Summary European Union (EU) Law Masters (LLM): EU Citizens Notes
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Module
EU Free Movement Law
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Universiteit Leiden (UL)
Book
EU Law
In depth Masters module notes on the European Union (EU) law on EU Citizens
Including a step-by-step guide on how to answer a legal problem question for exams.
Essential Guide to European Constitutional Law: Understand the Foundations of EU Legislation
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EU CITIZENSHIP
Introduction:
- Main Treaty Provisions:
- Art. 9 TEU: Every national shall be a citizen of the Union in addition to MS
nationality.
- Art. 18 TFEU: Discrimination on nationality is prohibited.
- Art. 20 TFEU: Gives a definition of EU citizenship and establishes the rights to
be protected.
- Art. 21 TFEU: Citizens shall have the right to move and reside freely within the
territory of the MS’s subject to limitations and conditions.
- Art. 23 TFEU: Diplomatic protection in Third Countries.
- Directive 2004/38: the rights of Union citizens and their families.
- The core concept is the ‘fundamental status’ of those exercising their right to free
movement rather than particular status as a worker, self-employed, student etc.
- This applies to Union citizens and their family but only if they ‘move to or reside
in a MS other than their own’ i.e. excluding purely internal situations (Morson)
- Mainly Articles:
- Art. 6: The right of residence for up to three months
- Art. 7: The right of residence for more than three months.
- Art. 14: Retention of the right of residence
- Art. 16: General rule for Union citizens and their family members
- Art. 24: Equal treatment
- Art. 27: General Principles on restrictions.
- Concept introduced in the Treaty of Maastricht (1993).
- Grzelczyk: ‘Union citizenship is destined to be the fundamental status of nationals of the
Member States’ [31]
Who is a citizen?
- EU citizenship is totally dependent on MS nationality: the EU cannot grant or revoke
citizenship of the EU.
- Micheletti (C-369/90 [1992])
- Under International law, it is for each MS, having due regard to EU law, to lay down
the conditions for the acquisition and loss of nationality. However, it is not permissible
for the legislation of a MS to restrict the effect of the grant of the nationality of another
MS by imposing an additional condition for recognition of that nationality with a view
to the exercise of the fundamental freedoms provided for in the Treaty. [10]
- Dual Argentine-Italian citizens born and lived in Argentina applied for permanent
residence in Spain. The spanish authorities refused his request on the basis that he
had acquired his Argentine nationality before his Italian and, so took preference.
, - Rottman (C-135/08 [2010]):
- There is no breach of Union law when Member States withdraw nationality from an
individual who had obtained that nationality by deception, so long as proportionality is
respected. [54]
- It is for the national court to ascertain whether the withdrawal decision observes the
principle of proportionality so far as it concerns the consequences for the situation of
the person concerned. [55]
- An Austrian applied to become a German National, but there was an arrest warrant
on him from Austria. He lost his Austrian nationality to become German, but the
Germans revoked his nationality on finding out about the warrant.
- Tjebbes (C-221/71 [2019]):
- it is legitimate for a Member State to take the view that nationality is the expression of
a genuine link between it and its nationals, and therefore to prescribe that the
absence, or the loss, of any such genuine link entails the loss of nationality. [35]
- Under those circumstances, EU law does not preclude, in principle, that in situations
such as those referred to in Article 15(1)(c) of the Law on Nationality and Article 16(1)
(d) thereof, a Member State prescribes for reasons of public interest the loss of its
nationality, even if that loss will entail, for the person concerned, the loss of his or her
citizenship of the Union. [39]
- in the case of nationals who are not nationals of another MS, the loss of citizenship of
the EU, MS authorities must have due regard to the principle of proportionality
regarding the consequences of that loss for each person and their family. [40]
- The loss of the nationality of a MS by operation of law would be inconsistent with the
principle of proportionality if the relevant national rules did not permit at any time an
individual examination of the consequences of that loss for the persons concerned
from the point of view of EU law [41]
- Where the loss of the nationality of a member state arises by operation of law and
entails the loss of citizenship of the Union, the competent national authorities and
courts must be in a position to examine, as an ancillary issue, the consequences of
the the loss of that nationality and where appropriate, to have the person concerned
recover his or her nationality ex tunc in the context of an application by that person for
a travel document or any other document showing his or her nationality [42].
- Canadian-Dutch woman whose dutch passport had expired, went to get her passport
renewed and was told by the authorities that she no longer possessed dutch
citizenship as a result.
Weiler: A political idea and an empty frame.
Shaw: the concept of EU citizenship has potential.
Proportionality test:
- Should be based on criteria, such as:
- Suitability: a public interest aim should be pursued through adequate means.
- Necessity: no less restrictive measure should be available
- Proportionality: the disadvantage imposed on the individual must not be
disproportionate to the importance of the aim
Article 21(1) TFEU: Every citizen shall have the right to move and reside freely in the territory of the
MS’s subject to limitations.
, - Baumbast (C-413/99 [2002]):
- Art. 21(1) does not require that EU citizens pursue a professional or trade activity in
order to enjoy the rights provided to them as a citizen of the union [83]
- Zhu and Chen (C-200/02 [2004]):
- Enjoyment by a young child of a right of residence necessarily implied that the child
was entitled to be accompanied by the person who was his or her primary carer and,
accordingly, that carer must be in a position to reside with the child in the host MS for
the duration of such residence, regardless whether the primary carer was a national
of a MS or not.
- A requirement as to the origin of the resources would constitute a disproportionate
interference with the exercise of fundamental rights or freedom of movement and of
residence [33]
- It is clear that enjoyment by a young child of a right of residence necessarily implies
that the child is entitled to be accompanied by the person who is his or her primary
carer and accordingly that the carer must be in a position to reside with the child in
the host MS for the duration of such residence. [45]
- A child with chinese parents who was born in Northern Ireland, obtaining Irish
Nationality. Mother and child were refused a long-term residence permit in the UK on
the grounds that the child was not exercising any EU law rights and the mother was
not entitled to reside in the UK under EU law.
WHOLLY INTERNAL SITUATIONS
- The provisions on citizenship do not extend the scope of the Treaty to cover the internal
situations which otherwise had no link with EU law.
Dual Nationality
- Garcia Avello and Chen: Provisions on EU citizenship would apply even when the
applicants had never left the MS in which they were born as persons claiming rights as an
EU citizen also possessed the nationality of a MS other than that of the host state.
- Garcia Avello:
- Belgian refusal to allow a change in surname was in violation of both Art. 18 and 20
TFEU was discrimation on grounds of their dual Belgian-Spanish nationality against
the children, since they were refused the right to bear the surname as it would be
determined by Spanish law.
- Runevic-Vardyn (C-391/09 [2011])
- It will be for the national court to decide whether such refusal reflects a fair balance
between the interest in issue: the right of the applicants to respect for their private
and family life with the legitimate protection by the MS of its official naitonal language
and its traditions [91].
- A Lithuanian national of the Polish ethnic minority in Lithuania, was prevented from
entering their name on official documents (marriage certificate) other than in Roman
Characters of lithuanian.
- Justification was that the difference in the spelling of the name on official documents
might give rise to an inconvenience and to protect the official national language for
, national unity and social cohesion.
- In determining whether the refusal to allow the amendment of a marriage certificate
was a disproportionate restriction of their rights under Art. 21 TFEU.
Family Reunification
- Baumbast (C-413/99 [2002]):
- The right conferred on the child of a migrant worker to pursue their education in the
host MS under Art.12 Reg.1612/68 implies that the child has the right to be
accompanied by the person who is their primary carer, who is thus able to reside with
the child during their studies [63].
- This also gives a parent, who is the primary carer of the children, irrespective of their
nationality the right to reside with them in order to facilitate the exercise of that right
even if the parents have divorced or has ceased to be a migrant worker. [75]
- Mrs Baumbast, a columbian national, had children in the UK with a German man. The
elder has colombian nationality and the younger has both dual columbian-german
nationality. The family were granted residence permits for 5 year, but later they were
denied indefinite leave to remain
- R was a US citizen who had children with a French man, who she subsequently
divorced. The children had dual US-French nationality and she moved to the UK,
where she was granted leave to remain. After establishing a business, she married a
UK national. She applied for indefinite leave to remain, but while her children were
granted such leave, she was not.
- Zhu and Chen:
- Regardless of the motives of the individuals in travelling to Ireland, to deprive the
mother of residence would effectively deprive the child of the right of residency under
Art. 21(1).
- Chinese couple gave birth to their baby in NI and then were ordered to leave the UK.
- Zambrano:
- Art. 20 is to be interpreted as precluding a MS from refusing a TCN, upon whom his
minor EU-citizen children are dependent, the right of residence and work permit [45]
- This would otherwise mean that the EU children would have to leave EU territory [44]
- Colombian couple applied for asylum in Belgium by the applications were refused.
Two children were born in Belgium, thus gaining Belgian nationality. The Couple
claimed a derived right of residence as recognised by Chen under Dir. 2004/38.
- McCarthey:
- In so far as the Union citizen concerned has never exercised his right of free
movement and has always resided in a MS of which he is a national, that citizen is
not covered by the concept of ‘beneficiary’ for the purposes of Art. 3(1) of Dir.
2004/38, so that Directive is not applicable to him. [39]
- Indeed, the fact that a Union citizen is a national of more than one Member State
does not mean that he has made use of his right of freedom of movement. [41]
- It follows that Article 3(1) of Directive 2004/38 is to be interpreted as meaning that
that directive is not applicable to a Union citizen who has never exercised his right of
free movement, who has always resided in a Member State of which he is a national
and who is also a national of another Member State. [43]
- Dual UK and IRE national in the UK sought derived residence for her Jamacain
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