Union Citizen

In relation to the spouse, Article 2(2) Directive 2004/38 defines it as family members, Article 2(2)(b) states that “the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State”. It is also evidential that the term for children falls under Article 2(2) as family members. Article 3(2)(a) explains that any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen”. As for the right to work in other Member States, the courts in the case of Hoekstra [1] dictates that “Articles 48-51 of the Treaty (now Articles 45-49 TFEU) would be deprived of all effect if the meaning could be modified by national law”. The Court also explained that a ‘worker’ is not exclusively someone who is currently employed.

The second issue involves the discussion about freedom of movement with past conviction. There are limitations based upon public policy, security and health contained within Directive 64/221 (now replaced by Directive 2004/38). It is acknowledged that if a person was convicted for drugs dealing, the person would still have the right to enter other Member States. Article 3(2) [2] provides that previous convictions within themselves are not enough to prevent the free movement of persons, however, if the conviction poses a “present or future propensity to act in a manner contrary to public policy or public security [3] then there will be sufficient evidence for exclusion or expulsion. Furthermore, Article 27(2) of the Citizen Directive indicates that “the personal conduct of the individual concerned must present a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”. In light of Donatella Calfa [4] case, “where a Union citizen was expelled from Greece for life for the offence of possession and use of prohibited drugs whilst she was on holiday in Crete”. The then ECJ articulates that “drug was a sufficient danger to the public and the member state was right in saying so, but the conduct did not create a genuine and serious threat so the expulsion from Greece was not compatible with community law”. It is suggested that from the details given in the scenario and the reasoning above, it could be argued that there is no specific evidence that he present genuine and serious threat affecting fundamental interest of society, therefore, he should be allowed to enter Latvia.

It is evidential that the partner’s cousin is a Union citizen because of his nationality, Portuguese. [5] Can he claim the benefits of the tuition fee and maintenance fee grant which available to Latvian students? In the case of Bidar [6] , the Court ruled that “Member State could require that the student had ‘established a genuine link with the society of that Member State’”. The case of Forster [7] further indicates that Member States can establish requirement for residency for five years as a genuine link. As per Article 24(2) Directive 2004/38, it states that “the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or… nor shall it be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families”. Hence, it is suggested that the partner’s cousin would not have the right to claim such benefits based upon the above reasoning and the fact that he is not a dependant [8] . The issue to claim job seeker’s allowance emphasized in the case of Collins [9] . In this case, the Court stated “only those who have already entered the employment market may claim the same social and tax advantages as national workers, inter alia, Article 7(2) of Regulation 1612/68 (para 31)”. Therefore, it is arguably that based on the current law, the partner’s cousin would not have the right to claim jobseeker’s allowance since he has never worked before.

The next issue would be what are the rights and obligations to establish a person to practice law in Latvia, and what are the rights of the partner’s brother to set up his internet business. It is right to say that if a person falls under the category of a Union citizen [10] the said person would be allowed to establish and work in other Member State. [11] Article 49 TFEU basically indicates that every person or a company would have the right to settle in a Member State and to pursue an economic activity there. It includes the right to set up a company as well, inter alia, the right to pursue an occupation in a self-employed capacity. [12]

Article 2 Directive 98/5/EC further indicates that “any lawyer shall be entitled to pursue on a permanent basis, in any other Member State under his home-country professional title”. In order for a lawyer to practice in a Member State other than that in which he obtained his professional qualification must register with the competent authority in that state. [13] Furthermore, Article 3(2) states that certificate of proof must not be more than three months old when presenting to the competent authority [14] . In light of Thieffry [15] case, the Court ruled that Member States must take account of the equivalence of diplomas, if necessary, proceed to a comparison of the knowledge and qualifications required by their national rules and those of the person concerned. In the case of Gebhard [16] , the Court acknowledged that Member States gave rules governing the dissemination of legal activities which are often embodied in client care, confidentiality and professional ethics regulations. Here, Mr. Gebhard challenged the Milan Bar Council for suspending him for six months due to contravening the Italian law. The issue of exercising the right and conditions for its exercise has been discussed, where it depended on what activities the migrant intended to pursue. The judgement of Gebhard has laid down several guidelines on freedom to provide services and establishment. There are several guidelines that it is worth to be highlighted; “the temporary nature of the provision of services is to be determined in the light of its duration, periodicity and continuity and if someone practises on a stable and continuous basis and holds himself out from an established professional base, this is establishment, and if there are no rules, the person is free to establish himself and pursue his activity in the host Member State. If there are rules and conditions, the national of another Member State should in principle comply with them”. [17] It is suggested that, if a person complied the requirements above mentioned, it can be argued that the person is eligible to practise law in Latvia.

As for the partner’s brother, who wishes to set up and run an internet based business should of course, consider the issue of citizenship and establishment first. It is noted from the scenario that the partner’s brother hold an EU citizen as per Article 20 TFEU. In order for him to establish it is arguably that a person needs to fulfil the requirements laid down in Article 49 TFEU. Assuming that the partner’s brother complied with all the above mentioned criteria, can he now set up and run a business? As for this issue, it is suggested that Article 56 TFEU plays a major role to determine whether he has the right to set up a business in a Member State. Article 56 TFEU indicates that “restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended”. What is the meaning of services? Article 57 TFEU further explains that “services include activities of an industrial character, activities of a commercial character, activities of craftman and activities of the professions. If one of the criteria laid down has been fulfilled, the person providing a service may, in order to do so, temporarily pursue his activity in the Member State where the service is provided, under the same conditions as are imposed by that State on its own nationals”. In a nutshell, it does look like the partner’s brother has the rights to set up a business in Latvia.

Referring to question four of the scenario, it involves the discussion of whether prohibiting of selling contact lenses via internet is contrary to Article 34 TFEU, if so, how can it be justified? Article 34 TFEU states that “quantitative restrictions on imports and all measures having equivalent effect shall be prohibited”. In the case of 322/01 Deutscher Apothekerverband [18] , the Court stated that “a national measure concerning an arrangement characterised by the sale of goods via the Internet and the delivery of those goods to the customer’s home is to be examined only with regard to the rules relating to the free movement of goods and, consequently, with regard to Articles 34 TFEU and 36 TFEU”. [19] In order to identify the restriction on the free movement of goods, the legislation must be examined with regard to Articles 34 TFEU and 36 TFEU. Article 36 TFEU indicates that “the provision of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans… such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States”. Referring to the scenario, the Latvia legislation has laid down the requirement to have a prescription to be issued by a qualified optician for purchasing contact lenses. It seems that the Latvia legislation is based on the grounds of public security; protection of health and life of humans [20] in order to prohibits the selling of contact lenses via Internet. As such, in any event, it is now established that the rule of reason will only be available to justify measures except perhaps environmental measures, which equally apply to domestic as well as imported products.

Accordingly, the settled cases such as Case 8/74 Dassonville [21] and Case C-110/05 Commission v Italy [22] determined that all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, trade within the European Union are to be considered as measures having an effect equivalent to quantitative restrictions and are, on that basis, prohibited by Article 34 TFEU. Hence, how can it be justified? It is submitted through settled case law that an obstacle to the free movement of goods may be justified on one of the public interest grounds which set out in Article 36 TFEU. However, it is noted that the national provision must be appropriate for securing the attainment of the objective pursued and must not go beyond what is necessary in order to attain it. [23]

As such, if that measure is within the scope of public health, it is the duty of the Member States to protect and determine the level of protection and Member States should be allowed a measure of discretion. [24] Furthermore, in light of Case C‑108/09 Ker-Optika, the Court stated that “where a Member State adopts legislation such as that, it exceeds the limits of the discretion and that the legislation must therefore be held to go beyond what is necessary to attain the objective the Member State claims to pursue”. [25]