European Union law
Introduction
The European Union law has created several rights that are enforceable in a court of law, either vertically (between an individual and the state) or horizontally (between individuals). The freedom of movement for persons is one of such rights that is envisaged under the Treaty on the Functioning of the European Union (TFEU).[1] The need to protect the individual rights within the member states resulted in the creation of EU citizenship. This paper examines the issues faced by Romy and her husband, Claude, who are both French nationals, upon moving to Hungary in 2017. The analysis is undertaken concerning the freedom of movement.
Legal analysis of the scenario
The statutory requirement for all truck drivers, including EU truck drivers seeking employment in Hungary, to possess a Hungarian driving license constitutes a case of discrimination against a European Union citizen.[2] Article 18 of the TFEU stipulates that there should be no form of discrimination against citizens from EU member states on grounds of nationality.[3] In the case of Wood v Fonds de Garantie des Victimes des Actes de Terrorisme et d’Autres Infractions, a child of a British national who had lived and worked France for over 20 years and had married a French national died as a result of traffic accident outside France. At the time, the French criminal code stipulated that all claimants for compensation in such cases must possess French nationality if they were injured outside the French territory. Based on this ground, the British national was denied compensation. However, his partner was compensated. In its ruling, the Court held that the French national criminal procedure adopted in determining the compensation was illegal as it violated the rule that restricts EU member states from discriminating against other EU member states on the ground of nationality. In its view, by working and living in France, the British national had only exercised his right to freedom of movement for workers as provided for under Article 18 of the TFEU. [4]As such, the two parties were not supposed to be discriminated against in the determination compensation since they were incomparable situations. The only issue was that they had a different nationality.[5] Claude’s denial to work as a truck driver on the ground that he did not have a Hungarian driving license was discriminatory since her wife Romy was offered a permanent job position. Therefore, the Hungarian statutory requirement contravened Article 21 of the TFEU by restricting Claudes’ right for freedom of movement.
Even though Romy and Claude are of different nationalities, they both enjoy the rights stipulated under EU citizenship. The denial by the Hungarian authorities for Romy to apply for child-raising allowance on the ground that neither Romy nor her husband is of Hungarian nationality is in contravention of Article 21 of the TFEU. One of the fundamental issues articulated in the directive on working and residing freely in the EU entails the provision of equal rights to all EU citizens with respect to employment.[6]
European Union states provide individuals different forms of direct financial benefits, for example, direct payments of benefits. The financial benefits further include indirect support in the form of subsidies that enable them to access different services, for example, housing and education.[7] Each of the member countries has nevertheless instituted measures that restrict access to financial benefits.[8] However, some of the restrictions can amount to discrimination among EU citizens on the ground of nationality. European Union citizens working and residing in other EU member states should be subjected to equal treatment compared to the host country’s nationals concerning access to benefits.[9]
In the case of Maria Martinez Sala v. Freistaat Bayern, the defendant, a Spanish national had worked and lived in Germany for many years. However, she lost her job but continued to reside in Germany and continued to receive social assistance. When her residence permit expired, she was issued with a permit extending her stay but was denied access to child allowance on the ground that she did not possess a valid residence permit. The European Court of Justice held that she was legally residing in Germany and was hence subject to equal treatment to German nationals. [10] Given this, if Romy continued to legally reside in Hungary, she had the right to be treated equally to Hungarian nationals despite deciding to leave her job and stay at home to take care of her children.[11]
Romy has a legal ground to challenge the Hungarian authorities’ decision to initiate deportation proceedings against her on the basis that during a recent climate change demonstration, she broke the windows of a few shops. The law in the European Union restricts the expulsion of EU member states on the ground that can be preventative and which can be subjected to the automatic criminal conviction without examining the offender’s conduct.[12] In respect to this, a member state is required to examine whether the defendant is a threat to the country’s public security.[13] Therefore in her argument, the Romy should challenge the deportation conviction before the Hungarian authority examining whether she is a threat to public security. The European Union law stipulates that for an EU national to be expelled from a particular EU country, he or she must be previously convicted of specific offences.
Conclusion
By taking into account the legal advice provided, Romy and Claude can succeed in fighting for their right for free movement as provided for under the European Union law. This will subsequently mean that they have the right to continue working and residing in Hungary while receiving equal treatment to Hungarian nationals.
References
Ann Numhauster-Henning. Legal perspectives on equal treatment and non-discrimination (The Hague: Kluwer Law International, 2001).
Dalman Chalmers, Gareth Davies and Giorgio Monti. European Union law; cases and materials (Cambridge: Cambridge University Press, 2019).
Damlan Chalmers, Gareth Davies and Giorgio Monti. European Union law; cases and materials (Cambridge: Cambridge University Press, 2010).
David Edward and Robert Lane. Edward and Lane on European Union law (Cheltenham, UK: Edward Elgar Publishing Limited, 2013).
Dimitry Kochenov. EU citizenship and federalism (London: Cambridge University Press, 2017).
Friedl Weiss and Clemens Kaupa. European Union internal market law (Cambridge: Cambrdige University Press, 2014).
Gabriel Moens and John Trone. Commerical law of the European Union (Dordrecht: Springer, 2010).
Gary Freeman and Nikola Mirilovic. Handbook on migration and social policy (Cheltenham: Edward Elgar Publishing, 2016).
Gert Vermeulen. Crossborder execution of judgements involving deprivation of liberty in the EU; overcoming legal and practical problems through flanking measures (Antwerp: Maklu, 2011).
Guglielmo Maisto. Residence of individuals under tax treaties and EC law (Amsterdam: IBFD, 2010).
Oxana Golynker. Ubiquitious citizens of Europe; the paradigm of partial mitigation (London: Intersentia nv, 2006).
Russell Miller and Peer Zumbansen. Annual of German and European law (New York: Berghahn, 2006).
Thomas Eger and Hans-Bernd Schafer. Research on the economics of European Union law (Cheltenham, UK: Edward Elgar, 2012).
[1] Dimitry Kochenov. EU citizenship and federalism (London: Cambridge University Press,
2017) 112.
[2] Guglielmo Maisto. Residence of individuals under tax treaties and EC law (Amsterdam: IBFD,
2010)49.
[3] David Edward and Robert Lane. Edward and Lane on European Union law (Cheltenham, UK:
Edward Elgar Publishing Limited, 2013) 422.
[4] Gabriel Moens and John Trone. Commerical law of the European Union (Dordrecht: Springer,
2010) 124.
[5] Oxana Golynker. Ubiquitous citizens of Europe; the paradigm of partial mitigation (London:
Intersentia NV, 2006) 122.
[6] Ann Numhauster-Henning. Legal perspectives on equal treatment and non-discrimination (The
Hague: Kluwer Law International, 2001) 133.
[7] Friedl Weiss and Clemens Kaupa. European Union internal market law (Cambridge:
Cambridge University Press, 2014) 234.
[8] Dalman Chalmers, Gareth Davies, and Giorgio Monti. European Union law; cases and
materials (Cambridge: Cambridge University Press, 2019) 454.
[9] Thomas Eger and Hans-Bernd Schafer. Research on the economics of European Union law
(Cheltenham, UK: Edward Elgar, 2012) 157.
[10] Russell Miller and Peer Zumbansen. Annual of German and European law (New York:
Berghahn, 2006) 257.
[11] Gary Freeman and Nikola Mirilovic. Handbook on migration and social policy (Cheltenham:
Edward Elgar Publishing, 2016) 157.
[12] Gert Vermeulen. Crossborder execution of judgments involving deprivation of liberty in the
EU; overcoming legal and practical problems through flanking measures (Antwerp: Maklu, 2011) 38.
[13] Damlan Chalmers, Gareth Davies and Giorgio Monti. European Union law; cases and
materials (Cambridge: Cambridge University Press, 2010) 478.