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General Principles of EU Law and Their Application to Third-Country Nationals

Bobyk, Yevgen LU (2010) JAEM03 20101
Department of Law
Abstract
Both the EU and Member States in treatment of third-country nationals have to follow so-called “international minimum standard of treatment of aliens”, meaning that states are allowed to treat aliens in the same way as their own nationals, but in no case such treatment to be less than fundamental human rights stipulated in contemporary international instruments. Such standard is not stipulated in any international legal instrument, however, has a status of customary norm with human rights as its core.

Under the Treaties third-country nationals are not entitled to exercise rights of free movement , establishment and provision of services, as these are reserved exclusively to EU nationals.

In the past 10 years major developments in... (More)
Both the EU and Member States in treatment of third-country nationals have to follow so-called “international minimum standard of treatment of aliens”, meaning that states are allowed to treat aliens in the same way as their own nationals, but in no case such treatment to be less than fundamental human rights stipulated in contemporary international instruments. Such standard is not stipulated in any international legal instrument, however, has a status of customary norm with human rights as its core.

Under the Treaties third-country nationals are not entitled to exercise rights of free movement , establishment and provision of services, as these are reserved exclusively to EU nationals.

In the past 10 years major developments in secondary legislation with regards to third-country nationals took place with the adoption and entering into force of directives.

Directive 2003/109/EC on third-country nationals who are long-term residents had a far-reaching idea to grant those third-country nationals rights, which are as close as possible to those enjoyed by EU citizens. However, in my opinion, that objective was not achieved and long-term residents were not granted “near equality” rights.

Directive 2003/86/EC on family reunification sets out condition for third-country nationals to legally resident in Member States to be joined by their family members. Range of conditions is broad itself, added by certain derogations given to Member States, which can be considered as disproportionate and not in line with protection of family life, however, the ECJ in its judgment in Parliament v. Council has decided opposite.

Directive 2004/38/EC regulates status of third-country nationals who are family members of EU citizens exercising free movement rights. Even though the Directive grants equal treatment rights to third-country nationals on equal footing with EU citizens, those rights are derivative and dependant on family ties with EU citizens and may be lost if family relationships cease to exist.

With regard to international agreements concluded between the EU and Member States on one the hand and third countries on the other one can say that rights given to third-country nationals vary from one agreement to another. Citizens of richer states whose presence is desired in EU in principle are granted quite extensive rights. This very fact can be supported by extensive rights given to non-EU nationals under Agreement on the European Economic Area and the EC-Switzerland Bilateral Agreement on Free Movement of Persons. On the other hand, the Agreement Establishing an Association between the European Economic Community and Turkey is a completely different story. Turkish nationals were granted only limited equal treatment rights in certain spheres.

Analysis of the Directives and international agreements as well as case-law of the ECJ shows that none of third-country nationals can rely on Treaties’ provisions directly and consequently on the general principles, as those are reserved for EU citizens only. However, they can exercise rights which are explicitly granted to them by respective pieces of secondary legislation. (Less)
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author
Bobyk, Yevgen LU
supervisor
organization
course
JAEM03 20101
year
type
H2 - Master's Degree (Two Years)
subject
keywords
European Business Law
language
English
id
1712328
date added to LUP
2010-11-02 17:58:28
date last changed
2010-11-02 17:58:28
@misc{1712328,
  abstract     = {Both the EU and Member States in treatment of third-country nationals have to follow so-called “international minimum standard of treatment of aliens”, meaning that states are allowed to treat aliens in the same way as their own nationals, but in no case such treatment to be less than fundamental human rights stipulated in contemporary international instruments. Such standard is not stipulated in any international legal instrument, however, has a status of customary norm with human rights as its core. 

Under the Treaties third-country nationals are not entitled to exercise rights of free movement , establishment and provision of services, as these are reserved exclusively to EU nationals.

In the past 10 years major developments in secondary legislation with regards to third-country nationals took place with the adoption and entering into force of directives. 

Directive 2003/109/EC on third-country nationals who are long-term residents had a far-reaching idea to grant those third-country nationals rights, which are as close as possible to those enjoyed by EU citizens. However, in my opinion, that objective was not achieved and long-term residents were not granted “near equality” rights. 

Directive 2003/86/EC on family reunification sets out condition for third-country nationals to legally resident in Member States to be joined by their family members. Range of conditions is broad itself, added by certain derogations given to Member States, which can be considered as disproportionate and not in line with protection of family life, however, the ECJ in its judgment in Parliament v. Council has decided opposite. 

Directive 2004/38/EC regulates status of third-country nationals who are family members of EU citizens exercising free movement rights. Even though the Directive grants equal treatment rights to third-country nationals on equal footing with EU citizens, those rights are derivative and dependant on family ties with EU citizens and may be lost if family relationships cease to exist.

With regard to international agreements concluded between the EU and Member States on one the hand and third countries on the other one can say that rights given to third-country nationals vary from one agreement to another. Citizens of richer states whose presence is desired in EU in principle are granted quite extensive rights. This very fact can be supported by extensive rights given to non-EU nationals under Agreement on the European Economic Area and the EC-Switzerland Bilateral Agreement on Free Movement of Persons. On the other hand, the Agreement Establishing an Association between the European Economic Community and Turkey is a completely different story. Turkish nationals were granted only limited equal treatment rights in certain spheres. 

Analysis of the Directives and international agreements as well as case-law of the ECJ shows that none of third-country nationals can rely on Treaties’ provisions directly and consequently on the general principles, as those are reserved for EU citizens only. However, they can exercise rights which are explicitly granted to them by respective pieces of secondary legislation.},
  author       = {Bobyk, Yevgen},
  keyword      = {European Business Law},
  language     = {eng},
  note         = {Student Paper},
  title        = {General Principles of EU Law and Their Application to Third-Country Nationals},
  year         = {2010},
}