Flashcards in Citizenship I Deck (19)
Citizenship of the EU shall be additional to, and NOT replace, national citizenship.
This expands on the concept of EU citizenship and provides that citizens shall have, inter alia, the following rights:
- Right to vote in elections to European Parliament
- Right to move and reside freely across the MS
- Access to EU institutions and redress mechanisms
Traditional CJEU position on citizenship was that only citizens of MS could also qualify as EU citizens - parasitic citizenship idea.
CJEU held that national rules on citizenship MUST have due regard to the notion of EU citizenship - so although national authorities may be able to deprive Rottmann of his national citizenship, they must show that it is necessary and proportionate to do so.
This represented a move away from the traditional parasitic citizenship model and suggested that EU citizenship is not contingent upon national citizenship.
This is the key Treaty provision in relation to rights of residency of EU citizens. Art.21(1) provides that every EU citizen has the right to move and reside freely throughout the MS, subject to limitations set out in the Treaty and measures adopted to put these into effect.
Art.6 Directive 2004/38
This provides that citizens have an unconditional right of residence for up to 3 months in another MS.
Art.7 Directive 2004/38
This sets out the requirements for a conditional right of residence for a period over 3 months. In order for an individual to invoke their right of residence under Art.7, they must either be:
b) have sufficient resources for themselves and their family and comprehensive sickness insurance so as to NOT become a burden on the MS
c) a student with comprehensive sickness insurance
d) family members of someone complying with one of the first three requirements
Art.7(3) Directive 2004/38
Conditional right of residence over 3 months is maintained if the economically active persons are:
- temporarily sick
- in involuntary unemployment after completing a fixed term contract under one year
Art.16(1) Directive 2004/38
This provides for the right of permanent residence after 5 years of residing in a particular MS. Permanent residence under Art.16(1) requires continuous residence, although breaks in continuity for less than 6 months per year are explicitly allowed under Art.17(3).
Note that this also applies to family members of workers.
Art.18 prohibits any discrimination on the grounds of nationality within the scope of EU law
Traditional approach of the CJEU in relation to EU citizenship was that once an MS allowed a citizen to reside in the MS, it must grant them equal treatment - this means that the MS cannot have separate conditions for migrant citizens e.g. in relation to claiming child benefits.
This demonstrates the CJEU's traditional approach which was a discrimination-based approach - the refusal to grant Martinez Sala the benefit to which she was entiteld through her EU citizenship on the basis of her nationality was discriminatory and thus prohibited under Art.18 TFEU
This was a subsequent case to Martinez Sala where the CJEU took a hybrid non-discrimination and restrictions-based approach, rather than a pure discrimination-based approach to EU citizenship.
CJEU held that the Belgian rule which required those claiming for unemployment benefits to have received secondary education under Belgian law was contrary to EU citizenship rights because allowing such restrictions would prevent people from exercising their free movement and residence rights under Art.21 in the first place.
Tas and Tas-Hagen
CJEU took a restrictions-based approach and held that national legislation which places certain of the nationals of the MS concerned simply because they have exercised their free movement rights under Art.21 to move to another MS is a restriction on the freedoms in Art.21 TFEU.
So CJEU said that it is unlawful to deny certain rights to some citizens of a particular MS simply because they have exercised their free movement rights and rights of residence under Art.21 TFEU
French student in Belgium sought to claim for Belgian minimum subsistence allowance - but Belgian law said that for students, only Belgian nationals can claim this.
CJEU held that the Treaty precludes MS from making entitlements conditional for other MS nationals where they lawfully reside in the host MS, and where no such condition applies to the nationals of the host MS.
So the CJEU took a similar approach to Martinez-Sala - provided a citizen is lawfully residing in another MS, then the MS cannot discriminate against them on the basis of their nationality by making them fulfil conditions that domestic citizens do not have to fulfil. So EU citizens did not need to fulfil economically active conditions traditionally in order to claim equal treatment e.g. to benefits of other MS - only needed to reside their lawfully.
Difference with Martinez-Sala was that this referred to conditions in Directive 2004/38 - these did NOT need to be complied with for non-economically active citizens. Based on the principle of solidarity - MS should allow these non-economically active citizens to stay and claim as the same should apply the other way around.
CJEU affirmed the approach in Grzelczyk - provided non-economically active citizens are lawfully residing in another MS, then they can claim for the principle of non-discrimination if no such conditions apply to host MS nationals.
However, CJEU did add that the MS may be able to REMOVE the individual from their territory if they are non-economically active and do NOT meet the conditions laid out in Directive 2004/38.
Lair and Brown
Claims on the basis of non-discrimination under Art.18 TFEU must fall within the scope of EU law - if they do not, then no claim can be made by non-economically active citizens on the basis of non-discrimination.
CJEU held that maintenance assistance for students did NOT fall within the scope of Art.18 TFEU, whether in the form of a loan or a grant. Therefore, they could not claim for non-discrimination for this assistance to be paid to them.
CJEU took a different approach RE maintenance grants - held that EU citizens must not become an unreasonable burden on the finances of the host MS, but afforded individuals the right to claim for student maintenance assistance provided they demonstrate a certain degree of integration into the society of the host MS.
The degree of integration CAN be done by reference to the time for which the non-economically active students have resided in that MS.
Dano and her son were Romanian nationals living in Germany. Dano was NOT working and did not comply with the conditional residence requirements under Art.7 Directive 2004/38, and wanted to claim for a German subsistence benefit.
CJEU reversed its position in Grzelczyk and held that citizens can only claim equal treatment if their residence complies with the conditions of Directive 2004/38. This means that per Art.7 of the Directive, they must either be a worker OR have sufficient resources and comprehensive sickness insurance so as to not be an unreasonable burden on the MS.
Note that the CJEU also shifted the focus of the citizen's non-discrimination claim towards the Directive also - court said that the Directive gives effect to Art.18 TFEU.