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Lectures- Session 5: European Citizenship rights

So, you are a European Citizen!

So, what?


Outline From Workers to Citizens

What is EU Citizenship? And Who is a EU citizen?

Scope of citizenship rights

Non-discrimination on grounds of nationality & EU citizenship

Case-law: citizens, students, job-seekers…

Dir.2004/38 general right of entry and residence

3rd country nationals

Conclusion


What is EU Citizenship? And who is a EU citizen?

Citizenship of the EU is hereby established.

Every person holding the nationality of a Member State shall be a citizen of the Union.

EU citizenship shall complement and not replace national citizenship.

Open Notes

Article 20 TFEU See full article in notespage.

Article 20 (ex Article 17 TEC)

Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

a) the right to move and reside freely within the territory of the Member States;

b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;

c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;

d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.

These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted there under.


The essence of the rules on EU Citizenship.

European citizenship (established 1992) is a specific expression of the principle of non-discrimination on grounds of nationality (in the Treaty since 1957).


Free movement and EU Citizenship

Every citizen of the Union shall enjoy the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down by the Treaty and by the measures adopted to give it effect. (Art. 21 TFEU; full text in notespage).

Open Notes

Article 21

(ex Article 18 TEC)

1) Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

2) If action by the Union should prove necessary to attain this objective and the Treaties have not provided the necessary powers, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1.

3) For the same purposes as those referred to in paragraph 1 and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament.


Freedom of movement

Presumption of a right to move freely & to reside in another member-states than one’s own.

The citizen has a right to do so. No permission needed from host state.

Host state may restrict free movement (deny entry or deport ) on grounds of public policy, public security public health.

(Art. 45 para.3 TFEU & Dir. 2004/38).


Directive 2004/38/EC provides details on

(a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;

(b) the right of permanent residence in the territory of the Member States for Union citizens and their family members (who may not be EU citizens themselves).

(c) the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.


Right of Union citizens to permanent residence depends on

being at work or being self-employed or

have sufficient means to support themselves and their families or

are students

AND

have comprehensive sickness insurance cover in the host Member State.

See further details in notes page

Open Notes

All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) are workers or self-employed persons in the host Member State; or

(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

(c) are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and – have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or


What happens when there are disputes about the exercise of citizenship rights?

Citizens can bring a case in the national courts against the authorities.

National courts may refer to the European Court of Justice for an interpretation.

National courts ultimately responsible to adjudicate.


Let us look at some examples

Students

Job-seekers

3rd country nationals


Students

Case of Grzelyck v Centre Public d’Aide sociale

Can a French student studying in Belgium claim a social security benefit available to Belgian students?

Court stated that EU citizenship is destined to become the fundamental status of nationals of the member states.

EU citizenship means equal treatment of EU citizen with nationals in the same circumstances, subject to exceptions expressly provided for.

Open Notes

C-184/99 Judgment of the Court of 20 September 2001

French student in Belgium claiming a social security benefit; did Reg.1612/68 (relevant law at the time) apply since he was not a Community worker?

Dir. 93/96 (replaced by Dir. 2004/38) requires member states to grant a right of residence to student nationals of another member state

Art. 3 no right to maintenance grants

Case raised the status of EU Citizenship

Right of residence under EC law meant right to equal treatment & non-discrimin. Under Art. 12 ECT

Difference between student and work-seeker who by definition is not contributing to the economy of the host state.


Job-seeker’s right to social security benefits

Ioannidis, a Greek national, graduated from university in Belgium, worked in France and returned to look for work in Belgium.

Could he claim an allowance in Belgium available to Belgians seeking work?

Belgian law required that claimants have completed their secondary education in Belgium.

Court ruled:

A Member State cannot refuse to grant a allowance to a national of another Member State seeking his first employment on the sole ground that he completed his secondary education in another Member State.


Can a difference in treatment be justified?

Objective considerations.

Independent of the nationality of the persons concerned.

Proportionate to the aim legitimately pursued by the national law.

A single condition concerning the place where the diploma of completion of secondary education was obtained is too general and exclusive in nature and goes beyond what is necessary to attain the objective pursued. (extract from judgment in notespage)

Open Notes

Only if it is based on objective considerations which are independent of the nationality of the persons concerned and proportionate to the aim legitimately pursued by the national law. While it is legitimate for the national legislature to wish to ensure that there is a real link between the applicant for that allowance and the geographic employment market concerned, a single condition concerning the place where the diploma of completion of secondary education was obtained is too general and exclusive in nature and goes beyond what is necessary to attain the objective pursued.


European citizenship & 3rd country-nationals Blaise Baheten Metock and Others v Minister for Justice (Ireland)

Mr. Metoc, a Cameroon national, arrives in Ireland to be with his long-term partner and their children.

His partner is a British citizen, Cameroonian by birth, working in Ireland.

Mr Metoc applied for asylum is refused.

His stay in Ireland becomes illegal.

Mr. Metoc married his long-term partner.

He then applied for residence permit, as spouse of an EU citizen.

See more details of the facts of the case in notespage

Open Notes

Mr Metock, a national of Cameroon, arrived in Ireland on 23 June 2006 and applied for asylum. His application was definitively refused on 28 February 2007.

Ms Ngo Ikeng, born a national of Cameroon, has acquired United Kingdom nationality. She has resided and worked in Ireland since late 2006.

Mr Metock and Ms Ngo Ikeng met in Cameroon in 1994 and have been in a relationship since then. They have two children, one born in 1998 and the other in 2006. They were married in Ireland on 12 October 2006.

On 6 November 2006 Mr Metock applied for a residence card as the spouse of a Union citizen working and residing in Ireland. The application was refused by decision of the Minister for Justice of 28 June 2007, on the ground that Mr Metock did not satisfy the condition of prior lawful residence in another Member State required by Regulation 3(2) of the 2006 Regulations.


Can Mr Metoc rely on EU law?

The Directive on the free movement applies to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members who accompany or join them.


European Court of Justice ruled

A national of a non-member country who is the spouse of a Union citizen residing in a Member State other than their own benefits from the provisions of that directive, irrespective of when and where their marriage took place and of how the national of a non-member country entered the host state.

Open Notes

Article 3(1) of Directive 2004/38 must be interpreted as meaning that a national of a non-member country who is the spouse of a Union citizen residing in a Member State whose nationality he does not possess and who accompanies or joins that Union citizen benefits from the provisions of that directive, irrespective of when and where their marriage took place and of how the national of a non-member country entered the host state.


Dir. 2004/38: a directive too far? Does its application

Offer the ECJ scope for interpreting it widely?

Open the door to welfare migration? & benefit shopping?

Break down the distinction between workers and non-workers? Between EU and non-EU citizens?

Limit member-states sovereignty regarding immigration?


But consider that:

The Directive was adopted by the member-states and the European Parliament.

Member-states have a decisive role in adopting legislation.

The Directive takes into serious consideration the family rights of the EU citizen.


A Directive too far? Critique by think tank Open Europe

Free movement of workers has been a major success particularly in the UK.

But undermining member states’ rights to control the movements of criminals, their borders, and the access of economically inactive people to benefits is a mistake – not just because these changes are problematic in themselves, but because in the long run this will undermine public support for free movement of workers.

Open Notes

Open Europe 2012 research

Tread carefully: The impact and management of EU free movement and immigration policy

Pdf available on Open Europe website


Applying EU law on free movement of citizens: Consider the following situation

Elisabeth, a Sierra Leone national, arrived in Portugal illegally. To support herself she found work in a restaurant as a waitress.

Helmut is a German national, who resides in Portugal where he owns a holiday house. He lives on royalties from his novels which are best-sellers across Europe, although he no longer writes. He eats regularly at the restaurant where Elisabeth works.

Elisabeth and Helmut started seeing each other and after a while Elisabeth moved in with Helmut. When Elisabeth became pregnant, they married in September.

Following the birth of their child Elisabeth and Helmut applied to the Portuguese authorities for a residence permit for Elisabeth. However, the Portuguese authorities started proceedings under Portuguese law to deport her as an illegal immigrant.

Consider the following questions:

What rights do you think Helmut and Elisabeth have under EU law?

How can they pursue these rights?

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