public policy can be generally defined as the course of action or inaction taken by governmental...

8/8/2019 Public Policy Can Be Generally Defined as the Course of Action or Inaction Taken by Governmental Entities

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Public policy can be generally defined as the course of action or inaction taken by

governmental entities (the decisions of government) with regard to a particular issue or

set of issues.[1] Other scholars define it as a system of "courses of action, regulatorymeasures, laws, and funding priorities concerning a given topic promulgated by a

governmental entity or its representatives."[2] Public policy is commonly embodied "in

constitutions, legislative acts, and judicial decisions."[3]

In the United States, this concept refers not only to the end result of policies, but morebroadly to the decision-making and analysis of governmental decisions. Public policy is

also considered an academic discipline, as it is studied by professors and students at

public policy schools of majoruniversitiesthroughout the country. The American (UnitedStates of America) professional association of public policy practitioners, researchers,

scholars, and students is the Association for Public Policy Analysis and Management.

Shaping public policy is a complex and multifaceted process that involves the interplay

of numerous individuals and interest groups competing and collaborating to influence

policymakers to act in a particular way. These individuals and groups use a variety oftactics and tools to advance their aims, including advocating their positions publicly,

attempting to educate supporters and opponents, and mobilizing allies on a particularissue.[4]

In this context, advocacy can be defined as attempting to influence public policy through

education, lobbying, or political pressure. Advocacy groups "often attempt to educate the

general public as well as public policy makers about the nature of problems, whatlegislation is needed to address problems, and the funding required to provide services or

conduct research. Although advocacy is viewed as unseemly by some in the professional

and research community, it is clear that public policy priorities are influenced by

advocacy. Sound research data can be used to educate the public as well as policymakers, thereby improving the public policy process."

Nationality and EU citizenship are inseparable and superimposed.

Matters of nationality remain within the exclusive competence of the Member States.They decide who can or cannot be an EU citizen. Being a national of a Member State is

the condition sine qua non for acquiring EU citizenship, and therefore enjoying the rights

linked to it. This led some scholars to the conclusion that EU citizenship might be

characterised as a derived condition of nationality.

The ECJ interpreted the exclusive competence over nationality matters by Member States

in the Micheletti case in 1992.

In this case, an individual with dual Argentinean and Italian nationality arrived in Spain

wanting to exercise his right to freedom of establishment and to practice as anorthodontist. He was refused a residence permit by the Spanish authorities, because in
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such instances Spanish legislation refers to the last or effective residence, which in this

case was Argentina. The ECJ ruled that nationality of one of the Member States was

sufficient and that a citizen does not have to choose between the two nationalities. In fact,this judgment has dramatically influenced nationality law at the EU and national levels.

The ECJ highlighted that this competence must be exercised in conformity with EC law.

It also emphasized that another member of the Union that imposes additional conditionson the recognition of such a nationality in order to exercise the fundamental rights

provided by the EC Treaty may not restrict the effects of nationality being attributed by

one Member State.

Text of the ECJ judgmentText of the AG opinion

Jun

26

Parliament v Council [2006]

June 26, 2007 |5 Comments

On 22 September 2003 the Council adopted the Directive 2003/86/EC which determinethe conditions for the exercise of the right to family reunification by nationals of non-

member States residing lawfully in the territory of the Member States. The directive

provides in particular that a national of a non-member State lawfully living in the EU isin principle entitled to bring his/her children to join him/her by way of family

reunification. The directive nevertheless allows Member States in certain circumstancesto apply national legislation derogating from the rules that apply in principle.

The European Parliament took the view that several provisions are contrary tofundamental rights, in particular the right to respect for family life and the right to non

discrimination. Because of that it brought an action for annulment before the ECJ.

As examples of such provisions we can mention: the possibility for Member States to

verify whether a child, who arrives independently from the rest of his/her family, meetsan integration condition; or the possibility of the Member States to defer family

reunification for two or, as the case may be, three years.

However after a very intense analyze and after making the first referral to the EU Charter,

the ECJ ruled that the Community legislature did not exceed the limits imposed byfundamental rights in permitting Member States which had, or wished to adopt, specific

legislation to adjust certain aspects of the right to family reunification.

The ECJ therefore dismissed the action.
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Text of the ECJ judgment

Text of the AG opinion

Jun

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Hartmann [2007 pending]

June 25, 2007 |3 Comments

The pending case Hartmann (C-212/05) is based on the refusal of the German Freistaat

Bayern to give a child raising allowance for Ms. Hartmann who is an Austrian citizen

living in Austria with her German husband and their three children. Ms. Hartmann is ahouse wife and Mr. Hartmann works in Germany for Deustche Telekom. The refusal was

based on the fact that she was no longer living in Germany nor did she had a laborcontract anymore in that country.

The Advocate General held in his conclusions of 28 September 2006 that the mainpurpose of the right to social benefits was to promote the integration of the worker into

the country of employment. The situation of the frontier workers is a little bit different.

As frontier workers are not living in that state, there is no need to facilitate theirintegration there. In his view (supported by several intervening Member States) the equal

treatment for frontier workers and his family members should be limited to advantages

which are closely linked to the objective status of a worker. This is not the case,according to the AG, with family benefits such as the German child raising allowance

which is at stake in this case. Such benefits are linked to the purpose of integration of thefamily into the society and linked to social and demographic policies which are proper to

a particular Member State and its territory. The AG concludes in this case that a frontierworker, who cannot invoke the provisions on export of family benefits in Regulation

1408/71 because he is not covered by it, cannot invoke Article 7 ofRegulation 1612/68

either in order to claim this export.

The ECJ limits the right to equal treatment for social advantages to these advantages

having a close link with the status of worker, only for former workers, whereas the AG

proposes in Hartmann case to do it for all frontier workers, including those who are still

economically active.

We will now have to wait for the ECJs view on the AGs position, and then we will

return with details on this case.

Text of the ECJ judgment

Text of the AG opinion

Jun
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Hosse [2006]

June 23, 2007 |Leave a Comment

In this case, Mr Hosse, of German nationality, is a frontier worker employed in Austria asa teacher in the Province of Salzburg. He pays taxes and social security contributions in

Austria and is affiliated to sickness insurance in that State. He resides in Germany, near

the Austrian frontier, with his daughter Silvia Hosse, who is severely disabled. In thosecircumstances, an application was made for a care allowance under a law of the Province

of Salzburg for Silvia Hosse. The application was refused on the ground that under that

law the person reliant on care must have his main residence in the Province of Salzburgin order to receive the care allowance.

The ECJ ruled that the grant of sickness benefits should not be conditional on theresidence of the members of the workers family in the Member State of the place of

employment, so as not to deter Community workers from exercising their right tofreedom of movement. It would therefore be contrary to theRegulation 1408/71 to

deprive the daughter of a worker of a benefit she would be entitled to if she were resident

in that Member State.

The ECJ concluded that, if Silvia Hosse fulfils the other conditions of grant, she canclaim from the competent Austrian institution payment of a care allowance such as that at

issue, in so far as she is not entitled to a similar benefit under the legislation of the State

in whose territory she resides.

Text of the ECJ judgmentText of the AG opinion

Jun

22

Commission v Netherlands [2007]

June 22, 2007 |1 Comment

In this case, a number of EU citizens were sentenced to imprisonment in the Netherlands.They complained to the Commission about the measures taken against them by the Dutch

authorities declaring them undesirable on public policy grounds.

After examining those complaints, the Commission concluded that the general legislationof the Netherlands relating to foreign nationals, which was equally applicable to nationals
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of other Member States, made it possible to establish a systematic and automatic

connection between a criminal conviction and a measure ordering expulsion from the

territory.

The ECJ started its reasoning by reiterating that EU citizenship was destined to be the

fundamental status of nationals of the Member States. After that it ruled that the situationin this case was not consistent withDirective 64/221.

In fact, the ECJ by continuing its reasoning on Article 18 EC Treaty reminded that anational of a Member State might, simply by virtue of being an EU citizen, enjoy a right

of residence in another Member State. The ECJ held however that this right was not

unconditional. Among the limitations and conditions, Directive 64/221 permitted

Member States to expel nationals of other Member States from their territory on groundsof public policy or public security, subject to compliance with the substantive and

procedural safeguards laid down by that directive and with the general principles of

Community law.

An interpretation to the effect that the provisions of Directive 64/221 applied only to

citizens of the Union who were lawfully resident on the territory of the host Member

State was not consistent with Community law.

According to the ECJ, EC law also precludes provisions of national law based on apresumption that nationals of other Member States who have received a particular

sentence for specific offences must be expelled.

The ECJ conclusion was that the national legislation made it possible to establish a

systematic and automatic connection between a criminal conviction and a measure

ordering expulsion in respect of EU citizens.The Netherlands thereby failed to fulfill itsobligations underDirective 64/221.
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