Chapter 4 End-of-chapter question guidance

Freedom of movement for EU nationals

1. What are the boundaries of ‘internal effect’ following Zambrano and McCarthy? What is the test (or tests) for the engagement of EU law rights?

Read the cases C-34/09 Zambrano and C-434/09 McCarthy as well as the suggested further reading concerning these cases and, in general, the relevant parts of The Substantive Law of the EU textbook (Barnard, 2016).  Consider how these cases fit together (if at all). From your reading of the cases, can you identify what is needed in order for EU law to be engaged? Is it the same test in Zambrano as in McCarthy? 

 

2. What, in your view, should be the proper meaning of the words ‘genuine enjoyment of the substance of [EU] rights’ as first set out in the Zambrano case? Does the CJEU hold the same view? Has the meaning attributed to the words by the Court changed over the development of the case law?

Read the Zambrano case (C-34/09) and the case law that follows, in particular cases C-256/11 Murat Dereci, C-133/15 Chavez-Vilchez, C-304/14 CS and C-165/14 Rendón Marín. Distinguish what, in these cases, the CJEU identifies as the genuine enjoyment of the substance of EU rights. What does this mean in practice? Are there any patterns or trends in the CJEU’s approach to the meaning of ‘genuine enjoyment'? 

 

3. What, if any, is the role of Article 8 ECHR in free movement law? Why do you think the CJEU relied on Article 8 ECHR in Carpenter but not S & G?

Read the cases 60/00 Carpenter and C-457/12 S & G and read the further items listed on the reading list relevant to the question of fundamental rights in EU law. Consider how the CJEU justified reliance on human rights in the Carpenter case. What, drawing on the resources in the further reading list, might be the reasons for the CJEU’s reliance on free movement rights (rather than fundamental rights) in S & G?

 

4. Is the United Kingdom correct, in your view, to require Union Citizens from other Member States who are not economically active to have comprehensive sickness insurance covering all costs before it will recognize that they are lawfully resident?

Read the article by Weiss listed in the further reading. Consider what 'lawful residence' means as a matter of EU law and as a matter of domestic UK law; is it the same meaning in both contexts? Also read the documents on Brexit in the further reading list, does this envision a different approach to comprehensive sickness insurance following the UK’s withdrawal from the EU? If so, explain how and consider the reasons for this.