EU Citizenship EU Law Notes PDF

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EU CitizenshipEU Citizenship was not provided for in the Maastricht Treaty as part of the attempt to move from a mainly economic community to a political union. The Lisbon Treaty subsequently linked EU Citizenship more closely to the prohibition on discrimination on grounds of nationality. The Treat...

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EU Citizenship EU Citizenship was not provided for in the Maastricht Treaty as part of the attempt to move from a mainly economic community to a political union. The Lisbon Treaty subsequently linked EU Citizenship more closely to the prohibition on discrimination on grounds of nationality. The Treaty grants citizenship to those who are nationals of an EU Member State. This is a rapidly expanding area of EU Law. TEU Introduced a new concept of European Citizenship. Now contained within Article 20 – 24 of the TFEU which provides that “every citizen holding the nationality of a MS shall be a citizen of the Union.” Rights attached to this, Free movement, Stand for election, Vote in elections – municipal and European Parliament and Rights of Residence. Citizenship of the Union shall be additional to and not replace national citizenship. Art 21 TFEU: Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States (subject to set limitations and conditions). Art. 20 TFEU Two most important features, are that one must be a national of a member state to be a European Citizen; and EU citizenship is additional to but does not replace national citizenship. Micheletti, ECJ stated that Member States are not entitled to question the status of a person who holds dual citizenship in terms of being a citizen of a member state and a non-member state once they can provide proof of nationality of a member state. The ECJ held that once an individual established EU citizenship by showing citizenship of a Member State, that it was not open to another Member State to challenge that status or to refuse to recognise it as this would undermine the rights and freedoms associated with EU citizenship and would mean that whether dual citizens would benefit from such citizenship would vary from Member State to Member State. Rottmann v Bayen, addressed the question of whether withdrawal of nationality on the grounds of deception falls within the scope of EU law or is purely a matter of national law. The ECJ held that member states “when exercising their powers in the sphere of nationality have due regard to EU law.” While member states have “the power to lay down the conditions for the acquisition and the loss of nationality... the exercise of that power.. Is amenable to judicial review carried out in light of EU law.” In this case, as it was a proportionate response to a legitimate interest of state-good faith between a state and its nationals and reciprocity of rights and duties which form the bond of nationality. Baumbast v Secretary of State for the Home Department, the ECJ established that Art.20(1) confers a directly effective right on EU citizens to reside in a host member state whether they are employed or self- employed. Any legislative or other conditions or limitations on the rights of residence and movement of EU citizens must be interpreted so as to avoid disproportionate interference with the rights.

The Citizenship Directive Was adopted to codify in “a single legislative act” the various secondary sources governing the free movement of persons (Schutze). It was designed to lay down in a horizontal manner, the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union Citizens and their family members. Art. 2, defines family members. Art. 3, defines other family members for Member States must “facilitate entry and residence” other family members, irrespective of their nationality. Art. 12/ 13, provides for the retention of right of residence in event of death/ divorce/ end of registered partnership. Finally, Art. 24 provides equal treatment guarantee, union citizens, who had the right of permanent residence, entitled to equal treatment to nationals of the Member State; this extends to their family members also. Residence in another Member State for periods of Three Months or less: Art. 6, EU citizens and their family have a right of residence for up to three months subject only to the possession of a valid passport/ identity card. Under Art. 14(1) this right of residence can be withdrawn if they become an unreasonable burden on the social welfare system of the host State. Excludes self-employed or unemployed persons who have a genuine chance of finding work from the “unreasonable burden” conditions for expulsion. Dano C-333/13, the Court confirmed the link between lawful residence and equal treatment. Found that she had stayed in Germany for longer than three months but fewer than five years; and she could therefore only qualify for the second class of residency right; yet she was neither economically active nor in possession of “sufficient resources”. The Court found that she did not enjoy residency rights under Art.7. For that reason she also could not claim social benefits. Permanent Residence Under Art. 16(1) of the Directive, continuous legal residence for at least 5 years entitles a person to permanent residence. Art. 17 outlines that a person is entitled to permanent residence without having the five years residence: retired workers/ self employed, permanently incapacitated workers/ self-employed with two years residence or workers/ self-employed persons with three years residence who also work in another member state but return to host member state at least once a week. Baumbast v Secretary of State for the Home Department, the ECJ acknowledged that the limitations and conditions laid down in the Directive were based on the primacy of the legitimate interests of Member States over the exercise of the right of residence of the citizen. However, those limitations must be applied in accordance with EU Law and the general principles and proportionality. In this case, they found that the refusal of a right of residence (solely due to his sickness covering emergency treatment but neither he nor his family were a financial burden on UK State) was a disproportionate interference with the exercise of that right. Movement and Residence within the EU Art. 3 of the Directive provides that the Directive: “Shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national...”

Therefore, it is clear that the right of residence under the directive is linked to one moving out of the member state of nationality. This linking of residence with movement with the right to reside is reflected in both the wording of Art. 20 TFEU with the belief that the Art. 20 rights of movement and residence cannot be invoked in a “wholly internal situation”. Art.21(1) refers to possible limitations and conditions on this rights. Conditions of Residence The conditions that may permissibly be places on MS on the exercise of EU citizen’s rights of residence and movement may be divided into three categories. Short-term residence, an EU citizens may reside in another MS for a period of up to three months without complying with any formalities, other than valid ID. 3 family members. MS facilitate entry and/or residence in a MS under Article 3(2) CRD to dependants? Can Article 3(2) of the Directive have direct effect? Must dependent family members have resided in the same State as the EU citizen before the EU national moved to the host MS? ◦ Can a MS impose particular requirements as to the nature or duration of dependence? MS must confer a certain advantage to the applications for entry and residence to family members included in Article 3(2), not required to grant all applications and must make an extensive examination of the personal circumstances of the applicants --> wide discretion. Article 3(2) does not have direct effect ---> the applicant still has a right to a judicial review of whether the national legislation and its application satisfy those conditions the situation of dependence must exist in the country from which the family member comes when he applies to join the Union citizen. MS may establish in their legislation requirements as to the nature or duration of dependence as long as they are consistent with the normal meaning of “dependence” under Article 3(2) and do not deprive it from its effectiveness. Can be applicable to tuition fees and assistance provided to students lawfully resident in the host MS to cover their maintenance cost. MS may in principle not discriminate on grounds of nationality with regard to social assistance to students from other MS, financial solidarity with nationals of other MS However: MS may reject requests for student grants and loans to EU citizens who cannot prove a certain degree of integration in the host MS. A 5-year continuous residence requirement was not considered excessive (Case C-158/07 FWrster) ‣ now possible under Article 24(2) CRD to require permanent residence for the entitlement to maintenance aid for studies...