Nissan Iberia (C-21/24): The Court of Justice Defers Limitation Periods for National Competition Authorities’ Decisions

 

Marwan Ben Moussa, law clerk, Cour de Cassation

Photo credit: CMNC building, by Luis Garcia, via Wikimedia Commons

On 4 September 2025, the Court of Justice of the European Union (CJEU), sitting as the Grand Chamber, delivered its judgment in CP v Nissan Iberia (C-21/24). The case, referred by the Commercial Court n.º 1 of Zaragoza, raises a deceptively technical but decisive question: when does the limitation period begin to run for follow-on damages claims based on infringement decisions of national competition authorities (NCAs)?

In line with Advocate General Medina’s Opinion of 3 April 2025, the Court held that the dies a quo does not start upon publication of an NCA decision (in this case the Spanish competition authority, the CNMC) but only when that decision becomes final following judicial review and has been published in an official, public, and dated manner. This holding, which departs from the rule applicable to Commission decisions, recalibrates private enforcement of Articles 101 and 102 TFEU.

This post unpacks the background, the AG’s opinion, the Court’s reasoning, and the implications for European litigation at large

Background to the Preliminary Reference

The case arises from the CNMC’s decision of 23 July 2015 in Expediente S/0482/13 – Fabricantes de Automóviles, sanctioning major car manufacturers, including Nissan, for information exchanges concerning distribution networks and after-sales marketing. The CNMC issued a press release on 28 July 2015 and published the full decision on its website on 15 September 2015.

Several manufacturers appealed. Between April and December 2021, the Spanish Supreme Court dismissed all fourteen cassation appeals, thereby making the CNMC’s decision final (see, inter alia, STS 1420/2021, 1 December 2021).

In March 2023, CP, a purchaser of a Nissan vehicle, brought a follow-on action for damages before the Commercial Court in Zaragoza. Nissan argued that the action was time-barred: under Article 1968 CC, the one-year limitation period began in September 2015 when the decision was published. The claimant countered that the dies a quo could not be triggered until the CNMC’s decision became final.

Spanish courts had been divided on this issue. Some Audiencias Provinciales pegged the dies a quo at publication; others deferred it until finality. Faced with this conflict, the referring court asked whether EU law requires limitation to begin only once an NCA decision is final and, crucially, whether publication on an NCA’s website is equivalent to the Commission’s publication of summaries in the Official Journal.

 

AG Medina’s Opinion

Advocate General Medina’s Opinion framed the problem squarely under the principle of effectiveness, given that the Damages Directive (2014/104/EU) was not yet applicable ratione temporis to infringements that had ceased in 2013.

Heureka as the starting point

In Heureka (C-605/21,paras 62–65), the Court had held that limitation for follow-on actions based on Commission decisions begins upon publication of the summary in the Official Journal. That publication provides claimants with the requisite knowledge: the fact of infringement, its legal qualification, the identity of infringers, its duration, and the products concerned.

Distinguishing Commission and NCA decisions

AG Medina reasoned that this logic cannot simply be transposed to NCA decisions under appeal. Commission decisions, even if not yet final, are binding on national courts by virtue of Article 16(1) of Regulation 1/2003: “When national courts rule on agreements, decisions or practices under Article 81 or Article 82 of the Treaty which are already the subject of a Commission decision, they cannot take decisions running counter to the decision adopted by the Commission.”

By contrast, NCA decisions lack such binding effect while under judicial review. Their probative value is provisional until finality is achieved. It would therefore undermine legal certainty to require claimants to sue within a limitation period triggered by a decision that might yet be annulled or modified (Opinion, paras 65–67).

Policy considerations

AG Medina stressed two considerations in her Opinion:

a)     Effectiveness: Claimants must not be forced to act while the legal basis of their claim is unsettled. To do so would make exercising their EU rights excessively difficult. (Opinion, para 63)

b)    Fairness to defendants: If damages actions are brought while public enforcement is still under appeal, defendants would face parallel proceedings, raising issues of prejudice to their rights of defence. (Opinion, para 63)

Accordingly, she concluded that the dies a quo for follow-on actions based on NCA decisions begins only when those decisions become final.

 

The Judgment of the Court

The Grand Chamber largely endorsed AG Medina’s approach.

a)    General principles

The Court recalled that the right to compensation for infringements of Articles 101 and 102 TFEU is guaranteed under Courage v Crehan (C-453/99, EU:C:2001:465, para. 26) and Manfredi (C-295/04, EU:C:2006:461, para. 59). Member States retain procedural autonomy in setting limitation rules, but these must respect equivalence and effectiveness (Cogeco, C-637/17, EU:C:2019:263, para. 42).

Two conditions must be met before limitation starts: the infringement must have ceased and the claimant must know, or be reasonably expected to know, the facts necessary to bring an action (Volvo and DAF Trucks, para.56.; Heureka, para. 64).

b)    Application to NCA decisions

The Court held that claimants cannot be deemed to have the requisite knowledge until an NCA decision is final. While publication of the decision online may provide factual information, its legal effects remain unsettled during appeals. National courts are not bound by non-final decisions, unlike Commission decisions under Article 16(1). To start the clock before finality would make exercising the right to compensation excessively difficult (Judgment, paras 64–67).

c)     Rejection of alternative safeguards

The Court rejected arguments that suspension or interruption of limitation, or the possibility of staying civil proceedings, sufficed to protect claimants. These mechanisms were contingent, discretionary, or incomplete, and thus inadequate to satisfy the principle of effectiveness (Judgement paras 69–73).

d)    Publication requirement

The Court added that final judgments upholding NCA decisions must be published in an official, public, and accessible manner, with a clear date of publication. Otherwise, claimants cannot be presumed to have knowledge (Judgement para. 74).

e)     Directive 2014/104

The Court held that Article 10 of the Damages Directive applied ratione temporis because, by the transposition deadline (27 December 2016), the limitation period had not yet begun: the CNMC decision was not final until 2021. The Directive therefore governed the limitation period in this case (Judgment paras 79–80).

Commentary

The judgment represents a significant step in reinforcing private enforcement of EU competition law. By tying the start of limitation periods to the finality of a decision, the Court reduces the risk that victims are forced to bring actions on unstable legal ground, only to see their claims undermined if the decision is later annulled or altered.

One line of criticism concerns the treatment of Spanish procedural law. Limitation periods in Spain can be interrupted with relative ease, often through simple extrajudicial steps such as a formal letter or email. This mechanism already provides claimants with a practical safeguard against premature expiry. In addition, CNMC decisions are immediately enforceable, save for the payment of fines which may be suspended on appeal, and they benefit from a presumption of validity. Against this background, treating such decisions as devoid of legal effect until the conclusion of judicial review does not sit comfortably with the way Spanish administrative law operates.

A second concern is the introduction of a sharp distinction between stand-alone and follow-on actions. In practice, the right to damages under Article 101 TFEU is a single right, and the rules governing limitation should not vary according to whether the claimant relies on a prior decision or constructs the case independently. Tying the dies a quo to finality in follow-on cases risks extending liability considerably, exposing defendants to actions many years after the initial publication of the decision.

The Court’s focus on knowledge linked to the binding force of a decision also represents a conceptual shift. Knowledge is no longer understood primarily in terms of factual awareness i.e when the claimant can reasonably be said to know about the infringement and its effects, but rather in terms of whether the decision carries legal certainty and binding probative value. This approach prioritises institutional status over the actual informational content available to potential claimants.

On the other hand, the judgment could be welcomed for strengthening the effectiveness of competition law. Victims cannot realistically be expected to rely on decisions that remain under appeal and may be annulled or altered. By deferring the start of the limitation period until finality, the Court provides clarity and fairness, ensuring that claimants base their actions on stable legal ground.

Doctrinal Position in Case Law

Nissan Iberia extends the line of Courage, Manfredi, Cogeco, Volvo/DAF Trucks, and Heureka. It entrenches the dual requirements of cessation and knowledge, but redefines knowledge for NCA cases in institutional terms: it arises only when a decision is final and binding.

This creates a structural asymmetry. For Commission decisions, limitation begins at publication in the Official Journal (Heureka, para. 78). For NCA decisions, limitation begins only upon finality. The Court justified this on the basis of Article 16 of Regulation 1/2003, but we can wonder whether the difference is truly justified, given that both Commission and NCA decisions are immediately enforceable and presumed valid.

Implications for European Litigation

For claimants, the judgment provides a significant procedural safeguard. The limitation period no longer runs while appeals are pending, giving injured parties the assurance that they will not be time-barred before the underlying infringement decision becomes final. This is especially relevant in Spain, where CNMC proceedings often take several years to clear all levels of judicial review.

For defendants, the consequence is prolonged exposure. Companies may face damages claims long after the initial publication of an infringement decision. This extended horizon complicates accounting practices, increases the cost of legal uncertainty, and alters the incentives for settlement.

For national legal systems, the Court has introduced an additional layer of responsibility. Final judgments upholding NCA decisions must be published in an official, public, and clearly dated manner. Failure to ensure transparent publication could have the unintended effect of leaving limitation periods open-ended, undermining predictability for all parties involved.

For EU law as a whole, the judgment continues the Court’s emphasis on effectiveness as the guiding principle of private enforcement. By privileging the position of claimants, it ensures that rights under Articles 101 and 102 TFEU are enforceable in practice. At the same time, the asymmetry created between Commission and NCA decisions raises concerns of doctrinal coherence. Whether this differentiation proves sustainable, or whether it prompts further clarification from the Court, remains an open question.

Conclusion

The Nissan Iberia judgment represents a decisive step in the construction of a claimant-friendly regime for antitrust damages. By requiring finality before limitation begins, the Court secures effectiveness but at the cost of legal certainty and symmetry.

For Spain, it resolves conflicting case law and ensures that claimants in the “car cartel” litigation remain within time. For the Union, it marks another expansion of private enforcement under the banner of effectiveness, extending the bridges built by Courage, Manfredi, and Heureka.

The Court has drawn a bright line: for NCA decisions, the limitation clock starts ticking only when the decision is final. Whether this asymmetry will endure or be recalibrated in future remains to be seen. For now, defendants must live with a longer tail of liability, and claimants with a clearer pathway to redress.

The implications of the Revised European Commission Draft Withdrawal Agreement text for health, part 1: patients and reciprocal healthcare (Updated 18 March 2018)

Tamara K Hervey, Jean Monnet Professor of EU Law, University of Sheffield

So it would seem that my early analysis of the implications of the European Commission’s 28 February draft legal text on the Withdrawal Agreement for some of the people-related aspects of health was too early. The European Commission issued a revised version of the text on 15 March 2018.  Here are my views on the revised text as it applies to patients, and in particular reciprocal healthcare between the UK and the EU-27 post-Brexit. There are two key issues here:

·         The position of UK pensioners who have retired to another EU country, or will do so in the future;

·         The EHIC for emergency care when visiting another EU country, or when people from EU-27 countries visit the UK.

As I said in the original blog, the text is complex, and like all legal texts, its full implications will take time to emerge. So this is only a first take, and I may well have got things wrong: if you spot anything I’ve missed or misunderstood, please get in touch.

I recognise, of course, that the process of the UK leaving the EU is a negotiation, that this text is yet to be adopted by the EU-27 Council, much less agreed between the EU and the UK, and that ‘nothing is agreed until everything is agreed’. It remains prudent, therefore, also to plan for a ‘no-deal’ Brexit, where we leave without any Withdrawal Agreement.

Finally, by way of introduction, I should say that I would love to be able to compare this analysis with the UK’s preferred legal text. Sadly none is currently available. And the Prime Minister’s speech, on 2 March 2018, does not cover reciprocal healthcare explicitly at all.

The timeline:

The text proposes three periods of time, each of which involves different legal rights and obligations:

·         now (while the UK is a Member State of the EU);

·         a transition period (which the UK government calls an ‘implementation’ period), which starts when the WA enters into force on 30 March 2019 (Article 168) and ends on 31 December 2020 (Article 121); and

·         thereafter. 

Whether the precise dates survive the negotiation or not, we are talking about at least three different timeframes, with the associated legal complexity.

It is not going to be easy for people to understand what their rights are, how to enforce them, or what obligations governments (the UK, and those of the EU-27) are under.

I want to suggest in what follows that, implicit in the text of the WA as proposed, is a fourth period of time – some way into the future – where no further rights and obligations apply.

Where we are now (this repeats my earlier blog for ease of reference):

To grossly oversimplify, patients currently enjoy rights to cross-border healthcare in the EU under four types of EU arrangements: S1 for residents in another EU country; S2 and the Patients Rights Directive for planned care; and EHIC for visitors.  Because access to the UK NHS works on the basis of residence, rather than having paid tax or social security into the UK system per se, EU-27/EEA nationals who meet the NHS ‘ordinary residence’ test in the UK de facto have a set of rights in domestic law too. (NB, the hyperlink is to the rules for England: they are different in Scotland, Wales and Northern Ireland.)

The EU law entitlements essentially work on the basis of coordination of the very different social security systems across the EU. They are part of EU law on free movement of people and EU citizenship, but they do not depend on harmonisation (or ‘regulatory alignment’) of national rules. Indeed the EU Treaties (in Article 168(7) TFEU) rule out such harmonisation, referring to Member States’ responsibilities for “the definition of their health policy and for the organisation and delivery of health services and medical care”, including “the management of health services and medical care and the allocation of the resources assigned to them.” Instead, the EU coordination rules operate to smooth the way for people who cross the EU’s internal borders – to work, to study, to retire, to visit. They protect people from the difficulties that would otherwise arise from the differences in the organisation of social security, and access to benefits, including access to healthcare within national health systems.

One way to think about it is to imagine an EU citizen, and her family, moving around the EU, working and paying into the social security system in each state. As she moves, she accrues a kind of ‘backpack’ full of the benefits they have earned, which she and her family can then put together and call upon if they need them, for instance, when they retire, or if they become too unwell to work, or otherwise unemployed. (That’s called the principle of ‘portability’ and of ‘aggregation’). Another way to think about it is to realise that when an EU citizen is in a different Member State from their ‘home’ Member State (who is responsible for protecting them from the life events that social security systems are there to help with), they are treated as if they were a national of the Member State they are in. (That’s called the principle of non-discrimination.)

Finally, to make sure that people are neither able to ‘double count’ benefits, nor fall through the gaps, for each person there is a single ‘competent state’, which is responsible for paying. That responsibility is irrespective of the country which provides the benefit, or in the case of healthcare, medical treatment. (That’s called the ‘single state rule’.)

So, the British pensioners who have retired to the south of Spain are able to access the Spanish health care system on the basis of the rights they have earned when they worked in the UK. The UK pays for that healthcare; it’s provided by Spain, and it’s provided on the same basis as for Spanish nationals.

All of this is supported – as you might imagine – by a complex set of administrative arrangements, supported by the EU. An Administrative Commission for the Coordination of Social Security Systems is made up of one representative of each of the Member States, plus the European Commission. It deals with administration and interpretation of the rules, and promoting collaboration (Regulation 883/2004, Articles 71 and 72).  In practice, it relies on a network of national competent authorities, which share information so that they can effectively coordinate their activities. There is an Electronic System which supports exchange of social security information. EU data protection law applies here.

Coordination of social security is also an area where there is a great deal of litigation: the rules are complex, and the CJEU is regularly called on to interpret what they mean.

What the 15 March Commission text proposes: who is covered?

Just to get this out of the way first. There is – rightly – a huge amount of attention being paid to the scope of the proposed provisions on citizens rights under Title I of Part Two of the draft WA. But what matters for this blog is that who is covered by those citizens’ rights provisions is explicitly ‘without prejudice to Title III’ of the citizens’ rights Part of the WA, which is on social security systems.

So, if the WA is agreed as proposed, there will be one group of people who have rights to reside (Articles 12-20), to be employed or self-employed (Articles 22-27), and to be treated equally (with some significant exceptions) to nationals (Article 21). There will be a different group of people who have rights under the coordination of social security provisions. One human being might be in both groups.

Again, this will be complex, and it won’t necessarily be easy for people to know what their rights are.

Who will be covered? This is set out in Article 28 of the draft WA. The text echoes the text of the key EU Regulation (883/2004), Article 2, but less so in the 15 March version than before. The starting point is to include people who ‘are subject to the legislation of’ either the UK or an EU-27 Member State ‘at the end of the transition period’.

‘Subject to’ is not a term that is defined either in the WA or in Regulation 883/2004. The nearest we have to a definition is in recital 7 of the Regulation, which simply says that, because there are major differences between Member States in the scope rules for social security schemes, ‘it is preferable to lay down the principle that this Regulation is to apply to nationals of a Member State, stateless persons and refugees resident in the territory of a Member State who are or have been subject to the social security legislation of one or more Member States, as well as to the members of their families and to their survivors’. 

In what follows, I am taking the view that ‘subject to’ means ‘entitled to benefits under’. That entitlement arises because of social insurance, employment, self-employment or residence (the main types of access rules found in the Member States for various benefits). However, it would be possible to argue that ‘subject to’ has a broader meaning, and that someone who is excluded from entitlement to benefits under the relevant legislation is nevertheless ‘subject to’ that legislation.  In the abstract, that argument seems very far-fetched. But where, for instance, access to a benefit is legally contested, for instance by someone resident in a state where benefit access is at least in part based on residence, the litigation could be argued to be ‘subject to’ that legislation.

‘The legislation’ here is the social security legislation covered by Regulation 883/2004. That much is clear, as Article 29 (2) provides that ‘definitions in Article 1 of Regulation 883/2004 shall apply’.  Regulation 883/2004, Article 1 (l) defines ‘legislation’ as ‘laws [etc] relating to the social security branches covered by Article 3 (1)’. Those include ‘(a) sickness benefits (ie healthcare); maternity and equivalent paternity benefits; invalidity benefits; old age benefits (ie pensions) … unemployment benefits, and family benefits’. From the point of view of health, the key things that matter are that healthcare is covered, and also that pensions are covered.

Regulation 883/2004 covers EU citizens, stateless persons and refugees, members of their families, and survivors. It also covers nationals of other countries who are not already covered by the Regulation solely because of their nationality. What is important for cross-border health care is that you do not have to be or have been resident in another Member State to your home country to fall within the scope of the Regulation. It is enough that you are ‘subject to the legislation’ of any Member State. Everyone who meets the UK ordinary residence test for access to the NHS, for instance, is ‘subject to the legislation’ of the UK on this matter. Everyone across the EU, including in the UK, who is entitled to an EHIC card is ‘subject to the legislation’. When you visit another Member State, on holiday or for business, the EHIC card entitles you to emergency care in the country you are visiting.

Unlike the general WA provisions on EU citizenship, which only give rights to those who have exercised their rights to free movement (for instance, by residing in a Member State of which they are not a national), Article 28 (1), read alone, gives rights to everyone who is subject to social security legislation in either the EU27 or the UK.

But – critically in the 15 March draft – people enjoy rights under Title III only ‘for as long as they continue to be in a situation involving both a Member State and the United Kingdom at the same time’ (Article 28 (2)).  It’s difficult to be sure what is intended by this text, but it seems most likely that this is intended to significantly reduce the scope of application of the Title from the original text.  Regulation 883/2004 works by determining everyone who is covered by social security legislation, and then making provision for what happens when someone moves around the EU. The draft text of the Withdrawal Agreement, by contrast, draws its scope on the basis that some people will be ‘in a situation involving both a Member State and the United Kingdom’ at the same time. It is only those people who are intended to be in the scope of the Withdrawal Agreement.

This is an extraordinarily loose piece of drafting. Some people are obviously in such a situation: frontier workers would be an example. Someone who resides in an EU-27 Member State but receives a UK pension, or other benefit, would be another. But what about someone who resides in an EU-27 Member State, receives a UK benefit, and visits another EU-27 Member State? Does the text mean that ‘a Member State’ can only be one Member State (plus the UK); or can it be more than one Member State (plus the UK)? What about someone who resides in an EU27 Member State and regularly visits the UK (or vice versa)? What about someone who intends to do so, even if they don’t regularly do so? All of those people were within the scope of Regulation 883/2004: the text implies that not all will be within the scope of Title III of the WA.  This is further elaborated in Article 29a, which modifies the scope rules in Article 28.

What it might mean for healthcare entitlements is elaborated below.

What the Commission text proposes: what are their rights?

Article 29 no longer talks about ‘rights’ or ‘principles’ applying. Instead, it says that ‘the rules’ set out in Regulation 883/2004, and its implementing legislation Regulation 987/2009, ‘shall apply’. These rules are encapsulated in the principles of portability, aggregation, non-discrimination, and prevention of overlapping benefits/single state rule.  But those principles are no longer explicitly included in the text. An interpretation that suggests that everyone now within the system of EU coordination of social security would continue to be within it under the WA is now not consistent with the WA text. The new Article 29 text ties the application of the rules of the Regulation explicitly to those within the (now more narrowly drawn) scope rules of the Withdrawal Agreement.

And, further, there is a new Article 29a (‘special situations covered’) which derogates from Article 28. It’s unclear whether this derogation is intended to extend the scope of the rules in Article 28, or to narrow them.  In one regard, it extends the scope of the rules, by including some EU-27 nationals/UK nationals who are not ‘subject to’ UK/EU-27 legislation at the end of the transition period, but have been subject to it.  The ‘are or have been’ text of the earlier draft has been moved from Article 28 to Article 29a.

Paragraph 1 (a) of Article 29a derogates from Article 28 (the scope rules) ‘to the extent set out below’, ie in the rest of Article 29a. It extends the scope of the WA to EU citizens who have been subject to UK social security legislation before the end of the transition period, but are no longer subject to that legislation, and vice versa for UK citizens subject to EU-27 social security legislation. Those people fall within the scope of Title III of the citizens’ rights part of the WA, for the purposes of relying on and aggregating periods of insurance, employment, self-employment or residence. This covers an EU-27 citizen who has worked some of her life in the UK, but is now ‘subject to’ the legislation of another EU Member State (either that of which she is citizen, or another one), because she now works there, or resides there. Under the WA, she can rely on the period of time aggregated through the period of employment or residence in the UK for the purposes of receiving benefits (such as healthcare) that are based on aggregated periods of time.  Likewise, a UK citizen who is no longer subject to the legislation of an EU-27 Member State can also rely on the WA to aggregate social security entitlements earned during the time that she was subject the legislation of that Member State.

Article 29a includes a revised and clarified provision on planned healthcare.  It provides that the rules of Regulation 883/2204 (Articles 20 and 27) continue to apply to someone who ‘who has begun a course of planned health care treatment before the end of the transition period in a Member State or in the UK, while that State was not the competent State, until the end of the treatment’ (Article 29a (1) (b)). Reimbursement procedures apply even after the treatment ends. ‘Until the end of the treatment’ is presumably intended to include all phases of treatment, including follow up care. The text does not refer to planned healthcare under the Patients’ Rights Directive; only under Regulation 883/2004. Future access to planned healthcare is not included, unless someone who seeks to access planned healthcare that begins after the end of the transition period can be said to be ‘in a situation involving both a Member State and the United Kingdom’ at the end of the transition period. This might be the case, for instance, if someone’s cross border planned healthcare is part of a clinical trial to which the person is recruited in the run up to the end of December 2020. (Note that some Member States, including the UK, do not authorize experimental treatments under S2.) But otherwise, UK patients seeking planned crossborder healthcare in the EU-27 (and vice versa) after the end of transition will not be within the scope of the Withdrawal Agreement.

The previous text had nothing explicit in the text on EHIC healthcare. This is now covered in Article 29a (1) (c). It provides that the rules on EHIC healthcare apply to ‘a person, covered by Regulation 883/2004, who is staying at the end of the transition period in a Member State or the United Kingdom, until the end of the stay’. This text excludes future application of EHIC rights. As with the provision on planned crossborder health care, its implication is that ‘a situation involving both a Member State and the United Kingdom at the same time’ in Article 28 (2) is not intended to include a future intention to rely on accrued EHIC rights after the end of the transition period.

The provision on healthcare for pensioners has been tidied up (the puzzling word ‘becomes’ has been removed). It’s now in Article 29a (2):

“If, following the grant of a pension or a benefit based on periods of insurance, employment, self-employment or residence in accordance with point (a) of paragraph 1 of this Article,

(a)                the United Kingdom is competent for the sickness benefits of a person residing in a Member State, or

(b)               a Member State is competent for the sickness benefits of a person residing in the United Kingdom,

that person, as well as his or her family members and survivors, shall be entitled to sickness benefits as set out in Articles 22 to 30, 33 and 34 of Regulation (EC) No 883/2004 (in the case of a pensioner or a pension claimant), or Articles 17 to 21, 33 and 34 of Regulation (EC) No 883/2004 (in the case of a person receiving a benefit other than pension). The corresponding reimbursement procedures shall apply.

This provision shall apply mutatis mutandis as regards family benefits based on Articles 67 to 69 of Regulation (EC) No 883/2004.

‘Sickness benefits as set out in Articles 22 to 30, 33 and 34 of Regulation (EC) No 883/2004 (in the case of a pensioner or a pension claimant)’ is healthcare cover for pensioners. Essentially the rules are that if someone is entitled to a pension from at least one Member State, they are entitled to receive healthcare in another Member State in which they reside, on the same basis as the residents of that Member State. The costs of the healthcare are borne by the Member State responsible for the pension. This is the basis of the S1 scheme. They are also entitled to EHIC health care, or, with authorization, planned care under the S2 scheme, in a Member State which they visit.

As originally drafted the provision didn’t explicitly deal with the UK pensioners who have worked all their life in the UK, and then retired to Spain (or another EU country): the biggest group of recipients of cross-border health care who are concerned about the effects of Brexit. It still doesn’t do so explicitly. But they fall within the scope of the Withdrawal Agreement (Article 28) because they are ‘subject to’ the social security legislation under Regulation 883/2004, and are in a ‘situation involving both a Member State and the UK at the same time’ at the end of the transition period. They will be able to continue to rely on their rights under the WA, until they cease to meet those conditions. This is good news, not only for those pensioners, but also for the NHS which will not have to plan for their mass return.

What the Commission text proposes: the time frame

Most of the provisions in the WA have a tight temporal limitation: they cease at the end of the transition/implementation period. In this draft, unlike the earlier one, a similar temporal limitation has been added to Title III on social security coordination. The general rule is that it continues as long as someone continues to be in a situation involving both a Member State and the UK at the same time.  For UK pensioners accessing healthcare in Spain, that will potentially be the rest of their lives (Article 35), unless they return to the UK.  But Article 29a precludes an interpretation of the general rule to include post-transition planned healthcare or emergency healthcare under EHIC. 

Conclusion and implications

Continued access to the EHIC scheme is something that both Jeremy Hunt and David Davis have said that the UK would seek to negotiate. Indeed, Jeremy Hunt described it as ‘perfectly possible’ in January 2017; and Davis said in Parliament that it had been ‘agreed’ in August 2017. Presumably it could be negotiated as part of the future EU-UK relationship(s), and that would cover people not within the scope of the Withdrawal Agreement (for instance, because they are yet to be born). However, as I suggested in my previous blog, it would be better if it were included in the Withdrawal Agreement too.

Barnard & Peers: chapter 27

Photo credit: Sutter Healthcare

The Security of the Status of Long-Term Non-EU Residents in the EU: Some Thoughts on Case C-636/16 López Pastuzano

Dr Diego Acosta, Reader in European and Migration Law at the University of Bristol; author of The Long-Term Residence Directive as Subsidiary Form of EU Citizenship.An Analysis of Directive 2003/109 (Brill, 2011).

When can Member States expel a third-country national (TCN) holding a long-term residence (LTR) permit and having committed a criminal offence? The ECJ engaged with this important issue in its López Pastuzano ruling on 7 December 2017. It must be recalled at the outset that, according Eurostat data, there are more than 7 million LTRs residing in the EU, with that number set to rise after Brexit. Having participated in the drafting of the written observations on behalf of the claimant before the Court, this post is a short explanation of the case and of its implications.

Background

Directive 2003/109 (which was amended in 2011 to extend to refugees and people with subsidiary protection) provides TCNs who, as well as fulfilling other conditions, have regularly and continuously resided for five years in a Member State with a LTR status. (The UK, Ireland and Denmark opted out of the Directive) The advantages of holding such status, as opposed to a mere temporary permit, can be summarised as accessing equal treatment with nationals in a number of areas (Article 11), the conditional right to reside in another Member State (Articles 14 and 15) and the reinforced protection against expulsion (Article 12).

The ECJ has repeatedly held that the main objective of the Directive is the integration of TCNs who are settled on a long-term basis in the Member States (Cases C-502/10, Singh para 45; C-508/10, Commission v Netherlands para 66; C‑571/10, Kamberaj, para 90). Security of residence is an essential condition for that aim (in real life and in the perception of the Union legislator). If that security would be affected, the main purpose of the Directive would be undermined.

The case at hand dealt with Article 12, which fleshes out the reinforced protection against expulsion by establishing a twofold test. Firstly, Member States may expel a long-term resident “solely” when the individual constitutes an actual and sufficiently serious threat to public policy or public security (Article 12(1)); such a decision “cannot be founded on economic considerations” (Article 12(2)). Secondly, before making such decision, Member States “shall have regard to the following factors: (a) the duration of residence in their territory; (b) the age of the person concerned; (c) the consequences for the person concerned and family members; (d) links with the country of residence or the absence of links with the country of origin” (Article 12(3)).

The facts in the case

The case revolved around the implementation of Article 12 of the Directive in Spain. The claimant, a TCN holding a LTR permit, had resided in Spain since 2008, was working and in a relationship with a Spanish national. His mother and two brothers also resided in Spain. In 2014, he was condemned to a sentence of 12 and 3 months, respectively, following two criminal offences. By virtue of the Spanish Organic Law on Foreigners, in particular its Article 57(2), a third-country national can be expelled if he or she has been condemned for an offence sanctioned by prison of more than a year.

In such scenarios, the authorities cannot take into account aspects comparable to those mentioned in Article 12 (3) of the Directive. These safeguards are taken into consideration in other cases of expulsion but not in case of a prison sentence of more than one year. This national rule applies irrespective of whether the individual TCN holds a LTR permit or not.

The Ruling by the ECJ

The ECJ reminds at the outset that the main objective of the Directive is the integration of TCNs holding a LTR permit, for which they enjoy reinforced protection against expulsion (paras 23-24). The Court reiterates that it is solely when the individual constitutes an actual and sufficiently serious threat to public policy or public security that an expulsion measure might be imposed, but only after having considered each of the aspects in Article 12 (3) of the Directive (paras 25-26).

Indeed, the Directive prohibits the automatic application of an expulsion measure following a condemnatory sentence for a criminal offence, but rather it requires a case by case analysis on the elements mentioned, in particular, in Article 12 (3) (para 27). The words “in particular” are crucial here since it means that the list of elements to be assessed in each individual case in Article 12(3) is not exhaustive and that Member States must also consider other elements. This is the type of personalised proportionality assessment that the ECJ has also favoured in other recent rulings (E.g. Case C-579/13 P and S, discussed here, which concerned integration requirements for long-term residents) and that Member States need to conduct in each single case so as to fulfil their obligations under EU law. Moreover, the ECJ makes reference to its previous ruling in Ziebell (para 27) as discussed below. Spain is consequently found to be in breach of the Directive (para 29).

Discussion

The ECJ did not engage in a deep analysis of which LTRs can be considered to be an actual and sufficiently serious threat to public policy or public security to begin with. However, its reference to the Ziebell case is central (para 27). In Ziebell, the Court interpreted Article 12 of the Directive on the basis of a comprehensive summary of its case law on Article 14 of EEC-Turkey Association Council Decision 1/80 (which concerns the ‘public policy and public security’ exception to the rules on residence of Turkish workers and their family members).

In brief, the same interpretation of the concept of public policy as in the area of EU nationals applies by analogy; since this is a derogation on a right it needs to be interpreted strictly; measures on grounds of public policy may be taken only following a case-by-case assessment by the competent national authorities showing that the personal conduct of the individual concerned constitutes at present a genuine and sufficiently serious threat to a fundamental interest of society.

In addition to that, the principles of proportionality and the respect for the fundamental rights of the individual, in particular, the right to privacy and family life, must be respected, and “such measures cannot be ordered automatically on general preventive grounds following a criminal conviction or as a means of deterring other foreign nationals from committing offences”. Finally, the existence of “previous criminal convictions is, in itself, irrelevant for justifying an expulsion” and “the same must hold all the more true for a justification relating to the duration of any prison terms to which the individual concerned was sentenced.”

In line with this, national courts and national authorities must take into consideration “factual matters which occurred after the final decision of the competent authorities which may point to the cessation or the substantial diminution of the present threat which the conduct of the person concerned constitutes to the requirements of the fundamental interest in question (Case C-371/08, Ziebell paras 81-84).

This protection is very similar to the one that EU nationals enjoy under Article 27 of Directive 2004/38 (the EU citizens’ Directive), if not the same. As the ECJ established in the H.T. case (C‑373/13), relating to refugee law (discussed here), whilst EU Member States “retain the freedom to determine the requirements of public policy and public security in accordance with their national needs, which can vary from one Member State to another and from one era to another … the extent of the protection a society intends to afford to its fundamental interests cannot vary depending on the legal status of the person that undermines those interests” (para 77). This has important implications for all domestic court deciding in cases where a LTR might have committed a criminal offence and when the particular application of the personalised proportionality assessment will be central in deciding the outcome of the residence of the individual or his or her expulsion.

Barnard & Peers: chapter 26

JHA4: chapter I:6

Photo credit: RealAgenda.com

Dual citizens and EU citizenship: clarification from the ECJ

Professor Steve Peers

One of the basic rules of EU free movement law is that in principle it can only be invoked by EU citizens who are in a Member State other than their Member State of nationality. As a corollary, those EU citizens who are in the Member State of which they are a national cannot invoke free movement law – although ECJ case law in some cases allows them to claim rights on the basis of their EU citizenship instead.

So what happens if someone is a citizen of two Member States? If they are living in one of those two States, at first sight they are Schrodinger’s EU citizen: simultaneously entitled to free movement rights (as they are in a Member State other than their Member State of nationality) and not entitled to those rights (as they are in the Member State of which they are a national). In its 2011 judgment in McCarthy, the ECJ ruled that a dual citizen of two Member States (the UK and Ireland) who had not moved from the UK could not claim rights based on free movement law or EU citizenship. But did that finding rest on the mere fact that Ms McCarthy was a dual citizen of two Member States – or rather upon the fact that she was a dual citizen who had not moved between Member States?

Yesterday’s ECJ judgment in Lounes has clarified this important point. (On the background to the ruling, see Alina Tryfonidou’s analysis). It concerned a Spanish citizen who moved to the UK, who then gained UK nationality and married a non-EU citizen. She invoked free movement rights so that he could stay with her, but the UK government, having changed its law after the McCarthy ruling, argued that she was subject not to EU law, but to the more restrictive family reunion rules applicable to UK citizens.

The ECJ ruled that she was not entitled to invoke the free movement rights (including the family reunion rules) in the EU citizens’ Directive, since she was now a UK citizen in the UK. However, the Court said that she could invoke her EU citizenship based on the Treaties: for that purpose she was still regarded as a Spanish citizen who had moved within the EU. While the Treaty citizenship provisions, unlike the citizens’ Directive, contain no specific rules on family members, the Court said that she should be treated no less favourably than those covered by the Directive, as it would be unjust to treat her worse than a Spanish citizen who had moved to the UK and not acquired UK nationality.

In effect, dual citizens of two Member States who move within the EU therefore form another exception to the rule that EU citizens cannot claim free movement or citizenship rights against their Member State of nationality. They join: EU citizens who move to another Member State and return home (Surinder Singh); EU citizens who live in their State of nationality but who take up economic activity outside it (Carpenter); and EU citizens who live in their State of nationality but would be compelled to leave the EU if their non-EU parent is expelled (Ruiz Zambrano). (The ECJ most recently clarified the status of the first two categories in two 2014 rulings, which Chiara Berneri discussed here; and it most recently clarified Ruiz Zambrano cases in a spring 2017 ruling, which I discussed here).

Comments

The Court’s ruling in Lounes raises several questions. First of all, does it apply only where the EU citizen acquired the second nationality after moving to that second Member State? At first sight, the Court’s ruling suggests this. But it would be odd to deny the same rights to those who gained the second nationality earlier, upon marriage to a national of that second Member State, or to those who have had two nationalities since birth, for instance because: their parents have different nationalities; or they were born in one Member State but one or both parents is a national of another Member State; or they obtained both UK and Irish nationality because they were born in Northern Ireland. Of course, in each of those scenarios, the dual citizen would still need to move within the EU to invoke the EU citizenship rights.

What about those who lost the citizenship of one Member State when they acquired the nationality of another one? The earlier case of Scholz suggests that they, too, keep rights – although that case was decided on free movement rather than citizenship rights.

For dual citizens covered by Lounes, do all the rights derived from the citizens’ directive apply by analogy? A particular issue arises with acquiring permanent residence, where the Court previously suggested in Alarape that only those covered by the citizens’ Directive as such could gain permanent residence. (While gaining permanent residence would be irrelevant to Ms. Lounes as a citizen of the UK, it would be important to establish whether her non-EU husband could obtain that status). But that case concerned a comparison between those covered by the EU citizens’ Directive and those covered by a separate Regulation, not those covered by the Treaties. And in Lounes, the Court insisted upon the citizens’ Directive applying by analogy. So it is arguable that the permanent residence rules still apply. (See also the argument on this made in the Free Movement blog).

Finally, what happens after Brexit, for dual citizens of the UK and another Member State? For those who moved before Brexit Day, it will be important to ascertain whether the withdrawal agreement (if there is one) fully guarantees the continuation of ECJ case law on this issue, given that family reunion is still a disputed issue between the UK and EU27 sides. For those who arrive within a transition period (if one is agreed), the issue will be whether the withdrawal agreement also guarantees the full application of EU laws and case law to them. For those who arrive after that transition period ends, the issue will be whether the UK has made any commitments at all on this issue, or whether UK law only will apply – in which case more restrictive family reunion rules will apply. If there is no deal on this issue between the UK and EU27, then the UK’s more restrictive rules will apply – unless those rules change as a consequence of an election that might then follow. (Note that UK citizens living in Spain cannot obtain Spanish nationality at present).

Those who have two nationalities already, and who fall in love with someone who has a third nationality, inevitably bring out the greatest tension between the arid dictates of immigration law and the human need of family members to live their lives together. It remains to be seen whether those whom EU law has joined together, will be split asunder by Brexit. 

JHA4: chapter I:6

Barnard & Peers: chapter 27, chapter 13

Photo credit: thinkSPAIN