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 Post subject: Decision of European Court of Justice
UNREAD_POSTPosted: August 19th, 2013, 2:06 pm 

Joined: January 27th, 2012, 9:52 am
Posts: 245
I thought the following summary of a decision of the European Court of Justice and the Opinion of the Advocate General posted on the European Union Observatory on Democracy's (EUDO) website's webpage on Italian Case Law may be of interest to some readers/followers of this forum. Apologies if they have already been posted previously. I did some searching to determine if they had and I didn't see any indication that they were.

With virtually no business impediment applicable to citizens of any member state to setting up a business in another member state it would seem to add impetus to secure recognition of one's Italian Citizenship.

It seems odd that all the other cases listed deal with citizenship issues of Italian Women. Most notably those who are forced to deal with the "1948 Rule".

For those of you who are being forced to deal with the 1948 Rule or are interested in delving deeper into the subject matter here is the link: ... ntry=Italy

You can read the full text of some decisions which, except for the one summarized below, are in Italian.

Case C-369/90 Mario Vicente Micheletti and others v DelegaciĆ³n del Gobierno en Cantabria

Facts and judgment

Mr Micheletti had Argentinian and Italian nationality. On 13 January 1989 the Spanish Ministry of Education and Science officially recognized Mr Micheletti` s university degree in dentistry under a cultural cooperation agreement between Spain and Argentina. On 3 March 1989, Mr Micheletti applied to the Spanish authorities for a temporary Community residence card, submitting for that purpose a valid Italian passport issued by the Italian Consulate in Rosario, Argentina. On 23 March 1989, the Spanish authorities issued the card requested, which was valid for a period of six months. Before the expiry of that period, Mr Micheletti applied to the Spanish authorities for a permanent residence card as a Community national in order to set up as a dentist in Spain. That application and a subsequent administrative appeal were dismissed, whereupon he brought proceedings before the national court for the annulment of the Spanish authorities` decision, recognition of his right to obtain a Community national`s residence card enabling him to practise as a dentist and the issue of residence cards for the members of his family. The Spanish authorities` decision was based on Article 9 of the Spanish Civil Code, according to which, in cases of dual nationality where neither nationality is Spanish, the nationality corresponding to the habitual residence of the person concerned before his arrival in Spain is to take precedence, that being Argentine nationality in the case of the plaintiff in the main proceedings. The Court held: The provisions of Community law concerning freedom of establishment preclude a Member State from withholding that freedom from a national of another Member State who at the same time possesses the nationality of a non-member country, on the ground that the legislation of the host State deems him to be a national of the non-member country. Whenever a Member State, having due regard to Community law, has granted its nationality to a person, another Member State may not, by imposing an additional condition for its recognition, restrict the effects of the grant of that nationality with a view to the exercise of a fundamental freedom provided for in the Treaty, particularly since the consequence of allowing such a possibility would be that the class of persons to whom the Community rules on freedom of establishment were applied might vary from one Member State to another.

Provision concerned

Articles 3(c), 7, 52, 53 and 56 EEC (Arts 11, 19, 26, 27, 14, 49, 50 and 52 TFEU)

Opinion of the Advocate General

Advocate General G. Tesauro (30/01/1992): The Advocate General argued that possession of the nationality of a Member State is the only prerequisite which an individual must satisfy in order to be able to exercise the right of establishment, a prerequisite which is governed by the national law of the State concerned. It follows that the issue of the permanent residence card may not be made conditional on fulfilment of a further requirement such as actual residence (or a similar criterion) - instead, it is sufficient for the applicant to be a national of a Member State in the aforesaid sense, in other words that he should be recognized as such by the national law of the Member State concerned. Therefore, one must rule out the possibility of denying the right of establishment to a national of a Member State on the sole ground that he also holds the nationality of a non-member country and was last resident in that country. Once it has been established that the person in question is a national of a Member State, there is no other factor or criterion which must or may be taken into consideration.

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