Lecture 8

European Institutions

European Citizenship:

Introduced with the Treaty of Maastricht 1993

- Part of the move from a mainly economic community to a political union

No rules with regard to granting of EU citizenship & no rules with regard to the withdrawal of
national (and thus automatically EU citizenship) except for the requirement to respect the
principle of proportionality (Rottmann)

Additional to / derived from national citizenship

- No rules on the level of the EU as to how to become a citizen to the EU;
EU citizenship is simply a direct result of being a citizen of an EU MS
- EU citizenship involves numerous rights and no obligations thus far
- But issues as a result of the difficulties or conversely the ease with which citizenship can be
obtained in some EU MSs (e.g. easy in Malta, Cyprus, etc)
May lead to consideration of attaching conditions in future to obtaining EU citizenship

Withdrawal: member states discretion, but limited by EU law

- Case C-135/08 Rottmann
ECJ held that there is one minimum requirement in EU law, with regard to EU MS withdrawal of their
own nationality from people (previous citizens). A MS is only able to withdraw its nationality from a
person if it respects the principle of proportionality. Issue is that such withdrawal of MS nationality
automatically results in the loss of EU citizenship also.
In this case, Germany withdrew citizenship/nationality from Rothman due to him not having
transparently disclosed crimes he had previously committed in Austria. The ECJ found that Germany
had to consider the principle of proportionality when making its decision of withdrawal of nationality.

The German courts then did this and found that it would be proportional to withdraw Rothmans
German nationality.

Article 20 TFEU with the main elements

- Article 20 TFEU provides that every person holding the nationality of an EU MS shall be an EU
citizen
EU citizenship is additional to, and does not replace, national citizenship
Rights and duties of EU Citizens (no duties thus far)
- Article 20 TFEU further outlines all the rights resulting from EU citizenship
e.g. right to move and reside freely (art. 21), right to vote (art. 22), right to petition

The right to move and reside freely

- Article 20/21 TFEU confers an autonomous, directly effective right on EU citizens to reside in a
host MS
(regardless of whether they are employed or self-employed or not; Baumbast; Chen)
- Any conditions or limitations must be interpreted so as to avoid disproportionate interferences
with the rights
- The whole internal situation approach is still relevant
Cross-border dimension necessary in order to be able to rely on Article 20/21 TFEU
Starting point: right to free movement always applies and the right to base ones claim on the

Lecture 8

European Institutions

EU citizenship rights only applies when there is a cross border element (moving from one MS to
another)
Exception to cross-border requirement: Zambrano; McCarthy; Murat Dereci
Zambrano case:
Right of the children, as EU citizens, would have been violated if their parents (third country/non-EU
nationals) were forced out of the country (Belgium) (as the children would be unable to enjoy their
rights as EU citizens).
ECJ found there to be a core right with regard to citizenship rights, which applies irrespective of any
cross-border dimension.

- Principle: persons who are not economically active, need to prove:

(a) sufficient resources to avoid becoming a burden on the social assistance scheme of the host
MS, and
(b) comprehensive sickness insurance (with certain exceptions and special cases)
(e.g. where it does not constitute an unreasonable burden for the state, students, etc)
Residual/secondary economic status of individuals as workers or self-employed persons
- The right to travel between MSs is limited to three months, unless meeting the above
requirements
- In particular: third country nationals
Case C-127/08 Metock

Mr Metock, a Cameroon citizen, entered Ireland and applied for asylum, which was rejected. He then
married a UK citizen working in Ireland (cross-border dimension established). His asylum application
was refused again due to Metock having had no prior lawful residence in another EU MS, which was a
requirement under Irish legislation, as Metock entered Ireland from a third country. The Irish Courts to
the ECJ referred the case.
The ECJ clarified the conditions and limits applicable to the right of residence of Community citizens
and the circumstances in which a third country national can benefit from the right to reside for the
first time in a MS.
Relying on its previous case-law and several provisions of Directive 2004/38/EC, the ECJ determined
that the Directive does not make its application conditional on the beneficiaries, the family members
of the EU citizen, having previously resided in a MS. Furthermore, the ECJ stated that the provisions of
the Directive should be interpreted in a non-restrictive way such that it does not require either that
the EU citizen has founded his family prior to exercising his right of free movement in another MS or
that the national of a non-member/third country has entered the host MS before becoming a family
member of a EU citizen. Hence: a national of a non-member/third country, the spouse of an EU
citizen, who accompanies that citizen or joins that citizen in the host MS, may enjoy rights conferred
by Directive 2004/38 irrespective of when and where their marriage took place and of how the nonMS/third country national entered the host MS. Main consequence of this case: Irish citizens who have
not crossed-borders to another EU MS are worse off in Ireland than other MS members, such as UK
citizens, who have moved to Ireland reverse discrimination.

- Directive 2004/38
Creating a single legal regime for the free movement and residence within the context of EU
citizenship
Art. 3 Beneficiaries (EU citizens & family members); Art. 7 Right of residence for over three
months

Article 22 TFEU: right to vote

- But: prohibition of double voting
- Low rates of voter registration and numbers exercising the right to vote in a host MS in practice

Article 23 TFEU: diplomatic protection abroad

- Relevant where ones own nation state has no diplomatic offices in the country abroad;
one can go to diplomatic offices of other MSs; entitled to protection of the diplomatic or consular
authorities of any MS; controversial with what exactly is meant with diplomatic protection

Lecture 8

European Institutions

Article 24 TFEU: right to bring forth a citizens initiative (upon collection of the required amount
of signatures)

Free movement of persons within an area of freedom, security, and justice

- Title V of the TFEU, comprised of 5 chapters
- cf. Articles 67, 77-80 TFEU on the Schengen area, border checks, asylum and immigration
(incl. Regulation 343/2003, Dublin II now Dublin III). Schengen agreement=no border controls
in binnen areas
Case C-411/10 N.S. v the UK

This case concerned the concept of safe country within the Dublin system and respect for
fundamental rights of asylum seekers. ECJ interpreted the Dublin Convention in light of EU law. ECJ
held that EU law prevents the application of a conclusive presumption that MSs observe all the
fundamental rights of the European Union. Art. 4 Charter must be interpreted as meaning that any
non-responsible MSs may not transfer an asylum seeker to the MS responsible (within the meaning of
the Regulation) where systemic deficiencies in the asylum procedure and in the reception conditions
of asylum seekers in that MS responsible amount to substantial grounds for believing that the asylum
seeker would face a real risk of being subjected to inhuman or degrading treatment within the
meaning of the provision. Once it is impossible to transfer the asylum seeker to the responsible MS
then subject to the sovereignty clause the non-responsible MS can check if another MS is responsible
by examining further criteria under the Regulation. This should not take an unreasonable amount of
time and if necessary then the MS concerned must examine the asylum application.