UCLLAWS LAWS2009 EU LAW AND HUMAN RIGHTS DR INGRID BOCCARDI NOVEMBER 21 AND 28, 2011

EU Citizenship
Maastricht treaty first introduced the legal concept of EU citizenship as part of the move from a mainly economic community to a political union. In addition to providing a stronger Treaty basis for rights of residence, movement and equal treatment for EU nationals, and gathering existing entitlements together under the umbrella of citizenship arts 20-25 TFEU created a number of new political and electoral rights. While Lisbon Treaty did not make major changes to the provisions on EU citizenship, it linked these rights more closely to the prohibition on discrimination on grounds of nationality. o It also situated EU citizenship in the context of a new emphasis on representative and participatory democracy, including by introducing a new agenda setting citizens initiative. Directive 2004/38 consolidated, updated and replaced most of the legislation governing the rights of movement and residence of all previous categories of people enjoying such rights under EU law (including workers, self-employed, job-seekers, students, and families etc under the title of citizens;. However, the ECJ has emphasised that Directive 2004/38 does not eliminate the different EU law categories of persons and rights, and in particular that it continues to distinguish between economically active and non-economically active EU nationals. o MS have been slow to implement Directive 2004/38 properly. ECJs rulings on EU citizenship have been important in several ways: o Court established that the Treaty provisions on citizenship create certain autonomous rights, independent of other Treaty provisions governing movement and residence o ECJ linked the provisions on citizenship with the prohibition on discrimination on grounds of nationality in a way which has strengthened the rights and entitlement of EU nationals and their families both in host MS and their own on matters such as social benefits, taxation, criminal procedures and dual nationality situations. However, the Court has recently been cautious in its rulings on access to education and educational benefits for students in other EU MS. Although in 2009 there were at least 11.7 million EU citizens residing in a MS of which they were not nationals, EU citizens are still not availing themselves extensively of their political and electoral rights in other EU MS. This is the first formal constitutionalisation of EU citizenship, the idea of Community citizenship and the rhetoric of a Peoples Europe had been in circulation for a long time. o Introduction of EU citizenship was greeted at the time with a measure of academic skepticism. Critics focused inter alia on the absence of reciprocal duties (other than as a consequence of the ECJs rulings on HDE of certain Treaty provisions), which might give rise to a more active and participatory citizenship; The continued discrimination against resident third country nationals

Article 20(1) TFEU: 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 complement and not replace national citizenship.

EU citizenship is expressly made additional to national citizenship Indeed while the notion of EU citizenship has begun to pose a challenge to certain dimensions of nationality law, including aspects of dual nationality, and restrictions on the use of surnames, it does not displace the centrality of national citizenship in Europe. Contingent upon the possession of the nationality of a MS. EU law does not directly regulate the conditions under which MS confer nationality, although it indirectly regulates aspects of this process by requiring them to recognise and not to impede enjoyment of the nationality duly granted by another MS o (Rottman raised the question whether loss or revocation of MS nationality acquired by deception is a matter falling within the scope of EU law and thus governed by requirements of EU law, or whether it remains purely a matter of national law. Case generated considerable attention, with some criticizing the ruling for not going far enough or even retreating from earlier rulings on the relationship between MS nationality and EU citizenship such as Micheletti while others hailed it a seminal case and a far-reaching judgment).

Article 21(1) TFEU: 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 this Treaty and by the measures adopted to give it effect.

According to Arts 22-24 TFEU EU citizens have the right to: a) Vote and stand in municipal elections b) Vote and stand in EP elections in the MS where they reside c) Enjoy the diplomatic and consular protection of any MS when outside the EU, if they cannot avail themselves of the protection of their own MS d) Petition the EP or the Ombudsman Note: All of the above rights must be read in conjunction with the non-discrimination requirement of Art. 18 TFEU

Union Citizenship before the Court of Justice

1) Article 21(1) TFEU has Direct Effect
Case C-184/99 Grzelczyk [2001] ECR I-6193: Union citizenship is destined to be the fundamental status of nationals of the Member States (para 31) Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for.

ECJ continues to repeat this Delphic phrase but this does not answer one of the recurrent questions, which arises for those studying EU citizenship. o Has the status of EU citizenship become the primary legal status granted under EU law to MS nationals, subsuming and rendering residual the other legal categories into which EU law traditionally divided the nationals of EU MS (worker, student, privileged family member etc)?

Or on the contrary, is it the case that, apart from its symbolic import, the practical legal impact of EU citizenship remains largely supplemental and residual to these other legal status categories? I.e. apart from the new and potentially very important electoral and political rights introduced, does the legal relevance of EU citizenship, lie mainly in its capacity: (i) to supplement and strengthen the existing treaty based rights of worker and job seekers, students etc. (ii) to provide a Treaty basis for, and to strengthen, the rights of a residual category of non-economically active MS nationals? o Or is EU citizenship now the primary legal status for MS nationals, and the status from which they derive their most significant legal rights, transcending the question whether they are working studying, supplying services or otherwise?

Case C-413/99 Baumbast [2002] ECR I-7091: any limitations and conditions imposed on the right of residence under Article 18(1) EC do not prevent that provision from conferring on individuals rights which are enforceable by them and which the national courts must protect (para. 86); Moreover the Treaty on European Union does not require that citizens of the Union pursue a professional or trade activity, whether as an employed or self-employed person, in order to enjoy the rights provided in Part Two of the EC Treaty, on citizenship of the Union (para 83)

2) Rights to Entry and Residence Under Article 21(1) TFEU

Several questions about their likely impact: o Did they create an autonomous and directly effective right to move and reside in a MS, regardless of whether the person falls within any previously existing EU law status category? o Did art 20 and 21 TFEU change the law as concerns wholly internal situations? Would they allow individuals to challenge restrictions on the rights they enjoy within their own MS, where they have not otherwise exercised EU rights of free movement? o May EU citizens who are neither economically active not economically self-sufficient, i.e. who do not fall within any previously recognised EU status category, rely on arts 20 and 21 (either alone or in conjunction with art 18 TFEU) to claim entitlement to substantive equality of treatment as compared with nationals of a host MS in access to social and material benefits? o Did articles 20 and 21 otherwise expand the rights of EU nationals to challenge restrictions on the terms of their movement, residence, and enjoyment of other benefits within the EU? DID ARTICLE 20 CREATE AN AUTONOMOUS AND DIRECTLY EFFECTIVE RIGHT (regardless of whether the person falls within any other status category of EU law)? o The new treaty rights of movement and residence of EU citizens in art 21 TFEU are expressly made subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. This clause intends to include limitations such as those listed in the Treaty enabling MS to adopt restrictive measures on grounds of public policy, security and health. What if anything does Art 21 add to existing case law, or whether it was simply renamed and gave a treaty basis to the existing rights (and their limits) as the rights of EU citizenship?

ECJ responded to this question in Baumbast art 20(1) TFEU confers a directly effective right on EU citizens to reside in a host MS, regardless of whether they are employed or self-employed. Overall impact of art 20(1) was to move the rights of residence of such citizens from a legislative footing to a Treaty footing, this move had some significant legal consequences, since the ECJ ruled that that the limitations and conditions accepted by the Treaty on the rights of movement and residence must be interpreted and applied in a proportionate way. On the facts of the case, this means that to read the requirement of sickness insurance in the Directive restrictively would undermine the right of residence conferred directly by the Treaty. Significant consequence of having placed fundamental rights of movement and residence of EU citizens who do not otherwise fall into another treaty status category on a Treaty basis is that any conditions or limitations on these rights must be interpreted so as to avoid disproportionate interference with the rights. This reasoning is to be found in much of ECJs case law, including those cases concerning access to social and material benefits for EU citizens. In Chen, ECJ confirmed that art 20(1) TFEU confers a directly effective right of residence on EU citizens who do not fall within any other existing EU status category, since the citizen in question in this case was a newborn baby. The key questions raised by the case were (i) whether the child enjoyed a directly effective right to movement and residence based solely on EU citizenship derived from her Irish nationality (ii) whether the circumstances amounted to an abuse of rights and (iiI) whether the resources of the mother could be taken into account in determining whether the child had sufficient resources not to become a burden on the social assistance scheme of the state. o Held: mother could NOT be considered a dependent relative for the purposes of deriving a right of residence through her childs EU citizenship since the reality was that the child was dependent on the mother and not vice versa. However, ECJ ruled that a refusal to grant a right of residence to the parent (EU national or not), who is the carer of the child possessing EU citizenship, and enjoying sufficient resources and health insurance, would deprive the

childs right of residence of any useful effect. Chen thus confirms the Baumbast ruling in 2 ways: The rights of movement and residence deriving from EU citizenship under art 20(1) are directly effective, autonomous, and do not depend on possession of any previously existing EU status category Secondly, the conditions and limitations, which a state may impose on these rights must be interpreted and implied in a proportionate manner which does not unduly restrict their exercise. o It further confirms the robust approach adopted by ECJ in Ackrich, Ninni-Orasche, and Commission v Austria to allegations that EU rights have been abusively acquired. The answer to (i) therefore is that Art 21 does create a new and directly effective right, and that while the most obviously novel element is the conferral of Treaty status on the right of non-economically active persons to move and reside, this is not a purely symbolic change. o The case law indicates that the limits which states may legitimately impose on the rights of movement and residence of noneconomically active people must be interpreted in the light of their status as citizens, and that they must be proportionate.

Case C-356/98 Kaba I [2000] ECR I-2623: the rights conferred by Article 18(1) EC are not unconditional: Eg. Case C-378/97 Wijsenbeek [1999] ECR I-6207: Member States may still require Union citizens to produce identity card / passport upon entry into national territory (as provided for under Directive 68/360). Eg. Case C-357/98 Yiadom [2000] ECR I-9265: express Treaty derogations permitting Member States to refuse individuals entry into / expel individuals from national territory on grounds of public policy, public security, public health apply to Article 21(1) TFEU. What about requirements of health insurance and sufficient resources contained in three Residency Directives (now replaced by identical requirements in Directive 2004/28)? - Grzelczyk and Baumbast: limitations and conditions referred to in Article 18(1) EC include requirements of health insurance and sufficient resources laid down by Directive 2004/28 - Baumbast: those conditions based on idea that citizens right of residence can be subordinated to legitimate interests of Member States, i.e. that claimants must not become unreasonable financial burden on host state - however those conditions must be applied in compliance with limits imposed by general principles of Community law, in particular, principle of proportionality

Principle of proportionality in practice: Eg. Grzelczyk: student in final year of degree, encountering temporary financial difficulties beyond his / her control proportionate application of sufficient resources requirement Eg. Baumbast: person with sufficient resources and general health insurance in state of origin, lacking health cover for emergencies within host state, but has already lawfully resided within host state for several years proportionate application of health insurance requirement

NB: impact of other general principles of EU law, eg. respect for fundamental rights (especially family and private life)? See Case C-60/00 Mary Carpenter [2002] ECR I-6279 See also need to not to render right of residence ineffective Case C-200/02 Chen [2004] ECR I-9925

3) Rights to Equal Treatment for Union Citizens Under Article 18 TFEU

Article 20(2) TFEU: Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.

Article 18 TFEU: Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.

i) direct discrimination
Automatically incompatible with Article 18 TFEU, Eg. - Case C-85/96 Mara Martnez Sala [1998] ECR I-2691: non-contributory child-raising benefit - Case C-184/99 Grzelczyk [2001] ECR I-6193: minimum subsistence allowance Unless specifically authorised by EU law, Eg. - Case C-184/99 Grzelczyk [2001] ECR I-6193: maintenance grants for students - Case C-413/99 Baumbast [2002] ECR I-7091: requirement of financial independence itself But still subject to proportionality requirement

ii) indirect discrimination

General social advantages, eg. Case C-274/96 Bickel and Franz [1998] ECR I-7637: language used in criminal proceedings Welfare benefits: legitimate to require real link between claimant and host society? How should this link be assessed? Only by a certain passage of time or can other factors be added? Consider, eg. - Case C-224/98 DHoop [2002] ECR I-6191: special unemployment benefits for young people - Case C-138/02 Collins [2004] ECR I-2703: income-based jobseekers allowance; C-22&23/08 Vatsouras [2009] - Case C-209/03 Bidar [2005] ECR I-2119: state student loans requiring a combined residency and establishment test was disproportionate (as foreign students could never satisfy the settled criteria) - Case C-258/04 Ioannidis [2005] ECR I-8275: tide-over allowance for a migrant student who wants to access job-market (but not a child of migrant workers) and who does not have the requisite diploma - Case C-158/07 Frster [2008] ECR I-8507: NL required a 5 year residency requirement before students could apply for maintenance payments:

48 In Bidar, the Court observed that, although the Member States must, in the organisation and application of their social assistance systems, show a certain degree of financial solidarity with nationals of other Member States, it is permissible for a Member State to ensure that the grant of assistance to cover the maintenance costs of students from other Member States does not become an unreasonable burden which could have consequences for the overall level of assistance which may be granted by that State (see Bidar, paragraph 56).

49 The Court also pointed out that it is legitimate for a Member State to grant assistance covering maintenance costs only to students who have demonstrated a certain degree of integration into the society of that State (Bidar, paragraph 57). 50 On the basis of those considerations, the Court held that the existence of a certain degree of integration may be regarded as established by a finding that the student in question has resided in the host Member State for a certain length of time (Bidar, paragraph 59). 51 As regards, specifically, the compatibility with Community law of a condition of five years uninterrupted residence, as required by the national legislation at issue in the main proceedings, it is necessary to examine whether such a requirement can be justified by the objective, for the host Member State, of ensuring that students who are nationals of other Member States have to a certain degree integrated into its society. 52 In the present case, such 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. 53 That requirement must also be proportionate to the legitimate objective pursued by the national law in order to be justified in the light of Community law. It may not go beyond what is necessary in order to attain that objective. 54 A condition of five years continuous residence cannot be held to be excessive having regard, inter alia, to the requirements put forward with respect to the degree of integration of non-nationals in the host Member State. 55 In that connection, Directive 2004/38, although not applicable to the facts in the main proceedings, provides in Article 24(2) that, in the case of persons other than workers, self-employed persons, persons who retain such status and members of their families, the host Member State is not obliged to grant maintenance assistance for studies, including vocational training, consisting in student grants or student loans, to students who have not acquired the right of permanent residence, while also providing, in Article 16(1), that Union citizens will have a right of permanent residence in the territory of a host Member State where they have resided legally for a continuous period of five years.

See also below on the different interpretation of the real link test in the case of exportability of benefits -

iii) in either case: limits to equal treatment imposed by unreasonable burden provision
Even if claimant can challenge direct / indirect discrimination as regards social advantages / welfare benefits: - eventually Member State may become entitled to consider claimant to have become unreasonable burden on public finances - this terminates claimants rights to residency, and therefore claimants right to equal treatment

However, note the obligation not to render 18 TFEU right ineffective Baumbast and R: Right of the children to stay to continue their education as children of migrant workers; this right would be rendered ineffective if their carer (their mother) could not be with them. Chen: right of baby Chen to free movement as an EU citizen (scope ratione personae) would be ineffective if her carer could not be with her. C-34/09 Zambrano [2011] Scrapping the internal rule? Art. 20 TFEU is directly effective and can be relied upon in internal situations, but only in so far as the right to reside of a minor would be rendered ineffective if the adult carer was made to leave the Union:

39 It should be observed at the outset that, under Article 3(1) of Directive 2004/38, entitled [b]eneficiaries, that directive applies to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members . Therefore, that directive does not apply to a situation such as that at issue in the main proceedings. 41 As the Court has stated several times, citizenship of the Union is intended to be the fundamental status of nationals of the Member States (see, inter alia, Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 31; Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 82; Garcia Avello, paragraph 22; Zhu and Chen, paragraph 25; and Rottmann, paragraph 43). 42 In those circumstances, Article 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 (see, to that effect, Rottmann, paragraph 42). 43 A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect. 44 It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union. 45 Accordingly, the answer to the questions referred is that Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen. Contrast with negative decision in C-434/09 McCarthy [2011] UK national, aquired Irish nationality to enable her TCN husband to obtain family reunification rights under Citizenship Directive: ECJ applied para 39 of Zambrano (above) and decided that lack of family reunification was no impediment to her effective enjoyment of free movement rights under Art. 21 TFEU Citizens Directive provisions on family reunifications did not apply because applicant had not moved. 48 As a national of at least one Member State, a person such as Mrs McCarthy enjoys the status of a Union citizen under Article 20(1) TFEU and may therefore rely on the rights pertaining to that status, including against his Member State of origin, in particular the right conferred by Article 21 TFEU to move and reside freely within the territory of the Member States (see Case C-33/07 Jipa [2008] ECR I-5157, paragraph 17 and case-law cited). 49 However, no element of the situation of Mrs McCarthy, as described by the national court, indicates that the national measure at issue in the main proceedings has the effect of depriving her of the genuine enjoyment of the substance of the rights associated with her status as a Union citizen, or of impeding the exercise of her right to move and reside freely within the territory of the Member States, in accordance with Article 21 TFEU. Indeed, the failure by the authorities of the United Kingdom to take into account the Irish nationality of Mrs McCarthy for the purposes of granting her a right of residence in the United Kingdom in no way affects her in her right to move and reside freely within the territory of the Member States, or any other right conferred on her by virtue of her status as a Union citizen. 50 In that regard, by contrast with the case of Ruiz Zambrano, the national measure at issue in the main proceedings in the present case does not have the effect of obliging Mrs McCarthy to leave the territory of the

European Union. Indeed, as is clear from paragraph 29 of the present judgment, Mrs McCarthy enjoys, under a principle of international law, an unconditional right of residence in the United Kingdom since she is a national of the United Kingdom.

4) Other Benefits for Union Citizens

Citizenship provisions can still confer lesser forms of protection than fully-fledged rights to residence / equal treatment for migrant Community nationals, eg. - Case C-357/98 Yiadom [2000] ECR I-9265: protection against refusal of entry / expulsion on grounds of public policy, public security, public health - Case C-135/99 Elsen [2000] ECR I-10409: non-discriminatory hindrances to exercise of citizens right to free movement, imposed by home state against its own nationals (more below)

Union citizenship has not overturned caselaw on reverse discrimination by Member State against own nationals in wholly internal situations, eg. Cases C-64-65/96 Uecker and Jacquet [1997] ECR I-3171; However, the Court continues to expand the remit of non-internal situations C-403/03 Schempp [2005] ECR I-6421:

22 On this point, it must be observed that, contrary to the submissions of the German and Netherlands Governments, the situation of a national of a Member State who, like Mr Schempp, has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation (see, to that effect, Case C-200/02 Zhu and Chen [2004] ECR I-0000, paragraph 19). 23 While it is correct that Mr Schempp has not exercised such a right, it is nevertheless common ground that his former spouse, by establishing her residence in Austria, exercised the right granted by Article 18 EC to every citizen of the Union to move and reside freely in the territory of another Member State. 24 As the Advocate General observed, in substance, in point 19 of his Opinion, since, for the purposes of determining the deductibility of maintenance paid by a taxpayer resident in Germany to a recipient resident in another Member State, the national legislation at issue in the main proceedings takes account of the fiscal treatment of those payments in the State of residence of the recipient, it necessarily follows that the exercise in the present case by Mr Schempps former spouse of her right to move and reside freely in another Member State under Article 18 EC was such as to influence her former husbands capacity to deduct the maintenance payments made to her from his taxable income in Germany. 25 It follows from all the foregoing that, since the exercise by Mr Schempps former spouse of a right conferred by the Community legal order had an effect on his right to deduct in his Member State of residence, such a situation cannot be regarded as an internal situation with no connection with Community law.

Did articles 20 and 21 change the law concerning wholly internal situations? o EU law rights of movement and residence cannot be invoked in wholly internal situation. The issue has previously arisen where a national sought unsuccessfully to challenge an internal restriction on his or her freedom of movement within an MS as in Saunders. Or where a MS national who had not previously exercised rights of movement outside that state sought unsuccessfully to rely on EU law to bring a non-EU national family member to reside with him or her, as in Morson and Jhanjhan. o After the provisions on EU citizenship were introduced, attempts were made to challenge the wholly internal situation approach in reliance on the new EU Treaty rights of residence and movement but the ECJ ruled in the cases of Kremzow and Uecker, the factual contexts of

which were broadly similar to those in the cases of Saunders and Morson respectively, that the provisions on citizenship did not extend the scope of the treaty to cover these internal situations which otherwise had no link with EU law. However, 2 developments since the introduction of EU citizenship can be noted. 1. Cases brought before the ECJ have identified an increasingly broad range of circumstances with a cross-border dimension, even where the litigant is a national claiming against his or her own member state. 2. There is evidently significant pressure on the ECJ from scholars, practitioners, and others to rethink its stance on purely internal situations in the light of EU citizenship. In Schempp, ECJ legal situation of a national in a member state who had not himself made use of the right to freedom of movement could not be treated as a wholly internal situation, because his former spouse to whom he continued to pay maintenance, had exercised her right as an EU citizen to move to another MS, and this affected his tax position within Germany. Further in Garcia-Avello and Chen, the ECJ also found that the Treaty provisions on citizenship conferred rights on the applicants in a situation where they had never left the territory of the MS in which they were born, and were not presently intending to move. However in each case the person claiming rights as an EU citizen also happened to possess the nationality of a MS other than that of the host state. Chen was an Irish national resident in the UK and Garcia-Avello was a dual Belgian-Spanish national resident in Belgium. o Garcia-Avello challenge to a Belgian rule prohibiting any change in a registered surname, where Belgian law required the fathers surname to be registered but the children wished, given their Spanish nationality, to add the surname of their mother. Children relied on Article 18 TFEU, together with art 20 TFEU, to claim that they were being discriminated against by comparison with other Belgian nationals. ECJ ruled in their favour on both the internal situation point and on the claim of discrimination. ECJ ruled that the refusal to allow a change in surname was in violation of arts 18 and 20 TFEU. o By comparison, the ECJ ruled in the Walloon Government case that where one of the autonomous communities within Belgium excluded Belgian nationals who did not reside either within the jurisdiction of the Flemish community or within another bilingual part of the state from the scope of eligibility for a care insurance scheme, this would remain a purely internal situation unless the Belgian nationals who were excluded had previously exercised their rights of movement under EU law to another MS. Subsequently in Ruiz Zambrano, the ECJ was faced with a situation involving the non-EU parents of 2-EU citizen children born and resident in Belgium, who had never left that MS.

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The case takes Chen a step further. 8 MS intervened in the case and argued that the citizenship in question should be characterized as wholly internal, such that EU law on citizenship was not applicable, but AG Sharpston and the ECJ disagreed. While the AG argued at length that the EU citizenship is not wholly bound up with movement between MS, and that the right of residence and the right to move are independent rather than combined rights, the ECJ gave a brief and minimally reasoned ruling in the face of concerted MS opposition. The essence of the judgment, which focuses on the refusal of work permit to the parent as an obstacle to the enjoyment of an EU citizens rights. Case is bound to be a controversial one, in the vein of Chen and Metock, since even if it can ultimately be limited on its factual circumstances it challenges core aspects of MS migration policies. Just two months following Zambrano the ECJ in the McCarthy ruling rejected the claim of an EU citizen who possessed both Irish and British nationality but had only ever lived in the UK of a right of residence deriving from EU law. o Reason she sought to claim the right of residence as an EU citizen under the Treaty or under Directive 2004/38 was so that her husband, who was a Jamaican national would enjoy derived residence rights. ECJ rejected her claim both under Directive and art 21 of Treaty. Court ruled that Art 3(1) of Directive, which specifies the personal scope of the legislation, was not applicable to an EU citizen who had never exercised her right to freedom of movement and who had always resided in a MS of which she was a national, and who was also a national of another MS. According to the Court the Directive deals with conditions governing the exercise of the right to move and reside freely in a MS territory, and a MS may not, under intl law, refuse its OWN nationals the right to enter and reside in its territory nor expel them or subject their right of residence to conditions. Interestingly the ECJ ruled that the fact that McCarthy had never exercised her right to free movement was insufficient in itself to conclude that she was in a wholly internal situation so far as the applicability of art 21 TFEU was concerned. This was because acc to its earlier ruling in Zambrano, art 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 even where they are nationals of the MS in question and have never exercised rights of free movement.

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However, ECJ distinguished factual context in McCarthy from Zambrano and Garcia-Avello, concluding that UK law in McCarthys case did not by comparison with Zambrano) have the effect of obliging her to leave the territory of the EU, nor by comparison with Garcia Avello, did it give rise to serious professional inconvenience creating likely obstacles to her exercise of freedom of movement in the future. ULTIMATE RULING: art 21 TFEU does not apply to a EU citizen who has never exercised her right to freedom of movement, who has always resided in a MS of which she is a national, and who is also a national of another MS, provided that she is not deprived of the genuine enjoyment of the substance of the rights of EU citizenship, and her right of free movement and residence within the territory of MS is not impeded. NB. The crucial factor determining whether the circumstances in McCarthy and those in Zambrano were to be characterized as wholly internal seems to hinge on the perceived difference in the degree of dependence and vulnerability of the EU citizen family member. Although not explicitly mentioned in McCarthy, the fact that the family member for whom the EU was seeking a derivative residence permit in that case was an adult spouse, as compared with the parent of dependent minor children in Zambrano, seems to have influenced the courts in reaching a different decision in the two cases. o In both cases the right to family life of the EU citizen would be significantly affected by the risk of deportation of the non-EU national family member, the ECJ was willing in Zambrano but not in McCarthy to treat this as a deprivation of the substance of the rights of the EU citizen. The answer to the question posed at (ii) is that the introduction of EU citizenship and the rights of movement and residence in Articles 20 and 21 TFEU have placed continued pressure on the notion of a purely internal situation, and have reduced, although certainly not eliminated, the scope of the wholly internal situation scenario from which EU law is excluded. Certain factual situations such as those in Schempp, Garcia Avello, Chen and Ruiz Zambrano, which might otherwise have been considered as purely internal situations, are now considered to have a sufficient connection with EU law due to the impact on certain rights enjoyed by virtue of the status of EU citizenship. In particular, where a national measure restricts the substance of rights conferred by EU citizenship, even in circumstances involving a MS national who has never exercised rights of movement outside that MS, that situation will no longer be characterized as a wholly internal situation.

Students
According to Art. 24 of the 2004/38 Directive, students are entitled to equal treatment with the exception of maintenance aid for studies [] consisting of student grants or student loans. They also have to comply with the requirements of Art 7(c) (c) are enrolled at a private or public establishment, accredited or financed by the host

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Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; See Case C-184/99 Grzelczyk [2001] ECR I-6193 Case C-209/03 Bidar [2005] ECR I-2119 Case C-258/04 Ioannidis [2005] ECR I-8275 C-147/03 Commission v Austria [2005] ECR I-5969 C-11 and 12/06 Morgan and Bucher [2007] ECR I-9161 Case C-158/07 Frster [2008] ECR I-8507 Case C-73/08 Bressol Chaverot [2010]

Non-Discriminatory Hindrances to Free Movement

Note that the ECJ has extended free movement Articles to cover not only direct and indirect discrimination against Community nationals; but also certain non-discriminatory measures which hinder free flow of persons within Single Market, i.e. by making it more difficult / costly / inconvenient for Community nationals to penetrate labour market of other Member States True especially of obstacles erected by home state which make movement to another Member State for employment purposes more difficult Eg. Case C-415/93 Bosman [1995] ECR I-4921: transfer fees system for professional footballers And particularly of measures which penalise own nationals for choosing to work or reside abroad (as compared to treatment of own nationals who remain working within national territory): - Case C-18/95 Terhoeve [1999] ECR I-345: higher social security contributions for those who work part of year in another Member State; - C-224/02 Pusa [2004] ECR I-5763 and C-520/04 Turpeinen [2006] ECR I-10685 (higher pension taxes for Finninsh nationals who choose to retire in Spain) - C-406/04 De Cuyper [2006] ECR I-6947: residency requirement in order to benefit from disability payments - C-192/05 Tas-Hagen [2006] ECR I-10451: residency requirement in order to receive a civilian war victim benefit - C-76/05 Schwarz [2007] ECR I-6849: inability to tax deduct expenses for childrens education abroad - C-11 and 12/06 Morgan [2007] ECR I-9161: education maintenance grant for studies abroad only payable upon completion of 1 year of further education in Germany the Court followed the real link requirement case along the same lines as the Collins/Bidar case law, but ignored the Frster residency criteria - C-499/06 Nerkoska [2008]: residency requirement in order to receive a civilian war victim benefit (but applicant has not resided in the country for most of her adult life) The recent case-law of the ECJ clearly points to a change of direction. The Court has traditionally relied on the link between Art. 18 TFEU and Art. 45 TFEU or Arts 20-21 TFEU in order to expand the remit of application of EU rules on the free movement of persons (both ratione materiae and ratione personae). However, the latest case-law by stressing the criteria of obstacle / hindrance to free movement (whereby the issue of discrimination becomes irrelevant) seems to indicate a convergence with the rest of the free movement case-law. The Court seems also to be clarifying the contexts of application of Art. 45 TFEU and 21 TFEU:

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If EU nationals move across borders (for whatever reason even for non-economic purposes, see Case C-152/03 Ritter-Coulais [2006] ECR I-1711) but are exercising an economic activity, then they should rely on 45 TFEU - even if the economic activity is still in their country of origin If EU nationals move across borders but do not exercise any economic activity (or have ceased to exercise one see Case C-544/07 Rffler [2009] -pensioned off in another country) then they must rely on Art. 21 TFEU

Problem issues with EU Citizenship:

The ECJ has created a model of citizenship that cannot be really defined according to any known model. However, the same could be said of the EU of a whole so should we be worried? Kostakopolou identifies three key stages in the evolution of EU Citizenship: judicial minimalism (1993-97); signalling intentions (1998-2000) and engineering institutional change (2001-03) Kostakopolou outlines different existing concepts of citizenship: Market citizenship [liberal approach] Civic Republican citizenship [communitarianism + participatory elements] Deliberative citizenship [Habermas model of democratic participation around a common kernel of shared values] Corrective Citizenship [Weiler model of EU citizenship as a set of shared values that complement national identities and help fight nationalism and exclusion] Constructive Citizenship [the focus is on the ability of EU Citizenship to transcend national boundaries and build an inclusionary polity beyond the nation state] Please note that in all the Citizenship cases the ECJ has always tried to decide the case on the specific free movement articles of workers/establishmet- only when this proved impossible did the ECJ use the concept of EU citizenship (Martinez - Grzelczyk Baumbast - DHoop) JUDICIAL MINIMALISM (1993-97) Includes decisions such as C-193/94 Skanavi (need to exchange driving licence based it in Art 43 EC) or C274/96 Bickel and Franz (decided under Art 49 brief reference to Art 18; it held that the right to communicate with the authorities of the host state on the same footing as nationals enhanced the possibility of free movement) Why did the Court not act in this period? None of these cases offered a real opportunity EU Citizenship had just been introduced. SIGNALLING INTENTIONS (1998-2000) The ECJ brought EU citizens within the scope of Art 18 TFEU. Martinez Sala; Collins; but also Kaba and Kaur Basically in Martinez and in Collins their cases are brought within the remit of EU law ratione materiae (social advantages are within the competence of EU law) therefore Art. 12 EC has to apply. But there are still limits (Kaba rights are not unconditional; Kaur competence of acquisition of nationality is exclusively national).

ENGINEERING INSTITUTIONAL CHANGE (2001-03) Trojani; Grzelczyk; DHoop; Chen; Bidar; Baumbast; C-413/01 Ninni-Orasche; Garcia-Avello

Transition from an inclusion ratione materiae (material scope) to an inclusion ratione personae (personal scope) The result is that all EU citizens lawfully resident in a MS have right to equal treatment in respect of all situations falling within the material scope of Community law. However, Garcia Avello (and later on

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Grunkin) even question this last point because it is incontrovertible that rules on surnames do no fall under EU competence (so in this case the ECJ based itself purely on personal scope). However, this makes the exclusion of wholly internal situations even more untenable. Hailbronner criticizes the ECJ very harshly on this point because he is worried that the ECJ is increasingly interpreting EU secondary legislation against its wording and purpose (as in Grzelczyk and Bidar). This has implications for the future interpretation of Art 24.2 of Directive 2004/38 as the ECJ has already indicated in cases like Trojani and Grzelczyk that it reads it in conjunction with Art. 14.4.b. Hailbronner also accuses the ECJ of using proportionality to create rights which do not exist (Grzelczyk) or of creating new categories that have no bearing in the legislation (in Bidar it asserts that the Student directive only applies to students that move to start or pursue their higher education in another MS this distinction does not exist in the directive). Paradoxically, it seems that now if any EU legislation mentions something, even if for the purpose of excluding it from the remit of EU law the ECJ will consider it within the personal scope of the Treaty (see the Grzelczyk and Bidar assertion that maintenance grants now fall within the scope of Community law). The very latest case-law trend of focussing purely on obstacles to free movement (the deterrence test) has also had a dramatic effect in expanding the material scope of the Treaty - see for instance civilian war victims benefits [Tas-Hagen] or national rules on surnames [Grunkin]. Notwithstanding the uncertainty over the real nature of EU Citzenship, the ECJ has confirmed that access to this complex of rights is strictly under the control of MS (Micheletti, Kaur, Chen) this already creates a problem because the EU is in charge of distributing rights but has no control or influence over the source (input) of those rights. Member States also maintain control over the substantive content of such rights but not on the rules for distributing them. This is particularly problematic not only in the distribution of welfare rights, but even in cases such as the distribution of university places (see the Belgian/Austrian education saga in certain courses in Austria or Belgium more than 90% of the places are taken by foreign students - C-147/03 Commission v Austria [2005] ECR I-5969 and Case C-73/08 Bressol Chaverot [2010] This discrepancy between input and output is seen also in other contexts. In national systems citizenship is a complex of rights and duties. At EU level, the EU (or better the ECJ) has assumed the role of ultimate arbiter over the distribution of citizenship rights. However, duties are still collected at national level (taxation, military service, political and social participation with some minimal exceptions). So MS have to charge and collect, but the EU distributesthis is an inherently unbalanced model. As the EU controls the output, this is increasingly resulting in situations where internal policy choices (such as welfare choices) which follow the established liberal participatory citizenship model are now conditioned or restricted by an external EU model that no one can really define and to some extent control (if progress is actually dictated by an organ like the ECJ). In this respect, the multiple suggestions put forward in various fora to decouple EU citizenship from nationality, do not really work (even if they appear more equitable) because they do not address the discrepancy between input and output - in fact they actually consolidate the status quo. The only solution would be the transfer of the control over the input to the EU, but this would mean a complete surrender of national immigration/nationality competence to the EU unthinkable in the current climate (see the controversy surrounding Metock). Furthermore, there are also problems with the scope of EU Citizeship: how can the ECJ justify calling EU citizenship the fundamental status of national of Member States when it still does not apply to wholly internal situations? In this respect, the Courts has perhaps attempted to overcome this issue by lately focussing almost exclusively on the free movement aspect (instead of the non-discrimination factor). But the price to pay for this shift to a pure restriction based approach (also termed the deterrence test) is that the Court is perhaps less willing to intervene in internal situations of reverse discrimination as this would further erode the regulatory autonomy of Member states (see Camille Dautricourt Sebastien Thomas, Reverse discrimination and free movement of persons under Community law: all for Ulysses, nothing for Penelope? E.L. Rev. 2009, 34(3), 433454). It remains to be seen if Zambrano represents a new approach to internal situations or whether it will remain a very isolated exception Moreover, the constant erosion of Member States competences in areas traditionally part of core sovereignty such as immigration carries its own problems see the problematic consequences of the Metock judgment.

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Finally, the implementation of Directive 2004/38 has been far from problem-free. Many aspects of the directive continue to be ignored or mis-implemented please read the Commission report on the implementation of Directive 2004/38 [COM 840 (2008) on moodle]

Further reading
K.Hailbronner, Union Citizenship and Access to Social Benefits (2005) CMLRev, 1245-1267 Dora Kostakopulou Ideas, Norms and European Citizenship: Explaining Institutional Change (2005) MLR 233267 E. Spaventa Seeing the wood despite the trees? On the scope of Union Citizenship and its constitutional effects (2008) 45 CMLRev, 13-45 Francis G. Jacobs, Citizenship of the European UnionA Legal Analysis (2007) 13 n.5 European Law Journal, 591610 (a very useful recap of the main caselaw!)

* Alina Tryfonidou, 'In Search of the Aim of the EC Free Movement of Persons Provisions: Has the Court of
Justice Missed the Point?' (2009) 46 Common Market Law Review pp. 15911620 Michael Dougan Cross-border educational mobility and the exportation of student financial assistance, E.L. Rev. 2008, 33(5), 723-738 Camille Dautricourt Sebastien Thomas, Reverse discrimination and free movement of persons under Community law: all for Ulysses, nothing for Penelope? E.L. Rev. 2009, 34(3), 433-454 Siofra O'Leary, Equal treatment and EU citizens: A new chapter on cross-border educational mobility and access to student financial assistance E.L. Rev. 2009, 34(4), 612-627 Cathryn Costello, 'Metock: Free movement and normal family life in the Union' (2009) 46 Common Market Law Review pp. 587622

* Niamh Nic Shuibhne, 'The resilience of EU market citizenship' (2010) 47 Common Market Law Review pp.
15971628

* Jo Shaw, Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism Edinburgh
School of Law, Working Paper Series 2010/14 available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1585938

* Ferdinand Wollenschlger, A New Fundamental Freedom beyond Market Integration: Union Citizenship and
its Dynamics for Shifting the Economic Paradigm of European Integration, European Law Journal (2011) 17(1), pp. 134

DID ARTICLES 20 and 21 CREATE RIGHTS FOR EU NATIONALS WHO ARE NEITEHR ECONOMICALLY ACTIVE NOR ECONOMICALLY SELF-SUFFICIENT TO CLAIM SUBSTANTIVE EQUALITY OF TREATMENT WITH NATIONALS OF A HOST MS?

Already seen that the rights of movement and residence of EU citizens arising from articles 20 and 21 are subject to the limits and conditions laid down in the Treaties and in the secondary legislation. o The 1990 Residence Directives, now replaced by Directive 2004/38, imposed 2 conditions on the freedom of movement and residence of EU nationals who were not workers or selfemployed, i.e. not economically active. (i) such persons have sufficient resources to avoid becoming a burden on teh social assistance scheme of the state (ii) that they have comprehensive sickness insurance. Four groups will be examined: o Access to social assistance for non-economically active persons o Access to social or educational assistance for students

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Access to various kinds of job-seeker's allowance for persons seeking work. In all 3, the ECJ has ruled that the provisions on citizenship have expanded the circumstances in which an EU national may be entitled to specific social benefits in a host member state. o Fourth group: EU nationals who have acquired the right of permanent residence in an EU MS other than that of their nationality. This is a newly enhanced status introduced by Directive 2004/38 which is enjoyed by all EU citizens who have satisfied certain conditions, adn which continues to be enjoyed regardless of whether the person requires social and economic support from the state or not. NON-ECONOMICALLY ACTIVE PERSONS o Martinez Sala Spanish national who was resident in Germany and had not been working for some time, who was in receipt of social assistance. Case concerned her eligibility for a childraising allowance under national law. Unlikely that she would be considered economically active or economically selfsufficient, alhough ECJ left open the possibility that she could, depending on the facts before the national court, be a worker. ECJ ruled that so long as an EU national is lawfully resident within another MS, he or she is entitled, on a combined reading of articles 18 and 20(2) TFEU, to equal treatment with MS nationals in relation to benefits within the scope of the Treaty. ECJ thus applied the general principle of non-discrimination on grounds of nationality to Martinez Sala on the basis of her EU citizenship and her lawful residence in Germany. o Said that ECJ in this case was willing to 'explode the linkages' which had previously been required in order for the pirnciple of nondiscrimination to apply. Not necessary for there to be any involvment in any activity as a worker or service provider, nor was it necessary to show preparation for a future economic activity as a student etc. However, the fact that the ECJ did not base her right to residence on artices 20-21 TFEU, because it had found that Germany had authorised her residence under the terms of a council for europe convention on social and medical assistance, meant that the court did not have to confront the limiting conditions within arts 20-21 TFEU, and especially the requirement that she should have sufficient resources to avoid becoming a burden on the social assistance scheme of the state. In Trojani however, ECJ directly confronted the limiting conditions of arts 20-21, since teh question whether Trojani had a right of residence under the treaty citizenship provisions was specifically raised by the national court. o Trojani was a French national taking part in a reintegration programme with the Salvation Army in Belgium, who applied for social assistance in the form of a minimum subsistence allowance ('minimex') there.
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ULTIMATELY, ECJ ruled that although EU citizens cannot derive a right of residence from art 21 where they lack sufficient resources within the meaning of the Directive, they are nonetheless entitled, so long as they are lawfully resident on some other basis within a MS, to have access to social assistance on the same conditions as nationals under articles 18 and 21 TFEU. If MS wish to deny an EU citizen access to social benefits under such circumstances, they must move to revoke that person's residence on the ground of lack of sufficient resources. The final protection offered by the ECJ to the MS in such a situation is that recourse to a social assistance system cannot automatically lead to revocation of residence permission or deportation. o In other words, MS are not entitled to equate 'recourse to social assistance' with 'lack of sufficient resources' They must apply the limiting condition in a proportionate manner, and make a proper inquiry into the sufficiency of an EU citizen's resources before moving to revoke his or her residence. o The cases of Ibrahim and Teixeira recently raised the question fo the possible residence rights of the non-working parents of EU-citizen children who were pursuing primary education in a host MS, where the family lacked adequate means of support and health insurance. ECJ, however, decided the cases on the basis of article 12 of Regulation 1612/68 concerning the educational rights of former migrant workers, and derived rights of their carerparents, rather than discussing whether any rights could flow from the children's status as EU citizens, and it refused to read into regulation 1612/68 the 'adequate resources' and sickness insurance conditions from the Citizen's Directive 2004/38. Sala and Trojani on the other hand, both concerned the circumstances of persons whose status in the host state was uncertian and whose rights as EU citizens seemed precarious since they did not appear to satisfy the sufficient resources and sickness insurance conditions of what is now the Directive 2004. o Yet in both cases, the ECJ ruled that, by virtue of the fact that they were EU citizens lawfully resident wihin a host MS, they were in principle entitled to equal access to those social benefits which were available to nationals purely on the basis of their nationality or residence.

STUDENTS o EU citizenship has also been used by the ECJ to strengthen the rights of students under EU law, by extending the circumstances under which EU nationals pursuing educational courses in states other than that of their nationality are entitled to claim certain social advantages, including educational advantages, from either the host state or the home state.
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In Gravier, a French national who was studying for a course in strip-cartoon art in Belgium had challenged the requirement for an enrolment fee for non-Belgians. The ECJ ruled that, since the Treaty at the time specified that the EU should lay down principles for devleoping a common vocational training policy, Belgium was prohibited from discriminating against her under Art 12 EC on grounds of her nationality in access to vocational training. Held that since access to vocational training was likely to promote the free movement of persons, the 'conditions of acess to vocational training' fell within the scope of the treaty, and teh enrolment fee for non-nationals was contrary to the requirement of non-discrimination on the grounds of nationality. Given the financial consequences for MS if they had to trat all students of EU nationality on an equal footing with national students in conditions of access to vocational training the Gravier ruling clearly had far-reaching potential. However, the ECJ inerpreted vocational trainign expansively in this context, ruling that any form of education (inc. University education),which prepared for a profession/trade, or employment was included, even if it included 'an element of general education'. o Court decided to limit the consequences financial consequences of Gravier for MS in a different way, by instead restricting the interpretation of what non-discrimination in the 'conditions of access' to vocational training meant. Subsequently, the 1990 Students' Residence Directive, which had anticipated the ECJ's ruling in Raulin, provided that while students enjoying the EU right of access to vocational education in a host MS must also enjoy a right of residence for the duration of their studies, states could subject this to the requirement that they possess sufficient resources to avoid becoming a burden on the state social assistance scheme and that they possess comprehensive sickness insurance. Against this background, the argument of Grzelczyk, was was a French national studying in Belgium, that he was entitled under the Treaty's prohibition of discrimination on grounds of nationality to apply for state social assistance seemed unlikely to succeed. However, the influence of EU citizenship on the outcome of the case was once again crucial. The Court's reasoning thus far is similar to that of Martinez Sala and Trojani: as a lawful resident EU citizen, Grzelczyk was entitled to equal treatment on grounds of nationality under art 18 TFEU, in relation to benefits which fall within the scope of application of the Treaty. o Here the ECJ made its novel move although it had previously ruled that assistance for students fell outside the scope of the Treaty, teh combination of a new Treaty title on education and the new provisons on EU citizenship had introduced relevant changes.
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Despite the facts that the rights in Art 21 TFEU are subject to limitations and conditions, and that the Students Residence Directive had exluded any right to payment of maintenance grants and imposedrelevant conditions of sufficient resources adn sickeness insurance, which are now contained in Directive 2004, there was no provision expressly precluding students from entitlement to social security benefits. o Finally ECJ ruled that while MS were free to conclude that a student who had no recourse to social assistance no longer fulfilled the conditions for a right of residence, and to withdraw the residence permit, this conclusion could not be the automatic consequence of an application for social assistnace. Court read the various preambles to the various residence directives that the person must not become an 'unreasonable burden' on the public finances of the host state, as an indication that host states could nevertheless be expected to carry a reasonable burden Legislation 'thus accepts a certian defree of financial solidarity between nationals of a host MS and nationals of other MS, particularly if the difficulties which a beneficiary of the right of residence encouters are temporary'. Students Residence Directive did not establish any right to payment of a maintenance grant. ECJ confronted with this situation in Bidar student of French nationality applying in the UK for a student maintenance loan or grant to finance the cost of his studies there. Question was whether such maintenance assistance, despite the explicit limiting conditions in the Directive and case law (Brown and Lair), fell within the scope of the Treaty for the purposes of discrimination under Article 12 EC. Court following a similar line of reasoning to that in Grzelczyk, relied on the introduction of EU citizenship and the changes in educational and vocational training competence under the Treaty to depart from its earlier conclusions in Brown and Lair, and to rule that maintenance grants for students did indeed now fall within the scope of the prohibition of discrimination on grounds of nationality. o ECJ emphasised that its ruling was suported by the recently adopted Directive 2004/38, which provides for equal treatment within the scope of the Treaty for all EU citizens residing in the territory of a host MS, and which provides in Art 24(2) that MS may, if they wish restrict eligibility for maintenance grants for students to those who have acquired permanent residence. Thus, while students could not rely on earlier SRD (nor on Dir 2004) to obtain a right to a maintenance grant, they could rely on art 21 TFEU together with article 18 TFEU to claim a right of equal access to maintainance grants with national students, on the basis that a maintenance grant is henceforth to be considered a benefit falling within the Treaty.
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o o

DRAMATIC RULING sidelining the restrictive provision which MS had inserted into art 24(2) of Directive 2004, which the court sweetened only slightly by ruling that the host state was entitled to grant access to student maintenance grants only to students who had demonstrated a certian degree of integration into the society of that state. o ECJ concluded in Bidar that a requirement to show a link with the state's employment market would not be acceptable, and that the particular conditions of the UK's requirement that the student be 'settled' in the UK was also excessively restrictive and disproportionate. In subsequent case law, however, the ECJ retreated significantly from its ruling in Bidar. In Forster, the court was asked whether the 'integration' requirement which MS may legitimately impose on the right of non-discriminatory access of a student pursuing vocational training to a maintenance grant in a host MS could include a (retroactively applicable) requirement of 5 years prior residence, and the ECJ ruled that such a requirement would be legitimate and not disproportionate. In Morgan and Bucher, however, the ECJ ruled that Arts 20 and 21 TFEU prohibited German rules which limited the availability of study finance abroad in another MS to students who had already completed at least one year of the same field of study in Germany. Given their status as EU citizens, the applicants could challenge restrictions imposed by the MS of their nationality on their freedom to move and study abroad by limiting without adequate justification the availability of study finance to courses which constituted studies already begun in Germany. While the ECJ acknowledged, as in Bidar and Foster, that it might be legitimate for a MS to demand a certain degree of integration into its society in order to ensure that the award of financial grants does not become an unreasonable burden, the degree of integration necessary should have been satisfied in the case in question by the fact that the applicants had been raised in Germany and completed their schooling here. o In the strongly contested Commission v Austria litigation, the ECJ drew again on the status of EU citizenship to bolster the rights of access of students to educational courses in a host MS, although the restriction challenged in this case did not concern the availability of study finance or maintenance grants, but rather the imposition by Austria of additional conditions of access to university education on students whose secondary education diplomas were obtained in another MS. Court following earlier rulings such as Commission v Belgium and Gravier, ruled that this constituted indirect discrimination which could not be justified on any of the various grounds put forward by the Austrian government. Case caused a political storm within Austria, which as a small country bordering a large neighbour sharing a common
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language, argued that it was facing a large influx of students from Germany, which threatened to overwhelm the financial and structural equilibrium of its educational system. When Austria did not comply but introduced even more restrictive rules, the Commission initiated fresh infringement proceedings against the state initiated fresh infringement proceedings against the state, but these were subsequently suspended under an agreement reached between Austria and the Commission due to the political pressure, the Commission initiated fresh infringement proceedings against the state, but these were subsequently suspended under an agreement reached between Austria and the Commission due to political pressure over the pending Lisbon treaty at the time. A parallel legal dispute was brewing with Belgium, however, which had introduced restrictive measures for non-resident students due to its concern about an influx of French students seeking access to educational courses in Belgium. Although the Commission also suspended infringement proceedings which it had commenced against Belgium, the issue eventually came before the ECJ in Bressol via a preliminary reference from a Belgian court. In Bressol, the applicant challenged Belgium's quota system which was designed to restrict the access of non-resident EU citizens into certain medical degree programmes, ostensibly in order to ensure that at least a certain number of Belgian residents would graduate each year with the ultimate objective of protecting public health. o The ECJ mirroring the Commission's retreat from its initial from its initial infringement proceedings against Belgium, took a significantly softer stance than it had in the earlier Commission v Austria litigation. o ECJ ruled that although Articles 18 adn 21 TFEU prima facie prohibit such a quota system for EU citizens based directly on nationality, there may be an exception where the national authority can show that it is restricting access of non-resident EU citizens in order to ensure a sufficient supply of national graduates to staff the French Community public health service. o Whether there was an actual risk to the health service was to be determined by the national courts, but the ECJ emphasised the need for data and specific evidence to the effect that equal access for non-permanently resident EU nationals is detrimental to teh
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public health service and the quota system (which included the drawing of lots for those over quota) would actually ameliorate that problem. Consequently, even though the status of EU citizenship has been invoked by the ECJ to enhance the rights of access of students in certain circumstances to maintenance grants, social security, and educational courses in host MS, teh court has shown itself responsive to adverse MS reactions in this field, adn it has softened some of its strongest rulings, as the shift in its stance from Bidar to Forster, adn from Commission v Austria to Bressol suggests.

JOB-SEEKERS o In D'Hoop the ECJ ruled that a Belgian national who was refused a 'tideover' allowance when seeking her first job on the Belgian job market, purely on the grounds that she had completed her secondary school education in France, had suffered discrimination on the basis of her EU citizenship, and in particular on account of her exercise of the EU right to move and avail herself of educational opportunities in France. o Court ruled that while it might in theory be possible to justify a refusal to grant a tideover allowance to an EU citizen on the basis that there must be a sufficient link between the jobseeker adn the host state, the condition which Belgium actually imposed was based on teh place where the diploma of completion of secondary education was obtained. This was a disproportionate condition since it did not represent the real and effective degree of connection between the applicant and the Belgian job market. D'Hoop ruling was developed in Collins: Here we see the court revisiting its prior case law, in which it had ruled that job-seekers, athough covered by Article 45 TFEU as far as access to employment was concerned, were not entitled to social advantages under the Treaty of secondary legislation. o It is precisely the introduction of EU citizenship in the Treaty which provided the Court with reason to depart from this earlier case law, and to rule that the rights of job-seekers under art 45 should be interpreted in the light of the more general right to equal treatment of EU citizens. Given this new interpretiv framework, the Court ruled prior to its contrary ruling in Lebnon, that a job-seeker was henceforth entitled under Art 45 to a 'benefit of a financial nature intended to facilitate access to employment in the Labour market of a MS'. As far as the compatibility with EU law of hte residence condition was concerned, the Court, following the reasoning in D'Hoop, ruled that although it was legitimate for a state to require that a jobseeker has a genuine link with the employment
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market of the state, e.g. by requiring that the person has for a reasonable period genuinely sought work in that state, a residence condition would have to be applied in a proportionate and non-discriminatory way. o Collins was confirmed and applied in teh subsequent case of Ionnidis. It would remain to be seen, however, whether this case law woudl survive the introduction in art 24(2) of Directive 2004 of the provision permitting MS, by way of derogation from the equal treatment principle, to limit entitlement to social assistance for migrant EU nationals and their families during the first 3 months of residence or for the longer period provided for job-seekers in art 14(4)(b). The parallel provision in art 24(2) allowing MS to restrict the availability of maintenance grants to students was effectively sidelined by the ECJ in Bidar, where it ruled that students could rely directly on art 18 and 21 TFEU to gain entitlement to a maintenance grant. ECJ was confronted directly with this question in Vatsouras, wehre a number of Greek nationals whose economic status was unclear had applied for jobseeker's allowances in Germany. Court was asked whether the degree of derogation in art 24(2) of teh Directive concerning social assistance for jobseekers was compatible with the commitment to equal treatment for EU citizens under arts 18 and 21 TFEU. o ECJ confirmed its ruling in Collins that the introduction of EU citizenship had the effect of overuling earlier case law such as Lebon, by henceforth including within the scope of art 45(2) TFEU nondiscriminatory entitlement to benefits intended to facilitate access to employment. Job-seeker benefits of this kind, according to the ECJ, should not be considered to be 'social assistance' within art 24(2) of the Directive 2004. In other words, the impact of EU citizenship in widening the scope of Article 45(2) to include job-seekers benefits correspondingly limits the scope of art 24(2) so as to exclude such benefits from the derogation permitted to MS under the Directive. o Yet, the Vatsouras judgment did not conclude that art 24(2) was either incompatible with the Treaty or wholly redundant: MS may arguably continue to rely on art 24(2) to exlcude job-seekers from access to other kinds of 'social assistance', although not from the benefits which are objectively construed by the domestic court as 'intended to facilitate access to the Labour market' and therefore falling within article 45 TFEU. EU CITIZENS WHO HAVE ACQUIRED A RIGHT TO PERMANENT RESIDENCE UNDER DIRECTIVE 2004/38 o Art 16 of Directive 2004/38 introduced a right of permanent residence' in a host EU MS for EU citizens who have resided legally there for a continuous period of 5 years, and which can only be lost, under art 16(4), through absence from the host MS for a period exceeding 2 consecutive years. This right of permanent residence is not subject to conditions provided earlier in the Directive, including the conditions of possession of adequate resources adn sickness insurance in art 7(1). Questions have arisen about the precise conditions for the acquisition and loss of this status of permanent residence.
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In Lassal, the ECJ confirmed an earlier ruling to the effect that the provisions on EU citizenship are applicable as soon as they enter into force adn must be applied to the present effects of 'situations arising previously'. ECJ ruled that continous periods of five years' residence completed even before the date for transposition of the Directive 2004 must be taken into account in determining acquisiton of the status of permanent residence, athough the right itself could not be acquired before the transposition date, adn that temporary absences occurring prior to the date of transposition, but after completion of a continuous period of 5 years, woudl not affect such acquisition. The bottom line is that EU citizens who have acquired the right of permanent residence in a MS are entitled to virtually full material equality and equal access for themselves adn thier families to social benefits as nationals of the host state, regardless of their lack of resources of health insurance. Pg 845

Citizenship cases Main problems

What sort of model are the rights part of? Right to free movement and residence Students Non-economically active Family members Social benefits and advantages- for family members and those who are economically active Right to a surname Right to child benefits- if prove resident in accordance with EU law Vote in EP elections and municipal elections Consular protection

Main rights

Rights of workers- look at directive

Weiler
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Believes citizenship is a lot more than a mere device for placating an alienated populace goes to foundation of political legitimacy europe has powers which come close to a state can create norms- which has major impact on social and economic orientation of public life within MSs Citizenship to address democratic deficit in europe Problems with EU model- cannot replicate at community level the habit of government control, parliamentary accountability and administrative responsibility as EU governance is remote, opaque and inaccessible Although opponents of the concept have argued that- EU should not be about formulating a citizenship- because it was always about the peoples of europe never about formulating a single identity Analogy of the EU with a mult-national co- citizenship= attractive product image but therefore the union belongs to citizens as much as an MNC belongs to shareholders Citizenship is about social policy and identity of the polity- citizens constitute the demos of a polity Developing idea of european citizenship- following similar path as european integration did- started as a trivial idea but took life of its own Belongingness and orginality required- for nationhood Supra nationalism = policing boundaries against abuse affirming values of liberal nation state Unity project = seeks to redraw the actual political boundaries of the polity How to enhance transnational democracy? Direct representative democracy, use of internet, constitutional council, EU should collect its own taxes it would make MEPs more accountable and provoke more citizen interest however this is unlikely to be accepted- too radical, too far a step which encroaches upon national autonomy Grezelczyk- citizenship destined to be the fundamental state of nationals of MSs aspiration not reality yet States act as gatekeepers in determining citizens Why is citizenship possible in EU? Polity based on constitutional framework- respect for fundamental rights- principles of limited accountability- electoral ombudsmen- citizenship related practices in EU it is citizenship capable Structures of integration remain under dispute ECJ remains engineer for EU integration Legacy of market citizenship- is durable Citizenship concept more effective- under free movement and single market questions- rather than citizenship- questions- in political debates There can be no common identity as EU based on diversity Old constitutionalism v new constitutionalism Old constitutionalism = supremacy, direct effect, competence, respect for fundamental rights single market supranational legal order New constitutionalism- concept of citizenship- anchored in old constitutionalism- - eu citizenship only adds to national citizenship rights right to vote- most important Link between citizenship and non-discrimination more evident- Martinez Salaupholding citizenship rights Concept of citizenship embraced- and pushed in directions where it would not have gone if they were seen as free movement of discrimination cases Bidar- educational benefits for students GARCIA Avello- right to a surname

Jo Shaw

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By trying to ensure that states do not place obstacles in exercising free movement ECJ went in to areas which are substantially matters for national law Citizens should not be deprived of firghts which they would have benefited from if they had not exercised their free movement rights however there are obstacles- do not have voting rights in national elections- hence low level intra Eu integration- loss of professional statuscommunication/ language barriers Transition from constitutional treaty- to Lisbon treaty- abandoned constitutional idea- MSs masters of treaties No obvious legitimacy driving argument that EU citizenship should be developed in more substantial ways Criticised use of dual nationality- unfortunate way of describing citizenship Dual citizenship- suggests that full and competing loyalties to two different separate polities each making a similar claim of allegiance on individual Market integration is valuable- can have a constitutional market- can have rights driven profile of EU market citizenship Although there are flaws in this market citizenship- it has come a long way AG maduro said- citizenship of the union encourage MSs to no longer conceive of the legitimate link of integration only within narrow bounds of national community but also wider community of society of peoples of the union Infancy of citizenship Market citizenship model is valuable it offers more than we assume Defintion of citizenship- membership, democracy and participation reciprocal duties and obligations EU is a citizenship capable polity- it has political, constitutional and economic elements- not an organisation Van Gend En Loos- new legal order- constitutional polity EU constitutionalises a framework in which a market functions Single market is centre stage- primarily exists to deliver a market- but NOT sole purpose although market citizenship is shaped by qualities of market EU citizenship rights related to transnational movement exclusively Normative, constitutional as well as economic aspects Martinez Sala- breakthrough case relied on personal and material scope rights intended for economically active- now available to those who showed that they were resident in host state through community law- without having to show self-sufficiency More expansionist trend-requirements of self-suffiency and health insurance softened Still fits with market citizenship = boundaries of free market pushed but not further than framework Reverse discrimination/ wholly internal situations- Singh- change in perspective- but even this need to find some cross border dimension- even a potential one Zambrano- awaiting decision Internal market maintained for individuals Court still uses free movement of workers, establishment, services as resolution for most cases- so resolves cases on these provisions- economic free movement first- and then use art 21- only where more specific treaty freedoms not available Citizenship rights = residual Citizen initiative still need to see impact of it
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De Burca

Niamh Shuibhne

Political citizenship rights- Eman v Sevinger- internal situation- striking reach of nondiscrimination- pierces shield of internal state business Critical gap however- citizens denied entry in to body politic- national elections Criticised ECJ for creating rights that do not exist through proportionality E.g. Grzelcyzk where it was accepted that there is a degree of financial solidarity the student fell on hard times after supporting himself for two years- was entitled to receive some financial help Bidar- ECJ said that the student directive only applies to students that move to start or pursue higher education- in another MS- such a distinction does not exist in directive Notion of market citizenship is inherently limited Argued that self interest of instrumentalist market did not establish general allegiance to the communities Market citizenship model- workers considered to be factors of production, if you move you help the market internal market model Social citizenship model- have rights and duties- AKA welfare state Participatory democratic model- can participate in democracy Transnational market model- nested citizenships- regional nationality national citizenship and supra national citizenship institutional pluralism EU is a transnational citizenship and market citizenship model Imbalance between input and output- EU distributes social rights but has no power to collect taxes in national states no way to direct how to collect money to pay for social rights, - EU has no control of those rights- the cost of it i.e. social and economic Commission v Austria university places distribution- many students coming to Aus- for free education- Aus wanted to give universal education and free education- ECJ held that AUS should charge for places raise fees- cannot have universal education and free education- if you want universal education will have to charge market vision clashes with social vision Unbalanced model- Ms has to charge and collect but EU distributes inherently unbalanced Martinez Sala, DHoop, Grzelyczk firstly tried decide on free movement articles of workers and establishment- before citizenship was invoked Citizenship test traditionally- based on personal scope- Kaur- MS gatekeepers to EU citizenship- have to show you are a MS national first material scope- economic, non-economic, students territorail scope- interstate movement scope not applicable in wholly internal situations rottmann recently eroded personal scope partly- had to give up Aus nationality to become Ger national- got this illegally- ger were going to take away nationality- held would have been left stateless this is not allowed and therefore MSs must have due regard to rights awarded by free movement- when applying national law shift towards a test based on personal and territorial scope- removing the need to show material scope because non- economically active persons are allowed to have similar rights now how can it be called EU citizenship when it does not apply to wholly internal situationsaddressed this by focusing on free movement instead of discrimination
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Hailbronner

Everson

Problems with citizenship

court less willing to intervene in reverse discrimination cases as it would further erode regulatory autonomy of MSs metock decision highly controversial rights extended beyond those economically active- for students and family members- including those third country family members economically active citizens given- employment rights, social advantages and education rights there is a regulation for economically active citizens facilitate their mobility right to equal treatment- acess to employment- commission v Italy total bans not allowed Language requirements Groener- subject to proportionality test Social advantages- are available too- as long as show real link to community Reina Childrens education rights- children of eu citizens- allowed to remain in host country until education completed- Ibrahim Collins those looking for work are entitled to jobseekers allowance or equivalents - extensiongenuine link to community and geographical employment market is fine to ask for Social assistance only available to economically active citizens and their families not noneconomically active citizens Workers have right to education- Gravier The only exception to non-discrimination AGAINST EU CITIZENS IN EMPLOYMENT MARKET- is being employed in public service

social aspect to free movement- more pronounced since introduction of union citizenship

NON-ECONOMICALLY ACTIVE CITIZENS

Right to free movement and short-term residence up to three months- no requirements to prove only show valid ID and that you are MS citizen Those who have sufficient resources- and medical insurance- DO not become burden on statethen they can remain resident for more than 3 months- 2 conditions seemingly burdensome- but subject to proportionality test so softened Once resident for 5 years- can get permanent residency and this entitles people to have access to full benefits Before 5 years not entitled to social assistance benefits Criticism EU citizenship only for those who are not poor or sick Very low threshold to be deemed economically active Kempf- part time music teacher worked only 12 hours a week However it seems that free movement of persons still remains an economic policy- have to prove economic sufficiency/ or be a worker Market access test almost- no discrimination allowed- equal treatment Baumbast- german family had sickness insurance which did not cover all of their costs- but they had been in the UK for quite some time- had not been a burden harsh to deny them further residence for a breach was minor proportionality and non-discrimination key principles to be applied Commission v Netherlands- state could not require sufficient funds for one yeardisproportionate Kaur v Rottmann- kaur= Mss decide who to give national citizenship to- however it must be in light of Rottmann where citizen cannot be left stateless- so MSs when applying their rules must have due regard to free movement rights so Rottmann eroded the material scope Huber- german gov had database concerning info about all EU citizens but not own nationalssaid it was to fight crime- Huber felt rights to privacy violated it did not violate right to free movement however because there was unequal treatment so violated art 18
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Rights of non-economically active citizens Free movement / right to reside for more than three months- show economic sufficiency/ medical insurance Equal treatment and non-discrimination However not social assistance benefits-this is qualified HOWEVER Once residence even non-economically active citizens entitled to benefits Martinez Sala Permanent Residency- once been in host state for 5 years Right to a surname Garcia-Avello- children were dual nationals- they had never exercised cross border rights- mere fact they had spanish nationality meant that they could engage EU law Ilonka Sayn-wittgenstein german lady adopted by austrian prince- had to sell castles needed her title- austria however said that it would be a breach of principle of equality from their constitution if she was allowed to keep her title in her name- ECJ agreed with Austria Right to vote in EP and municipal elections- eman and Sevinger- two dutch citizens living where EU law does not apply- rules for voting were up to MSs to decide- but it had to comply with principle of equality- distinction between dutch citizens in america and those in aruba was not coherent therefore netherlands not allowed to discriminate Family members Carpenter-same right of entry and exit between Mss- as citizen if family member- family member defined in directive Jia notion of depedent- mother in law of german resident in swedenfrom china- if family member not able to support themselves- must prove this and then they are classed as a dependent upon EU citizen- so allowed to come in within the EU- dependency must exist prior to reunification Zhu Chen baby irish citizen- mother able to establish her right to stay because she was the primary carer- for her baby- and the babys right of residence would be of no use otherwise Family and human rights- Akrich had to be married beforehand thoughremoval of person from country where close members of family are may amount to breach of art 8- - subject to proportionality test- look at a no. Of factors-length of marriage did spouse know of offence before they married, are there children involved Metock- reversed Akrich- asylum seekers in ireland married Uk citizensresident in ireland- thereby became spouses of migrant workers- right of family member to live with EU citizen is simply dependent upon conditions of directive- - it does not matter if citizen met their partner in host state still counted as unification Decision highly controversial- arguments about input v output

Students Prove they have sufficient resources and medical insurance

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 Grzelyczk financial solidarity, student had supported himself for 2 years fell on hard times- was said entitled to help because there was some financial solidarity accepted between MSs- as long as help needed for temporary time Bidar- completed 2 years A levels in the UK- but could not qualify as residency requirement was 3 years- ECJ held this was unfair had studied for 2 years- and could not go anywhere else to study therefore real link established Forster- non-economically active migrants not entitled to study finance until resident for 5 years- rule was justified so woman not entitled to study finance- Dutch citizens treated differently- it shows how citizen and home state share special bond for a foreigner it takes time to integrate or if you are economically active- residency for 5 years- proves genuine link to community therefore can receive study loans- so emphasis on residency to qualify Morgan- german student wanted to go to Uk to study- wanted german study finance to be paid to her- but german rule was that she needed to be in further education in germany for 1 year- before could be given the loan- ECJ said this was discriminatory stopped her from exercising free movement right- must show real genuine link
Seems odd because citizenship is supposed to overcome this Bidar and Collins (Job seekers allowance) court emphasised that the rules were acceptable- because they applied to nationals also- residency requirements applied to nationals and EU citizens Morgan and Bidar v Foster different emphasising factors- incoherent- sometimes on criteria to prove genuine link- and sometimes does not matter if genuine link or not need to have residency for 5 years

Wholly internal situations/ reverse discrimination Again incoherent law Uecker and Jacquet- attempted to rely on family rights to bring partners to Germany- failed to establish case- they did not exercise right to free movement they were worse off than EU citizens- because despite nationals of germany were not allowed to bring family members- but EU citizens who had migrated entitled to call family over- treaty only applies to cross-border element- Territorial scope Singh- however extended ways in which a connection can be made to cross border movement so EU law can be engaged woman who went to work in germany where lived with her indian husband- could invoke citizenship right when returning back to britain because if her husband wasnt allowed residency it would have been a deterrent to free movement- had she known this would have happened then it would be less attractive to her to go to germany Carpenter free movement of services could be applied to British citizen in resident in the UK against UK government- simply because he often travelled to continent in service provision- some element of cross border activity Eind dutch government argued that returnee rights should only continue if returnee is economically active however ECJ said that the introduction of the citizenship concept and broader residence rights changes the position citizens have unconditional rights of residence in home statesso returnees have EU rights also
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