CITIZENSHIP OF THE EU

anne.hamonic@univ-rennes1.fr

SESSION 1 & 2
Introduction
o Specify the law (international/national)
o Different dimensions of the EU law
 fundamental rights, free movement and the problems with them
(Covid, Brexit)

Treaty on European Union and the

Treaty on the Functioning of the European Union
Citizenship of the EU
o Expression is based on art. 9 TEU; 20 TFEU
o The population of EU corresponds to the nationality of the member state
o It’s possible to be a national but not citizen (minor children, persons deprived
from their rights)
o Rights of citizens
 Right to vote for parliament
 Right to vote in other countries election
 Right to move freely in EU territory
 Right to have protection in embassy of any member state
o ECJ Case C-184/99 (20.9.2001): Union citizenship is destined to be the
fundamental status

Definitions
o The state of being a member of a particular country and having rights
because of it
 Wrong: Citizenship can’t be based on EU, because it’s not acountry
o Citizenship can be defined as “the status of having the right to participate in
and to be represented in politics”
 Wrong: More than just a political aspect
o EU citizenship is an legal instrument

Raison d’être (meaning) of the citizenship of the EU

1. A specific legal subject
o integration
o not just a classical international organization
o not only closer relationship between the states, but between the people (art
1(2) TEU)
o Euroopan unionin erityisluonne
2. An evolutionary organization
o no more than just an economic organization
o a new political dimension beside the economic aspect
3. Objectives of the creation and development of EU citizenship
 o 1/ to legitimize the European construction, it’s towards a general
organization of built on integration
o 2/ to develop a common sense of belonging with a new political entity to find
an identity
How to develop the sense of belonging of EU citizens?

AMENDING TREATIES Article 20 (ex Article 17 TEC)

MAASTRICHT TREATY (1992/1993) 1. Citizenship of the Union is

1) art. 20 TFEU: Citizenship of EU
2) art. 21-24 TFEU: List of rights
AMSTERDAM TREATY (1997/1999)
1) art. 20 TFEU: third sentence
2) art. 24(4) TFEU: ombudsman
3) art. 15(3): access to documents
NICE TREATY (2001/2003)
1) precision to using own language
2) EU Charter of Fundamental Rights (not binding)
hereby established. Every person
holding the nationality of a
Member State shall be a citizen of
the Union. (Maastricht Treaty)
Citizenship of the Union shall be
additional to and not replace
national citizenship. (Amsterdam
Treaty)

LISBON TREATY (2007/2009)

1) copying art. 20 TFEU -> art. 9 TEU
2) adding political rights (democratic life and initiative)
3) binding effect of EUCFR

Introduction and history of citizenship of the EU

4 steps in the history of EU

1. The silence of the founding treaties of the ECs
o Economical aspect
o No specific citizenship in the founding treaties
o Citizenship is evolving even if it’s not in the founding treaties
o Silence or consubstantiality
 Idea of consubstantiality is linked to integration
o Primacy and direct effect of the EC law are based on the ECJ case law
 Van Gen den Loos 5.2.1963 case 26/62: direct effect
 Costa v. Enel 15.7.1964 case 6/64: primacy

2. The emergence of a “Citizens Europe” (1970-1980)

o Progressive conceptualization: based on several initiatives
o Important texts
1) Dec. 1974: Paris summit
 heads of states decided to create civil and political rights called
special rights
 idea of the European parliament
 2) 1975: Report from the commission “Vers l’Europe des citoyens”
 Importance of right to vote and stand as a candidate
 Commission suggested an evolution of the international borders
(free movement of people)
 Base for the political rights but also other special rights
3) Dec. 1975: The Tindemans report (entitled “European Union”)
 In the report there is a special section Citizen’s Europe
 Social and human dimension and trying to make EU as a part of
citizens’ everyday life
 Developing external signs of solidarity between Europeans:
a) passports
b) student exchanges
c) promote information in media
 Ensuring the protection of rights of the Europeans
 The report wasn’t received well in the states
4) Sept. 1976: Act concerning the election of the representatives of the
European Parliament by direct universal suffrage
5) Nov. 1977 resolution of the EP on the granting of special rights to be
citizens of the European Community
 not a binding act but political initiative
6) Feb. 1984: Spinelli project (EP project for a treaty on the European
Union)
 References to the citizenship of the Union
 The citizenship of the EU was created
7) 1985: 2 reports from the Ad hoc Committee for the “Citizens’
Europe”
 1st report: Suggestions to facilitate the free movement of the
persons
 2nd report: Suggested the development of adoption of special
rights for citizens and special symbols (anthem, flag)
8) 24 June 1988: Communication of the Commission “A people’s
Europe”
9) 11 July 1988: Commission Proposal for a Council directive on
voting rights for community nationals in local elections in their member state
of residence
10) 1989: The ECJ confirmed this conception
 ECJ 30.5.1989 Commission v. Council (Erasmus -case)

In the Single European Act (1986-1988) there is no reference to

citizenship or citizens
 Treaty for the economic and politic aspect
 Political co-operation

o All the community institutions rallied to the idea of an emerging citizenship

o A set of rights emerged but there was no legal base or common approach
o Daily life and political rights but no normative value

3.The enshrinement of the “Citizenship of the EU” by the Maastricht Treaty (1992)
 o Turning point/milestone in the European integration process
o Introduction of the legal concept of citizenship of the European Union
o Citizenship of EU – Every national of MS is CEU
o Introduction of a new part of the EC Treaty devoted to the “Citizenship of the
Union”
o New part of the EC Treaty devoted to the “Citizenship of the Union”
o Innovations:
1. art. 8 ECT after MT (now art. 20 TFEU): A general provision dedicated to the
concept of “citizenship of the Union” itself
2. a list of rights granted to citizens of the EU (art.8a to 8e after MT, now art.
21 to 24 TFEU)
o Created a citizenship of the EU and listed some rights

4. The evolutions through successive amending treaties

The Amsterdam Treaty (1997/1999)
= 3 innovations
1. Completed the general provision (=then art. 8 TEC; now
art. 2o TFEU) with a third sentence
2. Added a new paragraph concerning the right to write in
its own language to the EP and the Ombudsman
3. Created a new right: right to access to the EP, Council
and Commission documents (now art. 15§3 TFUE)

The Nice Treaty (2001/2003)

1. Precision concerning the right to write in its own
language
2. Important innovation: the proclamation of the EU
Charter of fundamental rights (EUCFR)
Problem non-binding instrument

The Lisbon Treaty (2007/2009)

1. A new general provision in the TEU (itself)
= the constitutional part of the treaties/primary law
2. Some new collective rights in TFEU, in a title dedicated
to the democratic principles
= art. 10 TEU participation in the democratic life of the
Union
= art. 11 TEU+24 (1) TFEU the European Citizens’ Initiative
3. New legal force of the EUCFR
= now legally binding
= primary law
CONCLUSIONS
Session 1&2

1) Economical rights and mobility

2) Secondary law level (propositions and case law)

3) Primary law level (political, administrative and human rights)

Concept of the citizenship is in

1) TEU
2) TFEU
3) Protocols and declarations
4) EUCFR

List of the rights

1) TFEU art. 21-24
2) EUCFR art. 39-46

EU is not supposed to be only organization between states, but organization between

individuals

Tärkeät jutut opetella:

o neljä sopimusta
o Van Gend en Loos ja Costa v. Enel perusasiat
o Lista oikeuksista
o Pääpirteittän julistukset dioista 2. The emergence of a “Citizens’ Europe” (1970-
1980)
 SESSION 3 & 4
THE SPECIFITES OF THE CITIZENSHIP OF THE EU

I The Personal Scope (henkilöllinen soveltamisala)

Main point: A dependent citizenship depends on
the nationality(external condition)
Link between citizenship and nationality

II The substantive scope (aineellinen soveltamisala)

Main point: A complementary citizenship
Link between EU and national citizenship
Art. 9 TEU and Art. 20 TFEU
o These articles create an EU citizenship
o The citizenship of the EU is conferred directly on every EU citizen by the
TFEU
o Art 9. creates a citizenship and Art. 20 gives a criterion for the citizenship
o Citizenship depends on member states Only states grants nationality(close
link to soveregnity), EU has no role

TEU Article 9 TFEU Article 20

In all its activities, the Union shall observe
the principle of the equality of its citizens,
who shall receive equal attention from its
institutions, bodies, offices and agencies.
Every national of a Member State shall be a
citizen of the Union. Citizenship of the
Union shall be additional to and not replace
national citizenship.
1. Citizenship of the Union is hereby
established. Every person holding the
nationality of a Member State shall be a
citizen of the Union. Citizneship of the
Union shall be additional to and not to
replace national citizenship.

Nationality = Status or legal relationship owing the individual is subject to a state’s

jurisdiction

I – THE PERSONAL SCOPE: A DEPENDANT CITIZENSHIP

Other options that were considered to get the EU-citizenship

1) An autonomous citizenship of the EU
 Political link
 The risk of the mutilation of various situations (some might have
the EU citizens but not nationality, different rights)
2) A citizenship of the EU conditional on national citizenship
The consquences of a citizenship of the EU conditional on nationality
A/ An automatic acquisition depending on the competence of MS
to grant their nationalities
1) An automatic acquisition
2) An exclusive competence of Member State to
decide who is a citizen of the EU
B/ A broad personal scope of applicational
1) The choice was made in favor of nationality rather
than national citizenship as criteria
2) The MS have the possibility to adapt the scope of
“nationals” “for community reasons”
C/ A possible loss of the citizenship of the EU
1) Loss of the nationality of a MS
2) Loss of the status of a MS

The consequences of a citizenship of the EU conditional on nationality

A/ An automatic acquisition depending on the competence of MS to

grant their nationalities (automaattinen myöntäminen, joka riippuu
jäsenvaltioiden pätevyydestä myöntää kansalaisuus)
1) An automatic acquisition
 Only/sole condition = nationality at least of one
member state
 Not reversible, one-way dependency (nationality <>
EU citizenship)
2) An exclusive competence of Member State to decide
who is a citizen of the EU (jv:n yksinomainen toimivalta
päättää kansalaisuudesta)
 EU creates a concept of the citizenship, but it can’t
decide who is a member of EU
 Citizenship depends on national law
 At least 4 result:
1) no competence for the EU (no control)
2) dependent on national rules of attribution
 national authorities and national laws
with some limits
 ICJ 6.4.1955 Liechtenstein v. Guatemala
“Nottebohm case” = real and effective
nationality & a meaningful connection
to the State to be proven
3) various conditions/rules/procedures
 No common procedures to get the
nationality/citizenship
  Anyway, three main ways to get the
nationality are
x Birth
x Marriage
x Length of the stay
 Different consequences, for example you
can lose your nationality according to
marriage etc. (Austria)
 In some member states it is easier to get a
nationality
 “Nationality shopping” and “citizenship
shopping”
4) opposable to other member states (and
even 3. states)
 ECJ 7.7.1992 Micheletti C-369/90
x Not possible for MS to impose specific
additional conditions for recognition of
the nationality with the view to the
exercise of the treaties

B/ A broad personal scope of applicational

1) The choice was made in favor of nationality rather
than national citizenship as criteria
 Difference between nationality and citizens
 Everyone doesn’t get the political rights,
minors, people under guardianship and
person deprived from their civil rights
 ECJ: implicitly recognized and explicitly stated
with minor children
2) The MS have the possibility to adapt the scope of
“nationals” “for community reasons”
 Declaration on nationality of a member state,
annexed to the Maastricht Treaty
 MS can decide that the scope of the concept of
nationals is not the same in the context of EU law
and in the context of national law
1) some nationals of MS are not granted all the
EU citizen rights
 Negations when getting in the UK
 For example UK, Denmark, Faroe Islands
2) Some third country nationals can enjoy some
of the rights of the EU citizens
ECJ 12.9.2006 Spain v. UK C-145/04
Linked to ECHR Matthews v. UK 3.2.1999
ECJ 12.9.2006 Spain v. UK C-145/04

C/ A possible loss of the citizenship of the EU

 1) Loss of the nationality of a MS
a) Individual loss of nationality
= a national of a MS loses its nationality in accordance
with
national rules
= automatic loss
= possible to lose nationality of MS, but not the EU, if you
have multiple nationalities
CJEU 2 march 2010, Rottman C-135/08 /
stateless guy Austria&german
CJEU 12 march 2019 Tjebbes e.a. v. Minister
van Buitenlandse Zaken C-221/17
b) Collective loss of nationality
 Autonomy of on part of the MS (Scotland, Nouvelle
Caledonie, Catalonia)
2) Loss of the status of a MS
 In case of withdrawal (Brexit)

II THE SUBSTANTIVE SCOPE: A COMPLEMENTARY CITIZENSHIP

(what? which rights?)
Superimposed + incomplete
A. A superimposed citizenship
= About the citizenship between the EU citizenship and national citizenship

1) An additional citizenship
o Doesn’t replace the nationality of MS (Amsterdam treaty art. 17 TCE)
o Common rights on EU level, but different rights based on nationality
o Citizenship should be additional (Lisbon treaty art. 20(1) 3 rd sentence)
o Two different citizenships with different rights
o EU citizenship leads to additional rights
2) An innovative citizenship
o Innovative and specific rights
o Rights that Materialize only in the scope of EU law
o These rights create links with the EU « administration », require and
favors links with the other MS this concept of the « mobile citizen » (or moving citizen) and
optional citizenship (automatic acquisition but optional implementation).

B. An incomplete citizenship
o A minimal citizenship
o Why
 Answer is in Ct art. 20(2) TFEU
 There are no duties
1) The absence of insufficiency of some political rights
 Electoral rights are limited
 Support rights/ rights to take part in the political activities is
limited
 2) The absence of identified “duties”
 Taxes, military service etc
 European tax proposals
 Taxes imposed on MS

SESSION 5 & 6
RIGHT TO MOVE AND RESIDE FREELY ON THE TERRITORY OF THE EU

Introduction
I The personal scope of the right to move and reside freely: which beneficiaries?
A – The union citizens concerned
1) Whatever his/hers professional situation is
2) Provided that he/she moved to or reside in a MS other than which he/she is
national
B – The family members concerned
II The substantive scope of the right to move and reside freely: which rights?
A - The right to entry and the right of residence
B - The right to “non-discriminatory living conditions”

Introduction
o more than 16 million EU citizens living or working in another EU country
Art 20 general art 21 clarify
Legal Context
o free movement of people is one of 4 free movement elements
o differences and 3 sets of rules
 the international market law
 the law of the citizenship of the EU
 the AFSJ (area of freedom, security and justice) law
o different sets of rules provide different bases for movement (different territories
etc)
1) EECT 1957: In the EECT in 1957, the free movement of persons is a free
movement of workers (employed and self-employed) and their family members
art. 45, 49 and 55 TFEU

 economic approach
 internal market law
 articles still exist
2) Maastricht Treaty 1992: The citizenship of EU is established
 İmplying for EU citizens the right of the EU citizens to move and reside freely within
the territory of the MS – For Eu citizens workers, students any national
art. 21 TFEU et seq.
3) Amsterdam Treaty 1997: integration of the Schengen acquis
art.
 abolition of control at internal borders= art 77 TFEU
 to make the free movement of persons concrete
 EU citizens and “legal” third country nationals
 territorial scope is only the territory of the Schengen area MS
the free movement of persons new encompasses :
o The freedom to carry on a professional activity for workers and their family
members
o the freedom to move and reside freely for EU citizens and their family members
o the absence of controls at internal borders for EU citizens and third-country
nationals in regular situation and their family members
Sources
Secondary law and case law
o secondary law: main text in directive 2004/38/EC
o case law: ECJ CJEU numerous judgements

I The personal scope of the right to move and reside freely: which beneficiaries?

Who are the beneficiaries of the right to move and reside freely within the territory of the
MS?
Primary law: Only citizens of the Union (art. 21 TFEU, art. 45 EUCFR)
Secondary law: Union citizens + family members (directive 2004/38/EC)

A – The union citizens concerned

1) Whatever his/hers professional situation is
a) in the EECT 1957: In the EECT in 1957, the free movement of persons is a free
movement of workers (employed and self-employed) and their family members
b) Directive 90/365/EEC: some categories of non-workers
 When you have less of a link to work, other conditions get more important
c) Maastricht Treaty 1992: right granted for all Union citizens (art. 21 TFEU, dir.
2004/38)
2) Right applicable only- Provided that he/she moved to or reside in a MS other than which
he/she is national means that the EU citizen is moving or living within the territory of
ANOTHER MS
o ECJ 5.5.2011 Shirley McCarthy C-434/09

B – The family members concerned

o Family Members of EU citizens can benefit from the right to move and reside freely
within the territory of the MS
o legal basis
 art. 21(1) TFEU
 dir. 2004/38
  case law
o Concerns family members of 3rd countries, because otherwise they would enjoy
the right as a citizen of EU

a) The broad scope of the family members concerned

o Dir. 2004/38 art. 3 beneficiaries: accompany or join
o art. 2 definitions
 spouse
 partner in a registered or contracted relationship if the host state treats it
equivalent to marriage
 direct descendants under the age 21 or are dependent on the citizen,
spouse or the partner
 dependent direct relatives in the ascending line
 any other family members, irrespective of their nationality, not falling
under the definition in point 2 of Article 2 who, in the country from which
they have come, are dependants or members of the household of the
Union citizen having the primary right of residence, or where serious
health grounds strictly require the personal care of the family member by
the Union citizen;
 the partner with whom the Union citizen has a durable relationship, duly
attested.
o Case law ECJ/EUCJ
o ECJ usually favours an extensive interpretation
 concerning the spouse
 “Any marriage irrespective of when and where their marriage took place”
 marriage between persons at the same sex
 ascendent not in a position support themselves
 ECJ(French nationals adoption decision- not a direct descendent but OK
for being a family member of the EU citizen who entry and residence
should be facilitated by host MS
d.2004/38 2 levels of rights like 2 circle in the family
 First circle of family (Article 2) recognizes the right to move and reside freely
 Second circle among the members of the family Article 3(2) provides only for the
facilitation of the entry and residence /-/ Not to right to move and reside freely

b) The condition for family member to accompany or join the union citizen

o D. 2004/38 (2)
o Family members enjoy the right to move and reside freely only if they:
o Accompany the Union citizen(not yet within the territory pf the host
MS and family member accompanies him)
o Join the Union citizen( the UC is already within the territory of the
host MS and the family member joins him)
o applies if the family member is already in the MS or joins there later
o possibility of dissociation of the right of the family member: retention of the
right of residence
 death or departure
 divorce, annulment of marriage or termination of registered partnership
o ICJ 27. July 2008 Metock C-127/08
 family member entering the MS illegally, if she wasn’t yet a family
member
 according to right to respect private and family right
 only at the territory of the MS where the union citizen resides (not
all MS)
o limited right to family member
o “accompany”
o Objective: for a dependent Union citizen not to be forced to leave the EU
territory :
o broad interpretation under privacy and right of child: The ECJ/CJEU:
o 1/ accepted the granting of this right in various cases
o 2/ recognized such a right even in a purely internal situation
o 3/ extended the consequence of the right through the granting of a work
permit
 normally a parent moves and child accompanies, but according to ECJ it is
possible that a child moves and parents accompany (ECJ 19. oct 2004 Xhu
and Chen C-200/02)
 flexible interpretation with “dependent ascendant”
 The parent is not a dependent ascendent BUT he/she accompanies
the EU citizen who is dependent
 Child is citizen of EU must not be forced to leave the territory EU
 a parent/family member has a burden of proof that they have enough
money and the child wont be a burden to member state
o ECJ 10. may 2017 Chavez-Vilchez and others C-133/15:
o Family Members bears the burden of proof Bcs:
o the burden of proof = for the parent/family member The Member
State authorities have the obligation to undertake, on the basis
of the evidence provided by the third-country national, the
necessary inquiries to assess the situation.
o ECJ 13. sept 2016 secretary of state for the home department v CS C-304/14
(criminal conviction of the child’s parent)
o ECJ 13. sept 2016 Alfredo Rendon Marin v. Administracion Del Estado (criminal
act of parent)
o ECJ 8 may 2018 K.A. e.a. C 82/16 (criminal act of parent): “76: an adult, a
relationship of dependency// Even for an adult dependent on another adult but
only in exceptional cases
o EVEN if the parent is the subject of a ban on entering that
Member State
o ECJ 8. June 2011 Ruiz Zambrano C-34/09 (purely internal situation)
 parents of the minor children who are citizens of EU have a right to stay
in MS even if they haven’t used their right to move in EU, because
otherwise children would be compelled to leave a country
  a parent should not only to be allowed to stay in MS but also given a
work permit
 According to ECJ Eu citizen must be allowed to use their rights.
 “useful effect “ of the rights : they must have sufficient resources for the minor
o Best interest for child

II The substantive scope of the right to move and reside freely: which rights?
Who does this right imply? which content? which rights?

A - The right to entry and the right of residence

1 – The modalities and implications of these rights
o What condItions and formalities for EU citizens?
o What obligations to the MS?
o Dir. 2004/38/EC: II Chapter right to exit and access
 art. 4 right to exit the MS
 for citizen: only a valid identity card or passport
 for family member: a valid passport + no visa
 art. 5 right to access/entry the MS
 for citizen: only a valid identity card or passport
 for family member: a valid passport + possible visa etc

o the right to reside freely: a right of residence

Right of residence up to 3 months (art. 6)
 only requirement is the valid identity card or passport (passport for
a family member + accompany or join EU citizen)
 absolute right without any other requirements

Right of residence for more than three months (art. 7)

a) a worker or self-employed person no condition absolute right of
residence
b) inactive people sufficient resources AND a comprehensive
sickness health insurance for a themselves and family members
c) students and vocational trainees (enough resources and health
insurance)
d) family members accompanying a Union citizen and fulfill the
requirements of a, b and c
 why there is conditions? avoiding a situation of being a burden
to MS AND the situation of shopping the best social assistance
system
 the amount of enough money depends on a member state
but they may not rule a same amount to everyone
 may not be bigger than a minimum social assistance
 which sources?
 even if the resources of a Union citizen minor are
derived from income obtained from the unlawful
employment of his father, a third-country national
without a residence card and a work permit
  which consequence of this condition of sufficient resources?
art. 14 (1-4) -Union citizens and their family members shall
have the right of residence [...] as long as they do not become
an unreasonable burden on the social assistance system of the
host Member State”
 if not = possible explusion measure of refusal of entry
 BUT
 An expulsion measure shall not be the automatic consequence
of a Union citizen's or his or her family member's recourse to
the social assistance system of the host Member State.
o an expulsion measure may in no case be adopted against
Union citizens or their family members if:
o (a) the Union citizens are workers or self-employed persons,
or
o (b) the Union citizens entered the territory of the host
Member State in order to seek employment.”
 + ADMINISTRATIVE formalities: for UC registration certificate shall be
issued immediately


Right of permanent residence (art. 16)

a) Union citizens after continuous period of five years legal
residence
b) five year rules apply also to a family member
c) temporary absence max. 6 months or max 12 months because
of military service, pregnancy, sickness, studies or work etc
d) after the right to permanent residence has been given, the
status can only be lost if you are absent for more than two year
continuously

2 – Restrictions on these rights

o Chapt. VI
o Restrictions on the right of entry and the right of residence on grounds of
public policy, public security or public health
 public policy reservation or genuine, present OR sufficiently serious
threat for fundamental interests of society (art. 27)
 these exceptions are interpreted restrictively
 many conditions do refuse or expel by the MS

B) The right to “non-discriminatory living conditions”’

 Sources through an extension of equal treatment with nationals “within the
scope of the Treaty”

 A citizen of EU residing in a MS should be treating like a national.

This an expression we can see in the directive of 2014. ECJ create a
EU social citizenship.

SESSION 7
THE RIGHT TO ENJOY THE PROTECTION OF DIPLOMATIC AND
CONSULAR AUTHORITIES

INTRODUCTION
I – Personal scope
A – The beneficiaries of the protection: who can be protected?
B – Those responsible for the protection: who protects?
II – Substantive scope
IntroductionA – In which situations?
B – What types of assistance?
C –oOn what conditions?
Concerns 3rd country situations when earlier situation have been within the
territory of MS
o primary law:
 art. 20 TFEU
 art. 23 TFEU
 art. 46 EUCFR
o secondary law
 Council directive 2015/637 20.4.2015 of concular protection
TFEU
TFEU Article 23 EUCFR
Article 20 (2c) Article 46
Every citizen of the Union shall, in
the right to enjoy, in the the territory of a third country in Every citizen of the Union shall, in
territory of a third country in which the Member State of which the territory of a third country in
which the Member State of he is a national is not represented, whichthe Member State of which
which they are nationals is be entitled to protection by th he or she is a national is not
not represented, the diplomatic or consular authorities represented, be entitled to
protection of the diplomatic of any Member State, on the same protection by the diplomatic or
conditions as the nationals of that consular authorities of any
and consular authorities of
State. Member States shall adopt Member State, on the same
any Member State on the
the necessary provisions and start conditions as the nationals of that
same conditions as the
the international negotiations Member State.
nationals of that State;
required to secure this protection.

I – Personal scope

A – The beneficiaries of the protection: who can be protected?

o Every citizen + territory of 3rd country + not presented(in which member
state of which national is not represented—no embassy or consulate-
o right of unrepresented citizens
 o family members. (third-country national): in the treaties: not mentioned but
in secondary law : same conditions as the protective MS provides to it’s own
non-citizen family members
o why family members are protected?
 guarantees right of the EU citizen
 right to private and family life
 interests of children
 eu citizen doesn’t need to choose between family and
protection
B – Those responsible for the protection: who protects?
o the diplomatic or consular authorities of any MS
o embassy = international law issues – for political and diplomatic relation with
the receiving country
o consulate = like branch office of embassy
o national law issues -travel and immigration issues
o all MS (« any MS » means that there is no order of preference. Every MS of
the EU can protect the Union citizens from any MS ) are equally responsible
to protect, no order but there might be some rules between them.
o Possible practical arrangement between member states to mutualized
in a way, their protection in one or several third country. Especially for
little MS
o Why not Union delegations for diplomatic and consular protection
 Because the diplomatic and consular protection exclusive right
of states
o Union delegations can’t be responsible for protection, because it’s rights are
limited
 every citizen has an absolute right for diplomatic and consular
protection

II – Substantive scope : Every citizen of the Union shall, in the territory of a third country in
which the Member State of which he is a national is not represented, be entitled to protection by the
diplomatic or consular authorities of any Member State, on the same conditions as the nationals of
that State. [...]:
 based on principle of non-discirimination on grounds of nationality
 egality between Union citizens
 the citizenship replaces the nationality to justify/permit the consular
protection

A – In which situations?
o directive 2015: list of situations
 arrest, detention, victim, accident, illness, death, relief,
repatriation, urgent travel documents
 might be also other situations not mentioned on the list
non-limitatative list since inter alia

B – What types of assistance? Not clearly spelled out

 o legal
o practical
o financial

C – On what conditions?
o proven nationality of EU MS
o prior consultation of the own MS
o concerning the financial assistance
 article 14 general rules for costs between MS

SESSION 8 & 9
THE POLITICAL RIGHTS OF THE UNION CITIZENS

Political rights = possibility to participate in the exercise of power by taking part by

designating representatives or taking part directly to decision-making process

two kind of political rights:

electoral rights = involvement of the union citizens in the election and composition
of representative and decision-making institutions in
The European citizens’ initiative = involvement of Union citizn more directly in the
decision-making process

The electoral rights of the citizens

INTRODUCTION

SOURCES
Primary law
o Article 20 TFEU and Article 22 TFEU
o two kind of elections Municipal elections and European Council
o Article 39 EUCFR and ..?

Secondary law
o two main texts
 1993: Council directive 93/109/EC of 6 dec 1993
 1994 Council directive 94/80/EC of 19 dec 1994
o material scope = 2 rights: right to vote and right to stand as a candidate
o in TFEU and TEU there is only 1 right that includes both rights
o two kinds of elections: municipal and EP elections
o !! limitation of the electoral rights (eu law doesn’t provide a right to vote in general,
presidential elections etc but the national law can provide that right)

COMMON FEATURES
Personal scope
 Concerned 2 rights: right to vote + right to stand as a candidate
o who? only union citizens, not the family members
o Thus only Union citizens who exercised their right to move and reside freely
o which rules? national rules under the same conditions as nationals of the state
 o principle of non-discriminationn groundsf nationality
 rules might change between the member states – no common rules
o other elements proving that the MS decided to keep a large control over this right?
two rights:
 non-involvement of EP
 derogations

I – THE RIGHT TO VOTE AND STAND AS A CANDIDATE IN MUNICIPAL ELECTIONS

o limited right to municipal elections because states are scared that there might be too
much foreigners voting in their other elections

A - THE MODALITIES OF THE RIGHT TO VOTE AND STAND AS A CANDIDATE

o municipal elections = depends on the MS according to national law

o municipal elections’ means elections by direct universal suffrage to appoint the
members of the representative council and, where appropriate, under the laws of
each Member State, the head and members of the executive of a basic local
government unit:”
o art. 2 directive has some definitions and conditions
o beneficiaries
 art.3 directive: a) a citizen of the union b) is not a national of the Member
state of residence + satisfies the same conditions of the MS - Devletin
yasayla kendi vatandaşlarına yüklediği koşulların aynısını yerine getirir.
o formalities?
 registration (automatic in some countries)
 exercising the right to vote in the MS of residence does not imply the loss of
the right to vote and stand as a candidate in the MS of nationality

B – THE DEROGATIONS
o art. 22 TFEU
o 2 main problems specific to a Member State
 high proportion of Union Citizens in the population of MS
 the prohibition of access to some functions for non-nationals
o these 2 problems lead to 2 kind of derogations
 restriction in case of a high proportion of Union Citizens
 2 cases:
1) article 12 (1) directive 94/80, 20% rule (today only Luxembourg,
living there 5 years)
2) article 12 (2) directive 94/80, specific rule for Belgium:
 to a limited number of local government units,
 restriction to preclude the access to some functions
 art 5 (3) directive 94/80, possible not to apply all the directive rules
to the union citizens in some situations
 en France : Union citizens when elected at municipal stage, cannot
be elected as heads of the executive of a basic local government unit

II – RIGHTS TO VOTE AND STAND AS A CANDIDATE IN EP ELECTIONS

 At stake:
   - the democratization of the EU institutional system / the reduction of the
democratic deficit
  - the reality of a EP representing the Union citizens
See: This right was conceivable after the shift towards the direct universal suffrage for the
election of the EP members, decided in Sept. 1976 and applied since the 1979 European
elections

A – THE MODALITIES OF THE ROGHT TO VOTE AND STAND AS A CANDIDATE

o beneficiaries: a) eu citizen b) not a national + satisfies the same conditions as the
nationals of MS
o not possible to vote twice in two different countries (art. 4 directive) - - Contrary to
municipal election, there is no double vote, for the right to vote as well as for the
right to stand as a candidate, this entails (=implique) cooperation between MS to
avoid double or multiple votes.
o formalities?
o Right to vote :
o “1. A Community voter exercises his right to vote in the Member State of
residence if he has expressed the wish to do so.
o 2. If voting is compulsory in the Member State of residence, Community
voters who have expressed the wish to do so shall be obliged to vote.”
o NB : Voting is compulsory in Belgium, Bulgaria, Cyprus, Greece, and
Luxembourg.
o Right to stand as a candidate :
 = requires to make a declaration that you are not disqualified from
standing as a candidate and that you are not standing in any other
EU country
o derogations:
 only on derogation in the art. 4 dir 93/109: high proportion of union citizens
only luxembourg
 ECJ case law for extension of the personal scope of application of the right
 persons who possess the nationality of a Member State and who live or
reside in a territory which is one of the overseas territory associated to the
Community may rely on the rights conferred on citizens of the Union – CAN
VOTE
 extend the right of vote for third-national residents :
o The relevant articles of the EC Treaty do not preclude the Member
States from granting that right to vote and to stand as a candidate to
certain persons who have close links to them, other than their own
nationals or citizens of the Union resident in their territory.”
o Non-nationals with close links they can give right?

SESSION 9: THE RIGHT TO INITIATE AND SUPPORT A EUROPEAN

CITIZENS’ INIATIVE
INTRODUCTION
o Lisbon treaty art 1. regulation 2019/788
o another kind of political right
o direct involvement, no through representatives
o means of participatory democracy
o the first instrument for transnational participatory democracy
o goes further than the petition to the EP

SOURCES
Primary law
o not listed in TFEU or EUCFR
o but in TFEU art 24 (1)
o and art 11 (4) TEU : Not less than one million citizens who are nationals of a
significant number of Member States may take the initiative of inviting the European
Commission, within the framework of its powers, to submit any appropriate proposal
on matters where citizens consider that a legal act of the Union is required for the
purpose of implementing the Treaties.
The procedures and conditions required for such a citizens' initiative shall be
determined in accordance with the first paragraph of Article 24 of the Treaty on the
Functioning of the European Union.”
So, it’s a right granted and implementable independently of the location of
the Union citizen (national MS, other MS, third country). This right exclude 3rd
country members and family members who are not nationals.
Family members and 3rd country members cant enjoy this right

Secondary law
o Regulation (EU) No 211/2011 of the European parliament and of the council of
16.2.2011 -> current version

Peculiarities if this right

o Personal scope (who has a right to iniate and vote?
 only collectively (1 million citizens)
 citizens who are nationals of MS (right granted and implementable
independently of the location of the Union citizen (national MS, other MS,
third country
o Substantive scope
o it’s a participation very different from the one usually organised in the
decision-making process of MS. It’s far from a referendum. It’s to
propose new or change existing European law, or even to prevent the
adoption of a legal act
o But, it’s (only) for kind of initiative of the initiative! (see art. 11(4) TEU =
“initiative of inviting the European Commission”!). The ECI doesn’t replace
the petition to the EPI.

I – PRESENTATION OF THE ECI MECHANISM

Quite complex procedure for prevent abuse and
with various conditions for
catch strike balance in order to avoid an abusive use of ECI
and preserve the Union Citizen rights
 STEP 1: Creation of a “group of organizers”
o at least 7 EU citizens in 7 different MS
o in the age to vote in EU parliament elections (at least 16)

STEP 2: Before they can start to collect statements of support from signatories Registration
of the proposed initiative
o registered by the Commission (through a form and different conditions satisfied)
 1/ through a form annexed to the Regulation (= annex II)
 2/ with a set of conditions to be fulfilled
 5 conditions (2 first ones are formal)
1) group of organizers and a contact person
2)if relevant a legal entity has been created
3) must be in the frames of commission’s legal powers
4) the initiative is not manifestly abusive, frivolous or vexatious
5) the initiative is not manifestly contrary to the values of the union as Set
out in art 2
 “filtering capacity” of the Commission
 = 3 possibilities:
 - if the conditions are not fulfilled, the Commission will refuse the
registration  possible complaint to the Ombudsman and referral to the ECJ
 - If the conditions are fulfilled, the ECI is registered on the online register,
and open to signatures
 - If not all the content of the ECI fulfills the conditions, partial registration is
possible (since R.2019)

STEP 3: Collection of the statements of support

o 12 months deadline to gather support from a date chosen (not later than 6 months
from registration)
o votes can be given online and any Eu citizen of the age to vote
o supporters have to come from at least 7 MS
o signatory shall be counted in his or her MS of nationality, irrespective of the place
where the statement of support was signed by the signatory”

STEP 4: Decision of the Commission

o meeting of commission and organizators
o public meeting with European parliament
o commission has 6 months to examine the ECI and adopts a communication about its
legal and political conclusion and the follow-up of the ECI
o to give effect means : Expected that the Commision will adopt some texts some legal
acts
o no legal obligation for the commission to adopt legal acts
o according the treaties the Commission is only invited by Union citizens
o wide margin of dicreation for commission
o Ombudsman:
o Is communication clear =
o Is there a manifest error of assesment

II – IMPLEMENTATION OF ECI’S
a. Relatively high rate of refusal of registration: a non-fulfilled registration
a. Usually cond.3 framework of commission like Brexit
 b. ECJ annulled some refusals : Minority safepack state reson ? or …??
b. Low rate of initiatives reaching the request signatures BCS
a. Language translation to all language is very difficult
b. Ignorance about ECI
c. MS not always very diligent Certification of supporting statements
d. Organization and cost
c. Uncertain effect of the successful initiatives
a. Eventhough the ECI succed in quentitive it may qualitively….