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- Oxford Brookes University
eu law and mouvements
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Compulsory Case LawFree Movement of Persons: Entry and Residence
Topic Facts Reasoning Holding
Rottmann loss of Union Rottman (Austrian national) moved not purely internal situation b/c possibility of losing Withdrawal of naturalization
(2008) citizenship to Germany and lost Austrian Union citizenship conferred by Art. 20 TFEU not contrary to Art. 20
Art. 20 TFEU nationality due to naturalization in MS power over nationality, but if EU rights affected, TFEU, if naturalization was
Germany ECJ can review decisions acquired by deception and if
naturalization withdrawn based on withdrawal of naturalization based on fraud, false the withdrawal observes the
deceipt b/c of non-disclosure of fact information or concealment allowed, if proportional principle of proportionality.
that there is an investigation against consequences for person and family in relation to gravity
him in Austria of offense committed must be considered
effect: Rottmann becomes stateless
and loses Union citizenship
Zambrano reliance on EU Zambrano (Columbian national) Belgian refusal of granting residence permit after birth Arts. 20 and 21 TFEU confer
(2009) rights without lives and works full-time in of first Belgian child is breach of child’s fundamental a right of residence
Opinion of AG movement Belgium without work permit right to family life under Arts. 7 and 24(3) Charter independently from the right
Sharpston Art. 18 TFEU two children born in Belgium with traditionally movement between MS required to be able to move between MS. They
Art. 20 TFEU Belgium nationality to claim classic economic rights but persons whose do not preclude the refusal of
Art. 21 TFEU Belgium refuses to grant him ability to move is hampered can rely on them a derived right of residence
residence permit no movement required to rely on rights of EU to an ascendant relative of a
after termination of employment citizenship non-moving Union citizen, if
contract he is denied employment not purely internal situation b/c children have EU the decision is proportional.
benefits citizenship rights need parents to fully exercise them Art. 18 TFEU prohibits
if Zambrano no derivative right of residence, children reverse discrimination.
must leave with him The fundamental right to
interference with children’s right of residence family life cannot be invoked
acceptable, unless unproportional independently of any other
Art. 18 TFEU should prohibit reverse discrimination link with EU law.
resulting from movement requirement three
requirements
non-moving EU citizen in comparable situation to
, citizens with rights under Art. 21 TFEU
violation of fundamental right
Art. 18 as subsidiary remedy only if no protection under
national law
McCarthy right of residence McCarthy (British and Irish Art. 3(1) Dir 2004/38 does not apply to EU citizens that Union citizens with dual
(2009) in cases of dual national) has only lived in England have always resided in the MS of their nationality nationalities that have always
Opinion of AG nationality but no her husband (Jamaican national) neither McCarthy nor her family within scope thereof lived in one of those two
Kokott movement was refused the derivative right to b/c no cross-border element States cannot claim a right of
Art. 21 TFEU reside in England as her spouse right to residence intended to facilitate free movement of residence under Dir 2004/28
Dir 2004/38 EU citizens dual nationality no significance in that State.
reverse discrimination: ‘mobile’ citizens enjoy more
generous rules on right to entry and residence than
‘static’ citzens
but not problem of EU law
McCarthy does not fulfill remaining conditions of
longer-term rights of residence
no work, no sufficient resources, but receives State
benefits from UK
if McCarthy could rely on Dir 2004/38, it would lead to
cherry-picking: enjoyment of advantages of Dir 2004/38
without meeting objectives and conditions of directive
Sayn- freedom to move abolition of nobility and all its no discrimination on grounds of nationality b/c all A prohibition on the
Wittgenstein and reside freely privileges and titles in Austria and citizens treated in accordance with their national law acquisition, possession or use
(2009) with regards to Germany high degree of inconvenience comparable to by its citizens of noble titles
Opinion of AG names in Austria bearing of title of Konstantinidis, Garcia Avello or Grunkin-Paul can be justified by equality
Sharpston Art. 21 TFEU nobility prohibited living for considerable time in Germany has left many of citizens and the abolition
in Germany existing titles become traces, such as driving license, business, contracts etc. of privileges, if it is
part of surname cannot be compared to change of name after marriage proportional.
Austrian national adopted by b/c the former is a free choice while the latter is imposed Such a prohibition, which is
German national becomes ‘Fürstin by law not based on fundamental
von Wittgen-Stein’ ‘Fürstin’ provides considerable advantage in her work as constitutional principles,
registered and working under that intermediary in property dealings of castles cannot justify a change or
name in Austria and Germany prohibition interferes with right to move and reside rectification of an entry in a
after 15 years Austrian authorities freely in EU register when the EU citizen
want to withdraw registration and justification: safeguards against resurrection of nobility has relied on that entry to
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