Going Back to Basics: Re-Embracing the Fundamentals of the Free Movement of Persons in Metock

Legal Issues of Economic Integration 36, No. 1 (2009): 83-89

6 Pages Posted: 30 Jun 2012 Last revised: 27 Feb 2015

See all articles by Elaine Fahey

Elaine Fahey

City, University of London - City Law School

Date Written: 2009

Abstract

The ability of Member States to determine the rights of third country nationals to move, reside with and join their European Union (EU) citizen spouses might be thought to go to the heart of Member State sovereignty to control immigration matters. Despite the introduction of Directive 2004/38/EC, European Union law had been silent on key issues as to the entry and residence rights and the case law of the European Court of Justice (ECJ) had only recently began to shape the contours of the conditions of such entry. A major issue raised by the recent decision of the ECJ in Metock as to whether national law or secondary Community law governs such entry and residence requirements, in light of the Akrich and Jia decisions of the ECJ, where the requirement of having a “prior lawful residence” in another State prior to entry to the host State for such individuals was first introduced by the ECJ (Akrich) but then later refined (Jia). In Metock, the ECJ has dramatically recast its own case law, has re-embraced the fundamentals of the free movement of persons in a manner consistent with the protection of the individual and is the subject of consideration here.

Keywords: Free movement; EU Citizenship; Citizens Rights Directive; Court of Justice; Judicial activism; Rights proteciton

JEL Classification: K00

Suggested Citation

Fahey, Elaine, Going Back to Basics: Re-Embracing the Fundamentals of the Free Movement of Persons in Metock (2009). Legal Issues of Economic Integration 36, No. 1 (2009): 83-89. Available at SSRN: https://ssrn.com/abstract=2096149

Elaine Fahey (Contact Author)

City, University of London - City Law School ( email )

Northampton Square
London, London EC1V OHB
United Kingdom

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