Some Private International Law Aspects of European Economic Migration

Alihodžić, Jasmina

doi:10.1007/16247_2019_10

Jasmina Alihodžić²³

Part of the book series: Balkan Yearbook of European and International Law ((BYEIL,volume 2019))

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Abstract

While private international law traditionally regulates private legal relations with an international element, interaction between Private International Law and Migration Law deals with the legal regulation of (international) movement of persons. Despite being separate areas of law, emphasised by the divide between public and private law, there is an ongoing interaction between them. In regulating the status and ensuring the legal protection of economic migrants in the EU, the potential of private international law mechanisms has to be re-evaluated and adjusted to provide optimum protection for this category of persons.

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Notes

1.
King (2012), pp. 7–9.
2.
Ibid.
3.
Bosnia and Herzegovina as well as other countries from Western Balkan region can be considered transit countries on the road to the EU for most of the migrants coming from war-affected areas of the Middle East.
4.
Sales (2007), p. 47. Hagen-Zanker (2008).
5.
Trachtman (2009), p. 8.
6.
UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: https://www.refworld.org/docid/3be01b964.html [accessed 7 May 2019].
7.
On types and reasons for migrations see in: Vukorepa (2018), pp. 85–92.
8.
Mügge and van der Haar (2016), p. 84.
9.
Vukorepa (2018), pp. 93–94.
10.
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180, 19.7.2000, pp. 22–26. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2.12.2000, pp. 16–22. EU has also adopted Common Basic Principles for Immigrant Integration Policy, known as “EU Zaragoza Integration Indicators”. Third–country Nationals in the European Union, Indicators of immigrant Integration 2015: settling in (2015). OECD/European Union, https://www.oecd-ilibrary.org/docserver/9789264234024-17-en.pdf?expires=1537788002&id=id&accname=guest&checksum=27452592D2EC6E9FDF30305785C6EA9E. See also Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person 180/31.
11.
Commission Staff Working Document accompanying document to the Proposal for a Council Directive on a Single application procedure for a single permit for third country nationals to reside and work in the territory of a Member State and on a common set of rights for third country workers legally residing in a Member State, SEC (2007) 1408, Brussels, 23.10.2007.
12.
Consolidated version of the Treaty on the Functioning of the European Union, OJ C 326, 26.10.2012, pp. 47–390.
13.
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, OJ C 306, 17.12.2007, pp. 1–271.
14.
EU Charter on Fundamental Rights, Official Gazette of the EU, No. 2007/C 303/01.
15.
Article 21, paragraph 2 of the Charter.
16.
Council Regulation (EC) No 859/2003 of 14 May 2003 extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality, OJ L 124, 20.5.2003, pp. 1–3.
17.
Commission Staff Working Document accompanying document to the Proposal for a Council Directive on a Single application procedure for a single permit for third country nationals to reside and work in the territory of a Member State and on a common set of rights for third country workers legally residing in a Member State, SEC (2007) 1408, Brussels, 23.10.2007.
18.
Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, OJ L 16, 23.1.2004, pp. 44–53.
19.
Article 11 (1) of the Directive 2003/109/EC.
20.
Council Directive 2004/114/EC of 13 december 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service, OJ L 375, 23.12.2004, pp. 12–18.
21.
Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research, OJ L 289, 3.11.2005, pp. 15–22.
22.
Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, OJ L 155, 18.6.2009, pp. 17–29.
23.
Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers, OJ L 94, 28.3.2014, pp. 375–390.
24.
Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer, OJ L 157, 27.5.2014, pp. 1–22.
25.
Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State, OJ L 343, 23.12.2011, pp. 1–9. See more in: Groenendijk (2015), pp. 547–561.
26.
Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals, OJ L 168, 30.6.2009, pp. 24–32 On these instruments see more in: Vukorepa (2018), p. 95. Groenendijk (2010), p. 18.
27.
Vukorepa (2018), p. 95.
28.
Commission Staff Working Document accompanying document to the Proposal for a Council Directive on a Single application procedure for a single permit for third country nationals to reside and work in the territory of a Member State and on a common set of rights for third country workers legally residing in a Member State, SEC (2007) 1408, Brussels, 23.10.2007.
29.
These are, for example: Association Agreements signed with Tunisia (1995) and Morocco (1996), a Stabilisation and Association Agreements with FYROM and Bosnia and Herzegovina, Partnership and Cooperation Agreement (PCA) with Russia, ACP Partnership Agreement, etc.
30.
Groenendijk (2010), p. 18.
31.
More on the Directive as a secondary legal source of EU Law in: Kaczorowska (2013), pp. 278–279. Alihodžić (2012), pp. 73–78.
32.
ECJ, 152/84 (Marshall I), ECR 1986, 723, from 26.2.1982.
33.
ECJ, C-212/04 (Adeneler), ECR 2006, I- 6057, from 4.7.2006.
34.
The directive is an act that should be transposed into national laws. However, in certain cases the Court of Justice recognises the direct effect of directives to protect the rights of individuals. Therefore, the Court laid down in its case law that a directive has direct effect when its provisions are unconditional and sufficiently clear and precise and when the EU country has not transposed the directive by the deadline. ECJ, 41/74 (van Duyn) ECR 1974, 1337, from 4.12.1974. Swedenborg (1998), p. 22.
35.
Kochenov and van den Brink (2015), p. 88.
36.
C-579/13, ECLI:EU:C:2015:369, from 4.6. 2015.
37.
Point 38, C-579/13, ECLI:EU:C:2015:369, from 4.6. 2015.
38.
Point 57, C-579/13, ECLI:EU:C:2015:369, from 4.6. 2015.
39.
Craig and De Burca (2011), p. 200.
40.
Article 67 Consolidated version of the Treaty on the Functioning of the European Union, OJ C 326, 26.10.2012, pp. 47–390.
41.
Eechkout (2015).
42.
Private International Law in a Context of Increasing International Mobility: Challenges and Potential (2017). Directorate General for Internal Policies of the Union.
43.
Van Den Eechkout (2017).
44.
Article 11 (1) of the Directive 2003/109/EC.
45.
The legalisation of foreign public documents at the international level is regulated by the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents.
46.
See f.n. 21, 25 i 26. of this paper.
47.
Groenendijk (2010), p. 22.
48.
F.n. 28. See also Muminović (2006), pp. 136–139.
49.
Several regulations governing the recognition and enforcement of court decisions, important for the subject of this paper, are in force in the EU. It is worth mentioning EU Regulation No. 1215/2012 on Jurisdiction, Recognition and Enforcement of Judgments in Civil and Commercial Matters (Brussels I Recast), Regulation EC No. 2201/2003 concerning Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility (Brussels II a), Regulation EC No. 4/2009 on Jurisdiction, Applicable law, Recognition and Enforcement of Decisions and Cooperation in Matters relating to Maintenance Obligations, etc.
50.
More on the status of international agreements in: Rosas (2011), pp. 1304–1345. Mohay (2017), pp. 151–164. Alihodžić (2015), pp. 91–105.
51.
Macniven (2012).
52.
Van Dijk and van Hoof (2001), pp. 459–509.
53.
In some countries, for example, to get a birth certificate, people have to wait for the authorities to come to their village, and enter data, which happens twice a year. Consequently, in the birth records only the month of January or the month of June is recorded as the month of birth, leaving room for doubt or fraud, or opens a dilemma as to whether a person is a minor or not, which entails other legal consequences, for example the need to appoint a guardian to the person, etc. Similar problems may arise in situations where migrants come from countries that use another era to calculate time (e.g., Persian calendar). Cited according to: Private International Law in a Context of Increasing International Mobility: Challenges and Potential (2017). Directorate General for Internal Policies of the Union, p. 13.
54.
OJ L 200, 26.7.2016, pp. 1–136. See also: Private International Law in a Context of Increasing International Mobility: Challenges and Potential (2017). Directorate General for Internal Policies of the Union.
55.
Article 14 states:
Requests for information in cases of reasonable doubt
1. 1.
  Where the authorities of a Member State in which a public document or its certified copy is presented have a reasonable doubt as to the authenticity of that public document or its certified copy, they shall take the following steps to dispel their doubt:
  1. (a)
    check the available models of documents in the repository of IMI as referred to in Article 22;
  2. (b)
    if a doubt remains, submit a request for information through IMI:
    1. (i)
      to the authority that issued the public document or, where applicable, to the authority that made the certified copy, or to both; or
    2. (ii)
      to the relevant central authority.
2. 2.
  A reasonable doubt as to the authenticity of a public document or its certified copy as referred to in paragraph 1 may relate, in particular, to:
  1. (a)
    the authenticity of the signature;
  2. (b)
    the capacity in which the person signing the document acted;
  3. (c)
    the identity of the seal or stamp;
  4. (d)
    the document having been forged or tampered with.
3. 3.
  Requests for information made under this Article shall set out the grounds on which they are based.
4. 4.
  Requests for information made under this Article shall be accompanied by a copy of the public document concerned or of its certified copy, transmitted electronically by means of IMI. Such requests and any replies to those requests shall not be subject to any tax, duty or charge.
5. 5.
  The authorities shall reply to requests for information made under this Article within the shortest possible period of time and in any case within a period not exceeding 5 working days or 10 working days where the request is processed through a central authority.
  
  In exceptional cases where the time limits referred to in the first subparagraph cannot be adhered to, the requested authority and the requesting authority shall agree upon an extension of the time limit.
6. 6.
  If the authenticity of the public document or of its certified copy is not confirmed, the requesting authority shall not be obliged to process them.
56.
Private International Law in a Context of Increasing International Mobility: Challenges and Potential (2017). Directorate General for Internal Policies of the Union, p. 13.
57.
The establishment of Migration Service Centres is supported by the Migration for Development in the Western Balkans (MIDWEB) project led by the International Organization for Migration (IOM) in partnership with the Migration, Asylum, Regional Initiative for Refugees (MARRI), the German Federal Office for Migration and Refugees and the Vienna Institute for International Economic Studies (WIIW), and is funded by the European Commission’s IPA 2009 multi-beneficiary program 2. In addition to providing information on work opportunities and studying abroad, visa procedures, work and residence permits, access to health care and education abroad and other information that can be useful for economic migration, the Network of Migration Service Centres, among other things, aims to promote regular migration to EU countries, and capacity building of public services in the context of the policy and potential of labour migration of countries in the region. www.bih.iom.int/labour-migration, access to page 20.9.2018.
58.
On the role of the Hague conference on PIL see in: Alihodžić (2012), op. cit, pp. 56–61. Schulz (2007), p. 940.
59.
Van Loon (2002).
60.
Ibid.
61.
The Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption. https://www.hcch.net/en/instruments/conventions/specialised-sections/intercountry-adoption, access to page 25.8.2018.
62.
Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 351, 20.12.2012, pp. 1–32. More on the Regulation see in: Radončić and Meškić (2013), pp. 46–55.
63.
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), OJ L 177, 4.7.2008, pp. 6–16.
64.
From 10 January 2015, the Brussels I Regulation Recast replaced Regulation 44/2001/EC. The Brussels I Recast Regulation applies to proceedings initiated on 10 January 2015 or later, while Regulation 44/2001/EC continues to apply to proceedings initiated before that date. More on rules on the international jurisdiction of courts for individual employment contracts under Regulation EC No 44/2001 see in: Alihodžić (2011), pp. 193–213.
65.
Article 20 (1), article 21 (1) (b) (i), article 21 (2) of the Brussels I Recast Regulation.
66.
Article 20 (1) and (2) Regulation Brussels I Recast.
67.
Article 21 (1) (b) Regulation Brussels I Recast.
68.
Article 21 (1) (b) ii Regulation Brussels I Recast.
69.
Esplugues Mota and Palao Moreno (2007), p. 333.
70.
Mahamdia, C 154/11, from 19 July 2012. In paragraph 52 of this decision, the Court stated that, in regard to individual employment contract concluded by the embassy on behalf of the sending State, the embassy would be deemed to be “establishment” in terms of designing international jurisdiction of a court of a Member State, when the function carried out by an employee falls under the exercise of public authority.
71.
Mulox IBC Ltd. v. Hendrick Geels, C -125/92, 1993, ECR I-4075, point 21.
72.
Mulox, point 26.
73.
Cf. Article 5 (1) of San Sebastián Convention with Article 19 (2) (a) of Regulation 44/2001 and Article 21 (1) (b) Brussels I Recast Regulation. More on the interpretation of this concept in: Alihodžić (2011), pp. 202–203.
74.
Galič (2016), p. 124.
75.
Article 6 Brisel I Recast Regulation.
76.
Galič (2016), p. 126.
77.
See. f.n. 48.
78.
Hoek (2014), pp. 157–162.
79.
Article 8 paragraph 2 Rome I Regulation.
80.
Article 8 paragraph 4 Rome I Regulation.
81.
Alihodžić (2010), pp. 73–91.
82.
Ibid.
83.
Council Regulation (EC) No 664/2009 of 7 July 2009 establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries concerning jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations, and the law applicable to matters relating to maintenance obligations, OJ L 200, 31.7.2009, pp. 46–51.
84.
Regulation (EC) No 662/2009 of the European Parliament and of the Council of 13 July 2009 establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries on particular matters concerning the law applicable to contractual and non-contractual obligations OJ L 200, 31.7.2009, pp. 25–30.

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Faculty of Law, University of Tuzla, Tuzla, Bosnia and Herzegovina
Jasmina Alihodžić

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College of Law, Prince Sultan University, Riyadh, Saudi Arabia
Zlatan Meškić
Faculty of Law, University of Rijeka, Rijeka, Croatia
Ivana Kunda
Faculty of Law, University of Belgrade, Belgrade, Serbia
Dušan V. Popović
Faculty of Law, University of Zenica, Zenica, Bosnia and Herzegovina
Enis Omerović

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Alihodžić, J. (2019). Some Private International Law Aspects of European Economic Migration. In: Meškić, Z., Kunda, I., Popović, D., Omerović, E. (eds) Balkan Yearbook of European and International Law 2019. Balkan Yearbook of European and International Law, vol 2019. Springer, Cham. https://doi.org/10.1007/16247_2019_10

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