Breach of 2004/38/EC: how to value compensation amounts?

Directive/2004/38/EC wrote:

SRAQAI wrote:I have just re-read the email sent to me by my caseworker. He is referring to French legislation, not the EU Directive. Are we not still covered under the Directive.... i am sure

Not sure specifically what the email says.

But for the most part, Directives do not have direct effect in a country so long as they are correctly transposed into National Legislation and does by the deadline specified in the Directive.

So it appears as it was not transposed correctly in this case (if French legislation does indeed require some kind of visa for residence card application) and therefore should have direct effect. I bet there were some ECJ case law on this shortly after the transposition deadline.

It's the three month visa you need, end of story. Anything else they tell you is just more delaying tactics, if you apply for long term then they'll tell you it's your own fault for applying for the wrong visa.
Embassy staff are not trained to deal with EU regulations because they don't want them to deal with EU regulations. The members of staff at the embassies who do know the laws will blatantly lie to you, this is a fact and has not just happened in my case but others that I know of.
No one at the EU is interested in these laws being implemented correctly and I mean NO ONE.
They are fully aware of what is going on and that is pretty much all that they will tell you.
They are not doing anything about it and don't seem to be planning on doing anything about it.

My husband and I were due to go to the UK from France for Christmas on Christmas eve, my husband got past the boarding gate then pulled aside by an official and told "your spouse can go but you can't, do you want her to go without you", because he didn't have a visa. By law he did not require a visa.
He had his French residence card and we took our marriage certificate and all other documents jhust in case.
The French authorities would not let my husband through and the British authorities at the other end said they would not accept him.
It was another humiliation for my husband as well as ruining Christmas for everybody.
Again the Eu not interested.
They said that they had had meetings with the British the previous year to sort out these issues as they were fully aware that this is happening.
It is still happening and nothing is being done about it.

skele wrote:My husband and I were due to go to the UK from France for Christmas on Christmas eve, my husband got past the boarding gate then pulled aside by an official and told "your spouse can go but you can't, do you want her to go without you", because he didn't have a visa. By law he did not require a visa.
He had his French residence card and we took our marriage certificate and all other documents jhust in case.
The French authorities would not let my husband through and the British authorities at the other end said they would not accept him.
It was another humiliation for my husband as well as ruining Christmas for everybody.
Again the Eu not interested.
They said that they had had meetings with the British the previous year to sort out these issues as they were fully aware that this is happening.
It is still happening and nothing is being done about it.

Do what this guy did, send a petition to EU Parliament, get a reply from them in writing conforming that visa is not required and use it to make sure it never happens again (also post it publicly after removing your personal info, so others can use it too).
In addition to that if I were you I'd sue them for damages.

Directive/2004/38/EC wrote:

mastermind wrote:[see] Article 10(2) for the exhaustive list of required documents

Article 10(2) lists documents for a Residence Card. While you can hope and assume that the same list applies for entry visas, it is not explicitly stated. I think if it were were explicitly stated, we would not have this problem!

It is specifically an "entry visa" that is issued: Something to enter on.

Article 5 -- Right of entry
1. ...
2. Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement.

Member States shall grant such persons every facility to obtain the necessary visas.
Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.

Does anyone know the source of the coloured language on visas? Does it come from an ECJ decision, or from something from the European Commission?

MRAX & Metock, as far as my memory serves me. The above quoted portion of the Directive comes specifically from the MRAX-ruling at the ECJ whereas the (non-quoted) part about family members not requiring any entry visas at all if accompanying or joining the EU-citizen is from the Metock-ruling.

I am starting to do a little research. First off the little gem of Case C‑68/89 Commission v Netherlands [1991] about border officials and what they can not force you to answer. Same should apply for visa people

skele wrote:It's the three month visa you need, end of story. Anything else they tell you is just more delaying tactics, if you apply for long term then they'll tell you it's your own fault for applying for the wrong visa.
Embassy staff are not trained to deal with EU regulations because they don't want them to deal with EU regulations. The members of staff at the embassies who do know the laws will blatantly lie to you, this is a fact and has not just happened in my case but others that I know of.
No one at the EU is interested in these laws being implemented correctly and I mean NO ONE.
They are fully aware of what is going on and that is pretty much all that they will tell you.
They are not doing anything about it and don't seem to be planning on doing anything about it.

I dont get it. If these countries do not care about the EU, or are not interested in implement the 'rules', then why be a part of it? Whats the point of having all these directives and EU laws etc, when no one wants to implement it?

I opened my email this morning, and I was surprised to see a reply to my dramatic email to one of my MEP's, complaining about my situation. Long story short, as far as the MEP is concerned, I have to be already residing in France, before the EU Directive takes effect. I don't. There is nothing in the directive stating explicitly that the EU Citizen needs to be already living in the EU Country, before my non-EU spouse can join me. I cannot help but think that this particular MEP may have seen my rantings on this issue elsewhere, and probably knew i'd make a song and dance of it, if none of the MEP's respond - especially since I have media contacts. Anyway - she 'sympathized' with my case. Here is her email to me:

"But in order to help, I need to know if you are resident in France or just intending to visit, as this makes a big difference. The EU Directive you refer to, 2004/38/EC only applies (see Art 3) to "Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them."

So the Directive's definition of 'free movement' is restricted to those EU citizens with their families who can show that they live in another Member State other than their own, for example if you as a British citizen had moved to live in France. When that Directive refers to 'treaty rights'having been exercised, it means that the person has changeg their residence to another EU country.

If you are still resident in the UK, you are of course able to travel to France or another EU country without a visa, but they can require your husband to have a visa. There is no right derived from your UK citizenship for your husband to travel visa-free.
The Member State to whom you apply for a visa can unilaterally decide what criteria to impose, within the bounds of Regulation 810/2009 which lays down the EU rules for the issuing of visas.

However, if you do indeed reside in France and communicated this to the French consulate but still had difficulties, then do contact us again.

If you are interested to read in detail about the visa processing criteria EU Member States must follow, you can study the Visa Processing Handbook produced by the European Commission in 2010, see HERE. It explains for example on page 47 which documents should be submitted in support of an application for a visa."

This is the document she is referring me to:

http://ec.europa.eu/home-affairs/polici ... 620_en.pdf

I don't know why the MEP thought that I didnt know that my husband needed a visa. He does need a visa, but they wouldn't give him one. Now am stuck. Do nonEU Spouse NOT have the right to holiday in EU with their non-EU Spouse? Surely this is wrong?

SRAQAI, your MEP is clearly not familiar with the Directive 2004/38/EC (especially the "right of entry" part). http://eur-lex.europa.eu/LexUriServ/Lex ... 048:EN:pdf
Also, inform her that you are not "just intending to visit" but that you intend to move and exercise your treaty rights over there.

mastermind wrote:SRAQAI, your MEP is clearly not familiar with the Directive 2004/38/EC (especially the "right of entry" part). http://eur-lex.europa.eu/LexUriServ/Lex ... 048:EN:pdf
Also, inform her that you are not "just intending to visit" but that you intend to move and exercise your treaty rights over there.

Not just the directive - I do not think she knows the concept of 'travel' within the EU - 'travel' is not limited to 'traveling' in order to 'live' there 'permanently', travel also means traveling for leisure.... but am bit concerned about the quote from the directive she quoted to me. I cannot find anything in the directive that explicitly states that that non EU Spouses are able to travel for a 'vacation' or similar to EU. The only thing there is, right the right of residence for upto 3 months. Does going to visit EU fall into the category ir 'residence in EU up to a period of 3 months'?

I am going to reply to her say that yes, I am planning to reside in France. I am going there to reside for 3 weeks. I am actually going only to visit with my husband, because we want to decide whether to move to the US for my graduate studies, or to Paris. We want to check out areas to live, I want to visit some institutions and my husband wants to see how hard it will be to find a job there, whilst I study. This is why we want to visit initially. According to the directive, what I am doing is exercising my treaty rights to live in France upto a period of 3 months. I dont think the directive recognizes 'holidays'

SRAQAI wrote:I cannot find anything in the directive that explicitly states that that non EU Spouses are able to travel for a 'vacation' or similar to EU. The only thing there is, right the right of residence for upto 3 months. Does going to visit EU fall into the category ir 'residence in EU up to a period of 3 months'?

What do you think? If you were Resident in on the south coast of France for a week, would that do for your vacation?

Read through http://eumovement.wordpress.com/2007/06 ... -question/

SRAQAI wrote:According to the directive, what I am doing is exercising my treaty rights to live in France upto a period of 3 months. I dont think the directive recognizes 'holidays'

It does not need to recognize holidays.

It recognizes whatever-the-heck-you-want-to-do, as long as it is within the 3 months of arriving. You can watch TV, or stay in bed, or go to Eurodisney for weeks on end, or you can work.

And then if you want to stay longer than three months, you need to be doing the work/study/self sufficient things...

Directive/2004/38/EC wrote:

SRAQAI wrote:I cannot find anything in the directive that explicitly states that that non EU Spouses are able to travel for a 'vacation' or similar to EU. The only thing there is, right the right of residence for upto 3 months. Does going to visit EU fall into the category ir 'residence in EU up to a period of 3 months'?

What do you think? If you were Resident in on the south coast of France for a week, would that do for your vacation?

Read through http://eumovement.wordpress.com/2007/06 ... -question/

This palava is ridiculous I swear to God.... Really wanna kick someones mule, sorry mind my french.... and then pun...

someone's mule? I didnt write that! lol

Directive/2004/38/EC wrote:I would record things as follows...


You also need to think about the opportunity cost of not having the visa. So for instance if you would have taken a specific high paying job if you had the visa, but you could not take the job, then you figure out how much that would have paid you.

This is very interesting, I have a question though. How can one justify the opportunities they have lost only beacuse they could not get to the member state for 4-6 months as a reason of visa rejection and the appeal procedure? There could have been 100s of jobs which he or she could have missed because they dont have access to the local news paper,market or websites etc?

I am literally on the same boat and any suggestions would be great help.

...

newbieholland wrote:

Directive/2004/38/EC wrote:I would record things as follows...


You also need to think about the opportunity cost of not having the visa. So for instance if you would have taken a specific high paying job if you had the visa, but you could not take the job, then you figure out how much that would have paid you.

This is very interesting, I have a question though. How can one justify the opportunities they have lost only beacuse they could not get to the member state for 4-6 months as a reason of visa rejection and the appeal procedure? There could have been 100s of jobs which he or she could have missed because they dont have access to the local news paper,market or websites etc?

I am literally on the same boat and any suggestions would be great help.

I think its more of a guessing game. I think if you really want to be precise, you could see how many jobs in your field were advertised, note the figure, then calculate the salaries of one of them, (as if you got the job) and multiplied it by the number of months that you could not get into the member state - so in your case 4-6 months. This amount could be claimed as compensation, I guess.

In regards to access to the job market, whilst outside france - I am sure many newspapers have online versions (I know, maybe its hard to know, which one's are local and popular for job hunting!), there is also the french version of the Jobcentre - http://www.pole-emploi.fr/accueil/ they list many local jobs, so you can use their website to see what jobs are available. I think you can search according to location in France. Let me know how you get on.

I also got a 3 page letter from my caseworker today, which my husband needs to present to the french embassy, when he applies for his visa. It details how and why my husband has the right to enter france, under both EU and national french law and I am hoping this will make them issue the visa fast, if not - next stop is the courts, I guess

SRAQAI wrote:
I think its more of a guessing game. I think if you really want to be precise, you could see how many jobs in your field were advertised, note the figure, then calculate the salaries of one of them, (as if you got the job) and multiplied it by the number of months that you could not get into the member state - so in your case 4-6 months. This amount could be claimed as compensation, I guess.

Well it gets more interesting here. What if you dont manage to get a job after coming to the member state for a few months? Does that nullify you really could have lost opportunities because of the 6 months delay. Even if the member state agrees they are at the wrong they are not liable to pay the compensation due to the circumstances. How can one decide what you have lost in 6 months time on waiting and fighting for something you should have got in one day. I dont wanna be melodramatic but is there any value for human life and time in this immigration game?

newbieholland wrote:I dont wanna be melodramatic but is there any value for human life and time in this immigration game?

To determine that value (to set some precedents) people affected should really start suing bureaucrats for damages.

I suppose you also made a complaint to the EU Commission, because they are breaking EU law by denying you your EU rights.

Found on this page:

http://ec.europa.eu/eu_law/your_rights/ ... rms_en.htm