Examining Rights Duties and Membership

Part A

The concept of citizenship includes three interconnected strands: rights and duties of citizens, membership of the community and participation in the community. The concept of European Union (EU) citizenship includes these three strands of citizenship so that the citizenship of EU citizens may be thought of as complete; this is important because EU treaties, directives and other legislation have sought to provide citizenship rights to the EU citizens. This essay critically discusses Union citizenship as fundamental status of nationals of member states.

The Treaty on European Union of 1992 (Maastricht Treaty) gave considerable importance to European citizenship, including the provisions related to EU citizenship in Part Two, Article 8 of which provides that “Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.” The Maastricht Treaty also provided the right to free movement and residence for EU citizens within the territory of the EU. These provisions reinforced the idea of right of EU citizens to the rights of citizenship under the EU. The Lisbon Treaty and the EU Charter of Fundamental Rights have further strengthened these rights of EU citizenship. The Treaty on the Functioning of the European Union (TFEU) also provides important rights of citizenship in Article 20, (equality of citizens between Member States); and Article 21 (right to free movement and residence).

The issue of citizenship is considered to be an important one as may be noted with respect to the judgment of the European Court of Justice (ECJ) in Grzelczyk, where the court observed:

“Union citizenship is destined to be the fundamental status of nationals of member states, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such limitations as are expressly provided for.”

The significance of the statement of the ECJ in Grzelczyk is that the ECJ accepted for the first time the fundamental status of the EU citizenship for the EU citizens. This is not completely a novel concept however, because in earlier cases as well, the ECJ had considered that the national laws on citizenship of the EU member states must have due regard to community laws on citizenship. The Micheletti case is important here and can help explain the significance of fundamental status. In this case, the ECJ observed that once EU citizenship is established by an individual, it is not open to the state to challenge the EU citizenship or refuse to recognise it, even if there is a duality of citizenship involved in such cases as this would undermine the rights and freedoms associated with EU citizenship. Therefore, in Grzelczyk, when the ECJ was holding in favour of fundamental status of EU citizenship, it was also reierating the principle laid earlier in Micheletti that once citizenship status is affirmed, it acquires fundamental status.

Grzelczyk, when the ECJ was holding in favour of fundamental status of EU citizenship, it was also reierating the principle laid earlier in Micheletti that once citizenship status is affirmed, it acquires fundamental status. After Grzelczyk as well, the ECJ has noted that citizenship laws of member states must have regard for the EU laws. In Martinez Sala v Freistaat Bayern the Court of Justice held that Article 21 (1) TFEU is a ‘primary right’. The significance of the jurisprudence developed by the ECJ in cases like Sala, Micheletti, and Grzelczyk, is that the court has effectively developed the principle of non-discrimination on grounds of nationality as a core component of EU citizenship, which seen from a fundamental status point of view, considerably restricts the rights of states to discriminate against EU citizens.

An important aspect of the Grzelczyk decision is that the ECJ has sought to delink economic activity and residence in certain circumstances. In other words, while earlier social benefits in an EU member state were related to those who move to be economically active, now after the Grzelczyk decision, the normative debate on the meaning and implications of Union citizenship has become linked to protection of individual rights and not just to those who are economically active. In Grzelczyk, the ECJ refused to allow Belgium to restrict the rights of the individual to be paid a minimum subsistence allowance on the ground that he was not a Belgian national and was a student from France. The cases decided after Grzelczyk have seen the ECJ allowing EU citizens to claim rights in member states even if they are not undertaking economic activity. This is exemplified in the case of Baumbast, which involved Baumbast, a German national who was refused a renewed residence permit after ceasing work in the UK, while his children attended general education courses in the UK. Upholding the right of the children to continue their education in the UK, the ECJ held that citizens of the Union are not mandated to pursue an economic activity in order to enjoy the rights provided by EU treaties.

There has been further strengthening of the rights of the EU citizens under the Citizenship Directive (EU Directive 2004/38/EC), which provides the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. The Citizenship Directive aims to provide benefit to citizens who stay longer in a Member State and may not be involved in economic activity. The ECJ has already been sympathetic to such citizens as seen in Commission v Belgium, where the court held that annulment of marriage does not lead to loss of the right of residence of family members of the worker. This was also reflective of delinking of citizenship rights from economic activity.

The delinking of EU citizenship rights from economic activity may have perverse results for the member states of the EU. This can be seen in the case of Chen, wherein the court held that a minor with Irish nationality, in care of a parent who is a third-country national with sufficient resources for caring for the minor, would still have the right to residence for an indefinite period in the UK. The issue of the primary carer parent, a third party national with sufficient resources to care for the child was not taken into consideration, which meant putting a burden on the UK. Similarly, in Rothman, the ECJ did not allow Germany to strip Rothman’s nationality (acquired through naturalisation), on the grounds of his having committed fraud in the application process by failing to disclose criminal proceedings in his state of origin, Austria based on the principle of proportionality.

The problem with the approach of the ECJ in Grzelczyk and subsequent cases is it challenges the classical notion of the state’s exclusive jurisdiction or competence over nationality related matters. With these judgments, the ECJ has over the period of time, eroded the jurisdiction of Member States in these matters. The EU treaties like TFEU, did seek to uphold citizenship status but it is arguable that it was to be delinked with economic activity, which is the result of the line of reasoning adopted by the ECJ.

Part B

The judgment in Keck, is significant for putting an end to a controversy about the scope of Article 34 of the TFEU (earlier Article 28 of EC Treaty). Article 34 of the TFEU relates to the obligation of the Member States to respect the principles of non-discrimination and of mutual recognition of products that are lawfully manufactured and marketed in other Member States. In other words, Article 34 relates to free movement of goods in EU Member States. In Keck, the European Commission observed that with this judgment the case law on the free movement of goods was completed. However, this observation is open to critique especially in light of the post Keck judgments.

It has been stated that the claim that Keck completed the case law on free movement of goods is not wholly without foundation. This is because Keck had been able to develop principles for interpretation of Article 34 of the TFEU in a way that would balance with the ability of Member States to regulate their economy and pursue public policy objectives other than promoting trade. In the case, the impugned French legislation, which did not permit selling of goods at prices below the wholesale price (for regulating cut throat competition), was upheld by the ECJ as not being contrary to then Article 28 EC Treaty. The French law, which was essentially an anti-dumping law, was not considered to be a measure regulating trade because it applied to all traders in the same way and was merely a selling arrangement, which do not constitute a measure having equivalent effect to a quantitative restriction on trade between Member States. The reason why Keck was supposed to be completion of the case law on this issue, was that the ECJ had in a way issued a fiat that selling arrangements would be outside the scope of free movement of goods.

The balancing approach suggested in Keck is that of legal “categorisation”, which “allows classification of facts in disputes within existing legal categories or redefining or recreating new categories. Specific categories developed by ECJ was an attempt at limiting the instances in which such balance would be required. The categorisation was between the national measures that were in the nature of selling arrangements, and other measures, was considered by some to be an arbitrary classification, made by the court as a response to the flood of litigation in the post Dassonville period.

Secondly, in Keck the ECJ abandoned the overbroad definition of Measures Equivalent to a Quantitative Restriction (MEQR). The aim of prohibition of the MEQR was to increase levels of trade between Member States so that using this provision, any state regulation that would have a negative effect on a credible opportunity of trade will be struck down. The European Commission had also thought that it had said the last word on MEQR in its decision in Dassonville, in which case, the classic definition of MEQR was given as those trading rules enacted by Member States which are capable of hindering intra-Community trade. Dasonville approach required first the consideration of whether there is a barrier to trade between Member States, and if so, then considering if there is an alleged justification. In Keck, the court responded to the post Dassonville period pressure on itself to stretch the boundaries of MEQR by limiting the definition and by adopting an approach of legal categorisation.

Despite these developments in Keck, it would be hard to say that the court had completed its case law because post Keck there has been some revisiting done by the court. In Keck, the ECJ devised the method of legal categorisation, especially in context of selling arrangements by the Member States. Case law after Keck has not really consistently abided by the method. In Mickelsson and Ross, the court did not refer to Keck and the dichotomy between selling arrangements and product requirement. Other cases of the ECJ recently have also stayed clear of mentioning Keck. In fact, after the decision in Ker-Optika bt, Keck has not been referred to by the ECJ. Indeed, the recent case law of ECJ has seen a return to the overbroad definition of MEQR and restriction of the legal categorisation approach and a return to an approach that seeks to focus more on balance between conflicting interests and values.

In Alfa Vita, the 3 tier test was proposed for testing the compatibility of national measures with the Article 34 TFEU. The first is that there should be no direct or indirect discrimination based on nationality; the second is that any additional costs imposed on goods that can impede trade (including selling arrangements) be under scrutiny of the freedom of goods; and the third is that the question whether measures have an equivalent effect shall be determined by whether they impede market access or where intra-Community trade becomes more difficult than trade within the national market. The 3 tier test was applied solely by the court in some cases. These cases showed that the 3 tier test and not the Keck test could be applied autonomously. At the same time, there are cases where Keck continued to be applied. For instance, the court held in Pelckmans:

“Art 34 TFEU... [does] not apply to national rules concerning the closure of shops that are enforceable against all economic operators pursuing activities within the national territory and that affect, in the same way, in law and fact, the sale of domestic products and of products from other Member States.”

Thus, in Pelckmans the court applied the Keck test in its traditional sense. However, it has been noted that the cases where the 3 tier test has been applied, have also increased in number. Moreover, in ANETT, the court has held that Article 34 will apply to all those trading rules that have the effect or object of treating goods coming from other Member States less favourably; rules that lay down requirements to be met by such goods; and any measure which hinders access of products to the market of a Member State. It has been observed that the decision in ANETT has the effect of turning back to the application of the Dassonville-formula “to the fullest extent. However, it has also been noted that the court has used elements of Keck test to ensure that the flood of litigation or the Sunday Trading cases can be dealt with by not placing the burden only on the Member States but also defining the rules for application of the proportionality test and defining who carries responsibility. Therefore, the court has combined the Keck test with the inclusion of selling arrangements, into the 3 tier test to come up with a more nuanced approach to freedom of movement of goods.

The introduction of the 3 tier test and its application in a number of cases show that the Keck test was not the last word on freedom of movement of goods. This is not to say that Keck is not applicable anymore; but that the selling arrangements that were excluded from movement of goods are now a part of the movement of goods. This means that the court did not complete the case law in Keck like it thought it did. Keck did contribute importantly by limiting the flood of litigation; and the new approach in 3 tier test follows Keck’s example in that context. However, the court has revisited the Keck test and changed an important aspect of the test by including selling arrangements in movement of goods.

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Table of cases

• Alfa Vita Vassilopoulos and Carrefour- Marinopoulos v Elliniko Dimosio and Nomarchiaki Aftodioikisi Ioanninon [2006] ECR I-8135.
• Asociación para la Calidad de los Forjados (Ascafor), Asociación de Importadores y Distribuidores de Acero para la Construcción (Asidac) v Administración del Estado et al, C- 484/10, EU:C:2012:113
• Asociación Nacional de Expendedores de Tabaco y Timbre (ANETT) v Administración del Estado, C-456/10, EU:C:2012:241.
• Baumbast and R v Secretary of State for the Home Department [2002] ECR I-07091.
• Carlos Garcia Avello v Belgian State [2003] ECR I-11613.
• Commission v. Lithuania (C-61/12) March 20, 2014
• Commission v Poland (C-639/11), March 20, 2014
• Commission v. Spain (C-428/12) April 3, 2014.
• Elenca Srl v. Ministero dell’Interno, C-385/10, EU:C:2012:634
• Grzelczyk v Centre Public d'Aide Sociale d'Ottignes-Louvain-la-Neuve Case C- 184/99 [2001] ECR I – 6193.
• Janko Rottman v Freistaat Bayern [2010] ECR I-01449.
• Keck and Mithouard [1993] ECR 1 6097.
• Ker-Optika bt v. ÀNTSZ Dél-dunántúli Regionális Intézete, (C-108/09) [2010] E.C.R. I- 12213.
• Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department [2004] ECR I-09925. Mario Vicente Micheletti and others v Delegación del Gobierno en Cantabria [1992] ECR I- 04239.
• Martinez Sala v Freistaat Bayern [1998] ECR I - 2691. Mickelsson and Ross (C-142-05) [2009] ECR I-4273. Pelckmans Turnhout NV v Walter Van Gastel Balen NV and Others, C‐483/12, ECLI:EU:C:2014:304. Procureur du Roi v. Dassonville Case 8/74 [1974] E.C.R. 837. Scotch Whisky Association and Others v The Lord Advocate and The Advocate General for Scotland, C-333/14, EU:C:2015:845.
• Press 2013 Carrera S, In Search of the Perfect Citizen?: The Intersection Between Integration, Immigration, and Nationality in the EU (BRILL 2009).
• Murray F, The Rise and Rise of EU Citizenship: In Democracy and Rule of Law in the European Union (TMC Asser Press 2016).
• Eeckhout P, ‘The EU Charter of Fundamental Rights and the federal question (2002) 39 Common Market Law Review 945.
• Gormley LW, ‘Free Movement of Goods and Their Use-What is the Use of It’ (2009) 33 Fordham Int'l LJ 1589.
• Jesse M, ‘What about Sunday Trading...? – The Rise of Market Access as an Independent Criterion under Article 34 TFEU’ (2012) 2 European Journal of Risk Regulation 437.
• Reich N, ‘The “November Revolution” of the European Court of Justice: Keck, Meng, and Audi Revisited’, (1994) 31 Common Market Law Review 459.
• Weatherill S, ‘Free Movement of Goods’ (2006) 55(2) International & Comparative Law Quarterly 457.

Conferences

• Lianos I, ‘In Memoriam Keck: the reformation of the EU law on the free movement of goods’, CLES Research Paper series 5 (2014).
• Purnhagen KP, ‘Keck is Dead, Long Live Keck?–How the CJEU Tries to Avoid a Sunday Trading Saga 2.0’ (Wageningen Working Paper Law and Governance 2018/01). Shuibhne NN, Legal implications of EU enlargement for the individual: EU citizenship and free movement of persons (Paper presented at the ERA-Forum 2004).