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CITIZENSHIP OF THE EU
Free movement rights are also extended to the non-economically active people on
the basis of the provision of citizenship.
ARTICLE 20 OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION (TFEU) states:
Every citizen holding the nationality of a Member State shall be a
citizen of the Union. Citizenship of the Union shall be additional to and
not replace national citizenship.
There are various rights enjoyed by the citizens of the EU as provided under ARTICLE
20(2) OF THE TFEU.
However, the most important is the right to move and reside freely in the territory
of the Member State.
ARTICLE 21 OF THE TFEU elaborates on ARTICLE 20. It specifically provides that:

Every citizen of the Union shall have the right to move and reside
freely within the territory of the Member State subject to the
conditions and limitations laid down in the Treaties and by the
measures adopted to give them effect.
The incorporation of Citizenship provisions within EU Treaties give rise to several
questions regarding their likely impact. Some of these questions are identified
below:

Autonomous and Directly Effective Right


Did the Treaty provisions on citizenship create an autonomous and directly
effective right to move and reside in a Member State, regardless of
whether the person falls within any other status category of EU law?
This question was addressed in BAUMBAST which established that ARTICLE 20(1) OF THE
TFEU confers a directly effective right on EU citizens to reside in a host Member
State regardless of whether they are employed or self-employed.
The main overall impact of ARTICLE 20(1) was to move the free movement rights of
such citizens from a legislative footing to a Treaty footing. This move had some
significant legal consequences, since the ECJ rules 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.
The ECJ reaffirmed that ARTICLE 20(1) TFEU, confers a directly effective and
autonomous right of residence on EU citizens who do not fall within any of the
existing EU status category in CHEN.

Wholly Internal Situation


Did Article 20 and 21 of the TFEU change the law as concerns wholly
internal situations?
Rights of free movements and residence do not apply to wholly internal situation.
However, due to the incorporation of Citizenship provision within EU Treaty, this
principle has been challenged by on many occasions. However, the ECJ in KREMZOW
AND UECKER ruled 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.
Two developments since the introduction of EU citizenship can be noted:
1. The cases brought before the ECJ have identified an increasingly broad range
of circumstances with a cross-border dimension. This includes, even where
the litigant is a national claiming against his or her own Member State as
exemplified in:
SCHEMPP: a national in a Member State who had not himself made use of the right to
freedom of movement could not be protected whereas, his former spouse, to whom
he continued to pay maintenance, had exercised her right as an EU citizen to move
to another Member State, and this affected his tax position within Germany.
GARCIA AVELLO: 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
Member State in which they were born, and were not presently intending to move.
However, in this case the person claiming rights as an EU citizen also happened to
possess the nationality of a Member State other than that of the other than that of
the host state. Garcia Avello was a dual Belgium-Spanish national resident in
Belgium.
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. This is evidenced in:

ZAMBRANO: the ECJ was faced with a situation involving the non-EU parents of two EU
citizens children born and resident in Belgium who had never left that Member
State. The Advocate General argued at length that EU citizenship is not wholly
bound up with movement between Member States, and that the right of residence
and the right to move are independent rather than combined rights. On the other
hand, the ECJ regarded the refusal of residence and a work permit to the parents as
an obstacle to the enjoyment of an EU citizens i.e. the childrens right, for if the
parents were expelled from the country, the children would be forced to the leave
the host Member State as they were still minors and had to accompany their
parents.
CHEN: A Chinese woman residing in England was pregnant at the time she moved to
Northern Ireland to give birth to the baby. The legislation applicable at the time of
the materializing facts meant that since the child was born, it automatically
obtained Irish nationality and thereby EU Citizenship. The mother later applied for
UKs residency while holding on to Chinese nationality. Directive 2004/38 provides
that dependent relatives in the ascending time of an EU national have rights to
install themselves in the same Member State as the EU national resides.
The ECJ ruled that Catherines mother could not be considered a dependent
relative for the purpose of deriving a right of residence through her childs EU
citizenship, since the reality was that the child was dependent on the mother rather
than vice versa. However, the Court ruled that a refusal to grant a right of residence
to the parent, whether an EU national or not, who is the primary caretaker of a child
possessing EU citizenship, and enjoying sufficient resources and health insurance
would deprive the childs right of residence of any useful effect.
MCCARTHY: the Court ruled that ARTICLE 3(1) OF DIRECTIVE 2004/38, was not applicable
to an EU citizen who had never exercised her right to freedom of movement and
who had always resided in a Member State of which she was a national, and who
was also a national of another Member State. Nevertheless, the ECJ ruled that the
fact that McCarthy had never exercised her right to freedom of movement was
insufficient in itself to conclude that she was in a wholly internal situation as far as
the applicability of ARTICLE 21 OF THE TFEU was concerned. This is because ARTICLE 20
OF THE TFEU, precludes the 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 Member State in question
and have never exercised rights of free movement.
Thus, the introduction of EU citizenship and the rights of movement and residence
in ARTICLES 20 AND 21, have placed continued pressure on the notion of a purely

internal situation and have reduced though certainly not eliminated the scope of the
wholly internal situation scenario from which EU law is excluded.
DERICI: Five separate applications were made; all concerning third country nationals
of which the first three were two men and one woman married to Austrian nationals;
whereas the last two applications concerned two adults seeking to join or remain
with one of their parents, also Austrian nationals. None of the Austrian nationals had
exercised their right of free movement and were not dependent upon any of their
third country national family members.
The Austrian authorities rejected all five claims on grounds that all five Austrian
nationals had not exercised their rights of claim and hence EU law was not
applicable. Following ZAMBRANO and MCCARTHY the ECJ held that DIRECTIVE 2004/38
does not apply to wholly internal situations. The ECJ reiterated this principle when
discussing ARTICLE 20 OF THE TFEU but stated that: those who have never exercised
their right of free movement cannot for that reason alone be adjusted to a purely
internal situation as citizenship of the Union is intended to be the fundamental
status of nationals of Member States.
The ECJ then stated on the basis of this statement that:
1. An EU citizen may therefore rely on rights pertaining to that status, including
against Member States of that origin.
2. ARTICLE 20 excludes national measures which have the effect of depriving
Union citizens of the genuine enjoyment of the right conferred by virtue of
that status.
3. The criterion relates to the denial of the genuine enjoyment of such rights
refers to situations in which the Union citizen has. in fact, to not only leave
the Member State of which he is a national but also the EU territory as a
whole.
4. ECJ does not define this criterion futher other than to set out that it: is
specific in character in as much as it relates to situations in which . a right
of residence may not, exceptionally, be refused to a third country national
as the effectiveness of Union citizenship enjoyed by Union citizens would
otherwise be undermined.
5. The above without prejudice applies to the protection of family life (either
under ARTICLE 8 OF THE ECHR or ARTICLE 7 OF THE CHARTER OF FUNDAMENTAL RIGHTS
OF THE EUROPEAN UNION). This may mean that a right of residence cannot be
refused in any event.

Rights for Non-Economically Active or Self-Sufficient EU


Nationals
Did Articles 20 and 21 Create Rights for EU Nationals who are neither
Economically Active nor Economically Self-Sufficient to Claim Substantive
Equality of Treatment with Nationals of a Host Member State?
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 secondary
legislation.
DIRECTIVE 2004/38, imposes two conditions on the freedom of and residence of EU
nationals who were not workers or self-employed that is not economically active:
1. that such persons have sufficient resources to avoid becoming a burden on
the social assistance scheme of the state; and
2. that they have comprehensive sickness insurance

Non-Economically Active Persons


An EU national, so long as he is lawfully resident within another Member State, is
entitled to equal treatment with Member State nationals in relation to benefits as
found under ARTICLE 18 AND 20 OF THE TFEU: MARTINEZ SALA,
The ECJ broadens the scope of citizenship to declare it as a fundamental freedom or
status of the national of a Member State, as further evidenced in subsequent case
law.
BAUMBAST ruled that EU Citizens may rely on EU Citizenship before the national
courts.
In TROJANI, the ECJ held that although under ARTICLE 21 EU citizens are not entitled to
a right of residence due to lack sufficient resources within the meaning of the
Directive, they are nonetheless eligible, so long as they are lawfully resident on
some other basis within a Member State, to have access to social assistance on the
same conditions as nationals under ARTICLE 18 AND 21 OF THE TFEU.
If Member States wish to deny an EU citizen access to social benefits under such
circumstances, they must move to revoke that persons residence on the ground of
lack of sufficient resources. However, remedy to social assistance cannot
automatically lead to a revocation of residence permission or deportation. They
must as ARTICLE 16 OF DIRECTIVE 2004/38 suggests apply the limiting conditions in a

proportionate manner and make a proper inquiry into the sufficiency of an EU


citizens resources before moving to revoke his or her residence.

Students
The ECJ strengthens the rights of students under EU Citizenship law, by extending
the circumstances under which EU nationals pursuing educational courses in other
Member States are entitled claim certain social advantages, including educational
advantages, from either the host state or their home state as evidenced in GRAVIER.
The 1990 STUDENTS RESIDENCE DIRECTIVE, provided that while students enjoying the
EU right of access to vocational education in a host Member State 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.
If the EU citizen presents to be financial burden on the host Member State for a
temporary duration, it will not affect the individuals right of residence, regardless of
an application for social assistance. For the individual is entitled to equal treatment
on grounds of nationality under ARTICLE 18 OF THE TFEU. Moreover, DIRECTIVE 2004/38
does not expressly preclude students from entitlement to social security benefits:
GRZELCZYK.
A similar line of reasoning was followed in BIDAR, to depart from its earlier
conclusions in BROWN and LAIR. It held that maintenance grants for students fall
within the scope of the prohibition of discrimination on grounds of nationality.
The ECJ, however, retreated in broadening the scope for students after BIDAR in the
subsequent case law.
In FORSTER, the ECJ held that the integration requirement, Member States may
legitimately impose on the right of non-discriminatory access of a student pursuing
vocational training to a maintenance grant in a host state. Such an action would not
be considered disproportionate.
However, the integration requirement must not become an unreasonable burden:
MORGAN AND BUCHER. This is evidenced in COMMISSION V AUSTRIA and BRESSOL.

Job-Seekers
The situation of job-seekers covered by ARTICLE 45 OF THE TFEU, who wished to apply
for a job-seekers allowance was addressed in the following cases:

DHOOP: The ECJ ruled that discrimination on the basis of EU citizenship, and in
particular on account of an individual exercising the EU right to move and avail
educational opportunities in other Member States was not acceptable. However, a
refusal for job-seeker allowance may be justified on the basis that there must be a
sufficient link between the job-seeker and the host state. This ruling was further
developed in COLLINS.
COLLINS: the ECJ ruled that the rights of a job-seeker under ARTICLE 45 should be
interpreted in the light of the more general right to equal treatment of EU citizens. It
held that a job-seeker was henceforth entitled under ARTICLE 45 to a benefit of a
financial nature intended to facilitate access to employment in the labour market of
a Member State. This was contrary to ECJs ruling in LEBON.
It further stated that although it was legitimate for a state to require that a jobseeker has a genuine link with the employment market of the state a residence
condition had to be applied in a proportionate and non-discriminatory way. This
judgement was applied in IOANNIDIS.
VATSOURAS: The ECJ confirmed its ruling in COLLINS that the introduction of EU
citizenship had the effect of overruling earlier case law such as LEBON, by henceforth
including within the scope of ARTICLE 45(2) non-discriminatory entitlement to
benefits intended to facilitate access to employment. Job-seeker benefits of this kind
should not be considered to be social assistance within ARTICLE 24(2) OF DIRECTIVE
2004/38.

Enhanced Right of EU Citizens to Challenge Restrictive


Measures
Did Articles 20 and 21 Otherwise Enhance the Rights of EU Citizens to
Challenge Restrictive Member State Measures?
A range of additional cases exemplify the circumstances in which the rights of EU
Member State nationals and their families have either been introduced or enhanced
by the creation of EU citizenship.
BICKEL & FRANZ: the ECJ emphasized that German and Austrian nationals who were
subject to criminal proceedings in Italy and who requested the used of German in
the proceedings were exercising their right to free movement as European citizens
based ON ARTICLE 21 OF THE TFEU and were entitled not to be discriminated against
on grounds of nationality.

HUBER: the ECJ ruled that a Member States crime prevention system which involved
processing personal data specific to EU citizens who were not nationals of that state
would violate ARTICLES 18 AND 21 OF THE TFEU.
Similarly, in a range of cases in which Member States sought to adopt restrictive
public policy measures against non-nationals, the ECJ has invoked the legal
provisions on EU citizenship to bolster the rights of the individuals concerned:

COMMISSION V BELGIUM: automatic deportation for failure to produce the relevant


documents within the prescribed time period.
TSAKOURIDIS: the public policy measures must be proportionate and must respect
fundamental rights.
WOLZENBURG: additional administrative requirement must not be imposed on nonnationals.

In PUSA and ZANOTTI, the ECJ has condemned a number of restrictive or


discriminatory measures imposed by Member States as regards access to social or
tax benefits as a violation of ARTICLE 20 OF THE TFEU, regardless of whether the
applicants were workers or not.

Political Rights of Citizenship


With the creation of EU citizenship, certain political rights came into being. The
TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION, provides for citizens to be directly
represented at Union level in the European Parliament, and to participate in the
democratic life of the Union (ARTICLE 10 OF THE TREATY OF EUROPEAN UNION).
Specifically, the following rights are afforded:

right to vote and stand in elections to the European Parliament: ARTICLE 22.

right to vote and stand in the local elections in an EU state other than their
own, under the same conditions as the nationals of that state: ARTICLE 22.

a right to access to European Parliament, Council, and Commission


documents: ARTICLE 15.

The right to petition the European Parliament and the right to apply to the
European Ombudsman in order to bring to his attention any cases of poor
administration by the EU institutions and bodies, with the exception of the
legal bodies: ARTICLE 24 (3).

The right to apply to the EU institutions in one of the official languages and to
receive a reply in that same language: ARTICLE 24.