Dit is een samenvatting voor het vak European Law en gaat over EU citizenship, free movement of workers en free movement of persons. De samenvatting is in het Engels en bevat ook de jurisprudentie behorende bij het thema.
Summary week 18
Chapter 22 – citizenship of the EU
22.1. introduction
Many provisions are no longer addressed to the MS but to citizens of the EU.
The rights of EU citizens are not limited to Articles 18-25 TFEU, but are also
contained in other provisions of the Treaties.
22.2. EU citizenship as a complement to citizenship of a MS
EU citizenship is based on nationality of a MS. See art 20 TFEU.
Matters relating to nationality are within the exclusive prerogative of a MS, but
the MS must, when exercising their powers in the sphere of nationality, have due
regard to EU law.
The requirement of nationality of a MS as a prerequisite of EU citizenship means
that nationals of third countries, refugees and stateless persons legally residing in
a MS do not acquire any rights under Art 20 TFEU. To remedy (verhelpen) this
situation two directives were adopted. But some MS are not bound by these
directives (right to opt-out).
22.3. judicial developments of the concept of EU citizenship
Article 20 TFEU establishes EU citizenship.
Art 21: free movement. The right to free movement of a member of an EU
citizen’s family is not an independent right but derives from the right conferred
upon the EU citizen, unless the family member himself/herself has rights as a
national of a MS. A member of an EU citizen’s family who is a national of a third
country cannot exercise the right to free movement unless this is done in parallel
with the EU citizen.
The case law shows that the concept of EU citizenship is most relevant to persons
who are not economically active. There is no need to examine the applicability of
Art 20 (1) and 21 (1) if other, more specific articles of the Treaties are applicable,
unless they cover some aspects and not the whole matter under consideration.
Art 21 (1) has direct effect so allowing EU citizens to rely on it before national
courts.
22.3.1. the doctrine of ‘substance of rights’ and internal situations
Recent case law shows that the status of EU citizen can be relied upon in the
citizen’s home MS, even though the citizen has not exercised his right to free
movement. The ECJ emphasised that there’s a difference between purely internal
situations, which have no connection with EU law, and situations which have
factors linking them with EU law. Accordingly, a situation of an EU citizen who has
not exercised his right to free movement, for that reason alone cannot be
assimilated with a purely internal situation. The citizenship is intended to be the
fundamental status of EU citizens and thus of relevance when national measures
deprive (ontnemen) an EU citizen of enjoyment of the substance of rights
conferred on him by virtue of that status. This new approach, which can be called
the doctrine of the ‘substance of rights’, was introduced by the ECJ in case Ruiz
Zambrano.
In case Dereci, the issue was whether art 20 prevents a MS from refusing
residence permits to non-EU citizens, who are members of a family of EU citizens,
when those EU citizens are not dependant for subsistence on their family
members who are third country nationals.
, The ECJ identified two criteria for application of the ‘substance of rights’ doctrine
introduced in Zambrano. The first refers to the determination of whether an EU
citizen will be forced to leave the territory of the EU in order to reside with a non-
EU family member. Accordingly, a MS will be in breach of EU law if an EU national
would have to leave the territory of the EU in order to reside with a non-EU family
member. If an EU citizen has an option to reside with a non-EU family member in
another MS, there will be no breach of EU law. This option was not available in
Zambrano (minor kids). The ECJ held that the principles in Zambrano apply only
in very exceptional situations. The second is based on the enjoyment of human
rights.
It is to be noted that the doctrine of ‘substance of rights’ applies not only to
immigration cases but also to other matters.
22.3.2. application of Articles 20 and 21 (1) TFEU to non-
economically active EU citizens
See article 7 para 1 (b) of Directive 2004/38 for the conditions.
See also art 24 of this directive.
See case Förster. In this case the Court refused to consider the possibility of
existence of a sufficient degree of integration into a host MS’s society based on
any factors other than the completion of a five-year residence period in that
State.
EU citizens who have resided in a host MS for more than five years are
considered fully integrated and thus entitled to all social benefits and all study
finance facilities in that State.
22.3.3 the removal of discrimination, and beyond
The ECJ, when applying the right of EU citizens to equal treatment, has
condemned not only directly and indirectly discriminatory measures, but also
those which put EU citizens ‘at a disadvantage’ because they have exercised the
right to free movement.
With regard to national measures which are directly discriminatory (discriminate
on the ground of nationality), they can only be justified by express derogations
provided for in the Treaties or secondary legislation (Chapter VI directive
2004/38) and must be proportionate toe the objective that a MS seeks to achieve.
Indirectly discriminatory measures and measures which are non-discriminatory,
but prevent/hinder or create an obstacle to the exercise of the right provided for
in Art 21 TFEU, may be justified either by express derogations as above, or by
objective considerations of public interest, and must be proportionate to the
objective that a MS seeks to achieve.
22.3.4. the rights of students
EU students have access to educational institutions in a host MS on the same
terms as local students. However, their entitlement to study finance and social
assistance during the first five years of their residence in a host MS is subject to
conditions set out in Directive 2004/38.
22.3.4.1. access to education
The ECJ created a right to non-discriminatory access to higher education
institutions by including higher education within the term of ‘vocational training’
(beroepsopleiding) and thus bringing it within the scope of the EU Treaty. All
courses other than those which are intended to improve the general knowledge
of students rather than prepare them for an occupation are considered as
vocational courses.
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