• Internal Code :
  • Subject Code : LAW22403
  • University :
  • Subject Name : Law

Table of Contents

Part A

Question one:

Part B

Question 3

Article 267 TFEU - Part A

Question one:

a) In the above-mentioned case, after considering the arguments provided by the petitioner and the respondent parties, the Latvian Court of Law can pass a judgement on the favour of the claimant as the argument provided by the defendant is not an established point of Law. They defend a stated that the Regulations and Policies of the European Union were only applicable to international trade and business transactions but not to intranational sales transactions. The guidelines of the European Union Laws, however, state that such regulations apply to both international and trade matters performed by every country which is a member state of the European Union. Also, under the purview of article 267 of the Treaty on the Functioning of the European Union (TFEU), it is stated that if any tribunal or Court of Law situated in any of the countries of the European Union is entitled to request the Court of Justice of the EU for deciding a case. Such a case can only be referred to the Court of Justice if the interpretation of any EU provision is ambiguous. In the above case, the Latvian Court can mediate the dispute on its own, or it can refer to the Court of Justice of the EU for the settlement of the disputed matter.

b) The case subjected to discussion in this context is a dispute relating to Article 157 of the Treaty on the Functioning of the European Union (TFEU), which imposes the restrictions implied to an employer from applying any scheme which can be subject to gender discrimination. It is a point of the fact that similar cases had been previously adjudicated before the national courts of Belgium and Portugal. Referring to Article 267 of the TFEU, it can be found out that in a situation where a dispute has been subjected to a preliminary ruling in the context of the regulations of the European Union, the national Court before which the subjected appeal is made is not bound to refer the dispute to the Court Of Justice of the European Law. In the given case study, the Austrian Supreme Court has the right to exercise its jurisdictional powers in determining the judgement of the said case without referring it to the Court of Justice of the EU. The scope of the article 267 of TFEU, in this case, empowers The Oberster Gerichtshof to proceed the case under its discretionary power and pass a judgement depending on the evidence and facts of the case.

(c) In the case mentioned in the question, it is stated that an Italian Court rejected a preliminary decision to a dispute with the reason that the Court of Justice of the European Union might reject to pass any judgement for such dispute. According to Article 267 of the Treaty on the Functioning of the European Union, it can be known that any national court situated within a state which the member of the EU if the European Union is entitled to request the Court of Justice of the European Union to pass judgement to a matter which the said national Court thinks to have a possible scope of the judgement under the laws of the European Union. Under the above-mentioned article, the national courts are not bound to refer any dispute to the Court of Justice if any such court finds that the dispute has no possible scope of the judgement under any provision of the European Union laws. As in the question, the claimant is seen to be curious about the conditions for this decision if the Italian Court. Under Article 267 of the TFEU, the national courts are provided freedom from referring a dispute to the Court of Justice. The first condition being when the EU law provisions are found to be irrelevant to the said dispute, the second being when the said dispute is similar to a precedent dispute which had been subjected to the preliminary ruling and the last being that no provision of the EU law can be applied to the said dispute. In this case, the Italian Court rejected the ruling of the matter based on the first and third conditions among these three.

d) The European Union regulates the laws relating to Matrimonial and family disputes by empowering the courts to exercise its jurisdiction on the matters relating to Child Custody, joint or sole, the power to make decisions over the child's education and maintenance of the child's properties. In the above case, a Court of Finland is said to hear the appeal related to a child custodial dispute whose parents live in different countries. Now in such a case, according to the Brussels II Regulation (EC) No. 2201/2003, which is a regulation of the European Union that provides the jurisdictional limits of any court of any country who has the membership of the European Union. Now according to this regulation, it is a point of the fact that the Courts of the Member State in which the child is a habitual resident at the time of the case are empowered to exercise their jurisdiction on any such family dispute. The word "habitual residence" stands for the dwelling, citizenship and schooling of the child. As a Finnish court is hearing this case, it can be said that the habitual residence of the child is in Finland. For determining the custody of the child, there are certain conditions which the Court needs to consider before delivering a judgement. These are to consider the opinion of the child and to ensure that the child is not deprived of the love and responsibility of any parent. According to Article 267 of the Treaty on the Functioning of the European Union, the Finnish Court, if facing difficulties in solving the matter urgently, it can refer to the Court of Justice of the European Law to avoid unnecessary delay as the matter concerns the welfare of the child.

Rights and Obligations Under European Union Law - Part B

Question 3

a. In the given scenario, Annie has got a job offer from Latvia. She is a citizen of France. She is eager to know about her rights to live and work in Latvia. According to the Treaty mentioned in Article 45 of the Treaty, free movement is a fundamental principle. The Treaty is on the Functioning of the EU. It was developed by the secondary legislation of the European Union (EU) and the Case-law of the Court of Justice. It enumerates the following:

  • The citizens of the EU have the right to search for a job in another EU state.
  • They do not require a work permit.
  • Moreover, they can live in that country during work.
  • They can even stay there after completion of their employment.
  • They are entitled to get equal treatment in respect to accessing employment opportunities, similar working conditions and also relating to all tax and social advantages.

The provisions relating to this has been laid down in Directive 2004/38/EC. It contains the rights of EU citizens and their families to travel and live within the Member States without any hindrance. Therefore, the worker also has the right to bring along with him, spouse, registered partner, descendants who are 21 years of age, dependants in the ascending line members of the household or any other family member who has a serious health issue and requires care.

Annie will have an opportunity to access all these rights relating to her living and working ability in Latvia.

b. According to European Union Law, an EU citizen has the right to move to any other European country for living, working, looking for a job, studying etc. Therefore, Bert can reside in Netherland. However, he can reside there for three months without reporting. After that, he needs to show the following necessary documents before he can continue his stay:

  • an authentic national identity card from his home country
  • his passport
  • proof that he has a stable source of income to live in Netherland
  • a diploma attesting the civic integration.
  • Proof regarding adequate health insurance

Therefore, after providing these documents, he is required to register his residence. In the given scenario, Bert is getting part-time job opportunities based on his skills in Netherland. Part-time will not fall under the purview of a stable source of income. Therefore, it is insufficient for him, and he needs to get a full-time job. Thus, he will be required to leave after three months.

c. In the given case study, Dieter and his children are German citizens. His wife, Emma, is a Non-EU citizen being a South African citizen. They were residing in Germany, and currently, they are planning to shift to Poland, since, Dieter has been offered a job there. The kids want to continue their education over there, and Emma wants to find a job. The question arises what opportunities will Emma and her kids have in Poland.

According to the European Union Law, when an EU citizen works in any other country of EU, his family members shall also have the opportunity to reside and work in that country irrespective of what nationality they possess. The children shall also have the right to get education from that country.

Right to work:

  • The family members would not require a work permit irrespective of the fact that they are Non-EU citizen.
  • They are also entitled to get equal treatment in respect to accessing employment opportunities, similar working conditions and also relating to all tax and social advantages.

Right to education:

  • Children of an EU National are considered to be an EU citizen. They have a right to education in the host country.
  • They also have the right to get equal access to study grants.

Therefore, Emma and her kids shall have an equal opportunity to work and study after shifting to Poland.

d. In the given case study, Hugo, who is an Estonian citizen, works in Bulgaria. He has a past criminal record in Estonia. Moreover, recently he was arrested due to creating public nuisance outside a bar. The question which arises is whether he will be deported to Estonia on conviction. Under such a scenario, according to the EU Law states that:

Any person who is an EU citizen, working and living in another EU country shall be deported to his own country if the grounds of public policy or public security demands so. However, it is an essential requirement to prove that the individual is a serious threat to the country. Moreover, such deportation must be in writing, stating all the reasons for such deportation. It must also include the method regarding how he can appeal and when.

Therefore, in the given case, if Hugo is convicted, will be deported to Estonia.

e. Janette is a Latvian national who resides and works in Cyprus. She applied for the job of an ambulance driver which got rejected. The reason for such rejection was that this service falls under the purview of the public services. Therefore, no one other than Cypriot Nationals can apply for the job. From the above scenario, it is clear that Janette is a Latvian. Hence, she is a member of the European Union, and she has applied for a public sector job of Cyprus which is also an of the European Union state.

According to the European Union Law, a European citizen shall be treated equally everywhere in the European Union territory. Also, the citizens of an EU country and their family members who work in the other European Union country shall have equal opportunity relating to work as their nationals and shall not be discriminated. There lies no exception under the EU Law.

Therefore, in the given scenario, there exist discrimination and Janette’s rights for getting equal treatment in all EU Member States is violated, since, she is rejected based on her nationality. Thus, Janette is eligible and is entitled to get the job as an ambulance driver in Cyprus although she is a citizen of Latvia.

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