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European Constitutional Law and Swedish National Law. Double-barreled last names and the "qualification principle" for child benefits

Ausarbeitung 2016 19 Seiten

Jura - Europarecht, Völkerrecht, Internationales Privatrecht


Table of Contents

Take-home examination
Question one
Question two

Question one
Lisbon - a constitution?
Competences of the legislative branch – Institutions and procedures
Limits of legislation
The democratic legitimacy of decision-making in the EU
The statehood criteria

Question two
1. The child benefit
1) Scope of EU law
2) Breach
3) Justification
4) Proportionality
2. The double-barreled name
1) Scope of EU law
2) Breach
3) Justification
4) Proportionality test
3. Conclusion


Take-home examination

Question one

“That the [European] Union still is no state and assumedly will not turn into a state in the years to come is not […] due to a lack of power, state people, or territory. […] The reason is simply the lack of a founding will on the side of the Member States.”

Discuss to which extent the EU shares the characteristics of a state and whether the Treaty of Lisbon forms a constitution for that state. By referring to relevant Treaty provisions and case law, elaborate on the principle of the separation of powers and the competences of the legislative branch. Take into consideration developments regarding the protection of fundamental rights.

Question two

Jane and Jacob sat at the dinner table, Elsa fast asleep in Jane’s lap, and wondered what to do next. Did they have any chance against the administration? Should they insist on the name that they chose for Elsa? Should they pursue the claim for full child benefits? This “qualification principle” seemed wrong somehow … Jacob felt guilty … if only he had changed his address …

Jane Brown and Jacob Larson met in 2005 in Sweden, where they were both Erasmus students. At the time, they were finishing their studies at their home universities in the UK and in Denmark. Jacob had Danish citizenship. Jacob’s father, Johan, was Swedish, and Jacob became fluent in Swedish as a child. The parents divorced and Johan moved to Stockholm. Jacob grew up with his Danish mother in Denmark. After high school, he enrolled to the Copenhagen Business School. He decided to take his Erasmus semester in Stockholm to spend some time with his father, his Swedish wife Maria and their two children. During his stay in Sweden, he lived with his Swedish family. He never bothered to acquire a Swedish passport. He never felt he would gain anything just by having one. Besides, he really felt more Danish than Swedish.

After a semester in Sweden, Jacob returned to Denmark, where he stayed with his mother for several months. Then he stayed with Jane in England, working on his master thesis. He graduated in August 2006 and settled in Stockholm. He quickly found work with a Swedish consultancy company.

Jane, who was English, joined Jacob in Stockholm in autumn 2006 and, not speaking Swedish, she enrolled in an MBA program in Stockholm, which was offered in English.

To finance her MBA studies, Jane worked part time in a café. The couple took a large loan and Jane’s family offered financial help. Jane was juggling her studies and her job, working anywhere between 10 and 25 hours per week, and although she picked up Swedish from Jacobs’ friends and family and well-meaning customers and colleagues at the café, she didn’t really get a good grip of the language and never enrolled in a Swedish class. For her MBA program, Swedish seemed entirely irrelevant.

Just before graduation in spring 2008, Jane gave birth to Elsa. She put school on hold. She had already quit her part time job while pregnant because she found the evening shifts and irregular working hours too exhausting. But mainly, it was because she wanted to do as much work on the MBA as possible before the baby was born.

Elsa’s full name, the couple decided, would be Elsa Amalie Brown-Larson. The family thought it was rather unusual if not weird for Elsa to have a double-barreled name, combining the last names of both parents, but Jacob insisted and registered Elsa at the Tax Agency. He also applied for a Danish passport for Elsa.

Jane was informed that they were entitled to child benefits. Indeed, the officer at the Social Insurance Agency was very helpful and a few weeks later, Jane received a check for 1500 SEK. In the meanwhile, the administration registered Elsa as Elsa Amalie Brown Larson, however, Larson being the surname, and Brown the middle name. There was no hyphen.

Jacob thought that middle name and last name were not one and the same thing, and inquired into the reasons for the decision. He was told that the rules in Sweden, governing family names, did not allow for hyphenated names. In any case, the officer remarked, bemused, what’s in a name….and then, half apologetically, how much ado could a hyphen stir?

In the meanwhile, Jane realized that they did not receive the full amount of child allowance, but only 75% of the full amount, because apparently, she and Jacob were subject to “a qualification principle.” The latter was introduced on 1 January 2004, and meant that the recipient of child benefits must have resided or worked in Sweden for two years (at the time of the child’s birth) in order to be eligible for full benefits. The changes meant that you earned the right to 25% of the full benefits after six months of residence or work in Sweden, 50% after one year and 75% after one and a half year. After two years of uninterrupted residence or work in Sweden, you had earned the right to full benefits.

Answer the following questions. Spell out the arguments that support your answer, in a clear and concise fashion.

1. Are the Swedish rules, denying Jacob and Jane full child benefits after nearly two years of work and legal residence in Sweden, contrary to EU law?
2. Should the couple insist on a double-barreled last name for Elsa? Are the Swedish rules, which preclude the double-barreled name, contrary to EU law? Keep in mind that Elsa has Danish citizenship, and resides in Sweden.

Question one


There are several terms describing the EU and its character. By view of the ECJ, the Union constitutes an „independent source of law“[1] and a „new legal order of international law“[2]. Regarding the Treaty, Art 2 TEU states that the EU is based on the rule of law, while Art 47 TEU confers legal personality on it[3]. Albeit these terms are inviting to respect the Union as a state, that conclusion is anything but consistently accepted. The ongoing discussion regards questions on whether it can meet the criteria of statehood and whether the Treaty of Lisbon forms its constitution. As constitution and statehood depend on the possession of power and the establishment of limitations to it, these are the central issues which will be elaborated on in the following. Thereby critique arises as to the Unions democratic deficit being a constraint to its character as a state and thus outlined here as well.

Lisbon - a constitution?

The functions of a constitution can be drawn as follows: it has to authorise organs to enact and enforce law directly binding on the citizens, define the law making procedures and establish limits to the powers of the authorized organs.[4] Summarising, a constitution is „the means by which the structure of a political system is defined“[5].

Competences of the legislative branch – Institutions and procedures

The Treaty determines as the main legislative organs the Council and the European Parliament[6], acting as co-legislators in the ordinary legislative procedure (Art 289 TFEU). However, as a basic principle, the Commission has a right of legislative initiative, „whenever the 'Community Method' applies“[7] („gold standard“[8] ). This is stated in Art 17 (2) TEU making the adoption of legislative acts dependent on the Commission's proposal. Moreover, power to implement legislative measures is conferred on it through the establishment of Delegated (Art 290 TFEU) and Implementing Acts (Art 291 TFEU). Introduced with the Lisbon Treaty and replacing the old comitology, they significantly changed terms of procedure, legal basis and institutional balance.[9]

The Treaty does also consist of sources of primary as well as secondary law coming under the „supranational features of direct effect and primacy“[10] and thus both being binding not only upon the MS, but also on citizens as far as directly applicable.

Limits of legislation

a. rights of citizens

Today, fundamental rights are „firmly anchored“[11] in the constitutions of most states, especially the MSs of the EU. Besides, numerous conventions on their protection exist, in particular the European Convention on Human Rights[12]. As provided for in Art 6 TEU, the ECJ is guaranteeing fundamental rights by relying on national traditions and drawing from the ECHR as a „special source of inspiration“[13]. It thus established a body of case law serving as a framework of fundamental rights.[14] As a third source, the ECJ developed general principles of EU law, serving as an unwritten bill of human rights and being a primary norm of Community law.[15] The Court states that the respect for fundamental rights forms an integral part of the general principles of Union law.[16] Its protection shall be inspired by the constitutional traditions common to the Member States[17] as well as international human rights agreements.[18] By contrasting the Charter of Fundamental Rights with the Treaty, the former holds status of lex generalis, introducing a general protection of human rights, the latter consequently being regarded as lex specialis. Yet, reaching the same level of protection seems to be a challenge to primacy, especially concerning constitutional traditions being guidelines for a standard of protection. Thus, drawing from the ECHR is preferred, as it reflects „collectively shared commitments of all Member States“[19].

Case law shows an increasing willingness of the Court to emphasize the priority of fundamental rights over secondary EU legislation and even norms of international law.[20] Looking at the Treaty, an accession to the ECHR is foreseen in Art 6 (2) TEU. While this has not happened so far, the anticipated advantages are essential: while indirect review of Community acts by the European Court of Human Rights[21] via the „Bosphoros-test“[22], checking inter alia the uniform level of protection, would be replaced by direct review, a common culture of fundamental rights within the EU could be created. Regarding that the number of cases dealing with human rights before the ECJ are exponentially growing, accession would harmonize the development of case law and thus mutual influence of the ECJ and ECtHR. However, the ECJ is still concerned to maintain autonomy, while the ECtHR is not likely to compromise.[23]


[1] Costa, 585, 593; Internat. Handelsgesellschaft, 1125, para 3.

[2] Van Gend, 1, 12.

[3] ERTA, para 13.

[4] Griller, Is this a Constitution?, p. 30.

[5] Borchardt, ABC of EU law, p. 29.

[6] EP.

[7] Griller, p. 32.

[8] Craig&de Burca, p. 122.

[9] EIPA Essential Guide, Delegated and Implementing Acts, p. 4.

[10] Griller, p. 43.

[11] Borchardt, p. 24.

[12] ECHR.

[13] C&dB, p. 362.

[14] Borchardt, p. 25.

[15] Kadi & Al Barakaat.

[16] Int. Handelsgesellschaft.

[17] MS.

[18] Nold.

[19] C&dB, p. 369.

[20] Kadi I/II.

[21] ECtHR.

[22] Bosphoros v. Ireland.

[23] C&dB, p. 404.


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Titel: European Constitutional Law and Swedish National Law. Double-barreled last names and the "qualification principle" for child benefits