since there is free-dom to provide services only if the activity is carried out across the borders: see A. Tizzano, supra (note 2) 13 ff. See also B. Nascimbene, Il trattamento dello stra-niero nel diritto internazionale ed europeo (Giuffrè, Milano, 1984) 385; M. Con-dinanzi and B. Nascimbene, La libera prestazione dei servizi e delle professioni in generale, in A. Tizzano (ed.), Il diritto privato dell’Unione europea (Giappichelli, Torino, 2nd ed., 2006) 330 ff.

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from the person providing it and the person receiving it. Title III of Part three of the Treaty is made up, as we have already seen, of three chapters, of which the first (“Workers”) and the second (“Right of establishment”) take their titles from the beneficiaries of free movement or the specific freedom as such, whereas the third (“Services”) takes its heading from the substance of the economic traffic which it is sought to liberalise. On close inspection, this is not an accidental distinction, since freedom to provide services covers not only movements of the provider or recipient of the service, whether separately or jointly, but also movements of the service as such. As a result, free movement of services in the area of the Community takes place even without movement on the part of the provider or the recipient of the services where the transborder element is to be found not in movement on the part of the trader (provider or recipient) but of the activity or the outcome of the activity itself. From this point of view, free movement of services tends to deviate from a “subjective” connotation of freedom of the person and to take on “objective” features making it similar to free movement of goods.

In the early days of the Community, it seemed a relatively clear-cut matter – also conceptually – to draw a distinction between the category of those benefiting from free movement of services and those not so benefiting and to identify, within that category, established persons as opposed to suppliers of services.

Over time, the intensification of the integration process brought about a measure of fragmentation of the categories of beneficiary, both externally – that is to say, in relation to persons not qualifying as beneficiaries – and within those categories, that it to say in relations between given categories of beneficiary. In particular, on the one hand, the progressive weakening of the “economic” con-ception of the Community has resulted in a widening of the circle of persons to whom the provisions on free movement apply, under different regimes;7 on the

7 The extension of freedom of movement to classes of persons whose connection with the exercise of an economic activity has increasingly diminished took place first in case-law and subsequently in legislation. Suffice it to mention the judg-ments in which the Court of Justice held that everyone who could show a valid identity card or passport at the border has the right to enter and remain whether or not they were economically active, since Member States are not permitted to check at the border whether a Community national falls within the field of applica-tion of the relevant directive and is hence an employed person or a self-employed person who intends to set up an establishment in the country of destination or to provide services: see Case 321/87 Commission v Belgium [1989] ECR 997, paras 11-15, and Case C-68/89 Commission v Netherlands [1991] ECR I-2637, paras 11-13. On the same lines, there is the case-law including tourists within the field of application of the Treaty as recipients of services: see Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377; Case 186/87 Cowan [1989] ECR 195; Case C-348/96 Calfa [1999] ECR I-11. The extension of the class of beneficiaries

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other, the forms taken by the connection having to exist with the Member State of destination in order to be able to exercise the right of establishment and the freedom to provide services have become more diverse along with the degree of intensity of that link.

From the first point of view, the classes of person entitled to exercise free movement have broadened the most as a result of that right’s having come to characterise a status, namely that of Union citizen, since Union citizens enjoy in the first place “the right to move and reside freely within the territory of the Member States” (Art. 18 EC).8 From the second point of view, the concept of establishment has extended so as to take in cases of secondary establishment in which the link of the person established with his or her home State is not eliminated;9 at the same time, the concept of the provision of services has been held to be compatible with the creation in the State where the services are pro-vided of structures or offices for the better exercise of the activity which are hard to square with the concept of occasional provision,10 with the result that the distinction between secondary establishment and provision of services with infrastructure is not always immediately obvious in the variety of cases which may arise in practice.

In other words, the internal and external limits to the fundamental prin-ciple of free movement of persons are less clear cut, with forms of free move-ment becoming conceivable that cannot always be clearly to ascribed to any particular type of free movement and are more often indications of a new and

by legislation is exemplified by Directive 90/364/EEC of 28 June 1990 on the right of residence (OJ L 180, 13/7/1990, 26), Council Directive 90/365/EEC of 28 June 1990 on the right of residence for employees and self-employed persons who have ceased their occupational activity (OJ L 180, 13/7/1990, 28) and Council Directive 93/96/EEC of 29 October 1991 on the right of residence for students (OJ L 317, 18/12/1993, 59). For the broadening of the circle of beneficiaries of the provisions on free movement, see L.S. Rossi, I beneficiari della libera circolazione delle persone nella giurisprudenza comunitaria, Foro it. (1994) IV, 97 and I cittadini, in A. Tizzano (ed.), supra (note 6) 97 ff. See the discussion in Ch. I, part 7.

8 For the significance of citizenship of the Union and the rights attaching to it, including, in the first place, the right to move and reside, see Ch. I, part 8, also for bibliographical references.

9 For the concept of “secondary establishment” and the importance which it has assumed in regard to the free movement of legal persons, see Ch. III, part 6.

10 See, principally, Case C-55/94 Gebhard [1995] ECR I-4165 and, subsequently, Case C-145/99 Commission v Italy [2002] ECR I-2235. For the difficulty in dis-tinguishing between fact situations constituting the provision of services and those constituting secondary establishment, see J. Lau Hansen, Full Circle: is there a difference between the freedom of establishment and the freedom to provide ser-vices?, in M. Andenas and W.-H. Roth (eds), Services and Free Movement in EU Law (Oxford University Press, Oxford, 2002) 197 ff.

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more unitary mode of apprehending the Community freedoms in a single legal area. It therefore does not seem out of place to postulate the creation of a future area of generalised free movement in which the requirements now justifying restrictive measures – above and beyond the traditional cases of public policy, public health and public security – might be appropriately catered for by mea-sures coordinating or harmonising national systems and consequential greater recourse to the solution of mutual recognition.

IV.2 Scopeoftherulesonservices.Thedefinitionof“service”The concept of provision of services is not necessarily coterminous with the meaning of services in economic or commercial usage,11 since it requires cer-tain specific ingredients to be present. First, according to Art. 50 EC, “services” should normally be provided for remuneration, a term typically used in con-nection with employment, which, in the case of services, should be understood, more properly, as referring to “payment”. In particular, the provision of the service must be an economic activity in the sense that it must be such as to yield remuneration for the person performing it, although it is irrelevant whether the payment comes from the recipient of the service or from some other person.12 The fact that an activity is a sport does not prevent it from being categorised as a service where there is no stable employee-employer relationship; where such a relationship takes place the rules on free movement of workers come into play. Where the sporting activity takes on the nature of the performance of a service for payment, it will satisfy the requirements of Art. 50 EC and fall within the field of application of the chapter on services.13 The Court of Justice

11 J.C. Séché, La libre circulation des services, in Commentaire Mégret (Bruxelles, Éditions de l’université de Bruxelles, 2nd ed., 1990) Vol. 3, 58.

12 See Case 352/85 Bond van Adverteerders [1988] ECR 2085 and, in the sense of excluding the “service” nature of educational courses provided within a State school system, see Case 263/86 Humbel [1988] ECR 5365. Obviously, the same considerations do not apply where it is sought to make a profit out the fees paid by students: Case C-109/92 Wirth [1993] ECR I-6447. See also Case C-159/90 Grogan [1991] ECR I-4685, where voluntary termination of pregnancy performed legally in a Member State in return for the fees paid to the medical staff was held to constitute a service. The Court used the aspect of payment in order to categorise the organisation of a lottery as a service in Case C-275/92 Schindler [1994] ECR I-1039, para. 28.

13 Case 36/74 Walrave [1974] ECR 1405, paras 4-6. Rules on the composition of sport teams the formation of which is a question of purely sporting interest so that the economic significance of the service is irrelevant or secondary with respect to other aims do not fall within the provisions on services: this is the case with national sports teams. See Walrave, paras 7-10. The Court has made it clear, how-ever, that although the presence of those characteristics warrant such rules being excluded from the field of application of the Treaty, the exclusion must remain

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has applied this interpretation in connection with “professional or semi-profes-sional” sportsmen,14 relying above on the concept of remuneration (more prop-erly “payment”). If the sporting activity is remunerated, it will constitute an economic activity in so far as it comes within the scope of the rules on freedom to provide services and, in contrast, the fact that national legislation unilaterally categorises the sporting activity in question as “amateur” does not make any difference.15 Furthermore, given that the concept of economic activity serves to delimit the field of application of one of the fundamental freedoms guaranteed by the Treaty, it cannot, by virtue of a general rule,16 be subject to restrictive interpretations. Consequently, it is possible to find economic relevance also in situations in which the services provided are paid for indirectly by means of payments which are only indirectly linked with the services performed: this will be the case where a sports event is organised for the benefit of the athletes but is paid for by advertising revenue which the athlete brings in by virtue of his or her performance as an athlete.17

It should also be pointed out that, for the purposes of categorising an activ-ity as economic, no importance attaches to the fact that the service provided is immoral under national legislation, although this may be relevant for excluding the activity from liberalisation on grounds of the public policy or public secu-rity exception which is provided for also in the field of services by virtue of the reference made in Art. 55 EC.18

The provision of services must be of a transborder or inter-State nature, in the sense that the relationship between the person who supplies the service,

limited to its proper objective, since it may not result in the whole of a sporting activity being excluded (Case 13/76 Donà [1976] ECR 1333, paras 13 and 15).

14 Walrave, cited in the preceding note, and Case C-415/93 Bosman [1995] ECR I-4921, para. 73.

15 See Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR I-2549, para. 46.16 See, with regard to free movement of employed persons, Case 53/81 Levin [1982]

ECR 1035, para. 13.17 See Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR I-2549, paras 56 and

57.18 “Immoral” activities held to be economic for the purposes of freedom to provide

services include voluntary termination of pregnancy (C-159/90 Grogan [1991] ECR I-4685, para. 20) and running lotteries (Case C-275/92 Schindler [1994] ECR I-1039, para. 32). Enabling the commercial exploitation of a game allow-ing participants to “play at killing people” by means of a franchising contract concluded with a franchisor from another Member State was held to constitute a service within the meaning of the Treaty. It was, however, held to be contrary to public policy in the Member State of the franchisee (see Case C-36/02 Omega [2004] ECR I-9609). Prostitution has been held to be an economic activity as far as the right of establishment is concerned, but only implicitly as regards services, in Case C-268/99 Jany [2001] ECR I-8615, para. 56.

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its performance and the recipient of the service may not be acted out exclu-sively on the territory of a single Member State. If it is, the question becomes irrelevant to Community law, as has already been noted, since it takes on the aspects of a purely internal situation regulated in its entirety by the national legislature,19 except, of course, for any constraints arising for the latter out of any Community harmonisation of the type of activity or profession20 or for the potential relevance of the constitutional principle of equal treatment for the purposes of guaranteeing equal treatment of the purely internal situation as compared with the treatment afforded by Community law to (comparable) fact situations of transnational relevance. This having been said in principle, it must be emphasised, however, that the more favourable situation of suppli-ers of services under Community rules is not comparable with that of national traders, since for them the comparator is a trader who has exercised the right of establishment under Community law. As a result, the lesser restrictions to which a transborder service-provider may be subject cannot be used as a refer-ence parameter for comparing the situation of a national trader.21

IV.3 Means of providing servicesIn so far as Art. 49 EC refers to the service-provider as a person established in a State of the Community other than that of the person for whom the services are intended and Art. 50 EC refers to the presence of the service-provider in State where the service is provided, those articles seem to have regard to the

19 For the irrelevance of Community law to “purely internal” situations, see as regards services Case C-41/90 Höfner and Elser [1991] ECR I-1979, para. 37; Case C-134/95 USSL No. 47 di Biella [1997] ECR I-195, paras 19-23; Case C-108/98 RI.SAN [1999] ECR I-5219, paras 21-23; Case C-97/98 Jägerskiöld [1999] ECR I-7319, para. 42; Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR I-2549, para. 58. With regard to free movement of workers and the right of estab-lishment, see Ch II, part 4, and Ch. III, part 4, respectively.

20 See to this effect R. Mastroianni, Ravvicinamento delle legislazioni nel diritto comunitario, in Digesto delle discipline pubblicistiche (UTET, Torino, Vol. XII, 1997) 457.

21 See to this effect judgment No 61 of the Italian Constitutional Court of 28 Febru-ary 1996 in Foro it. (1996) I, 1511, which refused to compare the situation of an Italian lawyer from that of a foreign lawyer exercising freedom to provide services on the ground that the former’s situation had rather to be compared with that of the “different situation of the lawyer from another Member State practising on a stable basis pursuant to the so-called right of establishment”. As regards that judgment, see M. Condinanzi, L’avvocato comunitario tra … Corte di giustizia e Corte costituzionale, Corriere giuridico (1996) 1222; L. Daniele, L’ordinamento forense italiano tra Corte di giustizia comunitaria e Corte costituzionale, Diritto dell’Unione europea (1997) 183.

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simplest, traditional case of provision of services: the situation in which the service-provider moves temporarily to the State of the recipient of the service.

However, other means of providing services are conceivable. The first is where the recipient of the service provides the transborder ingredient by moving to the State in which the service-provider is established.22 From this angle, the claim of the recipient of services to be able to move to the country where the provider is established becomes a genuine right, which is protected by Community law no differently than the provider’s right to move in order to pursue his or her activity.23 The second means is where neither the provider nor the recipient moves from the countries in which they are established, but rather the service itself which is rendered in one Member State for a recipient estab-lished in another24 (take the case of, say, legal advice requested by a citizen residing in one Member State to a lawyer practising on a stable basis in another Member State or the case of the activity of the organisation and management of betting in which customers established in countries other than the Member State in which the bookmaker is established may participate over the Internet25). Broadcasting services have also given significant impetus to the case-law on the latter form of provision of services. This is because freedom to provide services has also been held to cover the activity of a television broadcaster

22 This is what is now the locus classicus of Luisi e Carbone (Joined Cases 286/82 and 26/83 Luisi e Carbone [1984] ECR 377), in which it was held that a person who moves from one Member State to another for medical care is a recipient of services. The sheer breadth of the notion is evidenced by Case 186/87 Cowan [1989] ECR 195 and Case C-348/96 Calfa [1999] ECR I-11, in which mere tour-ists were deemed to be recipients of services. More recently, the Court of Justice confirmed that both the supplier and the recipient of services are beneficiaries of the freedom to provide services in Case C-429/02 Bacardi [2004] ECR I-6613, para. 31; Case C-262/02 Commission v France [2004] ECR I-6569, para. 22, and Case C-134/03 Viacom Outdoor [2005] ECR I-1167, para. 35.

23 See Case C-43/93 Vander Elst [1994] ECR I-3803, para. 13.24 See on this point A. Tizzano, supra (note 2) 14 ff. and M.J. Domestici-Met, Droit

d’établissement et libre prestation des services, Juris Classeur, Europe (1991) no. 710, 11. The case-law, too, takes the view that these three forms fall within the scope of the rules on services: see Case C-384/93 Alpine Investments B.V. [1995] ECR I-1141, in which an entity making offers by telephone to addressees in other Member States without moving from its Member State of establishment was held to be a provider of services. According to R. Mastroianni, La libera prestazione dei servizi, in G. Strozzi (ed.), Diritto dell’Unione europea, parte speciale (Giap-pichelli, Torino, 2nd ed., 2005) 238, this is the form of provision of services “prin-cipally” contemplated by the first para. of Art. 49 EC, where it covers the situation where the recipient and the supplier are established in different Member States.

25 See Case C-243/01 Gambelli [2003] ECR I-13031. For the follow-up to this case in Italian case-law, see Corte di Cassazione, Sezioni Unite, 18 May 2004, Diritto penale e processo (2004) 810, with a case note by A. Montagna.

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established in one Member State which directs its programmes by satellite to several Member States of the Community26 and this is not (adversely) affected by the fact that the broadcaster’s transmissions are directed exclusively to an audience in Member States other than that in which the broadcast is made, the undertaking concerned offering no services in the Member State in which it is established.27

The concept of provision of services was also broadened in so far as it has been accepted that the persons concerned do not necessarily have to be pre-determined as regards the recipient of the service28 or as regards the provider since they can be any persons established in a Member State who are potential providers of services to a tourist from another Member State.29

A further form of provision of services which the case-law has brought to light is where the recipient is established in the same Member State as the provider, who provides the service in another Member State. In such case, the cross-border ingredient lies in the fact that both parties cross the border as a result of the fact that the place of performance is in a different Member State.30 In substance, what counts in order to consider that the facts are not ascribable to a purely internal situation – which would fall outside the ambit of Community law – is that one ingredient may be described as transnational, be it only the place of performance.

In defining the service-provider’s fundamental right, Art. 50 states that that person may temporarily pursue his or her activity in the State where the service is provided. The requirement for the activity to be temporary and hence for the provider not to be definitively established in the Member State to which he or she has gone it order to pursue it is the characteristic feature of the provision of services as opposed to establishment, at least, as has been correctly pointed

26 See Case C-288/89 Gouda [1991] ECR I-4007, paras 17-18; Case C-23/93 TV10 [1994] ECR I-4795, para. 16. Likewise, in Case C-429/02 Bacardi [2004] ECR I-6613, the broadcasting of “bi-national” television programmes was regarded to be a service and to fall as such under the rules of Art. 49 EC.

27 See Case C-56/96 VT4 [1997] ECR I-3143, para. 22; the activity of the British broadcaster VT4 was directly exclusively at the Flemish community in Belgium.

28 See Case C-384/93 Alpine Investments B.V. [1995] ECR I-1141, para. 19.29 See Case 186/87 Cowan [1989] ECR 195.30 That was the case with tourist guides from one Member State accompanying tour-

ists from their own country who travelled to another Member State and provided their service there: Case C-180/89 Commission v Italy [1991] ECR I-709, para. 16. See to the same effect Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR I-2549, where the cross-border element was the mere fact that the athlete participated in a competition in a Member State other than the one in which he was established and the organisation for which he provided his services was based: see para. 58.

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out, where it is the provider who moves to provide the service in the county of destination.31 It is only in such a situation, in which the service-provider locates himself or herself in the host country in which the recipient is established, that the Treaty imposes the rule of national treatment. In any event, as will be seen, the provision has been construed by the Court of Justice in a different and more liberal way, which takes the provider outside the application of rules which are incompatible with the temporary nature of his or her presence in the Member State of the person for whom the service is intended.

Despite the apparent lack of ambiguity of the description, the temporary nature of the performance is not entirely free of doubts as to its interpretation, since in practice there are borderline cases between establishment and provi-sion of services. Temporary signifies in the first place that there is no perma-nent or stable establishment and hence that the presence of the provider in the Member State in which he or she provides the service is occasional. The Court of Justice, influenced by the specific facts of particular cases, has not defined this aspect invariably in the same way, stressing sometimes the temporary nature of the activity exercised, which must therefore be categorised essen-tially on the basis of its limited duration,32 and at others the typically or solely occasional nature of the activity.33 In the latter case, rather than the limited duration in time of the provision of the service, the Court of Justice seems to require the service provision to have been episodic, with the result that the case of a service-provider who pursues his or her activity in another Member State to some extent systematically or, at all events, by being very repeatedly – albeit still not continuously – present seems to be excluded. It was only in Gebhard34 that the Court, after stressing that the essential characteristic of the provision of services as compared with the right of establishment consists in its temporary nature, added that that characteristic had to be assessed having regard not only to the duration of the provision of the service35 considered individually, but also

31 The observation was made by R. Mastroianni, supra (note 24) 238, who notes that the Treaty (more specifically, the third para. of Art. 50) requires pursuit of the activity to be temporary only where the service is “realised by one of the pos-sible means, specifically where the provider pursues the activity in question in the territory of the Member State in which the recipient is established”. See also M. Lugato, Articolo 50, in A. Tizzano (ed.), Trattati dell’Unione europea e della Comunità europea (Giuffrè, Milano, 2004) 409.

32 See Case 279/80 Webb [1981] ECR 3305; Joined Cases 62 and 63/81 Seco v Evi [1982] ECR 223; Case C-180/89 Commission v Italy [1991] ECR I-709.

33 See Case 252/83 Commission v Denmark [1986] ECR 3713, para. 18; Case 205/84 Commission v Germany [1986] ECR 3755, para. 28.

34 Case C-55/94 Gebhard [1995] ECR I-4165.35 The fact that there was no foreseeable limitation in duration had been held to be

incompatible with the rules on the provision of services: see Case 196/87 Stey-

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to its regularity, periodicity or continuity36 and that importance could not be attached per se to the fact that the activity pursued required a series of actions over time.37

In the final analysis, what seems to be determinative in order to categorise a particular activity as falling within the rules on establishment rather that those on the provision of services is the fact that the person concerned is perma-nently present on the recipient’s market, and factors, such as whether or not he or she has infrastructure in the territory of the host country, are not necessar-ily relevant, except perhaps as “mere indications”.38 Conversely, the decisive criterion for the purposes of the application of the chapter of the Treaty on services is the absence of stable, continuous participation on the part of the person concerned in the economic life of the host country. This interpretation is borne out also by the most recent case-law of the Court of Justice, where the test for distinguishing between the two cases seems to be whether the service-provider offers the service from his or her professional base in the country of destination, when he or she will fall within the field of application of the right of establishment. On the contrary, where the offer still originates in the country in which the service-provider is established, this will come under the rules on services and it will be irrelevant whether the service-provider has infrastruc-ture in the country of destination and whether the provision of the service is extended over time, even for many years or with a varying degree of frequency or regularity.39 Albeit theoretically satisfactory, the distinction is fraught with undeniable practical difficulties, since it lends itself to equivocal and uncertain applications: in a previous case, the Court of Justice held that the legislation on

mann [1988] ECR 6159, para. 16.36 Gebhard, paras 25 and 27; Case C-131/01 Commission v Italy [2003] ECR I-1659,

para. 22.37 As in the case of the activity of a patent consultant, where the provider of the ser-

vice has to file, pursue and protect patent applications, thereby pursuing an activity which may also extend over a period of time: see Case C-131/01 Commission v Italy [2003] ECR I-1659, para. 24.

38 The fact that there is a mere office not taking the form of a subsidiary or an agency or even the presence of an independent agent of a foreign company does not con-stitute proof and does not operate to rule out establishment, provided that the pres-ence, albeit small, is permanent (see Case 205/84 Commission v Germany [1986] ECR 3755, para. 21). On the other hand, the presence of an office is not in itself evidence of establishment, since it may well be compatible with the provision of services if the provider cannot pursue his or her activity there and it strictly serves the work to be carried out there (see Case C-55/94 Gebhard [1995] ECR I-4165; Case C-145/99 Commission v Italy [2002] ECR I-2235; Case C-298/99 Commis-sion v Italy [2002] ECR I-3129, para. 56).

39 Case C-215/01 Bruno Schnitzer [2003] ECR I-14847, particularly at para. 32; Case C-171/02 Commission v Portugal [2004] ECR I-5645, paras 25-26.

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freedom to provide services was applicable to the situation of an undertaking in a Member State which pursued its activity in another Member State through the presence there of an intermediary who administered for the undertaking’s customers in that State a centre for the transmission of data relating to betting on foreign sporting events.40

As regards the forms of the provision of services effected without either the provider or the recipient moving, the requirement for the provision to be occasional or temporary is not significant since the provider may pursue his or her activity on a long-term basis from the Member State in which he or she is established: examples are television broadcasters41 or consultancy and informa-tion services provided for remuneration.42

Apart from the “positive” concept of services being “normally provided for remuneration”, Art. 50 EC adds a “negative” definition43 by specifying that the services concerned are those “not governed by the provisions relating to freedom of movement for goods, capital and persons”. Consequently, the Com-munity freedoms are mutually exclusive, since an activity may only be covered by one of the freedoms and therefore only by the legal rules relating to that freedom.44 As far as services are concerned, a residual identification can be derived from this provision from which an additional assessment criterion can be inferred, also methodologically, with the result that there is room for the application of the rules set out in Art. 49 et seq. only where the various rules

40 Case C-67/98 Zenatti [1999] ECR I-7289. In that judgment, however, the Court of Justice did not rule out the possible relevance of the rules on establishment, although it did not rule on this point since the national court’s question for a pre-liminary ruling under Art. 234 EC referred exclusively to freedom to provide ser-vices.

41 See Case C-56/96 VT4 [1997] ECR I-3143, para. 21. In that judgment, the Court held that the fact that the service-provider had a (secondary) establishment in the host State was compatible with the provision of services.

42 Case C-171/02 Commission v Portugal [2004] ECR I-5645, para. 26.43 This observation has been widely made; see, for an example, A. Tizzano, supra

(note 2) 46. See also H. Gilliams, Liberté d’établissement et de prestation de ser-vices, in A. Barav and C. Philip, Dictionnaire juridique des Communautés euro-péennes (Presses universitaires de France, Paris, 1993) 593 ff.; L. Truchot, Articles 49-50, in P. Léger (ed.), Commentaire article par article des Traités UE et CE (Bruylant, Bruxelles, 2000) 451 ff.

44 Case C-55/94 Gebhard [1995] ECR I-4165, para. 20: “The situation of a Com-munity national who moves to another Member State of the Community in order there to pursue an economic activity is governed by the chapter of the Treaty on the free movement of workers, or the chapter on the right of establishment or the chapter on services, these being mutually exclusive”.

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on the free movement of factors of production turn out to be inapplicable.45 In other words, the Court of Justice assesses whether a particular activity falls within the ambit of the other freedoms guaranteed by the Treaty and, only if it considers that it does not, will it determine whether the fact situation should be subject to the rules on the movement of services. Sometimes, however, the service may be accompanied by the transfer of goods and, as a result, the rules on free movement of goods may assume relevance. Faced with such a case, however, the Court of Justice will consider that only one of the two sets of rules are applicable where one of the two freedoms is entirely secondary and strictly functional with respect to the other.46 The fact that a national court formulates a question for a preliminary ruling in terms of a particular freedom of movement does not prevent the Court of Justice from “reclassifying” the fact situation and considering it (also) in the light of a freedom not considered by the referring court.47

Grounds for perplexity are raised therefore, at least from the methodologi-cal point of view, by a judgment in which, although observing that the rules on freedom of establishment could be relevant to the facts of the case before the national court, considered the Court to be bound by the fact that the referring court had framed its question by reference to freedom to provide services, and hence held that there was no reason for considering the applicability of other provisions of the Treaty.48

IV.4 Scope rationepersonaeAs far as natural persons are concerned, Art. 49 first requires that beneficiaries of freedom to provide services should be nationals of a Member State. As will be recalled, determination of nationality is among the competences of the indi-

45 Numerous judgments of the Court of Justice pay tribute to this residual identifica-tion: see Case C-275/92 Schindler [1994] ECR I-1039, para. 30, with reference to lotteries; Case C-159/90 Grogan [1991] ECR I-4685, para. 17; Case C-180/89 Commission v Italy [1991] ECR I-709, para. 6. In Case C-332/89 Merchandise [1991] ECR I-1027, the Court of Justice considered the compatibility of national legislation banning Sunday trading in the light of the rules on free movement of goods, thereby holding that the rules on services were irrelevant; see paras 18-19.

46 Case C-390/99 Canal Satélite Digital [2002] ECR I-607, para. 31: Case C-71/02 Karner [2004] ECR I-3025, para. 46; Case C-36/02 Omega [2004] ECR I-9609, para. 26. For the relationship between free movement of goods and freedom to provide services, see J. Snell, Goods and Services in EU Law: a Study of Relation-ship Between the Freedoms (Oxford University Press, Oxford, 2002) 220 ff.

47 In Gebhard the national court had framed the question by reference to free move-ment of services, whereas the Court, have regard to the particular features of the case, also took the rules on freedom of establishment into account.

48 Case C-67/98 Zenatti [1999] ECR I-7289, para. 23.

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vidual Member States49 and this situation has not been affected by the introduc-tion of citizenship of the Union. Indeed Union citizenship is conditional upon possession of the nationality of a Member State.50

In so far as Art. 55 declares Art. 48 applicable to freedom to provide ser-vices, it extends the scope of the rules on services (Art. 49 et seq.) to legal persons and, in particular, to companies or firms formed in accordance with the law of a Member State and having their registered office, central administra-tion or principal place of business within the Community.51 The requirement for companies to have a “Community” nationality precludes companies formed in a third country but having their principal or secondary seat in a Member State from pursuing their activity under the rules on provision of services in another Member State of the Community.

Non-Community foreigners, that is to say persons having solely52 the nationality or nationalities of a non-member country, cannot be numbered amongst the beneficiaries of freedom to provide services. However, the second para. of Art. 49 provides that, by means of instruments of secondary legisla-tion adopted by the Council by a qualified majority on a proposal from the Commission, the scope ratione personae of the provisions on freedom to pro-vide services may be extended to cover service-providers who are nationals of a third country, provided that they are established within the Community.

49 See Case C-369/90 Micheletti [1992] ECR I-4239, which is in conformity, more-over, with established international case-law. For an extensive discussion, see Ch. 1, part 3.

50 See, in the first place, the second sentence of Art. 17(1) EC: “Every person hold-ing the nationality of a Member State shall be a citizen of the Union”. See also the Declaration on nationality of a Member State adopted by the Intergovernmen-tal Conference and annexed to the Final Act of the EU Treaty: “... the question whether an individual possesses the nationality of a Member State shall be settled solely by reference to the national law of the Member State concerned”. For the questions arising in connection with citizenship of the Union and its relationship with nationality, see Ch. 1, parts 3 and 4.

51 For a commentary on this provision, see A. Santa Maria, Diritto commerciale comunitario (Giuffrè, Milano, 2nd ed., 1995) 18 ff., and, previously, F. Capotorti, Articolo 58, in R. Monaco, R. Quadri, A. Trabucchi (eds), Trattato istitutivo della Comunità economica europea. Commentario (Giuffrè, Milano, 1965) Vol. I, 449 ff. Other references may be found in Ch. III, part 6. For legal persons as beneficia-ries of the freedom to provide services, see in particular L. Truchot, supra (note 43) 450.

52 In the case of a person with plural nationality, it is sufficient that he or she have the nationality of a Member State of the Community and it is irrelevant that his or her other nationality is that of a non-member country: see Case C-369/90 Micheletti [1992] ECR I-4239. Reference is made in this connection also to Ch. I, parts 3 and 4.

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To date, that provision has not been applied, notwithstanding the procedurally more favourable rules introduced by the Single European Act.53 It follows that nationals of a non-member country may avail themselves of the provisions on freedom to provide services only through the formation, in a Member State and in accordance with the rules of that State, of a company or firm within the meaning of Art. 48 EC which may provide services in other Member States, but not directly as natural persons. This limitation is based on a favourable concept for Community nationals which is not completely consistent with the aims of integration of the markets that the fundamental freedoms guaranteed by the Treaty and Community competition policy also pursue. Indeed, as far as the transnational activities which traders present in the Community may carry out by way of provision of services are concerned, two sets of rules have been created: a (positive) set for Community nationals and a (negative) set for nationals of third countries even if they are operating stably in the territory of a Member State.

It is worth mentioning, however, that a proposal for a Council directive, based on the second paragraph of Art. 49 EC, extending the freedom to provide cross-border services to third-country nationals established within the Com-munity, has been presented. Under that proposal, a third-country national who had his or her residence and main establishment in a Member State, defined in terms of an “actual, continuous link” with the economy of that Member State for at least twelve months, and was not an employee in that State was to be issued with an “EC service provision card” if he or she intended to move to and reside in another Member State as a service-provider. The proposal was that the card would have a maximum period of validity of twelve months and would not be renewable automatically (the State of establishment would first check that the conditions for its issue were still fulfilled). The EC service provision card would give its holder the right to enter and reside in Member States other that the State in which he or she was established in order to provide services there and would confer on him or her the right to equal treatment with Member State nationals providing services.54

The enlargement by secondary legislation of the range of beneficiaries of the right freely to provide services to cover third-country nationals is limited by Art. 49 to the service-provider himself or herself, which means that implement-ing directives cannot extend free movement within the area of the Community

53 The provision was amended by Art. 16(3) of the 1986 Single European Act, since before that a unanimous vote was required.

54 OJ C 67, 10/3/1999, recently withdrawn as “no longer of topical interest”: see COM(2004)542 of 6 August 2004, also in view of the adoption of a new proposal for a directive on services in the internal market, for which see infra.

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also to recipients of services who are third-country nationals in so far as they are established in a Member State.55

Then there is the completely separate situation of a Community undertak-ing within the meaning of Art. 48 EC which avails itself of workers who are third-country nationals in order to provide services in a Member State other than the one in which it is established. In that case, Arts 49 and 50 EC preclude national legislation which, by means of instruments for controlling the entry and presence of non-Community nationals, ends up by discriminating against undertakings exercising the freedom to provide services by placing them in an unfavourable situation as compared with competitors using only Community labour.56 It is obvious, however, that in such a case the provisions on freedom to provide services still protect the Community “national” (a natural or a legal person) and only indirectly – or instrumentally – affect the liberalisation of the movement of third-country nationals.

The fact that the recipient of the service has the nationality of a country outside the Community does not constitute a limitation on the service-provid-er’s freedom, since it is sufficient that the recipient is established within the Community.57

Where the non-Community national recipient resides in a non-member country, the service provided by a Community service-provider is not governed by Art. 49 et seq., since the Community legal order is not relevant thereto.

A further subjective condition which has to be satisfied in order to ben-efit from freedom to provide services is that the person concerned must be established within the Community. The law does not require that the person concerned has to be established in his or her own Member State, but merely within the area of the Community. The traditional explanation given for this condition is that it satisfies a requirement to “protect” the Community market

55 See V. Salvatore, Articolo 50, in F. Pocar (ed.), Commentario breve ai trattati della Comunità e dell’Unione europea (Cedam, Padova, 2001) 280; M. Lugato, supra (note 31) 408.

56 See Joined Cases 62 and 63/81 Seco v Evi [1982] ECR 223, para. 12; Case C-113/89 Rush Portuguesa [1990] ECR I-1414; Case C-43/93 Vander Elst [1994] ECR I-3803, para. 26. For a commentary on this case-law, see C. Gulotta, Circo-lazione di lavoratori di paesi terzi alle dipendenze di imprenditori comunitari e libera prestazione di servizi, in B. Nascimbene (ed.), La libera circolazione dei lavoratori. Trent’anni di applicazione delle norme comunitarie (Giuffrè, Milano, 1998) 157; M. Fuchs, Free Movement of Services and Social Security – Quo Vadis?, Eur. Law Journal (2002) 536; C. Barnard, EC Employment Law (Oxford University Press, Oxford, 3nd ed., 2006) 275. See also Ch. V, part 8. This approach has been confirmed by the more recent judgment in Case C-445/03 Commission v Luxembourg [2004] ECR I-10191, para. 24.

57 See, to this effect, A. Tizzano, supra (note 2) 42. See Case C-180/89 Commission v Italy [1991] ECR I-709, para. 9.

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so as to avoid economic penetration of Member States on the part of persons lacking an actual link with the territory of the Community taken as a whole.58 This explanation is borne out by the fact that this condition does not have to be fulfilled in order to exercise the right of establishment, which, inherently, entails establishment in the territory of a Member State and, consequently, the existence of an actual substantial link with the area of the Community. In con-trast and consistently with the foregoing remarks with regard to services, a person has to be established in the area of the Community in order to exercise the right of secondary establishment (Art. 43(1) EC).59

As a result, Community nationality and establishment in the Community constitute concurrent conditions which have to be satisfied in order to be able to exercise freedom to provide services. The upshot is that a person who, albeit a national of a Member State, is established in a third country would not qualify to exercise the freedom enshrined in Art. 49 et seq. EC.

A derogation from the requirement for Community nationality may arise out of a provision eliminating restrictions on freedom to provide services which is contained in international agreement concluded by the Community with a non-member country.60

IV.5 Scope rationemateriae. Relationship with the common transport policy and with the liberalisation of the banking and insurance sectors

Having defined the concept of services, it may be observed as regards its sub-stance or rather the type of self-employed activity which may fall within the definition of services, that Art. 50 couples with the negative residuary defi-nition of the provision of services specific mention of four types of activity. Art. 50 provides that “’Services’ shall in particular include: (a) activities of an industrial character; (b) activities of a commercial character; (c) activities of craftsmen; (d) activities of the professions”. The wording of the provision shows that the list is intended merely to serve as examples (“’Services’ shall in particular include …”) and moreover to read it as being exhaustive would not be compatible with the general notion of services which may be inferred from other provisions of Arts 49 and 50.61

58 See, to this effect, A. Tizzano, supra (note 2) 40.59 For the concept of secondary establishment, see Ch. III, part 10.60 For instance, Art. 14 of the association agreement of 12 September 1963 between

the European Economic Community and Turkey. For the freedom to provide ser-vices laid down in that agreement, see the judgment in Joined Cases C-317/01 and C-369/01 Abatay [2003] ECR I-12301.

61 See, to this effect, the General Programme for the abolition of restrictions on free-dom to provide services, OJ English Special Edition, Second Series (IX), 7.

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The breadth of the concept in terms of the range of economic activities liable to be involved is such that the rules on provision of services may poten-tially interfere with other areas of activity which are the subject of specific Community rules on account of their specific characteristics. What is referred to here is transport, banking and insurance services, the liberalisation of which is connected with the implementation of other provisions of the Treaty.

Art. 51 sets out a dual regime. On the one hand, Art. 51(1) excludes trans-port services from the application of the rules set out in the chapter on services by providing that they are to be governed by Arts 70-80 EC and the relevant implementing measures. However, the fact that reference is made to the rules governing a specific sector does not have the effect of causing transport ser-vices to be regarded as being completely outside the ambit of the principles of freedom to provide services. Instead, the significance of the reference is that it makes those principles applicable through the implementation of a common transport policy, whose specific basic rules are to be found in Art. 70 et seq. of the Treaty.62 On the other hand, by referring to banking and insurance ser-vices connected with movements of capital, Art. 51(2) is confined to providing that the liberalisation in question should be carried out “in step” with the lib-eration of capital movements. The coordination required by this provision has had the effect that services provided by banks and insurers were subjected to liberalisation conditional upon the adoption in stages of secondary legislation aimed initially at harmonising the conditions for pursuing the relevant activi-ties. Moreover, the provisions on free movement of capital originally contained in the Treaty were formulated in much more “attenuated” terms by comparison with the scope of Art. 49 et seq., with the result that at the beginning they were, unlike Art. 49 et seq., not considered to have direct effect.63 Consequently,

62 See Case 16/78 Choquet [1978] ECR 2293; Case 13/83 European Parliament v Council [1985] ECR 1513, para. 62, and Case C-17/90 Pinaud Wagner [1991] ECR 5253, para. 7. For the relationship between the general rules on services and the common transport policy, see T.C. Hartley, Transport, in Thirty Years of Community Law (OPOCE, Luxembourg, 1983) 451 ff.; M.L. Tufano, I trasporti, in A. Tizzano (ed.), supra (note 2) 167 ff., and, I trasporti terrestri nella CEE (Giuffrè, Milano, 1990); G. Conetti, Politica dei trasporti, in Enciclopedia giu-ridica (Treccani, Roma, 1990) Vol. XXIII; F. Munari, Il diritto comunitario dei trasporti (Giuffrè, Milano, 1996) 7 ff.; S. Fortunato, I trasporti, in A. Tizzano (ed.), supra (note 6) 529 ff.; F. Munari, S. Antonini, Articoli 70 – 80, in F. Pocar (ed.), supra (note 55) 322 ff.; M.A. Nesterowicz, Freedom to provide maritime transport services in European Community Law, Journ. Mar. Law Comm. (2003) 629; L. Schiano di Pepe, Articolo 70, in A. Tizzano (ed.), supra (note 31) 471.

63 According to the interpretation of the Court of Justice, Art. 67(1) did not mean that restrictions on capital movements had to be abolished after the expiry of the transitional period; this was to result from the adoption of implementing directives based on Art. 69 (see Case 203/80 Casati [1981] ECR 2595, para. 12). In particu-

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numerous directives had to be adopted pursuant to Art. 69 EEC before free movement of capital could be translated into rights and obligations for indi-viduals within the Community area and the services closely connected with it, such as banking and insurance services, could actually be freely exercised.64 In a nutshell, it may be stated that liberalisation in both the banking and insur-ance services was carried out fundamentally on the basis of the principle of home-country control. The Member State in which the undertaking is initially established exercises supervision over it by issuing the licences necessary for it to operate, also as regards activities carried out in the other Member States.

lar, the restrictions on the free movement of capital were abolished only by Council Directive 88/361/EEC of 24 June 1988 (OJ 1988, L 178, 5), some of the provisions of which have been held to have direct effect: see Joined Cases C-358/93 and C-416/93 Bordessa [1995] ECR I-361 and Case C-484/93 Svennsson and Gustavs-son [1995] ECR I-3955. For the development of the rules in general, see A. Santa Maria, supra (note 51) 202 ff. For earlier discussions, see G.L. Tosato, Capitali nel diritto comunitario, in Digesto delle discipline pubblicistiche (UTET, Torino, Vol. II, 1987) 462; A. Malatesta, Articoli 56 – 60, in F. Pocar (ed.), supra (note 55) 286. Specifically with regard to certain aspects of the Italian legislation, see, R. Baratta, Norme comunitarie sui movimenti di capitali e legislazione italiana, Diritto dell’Unione europea (1996) 443, which contains further references.

64 For the liberalisation of banking services, see the following learned articles pub-lished following the adoption of Council Directive 89/646/EEC (OJ 1989 L 386, 1): R. Luzzatto, La libera prestazione dei servizi bancari nella CEE ed il prin-cipio del mutuo riconoscimento, Foro italiano (1990) IV, 443.; L. Radicati di Brozolo, L’ambito di applicazione della legge del paese di origine nella libera prestazione dei servizi bancari nella CEE, Foro italiano (1990) IV, 454; A. Tiz-zano, La “seconda direttiva banche” ed il mercato unico dei servizi finanziari, Foro italiano (1990) IV, 423; M. Van Empel, R. Smits (eds), Banking and EEC Law Commentary (Kluwer Law International, Deventer, 1992); P. Mengozzi, La seconda direttiva bancaria, il mutuo riconoscimento e la tutela dell’interesse generale degli Stati membri, Rivista di diritto europeo (1993) 447; G. Godano, Le banche, in A. Tizzano (ed.), supra (note 6) 375. For the liberalisation of insurance services, see M. Frigessi di Rattalma, Mutuo riconoscimento e armonizzazione minima nella disciplina comunitaria dei servizi finanziari, Rivista di diritto inter-nazionale privato e processuale (1991) 713; A. Ottow, An International Insurance Market before the Turn of the Century, C.M.L. Rev. (1992) 511; F. Loheal, Le marché européen de l’assurance: opportunités, limites, perspectives, Rev marché commun et de l’Un. eur. (1994) 592; V. Afferni e A. Costa, I servizi assicurativi, in A. Tizzano (ed.), supra (note 6) 471 ff.; A. Gkoutzinis, Free movement of services in the EC Treaty and the Law of contractual obligations relating to banking and financial services, C.M.L. Rev (2004) 119; R. Baratta, Circolazione dei capitali e dei pagamenti, in G. Strozzi (ed.), supra (note 24) 275.

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IV.6 (cont.) Exclusion of activities involving the exercise of public authority

Art. 45 EC renders Arts 45 to 48 (laid down for establishment) applicable to services. Consequently, the combined provisions of Arts 55 and 45 exclude from the application of the provisions on freedom to provide services activi-ties which in the Member State concerned are “connected, even occasionally, with the exercise of official authority”. That provision, as is well known, is the expression of a general principle which applies to the whole area of free move-ment of persons. Indeed, apart from establishment and services, employed per-sons are also affected since liberalisation is ruled out as regards “employment in the public service” (Art. 39(4)). The Member States intended, by means of those provisions, to reserve for their own nationals those areas of activity – exercised in an employed or self-employed capacity on a permanent or an occasional basis – which are considered to be particularly sensitive for the gen-eral interests of the country and for which respect for the principle of loyalty to the State – an essential component of nationality but not of Union citizen-ship – seemed essential. The fact that the rationale of the various provisions is identical has caused them to be interpreted in substantially the same way even though the wording of the provisions concerned differs.65

Since it is a derogation from the general principle of free movement, the exception relating to involvement in the exercise of public authority has to be strictly construed so as to exclude from liberalisation only those activities in which there is direct and specific involvement in the exercise of public author-ity.66 Clearly, the Court will proceed on a case-by-case basis, having regard to

65 It must be borne in mind that, whereas in the case of establishment and provision of services, the exclusion is carried out by reference to individual activities, in the case of the free movement of employed persons, it is not so much particular duties car-ried out by the worker that are excluded but the possibility of employment with the public administration. Admittedly, however, the Court of Justice has consistently interpreted the Treaty provision having regard to the specific characteristics of the post in question and, as a result, required liberalisation for many posts in the public administration which do not “involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities” (see Case 149/79 Commission v Belgium [1980] ECR 3881). Specifically with regard to free movement of workers, see Ch. II, part 9; as regards the right of establishment, see Ch. III, part 8.

66 See, above all, Case 2/74 Reyners [1974] ECR 631 concerning the profession of lawyer. See subsequently Case C-42/92 Thijssen [1993] ECR I-4047, paras 9 and 22, relating to “approved commissioners of insurance undertakings pursuing their activities in Belgium”; Case C-272/91 Commission v Italy [1994] ECR I-1409, relating to the role of concessionaire for the lottery in the Italian legal system and Case C-114/97 Commission v Spain [1998] ECR I-6717; Case C-355/98 Commis-sion v Belgium [2000] ECR I-1221, in which the Court of Justice held that security

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the national provisions governing the organisation and exercise of the activity in question in the Member State concerned. As a result, general, predetermined exclusions for particular professions are not permissible and it must be deter-mined whether it is not possible to identify within a given profession a charac-teristic core of activities which do not involve the exercise of public authority, whereby other marginal aspects of the profession may involve the exercise of public authority. In that case, the exclusion from liberalisation may hold good for those aspects alone.67 In a more recent case, the Court of Justice seems to have unjustifiably failed to assess whether particular professional activities likely to involve the exercise of public authority could be severed from the rest of the activities entailed by a self-employed occupation, and so extend freedom to provide services, and the right of establishment, to the whole occupation. As a result, it considered secondary aspects of the occupation for which the person concerned had to exercise public authority as residual and therefore irrelevant for the purposes of the derogation set out in Art. 55 EC.68

firms and private security staff were not directly connected with the exercise of public authority in that the activity consisting in the provision of security services did not entail coercive powers on the part of the firms and persons concerned.

67 The judgment in Case 2/74 Reyners [1974] ECR 631, paras 45-47, is very clear in this regard. There the Court held that the derogation set out in Art. 45 EC could not extend to a whole self-employed occupation, since the activities involving the exercise of public authority constituted a severable part of the professional activity taken as a whole. See in general and with specific reference to the profession of notary, S.M. Carbone, Il notaio tra regole nazionali ed europee: diritto societario e professioni regolamentate alla prova delle libertà comunitarie, in Il notaio tra regole nazionali ed europee (Giuffrè, Milano, 2003)1 ff.

68 The case was concerned with private security activities which, under Italian legisla-tion, were reserved for security firms holding Italian nationality and sworn private security guards of Italian nationality. According to Italian law, as interpreted by the Court of Cassation, sworn private security guards may arrest a person engaged in the commission of a minor offence, for which police officers are empowered, but not obliged, to arrest the perpetrator. In the infringement proceedings brought against Italy, the Commission conceded that that power of arrest involved the exercise of public authority within the meaning of Art. 55 of the Treaty, but con-sidered that since it could be severed from the guards’ occupational activity taken as a whole, there was no justification for removing the whole occupation from the application of the Treaty provisions on free movement. In its judgment, the Court of Justice ignored this distinction and did not sever the power of arrest from the activity as a whole which was, correctly, held to fall within the scope of Arts 43 and 49 of the Treaty: see Case C-283/99 Commission v Italy [2001] ECR I-4363, paras 15 and 20-22.

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IV.7 Substance of freedom to provide services. The principle of equal treatment on grounds of nationality

From a general point of view, freedom to provide services entails a right for individuals who are nationals of a Member State and established within the Community, to move and reside freely in the area of the Community in order to have access to and pursue an economic activity. The counterpart of this right is the negative obligation on the part of the Member States to remove any obstacles to the exercise of the right and the positive obligation on the part of the States (and the Community institutions) to adopt measures to facilitate its exercise.

Even beyond the objective limits mentioned earlier, in particular with ref-erence to the notion of services and the exclusion of activities connected with the exercise of public authority, it must be observed that the liberalising scope of the provisions of Art. 49 et seq. is not absolute. This is because the Treaty “does not require all the limitations and legal conditions to which access to the various self-employed activities and the pursuit thereof are subject within the individual Member States to be eliminated”.69 In principle and with the excep-tion of what will be made clear subsequently, restrictions affecting nationals and foreigners in the same way or, more accurately, service-providers estab-lished abroad and service-providers operating in the Member State where they are established are excluded from the scope of Community liberalisation. In other words, in the first place measures affecting equal treatment in various respects which discriminate against the position of persons coming from abroad by comparison with persons already established in the Member State in which the activity in question is pursued are prohibited.

The first and most obvious discriminating factor is the nationality of the service-provider. Accordingly, in the first place discrimination on the ground of the different nationality of the provider or recipient of the service is prohibited. Indeed, Art. 50 EC provides that the service-provider may “pursue his activity in the State where the service is provided, under the same conditions as are imposed by that State on its nationals”. Substantially, this constitutes the appli-cation to the specific area of freedom to provide services of the principle of non-discrimination on grounds of nationality set forth in Art. 12 of the Treaty,70

69 English translation of A. Tizzano, Circolazione dei servizi nei paesi della CEE, in Novissimo Digesto italiano. Appendice (UTET, Torino, 1980) 1217.

70 The general prohibition of discrimination on grounds of nationality set out in Art. 12 EC is stated to be without prejudice to any special provisions contained in the Treaty, with the result that it cannot be applied autonomously where that prohibi-tion is set forth in specific rules relating to the various sectors: see Case 13/76 Donà [1976] ECR 1333, Case 186/87 Cowan [1989] ECR 195, para. 14, Case C-18/93 Corsica Ferries [1994] ECR I-1783, para. 20; Case C-379/92 Peralta [1994] ECR I-3453, para. 18.

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the basic rule for the achievement of the internal market and for overcoming barriers to the integration of the national markets.

Applications of the principle of national treatment in the field of freedom to provide services were not long in making their appearance in the case-law of the Court of Justice, thereby marking a first stage in achieving free move-ment of services and now constituting a fait accompli. Thus, for example, the first judgments include one declaring incompatible with (inter alia) Arts 49-55 EC national rules or practices reserving for nationals of the Member State in question alone the right to play in professional football matches.71 Since it con-stitutes the basic starting point for the elimination of discrimination in the area of the Community between traders from different Member States, the prohibi-tion of discrimination on grounds of nationality has not encountered excessive difficulties in imposing itself through judgments of the Court of Justice, espe-cially since the subsequent case-law invokes the principle of equal treatment of nationals of the various Member States not so much out of the need to ensure that it is specifically applied, but rather yoked with the prohibition of other dis-criminatory rules based on different and less obvious parameters.72

IV.8 Prohibition of discrimination based on other grounds: requirement for residence

Unlike the rules on establishment, which, in Art. 43 EC, seem to regard as discriminatory and hence as prohibited only deviations from equal treatment

71 Case 13/76 Donà [1976] ECR 1333, para. 19.72 See, recently, by way of example Joined Cases C-544/03 and C-545/03 Mobi-

star [2005] ECR I-7723, para. 29. It is worth mentioning the judgment declaring incompatible with the prohibition of discrimination on grounds of nationality in the field of services a national provision which prohibited foreign broadcasters from transmitting advertising in the Member State concerned (Case 352/85 Bond van Adverteerders [1988] ECR 2085) and the judgment ruling that a German pro-vision requiring only foreign nationals to pay security for costs was incompatible with Community law because it detracted from equal treatment as regards the judicial protection of rights (Case C-20/92 Hubbard [1993] ECR I-3777, para. 14). Legislation prohibiting nationals of other Member States from purchasing immov-able property in the territory of the Member State in which services are to be pro-vided has also been held to be contrary to equal treatment of service-providers at least in so far as so far “access [to property ownership] is appropriate to enable that freedom to be exercised effectively”: Case 305/87 Commission v Greece [1989] ECR 1461. The Court of Justice also held that Italian legislation reserving access to the occupation of “sworn private security guard” to Italian nationals was incom-patible with the prohibition of discriminatory treatment on grounds of nationality: Case C-283/99 Commission v Italy [2001] ECR I-4363.

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based on the trader’s nationality,73 the provisions on freedom to provide ser-vices exhibit – already from the point of view of their wording – a broader liberalising effect. In the first place, Art. 49 prohibits generally “restrictions on freedom to provide services ... in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended”. Secondly, Art. 54 specifically mentions a prohibited ground of discrimination in that it requires Member States to apply any restric-tions “without distinction on grounds of nationality or residence to all persons providing services within the meaning of the first paragraph of Article 49”.

The different scope of the principle of equal treatment in the field of ser-vices as compared with the sector of establishment is justified in the first place by the intrinsic difference between the two freedoms. This is because the ser-vice-provider has a definitely weaker social “attachment” to the State in which he or she pursues his or her activity on an occasional basis or in which the recipient of the service resides than a person exercising the right of establish-ment. Accordingly, rigorous application of the rule of national treatment would end up by giving rise to excessive restrictions compared with the characteristics of the establishment required in order to provide the service concerned. Such restrictions, based on the assumption of a stable link with the State, which in the case of freedom to provide services is non-existent or, at all events, present to a different and certainly lesser degree, would be liable to make freedom to provide services nugatory in that they would substantially eliminate its specific characteristics by comparison with freedom of establishment,74 which, in con-trast, the Treaty seeks to preserve.

The first unjustified restriction is residence (or, in the case of companies, establishment), which is specifically contemplated by Art. 54. This is because national legislation which introduces a distinction based on residence would end up by injuring nationals of other Member States in view of the fact that

73 In fact, the case-law of the Court of Justice has gone well beyond the national treatment imposed by Art. 43 EC by regarding as incompatible with Community law rules which, albeit formally applicable without distinction to nationals and non-nationals alike, in fact prevent nationals from other Member States from establishing themselves in the Member State in question in so far as they require them to satisfy certain requirements which are typically met by its own nationals and not by other persons (for examples from the case-law, see Ch. III, parts 12 and 15). As a result, it is possible, as the case-law stands at present, to postu-late a parallel between the rules on freedom of establishment and the case-law on measures applicable without distinction in the sphere of free movement of goods. This aspect is discussed in, for instance, V. Huglo, Liberté d’établissement et libre prestation des services, Rev. trim. droit eur. (1996) 741; G. Tesauro, Diritto comu-nitario (Cedam, Padova, 4th ed., 2005) 529.

74 A. Tizzano, supra (note 69) 24; G. Tesauro, supra (note 73) 551 ff.; R. Mastro-ianni, supra (note 24) 261.

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such persons are normally not resident in the Member State in question and, conversely, non-residents are nationals of other Member States.75

The strong territorial connection represented by residence and, in the case of legal persons, their seat or the existence of a permanent representative76 which is often required by national legislation in order to be able to pursue certain professions serving to protect major general interests, albeit limiting without question freedom to provide services, may be justified in the abstract by requirements to “supervise” the relevant professional activity or to maintain contact with public authorities involved in carrying out the provision of the service, thus satisfying mandatory requirements in the general interest.

However, as will be shown, the justifications in question must comply with the principles of necessity and proportionality: the principle of necessity is not fulfilled where the need for control can be met by the supervision exercised over the service-provider under legislation in his or her country of establish-ment;77 for its part, the principle of proportionality is infringed by a national measure requiring residence where contact with the local authorities may be secured by means less onerous than residence, which results in requiring a stable connection and hence in making the characteristic content of freedom to provide services nugatory. In this area, fundamental importance still attaches to the judgment in Van Binsbergen, where the Court of Justice, having to rule on the compatibility with Art. 49 et seq. of a national provision relating to practis-ing as a lawyer under which the lawyer had to reside in the country in which the service was provided, held that “A requirement that the person providing the service must be habitually resident within the territory of the State where the service is to be provided may, according to the circumstances, have the result of depriving Art. 59 [now 49] of all useful effect, in view of the fact that the precise object of that article is to abolish restrictions on freedom to provide services imposed on persons who are not established in the State where the service is to be provided”.78

75 See Case C-350/96 Clean Car Autoservice [1998] ECR I-2521, para. 29; Case C-224/97 Ciola [1999] ECR I-2517, para. 14; Case C-388/01 Commission v Italy [2003] ECR I-721, para. 14.

76 See C-171/02 Commission v Portugal [2004] ECR I-5645, paras 33-34.77 This is the principle of home country control, which is provided for in legislation

on the banking and insurance sectors (see R. Luzzatto, L. Radicati di Brozolo, and other commentators cited in note 64) and has been by extended by the Court of Justice to all cases of service provision: see Case C-58/98 Corsten [2000] ECR I-7919, para. 41, relating to skilled trades in the construction sector, and the later judgment in Case C-131/01 Commission v Italy [2003] ECR I-1659, which was concerned with patent agents, who, under Italian law, were required to be enrolled on the Italian register of patent agents and hence to have a residence in Italy.

78 Case 33/74 Van Binsbergen [1974] ECR 1299, para. 11.

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A reference to requirements less restrictive than residence but likewise suitable (and hence preferable) for the purpose of satisfying the aim of ensur-ing compliance with professional rules or other national requirements worthy of protection has been explicitly made in other judgments on the insurance sector79 or on national legislation which made the performance of a service in one Member State by an undertaking established in another subject to its hold-ing a licence to operate in the first Member State. The Court again held that the effect of such a provision “would be to deprive Art. 59 [now 49] of the Treaty of all effectiveness, the purpose of that article being precisely to abolish restric-tions on the freedom to provide services by persons who are not established in the State in which the service is to be provided”.80

IV.9 Other prohibited discrimination: measures applicable without distinction

On the basis of the different and fuller wording of the provisions on freedom to provide services as compared with the provisions on establishment, the Court of Justice has protected service-providers beyond the confines of national treat-ment, also as regards various approaches with regard to residence. Moreover, as has already been pointed out, the “structural” difference between the two rights could not tolerate the same degree of liberalisation. In particular, as has already been stated, to level down free movement of the service-provider to the rule of national treatment as it applies to establishment, would have inevi-tably caused the specific features of freedom to provide services to suffer. The restrictions and limitations which would have then been applicable to the two freedoms, in compliance with the principle of national treatment, would have seemed justified on account of the “strong” character of the position of a person who has exercised the right of establishment in a country other than his or her home country, but would have been generally unjustified and disproportionate with regard to the completely precarious set up peculiar to the service-provider, who, moreover, is usually already subject to similar restrictive measures in his

79 Case 39/75 Coenen [1975] ECR 1547; Case 205/84 Commission v Germany [1986] ECR 3755, para. 28; Case C-350/96 Clean Car Autoservice [1998] ECR I-2521, para. 36; Case C-451/99 Cura Anlagen [2002] ECR I-3193, paras 48-52.

80 Case 76/81 Transporoute [1982] ECR 417, para. 14. See subsequently to the same effect Case 205/84 Commission v Germany [1986] ECR 3755, para. 28; Case 252/83 Commission v Denmark [1986] ECR 3713, paras 18 and 22; Case C-204/90 Bachmann [1992] ECR I-249 and Case C-300/90 Commission v Belgium [1992] ECR I-305. Later, the Court held that Austrian legislation prohibiting the manager of a harbour for pleasure boats to grant owners of boats resident abroad more than a certain number of moorings was incompatible with Art. 49 of the Treaty: see Case C-224/97 Ciola [1999] ECR I-2517, para. 12 ff.

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or her country of establishment.81 It follows, as has already been observed,82 that national treatment may be viewed only as a minimum test for the legality of restrictions and satisfying it will not suffice to cause those restrictions to escape the further test of compatibility with the rules on freedom to provide services.

The idea underlying liberalisation of service provision as so understood is that activities performed in the Community territory should in principle be sub-ject to a single set of rules: those of the country of origin, which would there-fore be recognised by all the Member States as being capable of regulating the activity in question under the service-provision regime. In essence, an activity lawfully performed in one Member State should be able to be performed as the provision of a service also in the other Member States, subject to any permitted justificatory grounds. It is manifest on the basis of a superficial analysis that, since a service-provider does not have to be subject to the restrictions applica-ble to a person who has exercised the right of establishment, it appears that the service-provider is allowed to exercise his or her activity on more favourable terms compared with the conditions to which the person who has exercised the right of establishment is subject.83 This assessment is erroneous when it comes to the reference parameter. This is because a service performed by a person who has exercised the right of establishment and one performed by a person exercising freedom to provide services are not comparable from the point of view of the legal rules applicable to them, since the fact situation is different. In particular, the characteristic feature of their set-up is different, with the result that a person who has exercised the right of establishment falls outside the con-trol of his or her Member State of origin (or provenance), whereas a service-provider continues to be subject thereto so that there would be no justification for applying restrictions normally already affecting his or her activity in his or her home country.84

81 See Case 279/80 Webb [1981] ECR 3305; Case C-294/89 Commission v France [1991] ECR I-3591; Case C-58/98 Corsten [2000] ECR I-7919, para. 35; Case C-131/01 Commission v Italy [2003] ECR I-1659, paras 26-28.

82 See G. Tesauro, supra (note 73) 559.83 See, however, Case 15/78 Koestler [1978] ECR 1971, where the Court of Justice

held that “the Treaty ... does not impose any obligation to treat a foreigner provid-ing services more favourably ... than a person providing services established in the Member State where the services have been provided”. Apart from being iso-lated, this dictum stands out and, in any event as has been observed, was probably affected by the particular nature of the restrictive measure under consideration (see G. Tesauro, supra (note 73) 560, note 297).

84 Judgment No 61 of the Italian Constitutional Court of 28 February 1996 (cited above) essentially followed this reasoning. The Court rejected the claim that Art. 5 of Royal Decree No 1578 of 27 November 1933 was unconstitutional. That article provided that lawyers (procuratori legali) were entitled to practise only before the judicial offices of the district of the Court of Appeal which covered the Bar Asso-

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From this angle, any national legislation which makes it more difficult or more onerous, or simply less attractive, in fact to provide services as between Member States than it is to provide services purely domestically is contrary to Art. 49 EC, even if there is no discrimination on grounds of nationality or even residence.85 The approach taken in the case-law of the European Court with regard to services has similar connotations to that adopted with regard to free movement of goods: the tendency is to eliminate all – even non-discriminatory – restrictions which, de jure or de facto, represent an actual obstacle to a ser-vice-provider established in another Member State.86 The upshot is an approach with a significantly liberalising effect which has been applied in relation to a variety of different restrictions.

In this way, as regards licences, authorisations or other evidence of quali-fications required in order to be admitted to practise a particular profession, the Court of Justice has held that a Member State to which a request for authorisa-tion has been made has to take account of the certificates and other evidence of qualifications which the service-provider has acquired with a view to practising in another Member State.87 A ban on the marketing by telephone of financial services has been held to be a restriction on the freedom to provide services, despite the fact that it was imposed by the Member State in which the service-provider was established, since it applied also to offers made to persons located

ciation to which they were assigned. The difference in treatment claimed was with a Community lawyer exercising freedom to provide services, who was certainly not subject to that limitation. The judgment held that the party with whom a lawyer of Italian nationality had to be compared could not be a Community practitioner exercising freedom to provide services: instead, the comparison had to be made with the situation of a Community lawyer stably practising in Italy by virtue of the right of establishment, to whom the territorial limitation did apply. The situa-tion with regard to rules on the legal profession on which the Constitutional Court ruled in that case has now been overtaken by the reform carried out by Law No 27 of 24 February 1997 (Gazzetta Ufficiale della Repubblica italiana, 27 February 1997, No 48), which abolished the register of procuratori legali. For this question, see part 15, infra, also for references.

85 For recent case-law, see Case C-250/99 Analir [2001] ECR I-1271, para. 21; Case C-451/99 Cura Anlagen [2002] ECR I-3193, para. 30; Case C-164/99 Portugaia Construçoes [2002] ECR I-787, para. 16; Case C-60/03 Wolff & Müller [2004] ECR I-9553, para. 31.

86 See, above all, Case C-76/90 Säger [1991] ECR I-4221 and Case C-288/89 Gouda [1991] ECR I-4007, including the Opinion of Advocate General Tesauro in that case. See also Case C-381/93 Commission v France [1994] ECR I-5145, para. 16, and Case C-58/98 Corsten [2000] ECR I-7919, para. 33.

87 See Case C-375/92 Commission v Spain [1994] ECR I-923, para. 12; Case C-76/90 Säger [1991] ECR I-4221.

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in the territory of another Member State.88 By the same token, an obligation for a service-provider who is a member of a profession to enrol or register with the competent authority in the Member State where the service is to be performed constitutes, even if it is not discretionary, a measure which obstructs or delays the provision of the service and hence is incompatible with Art. 49 EC.89 This is not unlike the situation in which prior authorisation has to be obtained in order to exercise an activity in the country in which the service is to be provided.90 Although a requirement of Italian law for undertakings to provide a guarantee in order to obtain the licence required to carry on the business of providing tem-porary labour in Italy was imposed without distinction on domestic and foreign companies alike, it was nevertheless contrary to Art. 49, since it amounted to the negation of obligations that were comparable in point of their purpose to which the provider was already subject in the Member State in which it was established.91 The Court of Justice has also identified as restrictions on freedom to provide services requirements imposed by national legislation with regard to the “structures” which the provider has to have in order to provide services in the Member State of destination, such as the requirement for the trader to be incorporated as a company or for a company to have a minimum capital.92

Overall, the most recent case-law of the Court of Justice seems to be affected by a degree of uncertainty. Where the Court holds that all measures which, albeit applicable without distinction, are such as to render the activ-ity of a service-provider established in another Member State where it law-fully provides similar services simply “less attractive” are contrary to Art. 59 EC, it seems to be endorsing a model of liberalisation capable of overturn-ing any measure even if it only reduces the economic convenience of a trader who decides to exercise freedom to provide services, and therefore goes well

88 See Case C-384/93 Alpine Investments B.V. [1995] ECR I-1141, paras 37-39.89 See Case C-298/99 Commission v Italy [2002] ECR I-3129, paras 58-64. In that

case, the possibility to require architects providing services to enrol on the regis-ters of architects was specifically provided for in Council Directive 85/384/EEC of 10 June 1985 on the mutual recognition of diplomas, certificates and other evi-dence of formal qualifications in architecture, but the obstacle was found to lie in the fact that the Italian legislation provided that enrolment had to take place within 30 days and that the first provision of services could take place only after enrol-ment, with the result that service provision by an architect established in another Member State was at least delayed. For a requirement for a service-provider to register in a register of tradesmen in the Member State in which the service is to be performed, see Case C-58/98 Corsten [2000] ECR I-7919, para. 34, and Case C-215/01 Bruno Schnitzer [2003] ECR I-14847, paras 34-40.

90 See Case C-189/03 Commission v Netherlands [2004] ECR I-9289, paras 17-18.91 See Case C-279/00 Commission v Italy [2002] ECR I-1425, para. 34.92 See Case C-171/02 Commission v Portugal [2004] ECR I-5645, paras 41 and 53.

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beyond the conditions for access to service provision. In contrast, recent judg-ments have made it clear that Art. 59 does not apply to measures whose only effect is to introduce additional costs for the provision of the service in ques-tion without any discrimination, de facto or de jure, as compared with national traders.93 The emphasis placed on the absence of discriminatory effect is remi-niscent of the Court’s case-law on free movement of goods, where it excluded from the application of Art. 28 EC measures which “affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States”.94

It has been emphasised that going beyond national treatment and elimi-nating all restrictions, de facto and de jure, on the service-provider’s freedom – subject to such justifications as may be assessed -, finds its justification in the distinction which exists between the two types of “Community free movement” of self-employed workers. It must be borne in mind that the broad spectrum of modes in which freedom to supply services may be exercised also includes that in which the service-provider is established in one Member State and the activ-ity constituting the “service” is directed at persons residing in another Member State. In that case, the difference between the – more favourable – treatment given to a person established in a Member State other than the one to which the service is directed and that of a competitor who carries out the same activity for persons residing in the same territory but is established in the country for which the service is intended may give rise to some perplexity. Indeed, the choice of the State of establishment ends up by being determined exclusively by legisla-tively favourable situations and free movement is at risk of moving from being an expression of an economic freedom to become a mean of distorting the operation of the market. This could tend to warrant greater control on the part of the Member State for which the service is intended, obviously to protect the general interests of the sector as reflected in the restrictive measure.95

93 See Joined Cases C-544/03 and C-545/03 Mobistar [2005] ECR I-7723, paras 29-33, and Case C-134/03 Viacom Outdoor [2005] ECR I-1167, paras 34-38. In the latter case, the Court seems to attach importance also to the “modest” amount of the tax at issue in relation to the value of the services provided.

94 The quotation is from Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097, para. 16, a leading case which marked a revirement in the case-law with regard to measures having equivalent effect to quantitative restrictions on the import of goods from other Member States. See C. Reich, The “November Revolution” at the European Court of Justice: Keck, Meng and Audi revisited, C.M.L. Rev (1994) 459; L. Sbolci, La libera circolazione delle merci, in G. Strozzi (ed.), supra (note 24) 36, which contains further references. For critical comments on the relationship between Keck and Mitouard and the case-law on services, see J. Snell, supra (note 46) 220 ff.

95 For such considerations and further particulars with specific regard to television, see R. Mastroianni, Libertà di prestazione di servizi, garanzia del rispetto delle

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IV.10 Restrictionsonfreedomtoprovideservices.JustificationsGenerally speaking and having regard to what has just been observed, it must be said that freedom to supply services, in common with the other freedoms guaranteed by Community law, must not become an instrument which is sus-ceptible of abuse, to the detriment of interests worthy of protection.96 In partic-ular, freedom to supply services may not be used so as to circumvent the rules on establishment, which, as has been seen, allow restrictions to be imposed on the basis of the principle of national treatment which may not be imposed on a service-provider.

The Court of Justice has therefore recognised that, having regard to the specific nature of certain services, Member States cannot be denied the right to adopt restrictive measures designed to prevent the freedom provided for in Art. 49 from being used by a service-provider whose activity is wholly directed towards his or her own territory in order to evade the rules to which he or she would be subject if he or she were resident in that State. In such a case, the Member State could, provided it respects the principle of proportionality, lay down a residence requirement in the event that other less binding measures do not secure respect for the general interests underlying the professional rules that the service-provider is evading.97

norme comunitarie ed obblighi degli Stati membri, in Annali italiani del diritto d’autore, della cultura e dello spettacolo, Vol. VI (1997) 607 ff., but see also part 11, infra.

96 The possibility that the supply of services might become susceptible to “abuse”, by means of which the person concerned achieves genuine establishment, thereby evading the professional rules applicable to such establishment, was envisaged already in Advocate General Darmon’s Opinion in the Gulling case (for which see above). This risk must be eliminated by correctly identifying the fact situa-tion and distinguishing those situations constituting the free supply of services from those constituting in reality effective establishment in the host State. For the abuse of the right in Community law, see the judgments in Case C-441/93 Pafitis [1998] ECR I-1347 and Case C-367/96 Kefalas [1998] ECR I-2843. With regard to the freedom to supply services, see, specifically, the judgments in Case 33/74 Van Binsbergen [1974] ECR 1299, para. 13, Case 205/84 Commission v Germany [1986] ECR 3755, para. 22, and Case 292/86 Gullung [1988] ECR 111, para. 22. As pointed out at the end of the preceding paragraph, from the point of view of abuse, particular attention has been given to cases of the provision of services which involved no movement either of the provider or of the recipient, as in the case of television services: See the judgments in Case C-148/99 Veronica [1993] ECR I-487, para 13, and in Case C-23/93 TV10 [1994] ECR I-4795 and see M. Gestri, Abuso del diritto e frode alla legge nell’ordinamento comunitario (Giuffrè, Milano, 2003) 54 ff.

97 See Case 39/75 Coenen [1975] ECR 1547, para. 9, and, even earlier, Case 33/74 Van Binsbergen [1974] ECR 1299, para. 13, and the case-law cited in the preced-ing notes.

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IV.11 (cont.) Discriminatory measuresMore generally as regards the exceptions permitted to the rules on freedom to supply services as described so far, Community law makes a clear distinction between discriminatory measures and measures applicable without distinc-tion.

As respects (even formally) discriminatory measures, which, as such, involve a different, and worse, treatment to a service-provider on account of his or her foreign nationality or his or her residence in another Member State, the only exceptions allowed are those which are expressly provided for in the Treaty, i.e. those based on Art. 46, which are referred to and made applicable to services by Art. 55.98 Consequently, where the restrictive measure is based on requirements referred to in Art. 46, it will not be necessary to assess whether it is in the nature of a measure which is applicable without distinction.99 Accord-ingly, discriminatory measures based on grounds of public policy, public secu-rity or public health will be allowed. These are traditional exceptions from free movement, which are also applicable to employed persons as a result of Art. 39(3).100 The very fact that the rules are substantially identical has enabled the Community legislator to adopt a single instrument implementing the relevant Treaty provisions: the directive harmonising national provisions embodying restrictions based on such grounds (Directive 64/221/EEC) applied, not only to employed persons and members of their family, but also to persons exercis-ing the right of establishment or the right to provide services and members of their family.101 Directive 64/221 was repealed as from 1 May 2006 by Direc-tive 2004/38/EC.102 The unitary rules on entry, residence and even expulsion and exclusion find their raison d’être in Member-State nationals’ fundamen-tal status of Union citizenship. Art. 27 of the new directive requires Member States to comply with the principle of proportionality when adopting measures restricting freedom of movement on the grounds or public policy and public security, which must be based exclusively on the personal conduct of the indi-vidual concerned. That conduct must represent “a genuine, present and suffi-ciently serious threat affecting one of the fundamental interests of society”.

98 See Case C-288/89 Gouda [1991] ECR I-4007 and Case C-211/91 Commission v Belgium [1992] ECR I-6557.

99 See Case C-36/02 Omega [2004] ECR I-9609, para. 29.100 See Ch. II, part 12.101 See Art. 1 of Council Directive 64/221/EEC of 25 February 1964 on the coor-

dination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English special edition, Series I, Chapter 1963-1964, 117). For com-ments on the directive, above all its procedural provisions not discussed here, see Ch. II, parts 12 and 13.

102 OJ L 158, 30/4/2004.

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Since derogations from fundamental freedoms guaranteed by the Treaty are involved, measures based on such justifications must be strictly interpreted in such a way as not to take their scope beyond that which is strictly necessary in order to safeguard the interests protected:103 from this point of view, the pos-sibility of categorising objectives of an economic nature as public policy has been ruled out.104 Obviously, the lack of any positive definition of what is meant by public policy and public security, which are regarded as being capable of overlapping, gives Member States a measure of discretion in making their assessments.105 That discretion is limited above all by the need to respect the other fundamental principles of Community law and the review by the institu-tions, especially the Court of Justice, as to the non-arbitrary use of the discrimi-natory measure in question. In any event, according to a settled formula, also applied in the case of freedom to supply services, public policy may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society.106 The judgment in Omega, to which reference has already been made, marks a retrograde step in Community case-law as far as the iden-tification of a common concept of public policy is concerned: indeed, it makes it clear that the intensity of the restriction in question and the manner in which the interest is protected do not necessarily have to correspond to a conception shared by all the Member States.107

As far as protection of public health is concerned, the Court of Justice has held that national provisions reserving to a specific class of professionals (hold-ers of a medical doctor’s qualification) the right to make diagnoses and pre-scribe treatments which in other Member States may be made and prescribed

103 With specific reference to freedom to supply services, see Case 352/85 Bond van Adverteerders [1988] ECR 2085, para. 36; Case C-260/89 ERT [1991] ECR I-2925, para. 45.

104 See Case C-484/93 Svennsson and Gustavsson [1995] ECR I-3955, para. 15; Case C-17/92 Federación de Distribuitores Cinematográficos [1993] ECR I-2239, para. 21; Case C-398/95 SETTG [1997] ECR I-3091, para. 23; Case C-224/97 Ciola [1999] ECR I-2517, para. 16.

105 For the relative nature of the concept of public policy as regards free movement of workers, see Ch. II, part 12. More recently, the Court of Justice has entertained the notion of “public order” as a justificatory ground for discriminatory treatment, whose distinction from the public policy referred to in Art. 46 of the Treaty is not entirely apparent. In the case in question, the judgment refers to discrimina-tions imposed by national legislation with a view to containing the disturbances to social order which may arise as a result of gambling: see Case C-243/01 Gambelli [2003] ECR I-13031, para. 69.

106 See Case C-36/02 Omega [2004] ECR I-9609, para. 30.107 The Court of Justice expressly corrected the reference to a “common conception”

of the law which could seemingly have been inferred from the earlier judgment in Case C-275/92 Schindler [1994] ECR I-1039, para. 60.

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by other professionals without that qualification may be justified on grounds of that exception.108 But this does not signify that the whole of the public-health sector is excluded from free movement and, in particular, freedom to supply services: it follows that a Member State may not use the public-health excep-tion to justify imposing a generalised requirement for persons insured under the social security system of that State to obtain prior authorisation for treatment carried out in another Member State.109

IV.12 (cont.) Measures applicable without distinctionIt is only in relation to measures which are non-discriminatory – de jure or de facto – that justifications other than those expressly provided for in Arts 46 and 55 of the EC Treaty are allowed.110 However, such restrictions have to undergo rigorous review in the light of the codified principles laid down in the Com-munity case-law.

First, the restrictions must be imposed for the protection of mandatory requirements connected with the public interest111 which are considered to be worthy of protection. The relevant interests have been identified by the case-law, which is now relatively ample and inferable substantially from the dero-gations from free movement of goods set out in Art. 30 of the EC Treaty as interpreted in the case-law of the Court of Justice.112 In particular, permissible justifications worth mentioning include protection of recipients of services;113 protection of intellectual property;114 protection of public order and combating

108 See Case C-294/00 Gräbner [2002] ECR I-6515, paras 42 and 43.109 See Case C-158/96 Kohll [1998] ECR I-1931, para. 46. See in this regard M.

Fuchs, supra (note 56) 538 ff.110 See O’Leary, F. Martin, Judicially-Treated Exceptions to Free Provision of Ser-

vices, in M. Andenas and W.-H. Roth (eds), supra (note 10) 163 ff. 111 The reference to the public or general interest, as a justification for measures appli-

cable without distinction, can already be found in Case 33/74 Van Binsbergen [1974] ECR 1299 in relation to compliance with professional rules, professional ethics and rules on liability on the part of legal representatives. See likewise Joined Cases 110-111/78 Van Wesemael [1979] ECR 35; Case 279/80 Webb [1981] ECR 3305.

112 For the derogations from measures having equivalent effect to quantitative restric-tions on free movement of goods, see G. Tesauro, supra (note 73) 438 ff., and the references made therein.

113 Case C-288/89 Gouda [1991] ECR I-4007, para. 17, and Case C-76/90 Säger [1991] ECR I-4221, para. 17.

114 See Case 62/79 Coditel [1980] ECR 881.

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criminality and fraud;115 protection of workers116 and, in the context of that ground, social protection of workers in the building industry;117 consumer pro-tection118 also as regards “abuses of advertising”;119 conservation of the national historical and artistic heritage;120 protection, from the cultural viewpoint, of the quality of television programmes,121 and protection of the financial equilib-rium of a system of higher education.122 Road safety requirements may also fall within the concept of overriding requirements of general interest and, as such, justify a restriction on freedom to supply services.123 Lastly, mention should be made, also on account of its acquired systematic importance, of another possible justification for restrictive measures affecting the tax liability of ser-vice-providers: the coherence of the tax system of the Member State in which they operate.124 Apart from the qualification that the requirement in question cannot be reduced to merely preserving the tax revenue of the Member State

115 See Case C-275/92 Schindler [1994] ECR I-1039; Case C-124/97 Läärä [1999] ECR I-6067; Case C-67/98 Zenatti [1999] ECR I-7289, para. 31; Case C-243/01 Gambelli [2003] ECR I-13031, para. 67, all relating to lotteries and gaming.

116 See Case C-272/94 Guiot [1996] ECR I-1905, paras 20-22; Case C-113/89 Rush Portuguesa [1990] ECR I-1414, para. 18; See Case 279/80 Webb [1981] ECR 3305, para. 19; Case C-164/99 Portugaia Construções [2002] ECR I-787, para. 20; Case C-60/03 Wolff & Müller [2004] ECR I-9553, para. 35.

117 Case C-272/94 Guiot [1996] ECR I-1905, para. 16.118 See Case C-288/89 Gouda [1991] ECR I-4007, para. 27, with regard to the address-

ees of advertising; Case 205/84 Commission v Germany [1986] ECR 3755, para. 39, and Case 252/83 Commission v Denmark [1986] ECR 3713, para. 20, judg-ments given on the same date concerning contracting parties of insurance compa-nies.

119 See Case C-6/98 PRO Sieben [1999] ECR I-7599, para. 50. More recently, see also Case C-245/01 RTL [2003] ECR I-12489, para. 71.

120 See Case C-180/89 Commission v Italy [1991] ECR I-709, para. 20, and Case C-288/89 Gouda [1991] ECR I-4007, para. 14.

121 See Case C-245/01 RTL [2003] ECR I-12489, para. 71.122 See judgment of 7 July 2005 in Case C-147/03 Commission v Austria [2005] ECR

I-5969, paras 63-66.123 See Case C-55/93 Van Schaik [1994] ECR I-4837, para. 19, and more recently

Case C-451/99 Cura Anlagen [2002] ECR I-3193, para. 59.124 See, above all, Case C-204/90 Bachmann [1992] ECR I-249, the judgment of the

same date in Case C-300/90 Commission v Belgium [1992] ECR I-305, Case C-279/93 Schumacker [1995] ECR I-225, Case C-80/94 Wielockx [1995] ECR I-2493 and Case C-107/94 Asscher [1996] ECR I-3089. It should be noted, however, that, according to one school of thought amongst commentators, from time to time the Court of Justice has used fiscal coherence to justify restrictions that are de facto discriminatory by construing the coherence of the tax system as an integral part of public policy. See J.C. Moitinho de Almeida, La libre prestation des ser-

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in question,125 the justification is substantially indeterminate as is, accordingly, its potentially very incisive impact on the scope of the freedoms guaranteed by the Treaty. For this reason, the Court of Justice has shown a desire to reduce its implications in various ways by requiring a direct nexus to be shown between the fiscal requirement which is protected and the discriminatory provision,126 even where the exercise of the fiscal competence of the Member State has to do with direct taxation, a matter which does not fall within the competence of the Community. This is because the Member States are bound, in any event, to exercise that competence in compliance with Community law and, in particu-lar, with the fundamental freedoms provided by Community law for the benefit of Community citizens.127

Secondly, the principle of mutual recognition, which underlines free movement of services and may be reduced to the tendency for supervision in the country of origin to satisfy appropriately the requirements of the Member State for which the provision of services is intended, has led to restrictive mea-sures being held permissible only in the event that the same interest is not pro-tected by the rules to which the service-provider is subject in the State in which he or she is established.128 A typical expression of that principle is the case-law

vices dans la jurisprudence de la Cour de Justice des Communautés européennes, in Scritti in onore di G.F. Mancini (Giuffrè, Milano, 1998) Vol. II 643 ff.

125 See Case C-136/00 Danner [2002] ECR I-8147, para. 56, and Case C-243/01 Gambelli [2003] ECR I-13031, para. 61. See also the case-law cited with regard to freedom of establishment, Ch. III, part 15.

126 See the arguments put forward by L. Daniele, Il divieto di discriminazione fiscale nella giurisprudenza comunitaria (1980-1987), Foro italiano (1989) IV, 20; L.S. Rossi, Principio di non discriminazione e profili fiscali della libera circolazione delle persone, in B. Nascimbene (ed.), supra (note 56) 81 ff.

127 See Case C-80/94 Wielockx [1995] ECR I-2493; Case C-264/96 ICI [1998] ECR I-4695, para. 19; Case C-35/98 Verkooijen [2000] ECR I-4071, para. 32; Case C-136/00 Danner [2002] ECR I-8147, para. 28; Case C-42/02 Lindman [2003] ECR I-13519, para. 18; Case C-39/04 Laboratoires Fournier [2005] ECR I-2057, para. 14.

128 The reference to supervision exercised in the Member State of origin in order to make the restrictions imposed groundless may already be found in Joined Cases 110-111/78 Van Wesemael [1979] ECR 35; Case 279/80 Webb [1981] ECR 3305, in which the Court of Justice held that the obligation to take on entertainers through a special employment bureau was not warranted, since the service-provider was in possession of a licence issued by the Member State of establishment on condi-tion that requirements comparable with those of the State in which the service was provided were satisfied. The requirement to take account of guarantees already provided by the service-provider in order to obtain authorisation to exercise his or her activity in the State of establishment is also stressed in Case 279/80 Webb [1981] ECR 3305, para. 20, and in the subsequent judgments in Case 205/84 Com-

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regarding as incompatible with Art. 59 national rules which, by making the pro-vision of the service conditional upon the issuance of an administrative authori-sation, in fact ruled out taking account of the obligations to which the provider of transborder services was already subject in the Member State in which he or she was established.129 The assessment is a delicate one, given that the Member States still have the possibility to protect their general interests by different means, and the fact that one Member State imposes less strict rules does not mean that those of a Member State which applies more rigorous rules are nec-essarily incompatible with Community law.130 The equilibrium point seems to be that of obliging the Member State for which the services are intended to take qualifications acquired in the Member State of origin into account in any event and to allow it to require additional authorisations only where this is justified by specific general interests which are worthy of protection.

Lastly, the restrictive measures that are recognised as being intended to protect a mandatory requirement connected with the general interest have to satisfy the principle of proportionality,131 which is regarded as being a general principle of Community law designed (in particular) to strike a balance between the application of the Community rule and the protection of conflicting national requirements.132 Proportionality is evaluated by making a series of assessments

mission v Germany [1986] ECR 3755, para. 47, Case C-288/89 Gouda [1991] ECR I-4007, para. 13, and Case C-106/91 Ramrath [1992] ECR I-3351, para. 31.

129 For recent case-law, see Case C-171/02 Commission v Portugal [2004] ECR I-5645, para. 60, and Case C-189/03 Commission v Netherlands [2004] ECR I-9289, para. 18.

130 Consequently, Austrian rules requiring, for reasons of health protection, Heilprak-tiker to have medical degrees has been held to be compatible with freedom to supply services, even though that profession may be practised in other Member States by persons not holding such degrees: see Case C-294/00 Gräbner [2002] ECR I-6515, paras 45-47. See also the earlier judgment in Case C-108/96 Mac-Quen [2001] ECR I-837, para. 33.

131 Case C-118/96 Safrin [1998] ECR I-1897 and Case C-55/94 Gebhard [1995] ECR I-4165, para. 37.

132 For the general principles and their identification by the Court of Justice, see, among many commentators, P. Mengozzi, Istituzioni di diritto comunitario e dell’Unione europea (Cedam, Padova, 2003) 248 ff.; A. Adinolfi, I principi gene-rali nella giurisprudenza comunitaria e la loro influenza sugli ordinamenti degli Stati membri, Rivista italiana di diritto pubblico comunitario (1994) 521; G. Gaja, Fonti comunitarie, Digesto delle discipline pubblicistiche (UTET, Torino, Vol. VI, 1991) 433 ff.; A. Arnull, The General Principles of EEC Law and the Individual (Leicester University Press, Leicester, 1990) 1. F. Capotorti’s observations in Il diritto comunitario non scritto, Diritto comunitario e degli scambi internazionali (1983) 409 retain their relevance today. For the principle of proportionality in particular, see M. Lugato, Principio di proporzionalità e invalidità di atti comuni-

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which the Community court is called upon to carry out when reviewing the compatibility with Community law of the restrictive measure. In the first place, the restrictive measure must be appropriate having regard to the protective aim which it is intended to pursue. The case-law of the Court of Justice shows that appropriateness is not be understood in terms of the ability of the measure in question to achieve the aim of protection in the abstract but specifically, having regard to the overall characteristics of the national legal order in question at the particular time. Consequently, if the aim of protecting the general interest is contradicted by other aspects of the legal order which prevail and there-fore make the protection incapable of being achieved, the restrictive measure will not be appropriate.133 In addition, the restrictive national measure must be strictly necessary for the protection of the general interest. In assessing whether the measure is necessary, that is to say, whether or not it is strictly indispensable to achieve its purpose, it must be evaluated whether the same objective could not be achieved using less restrictive rules and hence rules less detrimental to the service-provider.134 In assessing whether a given restrictive measure is necessary in terms of the aim pursued, the sanctions prescribed by national law for infringements of the – possibly justifiable – restrictive requirements also assume a measure of importance. In particular, it will be permissible to attach criminal sanctions to an infringement of the restriction imposed by national law only where no other – less severe – punitive measure is capable of pursuing the objective of general interest presupposed by the restrictive measure. In this way, Community law on the internal market has a certain effect on the exercise of the criminal competence of the Member States, which, inasmuch as it is cer-

tari nella giurisprudenza della Corte di giustizia delle Comunità europee, Diritto comunitario e degli scambi internazionali (1991) 67. For additional considerations about proportionality as a parameter for restrictive measures as regards free move-ment of persons, see B. Nascimbene, L’obbligo irragionevole di “dare contezza di sé”: un’abrogazione annunciata (l’art. 142 t.u.l.p.s. e il diritto comunitario), Rivista italiana di diritto pubblico comunitario (1991) 115, a commentary on Case 265/88, Messner [1999] ECR 4209.

133 In the light of a State’s legal and administrative system which prompts and encour-ages consumers to participate in lotteries, gaming and betting for the benefit of the revenue, a restrictive measure prohibiting a service-provider established in another Member State from providing gaming and betting services to persons established in the first State was not held to be appropriate to limit consumers use of betting in a consistent, systematic way: see Case C-243/01 Gambelli [2003] ECR I-13031, paras 67-69.

134 See to this effect Case C-459/99 MRAX [2002] ECR I-6591, paras 89-91; Case C-451/99 Cura Anlagen [2002] ECR I-3193, paras 48-52; Case C-193/94 Skanavi [1996] ECR I-929, paras 34-39; Case C-55/93 Van Schaik [1994] ECR I-4837; Case C-43/93 Vander Elst [1994] ECR I-3803, para. 25; Case C-106/91 Ramrath [1992] ECR I-3351, para. 31.

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tainly not “communitarised”, must be exercised in any event so as not to detract from the other fundamental freedoms guaranteed by the Treaty.

The considerable extension of the mandatory requirements connected with the general interest makes it possible to state that, in identifying values worthy of protection, the interests of the Member States prevail and they formulate their assessments in the context of the large measure of discretion allowed them by the Court of Justice. In contrast, the achievement of the aims of the Treaty and of the fundamental freedoms guaranteed by it prevails when it comes to finding whether the restrictive measure is appropriate to achieve its aim and proportionate to the objective that the Member State purports to achieve, as witness the rigour with which the Court of Justice carries out the so-called proportionality test.

A national measure which is applicable without distinction must satisfy cumulatively135 all the conditions which have just been considered. As already mentioned, the Court’s case-law is clearly based on the rules on restrictive mea-sures relating to trade in goods as prohibited by Art. 28 EC, read in the light of the traditional formula set out in Cassis de Dijon, namely that restrictive mea-sures based on different technical rules regarding product characteristics are not justified where those in force in the State in which the goods are produced are equivalent to those in force in the State into which they are imported.136

IV.13 Implementation of liberalisationThe EC Treaty did not provide for the immediate achievement of the liberali-sation of all its aspects. On the contrary, it gave preference to the progressive implementation of the rules to be drawn up by the end of the transitional period

135 See very clearly to this effect, G. Tesauro, supra (note 73) 565.136 The literature on the Community case-law on quantitative restrictions and mea-

sures having equivalent effect is abundant. If only commentaries after Cassis de Dijon was “revisited” by the judgment in Keck (Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097), we may cite B. Nascimbene, Il controllo dei prezzi e delle tariffe nella CE nel quadro della libera circolazione delle merci e dei servizi, Contratto e impresa Europa (1996) 57; R. Wainwright and V. Melgar, Bilan de l’article 30 après vingt ans de jurisprudence: de Das-sonville à Keck et Mithouard, Rev. marché commun et de l’Un. eur. (1994) 533; D. Chalmers, Repackaging the Internal Market. The Ramifications of the Keck Judgment, E.L. Rev. (1994) 385; C. Reich, supra (note 94) 459; F. Picod, La nou-velle approche de la Cour de justice en matière d’entraves aux échanges, Revue trimestrielle de droit européen (1998) 169; P. Oliver, Free Movement of Goods in the EC (Sweet and Maxwell, London, 2003). For general textbooks, see above all G. Tesauro, supra (note 73) 379; L. Sbolci, supra (note 94) 36; L. Daniele, Diritto del mercato unico europeo (Giuffrè, Milano, 2006) 59 ff., which contain further references.

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and conferred the relevant powers on the Community institutions.137 On the one hand, a standstill was imposed on the Member States, with a consequent prohibition on introducing new restrictions following the entry into force of the Treaty (Art. 62, now repealed). On the other, Art. 54 put (and still puts) them under a duty to apply any existing restrictions, until they are abolished, without discrimination on grounds of nationality or residence.138

However, the weightiest task fell to the institutions, both from the point of view of the elimination of existing restrictions and from that of facilitating access to self-employed activities and the pursuit of such activities. In par-ticular, Art. 47 (laid down with regard to establishment, but made applicable to services as a result of the reference contained in Art. 55) gave rise to an obligation for the Council to adopt directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications. Art. 47 also required the adoption, before the end of the transitional period, of directives for the coordination of national provisions concerning the taking-up and pursuit of activities of self-employed persons. Obviously, the two aspects were interde-pendent, since mutual recognition was all the more readily attainable the more national rules were coordinated and harmonised.139 The adoption of such mea-sures of secondary legislation was to take place by no later than the end of the transitional period, as defined by the original Arts 7 and 8 EEC (now repealed), in accordance with a General Programme for the abolition of restrictions exist-ing within the Community.140

In fact, also owing to the onerous decision-making procedure originally laid down (unanimity in the Council), during the transitional period, a very small number of directives designed to eliminate restrictive measures were adopted, which evidenced, moreover, the Member States’ reluctance to commit themselves definitively to free movement of the factors of production and hence to integrating the markets.

137 In the sense that the choice is attributable to the need to avoid sharp changes in the pre-existing economic and social fabric of the Member States; see A. Tizzano, supra (note 2) 56.

138 Art. 54 has been regarded as reproducing at Community level the most-favoured nation clause typical of international trade: see M. Lugato, Articolo 54, in A. Tiz-zano (ed.), supra (note 31) 415; R. Mastroianni, supra (note 24) 244.

139 The assistance provided by coordination to mutual recognition is pointed out by A. Tizzano, supra (note 2) 62, where, however, it is stressed that the aims of coor-dination are not exhausted by mutual recognition, since coordination serves more generally to affect the totality of the conditions bearing on the pursuit of an inde-pendent activity both by individuals and by undertakings.

140 Adopted by the Council on 18 December 1961 (OJ English Special Edition, Second Series [IX], 7).

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Fundamentally, it was the contribution of the case-law, which, after the transitional period, held that Arts 49 and 50 were directly applicable. In par-ticular, in Van Binsbergen, the Court of Justice held that those articles “have direct effect and may therefore be relied on before national courts, at least in so far as they seek to abolish any discrimination against a person providing a service by reason of his nationality or of the fact that he resides in a Member State other than that in which the service is to be provided”.141 In the face of the unconditional nature of the obligation to eliminate discrimination based on nationality or residence and the correlative right of individuals to obtain direct protection of the right protected by Community law, the adoption of directives designed to implement national treatment became unnecessary or, more accu-rately, became less useful in order to facilitate the actual exercise of that right, without, however, making the existence of the right depend on the adoption of such directives. The principle of the direct effect of the rules laid down by Arts 49 and 50 EC has become the subject of consolidated case-law of the Court of Justice142 and has been reiterated with regard to the legal systems of the newly-acceded Member States.143

On the other hand, measures that are non-discriminatory and hence appli-cable without distinction, such as requirements, conditions and qualifications for access to particular activities, continued to bar or impede the actual exercise of freedom to supply services, especially where, by reflecting general interests worthy of protection – in compliance with the principle of proportionality -, they could not be reviewed in the light of the aforementioned case-law.

IV.14 (cont.) Recognition of diplomasIt was therefore necessary to carry out intense work on harmonising the condi-tions for access to the various “sensitive” activities in the various legal sys-tems so as to secure mutual recognition of the relevant qualifications and hence effective exercise of freedom to supply services above and beyond national treatment or the requirement of residence. In principle, the direct implementa-tion of the principle of mutual recognition at the legislative level would have enabled restrictions arising out of the existence of differing national rules – jus-tified by recourse to mandatory requirements – to be overcome. Mandatory requirements could have been assessed within limits and in accordance with provisions laid down by Community secondary legislation on harmonisation and mutual recognition. Indeed, it is to this that the provisions of Art. 47 taken as a whole refer.

141 Case 33/74 Van Binsbergen [1974] ECR 1299, para. 27.142 See Joined Cases 110-111/78 Van Wesemael [1979] ECR 35, paras 26 and 27; Case

279/80 Webb [1981] ECR 3305, para. 13.143 See Case C-224/97 Ciola [1999] ECR I-2517, paras 27 and 28.

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The harmonisation of training curricula and the consequent mutual rec-ognition of the diplomas awarded upon successful completion of harmonised training or pure and simple mutual recognition of diplomas giving entitlement to practise a regulated profession, in accordance with the so-called new-gen-eration directives starting from Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration,144 constitute, intuitively, a more relevant way of affirming the right of establishment than of affirming freedom to supply services. This should not, however, cause one to underestimate the significance of such liberalisation measures also for services.145 Indeed it is clear that the higher the degree of harmonisation and mutual recognition regulated by legislation, the fewer open-ings will exist for national legislation to contemplate restrictive measures justi-fied by protection of general interests, since such interests will be taken into account by the relevant directives, which, where necessary, will provide for appropriate compensatory measures upon which mutual recognition of qualifi-cations is dependent.

In this context, the directive on recognition of professional qualifications146 sets out to introduce specific rules with a view to extending the possibility of pursuing professional activities by virtue of the original professional qualifica-tion. Under the system of the directive, Member States cannot prevent a person from providing services if the provider is established in another Member State to pursue the relevant profession and if he or she has exercised that profession in that State for at least two years out of the preceding ten years. In the case of a regulated profession, the service-provider is allowed to provide services under his or her original qualification if the activities covered are “comparable” (Directive 2005/36/EC, Art. 4). However, mutual recognition of professional qualifications with a view to exercising the activity in question may be made dependent, where the provider moves for the first time, on the holder’s demon-strating that he or she has the professional qualifications needed to practise the profession in question in the Member State of establishment.

IV.15 (cont.) The directive on services in the internal marketFreedom to provide services has been regulated for a long time by the pro-visions laid down in the Treaty, according to the interpretation given by the Court of Justice. An extensive and elaborate jurisprudential law has acted as a background against which service provision has been carried out. The lack

144 OJ L 19, 24/1/1989, 16. For the directive in general and bibliographical references, see Ch. III, part 16.

145 See in this connection Ch. III, part 16.146 Directive 2005/36/EC adopted by the European Parliament and the Council on 7

September 2005 and published in OJ L 255, 30/9/2005, 22.

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of secondary law has been thus filled by the intervention of the Court of Jus-tice. This action has allowed applying the principles of the Treaty, but has not proved enough to ensure the certainty of law. In fact, in the case of controversy, an economic operator is obliged to bear the costs of an action and the risk that a national judge does not turn to the Court and wrongly interprets the Com-munity law. In order to outline a correct legal framework, the Commission had worked out the proposal for a directive on services in the internal market (the so-called “Bolkestein Directive”).147 As far as services are concerned, it contained a series of provisions designed to facilitate the transborder provi-sion of services while retaining a high level of quality of service provision, thereby providing a legal framework ensuring contemporaneously freedom on the part of the provider and protection of the recipient of the services in question. The proposal for a directive set out a “neutral” definition of services corresponding to that contained in Art. 50 EC, according to which a service is any self-employed economic activity consisting in performing a service for remuneration.

The fundamental innovation compared with the present rules on freedom to supply service consisted in providing (in Art. 16 of the proposal) for the application of the country-of-origin principle, not only as a condition for access to the relevant profession or occupation, but also as a rule for pursuing it, by ensuring that the service provider was subject to the rules of his or her country of establishment as regards all aspects inherent to the provision of the service in question. The general principle was subject to a series of derogations – gen-eral, relating to specific cases, or transitional – which were connected with the specific features of particular activities and necessary in order to take account of the disparities existing in the various Member States with regard to the pro-tection of general interests worthy of protection, the degree of Community har-monisation in certain sectors, the extent of administrative cooperation and the fact that specific Community instruments had already been adopted. The latter consideration gave rise to a broad derogation with regard to recognition of professional qualifications as governed by Directive 2005/36/EC. The country-of-origin principle was not to be applied as regards specific requirements of the host country which were essential on grounds of public policy, public security and public health or protection of the environment.

The requirement of prior minimum harmonisation was restricted to few aspects of the service-provider’s activity, most of which were relevant to con-sumer protection (professional liability insurance, dispute resolution, exchange of information on the quality of the service-provider), since the remaining aspects are left to generalised mutual recognition in terms of the country-of-origin rule. Consequently, insufficient harmonisation was destined to lose all

147 Proposal for a directive of the European Parliament and the Council on services in the internal market of 25 February 2004, COM (2004) 2 fin./2.

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significance in strict legal terms as a ground for excluding mutual recognition on the basis of home-country law but, as witness also the reactions to the pro-posed directive in the course of the adoption procedure, the lack of harmoni-sation was liable to make the principle of mutual recognition politically less acceptable, especially in the context of an enlarged European Union which was certainly less homogeneous than it was.

The Bolkestein directive, accused of fostering social dumping within the Union, had its approval blocked following the negative outcome of the French referendum on the Treaty establishing a Constitution for Europe,148 and was therefore substantially amended.

In the adopted final text,149 the directive on services provided within the internal market does not mention any reference to the country-of-origin rules.

By means of a complicate language not devoid of contradictions, which reflects the complex adoption process, the Community legislator imposes to all Member States to ensure freedom of access and freedom to exercise “service activities” all over their territories. Member States may provide for restrictive measures only when these measures are justified by reasons of public order, public security, public health, and the protection of the environment, and comply with the principles of non-discrimination and proportionality (Art. 16). As regards services included in the application field of the directive (it being understood that Member States have the possibility, granted by the Treaty, to introduce directly discriminating measure or requirements on the basis of rea-sons of public order, public security and public health), the final result of these regulations seems to let wane the so-called “measures applicable without dis-tinction” on grounds of imperative reasons of general interest, except for the protection of the environment, which is the only imperative reason raised to the dignity of traditional public order restrictions.

Should this interpretation of the regulatory text prevail, the significance of this directive, in terms of liberalization, would however be undeniable, even in the absence of a reception of the country-of-origin rule.

148 For the events relating to the Treaty establishing a Constitution for Europe, see Ch. I, part 23, also for additional references.

149 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ L 376, 27/12/2006, 36. See M. Fallon, A.-C. Simon, La directive “services”: quelle contribution au marché intérieur?, Journal des tribunaux. Droit européen (2007) no. 136, 33; L. Idot, La directive services, suite et fin….?, Europe (2007) 1; P. Pellegrino, Directive sur les services dans le marché intérieur: un accouchement dans la douleur, Rev. marché commun et de l’Un. eur (2007) 14.

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IV.16 Free movement of lawyersThe liberalisation at Community level of the legal professions has been very laborious and marked by opposing tensions. On the one hand, a lawyer is a professional figure whose transborder connotation has grown commensurately with the progressive internationalisation of economic activities; as a result, the lawyer’s profession needed Community recognition. On the other hand, the substance of the legal profession seemed too strongly rooted in the differing legal experience of the individual Member States to be the subject of any form – albeit minimum – of harmonisation and, consequently, of mutual recognition of qualifications on the lines of other professions.

National treatment without discrimination on grounds of nationality or, in the case of service provision, on grounds of residence was ensured by the case-law of the Court of Justice holding that Arts 43 and 49 EC had direct effect in relation to lawyers who, satisfying the professional-training requirements prescribed by the host Member State, sought to practise their profession as established persons or service-providers.150 However, the rule of national treat-ment could not overcome the lack of mutual recognition of professional quali-fications which acted as a barrier to full free movement of professionals, while the restrictive legislation could be justified also with regard to service-provid-ers since the rules on taking up and pursuing the profession were designed to protect manifest mandatory requirements.

The smaller socio-economic impact of service provision as compared with establishment meant that it was possible to implement free movement first with regard to the provision of services. Directive 77/249/EEC to facilitate the effec-tive exercise by lawyers of freedom to provide services151 required the Member States to recognise as lawyers – only as regards the exercise of the legal activi-

150 See, in relation to the right of establishment, Case 2/74 Reyners [1974] ECR 631. Formally, the case-law of the Court of Justice was incorporated into Italian law twenty years late. It was only by Art. 10 of Law No 146 of 22 March 1994, Com-munity Law No 52, Gazzetta Ufficiale della Repubblica italiana, supplemento ordinario of 4 arch 1994, that Community citizens were treated as Italian citizens for the purposes of their enrolment as avvocati. With regard to freedom to supply services, see Case 33/74 Van Binsbergen [1974] ECR 1299.

151 Council Directive of 22 March 1977, OJ L 78, 26/3/1977. Of the numerous commentaries on the directive, see A. Brunois, Le barreau et la libération des prestations de services et des établissements dans la Communauté économique européenne, Revue trimestrielle de droit européen (1977) 397, at 407 ff.; S. Neri, L’esercizio dell’attività d’avvocato nel diritto comunitario, in Studi Monaco (Giuf-frè, Milano, 1977) 468 ff.; M. Panebianco, La direttiva sulla prestazione di servizi 22 marzo 1977, Diritto comunitario e degli scambi internazionali (1981) 765; N. Annecchino, Le professioni liberali: gli avvocati, in A. Tizzano (ed.), supra (note 2) 305 ff. For some comparisons with US legislation on the transborder provision of legal services, see R. Goebel, The Liberalisation of Interstate Legal Practice in

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ties by way of freedom to supply services – persons authorised to practise the profession in their country of provenance under one of the titles listed in the directive.152

Freedom to supply services was coupled, however, with a number of limi-tations designed to protect general interests. In particular, Community lawyers providing services were required to use their own professional title expressed in the language of their State of provenance and to respect dual rules on profes-sional ethics. The Member States retained the power to require lawyers pro-viding services – as far only as representing clients in court proceedings was concerned – to have been “introduced” to the President of the Bar and to “work in conjunction” with a lawyer entitled to practise before the court seised and thereby to be rendered responsible thereto. In implementing the directive, the legislation of the Member States took a cautious approach and took advantage of every exception permissible under the directive.153

The resulting limited implementation of Art. 49 et seq. evolved signifi-cantly as a result of decided cases of the Court of Justice, which interpreted the directive so as to favour more flexible choices compared with the rules which the legislature in the Member States had used in order to implement the Com-munity provisions.

In particular, the Court of Justice acted by interpreting the notion of “working in conjunction” with a local lawyer as a service-provider had to do when representing a client in legal proceedings. Accordingly, national provi-sions requiring the local lawyer to be the agent ad litem or counsel in the case or prohibiting the lawyer providing the service from appearing at the hearing if not accompanied by the local lawyer, thereby making the provider of ser-vices subject to the territorial exclusivity that many legal systems provided in favour of the local lawyer, were held to be unjustified. Rules requiring the

the European Union: Lessons from the United States?, in M. Andenas and W.-H. Roth (eds.), supra (note 10) 413 ff.

152 In relation to the situation in Italy, the directive did not liberalise the profession of procuratore legale, thereby giving rise to unjustified unequal treatment. The uni-fication of the legal professions brought about by Law No 27 of 24 February 1997 overcame the problem. For a criticism of the preceding situation, see R. Danovi, Procuratore legale italiano e avvocato francese: nessuna distinzione, Foro ital-iano (1995) IV, 130.

153 Italy implemented the directive by Law No 31 of 9 February 1982, Gazzetta Uffi-ciale della Repubblica italiana, No 42 of 12 February 1982. For a commentary, see, in particular, V. Varano, Legge 9 febbraio 1982, n. 31. Libera prestazione di servizi da parte degli avvocati cittadini degli Stati membri delle Comunità europee, Nuove leggi civili commentate (1982) 47. For general considerations, see B. Nascimbene and C. Sanna, Norme comunitarie e norme nazionali sull’esercizio della professione forense in Italia, Rivista di diritto internazionale privato e pro-cessuale. (2002) 349.

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service-provider to work in conjunction with a local lawyer also in cases where domestic law did not make it necessary to have the assistance of a lawyer were also held to be incompatible with Community law.154 The development of the Court’s interpretation did not spare the Italian law implementing the directive. Indeed, in the judgment in Gebhard, the Court held that Art. 2(2) of Law No 31 of 9 February 1982 was incompatible with the directive and Art. 49 of the Treaty. That provision of national law placed an absolute prohibition on a for-eign lawyer providing services from “establishing chambers in the Republic” or “a principal or branch office”. In particular, the Court of Justice held that the temporary nature of the provision of services did not preclude the possibility for the provider of services to equip himself or herself with infrastructure in the host State if such infrastructure was “necessary for the purposes of performing the services in question”.155 This ruling, which in absolute terms was nothing new since it had been preceded by other rulings in which national provisions reserving access to real property to nationals had been held incompatible with Art. 49 (and Art. 43),156 had the merit of contributing towards the effectiveness of lawyers’ (and other traders’157) right to provide services freely, since it made it clear that the temporary nature of the provision of services did not preclude

154 See Case 427/85, Commission v Germany [1988] ECR 1123 and Case C-294/89 Commission v France [1991] ECR I-3591. For the incompatibilities referred to in the body of the text and the first judgment, see R. Baratta, Recenti sviluppi norma-tivi e giurisprudenziali in tema di stabilimento e prestazione di servizi, Giustizia civile (1989) I, 1961 ff.; H. Heidenmüller, Deregulating the Market for Legal Ser-vices in the European Community: Freedom of Establishment and Freedom to Provide Services for EC Lawyers in the Federal Republic of Germany, Modern Law Review (1990) 604.

155 Case C-55/94 Gebhard [1995] ECR I-4165. Among the numerous commentar-ies on that judgment, see the case notes by M. Jarvis, EL Rev (1996) 247 and J. Lombay, C.M.L. Rev (1996) 1073; F. Toriello, Libertà di prestazione dei servizi legali, interessi degli utenti e compiti del legislatore nazionale, Rassegna forense (1996) 247; L. Daniele, supra (note 21) 183.; M. Condinanzi, supra (note 21).

156 See Case 63/86, Commission v Italy [1988] ECR 29 and Case 305/87 Commis-sion v Greece [1989] ECR 1461. The first judgment declared that Italian legisla-tion reserving to Italian citizens only the right to own or rent accommodation built using public funding was contrary to Community law. The second judgment declared that Greek legislation prohibiting foreign nationals from buying prop-erty in border areas was incompatible with Community law. By the same token, national rules requiring only foreigners (including Community nationals) to obtain an authorisation from the local prefect in order to purchase property in areas of military interest were incompatible with the rules on the supply of services: see Case C-423/98 Albore [2000] ECR I-5965.

157 The ban on acquiring permanent infrastructure in Italy was imposed by Italian legislation also for architects established in other Member States operating under freedom to supply services: the relevant provision was held to be incompatible

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the provider from equipping himself or herself with infrastructure, subject to the limitation that the infrastructure must be necessary for the purposes of the provision of the service in the sense that the office or chambers must be essen-tial for the pursuit of the service-provider’s activities. From an eminently prac-tical point of view, a service-provider equipped with infrastructure may give rise to difficulties in border-line cases. Suffice it to consider the subtle demar-cation between a professional person who has a main establishment in one Member State and a secondary establishment in another (Klopp158) and who will therefore be bound to move between them more or less frequently and a professional who, being established in one Member State, has infrastructure to provide services in another Member State, possibly not only sporadically.159

Recently, still with regard to the rules on practising a legal profession under the service-provision regime, the Court of Justice has held that although a national rule laying down a ceiling for the recoverable costs of a lawyer estab-lished in another Member State of the amount allowed to a lawyer established in the Member State of the forum is liable to make the transborder provision of legal services less attractive, it is nonetheless compatible with Art. 49 for rea-sons connected with the protection of the party initiating proceedings, whose costs must be “foreseeable” on grounds of legal certainty.160 Recovery of the costs of a lawyer operating under the service-provision regime must therefore be determined in accordance with the rules of the forum State. In this way, the Court of Justice seems, in the specific area of the provision of legal services, to have introduced, as a requirement of general interest justifying restrictive measures, protection of the foreseeability of costs for unsuccessful parties in proceedings where the party bringing the proceedings has chosen to avail him-self (also) of an unestablished lawyer operating under the service-provision regime.

with Art. 59 of the Treaty (see Case C-298/99 Commission v Italy [2002] ECR I-3129, paras 54-57).

158 Case 107/83 Klopp [1984] ECR 2971.159 From this point of view, the Italian Government’s defence in the infringement

proceedings brought by the Commission in respect of Art. 2(2) of Law No 31 of 1982, which was still in force, seemed arguable in so far as the provision was justified by the intention to prevent evasions of freedom of establishment: see C-298/99 Commission v Italy [2002] ECR I-3129, paras 20-23. Indeed, it may be considered that the Italian Government’s argument was not completely rejected in so far as it was the general prohibition on creating infrastructure that was held to be incompatible with Art. 59 EC, which leaves open the possibility of working out more limited bans capable of prohibiting only those structures which in actual fact cloak an establishment.

160 See Case C-289/02 Amok [2003] ECR I-15059, para. 30.

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Within the limits of that requirement of protection, the Court of Justice seems to consider compatible with Community law national legislation laying down absolute (maximum) thresholds for lawyers’ fees, whose legality, also from the point of view of freedom to supply services, has recently been called in question.161

The fragmentation of the forms in which person practising a legal profes-sion may pursue his or her activity in another Member State is accentuated by the diversified forms of establishment permitted by Directive 98/5/EC on the right of establishment for lawyers.162 Indeed, that directive, which is designed to facilitate the establishment of EC lawyers even above and beyond the mecha-nism of recognition of diplomas within the meaning of Directive 89/48/EEC,163 provides substantially for two sets of rules on establishment.

According to the first formula, a lawyer may, as from when he first sets himself or herself up, practise on a stable basis in the host Member State, but in an attenuated form which does not guarantee him or her full, effective auton-omy in pursuing his or her activity. Indeed, the lawyer must use his or her own professional title and, when representing a client in legal proceedings, the Member States may require him or her to work “in conjunction with” a lawyer entitled to practise before the court seised. These are limitations which Directive 77/249/EEC allowed Member States to impose on lawyers practising under the service-provision regime and which are now imposed on lawyers exercising the right of establishment. The second formula is accessible only after three years of “effective and regular” activity (see Directive 98/5/EC, Art. 10) in the host State as regards the law of that State: in that case, a lawyer practising using the title of his or her State of provenance will be permitted to practise as a lawyer of the host Member State.

161 The fact that Italian legal scale fees cannot be derogated from has been reviewed by the Court of Justice with regard to its compatibility with anti-trust law and, in particular Arts 3, 10 and 81 EC (see Case C-35/99 Arduino [2002] ECR I-1529). In the Cipolla case (Cases C-94/04 and C-202/04 Cipolla and Macrino [2006] ECR I-11421 not yet published in the ECR), instead, the Court excluded that “a scale fixing a minimum fee from which there can generally be no derogation” might clash with the regulations on competition. On the contrary, a minimum binding fee is an obstacle to freedom to provide services, even though it may be justified by imperative reasons of general interest, in particular for the safeguard of clients and a sound administration of justice, and provided that those interests are not prop-erly protected by lawyers’ professional rules on matters concerning organisation, qualifications, professional ethics, supervision and liability.

162 Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained, OJ L 77, 14/3/1998. For the directive and its implementation in Italy, see Ch III, para. 17.

163 See Ch. III, part 16.

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Overall, between the more typical figure of the lawyer acting under the service-provision regime and the figure of the fully established lawyer, there are intermediate cases ranging from the service-provider with infrastructure and the lawyer with a secondary establishment to the lawyer under the “attenu-ated” or “non-assimilated” regime within the meaning of Art. 4 of the new directive. The diversification of possible forms makes for greater flexibility and hence for greater responsiveness of the Community system to the reality of the integration of lawyers. On the other hand, the fragmented nature of the possible forms worsens the risk of abuse and of cases falling outside the control of the rules of the country of establishment, thereby causing possible damage to the interest of recipients of legal services, something which the Court of Justice has stated it wished to avoid.164 However, these are occasional shortcomings as compared with the higher rate of free movement of professionals, which should be amply offset by the resulting better integration. Nevertheless, they evidence a degree of insufficiency or inadequacy of the traditional categories of free movement of self-employed persons afforded by the Treaty to a Europe which is now integrated to a high degree but also needful of new formulas.

IV.17 Services in the Treaty establishing a Constitution for EuropeThe deeply innovative value shown in some respects by the Treaty establishing a Constitution for Europe165 does not apply, as has already been observed,166 as regards the present rules of the EC Treaty on the free movement of persons, probably on account of the not strictly “constitutional” scope of those rules, in common with those on the internal market.

As far as services are concerned, they are governed by Arts III-144 to III-150. Apart from a few formal167 or little more than formal168 changes, the most obvious change is to be found in the title of the subsection. Whereas the present Chapter 3 is headed “Services”, the relevant subsection of the Constitutional Treaty reads “Freedom to provide services”, with the result that the rules on services, at least from the point of view of their title, are consistent with the other forms of free movement of persons. However, in the absence of any sub-

164 Case 292/86 Gullung [1988] ECR 111.165 OJ C 310, 16/12/2004.166 For references, see Ch. II, part 14.167 The terms “Union” and “State”, respectively, replace the terms “Community” and

“country”.168 Art. III-148 provides that “The Member States shall endeavour to undertake liber-

alisation of services beyond the extent required by the European framework laws adopted pursuant to Article III-147(1), if their general economic situation and the situation of the economic sector concerned so permit”. The present Art. 53 EC uses the more anodyne formula according to which the Member States “declare their readiness to undertake the liberalisation of services beyond the extent required”.

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stantial changes, services will continue to be governed as far as some aspects are concerned by models derived from the rules on free movement of goods.

Beyond that which has been just observed, the Constitution reproduces exactly Arts 49 to 55 EC without in any way widening the area of liberalisation: service-providers who are nationals of third countries and established in the Community do not qualify for freedom to provide services, unless a legislative act of the Union (a European law or framework law) provides for an extension of the relevant rules.

Chapter V Immigration Policy

V.1 Historical development of Community immigration policy: the original EEC Treaty

In the initial version of the Treaty of Rome there were no provisions confer-ring competence on the Community institutions in matters of immigration. Freedom of movement of persons, the objective laid down in Article 3(c) (and further developed in Articles 48 to 66 of the EEC Treaty) made use of generic terms capable, in theory, of including nationals of third countries, but in reality the provision was intended from the beginning to cover only nationals of the Member States. Moreover, both Article 52 EEC concerning freedom of estab-lishment and Article 59 EEC on freedom to provide services referred expressly to citizens of the Member States, and whilst Article 48 EEC on the freedom of movement of workers was more ambiguous in that it contained no mention of nationality it was quickly interpreted in similar fashion, both by the institutions and in legal writing.

Nevertheless, a reference to nationals of third countries was contained in the second paragraph of Article 59 EEC, according to which the Council might extend the rules to nationals of third countries who provide services, so long as they are established within the Community. That option, however, was never exercised.

On a closer reading of the Treaty, however, it becomes apparent that citizens of third countries were entitled to benefit from some aspects of the common market. First of all, the freedom of movement of goods applied to goods of Community origin or in free circulation regardless of the nationality of the economic operator who sought to rely on that freedom. The freedom to provide services involved the elimination of any discrimination based on the nationality or residence of the provider of those services. Thus, the provider of services was entitled to offer his services to anyone, including nationals of third countries, so long as they resided within the Community. The nationality of the recipient of services was irrelevant to the avoidance of discrimination against

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the provider of services.1 Lastly, the rules on the free movement of capital were designed to apply to capital held by persons resident in one or other Member State, regardless of their nationality.2 It emerges from this brief overview that nationals of third countries were entitled to claim certain rights deriving from Community law, but lacked a complete, structured system of rules governing their status. Instead, the system was fragmentary, varying according to the Member State of residence. The distinction between citizens of the Member States, who benefited from the regime laid down in Community law, and citi-zens of third countries, subject to national law, was thus in evidence from the beginning.

Moreover, in the early days of the Community, foreign manual labour came mainly from other Member States, and notably Italy. Only later on, from the 1970s onwards, did immigration from third countries become significant. This fact explains why attention and interest were focussed on eliminating obstacles to the free movement of Community workers, while the Member States remained free to govern the treatment of nationals of third countries, too minor a phenomenon to be of any importance.

A special place among non-Community foreigners has always been accorded to refugees, by reason of the protection that the Member States have undertaken to offer them in international agreements. Whilst refugees did not enjoy freedom of movement, the Member States undertook to examine particu-larly favourably the question of the admission into their territory of refugees residing in another Member State for the purpose of their gaining access to employment.3 Similar reasons underlie the fact that the benefit of the system of coordination of social security regimes in the Member State instituted by

1 See, to that effect, U. Draetta, Articolo 59, in R. Monaco, R. Quadri, A. Trabucchi (eds) Trattato istitutivo della Comunità economica europea. Commentario (Giuf-frè, Milano, 1965) vol. I, 471. Case-law has nevertheless focussed upon the posi-tion of the recipient of services so as to extend the scope of application of the freedom of movement of persons beyond the categories specifically provided for. Those who travel to another Member State in order to study or for medical treat-ment have been held to enjoy the right (Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377) as have tourists (Case 186/87 Cowan [1989] ECR 195). That extension of scope is, however, linked to nationality in that the beneficiaries were citizens of a Member State. See also Chapter I. There is no case-law on non-nationals of Member States claiming the right of free movement as recipients of services.

2 For a case where the rules on the free movement of capital were relied upon by nationals of third countries resident in the Community, see Case C-484/93 Svens-son and Gustavsson [1995] ECR I-3955.

3 See Declaration No 64/305/EEC of 25 March 1964 by representatives of the gov-ernments of the Member States of the EEC, meeting within the Council, concern-ing refugees (no English version available).

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Regulation (EEC) No 1408/71 extended, from the beginning, to stateless per-sons and refugees.4

In the early 1970s the immigration landscape changed. Nowadays a con-siderable proportion of immigrants came from third countries. As mentioned, it was national law, not Community law, that applied to these immigrants. However, the fact that immigrants met with the same problems when trying to integrate into a host State regardless of their nationality led the Commis-sion to adopt a single approach to the issue, knowing that differentiated treat-ment might worsen the overall standard of living and working conditions in the Community and thus tend to frustrate the objective set out in former Article 117 EEC.5 Two courses of action were proposed, to which the institutions were to remain broadly faithful over the years. First, improvement of the treatment of non-Community workers employed in the Member States, both as regards the employment system and, more generally, as regards integrating the employee and his family in the host country;6 secondly, a degree of coordination in the fight against illegal immigration. A comprehensive immigration policy, how-ever, remained no more than a wish.

As regards the first course of action, the Commission regarded it as a pri-ority to extend the Community social assistance regime to workers from third countries.7 It is interesting to note, however, that full extension of the scope of Regulation (EEC) No 1408/71 to non-Community workers, though long-awaited, did not occur until 2003.8

4 See Regulation (EEC) No 1408/71 of 14 June 1971 (OJ, English Special Edition, 1971(II) 416): Article 2 (“Persons covered”): “1. This Regulation shall apply to workers who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless per-sons or refugees residing within the territory of one of the Member States, as also to the members of their families and their survivors” (our italics).

5 The original version of Article 117 read: “Member States agree upon the need to promote improved working conditions and an improved standard of living for workers, so as to make possible their harmonisation while the improvement is being maintained. They believe that such a development will ensue not only from the functioning of the common market, which will favour the harmonisation of social systems, but also from the procedures provided for in this Treaty and from the approximation of provisions laid down by law, regulation or administrative action.”

6 See the Action programme for migrant workers and their families, presented by the Commission to the Council on 18 December 1974, in EEC Bull. 1976, supple-ment no 3, and the Council resolution of 9 February 1976 on an action programme for migrant workers and members of their families (OJ C 34, 14/2/1976, 2).

7 See 18 of the Action programme for migrant workers and their families.8 See Council Regulation (EC) No 859/2003 of 14 May 2003 extending the pro-

visions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to

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As regards the second course of action, in 1978 the Commission presented a proposal for a directive concerning the approximation of the legislation of the Member States, in order to combat illegal migration and illegal employment.9 This proposal was never followed up. Its legal basis was former Article 100 EEC (now Article 94 EC), which concerns the approximation of national legis-lation necessary to achieve the objective set out in Article 117 EEC.

It was the competences which the Treaty assigned to the Commission in the sphere of social policy that were used in the attempt to lay down the beginnings of a Community immigration policy. With Decision 85/381/EEC10 the Commission imposed upon the Member States a duty of communication and consultation regarding their migration policies: each Member State was required to communicate to the Commission drafts of laws, administrative acts and international agreements relating to the entry, residence and treatment of third country nationals (Article 1) so as to enable a consultation the aim of which would be, amongst other things, “to examine the possibility of mea-sures, which might be taken by the Community or Member States in the fields referred to in Article 1, aimed at achieving progress towards a harmonisation of national legislation on foreigners, promoting the inclusion of a maximum of common provisions in bilateral agreements.” The decision was, however, challenged by five Member States and annulled by the Court of Justice on the ground that it exceeded the scope of the powers conferred on the Commission by Article 118 EEC, its legal basis.11 The annulled decision was replaced by an act of precisely the same content, albeit purged of the excess of powers found

nationals of third countries who are not already covered by those provisions solely on the ground of their nationality (OJ L 124, 20/5/2003, 1).

9 OJ C 97, 22/4/1978, 9. In its paper on guidelines for a Community immigration policy (COM(1985)48, in Bull. EEC, 1985, supplement 9, 11), the Commission emphasised the validity of the objectives of the proposal.

10 Commission Decision 85/381/EEC of 8 July 1985 setting up a prior communica-tion and consultation procedure on migration policies in relation to non-member countries (OJ L 217, 14/8/1985, 25). The decision identifies Article 118 EEC as its legal basis.

11 Joined Cases 281, 283, 284, 285 and 287/85 Germany and Others v Commission [1987] ECR 3203.

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by the Court of Justice.12 However, it is not apparent that there was any follow up to that decision.13

Whilst it cannot be excluded that Article 100 EEC might have provided the legal basis for a Community policy on immigration14 the adoption of rules in the area was in fact left to the competence of the Member States.15

V.2 The Single European Act, the Schengen Agreement and intergovernmental cooperation

The demand for a Community immigration policy arose most strongly with the project to establish the internal market as an area without borders in which the free movement of goods, persons, services and capital would be guaranteed.16 The abolition of controls at the internal borders of the Community presup-posed a strengthening of controls at the external borders that separate the Com-munity from third countries, and from this fact arose the need for common policies on visas, asylum and the status of refugees. Had it been otherwise, those Member States with a more favourable immigration policy, or in which controls were more lax, would be at risk of attracting a considerable influx of people who, anticipating the possibilities offered by the internal market, might go on to countries where they had a real interest and thus circumvent their more stringent legislation. To this end, then, in its white paper on completing the internal market,17 the Commission set out a schedule for the submission of pro-posals, inter alia, on asylum and on the conditions applicable to third country nationals. The programme never got underway, however, and the institutions thus accepted that the Member States should instead develop various forms of

12 Commission Decision No 88/384/EEC of 8 June 1988 (OJ L 183, 14/7/1988, 35). This decision is identical to the preceding one except that it omits the reference in the third recital to cultural integration and deletes Article 3(b), which laid down an obligation upon Member States not to adopt measures inconsistent with Com-munity law.

13 It can be gleaned from the Commission’s reply to written question no 1863/90 submitted by F. Speroni that Italy communicated the so called Martelli law, but that no Member State called for consultation (OJ C 115, 29/4/1991, 11).

14 See A. Adinolfi, I lavoratori extracomunitari. Norme interne e internazionali (Il Mulino, Bologna, 1992) 450 ff.

15 See the Council resolution of 16 July 1985 (OJ C 186, 26/7/1985, 3); Commission Communication COM(1985)48, supra (note 9).

16 As we know, the project to establish the internal market, as a means of giving new impetus to Community integration, was achieved by way of the Single European Act, which brought to fruition, in the form of a revision of the original Treaty, the proposal drawn up by the Commission in its white paper COM(1985)310 of 14 June 1985.

17 COM(1985)310, para. 55.

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intergovernmental cooperation. Indeed, in the statements annexed to the Single European Act, the Member States, whilst claiming for themselves competence in the management of immigration,18 declared themselves ready to develop forms of cooperation in the area.19

Linking immigration with the abolition of internal border controls gives rise to a need to avoid the unwanted effects produced by freedom of movement and implies that only those aspects of the phenomenon which are instrumental in the establishment of the internal market should be considered a worthy sub-ject of cooperative efforts. Put another way, only the fight against illegal immi-gration is of sufficient dimension and impact to warrant consultation between the Member States. Furthermore, and in the same vein, immigration can pose a threat, like criminality and terrorism, yet to pair controls on illegal immigration with the repression of criminality and terrorism characterises the phenomenon in rather too negative terms.

The Member States wished to maintain their own competences to as great an extent as possible and to cede to the institutions, or deal with by way of cooperation, only the bare minimum needed to achieve their predetermined objective. Only the negative aspects of immigration, and thus illegal immi-gration, satisfied this criterion and that is why it remains difficult even today to delineate an immigration policy that is anything other than a reaction to unwanted effects or that brings about effective harmonisation of national laws through the adoption of common rules on all relevant aspects.

Whilst the Member States were favourably disposed to cooperation, they were not motivated by the same interests. This circumstance led a group of them (Belgium, France, Germany, Luxembourg and the Netherlands) to conclude an agreement on the measures necessary to guarantee freedom of movement of persons that was quite outside any Community framework.20 The Schengen Agreement and its implementing convention do not lay down any complete system of rules on the entry and residence of third country nationals, but merely

18 See General Declaration no 6 on Articles 13 to 19 of the Single European Act (concerning the internal market): “Nothing in these provisions shall affect the right of Member States to take such measures as they consider necessary for the purpose of controlling immigration from third countries, and to combat terrorism, crime, the traffic in drugs and illicit trading in works of art and antiques.”

19 See the Political Declaration by the governments of the Member States on the free movement of persons: “In order to promote the free movement of persons, the Member States shall cooperate, without prejudice to the powers of the Com-munity, in particular as regards the entry, movement and residence of nationals of third countries. They shall also cooperate in the combating of terrorism, crime, the traffic in drugs and illicit trading in works of art and antiques.”

20 Schengen Agreement of 14 June 1985 on the gradual abolition of checks at the common borders and the Convention implementing the agreement of 19 June 1990. For references see, in particular, note 24.

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set down some common rules which contribute to the elimination of controls at the internal borders.

In particular, they provide that external borders may only be crossed at appropriate crossing points and that controls on people crossing must be car-ried out in accordance with strictly defined procedures. Third country nationals must in general be in possession of a visa entitling them to enter one of the Schengen area states. A special uniform visa is provided for in the case of short-term stays of up to three months upon satisfaction of the conditions set out in Article 5 of the convention. By contrast, it is for the states party to the agree-ment to define the conditions for the issue of permits for stays of longer than three months. Holders of a uniform visa (and exempted aliens) and holders of a residence permit enjoy limited freedom of movement in all the other Schengen area states. The limitations relate to the length of any stay, which may be of no more than three months’ duration, and its purpose, access to employment being precluded unless the person concerned satisfies the particular conditions laid down by the legislation of the host state.

Among the reasons which may preclude the issue of a uniform visa or a residence permit is an alert for the purposes of refusing entry.21 Under Article 96 of the convention, the alert must result from a decision taken by a competent administrative authority or court “based on a threat to public policy or public security or to national security which the presence of an alien in national ter-ritory may pose”. This may arise where the alien has been convicted of an offence entailing a custodial sentence of at least one year, or where “there are serious grounds for believing that he has committed serious criminal offences, including [drug trafficking] or in respect of whom there is clear evidence of an intention to commit such offences in the territory of a Contracting Party" or where he has been the subject of a prohibition on residence "based on a failure to comply with national regulations on the entry or residence of aliens."

A person against whom an alert has been issued may still be issued with a visa or residence permit, but this will depend upon the existence of particular interests worthy of protection and will exclude the benefit of freedom to move within the Schengen area.

The executive committee established by the Schengen Agreement was given competence to adopt binding decisions for the purpose of implementing the agreement and has produced a considerable body of texts albeit in a fashion that was neither transparent nor democratic and involved neither publication nor consultation of or notification to national parliaments.22 Of relevance here,

21 The convention implementing the Schengen agreement instituted a database, called the Schengen Information System, or SIS, which contains information rel-evant to the policing of borders and police cooperation.

22 As far as concerns the control exercised by the Italian parliament over the Schen-gen regime, see B. Nascimbene, L’incorporazione degli accordi di Schengen nel

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numerous decisions were adopted concerning the practical arrangements for the issue of visas.

Notwithstanding the limited scope of the agreement to establish a common immigration policy, the agreement and convention are of prime importance in that they provided a forum in which certain states were able to achieve at least the beginnings of a cooperation which they had failed to achieve in a Com-munity context.

The success of the agreement is evidenced by the fact that, over subse-quent years and before its “communitarization”, all the Member States of EU-15, with the exception of the United Kingdom and Ireland, joined the Schengen area.23 It has thus been regarded as a testing ground where first some states have found solutions which, once proved, others have then adopted.

Meanwhile, among the various fora for cooperation open to all Member States, one which took on significant importance is the ad hoc group on immi-gration instituted in October 1986 with the remit of studying measures in the domain.24 The work of the group led to the drafting of two conventions, one on the determination of the state responsible for examining applications for asylum,25 the other on the crossing of external borders.26

quadro dell’Unione europea e il futuro ruolo del Comitato parlamentare di con-trollo, Rivista italiana di diritto pubblico comunitario (1999) 731 ff.

23 The accession of other Member States to the Schengen agreements was by way of protocols signed with Italy (Paris, 27 November 1990), Spain and Portugal (Bonn, 25 June 1991), Greece (Madrid, 6 November 1992), Austria (Brussels, 28 April 1995) and Denmark, Finland and Sweden (Luxembourg, 19 December 1996).

24 See J.J.E. Schutte, Schengen: Its meaning for the free movement of persons in Europe, C.M.L. Rev. (1991) 549 ff.; D. O’Keeffe, The free movement of persons and the single market, E. L. Rev. (1992) 3 ff.; D. O’Keeffe, The emergence of a European immigration policy, E. L. Rev. (1995) 20 ff.; M. Pastore, La coo-perazione intergovernativa nei settori dell’asilo e della sicurezza interna, in B. Nascimbene (ed.), Da Schengen a Maastricht: apertura delle frontiere, coopera-zione giudiziaria e di polizia (Giuffrè, Milano, 1995) 3 ff.; M.G. Garbagnati, La cooperazione in materia di immigrazione ed asilo, in N. Parisi, D. Rinoldi (eds), Giustizia e affari interni nell’Unione europea. Il “terzo pilastro” del Trattato di Maastricht (Giappichelli, Torino, 1996) 59 ff.; L. Manca, L’immigrazione nel diritto dell’Unione europea (Giuffrè, Milano, 2003) 39 ff.

25 Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (signed in Dublin on 15 June 1990, OJ C 254, 19/8/1997, 1) which came into force on 1 September 1997.

26 This convention was never signed because of the controversy which arose between Spain and the United Kingdom concerning Gibraltar. See the Presidency Conclu-sions of the European Council held in Maastricht on 9 and 10 December 1991 in EEC Bull. 12/91, 9.

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Insofar as concerns the treatment reserved to third country nationals legally employed in Member States, a further missed opportunity was the Community Charter of Fundamental Rights for Workers.27 At draft stage, the charter was to have applied to all workers legally employed within the Community, regardless of their nationality, but the final approved version applied only to Community workers, the preamble merely stating: “it is for Member States to guarantee that workers from non-member countries and members of their families who are legally resident in a Member State of the European Community are able to enjoy, as regards their working and living conditions, treatment comparable to that enjoyed by workers who are nationals of the Member State concerned”.28

The difficulties inherent in drawing up a common set of rules, at least insofar as concerns the limited domains regarded as indispensable to the estab-lishment of the internal market, made it impossible in practice to achieve free movement of persons.

That conclusion is expressed emblematically in a judgment of the Court of Justice.29 The question before the Court was whether the achievement of the internal market and the consequent abolition of borders between Member States meant that it was unlawful for national authorities to check identity documents on the entry into a Member State of a person coming from another Member State. The court held that that was not unlawful since only Community nationals were entitled to the benefit of free movement and the inspection of documents was necessary in order to determine the nationality of persons so entering. Only if a common immigration policy were to be established, with common rules on visas and the conditions of entry and residence, might it be unlawful to require those crossing internal borders to present evidence of their nationality.

V.3 The Maastricht TreatyThe adoption of the Maastricht Treaty signalled the first significant develop-ment in the area. The Treaty not only altered − radically, albeit in areas other than immigration policy − the Treaty of Rome, but also established the Euro-pean Union, "founded on the European Communities, supplemented by the policies and forms of cooperation established by this Treaty" (Article A EU).

Insofar as is relevant in the present context, the European Community was given a new objective (Article 3(d) of the new EC Treaty: "measures concern-

27 Approved by 11 (without the United Kingdom) by the European Council held in Strasbourg on 9 December 1989.

28 See, on this point, A. Adinolfi, supra (note 14) 276 ff.; B. Nascimbene, Libertà di circolazione delle persone, diritti dei cittadini dell’Unione e dei paesi terzi, in B. Nascimbene (ed.), supra (note 24) 100 ff.

29 Case C-387/97 Wijsenbeek [1999] ECR I-6207.

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ing the entry and movement of persons in the internal market as provided for in Article 100c") and new competence in establishing the list of third countries whose citizens must be in possession of a visa in order to enter the Community for short stays30 and as regards a uniform visa format.31 The new competence was extremely limited since, as the Court of Justice held, it applied “only to visas which permit their holders to cross the external borders of a Member State at such crossing points in order to stay or travel in the internal market during the period and subject to the conditions prescribed by the visas”.32 For this reason, airport transit visas, required to nationals of certain third countries and necessary for a stay in the international area of an airport because they help prevent or reduce illegal immigration, could not, as the Commission main-tained, be included under the provisions of Article 100c. Also outside the scope of that provision were the conditions for the issue of short-stay visas.

Furthermore, the protocol on social policy annexed to the Treaty (no 14) provided that the Member States, with the exception of the United Kingdom, were entitled to have recourse to the Community institutions in order to give effect to the objectives set out in the 1989 Social Charter and to that end had concluded the agreement annexed to the protocol. In accordance with Article 2(3) of that agreement, the Council was entitled to adopt unanimously on a proposal from the Commission, after consulting the European Parliament and the Economic and Social Committee, provisions in the area of “conditions of employment for third-country nationals legally residing in Community terri-tory”, albeit that no such decision was ever adopted.

But far more significant was the attribution to the Union of competence in the matter of immigration. Title IV of the Treaty on European Union, devoted to justice and home affairs, the so-called third pillar, lays down rules for inter-governmental cooperation between the Member States relating to various areas of common interest,33 including “immigration policy and policy regarding

30 See Council Regulation (EC) No 2317/95 of 25 September 1995 determining the third countries whose nationals must be in possession of visas when crossing the external borders of the Member States (OJ L 234, 3/10/1995, 1). The Commission periodically establishes the lists of third countries whose nationals are not required to have visas in all the Member States. The regulation was replaced by Council Regulation (EC) No 539/2001 of 15 March 2001 (OJ L 81, 21/3/2001, 1).

31 Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform visa format (OJ L 164, 14/7/1995, 1), amended by Council Regulation (EC) No 334/2002 of 18 February 2002 (OJ L 53, 23/2/2002, 7).

32 Case C-170/96 Commission v Council [1999] ECR I-2763, para. 24. On the ruling, see, in particular, the note of A. Oliveira, C.M.L. Rev. (1999) 149 ff.

33 On the third pillar of the European Union, see R. Adam, La cooperazione nel campo della giustizia e degli affari interni da Schengen a Maastricht, Rivista di diritto europeo (1994) 225 ff.; N. Parisi and D. Rinoldi (eds), supra (note 24); A. Tizzano, Brevi note sul “terzo pilastro” del Trattato di Maastricht, Diritto

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nationals of third countries: (a) conditions of entry and movement by nationals of third countries on the territory of Member States; (b) conditions of residence by nationals of third countries on the territory of Member States, including family reunion and access to employment; (c) combating unauthorised immi-gration, residence and work by nationals of third countries on the territory of Member States”.34

A distinction was made in Article K(1) between asylum policy, policy regarding the crossing of external borders (short-stay visas and checks on per-sons) and immigration policy. It was a distinction that would be maintained.

In the areas of common interest the Member States were to consult within the Council. The Council, assisted by a coordinating committee (the so-called K(4) Committee), was entitled to adopt, unanimously, common positions, common actions and draft conventions, all requiring ratification by the Member States before their entry into force. These measures were atypical, unlike Com-munity acts and of uncertain legal status. The procedure for their adoption too was unusual: not only must the Council act unanimously, but also the Com-mission shared its right of initiative with the Member States, the European Parliament was not to be consulted, merely informed of the work carried out, and there was no provision for review by the Court of Justice. This meant that there was no reviewing authority to ensure that the Member States correctly put into practice the undertakings they gave and any inconsistency would be solely of political relevance. In order to make good that lacuna and to set up alterna-tive forms of review, the Council decided to send out questionnaires relating to actions taken by the Member States under immigration measures, to store the information garnered at its Secretariat General and to draft reports.35

dell’Unione europea (1996) 361 ff.; A. Lang and B. Nascimbene, Italy’s Partici-pation in EU Immigration and Asylum Policy, The International Spectator (1997) 45 ff.; E. Guild, Immigration Law in the European Community (Kluwer Law Inter-national, The Hague, London, Boston, 2001) 256 ff.; L. Manca, supra (note 24) 55 ff.

34 Article K(1)(3). The other areas of common interest were: “1. asylum policy; 2. rules governing the crossing by persons of the external borders of the Member States and the exercise of controls thereon; 3. (omissis) 4. combating drug addic-tion insofar as this is not covered by 7 to 9; 5. combating fraud on an international scale insofar as this is not covered by 7 to 9; 6. judicial cooperation in civil mat-ters; 7. judicial cooperation in criminal matters; 8. customs cooperation; 9. police cooperation for the purposes of preventing and combating terrorism, unlawful drug trafficking and other serious forms of international crime, including if neces-sary certain aspects of customs cooperation, in connection with the organisation of a Union-wide system for exchanging information within a European Police Office (Europol).”

35 See the Council Decision of 22 December 1995 on monitoring the implementation of instruments already adopted concerning admission of third-country nationals

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Article K(9) gave the Council power to decide, unanimously and subject to ratification by the Member States, to “communitarise” some of the areas of common interest, including immigration policy. However, the opportu-nity which that provision gave of removing immigration from the sphere of intergovernmental cooperation and making it subject to Article 100c and the Community method laid down therein was never taken. The significance of the institutionalisation of intergovernmental cooperation, which hitherto had been carried on outside any predetermined framework and often opaquely, should not be overlooked. Nevertheless, the results achieved were only modest. Whilst numerous acts were adopted, many of them were of no legal value,36 a fact which bears witness to the continuing differences of views between the Member States.

Sadly, the Treaty took no account of the Schengen agreement. Article K(7) merely providing, in very general terms, that nothing in the Treaty prevented “the establishment or development of closer cooperation between two or more Member States insofar as such cooperation does not conflict with, or impede, that provided for in this Title.” Notwithstanding that vague wording, the dif-ficulties encountered in such cooperation were such as to hinder and weaken to some extent the competences conferred by the Treaty of Maastricht.

(OJ C 11, 16/1/1996, 1), the Council Decision of 16 December 1996 on monitor-ing the implementation of instruments adopted by the Council concerning illegal immigration, readmission, the unlawful employment of third country nationals and cooperation in the implementation of expulsion orders (OJ L 342, 31/12/1996, 5) (note that, whilst the two decisions have virtually the same content, the first was published in the C series and the second in the L series of the Official Journal). See also the Council Conclusions of 30 November 1994 on the organisation and devel-opment of the Centre for Information, Discussion and Exchange on the Crossing of Frontiers and Immigration (Cirefi) (OJ, C 274, 19/9/1996, 50), with particular reference to the prevention of illegal immigration.

36 A list of the acts adopted under the third pillar may be found in A. Tizzano, Codice dell’Unione europea (Cedam, Padova, 3rd ed., 2002) 451 ff. For a discussion of the decisions taken and proposals made by the institutions, see J.D.M. Steenbergen, All the Kings’s Horses ... Probabilities and Possibilities for the Implementation of the New Title IV EC Treaty, Eur. J. Migration and Law (1999) 29 ff.; P.J. Kujiper, Some Legal Problems Associated with the Communitarization of Policy of visas, Asylum and Immigration under the Amsterdam Treaty and Incorporation of the Schengen Acquis, C.M.L. Rev. (2000); S. Peers, Key Legislative Developments on Migration in the European Union, Eur. J. of Migration and Law (2001) 231 ff.; B. Nascimbene, E.M. Mafrolla, Recenti sviluppi della politica comunitaria in materia di immigrazione e asilo, Diritto immigrazione e cittadinanza (2002) 13 ff.

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V.4 The Treaty of Amsterdam and the Treaty of NiceThe Copernican Revolution came about with the Treaty of Amsterdam (which was only slightly amended by the Treaty of Nice) when the present framework was laid down. Immigration policy was communitarised,37 even if the rules of the game and the institutional balance of power were not the same as with the so-called Community method and indeed showed some anomalies.

In particular, in the new Title IV of the Treaty of Rome, entitled “Visas, asylum, immigration and other policies related to free movement of persons”, Article 63 conferred competence on the Council to adopt “measures on immi-gration policy within the following areas (a) conditions of entry and residence, and standards on procedures for the issue by Member States of long term visas and residence permits, including those for the purpose of family reunion, (b) illegal immigration and illegal residence, including repatriation of illegal residents” and also “measures defining the rights and conditions under which nationals of third countries who are legally resident in a Member State may reside in other Member States.”

Article 63 must be read together with the fourth indent of Article 137(3), which sets out the principles enshrined in the protocol on the Social Charter38 and which, solely with regard to the conditions of employment for third-country nationals legally residing in Community territory, constitutes a special rule.

Competence with regard to illegal immigration and residence, including repatriation, was to be exercised within five years of the Treaty’s entry into force.39 Now that that term has expired without any complete policy having

37 The “communitarisation” came about by way of revision of the Treaty, rather than through the simplified procedure referred to in Article K(9) EU. On the new com-petence, see, generally, H. Labayle, Un espace de liberté, de sécurité et de justice, Revue trimestrielle de droit européen (1997) 813 ff.; B. Nascimbene, L’Unione europea e i diritti dei cittadini dei Paesi terzi, Diritto dell’Unione europea (1998) 511 ff.; K. Hailbronner, The Treaty of Amsterdam and Migration Law, Eur. J. Migration and Law (1999) 9 ff.; P.J. Kujiper, supra (note 36) 345 ff.; E. Guild, supra (note 33) 256 ff.; A. Lang, La politica comunitaria in materia di immi-grazione, Diritto pubblico comparato ed europeo (2003) 698 ff.; L. Manca, supra (note 24) 163 ff. Within Title VI of the Treaty on European Union there remain only police and judicial cooperation in criminal matters. Visa policy is governed by Article 62 EC, asylum policy by Article 63(1) and (2) EC, judicial cooperation in civil matters by Article 65 EC, administrative cooperation by Article 66 EC and customs cooperation by Article 135 EC.

38 Article 137 was amended by the Treaty of Nice as to its form, but not its content: the decision-making procedure will remain the same unless the Council decides otherwise.

39 That is, between 1 May 1999 and 30 April 2004. That time-limit applied to other provisions of Title IV of the EC Treaty, in particular Article 62, concerning rules on visas and controls at external borders, and asylum policy, referred to in Article

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been fully developed, a question arises as to what consequences might ensue from the fact that the competence was only partially exercised. In particular, might an action for failure to act be brought against the Council? The only prec-edent that might be relied upon40 suggests that such an action would be admis-sible. Indeed the Court has ruled that “for there to be a finding of failure to act ... it is necessary that the omission with which the Council or Commission is charged relates to measures the scope of which can be sufficiently defined for them to be identified individually and adopted in compliance with” Article 233 EC. If this is the case, the fact that a limited margin of discretion has been left to the institutions will not preclude a finding of failure to act.

Only the institutions and the Member States are in a position to bring an action for failure to act with any prospects of success. Individuals, who do not enjoy the same privileged position, would have to demonstrate that the act in question would have been addressed to them and whilst immigration policy certainly affects the interests and subjective position of a range of people, it cannot be said to be addressed to any particular individual, the test which the Court of Justice would be required to apply.41

In accordance with Article 67(1), during a transitional period of five years following the Treaty of Amsterdam’s entry into force, “the Council [was to] act unanimously on a proposal from the Commission or on the initiative of a Member State and after consulting the European Parliament".42 That is an atypical procedure, unlike the Community method in a number of respects. First of all, the vote in Council must be unanimous, as it must on questions that are particularly sensitive for the Member States, rather than by qualified

63(1) and (2), with the exception of measures for compensation between Member States admitting displaced persons and refugees and incurring consequences there-from.

40 Case 13/83 European Parliament v Council [1985] ECR 1513.41 On actions for failure to act, see, inter alia, G. Strozzi, Diritto dell’Unione euro-

pea. Parte istituzionale. Dal Trattato di Roma alla Costituzione europea (Giap-pichelli, Torino, 3rd ed., 2005) 320 ff.

42 The Treaty of Nice amended the procedure for the adoption of acts, but only with regard to asylum, in that, in derogation of Article 67(1) EC, Article 67(5) EC calls for the procedure under Article 251 for measures on asylum (Article 63(1)) and on minimum standards for giving temporary protection to displaced persons and for persons who otherwise need international protection (Article 63(2)(a)), but only on condition that “the Council has previously adopted [unanimously] Com-munity legislation defining the common rules and basic principles governing these issues." For a discussion of the amendments introduced by the Treaty of Nice men-tioned here, see the various contributions in A. Tizzano (ed.), Il Trattato di Nizza (Giuffrè, Milano, 2003) esp. A. Tizzano, Introduzione, at 6 and S. Bariatti, La cooperazione giudiziaria in materia civile dal terzo pilastro dell’Unione europea al Titolo IV del Trattato CE, 251 ff.

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majority, as in the case of most Treaty provisions; the role of the European Parliament is merely a consultative one, and furthermore the Commission’s exclusive right of legislative initiative is lost in part to the Member States.43 In short, it is a procedure following the principles that apply to the third pillar of the Treaty of Maastricht.

At the end of the five year transitional period the Commission regained its exclusive right of legislative initiative, even though it must continue to take into consideration requests put forward by the Member States.

Under the Treaty, even after the expiry of the five year period, the Council remained under an obligation to vote unanimously, unless it decided to adopt the codecision procedure for some or all of the matters falling under Title IV. In pursuance of this the Council resolved to follow the codecision procedure, from 1 January 2005 onwards, for the adoption of measures having as their legal basis Article 62(1) (measures with a view to ensuring the absence of any controls on persons when crossing internal borders) or Article 62(2)(b) (rules on visas for intended stays of no more than three months) or Article 62(3) (measures setting out the conditions under which nationals of third countries have the freedom to travel within the territory of the Member States during a period of no more than three months) or Article 63(2)(b) (measures promot-ing a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons) or Article 63(3)(b) (illegal immigration and illegal residence, including repatriation of illegal resi-dents).44

The role of the Court of Justice too is diminished under this Title: it has no jurisdiction to review measures relating to controls at internal borders carried out for reasons of public security or the safeguarding of internal security and its jurisdiction in giving preliminary rulings is limited to hearing references from courts of last resort.45 Lastly, it has an anomalous jurisdiction of a consultative-preliminary ruling nature, on an application from the Council, the Commission or a Member State.46

43 Normally, the Member State occupying the presidency of the Council will be par-ticularly active in making proposals.

44 Article 1 of Council Decision No 2004/927/EC of 22 December 2004 (OJ L 396, 31/12/2004, 45).

45 See Article 68(1). Of note, also, the Court itself has given a very narrow interpreta-tion of its jurisdiction, holding that it had no competence to hear a request from a national court of first instance in a case where the possibilities for challenging the national court’s ruling were severely limited, at least as a matter of fact: see the order in Case C-45/03 Dem’Yanenko [2004] (order not published).

46 B. Nascimbene, supra (note 37) 520. On the possible use of this procedure in a quasi-litigious fashion, see R. Adam, La cooperazione in materia di giustizia e affari interni tra comunitarizzazione e metodo intergovernativo, Diritto

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Finally, Title IV and the law derived from it do not apply to all Member States, the position of Denmark, Ireland and the United Kingdom being gov-erned by protocols.47

V.5 Bringing the Schengen acquis within the scope of the European Union

Whilst the Treaty of Amsterdam brought the Schengen Agreement within the scope of EU law, only thirteen of the then Member States were party to the agree-ment and the remaining two (the United Kingdom and Ireland) continued in their wish to remain outside. The solution alighted upon was to initiate enhanced coop-eration. Without following the provisions in the Treaty laid down for the purpose, ad hoc procedures were inserted into a protocol integrating the Schengen acquis into the framework of the European Union annexed to the Treaty of Amsterdam. All of the agreements and countless acts, binding and non-binding, adopted to implement them by the executive committee and the working parties set up by it were treated as enhanced cooperation in the matters falling under Title VI of the EU Treaty until such time as the Council was able to identify, by unanimous decision of the thirteen participating States and without consulting the European Parliament,48 the appropriate legal basis for each provision. Those legal bases were to be found in Title VI of the EU Treaty and Title IV of the EC Treaty.

By Decision 1999/435/EC49 the Council defined the Schengen acquis. It did so by compiling annexes listing the relevant acts. Annex A contained the provisions of the agreements and decisions for which a legal basis in the Treaty was identified;50 Annex B grouped together the provisions and decisions for which the Council found it unnecessary to identify a legal basis. The Council in fact interpreted the powers conferred on it by the protocol as allowing it not

dell’Unione europea (1998) 501 ff. On the competence of the Court of Justice under Article 68 EC, see also L. Garofalo, Sulla competenza a titolo pregiudiziale della Corte di giustizia secondo l’art. 68 del Trattato CE, Diritto dell’Unione europea (2000) 805 ff.; P. Pallaro, Politiche nazionali dell’immigrazione, diritti dei cittadini extra-comunitari e competenze pregiudiziali della Corte di giustizia: quali tutele offre il diritto comunitario?, Rivista italiana di diritto pubblico comu-nitario (2000) 329 ff. B. Nascimbene, Community Courts in the area of judicial cooperation, Int Comp. Law Quart., (2005) 490 ff.

47 See para. 9.48 The European Parliament expressed its disappointment at not being consulted or

even informed by the Council and expressed its intention to consider bringing an action for failure to consult. See its resolution on the Schengen acquis of 6 May 1999 (OJ C 279, 1/10/1999, 429).

49 Decision of 20 May 1999 (OJ L 176, 10/7/1999, 1).50 The part of the Schengen acquis contained in Annex A of Decision No 1999/435/

EC was subsequently published in OJ L 239, 22/9/2000, 1.

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to identify the legal basis for some or other provisions or decisions. Its reasons may be found in the recitals to the decision, which state: “Whereas the conclu-sion that for certain provisions of the Schengen acquis it is not necessary or appropriate for the Council to determine a legal basis in conformity with the relevant provisions of the Treaties may be justified on the following grounds: (a) the provision does not have any binding legal force, and a comparable pro-vision can be adopted by the Council only on the basis of an instrument that has no legal basis in one of the Treaties, (b) the passage of time and/or events have rendered the provision redundant, (c) the provision relates to institutional rules which are regarded as being superseded by European Union procedures, (d) the subject matter of the provision is covered by − and therefore super-seded by − existing European Community or Union legislation or by a legal act adopted by all Member States, (e) the provision has been made redundant by the Agreement to be concluded with the Republic of Iceland and the Kingdom of Norway pursuant to Article 6 of the Schengen Protocol, (f) the provision concerns an area covered neither by the activity of the Community nor by the aims of the European Union and thus concerns one of those areas in which the Member States have retained freedom to act. This includes provisions which may be significant only for the purposes of calculating financial claims of or between the Member States concerned." Moreover, according to the protocol, all of the Schengen acquis belonged within Title VI of the EU Treaty, unless stated otherwise. The necessary conclusion is thus that those provisions and decisions mentioned in Annex B that are still in existence are based generally on Title VI of the EU Treaty.

By a separate decision of the same date, the Council went on to indi-cate the legal bases of the acquis defined and listed in Annex A to Decision 1999/435/EC.51 The legal bases are most often Articles 62 and 63 of the EC Treaty (sometimes together) and Articles 30 and 31 of the EU Treaty, thus cre-ating “instantaneous secondary Community law”.52 Some acts have several, joint legal bases to be found in Title VI of the EU Treaty and in Title IV of the EC Treaty.

It is worth noting that no legal basis is given for Title IV of the imple-menting convention (Articles 92 to 119) concerning the Schengen Information System, or SIS, and so those provisions must, as mentioned, be regarded as falling generally under Title VI of the EU Treaty.

As regards institutional aspects, the Council of the European Union took on the function of the Schengen executive committee (Article 2(1) of the proto-col) and its secretariat took over the Schengen secretariat. However, no provi-sion was made regarding the working parties which, in accordance with Article

51 Council Decision No 1999/436/EC of 20 May 1999 (OJ L 176, 10/7/1999, 17).52 See P.J. Kujiper, supra (note 36) at 349.

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132(4) of the implementing convention, were to be instructed by the executive committee.

The States party to the Schengen agreements did not apply all the rules agreed upon. Indeed, the agreements could only be applied in practice in rela-tions between new parties and old if the new party adopted certain specific implementing acts.53 However, the protocol provides that the Council must decide when the Schengen acquis should be made to apply to States not yet participating in the Schengen area.

By the time the Treaty of Amsterdam came into force, Greece had yet to amend its laws.54 The Scandinavian states were in a different position, in that they were bound by the Nordic Passport Union.55 Three of them were Mem-bers of the European Union and parties to Schengen (Denmark, Sweden and Finland); two were not but had concluded a Schengen association agreement. However, it was not until the relationship between Member States of the Euro-pean Union and states associated with Schengen had been properly defined, by way of an agreement signed in Luxembourg on 18 May 1999,56 that it was

53 Italy, for example, was unable to participate in the Schengen area, even though it had ratified the accession protocol, until it adopted the relevant rules. See, on this point, B. Nascimbene, Gli Accordi di Schengen e i problemi di applicazione in Italia, Jus (1999) 421 ff.

54 See Council Decision No 1999/848/EC of 13 December 1999 on the full applica-tion of the Schengen acquis in Greece (OJ L 327, 21/12/1999, 58) and the Declara-tion by the Hellenic Republic in the meeting of the Joint Committee at Ministerial Level and in the Council (Justice and Home Affairs) on 2 and 3 December 1999 with regard to the proposed Council Decision on the application of the Schengen acquis in Greece (OJ C 369, 21/12/1999, 1).

55 Instituted by a protocol of 22 May 1954 and the Copenhagen Convention of 1957, in United Nations Treaty Series, 1959, vol. 322, 245.

56 See Council Decision 1999/439/EC of 17 May 1999 on the conclusion of the Agreement with the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis (OJ L 176, 10/7/1999, 3). The text begins on 36. Arrange-ments for implementing the association are set out in Council Decision 1999/437/EC of 17 May 1999, 31. On these acts and their special characteristics, see A. Tizzano, A proposito dell’inserzione dell’acquis Schengen nei trattati comunitari: l’accordo “del Consiglio” con Islanda e Norvegia, Diritto dell’Unione europea (1999) 521 ff. In short, the agreement provides that Iceland and Norway are to decide on a case by case basis whether to accept the acts making up the develop-ment of the Schengen acquis, but any failure to accept a decision would entail termination of the agreement (Article 8).

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possible to apply the Schengen acquis fully to the Scandinavian Members of the Union.57

The accession of new Member States in 2004 and in 2007 involved accep-tance of the Schengen acquis. The new Member States were bound by the acquis from the moment of their accession, but application of its provisions and acts was subject to a two-stage procedure: under both Article 3 of the 2003 Act of Accession and Article 4 of the 2005 Act of Accession, only the acts and provisions listed in Annex I were immediately applicable; the remaining provisions, such as those on the abolition of controls at internal borders, while binding on the new Member States from the date of their accession, would only apply in a new Member State pursuant to a Council decision to that effect “after verification in accordance with the applicable Schengen evaluation procedures that the necessary conditions for the application of all parts of the acquis con-cerned have been met in that new Member State.”

Denmark presents other anomalies. First of all, it does not participate in Title IV of the EC Treaty. Nevertheless, it is bound by the Schengen acquis through the application of international law, independently of any legal basis determined by the Council. It follows that even though the States participating in enhanced “Schengen” cooperation are bound by the same rules, the obliga-tions by which they are bound arise under different regimes: Community law, with all its peculiarities, for part of the rules and for all the States but one, sui generis intergovernmental rules under Title VI of the EU Treaty for another part of the rules and for all States but one, international law for one State, namely Denmark.

This peculiarity also impinges upon the acts adopted in application of, or amending the Schengen acquis (the so-called development of the Schen-gen acquis) which have a legal basis in Title IV of the EC Treaty. Denmark is allowed a period of six months from any decision of the Council which amounts to a development of the acquis in which to decide whether to agree. If it does, it will be bound thereafter by international law; if it does not agree, or fails to reach a decision within the time-period, the States participating in enhanced “Schengen” cooperation (including Denmark itself) will take a deci-sion on the appropriate measures to be adopted to sanction Denmark’s failure to participate.58 It is for the Council to decide what constitutes a development of the Schengen acquis.

It is not easy to anticipate the consequences of a possible clash between Denmark and the Council regarding the meaning of a development of the acquis.

57 See Council Decision 2000/777/EC of 1 December 2000 on the application of the Schengen acquis in Denmark, Finland and Sweden, and in Iceland and Norway (OJ L 309, 9/12/2000, 24).

58 The rules governing Denmark’s participation are contained in a protocol on Den-mark’s position annexed to the Treaty of Amsterdam, in particular at Article 5.

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There are no procedures for resolving such a dispute. The problem could arise in practice only where the Council decides by qualified majority, since, where unanimity is needed, Denmark could always oppose the adoption of the act in question. The only case would be where Denmark abstained, since abstention precludes neither adoption of the act nor the possibility of later challenging it.

In the event that the Council treated as a development of the acquis an act based on Title IV of the EC Treaty and Denmark denied that there was any connection between the act and the Schengen acquis, Denmark could challenge the decision under Article 230 EC, arguing that it had the wrong legal basis. If the Council were to adopt on the basis of Title VI of the EU Treaty an act which Denmark regarded as a development of the acquis based on Article IV of the EC Treaty (which would allow it to decide on a case by case basis whether to be bound), it could challenge the decision under Article 35 of the EU Treaty, once again arguing that it had the wrong legal basis.

Any enhanced cooperation must, by definition, allow for the participation of states which did not wish, or were unable to participate at the outset. As far as Schengen is concerned, that is the position of the United Kingdom and Ireland. In derogation from the general scheme for enhanced cooperation, the protocol lays down a special regime. The two States are not bound by the Schengen acquis, but may request to participate in some or all of it. The request must be approved by the Council by unanimous decision (the enhanced “Schengen” cooperation States and the applicant State).59 First the United Kingdom and then Ireland submitted requests to participate in part of the Schengen acquis. Both were accepted.60 Neither State, however, sought to participate in provi-sions in the area of visa policy.

As far as concerns participation in the development of the acquis, the United Kingdom and Ireland are free to decide on a case by case basis (Article 5 of the Schengen Protocol). Development under Title IV of the EC Treaty will be governed by special rules set out in an appropriate protocol.61 In short, two options are contemplated. The first, ex ante, before adoption of the act in ques-tion: within three months of the presentation of a proposal or initiative giving a provision of Title IV EC as its legal basis, either State may serve notice that it

59 Article 4 of the Schengen Protocol.60 See Council Decision 2000/365/EC of 29 May 2000 concerning the request of

the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (OJ L 131, 1/6/2000, 43), implemented by Council Decision 2004/926/EC of 22 December 2004 (OJ L 395, 31/12/2004, 70); Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis (OJ L 64, 7/3/2002, 20).

61 See the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty of Amsterdam, Article 3.

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intends to participate in the adoption and application of the act, in which case it would take part in the vote. The approval of no other Member State is nec-essary. The second option is ex post and arises where an act has already been adopted by the Council: either of the two States may notify the Council and the Commission of its intention to implement the measure. In such a case, Article 11(3) EC would apply and the Commission would have to give its opinion within three months of the request and decide, within four months, whether participation is possible, and any special measures.62

V.6 Immigration policy as part of the area of freedom, security and justice

The powers enjoyed by the Community under Article 63(3) and (4) must be viewed in the context of the objective of instituting an area of freedom, secu-rity and justice. “To maintain and develop the Union as an area of freedom, security and justice” is one of the objectives of the Union (Article 2 EU) and as was stated at the Tampere European Council, “the challenge of the Amster-dam Treaty is now to ensure that freedom, which includes the right to move freely throughout the Union, can be enjoyed in conditions of security and jus-tice accessible to all”.63

The interesting aspect here is that, unlike other objectives undertaken by the Union, the achievement of an area of freedom, security and justice involves a variety of competences, governed by different rules of the Treaties. Both Title IV of the EC Treaty and Title VI of the EU Treaty pursue the same objective, albeit that the first creates competence in visa and border control policy, asylum policy, immigration policy and cooperation in civil procedure matters and in relations between administrative authorities and the second governs police and judicial cooperation in criminal matters, including the approximation of crimi-nal law. Significantly, the two different areas of competence are responsive to a two-fold scope: they seek to achieve the specific objective assigned them, and create a synergy for the establishment of an area of freedom, security and jus-tice, in which the internal market can evolve, at least as far as concerns the free movement of persons, a phenomenon toward which the broadest of approaches is taken.64 An expression of this approach may be found in the “Action plan

62 Article 11(3) EC corresponds to former Article 11a (of similar content) introduced by the Treaty of Amsterdam.

63 Presidency Conclusions, Tampere European Council of 15 and 16 October 1999, EU Bull 10/99, 8.

64 On the meaning of this “area”, see, inter alia, H. Labayle, supra (note 37) 813 ff.; E. Bribosia, Liberté, sécurité et justice: l’imbroglio d’un nouvel espace, Rev. marché commun eur. (1998) 27 ff.; R. Adam, La cooperazione in materia di giustizia e affari interni tra comunitarizzazione e metodo intergovernativo, in Il Trattato di Amsterdam (Giuffrè, Milano, 1999) 227 ff.; J. Monar, The “Area of Freedom, Secu-

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of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice”65 and in the Tampere Programme, now replaced by The Hague Programme, which defines the multi-annual agenda of the Union.66

Without doubt, the new outlook offers further fragmentation of the oper-ating rules, both as regards the procedure for the adoption of acts and the effects upon national legal systems. The more significant differences are worth noting.67

Acts adopted on the basis of Article 34 EU by definition have no direct effect and must be implemented by the Member States,68 whereas Community acts can produce direct effects either as a result of their intrinsic nature (regula-tions and decisions) or if certain conditions are satisfied (directives).69

In the event of a failure to fulfil an obligation to implement, the Commis-sion can, in the Community pillar, as guardian of the Treaties, bring an action. In the justice and home affairs pillar there is no such competence. There is a possibility of using to that end the generic competence conferred on the Court

rity and Justice”: A new “Area” of European citizenship?, in Sovranità Rappresen-tanza Democrazia, Rapporti fra ordinamento comunitario e ordinamenti nazionali (Editoriale Scientifica, Napoli, 2000) 69 ff.; the various contributions to A. Wey-embergh, G. de Kerchove (eds), L’espace pénal européen: enjeux et perspectives (Éditions de l’Université de Bruxelles, Bruxelles, 2002), especially, J.-P. Jacqué, La question de la base juridique dans le domaine de la justice et des affaires inté-rieures, 251 ff. and K. Lenaerts, L. Jadoul, Quelle contribution de la Cour de jus-tice des Communautés européennes au développement de l’espace de liberté, de sécurité et de justice, 199 ff.; F. Pastore, Visas, Borders, Immigration: Formation, Structure and Current Evolution, in N. Walker (ed.), Europe’s area of freedom, security and justice (Oxford University Press, New York 2004) 89 ff.

65 Adopted by the Justice and Home Affairs Council on 3 December 1998 (OJ C 19, 23/1/1999, 1).

66 Adopted by the European Council of 4 and 5 November 2004 (OJ C 53, 3/3/2005, 1). See H. Labayle, Le bilan du mandat de Tampere et l’espace de liberté, sécurité et justice de l’Union européenne, Cah. dr. eur. (2004) 591 ff.; S. Peers, Transform-ing decision-making on EC immigration and asylum law, E. L. Rev. (2005) 285 ff.

67 For a detailed discussion, see R. Adam, supra (note 64).68 Article 34 EU lists, as typical acts, common positions, framework decisions, deci-

sions and conventions. There is no provision, in this version, on common action. The Court of Justice has confirmed that, in the case of framework decisions, as with directives, the obligation is for the national courts to interpret national law in conformity with them: Case C-105/03 Pupino [2005] ECR I-5285.

69 On direct effect, see R. Luzzatto, La diretta applicabilità nel diritto comunitario (Giuffrè, Milano, 1983) 7 ff.; G. Tesauro, Diritto comunitario (Cedam, Padova, 4th ed., 2005) 168 ff.; L. Daniele, Diritto dell’Unione europea (Giuffrè, Milano, 2nd ed., 2006) 161 ff.

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of Justice by Article 35(7) EU, but an action can only be brought by a Member State.

Lastly, there are peculiar aspects to the Court’s competence in preliminary rulings, in both titles. As mentioned, Article 68 EC reserves the right to request a preliminary ruling to courts of last instance, whereas Article 35(2) EU renders jurisdiction to give preliminary rulings conditional upon express acceptance on the part of each Member State. On acceptance, a Member State may also decide whether a reference for a preliminary ruling lies to all courts or only to courts of last instance.70

Faced with various acts, some adopted under title IV of the EC Treaty, others under Title VI of the EC Treaty, but all closely connected, a national court having doubts as to their interpretation or validity would have a number of options, depending on whether or not it is a court of last instance and on the Member State to which it belongs. It might have no power to make a reference to the Court of Justice (if it is not a court of last instance and belongs either to a State which has not accepted the Court of Justice’s jurisdiction under Article 35(2) EU or to one which has reserved competence to national courts of last instance) it might be able to make a reference for one act but not the other (if it is a court of last instance in a State which has not accepted the Court’s jurisdic-tion under Article 35(2) EU or if it is not a court of last instance in a State which has accepted the Court’s jurisdiction under Article 35(2) EU and has extended competence to all its national courts) or indeed it might be able to refer a ques-tion to the Court in relation to both acts (if it is a court of last instance in a State which has accepted the jurisdiction of the Court of Justice under Article 35(2) EU). However, even in this last case the Court of Justice would be obliged to apply different interpretative criteria because of the fact that decisions and framework decisions under Title VI of the EU Treaty have no direct effect.

The problem just outlined is not of purely theoretical interest. Indeed the Council has adopted a directive based on Article 63(4) and a framework decision both closely linked and directed at harmonising the legislation of the Member States on preventing the facilitation of illegal immigration.71 Further-more, there is no shortage of acts, especially within the Schengen acquis, which

70 The list of acceptance of the jurisdiction of the Court are published in OJ L 327, 14/12/2005, 191. Hungary and Spain restricted competence to courts of last instance; Austria, Belgium, the Czech Republic, Finland, France, Germany, Greece, Italy, Luxembourg, the Netherlands, Portugal, and Sweden extended it to all courts.

71 Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence (OJ L 328, 5/12/2002, 1) and Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and resi-dence (OJ L 328, 5/12/2002, 17) (both adopted on an initiative from France).

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give as their legal basis both a provision of Title IV of the EC Treaty and one of Title VI of the EU Treaty.

V.7 Scope of application of immigration policy rationemateriaeImmigration policy has traditionally been distinct from asylum policy and visa policy, and has even been defined by its differences from those two policies. The distinction is founded on various reasons and may be discerned through-out the course of the Community’s evolving interest in the area. The historical reason is attributable to the endeavour to achieve a balance between the con-ception of those policies as instrumental to the functioning of first the common market and now the internal market and recognition of their falling within the competence of the Member States. Traditionally, the complex subject of how to treat non-Community foreigners was a matter of national competence, albeit that a State had to exercise its jurisdiction in such a way as not to jeopardise common objectives and achievements. Within the limits of its usefulness, coop-eration was encouraged.

General international law acknowledges that every country has complete freedom as regards the admission of foreigners and the only restrictions on their treatment, once admitted, are the principle of good faith72 and the duty to respect fundamental human rights.73 The exception to this is asylum, or the protection that must be afforded to people who are persecuted in their home country, and this is seen as a personal right.74 That peculiarity has warranted special treatment of the phenomenon and an effort at least to harmonise the rules of procedure and minimum basic concepts.

The Council’s competence to adopt measures in matters of asylum is laid down in Article 63(1) EC, where a list is given of all the measures needed to implement and apply the Geneva Convention of 1951, the Protocol of 1967 and other relevant treaties. First, the institutions must define “criteria and mechanisms

72 See B. Nascimbene, Il trattamento dello straniero nel diritto internazionale ed europeo (Giuffrè, Milano, 1984) 95 ff.; M. Tamburini, Trattamento degli stranieri e buona fede nel diritto internazionale generale (Cedam, Padova, 1984) 44 ff.; A. Adinolfi, supra (note 14) at 45 ff. and 266 ff.

73 The duty to ensure respect for a foreigner’s fundamental human rights has its raison d’être in the universal nature of those rights.

74 The international sources of asylum law are the Geneva Convention of 28 July 1951 on the status of refugees and the Protocol of 31 January 1967. Whilst the conventions on fundamental human rights (the European Convention on Human Rights and the Convention against Torture and Other Cruel, Inhuman or Degrad-ing Treatment or Punishment) do not directly address asylum, they have certain relevant consequences for the treatment of applicants. See B. Nascimbene, Diritto d’asilo e asilo umanitario. Prassi e norme nazionali, Rivista internazionale dei diritti dell’uomo (1993) 419 ff. The Charter of Fundamental Rights of the Euro-pean Union also recognises asylum (Article 18).

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for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States”. The relevant rules are laid down in Council Regulation (EC) No 343/2003.75 Sec-ondly, the institutions must define “minimum standards on the reception of asylum seekers in Member States”, a matter dealt with in Directive (EC) No 2003/9.76 Thirdly, they must define “minimum standards with respect to the qualification of nationals of third countries as refugees”, and these we find in Directive (EC) No 2004/8377 and, to complete Community policy in this area, there must be “mini-mum standards on procedures in Member States for granting or withdrawing refu-gee status”, which were adopted by Directive (EC) No 2005/85.78

The Union also has competence in matters which go beyond the tradi-tional notion of asylum, in aspects which are not contemplated, ratione perso-narum or ratione materiae, by the Geneva Convention. Thus, there are specific rules relating to persons who cannot be accorded the status of refugee but who nevertheless need protection. These are “persons eligible for subsidiary protec-tion” because there are substantiated grounds for believing that, if they were to return to their country of origin, they would run a real risk of suffering serious harm79 and displaced persons who have had to abandon their country of origin or who have been evacuated and who cannot return in safety and who therefore benefit from temporary protection in the Union.80

Immigration policy covers entry for the purposes of joining the market of the host State. Visa policy, on the other hand, is concerned with the grant of

75 OJ L 50, 25/2/2003, 1. The regulation “communitarises” the Dublin Convention. Detailed rules for the application of the regulation are laid down in Commission Regulation (EC) No 1560/2003 (OJ L 222, 5/9/2003, 3). On the regulation, see S. Lipparini, Diritto d’asilo nel diritto comunitario: evoluzione dal 1958 sino alla comunitarizzazione dell’acquis di Schengen e le prospettive future, Diritto, immigrazione e cittadinanza (2001) no 3, 47 ff.; D. Dubolino, L’identificazione dello Stato competente all’esame di una domanda di asilo: dalla Convenzione di Dublino al nuovo Regolamento, Diritto dell’Unione europea (2004) 811 ff.; R. Rossano, Il regolamento comunitario sulla determinazione dello Stato membro competente ad esaminare la domanda di asilo, Commento a Reg. CE 343/2003, Diritto comunitario e degli scambi internazionali (2004) 371 ff.; E. Guild, Seek-ing asylum: storm clouds between international commitments and EU legislative measures, E. L. Rev. (2004) 198 ff.; K. Hailbronner, Asylum Law in the Context of a European Migration Policy, in N. Walker (ed.), supra (note 64) 41 ff. See also B. Nascimbene, C. Fevilli, Rifugieti, in S. Cassese (ed.), Dizionario di diritto pub-blico (Milano, Giuffrè, Vol. V, 2006), 5306 ff.

76 OJ L 31, 6/2/2003, 18.77 OJ L 304, 30/9/2004, 12.78 OJ L 326, 13/12/2005, 13.79 See Directive 2004/83/EC.80 See Council Directive 2001/55/EC of 20 July 2001 (OJ L 212, 7/8/2001, 12).

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entry visas for stays of no more than three months.81 The distinction, albeit a rather artificial one, follows from the duration of the stay: if it is longer than three months, it falls under immigration policy. In either case it is necessary to coordinate the activities of consular authorities competent to issue visas and permits and to harmonise controls at the external borders, since it is when people cross borders that it is possible to ascertain the purpose of their entry.

V.8 Scope of application rationepersonarumImmigration policy applies to foreigners, an apparently clear and precise class of people. Traditionally, foreigners are defined by contrast with nationals. In the Community system, they are defined by contrast with citizens of the Union, the latter being those who are nationals of one of the Member States, whilst foreigners are those who are not nationals of any Member State. In this sense therefore, citizenship of the Union, which as we have said presents some incon-sistencies, is consistent in its contradistinction from the notion of foreigner.82

However, even defined thus, the class of foreigners does not coincide with the class of people to whom immigration rules applies. Indeed, immigration law applies only to foreigners for whom there are no special rules, of either Community or convention origin.83 This residual nature marks it as a sort of basic law, which applies where there are no special laws.

81 Article 62 EC. Visa policy and border controls were some of the principle objec-tives of the Schengen agreement and were attained, almost wholly, thanks to com-munitarisation of the Schengen acquis.

82 On citizenship of the Union, see Chapter I. Some of the rights which the Treaty indicates as pertaining to citizenship of the Union in fact apply also to resident foreigners. This is in pursuance of a general trend to diminish the importance of nationality to the advantage of residence: see, on this point, B. Nascimbene, Profili della cittadinanza dell’Unione europea, Rivista internazionale dei diritti dell’uomo (1995) 261. Among the rights which can be relied upon even by for-eigners one might mention the right to petition the European Parliament and the right to make a complaint to the European Ombudsman.

83 See D. Martin, La libre circulation des personnes dans l’Union européenne (Bruylant, Bruxelles, 1994) 325 ff.; S. Peers, Towards Equality: Actual and Poten-tial Rights of Third-Country Nationals in the European Union, C.M.L. Rev. (1996) 7 ff.; A. Adinolfi, La circolazione dei cittadini di Stati terzi: obblighi comunitari e normativa nazionale, in B. Nascimbene (ed.), La libera circolazione dei lavoratori (Giuffrè, Milano, 1998) 123 ff.; M. Missorici, C. Romano, Libertà di circolazione e soggiorno: i cittadini degli Stati terzi tra cittadinanza europea e politica delle migrazioni, Rivista italiana di diritto pubblico comunitario (1998) 44 ff.; E. Guild, supra (note 33) 65 ff.; K. Hailbronner, Immigration and Asylum Law and Policy of the European Union (Kluwer Law International, The Hague, London, Boston, 2000) 175 ff.; M. Hedenmann-Robinson, An Overview of Recent Legal Develop-ments at Community Level in Relation to Third Country Nationals Resident within

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Yet immigration laws do have a horizontal effect, in the sense that they apply to foreigners independently of their nationality whenever they find them-selves in a particular situation.

First of all, a number of points must be made about family members of Community citizens.

In order to enable citizens of the Union to exercise one of the freedoms laid down in the Treaty, there is an accompanying right to the protection of family life.84 Family members of Community citizens, quite independently of their own nationality, whether it is that of a Member State or a third country, enjoy the same treatment reserved to the Community citizen. Yet, a great difference lies in the fact that, whilst a Community citizen is the beneficiary of a primary right, his spouse, for example, who is not, enjoys a right which derives from the family bond and which will exist for only as long as that bond endures.85 Once it ends, the family member will be subject to the laws relating to foreigners, except otherwise provided for by Directive No. 2004/38/EC.

In this connection a feature must be mentioned that is of particular impor-tance to non-Community family members, namely entry to the territory. Again, a difference is to be found in the fact that, whilst Community citizens have a direct right of entry as such, non-Community citizens generally do not.

Under secondary legislation, the Member States can ask family members to obtain an entry visa, but they must grant every facility to obtain one.86 As mentioned, the Council has established a list of those non-Member countries whose nationals are obliged to obtain a visa for their entry to the European Union. Since there is no derogation in favour of family members of Commu-nity citizens, the necessary deduction is that the matter is left to the discre-tion of the Member States. The Court of Justice has, however, had occasion to set down some principles to which they must adhere. In particular, a Member State cannot turn back at a border a non-Community citizen without a visa if that person can demonstrate a family relationship with a Community citizen (unless of course he represents a threat to public order, public security or public

the European Union, with Particular Reference to the Case Law of the European Court of Justice, C.M.L. Rev. (2001) 525 ff.

84 See, in particular, Case C-60/00 Carpenter [2002] ECR I-6279 and Joined Cases 389/87 and 390/87 Echternach and Moritz [1989] ECR 723. On the family mem-bers of Community workers, see also Chapter II, para. 6.

85 Case 267/83 Diatta [1985] ECR 567.86 Article 3(2) of Directive 68/360/EEC (OJ, English Special Edition, 1968 II, 485),

Article 3(2) of Directive 73/148/EEC (OJ L 172, 28/6/1973, 14), now replaced by Article 5(2)(2) of Directive 2004/38/EC (OJ L 158, 30/4/2004, 77).

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health) and thus it will be obliged to issue a visa even at the place of entry upon national territory.87

It has been made clear in case-law that a Community citizen is entitled, vis-à-vis a Member State, to rely upon the right of entry of his family members. He can rely on that right vis-à-vis his Member State of origin, if he has exer-cised freedom of movement and intends to return there.88 If, on the other hand, the Community citizen has not taken advantage of what the internal market has to offer, the entry and residence of his family members will be governed by national law, rather than Community law, because they will now be purely internal matters unconnected with Community law.89

The question under consideration leads on to another delicate aspect, the expulsion of non-Community family members because of irregularities con-nected with their entry into the country. The Court of Justice has indeed held that it is an infringement of Community law, and in particular of the right to protection of family life, to expel a spouse because of administrative irregulari-ties connected with entry formalities where the marriage is real and the spouse, by taking care of the family, is enabling the Community citizen to exercise the freedom of movement enshrined in the Treaty.90

Secondly, there is the case of the foreigner who is persecuted in his coun-try of origin and who is entitled to the more favourable treatment of the asylum regime. In this case too, nationality is irrelevant, as the qualifying criterion is the person’s status as an asylum-seeker or political refugee.

Thirdly, it should be remembered that one of the ways in which legal persons provide services, a fundamental right enshrined by Article 49 EC, is by sending employees to another Member State to carry on the activity which the service comprises.91 Where such employees are nationals of a non-Member State and would therefore be subject to the immigration and employment laws of the State in which the services are to be provided, the application of such national laws could amount to a barrier to the provision of services and conse-

87 Case C-459/99 MRAX [2002] ECR I-6591. See also Article 5 (4) of Directive No. 2004/38/EC.

88 Case C-370/90 Surinder Singh [1992] ECR I-4265. The application of the ruling was further defined in Case C-109/01 Akrich [2003] I-9607 in the sense that in order to benefit from the right of re-entry, as a family member, a spouse, a national of a non-Member State, must have been lawfully resident in the Member State before moving to another Member State (see para. 50 of the judgment in particu-lar).

89 Joined Cases 35/82 and 36/82 Morson [1982] ECR 3723, Joined Cases C-64/96 and C-65/96 Uecker and Jacquet [1997] ECR I-3171.

90 See Case C-60/00 Carpenter [2002] ECR I-6279.91 Such provision of services has been ruled permissible in Case C-113/89 Rush Por-

tuguesa [1990] ECR I-1440, See also Chapter IV, para. 4.

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quently the Court of Justice has ruled that such persons do have a right of entry and residence in the State where the services are to be provided, but only to the extent necessary to provide those services, and without any right to join the employment market of the host State92

As with family members of Community citizens, in this case too the right of entry and residence does not belong to the person concerned as such, but depends upon the connection which that person has with a Community under-taking and exists for the purpose of enabling that undertaking to exercise a right guaranteed by the Treaty. Should the Community ever develop rules governing the treatment of nationals of third countries, this case-law would of course no longer have any significance.

Special treatment of nationals of certain third countries may be founded upon an agreement. Indeed, the European Union has concluded numerous asso-ciation agreements with third countries,93 some of which contain rules on the treatment reserved to nationals of the contracting parties. It is noteworthy that these rules are often modeled on those in the Treaty and in secondary law, and the Court of Justice has frequently extended its interpretation of Community law to rules set out in association agreements that have similar wording.

For ease of reference, association agreements can be classified according to the content of their provisions relating to the treatment of persons, ranging from minimal to maximum, with the proviso that agreements that are broader in scope include also the treatment laid down by agreements of more limited scope. Firstly, some agreements, and in particular those with Turkey,94 Alge-

92 In addition to the case cited in the previous note, see also Case C-43/93 Vander Elst [1994] ECR I-3808. Also, on this point, see C. Gulotta, Circolazione dei lavora-tori di paesi terzi alle dipendenze di imprenditori comunitari e libera prestazione di servizi, in B. Nascimbene (ed.), supra (note 83) 157 ff.; J. Onslow-Cole, The Right of Establishment and Provision of Services: Community Employers and Third Country Nationals, in E. Guild (ed.), The Legal Framework and Social Consequences of Free Movement of Persons in the European Union (Kluwer law international, The Hague, 1999) 63 ff.

93 Association agreements have their legal basis in Article 310 EC. As the Court of Justice held, in Case 12/86 Demirel [1987] ECR 3719, at para. 9, "an association agreement [creates] special, privileged links with a non-Member country which must, at least to a certain extent, take part in the Community system."

94 The Association Agreement, signed in Ankara on 12 September 1963 (OJ 217, 29/12/1964, 3701, no English version) in force since 1 December 1964. Of par-ticular importance are the additional protocol of 1970 and Decision No 1/80 of the Association Council. On the direct effect of the rules contained in that decision, see Case C-192/89 Sevince [1990] ECR I-3479.

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ria,95 Morocco96 and Tunisia,97 the agreement with the ACP countries98 and the partnership agreement with Russia99 merely provide for equal treatment of nationals of the associated country who are legally resident and employed in a Member State.100 The conditions governing entry are on the other hand left to the competence of the Member States.101

Secondly, other agreements establish a right of entry for persons intending to carry on an autonomous activity. These are the European agreements with central-eastern European countries.102 As the Court of Justice has had occa-sion to hold, nationals of the associated country who can furnish proof of their intention and ability to carry on a non-salaried activity have a right of entry into the Union. In other words, a Member State cannot refuse such a person an

95 Agreement signed in Algiers on 27 April 1976 (OJ L 263, 27/9/1978, 2).96 Agreement signed in Rabat on 27 April 1976 (OJ L 264, 27/9/1978, 2). The Court

of Justice confirmed the direct effect of Article 40 of the agreement on the prohi-bition of discrimination against employees, in Case C-18/90 Kziber [1990] ECR I-199. The agreement has now been replaced by the Euro-Mediterraneam Agree-ment, signed in Brussels on 26 February 1996 (OJ L 70, 18/3/2000, 2) in force since 1 March 2000.

97 The first Association Agreement, signed in Tunis on 25 April 1976 (OJ L 265, 27/9/1978, 2) has now been replaced by the Euro-Mediterranean Agreement, signed in Brussels on 17 July 1995 (OJ L 97, 30/3/1998, 2) in force since 1 March 1998.

98 The most recent convention between the European Union and the ACP countries is that signed in Cotonou on 23 June 2000 (OJ L 317, 15/12/2000, 3) in force since 1 April 2003 (OJ L 83, 1/4/2003, 69).

99 The provisions of the partnership agreement (Corfu, 24 June 1994, OJ L 327, 28/11/1997, 3) on non-discrimination against workers has direct effect, as con-firmed by the Court in Case C-265/03 Simutenko [2005] ECR I-2579.

100 The scope of the rights in fact depends on the individual association agreement, the agreement with Turkey undoubtedly being the broadest. See E. Tezcan, Le droit du travail et le droit de séjour des travailleurs turcs dans l’Union européenne à la lumière des arrêts récents de la Cour de Justice de la Communauté europée-nne, Rev. marché commun et de l’Ue (2001) 117 ff.

101 Case C-434/93 Bozkur [1995] ECR I-1494.102 The agreements with Hungary and Poland were signed in Brussels on 16 Decem-

ber 1991 (OJ L 347, 31/12/1993 and OJ L 348, 31.12.1993 respectively), the agreement with Romania was signed in Brussels on 1 February 1993 (OJ L 357, 31/12/1994), the agreement with Bulgaria was signed in Brussels on 8 March 1993 (OJ L 358, 31/12/1994), the agreements with the Slovak and Czech Republics were signed in Luxembourg on 4 October 1993 (OJ L 359, 31/12/1993, OJ L 360, 31/12/1994 respectively), the agreements with the three Baltic states were signed in Luxembourg on 12 June 1995 (OJ L 26, 2/2/1998, Latvia, OJ L 51, 20/2/1998, Lithuania, OJ L 68, 9/3/1998, Estonia) and the agreement with Slovenia was signed in Luxembourg on 10 June 1996 (OJ L 51, 26/2/1999).

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entry visa or residence permit. It may, however, adopt appropriate provisions to ensure that such a person does not join the work force.103

Thirdly, the bilateral agreement with Switzerland104 lays down rules wholly similar to those of Community law. Full enjoyment of the right of entry and residence is, however, conditional upon the expiry of a transitional period.105

Fourthly, the Agreement on the European Economic Area (EEA) applies to the associated countries Community law on entry and residence.106 The rel-evant rules of the agreement are identical to those of the Treaty and must be interpreted by the courts of the contracting parties in the light of the case-law of the Court of Justice.

A special position is held by nationals of the ten new Member States which joined the European Union on 1 May 2004 and of the two which joined on 1

103 See Case C-63/99 Gloszczuk [2001] ECR I-6369, Case C-235/99 Kondova [2001] ECR I-6427, Case C-257/99 Barkoci and Malik [2001] ECR I-6557 and Case C-268/99 Jany and Others [2001] ECR I-8615. Those cases concerned the agree-ments with Poland, Bulgaria and the Czech Republic. The similarity of content of the European agreements makes it possible to extent the Court's interpretation to other associated countries. The Court itself has done so, in relation to the associa-tion agreements with Bulgaria and the Slovak Republic. It has held that the right of entry and residence for the purpose of carrying on an autonomous activity does not mean that a person may ask for an application, submitted while she is on the territory of the State where she intends to establish herself, to be considered if she is staying there illegally or for some other purpose: Case C-327/02 Panayotova and Others [2004] ECR I-11055.

104 The agreement on the free movement of persons forms part of a “package” of seven bilateral agreement which together constitute an association between the European Union and Switzerland. Signed in Luxembourg on 26 June 1999, they entered into force on 1 June 2002 and are published in OJ L 114, 30/4/2002. The agreement on the free movement of persons is the only one of the seven to have been concluded in a joint form. Italy ratified it by order of 15 November 2000, no 364, Gazzetta Ufficiale della Repubblica italiana no 288, 11/12/2000.

105 The transitional period lasts for 12 years, ending on 31 May 2014, and is divided into three phases: during the first (from the date of entry into force until 31 May 2004) Switzerland maintains both a quota for Community workers and priority for Swiss workers, while the Community merely maintains priority for Community workers; during the second (until 31 May 2007) there is no longer any priority for local workers, but Switzerland still maintains quotas; during the third phrase, Swit-zerland abolishes quotas, but reserves the right to introduce safeguard measures in the event of an excessive influx of Community workers. Furthermore, after seven years from their entry into force, all seven agreements must be renewed, tacitly by the Union and by express decision of Switzerland. If any one of them is not renewed, all seven terminate.

106 Agreement signed in Porto on 2 May 1992 (OJ L 1, 3/1/1994). Article 28, in par-ticular. The agreement currently binds Iceland, Lichtenstein and Norway.

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January 2007. Freedom of movement of persons is part of the acquis commu-nautaire which binds the parties from the moment an Accession Treaty enters into force. However, it is not at all infrequent for the existing Member States to make full application of the freedoms laid down in the Treaty dependent upon the expiry of a transitional period during which nationals of the new Member States will enjoy less than usually favorable treatment, even if it is generally more favorable than the treatment reserved to non-Community citizens. Dero-gations relate, above all, to the freedom of movement of workers, since the old Member States are anxious about a possible influx of low-cost labour from the “poorer” new States that might disturb the local market. This was the case with the accession of Spain and Portugal107 and with the ten eastern European countries which joined the Union in 2004 and in 2007.

The Accession Treaties108 in fact provides that, for a period of no more than seven years, nationals of the new Member States will require a work permit in order to take up employed work, but will have priority over workers from third countries. (On the other hand, there is no derogation for self-employed activ-ity.) Thus, during the first years after accession, access to the labour market and the treatment of such workers will be governed by national law, rather than Community law.

V.9 Scope of application rationelociCommunity immigration law does not apply to the whole of the territory of the Union, but to a part of it.109 Denmark obtained dispensation from participation in Title IV of the EC Treaty,110 with the exception of acts relating to establish-ing the list of third countries whose nationals must be in possession of a visa in order to cross the external borders, and acts relating to the standard form visa (these being matters brought within the Community sphere by the Treaty of Maastricht: Article 100c). Denmark is also in a position unilaterally to with-draw from the protocol.

Ireland and the United Kingdom too do not participate in Title IV of the EC Treaty.111 But either State can decide, on a case by case basis, whether to

107 The same did not happen, however, with the accession of Austria, Finland and Sweden, since the preoccupation mentioned did not arise because of the state of economic development of those countries.

108 Signed in Athens on 16 April 2003 (OJ L 236, 23/9/2003) and in Luxembourg on 25 April 2005 (OJ L 157, 21/6/2005).See also, on this point, Chapter II, para. 5.

109 See also para. 5 on this point.110 See the protocol on the position of Denmark annexed to the Amsterdam Treaty.111 See the protocol on the position of the United Kingdom and Ireland annexed to the

Amsterdam Treaty. See also the protocol on the application of certain aspects of Article 14 of the Treaty establishing the European Community to the United King-dom and Ireland, also annexed to the Treaty of Amsterdam, under which the United

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participate in acts adopted under that title. Ireland can withdraw unilaterally from the protocol, but not the United Kingdom, which means that it would be necessary to amend the Treaty, following the usual procedures, in order for that country to be able fully to participate in Title IV of the EC Treaty.

Those acts adopted under Title IV of the EC Treaty which constitute a development of the Schengen acquis will be binding on Norway and Iceland, on the conditions set out in the association agreement.

These possibilities of opting-in afforded to Denmark, the United Kingdom and Ireland mean that every time the Council adopts an act under Title IV of the EC Treaty, it must state the position of those countries in the preamble. This improves clarity only to an extent because often, at the time the act is adopted, the States in question have yet to exercise their option. However, it seems that, in the case of acts based on Article 63(3) EC, the United Kingdom as a rule opts in ex ante and participates in the adoption and application of the relevant decisions.

V.10 Competence of the Member States and Community competenceCommunity competence in immigration matters can be described as a paral-lel competence.112 In other words, the competence of the Member States sits alongside it. This is quite clear from Article 63(2) EC which provides that “Measures adopted by the Council pursuant to points 3 and 4 shall not pre-vent any Member State from maintaining or introducing in the areas concerned national provisions which are compatible with this Treaty and with interna-tional agreements”.113

That provision means that, even in the case of an act adopted in an area covered by points 3 and 4, Member States may maintain in force or intro-duce their own laws. Community law thus becomes subsidiary to national law. “Maintain” presupposes that a State does in fact have a set of laws which it can

Kingdom and Ireland were not to abolish controls at the internal borders with the other thirteen Member States of the Union which are part of the Schengen area.

112 For terminology, see A. von Bogdandy, J. Bast, The European Union’s Vertical Order of Competences: the Current Law and Proposals for its Reform, C.M.L. Rev. (2002) 227 ff.

113 Similar terms are found in Articles 95(4) to (6) (concerning the approximation of laws of the Member States which affect the establishment and functioning of the internal market), 137(5) (on social policy), 153(5) (consumer protection) and 176 (protection of the environment). Article 63(2) does not mention the area of asylum, in which the Community’s competence is generally limited to defining minimum standards which, by definition, are consistent with national laws providing a higher level of protection. By contrast, in the area covered by Article 63(1)(a) (criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States), Community competence must be regarded as exclusive.

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perpetuate, whereas “introduce” means that the State must adopt new laws, after the Community provisions have been adopted.

That option allowed the Member States is not of course unrestricted and any national provisions must be consistent both with Community law114 and with international agreements. The reference to international agreements is general. They are not identified, but included among them will be agreements concluded by the Community which, in accordance with Article 300, also bind the Member States and joint agreements (in particular the GATS agreement). The reference must also be understood to include agreements concluded by the Member States with third countries which lay down principles applicable in the area, whether they are referred to in other parts of the Treaty (such as the European Convention for the Protection of Fundamental Human Rights and Freedoms)115 or not, but from which no intention to derogate has been expressed (for example, the International Convenant on Civil and Political Rights, the conventions concluded within the Council of Europe or the Interna-tional Labour Organisation).

The compatibility must be both material, in that the content of the national laws must be consistent with Community and international law, and in terms of objectives: national laws must not pursue objectives or goals inconsistent with those pursued by the Community.

Both where it maintains its own laws, notwithstanding Community inter-vention, and where it proposes to introduce new laws, a Member State will have other obligations towards the Community. These derive from the prin-ciple of sincere cooperation. In particular, in the first instance, the State should re-examine its existing legislation to ensure that it is consistent with the new Community laws, and amend it where necessary. In the second instance, the Member State should, while preparing its new legislation, take account of Community law and avoid adopting solutions inconsistent with it. Certainly, the second case is very much easier to achieve, since it implies the making of relatively broad assessments in the preparation of the law in question whereas the first implies revision of existing laws and their amendment, a process for which the States may be less well equipped.

The Member States are under no obligation to state their reasons for main-taining or introducing their own legislation, still less must they notify it to the

114 Article 63(2) EC mentions only the Treaty as a limit on national competence, but the provision has been interpreted as also referring to secondary law implementing the Treaty.

115 See B. Nascimbene, La convenzione, la condizione dello straniero e la giuri-sprudenza, in B. Nascimbene (ed.), La Convenzione europea dei diritti dell’uomo. Profili ed effetti nell’ordinamento italiano (Giuffrè, Milano, 2002) 153 ff.

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Community or the other Member States, or await authorisation.116 It would be possible to revive the duty of notification arising under the Commission’s deci-sion of 1988, albeit to a different end. However, there is no systematic collec-tion of information with which to ensure that the Member States do not exceed their powers. It will be for the Commission and the other Member States, fol-lowing the usual procedures (Articles 226 and 227 EC) to bring an action for failure to fulfil obligations before the Court of Justice.

In an endeavour better to define national and Community competence respectively, and better direct them toward a common objective, the Commis-sion has proposed an open method of coordination for Community immigra-tion policy.117 The intention is for the Council to approve multi-annual policies, to be taken up in national policies, adapted to local conditions. The Member States are then to present national action plans each year, building on existing achievements and setting a programme for the forthcoming year. On the basis of the action plans, the Commission is to prepare a report highlighting common problems and identifying areas better suited to a solution at Community level.

The proposal is an attempt at replicating in the sphere of immigration policy a soft law mechanism already tried in the sphere of economic policy (with broad economic tendencies) and employment policy (with employment guidelines).118

Since Community competence in this area is not exclusive, its exercise is subject to the principle of subsidiarity.119 The institutions must therefore state their reasons for the adoption of each and every act. In particular, in pursuance of this principle, it is held that migrant integration policy is better achieved at national level.

The Treaty provides that it remains incumbent upon the Member States to maintain law and order and to safeguard internal security (Article 64(1) EC). This is not any reservation of competence on the part of the Member States, but the acknowledgement of a certain margin of discretion regarding the practical measures needed for policing. Put another way, the provision imposes a limit on the institutions’ law-making powers: they have no authority to regulate the

116 There is, however, a duty to notify the Commission under Articles 95 and 176. In particular, Article 95, which refers to national measures derogating from Com-munity harmonisation measures aimed at the establishment of the internal market, requires Member States to have authorisation from the Commission.

117 Commission Communication to the Council and the European Parliament COM(2001)0387.

118 S. Cafaro, Il rapporto tra gli orientamenti in materia di occupazione, introdotti con il Trattato di Amsterdam, e gli indirizzi di massima per le politiche economi-che degli Stati membri, Diritto dell’Unione europea (1998) 547 ff.

119 Article 5 EC and the protocol, annexed to the EC Treaty, on the application of the principles of subsidiarity and proportionality.

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exercise of police powers for the purpose of maintaining public order or public security.120 Whilst it is not expressly provided in the Treaty, it can be inferred from the general system of Community law that national measures adopted under Article 64 EC will be justified only if necessary for the protection of the interests mentioned and proportional to that end. The principles of proportion-ality and necessity, as general principles of Community law, must apply in this area because, according to consistent case-law, they apply wherever a power is left to the Member States the exercise of which might compromise Community laws.

The division of competence between the Member States and the institu-tions just outlined has implications for the competence to conclude interna-tional agreements. In Declaration 18 annexed to the Treaty of Amsterdam, the Member States claimed jus de contrahendo in relation to Community law. As a general rule, and one which cannot be altered or waived by any declaration, the Community has power to conclude agreements in all the areas in which it has internal competence (the so-called parallelism of competences) and exclusive power where the Community has adopted common rules.121

V.11 The content of Community immigration policyCommunity immigration policy is brought into effect by means of a variety of measures governing the aspects mentioned in Article 62 and 63 EC. Unlike the case of other sectors given over to the competence of the institutions, the provisions mentioned define the content of the Community’s competence, and not merely the objective pursued.

Immigration policy, as we have said, is built on different thinking from that which shapes the freedom of movement of persons within the Union. Freedom of movement is conceived as a set of individual rights (the right to enter, the right to reside, the right to equal treatment and so on) upon which individuals can rely against the State. Immigration policy, on the other hand, is founded on the State’s power and discretion to regulate the entry and treatment of foreign-ers, whose legal position is thus weaker. This gives rise to the need for entry and residence documents, which a State may issue or withhold in accordance even with political considerations. It is thus not surprising that a large part of immigration policy entails collaboration among the Member States in combat-

120 K. Hailbronner, supra (note 37) 15.121 On the Community’s competence to conclude international agreements, see, gener-

ally, G. Gaja, Introduzione al diritto comunitario (Laterza, Rome-Bari, 2005) 143 ff. In Declaration no. 18, the conference of representatives of the governments of the Member States agreed that Member States may negotiate and conclude agree-ments with third countries in the domains of entry, residence, long-stay visas and residence permits, including family reunion, “as long as such agreements respect Community law.”

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ing illegal immigration. Indeed, this sort of cooperation is indispensable, as a corollary to the policy of regulating the conditions of entry and residence of foreigners: foreigners have no right to enter and reside in the Union and it is necessary to ensure that the conditions imposed by law are satisfied and that infringements are penalised, even to prevent admission quotas being circum-vented. Nevertheless, it is not without significance (and it is consistent with the developments mentioned in the preceding paragraphs) that many measures have been adopted in the domain, and indeed the process of their approval was perhaps easier than that of measures on the conditions of legal entry and resi-dence of foreigners.122

Similar thinking is behind the policy on persons requiring international protection, which seeks a balance between humanitarian imperatives and the possibility of abuse, that is circumvention of the narrow passage of legal entry to the Union.123

Whilst policy on persons requiring international protection can be said to be more or less defined, immigration policy is still a long way off. Only of late has the Council managed to approve a certain number of proposals, often in the form of directives, whose deadlines for transposition have not yet, or have only recently expired. Furthermore, the acts deal with very specific aspects, as we shall see, often those on which it was easier to obtain the agreement of the Member States. There is thus no complete policy governing immigration in all its aspects, and an indication of the Member States’ reluctance to adopt a real common policy can be found in the fact that the extension of the scope of the codecision procedure, brought about by Decision 2004/927/EC, had no bearing upon the central point of immigration policy, namely legal immigration.

To say something here about the Community provisions in the area of legal immigration, adopted pursuant to Article 63(3)(a) of the EC Treaty (“con-ditions of entry and residence, and standards on procedures for the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunion”) and Article 63(4) (“measures defining the rights and conditions under which nationals of third countries who are legally resident in a Member State may reside in other Member States”):(a) Entry into the European Union is subject to certain conditions which, if

they are not all satisfied, render presence on the territory unlawful.First of all, a person must cross at an authorised crossing point on the external

border. He must possess a passport or other equivalent travel document. He must be able to show the reasons for his entry and its purpose and he must have reasonably sufficient financial resources. In some cases, he

122 On the measures in question, see R. Pisillo Mazzeschi, Strumenti comunitari di prevenzione e di contrasto all’immigrazione clandestina, Diritto dell’Unione europea (2004) 723 ff.

123 On the provisions which constitute asylum policy, see para. 7 above.

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must be in possession of a visa. There must be no non-admission alert in his regard, nor must he represent a threat to public order, national security or the international relations of the Member States. If any one of those conditions is not satisfied, the State must refuse entry, unless there are humanitarian grounds, national policy reasons or international obligations precluding it from doing so, in which case admission would be restricted to that particular State.124

As regards entry visas, it is necessary to distinguish between stays of short duration and those lasting longer. In the first case (stays of no more than three months), there is a visa requirement only for people of the nation-alities listed in Annex I to Council Regulation (EC) No 539/2001.125 For stays of longer than three months, independently of their purpose, a visa will be required of all foreigners, even those exempted from the short-stay visa requirement.

(b) A long-stay visa will be issued where one of the grounds justifying a stay is present. A foreigner applying for a visa will have no right to obtain one, since the States remain free, as a principle of international law, to regulate the conditions of entry to their territory. The harmonisation of the condi-tions for the issue of residence permits has proven to be the most delicate and difficult of all areas of immigration policy, the Community measures adopted to date all relating to very specific aspects.

The victims of trafficking in human beings (or of an action to facilitate illegal immigration, if the States so decide), who cooperate with the com-petent authorities in the investigations and legal proceedings taken to punish that crime, may obtain a residence permit, even if they are irregu-larly present in the territory of the Union. If they are granted a residence permit, its duration will be linked to that of the national proceedings.126

School pupils, students, (unpaid) trainees and voluntary workers may obtain a residence permit of one year’s duration.127 Requirements include the possession of sickness insurance covering the usual risks in the host

124 See Article 5 of the convention implementing the Schengen agreement.125 OJ L 81, 21/3/2001, 1, as amended. Annex II to the regulation sets out the nation-

als who are exempted from the visa requirement for short-term stays.126 Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued

to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (OJ L 261, 6/8/2004, 19). The deadline for transpo-sition of the directive is 6 August 2006.

127 Council Directive 2004/114/EC of 13 December 2004 on the conditions of admis-sion of third-country nationals for the purposes of studies, pupil exchange, unre-munerated training or voluntary service (OJ L 375, 23/12/2004, 12). The deadline for transposition is 12 January 2007.

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Member State and sufficient resources with which to live, in addition of course to not posing a threat to public order, public security or public health. Interestingly, a residence permit issued for the purposes of study will entitle the holder to take up work, although it must be of a secondary nature128 outside his study time and subject to the maximum number of hours laid down by the Member State.

A special procedure is laid down for the admission of third-country nation-als for scientific purposes.129

As far as family reunion is concerned, and the resulting entry and resi-dence for family reasons, certain minimum standards are set out it a direc-tive.130

Difficulties have been encountered in what has been a particularly com-plex process for the adoption of the proposal for a directive on the condi-tions of entry and residence of third-country nationals for the purpose of paid employment or self-employed economic activities131 and so the issue of residence permits for work purposes remains governed by national law. In any event, should the proposal be approved, it will remain within the discretion of the Member States to decide whether or not to programme admissions, the subject of harmonisation being limited to the substantive conditions of entry and residence.

(c) The treatment of third-country nationals resident in one of the Member States is governed by national law, except where there are relevant Com-munity provisions or international agreements relating to fundamental rights. Foreigners who attain the status of long-term residents are entitled to equal treatment with nationals of the host State. That status may be granted at the request of an applicant foreigner who has legally resided in the State for at least five years and who has sufficient resources and sickness insurance.132 It is noteworthy that the conditions applied are the

128 Article 17 provides that “student shall be entitled to be employed and may be entitled to exercise independent economic activity”.

129 See Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research (OJ L 289, 3/11/2005, 15), whose deadline for transposition is 12 October 2007.

130 Council Directive 2003/86/EC of 22 September 2003 on the right to family reuni-fication (OJ L 251, 3/10/2003, 12), whose deadline for transposition expired on 3 October 2005. The rules apply only for family members of foreigners, not to foreign family members of Union citizens, as to whom, see para. 8 above.

131 COM(2001)0386 of 11 July 2001.132 Council Directive 2003/109/EC of 25 November 2003 (OJ L 16, 23/1/2004, 44).

The deadline for transposition is 23 January 2006. On this directive, see E. Guild, The Legal Elements of European Identity. EU Citizenship and Migration Law (Kluwer law international, The Hague, 2004) 222; S. Peers, Implementing equal-

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same as those which apply to citizens of the Union who wish to exercise freedom of movement for purposes other than work.

A particular aspect relating to the treatment of foreigners is intra-Commu-nity mobility, or the possibility of movement within the Union. A holder of a short-stay Schengen visa will be able to move around within the Union for so long as the document is valid. A person legally residing in a Member State may move for up to three months, albeit without being able to join the labour market of the host State.133 By contrast, the right to move residence from one Member State to another is accorded only to certain classes of foreigner. In particular, students may be admitted to another Member State for the purpose of continuing their studies.134 A person who has acquired the status of long-term resident has broader rights, entitling him even to work in another host State.135

(d) The expulsion of third-country nationals is still partially within the remit of national law. Article 5 of the convention implementing the Schengen Agreement requires the Member States to refuse entry to any third-coun-try national who fails to satisfy the prescribed conditions. Procedures are defined by domestic law. An expulsion order issued by the competent authority of a Member State and justified on the ground that the foreigner represents a serious and real threat to public order or national security or by a failure to observe national rules on entry and residence, will be recog-nised by the other Member States and may be enforced by the State where the person is to be found.136

In general, the limits on expulsion derive from the European Convention on Human Rights. According to the interpretation of the European Court of Human Rights, a State may not expel a foreigner to a country where he may be subject to torture or inhuman or degrading treatment, and further limits on State power may be imposed in order to protect the family unit.

The grant of the status of long-term resident confers further protection against expulsion in the sense that a long-term resident may only be expelled if he represents an actual and sufficiently serious threat to public order or public security.137 This is similar to the rule for citizens of the

ity? The directive on long-term resident third-country nationals, E. L. Rev. (2004) 437 ff.

133 Council Regulation (EC) No 1091/2001 of 28 May 2001 on freedom of movement with a long-stay visa (OJ L 150, 6/6/2001, 4).

134 See Article 8 of Directive 2004/114/EC.135 See Article 14 of Directive 2003/109/EC.136 Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of deci-

sions on the expulsion of third country nationals (OJ L 149, 2/6/2001, 34). The deadline for transposition was 2 December 2002.

137 Article 12 of Directive 2003/109/EC.

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Union: after a certain number of years of residence, a Union citizen enjoys special protection against expulsion. Again, it is an indication of the ten-dency to play down the importance of nationality in favour of residence.

V.12 Immigration policy in the Treaty establishing a Constitution for Europe

The law as it currently stands, as outlined, cannot be said to be wholly satis-factory.138 Within the European Convention, entrusted with preparing a draft revision of the Treaties, Working Group X, charged with freedom, security and justice, formulated proposals intended to improve as a whole, and therefore also as regards immigration, the operating rules of the area of freedom, security and justice.

The solutions, aimed at bringing the area under the Community method and at ending the anomalies which have thus far characterised it139 were largely taken up in the final text approved by the Convention and were confirmed by the Intergovernmental Conference.

In the Treaty establishing a Constitution for Europe140 the subject of immi-gration is dealt with in a way which is sometimes similar to the present system, sometimes innovative. We see continuity in the fact that immigration continues to be one of the components of the area of freedom, security and justice141 and is addressed alongside policy on checks at borders and asylum. The innova-tions are to be found in the general structure of the text and in the specific solu-tions developed for immigration policy.

The Constitution demolishes the three pillars, unifying the subjects dealt with in a single treaty (after the “communitarisation” of the Treaty of Amster-dam, the “unionisation” of the Treaty establishing the Constitution). It does,

138 See, in particular, the observations in Intervention de M. Henri Labayle, à la réunion du Groupe de travail du 8 Octobre 2002, «Instruments et procédures de l’Espace de liberté, sécurité et justice» (WG X −WD 3, 11 October 2001) in the context of Working Group X, mentioned below.

139 See the final report of Working Group X, CONV 426/02 of 2 December 2002.140 OJ C 310, 16/12/2004.141 See Part III (“The policies and functioning of the Union”), Title III (“Internal poli-

cies and actions”), Chapter IV (“Area of freedom, security and justice”), Section 2 (“Policies on border checks, asylum and immigration”). See F. Clementi, Lo spazio di libertà, sicurezza e giustizia, in F. Bassanini, G. Tiberi (eds), La Costituzione europea. Un primo commento (Il Mulino, Bologna, 2004) 103; P.J. Kujiper, The evolution of the third pillar from Maastrict to the European constitution: institu-tional aspects, C.M.L. Rev. (2004) 609; B. Nascimbene, Politica di immigrazione e Costituzione europea, Le istituzioni del federalismo (2004) 727; E. Brancolino, La politica in materia di immigrazione, in G. Adinolfi, A. Lang (eds), Il Trattato che adotta una Costituzione per l’Europa: quali limitazioni all’esercizio dei poteri sovrani degli Stati? (Giuffrè, Milano, 2006) 303.

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however, distinguish as far as is necessary competences, the procedures for the adoption of acts (and for challenging them), the jurisdiction of the Court of Justice, depending on whether the matter is one which now belongs to the first pillar (EC Treaty) or to the second (common foreign and security policy) or third (justice and home affairs) pillars (EU Treaty). In the area of freedom, security and justice, the Union is to have competence to legislate and to adopt legally binding acts (legislative acts, such as laws and framework laws, non-legislative acts such as regulations and decisions Article I-33) concurrently with the competence of the Member States who are to exercise their competence “to the extent that the Union has not exercised, or has decided to cease exercising, its competence” (Article I-12[2]).

The Union constitutes an “area” which is achieved thanks to, or “by adopt-ing European laws and framework laws intended, where necessary, to approxi-mate national laws”.142

The content of the rules on immigration is articulated around the three diverse themes or policies of border controls, asylum and immigration in the strict sense.

Internal borders are distinguished from external borders and it is signifi-cant to note the addition of words not contained in Article 62 EC that pro-vide that “the competence of the Member States concerning the geographical demarcation of their borders, in accordance with international law”, remains unaffected (Article III-265[3]). Community law and (future) Union law cannot invade upon areas held to be within the exclusive competence of the Member States. However, it is by laws and framework laws that short-stay visas and res-idence permits would be governed, as well as controls at the external borders and an integrated system for managing them, the movement within the Member States, for a short period, of nationals of third countries and the absence of checks on persons when crossing the internal borders: this is a single area and nationality is unimportant, even in the case of third country nationals on whom checks will already have been carried out at the external border.

The freedom of movement of citizens of the Union (a fundamental right of the citizen) is acknowledged in Article I-10 and in Article II-105, which itself suggests the fundamental nature of the right: every citizen of the Union has the right to move and reside freely, while to nationals of third countries that right may be accorded, provided that they are legally resident in the territory of a Member State.143

Asylum policy is more compartmentalised and includes various forms and variants: temporary protection, which offers “appropriate status to any third country national requiring international protection” and “compliance with the

142 Article I-42(1), first indent. On approximation, see Article III-172.143 On freedom of movement of persons in the Treaty establishing a Constitution for

Europe, see Chapter II, para. 14.

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principle of non-refoulement” (Article III-266[1]) or “subsidiary protection”, which comprises a “uniform status” for those who, “without obtaining Euro-pean asylum, are in need of international protection” (Article III-266[2][b]. Viewed thus, temporary protection and subsidiary protection seem to be the same, except for the temporary protection that may be offered to persons who are not seeking asylum, but who are rather “displaced persons in the event of a massive inflow” (Article III-266[2][c].

Laws and framework laws are the legal instruments to be used to draw up the future “common European system of asylum”. Leaving aside certain terminological differences from the text currently in force (Article 63 EC), there is new material in the “partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsid-iary or temporary protection” (Article III-266[2][g]). On the other hand, there is no longer any reference to sharing the burden on Member States receiv-ing refugees and displaced persons. The reason for the omission is the very importance of the subject, which now becomes the subject of an ad hoc rule (Article III-268) which codifies the “principle of solidarity and fair sharing of responsibility, including financial implications.” The principle takes on hori-zontal significance as regards border controls, asylum and immigration: the acts adopted must contain “appropriate measures” for the application of a prin-ciple of general character (one that is even mentioned in the general provisions, Article III-257[2]).

Immigration policy thus seeks to lay down substantive and procedural rules on both the “uniform status”, valid throughout the Union, of persons who are granted it, and the “uniform status” of persons benefiting from subsidiary protection.

Other procedural rules relate to the grant and withdrawal of the “uniform status” (of refugees or those benefiting from subsidiary protection), the deter-mination (“criteria and mechanisms”) of the State responsible for considering an application for asylum or subsidiary protection, the “conditions of accep-tance” of such applicants (the latter rules being both procedural and substan-tive) and the establishment of a “common system” on the temporary protection of displaced persons.

New procedures, as compared with the current text (Article 64[2] EC), are laid down for meeting emergencies, such as an unexpected influx of third country nationals: here the Council of Ministers may adopt a regulation or a decision, after consulting the European Parliament − that being a role not pro-vided for in the current Treaty.

The rules in question must be consistent with the international law laid down by the Geneva Convention on the status of refugees of 1951 and the Protocol of 1967: Community laws must comply with the Convention, the right to asylum being a fundamental right protected by Article II-78 (the right to

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Chapter V

asylum, the article provides, is guaranteed with due respect for the rules of the Geneva Convention and "in accordance with the Constitution").

Broader than the current text (Article 63[3] and [4] EC) are the provisions on immigration in the strict sense. A number of points made in the Conclusions of the extraordinary European Council of Tampere of 15 and 16 October 1999 are expressly taken up which, in the EU Treaty, fall in the domain of police and judicial cooperation in criminal matters, such as the prevention and repression of trafficking in human beings (Article 29 EU). Immigration policy thus con-templates the efficient management of migratory flows, equal treatment of third country nationals residing legally in the Member States and enhanced measures to prevent and combat illegal immigration and trafficking in human beings.

As regards the acts that may be adopted, the Constitution provides (Article III-278[2]) that European laws and framework laws are to govern the condi-tions of entry and residence, long-term visas and residence permits, including those for the purpose of family reunion, the rights of third country nationals residing legally in a Member State and the conditions governing freedom of movement and residence in other Member States. The policy also includes ille-gal immigration and residence, expulsion and repatriation and the Constitution provides (Article III-267[3]) for the conclusion of agreements with third coun-tries for the readmission of illegal immigrants to their countries of origin or provenance. It also mentions of course the fight against trafficking in persons, in particular women and children.

Finally, the Union pays special attention to two aspects: the first, which might be regarded as falling with its competence to carry out supporting, coor-dinating or complementary action (Article I-17) rather than the other concur-rent competences more prevalent in the domain, concerns measures designed to promote the integration of third country nationals legally residing in a Member State. The Union's action, which provides incentive and support for action by the Member States, is strictly limited and may not include harmonisation of the laws and regulations of the Member States (Article III-267[4]).

The second concerns the right of the Member States to determine admis-sion quotas, or according to the text (Article III-267[5]), volumes of admission of third country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed.

Whatever laws might be adopted under these provisions to complement those already existing, it will be important for them to be coordinated with the fundamental rights protected under Part II. A combined reading of the various provisions and parts will be required both for systematic reasons and for rea-sons of coherence.

Insofar as concerns the jurisdiction of the Court of Justice and the pro-tection of individuals' rights, thanks to "unionisation" there is no longer the restriction we have today that only a court of last instance may make a refer-ence for a preliminary ruling (Article 68 EC). Article III-369, which substan-

245

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tially reproduces Article 234 EC, introduces an accelerated procedure for cases pending before a court with regard to a person in custody. The right to a fair trial, to an effective remedy and to an impartial tribunal, referred to in Article II-107 and already to be found in Article 6 of the European Convention on Human Rights, are stronger in the Constitution, extending even to references for preliminary rulings, which, under the Constitution, would not, as they are today, be restricted to courts of last instance.

The mutual confidence between the Member States, often referred to in the Constitution in connection with the achievement of an area of freedom, security and justice (in Article I-42, for example), is an expression of the prin-ciple of sincere cooperation enshrined in Article I-5 (currently Article 10 EC) and of proper fulfilment, on the part of the Member States, of the obligations deriving from the Constitution and from the acts of the institutions. The same spirit and ratio inform the jurisdictional system, built on the Court of Justice on one side and the national courts on the other. After stating that the Court, including the General Court and the specialised courts (yet to be set up), is to ensure that, in the interpretation and application of the Constitution, the law is observed, Article I-29 goes on to provide that the Member States “shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”.144 The citizen, the individual generally speaking, must in short be offered the broadest jurisdictional protection of his substantive rights by national courts, which are also Community courts, and which are certainly the closest and most accessible to him.

144 Effective access to justice and mutual confidence among the various legal sys-tems were some of the fundamental points discussed in the Conclusions of the Tampere European Council and confirmed in the Hague Programme, referred to in note 66. The duty of cooperation between Community court and national court is an established principle in Community case-law (inter alia, Case C-312/93 Peterbroeck [1995] ECR I-4599, Case C-50/00 P Unión de Pequeños Agricultores [2002] ECR I-6677, paras 41 and 42). When applying Community law, a national court becomes a Community court, thus ensuring the jurisdictional protection to which individuals are entitled under the laws and principles common to national legal systems. As Advocate-General Ruiz-Jarabo Colomer stated in his opinion in a case touching upon the principle of ne bis in idem in the context of criminal judicial cooperation (Joined Cases C-187/01 and C-385/01 Gözütok and Brügge [2003] ECR I-1345, at para. 124) there are common values and principles to which the Member States adhere, thus forming a sort of “common market of fundamental rights”, even in the field of criminal judicial cooperation, which is based on “trust in the adequacy of one's partners' rules and also trust that these rules are correctly applied”. It is an “essential element in the development of the European Union.”

Addendum

The European Council held on 21 and 22 June 2007, identified a way of getting out of the impasse caused by the failure to ratify the Treaty establishing a Consti-tution for Europe: that of abandoning that Treaty (as stated in the Post scriptum to the Introduction) while preserving its substance. The option of abrogating the existing Treaties and replacing them with a new act founding the Union was discarded and replaced by a more modest, more traditional approach of incor-porating the changes agreed in the Constitution into the existing Treaties. An Intergovernmental Conference was therefore convened with a detailed mandate.1 The 2007 IGC was to draw up a text making amendments to the existing Trea-ties which corresponded to the innovations contained in the Constitution, purged of anything with a “constitutional” flavour to it. Consequently, any reference to “laws” or “framework laws”, to the Minister for Foreign Affairs, to the symbols of the Union (but quite surprisingly not to the “ordinary legislative procedure”, which becomes the new term for the codecision procedure) is eliminated while, for the remainder, much of the Constitution is preserved. The Treaty drawn up by the IGC (as stated in the Post scriptum) was signed at Lisbon on 13 December 20072 and is to be ratified so as to enter into force in 2009.

The Treaty of Lisbon amends the establishing Treaties in force: the Treaty on European Union and the Treaty establishing the European Community, which is to be renamed the “Treaty on the Functioning of the Union”. As a result of the change in the name of the Community, which will be replaced by “Union” in each and every provision, the Community and the Union will be unified, as was already provided for (albeit in a more consistent manner) in the Constitution.

The Treaty on European Union will contain the general provisions on prin-ciples and values, the institutions, enhanced cooperation, the Common Foreign and Security Policy, including the Common Security and Defence Policy, amend-

1 The mandate of the 2007 IGC is annexed to the Conclusions of the (German) Presidency of the European Council of 20-21 June 2007.

2 The Treaty of Lisbon is published in OJ C 306 of 17 December 2007.

248

Addendum

ments, accession and withdrawal; the so-called third pillar will be inserted into the Treaty on the Functioning of the Union and made subject to the general rules of decision-making, but for some exceptions relating to judicial cooperation. The Charter of Fundamental Rights of the European Union will become binding, but will not be contained in the Treaty: Art. 6 of the Treaty on Union contains a refer-ence to the Charter and makes it binding.3

The Treaty on the Functioning of the Union will set out the provisions on the institutions and acts, together with the legal bases, within the classification of competences already defined in the Constitution.

Agreement was reached in return for a number of major concessions. The application of a number of controversial rules has been postponed (for example, as regards the new methods for calculating the qualified majority of the Council). The Charter may not be invoked in judicial proceedings in the United Kingdom or Poland (except for those provisions of the Charter that reproduce the content of legislative provisions already binding on some other footing) and the right of the United Kingdom and Ireland not to participate in the adoption of acts relat-ing to the area of freedom, security and justice is extended to police and judicial cooperation in criminal matters.

As regards more specifically the matters considered in this work, in the first place the changes provided for in the Constitution have been taken over virtu-ally in their entirety by the Treaty of Lisbon. The internal market, including free movement of workers, the right of establishment and the freedom to supply ser-vices, and the area of freedom, security and justice, which covers immigration, are matters of shared competence.

(a) From a systematic point of view, the provisions on citizenship in the Treaty on the Functioning of the Union are better located as located to the Constitution in that they are not dispersed around the text.

After providing – quite superfluously, as in the Constitution – that Union citizenship is additional to national citizenship, Art. 17 enumerates the rights associated with that status, which are then defined in subsequent provisions. As explained also in Chapter I of this work, in reality those rights are not exclusive to Union citizens. A new right specific to citizens has been inserted in Art. 21, which takes over Art. I-47 of the Constitution: the collective right to take the initiative to invite the Commission to submit a proposal for legislation. The rules relating to such citizens’ initiatives are to be laid down by a regulation adopted by the Council and the European Parliament in accordance with the ordinary legislative procedure. It is noteworthy, and true also of the Constitution, that the rights governed by the Treaty on the Functioning of the Union do not include

3 The Charter was re-promulgated at Strasbourg on 12 December 2007 by the Com-mission, the Council and the European Parliament and is published in OJ C 303 of 14 December 2007.

249

Addendum

some rights set out in Title on Citizens’ Rights of the Charter of Fundamen-tal Rights: the right to good administration (Art. 41) and the right of access to documents (Art. 42) are not even mentioned in the Treaty on the Functioning of the Union. It is further pointed out that use of the special legislative procedure (which does not secure equality of the Council and the European Parliament) is frequently prescribed in the sensitive and “constitutional” area of rights con-nected with citizenship in order to define the conditions under which those rights are to be exercised.4 In addition, a new legal basis has been laid down. Art. 18(3) empowers the Council to “adopt measures concerning social security or social protection” connected with the free movement of citizens of the Union. In this way, a gap in the existing law is filled. The adoption of provisions in this field will enable the status of Union citizen to be increasingly equated with that of a worker, who benefits by better treatment as matters stand.

(b) As far as workers are concerned, the change made by the Constitution so as to make freedom of movement a worker’s right has not been taken over: Art. 39(1) maintains the present formulation “Freedom of movement for workers shall be secured within the Union”. In addition, a new paragraph is added to Art. 42, taking over the substance of Art. III-136(2) of the Constitution: a Member State may obtain the suspension of the legislative procedure if it considers that a draft legislative act relating to social security would “affect important aspects of its social security system”. In that event, the matter will be referred to the European Council, which may refer the draft back to the Council or request the Commission to submit a new proposal. If the European Council takes no action, the proposal will fall (an eventuality not provided for in the Constitution).

(c) As far as the right of establishment is concerned, two changes are made, both already provided for in the Constitutional Treaty. The first relates to Art. 47, the legal basis for the adoption of directives on the recognition of diplomas and for the coordination of national provisions concerning the taking-up and pursuit of self-employed activities. As it stands at present, the law provides as regards the latter category of directive that the Council is to act unanimously in decid-ing on directives “the implementation of which involves in at least one Member State amendment of the existing provisions laid down by law governing the pro-

4 The special legislative procedure (i.e. Council to decide unanimously after con-sulting the European Parliament) is prescribed for the adoption of the following acts: measures concerning social security or social protection connected with free movement (Art. (18[3]); arrangements for voting in municipal elections in the Member State of residence and for the European Parliament (Art. 19); coordi-nation and cooperation measures to facilitate diplomatic and consular protection (Art. 20: in this case the Council does not decide by unanimity but by a qualified majority).

250

Addendum

fessions with respect to training and conditions of access for natural persons”. That exception is removed. The second change is of a systematic nature: Art. 294 on according national treatment as regards participation in the capital of compa-nies and firms within the meaning of Art. 48 is to become Art. 48a.

(d) The chapter on services is subject to one sole change. It relates to the word-ing of the first paragraph of Art. 53 (where “The Member States declare their readiness to undertake the liberalisation of services beyond the extent required by the directives” becomes “The Member States shall endeavour to undertake the liberalisation of services beyond the extent required by the directives”, thereby taking over the wording of the corresponding paragraph of Art. III-148 of the Constitution.

(e) The most significant changes as compared with the existing law, but not the Constitutional Treaty, are concerned with visas, asylum and immigration. The current summary provisions are repealed and replaced by more detailed rules. The approach has not changed: the provisions of the Treaty do not lay down substantive rules or directly applicable principles, but indicate the matters to be regulated by means of secondary legislation.

The Treaty of Lisbon incorporates new provisions in the Treaty on the Functioning of the Union dealing with visas (Art. 62), asylum (Art. 63) and immigration (Art. 63a), which reproduce virtually verbatim Arts III-265, III-266 and III-267 of the Constitution. The most noteworthy change concerns Art. 62: as compared with the corresponding Art. III-265 of the Constitution, the provi-sion also sets out the procedure for the adoption of Community measures con-cerning identity cards with the aim of facilitating the free movement of Union citizens (the corresponding provision of the Constitution was set forth in Art. III-125[2]).

Some major differences as compared with the existing law do not ensue only from the new, more precise definition of the competences of the institu-tions with regard to the area of freedom, security and justice, but result from the general changes made to the functioning of the Union. Indeed, the most heav-ily criticised exceptions to the application of the Community method at present characterising Title IV of the EC Treaty are fated to disappear. Full recognition will therefore be given to the role of the European Parliament as a result of the generalised application of the ordinary legislative procedure and the Court of Justice will have full jurisdiction to give preliminary rulings5 as a consequence of the abrogation of Arts 67 and 68 of the present Treaty.

5 An accelerated procedure is provided for where a question for a preliminary ruling is raised in a case pending with regard to a person in custody: new paragraph added to Art. 234 of the Treaty on the Functioning of the Union, reproducing the last paragraph of Art. III-369 of the Constitution.

Table of Cases

Case 26/62 Van Gend en Loos [1963] ECR 3 10Case 15/69 Ugliola [1969] ECR 363 86Case 44/72 Marsman [1972] ECR 1243 87Case 152/73 Sotgiu [1974] ECR 153 62, 88, 91Case 167/73 Commission v France [1974] ECR 359 70, 84Case 2/74 Reyners [1974] ECR 631 26, 34, 90, 106, 109,

121, 144, 168, 169, 193

Case 21/74 Airola [1975] ECR 221 11Case 33/74 Van Binsbergen [1974] ECR 1299 26, 173, 179, 182, 189,

193Case 36/74 Walrave [1974] ECR 1405 68, 70, 153Case 41/74 van Duyn [1974] ECR 1337 26, 95, 96Case 66/74 Farrauto [1975] ECR 163 99Case 67/74 Bonsignore [1975] ECR 297 96Case 32/75 Cristini [1975] ECR 1085 87Case 36/75 Rutili [1975] ECR 1219 95, 96Case 39/75 Coenen [1975] ECR 1547 174, 179Case 48/75 Royer [1976] ECR 497 22, 81, 100Case 118/75 Watson and Belmann [1976] ECR 1185 22Case 13/76 Donà [1976] ECR 1333 70, 71, 154, 170, 171Case 71/76 Thieffry [1977] ECR 765 136, 137, 144Case 8/77 Sagulo [1977] ECR 1495 81Case 11/77 Patrick [1977] ECR 1199 137Case 30/77 Bouchereau [1977] ECR 1999 95Case 15/78 Koestler [1978] ECR 1971 175Case 16/78 Choquet [1978] ECR 2293 166Case 33/78 Somafer [1978] ECR 2183 126Joined Cases 110-111/78 Van Wesemael [1979] ECR 35 182, 184, 189

252

Table of Cases

Case 115/78 Knoors [1979] ECR 399 73, 111, 132Case 136/78 Auer [1979] ECR 437 8, 128Case 175/78 Saunders [1979] ECR 1129 72Case 207/78 Even [1979] ECR 2019 87Case 62/79 Coditel [1980] ECR 881 182Case 98/79 Pecastaing [1980] ECR 691 100, 101Case 131/79 Santillo [1980] ECR 1585 95, 100, 101Case 138/79 Roquette Frères [1980] ECR 3333 36Case 139/79 Maizena [1980] ECR 3393 36Case 149/79 Commission v Belgium [1980] ECR 3881 39, 89, 121, 168Case 149/79 Commission v Belgium [1982] ECR 1845 39, 80, 81Case 157/79 Pieck [1980] ECR 2171 79Case 817/79 Buyl [1982] ECR 245 127Case 203/80 Casati [1981] ECR 2595 21, 166Case 279/80 Webb [1981] ECR 3305 158, 175, 182, 183,

184, 189Case 53/81 Levin [1982] ECR 1035 69, 154Joined Cases 62 and 63/81 Seco v Evi [1982] ECR 223 159, 164Case 65/81 Reina [1982] ECR 33 87Case 76/81 Transporoute [1982] ECR 417 174Joined Cases 115/81 and 116/81 Adoui [1982] ECR

166596, 99, 101

Case 246/81 Broekmuelen [1981] ECR 2311 73Joined Cases 35/82 and 36/82 Morson [1982] ECR 3723 228Joined Cases 286/82 and 26/83 Luisi and Carbone [1984]

ECR 37722, 31, 151, 156, 202

Case 13/83 European Parliament v Council [1985] ECR 1513

166, 214

Case 107/83 Klopp [1984] ECR 2971 123, 124, 125, 196Case 180/83 Moser [1984] ECR 2539 72Case 237/83 Prodest [1984] ECR 3153 68Case 238/83 Meade [1984] ECR 2631 73Case 252/83 Commission v Denmark [1986] ECR 3713 158, 174, 183Case 267/83 Diatta [1985] ECR 567 75, 76, 227Case 270/83 Commission v France [1986] ECR 273 122, 123, 127Case 53/84 Adams [1985] ECR 3595 45Case 137/84 Mutsch [1985] ECR 2681 87Case 205/84 Commission v Germany [1986] ECR 3755 109, 125, 158, 159,

174, 179, 183, 184Case 222/84 Johnson [1986] ECR 1662 101Case 307/84 Commission v France [1986] ECR 1725 90

253

Table of Cases

Case 59/85 Reed [1986] ECR 1283 75, 88Case 66/85 Lawrie-Blum [1986] ECR 2121 69, 70, 90Case 79/85 Segers [1986] ECR 2375 123, 124Case 131/85 Gül [1986] ECR 1573 97, 114, 134Case 139/85 Kempf [1986] ECR 1741 69Case 222/85 Commission v Italy [1987] ECR 2625 90, 91Joined Cases 281, 283, 284, 285 and 287/85 Ger-

many and Others v Commission [1987] ECR 3203

204

Case 316/85 Lebon [1987] ECR 2811 76Case 352/85 Bond van Adverteerders [1988] ECR 2085 153, 171, 181Case 427/85, Commission v Germany [1988] ECR 1123 195Case 12/86 Demirel [1987] ECR 3719 229Case 39/86 Lair [1988] ECR 3161 32, 71Case 63/86, Commission v Italy [1988] ECR 29 127, 195Case 197/86 Brown [1988] ECR 3205 32, 69Case 204/86 Greece v Council [1988] ECR 5323 51Case 222/86 Heylens [1987] ECR 4112 101, 129, 141Case 249/86 Commission v Germany [1989] ECR 1263 76, 96Case 263/86 Humbel [1988] ECR 5365 153Case 292/86 Gullung [1988] ECR 111 9, 179, 198Case 81/87 Daily Mail [1988] ECR 5483 4, 115, 122, 123Case 143/87 Stanton [1988] ECR 3877 110, 128Case 186/87 Cowan [1989] ECR 195 10, 17, 23, 31, 151,

157, 170, 202Case 196/87 Steymann [1988] ECR 6159 109, 119, 158Case 204/87 Berkaert [1988] ECR 2029 111Case 305/87 Commission v Greece [1989] ECR 1491 88, 127, 171, 195Case 321/87 Commission v Belgium [1989] ECR 997 23, 79, 151Case 344/87 Bettray [1989] ECR 1621 69Case 379/87 Groener [1989] ECR 3967 86Joined Cases 389/87 and 390/87 Echternach and Moritz

[1989] ECR 72369, 91, 227

Case 3/88 Commission v Italy [1989] ECR I-4035 136Case 9/88 Lopes da Veiga [1989] ECR 2989 68Case 33/88 Allué [1989] ECR 1591 90Joined Cases 54/88, 91/88 and C-14/89 Eleonora Nino

and Others [1990] ECR I-3537111

Case 265/88, Messner [1999] ECR 4209 186Case C-61/89 Bouchoucha [1990] ECR I-3551 132, 142

254

Table of Cases

Case C-68/89 Commission v Netherlands [1991] ECR I-2637

23, 79, 151

Case C-113/89 Rush Portuguesa [1990] ECR I-1440 164, 183, 228Case C-180/89 Commission v Italy [1991] ECR I-709 157, 158, 161, 164,

183Case C-192/89 Sevince [1990] ECR I-3479 229Case C-213/89 Factortame [1990] ECR I-2466 101Case C-221/89 The Queen v Secretary of State for Trans-

port, ex parte Factortame [1991] ECR I-3905109

Case C-260/89 ERT [1991] ECR I-2925 133, 181Case C-279/89 Commission v United Kingdom [1992]

ECR I-5785128

Case C-288/89 Gouda [1991] ECR I-4007 131, 157, 176, 180, 182, 183, 185

Case C-292/89 Antonissen [1991] ECR I-745 71, 82Case C-294/89 Commission v France [1991] ECR I-

3591175, 195

Case C-332/89 Merchandise [1991] ECR I-1027 161Case C-340/89 Vlassopoulou [1991] ECR I-2357 129, 137, 141Case C-355/89 Barr and Montrose Holdings ECR [1991]

I-347968

Case C-363/89 Roux [1991] ECR I-273 80Case C-3/90 Bernini [1992] ECR I-1071 69, 70, 71Case C-17/90 Pinaud Wagner [1991] ECR 5253 166Case C-18/90 Kziber [1990] ECR I-199 230Case C-41/90 Höfner and Elser [1991] ECR I-1979 155Case C-76/90 Säger [1991] ECR I-4221 176, 182Case C-159/90 Grogan [1991] ECR I-4685 119, 153, 154, 161Case C-204/90 Bachmann [1992] ECR I-249 174, 183Case C-213/90 ASTI [1991] ECR I-3507 88Case C-295/90 European Parliament v Council [1992]

ECR I-419324

Case C-300/90 Commission v Belgium [1992] ECR I-305

174, 183

Case C-332/90 Steen [1992] ECR I-341 72Case C-369/90 Micheletti [1992] ECR I-4239 9, 74, 113, 162Case C-370/90 Surinder Singh [1992] ECR I-4265 73, 228Case C-4/91 Bleis [1991] ECR I-5627 90Case C-60/91 Morais [1992] ECR I-2085 72Case C-97/91 Oleificio Borelli [1992] ECR I-6330 101Case C-104/91 Aguirre Borrel [1992] ECR I-3003 129

255

Table of Cases

Case C-106/91 Ramrath [1992] ECR I-3351 110, 125, 136, 137, 185, 186

Case C-111/91 Commission v Luxembourg [1993] ECR I-817

87

Case C-168/91 Konstantinidis [1993] ECR I-1198 16Case C-171/91 Tsiotras [1993] ECR I-2925 82Case C-211/91 Commission v Belgium [1992] ECR I-

6557180

Joined Cases C-267/91 and C-268/91 Keck and Mith-ouard [1993] ECR I-6097 178, 187

Case C-272/91 Commission v Italy [1994] ECR I-1409 121, 168Case C-330/91 Commerzbank [1993] ECR I-4017 123, 128Case C-17/92 Federación de Distribuidores Cinemato-

gráficos [1993] ECR I-2239181

Case C-19/92 Kraus [1993] ECR I-1663 72, 73, 111, 130, 135, 136, 137

Case C-20/92 Hubbard [1993] ECR I-3777 171Case C-42/92 Thijssen [1993] ECR I-4047 121, 168Case C-109/92 Wirth [1993] ECR I-6447 153Case C-118/92 Commission v Luxembourg [1994] ECR

I-189188

Case C-275/92 Schindler [1994] ECR I-1039 153, 154, 161, 181, 183

Case C-375/92 Commission v Spain [1994] ECR I-923 176Case C-379/92 Peralta [1994] ECR I-3453 170Case C-419/92 Scholz [1994] ECR I-505 9, 85Case C-1/93 Halliburton [1994] ECR I-1137 128Case C-18/93 Corsica Ferries [1994] ECR I-1783 170Case C-23/93 TV10 [1994] ECR I-4795 157, 179Case C-37/93 Commission v Belgium [1993] ECR I-

629584, 88

Case C-43/93 Vander Elst [1994] ECR I-3808 156, 164, 186, 229Case C-55/93 Van Schaik [1994] ECR I-4837 183, 186Case C-132/93 Steen II [1994] ECR I-2751 72, 112Case C-154/93 Tawill-Albertini [1994] ECR I-451 140Case C-279/93 Schumacker [1995] ECR I-225 87, 183Case C-312/93 Peterbroeck [1995] ECR I-4599 245Joined Cases C-358/93 and C-416/93 Bordessa [1995]

ECR I-361167

Case C-381/93 Commission v France [1994] ECR I-5145

176

Case C-384/93 Alpine Investments B.V. [1995] ECR I-1141

156, 157, 177

256

Table of Cases

Case C-415/93 Bosman [1995] ECR I-4921 70, 72, 154Case C-434/93 Bozkur [1995] ECR I-1494 230Case C-441/93 Pafitis [1998] ECR I-1347 179Case C-473/93 Commission v Luxembourg [1996] ECR

I-320790

Case C-484/93 Svensson and Gustavsson [1995] ECR I-3955

133, 167, 181, 202

Case T-572/93 Odigitria [1995] ECR II-2025 45Case C-294 Opinion concerning the accession by the

Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759

101

Case C-17/94 Gervais [1995] ECR I-4353 112Joined Cases C-29/94 to C-35/94 Aubertin [1995] ECR

I-301111

Case C-55/94 Gebhard [1995] ECR I-4165 109, 110, 131, 136, 137, 152, 158, 159, 160, 185, 195

Case C-58/94 Netherlands v Council [1996] ECR I-2169 58Case C-80/94 Wielockx [1995] ECR I-2493 183, 184Case C-107/94 Asscher [1996] ECR I-3089 70, 183Case C-164/94 Aranitis [1996] ECR I-135 129, 139Case C-175/94 Gallagher [1995] ECR I-4253 101Case C-193/94 Skanavi [1996] ECR I-929 17, 186Case C-214/94 Boukhalfa [1996] ECR I-2253 17, 68Case C-237/94 O’ Flynn [1996] ECR I-2617 84Case C-272/94 Guiot [1996] ECR I-1905 183Case C-334/94 Commission v France [1996] ECR I-

1307127

Case C-18/95 Terhoeve [1999] ECR I-345 73Case C-22/95 Parodi [1997] ECR I-3899 131Joined Cases C-65/95 and C-111/95 Shingara [1997]

ECR I-334317, 99, 100

Case T-66/95 Kuchlenz-Winter v Commission [1997] ECR II-637

32, 82

Case C-134/95 USSL No. 47 di Biella [1997] ECR I-195 155Case T-147/95 Svenska Journalistforbundet [1998] ECR

II-229359

Joined Cases C-225/95 to C-227/95 Kapasakalis [1998] ECR I-4239

72, 111


80, 82

Case C-398/95 SETTG [1997] ECR I-3091 181

257

Table of Cases

Case C-15/96 Schöning-Kougebetopoulou [1998] ECR I-47

87

Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR 2549

71, 154, 155, 157

Case C-56/96 VT4 [1997] ECR I-3143 157, 160Case C-57/96 Meints [1997] ECR I-6689 84, 88Joined Cases C-64/96 and C-65/96 Uecker and Jacquet

[1997] ECR I-317116, 72, 228

Case C-85/96 Martínez Sala [1998] ECR I-2691 16, 26Case C-90/96 Petrie [1997] ECR I-6527 90Case C-108/96 MacQuen [2001] ECR I-837 142, 185Case C-118/96 Safrin [1998] ECR I-1897 185Case C-122/96 Saldanha [1997] ECR I-5325 9, 74Case C-158/96 Kohll [1998] ECR I-1931 182Case C-170/96 Commission v Council [1999] ECR I-

2763210

Case C-171/96 Pereira Roque [1998] ECR I-4607 68, 97Case C-176/96 Lehtonen [2000] ECR I-2681 70Case C-187/96 Commission v Greece [1998] ECR I-

109584, 87, 91

Case C-249/96 Grant [1998] ECR I-621 76Case C-264/96 ICI [1998] ECR I-4695 123, 129, 184Case C-274/96 Bickel [1998] ECR I-7637 26, 87Case C-348/96 Calfa [1999] ECR I-21 16, 17, 31, 95, 97, 100,

151, 156Case C-350/96 Clean Car Autoservice [1998] ECR I-

252171, 173, 174

Case C-367/96 Kefalas [1998] ECR I-2843 179Joined Cases C-369/96 and C-376/96 Arblade [1999]

ECR I-8453131

Case C-1/97 Birden [1998] ECR I-7747 69Case C-24/97 Commission v Germany [1998] ECR I-

213381

Case C-114/97 Commission v Spain [1998] ECR I-6717 91, 96, 121, 168Case C-124/97 Läärä [1999] ECR I-6067 183Case C-131/97 Carbonari [1999] ECR I-1103 111Case C-212/97 Centros [1999] ECR I-1459 4, 123, 124, 132Case C-215/97 Bellone [1998] ECR I-2191 111Case C-224/97 Ciola [1999] ECR I-2517 173, 174, 181, 189Case C-234/97 Fernández de Bobadilla [1999] ECR I-

477385, 127, 139

Case C-245/97 Baxter [1999] ECR I-4809 128, 136

258

Table of Cases

Case C-255/97 Pfeiffer [1999] ECR I-2835 130, 135Case C-302/97 Konle [1999] ECR I-3099 127Case C-307/97 Compagnie de Saint-Gobain [1999] ECR

I-6161128


40

Case C-337/97 Meeusen [1999] ECR I-3289 70, 88, 127Case C-387/97 Wijsenbeek [1999] ECR I-6207 209Case C-391/97 Gschwind [1999] ECR I-5451 87Case C-424/97 Haim [2000] ECR I-5123 86Case C-6/98 PRO Sieben [1999] ECR I-7599 183Case T-14/98 Hautala [1999] ECR II-2638 59Case C-35/98 Verkooijen [2000] ECR I-4071 184Case C-58/98 Corsten [2000] ECR I-7919 173, 175, 176, 177Case C-65/98 Eyüp [2000] ECR I-4747 75Case C-67/98 Zenatti [1999] ECR I-7289 110, 160, 161, 183Case C-97/98 Jägerskiöld [1999] ECR I-7319 155Case C-108/98 RI.SAN [1999] ECR I-5219 111, 155Case C-168/98 Luxembourg v European Parliament and

Council [2000] ECR I-9131146


122

Case C-179/98 Mesbah [1999] ECR I-7955 9Case C-195/98 Österreichischer Gewerkschaftsbund

[2000] ECR I-104987

Case C-200/98 X and Y [1999] ECR I-8261 128Case C-224/98 D’Hoop [2002] ECR I-6191 28Case C-238/98 Hocsman [2000] ECR I-6623 141Case C-251/98 Baars [2000] ECR I-2787 122, 129Case C-281/98 Angonese [2000] ECR I-4139 85, 111Case C-355/98 Commission v Belgium [2000] ECR I-

1221121, 128, 168

Case C-356/98 Kaba [2000] ECR I-2623 77Case C-357/98 Yiadom [2000] ECR I-9265 101Case C-367/98 Commission v Portugal [2002] ECR I-

473121

Case C-411/98 Ferlini [2000] ECR I-8081 69Case C-421/98 Commission v Spain [2000] ECR I-

10375142

Case C-423/98 Albore [2000] ECR I-5965 127, 195Case C-443/98 Guimont [2000] ECR I-10663 112Case C-35/99 Arduino [2002] ECR I-1529 197

259

Table of Cases

Case C-63/99 Gloszczuk [2001] ECR I-6369 231Case C-87/99 Zurstrassen [2000] ECR I-3337 87Joined Cases C-122/99 P and C-125/99 P D and Sweden

v Council [2001] ECR I-431976

Case C-124/99 Borawitz [2000] ECR I-7293 84Case C-145/99 Commission v Italy [2002] ECR I-2235 145, 142, 159Case C-148/99 Veronica [1993] ECR I-487 179Case C-162/99 Commission v Italy [2001] ECR I-541 125, 128Case C-164/99 Portugaia Construçoes [2002] ECR I-

787176, 183

Case C-184/99 Grzelczyk [2001] ECR I-6193 10, 16, 32Case C-192/99 Kaur [2001] ECR I-1237 6Case C-212/99 Commission v Italy [2001] ECR I-4923 91, 121, 169, 171Case C-235/99 Kondova [2001] ECR I-6427 231Case C-250/99 Analir [2001] ECR I-1271 176Case C-257/99 Barkoci and Malik [2001] ECR I-6557 231Case C-263/99 Commission v Italy [2001] ECR I-4195 127Case C-268/99 Jany and Others [2001] ECR I-8615 119, 154, 231Case C-283/99 Commission v Italy [2001] ECR I-4363 91, 121, 169, 171Case C-298/99 Commission v Italy [2002] ECR I-3129 159, 177, 196Case C-390/99 Canal Satélite Digital [2002] ECR I-607 161Case C-413/99 Baumbast [2002] ECR I-7091 17, 26, 28, 31, 67Case C-451/99 Cura Anlagen [2002] ECR I-3193 174, 176, 183, 186Case C-459/99 MRAX [2002] ECR I-6591 77, 186, 228Case C-483/99 Commission v France [2002] ECR I-

478121


21

Case C-31/00 Dreessen [2002] ECR I-3555 138, 141Case C-50/00 P Unión de Pequeños Agricultores v Coun-

cil [2002] ECR I-6677101, 245

Case C-55/00 Gottardo [2002] ECR I-413 11Case C-60/00 Carpenter [2002] ECR I-6279 227, 228Case C-136/00 Danner [2002] ECR I-8147 164Case C-208/00 Überseering [2002] ECR I-9919 4, 123, 134Case T-209/00 Lamberts v European Parliament [2002]

ECR II-220353

Case C-279/00 Commission v Italy [2002] ECR I-1425 177Case C-294/00 Gräber [2002] ECR I-6515 97, 134, 142, 182, 185Case C-100/01 Oteiza Olazabal [2002] ECR I-10981 94, 96Case C-109/01 Akrich [2003] ECR I-9607 73, 96, 228Case C-110/01 Tennah-Durez [2003] ECR I-6239 141

260

Table of Cases

Case C-131/01 Commission v Italy [2003] ECR I-1659 159, 173, 175Case C-167/01 Inspire Art [2003] ECR I-10155 124, 132, 136Joined Cases C-187/01 and C-385/01 Gözütok and

Brügge [2003] ECR I-1345245

Case C-215/01 Bruno Schnitzer [2003] ECR I-14847 159, 177Case C-224/01 Köbler [2003] ECR I-10239 73, 87Case C-243/01 Gambelli [2003] ECR I-13031 156, 181, 183, 184,

186Case C-245/01 RTL [2003] ECR I-12489 183Case C-255/01 Markopoulos [2004] ECR I-9077 129Case C-299/01 Commission v Luxembourg [2002] ECR

I-589988, 128

Case C-313/01 Morgenbesser [2003] ECR I-13467 70, 85, 120, 129, 141, 145

Joined Cases C-317/01 and C-369/01 Abatay [2003] ECR I-12301

165


145

Case C-388/01 Commission v Italy [2003] ECR I-721 173Case C-405/01 Colegio de Oficiales de la Marina Mer-

cante Española [2003] ECR I-1039192, 96

Case C-413/01 Ninni-Orasche [2003] ECR I-13187 69Case C-465/01 Commission v Austria [2004] ECR I-

829188

Joined Cases C-482/01 and C-493/01 Orfanopoulos [2004] ECR I-5257

95, 96

Case C-3/02 Mosconi [2004] not published in the ECR 112Case C-9/02 Hughes de Lasteyrie [2004] ECR I-2409 129, 136Case C-36/02 Omega [2004] ECR I-9609 154, 161, 180, 181Case C-42/02 Lindman [2003] ECR I-13519 182Case C-47/02 Anker [2003] ECR I-10447 92Case C-71/02 Karner [2004] ECR I-3025 161Case C-92/02 Kristiansen [2003] ECR I-14597 84Case C-138/02 Collins [2004] ECR I-2703 83Case C-153/02 Neri [2003] ECR I-13555 139Case C-171/02 Commission v Portugal [2004] ECR I-

564585, 125, 159, 160, 173, 177, 185

Case C-200/02 Zhu [2004] ECR I-9925 9Case C-234/02 P European Ombudsman v Lamberts

[2004] ECR I-280353, 54


156

Case C-289/02 Amok [2003] ECR I-15059 196

261

Table of Cases

Case T-313/02 Meca-Medina and Majcen v Commission [2004] ECR II-3291

70

Case C-327/02 Panayotova and Others [2004] ECR I-11055

119, 231

Case C-386/02 Baldinger [2004] ECR I-8411 87Case C-417/02 Commission v Greece [2004] ECR I-

7973138

Case C-429/02 Bacardi [2004] ECR I-6613 156, 157Case C-442/02 CaixaBank France [2004] ECR I-8961 130Case C-456/02 Trojani [2004] ECR I-7573 18, 28, 32, 69Case C-45/03 Dem’Yanenko [2004] not published in the

ECR215

Case C-60/03 Wolff & Müller [2004] ECR I-9553 176, 183Case C-105/03 Pupino [2005] ECR I-5285 222Case C-134/03 Viacom Outdoor [2005] ECR I-1167 156, 178Case C-140/03 Commission v Greece [2005] ECR I-

3177126

Case C-147/03 Commission v Austria [2005] ECR I-5969

183

Case C-189/03 Commission v Netherlands [2004] ECR I-9289

177, 185

Case C-209/03 Bidar [2005] ECR I-2119 18, 32Case C-215/03 Oulane [2005] ECR I-1215 80Case C-250/03 Mauri [2005] ECR I-1267 112Case C-265/03 Simutenko [2005] ECR I-2579 230Case C-403/03 Schempp [2005] ECR I-6421 28Case C-451/03 Servizi Ausiliari Dottori Commercialisti

[2006] ECR I-2941121

Joined Cases C-544/03 and C-545/03 Mobistar [2005] ECR I-7723

171, 178

Case C-39/04 Laboratoires Fournier [2005] ECR I-2057 184Cases C-94/04 and C-202/04 Cipolla and Macrino [2006]

ECR I-11421197

Case C-145/04 Spain v United Kingdom [2006] ECR I-7917

13, 37

Case C-300/04 Eman and Sevinger [2006] ECR I-8055 37, 42

Index

AAbuse of law: 131Access to documents: 14, 58, 59, 248Access to work (see Workers)ACP countries: 230Acquiring citizenship (see Citizenship of

the Union)Acquis communautaire: 232Amsterdam (see Treaty of Amsterdam):Area of freedom, security and justice: ix,

x, 15, 35, 221-222, 241-242, 245, 248, 250

Art. 10 EC: 51, 57, 137Art. 12 EC: 24, 28, 36, 127, 170Art. 18 EC: 13, 18-20, 25-29, 32-35, 43,

61-62, 152Art. 6 EU: 3, 12, 14, 36, 248Asylum: IX, 30, 205, 208, 211, 213-214,

221, 224,-225, 228, 233, 237, 241-244, 250

Asylum-seekers: 228Refugees: 201-203, 205, 214-215,

224-225Asylum-seekers (see Asylum)

BBorder controls: 79, 206, 226, 242-243

CCharter of Fundamental Rights (see Fun-

damental rights)Charter of Fundamental Rights for Work-

ers (see Workers)

Children (see Family members)Citizenship of the Union: ix-x, 1-12,

15-16, 18, 20, 24, 27, 32, 34, 41, 43, 45, 47, 51-52, 57, 60, 61-63, 83, 162, 226

Acquiring citizenship: 10, 12Losing citizenship: 10-12Non-citizens: 46-47Stateless persons: 12, 203

Competition: 63, 130, 163, 197Conditions of work (see Workers)Constitution for Europe (see Treaty

establishing a Constitution for Europe)

Criminal offence: 16, 95, 100, 169, 207

DDecision 1999/435/EC: 216-217Decision 2004/927/EC: 215, 237Decision 85/381/EEC: 204Decision 94/262/ECSC: 53Decision 96/409/CFSP: 47Diplomas: 85, 106-107, 112, 129, 137-

141, 144-145, 177, 188-190, 197, 249

Directive 2003/9/CE: 225Directive 2004/38/EC: x, 29-34, 67, 74,

77, 79-81, 83, 93-94, 97, 102, 107, 114, 133-134, 180, 227-228

Directive 2005/36/EC: 107, 142, 190-191,

Directive 2005/85: 225Directive 2006/123/EC: 107, 191-192

263

Index

Directive 64/221/EEC: 16, 22, 29, 67, 93-95, 97, 99-102, 107, 133, 180,

Directive 64/240/EEC: 66Directive 68/360/EEC: 30, 66-67, 74, 77,

79, 80-81, 83, 227, Directive 73/148/EEC: 30, 107, 227Directive 77/249/EEC: 143, 193, 197Directive 89/48/EEC: 138, 140, 144-145,

190, 197Directive 90/364/EEC: 23, 30, 94Directive 90/365/EEC: 93Directive 90/366/EEC: 24Directive 92/51/CE: 138Directive 93/109/EC: 42-43Directive 93/16/EEC: 30Directive 93/96/EEC: 23, 77Directive 94/80/EC: 39-40Directive 98/5/EC: 145-147, 197-198Discrimination: 61, 65-66, 68, 72, 83-85,

88, 91, 96, 106, 111-112, 122, 124, 127-129, 133, 137, 139-140, 146-147, 170-172, 174, 178, 188-189, 192-193, 201, 230

Discrimination measures: 131, 133, 144, 180

Non-discriminatory restrictions: 134-137Discrimination measures (see Discrimi-

nation)Distinction: 128, 135-136, 138, 141, 143,

152, 174, 177-178, 180, 182, 187, 189, 192

Divorce (see Family members)

EEffectiveness: 31, 129Election right: 36Entry: 24, 28-29, 34, 60, 65-67, 73, 76-

82, 97-99, 102, 107, 133, 142, 164, 180, 188, 204, 206, 209, 210- 211, 213-215, 226-231, 236, 240, 244

European Conventions of Human Rights (see Fundamental rights)

European Economic Area (EEA): 231European elections: 13, 36, 41-43Establishment of companies (see Right of

establishment)

Exercise of public authority: 89-92, 120-121, 168-170

Expulsion: 77-78, 81, 83, 94-102, 107, 180, 212, 228, 240-241, 244

External borders: 205, 207-208, 210-211, 213, 226, 232, 242

FFamily members: 29, 34, 67, 75-78, 93-

94, 97, 107, 114, 227-229Children: 77, 127, 244Divorce: 75, 78Family reunification: 211, 213, 227,

236-237, 239, 244Marriage: 75-76, 78, 228Spouse: 16, 28, 73, 75-77, 227, 228Unmarried partners: 77

Family reunification (see Family mem-bers)

Fundamental rights: 3, 12, 16, 48, 61, 224, 234, 39, 245

Charter of Fundamental Rights: ix, 14-15, 19, 25, 37, 40-41, 43, 48, 59, 61, 224, 248-249

European Conventions of Human Rights: 96, 101

HHousing: 76-78, 88, 127

IIllegal immigration: 203, 206, 210, 212-

213, 215, 223, 237, 238, 244Immigration policy: 235-238, 241, 243-

244Indirect discrimination: 84, 129Intergovernmental cooperation: 47, 205-

206, 210, 212, 219Internal market: 20-21, 24, 34, 36, 63,

102-103, 116, 131, 147, 149-150, 163, 171, 186, 190-192, 198, 205-206, 209-210, 221, 224, 228, 233, 235

LLawyers: 193-194Lisbon (see Treaty of Lisbon):

264

Index

Long-term resident: 239, 240Losing citizenship (see Citizenship of the

Union)

MMaastricht (see Treaty of Maastricht): Marriage (see Family members)Means of providing services: 155-161,

163, 172, 175, 177, 190, 194-195Measures applicable without distinction:

128-129, 134-136, 138, 143,172, 174, 180, 182

Municipal elections: 13, 36-39, 192Mutual recognition: 40-41, 43, 131, 137,

138, 139, 140, 143, 145, 153, 184, 188-193

NNice (see Treaty of Nice) Non-citizens (Citizenship of the Union)Non-discriminatory restrictions (see

Discrimination)

PPeople seeking work (see Workers)Primary establishment (see Right of

establishment)Principle of equal treatment: 150, 155,

163, 170-172, 194, 230, 236, 239, 244

Principle of solidarity: 18-19, 243Procedural safeguards: x, 94, 98, 100-102Public health: 22, 29, 67, 90, 93-94,

97-98, 133-134, 153, 180-182, 191-192, 239

Public order: 81, 95,97, 181-182, 192, 227, 234, 238-240

Public policy: 22, 29, 67, 93-98, 100, 107, 133-134, 153, 154, 180-181, 183, 191

Public security: 22, 27, 29, 78, 93-94, 97-98, 107, 121, 133-134, 153-154, 180-181, 191-192, 207, 215, 227, 236, 239-240

Purely internal situations: 15, 27, 45, 71, 72, 110-112, 149, 155, 157, 228

QQualification: 65, 73, 82, 85, 110, 129,

137-145, 176-177, 185, 188-191, 193, 197

RRatione loci (applicability): 232Ratione materiae (applicability): 224-225Ratione personarum (applicability):

226-231Readmission: 244Refoulement: 243Regulation (EC) No 1049/2001: 58Regulation (EC) No 343/2003: 225Regulation (EC) No 44/2001: 125Regulation (EC) No 539/2001: 238Regulation (EEC) No 1251/70: 92Regulation (EEC) No 1408/71: 203Regulation (EEC) No 1612/68: 66-67,

74-75, 76-77, 79, 83-88Regulation (EEC) No 38/64: 66Refugees (see Asylum)Repatriation: 47, 213, 215, 244Residence: (see right to reside)Residence Permit: 18, 32, 35, 62, 81, 92,

97, 102, 207, 213, 231, 236-239, 242, 244,

Restrictions on entry: 81-83Right of establishment; 17, 21, 28, 34,

37, 52, 66, 93, 103, 125-148, 150, 153, 158-160, 165, 169, 172, 174-175, 180, 190, 197, 248-249

Establishment of companies: 114-121, 123-141

Primary establishment: 4, 108, 113, 115, 122-123, 125

Secondary establishment: 105, 108, 113, 115, 122, 123, 124, 125, 128, 129, 152, 160, 165, 196, 198

Right of movement: 19-34, 247-248Right to apply to the European Ombuds-

man: 13-14, 48-49, 51-57, 59, 226Right to correspond: 58-59, Right to diplomatic protection: 13, 14,

43-48, 62

265

Index

Right to enter: 23-24, 68, 79, 80, 88, 93, 95, 102, 151, 163, 207, 210, 236-237

Right to move residence: 240Right to petition: 13, 14, 48-52, 54, 56,

59, 63, 226Right to remain: 75, 79, 82, 92-93, 100, Right to reside: x, 19, 23-26, 28, 29,

30-35, 61-63, 66-67, 71, 75, 78-83, 92-94, 107, 114, 133, 152, 163, 170, 236-237

Right to vote : 4, 13, 14, 36-43,

SSchengen acquis: 35, 216-220, 223, 226,

233Self-employed persons:17, 21-24, 26,

29-30, 34, 74, 92, 93, 105-108, 110, 119-120 ,128, 137, 140, 149, 151-152, 165, 168-170, 178, 188, 191, 198, 232, 239, 244

Schengen Agreement: 35, 80, 205-208, 212, 216, 218, 226, 238, 240

Schengen Area 207, 208, 218, 233Schengen Protocol: 217, 220Secondary establishment (see Right of

establishment)Sickness insurance: 23, 28, 30-32, 83, 93,

238, 239Single European Act: 2, 80, 163, 205,

206Social assistance system: 81-83Social security: 33, 35, 62, 128, 164, 182,

202, 249Spouse (see Family members)Stateless persons (see Citizenship of the

Union)Students: 18, 23, 24, 28-30, 32, 34, 67,

71, 88, 94, 119, 139, 152, 153, 238-240

Sufficient resources: 23, 28, 30, 31-33, 239

Supply services: 4, 16, 21, 22-23, 26, 108, 113, 119, 131, 178-183, 185, 189, 190, 193-195, 197, 248

TThird-country nationals: 163, 165,

204-207, 209-215, 225, 237-240, 242-244

Tourist:23, 31, 151, 156-157, 202Trafficking in human beings: 238, 244Transport policy: 166Treaty establishing a Constitution for

Europe: ix, xi, 2, 9, 40, 49, 51, 60, 102, 147, 192, 198, 241, 242, 247

Treaty of Amsterdam: ix, 5, 35, 58, 113, 213, 214, 216, 218-222, 232, 236, 241

Treaty of Lisbon: xi, 247-248, 250Treaty of Maastricht: x, 6, 8, 10, 24, 51,

58, 212, 215, 232Treaty of Nice: ix, xiv, 34, 35, 213-214

UUnmarried partners (see Family mem-

bers)

VVisas: 30, 76, 80, 205, 207, 209-211, 213,

215, 220-221, 224-228, 231-232, 237-238, 240, 242, 248

WWorkers: 16, 21, 28-29, 34, 37, 65-102,

108, 120, 133, 147, 150, 151, 153, 155, 160, 164, 168, 178, 181, 183, 201- 203, 209, 232, 238, 249

Access to work: 66, 74, 83Charter of Fundamental Rights for

Workers: 209Conditions of work: 66, 79, 83, 86,

91People seeking work: 83Work permit:232

Work permit (see Workers)

Immigration and Asylum Law and Policy in Europe

1. E. Guild and P. Minderhoud (eds.): Security of Residence and Expulsion. 2000 ISBN 90-411-1458-0

2. E. Guild: Immigration Law in the European Community. 2001 ISBN 90-411-1593-5

3. B. Melis: Negotiating Europe’s Immigration Frontiers. 2001 ISBN 90-411-1614-1

4. R. Byrne, G. Noll and J. Vedsted-Hansen (eds.): New Asylum Countries? Migra-tion Control and Refugee Protection in an Enlarged European Union. 2002 ISBN 90-411-1753-9

5. K. Groenendijk, E. Guild and P. Minderhoud (eds.): In Search of Europe’s Bor-ders. 2003 ISBN 90-411-1977-9

6. J. Niessen and I. Chopin (eds.): The Development of Legal Instruments to Combat Racism in a Diverse Europe. 2004 ISBN 90-04-13686-X

7. B. Bogusz, R. Cholewinski, A. Cygan and E. Szyszczak (eds.): Irregular Migration and Human Rights: Theoretical, European and International Perspectives. 2004 ISBN 90-04-14011-5

8. H. Battjes: European Asylum Law and International Law. 2006 ISBN 90-04-15087-7

9. Elspeth Guild and Paul Minderhoud (eds.): Immigration and Criminal Law in the European Union: The Legal Measures and Social Consequences of Criminal Law in Member States on Trafficking and Smuggling in Human Beings. 2006 ISBN 90-14-15064-1

10. Georgia Papagianni: Institutional and Policy Dynamics of EU Migration Law. 2006 ISBN 90-04-15279-2

11. Elspeth Guild and Anneliese Baldaccini (eds.): Terrorism and the Foreigner: A Decade of Tension around the Rule of Law in Europe. 2006 ISBN 90-04-015187-7

12. Steve Peers and Nicola Rogers (eds.): EU Immigration and Asylum Law: Text and Commentary. 2006 ISBN 90-04-15374-8

13. Prakash Shah (ed.): Law and Ethnic Plurality: Socio-Legal Perspectives. 2007 ISBN 978-90-04-16245-7

14. Bruno Nascimbene, Massimo Condinanzi and Alessandra Lang: Citizenship of the Union and Free Movement of Persons. 2008 ISBN 978-90-04-16300-3

15. Evelien Brouwer: Digital Borders and Real Rights: Effective Remedies for Third-Country Nationals in the Schengen Information System. 2008 ISBN 978-90-04-16503-8

16. Nils Coleman: European Readmission Policy:Third Country Interests and Refu-gee Rights. 2008 ISBN 978-90-04-16554-0

Martinus Nijhoff Publishers – Leiden • Boston

Documents

Citizenship of the Union and free movement of persons