Between Law and Political Truth? Member State Preferences, EU Free Movement Rules and National Immigration Law

2015 ◽  
Author(s):  
Jo Shaw
Keyword(s):  
Member State ◽  
Free Movement ◽  
Immigration Law ◽  
Movement Rules ◽  
State Preferences

scholarly journals Between Law and Political Truth? Member State Preferences, EU Free Movement Rules and National Immigration Law

2015 ◽  
Vol 17 ◽  
pp. 247-286 ◽  
Author(s):  
Jo SHAW
Keyword(s):  
Domestic Politics ◽  
Free Movement ◽  
Immigration Law ◽  
Eu Law ◽  
Member States ◽  
The United Kingdom ◽  
Eu Membership ◽  
Analytical Construction ◽  
The Uk ◽  
Movement Rules

AbstractThis article explores how Member States respond to the challenge of complying with EU law obligations, whilst remaining alert to the demands of domestic politics in the context of contentious areas of EU competence. It is argued that in the case of free movement we can see the United Kingdom drawing upon three overlapping strategies in order to tread the fine line ‘between law and political truth’: it exploits as much as possible any uncertainties within free movement law; it draws upon the proximate field of domestic immigration law in order to reinterpret free movement law; and it argues for new resources to be brought into the field of free movement, in particular resources which restrict the freedoms of Member States. A discursive frame of migration governance provides the analytical construction within which the argument is located. The article is therefore a contribution to debates about (legal) Europeanisation and compliance, as well as the more specific challenges facing the UK in the latter half of the 2010s, namely a renegotiation of and referendum on EU membership.

While the Treaty does not affect the existence of intellectual property rights, there are nonetheless circumstances in which the exercise of such rights may be restricted by the prohibitions laid down in the treaty. 2. Article 36 permits exceptions to the free movement of goods only to the extent to which such exceptions are necessary for the purpose of safeguarding the rights that constitute the specific subject-matter of the type of intellectual property in question. Perhaps the main advantage of this formula, apart from the fact that it narrows the scope of the exceptions permitted by Article 36, is that it allows subtle distinctions to be made depending on the type of intellectual property in issue. 3. The exclusive right conferred on the owner of intellectual property is exhausted in relation to the products in question when he puts them into circulation anywhere within the Common Market. Spelt out more fully, ‘the proprietor of an industrial or commercial property right protected by the legislation of a Member State may not rely on that legislation in order to oppose the importation of a product which has lawfully been marketed in another Member State by, or with the consent of, the proprietor of the right himself or person legally or economically dependent on him’. The expression ‘industrial and commercial property’ clearly embraces patents and trademarks. It also extends to such specialised areas as plant breeders’ rights. The court has held that copyright can also be a form of industrial or commercial property because it ‘includes the protection conferred by copyright, especially when exploited commercially in the form of licences capable of affecting distribution in the various Member States of goods incorporating the protected literary or artistic work’. The principle that the Treaty does not affect the existence of industrial and commercial property rights is derived from Article 222 of the treaty. This provides that ‘the treaty shall in no way prejudice the rules in Member States governing the system of property ownership’. Consequently intellectual property rights are unaffected by the provisions of the treaty unless they hinder free movement or offend the rules of competition. In Keurkoop v Nancy Kean (see below) the design of a handbag which was manufactured in Taiwan was registered in the Benelux countries but without the authority of the actual author. In Case 78/70, Deutsche Grammophon v Metro-SB Grossmärkte [1971] ECR 487, [1971] CMLR 631, the European Court stated:

1997 ◽  
pp. 110-114
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Member State ◽  
Intellectual Property Rights ◽  
Free Movement ◽  
Member States ◽  
Commercial Property ◽  
European Court ◽  
The Right ◽  
Exclusive Right

Introduction

2020 ◽  
pp. 1-8
Author(s):  
Jan Zglinski
Keyword(s):  
Empirical Study ◽  
Member State ◽  
Case Law ◽  
Free Movement ◽  
State Courts ◽  
State Action ◽  
European Court ◽  
National Autonomy ◽  
Eu Free Movement Law

This introductory chapter sets out the themes of the book. Doctrines of judicial deference have begun to appear with growing regularity in the European Court of Justice’s free movement case law, especially in relation to Member State action. Their application has been controversial, which is unsurprising in light of the constitutional issues which deference raises: should judges intervene in the work of the legislators? How far can the EU restrict national autonomy? And what is the division of power between European and Member State courts? The chapter sketches the approach taken in the book and explains the empirical study on which the analysis is based. The idea of the ‘passive virtues’ is introduced and linked to the developments in EU free movement law.

Right of Exit and Entry

2019 ◽  
pp. 89-112
Author(s):  
Elspeth Guild ◽  
Steve Peers ◽  
Jonathan Tomkin
Keyword(s):  
Member State ◽  
Free Movement ◽  
Legal Requirements ◽  
Member States ◽  
Permanent Residence ◽  
The Right

This chapter examines the right of exit and entry provided for in the citizens’ Directive. Articles 4 and 5 of Directive 2004/38 affirm the right of Union citizens and members of their family to leave their Member State of origin and to enter any other Member State of their choosing. As such, these Articles constitute a ‘gateway’ for the exercise of rights of residence and rights of permanent residence provided for in the Directive. In addition to affirming the right of free movement, Articles 4 and 5 specify the administrative documentation and procedures governing travel between Member States. However, there have been significant failures to transpose these provisions correctly, with some Member States imposing exit controls on their own citizens, while some Member States blatantly ignore the clear legal requirements of the Directive.

11. Internal Market: Persons

2020 ◽  
pp. 256-281
Author(s):  
Robert Schütze
Keyword(s):  
Member State ◽  
Maastricht Treaty ◽  
Free Movement ◽  
Symbiotic Relationship ◽  
Complex Relationship ◽  
General Rules ◽  
Free Movement Of Persons ◽  
The Right ◽  
State Restrictions ◽  
The Eu

This chapter highlights the complex constitutional arrangements governing the free movement of persons. The EU Treaties distinguished between two classes of economic migrants, namely, employed and self-employed persons; and today's Treaty title dealing with persons still addresses ‘Workers’ and the ‘Right of Establishment’ in two separate chapters. With the 1992 Maastricht Treaty, the two special chapters on persons were complemented by the general rules on EU citizenship. Unsurprisingly, there has been a complex relationship between the two specific sources of free movement rights and the EU citizenship provisions. Their symbiotic relationship is particularly embodied in the ‘Citizenship Directive’. The chapter then considers the possible justifications for Member State restrictions on the free movement of persons.

16. Exceptions to the free movement rules

2020 ◽  
pp. 510-543
Author(s):  
Niamh Nic Shuibhne
Keyword(s):  
Public Interest ◽  
Free Movement ◽  
Eu Law ◽  
Member States ◽  
The Public ◽  
Proportionality Test ◽  
Restrictive Measures ◽  
Movement Rules

This chapter examines when Member States can lawfully displace the obligations placed on them by free movement law. Free movement rights can be restricted under EU law in two ways. For discriminatory or distinctly applicable restrictive measures, a derogation ground expressly provided for in the TFEU must be engaged. For indirectly or non-discriminatory measures, that is, indistinctly applicable restrictive measures, if an overriding requirement relating to the public interest can be demonstrated the measure will be lawful. In both cases, the restriction also has to satisfy a proportionality test, that is, it is both appropriate and necessary for achieving the relevant public interest objective.

6. Free movement of persons

2020 ◽  
pp. 121-153
Author(s):  
Matthew J. Homewood
Keyword(s):  
European Union ◽  
Member State ◽  
General Principle ◽  
Internal Market ◽  
Free Movement ◽  
The European Union ◽  
Scope Of Application ◽  
Free Movement Of Persons ◽  
The Right ◽  
The Eu

This chapter discusses the law on the free movement of persons in the EU. Free movement of persons is one of the four ‘freedoms’ of the internal market. Original EC Treaty provisions granted free movement rights to the economically active—workers, persons exercising the right of establishment, and persons providing services in another Member State. The Treaty also set out the general principle of non-discrimination on grounds of nationality, ‘within the scope of application of the Treaty’. All these provisions are now contained in the Treaty on the Functioning of the European Union (TFEU). Early secondary legislation granted rights to family members, students, retired persons, and persons of independent means. The Citizenship Directive 2004/38 consolidated this legislation.

11. Free movement of goods

2020 ◽  
pp. 294-322
Author(s):  
Sylvia de Mars
Keyword(s):  
Member State ◽  
Specific Volume ◽  
Internal Market ◽  
Free Movement ◽  
Eu Law ◽  
Legal Rules ◽  
Starting Point ◽  
Free Movement Of Goods ◽  
The Uk ◽  
The Eu

This chapter explores the free movement of goods, which lies at the very heart of the internal market. The idea of the free movement of goods was the starting point that the EEC Treaty aimed for, and remains one of the greatest achievements of the EU to date. However, as with everything in EU law, there are a lot of legal rules underpinning a fairly straightforward concept. The Treaty contains two separate sets of provisions that address matters of taxation when it comes to trade in products. The first relates to border taxation, while the second relates to internal taxation. With regard to non-taxation issues, the primary issue is quantitative restrictions: situations where a Member State either blocks a specific volume of products from entering its market, or outlaws/bans a product altogether. The chapter then considers the exceptions to free movement of goods, and assesses how Brexit may impact on the free movement of goods between the UK and the EU.

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