eu law citizenship essay

EU citizenship: Still a Fundamental Status?

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• First Online: 13 September 2018

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• Jo Shaw 2  

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This essay is intended to explore the trajectory of EU citizenship, under pressure from forces inside and outside the EU. The focus of the discussion is on three issues: the autonomy of national citizenship laws in the face of EU citizenship; the citizenship consequences of Brexit; and the choices made and actions taken by individuals and groups that may impact upon the future of EU citizenship. This discussion is prefaced by an initial exploration of the challenges and complexities of EU citizenship and of the relationship between citizenship and concepts of integration and Europeanisation.

This essay was written whilst I was holding a EURIAS Fellowship at the Helsinki Collegium for Advanced Studies, and the financial support of the EURIAS Programme and HCAS is acknowledged with thanks. I am very grateful to Rainer Bauböck for comments on a draft.

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• immigration
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Introduction

Modern history is littered with the corpses of failed federations and busted unions. These processes of breakup have had significant and often damaging citizenship consequences on many occasions and in many places. Examples can be found in the dissolution of Yugoslavia and of the Soviet Union, as well as in the dismantling of the various European empires and the creation of numerous new (and generally arbitrarily defined) states, often as part of the decolonisation process. Footnote 1 Breakup may, of course, eventually be the fate of the European Union. Or it may be the opposite – the transmutation of the EU into something more like a federal state, through an intensified constitutionalisation process.

This essay explores some of the pressures that are being placed on the concept of citizenship of the Union at the present time, highlighting how these stem both from exogenous pressures (assuming Brexit can be thought to be such) and endogenous forces such as Eurosceptic voting publics and a resistance to showing solidarity across the member states in an era of austerity.

EU citizenship is paradoxical in nature: formally constitutionalised in the Union’s treaty framework, yet dependent upon national citizenship to provide the gateway to membership. Its fate remains intimately tied to the broader question of the trajectory of European integration, as well as to changing perspectives about the character of citizenship as a membership status. To highlight that paradoxical character, I offer below some brief reflections on the autonomy of national citizenship laws, on the consequences of Brexit, and on how choices and actions by individuals and groups may impact upon the future of EU citizenship. This discussion is prefaced by an initial exploration of the challenges and complexities of EU citizenship and of the relationship between citizenship and concepts of integration and Europeanisation.

Challenges and complexities of EU citizenship

The current difficulties faced by the European Union are many and varied. They include the pressures caused by the UK’s Brexit vote, the effects of increasingly illiberal, populist and anti-constitutionalist regimes in Hungary and Poland, the lingering impacts of the financial crisis, among them austerity and challenges to the health of the Eurozone, and the continued aftermath of the migration/refugee crisis. These all raise questions about the vitality of citizenship of the European Union as a political, socio-economic and constitutional construct of a supranational kind, and many of them are debated in different ways by the various multi-author ‘forums’ presented in this book. Whether these difficulties do or do not pose an existential threat to the EU and thus to EU citizenship lies beyond the scope of this essay. Even so, contemplating the possibility of disintegration and/or de-Europeanisation is central to the task of reinterpreting EU citizenship, 25 years after it formally entered into force through the Treaty of Maastricht in 1993. This is because of the centrality and overwhelming importance of the Brexit challenge (both for the individuals directly affected and also for the historical trajectory of the European Union), to which we will return later in this short reflection on some of the ‘constitutional’ characteristics of EU citizenship.

It is important to remark, however, that at the current stage of the European integration, no person deprived of their EU citizenship through dissolution of the Union or departure of a member state would normally be at risk of losing their national citizenship and their anchor within the system of states, their ‘right to have rights’. Footnote 2 Although the functions and forms of citizenship are dispersed across the multi-level structure of the EU polity and EU citizenship is established constitutionally in Article 9 TEU and Articles 20 and 21 TFEU, at the present time states retain a monopoly over determining who their citizens are, and would continue to do so were the EU to dissolve in the future.

At whatever point we choose to ‘stop time’ and write a historical reinterpretation of the EU’s experiment with a form of supranational citizenship, it will always be a complex and contested story. It is important to resist the temptation to take a ‘frozen in time’ approach to explicating this story. On the contrary, we should remind ourselves, by reference to classic texts such as that of TH Marshall, Footnote 3 that the location of citizenship forms and functions has always been a mobile process, morphing at different points in history between the local (e.g. the city), the regional, the national and the supranational. In fact, we can use the concept of citizenship across all of these levels, wherever there are institutions of political authority.

The idea of the link between a community of citizens and a political authority was not really the starting point for EU citizenship. The European Union began its journey towards recognising a uniform legal status for individuals at the supranational level not by acknowledging and supporting the political agency of individuals as citizens, but by giving them rights and freedoms. Specifically, it was through the civil and socio-economic rights and freedoms that are inherent in the idea of a single market that a notion of the individual having a stake in the integration project originally emerged. Much of the power of these rights and freedoms to effect a transformation of individual rights lay in the recognition of individuals as autonomous legal actors within the European legal order by the European Court of Justice (CJEU). This was an important conclusion, which the Court derived from a purposive reading of the founding treaties. In addition, some further contributions towards the development of the rights of EU market actors were also made by the EU legislature, especially when it came to giving effect to the principles of non-discrimination on grounds of nationality and mutual recognition. Most of this work predated the formal establishment of the legal concept of the Union citizen.

Only later was a modest edifice of political rights constructed (once the Treaty of Maastricht had entered into force and the constitutional provisions we recognise today had been introduced) and it was even later still that we have come to see a closer legal and constitutional intertwining of the legal statuses of EU citizenship and national citizenship, again largely as a result of the interventions of the CJEU. We will come back to this dimension of EU citizenship shortly. What has been most noticeable about this process has been that the idea of the ‘civil’ (a ‘Europe of law’) has underpinned and accompanied every stage of the putative building of supranational citizenship. This looks, at first blush, like a wholly top-down construction of citizenship that does little to illuminate the broader political quest to identify ‘who are the Europeans?’. Footnote 4

Another way of highlighting the idiosyncracies of EU citizenship involves looking at the classic elements commonly associated with modelling citizenship as a form of full membership (e.g. status, rights, identity, duties). It is only in the sphere of rights that EU citizenship seems well developed. As to the issue of identity, the sense of ‘Europeanness’ that exists across the collectivity of citizens is relatively thin in nature, again focused on rights, and it is hardly comparable with the form of societal glue that gives community cohesion to the national (and subnational) polities on which the EU is built. Footnote 5 Moreover, the status itself remains derivative from national citizenship – only citizens of the member states are citizens of the Union.

And yet despite all of this negativity, there is also a more optimistic reading that suggests that EU citizenship could be evolving into a different sort of concept than was perhaps anticipated when the member states originally set up the legal framework, mainly as an additional bonus for market participants. Scholars laud EU citizenship as an emerging postnational concept that escapes ‘narrow’ nationalist constraints of state-based citizenship regimes. Footnote 6 The comparison with other forms of supranational citizenship, such as Commonwealth citizenship, makes EU citizenship look like a relative success story. Commonwealth citizenship largely withered on the vine because of the evisceration of most of the rights attached to it (e.g. right of abode in the UK), or the non-adoption of the concept by Commonwealth countries. By contrast, we have a rich, if sometimes contradictory, case law of the Court of Justice on the status of EU citizens resident in other member states that ensures that in many spheres of life EU citizens have to be recognised as holding rights under the precise same conditions as nationals of the host state.

Furthermore, there is now a discussion, as evidenced by section 3 of this book on citizenship duties and social solidarity, as to whether this dimension of EU citizenship should be filled out in due course, in ways that would make EU citizenship relevant not only to mobile citizens, but also to those who remain in their member state of origin. At that point, EU citizenship could be said to be moving much closer to being a recognisable variant, at the supranational level, of the classic national model of membership as a status and as a reference point around which citizens can cohere, even if it is not (yet) recognised in international law as a form of ‘nationality’. In order to achieve this transformation it would, however, have to be no longer just a ‘citizenship of mobiles’. Only then could it also become the vehicle for a wider sense of citizen mobilisation.

Europeanisation and de-Europeanisation in EU citizenship

It will already be evident that many of the concepts I have tossed around in these short paragraphs are contested and hardly have stable meanings. This complicates considerably the task of reinterpreting EU citizenship, whether constitutionally or politically. The concept of EU citizenship needs to be understood in the context of both citizenship theory and integration theory. Our interpretation of the distinctive features of EU citizenship requires a combination of the analytical frames offered by both citizenship studies and European Union studies. It is only by this means that we can construct a historically and contextually sensitive interpretation of this evolving and contested concept. To put it another way, EU citizenship is a product not only of a hesitant process of polity-building beyond the state but also of a move away from a predominantly state-centred conception of citizenship. It relies equally on rethinking ideas about ‘integration’ and on rethinking citizenship as a relational concept and not a fixed structure, Footnote 7 combining both plural and multi-level institutional elements and also the bottom-up practices of citizens as legal and political actors in a non-state context. Rethinking integration in turn requires acknowledgement that the story of the EU is not one of linear progress towards ‘an ever closer union’, even though it is quite common still for EU citizenship to be lauded as somehow embodying this historic mission. The better view, however, is to recognise that there is no unidirectional process of Europeanisation in which the elements and constraints generated by EU citizenship are simply downloaded onto national citizenship regimes, with alterations to policies and institutions made accordingly. Footnote 8 In fact, uncovering and analysing the narrative of EU citizenship reveals that there is no such story of linear progress, but rather a set of complex and often countervailing narratives of Europeanisation and de-Europeanisation, which together combine to make up the full picture.

For the purposes of this essay, we need to think of Europeanisation as more than just the principle that membership of the EU means that member states must comply with EU law and implement legislative measures and new administrative requirements introduced by the EU legislature. It is also a two-way track in which elements of national choice and institutional ‘style’ find their way into EU-wide measures and approaches to policy-making as well as into its institutional forms, not least through the participation of member states in the legislative process. This is a broader and more sociological concept of Europeanisation than is commonly deployed in political science, and it incorporates also aspects of legal culture as well as formal compliance with EU law. A similar approach is also useful when analysing counter moves of de-Europeanisation. At the collective level, there is the trend towards intergovernmental approaches to become once again the norm, with a resurgence of control by the member states vis-à-vis the Commission or the Court of Justice. At the level of member states it encompasses not just deviations in compliance, but equally the alienation of (some) member states from the core requirements or principles of integration, through practices such as flexibility and differentiated integration. Finally, it includes also the hitherto unique phenomenon of Brexit, where a member state is negotiating a formal exit from the EU, but also, for the future, a revised relationship perhaps akin to association or membership of the EEA via a ‘Norway’ or EFTA model, or perhaps much looser in character. Under the former model, some of the underpinning principles of EU citizenship, such as free movement, may continue to apply, which is one reason why it is presently very controversial in the UK as a possible post-Brexit scenario.

We can now take a closer look at some of the criss-crossing pathways of Europeanisation and de-Europeanisation. What might be seen as opposing trends of ‘integration’ and ‘disintegration’ are in fact occurring simultaneously. First we examine the extent and character of the apparently increasing EU law constraints upon the citizenship laws of member states. This raises the question of how autonomous national citizenship laws may be in the future. Second, we explore some of the main ‘citizenship consequences’ of the Brexit vote and the anticipated departure of the United Kingdom from the EU. The two issues are interrelated in many ways, and not just through a common preoccupation with the question of the autonomy of different levels within the EU’s current multilevel citizenship regime. Furthermore, the reflections below will help to show, amongst other insights, that EU citizenship is not just a matter of institutional choices but also, increasingly, of choices made and routes followed by individuals and groups. It has both a top-down and a bottom-up dimension.

How far does EU citizenship constrain member state sovereignty in matters of nationality law?

The EU has been accused of being ‘over-constitutionalised’. Footnote 9 That is, that too much in terms of substance and too many constraints on national sovereignty have been packed into its founding treaties, and handed over for authoritative interpretation and application to the CJEU. This has the effect of over-emphasising the role of the judiciary, both at the supranational and the national level (as the starting point for most pathways to the Court of Justice, especially for individual litigants, lies in the national courts, not the EU courts). Some have argued that there is no obvious legitimating factor justifying this function. It just looks like overpowerful and overweaning judges, undermining political constitutionalism. Footnote 10 This unnecessarily subverts the role of elected institutions and thus of ‘the people’ who elect those institutions. Equally, EU legislative measures are often – of necessity – somewhat broad and protean in their drafting, and require frequent judicial reinterpretation even once they have been transposed into the national legal orders. They are also very difficult to amend because of multiple veto points within the system.

The field of EU citizenship is arguably ripe for such an interpretation. EU citizenship, established in Articles 20 and 21 TFEU, has operated as a backstop in cases where the most important secondary legislation, notably the so-called citizens’ rights or free movement directive, Footnote 11 does not apply. CJEU case law, on issues such as the rights of third country national family members of mobile EU citizens, has proved challenging for national authorities to accept and implement.

Exploring the well-known point that fears about loss of national sovereignty over immigration and about CJEU judicial power have been important factors in the Brexit vote, Susanne Schmidt has shown in some detail how this process has worked in the case of free movement, leaving little obvious leeway for national authorities to protect either the interests of the state or societal cohesion. Footnote 12 Of course, that sense of an infringement of sovereignty has largely emerged out of a narrow and restrictive interpretation of the idea of free movement as a unilateral track involving non-UK citizens (generally called ‘EU migrants’, not ‘EU citizens’) moving towards the UK, which has dominated in the Europhobic popular media. The choice to name certain social actions in terms of ‘immigration’ rather than ‘co-citizenship’ will always have consequences. Its impact should not be underestimated. It contributed to a strong perception in the UK – against the backdrop of an increasingly rigid immigration policy backed up by harsh enforcement actions against those falling foul of the law – that EU free movers are lucky, undeservedly lucky, migrants, doing better in the UK than UK citizens themselves, not least because the family reunion rules they benefit from are more generous than those applicable to UK citizens under UK law. On that count, they are not seen as sharing a status with UK citizens – i.e. that of EU citizen. And the sense that this status involves a twin track of mobility in both directions as well as the possibility to take common political action, e.g. in relation to European Parliament elections, is lost entirely.

It could be said that national reactions (and the UK is hardly alone in this) to the constitutionalising case law in the sphere of ‘citizenship’, especially in relation to the status and rights of mobile EU citizens and their families (including third country nationals) resident in other member states, has lain behind the retrenchment of that same case law in recent years. Judges are not immune from political pressures. They read newspapers. The newest case law has become more respectful of the welfare sovereignty of the member states, and has stated clear limits to the dictum that the Court once pronounced, that there should be a ‘certain degree of solidarity’ amongst the member states when it comes to the question of which set of taxpayers should support which types of economically inactive, or less active, citizens. But while the CJEU has been busy in recent years stating that free movement is not free from limits, this move may have come too late for the UK.

It is therefore perhaps surprising that we can see constitutional constraints on member state sovereignty continuing to accrete in relation to some of the choices that those states can make as regards the application of their domestic citizenship laws and its consequences, especially in the sphere of immigration and family reunion. It is well established that it is a matter for the member states to decide who may acquire their citizenship, thus making the member states the gatekeepers of access to EU citizenship, although from early on the CJEU has made it clear that member states may not refuse to recognise an ‘EU citizenship’. In Micheletti , Footnote 13 for example, Spain could not choose to treat a dual Italian/Argentinian national as simply Argentinian for the purposes of access to the territory or to benefits associated with presence on the territory. This is an early example of the CJEU requiring such national competences around nationality and the recognition of nationality to be exercised, in situations covered by European Union law, in a manner that has due regard to the requirements of EU law.

The ‘situations covered by EU law’ have included the type of scenario that arose in the case of Rottmann , Footnote 14 where the applicant had moved from Austria to Germany, and had obtained German citizenship by fraud, failing to inform the authorities that he was the subject of possible criminal proceedings in Austria. The reversal of the naturalisation decision by the state authorities in the case of Rottmann fell within the scope of EU law because of that mobility, and thus Germany had to apply its withdrawal rules in a manner that had regard to the impact of the withdrawal on Rottmann’s status as an EU citizen and the loss of rights that would flow from this. By becoming German, Rottmann had lost his Austrian citizenship by operation of law. Thus depriving him of German citizenship left him, at least for the time being, stateless. The CJEU made it clear that measures withdrawing citizenship and depriving a person of their EU citizenship needed to be capable of judicial review at the national level and they needed to be proportionate, in order to comply with the requirements of EU law. In drawing this conclusion, the Court referenced the early case of Grzelczyk where it stated that citizenship of the Union is intended to be the fundamental status of nationals of the member states. Footnote 15 In general, though, the Court indicated that withdrawal of citizenship on grounds of fraud during the process of naturalisation expresses a legitimate state interest. It declined to rule on the question of what, if any, measures Austria should take if Rottmann sought to recover his original nationality.

Rottmann is the only case thus far where a CJEU ruling has intruded directly into the field of citizenship law, although pending before the Court is the Tjebbes case on the effects of Dutch rules which deprive persons, by operation of law, of their Dutch citizenship on the grounds of habitual residence outside the EU for more than 10 years, where they have another nationality (whether acquired afterwards or before). Footnote 16 It will be interesting to see whether the CJEU recognises habitual residence abroad as a legitimate state interest justifying withdrawal of citizenship and thus loss of EU citizenship, especially since such a withdrawal of citizenship by operation of law by definition deprives individuals, including children, of the possibility of individual (judicial) review of their cases. This case is especially interesting because after Brexit the UK is set to become be a third country vis-à-vis the EU. Thus EU citizenship will presumably not offer the counterbalance to the lack of recognition of dual nationality under Netherlands law, which currently reduces the options available to migrant Dutch citizens.

This case should be seen, however, alongside interesting political developments. After the Brexit vote, the Prime Minister of the Netherlands appeared to double down on his country’s resistance to dual citizenship, despite pressure from Dutch citizens resident in the UK. Footnote 17 However, perhaps as a harbinger of further changes to come in other member states in order to be responsive to the citizenship consequences of Brexit, the new coalition agreement reached in October 2017 as the basis for the creation of the new government adopted a more liberal approach to dual citizenship. This had been the existing party policy of just one of the four coalition partners (the D66 Liberal Democrats party). It offers the prospect of legal reform in order to provide assurances to Dutch citizens resident in the UK that they will be able to keep their Netherlands citizenship after naturalising in the UK. Footnote 18

Finally, the mantra of EU citizenship’s fundamental importance for nationals of the member states has also been invoked in order to justify restrictions on national rules on the assignation or recognition of names, Footnote 19 in the context of civil status laws, Footnote 20 and certain national rules restricting the right to vote in European Parliament elections. Footnote 21 These cases buttress the argument that EU citizenship is emerging as an autonomous constitutional status for nationals of the member states.

In a small number of instances, the CJEU has defended a territorial principle in relation to the enjoyment of EU citizenship, finding in a series of cases from Ruiz Zambrano Footnote 22 onwards that where a minor EU citizen would be forced to leave the territory of the Union if one or more of his or her third country national parents with direct caring responsibilities were to be deported from a member state (thus depriving the EU citizen of the enjoyment of his or her citizenship rights), then the parent(s) will enjoy derived rights of residence stemming from Articles 20 and 21 TFEU. Here, the constitutional effects of EU law are largely felt in the sphere of national immigration law, restricting decision-making in respect of third country nationals by reference to the status of the EU citizen dependent child. Footnote 23 The possibility of protection for third country nationals stems in this case from the effects of citizenship laws conferring nationality at birth . The principle can apply even if only one of the parents is a third country national. The key question is whether the EU citizen child has a primary relationship of care with the parent at threat of losing their residence.

Acquisition of a new EU nationality after birth (e.g. through naturalisation) has also become an issue, provided that the person naturalising still retains her or his original (EU) nationality. The CJEU concluded in the 2017 Lounes case Footnote 24 that an EU citizen who has made use of her free movement rights and naturalises on the basis of residence and integration within the host member state will no longer benefit from Directive 2004/38 (and thus no longer has the family reunion rights conferred under the Directive on mobile EU citizens). However, she will benefit still from her status as an EU citizen under Articles 20 and 21 TFEU. This means that the host state must grant her rights to family reunion that are no more restrictive than those laid down in the Directive. What makes this controversial is that the EU citizen in these circumstances benefits from EU law measures on family reunion that are notably less restrictive than the national rules applicable in most member states for citizens. Footnote 25

The lack of symmetry in the dual nationality rules applied by the member states across the EU means that this approach, while superficially attractive in terms of special protection of the interests of those who go so far as to naturalise in the host state, has an unhelpful aura of arbitrariness about its scope of application. For example, it would seem that if the Lounes case, involving a Spanish woman acquiring UK citizenship and keeping her Spanish citizenship, and benefiting from family reunion with her Algerian partner, were reversed, the position would not be the same. Suppose that a British woman resident in Spain were to acquire Spanish citizenship by naturalisation. The theoretically stricter requirements in relation to dual citizenship in Spain would mean that she would not be able to continue benefiting from her UK citizenship under Articles 20 and 21 TFEU because, at least as far as the Spanish authorities would be concerned, she would have renounced that nationality.

Can EU citizenship be retained after Brexit?

The developments in relation to the constitutional constraints generated by EU citizenship may prove to be of central importance when it comes to figuring out the effects of Brexit on EU citizenship (and indeed of EU citizenship on Brexit). The orthodox international law-based position would be as follows: once the UK leaves the EU, the Treaties and the various rights and obligations applicable under them no longer apply. Absent a consensual arrangement under Article 50 TEU in the exit negotiations, the treatment of EU27 citizens resident in the UK and UK citizens resident in the EU27 reverts to being a matter for national immigration law subject only to certain international human rights obligations. Each member of these two groups has to seek stable legal residence from their host state. At most, those in this situation could benefit from residual protection of their family life interests under the European Convention on Human Rights Footnote 26 or perhaps – where EU immigration law applies in the EU27 – protection under Directive 2003/109, which harmonises rights of long term resident third country nationals. Footnote 27 It is unsurprising that the EU has made the situation of these groups of EU citizens, who have previously relied upon their free movement rights, a priority within the Article 50 negotiations, and it can broadly be assumed that if there is an Article 50 withdrawal agreement then most of their rights will be protected under its provisions. This will not be just like benefiting from EU citizenship, but such a legal measure will surely, wherever it applies, institute a new category of relatively privileged alien, although there are bound to be plenty of cases of uncertainty that will generate litigation that will end up before the CJEU, or some specially constituted judicial institution.

This outcome marks the resurgence of the fundamentals of national immigration law over the postnational promise of EU citizenship, and the same could be said of the alternative, which is that the former beneficiaries of EU citizenship rights should seek naturalisation in the host state. According to Dora Kostakopoulou, this would ‘lead to the absorption of the status of EU citizenship by national citizenship.’ Footnote 28 In any event, as is well known, naturalisation will not provide the answer in all cases, because of uneven member state policies on dual citizenship, not to mention other issues such as naturalisation tests and costs. That has not stopped many UK citizens (whether static or mobile) from exploring how they might access a member state nationality that would preserve their EU citizenship rights, or indeed many EU27 citizens from naturalising in the UK. Gareth Davies has argued that Lounes was decided by the CJEU with one eye on Brexit, but he is hardly complimentary about the nature of the CJEU’s reasoning. Footnote 29 But exploration of citizenship options represents just one of the many ways in which individuals are reacting to the difficult choices that Brexit is forcing on them.

Other pathways followed by those objecting on either personal or political grounds to the UK leaving the EU (and the circumstances in which it is doing so) include increased political activism, via well-established actors such as the European Citizens’ Action Service, newly formed NGOs such the 3Million (EU27 in UK) and British in Europe, or repurposed pro-EU NGOs such as New Europeans or European Alternatives which have been given a new impetus by the urgency of the issues raised by Brexit. Brexit has given rise to unprecedented civic mobilisation around demands for the protection of acquired rights, including several European Citizens’ Initiatives registered by the European Commission. Footnote 30 Some have raised the possibility of EU citizenship becoming a freestanding status that can be acceded to other than through the nationality of the member states, with UK citizens being offered the possibility of ‘associate citizenship’, Footnote 31 but at present such proposals remain utopian (and probably undesirable) rather than practical in character. All of these initiatives unfortunately remind us what a divisive issue Brexit is and will remain especially, but not only, in the UK. Part of the reason for the Brexit vote was precisely that EU citizenship was not recognised as a social fact by the majority of voters. Yet even if EU citizenship could be said to be a prime example of conceptual change occurring before political, institutional and social reality changes, for a group of directly affected persons EU citizenship very definitely is an established social fact, as well as a source of legal rights. Once established, can the rights of EU citizenship simply be taken away by state fiat ?

There have been several attempts to bring this issue before the CJEU, to see whether it may be inclined to engage in judicial activism in order to protect the status of EU citizenship. In a major victory for those who have been seeking to use law and litigation in the battle for EU citizenship rights, Footnote 32 a Dutch first instance court faced with such a claim by UK citizens resident in the Netherlands initially decided in February 2018 to make a reference to the CJEU under Article 267 to seek authoritative answers to questions it saw as essential to deciding the case before it. It wanted to know whether withdrawal of the UK from the EU automatically leads to the loss of the EU citizenship of UK nationals and the elimination of the rights and freedoms deriving from EU citizenship, and if it does not what conditions should then be imposed. The decision to make a reference has now been appealed to the superior Dutch courts, but if the case does reach the CJEU it may be expedited for rapid resolution given the obvious urgency of the situation.

The issue being tested here is not the UK’s future compliance with EU citizenship rights, but rather that of another member state, where a group of concerned UK citizens are resident. This is, of course, a hugely political question for the CJEU to be faced with, and it is likely to find ways to dodge the bullet because of the negative impact such a judgment could have upon its credibility. The Dutch district court was faced with the argument, put forward by the defendants in the case (the Netherlands and the city of Amsterdam) that the question was merely a political issue not a legal question, and that the dispute – at this stage – was purely fictional. The judge concluded, however, that there was a real and present threat of harm flowing from the possibility of Brexit, including UK withdrawal without an agreement under Article 50 TEU. The CJEU may, to the contrary, conclude that this is – at this stage – a purely hypothetical dispute and so the request for certain questions to be answered under the reference procedure is inadmissible. Even if the reference is accepted as admissible, there are formidable obstacles to making the case that EU citizenship somehow maintains a life after Brexit, Footnote 33 even though applicants see themselves as relying upon the logical consequences of the line of case law leading up to and beyond Ruiz Zambrano , which has been defended extra-judicially by no less a personage than the President of the CJEU himself. Footnote 34 Perhaps the best that could be hoped for in terms of legal outcome for the applicants will not be the assertion that EU citizenship somehow continues as a status, but rather the sort of ‘freezing’ of basic rights articulated for the very different case of Slovenia after the administrative ‘erasure’ of certain non-citizens following independence in 1992 and adjudicated in the Kuric case before the European Court of Human Rights. Footnote 35 In fact, we do not really need the CJEU to tell us that these are the human rights obligations of the member states in the absence of a withdrawal agreement on the rights of EU citizens.

And yet we are led ineluctably back to the question of how far the constitutionalising effects of EU citizenship already go, and how much further they might stretch in the future. The referring judge in the Dutch case discussed above relied in his brief judgment on Rottmann and Lounes , building his reflections on the back of the classic dictum – no longer so frequently invoked by the Court of Justice and notably missing from the reasoning in Lounes  – that EU citizenship is destined to be the fundamental status of the nationals of the member states. Footnote 36 On that analysis, EU citizenship can be seen as an independent source of rights for citizens, and once granted cannot be taken away unless the measures adopted would pass the proportionality test. One might agree with Davies Footnote 37 that with Rottmann and now Lounes the CJEU has already travelled most of the way down the road towards the conclusion that member states cannot just deprive citizens of rights once granted. However, it will doubtless come under heavy pressure to accept that the implementation of the consequences of a referendum held in the UK represents a legitimate and powerful state interest that outweighs the interests of individuals, if it comes to the question of implementing a proportionality test. Yet the Dutch judge has something to say about this matter too, embellishing the argument with some important – if controversial – democratic principles:

[5.22] the essence of a democratic constitutional state is that the rights and interests of minorities are protected as much as possible. The same applies to the functioning of the EU as a whole which forms a democratic community of (member) states governed by the rule of law.

What then, of the mythical ‘people’ so often invoked by the current UK government to justify pursuing a ‘Brexit means Brexit’ policy on the coat tails of a vote in which little more than 35 per cent of the overall registered voting population stated that the UK should ‘leave the European Union’ without being any more precise about how or with what consequences? Footnote 38 How can democracy be judged in such a contest between minorities and majorities, and what might be the legitimate role of a Dutch court to set in train a series of events that might lead to a legally legitimate decision of the UK electorate being constrained in its effects?

The stage could be set, therefore, for a constitutional confrontation of the highest order before the CJEU, where the limits of the CJEU’s capacity for judicial activism (or, as some might have it, legitimate protection of constitutional constraints on oppressive state action) will be tested. EU citizenship may remain very different to national citizenship, but it is possible that it has already acquired enough of its own distinctive ‘sticky’ qualities that it will come to haunt the Brexit negotiations in unexpected ways.

For an overview of different ‘imperial’ repertoires see Gammerl, B. (2017), Subject, citizens, and others: Administering Ethnic Heterogeneity in the British and Habsburg Empires, 1867–1918. New York/Oxford: Berghahn Books.

Arendt, H. (1967), The Origins of Totalitarianism . London: George Allen & Unwin, 296.

Marshall, T.H. (1950), Citizenship and Social Class . Cambridge: Cambridge University Press.

See generally Shaw, J. (2011), ‘Citizenship: contrasting dynamics at the interface of integration and constitutionalism’, in P. Craig & G. de Búrca (eds,), The Evolution of EU Law , 2nd Edition, 575–609. Oxford: OUP.

Bellamy, R. (2008), ‘Evaluating Union citizenship: belonging, rights and participation within the EU’, Citizenship Studies 12 (6): 597–611.

Kostakopoulou, D. (2018), ‘ Scala Civium : Citizenship Templates Post-Brexit and the European Union’s Duty to Protect EU Citizens’, JCMS: Journal of Common Market Studies , doi: https://doi.org/10.1111/jcms.12683 .

See Wiesner, C. et al. (2018), ‘Introduction: Shaping Citizenship as a Political Concept’, in C. Wiesner et al. (eds.), Shaping Citizenship , 1–17 (10). New York: Routledge.

For an extended analysis in these terms see Thym, D. (ed.) (2017), Questioning EU citizenship. Judges and the limits of free movement and solidarity in the EU . Oxford: Hart Publishing.

Grimm, D. (2015), ‘The Democratic Costs of Constitutionalisation: The European Case’, European Law Journal 21 (4): 460–473.

See Bellamy, R. (2007), Political Constitutionalism. A Republican Defence of the Constitutionality of Democracy . Cambridge: Cambridge University Press.

Directive 2004/38/EC [2004] OJ L158/77.

Schmidt, S. (2017), ‘Extending Citizenship Rights and Losing it All: Brexit and the Perils of “Over-Constitutionalisation”, in Thym, D. above n.8, at 17–36.

Case C-369/90 ECLI:EU:C:1992:295.

Case C-135/08 ECLI:EU:C:2010:104.

Case C-184/99 ECLI:EU:C:2001:458, para. 31.

Case C-221/17. For a brief commentary see de Haart, B. and Mantu, S. (2017), ‘ Loss of Dutch nationality ex lege: EU law, gender and multiple nationality’, GlobalCIT blog , http://globalcit.eu/loss-of-dutch-nationality-ex-lege-eu-law-gender-and-multiple-nationality/ .

‘Dutch nationals taking UK citizenship “will lose Netherlands passports”’, The Guardian , 17 July 2017, available at https://www.theguardian.com/politics/2017/jul/17/dutch-nationals-brexit-uk-citizenship-lose-netherlands-passports-mark-rutte ; for details on loss of citizenship by acquisition of foreign citizenship, see GlobalCIT Citizenship Modes of Loss database, http://globalcit.eu/loss-of-citizenship/ .

See ‘Brexit: Dutch nationals living in Britain will be allowed dual citizenship’, The Guardian , 10 October 2017, available at https://www.theguardian.com/world/2017/oct/10/dutch-nationals-living-britain-allowed-dual-citizenship-brexit . The details of how this might work are not as yet known. Details of the earlier D66 proposal, which cited research showing that the Netherlands is now an outlier in the matter of dual citizenship in Europe can be found here: http://fasos.maastrichtuniversity.nl/weekly/macimide-dataset-cited-in-proposed-amendment-of-dutch-citizenship-law/ .

Case C-148/02 Garcia Avello ECLI:EU:C:2003:539.

See Pataut, E. (2016), ‘A Family Status for the European Citizen?’, in Azoulai, L. et al. (eds.), Constructing the Person in EU Law Rights, Roles, Identities , 311–322. Oxford: Hart Publishing.

Case C-650/13 Delvigne ECLI:EU:C:2015:648.

Case C-34/09 ECLI:EU:C:2011:124.

For a recent analysis, see Peers, S. (2017), ‘Think of the children: the ECJ clarifies the status of non-EU parents of EU citizen children living in their own Member State’, EU Law Analysis Blog , 10 May 2017, available at http://eulawanalysis.blogspot.com/2017/05/think-of-children-ecj-clarifies-status.html .

Case C-165/16 ECLI:EU:C:2017:862.

See Peers, S. (2017), ‘Dual citizens and EU citizenship: clarification from the ECJ’, EU Law Analysis Blog , 15 November 2017, available at http://eulawanalysis.blogspot.com/2017/11/dual-citizens-and-eu-citizenship.html .

Kuric and Others v Slovenia , No 26828/06, [2013] 56 EHRR 20.

Directive 2003/109 on the status of third country nationals who are long term residents OJ 2003 L16/44.

See Kostakopoulou above n.6, 7.

Davies, G. (2018), ‘The State of Play on Citizens’ Rights and Brexit’, European Law Blog , 6 February 2018, http://europeanlawblog.eu/2018/02/06/the-state-of-play-on-citizens-rights-and-brexit/ and Davies, G. (2018), ‘ Lounes , Naturalisation and Brexit’, European Law Blog , 5 March 2018, available at http://europeanlawblog.eu/2018/03/05/lounes-naturalisation-and-brexit/ .

See for example http://ec.europa.eu/citizens-initiative/public/initiatives/open/details/2017/000005 and http://ec.europa.eu/citizens-initiative/public/initiatives/open/details/2017/000003 . For reflection see Garner, O. (2017), ‘The European Citizens’ Initiative on a European Free Movement Mechanism’, European Law Blog , 23 February 2017, available at http://europeanlawblog.eu/2017/02/23/the-european-citizens-initiative-on-a-european-free-movement-mechanism-a-new-hope-or-a-false-start-for-uk-nationals-after-brexit/ .

See the discussion in Schrauwen, A, (2017), ‘(Not) Losing out from Brexit’, Europe and the World: A Law Review 1 (1): 1–18.

Maugham, J. (2018), ‘Why I helped bring the Dutch case over Britons’ EU rights’, The Guardian , 18 January 2018, available at https://www.theguardian.com/commentisfree/2018/jan/18/dutch-case-britons-eu-rights-brexit-uk-citizens .

McCrea, R. (2018), ‘Brexit EU Citizenship Rights of UK Nationals and the Court of Justice’, UK Constitutional Law Blog , 8 February 2018, available at https://ukconstitutionallaw.org/2018/02/08/ronan-mccrea-brexit-eu-citizenship-rights-of-uk-nationals-and-the-court-of-justice/ .

Lenaerts, K. (2015), ‘EU citizenship and the European Court of Justice’s ‘stone-by-stone’ approach’, International Comparative Jurisprudence 1(1): 1–10.

See above n.26.

See https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBAMS:2018:605 . For an unofficial summary of key sections of the judgment, see https://waitingfortax.com/2018/02/07/a-summary-in-english-of-the-decision-of-the-district-court-in-amsterdsm/ .

See above n.29.

What if everyone had voted in the EU referendum?’, UK and EU Blog , 28 July 2016, available at http://ukandeu.ac.uk/what-if-everyone-had-voted-in-the-eu-referendum/

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Shaw, J. (2019). EU citizenship: Still a Fundamental Status?. In: Bauböck, R. (eds) Debating European Citizenship. IMISCOE Research Series. Springer, Cham. https://doi.org/10.1007/978-3-319-89905-3_1

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Legal basis

Articles 2, 3, 7 and 9 to 12 TEU, 18 to 25 TFEU and 39 to 46 of the EUCFR ( 4.1.2 ).

EU law creates a number of individual rights directly enforceable in the courts, both horizontally (between individuals) and vertically (between the individual and the state). Inspired by the freedom of movement for persons envisaged in the Treaties, the introduction of a European form of citizenship with precisely defined rights and duties was considered as long ago as the 1960s. Following preparatory work, which began in the mid-1970s, the TEU, adopted in Maastricht in 1992, made it an objective for the Union ‘to strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union’. A new part of the EC Treaty (ex Articles 17 to 22) was devoted to this citizenship, and was maintained when the Treaty became the TFEU.

Like national citizenship, EU citizenship refers to a relationship between the citizen and the European Union, which is defined by rights, duties and political participation. This is intended to bridge the gap between the increasing impact that EU action is having on EU citizens, and the fact that the enjoyment of (fundamental) rights, the fulfilment of duties and participation in democratic processes are almost exclusively national matters. Article 15(3) TFEU gives every natural or legal person in a Member State the right of access to documents of the Union’s institutions, bodies, offices and agencies. Article 16 TFEU enshrines the right to the protection of personal data ( 4.2.8 ). Article 2 TEU provides that ‘the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’.

Article 7 TEU takes over a provision from the earlier Treaty of Nice ( 1.1.4 ), which establishes both a prevention mechanism, where there is ‘a clear risk of a serious breach’ by a Member State of the values referred to in Article 2 TEU, and a sanction mechanism, in the event of a ‘serious and persistent breach’ by a Member State of those values. In the first instance, the Commission would call upon the European Council to conclude, by unanimity, that there was such a risk (Article 7(2)). This would then set in motion a procedure that could lead to a Member State losing its right to vote in the Council. This mechanism was activated for the first time in 2017 against Poland because of the reform of its Supreme Court.

Moreover, there is to be stronger protection of the rights and interests of Member States’ nationals/EU citizens in the Union’s relations with the wider world (Article 3(5) TEU).

Achievements

For a long time, the legal basis for citizens’ rights at EU level consisted essentially of the case-law of the Court of Justice of the European Union (CJEU). Since the entry into force of the Treaty of Lisbon and the EUCFR, the legal basis has been expanded to true European citizenship.

A. Definition of EU citizenship

Under Article 9 TEU and Article 20 TFEU, every person holding the nationality of a Member State is a citizen of the Union. Nationality is defined according to the national laws of that State. Citizenship of the Union is complementary to, but does not replace, national citizenship. EU citizenship comprises a number of rights and duties in addition to those stemming from citizenship of a Member State. In Case C-135/08 Janko Rottmann v Freistaat Bayern, Advocate General Poiares Maduro at the CJEU explained the difference (paragraph 23 of the Opinion):

‘Those are two concepts which are both inextricably linked and independent. Union citizenship assumes nationality of a Member State but it is also a legal and political concept independent of that of nationality. Nationality of a Member State not only provides access to enjoyment of the rights conferred by Community law; it also makes us citizens of the Union. European citizenship is more than a body of rights which, in themselves, could be granted even to those who do not possess it. It presupposes the existence of a political relationship between European citizens, although it is not a relationship of belonging to a people. […] It is based on their mutual commitment to open their respective bodies politic to other European citizens and to construct a new form of civic and political allegiance on a European scale.

It does not require the existence of a people, but is founded on the existence of a European political area from which rights and duties emerge. In so far as it does not imply the existence of a European people, citizenship is conceptually the product of a decoupling from nationality. As one author has observed, the radically innovative character of the concept of European citizenship lies in the fact that ‘the Union belongs to, is composed of, citizens who by definition do not share the same nationality’. On the contrary, by making nationality of a Member State a condition for being a European citizen, the Member States intended to show that this new form of citizenship does not put in question our first allegiance to our national bodies politic. In that way, that relationship with the nationality of the individual Member States constitutes recognition of the fact that there can exist (in fact, does exist) a citizenship which is not determined by nationality.

That is the miracle of Union citizenship: it strengthens the ties between us and our States (in so far as we are European citizens precisely because we are nationals of our States) and, at the same time, it emancipates us from them (in so far as we are now citizens beyond our States). Access to European citizenship is gained through nationality of a Member State, which is regulated by national law, but, like any form of citizenship, it forms the basis of a new political area from which rights and duties emerge, which are laid down by Community law and do not depend on the State. […] That is why, although it is true that nationality of a Member State is a precondition for access to Union citizenship, it is equally true that the body of rights and obligations associated with the latter cannot be limited in an unjustified manner by the former.’

Following the UK’s withdrawal from the EU, a decision on the acquired rights of British nationals resident in Member States, and of EU citizens living in the UK, was agreed. Over the years, each Member State has vested its nationals with a legal heritage of rights, and EU law also creates a number of individual rights directly enforceable in the courts, according to the case-law of the CJEU ( Van Gend & Loos ). Limits of that legal heritage could be seen as resting with the national law that gives them effect.

B. Substance of citizenship (Article 20 TFEU)

For all EU citizens, citizenship implies:

• The right to move and reside freely within the territory of the Member States (Article 21 TFEU) ( 4.1.3 );
• The right to vote and to stand as a candidate in elections to the European Parliament and in municipal elections (Article 22(1) TFEU) in the Member State in which they reside, under the same conditions as nationals of that State (for the rules on participation in municipal elections see Directive 94/80/EC of 19 December 1994, and for the rules governing election to the European Parliament, see Directive 93/109/EC of 6 December 1993) ( 1.3.4 );
• The right to diplomatic protection in the territory of a third country (non-EU state) by the diplomatic or consular authorities of another Member State, if their own country does not have diplomatic representation there, to the same extent as that provided for nationals of that Member State;
• The right to petition the European Parliament and the right to apply to the Ombudsman (both Article 24 TFEU) appointed by the European Parliament concerning instances of maladministration in the activities of the EU institutions or bodies. These procedures are governed respectively by Articles 227 and 228 TFEU ( 1.3.16 and 4.1.4 );
• The right to write to any EU institution or body in one of the languages of the Member States and to receive a response in the same language (Article 24(4) TFEU);
• The right to access European Parliament, Council and Commission documents, subject to certain conditions (Article 15(3) TFEU).

With the exception of electoral rights, the substance of Union citizenship achieved to date is, to a considerable extent, simply a systematisation of existing rights (particularly as regards freedom of movement, the right of residence and the right of petition), which are now enshrined in primary law on the basis of a political idea.

By contrast, with the constitutional understanding in European states since the French Declaration of Human and Civil Rights of 1789, no specific guarantees of fundamental rights are associated with citizenship of the Union. Article 6 TEU states that the Union recognises the rights set out in the EUCFR and that it will accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms, but it does not make any reference to the legal status of Union citizenship.

Union citizenship does not as yet entail any duties for citizens of the Union, despite the wording to that effect in Article 20(2) TFEU. This constitutes a major difference between EU citizenship and citizenship of a Member State.

However, in a recent judgment, the CJEU ruled (in Case C-689/21) that it is for each Member State to lay down the conditions for acquisition and loss of its nationality. EU law did not preclude the permanent loss of, for example, Danish nationality and therefore of citizenship of the Union in a specific case. Denmark was therefore allowed to make the retention of Danish nationality dependent on the existence of a genuine connection with that country. However, where the person concerned did not hold the nationality of another EU Member State, due regard must be had to the principle of proportionality.

Moreover, following ‘Brexit’, the Court of Justice decided on 15 June 2023 that the loss of the status of citizen of the EU is an automatic consequence of the sole sovereign decision taken by the United Kingdom to withdraw from the European Union, and not of the withdrawal agreement or the Council’s decision approving that agreement (Cases C-499/21 P, Silver and Others v Council, C-501/21 P, Shindler and Others v Council, and C-502/21 P, Price v Council).

The Commission reports every three years on the application of EU legal provisions on EU citizenship and non-discrimination. The upcoming  2023 report will take stock of developments in that area since the last EU Citizenship Report in 2020 , including developments in the CJEU.

D. European Citizens’ Initiative ( 4.1.5 )

Article 11(4) TEU provides for a new right for EU citizens: ‘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 conditions governing the submission and admissibility of any such initiative by citizens are set out in Regulation (EU) No 211/2011 of the European Parliament and of the Council . Its main provisions are described in 4.1.5 .

Role of the European Parliament

In electing the European Parliament by direct suffrage, EU citizens are exercising one of their essential rights in the European Union: that of democratic participation in the European political decision-making process ( Article 39 of the EUCFR ). As regards the procedures for the election of its Members, Parliament has always called for the implementation of a uniform electoral system in all the Member States. Article 223 TFEU provides that Parliament will draw up a proposal to that effect (‘to lay down the provisions necessary for the election of its Members by direct universal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States’). The Council will then lay down the necessary provisions (acting unanimously and after obtaining the consent of the majority of MEPs), which will enter into force following their approval by the Member States, in accordance with their respective constitutional requirements ( 1.3.4 ).

Parliament has always wanted to endow the institution of EU citizenship with comprehensive rights. It advocated the determination of citizenship on an autonomous Union basis, so that EU citizens would have an independent status. In addition, from the start it advocated the incorporation of fundamental and human rights into primary law and called for EU citizens to be entitled to bring proceedings before the CJEU when those rights were violated by EU institutions or a Member State (its resolution of 21 November 1991 ).

Following the UK’s departure from the EU and regarding the acquired rights of around 3.2 million citizens from the remaining 27 Member State residing in the United Kingdom, in its resolution of 15 January 2020 , Parliament insisted that adequate protection of citizen’s rights ‘with regard to past experience and assurances’ must be guaranteed. The adopted text also urges EU-27 governments to make generous arrangements for the approximately 1.2 million UK citizens in the EU.

In accordance with Parliament’s requests, the fourth paragraph of Article 263 TFEU stipulates that any natural or legal person may institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.

As regards the right of access to documents, on 17 December 2009, Parliament adopted a resolution on improvements needed in the legal framework for access to documents following the entry into force of the Lisbon Treaty. Among other things, it stressed the need to widen the scope of Regulation (EC) No 1049/2001 to encompass all of the institutions and bodies not covered by the original text.

As regards the European Citizens’ Initiative (ECI) , three months after the submission of a citizens’ initiative, Commission representatives meet the organisers, and the organisers also have the opportunity to present their initiative at a public hearing in the European Parliament. The hearing is organised by the committee responsible for the subject matter of the ECI (Rule 222 of Parliament’s Rules of Procedure).

Parliament, in joint presidency with the Council and the Commission, and acting as equal partners with the Member States, co-organised the Conference on the Future of Europe , which aimed to give European citizens a new space to debate Europe’s challenges and priorities. The Conference’s conclusions and recommendations on the future of Europe were presented in a report to the joint presidency in May 2022. Parliament has committed to following up on the recommendations made in the report, which fall within its sphere of competences. On 17 June 2022, the Commission published a communication entitled ‘Conference on the Future of Europe: Putting Vision into Concrete Action ’.

On the controversial issue of ‘golden passports’, whereby some Member States are selling their national citizenship, and hence EU citizenship, in order to attract foreign investors, Parliament asserted in its resolution of 16 January 2014 that the values and achievements associated with EU citizenship cannot have a ‘price tag’ attached. In a resolution adopted on 10 July 2020, Parliament reiterated its call for Member States to phase out all existing citizenship by investment or residency by investment schemes, as they are often linked to money laundering, which could lead to the mutual trust and integrity of the Schengen area being undermined. On 29 September 2022, the Commission decided to refer Malta to the CJEU for its investor citizenship scheme, also referred to as the ‘golden passport’ scheme ( infringement procedure  at the CJEU under  Article 258(2)  TFEU). The Commission considers that granting nationality – and thereby EU citizenship – in exchange for a pre-determined payment or investment and without a genuine link with the Member States concerned, is not compatible with the principle of sincere cooperation enshrined in Article 4(3) TEU. It also undermines the integrity of the status of EU citizenship provided for in Article 20 TFEU. On 9 March 2022, Parliament adopted a resolution on citizenship and residence by investment schemes requesting the Commission to submit, before the end of its current mandate, a proposal for a regulation to comprehensively govern various aspects of residency by investment schemes with the aim of harmonising standards and procedures and strengthening the fight against organised crime, money laundering, corruption and tax evasion. On 28 March 2022, in the context of the Russian invasion of Ukraine, the Commission adopted a recommendation on immediate steps in relation to investor citizenship schemes and investor residence schemes.

This fact sheet was prepared by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs.

Udo Bux / Mariusz Maciejewski

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Connecting the Dots Backwards, What Did Ruiz Zambrano Mean for EU Citizenship and Fundamental Rights in EU Law?

What was the added value of the Ruiz Zambrano judgment of the Court of Justice of the EU for the development of EU citizenship? And how does that affect the national level? In this contribution the case of Ruiz Zambrano and the subsequent case law of the Court of Justice and the Dutch courts is assessed to reveal its impact on EU citizenship and the protection of fundamental rights. The contribution shows that Ruiz Zambrano could be called a revolution, in the sense that irrespective of the exercise of free movement, nationals of the Member States can invoke their status of being an EU citizen. That has consequences for family reunification, and the right to reside as a family in the EU. However, the line of case law is still very limited and can be restricted on grounds of public policy and security (and public health; so far there is no case law on restriction on public health and Article 20 TFEU , but in the context of Covid-19 that might be different in the near future). Moreover, the fundamental rights narrative in the cases on Article 20 TFEU became more prominent. However, the implementation of this line of case law lies at the national level and the Dutch case law on Article 20 TFEU is therefore analysed as an example.

• 1 Introduction

The famous late chairman, chief executive officer of Apple, Steve Jobs, stated in a commencement speech at Stanford University in 2015: “You can’t connect the dots looking forward; you can only connect them looking backwards. So you have to trust that the dots will somehow connect in your future. You have to trust in something – your gut, destiny, life, karma, whatever.” 1 The Court of Justice of the European Union (Court of Justice or Court) is a pioneer, in the sense that it creates dots, in the future, for the development of EU law, which are then reflected upon by scholars, and reacted upon by policy makers and national courts and national legislation. It connects dots backwards as well, by referring back to its previous case law, even though the reasoning of the Court of Justice and its references are not always crystal clear and its reasoning is sometimes difficult to understand. 2 This contribution will follow the traces back to Ruiz Zambrano , 3 asking the question whether Ruiz Zambrano is a revolution or just a ‘pie in the sky’, 4 a minor change to the field of European citizenship and fundamental rights, such as family life and the rights of the child. Did Ruiz Zambrano mark a real change for the concept of EU citizenship in light of the constitutionalisation of the European Union? 5

This contribution will discuss the contribution of the Ruiz Zambrano judgment to the development of EU citizenship. In the analysis both EU and Dutch case law and legislation will be examined, since the significant impact of Ruiz Zambrano is mostly visible at the national level. The trends of case law differ in each Member State, obviously, but two recent cases on Article 20 TFEU came from Dutch courts: Chavez-Vilchez 6 and Tjebbes . 7 These cases also raise new questions, almost naturally, on the scope of Article 20 TFEU .

2 The Judgment Ruiz Zambrano and Its Aftermath : Starting Point of a Walk into the Woods

In March 2011 the Court of Justice decided on what would become one of the most famous judgments of European law in its seminal Ruiz Zambrano judgment. A case concerning a Colombian couple, with two children, Jessica and Diego, who had been given the Belgian nationality, in accordance with the Belgian Nationality Act at that time. According to that Act every person born in Belgium who would otherwise become stateless should be granted the Belgium nationality. 8 In its decision, the Court notably ruled that EU citizens may invoke their EU citizenship rights despite the fact that they resided in their own Member State and never exercised free movement rights, at least when ‘the genuine enjoyment of the substance of their rights’ is at stake. 9 Was this judgment a revolution or much ado about nothing?

• 2.1 Cross-Border Is No Longer a Precondition for EU Citizenship Rights

Ruiz Zambrano confirmed and established an extra ‘route’ for EU citizens to claim their EU citizenship rights, even when they did not have a cross-border link to EU law. At that time, such situation, as Ruiz Zambrano was in, would by many be qualified as a purely internal situation. 10 It was a very clear step from the internal market foundation to a constitutional meaning of EU citizenship. Actually, the real revolution was the case of Rottmann , which paved the way for the judgement in Ruiz Zambrano . If we re-read the conclusion of Advocate-General Maduro in Rottmann 11 it is clear that the EU law dimension of the case was at that time not evident. Maduro was of the Opinion that the case falls within the scope of EU law, and therefore under the jurisdiction of the Court of Justice, because of the previous movement of Mr. Rottmann from Austria to Germany. 12 With regard to the substantive analysis Maduro considered that the situation of Rottmann did not regard an obstacle to one of the EU citizenship rights, since it was not linked to one of the EU citizenship rights. He states that “In this case, deprivation of nationality is not linked to exercise of the rights and freedoms arising from the Treaty and the condition laid down by the Federal Republic of Germany, which resulted in the loss of nationality in this case, does not infringe any Community rule.” 13 However, the Court held that the situation of Rottmann did fall within the scope of EU law “by reason of its nature and its consequences”, 14 it did not refer to the previous free movement of Rottmann. The Court subsequently ruled on the legitimate aim (bond between individuals and the state) and the proportionality test (interests of the citizen at stake and those of the Member State). Without going into much detail here, 15 the judgment formed the first steppingstone of the new route in case law the Court of Justice took with regard to EU citizenship. 16 Ever since the case of Martinez Sala , 17 in May 1998, the Court of Justice ruled extensively on the free movement rights of EU citizens, based on Article 21 TFEU . 18 Rottmann is the first case in which Article 20 TFEU is mentioned as an independent source of rights. In paragraph 42 of the judgment the Court of Justice refers specifically to ‘the status conferred by Article 17 EC and the rights attaching.’ The Court of Justice refers therefor not only to the previous free movement of Mr. Rottmann – or his future free movement, but also to the status of EU citizenship as such. Ruiz Zambrano is the next step of this new line of case law, in which the Court of Justice confirmed that – irrespective of the exercise of free movement rights – EU citizens may invoke their EU citizenship rights, at least regarding ‘the genuine enjoyment of the substance of their rights’. 19 We saw previous to Ruiz Zambrano some early traces, like the case of Schempp , 20 wherein the EU citizen who lost a benefit did not exercise his free movement right, but his former spouse did do so by moving to another Member State. With Ruiz Zambrano , the Court of Justice explicitly left, in specific circumstances, the criterion of a cross-border element. 21 Moreover, in Delvigne 22 the Court of Justice held that the Charter would provide a direct right for EU citizens to vote for the European Parliament, irrespective of whether the EU citizen exercised her/his free movement rights. 23 As Article 21 TFEU in its application had serious similarities with the other economic free movement of persons, with Article 20 TFEU a more constitutional approach is being chosen. 24 Although free movement remains one of the core rights of EU citizens, cases like Delvigne show that outside free movement also other rights are attached to Article 20 TFEU . Once within the scope of Article 20 TFEU , the Charter of Fundamental Rights is also applicable. 25

2.2 Fundamental Rights as Part of Article 20 TFEU ?

Whether family life was part of the substance of rights where EU citizens may not be deprived of has been much debated after the judgment of Ruiz Zambrano , 26 which has only 7 substantive paragraphs. 27 In McCarthy , the Court of Justice held that McCarthy, having dual nationality, could not claim her EU citizenship in order to have her Jamaican partner with her in the UK. 28 This was clarified in 2012 in Dereci 29 where the Court held that the criterion it developed in Ruiz Zambrano was meant to cover only the very specific situation in which a EU citizen is actually forced to leave the European Union as a whole, 30 family life as such was not specifically included in the substance of the rights of EU citizens. 31 The Court ruled that the mere fact that it might appear desirable for an EU citizen to keep his family together in the European Union is “is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted”. 32 Subsequently, the Court of Justice held that the right to family life is, however, safeguarded in Article 7 of the Charter, and Article 8 of the ECHR . The Court of Justice then adds that it is up to the national court to consider “in the light of the circumstances of the disputes in the main proceedings, that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter. If it takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of Article 8(1) of the ECHR .” 33 In the case of Chavez-Vilchez , 34 however, the Court of Justice did connect family life and Article 20 TFEU , in the sense that Article 20 TFEU should be read in the light of family life. In that case, referred by the Dutch Administrative High Court, the Court of Justice actually ruled that to assess whether refusal of a derived right to reside for a third country national parent would result in forcing the EU citizen to leave the European Union as such, the right to family life and the right of the child (Article 7 and 24 of the Charter) should be considered. 35 In O and others 36 the Court again made a small step forward, arguing that the derived right to reside is not the sole entitlement of the parent who is in blood-line, but that also a non-biological parent could derive a right to reside in order to facilitate residence and therefore use of EU citizenship’ rights of the EU minor citizen. In Chavez-Vilchez , the Court of Justice explained more precisely how the right to family life and the rights of the child, both included in the Charter of Fundamental Rights of the EU, relate to Article 20 TFEU and the criterion of being forced to leave the territory of the European Union as a whole. Rather than the focus on the relationship between the child and the parent with the EU nationality, which was used by the Dutch Immigration Service, the focus should be on relationship of dependency between the third country national and the dependent EU citizen. In the assessment of that relationship of dependency it is important to take the right of family life and the right of the child into account. The Court of Justice therefore emphasises “it is important to determine, in each case at issue in the main proceedings, which parent is the primary carer of the child and whether there is in fact a relationship of dependency between the child and the third-country national parent”. 37 As part of the assessment whether an EU citizen is forced to leave the territory of the European Union “the competent authorities must take account of the right to respect for family life, as stated in Article 7 of the Charter of Fundamental Rights of the European Union, that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in Article 24(2) of that charter”. 38 Chavez-Vilchez clearly builds upon earlier case law, and confirms the ruling in O. and others 39 that dependency is the core element in assessing a violation of Article 20 TFEU , rather than the blood relationship. Nevertheless, the loss of EU citizenship automatically affects the right to free movement, implying that there is still a certain connection with the traditional criterion of free movement. As a result of Chavez-Vilchez , the Dutch government changed its policy on cases concerning so-called ‘Art. 20 TFEU -claims’, which was much more restrictive before the case of Chavez-Vilchez . 40

In the case of Tjebbes 41 the Court of Justice continued the fundamental rights narrative it included since Chavez-Vilchez. That case did not concern residency rights as such, or family life, but concerned a Dutch provision in the Act on Nationality which provided that the Dutch nationality was automatically revoked in case a Dutch person with a second nationality resides for more than ten years outside the Netherlands and the EU. 42 This automatic withdrawal could be prevented if the person at stake would request a passport in the meanwhile, reside for one year in the European Union or requested a national court to declare for law her or his nationality. According to the Court of Justice that Member States may have a legitimate aim to revoke the nationality, but an individual proportionality test should be possible. The Court of Justice ruled that within that proportionality test the fundamental rights should be taken into account: “As part of that examination of proportionality, it is (…) for the national courts to ensure that the loss of nationality is consistent with the fundamental rights guaranteed by the Charter (…) specifically the right to respect for family life as stated in Article 7 of the Charter, that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in Article 24(2) of the Charter.” 43 Although Tjebbes is not about residency and family life as such, it is striking that the Court of Justice continues its fundamental rights narrative in Tjebbes . In Chavez-Vilchez the Court of Justice refers to the Charter in the assessment of Article 20 TFEU . It rules that national authorities have to take the fundamental rights into account in their assessment of whether there is a violation of Article 20 TFEU . In Tjebbes , the Court of Justice places the fundamental rights within the proportionality test. That seems to be more logical, in line with the case law on the four freedoms, where fundamental rights may serve as a legitimate aim and need to be assessed in justifying a restriction to free movement. 44 The different role of fundamental rights in the Court’s assessment of both cases is not explained yet. Perhaps because in Chavez-Vilchez an individual needs protection from being removed from the territory, whereas in Tjebbes , the individuals want to restore a right that was lost? Do fundamental rights play a more dominant role in the primary assessment (whether there is a violation of Article 20 TFEU ) for an individual who faces a risk to lose his or her right to reside in the EU than when an EU citizen loses that same right, while having a permanent residency outside the European Union? That could be the underlying reasoning. Even though both situations fall under Article 20 TFEU , in Chavez -situations the residency right is lost, whereas in Tjebbes -situations it becomes more difficult to re-establish residency in the EU. As a consequence, fundamental rights play an important role in both a Charter-conform interpretation of Article 20 TFEU and in the examination of the proportionality test. 45

3 From Ruiz Zambrano to Tjebbes : Traces Back? What Did It Bring?

In almost ten years of Ruiz Zambrano , the case law on EU citizenship brought at least two significant points, that should be mentioned. First and foremost, Rottmann and more explicitly Ruiz Zambrano established Article 20 TFEU as a self-standing right for EU citizens. 46 Even though this provision can only be invoked in very specific circumstances, it remains an important deviation from the case law at that time. Whereas there was a huge pile of cases on Article 21 TFEU , the right to free movement, an EU citizen may now also invoke her/his EU citizenship, irrespective of the exercise of free movement rights, Rottmann and Ruiz Zambrano revealed the protection provided by art. 20 TFEU .

The second achievement of Ruiz Zambrano is the fact that due to this new line of case law, the fundamental rights narrative was introduced in Article 20 TFEU in subsequent case law. In Rottmann the Court of Justice does not mention human rights as a basis to challenge the withdrawal of nationality, but in Tjebbes , following Chavez-Vilchez , the Court of Justice includes the Charter explicitly in the proportionality test. It can be argued that the Court of Justice should have included fundamental rights in the proportionality test also in Rottmann . 47 At the same time, Rottmann paved the way to subsequent case law that show that the fundamental rights and the Charter provisions on family life and the rights of the child are there to stay in the case law on EU citizenship. In the case of R.H. the Court of Justice also states clearly: “In that regard, it must be pointed out that the assessment of an exception to a derived right of residence flowing from Article 20 TFEU must take account of the right to respect for private and family life, as laid down in Article 7 of the Charter of Fundamental Rights of the European Union.” 48 In Rendón Marin, C.S. and in K.A. the Court also explicitly included the fundamental rights (Article 7 and 24 of the Charter) in its’ judgements on Article 20 TFEU . 49

From a step back in Dereci the Court of Justice takes two steps ahead in Chavez-Vilchez with regard to the protection of fundamental rights of EU citizens. We had to step from Dereci to Chavez in order to establish with certainty that family life was included in Article 20 TFEU . In Carpenter 50 the right to family life was considered in the examination of whether there was a restriction of free movement of services. In B. and O. 51 the question was on family life and non-economically active free movement. So, although it started in the internal market, we see that EU citizenship created also a line of case law outside the scope of economic free movement, as a more constitutional concept. Hence, from the internal market roots of European citizenship, that leaned much on the existing case law of the four freedoms, two elements are no longer conditional to invoke rights as an EU citizen: the cross-border element and economic link with the internal market. 52 Fundamental rights, at the same time, are increasingly important.

• 3.1 Limitations to the Scope of Article 20 TFEU

At the same time, one should not overestimate the scope of Article 20 TFEU . Only in very specific circumstances it is possible to rely on Article 20 TFEU , i.e. if an EU citizen would be forced to leave the European Union’s territory. Moreover, even in this situation, Article 20 TFEU does not provide for an absolute derived right to reside: a Member State may restrict also Article 20 TFEU and refuse a derived right of residence if the third country national poses a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. 53 Such decision should be based on the personal conduct of the EU citizen at stake and may not be based purely on a criminal conviction. Neither may this be used as a preventive measure for Member States to refuse certain third country nationals. The Court held in Rendón Marin, C.S. and in K.A. that third country nationals may be refused a residency right, even if they have such a derived right based on Article 20 TFEU . In Rendón Marin the Court of Justice interpreted Article 20 TFEU by analogy to Article 21 TFEU and Article 27 of Directive 2004/38, which is, in principle, not applicable to Article 20 TFEU . 54 As the Court of Justice held on several occasions and as the Directive defines itself, the Directive, including Article 27, applies only to EU citizens and their family members who used their free movement rights (see Article 3 of Directive 2004/38). 55 It is interesting to see how the Court of Justice seeks analogy with Directive 2004/38, which might also be relevant for other provisions of Directive 2004/38, such as Article 35, which prohibits “abuse of rights or fraud, such as marriages of convenience”.

The Court puts also limitations on the analogy between Article 20 TFEU and Directive 2004/38. In the Spanish case of RH 56 the Court ruled that having sufficient means should not be a precondition to Article 20 TFEU . The case concerned a Moroccan national, R.H., who was married with a Spanish national, both adults, who had never exercised the freedom of movement within the European Union. The couple lived with the father of the Spanish national. The Spanish authorities refused a residency right to R.H. , since his Spanish partner did not have sufficient means. The question rose whether the obligation of Article 7 of Directive 200/38, to have sufficient resources in order to be allowed to reside for more than three months in another Member State can be imposed in similar vein to an Article 20 TFEU -situation. The Court of Justice held this obligation inapplicable in this situation, since it would render against the essence of Article 20 TFEU to refuse a derived right to reside in a Member State, because a dependent EU citizen consequently would have to leave the territory of the European Union as a whole. 57 Hence, the stricter condition for a residency right that follows from Article 7 of the Directive cannot be imposed analogically to Article 20 TFEU .

However, at the same time the Court of Justice in R.H. confirmed, as it ruled in K.A. previously that Article 20 TFEU applies basically only to a relationship between minors and adults, and is not, in principle, applicable to two adults. The Court held that “unlike minors, particularly if they are infants, an adult is, in principle, able to lead a life independent of the members of his or her family”. Therefore Article 20 TFEU only applies in such situation in “exceptional cases, where, having regard to all the relevant circumstances, there could be no form of separation of the individual concerned from the member of his or her family on whom he or she is dependent”. 58 Hence, Article 20 TFEU provides extra protection for those who would otherwise not be able to rely on EU law, including the rights from the Charter of Fundamental Rights. Nevertheless, there are limitations, in analogy with Article 21 TFEU and Directive 2004/38. The limitations to Article 20 TFEU do not include all conditions that are laid down by Directive 2004/38, as applicants do not need to show they have sufficient means, as R.H. shows. 59 All in all, we see that Article 20 TFEU extended the scope of protection, but there is also a fragmented new area created, in which it is unclear how Article 20 and Article 21 TFEU merge.

4 Connecting the Dots Back to the National Level: What Did Ruiz Zambrano Bring for Dutch Case Law?

Cases on EU citizenship and residency are day-to-day practice for national courts. Although most literature focusses on the Court of Justice, it is important and relevant to assess national case law, resulting from Ruiz Zambrano . Almost every case on EU citizenship is a preliminary reference, meaning that it is usually an EU citizen who brought up an EU citizenship argument in national proceedings and a national court that doubted on the interpretation and referred therefore to Luxemburg. Some cases and issues that arose in the Dutch national judicial context are highlighted in this contribution. 60

Almost immediately after the ruling of the Court of Justice in Ruiz Zambrano the first case in which a third country national invoked Article 20 TFEU was decided by a Dutch District Court. 61 In many cases before Dutch courts there was an issue of broken families, with one Dutch and one third country national parent. Frequently, the Dutch parent was not or not closely involved in taking care of the Dutch child, whereas the third country national was living alone with the minor Dutch national. In the many subsequent cases, the Dutch policy with regard to Article 20 TFEU was challenged. The policy of the Dutch Immigration Service, accepted by the Supreme Court and the Council of State, held that in a situation in which a Dutch parent was able to take care of the minor EU citizen, the third country national parent was not entitled to reside based on Article 20 TFEU . Even in extreme cases in which the EU minors had to reside in a foster home, for a limited period of time, the third country parent was not granted a derived residency right. According to the policy guidelines the two situations in which it would be assumed that the Dutch parent was unable to take care of the child was ‘in detention or shows that custody of the child cannot be awarded to him/her.’ This line of case law eventually led to a preliminary reference to the Court of Justice, which was the case of Chavez-Vilchez . 62 After Chavez-Vilchez it was clear that an examination of the relation between the third country national and the minor EU citizen was required rather than assessing whether the Dutch parent was de facto able to care for the minor EU citizen.

• 4.1 The Relationship of Dependency

The Dutch District courts apply Chavez-Vilchez in many cases, in which different circumstances are tested before the courts. A crucial issue is the assessment of dependency, i.e. whether the care is marginal or whether there is a real relationship of dependency. Another point raised in Dutch courts is the question of whether a relationship of dependency can be present when the EU citizen is an adult, but might still be dependent on her/his third country national parent. The District Court in The Hague 63 ruled that Chavez-Vilchez only applies for minor children-parent relations, so Article 20 TFEU is not applicable for other relations, even if there is a dependency to a certain extent. 64 In another case the District court held that there is not sufficiently proved that a relation of dependency exist for an adult EU citizen, who still reside with his third country national parent and who held to be dependent because of a diagnosis of autism. In that specific case the District Court held that the EU citizen concerned did not submit sufficient proof of his dependency since the reports submitted where out-dated. 65 In the light of K.A. and H.R. this seems in line with EU law, but it is important to keep in mind that the Court of Justice left the possibility open, in extreme circumstances, that two adults could have a relation of dependency. One might think of an elderly EU citizen and a third country national who is the primary carer in a specific situation.

Another interesting question in Dutch case law relates to chain-dependency. In two other cases it was claimed that the sibling of a Dutch (and therefore EU) citizen should also have a derived right to reside in the EU, just like their third country national mother. In one case it concerned a mother with the Thai nationality, who resided in the Netherlands, because she had a Dutch minor child residing in the Netherlands. Her other children, all with the Thai nationality, requested also for such a visa, because they would be dependent on their Thai mother. They argued that if they would not be allowed to reside in the Netherlands, their mother would be forced to return to Thailand, with their Dutch sister. The second case concerned a family with a Serbian mother and a child, with the Serbian nationality, with a Dutch father and two Dutch children – the two children got the Dutch nationality because they were born after their father naturalized. The mother with the Serbian nationality had a derived right to reside in the Netherlands based on Chavez-Vilchez /Article 20 TFEU , the Serbian minor child did not have the right to reside on the basis of Directive 2004/38, because she (or her parents) did not exercise their free movement rights. Therefore, she claimed a right to reside in the Netherlands based on the fact that if she had no residency right her mother would be forced to leave the European Union, to Serbia, and the Dutch children would consequently follow their mother. In both cases the District court held that Chavez-Vilchez should not be extended to siblings, in this context. 66 The relation of dependency has to be a direct relation, and not as in these cases a chain-dependency. According to the District Court Chavez-Vilchez is not applicable to this situation, because chain-dependency was not at stake in that case. Moreover, according to the District Court, the applicant is not a minor EU citizen. As a minor third country national she is unable to invoke Article 20 TFEU , since only EU minor nationals may do so. That reasoning is quite blunt in the sense that there could still be a derived right to reside, as long as the relationship of dependency is proved. The Court of Justice did not rule on such chain-dependency situation, but that does not mean that it cannot fall under Article 20 TFEU .

In the context of the relation of dependency it is not necessary that the third country national parent proofs he is the biological parent of the minor EU citizen. In a specific Dutch case concerning this situation, the Nigerian father acknowledged the Dutch child one month before the application for a derived right to reside. His main residency was not at the same place as the mother and the child and he was not the biological father. According to the immigration service those facts were decisive to refuse a residency rights. However, statements of the school showed that the father was involved in almost any contact with the school (birthday parties, conversations with the teachers and so on). Therefore, the court ruled that the immigration service had to decide again, taking all elements into account. 67 Another case concerned a Moroccan mother, who lived with her four children in Morocco, while her Dutch husband resided in the Netherlands. When she was in the Netherlands (on a visa) with her children she requested residency based on Chavez-Vilchez . For two of her children the District Court did not accept a relationship of dependency, since one child was an adult and the other was her grandchild. For her other two children the District Court held that she was indeed their primary carer in Morocco, in also in the Netherlands, while living there with the two Dutch children. Moreover, there were personal testimonies that both parents brought their child to school, and both were thus involved in taking care of the child. Consequently, the District Court held that a more comprehensive examination was required to assess the relation of dependency and that the claim on the basis of Article 20 TFEU could not be refused because of the potential role of the Dutch father in the family. 68 In another case, the District Court confirmed that a derived right to reside could be rejected by the Dutch Immigration Service. That case concerned a mother with the Surinam nationality, who lived with her 11-year old son with the Dutch father in the Netherlands. The District court held in that case the preference of the son that his mother resides in the Netherlands is not sufficient to argue that he will be forced to leave the territory of the European Union as a whole. According to the District Court both parents take care of the son, but there is no relation of dependency, since the father is able and willing to take care of their Dutch son. 69 The District Court seems to refer to Dereci by ruling that the fact that it is desirable for the minor EU citizens to live with his mother is not sufficient to grant a right to reside to the mother. According to the District Court the third country national did not prove sufficiently that the relationship between her and her son is a dependency relation. One may doubt whether the District Court was not too strict in his judgment, in the light of Chavez-Vilchez . The fact that the father is able and willing to take care is not enough, at least, to come to the conclusion that the mother should not be granted a derived right to reside.

• 4.2 Detention and the Relationship of Dependency and Public Policy

To assess the relationship of dependency certain circumstances might be important factors to take into account. When the parent at stake is in detention, it is more difficult to prove that there is indeed a relationship of dependency. This issue led to a number of cases concerning a third country national parent in detention and the question whether Chavez-Vilchez can be invoked, against, mostly, an entry ban of the third country national. The national courts assess whether the third country national parent performs substantive care, and not marginal care tasks. In one case an appeal on Article 20 TFEU was rejected because the third country national father was only very little time present in the lives of his young children, because he was in detention and in a drugs clinic for long periods and several times. 70 Even more clear, the District Court held that in the situation wherein the third country national father is in detention, and is convicted for 19 years imprisonment, and his children reside with other persons who take care of them (respectively their grandparents, his ex-spouse and his twin of 14 years old live in an institution), no relation of dependency is present. 71 Another case concerned a third country national father who was sentenced for 12 years imprisonment in Germany, while his Dutch son was at that time 1 year old. According to the District Court the fact that his son was very young at the moment the father was in detention is ground to believe that there is no relation of dependency between the father and the Dutch child, in the sense of Article 20 TFEU . The fact that the third country national father was sentenced for 12 years in prison in Germany for being active in an international drugs organisation was taken into account in the ruling. Moreover, the District Court assessed whether the fact that both the Dutch mother as well as the minor EU citizen are traumatized would lead to the conclusion that they would both be forced to leave the European Union, when the father would go back to Morocco. In that context the District Court also considered Article 8 ECHR , but believed the mother and son could also live in Morocco. 72

Another case, not concerned with detention but with public policy, is a case of a third country national, who is refused a refugee status, because he was considered to have committed crimes against humanity (the so-called 1F status). Article 1F of the Geneva Convention excludes persons from a refugee status if there are serious reasons to consider that they have committed serious crimes, such as a crime against peace, a war crime, or a crime against humanity. He was, however, allowed to stay in the Netherlands because of Article 3 ECHR and the principle of non-refoulement. The District Court held in that case that he cannot rely on Chavez-Vilchez , since he still is allowed to reside in the Netherlands. Other than in the case Rendón Marin , the third country national father did not have the sole care and exclusive custody over his child. 73 Moreover, even if he in the future has to leave the Netherlands, it is not obvious that his minor daughter would be forced to leave the European Union, since she could also reside with her mother. 74 The other children (three Dutch sons) are adults living on themselves, and do therefore not fall, at least so it seems, implicitly from the judgment, in the scope of Chavez-Vilchez as their situation is not considered. If the father could rely on Article 20 TFEU again, the limitation of public policy and security could limit his possibility to have a derived right to reside. It would be not very logical if Article 20 TFEU would grant a right to reside, which is denied by Article 1F of the Geneva Convention, since that would undermine the system of the Geneva Convention. The mere fact, however, that someone is qualified under 1F status, would not automatically mean that the right to reside as an EU citizen or family member can be restricted. 75

• 4.3 Residency Right in Another Member State

There are also a couple of cases on third country nationals with a Dutch child, who have a right to reside in another Member State, but seek to obtain residence in the Netherlands. A remarkable case is the case in which the third country mother had a residency permit/entitlement to reside in Germany, while her Dutch husband (naturalized after residing as an Iraqi refugee in the Netherlands) and her Dutch children were living in the Netherlands. It is unclear why the mother based on the Dublin Regulation was granted a residency right in Germany and not in the Netherlands, but she only had the right to reside in Germany. 76 In another case, a third country national had a residency right in Spain, while her children were residing in the Netherlands. In both situations the District courts held that the Dutch child was not forced to leave the EU territory as a whole, since the children at stake could reside with their third country national parent in another Member State of the EU, and therefore a derived right to reside in the Netherlands was not granted to the third country national parent. 77 These cases are remarkable, because it creates a legal limbo in which the minor EU citizen is indeed not forced to leave the European Union as a whole, but at the same time residing in another Member State under Article 21 TFEU would require to have sufficient means. What if those means are not present? Would than Article 20 TFEU be relevant again?

• 4.4 Withdrawal of the Dutch Nationality

An important case in the Netherlands is the case of Tjebbes , a reference of the Dutch Council of State, concerning the automatic withdrawal of nationality after not being resident in the Netherlands, or another Member State of the EU, for a period of ten years. It remained possible to stop the continuation of that period, by, amongst other possibilities, requesting a Dutch passport. The final decision of the Dutch Council of State in Tjebbes took a while, but it was not surprising that the Council of State ruled that automatic withdrawal should be accompanied with a personal proportionality test. 78 According to the Council of State Article 20 TFEU is directly applicable by (former) EU nationals who lost their Dutch nationality and it is also the legal basis for the authorities to perform a proportionality test. It has been debated whether Tjebbes and the proportionality test would also apply to the loss of the Dutch nationality, for the reason that the citizen at stake acquired voluntarily a foreign nationality. On 20 May 2020 the Council of State ruled that it indeed considered that also in such a situation a personal proportionality test should be possible. 79 The argument of the Dutch government that by voluntarily acquiring a foreign nationality, an active decision is made by the citizen, which would, according to the government, fall outside the scope of Article 20 TFEU , was rejected by the Council of State. The wording of the Court of Justice in Rottmann and in Tjebbes are more generally formulated. The argument that both Rottmann and Tjebbes would only apply in a very specific situation is therefore not sound. Tjebbes , building upon Rottmann and Ruiz Zambrano , created a legal path for Dutch nationals to challenge the Dutch Act on Nationality, which was until then not an option. Tjebbes is also applied in cases concerning terrorism and the withdrawal of nationality. 80 Because of the nature and consequences of such withdrawal the situations fall under Article 20 TFEU and, therefore, also the Charter is applicable. In that specific judgement, the Council of State held that the withdrawal of the Dutch nationality was unlawful because it violated Article 47 of the Charter. 81 As a consequence of Tjebbes , the Council of State examined the compatibility of the decision to revoke the Dutch nationality with the Charter. 82

• 5 Conclusion: Is Ruiz Zambrano a Revolution or Much to Do about Nothing?

Almost ten years after Ruiz Zambrano it is fair to define this judgment as a revolution. It opened the door to a whole new line of case law, which broadened the scope of EU law. Consequently, the scope of application of the Charter of Fundamental Rights was extended to apply to more situations too. Even though, the scope of application of Article 20 TFEU is limited to very specific circumstances, Article 20 TFEU also includes now the right to family life and the rights of the child. At least, national authorities have to take these fundamental rights into account when assessing Article 20 TFEU . As a consequence, parents who did not have a right to reside under the Article 21 TFEU could actually have a derived right on ground of Article 20 TFEU and EU law. The debate is far from over, as case law at the national level shows that there are many cases, all with their own specific circumstances and lots of new questions that remain yet unanswered. To quote Sharpston: “when citizens move, they do so as human beings, not as robots. They fall in love, marry and have families.” 83 Even if they never moved, families live like human beings, and that means that this line of case law will be dynamic, as the relations of citizens are. National case law shows that the questions on the relationship of dependency and the right of the child and family life are in each case different and the outcome of each case depends on factual and emotional arguments. To assess whether there is a relation of dependency between the third country national parent and the EU (minor) citizen is therefore not an easy task for authorities and national judges.

All in all, Ruiz Zambrano , or perhaps actually Rottmann , paved the way for EU citizens to rely on their rights as EU citizens, also outside the scope of free movement. It meant that a new path of case law was made possible, which is very lively in the Member States, at the national courts and the National Immigration Services. It released the link between the internal market and EU citizenship, since both the economic link and the cross-border element were untied. It gave also a boost to fundamental rights, especially the right to family life and the rights of the child, which can also be relied on in an Article 20 TFEU situation. Of course, the impact could have been broader or more significant, since the scope of Article 20 TFEU is still limited to those situations in which an EU citizen is so dependent of the third country national that she/he will be forced to leave the European Union as a whole. As Dutch case law shows, this is a precarious line of reasoning and is difficult to assess. Each case is very particular with very specific circumstances, and that is why it is important not only to connect the dots backwards in EU case law, but also follow closely what national courts decide on Article 20 TFEU . This contribution argued that Ruiz Zambrano is a revolution, but it is still a nuanced one, it left and still leaves questions unanswered, and therefore the national case law is important to follow. It is a revolution, because it widened the scope of EU law and therewith the scope of protection of fundamental rights on account of EU law. It fuelled national case law on residency rights, in which the real fine-tuning takes place. At the same time, one should keep in mind that Article 20 TFEU is still limited to relationships of dependency and that even in such situation restriction on ground of public order (and security and public health) can be imposed.

• About the Author

Dr. Hanneke van Eijken is affiliated to the research programmes the Utrecht Centre for Regulation and Enforcement in Europe & the Utrecht Centre for European Research into Family law and is a member of the research group Empirical Legal Research into Institutions for Conflict Resolution. The author is grateful for the research assistance of Thijs de Sterke and for the useful comments during the panel at the Ghent University conference on ‘Family Reunification: An EU Law Perspective’, which took place on 11 October 2019.

https://news.stanford.edu/2005/06/14/jobs-061505/ , visited 8 June 2020.

Ruiz Zambrano is an example, in which the Court of in 7 paragraphs established a new line of case law, referring to Rottmann , but without a comprehensive and in-depth legal reasoning.

C-34/09 Ruiz Zambrano , EU:C:2011:124.

H.U. Jesserun d’Oliveira (1995), ‘Union Citizenship: Pie in the Sky?’, in: A. Rosas and E. Antola (Eds), A Citizens’ Europe: In Search of a New Order (London: SAGE Publications).

H. van Eijken (2015), EU citizenship and the constitutionalisation of the European Union (Groningen: Europa Law Publishing).

C-133/15 Chavez-Vilchez , EU:C:2017:354.

C-221/17 Tjebbes , EU:C:2019:189; H. van Eijken (2019), ‘Tjebbes in Wonderland: On European Citizenship, Nationality and Fundamental Rights’, European Constitutional Law Review 15(4), 714–730; P. van Elsuwege and H. Kroeze (2019), ‘Het arrest Tjebbes: de evenredigheidstoets als complexe brug tussen nationaliteitswetgeving en Unieburgerschap’, Nederlands Tijdschrift voor Europees recht 5–6, 166–173; K. Swider (2020), ‘Legitimizing precarity of EU citizenship: Tjebbes’, Common Market Law Review 57(4), 1163–1182.

On Ruiz Zambrano many case notes were published, amongst others: P. van Elsuwege (2011), ‘Shifting the Boundaries? European Union Citizenship and the Scope of Application of EU Law – Case No. C-34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi’, Legal Issues of Economic Integration 38(3), 263–276; K. Hailbronner and D. Thym (2011), ‘Case C-34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm), Judgment of the Court of Justice (Grand Chamber) of 8 March 2011’, Common Market Law Review 48(4), 1253–1270; H. van Eijken and S.A. de Vries (2011) ‘A New Route into the Promised Land? Being a European Citizen after Ruiz Zambrano’, European Law Review 36(5), 704–721; R. Morris (2011), ‘European Citizenship and the right to move freely: internal situations, reverse discrimination and fundamental rights’, Maastricht Journal of European and Comparative Law , 179–189.

C-34/09 Ruiz Zambrano , para. 42.

Also all intervening Member States and the European Commission argued that the situation was purely internal, see C-135/08, Rottmann , EU:C:2010:104, para. 37.

Opinion A-G Maduro in C-135/08, Rottmann , EU:C:2009:588.

Opinion A-G Maduro in Rottmann , paras. 10–13.

Opinion A-G Maduro in Rottmann , para 33.

C-135/08, Rottmann , para 42.

G.R. de Groot and A. Seling (2011), ‘Decision of 2 March 2010, Case C-135/08, Janko Rottman v. Freistaat Bayern – Case Note II – The Consequences of the Rottman Judgment on Member State Autonomy – The European Court of Justice’s Avant-Gardism in Nationality Matters’, European Constitutional Law Review 7(1), 150–160; H.U. Jessurun d’Oliveira (2011), ‘Decision of 2 March 2010, Case C-135/08, Janko Rottman v. Freistaat Bayern – Case Note I – Decoupling Nationality and Union Citizenship?’, European Constitutional Law Review 7(1), 138–149; A. Seling (2010), ‘Case C-135/08 Janko Rottmann v. Freistaat Bayern, Judgment of the Court of Justice (Grand Chamber) of 2nd March 2010, nyr – Towards a direct “droit de regard”?’, Maastricht Journal of European and Comparative Law 17(4), 470–478.

K. Lenaerts (2015), ‘EU citizenship and the European Court of Justice’s “stone-by-stone” approach’, International Comparative Jurisprudence 1(1), 1–10; J. Langer, ‘EU citizenship: from the cross-border link to the genuine enjoyment-test – understanding the stone-by-stone approach of the Court of Justice’, in: J. van der Harst, G. Hoogers and G. Voerman (eds), European Citizenship in Perspective (Edward Elgar Publishing, 2018), 82–102.

C-85/96, Martinez Sala , EU:C:1998:217.

S. O’Leary (1999), ‘Putting Flesh on the Bones of European Union Citizenship’, European Law Review 24, 68–79; see also F.G. Jacobs (2007), ‘Citizenship of the European Union – A Legal Analysis’, European Law Journal 13(5), 591–610.

C-34/09 Ruiz Zambrano , para 42.

C-403/03 Schempp , EU:C:2005:446. Also in Garcia Avello there was no actual free movement, but there was a cross-border situation, in the sense that the EU citizens concerned were residing in another Member State than their nationality, C-148/02, Garcia Avello , EU:C:2003:539.

See also Garcia-Avello , in which the connection with free movement was also very limited, since only the parents had moved from one Member State to another Member State, whereas the children did never exercise their right to free movement. However as the children were Spanish nationals legally residing in Belgium, they fitted in the ‘Martinez Sala’-test.

C-650/13 Delvigne , EU:C:2015:648.

H. van Eijken and J.W. van Rossem (2016), ‘Prisoner disenfranchisement and the right to vote in elections to the European Parliament: Universal suffrage key to unlocking political citizenship?’, European Constitutional Law Review 12, 114–132; S. Coutts (2017), ‘Delvigne: A Multi-Levelled Political Citizenship’, European Law Review 6, 867–881.

F. Wollenschläger (2011), ‘A new fundamental freedom beyond market integration: Union citizenship and its dynamics for shifting the economic paradigm of European integration’, European Law Journal 17(1), 1–34.

The relationship between Article 20 TFEU and the Charter is complicated and it is well-described in N. Nic Shuibhne, ‘Union citizens and fundamental rights’, in: D. Thym, Questioning EU citizenship (Hart Publishing 2020), 209–243.

Van Eijken and De Vries 2011.

N. Nic Shuibhne (2011), ‘Seven Questions for Seven Paragraphs’, European Law Review 36, 161–162.

C-434/09 Shirley McCarthy , EU:C:2011:277, paras 49–50; P. van Elsuwege (2011), ‘Court of Justice of the European Union European Union Citizenship and the Purely Internal Rule Revisited Decision of 5 May 2011, Case C-434/09 Shirley McCarthy v. Secretary of State for the Home Department’, European Constitutional Law Review 7(2), 308–324.

C-256/11 Dereci , EU:C:2011:734.

C-256/11 Dereci , para 66.

Van Elsuwege 2011.

C-256/11 Dereci , para 68.

C-256/11 Dereci , para 72.

C-133/15, Chavez-Vilchez , EU:C:2017:354.

H. van Eijken and P.S. Phoa (2018), ‘The scope of Article 20 TFEU clarified in Chavez-Vilchez: are the fundamental rights of minor EU citizens coming of age?’, European Law Review 43(6), 949–970; H. Kroeze (2017), ‘Belang van het kind staat centraal in de toepassing van Ruiz Zambrano’, SEW Tijdschrift voor Europees en economisch recht 11, 483–485; F. Staiano (2018), ‘Derivative residence rights for parents of Union citizen children under Article 20 TFEU: Chavez-Vilchez’, Common Market Law Review 55(1), 225–241.

C‑356/11 and C‑357/11, O. and S. , EU:C:2012:776, para 55.

C-133/15 Chavez-Vilchez , para 70.

C‑356/11 and C‑357/11, O. and S .

Van Eijken and Phoa 2018, 949.

H. van Eijken (2019) ‘Tjebbes in Wonderland: On European Citizenship, Nationality and Fundamental Rights’, European Constitutional Law Review 15(4), 714.

See Article 15 Dutch Act on Nationality.

C-221/17, Tjebbes , EU:C:2019:189.

C. Barnard (2019), The Substantive Law of the EU: The Four Freedoms , Sixth edition, (Oxford: Oxford University Press), 174.

Van Eijken and Phoa 2018.

See again also the contribution of M. Van den Brink who questions the added value of Article 20 TFEU to Article 21 TFEU .

D. Kochenov (2010), ‘Case C-135/08, Janko Rottmann v. Freistaat Bayern, Judgment of the Court (Grand Chamber) of 2 March 2010, not yet reported’, Common Market Law Review 47(6), 1831–1846.

C-836/18, RH , EU:C:2020:119, para 47.

C-304/14 C.S. , EU:C:2016:674, paras 48–49; C-165/14 Rendón Marín , EU:C:2016:675, para 85; C-82/16 K.A. and Others (Family reunification in Belgium), EU:C:2018:308, para 71.

C-60/00 Carpenter , EU:C:2002:434.

C-456/12 B & O , EU:C:2014:135.

P. De Sousa (2011), ‘Catch Me If You Can – The Market Freedoms’ Ever-Expanding Outer Limits’, Eur. J. Legal Stud. 4, 149.

C-165/14 Rendón Marín ; C-82/16 K.A. and Others , para 92; C-304/14, C.S. , para 36; P.J. Neuvonen (2017), ‘EU citizenship and its “very specific” essence: Rendón Marín and CS’, Common Market Law Review 54(4), 1201–1220.

C-165/14 Rendón Marín , para 82. In para. 82 the Court refers to para 58 in the same judgment. In paragraph 58 the Court assesses the situation under Article 21 TFEU and the derogations of Directive 2004/38.

See e.g. C-127/08 Metock and others , EU:C:2008:449; C-94/18 Chenchooliah , EU:C:2019:693.

C-836/18, RH .

C-836/18 RH , para 50.

C-82/16 K.A. , para 65; C-836/18 RH , para 56.

C.A. Groenendijk (2020), ‘HvJEU 27 februari 2020, C-836/18 (RH) EU:C:2020:119’, JV 2020/61, 441.

The author made a selection of cases from the public website rechtspraak.nl.

District Court The Hague, 28 March 2011, NL:RBSGR:2011:BQ0062.

On the line of case law in the Netherlands after Ruiz Zambrano : see FIDE report 2013.

In the Netherlands migration cases are dealt with formally by the District Court The Hague, although the District court that handled the case may be seated elsewhere in the Netherlands. Therefore, formally all the cases are from the same District court, but in practice the cases are from one of the 11 District courts in the Netherlands.

District Court The Hague, 16 April 2019, NL:RBDHA:2019:3850, para 8.

District Court The Hague, 12 July 2019, NL:RBDHA:2019:7037.

District Court The Hague, 25 February 2020, NL:RBDHA:2020:2352; see also District Court The Hague, 31 October 2018, NL:RBDHA:2018:13277.

District Court The Hague, 19 September 2019, NL:RBDHA:2019:11870.

District Court The Hague, 9 September 2019, NL:RBDHA:2019:10085.

District Court The Hague, 9 April 2020, NL:RBDHA:2020:3362.

District Court The Hague, 20 April 2020, NL:RBDHA:2020:3686.

District Court The Hague, 28 June 2019, NL:RBDHA:2019:6651.

District Court The Hague, 11 June 2019, NL:RBDHA:2019:6187.

On this point: “exclusive custody thus equals dependency”: H. Kroeze (2019), ‘The Substance of Rights: New Pieces of the Ruiz Zambrano Puzzle’, 44 European Law Review , 238, 244.

District Court The Hague, 21 May 2019, NL:RBDHA:2019:5278, para 14.

See also C-331/16 and C-366/16 K. and H.F. , EU:C:2018:296.

District Court The Hague, 6 February 2020, NL:RBDHA:2020:1203.

District Court The Hague, 5 September 2019, NL:RBDHA:2019:10224.

Council of State, 12 February 2020, ECLIL:RVS:2020:423, para 11.1.

Council of State, 20 May 2020, NL:RVS:2020:1270.

Council of State, 17 April 2019, Case 201806107/1/V6, NL:RVS:2019:990, para 8.1.

Van Eijken (2019).

Opinion A-G Sharpston in C‑34/09, Ruiz Zambrano , EU:C:2010:560.

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The (mis)construction of the European individual : two essays on Union citizenship law

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EU Citizenship Law

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EU Citizenship Law articulates, explains, and analyses the legal framework and legal developments that have shaped the status of Union citizenship and the rights that it confers on Member State nationals. It examines how the rights and responsibilities produced by Union citizenship relate to other rights conferred by EU law, and other objectives pursued by the European Union, to expose the distinctive meaning and scope—the added legal value—of Union citizenship. It is a novel and complex legal status, conferred by and aiming to foster attachment to the European Union as a supranational polity, but only through holding the nationality of one of its constituent Member States. It is concerned mainly, though not exclusively, with the transnational dimensions of the citizen’s life, yet enforced (or hindered) primarily through the actions and decisions of national authorities, within parameters set and supervised by the Union’s institutions. Since its formal conception in the Maastricht Treaty, Union citizenship has catalysed an extraordinary, and ongoing, legal experiment, the processes and implications of which are traced throughout this book. But the legal story examined here sits in deeper and wider economic, political, social, and emotional contexts. Because Union citizenship is also an idea: a vector of European integration, collective personhood, and multi-layered identities that reflects the paradoxically inclusive and exclusive qualities of citizenship as a status more generally. It challenges us to consider the worth and deepen the protection of the person, and to shape a European Union where principles and values really matter.

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Annotated sample answers - essay question

In a Union of economic origins, the extension of free movement rights to all citizens of the European Union, whether economically active or not, was a significant step forward. However, whilst the Court of Justice seized upon the new citizenship status as a vehicle for extending such rights, Directive 2004/38 has now re-imposed boundaries by rebasing rights upon economic status.

Critically assess the accuracy of this statement.

The European Economic Community was created by the European Community Treaty, signed by the six original Members States in 1957. The EEC Treaty set up the common market, now known as the internal market, in which goods, persons, services and capital move freely between the Member States. The Treaty on European Union 1992 created the European Union and renamed the EEC the 'EC' and the EEC Treaty the 'EC Treaty'. There have been later Treaties that have amended the two founding Treaties and the six original Member States increased to 28, with further enlargement planned. Notably, the UK left the EU in January 2020 leaving the current number of Member States at 27. This means that the area within which Union citizens can move freely has been considerably extended since the Union's beginnings. The EU has both economic and political origins. The founding states were driven by high political ideals, including a strong desire for peace in Europe following the devastation of two major wars during the first half of the twentieth century.

All nationals of the Member States are citizens of the European Union and, as such, have the right to move freely around the European Union. Workers and the self-employed and their families have more extensive rights than Union citizens who are not economically active. Whilst the Treaties give no definition of 'worker', the Court of Justice has given an indication of the scope of this term. It includes, for instance, a person who has lost their job but is capable of finding another and part-time workers. These persons can not only move around freely but also have the right to non-discrimination on grounds of nationality. They must be treated equally to host state nationals with regard to employment.

The Court of Justice seized upon Union citizenship status as a vehicle for extending rights of free movement and non-discrimination. A Spanish widow living in Germany was held to have the right to a welfare benefit to which German nationals were entitled. A German national was held to have the right to remain in the UK. Union citizenship was created by the Treaty of Maastricht, but the scope of citizenship rights is still uncertain. It is clear, however, that there is a general right of non-discrimination under Article 18 TFEU and that the economically active have the right to move. The economically active and their families have more extensive rights than the economically inactive.

However, Directive 2004/38 does not accord with the Court of Justice’s judgments. The Directive clearly indicates that the creation of Union citizenship should have no impact on free movement rights. The Directive gives no rights of free movement to Union citizens other than those who are economically active and their families, although it reaffirms the very limited rights of two other groups, namely students and the financially independent.

Importantly, the right to equality, under current provisions, is limited to the economically active and their families. This right is more extensive for workers than for any other group, as is demonstrated by Regulation 492/2011.

This is a weak answer. It makes an attempt to address the question but does not succeed very well.

The answer begins with a very long introduction in the first paragraph, which is only partially relevant to the question. This candidate has evidently learned certain information about the origins of the EC and EU and was determined to demonstrate this knowledge, whether relevant or not. Similarly, the candidate has learned the case law on the definition of 'worker' and has included this irrespective of the focus of the question. If this case law, or any other information, is to be included, an answer should make clear how it is relevant. Here it could be stated, for instance, that the cases demonstrate that, whilst the legislation generally limits free movement rights to the economically active, the Court of Justice has broadened the scope of the rights by interpreting 'worker' generously. In planning an answer, make sure that you address the question and include only relevant material. It is tempting to 'write all you know' but you must resist this temptation.

Cases concerning the meaning of 'worker' and the rights of Union citizens are referred to but not named. To adopt a methodology that excludes all case names is far from impressive. Precise references to the legislation are not always given, for instance there is no reference to Article 20 TFEU.

There are structural weaknesses in this answer, including repetition of points. Note how the candidate first mentions Union citizenship in the second paragraph but does not make the necessary preliminary statements about the introduction of this status by the Treaty of Maastricht until the end of the third paragraph. The statement in the second paragraph that workers, the self-employed and their families have more extensive rights than Union citizens who are not economically active is later repeated, almost word for word, at the end of the third paragraph.

It is not correct to state that Directive 2004/38' clearly indicates that the creation of Union citizenship should have no impact on free movement rights'.

There is an inconsistency in the final sentence of the fourth paragraph. The Directive cannot both give rights of free movement only to Union citizens who are economically active and their families, and also reaffirm the very limited rights of students and the financially independent.

Regulation 492/2011 needed to be covered, but this answer merely mentions the Regulation, giving no explanation of its relevance. 

There is no conclusion.

Good points

The answer does manage to highlight some of the relevant areas and includes some relevant discussion, for instance on the cases concerning Union citizenship, the groups of persons entitled to free movement rights, and the associated right of non-discrimination.

Despite the incorrect statements, this candidate demonstrates basic understanding of the topic area and knowledge of some of the relevant case law.

Originally, free movement rights were granted to economically active persons and their families. Such rights were then extended to other groups including students, retired persons and persons of independent means. With the adoption of the Maastricht Treaty, the status of Union citizenship was introduced into the EC Treaty (now TFEU) and the right of free movement was granted to all Union citizens. However, this right was made subject to the limitations and conditions in the Treaty and secondary legislation.

Following the creation of Union citizenship, the Court of Justice began to use this status as a basis for granting non-discrimination rights, as in  Sala  and  Grzelczyk , and even residency rights, as in  Baumbast.  However, the scope of Union citizenship rights was not really clarified until the adoption of Directive 2004/38. This Directive, often referred to as the 'Citizenship Directive', reiterates the Court of Justice’s statement in  Grzelczyk  that Union citizenship is destined to be the fundamental status of the nationals of the Member States. However, the provisions of the Directive extend rights little further than the original legislation, limiting them largely to the economically active and their families, and the other groups – students and persons of independent means – who enjoyed such rights under the previous secondary legislation.

It is true to say that there is some further extension of rights, in that all Union citizens now have the right to leave their home state, to enter another Member State and remain there for up to three months. However, this is the limit of the rights for the economically inactive. By contrast, economically active persons have the right to remain in another Member State, along with their family members, for more than three months and acquire a right of permanent residence after having exercised this right for five years. Moreover, Union citizens have the right to move around to seek work. 

It should always be remembered that Member States may limit free movement rights on grounds of public policy, public security, or public health, though their actions must be proportionate. If a Member State seeks to rely on a public policy or public security justification for limiting rights, that justification must be based on the personal conduct of the individual.

Whilst the creation of Union citizenship and the Court of Justice's interpretation of the scope of citizenship rights seemed to indicate that rights of free movement could be extended to all Union citizens with little limitation, Directive 2004/38 demonstrates that this is not the case and that rights are to a considerable degree still based on economic status.

One of the major weaknesses of this answer is that it makes no specific reference to the relevant TFEU provisions; Articles 18 (non-discrimination), 21 (Union citizenship), 45 (workers' rights), 49 (right of establishment), 56 (right to provide services) or to the specific provisions of Directive 2004/38. Indeed, it is not always clear which pieces of legislation contain the statements of law referred to.

Much of the required detail is lacking, particularly on the rights that are afforded to the economically active and the other groups who enjoy rights under Directive 2004/38. These should have been discussed in some detail, with a comparison drawn between the broad extent of their rights and the limited rights of the economically inactive.

The penultimate paragraph is not relevant to this question, which requires discussion of the development of rights in relation to economic status, not derogation from those rights.

The basic answer framework and structure are reasonably good. Most of the relevant ground is covered (though the detail is lacking, as noted above).

The answer is clear and generally well argued, with points following on logically from each other in an orderly fashion. It is sensibly paragraphed, which helps move the argument along and assists the reader's understanding.

The answer avoids the mistake of a lengthy and cumbersome introduction, by coming straight to the point in the first paragraph, and there is a concise conclusion to round off the answer.

Suggested answer

In line with the EU's economic origins, the provisions of the founding EEC Treaty granted free movement rights to the economically active; workers, persons exercising the right of establishment, and persons providing services in another Member State. These provisions remain today and are now set out in Articles 45 TFEU (workers), 49 TFEU (the right of establishment) and 56 TFEU (service providers). Additionally, case law extended the right of free movement to nationals of the Member States who wished to seek work in another Member State ( Royer ,  Antonissen ). Associated with the right of free movement is the right to non-discrimination on grounds of nationality 'within the scope of application of this Treaty', now contained in Article 18 TFEU.  The right of free movement was extended to other groups by secondary legislation. Most notably, family members became entitled to move around with the worker (Directive 68/360) and rights were granted to students, retired persons, and persons of independent means (Directives 90/364/365/366). However, before the adoption of the Maastricht Treaty, free movement rights remained largely tied to economic status.

The introduction of Union citizenship into the EC Treaty by the Treaty of Maastricht, in Article 17 EC (now Article 20 TFEU), seemed to herald a new approach to free movement rights. The new Article 18 EC (now Article 21 TFEU) granted free movement rights to all Union citizens, though this right was made subject to 'the limitations and conditions' in the Treaty and secondary legislation. The scope of these limitations and conditions was not precisely defined, and the Court of Justice began to use Union citizenship as a basis of rights, declaring that 'Union citizenship is destined to be the fundamental status of the nationals of the Member States' ( Grzelczyk).  The Court used Union citizenship as a starting point for the right to non-discrimination ( Sala ,  Grzelczyk)  and the right to residence in another Member State ( Baumbast ).

The Citizenship Directive 2004/38, in Recital 3, affirms the principle that Union citizenship is destined to be the fundamental status of the citizens of the Member States, suggesting a move away from rights based upon economic status. Nonetheless, the substantive provisions of the Directive confirm that a strong link still remains between economic status and the rights of free movement and non-discrimination. However, in exceptional circumstances, the Court has used the status of Union citizenship as the basis for granting derivative rights of residence to parents or carers of children with Union citizenship on the basis that they would otherwise be prevented from ‘genuine enjoyment’ of such rights ( Zambrano ).

All Union citizens, and their family members irrespective of nationality, have a right under the Directive to leave their home state and to enter and reside in another Member State (Articles 4, 5). However, that right is limited to residence for up to three months, unless the Union citizen is economically active, a worker or self-employed, or is a member of one of the other groups which previously had rights under the earlier secondary legislation or case law, students, persons of independent means and jobseekers (Articles 7, 14). All these persons have the right to stay for more than three months (Article 7).

For family members, rights of free movement and residence are dependent, or 'derivative', upon the rights of the economically active Union citizen, as the primary right-holder. This means that family members who are themselves Union citizens, should the primary right holder cease economic activity, die, or return to the home state, have the right to remain only if they become economically active, unless they have already acquired the permanent residency right set out in the Directive. In such circumstances the position of family members who are not Union citizens is much more precarious, since they have the right to remain only in the event of divorce or the death or departure of the Union citizen and only if certain conditions are satisfied. Most notably, unless they have already acquired a permanent residency right, their right to remain is subject to them becoming economically active (Directive 2004/38, Articles 12, 13).

With regard to non-discrimination, economic status still forms the basis of the relevant provisions. In particular, Member States are not obliged to grant welfare benefits during the initial three-month period of residence, save to workers, the self-employed and their families (Directive 2004/38, Article 24). Workers enjoy the benefit of the range of equality rights set out in Regulation 492/2011. These concern not only equal access to employment and conditions of employment but also extend more broadly, for instance to equal tax and social advantages not necessarily linked to the employment contract (Regulation 492/2011, Article 7,  Cristini ). The equality rights embodied in Article 24 of Directive 2004/38 apply to family members but, as with rights of entry and residence, these rights are dependent on the rights of the economically active Union citizen.

In conclusion, whilst the creation of the status of Union citizenship by the Treaty of Maastricht, along with the associated rights of free movement and non-discrimination, seemed to indicate a breaking of the link between free movement rights and economic status, Directive 2004/38 affirmed and reiterated the pre-existing limitations. Despite the attempts of the Court of Justice to base rights on citizenship status (which have been successful in exceptional circumstances), Directive 2004/38 has re-imposed boundaries by rebasing rights upon economic status.

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Georgia defies EU and 'returns to past' with Russia-style law that sparked mass protests

A brawl broke out this week over the bill in the georgia parliament, with rival lawmakers shoving each other. protesters smashed through barriers at georgia's parliament. police fired tear gas..

Like many Georgians, Rati Khazalia believes he is in a "fight to save" his country's democracy and free the Eastern European nation from Russia's attempts to isolate it.

"We've been betrayed by our government," he said. "We've been sold to (Russia) for nothing."

The 29-year-old business owner who founded and runs a print shop in Georgia's capital Tbilisi made the comments in a phone interview this week as lawmakers in Georgia pushed through Parliament a controversial Russian-style "foreign agents" bill that has sparked some of the biggest protests in the nation since it regained its independence from Moscow in 1991.

Khazalia is among those protesting.

"It's time for everyone to stand together," he said.

The law was approved by 84 lawmakers voting in favor to 30 against.

Georgian President Salome Zourabichvili said she intends to veto the measure, which she has characterized as "an exact duplicate" of an authoritarian law in Russia that cracks down on anti-corruption campaigners, democracy-promotion organizations and political dissent. However, because the country's Moscow-sympathetic ruling Georgian Dream party controls the legislature Zourabichvili's veto can easily be over - ridden.

Video broadcast on Georgia television showed fights breaking out in Parliament on Tuesday, with rival lawmakers shoving each other and gesticulating angrily during debates on the bill. After the divisive bill's passage, protesters smashed through barriers at Georgia's parliament. Police fired tear gas.

A new home – and a moral dilemma: Russians escape Putin's war on Ukraine for Georgia

Here's what Georgia's "foreign agents" law is and why it's stirring controversy.

What is Georgia's 'foreign agents' law?

The law requires any organizations in Georgia who receive more than 20% of their funding from abroad to register as so-called agents of foreign influence.

Critics say the bill, promoted by the Georgian Dream party and its pro-Russian billionaire founder Bidzina Ivanishvili, is an attempt to sabotage the country’s path to further integration with the European Union and West more broadly. Ivanishvili is a former prime minister who wields significant political influence.

Georgia was granted EU candidate status in December. The EU has said the bill is "incompatible with European values" and could hurt the country's efforts to become a member of the bloc.

The bill's supporters say it is needed to promote political transparency, to fight against "pseudo-liberal values" promoted by foreign civil society groups and to preserve the country's sovereignty.

Natalie Sabanadze, Georgia's former ambassador to the EU, said the measure is known in Georgia as the "Russian law" because it is "modeled almost entirely on laws passed in Russia in 2012 that basically killed off its civil society," referring to Russia's political opposition and groups that promote democratic rights and free speech. Many Russians were silenced or forced to leave the country after these laws were passed in Russia.

In fact, Russia has used its foreign agents law to decimate political dissent and it is one of the reasons, along with a tight grip on Russia's security state, that Russian President Vladimir Putin has been able to stay in power for so long .

In Russian presidential election: Vladimir Putin cements longest reign since Stalin

Sabanadze said that Georgians have been protesting the law in huge numbers for weeks because the country has "quite a vibrant civil society" and it is "understood the new law puts that in jeopardy."

Last week, the U.S. said it was "deeply troubled" by the law. U.S. National Security Adviser Jake Sullivan said the U.S. was "alarmed about democratic backsliding in Georgia." Sullivan wrote on X , the social media platform, that "Georgian Parliamentarians face a critical choice − whether to support the Georgian people’s EuroAtlantic aspirations or pass a Kremlin-style foreign agents' law that runs counter to democratic values."

A 'turning point' in U.S.-Georgia relations?

After the vote passed, U.S. Assistant Secretary of State for European and Eurasian Affairs James O’Brien said the law "could be a turning point in what has been till now a constructive and productive partnership" between the Georgia and the U.S. He said that if the law "goes forward" the U.S. will impose travel restrictions and financial sanctions against people involved in drafting and supporting the bill.

On Wednesday, Zurabishvili, Georgia's president, said the nation was "returning to the past" with the new law, a reference to when Georgia was part of the Soviet Union.

Georgia: West or East?

Surveys show that the vast majority of Georgians favor closer ties with the West, even if their government in recent years has appeared to pull the country in the opposite direction.

In an interview in Tbilisi in 2022, Khazalia, the business owner, said that living in Georgia it's not always possible to see which political direction the country is going. "Is it to the West? Or is to the East?" he said.

'Our government is a pro-Russian puppet'

On Tuesday, Khazalia said the passage of the "Russian law" made the situation a lot clearer.

"Our government is a pro-Russian puppet," he said, as he prepared to join the protests Tuesday night. "Our only choice now is to show the world we want to live in a democratic country."

Khazalia said that many businesses in Tbilisi have closed and that the protests are being attended "by all generations, all classes, all ages, all interests and groups and ethnicities."

Russian exiles flee to Georgia

"I've also seen some Russians," he added, referring to the tens of thousands of exiles who've descended on Georgia since the outbreak of the war in Ukraine, a source of tension in Tbilisi.

Still, much of the murkiness around Georgia's politics has to do with its history and connective tissue to Russia.

After the collapse of the Soviet Union in 1991, both Russia and Georgia were newly independent nations.

But in the years that followed, Russia-backed separatists in Georgia sought to declare independence for two regions, which led to a war in 2008. The war ended in days, with Russian troops occupying the regions. Today, Abkhazia and South Ossetia (or the Tskhinvali region, as Georgians prefer to call it) remain under Russian control.

The conflict essentially meant Russia had invaded the bordering portions of an independent country.

It also announced Moscow’s determination, Daniel Fried, a former U.S. ambassador to Poland has said, "to force a country (it) regarded as within Russia’s sphere of influence to heel."

In fact, many international affairs specialists in the West such as Fried regard Russia's 2008 actions in Georgia as a kind of prelude to the Ukraine invasion. In 2014, Moscow annexed Ukraine's Crimea region on the Black Sea and backed separatists in Donbas, a vast eastern industrial heartlands area dotted with factories and coal plants.

Russian then launched a larger-scale Ukraine invasion in 2022.

In Georgia, as in Ukraine, while Russia seized its bordering regions, the rest of the country took steps to unite with the West. It applied to be a member of the European Union economic bloc in March 2022. Like Ukraine, it has aspirations to join NATO, the military alliance that backs Western allies against Russian aggression.

Siding with Russia 'would be political suicide'

Sabanadze, Georgia's former ambassador to the EU who is now a senior research fellow at London think tank Chatham House, said the ruling Georgian Dream party has , in the last few years, overturned the country's broad "EuroAtlantic trajectory" that it has had since its independence.

She ascribed this largely to Georgian billionaire Ivanishvili and his connections to Russia, the country where he made all his money (in banking and metals). She said Ivanishvili likely believes Russia will win the war in Ukraine.

"On top of that, he is personally really mad at the EU and U.S., has a conspiratorial mind and believes the Americans and Europeans especially are funding NGOs to undermine him," she said.

Ivanishvili could not immediately be reached for comment. The Kremlin has said that the new law in Georgia and the debate around is being used to "provoke anti-Russian" sentiment.

"Of course, no political party in Georgia can say they are going in the Russian direction," said Sabanadze, who said that even the Georgian Dream party is careful not express openly pro-Russian views when some 80% of Georgians say they want closer ties with the EU and NATO.

"That would be political suicide."

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Georgian president vetoes 'foreign agents' bill that has caused widespread protests

Rebecca Rosman

Charles Maynes

Protesters rally against the controversial "foreign influence" bill on Tuesday in Tbilisi, Georgia's capital. Giorgi Arjevanidze/AFP via Getty Images hide caption

Protesters rally against the controversial "foreign influence" bill on Tuesday in Tbilisi, Georgia's capital.

Georgia's president on Saturday vetoed its " foreign agents " bill, a controversial piece of legislation that has led to weeks of protest in the former Soviet republic and is seen by many as a tug of war for influence between Russia and the West.

"This law, in its essence and spirit, is fundamentally Russian, contradicting our constitution and all European standards. It thus represents an obstacle to our European path," President Salome Zourabichvili said in announcing the veto on X, formerly Twitter.

Today, I vetoed the Russian law. This law, in its essence and spirit, is fundamentally Russian, contradicting our constitution and all European standards. It thus represents an obstacle to our European path. This law must be repealed! pic.twitter.com/yNCGI7jqaF — Salome Zourabichvili (@Zourabichvili_S) May 18, 2024

Supporters say the law is about transparency and preventing outside influence on Georgian politics, while opponents say it's modeled on a Russian law that has been used to clamp down on dissent .

Video posted on Telegram Tuesday showed protesters trying to break through a barricade set up just outside the Georgian parliament in Tbilisi, the capital, shortly after lawmakers gave their third and final approval of the bill in a vote of 84 in favor, 30 opposed and no abstentions.

Tens of thousands of protesters gathered in Tbilisi over the weekend in advance on Tuesday's vote. Giorgi Arjevanidze/AFP via Getty Images hide caption

Tens of thousands of protesters gathered in Tbilisi over the weekend in advance on Tuesday's vote.

But Georgia's parliament can override the president's veto with a simple majority and the ruling Georgian Dream Party, or GD, appears to have the votes to do so.

Here's what you need to know about the bill and what happens next.

The 'foreign agents' bill, and why it's so controversial

The bill, put forth by the GD, requires nongovernmental organizations and media companies that get more than 20% of their funding from abroad to register as "pursuing the interests of a foreign power" and provide financial statements about their activities. Those that fail to do so could face hefty fines.

Proponents of the bill say it's necessary to prevent foreign influence and will make information about foreign funding more transparent. They also say the bill is based on a similar U.S. law — the Foreign Agents Registration Act — which dates back to 1938.

Georgian law enforcement officers are seen deployed on streets as protesters rally against the controversial "foreign influence" bill in Tbilisi on Tuesday. Vano Shlamov/AFP via Getty Images hide caption

Georgian law enforcement officers are seen deployed on streets as protesters rally against the controversial "foreign influence" bill in Tbilisi on Tuesday.

But critics, who call the legislation "the Russian law," say that a similar law passed by Moscow in 2012 has been used to crack down on critics of the Kremlin, from independent media organizations to human rights groups. Many say the Georgian government is using the law to align Georgia closer to Russia and quell dissent ahead of key national elections this fall.

In an interview with NPR earlier this month, GD lawmaker Maka Botchorishvili, who heads the parliament's committee on EU integration, fiercely rejected accusations that her party is aligning itself with Russia.

"As [a] Georgian politician and Georgian citizen, it is very much insulting when somebody puts Georgia and Russia on the same level," Botchorishvili said.

She said Russia remains Georgia's "No. 1 threat" given the Kremlin has occupied parts of Georgian territory since a brief war in 2008.

Last year, widespread protest forced the government to abandon efforts to pass a similar law.

Georgians have been protesting a controversial bill for days. Lawmakers scrapped it

What protesters are saying.

The current protests began in mid-April, shortly after Georgia's parliament passed its first reading of the bill. Since then, demonstrators — including a large swath of people from Generation Z — have been gathering at nightly marches toward the parliament. Many of them say they want to ensure Georgia's future includes entry into the European Union.

While Georgia was given official candidate status for EU membership in 2023, critics say the foreign agents bill is incompatible with European values of democracy and free speech. If the bill becomes law, it would likely create a headache for Brussels to move forward with Georgia's EU candidacy.

A December 2023 poll from the National Democratic Institute found that 79% of Georgians support the idea of EU membership.

"I want to be a part of Europe, and I want my freedom, as my other friends do," Mariam Esaiashvili, a university student, told NPR at a protest in Tbilisi earlier this month. "But this law just gets us more far from that mission."

"We are in the crossroads right now," said Giorgi Gzirishvili, a 29-year-old IT specialist who has been protesting since April. "We either have to ensure our future by becoming a member of NATO and [the] European Union, or we'll not exist in 10-15 years."

How the most recent protests have unfolded

While initially attracting younger crowds, the largely peaceful protests have galvanized Georgians of all ages in more recent days.

More than 50,000 gathered in the capital Tbilisi last weekend, with huge crowds seen marching through Europe Square, chanting "Georgia!"

Thousands stayed overnight in front of the parliament, where they tried to block lawmakers from entering the building to discuss the bill.

Masked security eventually showed up to disperse the crowds in the early morning hours, using water cannon trucks , tear gas and rubber bullets to remove people.

Twenty people were detained over the weekend, according to Russian state news, including two Americans and one Russian citizen.

Georgian law enforcement officers detain protesters outside the parliament during a rally against the controversial "foreign influence" bill in Tbilisi on Tuesday. Giorgi Arjevanidze/AFP via Getty Images hide caption

Georgian law enforcement officers detain protesters outside the parliament during a rally against the controversial "foreign influence" bill in Tbilisi on Tuesday.

What happens next

The ruling GD party has enough control in parliament to override her, making Zourabichvili's veto largely symbolic.

Demonstrations, meanwhile, are expected to continue.

The two biggest figureheads in Georgia, Prime Minister Irakli Kobakhidze and the Georgian Dream party's billionaire founder Bidzina Ivanishvili are both eager for the bill to pass.

Kornely Kakachia, the director of the Georgian Institute of Politics , told NPR he sees the law as a way for Ivanishvili to exert more control over free media and civil society.

"This is the only one sector [Ivanishvili] does not control," Kakachia said. "These people are not depending [on the] government. They have their own income and they are the ones who criticize and challenge the government."