Damages for breach of EU free movement law: an important Irish judgment door Steve Peers (Schadevergoeding)

 

Steve Peers

It’s been well over twenty years since the CJEU established, in the case of Francovich, that individuals could sue Member States in damages for breach of EU law. Yet many of the cases concerned have been brought by businesses for lost profit. The CJEU has never had the opportunity to apply the principles relating to damages claims in a case concerning the free movement of EU citizens.

But in its recent judgment in Ogieriakhi, the Irish High Court delivered a ruling on this issue, awarding over €100,000 to the family member of an EU citizen for breach of EU free movement law. This judgment isn’t a precedent as such outside Ireland, but it is a useful indication of how such claims might be made. So I suggest below how it might be particularly relevant to some of the UK's current breaches of EU free movement law. 

 

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What are its broader implications? Let’s examine them by applying this case to two other EU free movement issues: the position of EU citizens who move to another Member State to be with their family members, and then seek to return to their own Member State with their family; and the position of those who wish to visit the UK with their third-country national family members, without obtaining a visa.

For the first category of people (often known as Surinder Singh cases), the CJEU clarified last spring (as discussed here) that in principle it should be sufficient for them to spend three months in another Member State exercising free movement rights with their family members.  Then they could return to their home state. The CJEU judgment concerned a Dutch case, and I don’t know what the consequences have been in the Netherlands. But the UK government has continued to apply a ‘centre of life’ test that seems to be clearly more restrictive than the test in the Court’s judgment.

For the second category of cases, the CJEU ruled in December in McCarthy (discussed here) that the family members should not have to obtain a visa, if they had a residence card in their country of origin issued to family members of EU citizens. This was a UK reference, but the UK courts have not followed it up yet. Nor has the UK government changed its practice, as far as I know.

So let’s apply the EU damages principles to these two breaches of EU law. In the first case, the right to return to the UK is based on the Treaty rules on free movement of people, which clearly aim to confer rights on individuals. Any delay in returning to the UK with family members is in principle caused by the UK’s wrongful application of EU law, although there might be other reasons in individual cases why people delayed their return (finding work back in the UK, finishing school years, and so on). As for the ‘sufficiently serious’ requirement, it is clearly met since the Court’s ruling last year, but it harder to argue that it applied before that date, due to the lack of legislation on this issue and the lack of clarity before the Court’s judgment. The calculation of damages due to the UK’s breach of EU law will depend on each case, and it might be harder in many cases to show losses as compared to the Ogieriakhi judgment, where the total absence of work was solely attributable to breach of EU law, and the resulting damages were fairly easy to calculate.

In the second case, the right to visit the UK without a visa is clearly a rule intending to confer rights on individuals. Any costs incurred to get a visa (mainly travel to a consulate) are clearly directly attributable to the breach of EU law by the UK. The breach of EU law is sufficiently serious since the McCarthy judgment, but in this case it is arguably sufficiently serious beforehand. It is blatantly obvious from the wording of the citizens’ Directive that third-country national family members with a residence card do not need a visa, and there is no provision in the Directive for the UK practice of requiring a family permit as a separate requirement for a visa exemption. Equally it was clear from prior CJEU case law that the concept of ‘abuse of rights’ could only apply in individual cases.

As always on this blog, the suggestions above do not constitute legal advice, and anyone considering legal action should consult a lawyer (unless they are sure that they can represent themselves as well as Mr. Ogieriakhi did). I don’t practice law, so this isn’t an attempt to drum up work for myself. Rather my concern is not only for the individuals who ought to be compensated for the losses caused by the illegal actions of the UK, but also for the broader principle of the rule of law. It simply is not acceptable for the UK government to flout its legal obligations as long as it has, and the more legal proceedings aiming to pressure it to comply with those obligations, the better.

 

 

Lees hier verder op zijn weblog: http://eulawanalysis.blogspot.co.uk/2015/01/damages-for-breach-of-eu-free-movement.html

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