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EU law II lecture 7 - Citizenship

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Theodore Konstadinides

on 29 March 2014

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Transcript of EU law II lecture 7 - Citizenship

Article 45 TFEU / Regulation 1612/68 as replaced by 492/2011

e.g. persons from MS of origin seeking access to the labour market in another MS.

Equal treatment BUT Art. 45 (3), (4) TFEU & Objective Justifications
Self Employed (Establishment)

Article 49 TFEU / Directive 2005/36
e.g. self-employed having exercised freedom of movement from MS of origin to another MS - settling on permanent & continuous basis.
Equal treatment BUT Art. 51 & 52 TFEU & Objective Justifications
So far…we have considered ‘market citizens’ who participate and benefit from common market.

Self Employed (Service Providers & Recipients)

Article 56 TFEU / Directive 2005/36 / Directive 2006/123

e.g. Provider: self-employed providing inter-state services of commercial nature in return for remuneration. Recipient: medical tourists; ‘tourists’.

Equal Treatment BUT Art. 62 TFEU (same as 51 & 52 TFEU) & Objective Justifications
The notion of EU Citizenship was first presented in the Treaty of Maastricht (1992). This ‘resolved to establish a Citizenship common to nationals of all EU Member States’.

No need for EU citizens to pursue a professional or trade activity, whether as employed or self-employed in order to enjoy the rights provided in Art 21 TFEU.

Severance between migration and economic activity?

Cross border movement seems to be the key – BUT...what happens to those who have never exercised their right to free movement?
Rights granted by national citizenship : rights, duties, membership & participation.

Protection from the state by basic civic & social rights
Right to move freely within the state
Duty to obey the laws of the state
Right to suffrage (electoral)
Right to receive welfare protection
NATIONAL CITIZENSHIP
compare with...
CJEU adopts a non-discrimination approach
Joined Cases 65 and 111/95 ex parte Shingara and Radion: EU Citizenship removes the link with economic activities or attainment of the internal market and raises it to an independent right.
CJEU TELEOLOGICAL REASONING
CJEU recognises Direct Effect of Article 21 TFEU but this does not create a generalised right for all EU Citizens.
i) the right to non-discrimination (Art 18 TFEU) extends to every EU Citizen lawfully resident in the territory of a host MS (Art 21 TFEU) and ii) a benefit previously granted only to workers should be granted to persons other than workers!
First time CJEU uses the notion of EU Citizenship to extend the rights of EU Citizens under the Treaty.
French student (economically inactive) during his 4th year at University in Belgium. Applied for ‘minimex’ but Belgium said NO as neither Belgian nor worker.
The CJEU found that Articles 18 and 21TFEU precluded entitlement to a non-contributory benefit, such as the minimex, from being made dependent on a condition that did not apply to nationals of the host Member State.

CJEU recalled:

i) its (implicit) finding in Grzelczyk that a social benefit falls within the scope of application of the Treaty.

ii) "a citizen of the EU who is not economically active may rely on Article 21 TFEU where he has been lawfully resident in the host MS for a certain time....”

Mr. Baumbast was a German national who, after having worked in the UK, was employed by German companies outside the EU. UK refused to renew his residence permit as he did not qualify as a migrant worker and did not satisfy the conditions for a right of residence.

Still his family lived in the UK and his children went to school.

The family was allowed to remain in the UK even when the father ceased to work.

The determining factor is whether the deportation of a parent would constitute a disproportionate interference with the right to respect for family life (Art. 8 ECHR).
(See
C-60/00 Mary Carpenter
, C-127/08 Metock)
C-200/02 Zhu & Chen
DEROGATIONS
CJEU has established that EU citizens, enjoy a right of residence in another MS.

Such right of residence is not unconditional....See Directive 2004/38 Art. 27, 28, 29, 30, 32, 33

Directive 2004/38 permits MS to deport nationals of other MS on grounds of PP, PS, PH subject to procedural safeguards laid down by EU law and the general principles of EU law (proportionality, non-discrimination, human rights).

EU law precludes automatic connection between a criminal conviction and a measure ordering expulsion in respect of EU citizens => now codified in Directive 2004/38, Art. 27) BUT see Case C-348/09 P. I. - no protection against expulsion / no integration into society (1987-2006 free / 2006-2012 in prison).
Although not a derogation per se...the term is used 5 times in the Directive (Art. 7 twice; 12; 13; 14)

Art 8 (4): ‘Member States may not lay down a fixed amount which they regard as ‘sufficient resources’ but they must take into account the personal situation of the person concerned. In all cases this amount shall not be higher than the threshold below which nationals of the host MS become eligible for social assistance or…higher than the minimum social security pension paid in the host MS.

Commission Report on D. 2004/38 COM (2008) 840/30: ‘12 MS have transposed the notion of ‘sufficient resources’ incorrectly or ambiguously. Problems relate mostly to setting a minimum amount regarded as sufficient and failure to take the decision on the basis of personal circumstances. [Certain MS] have detailed guidelines on how to assess the notion of "unreasonable burden".’

See C- 22 and 23/08 Vatsouras vs Art. 24(2), D.2004/38: CJEU held that once economic activity ceased, a worker or self-employed person would retain their status for at least 6 months (and possibly longer if they were seeking work and had a real chance of finding it) and is entitled to social assistance.
SUFFICIENT RESOURCES?
PUBLIC POLICY, SECURITY & HEALTH
EU CITIZENSHIP
ECONOMIC MIGRANTS
SOCIAL ASSISTANCE
FAMILY
LEGAL FRAMEWORK
EARLY CASE LAW
LATTER CASE LAW


Art. 20 (1) establishes EU Citizenship and Art. 20(2) together with Art. 21-25 TFEU make clear that EU Citizens enjoy rights of movement and residence conferred by the Treaty and have a number of rights.

General & electoral rights: civic rights (participation in the local and EP elections); social & economic rights (freedom of movement & equal treatment); joint diplomatic protection in 3rd countries; right to petition the EP & apply to Ombudsman; citizens initiative.

BUT....limited rights (migrant EU Citizens can still be deported under Directive 2004/38) & limited duties (e.g. we don't pay taxes, participate in defence, vote in national elections).
PRIMARY LAW
SECONDARY LAW
Case 193 / 94 Skanavi v. Chryssanthakopoulos: First judgment discussing EU Citizenship. CJEU refused to discuss the application of Art. 21 TFEU.

CJEU concluded:

i) Art. 21 TFEU sets out generally the right of every EU Citizen to move and reside freely within the territory of the MS and

ii) Art. 21 TFEU is residual and secondary to the more specific right of establishment (Art. 49 TFEU).
Case 214/95 Boukhafka: ‘The Court has not yet had an opportunity to give a ruling on the new concept of European Citizenship…every citizen of the Union must, whatever his nationality, enjoy exactly the same rights and be subject to the same obligations’.
EU CITIZENSHIP
ECONOMIC MIGRATION
Distinction between economically active citizens AND those who fall into more marginal categories such as the unemployed, students, job-seekers, etc.
Self Employed (Establishment) - permanent

Article 49 TFEU / Directive 2005/36

Equal treatment BUT Art. 51 & 52 TFEU & Objective Justifications
INFLUENCE: US. Articles of Confederation, Article IV (1776)“...to secure and perpetuate mutual friendship and intercourse among the people of different states in this union, the free inhabitants of each of these states shall be entitled to all privileges and immunities of free citizens in the several states.”

The US federal system attracted many European admirers.

Churchill’s “United States of Europe, if well and truly built, (that) will be such as to make the material strength of a single state less important.”
WHY EU CITIZENSHIP?
EU Citizenship was also influenced by numerous developments:

i) The protection of human rights at EU level
ii) The formation of EP
iii) The instituting of formal EU Citizenship by Maastricht (1993)
v) the incremental jurisprudence of the CJEU
Case C-369/90 Micheletti: ‘Nationality & EU Citizenship are inseparable & superimposed’.

Case C135/08, Rottmann: Being a national of a MS is the condition sine qua for acquiring EU Citizenship = derived condition of nationality. Acquisition and withdrawal up to MS.
CONNECTION OF NATIONALITY WITH EU CITIZENSHIP
No child raising allowance since Sala was neither German nor resident. CJEU held that this limiting condition discriminates and comes within the scope of the Treaty.
C-85/96 Martínez Sala
Case C-184/99 Rudy Grzelczyk:
C-413/99 Baumbast
C-456/02 Trojani
maintenance loan / financial assistance?

UK asked CJEU whether assistance (including maintenance costs for students) falls outside the scope of the Treaty (see Case 39/86 Lair and Case 197/86 Brown).

CJEU held that a national of a MS who lives in another MS must receive such assistance as long as s/he has demonstrated a certain degree of integration into the society.
C-209/03 Bidar
C-11/06 and C-12/06 Morgan
STUDENTS
The condition laid down in German law subjecting education grants to a requirement of continuation between studies pursued abroad and those pursued previously for at least one year in an establishment in Germany infringes Article 21 TFEU.
Member States have exclusive competence as regards the content of education (or immigration) and the organisation of their respective education systems
BUT... national legislation which places citizens at a disadvantage simply because they have exercised their freedom to move and to reside in another MS constitutes a restriction on the freedoms conferred by Article 21 TFEU
Case C-413/99 Baumbast
C-310/08 Ibrahim and C-480/08 Teixeira
ARTICLES 18-25 TFEU
DIRECTIVE 2004/38
ARTICLE 18 TFEU
Ms Teixeira (Portuguese) had worked in the UK but was no longer economically active.

Ms Ibrahim (Somali) had come to the UK to join her husband, a Danish national who was working in the UK. The husband had ceased working and had left the UK.

Both were ineligible for homeless assistance - they did not have a right to reside in the UK.

UK argued that in order to rely on Baumbast, it is necessary for the person to have sufficient resources so as not to become a
burden
on social assistance.

CJEU held against the UK! but the right of residence of the primary carer ends when the child reaches the age of majority...(18)
"A refusal to allow the parent (carer of a child to whom Article 21 TFEU and Directive 2004/38 grant a right of residence) to reside with that child in the host MS would deprive the child’s right of residence of any useful effect.

It is clear that enjoyment by a young child of a right of residence necessarily implies that the child is entitled to be accompanied by the person who is his or her primary carer....”
If the MS is trying to safeguard a legitimate interest it should make sure that the measure does no got beyond what is necessary and appropriate to attain that objective.

See most recently Case C-208/09, Sayn Wittgenstein.
OBJECTIVE JUSTIFICATIONS
Protection / Respect for Family Life / Protection of Primary Carer
The ‘Citizenship Directive’ complements the rights under the Treaty (See Art. 2, 6, 7, 8, 16, 18). Consolidates CJEU case law.
BUT...still certain gaps re:
Human rights (Art 7 EU Charter & Art 8(1) ECHR - re: family life)

Nationality (Rottmann)

Self–sufficiency? (Vatsouras; Ibrahim; Teixeira)

Third Country Nationals (Metock; Zambrano)

Abuse of rights (Art.35, Directive 2004/38)
Directive 2004/38 - Art. 2, 3
INTERNAL SITUATIONS ??
8 March 2011, Mr. Gerardo Ruiz Zambrano, a Columbian citizen, invokes a right to residence in Belgium although he does not have a work permit for employment there - two of Mr. Zambrano’s children are Belgian nationals and therefore also EU citizens.

See Chen (2004): similar rights of a parent linked to the exercise of EU rights (FREE MOVEMENT)

In Zambrano, CJEU affirmed that derivative rights for 3rd country national parents - primary carers for a child-EU citizen apply also in the country that has granted citizenship to the child. (NO MOVEMENT EXERCISED)
C-34/09 Zambrano
Shirley McCarthy, UK national never exercised her free movement rights under the Treaty.

After her marriage to a Jamaican national, she applied for an Irish passport and obtained it.

Her husband applied for a UK residence permit as the spouse of an EU citizen.

The application was refused because Mrs McCarthy could not base her residence on EU law and invoke that law to regularise the residence of her spouse, since she had never exercised her right to move and reside in MS other than the UK.

On 5 May 2011, the CJEU held that D. 2004/38 is not applicable to Mrs McCarthy.
Case C-434/09 McCarthy
COMPARE...
WITH...
Case C-256/11, Dereci
the genuine enjoyment test
Mr Dereci is a Turkish national who entered Austria illegally and married an Austrian citizen. He and his wife had three children, all of whom are Austrian citizens and minors. Mr Dereci is currently resident with his family in Austria.
‘Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status’ [para. 64]
Is Zambrano meaningless in its application to adult citizens?
On 15 November 2011, the CJEU held that Directive 2004/38 was not applicable to third country nationals who apply for the right of residence in order to join their EU citizen family member (who has always resided in the MS of which s/he is national).

what then, qualifies as genuine enjoyment of the substance of EU citizenship?

The CJEU mentioned again the Zambrano test: denial of the genuine enjoyment of the substance of the rights refer to “situations in which the EU citizen has in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.”
Article 8(1) of the ECHR?
THE CROSS BORDER CASES
NON-CROSS BORDER CASES
* See Now the European Citizens Initiative - Art. 11 (4) TEU
ESTABLISHMENT
SERVICES
WORKERS
Lecture 7
Non Economic Migration: EU Citizenship
Dr Theodore Konstadinides
Part of a growth package?
Look at Article 20 TFEU - 'additional to and not replace national citizenship'
'EU citizenship directly affects all the holders of this status, as it offers Europeans a radically broadened horizon of opportunities and in this sense seriously contributes to liberty in the Union through empowering individuals.' (Kochenov, 2013 ICLQ)
Did the Maastricht Treaty “appropriate the deepest symbols of statehood: European citizenship, defence, foreign policy”?

OR it rather created...

...a parallel notion of citizenship, one that would “embrace the national in the in-reaching strong sense of organic-cultural identification and belongingness” (Weiler, 1999)
Question Time...
AG Sharpston stressed that Art 20 and 21 TFEU shall preclude a German ‘three-year rule’ residency requirement, which stated that a citizen had to be resident in Germany for three years prior to the start of their course.
C-523/11 and C-585/11 Prinz and Seeberger
To cut a long story short...
Case C-127-08
Metock
Only EU citizens who have exercised their right of free movement fall within the scope of the Treaty or D2004/38.

The CJEU has held that "accompany or join" in Article 3(1) D2004/38 includes 3rd country nationals who reside with their EU citizen spouses in the host MS irrespective of whether the 3rd country national entered the host MS before or after the marriage.
Any such
refusal
shall not lead, for the EU citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify.
the EU citizen must be in a situation where he ‘has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole’.
EU law does not preclude a MS from
refusing
to allow a 3rd country national spouse of a citizen who has never exercised his right under Art 21 TFEU.
Genuine Enjoyment....a matter for national courts
Citizens and their families
Full transcript