Europees recht/European Union Law
Belangrijke begrippen met uitleg
Exception
- That whatever falls under it is located outside the scope of EU
law
- Article 45, paragraph 4 of the TFEU
- ‘’EU free movement rules shall not apply to employment in the
public service’.
- No proportionality test
Exemption
- If exempted, the measure is no violation of EU internal market
law.
Justification
- If permitted for justification, a measure must meet the
requirements of the proportionality test.
- Only after the objective is declared admissible for justification by
EU law, we can continue with the proportionality test.
- Admissible for justification:
1. Explicit justification grounds – Article 36 TFEU
2. Mandatory requirements (implied justifications) – Unwritten
justification grounds that a Member State can also rely on
under special conditions
Proportionality
- Something must be proportionate in relation to something else
- This benchmark is EU law – A fundamental freedom or a
prohibition of discriminations
- Measure under scrutiny
- Fundamental freedom guaranteed by the EU vs. Measure by the
Member State
- Question: Proportionate or not?
- Three step proportionality test:
1. Is the measure suitable to achieve the objective it invokes?
2. Is the measure necessary to attain this objective?
3. Does even the least restrictive measure not excessively interfere
with the EU free movement rights? Proportionality stricto sensu.
– Proportionality stricto sensu: in order to justify a limitation on a
constitutional right, a proper relation should exist between the
benefits gained by fulfilling the purpose and the harm caused to the
constitutional right from obtaining that purpose.
, Discrimination
- An unequal treatment of comparable situations for a specific
reason
- Prohibition of discriminations
- Equal treatment
Direct discrimination
- By simply reading the wording of the measure under scrutiny
- We would find the very origin of a product back in the wording of
the measure that we look at
Indirect discrimination
- If the measure we are looking at does not literally use the origin
- At first sight it does not distinguish according to the origin of a
product
- Yet, in real life it has eventually the same effect as the measure
required to make a distinction based on the origin of a product
Objective differentiation
- Two situations that are treated differently remain different even if
we exclude all forbidden grounds as possible elements that can
define these situations as being different
Non- discriminatory restriction
- If a measure does not treat two comparable situations differently
neither directly in its wording nor directly by affecting one
situation less favourable than the other
- Example: closed on Sundays (not possible to sell goods on
Sundays. This is the case for domestic products and for foreign
products. Its non-discriminatory, but still a restriction).
, Europees Recht
Topic: Union Citizenship
The Union Citizenship covers Goods, Persons, Services and Capital.
What is the Union Citizenship?
Status (Article 20(1) TFEU
Derives from the nationality of a Member State
No further requirements for having this status
Additional to and does not replacing national citizenship
Rights (Article 20(2) TFEU, Articles 21-25 TFEU)
Right to move and to reside
Right to vote and to stand as candidate in municipal and
European elections
Right to enjoy diplomatic and consular protection by any EU-
MS
Right to address the EU institutions in any Treaty language
and to receive a reply
Status of the Union Citizenship
Case: CJEU, Case C-135/08, Rottmann
Austrian national who gained German nationality by
naturalization
o As a result Rottmann lost his Austrian nationality
German authorities found out that he concealed serious
criminal proceedings against him during the naturalization
process;
o Germany revoked his German nationality
o No other nationality (stateless)
o Loss of Union citizenship
Can Member States withdraw a nationality, which has as a
consequence to lose the Union citizenship?
o They can, but the withdrawal must be carried out in the
light of EU law
o Union citizenships entails EU law individual rights which
cannot be taken away by a Member State
o Withdrawal must be proportionate in relation to the goal it
seeks to achieve
o Core sovereign rights are subject to EU law because of
citizenship
Belangrijke begrippen met uitleg
Exception
- That whatever falls under it is located outside the scope of EU
law
- Article 45, paragraph 4 of the TFEU
- ‘’EU free movement rules shall not apply to employment in the
public service’.
- No proportionality test
Exemption
- If exempted, the measure is no violation of EU internal market
law.
Justification
- If permitted for justification, a measure must meet the
requirements of the proportionality test.
- Only after the objective is declared admissible for justification by
EU law, we can continue with the proportionality test.
- Admissible for justification:
1. Explicit justification grounds – Article 36 TFEU
2. Mandatory requirements (implied justifications) – Unwritten
justification grounds that a Member State can also rely on
under special conditions
Proportionality
- Something must be proportionate in relation to something else
- This benchmark is EU law – A fundamental freedom or a
prohibition of discriminations
- Measure under scrutiny
- Fundamental freedom guaranteed by the EU vs. Measure by the
Member State
- Question: Proportionate or not?
- Three step proportionality test:
1. Is the measure suitable to achieve the objective it invokes?
2. Is the measure necessary to attain this objective?
3. Does even the least restrictive measure not excessively interfere
with the EU free movement rights? Proportionality stricto sensu.
– Proportionality stricto sensu: in order to justify a limitation on a
constitutional right, a proper relation should exist between the
benefits gained by fulfilling the purpose and the harm caused to the
constitutional right from obtaining that purpose.
, Discrimination
- An unequal treatment of comparable situations for a specific
reason
- Prohibition of discriminations
- Equal treatment
Direct discrimination
- By simply reading the wording of the measure under scrutiny
- We would find the very origin of a product back in the wording of
the measure that we look at
Indirect discrimination
- If the measure we are looking at does not literally use the origin
- At first sight it does not distinguish according to the origin of a
product
- Yet, in real life it has eventually the same effect as the measure
required to make a distinction based on the origin of a product
Objective differentiation
- Two situations that are treated differently remain different even if
we exclude all forbidden grounds as possible elements that can
define these situations as being different
Non- discriminatory restriction
- If a measure does not treat two comparable situations differently
neither directly in its wording nor directly by affecting one
situation less favourable than the other
- Example: closed on Sundays (not possible to sell goods on
Sundays. This is the case for domestic products and for foreign
products. Its non-discriminatory, but still a restriction).
, Europees Recht
Topic: Union Citizenship
The Union Citizenship covers Goods, Persons, Services and Capital.
What is the Union Citizenship?
Status (Article 20(1) TFEU
Derives from the nationality of a Member State
No further requirements for having this status
Additional to and does not replacing national citizenship
Rights (Article 20(2) TFEU, Articles 21-25 TFEU)
Right to move and to reside
Right to vote and to stand as candidate in municipal and
European elections
Right to enjoy diplomatic and consular protection by any EU-
MS
Right to address the EU institutions in any Treaty language
and to receive a reply
Status of the Union Citizenship
Case: CJEU, Case C-135/08, Rottmann
Austrian national who gained German nationality by
naturalization
o As a result Rottmann lost his Austrian nationality
German authorities found out that he concealed serious
criminal proceedings against him during the naturalization
process;
o Germany revoked his German nationality
o No other nationality (stateless)
o Loss of Union citizenship
Can Member States withdraw a nationality, which has as a
consequence to lose the Union citizenship?
o They can, but the withdrawal must be carried out in the
light of EU law
o Union citizenships entails EU law individual rights which
cannot be taken away by a Member State
o Withdrawal must be proportionate in relation to the goal it
seeks to achieve
o Core sovereign rights are subject to EU law because of
citizenship
