FACULTY OF BUSINESS & LAW

Law of EUs Internal Market Assignment

2012

Student Name

: Yusuf Emre KOSE

Student ID number : 77123419

2443 Words (Exluding footnotes and bibliography)

INTRODUCTION The concept of citizenship has been has been a hot topic of debate and discussion amongst the European community in recent years. The important thing to understand citizenships role within the European Union is to avoid thinking about Union citizenship and citizenship of the Member States as two separate and unrelated phenomena, even though they are different in character.1 The citizenship of the Union is constituted in accordance with the Article 8 included to the European Communities Act as a result of Maastricht Treaty and the provision "those who are the citizens of any of the member states are the citizens of the Union" is enacted. Thus, it is seen that the Citizenship of the Union which has become a part of the Community Law is an additional status to the citizenship of the member state.2 When the chapter of Maastricht Treaty including the article in question is concerned, it is seen that a direct political connection is established between the citizens of the member states and the Union in a previously unattempt way in order to form a common European identity.3 In this process started with Maastricht Treaty, a new concept of the citizenship of the Union is formed in addition to the national citizenship. This concept should not be considered as a total number of the citizens on an equality with the number of the member states; it should be perceived as an expression of gaining a new status

Jo Shaw, Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism in Paul Craig and Grinne de Brca (eds), The Evolution of EU Law (Oxford University Press 2011) 577578. 2 Garcia Soledad, European Union Identity and Citizenship in Maurice Roche and Rik Van Berkel (eds), European Citizenship and Social Exclusion (Ashgate Publising Limited 1997) 210; Stephen Weatherill and Paul Beaumont, Eu Law: The Essential Guide to the Legal Workings of the European Union (3rd edn, Penguin Books 1999) 14. 3 Weatherill, Beaumont (n 2) 15.

through becoming entitled to some rights without the loss of national citizenship or personal liberties. The rights which are provided to the citizens of the member countries by the Union Citizenship which became a legal entity for the first time after Maastricht Treaty are mainly as follows; The right of free movement and establishment within the borders of the Community, the right to vote and be elected in local and European Parliament elections on an equal basis with the citizens of the member state in which they reside, the right of benefiting from the diplomatic protection, the right to appeal to European Parliament with a petition and the right to appeal to Ombudsman. These provisions included to the Treaty of Establishing the European Community 4 after Maastricht Treaty regarding the Citizenship of The Union rights are also protected in the constitution draft in terms of their contexts.5

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Consolidated Version of the Treaty on European Union [2002] OJ C325/1-184. Maurice Roche, Citizenship And Exclusion: Reconstructing The European Union in Maurice Roche and Rik Van Berkel (eds), European Citizenship and Social Exclusion (Ashgate Publising Limited 1997) 26.

I- FREE MOVEMENT OF PERSONS AND ESTABLISHMENT The free movement that is accepted as a right provided to the citizens within the concept of the Citizenship of the Union is provided to all of the citizens of the member states due to the Citizenship of the Union. It would be misleading to take aforesaid right as general and unrestricted since this right can be subject to the restrictions of the Community Law. Therefore, it is more accurate to consider the right in question in such a way that the free movement is obtained according to the Community conditions and an area which does not have internal borders is established. Another dimension of the right of free movement is the right of establishment. Since the practice of the right of free movement is not possible in fact without entitling the right of establishment, the fact that these two rights are in connection with each other must be accepted. In fact, it is seen that the right of free movement and the right of establishment are enacted together including the Article 18 of the Constitutive Agreement. 6 In addition, the European Court of Justice (ECJ) also adjudged the necessity of using these two rights together.7 The judgment of the ECJ on Grzelczyk, the French citizen who started his university education in Belgium is an important one in terms of the right of free movement.8 With this decision, the ECJ adjudicated that the Regulation numbered 93/96
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Stephen Hall, Nationality, Migration Rights and Citizenship of the Union (1th edn, Martinus Nijhoff Publishers 1995) 115.
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Case 357/89 Raulin v Minister van Onderwijs en Wetenschappen [1992] ECR I-1027.

Case 184/99 Rudy Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve [2001] ECR I-06193.

differed from the Regulation 90/364 and Regulation 90/365 including the sub limit required for livelihood and this disparity was occurred due to the specific qualities of the establishments of the student, thus the demand of the social aid which was free of charge could not be rejected on account of the fact that it was given in the scope of the Regulation numbered 1612/68 which regulated the free movement of the workers only within the borders of the Community. The Court recognized that the basis of Union citizenship in law at the present has been as an equal treatment law.9 A- THE RESTRICTIONS OF THE RIGHTS OF FREE MOVEMENT AND ESTABLISHMENT 1- THE EXCEPTION OF PUBLIC SERVICE Restrictions were imposed on the rights of free movement and establishment by stating in the last paragraph of Article 39 of the Treaty Establishing the European Community that the regulations made with the Article 39 could not be implemented on the employment in public services. According to this, in order to be employed for a public service in a member state, the condition of being a citizen of the related state may be stipulated. The public service concept is not defined in the Treaty as well as the public safety, public order and public health which are the other exceptions of the rights of free movement and establishment. Therefore, the context of the concept is defined by the decisions of the ECJ. In the case which was subject to Sotgiu decision10 dated 1974 and numbered 152/73, the Postal Administration of Germany suggested the public sector exception included in the article which allowed the workers in Germany, living far away from their families, to have extra leaves against the claim suggesting that this Article
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Shaw (n 1) 576. Case 152/73 Sotqui v Deutsche Bundespost [1974] ECR 153.

involved discrimination. Upon this, the Council decided the exception did not include the whole public sector by stating that this exception could be implemented on the specific duties just related to the direct implementation of the public authority on public sector. 2- THE EXCEPTIONS OF THE PUBLIC ORDER, PUBLIC SAFETY AND PUBLIC HEALTH The expression of "the restrictions and conditions in this Treaty and in the regulations related to the implementation of this Treaty" found in the Article 18 of the Treaty Establishing the European Community indicates the rights of free movement and establishment may be subject to some restrictions other than public duty (service) exception. II- THE RIGHT TO VOTE AND STAND FOR ELECTION IN THE EUROPEAN PARLIAMENT AND LOCAL ELECTIONS A- THE REGULATION REGARDING THE RIGHT TO VOTE AND STAND FOR ELECTION IN THE EUROPEAN PARLIAMENT ELECTIONS The European Parliament elections has been subject to political debates and conflicts since 1970s; as a result of this, acceptance of a standardized election system which would be performed in all of the member states became impossible. It was decided to perform direct elections within the year 1978 or after 1979 in Paris Summit taken place in December 9-10, 1974. Besides, upon the agreement reached in September 20, 1976 in Brussels, it was settled to determine the elections systems in accordance with the national law of each member state until a standardized election system was accepted and went in effect on the Community level in compliance with the Council Decision11 regarding the acceding of European Parliament members as a consequence of a direct election. As a result, the issue of electoral rights was left to the domestic law of each member state.12

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Council Decision (EC) of 25 June 2002 and 23 September 2002 amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage [2002] OJ L283. 12 Carlos Closa, The Concept of Citizenship in the Treaty on European Union [1992] 29/6 Common Market Law Review 1145. <http://www.academia.edu/1436922/The_concept_of_citizenship_in_the_Treaty_on_European_Union >accessed 07 December 2012.

The general principles regarding the right to vote and be elected of the settled Union citizens in aforesaid elections in another member state were determined in Council Regulation numbered 93/109 and dated December 6, 1993 in order to be practiced in European Parliament elections.13 The aforesaid regulation is based on five basic principles. These principles are; avoiding to make the national systems of the member states compatible with each other, member states' making no discrimination between their own citizens and the Union citizens who are the citizens of another states, respecting the personal choices of the citizens of the Union about the location where they wish to vote or be a candidate, preventing the multiple votes and being a candidate in more than one place and finally, member states' mutual recognition of the causes of the deprivation from the right to and be elected.14 B- THE REGULATION ON THE RIGHT TO VOTE AND STAND FOR ELECTION IN THE LOCAL ELECTIONS The Council Regulation numbered 94/8015 regulating the right to vote and be elected in a local election of the citizens of the Union residing in a member state other than the member state of which they are the citizens was accepted on December 19, 1994. This regulation underwent some alterations through the Council Regulation numbered 96/3016 and dated May 13, 1996. This regulation consists of compliant provisions with the Regulation numbered 93/109 that is defined above and regulates the right to vote and be elected in the European Parliament elections.

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Council Directive 1993/109/EC of 6 December 1993 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 nationals [1993] OJ L329. 14 Marco Martiniello, The Development of European Union Citizenship in Maurice Roche and Rik Van Berkel (eds), European Citizenship and Social Exclusion (Ashgate Publising Limited 1997) 41. 15 Council Directive 1994/80/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 [1994] OJ L368. 16 Council Directive 1996/30/EC of 13 May 1996 amending Directive 94/80/EC 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 [1996] OJ L122.

III- THE RIGHT OF BENEFITING FROM THE DIPLOMATIC PROTECTION The right of benefiting from the diplomatic protection means that the citizens of the Union's member state who are not represented at the third country are protected by the representation of another country in order to help or repatriate in cases of death, accident, being assaulted, serious disease or being arrested.17 The right of benefiting from the diplomatic protection which was formed in the Article 20 of the Treaty Establishing the European Community, was regulated in detail along with two other important decisions accepted on December 19, 1995. The first of them is the Decision numbered 95/553 18 regarding the protection of the citizens of the Union by their diplomatic representatives; and the second one is the Decision regarding the implementation conditions which are to be accepted by the consulate officials.19 Another important decision included in the secondary legislation is the decision numbered 96/409 and dated June 25, 1996 in respect of drafting an urgent travel document for the citizens of the Union who are located at a third country in which the diplomatic representatives of the member states, of which they are the citizens, are absent.20 Despite all of these regulations, the right of benefiting from diplomatic protection is not a functional right and not commonly exercised by the citizens of the Union in practice. Moreover, some insights were set forth on the uncertainties related to the circumstances with which this right could be exercised and the procedures to follow.21

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Commission, Report on the Citizenship of the Union COM (93) 702 final, 7. Council Directive 1995/553/EC 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 [1995] OJ L314. 19 Commission, Second Report on the Citizenship of the Union COM (97) 230 final, 11. 20 Council Directive 1996/409/EC of the Representatives of the Governments of the Member States, meeting within the Council of 25 June 1996 on the establishment of an emergency travel document [1995] OJ L168. 21 Martiniello (n 14) 43.

IV- THE RIGHT TO APPEAL TO EUROPEAN PARLIAMENT WITH PETITION AND TO OMBUDSMAN Both the right to appeal to European Parliament with a petition and the right to appeal to Ombudsman are bestowed not only to the citizens of a member state and the Union, but also to all of the natural and legal persons.22 In principle, the matter of choosing to appeal either to the European Parliament with a petition or to Ombudsman is left to the choice of the citizen of the member state of the Union who has the right to decide whichever legal procedure is more suitable to his/her own conditions.23 The right to appeal to the European Parliament with a petition which was entered into the context of the Establishing Treaty with Maastricht Treaty, is not exactly a new right. This right was first included in the standing orders of the Parliament which were regulated by the European Coal and Steel Community.24 In 1977, the European Parliament accepted a decision regarding that the right to petition needed to be bestowed to all of the citizens of the Community. The Parliament made an alteration in the standing orders after its members acceded with the direct elections and it formally affirmed the right to petition of the citizens of the Community in May, 1981. When the Council approved the report related to the Citizens' Europe of Adonnino Committee, the importance of petitioning in political aspect was realized for the first time. In 1987, the Petition Commission was founded by the Parliament. In 1989, an Inter-Institution Declaration was signed by the chairmen of the Parliament, the Council and the Commission.25 The right to appeal to the European Parliament with a petition gained the quality of a right originated from the direct agreement and Maastricht Treaty. Thus, the intention was to make the individuals benefit from this right further and

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Closa (n 12) 1165. The Annual Report of the European Ombudsman for the Year 1995 <http://www.ombudsman.europa.eu/activities/annualreports.faces> accessed 08 December 2012.
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COM (93) final 7. EC Bullet 6-1989 <http://www.ab.gov.tr/files/ardb/evt/1_avrupa_birligi/1_4_zirveler_1985_sonrasi/1989_madrid_zirvesi _baskanlik_avrupa_topluluklari_en.pdf> accessed 08 December 2012.

efficiently.26 The right to appeal to Ombudsman has been on the Community's agenda at times since 1970's; it was considered as one of the symbols of the citizenship of the Union such as flag and anthem according to the report of Adonnino Committee in 1985. In Inter-Governmental Conference arranged in 1991, it was decided to establish a foundation named "the European Ombudsman" which would be responsible for investigating the claims concerning the maladministration of the Community entities upon the suggestion of Luxembourg Government. Immediately after that, this foundation was regulated on constitutional terms for the first time in the Community law with Maastricht Treaty. Jacob Sderman who was assigned as the first ombudsman came into office in July, 1995 and this assignment was undertaken by Nikoforors Diamandouros in 2003.27

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COM (93) final 86. The Annual Report of the European Ombudsman for the Year 2004 <http://www.ombudsman.europa.eu/activities/annualreports.faces> accessed 08 December 2012.

CONCLUSION The concept of the citizenship of the Union followed a parallel course with the Europe's process of becoming a union on a political and legal basis. In the period elapsed from the establishment of the European Communities -of which prominent organization is mainly economical- to Maastricht Treaty, the individuals were not brought to the agenda with their citizenship statuses, but with their contributions to the economic life usually. In this period, the main subjects of the agenda were the rights of free movement and establishment of the people within the scope of their economic activity. The most important event, which might be considered as the turning point in the sense of the concept of the citizenship of the Union, is Maastricht Treaty entered into force on November 1, 1993. This treaty created a direct legal link between the citizens of the member states and the European Union by providing the concept of the citizenship of the Union to appear in the Establishing Treaty for the first time. As a result, it also provided the rights bestowed to the citizens of the member states in the European Union structure to gain a concrete quality. The rights connected with the status of the citizenship of the Union are determined as follows; the rights of free movement and establishment within the borders of the European Union, the right to vote and be elected in the European Parliament elections and local elections, the right to benefit from the diplomatic protection on the lands of the third countries, the right to appeal to the European Parliament with a petition and to appeal to Ombudsman. The citizenship of the Union, which attained its place in the European Union Law with Maastricht Treaty, also took place in the Charter of Fundamental Rights and European Union with its original qualities.

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BIBLIOGRAPHY EU LEGISLATION AND CASES Case 357/89 Raulin v Minister van Onderwijs en Wetenschappen [1992] ECR I-1027. Case 184/99 Rudy Grzelczyk v Centre public d'aide sociale d'OttigniesLouvain-la-Neuve [2001] ECR I-06193. Case 152/73 Sotqui v Deutsche Bundespost [1974] ECR 153. Consolidated Version of the Treaty on European Union [2002] OJ C325/1-184. Council Decision (EC) of 25 June 2002 and 23 September 2002 amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage [2002] OJ L283. Council Directive 1993/109/EC of 6 December 1993 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 nationals [1993] OJ L329. Council Directive 1994/80/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 [1994] OJ L368. Council Directive 1995/553/EC 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 [1995] OJ L314. Council Directive 1996/30/EC of 13 May 1996 amending Directive 94/80/EC 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 [1996] OJ L122. Council Directive 1996/409/EC of the Representatives of the Governments of the Member States, meeting within the Council of 25 June 1996 on the establishment of an emergency travel document [1995] OJ L168. BOOKS Hall S, Nationality, Migration Rights and Citizenship of the Union (1th edn, Martinus Nijhoff Publishers 1995). Martiniello M, The Development of European Union Citizenship in Maurice Roche and Rik Van Berkel (eds), European Citizenship and Social Exclusion (Ashgate Publising Limited 1997). Roche M, Citizenship And Exclusion: Reconstructing The European Union

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in Maurice Roche and Rik Van Berkel (eds), European Citizenship and Social Exclusion (Ashgate Publising Limited 1997). Shaw J, Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism in Paul Craig and Grinne de Brca (eds), The Evolution of EU Law (Oxford University Press 2011). Soledad G, European Union Identity and Citizenship in Maurice Roche and Rik Van Berkel (eds), European Citizenship and Social Exclusion (Ashgate Publising Limited 1997). Weatherill S. and Beaumont P, Eu Law: The Essential Guide to the Legal Workings of the European Union (3rd edn, Penguin Books 1999). REPORTS Commission, Report on the Citizenship of the Union COM (93) 702 final. Commission, Second Report on the Citizenship of the Union COM (97) 230 final. The Annual Report of the European Ombudsman for the Year 1995 available at <http://www.ombudsman.europa.eu/activities/annualreports.faces> The Annual Report of the European Ombudsman for the Year 2004 available at <http://www.ombudsman.europa.eu/activities/annualreports.faces> ELETRONIC SOURCES Closa C, The Concept of Citizenship in the Treaty on European Union [1992] 29/6 Common Market Law Review available at

<http://www.academia.edu/1436922/The_concept_of_citizenship_in_the_Treaty_on_ European_Union> EC Bulletin 6-1989 available at

<http://www.ab.gov.tr/files/ardb/evt/1_avrupa_birligi/1_4_zirveler_1985_sonrasi/198 9_madrid_zirvesi_baskanlik_avrupa_topluluklari_en.pdf>

2443 Words (Exluding footnotes and bibliography)

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