This author shall seek to advise Karl and Karina concerning the legality of their

treatment by the Danish and German authorities. This author shall address three
issues: the denial of Karl’s request for a special benefit concerning vocational training
by the German authorities, the denial of Karina of her residence card and the denial of
the child benefit to their child.

Firstly, I shall address the denial of Karls' request for the special vocational training
benefit. The first question one must ask is whether Karl is a citizen of the European
Union? As a citizen of Denmark, which is a member state of the European Union, he
falls within the definition offered by Article 20 TEFU1 and article 2 of the citizenship
directive2 .

The second question one must answer is the status of Karl as a worker under EU law.
This is essential because EU Law has a key demarcation between migrant EU citizens
who are economic active (such as workers) and those who migrate under Article 21
TEFU(free movement of persons). Article 45(1) of the TEFU grants all union citizens the
right to migrate and undertake employment in any member state. Article 18 of TEFU
supports this right by prohibiting any discrimination on the basis of an EU citizen’s
nationality. Therefore if Karl is a worker under EU Law he will have greater rights.

The European Court of Justice has defined worker as “a person perform services for
and under the direction of another person in return for which he receives
remuneration3 . Karl does not fall within this definition, as he is not engaged in
employment yet but seeking work. However the court has extended the definition in
Collins v Secretary of State for work and pensions4, to include those attempting to
enter the Labour market. The assertion that Karl is a worker gains further support from
article 7(3(d) of citizenship directive which states that those, such as Karl, who
undertake vocational education related their previous occupation. Therefore one can
only reach the conclusion that Karl is a worker. One of the rights which is attached to
worker status, is the right of non-discrimination by member states in access to social
advantages5. The ECJ defined social advantages in the case of Even6 as “[granted]
because of their objective status as workers or by virtue of the mere fact of their
residence on the national territory.”

One can argue that this benefit is not a social advantage, as this is not a benefit which
is granted to all Germans, so not falling within the second limb of the definition. Also
it's not granted because of one's objective status as a worker, in fact the opposite is
true, and those without employment are only eligible. This analysis is flawed as it
ignores ECJ's rationale in Hartmann and Hendrix in interpreting the Even definition of
social advantages in order to offer the greatest possible freedom of movement for
migrant workers7. Any assistance in access to the labour market, such as a special
benefit, is clearly a social advantage related to a certain economic activities. Without
such a broad definition, such benefits could cause a disparity between migrant
workers and host nationals ability to access the local Labour market. This could
discourage the exercising of the key freedom of European citizenry, thus limiting the
true integration of Europeans as people. Given this, such a benefit is clearly a social
advantage.

Now one must question the legality of the denial of cars request for this social
advantage. The denial was based upon the notion that Karl does not have a 'real link'
1 The Treaty of the Functioning of the European Union
2 See Directive 2004/58/EC article 2(1)
3 See Para. 26 of Collins v Secretary of State for work and pensions[2003] ECR-2703
4 See F.n. 3
5 See article 7(2) of Directive 1612/68/EC
6 [1979]
7 See Para. 52 of Hendrix[2007] ECR -6909
to the local Labour market, which must be proven by having fluency in German.
Further such fluency must be attested to by a state exam and unless one has
completed his secondary education in Germany. This prima facie is illegal as it
disadvantages those who were not born are educated in Germany, most like non-
German EU Citizens, by burdening them with the exam, despite the possibility of
offering evidence of their fluency which was acquired abroad. Such a disparity
violates equal treatment requirements of Art 24 of the Citizenship Directive and Art 18
of TEFU as indirectly discriminatory towards migrant workers as defined by the ECJ in
O'Flynn 8 . This analysis is supported by the ECJ’s recognising of prima facie case of
discrimination on the basis of language in Groener v Minster of Education9.

However, if German authorities can objectively justify the measure is achieving a

legitimate aim and doing so in a proportionate manner then the discrimination shall
not be in violation of article 18 TEFU. Authority for this can be found within O'Flynn10.

The German authorities can argue that the legitimate aim is the avoidance of “benefit
tourism”, where EU citizens abuse their right of freedom of movement to exploit the
social Security systems of member states. Thus requiring a genuine link to the
community is the best way of avoiding such malfeasance and language is a key
component of community relations, therefore requiring non-Germans national to take
a state exam is a justifiable measure. Secondly, article 24 of the citizenship directive,
has a clear degradation for claiming social assistance in the first three months, while
scenario above does not place a timeframe upon when the benefit was claimed, it is
possible justification for the denial of Karl's request.

This author accepts that preventing in in social security systems is a legitimate aim,
supported by the European Court of Justice in Collins and Vatsouras11, furthermore the
court recognised the genuine link test as a justifiable measure. Yet the application of
the test is too inflexible as it does not respect the language education of other
member states education systems. This includes nations that also speak German is
thier first language, such as Austria. Without this degree of flexibility and the burden it
places upon EU citizens disproportionately by requiring them to undertake a task
which may be redundant depending on the language proficiency. Therefore the
inflexibility of the requirements makes the measure disproportionate and therefore not
compatible with article 18 TEFU.

The second argument concerning a derogation from equal treatment requirements

concerning social assistance in the first 90 days of an EU migrants residence, the ECJ
in Vatsouras12 stated that now EU citizenship has been established, the ability for a
member state other disproportionately assist in accessing the labour market to its
nationals will not be tolerated. Therefore, assistance in accessing the labour market
through developing one's human capital is not social assistance, thus article 24(2)
does not apply.

Now one has to address Karina’s denied residency permit by the Danish authorities.
Firstly we must ask if Karina is an EU Citizen. As Karina is married to an EU citizen
(Karl), Article 2(2a) of the citizenship directive clearly states she possesses EU
citizenship. However, the Danish authorities allege that the marriage is one of
convenience with the sole intention of abusing the immigration system of member
states. However, member states must be deferential towards fundamental rights,
specifically the right to family and the right to marriage, protected by articles 7 and 9

8 [1996] ECR I-2617

9 [1989] ECR 3967
10 See Para. 19 of the Judgement.
11 [2009] All ER (EC) 747
12 See Para 37 of the Court’s observations
of the EU Charter of fundamental Rights. The Charter requires the European court of
justice as a European Union institution to fully give effect to the fundamental rights
protected when reasoning its decisions.13 Furthermore now European Union is
becoming a signatory of the European convention on human rights and fundamental
freedoms, the European court of justice will have to give full effect to Strasbourg
jurisprudence. Further prior to the full binding status of the Charter, the European
court of justice stated in Commission v Germany 14, that Aricle 8 and 12 must be
respected because of the General principles of EU Law. Therefore one should study
European court of human rights analysis of article 12 (the right to marry, equivalent to
article 9 of the charter). Indeed, an instructive discussion can be found in the
European Court of Human Rights decision in O’Donoghue v United Kingdom15. The
ECtHR made clear assertions concerning the doctrinal importance of article 12 and
that while combating marriages of convenience is legitimate and not an interference
with the right, to do so in a manner which was arbitrary or unfair would be a violation
of article 12. This has an important bearing on the exercise of the powers given to
Member States by Article 35 of the citizenship directive. Therefore Denmark has to
satisfy heavy evidentiary burden in order to respect Karina’s and Karl’s article 9 right.
The fact matrix above does not suggest that they can prove to such height that the
marriage was entered into as a fraud upon the Danish immigration system. Thirdly the
Danish authorities allege that Karl and Karina’s marriage is not a functioning
relationship because of their separation, because Karl needs to fulfil his obligations to
his employer in Germany, therefore they do not share lives together. However this
allegation is not a legitimate ground for denying their marriage, as stated in the
European court of justice in the case of Diatta v Land Berlin16. The reasoning was that
cohabitation was required then the third country national spouse, rights as an EU
citizen would be tremendously fragile. Indeed the right could be terminated if the EU
citizen expelled their spouse from their marital home. This is unacceptable, as it does
not offer an adequate level of protection. Secondly, there are serious doubts about
article 8 ECHR compatibility with such a rationale for denial. However, the Danish
authorities will state that the marriage is not valid because they do not recognise
marriages where the spouses who are not an EU citizen, who do not pass a very strict
Danish language test. Yet such a mandatory requirement, prohibiting all marriage
between Danish nationals and Third country nationals but for passage of this exam
seems incompatible in light of O’Donoghue. The ECtHR clearly stated that a scheme in
the United Kingdom which required, approval for third-party nationals to marry UK
citizens and had to pay a fee was not only discriminatory (it favoured the Anglican
faith by imposing less burdensome restrictions) but also disproportionate going
beyond its aim of preventing sham marriages. This is because it took no attempt to
distinguish between marriages of convenience and sincere couples. Therefore the
measure not only clearly impaired the right of marriage thus a clear infringement 17
and could not be justified by the margin of appreciation.

This author would contend that the Danish requirement of a strict language exam is
also disproportionate and a clear, impairment of the right to marry. If the aim of the
test is the prevention of marriages of convenience then it is clearly a disproportionate
measure that showed no difference towards fundamental rights. This is because it is
an absolute requirement; it does not consider disabilities (such as dyslexia) nor
personal ability in language acquisition. Therefore the language test requirement is a
violation of article 12 of the ECHR and Thus art 9 of the Charter. This makes the test
unlawful under the citizenship directive because it is disproportionate measure in
13 See article 51 of the charter
14 [1989] ECR 1263
15 [2010] App. 34848/07. See Para. 82
16 [1985] ECR 567
17 See Para.82 of the court decision
regards of fundamental rights and thus ultra vires of Article 35. Therefore one can
establish that the accusations made by the Danish authorities are unfounded de facto
and de jure, it is clear that Karina is the spouse of an EU citizen.

This entitles Karina, under article 20 of the citizenship directive, to automatically

receive a residence card, within the first six months of her presence within the
member state. Article 20 has no degradation is available. The only avenue open to
the Danish authorities is an expulsion order. Article 27(2) of the citizenship directive
proclaims that an individual must present a “genuine, present and sufficiently serious
threat affecting one of the fundamental interests of society”.

The Danish authorities do not identify current fundamental interest which Karina Is
interfering with. Her criminal past has not followed her to her new life in Denmark,
thus one cannot find any conduct on her behalf which is so unreasonable that it would
satisfy the test above. Moreover article 27 specifically states that one cannot rely on
previous criminal convictions as a stand-alone reason to satisfy the fundamental
interest test. Therefore the Danish authorities must grant Karina her residence card in
order to comply with article 20.
Finally, one must consider the Danish authorities denial of the child benefit for this
family's child.
In order to qualify for this benefit the parents of the child that must be either legally
resident or working in Denmark. The Danish authorities deny that Karl lives in
Denmark and state that Karina is illegally present within Denmark.

As this author stated above Karina is the beneficiary of citizenship as outlined in article
2 of the citizenship directive and there is no lawful reason to deny her access to the
benefit. Therefore a violation of article 24 of the directive, as it clearly provides
protection against family members suffering discrimination and so is unlawful.

Furthermore, the denial of Karl's request for the child benefit may constitute a
violation of article 45 TEFU. The legal base for this assertion is the case of Ritter-
Coulais18, where the European Court of Justice found if those violation of article 45 if a
member state discriminating against cross border workers in its tax code. The case
facts concern the writing off of lost income from living in their letting property in
France for their liability in German income tax. The ECJ found it discriminatory and
clear disadvantage for cross-border workers if they could not write off tax liabilities
which those who worked and lived in Germany could. This is an analogous situation, as
either the Danish authorities are mistaken concerning Karl's abode or their
discriminating against Karl exercising his right of free movement to engage in
economic activities. This discrimination arises because if he resided in Germany but
worked within Denmark he would qualify for the child benefit. In so doing the Danish
authorities were violate the protection of the equal treatment for social advantages as
child benefit clearly falls within the Even definition, and he is being economically
disadvantaged engaging in cross-border work.

Denmark may respond the community principles should not apply here because this
author has stated that both nationals are Danish and therefore this is an internal
matter. However the ECJ in Ritter-Coulais19 stated that cross-border migration of the
purposes of engaging in employment was sufficient economic activity to require the
intervention of community principles; therefore the aforementioned argument is not
inhibited by this objection and so Danes are required to allow Karl access to the child
benefit for the family.

This author concludes that Karl is entitled to the special benefit the vocational

18 [2006] All ER (EC) 613

19 See Para. 48
education, Karina should be granted residency card and their child should be a
recipient of child benefit, for the reasons stated above.