Citizenship in the European
Union: a stock-taking exercise
with examples
Jo Shaw, Salvesen Chair of European
Institutions, University of Edinburgh
jo.shaw@ed.ac.uk
Dubrovnik, April 2009
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Broader questions posed by the
presentation
• Is the EU a ‘citizenship-capable’ polity?
• Is it enough just to point to Articles 17-21
EC – Citizenship of the Union?
• When did ‘citizenship development’ start in
the EU, what are the main lines and
elements of this development, and – in
2009 – where does it leave citizenship in
not of the Union?
Dubrovnik, April 2009
2
Two key narratives
• Citizenship and free movement (law) – to what
extent should we see citizenship as limited only
to the discussion of the consequences of free
movement and – if that’s so – where do the
citizenship provisions come in?
• Citizenship and constitutionalism – drawing on
the national experience, this seems a more
plausible link, but here – of course – the EU is
very weak
Dubrovnik, April 2009
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Three key examples
• Case law on citizenship and the nationality
laws of the MS in order to illustrate some
difficult questions
• The problematic implementation of the
Citizens’ Rights Directive
• The absence of significant Treaty change
since Maastricht – if the Union has
changed in legal character that does not
include its approach to citizenship
Dubrovnik, April 2009
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EU law and nationality laws of the
Member States: Introduction
• The ‘European’ context of nationality laws
– why does it matter
• Role of EU citizenship – Articles 17 and 18
EC – EU citizens are the nationals of the
Member States
• Includes ‘external effects’ – e.g. on states
such as Moldova in the context of
neighbourhood issues, as well as
accession/candidate states
Dubrovnik, April 2009
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The Court’s line on citizenship
• Since Case C-184/99 Grelczyk v. Centre public
d’aide [2001] ECR I-6193
• ‘Citizenship of the Union is destined to be the
fundamental status of nationals of the Member
States, enabling those who find themselves in
the same situation to receive the same treatment
in law irrespective of their nationality, subject to
such exceptions as are expressly provided for’
• Two element: fundamentality and equality
Dubrovnik, April 2009
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Basic freedom of MS in relation to
nationality
• MS retain the right to determine rules on
acquisition of nationality (Kaur; Chen) – whether
restrictively or generously…
• But in relation to dual nationality, no double
burden or additional conditions to be imposed on
a person seeking to rely upon a particular
nationality (Micheletti; Garcia Avello)
• And freedom in relation to how they use such
determinations (e.g. in order to create rules on
surnames – rather than residence rule) (Garcia
Avello; Grunkin)
Dubrovnik, April 2009
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Member States must comply with
EU law
• But in so doing they must act in
compliance with the rules of EU law
– no discrimination on grounds of nationality
(Article 12 EC)
– plus application of Aristotelian principle of
treating like situations the same and unlike
situations differently (Garcia Avello) (general
principle of equality)
– on grounds of free movement (Grunkin and
Paul) (derives from cases such as De Hoop)
Dubrovnik, April 2009
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Strict scrutiny of justifications by
ECJ
• ECJ sceptical of national justifications for
having certain types of rules on surnames
connected to nationality (rather than
residence), such as:
– that the immutability of surnames is a
founding principle of social order; or
– that nationality represents the [only] objective
connecting factor which makes it possible to
determine a person’s surname with certainty
and consistency
Dubrovnik, April 2009
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ECJ pushing the boundaries of EU
citizenship ever outwards
• Martínez Sala: in order to invoke Articles
17, 18 and 12 in combination, it was
necessary to prove that applicant within
both personal scope of EU law and also
material scope
• Using argument around construction of
citizenship in order to access benefits
covered by EU law
Dubrovnik, April 2009
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Abandoning the link
• Garcia Avello and Grunkin and Paul: only
personal link of EU citizen resident in
another MS
• This is then combined with the argument
that it is an inconvenience to free moving
EU citizens to have their surname
differently determined in different states –
all the myriad circumstances in which
people have to prove identity, etc.
Dubrovnik, April 2009
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Restricting the Member States
• This is using EU law in order to restrict freedom of
Member States to use nationality criterion in respect of
other matters of civil status which would normally fall
within their exclusive competence (surname
determination)
• Konstantinidis is an important precedent here although
at that time ECJ stressed economic dimension
• But see the [obiter] suggestion of AG Jacobs in
Standesamt Stadt Niebüll: ‘the combined effects of
Articles 17 and 18(1) EC mean that it is now
unnecessary to establish any economic link in order to
demonstrate an infringement of the right to free
movement’
• Cf. AG Jacobs dictum in Konstantinidis: should be able
to say ‘civis europeus sum’…
Dubrovnik, April 2009
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The direction of travel?
• Rottmann:
– what happens when an ‘EU citizen’ loses EU
citizenship because, having had one MS
nationality (Austrian), he acquires another by
deception (German)
– and is then threatened with deprivation of this
second nationality because of the deception
– but the ‘old’ nationality would not normally be
revived
– leading to the possibility of statelessness
Dubrovnik, April 2009
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Possible arguments
1. Statelessness issues would be dealt with here
solely under international law and the duties of
states to avoid statelessness
2. EU citizenship imposes special duties on EU
Member States to avoid persons losing their
EU citizenship because of possible
statelessness
3. And/or we could see the invocation of human
rights arguments about MS responsibilities in
relation to nationality law (put forward on behalf
of the applicant but not engaged with in Kaur)
Dubrovnik, April 2009
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Possible outcomes
• It’s Mr Rottmann’s problem and no one
else’s
• Germany should act – i.e. not withdraw
• Austria should act – i.e. ensure revival of
old nationality
Dubrovnik, April 2009
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Key cases
• Case C-369/90 Micheletti v. Delegacíon
del Gobierno en Cantabria [1992] ECR I4239
• Case C-148/02 Garcia Avello [2003] ECR
I-11613
• Case C-353/06 Grunkin and Paul, 14
October 2008
• Case C-135/08 Rottmann v. Freistaat
Bayern (not yet decided)
Dubrovnik, April 2009
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Other cases referred to
• Case C-168/91 Konstantinides v. Stadt
Altensteig [1993] ECR I-1191
• Case C-85/96 Martínez Sala v. Freistadt
Berlin [1998] ECR-I 2691
• Case C-192/99 Kaur [2001] ECR I-1237
• Case C-200/02 Chen [2004] ECR I-9925
• Case C-96/04 Standesamt Stadt Niebüll
[2006] ECR I-3561
Dubrovnik, April 2009
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Implementation of Citizens’ Rights
Directive
• Flagship piece of legislation
• Happier relationship between EU law and
national law (and between ECJ and
national authorities) in case where there is
legislation in place – i.e. does legislation
strengthen legitimacy?
• Limited – of course – just to mobile
citizens
Dubrovnik, April 2009
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The relevant EU texts
• Article 39 EC
• Other EU free movement rights including
Articles 43 and 49 EC
• The effects of EU citizenship – Article 18
EC
• Directive 2004/38 EC – largely supercedes
all previous implementing legislation
Dubrovnik, April 2009
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However
• Not a complete code of rights for EU citizens
and their family members
• ECJ case law including prior case law still
relevant to understand key rights (e.g. especially
the scope of the non-discrimination principle
when applied in conjunction with EU citizenship
• Does not treat all EU citizens the same – there
are still some differences between those who
are workers, jobseekers, students, retired
persons, the self employed, persons of
independent means
Dubrovnik, April 2009
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Should be quite straightforward
• For stay of less than three months:
passport or identity card
• For residence of more than three months
• After five years of continuous residence –
can acquire the right of permanent
residence
• Inter alia gives greater protection against
possible deportation on grounds of public
policy (e.g. after lengthy prison sentence)
Dubrovnik, April 2009
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UK Implementation
• Immigration (European Economic Area)
Regulations 2006
• Some specific regulations, e.g. in the area
of equal treatment
• In some cases (ordinary) immigration law
still applies – e.g. appeals process and
some categories (e.g. extended family
members)
Dubrovnik, April 2009
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Also bear in mind
• Entry Clearance Guidance
• European Casework Instructions
• UK Border Agency deals with these
questions, with appeals to AIT or other
tribunal e.g. Social Security Commissioner
as appropriate
Dubrovnik, April 2009
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Monitoring of national compliance
• European Commission is responsible
• Issued report in December 2008
• ‘Free movement of persons constitutes
one of the fundamental freedoms of the
internal market, to the benefit of EU
citizens, of the Member States and of the
competitiveness of European economy.’
Dubrovnik, April 2009
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Who benefits?
• ‘The directive is fundamental not only for
more than 8 million EU citizens who reside
in another Member State and their family
members, but also for the millions of EU
citizens travelling every year inside the
EU.’
Dubrovnik, April 2009
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The Commission’s disappointment
• ‘The overall transposition of Directive
2004/38 is rather disappointing. Not one
Member State has transposed the
Directive effectively and correctly in its
entirety. Not one Article of the Directive
has been transposed effectively and
correctly by all Member States.’
Dubrovnik, April 2009
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Issues for the UK
• Making the right of residence of third
country national family members
conditional upon their prior lawful
residence in another Member State
• Its restrictive approach to the acquisition of
permanent residence (whereby only
periods of residence ‘under these
Regulations’ are counted)
Dubrovnik, April 2009
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Other issues not mentioned
• Long delays in issuing residence
documents to family members
• The requirement that certain extended
family members have previously resided in
the same member state as the sponsor
• Could go on and on…
• The drafting of the regulations is a wonder
to behold…Regulation 14(3)
Dubrovnik, April 2009
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Where are things likely to go in the
future?
• The ECJ has not so far had much
opportunity to interpret Directive 2004/38
• Some evidence in the related field of equal
treatment in the area of student support
• Case C-127/08 Metock v. Minister for
Justice, Equality and Law Reform, 25 July
2008
Dubrovnik, April 2009
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Facts of Metock
• Irish regulations requiring prior lawful residence
in another Member State
• TCN spouses married to nationals of other
Member States resident and working in Ireland
• Refused residence permits and threatened with
deportation
• Many had had asylum applications turned down
• Therefore could be viewed as illegal entrants, or
at least persons not present lawfully in Ireland
Dubrovnik, April 2009
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Some comments on the Metock
process
• AG’s Opinion not written, or if it was not
published (‘after hearing the Advocate General’)
• Speed of procedure – reference was presented
on 14 March 2008
• Not one of the third pillar cases where the Court
has agreed a formal accelerated process
• These are controversial issues, affecting
national sovereignty. Has the ECJ taken
sufficient time to reflect upon them?
Dubrovnik, April 2009
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Where did the problem come from?
• Case C-109/01 Akrich [2003] ECR I-9607
• “[i]n order to be able to benefit...from the rights
provided for in Article 10 of Regulation (EEC) No
1612/68 of the Council of 15 October 1968 on
freedom of movement for workers within the
Community, a national of a non-Member State
married to a citizen of the Union must be lawfully
resident in a Member State when he moves to
another Member State to which the citizen of the
Union is migrating or has migrated”
• Case C-1/05 Jia v. Migrationsverket [2007] ECR
I-1
Dubrovnik, April 2009
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Conclusions of the Court of Justice
• ‘Directive 2004/38 confers on all nationals of
non-member countries who are family members
of a Union citizen within the meaning of point 2
of Article 2 of that directive, and accompany or
join the Union citizen in a Member State other
than that of which he is a national, rights of entry
into and residence in the host Member State,
regardless of whether the national of a nonmember country has already been lawfully
resident in another Member State.’
Dubrovnik, April 2009
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Justification given by the ECJ
• ‘The refusal of the host Member State to
grant rights of entry and reisdence to the
family members of a Union citizen is such
as to discourage that citize from moving to
or residing in that member State, even if
his family members are not already
lawfully resident in the territory of another
Member State.’
Dubrovnik, April 2009
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Is this likely to be accepted?
• See case of HB (Algeria) – a Surindher
Singh type case (AIT)
• See also amendments to Entry Clearance
Instructions and European Casework
Instructions to remove offending
references to Akrich
• But as yet no sign of an amendment to
EEA Regulations
Dubrovnik, April 2009
35
Meta level change?
• What impact of the Treaty of Lisbon on
citizenship?
• The ‘will’ of citizens
• The ‘equality’ of citizens
• ‘Additionality’ instead of ‘complementarity’
• Citizens and the ‘democratic life of the
Union’
• Citizens’ initiatives
Dubrovnik, April 2009
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