THE POSITIVES AND NEGATIVES OF CITIZENSHIP Estella Baker
[email protected]
CONTENTS • “Civis europeus sum”; • Overview –rights of the defence & for victims (“positives”); • Relationship to citizenship (“negatives”); • Concluding observations
“CIVIS EUROPEUS SUM” “In my opinion, a Community national who goes to another Member State… is… entitled to assume that, wherever he goes to earn his living in the European Community, he will be treated in accordance with a common code of fundamental values, in particular those laid down in the ECHR. In other words, he is entitled to say 'civis europeus sum' and to invoke that status in order to oppose any violation of his fundamental rights.” (Case C-168/91 Konstantinidis, Opinion of AG Jacobs, paragraph 46)
EC LAW DOCTRINE OF FUNDAMENTAL RIGHTS “the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. The ECHR has special significance in that respect. It follows that the Community cannot accept measures which are incompatible with observance of the human rights thus recognised and guaranteed.” (Case C-260/89 ERT, paragraph 41)
FUNDAMENTAL RIGHTS PROTECTION UNDER THE TEU • General principles of Union law: Article 6(3) TEU(L); • The Charter: Article 6(1) TEU(L); • ECHR accession: Article 6(2) TEU(L) • Note: Article 218(8) TFEU
FREE MOVEMENT LAW & DEFENDANTS • Case C-274/96 Bickel & Franz: nondiscrimination; • Case C-193/94 Skanavi, Case C-348/96 Calfa: proportionality; • Case C-299/95 Kremzow: fundamental rights
FREE MOVEMENT LAW & VICTIMS • Case 186/87 Cowan, Case C-164/07 James Wood: non-discrimination; • Case C-265/95 Commission v French Republic (“French Farmers”): law enforcement
UNION LEGISLATION ON VICTIMS’ RIGHTS • Council framework decision 2001/220/JHA; • Council directive 2004/80/EC; • Roadmap for strengthening the rights & protection of victims; • Directive 2012/29/EU (etc..)
UNION LEGISLATION ON DEFENCE RIGHTS • Roadmap on strengthening procedural rights; • Stockholm Programme; • Directive 2010/64/EU, Directive 2012/13/EU…
SO FAR; SO GOOD!
But…
ISSUES OF CITIZENSHIP • “Citizen of the Union”: Articles 20-25 TFEU; • “Some citizens are more citizens than others”: Case C-13/08 Rottmann, Case C-66/08 Kozlowski
THE CITIZENSHIP DIRECTIVE • Directive 2004/38/EC; • Case C-145/09 Tsakouridis; • Case C-348/09 PI
PROTECTION UNDER THE CHARTER • Field of application; • Case C-617/10 Fransson, Opinion of AG Cruz Villalón • • • •
Article 47: effective remedy & fair trial; Article 48: presumption of innocence & right of defence; Article 49: principles of legality & proportionality; Article 50 ne bis in idem
SOME CONCLUDING OBSERVATIONS • A suitcase of rights to take on holiday?
• “Civis europeus sum” –a case of “pushmi-pullyu”?
THANK YOU FOR LISTENING!
