European Union lawZambrano carers:unaccompanied minors
The basic framework of European law
25.5European Union law is founded on the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). Article 6 of the TEU gives treaty effect to the Charter of Fundamental Rights (CFR).
25.6The EU enjoys exclusive competence in the areas of customs union, the functioning of the internal market, monetary policy, the conservation of marine biological resources and common commercial policy.
1TFEU Article 2.It shares competence with Member States in the following areas:
2TFEU Article 4(2)4(2)Shared competence between the Union and the Member States applies in the following principal areas:
(a)internal market;
(b)social policy, for the aspects defined in this Treaty;
(c)economic, social and territorial cohesion;
(d)agriculture and fisheries, excluding the conservation of marine biological resources;
(e)environment;
(f)consumer protection;
(g)transport;
(h)trans-European networks;
(i)energy;
(j)area of freedom, security and justice;
(k)common safety concerns in public health matters, for the aspects defined in this Treaty.
The primacy of EU Law
25.7All rules of EU law prevail over any inconsistent national law, whether that be common law or primary legislation, such that every tribunal, however lowly, is required to override any type of national law insofar as it may be inconsistent with rules of EU law.
3Costa v ENEL [1964] ECR 585; Simmenthal [1978] ECR 629 at para 22.An EU rule can be relied on directly by litigants in national law:
•against the State (‘vertically’) and against other persons (‘horizontally’), when it is in a Treaty and creates rights and obligations that are sufficiently complete, unconditional, clear and precise;
4Van Gend en Loos [1963] ECR 1. •against the State and against other persons, when it is in a regulation;
5TFEU Article 288. •against the State, when it is in a directive, providing that (i) time for implementing the directive into national law has expired; (ii) the Member State has failed to implement the directive properly, or at all; and (iii) the rule creates justiciable rights and obligations that are unconditional and sufficiently precise;
6Van Duyn v Home Office [1974] ECR 1337. •against the State and other persons, when it is a decision of the Court of Justice of the European Union (CJEU);
7TFEU Article 267. •where binding decisions are made, authorised by the TFEU or subordinate EU legislation, in terms that are sufficiently clear and precise so as to confer directly effective rights.
8TFEU Article 288. 25.8Even where EU law is not directly effective in a Member State, the courts are required to construe national law consistently with it as far as possible.
9Marleasing SA v La Commercial Internacional de Alimentacion SA [1990] ECR 1–4135.Important principles of EU law
25.9The most important principles, in the present context, are as follows:
•national courts must construe national legislation, dealing with the same subject matter as EU law, consistently with EU law, as far as possible, so as to give effect to EU law:
10TEU Article 4(3); Marleasing SA v La Commercial Internacional de Alimentacion SA [1990] ECR 1–4135.no ambiguity is needed and bold departures from the ordinary meaning of words are required, so long as the process does not exceed one of reasonable construction;
11R (Equal Opportunities Commission) v Secretary of State for Communities and Local Government [2007] EWHC 483 (Admin), [2007] 2 CMLR 49. •Where EU law vests rights in persons without prescribing any process whereby those persons may enforce those rights, it is for the national legal system to decide on the most appropriate process
12Comet BV v Produktschap voor Siergewassen [1976] ECR 2043 at para 13.providing that (i) the process is just as favourable as the procedures for the enforcement of similar national rights (‘the principle of equivalence’);
13R v Secretary of State for Transport ex p Factortame [1990] ECR 1–2433 at para 20; Danske Slagterier v Bundesrepublik Deutschland [2009] ECR 1–2110 at para 48.and (ii) the process does not make it impossible or excessively difficult to enforce the EU right (‘the principle of effectiveness’);
14FA (Iraq) v Secretary of State for the Home Department [2011] UKSC 22, [2011] 3 CMLR 23 at para 35; Danske Slagterier v Bundesrepublik Deutschland [2009] ECR 1–2110 at para 48. •Member States must provide effective remedies, including for financial compensation for harm caused by breaches of EU law for which the Member State is responsible;
15Francovich v Italy [1991] ECR 1–5357. •any national court or tribunal is entitled to refer a question on the interpretation of EU law to the CJEU
16TFEU Article 276.and ought to refer an issue that is critical to its decision, unless it can with complete confidence determine the issue for itself, notwithstanding the wider perspective and expertise of the CJEU;
17R v International Stock Exchange ex p Else Ltd [1993] QB 534 at 545; CILFIT v Ministry of Health [1982] ECR 3415 at para 16. •in the absence of any specific requirement of equal treatment, in principle all comparable situations must be treated the same unless the difference is objectively justified
18Uberschar v Bundesversichorunganstalt fur Angestellete [1980] ECR 2747 at para 16.and different situations must not be treated in the same way unless each treatment is objectively justified;
19R (Novartis) v Licensing Authority [2004] ECR 1–4403 at para 69. •proportionality is a general principle of EU law,
20TEU Article 5(4); Lumsdon v Legal Services Board [2015] UKSC 41, [2015] 3 WLR 121 at paras 23–32.accordingly, all actions and decision of the EU and its various agencies, and of national authorities acting within the scope of EU law, must be proportionate, in the sense that the means employed to achieve the aim must be suitable or appropriate to achieve the aim; must be necessary for its achievement such that there is no less onerous method of achieving the aim; and must not impose a burden that is disproportionate to the aimed for benefits;
21Internationale Handelsgesellschaft v Einfuhr und Vorratstelle Getreide [1970] ECR 1125; Lumsdon v Legal Services Board [2015] UKSC 41, [2015] 3 WLR 121 at paras 33–39. •there must be legal certainty and the protection of legitimate expectations – the effect of EU legislation must be clear and predictable;
22Duff v MAF [1996] ECR 1–569 at para 20. •notwithstanding the existence of the CFR, general fundamental rights principles remain principles of EU law.
23Stauder v City of Ulm [1969] ECR 419; Internationale Handelsgesellschaft v Einfuhr und Vorratstelle Getreide [1970] ECR 1125. The Charter of Fundamental Rights
25.11According to the CFR, it is binding on EU institutions and Member States ‘when they are implementing Union law’.
25CFR Article 51(1).This has been construed by the CJEU broadly, as meaning that Member States must abide by the fundamental rights in the CFR when they are ‘acting within the scope of EU law’.
26ERT v DEP and Kouvelas [1991] ECR 2925; Dereci v Bundesministerium fur Inneres [2012] 1 CMLR 22 at para 58.Notably, Member States are ‘acting within the scope of EU law’ when they process claims for international protection and provide reception conditions for such claimants.
27NS v Secretary of State for the Home Department [2013] QB 102.25.12The CFR contains a Protocol that appears intended to limit the impact of the CFR on the UK (and Poland) but in fact seems to have no real meaning.
28NS v Secretary of State for the Home Department [2013] QB 102.25.13The CFR essentially comprises:
•a statement of fundamental rights, drawing from the ECHR, EU law and the human rights traditions of the Member States, in six chapters covering dignity, freedoms, equality, solidarity, citizen’s rights and justice;
•a set of principles, which may be implemented in EU or national law.
25.14The CFR provides that the rights set out therein, which correspond to rights in the ECHR, are in general to have the same meaning and scope as the ECHR rights;
29CFR Article 52(3).but case-law suggests that such rights will not be so limited when they already have a wider EU meaning.
30Diouf v Ministre du Travail [2012] 1 CMLR 8 at para 39.25.15Any limitation on a right in the CFR must be provided for by law, respect the essence of the right and be proportionate.
31CFR Article 52(1).25.18As stated by Munby J in
R (Howard League for Penal Reform) v Secretary of State for the Home Department and another:
35[2002] EWHC 2497 (Admin) at [51].… the UN [Child] Convention [and] the European Charter … can … properly be consulted insofar as they proclaim, reaffirm or elucidate the content of those human rights that are generally recognised throughout the European family of nations, in particular the nature and scope of those fundamental rights that are guaranteed by the European Convention.
25.19In addition, the European Social Charter of 1961 (ratified by the UK) and the Revised European Social Charter of 1996 (not ratified by the UK) contain a number of human rights, implementation of which is monitored by the European Committee of Social Rights, whose case-law (based on a collective complaint procedure in the Revised European Social Charter of 1996) is of great interest.
36www.coe.int/t/dghl/monitoring/socialcharter/ECSR/ECSRdefault_en.asp.25.20A recent decision on the website in fact gives a good flavour of the Committee’s approach and the subject matter of its cases: in
European Committee for Home-Based Priority Action for the Child and the Family (EUROCEF) v France (Complaint No 114/2015),
37http://hudoc.esc.coe.int/eng.the Committee accepted as admissible a complaint that France was failing to discharge its obligations under the Revised European Social Charter of 1996 to provide housing, social and medical assistance, social welfare and other benefits to unaccompanied minors, living irregularly in France, or seeking asylum.
25.21The most useful CFR rights in this context are as follows:
Article 3: Right to the integrity of the person
1. Everyone has the right to respect for his or her physical and mental integrity.
2. In the fields of medicine and biology, the following must be respected in particular:
•the free and informed consent of the person concerned, according to the procedures laid down by law,
•the prohibition of eugenic practices, in particular those aiming at the selection of persons, t
•the prohibition on making the human body and its parts as such a source of financial gain,
•the prohibition of the reproductive cloning of human beings.
Article 4: Prohibition of torture and inhuman or
degrading treatment or punishment
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 7: Respect for private and family life
Everyone has the right to respect for his or her private and family life, home and communications.
Article 8: Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority
Article 20: Equality before the law
Everyone is equal before the law.
Article 21: Non-discrimination
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.
Article 22: Cultural, religious and linguistic diversity
The Union shall respect cultural, religious and linguistic diversity.
Article 23: Equality between women and men
Equality between women and men must be ensured in all areas, including employment, work and pay.
The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.
Article 24: The rights of the child
1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.
Article 25: The rights of the elderly
The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.
Article 26: Integration of persons with disabilities
The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.
Article 34: Social security and social assistance
1. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Union law and national laws and practices.
2. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Union law and national laws and practices.
3. In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Union law and national laws and practices.
Article 35: Health care
Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all the Union’s policies and activities.
Article 41: Right to good administration
1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.
2. This right includes:
(a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;
(b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;
(c) the obligation of the administration to give reasons for its decisions.
3. Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.
4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.
Article 42: Right of access to documents
Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.
Article 47: Right to an effective remedy and to a fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.