THE ROLE OF THE COURT OF JUSTICE IN EUROPEAN INTEGRATION The Bar Council of England and Wales The Law Reform Lecture 15 December 2017 Ladies and gentlemen, I am very honoured to be here today to deliver the 2017 s Bar Council s Law Reform Lecture, and to share with you some thoughts on the role of the Court of Justice in the process of European integration. What would [European] law have been like without the judgments of 1963 and 1964? So wondered one of my predecessors as President of the Court of Justice, Robert Lecourt, in an article published in 1991. 1 As someone who himself sat as a judge in both Van Gend en Loos and Costa v Enel, 2 he imagined what might have happened if those rulings had never been made, thereby providing us with a fascinating insight 1 R. Lecourt, Quel eût été le droit des Communautés sans les arrêts de 1963 et 1964?, in L Europe et le droit : mélanges en hommage à Jean Boulouis, Paris, Dalloz, 1991. p. 349. 2 Judgment of 5 February 1963, Van Gend en Loos, 26-62, EU:C:1963:1 and judgment of 15 July 1964, Costa v E.N.E.L., 6-64, EU:C:1964:66.
into an alternative reality, totally at odds with the one with which we are familiar today. In that alternative reality, individuals would not have played the central role that they have in fact played in the process of European integration, since national courts would not have been regarded as the Union s courts of general jurisdiction. Moreover, in the absence of the principles of direct effect and primacy of EU law, established by those landmark rulings, the preliminary ruling procedure would have withered, if not died, and hopes for genuinely uniform application of EU law throughout the Union would have foundered. Robert Lecourt therefore concluded that the Treaties of Rome, whose 60 th anniversary we have celebrated at the end of March, would have been just another free trade agreement, like so many others, thus turning hopes for a Community of peoples and States, endowed with its own institutions and powers, operating with the guarantee of an effective rule of law into mere castles in the air. 3 The principle of the autonomy of EU law is, amongst other things, an expression of that centrality of individual rights in EU law and, as such, it has played an essential part in the process of European integration. The Court of Justice has based that principle on the fact that those rights, developed and enhanced by successive Treaty amendments, were originally provided for in the Treaties of Rome 3 Nº 1 above, at p. 361 (translated from the original French). 2
themselves, since EU law is characterised by the fact that it stems from an independent source of law, the Treaties. 4 The EU Treaties, as interpreted by the Court of Justice, have thus established a legal and institutional framework in which individuals are considered to be subjects of the laws through which European integration is realised, 5 yet each Member State nevertheless retains its legal and constitutional identity. 6 As the Court made clear in its Opinion number two of 2013, the autonomy of EU law follows from the creation of a new kind of legal order, the nature of which is peculiar to the EU, endowed with its own constitutional framework and founding principles, a particularly sophisticated institutional structure and a full set of legal rules to ensure its operation. 7 That autonomous system of law, established by the Treaties of Rome, has developed enormously in the past six decades as the European Economic Community, focused as its name suggests primarily on the purely economic aspects of integration, became first the European Community and ultimately the European Union. The story of that 4 Opinion 2/13 of 18 December 2014, EU:C:2014:2454, para. 166, see also Costa v E.N.E.L. nº 2 above, paras 1159 and 1160; judgment of 17 December 1970, Internationale Handelsgesellschaft, 11-70, EU:C:1970:114, para. 3; Opinions 1/91 of 14 December 1991, EU:C:1991:490, para. 21, and 1/09 of 8 March 2011, EU:C:2011:123, para. 65. 5 P. Pescatore, Van Gend en Loos 3 February 1963 A View From Within, in M. Poiares Maduro et L. Azoulai (ed), The Past and Future of EU Law, Oxford, Hart Publishing, 2010, p. 3. See. J. Ziller, Relire van Gend en Loos, Il Diritto dell Unione Europea, 2012, nº 3, p. 513, et P. Mengozzi, Quelques réflexions sur les origines de l arrêt Van Gend en Loos, Il Diritto dell Unione Europea, 2013, nº 3, p. 679. 6 See Voy. R. Caponi, La tutela della identità nazionale degli Stati membri dell U.E. nella cooperazione tra le Corti: addio ai controlimiti?, Il Diritto dell Unione Europea, 2011, nº 4, p. 915, et G. Di Federico, Identifying National Identities in the Case Law of the Court of Justice of the European Union, Il Diritto dell Unione Europea, 2014, nº 4, p. 769. See also, E. Levits, L identité nationale des États membres selon l article 4, 2, du T.U.E. en tant qu élément de la structure constitutionnelle de l Union européenne, in A. Tizzano, A. Rosas, R. Silva De Lapuerta, K. Lenaerts et J. Kokott (ed), La Cour de justice de l Union européenne sous la présidence de Vassilios Skouris (2003-2015), Bruxelles, Bruylant, 2015, p. 387. 7 Opinion 2/13, nº 4 above, para. 158. 3
evolution from a Europe of markets to a Europe of citizens and of the role of the Court of Justice in that process, is a fascinating one, but there is no time to recount it in detail here. Instead, I would therefore like to concentrate on the part played by the Court of Justice in three key aspects of that story: 1) the creation of the internal market, 2) the establishment of democracy and the rule of law at EU level, and 3) the institution of EU citizenship. * The first key aspect, the creation of the common market later known as the single market and now the internal market is arguably, in economic terms, the greatest single achievement of the European Union and still lies at the heart of the European project. That market, now comprising around half a billion consumers, is described in Article 26 TFEU as an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties. The objective of creating a common market was, of course, set out in the original EEC Treaty signed in Rome in 1957, as were those four freedoms, which have provided the building blocks for the construction and completion of that market. By applying and interpreting the four freedoms, in close collaboration with Member State courts through the preliminary ruling procedure, the Court of Justice has played a significant role in the process of European economic integration, turning those freedoms from high-minded aspirations into an everyday reality, a reality that is 4
now taken for granted throughout the Union and on which the continued prosperity of our continent depends. Yet we should not forget that this was not always the case. In that regard, I would like to focus on one particular ruling from the 1970s concerning the free movement of goods, which marked a giant step forward in the creation of the then common market. I refer to the judgment of the 20th of February 1979 in Case 102/78, Rewe-Zentral, better known as Cassis de Dijon. 8 The facts are well known and concerned the importation of a French-made fruit liqueur, Cassis de Dijon, into Germany. Under German law, such drinks could only be put onto the market if their alcohol content was no less than 25 per cent, a condition which the French product did not satisfy. Until Cassis de Dijon, the Court of Justice had generally analysed such situations in terms of discrimination between imports and domestic produced goods. In this case, however, it found the German law at issue to be in breach of the principle of free movement of goods simply on the basis that the French product, which was lawfully produced and marketed in France, could not be placed lawfully on the market in Germany. Clearly, what was true for alcoholic beverages was true for other goods and the Cassis de Dijon ruling was quickly identified as a 8 Judgment of 20 February 1979, Rewe-Zentral, 102/78, EU:C:1979:42. 5
landmark decision. Its significance for the establishment of the internal market as clarified in the later Keck and Mithouard ruling 9 lay in the fact that it established an overarching principle that all goods that satisfy the requirements for them to be lawfully marketed in one Member State must, in principle, be able to be marketed in any other Member State. It was no longer for an exporter to explain why his products should be allowed onto the market of another Member State but rather for that Member State to prove that they shouldn t. The analytical framework used in Cassis de Dijon, focusing on the existence of a restriction before examining potential justifications and proportionality, has become the standard way for the Court of Justice to examine potential violations of the four freedoms generally. 10 Legislation has played a vital role in completing the EU internal market, particularly following the adoption of the Single European Act in 1986, in harmonising standards throughout the Union in a broad range of fields including the environment, workers rights and consumer protection, standards which the Court of Justice has 9 Judgment of 24 November 1993, Keck and Mithouard, C-267/91 and C-268/91, EU:C:1993:905. The Court of Justice ruled, at paragraphs 15 and 16, that in the absence of harmonisation of legislation, obstacles to free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods constitute measures of equivalent effect prohibited by Article 30 [now Article 34 TFEU] even if those rules apply without distinction to all products unless their application can be justified by a public-interest objective taking precedence over the free movement of goods. By contrast, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. 10 See, for example in the context of alleged restrictions on the freedom of establishment in the absence of discrimination on grounds of nationality, judgment of 5 December 2013, Venturini and Others, C-159/12 to C- 161/12, EU:C:2013:791 and in the context of the free movement of capital, judgment of 8 May 2013, Libert and Others, C-197/11 and C-203/11, EU:C:2013:288, paras 63 to 69. 6
subsequently applied and interpreted. That said, without the paradigm shift in the approach to free movement undertaken by the Court of Justice in Cassis de Dijon, the establishment of that market in its present form might not have been possible. That said, whilst the principle of mutual recognition is the keystone of the internal market, it does not solve all the questions that may arise regarding the fundamental freedoms. For example, that principle does not provide any guidance to national courts as to the circumstances under which a situation is to be considered as purely internal. Allow me to illustrate this point by reference to the Gibraltar Betting and Gaming Association Limited case 11. In that case, the said association sought to challenge a new tax regime that made it no longer possible for providers of remote gambling services established in Gibraltar to offer their services on the UK gambling market without paying any tax in that Member State. That association argued that the new tax regime was contrary to the freedom to provide services. However, as that freedom only applies in the presence of a crossborder link, the question that arose was whether the provision of services by operators established in Gibraltar to customers established in the UK amounted to a situation confined in all respects within a single Member State. The Court of Justice replied in the affirmative, despite the fact that, under EU law, Gibraltar does not form part of the 11 Judgment of the Court of 13 June 2017, The Gibraltar Betting and Gaming Association Limited and The Queen, C-591/15, EU:C:2017:449. 7
UK. Since EU law applies to Gibraltar because it is a European territory for whose external relations the UK is responsible (see Article 355(3) TFEU), the ECJ found, and I quote, that to treat trade between Gibraltar and the UK in the same way as trade between Member States would be tantamount to denying the connection between that territory and the UK. 12 That connection is, furthermore, illustrated by the fact that, where authorities of Gibraltar fail to fulfil their obligations under EU law, infringement actions will be brought against the UK. * I will now move on to the second key aspect of the Court s role in European integration, the establishment of democracy and the rule of law at EU level. Ever since it became clear in the 1960s that the Treaties of Rome had created an entity vested with significant political and legislative power, as well as the autonomous legal system to which I have referred, the European Union has faced a challenge: how can the power pooled in a supranational Union by like-minded, democratic Member States, be exercised collectively in a democratic fashion? Indeed, some scholars argued that the European institutions suffered from a democratic deficit. 13 The EU and its Member States have responded to that criticism in two ways. First, they have 12 Ibid., para 42. 13 See A. Moravcsik, Is there a Democratic Deficit in World Politics? A Framework for Analysis (2002) 39 Journal of Common Market Studies 336-363 (who argues that the EU does not suffer from a fundamental democratic deficit, given that above all, the democratic legitimacy of the EU rests on the fact that national-states remain influential, democratic and technically competent ). In a similar vein, see also G. Majone, Europe s Democratic Deficit : The Question of Standards (1998) 4 European Law Journal 5. 8
enhanced the role played in the political life of the Union by national parliaments, in accordance with the provisions of Article 12 TEU. Second, they have transformed the European Parliament, over time, from a consultative assembly, whose members were delegates appointed by national parliaments and whose role was described in the original EEC Treaty as being to exercise powers of deliberation and of control, 14 to become a democratic legislative chamber elected by direct universal suffrage in a free and secret ballot, 15 with power to enact almost all EU legislation jointly as an equal partner with the Council of the European Union. 16 That transformation of the European Parliament was essential for the democratic legitimacy of the EU and the Court of Justice has made an important contribution to its empowerment by ensuring scrupulous judicial protection of the Parliament s prerogatives under the Treaties, in cases such as Roquette Frères v Council, 17 Chernobyl, 18 and Titanium Dioxide. 19 In so doing, the Court of Justice has not only invoked the principle of institutional balance, 20 but has also sought explicitly to enhance the fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly. 21 14 Article 137 of the original EEC Treaty. 15 In accordance with Article 14(3) TEU, discussed in more detail below. 16 In accordance with Article 294 TFEU, the ordinary legislative procedure granting equal roles to the Council and the Parliament as co-legislators is now the standard procedure for passing legislation at EU level. 17 Judgment of 29 October 1980, Roquette Frères v Council, 138/79, EU:C:1980:249. 18 Judgment of 22 May 1990, Parliament v Council, C-70/88, EU:C:1990:217. 19 Judgment of 11 June 1991, Commission v Council, C-300/89, EU:C:1991:244. 20 See Article 13(2) TEU. 21 Nº 17 above, para. 33. 9
Yet democracy is about more than direct elections to a legislative body, indispensable though such elections are. It also encompasses other forms of governance, in particular the active participation of civil society and the achievement of consensus by social partners. 22 As the Court of Justice has indicated, the optimal functioning of the EU s political institutions requires the implementation of other mechanisms designed to reinforce democracy: the principle of transparency, for example, which was first developed at EU level by the Court in its case law. The purpose of such mechanisms is to enhance the democratic legitimacy of the EU by providing sufficient means for EU citizens to hold their representatives accountable. The ruling in Access Info Europe is of particular interest in this context. 23 It involved a challenge brought by an NGO dedicated to promoting public access to information against a decision of the Council of the European Union refusing access to a document disclosing the positions taken by various Member States during discussions in Council concerning a legislative proposal for a new regulation regarding access to documents of the EU institutions. The General Court annulled that decision 24 and, in upholding that annulment on appeal, the Court of Justice noted that transparency in respect of Council documents is particularly important where that institution is acting in its legislative capacity, since it contributes to strengthening democracy by enabling 22 See, in that regard, judgment of 17 June 1998 of the General Court, UEAPME v Council, T 135/96, EU:T:1998:128. 23 Judgment of 17 October 2013, Council v Access Info Europe, C-280/11 P, EU:C:2013:671. 24 Judgment of 22 March 2011, Access Info Europe v Council, T-233/09, EU:T:2011:105. 10
citizens to scrutinise all the information which has formed the basis for a legislative act, which is a precondition for the effective exercise of their democratic rights. 25 In that connection, the unswerving commitment of the Court of Justice to the rule of law has also played an essential role in reinforcing the democratic and constitutional values of the Union. It was in 1986 in its seminal Les Verts judgment 26 that the Court first explicitly affirmed the principle that the EEC, as it then was, is a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty. 27 Moreover, in the Unión de Pequeños Agricultores, the Court specified in this regard that it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection. 28 As the Court of Justice pointed out in the Inuit case, [t]hat obligation on the Member States [is now] reaffirmed by the second subparagraph of Article 19(1) TEU. 29 Respect for the rule of law has become one of the cornerstones on which the EU legal order is based and has been reaffirmed by the 25 Nº 23 above, para. 33. 26 Judgment of 23 April 1986, Les Verts v Parliament, 294/83, EU:C:1986:166. 27 Ibid., para. 23. 28 Judgment of 25 April 2002, Unión de Pequeños Agricultores/Conseil, C-50/00 P, EU:C:2002:462, para. 41. 29 Judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C-583/11 P, EU:C:2013:625, para 101. 11
Court on many occasions since then. Notably, whilst the EU s political institutions may enjoy a margin of discretion in certain circumstances, the judgments in the Kadi I and II cases illustrate that no matter that falls within the scope of EU law is immune from judicial review by the EU courts. 30 In the same vein, the Court of Justice recently ruled in Rosneft that it has jurisdiction to give judgment, by way of a preliminary ruling, on the validity of an EU act adopted under the EU s common foreign and security policy, provided that the questions referred relate either to that act s compliance with the provisions contained in Article 40 TEU which states that the implementation of that policy should not affect the powers conferred on the EU institutions for the exercise of Union competences under the TFEU or to the review of the legality of restrictive measures adopted against natural or legal persons. 31 In order to uphold the rule of law within the European legal order, the Treaties also confer on the Court of Justice the power to prescribe any interim measure that it may deem necessary to ensure the full effectiveness of its final decision (Article 279 TFEU). In Commission v Poland, which is currently pending, the Commission has brought an infringement action against Poland on the ground that by authorising 30 Judgment of 3 September 2008 Kadi and others (Kadi I), C-402/05 P and C-415/05 P, EU:C:2008:461, para. 326. See also judgment of 18 July 2013 in Commission v Kadi (Kadi II), C-584/10 P, C-593/10 P and C-595/10 P, EU:C:2013:518, para. 97 (holding that the [EU] Courts [ ] must, in accordance with the powers conferred on them by the Treaties, ensure the review, in principle the full review, of the lawfulness of all Union acts in the light of the fundamental rights forming an integral part of the [EU] legal order, including review of such measures as are designed to give effect to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations ). 31 Judgment of 28 March 2017, Rosneft, C-72/15, EU:C:2017:236. 12
active forest management operations in the Białowieża Forest including, inter alia, the removal of dead spruces and the felling of centuries-old trees, Poland has failed to fulfil its obligations under EU environmental law. In that regard, it is worth noting that the Białowieża Forest is a Natura 2000 site within the meaning of the EU Habitat Directive and that it is also home to several species of birds that are protected by the EU Birds Directive. Fearing that those ongoing operations would deprive the future ruling of the Court of Justice of its full effectiveness, the Commission brought an application for interim relief, asking for those operations to stop and for a penalty payment to be imposed on Poland in case it violates the interlocutory order of the Court of Justice. In that regard, after looking at the fumus boni juris of the application, the urgency of the case and the conflicting interests involved, the Vice-President (ruling the case ex parte) and later, the Grand Chamber ruled that the Commission s application for interim measures should be granted. In addition, should Poland continue those operations, the Grand Chamber has ruled that that Member State will face a penalty payment of at least 100.000 EUR per day. 32 That said, the Court of Justice also held that Poland may, as an exception, adopt active forest management operations that are strictly necessary and proportionate in order to ensure, directly and immediately, the public safety of persons in the immediate vicinity of transport routes or other significant 32 Order of 20 November 2017, Commission/Poland, C-441/17 R, EU:C:2017:877, para 117 et seq. 13
infrastructure. That exception is to be interpreted restrictively and it is for Poland to prove that its actions fall within the exception. 33 * I would like now to turn to the third key aspect, EU citizenship, first created when the Maastricht Treaty entered into force in 1993. Since then, the Court of Justice has stated on many occasions that Union citizenship is destined to be the fundamental status of nationals of the Member States. 34 Some commentators have expressed the hope that EU citizenship might act as the gateway to a new paradigm in the history of European integration under which the Treaty provisions on EU citizenship 35 would provide an appropriate constitutional path that could, in time, transform the European Union into a more equal, united and politically integrated supranational society. 36 That said, those provisions may not be interpreted in a way that would change the constitutional balance sought by the authors of the Treaties 37 and it 33 Ibid., paras 81 to 84. 34 See, e.g., judgment of 20 September 2001, Grzelczyk, C-184/99, EU:C:2001:458, para. 31; judgment of 17 September 2002, Baumbast and R, C-413/99, EU:C:2002:493, para. 82; judgment of 2 October 2003, Garcia Avello, C-148/02, EU:C:2003:539, para. 22; judgment of 19 October 2004, Zhu and Chen, C-200/02, EU:C:2004:639, para. 25; judgment of 2 March 2010, Rottmann, C-135/08, EU:C:2010:104, para. 43; judgment of 8 March 2011, Ruiz Zambrano, C-34/09, EU:C:2011:124, para. 41; judgment of 5 May 2011, McCarthy, C- 434/09, EU:C:2011:277, para. 47; judgment of 15 November 2011, Dereci and Others, C-256/11, EU:C:2011:734, para. 62; judgment of 6 December 2012, O. and Others, C-356/11 and C-357/11, EU:C:2012:776, para. 44. 35 Articles 20 to 25 TFEU. 36 See M. van den Brink, The Origins and the Potential Federalising Effects of the Substance of Rights Test ; E. Spaventa, Earned Citizenship Understanding Union Citizenship through its Scope ; S. Iglesias Sánchez, A Citizenship Right to Stay? The Right Not to Move in a Union Based on Free Movement, and D. Schiek, Perspectives on social citizenship in the EU from status positivus to status socialis activus via two forms of transnational solidarity, in D. Kochenov (ed), EU Citizenship and Federalism : The Role of Rights (Cambridge, CUP, 2017). 37 See K. Lenaerts, Editorial Note: Linking EU Citizenship to Democracy, (2015) 11 Croatian Yearbook of European Law and Policy VII. 14
is important to underline that, as both Article 9 TEU and Article 20 TFEU expressly state, EU citizenship is additional to and does not replace national citizenship. However, in a Union where individuals are free to cross borders at will and to live and work in a Member State other than their own, EU citizenship provides them with the guarantee that they must be treated equally in every Member State, whether or not they are nationals of that State. The rights conferred by EU citizenship may even be invoked against the Member State of which the EU citizen concerned is a national in situations that are not purely internal. This may perhaps be best illustrated by reference to the recent line of case law of the Court of Justice, beginning with the Ruiz Zambrano judgment. 38 In that case, the Court of Justice applied the concept of EU citizenship where there was no physical movement across borders and held that a Member State cannot, in the absence of a valid justification, adopt a decision which would have the effect of obliging one of its own nationals, who is, as such, a citizen of the Union and who is a family member of a third country national, to leave the territory of the Union altogether. The case related to the refusal of a right of residence to a third country national upon whom his minor children, who were nationals of that Member State and thus EU citizens, were dependent. The Court found that a decision refusing that right was contrary to EU 38 Judgment of 8 March 2011, Ruiz Zambrano, C-34/09, EU:C:2011:124. 15
law to the extent that it was liable to deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of EU citizen by having to leave the territory of the EU altogether. In the Chavez-Vilchez and Others case 39, the question was whether a third-country national who is the parent of an EU citizen of minor age, could obtain a derived right of residence, despite the fact that the other parent, who was an EU citizen, was actually able and willing to assume sole responsibility for the primary day-to-day care of the child. The facts of that case concerned Ms Chavez-Vilchez, a Venezuelan national who entered the Netherlands on a tourist visa and gave birth to a child who has Netherlands nationality. Two years thereafter, she and her child were compelled to leave the family home, and the child s father does not contribute to the child s support or upbringing ever since. In the absence of a right of residence, her application for social assistance and child benefits was rejected by the Netherlands authorities. The case also concerned seven other third-country nationals whose situation was similar to that of Ms Chavez-Vilchez. 39 Judgment of 10 May 2017, Chavez-Vilchez and Others, C-133/15, EU:C:2017:354. 16
After recalling the Ruiz Zambrano line of case law, the Court of Justice observed that if Ms Chavez-Vilchez and the other seven thirdcountry nationals were compelled to leave the territory of the EU all together, their children ran the risk of being deprived of the genuine enjoyment of the substance of their rights as EU citizens, given that those children would also be compelled to leave the territory of the EU. 40 In order to assess that risk, the Court of Justice stated that it is important to determine which parent is the primary carer of the child and whether there is, in fact, a relationship of dependency between the child and the parent who is a third-country national. Accordingly, the fact that the other parent, who is a EU citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is not in itself a sufficient ground to rule out the existence of such a relationship of dependency between the third-country national and her or his child that that child would be compelled to leave the territory of the EU, if a right of residence were refused to that third-country national. 41 Furthermore, in the Lounes case 42, involving a request for a preliminary reference made by the High Court s Queen s Bench Division, the question that arose was whether Mr Lounes, an Algerian 40 Ibid., para 65. 41 Ibid., para 70 f. 42 Judgment of 14 November 2017, Lounes, C-165/16, EU:C:2017:862. 17
national illegally overstaying his visa in the UK, could obtain a derived right of residence in that Member State as a family member of an EU citizen, where his spouse is a Spanish national who moved to the UK in 1996, has lived there ever since, and acquired the British nationality by naturalisation in 2009, i.e. five years prior to the date of their marriage. At the outset, the Court held that, since the spouse of Mr Lounes was an EU citizen residing in the Member State of which she was also a national, the Citizen s Directive did not apply directly to the case at hand. Next, contrary to the views of the UK government, the Court of Justice held that the situation was not, however, purely internal. By moving to the UK in 1996, the spouse of Mr Lounes had exercised her rights to free movement in a Member State other than her Member State of origin. Those rights included the right to lead a normal family life. Most importantly, in the key passage of the judgment, the Court held, and I quote, that [a] national of one Member State who has moved to and resides in another Member State cannot be denied that right merely because he subsequently acquires the nationality of the second Member State in addition to his nationality of origin, otherwise the effectiveness of Article 21(1) TFEU would be undermined. In that regard, the Court of Justice held that such denial would amount to treating EU citizens such as the spouse of Mr Lounes in the same manner as any EU citizen who has never exercised his rights to free 18
movement, thereby disregarding the very fact of that movement. Such denial would also go against the logic underpinning Article 21(1) TFEU which seeks to promote integration in the society of host Member State. Indeed, since an EU citizen, who has exercised his or her rights to free movement, reaches the deepest degree of integration in the host Member State where he or she becomes a national of that Member State, such a citizen should not forego his or her rights to free movement. Finally, in this context, I would like to make reference to the judgment of the Court of Justice in the Delvigne case. 43 In that case, the Court of Justice was confronted with a question concerning the scope of the obligations that EU law imposes on the Member States with regard to the right to vote in elections to the European Parliament. In 1988, Mr Delvigne a French national residing in France was sentenced to twelve years imprisonment for murder. As an ancillary consequence of that sentence, Mr Delvigne was deprived of his right to vote in accordance with French criminal law. In 2012 the French authorities excluded Mr Delvigne from the electoral roll. He challenged that decision before the referring court which asked, in essence, whether Article 39 of the EU Charter of Fundamental Rights (the Charter ) had to be interpreted as precluding such exclusion. 43 Judgment of 6 October 2015, Delvigne, C-650/13, EU:C:2015:648. 19
The Court of Justice made two key findings. Firstly, it held that the relevant provisions of French law on the basis of which Mr Delvigne was excluded from the electoral roll implemented EU law within the meaning of Article 51(1) of the Charter since, although the Member States are competent to determine who is entitled to vote and to stand as a candidate in elections to the European Parliament, they must, when exercising that competence, fulfil their obligations under EU law, and in particular Article 14(3) TEU according to which [t]he members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot. The Court reasoned that a Member State is fulfilling its obligations under EU law when it adopts legislation to that effect, even where the latter deprives an EU citizen of his or her right to vote in European Parliament elections. Secondly, the Court found that the French legislation at issue constituted a limitation on the exercise of the right to vote in European Parliament elections as provided for in Article 39(2) of the Charter and then went on to determine that the limitation in question did in fact comply with the requirements laid down in Article 52(1) of that Charter since the exclusion was provided for by law, respected the essence of the citizen s right, pursued a legitimate objective and complied with the principle of proportionality. Delvigne is an important development in the case law. It has helped to make explicit the link between EU citizenship and the democratic governance of the EU, whose importance to the European integration 20
project I highlighted earlier. It shows that the political dimension of EU citizenship is not limited to Articles 20 to 25 TFEU, but also involves other provisions of EU law which impose obligations on the Member States whose objective is to ensure that the principles inherent in a democratic electoral system are applied at EU level. * The European Union is certainly not perfect. As with all forms of democratic governance, citizens are free to praise, or to criticise, the Union as it currently stands. However, in my opinion, when examined from a historical perspective, the achievements of the EU, taken in the round, can only be regarded as largely positive. 60 years ago, Europe was still recovering from the ravages of the most brutal war ever fought, largely on its territory. Many European nations, both on the Iberian peninsula and in the centre and east of our continent, were ruled by entrenched, totalitarian dictatorships and there seemed very little prospect that this state of affairs might change. The genius of Europe s founding fathers, Jean Monnet, Robert Schuman, Konrad Adenauer and Alcide De Gasperi, to name just a few, was to focus on what was possible. For his part, Winston Churchill, one of the greatest statesmen of the last Century, renowned as a defender of European freedom, was also eloquent in his support of this incipient aspiration of European integration. 21
By establishing first a practical and effective Community based on the integration of national markets and the free movement of products and services as well as the factors of production, the Treaty of Rome laid the foundations for an optimistic, outward-looking future in which the embryonic Economic Community might prosper and grow. Today, the European Union has indeed grown, both geographically through successive waves of accession and also through its expanding remit. Throughout that process, the Court of Justice has, as I have outlined, played a full part in ensuring that the EU remains grounded in the common European values of its Member States, not least the respect for fundamental rights, democracy and the rule of law. In these troubled times, the Court must continue, as in times past, to serve as the guarantor of those values, and I can assure you that we will always endeavour to do so. On 23 June 2016, 51,9% of those who voted in a referendum in this country supported the view that the United Kingdom should leave the European Union. But what we have seen, over the past decades, from the way in which UK lawyers and judges read the law will continue to influence EU legal thinking. As a matter of fact, the Court of Justice operates, to a significant extent, as a common law court: it respects precedent, it 22
applies lines of case law by analogy and it distinguishes cases that at first sight appear to raise the same legal issue but are, in fact, different. But above all, values such as respect for the rule of law, human rights and democracy, active citizenship as well as openness and free trade, are part and parcel of the EU and UK constitutional fabric alike, as the cases I discussed earlier demonstrate. So, whilst the UK may be leaving the EU, those values will remain deeply rooted in the European Union and its law. Thank you very much. 23