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Free Movement of Persons: CitizenshipEU Citizenship- New legal (legal conquences) concept -> The Maastricht Treaty 1992- Powerful tool for the protection of the individual- Move from mainly economic community to a political unionWho is an EU citizen?Article 20(1) TFEU:- ‘Every person holding the ...

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Free Movement of Persons: Citizenship

EU Citizenship

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New legal (legal conquences) concept -> The Maastricht Treaty 1992 Powerful tool for the protection of the individual Move from mainly economic community to a political union

Who is an EU citizen? Article 20(1) TFEU:

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‘Every person holding the nationality of a Member States shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.’

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A new route to citizenship -> linked with national citizenship

Who defines the conditions of MS nationality?

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MSs are entitled to define conditions for o acquisition/loss of nationality MSs controls who enjoys EU citizenship, rather than the EU MSs needs to recognize one another’s citizens as EU citizens Case C-369/90 Micheletti

“...it is not permissible for the legislation of a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty.” Member States controls who is an EU citizen not the EU itself. But the MS can not set additional conditions to EU citizens to meet certain rights.

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Can the EU intervene? Case C-135/08 Rottmann • Austrian professional moves to Germany; escaping arrest (accused of fraud) • Gains German citizenship by naturalization; causing him to lose Austrian citizenship • German authorities discover his deception in the application and witdraw naturalization; risking him being stateless Court: • Loosing nationality would effect his rights as an EU citizen • The power of MSs to set the conditions for loss of nationality, in so far as it affects the rights protected by EU law is subject to judicial review in the light of EU law. Held: The judgement confirms that a Member State of the European Union may withdraw its nationality, granted by way of naturalisation, from a citizen of the Union, when that person has obtained it by deception, even if as a consequence the person concerned loses his citizenship of the Union because he no longer possesses the nationality of any Member State. In such a case, however, the withdrawal decision must observe the principle of proportionality.

New rights? Article 20 (2) TFEU Includes; - Right to move and reside freely within the territory of the MSs (Art. 21); - Right to vote and to stand as candidates in elections to the European Parliament and local elections (Art. 22); - Right to consular and diplomatic protection outside the EU (Art. 23); - Right to petition to European Parliament and to apply to European Ombudsman; right to address the institutions and advisory bodies of the Union in any of Treaty languages and to obtain a reply in the same language (Art. 24)

Right to move and reside Article 20(2)(a) TFEU: Citizens of the Union shall have ‘the right to move and reside freely within the territory of the Member States’. Article 21 TFEU:

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‘1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.’

Limitations? Directive 2004/38 (Citizenship Directive)   

Codifies some of the case law Enhanced rights of free movement; covering EU citizens rights to move/reside freely Balance between enhanced rights for free movement and protection of national welfare systems

Residency Rights under CD Right of residence- for up to 3 months Conditions: • to hold a valid passport or ID card (Art.6/1) • not become an unreasonable burden on social assistance system of the host MS (Art. 14/1)

Right of residence- for over 3 months The person should fit one of the below categories:

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Art.7/1(a) Worker or self-employed person (economically active)

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Art.7/1(b) EU nationals who are not workers (economically inactive)

(a) Have sufficient resources and (b) Have comprehensive sickness insurance

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Art.7/1(c) Students (economically inactive)

(a) Enrolled at a private or public establishment, accredited or financed by the host Member State, and (b) have comprehensive sickness insurance, and (c) have sufficient resources for themselves and family members not to become a burden on the social assistance system

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Right of permanent residence Condition: To reside legally continuously for 5 years (Art.16/1)

Independent right of residence under Art. 21 Case C-413/99 Baumbast

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German and Colombian couple + children living in the UK Baumbast starts working in Asia, but family remains in the UK UK rejects renewing residence permit, because he is no longer a worker Family has resources and sickness insurance, but the sickness insurance does not cover emergency treatment in the UK Baumbast invokes rights as an EU citizen under Article 21(1) TFEU

Court:

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Directly effective; thus grants general movement rights As a national of a MS and, consequently, a citizen of the Union, and he has the free standing right to reside based on Article 21(1) TFEU The scope of the citizenship provisions does not depend on economic status Slight shortfall in the health insurance should not undermine his right to reside; disproportionate in the context of family rights/ individual circumstances

Beyond Residency: Right to Equal Treatment? Article 18 TFEU: ‘Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.’

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No explicit link between equal treatment and citizenship in the Treaty Case 85/96 Martínez Sala (Spanish national living in Germany, got her residence permanent, applied for childcare support, but the authorities declined her benefit, she was not economically active.) -> Court establishes the link

It follows from Article 20 of the TFEU that EU citizens enjoy the rights ensured by the Treaties, and this includes protection against discrimination on ground of nationality enshrined in what is now Article 18 of the TFEU

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Now also regulated under Article 24 of the Citizenship Directive

Citizenship Directive Art. 24 1. EU citizens are entitled to equal treatment regarding benefits on the territory of another Member State 2. Except  during their first three months of entry,  if they are job-seekers,  or if they are seeking student grants before five years residence.

Residency & Equal Treatment Rights under CD

Residency Rights

Equal Treatment Rights

Conditions: Right of residencefor up to 3 months

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to hold a valid passport or ID card (Art. 6/1) Art. 24/2 Derogation not become an unreasonable burden on social Not entitled to social assistance system of the host assistance MS (Art. 14/1)

• Art.7/1(a) Worker or self-employed person (economically active)

•Art. 7/2(b) EU nationals who are not workers (economically inactive) Right of residencefor over 3 months

(a) have sufficient resources and (b) have comprehensive sickness insurance

Full equal treatment

Art.24/2 Derogation Job Seekers: • Not entitled to social assistance; • Exception for labour market benefits (Vatsouras )

• Art.7(c) Students (economically inactive) Art.24/2 Derogation (a) Enrolled at a private or public establishment, Not entitled to student accredited or financed by the host MS, and grants (b) have comprehensive sickness insurance, and (c) have sufficient resources for themselves and family

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members not to become a burden on the social assistance system

Right of permanent Condition: residence To reside legally continuously for 5 years (Art.16/1)

Full equal treatment

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Certain degree of solidarity Case C-184/99 Grzelczyk (minimum subsistence allowance)   

French national studying in Belgium, supporting himself for 3 years of study For the final year he applies for minimex Denied: He is not a Belgian national and no longer satisfied the conditions of residency (does not have sufficient resources) Court:

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Union citizenship is destined to be the fundamental status of nationals of the MSs Article 18 TFEU should be read in conjunction with EU citizenship provisions MSs should show certain degree of solidarity, unless it constitutes an unreasonable burden Grzelczyk can retain right to reside & is entitled to the minimex

*Controversial case as it forces the MS to show solidarity*

Job seekers allowance Restrictive reading of social assistance for job seekers Joined Cases C-22/08 and C-23/08 Vatsouras and Koupatantze – Held: Following Case 53/81 Levin [1982] ECR 1035, the fact that the income from employment is lower than the minimum required for subsistence does not prevent the person in such employment from being regarded as a ‘worker’ within the meaning of Art. 45 TFEU. Following Case C 3/90 Bernini [1992] ECR I 1071, the duration of the employment could also not prevent the employment from falling under Art. 45 TFEU, as long as the overall assessment of the employment relationship indicated a genuine status as 'worker'. “benefits of a financial nature which, independently of their status under national law, are intended to facilitate access to the labour market cannot be regarded as constituting ‘social assistance’ within the meaning of Article 24(2) of Directive 2004/38.”

Purely internal situation

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In the absence of cross-border element EU law rights of movement and residence cannot be invoked

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Court gives a restrictive definition of a purely internal situation

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What is a purely internal situation? Case C- 148/02 Chen

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Mrs. Chen, a non-EU citizen living & working in the UK, gives birth to Catherine in Belfast

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Mrs. Chen deliberately travels to Northern Ireland to give birth, where Catherine could automatically obtain Irish citizenship by being born on the island of Ireland

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Mrs. Chen asks for permanent residence permit in the UK relying on Catherine’s citizenship

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British authorities reject Mrs. Chen’s application

Court:

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The fact alone that Catherine has not exercised her rights did not mean that it was a purely internal situation

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The child has the right to reside by reason of being an EU national Denying Mrs Chen’s right of residence would deprive the child’s residence right

What is a purely internal situation? (Cont.) Case C-34/09 Zambrano

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Non-EU citizen parents seek asylum in Belgium (not granted asylum, but also not deported)

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Children are Belgian citizens Mr. & Mrs. Zambrano’s application for residence permit denied Mr. Zambrano becomes unemployed, seeks unemployment benefits; also denied No movement from one MS to another

Court: A refusal to grant residence to parents would have the effect of depriving the citizens of the Union (the minors) of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens Stricter Approach

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Requirement of lawful residence under CD for equal treatment ( Dano) Social integration requirement ( Bidar)

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Large differences between social systems of Member States – Balancing social rights v. welfare tourism? Redefinition of job seekers allowance (Alimanovic) Purely internal situations (McCarthy&Dereci)

Lawful residence is essential for equal treatment Case C-333/13 Dano -> connection between equal treatment and lawful Residence

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Romanian national living in Germany She has not worked in Germany, and is not looking for work either Applies for unemployment benefits

Court: Ms Dano does not fulfil the conditions for right of residence in another Member State as defined in Directive 2004/38 (did not fall into one of the categories under Article 7), thus she could not invoke the equal treatment rule. Compare with: Case 85/96 Martínez Sala 1998 Held: (Lived in Germany since 1968 came as a 12 year old.) The Court of Justice held that Ms Sala should have got the allowance, because it was discriminatory to require an EU citizen produce a residence permit which the national did not need to provide. 62 Article 8(2) of the Treaty attaches to the status of citizen of the Union the rights and duties laid down by the Treaty, including the right, laid down in Article 6 of the Treaty, not to suffer discrimination on grounds of nationality within the scope of application ratione materiae of the Treaty.

Social integration requirement The Court introduces the first condition: Social integration Case C-209/03 Bidar (study finance)

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French national, lawful resident in UK Completes his secondary schooling in London; takes courses at UCL; seeks financial assistance for maintenance Denied: not ‘settled’ in the UK

Court:

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Article 18 TFEU should be read in conjunction with EU citizenship provisions MSs can limit the access to assistance only to those who have demonstrated a certain degree of integration into the society of that MS

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He can retain right to reside Compare with: Case C-184/99 Grzelczyk

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The Grand Chamber of the Court of Justice held that Bidar could not be denied the student loan on the basis that he did not have settled status.

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Bidar was an EU citizen, lawfully resident under TFEU art 21, in conjunction with the Persons of Independent Means Directive 90/364 (now the Citizens Rights Directive article 7(1)(b)). He satisfied those conditions.

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He was entitled under TFEU art 18 to social assistance benefits, and these included maintenance costs through subsidised loans or grants. Student assistance fell within the treaty scope. The English rules were indirect discrimination.

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It was legitimate for a member state to grant assistance only to those with a degree of integration. The three year rule was compatible with EU law, but the requirement to have settled status was not, because it was impossible for a student from another member state to obtain it.

Contours of a genuine link Certain degree of integration can be evaluated through a residence permit C-158/07 Förster

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Förster (German citizen) moves to the Netherlands in 2000, enrols for training as a teacher

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Initially works and receives financing for higher education

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Becomes unemployed between July-Dec 2003, ordered to repay excess sum for this period Financing depends on integration requirement of five years uninterrupted residence

Court: ‘A condition of five years uninterrupted residence is appropriate for the purpose of guaranteeing that the applicant for the maintenance grant at issue is integrated into the society of the host Member State.’ Compare with: Case C-184/99 Grzelczyk Job seekers allowance is social assistance Case C-67/14 Alimanovic • A Swedish national (and her daughter) worked in Germany briefly before they became unemployed

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• Apply for unemployment benefits Court: The benefits at issue are ‘social assistance’ within the meaning of Article 24(2), as their predominant function is to cover the minimum subsistence costs necessary to lead a life in keeping with human dignity, rather than facilitating access to the labour market. Compare with: Joined Cases C-22/08 and C-23/08 Vatsouras and Koupatantze!

What is a purely internal situation? Case C-434/09 McCarthy

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A British & Irish national who has always lived in the UK Claims residence right for her non-EU national husband British authorities reject the application No movement from one MS to another

Court:

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By contrast to the case of Zambrano, the national measure does not have the effect of obliging Mrs. McCarthy to leave the territory of the EU

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Due to the fact that she can enjoy her rights arising by virtue of her status as a Union citizen, Mrs. McCarthy’s situation has no connection with EU law and is covered by national law

Compare with: Case C- 148/02 Chen, Case C-34/09 Zambrano

What is a purely internal situation? Case C-256/11 Dereci

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Set of cases concerning adult children or spouses of EU citizens Austrian authorities reject to grant family members right to reside No movement from one MS to another

Court:

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Zambrano criterion does not apply EU citizen are not forced to leave the EU territory when the family members are not granted right to reside

Compare with: Case C- 148/02 Chen, Case C-34/09 Zambrano

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General assessments:...