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Edward Freddie Cook

The aim of this essay is to critically evaluate the statement “I regard the Court’s description
of citizenship of the Union in Gryzelczyk as being potentially of similar significance to its
seminal statement in Van Gend en Loos that ‘the Community constitutes a new legal order
of international law for the benefit of which the States have limited their sovereign rights …
and the subjects of which comprise not only Member States but also their nationals”. For the
purpose of this essay, “the Community” and the European Union (EU) will be understood as
being one and the same.

This essay will examine the similarity in the significance of Gryzelczyk[1] and Van Gend[2] in
regard to establishing the principle of EU law having supremacy over national law of
respective member states and its constituent nationals. It will then examine how this affected
the decision in the Zambrano[3] case and subsequent case law and how it affected how the
CJEU developed the concept of EU citizenship.

European Union citizenship was established in the Treaty of Maastricht, and further
compounded into full legal effect by the Treaty of Lisbon[4] where Article 8 states “every
national of a Member State shall be a citizen of the Union”. Whilst these treaties introduced
the concept of EU citizenship, the concept was refined and expanded jurisprudentially by the
CJEU.

Van Gend is widely recognised as a seminal case in establishing EU legal primacy over
national law in areas of conflict. This case took the amalgamation of treaties and agreements
signed by member states and turned them into the unique supranational body that we
recognise today. The case established three key principles; firstly by establishing that in
cases of conflict, EU law held supremacy over national law mandated by sovereign member
states. Secondly it set out regulatory qualities of EU law by being the very template by which
EU legal doctrine would be applied in governance. Finally, the ruling endowed both rights
and responsibilities across upon subjects of the EU, not just the member states, but the
individual nationals within each one, establishing new legal communities with mutual
commitments[5]. In the ruling it is said that “Community law therefore not only imposes
obligations on individuals but is also intended to confer upon them rights which become part
of their legal heritage.”

As noted in Advocate General Sharpston’s opinion on Zambrano, the court’s description of

European citizenry in Gryzelczyk echoes this sentiment. It reads “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.” Both Van Gend
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Edward Freddie Cook

and Gryzelczyk show that nationals of member states hold two distinct forms of citizenship,
firstly they have their traditional national citizenship, conferring upon them all the rights and
responsibilities associated with citizenship of that individual nation, however as the nature of
EU law becomes supreme over contenting national law, so too does a distinction form with
being a citizen of the EU, and being afforded rights and responsibilities. This includes what
the implications are for attaining citizenship for dependent family members, acquisition of
social services, and more.

This essay will examine cases where the CJEU developed the concept of EU citizenship and
how it affected Member States.

Zambrano is recognised as a hugely influential case in the development of EU citizenship. In

this case, it was established that no cross-border element was needed for the CJEU to rule
on the case. It ruled that Article 21 of the Treaty on the Functioning of the European Union[6]
(TFEU) states that “every citizen of the Union shall have the right to move and reside freely
within the territory of the Member States” and that, in the instance of a minor citizen in the
care of third-country national (TCN) parents, the rights of the minor citizen would be not
freely enjoyed if they were removed due to their TCN parents being denied residence, and
therefore a reasonable foreseeability that the minor citizen would also have to relinquish
their residence of the Member State.

This reasoning caused the CJEU to rule that as the ascendent of a minor citizens, contrary
to Belgium national office of employment’s original decision, Mr Zambrano should be granted
the ability to reside and work in Belgium in order to protect the rights of the minor citizens
under his care.

In Dereci[7], the Zambrano precedent was shown as being tied to the rights of the children,
not the TCN parent. In this case, the mother was an EU citizen and therefore the children
would have not been forced to relinquish their enjoyment of right of residence within the EU
should the father with unlawful residence be removed from the country and indeed the EU as
a whole.

Zambrano was further expanded upon in Rendón Marín[8] by reaffirming in the first part of the
judgement that a right of residence must be granted to ascendants of a minor citizen to
promote efficacy of EU citizenship. However, the second part of the ruling goes on to
discuss the potential for derogation of derived citizenship due to reasons of public security
due to the TCN parent having a criminal record. It was established that there cannot be a
blanket policy, this clashed with and eventually superseded the UK policy of the time of
issuing deportation orders for any non-nationals charged with 12 months or more of prison.
Instead, the decision must be taken on a multi-factor basis in the national courts, and the
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Edward Freddie Cook

decision must be able to be subject to review by EU institutions. This is a clear example of a

member state forfeiting certain sovereign rights in regard to installing a broad public border
policy.

K.A[9] is another case that displayed cross-border qualities to not be important to the
application of EU citizenship rights. In this case, seven TCNs were ordered to leave Belgium
and barred from re-entry. The group claimed to be either dependent descendants, parents of
minor children, or lawfully cohabiting partners of Belgian citizens. The Belgian authorities
initially refused to examine family reunification claims until they applied from outside the
country due to national policy of not investigating the claim until the entry ban had been
enforced. The ruling dictates that derived right of residence for TCNs only applies in cases
where it is provable that removal of the TCN would result in an EU citizen being forced to
leave the union, thus contravening their rights pursuant to TFEU, Article 20. This ruling
means that family reunification between a TCN subject to an entry ban, and an EU citizen
cannot be denied due to the entry ban, rather it must be taken case-by-case to prevent
violation of the rights of the EU minor citizen.

K.A contrasts with McCarthy[10], a case in which a Jamaican spouse of a dual British-Irish
citizen attempted to seek a right of residence as the spouse of an EU citizen. However,
having ascending through both England’s Supreme Court as well as the CJEU it was ruled
that denying Mrs McCarthy’s spouse a right of residence did not befoul her enjoyment to
move and reside freely within the territory of the Member States. Whilst it might be
considered more enjoyable for the family to be allowed to reside together within EU Member
States, there is no link of dependency prohibiting the EU citizen from enjoying their rights
should the TCN relation be denied residency, a situation similar to that of Dereci where a
similar decision was found in relation to one of the parents as opposed to a spouse.

Chavez-Vilchez[11] is a case in which a Venezuelan woman who was the primary caregiver of
her Dutch national minor child was denied right of residence and access to social benefits. In
this case, seven similar cases were brought together to challenge the decision of the Dutch
authorities. The CJEU upheld the Zambrano ruling, acknowledging that due to the Dutch and
EU citizens being minors, their ability to enjoy their right to reside within the EU was
dependent on their primary caregiver being granted right of residence. The CJEU clarified
that it was the job of the national courts to determine who the primary caregiver is, and that
impetus should be placed upon the interests of the child.

In the case of Rottman[12], an Austrian citizen claimed German naturalisation in order to

escape criminal fraud charges and arrest warrant in Austria. Mr Rottman failed to disclose
the investigation proceeding against him in the naturalisation process. The nature of Austrian
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Edward Freddie Cook

citizenship meant that he lost it when he became naturalised in Germany, however, upon
discovering his omission of information, German authorities rescinded his naturalisation due
to the deceptive nature. The ECJ confirmed that a Member State of the EU, so long as it
obeys the principle of proportionality, withdraw nationality gained by way of deception to
achieve naturalisation.

The cases of O[13] and L[14] were brought before the CJEU to determine what should happen
in both cases where a TCN parent of a minor citizen had remarried another TCN, forming a
family co-parenting the minor citizen. It was ruled that the right to reside was not solely that
of blood related ascendants, but if the national court could rule a stepparent or other non-
biological TCN ascendant’s removal from the EU would impinge the minor citizen’s right to
freely enjoy residence within the EU, then the non-biological TCN parent figure should be
granted residence.

In conclusion, one can see that Advocate General Sharpston’s statement is broadly true.
The cases of Grzelczyk and Van Gend have a similar significance, Grzelczyk states “Union
citizenship is destined to be the fundamental status of nationals of 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”. In
Van Gend it is stated that “the Community constitutes a new legal order of international law
for the benefit of which the states have limited their sovereign rights, albeit within limited
fields, and the subjects of which comprise not only Member States, but also their nationals..
Independently of the legislation of Member States, Community law therefore not only
imposes obligations on individuals, but it is also intended to confer upon them rights which
become part of their legal heritage.” In both of these statements it is clear that the intention
is to create an EU citizenship distinct from that of their national citizenship, one that confers
rights and limitations upon both nationals and member states. Both of the previous
statements echo the sentiment that EU citizenship affords rights that are enforceable largely
due to the fact that it can supersede national law.

The cases of Van Gend and Grzelczyk took the formative treaties of the EU and turned them
into legally binding precedent within a court system. This directly affected the implementation
of national law from cases like Zambrano and subsequent judgement from the precedent set
by that case. The cases mentioned in this essay relied upon the Zambrano ruling and
furthermore deferred to EU courts in matters of how to implement national measures such
as, as outlined in this essay, rights of residence for TCN parents of minor citizens of Member
States and the EU. Zambrano’s precedent on allowing the limited application of the EU’s
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Edward Freddie Cook

foundational treaties and bestowed rights in a case with no cross-border element created a
gateway for legislation for the identity of a true, supranational citizenship. Furthermore, the
enforcement of TFEU articles 20 and 21 in the cases listed throughout this essay,
subsequent cases relying on Zambrano’s precedent established something that Member
States would not have offered under their own sovereign residence requirements; derived
rights of ascendants for TCNs of minor nationals. This is a clear example of Member States
ceding some of their sovereign power, which is by definition the absolute power to make
laws without limitation.
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Edward Freddie Cook

Reference List:

[1]Gryzelczyk, Case C-294/00, [2004] ECR I-07349

[2]Van Gend en Loos, Case 26/62, [1963] ECR 1

[3] Zambrano, Case C-34/09, [2011] ECR I-01181

[4] Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the
European Community, 13 December 2007. [Online]. 2007/C 306/01.

[5] Damian Chalmers, Luis Barroso, What Van Gend en Loos stands for, International

Journal of Constitutional Law, Volume 12, Issue 1, January 2014, Pages 105–134,

[6] European Union, Consolidated version of the Treaty on the Functioning of the European
Union, 26 October 2012, OJ L. 326/47-326/390; 26.10.2012

[7] Dereci and Others, Case C-256/11, [2011] ECR I-11315

[8] Rendon Marin, Case C-165/14, [2016] ECR I-233

[9] K.A and Others, Case C-457/12, [2014] ECR I-0000

[10 ]McCarthy, Case C-434/09, [2011] ECR I-10849

[11] Chavez-Vilchez, Case C-133/15, [2017] ECLI:EU:C:2017:354

[12] Rottmann, Case C-135/08, [2010] ECR I-1449

[13] O and S v Maahanmuuttovirasto, Case C-356/11 and C-357/11, [2012]

ECLI:EU:C:2012:776

[14] Maahanmuuttovirasto v L, Case C-165/16, [2017] ECLI:EU:C:2017:454.

[15] van Eijken, H. (2021). Connecting the Dots Backwards, What Did Ruiz Zambrano Mean
for EU Citizenship and Fundamental Rights in EU Law?. European Journal of Migration and
Law 23, 1, 48-67, Available From: Brill https://doi.org/10.1163/15718166-
12340094 [Accessed 30 March 2023]
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