Persons in EU Law:
Workers = employed
Establishment = self-employed persons.
EU Citizens = not (necessarily) economically active.
Can be employed, self-employed or not economically active (EG: students).
Third-Country Nationals = all persons not citizens of an EU member state.
Can derive certain rights from EU citizens.
EU Citizenship:
Citizenship as Status and as Rights:
Citizenship can be seen as the ideal of belonging to a ‘community’, carrying a certain status or privilege.
In this sense, ethno-cultural narratives emerge. Serious risks of exclusion and othering can arise with these narratives.
Citizenship can also be seen as a conglomeration of political, economic, and social rights.
This approach typically also includes duties (EG: military service, obligation to vote).
Origin, Scope and Meaning:
Citizenship was not mentioned at start of the European integration project in the Treaty of Rome. The Maastricht Treaty (1992) marked a shift of the EU from an economic ‘Community’ to a political ‘Union’.
Strong shift in narrative on the purpose of European integration.
Note: this is also same time that EU treaty first mentions fundamental rights and begins to address the longstanding problems with the democratic deficit.
European Citizenship was introduced as both a special status and source of rights.
The question of whether the EU is a to be seen as a state arose for the first time. Never before had citizenship been granted from something that wasn’t a state.
At first, EU Citizenship was thought to be nothing more than merely a fluffy political declaration. Over time, its importance rose.
Art 20 TFEU:
‘1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties…’
Derivative and Supplementary Concept:
EU citizenship derives from citizenship in member states. A national of a member state will automatically be an EU citizen.
EU citizenship is additional to national citizenships and ‘shall not replace it’. It is merely added onto national citizenship.
Similar to dual citizenship.
‘clearly secondary to national identity … an additional layer of belonging and rights, under certain conditions.’ [1]
Control:
Member states remain free to decide who is a national citizen and who is not. [2] Therefore, member states largely have the power to decide and control who becomes an EU citizen.
However, revocation of nationality must comply with the principle of proportionality if the loss of national citizenship would also result in the loss of EU citizenship. [3]
Rights of EU Citizens in Legislation:
Art 21 TFEU – to move and reside freely in the EU.
Art 22 TFEU – to vote and stand in EP and municipal elections.
Art 23 TFEU – to consular/diplomatic protection.
Art 24 TFEU – to petition the EP and create Citizens’ Initiatives.
Art 18 TFEU – non-discrimination based on nationality.
EU Citizenship Directive 2004/38:
The EU legislature sought to concentrate EU citizen’s rights.
Under the Directive, the protection of EU citizens’ rights depends on time and financial aspects.
Non-Financially Active:
<3 months: right to residence, only valid ID required (not necessarily passport).
3 months – 5 years: right to residence as long as you are not ‘unreasonable financial burden’ on the host state and has sickness / medical insurance.
>5 years: permanent right to residence and full equal treatment.
Financially Active:
Workers: entitled to equal treatment.
‘EU citizenship is deeply fragmented – citizens do not all derive the same rights from EU law on the basis of their status as an EU citizen alone.’ [4]
‘These rights, in simple terms, become stronger where the mobile European is economically active, and weaker where the mobile European is economically inactive – for example as a student, pensioner or an unemployed citizen.’ [5]
Judicial Developments:
EU citizenship developed from merely a political statement to a fundamental status strongly intertwined with the principle of non-discrimination within the ECJ.
In GRZELCZYK, a student moved to Belgium and sought a benefit only local students were entitled to.
The court states the student is entitled to the benefit, describing EU citizenship as ‘destined to be the fundamental status of nationals of the member states’.
In MARTINEZ SALA, a Spanish woman had lived in Germany since aged 12. She requested a childcare allowance that German citizens were entitled to. German authorities denied this request as she did not have a residence permit (not required for Germans) and was unemployed, so not a worker.
The CJEU characterised the woman as an EU citizen lawfully residing in another EU member state. As such, she comes within the scope of EU law and allows the non-discrimination principle from the Treaties to be engaged. The woman's claim was successful.
‘this makes for a very powerful combination’. [6]
Citizenship rights became directly effective, essentially making them constitutional rights available to all (including non-economically active citizens).
In BAUMBAST, a German living in the UK had medical insurance that covered everything except emergency treatment. The UK required medical insurance that covers emergency treatment.
The ECJ state that Art 21 TFEU (move and reside freely) is directly effective, and any limitations should be interpreted narrowly and must comply with proportionality.
Subsequently, there was a gradual expansion of the case law further extending rights as it became clear that enforcing EU citizenship rights was becoming a means of challenging national restrictions / preference for locals.
Free Movement of Students:
Access to higher education.
In C v AUSTRIA, Austria limited access to higher education for German citizens due to fears that domestic universities would become overwhelmed. It did not have similar restrictions for Austrian students. Following infringement proceedings, the CJEU rules in favour of the German students.
Access to student loans / subsidies.
In BIDAR, a foreign national sought access to student loans in the UK but this was not available to them.
The CJEU ruled this was unacceptable so long as the student was suitably integrated (which he was in this case due to long-term residency in the UK).
‘imposes a specific and highly functional vision of students as prospective workers’ [7]
Restrictions on Names:
Use of foreign family names.
In GARCIA AVELLO, Belgian authorities prevented parents from naming their child using their traditional naming convention (combined surnames of both parents) and only allowed surnaming based on either the name of the mother or the father (but not both). The CJEU ruled this restriction was not justified or proportionate.
Use of foreign signs / letters.
In RUNEVIČ-VARDYN, the Polish state refused to use the correct (diacritic) accents on official documents. This caused a couple administrative difficulties with proving their identity and legal status due to mismatched documents between EU countries. The CJEU ruled in favour of the couple.
Tensions:
‘Welfare Tourism’:
There have been increasing worries about the numbers of migrants coming to EU countries and abusing the welfare benefits available in specific member states.
A Commission report has shown that these concerns are generally unfounded and that, on balance, migrants contribute more to the public purse than they take out. [8]
Only 2.8% of intra-EU migrants do so for welfare reasons.
68% of migrants worked, compared to 65% of member state nationals.
Despite this being factually untrue, it is strong political narrative / ideology. [9] As a result, the EU legislature created a limitation for social benefits. This has been upheld by the CJEU.
EU Citizenship Directive 2004/38:
Art 24(2) – ‘… the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence… nor shall it be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies… consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families.’
In DANO, a Romanian citizen resided in Germany with her (German-born) son to look after her sister’s children. She applied for ‘special non-contributory benefit’ (a basic social assistance benefit without being required to have contributed tax). German authorities refused to grant the woman the benefit, arguing that she was unemployed, non-German and had only lived there for 4 years.
In principle, there ought to be equal treatment with nationals of the member state since the woman was socially integrated (based on the time she had resided in Germany) under the old case law.
The ECJ held that this applies only if residence in the host member state complies with conditions of the Citizenship Directive. Therefore, an applicant must be residing in the host member state for over 3 months and not be an ‘unreasonable financial burden’ if they have been residing for less than 5 years.
Tourt suggested that the right to equal treatment and residence are continually conditional on the mobile citizen having sufficient resources to provide for themselves in a self-sufficient manner (which is circular). [10] D had essentially invalidated her own claim to EU law protection by demanding the benefit that was only available to citizens who did not have sufficient resources.
‘a Member State must […] have the possibility […] of refusing to grant social benefits to economically inactive Union citizens who exercise their right to freedom of movement solely in order to obtain another Member State’s social assistance although they do not have sufficient re-sources to claim a right of residence.’
Explaining the Turnaround: [11]
The migration crisis and Euro crisis may have lead to increased fear over welfare tourism.
Critique:
The Dano ruling marks an end to the CJEU’s progressive jurisprudence.
Current EU law stratifies EU citizens based on class and wealth. The persons most significantly affected are those who come from less privileged backgrounds and are most likely to rely on social benefits.
The ruling ‘responsibalises’ EU citizens, making the onus on them to prove they can provide for themselves.
Limits transnational solidarity and impacts rights.
Third Country Nationals - Rights of Family Members:
People may seek to have EU citizens rights despite not being EU citizens themselves. Generally, this issue falls within national competences. Therefore, third country nationals are subject to domestic immigration laws.
EU Citizenship Directive 2004/38:
Third country nationals can derive rights from family members who are EU citizens depending on relationship (spouses, partners, direct descendants under 21 etc.).
After residing in the EU for over 5 years, a third country national who has derived their right to residence from a family member will be entitled to long-term residence status directly (independent of their partner / child).
In RUIZ ZAMBRANO, Columbian parents of 2 Belgian children were residing in Belgium. Belgian authorities sought to deport the parents. The question of whether the parents had a right of residence arose.
The ECJ state that ‘Art 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union’. A deportation order for the parents would violate EU law because it would de facto mean that the children had to leave Belgium too.
In COMAN, an American married an EU citizen (in a same-sex relationship) and sought to move to Romania. In Romania, same-sex relationships are not legal, so it was questioned whether he could be considered a spouse.
The CJEU held that member states can choose whether to allow same-sex marriages domestically, but they must recognise same-sex marriages formed abroad.
In VMA, a female same-sex couple have a child and were living in Spain and wants a Bulgarian birth certificate. Bulgaria refused as they do not recognise same-sex relationships and ‘rainbow families’.
The CJEU ruled that the applicants can rely on the EU Citizenship Directive and CFR. A member state is not obliged to allow same-sex parenthood in national law but must accept families from other member states. Therefore, Bulgaria must issue the certificate.
In SRS, SRS and AA are first cousins from Pakistan who move to the UK and live with one another. SRS acquires UK nationality and moved to Ireland. The Directive states that family members who are ‘members of the household of the EU citizen’ are protected.
The CJEU rule that the directive applies only where there is more than mere cohabitation for reasons of pure convenience.
Effects of Brexit:
Since EU citizenship is linked to nationality, Brexit results in the loss of EU citizenship status for UK nationals. British citizens will now be third country nationals.
There is some protection in Withdrawal Agreement for those who have moved prior to 1st Jan 2021. After this, regular member state immigration rules apply for all.
In WALKER, an action for annulment was brought against EU legislation exempting UK visitors from short-term visas post-Brexit.
The ECJ ruled the case was inadmissible (due to lack of individual concern) and emphasised that departure from the EU can affect the right of nationals in a ‘considerable’ manner.
In SHINDLER, the ECJ ruled that the Commission does not have a legal obligation to order member states to establish a special status for resident UK citizens.
In PRICE, France prevented UK nationals from being able to stand or vote in municipal elections. An action to annul the Withdrawal Agreement was brought. The case argued that the Agreement leads to removal of EU citizenship for UK nationals without regard for individual circumstances. The ECJ ruled the case was inadmissible (due to lack of individual concern).
In CG, an EU citizen had been living in the UK since 2018 and had pre-settled status granting them the right to reside. The woman sought to apply for Universal Credit. EWCA held that she can. [12] The ECJ say she cannot (applying Dano principle).
‘Associate’ Citizenship:
The idea of ‘associate citizenship’ was proposed to retain special status of UK nationals in the EU and EU nationals in the UK. [13] This would’ve comprised of free movement and voting rights. However, this was rejected.
A new category of ‘former EU citizens’ was also proposed but also rejected. [14]
Resources:
References:
[1] Dawson and De Witte, EU Law and Governance (Cambridge University Press 2022) 152 [2] Case C-369/90, Mario Vicente Micheletti and others v Delegación del Gobierno en Cantabria [3] Case C-135/08, Janko Rottman v Freistaat Bayern [4] Dawson and De Witte, EU Law and Governance (Cambridge University Press 2022) 172 [5] Dawson and De Witte, EU Law and Governance (Cambridge University Press 2022) 151 [6] Dawson and De Witte, EU Law and Governance (Cambridge University Press 2022) 164 [7] De Witte, ‘The Liminal European: Subject to the EU Legal Order’ (2021) 40 Yearbook of European Law 56 [8] Commission Report 2013 [9] Dawson and De Witte, EU Law and Governance (Cambridge University Press 2022) 153 [10] De Witte, ‘The Liminal European: Subject to the EU Legal Order’ (2021) 40 Yearbook of European Law 56 [11] Graph: Blauberger et al., ‘ECJ Judges Read the Morning Papers’ (2018) [12] Fratila v Secretary of State for Work and Pensions [2020] EWCA Civ 1741 [13] See Verhofstadt and Kostakopoulou [14] See Spaventa
Cases Mentioned:
Case C-184/99, Rudy Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve
Case C-85/96, María Martínez Sala v Freistaat Bayern
Case C-413/99, Baumbast and R v Secretary of State for the Home Department
Case C-147/03, Commission v Republic of Austria
Case C-209/03, R (Bidar) v London Borough of Ealing, SS for Education and Skills
Case C-148/02, Carlos Garcia Avello v Belgian State
Case C-391/09, Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija and Others
Case C‑333/13, Elisabeta Dano and Florin Dano v Jobcenter Leipzig; reaffirmed in Case C-67/14, Jobcenter Berlin Neukölln v Nazifa Alimanovic and Others
Case C-34/09, Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm)
Case C-673/16, Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne
Case C-490/20, V.М.А. v Stolichna obshtina, rayon „Pancharevo“
Case C-22/21, SRS and AA v Minister for Justice and Equality
Case C-789/19 P(R), Hilary Elizabeth Walker and Others v European Parliament and Council of the European Union
Case T-458/17, Harry Shindler and Others v Council of the European Union
Case C-709/20, CG v The Department for Communities in Northern Ireland
Commenti