Baumbast Case

 

In the Baumbast case, ECJ was asked to decide on the direct effect of article 18(1) EC Treaty. Mr. Baumbast was a German national who, after having pursued an economic activity in the UK, was employed by German companies outside the Community. The UK authorities refused to renew Mr. Baumbast’s residence permit as he did not qualify anymore in the UK as a migrant worker and did not satisfy the conditions for a general right of residence. Still his family lived in the UK and his children went to school there.

The main question was whether persons admitted into the UK as members of the family of an EC migrant worker continue to enjoy the protection of Community law when he or she is no longer a migrant worker within the meaning of Article 39 EC.

ECJ ruled that the Treaty does not require that citizens of the Union pursue a professional or trade activity in order to enjoy the rights provided in the EC Treaty. Purely as a national of a Member State and consequently as a citizen of the Union, Mr. Baumbast was entitled to invoke the right to reside within the territory of the Member State as laid down by article 18 EC.

In its judgment in Baumbast, ECJ thus made clear that the right of residence under article 18 (1) EC Treaty was conferred directly on every citizen of the Union by virtue of a clear and precise provision of the EC Treaty. Nevertheless, even though declared to be directly effective article 18 EC Treaty does not create a generalized right for all EU citizens. The nature of article 18 EC Treaty still remains subordinate to free movement rights.

In this case, the children of a Community worker were allowed to remain in the UK in order to complete their education even after their father ceased to work there. Consequently, in order to protect the right to family life of the children allowed to remain in the UK in order to continue their education, a corresponding right to reside had to be granted to the primary career of those children, even if the primary career had no other right to reside under Community law. Even if the ECJ derived the right to education for children solely from Article 12 of the Regulation 1612/68, it held that this article had to be interpreted in line with Article 8 ECHR.

The approach of Advocate General Geelhoed in Baumbast case was emphasizing even more the right to respect for family life derived from the ECHR. It reinforces the idea of family rights in free movement of persons rather than children’s rights. As he noted the ECHR institutions have recognized no general right to family reunification. Similar to other ECHR rights, the determining factor is whether the deportation of a parent would constitute a disproportionate interference with the right to respect for family life. However, only in a few case have parents been able to overturn a deportation order on the ground that it constitutes an unjustifiable interference with rights under Article 8 ECHR. The Opinion of Advocate General Geelhoed in Baumbast, very much reflects current trends in cases on free movement of persons in the EC law.

 

 

 

 

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