Citizenship of the EU

8/17/2019 Citizenship of the EU

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CITIZENSHIP OF THE EU

Free movement rights are also extended to the non-economicall active !eo!le on

the "asis o# the !rovision o# citi$enshi!%

&'TIC(E )* OF THE T'E&T+ ON THE FUNCTIONIN, OF THE EU'OPE&N UNION TFEU. states/

… Every citizen 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.

There are vario0s rights enoed " the citi$ens o# the EU as !rovided 0nder &'TIC(E

)*). OF THE TFEU%

Ho2ever3 the most im!ortant is the right to move and reside #reel in the territor

o# the 4em"er State%

&'TIC(E )1 OF THE TFEU ela"orates on &'TIC(E )*% It s!eci5call !rovides that/

Every citizen of the Union shall have the right to move and reside

freely within the territory of the Member State subject to the

conditions and limitations laid down in the reaties and by the

measures adopted to give them e!ect.

The incor!oration o# Citi$enshi! !rovisions 2ithin EU Treaties give rise to several

60estions regarding their li7el im!act% Some o# these 60estions are identi5ed

"elo2/

&0tonomo0s and 8irectl E9ective 'ight

Did the Treaty provisions on citizenship create an autonomous and directly

efective right to move and reside in a Member State, regardless o

whether the person alls within any other status category o EU law

This 60estion 2as addressed in :&U4:&ST 2hich esta"lished that &'TIC(E )*1. OF THE

TFEU con#ers a directl e9ective right on EU citi$ens to reside in a host 4em"er

State regardless o# 2hether the are em!loed or sel#-em!loed%

The main overall im!act o# &'TIC(E )*1. 2as to move the #ree movement rights o#

s0ch citi$ens #rom a legislative #ooting to a Treat #ooting% This move had some

signi5cant legal conse60ences3 since the EC; r0les that the "limitations and


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conditions# acce!ted " the Treat on the rights o# movement and residence m0st

"e inter!reted and a!!lied in a !ro!ortionate 2a%

The EC; reaE' r0led that the !rovisions on citi$enshi! did not extend the sco!e o# the Treat to cover these internal sit0ations ?2hich other2ise had no lin7@ 2ith EU la2%

T2o develo!ments since the introd0ction o# EU citi$enshi! can "e noted/

1% The cases "ro0ght "e#ore the EC; have identi5ed an increasingl "road range

o# circ0mstances 2ith a cross-"order dimension% This incl0des3 even 2here

the litigant is a national claiming against his or her o2n 4em"er State as

exem!li5ed in/

SCHE4PP / a national in a 4em"er State 2ho had not himsel# made 0se o# the right to

#reedom o# movement co0ld not "e !rotected 2hereas3 his #ormer s!o0se3 to 2hom

he contin0ed to !a maintenance3 had exercised her right as an EU citi$en to move

to another 4em"er State3 and this a9ected his tax !osition 2ithin ,erman%

,&'CI& &AE((O / the EC; also #o0nd that the Treat !rovisions on citi$enshi! con#erred

rights on the a!!licants in a sit0ation 2here the had never le#t the territor o# the

4em"er State in 2hich the 2ere "orn3 and 2ere not !resentl intending to move%

Ho2ever3 in this case the !erson claiming rights as an EU citi$en also ha!!ened to

!ossess the nationalit o# a 4em"er State other than that o# the other than that o#

the host state% ,arcia &vello 2as a d0al :elgi0m-S!anish national resident in

:elgi0m%

)% There is evidentl signi5cant !ress0re on the EC; #rom scholars3 !ractitioners

and others to rethin7 its stance on "purely internal situations# in the light o#

EU citi$enshi!% This is evidenced in/


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Z&4:'&NO / the EC; 2as #aced 2ith a sit0ation involving the non-EU !arents o# t2o EU

citi$en@s children "orn and resident in :elgi0m 2ho had never le#t that 4em"er

State% The &dvocate ,eneral arg0ed at length that EU citi$enshi! is not 2holl

"o0nd 0! 2ith movement "et2een 4em"er States3 and that the right o# residence

and the right to move are independent rather than com"ined rights% On the other

hand3 the EC; regarded the re#0sal o# residence and a 2or7 !ermit to the !arents as

an o"stacle to the enoment o# an EU citi$en@s i%e% the children@s right3 #or i# the

!arents 2ere ex!elled #rom the co0ntr3 the children 2o0ld "e #orced to the leave

the host 4em"er State as the 2ere still minors and had to accom!an their

!arents%

CHEN/ & Chinese 2oman residing in England 2as !regnant at the time she moved to

Northern Ireland to give "irth to the "a"% The legislation a!!lica"le at the time o#

the materiali$ing #acts meant that since the child 2as "orn3 it a0tomaticall

o"tained Irish nationalit and there" EU Citi$enshi!% The mother later a!!lied #or

U>@s residenc 2hile holding on to Chinese nationalit% 8irective )**DB !rovides

that de!endent relatives in the ascending time o# an EU national have rights to

install themselves in the same 4em"er State as the EU national resides%

The EC; r0led that Catherine@s mother co0ld not "e considered a "dependent

relative# #or the !0r!ose o# deriving a right o# residence thro0gh her child@s EU

citi$enshi!3 since the realit 2as that the child 2as de!endent on the mother rather

than vice versa. Ho2ever3 the Co0rt r0led that a re#0sal to grant a right o# residence

to the !arent3 2hether an EU national or not3 2ho is the !rimar careta7er o# a child

!ossessing EU citi$enshi!3 and enoing s0


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internal sit0ation and have red0ced tho0gh certainl not eliminated the sco!e o# the

"wholly internal situation# scenario #rom 2hich EU la2 is excl0ded%

8E'ICI / Five se!arate a!!lications 2ere madeG all concerning third co0ntr nationals

o# 2hich the 5rst three 2ere t2o men and one 2oman married to &0strian nationalsG

2hereas the last t2o a!!lications concerned t2o ad0lts see7ing to oin or remain2ith one o# their !arents3 also &0strian nationals% None o# the &0strian nationals had

exercised their right o# #ree movement and 2ere not de!endent 0!on an o# their

third co0ntr national #amil mem"ers%

The &0strian a0thorities reected all 5ve claims on gro0nds that all 5ve &0strian

nationals had not exercised their rights o# claim and hence EU la2 2as not

a!!lica"le% Follo2ing Z&4:'&NO and 4CC&'TH+ the EC; held that 8I'ECTIAE )**DB

does not a!!l to 2holl internal sit0ations% The EC; reiterated this !rinci!le 2hen

disc0ssing &'TIC(E )* OF THE TFEU "0t stated that/ those 2ho have never exercised

their right o# #ree movement cannot #or that reason alone "e ad0sted to a !0rel

internal sit0ation as citi$enshi! o# the Union is intended to "e the #0ndamental

stat0s o# nationals o# 4em"er States%

The EC; then stated on the "asis o# this statement that/

1% &n EU citi$en ma there#ore rel on rights !ertaining to that stat0s3 incl0ding

against 4em"er States o# that origin%

)% &'TIC(E )* excl0des national meas0res 2hich have the e9ect o# de!riving

Union citi$ens o# the gen0ine enoment o# the right con#erred " virt0e o# that stat0s%

B% The criterion relates to the denial o# the gen0ine enoment o# s0ch rights

re#ers to sit0ations in 2hich the Union citi$en has% in #act3 to not onl leave

the 4em"er State o# 2hich he is a national "0t also the EU territor as a

2hole%

D% EC; does not de5ne this criterion #0ther other than to set o0t that it/ "is

speci$c in character in as much as it relates to situations in which …. a right

of residence may not% e&ceptionally% be refused to a third country national …

as the e!ectiveness of Union citizenship enjoyed by Union citizens would

otherwise be undermined#.

% The a"ove 2itho0t !re0dice a!!lies to the !rotection o# #amil li#e either

0nder &'TIC(E OF THE ECH' or &'TIC(E OF THE CH&'TE' OF FUN8&4ENT&( 'I,HTS

OF THE EU'OPE&N UNION.% This ma mean that a right o# residence cannot "e

re#0sed in an event%


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'ights #or Non-Economicall &ctive or Sel#-S0


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!ro!ortionate manner and ma7e a !ro!er in60ir into the s0


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8@HOOP / The EC; r0led that discrimination on the "asis o# EU citi$enshi!3 and in

!artic0lar on acco0nt o# an individ0al exercising the EU right to move and avail

ed0cational o!!ort0nities in other 4em"er States 2as not acce!ta"le% Ho2ever3 a

re#0sal #or o"-see7er allo2ance ma "e 0sti5ed on the "asis that there m0st "e a

s0E( L F'&NZ / the EC; em!hasi$ed that ,erman and &0strian nationals 2ho 2eres0"ect to criminal !roceedings in Ital and 2ho re60ested the 0sed o# ,erman in

the !roceedings 2ere exercising their right to #ree movement as E0ro!ean citi$ens

"ased ON &'TIC(E )1 OF THE TFEU and 2ere entitled not to "e discriminated against

on gro0nds o# nationalit%


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HU:E' / the EC; r0led that a 4em"er State@s crime !revention sstem 2hich involved

!rocessing !ersonal data s!eci5c to EU citi$ens 2ho 2ere not nationals o# that state

2o0ld violate &'TIC(ES 1 &N8 )1 OF THE TFEU%

Similarl3 in a range o# cases in 2hich 4em"er States so0ght to ado!t restrictive

!0"lic !olic meas0res against non-nationals3 the EC; has invo7ed the legal!rovisions on EU citi$enshi! to "olster the rights o# the individ0als concerned/

CO44ISSION A :E(,IU4 / a0tomatic de!ortation #or #ail0re to !rod0ce the relevant

doc0ments 2ithin the !rescri"ed time !eriod%

TS&>OU'I8IS / the !0"lic !olic meas0res m0st "e !ro!ortionate and m0st res!ect

#0ndamental rights%

=O(ZEN:U', / additional administrative re60irement m0st not "e im!osed on non-

nationals.

In PUS& and Z&NOTTI 3 the EC; has condemned a n0m"er o# restrictive ordiscriminator meas0res im!osed " 4em"er States as regards access to social or

tax "ene5ts as a violation o# &'TIC(E )* OF THE TFEU3 regardless o# 2hether the

a!!licants 2ere 2or7ers or not%

0olitical )ights o (itizenship

=ith the creation o# EU citi$enshi!3 certain !olitical rights came into "eing% The

T'E&T+ ON THE FUNCTIONIN, OF THE EU'OPE&N UNION3 !rovides #or citi$ens to "e ?directly

represented at Union level in the European (arliament# 3 and "to participate in the

democratic life of the Union# ) &'TIC(E 1* OF THE T'E&T+ OF EU'OPE&N UNION.%

S!eci5call3 the #ollo2ing rights are a9orded/

right to vote and stand in elections to the E0ro!ean Parliament/ &'TIC(E ))%

right to vote and stand in the local elections in an EU state other than their

o2n3 0nder the same conditions as the nationals o# that state/ &'TIC(E ))%

a right to access to E0ro!ean Parliament3 Co0ncil3 and Commission

doc0ments/ &'TIC(E 1%

The right to !etition the E0ro!ean Parliament and the right to a!!l to the

E0ro!ean Om"0dsman in order to "ring to his attention an cases o# !oor

administration " the EU instit0tions and "odies3 2ith the exce!tion o# the

legal "odies/ &'TIC(E )D B.%

The right to a!!l to the EU instit0tions in one o# the o

Citizenship of the EU

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