Free Movement of Non-EC Nationals: A Review of the Case-Law of the Court of Justice

IV. Conclusions

Under Community law the rights of non-EC nationals to entry, residence, work, social security benefits, education and other social and tax advantages are based either on their relationship with EC nationals or firms or on their status as a national of a country with which the Community has concluded an international agreement. The attitude of the Court of Justice varies widely depending on which of these grounds is invoked. The reason is that the former ground is related to the freedom of movement within the common market, while the latter ground concerns the Community's external relations.

Whenever the freedom of movement within the common market is at stake, the Court is quick to condemn everything which might stand in its way. In the case of free movement of persons, the achievement of the objectives of family reunification and integration in the host Member State had far reaching consequences. The fact that this also benefits relatives who are nationals of third countries is not so much the Court's achievement; the numerous regulations and directives stipulate that the various rights are extended to the spouse and the relatives irrespective of their nationality. On the other hand, in the case of freedom of providing services it has been the Court who decided that the nationality of the employees engaged by the provider of services should not constitute an obstacle.

Different rules, however, apply in the field of international agreements.

The recent Kziber case stands alone. This case resulted in the grant, to a relative of a worker from a third country, of certain rights falling within the scope of Regulation 1408/71, while previous case-law had denied such rights to relatives of workers from another Member State. In addition, it is the only one of the cases examined above in which a national of a third country was successful in invoking a provision of an international agreement.

In principle, the Court of Justice is prepared to regard a provision in an international agreement as being directly applicable. In practice, however, the Court is reluctant to render a judgment which would deprive the Community of any room for further negotiations with the other contracting partner. It can avoid such a decision either by denying direct effect, as it did in the Demirel case, or by adopting a restrictive interpretation of the scope of the provision, like in the Razanatsimba case.

The approach of the Court appears to be in line with its general attitude in cases involving the effects of international agreements in the legal order of the Community. I note, however, that the consequences of this approach can be harsh in cases involving the free movement of persons. Take the Demirel case for example. The Court could have declared that the obligation to refrain from any measures liable to jeopardize the attainment of the objectives of the Association Agreement is `a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure'. Furthermore, it could have held that the increase from three to eight years of the period during which a foreign worker is required to have resided continuously and lawfully on German territory before being entitled to family reunification constitutes an infringement of that obligation. Ultimately, this is a matter of appreciation. The Court appears to have been deeply impressed by the problems which the presence of 1,500,000 Turkish immigrants caused to the Federal Republic of Germany. I would be inclined to be more persuaded by the inhumanity of a rule which compels a lawful immigrant to wait eight years before being allowed to resume family life.

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