Interpreting the Scope and Effect of European Union Citizenship

Introduction

The Maastricht Treaty 1993 established European citizenship. Articles 9 of TEU and 20 of TFEU have established that a citizen of a member state is also an EU citizen (Liakopoulos, 2020). The concept of European citizenship is beyond the constraint of state-based regimes of citizenship (Kostakopoulou, 2018). Cases heard by the Court of Justice of the European Union (“CJEU”) have created literature debates and debates over the concept of EU citizenship (Yong, 2019, p.1). This essay proposes that CJEU’s role has been only baby steps in interpreting the scope and effect of EU citizenship.

CJEU discourse in advancing the concept of EU citizenship

The introduction of EU citizenship entitles nationals of member states to enjoy EU law as EU citizens and not as migrants (Barnard & Peers, 2014). This is affirm in many cases, including the case of Grzeczy, where CJEU held that nationals of member states have EU citizenship and are entitled to same treatment in law irrespective of their nationality (Grzeczyk Case 184/99, at 36). EU citizenship is primarily subject to having nationality of a member states (Yong, 2019, pp.3-4). The Rottmann judgment of 2010 confirms this view. CJEU ruled that when a member state withdraws the nationality of an EU national, the national cannot posses the nationality of any member state and as well loses his EU citizenship (Janko Rottmann v Freistaat of Bayern Case C-135/08 on 2 March 2010). CJEU has struggled to interpret the scope and effect of EU citizenship. The instable EU political environment might have affected CJEU’s interpretation of EU rights into EU citizenship laws (Yong, 2019, p.2). The activism of CJEU is seen in the case of Blaise Baheten Metock and Others v Minister for Justice, Equality and Law Reform (Case C-127/08). CJEU recognised the right of entry and residence of non-EU nationals who are family members of EU member nationals. However, CJEU has been seen as possessing an institutional loyalty to the founding policy of EU internal market. In that context referring to the fundamental rights aspect, CJEU seem to project certain legal uncertainties (Yong, 2019, p.41). CJEU did not uphold EU citizenship and did not address key legal provisions some cases. In European Commission v United Kingdom of Great Britain and Northern Ireland (Case C‑308/14), the Commission that time had received multiple complaints that the UK authorities had refused claims for certain social benefits on the ground that the claimants did not have right of residence in those member state. CJEU held that UK has the competence to refuse granting social assistance benefits to EU migrants as the claimants are not exercising Treaty rights within the host member state. In such context, CJEU could be considered to have no value for EU citizenship. CJEU is a political actor. As such, CJEU has created a controversial and complex body of case law to give meaning to the fundamental basis of EU citizenship (Case, 2017). In Ruiz Zambrano, CJEU has to consider question of EU citizenship law that precludes Belgium from refusing the claimant from exercising his rights of residence and a work permit. CJEU ruled that the claimant could derive his rights to work and residence from EU. CJEU ruled that the minor children of the claimant, who are EU citizens, cannot be deprived of the right to stay within EU (Ruiz Zambrano C-34/09, of 8 March 2011). In Grzelczyk, CJEU promoted a far-reaching opinion about EU citizenship as “destined to become the fundamental status of nationals of the Member States” (Grzelczyk Case C‑184/99 [2001] ECR I‑6193, at 31). CJEU used EU citizenship as a means to give access to member states’ national assistance system. In Zambrano (at para 42), CJEU stated that Article 20 of TFEU should be interpreted as precluding a member state measures that could deprive citizens of the EU of genuine enjoyment of the “substance of rights” arising from being an EU citizenship. The cases do not provide consistent rulings in terms of the substance of EU citizenship. It is argued that CJEU has not specified the ‘essence of rights’ of EU citizenship. This may produce disastrous consequences. This is a result of the lack of meaning to the substance of such rights (Kochenov, 2013). However, CJEU recognises individuals as autonomous legal actors within the EU legal framework. This gives effect to individual rights. The close intertwining between national citizenship and EU citizenship is due to the role of CJEU (Bauböck, 2018, p.3).

Giant leaps or baby steps

Given the CJEU position so far, it could be observed that CJEU has taken baby steps in formulating measures of enforcing the Maastricht Treaty promise of European citizenship. CJEU’s outcome is based on consensus (Lenaerts, 2013). For such consensus, in hard cases, its discourse is not as profuse as it would be if there are dissenting opinions (Lasser, 2009). In this order, for preserving the principle of consensus, there is no ‘long jumps’ adopted by CJEU while determining rationale behind the solution to issues of constitutional importance. Its argumentative discourse is, thus, built up progressively (Skouris, 2014). The rulings in the cases so far show that CJEU has adopted a ‘stone-by-stone’ approach (Lenaerts, 2015). In that context, it is argued that such approach is the appropriate manner to build a solid edifice governing the rights attached with the EU citizenship status (Lenaerts, 2015).

Conclusion

This essay has shown that debates are inevitable for determining the discourse and the level of activism that CJEU has been undertaking to keep the promise of EU citizenship provided under the Treaty. On the face of it, it might be an appropriate observation that the language defining the EU citizenship is incomplete. However, CJEU rulings and activism says otherwise. They may not be treated as being a giant leap. The reasons are found to be based on the principle of consensus, where on hard cases, such as European Commission case, CJEU has to strike a balance between factors including political and national judicial measures.

Question 2

a. Mesut can enforce the right to freedom of movement being a worker. Article 45 of the TFEU provides this right as a fundamental right of workers. This Article prohibits discrimination based on nationality in regard to employment. It entitles Mesut, as an EU worker, the right to accept a job offer made and to move freely within the country. Mesut is an EU citizen and every EU citizen has the right to exercise freedom of movement. Directive 2004/38/EC has introduced EU citizenship as the basic status for nationals like Mesut when they can exercise their right to move and reside freely in EU. ECJ has held that ‘worker” is an EU law concept and is subject to any national classification of workers and self-employed people (Hoekstra Case 75/63). If Mesut is obliged to work for another, his work is for monetary reward or payment, or he is subject to the direction and control of another, Mesut is a worker (Lawrie-Blum v Land Baden-Württemberg (1986) Case 66/85. This test is necessary to determine the whether a person is a work or not for the purposes of Article 45 of TFEU. In Kempf, ECJ dealt with the issue of whether or not a worker with below minimum wage would qualify as a worker and needed be supplemented by public support. The ECJ affirmed it and gave a broad definition of worker for the purpose of upholding the freedom of movement for workers. It held that exceptions to and derogations must be interpreted strictly (case C-139/85 Kempf). Mesut is a low wage earner. Based on this ruling, he will have right to the bus pass. In Grzeczy, where CJEU held that nationals of member states have EU citizenship and are entitled to same treatment in law irrespective of their nationality (Grzeczyk Case 184/99, at 36). As such, Mesut as an EU citizen cannot be treated differently once he has entered the host state’s labour market. He cannot be denied the financial benefit and avail the free bus pass. Hence, the Spanish Government breached EU law in their refusal to grant a free bus pass to Mesut. b. Directive 2004/38/EC has introduced EU citizenship as the basic status for nationals like Mesut when they can exercise their right to move and reside freely in EU. Article 45 of the TFEU entitles Mesut right to stay on a host state for the purpose of employment. EU rules allow an EU national to travel with their non-EU registered partner. Thus, an EU national can be joined by their non-EU registered partner (EU Commission, 2021). In this case, his partner Patrice is from Senegal. Patrice is not an EU national. It must be noted that only a registered partner can move with the EU worker. EU states facilitate the entry and residence of a partner if the couple demonstrate to have a durable relationship (EU Commission, 2021). In this case, Patrice is not a registered non-EU partner. The EU rules regarding right to entry and residence and to free movement with the EU territory apply to registered partnership. Further, Pratice and Mesut relationship has been a recent one. They began living together shortly after meeting. As such, the reason of not being a registered partner and the lesser possibility of demonstrating their relationship to be a durable relationship will deny Parice the right to entry and residence in Italy. c. Citizenship Directive, Directive 2004/38/EC mainly regulates the exercise of the fundamental right of freedom of movement and residence and the restrictions on the right. Article 27 of the Directive provides for expulsion of EU national from a host member states on the ground of public policy, public security or public health. Public policy and public security can serve as grounds for expulsion of EU citizens who have resided in the host Member State for less than five years (Maslowski, 2015). Member States have the discretion to determine the requirements of public policy (Rutili case (C-36/75)). However, the concept of public policy must be strictly interpreted as it is a justification for derogating from right to freedom (Van Duyn case (C-41/74)). Article 14(3) of the Directive 2004/38/EC provides that a member state cannot have the expulsion measure as an automatic consequence. Article 14(4)(a) provides that if an EU citizen is a worker or a self-employed person, an expulsion measure may in no case be adopted against them. Further, an EU national of member state which is a signatory to ECHR, has access to Article 47 of EU Charter of Fundamental Rights, which provides for right to an effective remedy including the right to fair trial fair and public hearing. This right is enshrined in many cases, including Johnston Case 222/84 [1986] ECR 1651; Heylens Case 222/86 [1987] ECR 4097, and Borelli Case C-97/91 [1992] ECR I-6313. The prevailing exception to the derogation to the fundamental rights to freedom of movement and residence threatens the fundamental status of EU citizenship. Such threat arises from the pressure exercised by national executive power. This may give rise to eroding the effect and significance of EU citizenship (Ferreira, 2013). Article 263 of TFEU entitles private litigants to bring direction before the CJEU against a member state for breach of EU laws. In the current case, EXPIRAR has a right provided under Article 263 to bring direct action against Italy for breach of EU laws. As such, Mesut has not breached any law that would subject him to any state action. Italian authorities have a right to expel an EU member from its national territory based on the Article 27 ground of public policy, security or health. However, such authority to exercise the expulsion right must be strictly applied. In this case, Italy has used the ground as an automatic consequence. Such use of the ground in this case cannot be considered a strict interpretation and hence, is an automatic enforcement action, which is prohibited under Article 14(3) of the Directive. Mesut being a worker cannot be subject to the expulsion under Article 14(4)(a). Italy has also breached Mesut’s rights to fair trial under Article 47 of EU Charter.

Bibliography

Barnard, C. & Peers, S., 2014. European Union Law. Oxford University Press.

Bauböck, R., 2018. Debating European Citizenship. Springer International Publishing.

Case, C., 2017. A. Court of Justice The ECJ sacrifices EU citizenship in vain: Commission v. UnitedKingdom. Common Market Law Review , 54, pp.209-44.

Case, C., 2017. A. Court of Justice The ECJ sacrifices EU citizenship in vain: Commission v. UnitedKingdom. Common Market Law Review , 54, pp.209-44.

Craig, P. & Búrca, G.D., 2011. EU law: text, cases, and materials. Oxford University Press.

EU Commission, 2021. The right to reside. [Online] Available at: https://ec.europa.eu/social/main.jsp?catId=460 [Accessed 12 February 2021].

Ferreira, N., 2013. Testing Liberal Norms: The Public Policy and Public Security Derogations and the Cracks in European Union Citizenship. Warwick School of Law, Legal Studies Paper No. 2013/18, p.18.

Hailbronner, K. & Thym, D., 2011. Case Law, C-34/09 Gerardo Ruiz Zambrano v. Office National de l’emploi (Onem). Common Market Law Review , 48, pp.1253-70.

Kochenov, D., 2013. The right to have what rights? EU citizenship in need of clarification. European Law Journal , 19(4), pp.502-16.

Kostakopoulou, D., 2018. Scala Civium: Citizenship Templates Post-Brexit and the European Union's Duty to Protect EU Citizens. JCMS: Journal of Common Market Studies, 56(4), pp.854-69.

Lasser, M.E., 2009. Judicial deliberations: a comparative analysis of judicial transparency and legitimacy. Oxford University Press.

Lenaerts, K., 2013. How the ECJ thinks: a study on judicial legitimacy. Fordham International Law Journal, 36(5), pp.1302-71.

Lenaerts, K., 2015. EU citizenship and the European Court of Justice׳ s ‘stone-by-stone’approach. International Comparative Jurisprudence , 1(1), pp.1-10.

Liakopoulos, D., 2020. Critics and aspects of the European citizenship according to the CJEU: From Rottmann to Tjebbes and others. Megatrend revija , 17(1), pp.1-26.

Mars, S.d., 2020. EU Law in the UK. Oxford University Press.

Maslowski, S., 2015. The Expulsion of European Union Citizens from the Host Member State: Legal Grounds and Practice. Central and Eastern European Migration Review, 4(2), pp.61-85.

Seubert, S., Eberl, O. & Waarden, F.v., 2018. Reconsidering EU Citizenship: Contradictions and Constraints. Edward Elgar.

Skouris, V., 2014. The Influence of Common Lawyers on European Union Law. In 40th Centre of European Law Annual Lecture., 2014. King׳s College London. Il diritto dell׳Unione europea.

Yong, A., 2019. The Rise and Decline of Fundamental Rights in EU Citizenship. Bloomsbury Publishing.

Take a deeper dive into Institutional Framework of the European Union with our additional resources.