Obie wrote:You can use all the adjectives on the planet at me (dishonest, fool, stupid, retarded), from dusk to dawn, it still don't change the fact that what i have stated is the correct legal position, safeguarded by the treaty, in relation to the relationship between the national courts, the member states and the CJEU.
I have stated already that i support their conclusions in Zambrano and McCARTHY, on the jurisdictional , moral and logical merit of those cases.
It was the memberstates that decided that anyone holding the nationality of a memberstate is a Union citizens. They could simply have confined it to any national who move to a memberstate other than that of which they are national, are union citizen. They failed to do so, and we have the implication of their handy work today. You cant change their work Mr Walrusgrumble, that shoes is too big for your feet.
The judges are supposed to swore allegiance to the Union and it citizens when they are appointed by each memberstate, and not to anything a particular state may consider as partaining to their national interest like immigration control. They have acted in the interest of the Union and its citizens as a whole in all their judgements you have been complaining about, like a kid in the playground.
No you have not. You cite Article 20 TFEU when dicussing CHen and D'Hoop. These cases cited Article 17 and 18EC. There are difference in the wording .
You have correctly, in part, stated the cases to support your argument. But thereafter, no surprise, you just resort to the "because it says so" line of defence.
But its not in dispute what is said. What is in dispute is the validty of the reasoning put forward by the Court. The treaty does not provide any guidelines for the Court to come to this conclusion. (INTENTIONALLY, BY THE DRAFTERS)
The Courts have clearly acknolwedged that it must interpret the provisions of the Treaty Broadly and even if it goes beyond what the Article actually says. It is done on dubious notion, ONLY CITED BY THE COURTS AND NOT THE MEMBER STATES OR ITS PEOPLE that there is some sort of aspiration that citizenship is to be a fundamental status in the future. It claims that Article 20 TEFU (ex 17EC) allows this. It does not. And you have failed to provide the Treaty Article or Preamble Recital to support that contention.
Invetiably, this leads to contradictions and inevitably in time, like in all National Courts dealing with fundamental rights, Judicial Activism will be retrained.
At least you make an effort to engage, others are too blind because they have the false sense that the result is being attacked because of an alledged closed minded lets keep the black out mentality. Its not, its the method in coming to the conclusion that is concerned.
You said
"the memberstates that decided that anyone holding the nationality of a memberstate is a Union citizens. They could simply have confined it to any national who move to a memberstate other than that of which they are national, are union citizen. They failed to do so, and we have the implication of their handy work today. You cant change their work Mr Walrusgrumble, that shoes is too big for your feet."
The Member States never, in 1992 realised that Citizenship was going to cause such a fuss. It was considered to be merely symbolic. The significance was not realised either in 2009 Lisbon as there had been no real problems before that. Remember Baumbast and Co all involved people who actually genuinely did at some point Exercise EU Treaty Rights and were EU citizens themselves. There was no real contraversary with those cases. Chen was the same as it at least required financial self sufficiency and there was some form of Free movement (even if, on its face, an internal matter). You also forget that very few State's allow its own Citizens to have a say via Referendum.
You can't change their work? Yes you can. The ECJ don't follow precendent of their own cases (only when it suits) which is highely unprincpled. Another case put before the Court could make them re-assess things. Just as what happened in Metock - Akrich. Also, its is the PEOPLE AND MEMBERS STATES who change and amened Treaties, not the court. The highely unprincpled attitude can be seen in the difference of attitudes in McCarthy and Zambrano.
There is no justification for taking such different approaches.Its one or the other. There was little evidence, bar assumption that the child would have problems in Columbia, despite the parents not succeeding in their asylum claim and the Beligans clearly were of the view that it was safe to return them to Columbia (which was not challenged) There is also an assumption that McCarthy could actually exercise their Treaty rights, when it was abundantly clear that she had no chance of succeeding in getting a job in another State, just only having the UK for a home.
As usual, the elites spout out bollox generalisation and strange dellussioned political SUBJECTIVE comments without even bothering to put it on record or analysis its significance. To be fair to the Advocate Gernal, at least his opinions are worth reading. The Court don't even bother to try and address the more difficult issues raised by the AG, which at least demand an acknowledgement as to whether they are matters for the courts or the Member States (and then proceed to discuss them)
The Treaty Article 20 TFEU does expressly state a "right to move freely" Its clearly implied that it refers to movement to another State when you look at the other treaty provisions such as Article 45 TFEU. ITs not for the Court to go beyond the clear words of the Treaty. They are not Law Makers. The Treaty in relation to immigration only deals with people moving from one state to another.
So where the Court got this notion about Article 20/17 after looking at the "Spirit" of the Treaty is beyond me. IF the court had bothered to say, although this is an internal matter and we can't do anything,but we will broadly interpret Article 20TFEU because this has the effect of affecting future ability to move (like they did in Carpenter etc) then that would make some sense. It did not.
So for the last time, where did the Judges get such an interpretation after reading the spirit of the treaty? It certaintly was not in the Treaty Text, and it certaintly is not contained in the Post Lisbon Treaty
You said
The judges are supposed to swore allegiance to the Union and it citizens when they are appointed by each memberstate, and not to anything a particular state may consider as partaining to their national interest like immigration control. They have acted in the interest of the Union and its citizens as a whole in all their judgements you have been complaining about, like a kid in the playground
That is not indispute. But they also come a duty not to breach the Union's agreement with Member States under Article 5 TEU, not to encroach in the jurisdiction of the Member State, when the Union has no right to do so. It is not in dispute that they clearly look out for Union Citizens, even if the union between citizens and Non EU's is questionable. What is indispute is whether the Courts are the appropriate avenue in the first place.
Complaining like a kind in the playground? People with low intelligence or skelitical understanding of the nuances between the relationship between Member States and the Union would say that, normally those who are hanging onto the these liberal interpretations, which the Member States, ie law makers, intentionally did not give.
Your whole basis for this discussion is "because the caselaw says so". Sorry, but who is the child here?
I would looooooooveeeeee to see how you react if an evquilent Union attempted to enroach into domestic law where there was a genuine and setteled understand that it could not do so (in any area, not just immigration)
The term is referred to "competence creep" (not as "you are a creep")
