ECJ Judges: Undemocratic when we don't like what they say!

Anti-EU sentiment traditionally comes from the political left in Denmark. While the nationalist Danish People's Party in recent years has been criticising the EU from a right-wing position, euro-scepticism has mostly been the preserve of Socialists and Social-Democrats.

Now the mood may be changing in Denmark, after the European Court of Justice (ECJ) ruling on Friday in the C-127/08 Metock and Others case, on the right of residence for non-EU spouses of EU citizens living and working in other EU countries. For an overview see these articles from EU Observer, Jyllands-Posten, and DR. In the DR article Integration Minister, Birthe Rønn Hornbech, severely criticises the ECJ's judgment and calls it a 'democratic problem.' Criticising judges over decision they don't like is, of course, a favourite pastime of politicians, but the anger in the Conservative-Liberal camp over the ECJ is nonetheless interesting.

What follows is my analysis of the ECJ's judgment.

The free movement of workers is one of the fundamental doctrines of the EC Treaty and EU law. Not only is this stated in Articles 18 and 39 of the Treaty, but Directive 2004/38 (adopted by the European Parliament and Council on 29 April 2004) has purposefully strengthened the right of free movement and residence of Union citizens, a fact duly noted by the ECJ.

Directive 2004/38 states, in Article 7(1), that "All Union citizens shall have the right of residence on the territory of another Member State... if they: (a) are workers or self-employed person in the host Member State..." Article 7(2) extends this right to "family members who are not nationals of a Member States..."

As I read the ECJ's judgment, the issues before the court therefore were, 1) whether the EC legislature (the Council and Parliament) had competence to regulate the entry and residence of non-EU citizens who are family members of a Union citizen exercising his or her right to freedom of movement, and 2) whether the directive prohibited Member States from excluding the right of residence for family members in Article 7 to non-EU citizens who had not previously been lawfully resident in another Member State.

The court answered both of these questions in the affirmative. First, because Articles 18, 40, 44 and 52 of the EC Treaty clearly gives the EC legislature that competence, and secondly, because the exercise of the freedoms guaranteed by the Treaty would be seriously obstructed, if Union citizens were not allowed to lead normal family life in a host Member State (see paragraphs 61-62).