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Summary of all issues and European Law: Justice and Home Affairs exam material
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Summary of all issues and exam material in the course European Law: Justice and Home Affairs.
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European Law: Justice & Home AffairsPractical information
Primary law In the book
Secondary law in Legislation Reader
Secondary law is filling in the primary law
Schengen Borders Code:
- Article 1 = subject or goal
- Article 3 = The public who is it for?
- Article 2 = definitions
- Titles = Human rights
Case law = gives an explanation of the law
Case law: Adil:
- Juridical context: Paragraphs 3 t/m 20 (Legal context)
- The conflict of the questions: Paragraphs 21 t/m 38 (The dispute in the
main proceedings and the questions referred for a preliminary ruling) 21
points out what the whole conflict is
- The arguments of the parties: Paragraphs 39 t/m 47 (Observations
submitted to the court)
- The judgment of the court: Paragraphs 48 t/m 89 (The courts reply)
The judgment of the court – Paras. 48-88
- Analysis of the primary legislation and the Schengen Border Code (SBC)
(paras. 48-50)
- The court is considering whether illegal residence is ground for police
checks (paras. 51-67)
- The Court discusses if police checks at the border are allowed under strict
conditions. (paras. 68-82)
- The Court discusses general rules and how the checks should be carried
out. (paras. 87/88)
How to answer the learning goals:
• Start by identifying/defining which legal framework (i.e. treaty, directive,
and/or regulation) is applicable to a certain topic or learning objective
Primary and secondary legislation (part 2).
• The primary legal sources (the EU Founding Treaties, as well as the
Charter of Fundamental Rights of the European Union) are
supplemented by secondary legislation (regulations, directives and
decisions), international agreements and case law
• Literature (books and articles), blogposts and handbooks provide
explanations and insights on the meaning and working of the legislation
and case law.
Thus, after assessing the applicable legal framework, you should build on case
law and literature by explaining how the legal framework works in practice.
European Union Law
• Primary Legislation
o Treat on the European Union (TUE)
o Treaty on the functioning of the European Union (TFEU)
o Charter of the Fundamental Rights (CFR)
• Secondary Legislation – Art. 288 TFEU
1
, o Regulations Example: General Data Protection Regulation
o Directive Example: Citizens’ Rights Directive
o Decisions European Arrest Warrant Dicision
o Recommendations & Opinions
• Case Law (interpretation of…)
Problem 1 – Internal and external frontiers of the
European space
Part A: Schengen (Layla, won’t you ease my worried
mind)
2
, Course objective:
- Assess the basics of the EU free movement regime, the Schengen-area and the
policies needed to support it, namely a common external border management
and enhanced cooperation in the fight against cross-border crime.
Objective of the problem:
- The goal of Problem 1A is to introduce you to the workings and predicaments of
the Schengen Area.
Literature
Legislation
- Consolidated text: Regulation (EU) 2016/399 of the European Parliament and of
the Council of 9 March 2016 on a Union Code on the rules governing the
movement of persons across borders (Schengen Borders Code) (codification) OJ
L 077 [2016] (Schengen Border Code).
- Regulation (EU) 2021/1134 of the European Parliament and of the Council of 7
July 2021 amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU)
2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861,
(EU) 2019/817 and (EU) 2019/1896 of the European Parliament and of the
Council and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the
purpose of reforming the Visa Information System OJ L 248 [2021]. (Only Article
3 is included which prescribes the amendments of Regulation 2016/399).
Case Law
- Case C-278/12 PPU Atiqullah Adil v. Minister voor Immigratie, Integratie en Asiel
[2012] ECLI:EU:C:2012:508.
- Joined cases C-412/17 and C-474/17 Bundesrepublik Deutschland v. Touring
Tours und Travel GmbH and Sociedad de Transportes SA [2018]
ECLI:EU:C:2018:1005. (not mandatory)
- Joined Cases C‐368/20 andC‐369/20 NW v Landespolizeidirektion Steiermark (C‐
368/20), Bezirkshauptmannschaft Leibnitz (C‐369/20) [2022]
ECLI:EU:C:2022:298 (not mandatory)
Mandatory literature
- Jorrit Rijpma, ‘COVID-19, another blow to Schengen?’ [2020] 27 (5) Maastricht
Journal of European and Comparative Law, pp. 545–548.
- Elspeth Guild et al., ‘What's Happening to the Schengen Borders?’ [2015] 86
Centre for European Policy Studies (CEPS) (https://www.ceps.eu/system/files/No
%2086%20Schengenland_0.pdf).
- European Commission, ‘Temporary Reintroduction of Border Control’ (Migration
and Home Affairs),
https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/
schengen/reintroduction-border-control_en.
- Galina Cornelise, ‘What is Wrong with Schengen: Border Disputes and the
Nature of Integration in the Area without Internal Borders’ [2014] 51 Common
Market Law Review, pp. 741-770.
- European Commission, Covid-19: Guidelines for border management measures
to protect health and ensure the availability of goods and essential services,
C(2020) 1753 final (OJ C 86I , 16.3.2020, p. 1). (This literature is relevant for
the assignment)
- European Commission, Towards a phased and coordinated approach for
restoring freedom of movement and lifting internal border controls — COVID-19
(Communication), (2020) 3250 final (OJ C 169, 15.5.2020, p. 30). (This
Learning goal 1: What is the Schengen-area?
Internet:
Primary legislation: Title V – Area of Freedom, Security and Justice (art. 67-89
TFEU)
CHAPTER 2: Policies on border checks, asylum and immigration
3
, o Art. 67 TFEU: the EU shall ensure the absence of border controls,
and frame a common policy on asylum, immigration and external
border control.
o Art. 77 TFEU: Absence of control on persons when crossing internal
borders
o Art. 79 TFEU: The Union shall develop a common immigration
policy aimed at ensuring fair treatment of TCNs residing legally in
Member States, and the prevention of illegal immigration and
trafficking in human beings.
From the internet: The creation of the area of freedom, security and justice
derives from Title V of the Treaty on the Functioning of the European Union
(Articles 67–89). The area was created to ensure the absence of border control at
internal borders while offering a high level of protection to citizens.
According to art. 3 TEU, which sets out the objectives of the European Union (EU),
the EU offers its citizens an area of freedom, security and without internal
frontiers.
Literature: Elspeth Guild et al., ‘What's Happening to the Schengen Borders?’ [2015]
86 Centre for European Policy Studies (CEPS) (https://www.ceps.eu/system/files/No
%2086%20Schengenland_0.pdf).
Schengenland = Schengen Area = an area comprising 22 EU Member States
and 4 non-EU states that signatories to the Schengen agreement.
There are 6 EU States that didn’t sign the Schengen agreement: Bulgaria,
Croatia, Cyprus, Ireland, Romania and the UK.
Development Schengen border control system
The Schengen border control system developed from the 1985 Schengen
agreement between 5 EU member states – Belgium, France, Germany,
Luxembourg and the Netherlands.
In 1990, the second agreement (Schengen Implementing Agreement) was signed
and the participating states were committed to abolishing intra-member state
border controls on persons and establishing a common system of external border
control on the entry of people into the Schengen area.
Between 1995 and 1999, all MS joined the system except Ireland and the UK.
Non-EU member states Iceland, Norway, Liechtenstein and Switzerland also
joined the system.
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