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EU Rights in the Spotlight – November 2017

29 November 2017

The EU Rights in the Spotlight section for this month features two ECJ opinions and one ruling affecting the E 101 social security certificate for posted workers, the jurisdictional consumer privilege and the derived right of residence of non-EU national family members of EU citizens.

According to Advocate General Saugmandsgaard Øe, a national court may, in the event of fraud, disapply the social security certificate of posted workers in the European Union.

On November 9 2017, Advocate General Saugmandsgaard Øe proposed in an opinion that the E 101 certificate should not be considered binding on a court of the host Member State where that court finds that the certificate was obtained or invoked fraudulently.

The question was referred to the ECJ by the Hof van Cassatie (Court of Cassation, Belgium) for a preliminary ruling in order to ascertain whether a court of the host Member State can annul or disregard an E 101 certificate obtained “fraudulently by means of a representation of the facts that did not reflect the reality of the situation, thereby seeking to circumvent the conditions to which Community legislation makes subject the posting of workers and thus to obtain an advantage which would not have been granted without that fraudulent arrangement.”

The Advocate General observed in his opinion that EU law cannot be relied on for abusive or fraudulent ends and that considering a certificate obtained or invoked with fraud as binding would mean not only allowing the persons responsible for the fraud to benefit from its illegal conduct but also that the Court should, in certain circumstances, tolerate or condone fraud. Furthermore, according to the Advocate General, such a situation would threaten the coherence of the Member States’ social security schemes as well as call into question the equality of working conditions in national labour markets.

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According to Advocate General Bobek, Maximilian Schrems may be able to rely on his consumer status in order to sue Facebook Ireland before the Austrian Courts with respect to the private use of his own Facebook account. However, Mr Schrems cannot rely on his consumer status with respect to claims assigned to him by other consumers.

Advocate General Bobek proposed in an opinion issued on November 9 that the ECJ rule that “the carrying out of activities such as publishing, lecturing, operating websites, or fundraising for the enforcement of claims do not entail the loss of consumer status for claims concerning one’s own Facebook account used for private purposes.”

The opinion follows the request for a preliminary ruling submitted to the ECJ by the Oberster Gerichtshof (Supreme Court of Justice, Austria) in order to clarify whether Mr. Schrems, an IT and data protection law specialist, could be regarded as a consumer for the purposes of the proceedings started against Facebook Ireland for the alleged violation of privacy and data protection rights. As part of the request, the ECJ was also called upon to declare if Mr. Schrems can rely on the jurisdictional consumer privilege for claims on the same subject assigned to him, for the purpose of litigation, by other Facebook users domiciled in different countries.

According to the Advocate General, Mr Schrems may be entitled to sue Facebook Ireland in his own place of domicile under the jurisdictional consumer privilege because the nature and aim of the contract at the time it was concluded were private and not professional. On the other hand, the Advocate General observed that a consumer cannot invoke claims on the same subject assigned by other consumers as his own claims because the jurisdictional consumer privilege can strictly apply only to the concrete and specific parties to the contract.

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A non-EU national may benefit from a right of residence in the Member State in which his EU citizen family member resided before acquiring the nationality of that Member State in addition to her nationality of origin.

On November 14, the ECJ ruled that a non-EU national family member of an EU citizen who settled in a Member State other than the Member State of which he is a national, is eligible for a derived right of residence under Article 21(1) TFEU, on conditions that must not be stricter than those provided for by the free movement directive.

The judgment is the result of a request for a preliminary ruling referred to the ECJ by the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court), which was called upon to rule on the UK Secretary of State for the Home Department’s refusal to issue a residence card to Mr Toufik Lounes (an Algerian national married to a Spanish national who is a naturalised British citizen) as a family member of an EEA national. Doubting the compatibility of the refusal with EU law, the High Court of Justice of England and Wales decided to refer the question to the ECJ.

The Court observed that Mr. Lounes cannot benefit from a derived right of residence in the UK on the basis of the free movement directive because his spouse lost the prerogative to be considered a beneficiary for the purpose of the directive when she acquired UK nationality.

However, the Court held that Mr Lounes’ situation is eligible for a derived right of residence based on Article 21(1) TFEU where the grant of such a right to a third country national is necessary to ensure the effective exercise, by Mr Lounes’ spouse, of his right to free movement and the rights that Article 21(1) TFEU affords her.

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