Free Movement of People: Workers

Question 1

Article 45 TFEU?

Answer 1

1. Freedom of movement for workers shall be secured within the Union.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
   a) to accept offers of employment actually made;
   b) to move freely within the territory of Member States for this purpose;
   c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
   d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.
4. The provisions of this article shall not apply to employment in the public service.

Question 2

Definition of Worker

Answer 2

The court’s interpretation of ‘worker’ in Art 45(1) is broad. Workers are people under a relationship of subordination of the employer, who are engaged in a genuine and effective economic activity (i.e. thereby excluding activities carried out on such small scale as to be purely marginal and ancillary). Part-time workers are generally considered as workers.

Question 3

Lawrie-Blum definition of workers

Answer 3

German measures restricted access for non-nationals to the preparatory service stage necessary for qualification as a secondary school teacher. Was a trainee teacher a worker?

Held: the essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another in return for which he receives remuneration. A trainer teacher was a worker under Art 45(1). Commentary: the three conditions can be summarised as:

i) Performs service of economic value
ii) Under the direction of another
iii) Receives remuneration in return

Question 4

Meeusen [1999] on definition of worker

Answer 4

employment requires provision of services within “relationship of subordination”

Question 5

Steymann [1988]

Answer 5

German national lived in the Netherlands and worked there as a plumber. He joined the Bhagwan Community (religious community) and performed plumbing work and general household duties on the community’s premises. He applied for a residence permit to pursue an activity as an employed person. This was rejected.

ECJ Held: such work was important in the way of life of the Bhagwan Community, which in turn provides for the material needs of its members. Here it is impossible to rule out a priori the possibility that S’s work constitutes an economic activity. Commentary: the fact that the work might be seen in conventional terms as being unpaid did not mean that it was not effective economic activity!

Question 6

Brown [1988]

Answer 6

B had dual nationality. He relied on his French nationality in the UK and worked for 9 months in Scotland as a form of ‘pre-university training’, before studying at Cambridge.

ECJ Held: B was a worker and satisfied the three Lawrie-Blum requirements, but he was not entitled to all the social advantages because his employment was merely ancillary to his desired course of study. Commentary: Craig: this decision prevents the abuse of the Art 45 provisions.

Question 7

Bettray [1989]

Answer 7

(rehab) B was undertaking therapeutic work as part of a drug-rehab programme under Dutch social employment law.

Held: paid activity provided by the state as part of a drug rehabilitation programme did NOT represent a genuine and effective economic activity since the work was designed for those who could not take up work under normal conditions and was tailored to an individual’s’ need and was intended to reintegrate them into the employment market. Activities cannot be regarded as a real and genuine economic activity if they constitute merely a means of rehabilitation or reintegration for the persons concerned.

Commentary: Craig: this demonstrates that the purpose of the work was a consideration for the courts! Rather than meet a genuine economic need, the sole purpose of the work here is to rehabilitate the person.

Question 8

Trojani [2004]

Answer 8

T worked for and was under direction of a Salvation Army hostel for about 30 hours a week as part of a programme which integrates individuals to the labour market.

Held: whether this was a real and genuine paid activity is for the national court to decide. The national court must in particular ascertain whether the services actually performed by T are capable of being regarded as forming part of the normal labour market. For that purpose, account may be taken of the status and practices of the hostel, the content of the social reintegration programme, and the nature and details of performance of the services. There was existence of the constituent elements of any paid employment relationship, namely subordination and the payment of remuneration.

Question 9

Levin [1982]

Answer 9

(part-time) L (British) argued that she had sufficient income for her family’s maintenance and applied for a residence permit. L had taken up part-time employment as a chambermaid, but her employment did not provide sufficient means for her support, not being equal at least to the minimum wage prevailing in the Netherlands.

Held: a British woman working part-time as a chambermaid could be a worker even though she earned less than a subsistence wage, since the part-time work constituted an effectives means of improving her living conditions. The effectiveness of EU law would be impaired if the enjoyment of rights conferred by the principle of freedom of movement for workers were reserved solely to persons engaged in full-time employment and earning, as a result, a wage at least equivalent to the minimum wage. This is because part-time employment constitutes for a large number of persons an effective means of improving their living conditions.

Commentary: Craig: the freedom to take up employment is important also because it is a right for the worker to raise his living standard. The purpose or motive of L is immaterial.

Question 10

Kempf [1986]

Answer 10

a part-time music teacher’s income was supplemented by social security benefits. ECJ Held: a worker’s work cannot be on such a small scale as to be purely marginal and ancillary. However, K’s work is NOT marginal or ancillary, even though his income had to be supplemented by the benefits. Once a finding of effective and genuine employment had been made, it was irrelevant whether K subsisted on his earnings or whether his pay was used to add to other family income or was supplemented by public funds.

Question 11

Raulin [1992]

Answer 11

An on-call worker who is not guaranteed any work could be a worker, but it is up to the national court to make the final decision as to who is a worker. Even if number of hours worked is relatively small or only worked for a short period, he can still be a worker.

Question 12

Vatsouras [2009]

Answer 12

a brief minor professional activity engaged by V did not ‘ensure him a livelihood’.

Held: independently of the limited amount of remuneration and the short duration of the professional activity, it cannot be ruled out that the professional activity may be considered as real and genuine, and thereby conferring on the holder the ‘worker’ status

Question 13

Those seeking work

Answer 13

The definition of workers has been extended to cover those seeking work. They must be given at least 3 months to look for work, and cannot be removed if they are continuing to see employment and have a genuine chance of being engaged.

Question 14

Antonissen [1991]

Answer 14

the Belgian migrants in the UK had 6 months to look for work.

Held: A period of 6 months, does not appear in principle to be insufficient to enable the persons concerned to apprise themselves, in the host Member State, of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged and, therefore, does not jeopardize the effectiveness of the principle of free movement. If after the 6-month period, the work-seekers can show that they have a genuine chance of being employed, they cannot be required to leave that host MS. The Art 45(3) freedom entails the right for nationals of MSs to stay there for the purposes of seeking employment.

Commentary: this has been confirmed by Directive 2004/38 (CRD) which makes clear that Union citizens cannot be expelled as long as they can show that they are continuing to see employment and have a genuine chance of being engaged. Craig: this is the court’s purposive approach in the interpretation of Art 45.1

Question 15

Can employers invoke Art 45?

Answer 15

Yes - Clean Car Autoservice [1998] — right of workers to be employed in another Member State necessarily entails right of employers to engage workers in accordance with Treaty Article 45 TFEU may therefore be invoked not only by workers but also by employers, e.g. to challenge provisions of national law which discriminate against foreigners in recruitment process

Question 16

Are the provisions of Art 45 directly effective?

Answer 16

Yes, per Van Duyn

Question 17

Are the provisions of Art 45 horizontally directly effective?

Walrave and Koch [1974]

Answer 17

the rules made by the cycling sporting association (NOT a public or state body) were challenged.

Held: Art 45 would apply even when the work was done outside the community, as long as the legal relationship of employment was entered within the Community. Prohibition of such discrimination does not only apply to the action of public authorities, but extends likewise to rules of any other nature aimed at regulating in a collective manner gainful employment and the provision of services.

Question 18

Are the provisions of Art 45 horizontally directly effective?

Bosman [1995]

Answer 18

the rules made by the football sporting association (NOT a public or state body) were challenged. Held: extended the horizontal direct effect to include private employers

Question 19

Are the provisions of Art 45 horizontally directly effective?

Angonese [2000]

Answer 19

A (Italian) spoke German as his mother tongue. He applied to take part in a competition for a post in a bank in Bolzano. A condition for entry to the competition was a certificate of bilingualism in Italian and German. The certificate was issued by Bolzano authorities after an exam held only in that province. A did not obtain the certificate and the bank rejected him for the post. A argued that the certificate requirement was contrary to Art 45.

ECJ Held: (reaffirming the horizontal effect of Art 45 provisions in Walrave) the prohibition of discrimination on grounds of nationality laid down in Art 45 must be regarded as applying to private persons as well! To require the local certificate has the same effect of discrimination (indirect discrimination). There is a cross-border element (i.e. movement) as he studied elsewhere.

Commentary: Eeckhout: It is not clear whether the horizontal effect of Art 45 goes further than the prohibition of such discrimination.

Question 20

What rights to workers have per Art 45?

Answer 20

a) To accept offers of employment actually made;
b) To move freely within the territory of Member States for this purpose;
c) To stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
d) To remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.

Question 21

What rights do workers have per Regulation 492/11?

Answer 21

Chapter I, Section I: the right of access to a post on non-discriminatory terms
Chapter I, Section II: the right to equal treatment while doing that job

Question 22

What rights do workers have per Art 24(1) CRD 2004/38?

Answer 22

basic principle of equal treatment

Discrimination, direct or indirect, clearly offends Art 45, the Regulation and the CRD

Question 23

Direct Discrimination against workers

Answer 23

Direct discrimination focuses on the aim of the measure. Measures are directly discriminatory where the migrant worker is treated less favourably than the national worker. They can be justified only by express Treaty derogations.

Question 24

Example of direct discrimination against worker

Commission v France (French Seamen) [1974]

Answer 24

A French rule required a ratio of three French seamen to one non-French seaman on a merchant ship. ECJ

Held: this contravened Art 4(1) of Regulation 492/11, which provides that provisions which restrict by number or percentage the employment of foreign nationals in any undertaking do NOT apply to nationals of other MSs. Other EU nationals are treated less favourably than the French nationals. Art 45 was ‘directly applicable’ and would render inapplicable all contrary national law.

Commentary: However, the Regs does allow the employer to require the migrant worker to take a vocational test.

Question 25

Example of direct discrimination against worker

Commission v Italy [2001]]

Answer 25

Italian law provided that private security could only be carried out by Italian security firms employing Italian nationals.

ECJ Held: direct discrimination was found.

Question 26

Indirect discrimination against workers

Answer 26

• Indirect discrimination focuses on the effect of the measure which keep more nationals of other MSs away from the employment offered than domestic nationals. Indirectly discriminatory measures can be justified by express Treaty derogations AND the public interest justification.

Question 27

Indirect discrimination

Scholz [1994]

Answer 27

German lady applied for a job in Italy but selection board refused to take into account her previous employment in Germany. This was indirect discrimination.

Question 28

Indirect Discrimination

O’Flynn [1996]

Answer 28

ECJ Held: for indirect discrimination to be established, it was NOT necessary to prove that a measure in practice affected a higher proportion of foreign workers, but merely that the measure was ‘intrinsically liable’ to affect migrant workers more than nationals.

Question 29

Indirect Discrimination

Ugliola [1969]

Answer 29

Italian worker in German challenged the German law which states that the periods of military service in the Bundewehr (specifically) were taken into account in calculating the length of employment, and thus protecting the worker’s security of employment.

ECJ Held: although the rule applied regardless of nationality, Art 45 allowed for no restrictions on the principle of equal treatment other than in para 3. The German law here created an unjustifiable restricting by ‘indirectly introducing a discrimination in favour of their own nationals alone’, as the Bundewehr military service requirement could be satisfied by a far greater number of nationals than non-nationals. Commentary: conditional benefits (in law or fact) on residence, place-of-origin or education are usually common species of indirect discrimination, as these requirements can be more easily satisfied by nationals than non-nationals.

Question 30

Groener [1989]

Answer 30

(language) Dutch woman was refused a permanent full-time lectureship post at a design college in Dublin where she had already been teaching in English because she did not speak Gaelic. ECJ

Held: There was indirect discrimination. However, the language requirement was valid because it was part of the government policy to promote the use of the Irish language as a means of expressing national culture and identity. Since education was important for the implementation of such a policy, the requirement for teachers to have adequate knowledge of the Irish language was compatible with Art 3(1), provided that the level of knowledge was not disproportionate to the objective pursued. However, if the government require the linguistic knowledge to be acquired in Ireland, this rule may be invalid

Question 31

Indirect Discrimination

Angonese [2000]

Answer 31

(bilingual certificate) A (Italian) spoke German as his mother tongue. He applied to take part in a competition for a post in a bank in Bolzano. A condition for entry to the competition was a certificate of bilingualism in Italian and German. The certificate was issued by Bolzano authorities after an exam held only in that province. A did not obtain the certificate and the bank rejected him for the post. A argued that the certificate requirement was contrary to Art 45.

ECJ Held: since the certificate could only be obtained in Bolzano, the rule was indirectly discriminatory, even though it affected other Italian nations as well. This is because the majority of residences in Bolzano were Italians. The obligation to obtain the certificate put other MS nationals at a disadvantage compared with those in the province. This made it difficult for the other EU nations to get jobs in Bolzano. Although the rule may be justified, the fact that it was impossible to show proof of the bilingual knowledge through other means was disproportionate. The bank breached Art 45!

Question 32

Market access approach

Answer 32

The fact that there was no discrimination is irrelevant. The existence of an obstacle of the access of workers from one MS to employment in another was enough to engage Art 45. Provisions which preclude or deter a national of a MS from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned.

Question 33

Market Access approach

Bosman [1995]

Craig and Eeckout commentary on market access

Answer 33

B was a Belgian national (football player) employed by the Belgian first division club RC Liege (football club). When his contract expired he wanted to play for the French 2nd div club, US Dunkerque. The transfer system required a football club, which sought to engage a player whose contract with old club had come to an end, to pay a substantial amount of money to the old club. As no transfer certificate had been sent to the French Football Federation (US Dunkerque did not pay the transfer fee to RC Liege), Bosman was left without a club and did not get to play in the coming season in France. The was strong circumstantial evidence that B was boycotted by other clubs

ECJ Held: the fact that the transfer system is applicable to all players regardless of nationality does NOT prevent he system from falling foul of Art 45. Provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned.
It is sufficient to note that, although the rules in issue in the main proceedings apply also to transfers between clubs belonging to different national associations within the same Member State and are similar to those governing transfers between clubs belonging to the same national association, they still directly affect players’ access to the employment market in other Member States and are thus capable of impeding freedom of movement for workers. They cannot, thus, be deemed comparable to the rules on selling arrangements for goods which in Keck and Mithouard were held to fall outside the ambit of Article 30 of the Treaty. Since there was no convincing justification for the rule, it was contrary to Art 45!

Commentary: Craig: the fact that there was no discrimination is irrelevant. The existence of an obstacle of the access of workers from one MS to employment in another was enough to engage Art 45. Eeckhout: there are not many examples of “market access” cases in relation to free movement of workers, and that the precise scope of the market access principle is unclear.

Question 34

Market Access approach

Graf [2000]

Answer 34

rules provided that compensation on termination of employment did not apply when the worker voluntarily ended the employment to take up employment elsewhere. AG Fennelly and ECJ Held: neutral national rules could be regarded as material barriers to market access only if it were established that they had actual effects on market actors akin to exclusion from the market. The rule does not offend the principle, as it was dependent on a future and hypothetical event, which has an uncertain and indirect element

Question 35

Market Access Approach

Lyyski [2007]

Answer 35

Swedish rule required an individual wanting to follow a special teacher training course at a particular Swedish university to be employed at a Swedish school in order to complete the practical component of their training. L was employed in a Swedish-speaking school in Finland. ECJ Held: the rule placed L at a disadvantage and was ‘liable to restrict the freedom of movements of workers’. However, the rule could be justified on the grounds of preserving/improving the education system, and the requirement was proportionate (the programme was temporary and the rule assisted monitoring and assessment of the practical stage). However, requirement must be proportionate and flexibly applied on a case-by-case basis depending on the merits of each individual applicant.

Question 36

Purely internal situations

Answer 36

Purely internal situations, where all elements of case are purely internal to single Member State, remain in principle outside the ambit of Treaty rules on free movement for persons. Yet there is pressure to abandon that view in the citizenship cases.

Question 37

Purely internal situations

Saunders [1979]

Answer 37

Held: British woman could not use EU law to challenge an undertaking given to a criminal court in England that she return to Northern Ireland and that she did not visit England or Wales for 3 years. EU law does NOT apply to activities which have no factor linking them with any of the situations governed by EU law and which are confined in all aspects within a single MS.

Question 38

Purely internal situations

Gauchard [1987]

Answer 38

manager of a French supermarket was prosecuted for extending his supermarket without permission. G argued that the French rule breached EU law. ECJ Held: EU law does not apply because the company operating the supermarket was French and established in France, and its manager was French and resided in France. The case was exclusively internal to France.

Question 39

Purely internal situations

Morson and Jhanjan [1982]

Answer 39

M and J had applied for permission to reside in the Netherlands in order to install themselves with their daughter and son respectively. ECJ Held: Since these were Dutch nationals who were employed in their own country and who had never exercised their right to freedom of movement within the Community, the cases had no factor linking them with any of the situations governed by Community law. Accordingly, the Treaty provisions on freedom of movement and the rules adopted to implement them did not apply.

Question 40

Justification in Art 45(4)

Answer 40

The provisions of this Article shall not apply to employment in the public service.

Question 41

Who determines what constitutes ‘employment in the public service’?

Answer 41

It is up to the ECJ, not the national courts, to decide what constitutes ‘employment in the public service’

Sotgiu [1974] Article 45(4) can only ever justify discrimination as regards access to but never as regards conditions of employment within the public service

Question 42

What 2 requirements have to be met for art 45(4) to be triggered?

Answer 42

1) participation in the exercise of public power (regular and not minor) and
2) participation in the exercise of duties designed to safeguard general state interests

Question 43

Art 45(4) derogation

Commission v Belgium [1982]

Answer 43

Possession of Belgian nationality was required as a condition of entry for posts with Belgian local authorities and public undertakings such as unskilled railway workers, hospital nurses and night-watchmen.

Held: Art 45(4) TFEU removes from scope of Treaty certain public service posts which involve direct or indirect participation in exercise of powers conferred by public law and duties designed to safeguard general interests of state / public authorities, and which therefore presume on part of employee the existence of special relationship of allegiance to the state and reciprocity of rights and duties such as forms foundation of bond of nationality. These jobs are characteristic of specific activities of public service insofar as they are invested with the exercise of public power AND the responsibility for safeguarding the general interests of the State.

In the present case, the effect of extending the exception in Art 45(4) to posts which, whilst coming under the States, still do NOT involve any association with tasks belonging to the public service properly so called, would be to remove a considerable number of posts from the ambit of the principles set out in the Treaty and to create inequalities between MSs.

Commentary: Craig: the ECJ clearly did not accept the argument that what is important is the institution within which the worker is employed (institutional/organic approach). Rather, the ECJ looks into the nature of the work itself (functional approach)

Barnard: it is unclear whether the public dower and duties designed to safeguard state interests requirements are to be read cumulatively (i.e. more restrictive) or disjunctively.

Question 44

Is a functional or institutional approach favoured when determining whether the jobs fall under Art 45(4)?

How does this reflect in the interpretation of 45(4)?

Answer 44

The institutional approach regards the institution and its personnel as a whole, regardless of the specific functions carried out by the individuals. The functional approach looks at the work to see if it involves the public power and duty designed to safeguard state interests. The court adopts the functional approach, which leads to a restrictive interpretation of Art 45(4).

Question 45

Examples of cases not falling under Art 45(4) under the functional approach

Answer 45

♣ Commission v France [1986]: nurses in public hospitals
♣ Bleis [1991]: secondary school teachers
♣ Commission v Greece [1996]: generality of posts in sectors such as health, education, postal services, telecommunications, radio and television broadcasting, water / gas / electricity supplies
♣ Commission v Luxembourg [1996]: posts in the public sectors of research, education (disproportionate), health, inland transport, post, telecommunications, and the utilities to its own nationals. The reason is to preserve the national identity of the MS. Held: but that was disproportionate as less restrictive approaches could have been used.

Question 46

Which jobs would art 45(4) apply to?

Answer 46

the Commission suggested that Art 45(5) would apply to the police, the forces of order, the armed forces, the judiciary, tax authorities, and the diplomatic service.

♣ Anker [2003]: a post of master of a fishing vessel flying the German flag was required to be given to Germans. ECJ Held: this is upheld, as the job entails duties connected to the maintenance of safety and the exercise of police powers. The two requirements in Commission v Belgium have been satisfied. However, participation in exercise of public power must be on regular basis, representing more than very minor part of post holder’s activities. Commentary: confirmed in Spanish Merchant Navy (chief mate of merchant ships flying the Spanish flag)

Question 47

What are the express derogations in Art 45(3)

Answer 47

Public Policy
Public Security
Public Health

The list is exhaustive and should be interpreted particularly restrictively.

These are generally justifications for refusal of entry or expulsion

Question 48

Which article of which directive sets out the limits to when the express derogations can be used?

What are they?

Answer 48

Art 27(1) CRD 2004/38

0-3 months

Public health, security and policy

3 months – 5 years
Public security and policy

5 – 10 years

Serious grounds of public security and policy

10 years or above or a minor

Imperative grounds of public security

Question 49

What does Art 27(2) CRD 2004/38 set out?

Answer 49

further requirements for the express derogations for measures taken on grounds of public policy or public security:

[They] shall comply with the principle of proportionality AND shall be based exclusively on the personal conduct of the individual concerned! Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.

Question 50

Case law on ‘personal conduct’ and ‘threat’ element’ in Art 27(2)

Van Duyn

Answer 50

refusal of entry; Scientology) VD was refused entry into the UK to work as a secretary for the Church of Scientology, whose activities were considered be ‘socially harmful’. Can the public policy derogation be relied on?

ECJ Held: the personal conduct need not be unlawful before the MS could invoke the public policy derogation. Here it is sufficient that the conduct is deemed socially harmful. A person’s present (not past) association with an organisation could constitute personal conduct as it reflects a voluntary participation in the activities and the identification with the aims and designs of the organisation.

Commentary: the ECJ also held that the UK may refuse entry to a Dutch national while not placing similar restrictions on its own nationals. This aspect of the ruling has been implicitly reversed by Adoui. Past membership of organisation attracting official displeasure irrelevant; but host state may take account of present membership insofar as this reflects participation in activities of organisation and identification with its aims / designs.

Question 51

Regarding the ‘personal conduct’ and ‘threat’ element

Bonsignore [1975]

Answer 51

as the CRD states that measures taken on the ground of public policy must be based exclusively on the personal conduct of C, extraneous matters must be disregarded.

Question 52

Regarding the ‘personal conduct’ and ‘threat’ element

Adoui and Cornuaille [1982]

Answer 52

(consistency of conduct) Two French prostitutes were refused permission to reside in Belgium on public policy grounds. Belgium did not prohibit prostitution itself. ECJ Held: MSs must be consistent in their conduct toward nationals and migrants! A and C’s conduct cannot be considered “sufficiently serious” where host state does not adopt genuine and effective measures to combat same conduct by its own nationals

Question 53

Regarding the ‘personal conduct’ and ‘threat’ element

Jany [2001] —

Answer 53

conduct by migrants (prostitution) which a MS (the Netherlands) accepts on the part of its own nationals could NOT be regarded as constituting a genuine threat to public order!

Question 54

Bouchereau [1977] — (previous criminal convictions)

Answer 54

Held: confirmed that the public policy derogation can only be invoked if there was a genuine and sufficiently serious threat affecting one of the fundamental interests of society. Therefore, a simple infringement of the social order by breaking the law (possessing drugs) on the part of an individual could NOT be enough to justify the steps taken on policy grounds. Also, the CRD explicitly states that ‘previous criminal convictions shall not in themselves constitute grounds for taking such measures’. Hence, the existence of a previous criminal conviction could only be taken into consideration insofar as the circumstances which lead to that conviction were evidence of personal conduct constituting a present risk to the requirements of public policy (i.e. a propensity to commit the similar acts again). Whether it is so is a matter for national courts to decide.

Question 55

Regarding the ‘personal conduct’ and ‘threat’ element

Jipa [2008]

Answer 55

national of Romania had been deported from Belgium on the grounds of being an illegal resident in Belgium. ECJ Held: that mere fact does not constitute a sufficiently serious conduct to justify the restriction of his right to travel. In other words, in a situation such as that in the main proceedings, the fact that a citizen of the Union has been subject to a measure repatriating him from the territory of another Member State, where he was residing illegally, may be taken into account by his Member State of origin for the purpose of restricting that citizen’s right of free movement only to the extent that his personal conduct constitutes a genuine, present and sufficiently serious threat to one of the fundamental interests of society.

Question 56

Orfanopoulos [2004]

Answer 56

the MS also had to consider factual matters which occurred after the final decision of the competent authorities which might point to the cessation/substantial diminution of the present threat that O posed to public policy.

Question 57

Concerning criminal convictions

Bouchereau [1977]

Answer 57

(previous criminal convictions) Held: confirmed that the public policy derogation can only be invoked if there was a genuine and sufficiently serious threat affecting one of the fundamental interests of society. Therefore, a simple infringement of the social order by breaking the law (possessing drugs) on the part of an individual could NOT be enough to justify the steps taken on policy grounds. Also, the CRD explicitly states that ‘previous criminal convictions shall not in themselves constitute grounds for taking such measures’. Hence, the existence of a previous criminal conviction could only be taken into consideration insofar as the circumstances which lead to that conviction were evidence of personal conduct constituting a present risk to the requirements of public policy (i.e. a propensity to commit the similar acts again). Whether it is so is a matter for national courts to decide.

Question 58

Concerning criminal convictions

Calfa [1999]

Answer 58

(previous criminal conviction) C had been convicted of obtaining and being in possession of drugs for personal use. Under Greek law therefore, Greece expelled C for life on the ground of public policy. ECJ Held: C could only be expelled for having committed a criminal offence if her personal conduct created a genuine and sufficiently serious threat affecting one of the fundamental interest of society. As no account was taken of the personal conduct of C or the threat she represented to the requirements of public policy, that Greek law breached the CRD 2004/38. Commentary: Barnard: Hence, it is clear that a MS can only be justified if an individual who has criminal conviction actually constitute a present, genuine and sufficiently serious threat to one of the fundamental interests of society! ZCT: the bottom line is that criminal conviction itself means nothing for the purposes of justification, while the ‘threat’ condition means everything.

Question 59

Concerning territorial restrictions on the right of residence

Rutili [1975] —

Answer 59

Held: restricting R’s right of residence to a limited territory in the country was possible under Art 45(3) TFEU, but only if the MS could impose similar restrictions on its own nationals! Rule: public policy / security derogations can only be used to prohibit residence in respect of entire national territory, not merely particular regions / districts – unless similar measures can be taken against own nationals engaging in same type of conduct. Commentary: this has been codified in Article 22 CRD 2004/38:

The right of residence and the right of permanent residence shall cover the whole territory of the host Member State. Member States may impose territorial restrictions on the right of residence and the right of permanent residence only where the same restrictions apply to their own nationals

Question 60

Olazabal [2002]

Answer 60

Spanish national of Basque origin, O, was a member of an armed and organised group whose activity constituted a threat to public order (the ETA). He was involved in kidnapping a Spanish industrialist and was imprisoned in France followed by a 4-year ban on residing in the vicinity of the Spanish border. O argued that the residence ban was discriminatory since French nationals were not subject to the same limitation. ECJ Held: O’s argument failed – it was NOT discriminatory. EU law allowed migrants to be subject to deportation (the ultimate sanction), and therefore be subject to a less to less-severe measures (e.g. restrictions on the right of residence) without it being necessary for identical measures to be applied to nationals! Rutili was distinguished as O was a migrant worker and a terrorist and could already have been deported because of that (Art 8 of Reg 1612/68). A MS may limit a worker’s right of residence under Art 45(3) TFEU (express derogations) provided that:

1) The action was justified by reason of public order/security based on individual conduct
2) Those reasons were so serious that otherwise hen would have been prohibited from residing in, or banished from, the whole of the national territory
3) In the case of its own nationals, the conduct which the MS concerned wished to prevent gave rise to punitive measures or other genuine and effective measures

Rule: in situations where foreign nationals are liable to banishment, they are also capable of being subject to less severe measures consisting of partial restrictions on their right of residence, without it being necessary that identical measures are capable of being applied by the host state to its own nationals – provided host state still adopts genuine and effective measures to combat same conduct by its own nationals. Commentary: Barnard: this case highlighted the question of compatibility between Art 45 TFEU and Art 22 of CRD (which is a hierarchically inferior directive)

Question 61

Concerning proportionality and fundamental rights: when making a decision as to whether or not to deport C, the host state must consider proportionality and FHR as well!

Carpenter [2002]

Answer 61

C (Filipino national) overstayed her entry permit to the UK and married a British national. C was to be deported but argued that this would restrict her husband’s ability to carry on business as a service provider in other MS since she looked after his children while he was away. ECJ Held: when derogating from free movement rules, Member State must act in manner consistent with protection of fundamental rights as guaranteed under EU law and, in particular, with freedoms guaranteed under European Convention on Human Rights. The MS can invoke reasons to justify the measure only if the measure is compatible with the fundamental rights whose observance the Court ensures. C’s husband’s Art 8 ECHR right to respect for his family life is a fundamental human right to be protected by EU law. Thus, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed by Art 8(1) of the ECHR! Under Art 8(2), it has to be necessary in a democratic society. Hence, to deport C did NOT strike a fair balance between the competing interests of the Art 8 right of C’s husband and the maintenance of public order and safety. As C did not constitute a ‘threat’ by overstaying, the decision to deport C was disproportionate.

Question 62

Concerning proportionality and fundamental rights:

Orfanopoulos [2004]

Answer 62

the MS had to consider FHR when deciding whether to deport O. This assessment is to be made by the national authorities on a case-by-case basis to decide whether a ‘fair balance’ between the competing interests has been struck.

Question 63

Public interest justifications/objective justifications

Answer 63

These set of justifications can ONLY be used by indirect discrimination whose aim is not to discrimination but its effect is, NOT direct discrimination whose aim is to discriminate

These justifications are judicially developed (just like the open-ended Cassis de Dijon mandatory requirements in FMG)

¬ Protection of workers (Webb)
¬ Consumer protection (Commission v France (Co-Insurance))
¬ Conservation of national historic and artistic heritage (Commission v Italy)
¬ Cultural policy (Gouda)
¬ Market externalities (protection of the environment/promotion of tourism/promoting sustainable settlement in a designated area etc)
¬ Civil liberties (ensuring that the economic freedoms do not compromise essential political values of autonomy, dignity and equality; equal treatment etc)
¬ Protecting certain socio-cultural practices (ensuring the balance of sports clubs; prevention of social dumping/unfair competition/abuse of free movements and EU law/disturbances on the labour market/survival of small undertakings and the maintenance of employment/social protection of workers/combating illegal employment/ preserving the education system; protecting the official national language/promotion of the integration of the disabled etc)
¬ Preservation of public order (supplying services; ensuring the coherence of the tax scheme; preserving the financial balance of a social security scheme; preventing fraud on the social security system; controlling costs and preventing wastages of human and financial resources; the need for legal certainty etc)

Question 64

Article 18 TFEU

Answer 64

“Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.”

This is a subsidiary principle: it kicks in only where none of the more specific Treaty provisions (such as Article 45 TFEU) applies

Question 65

Non-discrimination principle applied to vocation training/education

Gravier [1985]

Answer 65

French lady went to study at Liege to become a strip cartoon designer. Belgians had to pay much less than the foreign students. The scope of the Art 7(3) includes access to training in vocational schools and retraining centres under the same condition as national workers. Is that within the scope of application of TFEU.

Held: vocational training is interpreted broadly to include any form of education which is a preparation for qualification or which provides the necessary trainings for a particular profession. Since access to training is likely to promote FMP by enabling them to obtain a qualification, the conditions of access to vocational training fell within the scope of the Treaty:

Access to vocational training is in particular likely to promote free movement of persons throughout the Community, by enabling them to obtain a qualification in the Member State where they intend to work by enabling them to complete their training and develop their particular talents in the Member State whose vocational training programmes include the special subject desired.

Commentary: Eeckhout: This judgment, together with a couple of later ones, established the principle of equal university fees for EU students

Question 66

Blaizot [1988]

Answer 66

university education is included in the right of access to vocational training, except courses “intended for persons wishing to improve their general knowledge rather than prepare themselves for an occupation”

Question 67

Brown v Secretary of State for Scotland [1988]

Answer 67

student with dual French and British nationality got a place at Cambridge to read engineering. He claimed that he was a worker and was entitled to a grant from the British authorities under Art 7(2). Held: at the present stage of development of Community law, assistance given to students for maintenance and for training falls in principle outside the scope of the EEC Treaty for the purposes of [Article 18]. Commentary: confirmed by Grzelczyk to be good law, but this was further subject to Bidar.

Question 68

Bidar [2005]

Answer 68

Dany Bidar, a French national, lived in the UK with his grandmother and went to UCL to do economics. B received assistance with his tuition fees under Gravier and sought to apply for student loan to cover his maintenance costs. B was turned down for financial assistance (student loan) because he did not satisfy the criteria of being settled in the UK nor did he satisfy the residence requirements.

ECJ Held: due to the introduction of EU citizenship and the changes in the Treaty provisions on education since Brown, and now confirmed by Art 24(2) CRD, maintenance grants are now within the scope of application of the Treaty. However, Member States may impose residence requirements for student loans. Because B was lawfully resident in the UK, he is entitled to equal treatment under Art 18 TFEU in respect of social assistance benefits. Hence, B was entitled to have the principle of non-discrimination on the grounds of nationality applied to him! Although the rule was indirectly discriminatory, but it accepted that MSs had to show a certain degree of financial solidarity with nationals of other MSs as it was legitimate for a MS to grant assistance only to those who demonstrated a certain degree of integration into the society of that MS.

Question 69

Steps in answering question

Answer 69

1. Does EU law apply at all?

(a) Personal scope: is the individual a national of a MS who falls into the definition of ‘worker’ in Art?
(b) Material scope: is the situation a purely internal situation to which EU law is inapplicable? Is there migration between the EU states?

2. Which EU provision is engaged?

Is Art 45 TFEU engaged?
Are the relevant provisions of the CRD or the Regulation engaged?

3. Does theTreaty provision apply to D in question?

All Treaty provisions have vertical direct effect (Van Duyn)
Art 45 TFEU appears to have horizontal direct effect (Antonissen)

4. Is there a breach of the relevant Treaty provisions?

Step 1: consider the traditional non-discrimination approach
Step 2: consider the recent market access approach (Bosman)

5. Can the breach be justified?
   (a) Express derogations (public policy, security and health)
   (b) Public-interest requirements (judicially developed; not availble in cases of refusal of entry and direct discrimination)

(c)
Other limitations laid down for the semi-economically active concerning ‘sufficient resources’ and medical insurances

(d) Public service exception under Art 45(4)

Question 70

Article 20 TFEU

Answer 70

1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

i. the right to move and reside freely within the territory of the Member States;
ii. the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
iii. the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
iv. the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.
These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.

Question 71

Articles 21-25 TFEU:

Answer 71

provide for a mixed bag of rights: rights of free movement and residence; political rights in relation to local and EP elections - but not national elections; a right of petition and a right of diplomatic protection. Of course, one should not consider that EU citizenship is confined to those rights. With every amendment the EU Treaties increasingly call upon the EU citizens to become more actively involved in EU governance, in a variety of ways.

Question 72

The EU Charter

Answer 72

The EU Charter of Fundamental Rights reaffirms the citizenship rights and makes the claim that the EU places the individual at the heart of its activities. Yet the citizenship concept remains inherently ambivalent, as a reflection of the ambivalent nature of the EU project itself. This clearly results in EU citizenship being an “essentially contested concept”.

Question 73

Article 21(1)

Answer 73

Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. Commentary: this is considered the ‘primary right’ of EU citizens. The ‘subject to’ clause intends to include limitations such as those listed in the treaty enabling MSs to adopt restrictive measures on grounds of public policy, security and health.

Question 74

Gravier [1985] on Art 21(2)

Answer 74

the initial question facing the courts was whether Art 21(1) merely codified the existing law or whether it created a free-standing right to movement for ALL EU citizens.

Question 75

Grezelczyk [2001] on Union Citizenship

Answer 75

Held: Union citizenship is destined to be the fundamental status of nationals of the MSs, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for.

Question 76

Rottmann [2010] on Union citizenship

Answer 76

(fraud) C (Austrian national by birth) gained German citizenship by naturalisation, which had the result of the loss of his Austrian nationality. However, C had failed to inform the German authorities that he had basically fled Austria to escape from criminal prosecution involving financial fraud. When the German authorities discovered this, they sought to withdraw C’s new German citizenship. C argued that the result would be to make him stateless, and lose his EU citizenship. Up until this case, the Court had always adopted the position that matters of acquisition and loss of nationality are not subject to EU law. The two further steps here are (1) that the Court is willing to review national decisions on the loss of national - and as a result also EU - citizenship, and (2) that the case was wholly internal since Mr Rottmann, at the time of the disputed decision, was a German living in Germany. ECJ Held: It is to be borne in mind here that, according to established case-law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality. Nevertheless, the fact that a matter falls within the competence of the Member States does not alter the fact that, in situations covered by European Union law, the national rules concerned must have due regard to EU law. It is clear that the applicant in the main proceedings is, faced with a decision withdrawing his naturalisation, adopted by the authorities of one Member State, and placing him, after he has lost the nationality of another Member State that he originally possessed, in a position capable of causing him to lose the status conferred by Article [20 TFEU] and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of European Union law. Thus, the Member States must, when exercising their powers in the sphere of nationality, have due regard to European Union law…the exercise of that power, insofar as it affects the rights conferred and protected by the legal order of the EU such as the withdrawal of naturalisation here, is amenable to judicial review carried out in the light of EU law. Citizenship of the Union is intended to be the fundamental status of nationals of the Member States.

With regard to the public interest consideration argued by the German authorities, it remains valid but it is for the national courts to ascertain whether the withdrawal decision at issue observes of principle of proportionality! B lawfully resided in Germany, his family also resided there during his work, neither he nor his family have become burdens on the public finances of the host MS. It was also not denied that B had sufficient resources within the meaning of Directive 90/364. B and his family had comprehensive sickness insurance in another MS. Hence, to refuse to allow B to exercise the right of residence under Art 21(1) TFEU by virtue of Directive 90/394 on the ground that his sickness insurance does not cover the emergency treatment given in Germany would amount to a disproportionate interference with the exercise of that right!

Commentary: this does not go far enough from earlier rulings on the relationship between MS nationality and EU citizenship such as Micheletti.

Craig: this shows that EU citizenship is a ‘mere addition’ to national citizenship. The loss or revocation of MS nationality acquired by deception is a matter falling within the scope of EU law, even though the power is vested in the national courts. Art 20(1) confers a directly effective right on EU citizens to reside in a host MS, regardless whether they are employed or self-employed.

Barnard: this is a decisive turning point in the court’s approach to EU citizenship: it was no longer just about facilitating free movement but about giving substance to the status.

Question 77

Baumbast v SSHD [2002]

Answer 77

The question was whether Mr Baumbast, a German national, could rely on Art 21 TFEU. B and his family were living in the UK, where B had worked previously. However, since he lost/switched jobs, B was now working for a company outside the EU in Asia and Africa, and was therefore no longer a migrant worker. B continued to provide for his family who remained in the UK. The UK refused to renew his and his family’s residence permits. Did Art confer a directly effective right of residence on a EU national who had been found to be neither a worker nor a person covered by the residence directives? ECJ Held: Although, before the Treaty on European Union entered into force, the Court had held that that right of residence, conferred directly by the EC Treaty, was subject to the condition that the person concerned was carrying on an economic activity within the meaning of [Articles 39 EC, 43 EC and 49 EC), it is none the less the case that, since then, Union citizenship has been introduced into the EC Treaty and Article [21(1)] TFEU has conferred a right, for every citizen, to move and reside freely within the territory of the Member States. Union citizenship is destined to be the fundamental status of nationals of the Member States.

The Treaty on European Union does not require that citizens of the Union pursue a professional or trade activity, whether as an employed or self-employed person, in order to enjoy the rights provided in Part Two of the EC Treaty, on citizenship of the Union. Furthermore, there is nothing in the text of that Treaty to permit the conclusion that citizens of the Union who have established themselves in another Member State in order to carry on an activity as an employed person there are deprived, where that activity comes to an end, of the rights which are conferred on them by the EC Treaty by virtue of that citizenship. As regards, in particular, the right to reside within the territory of the Member States under Article 21(1) TFEU], that right is conferred directly on every citizen of the Union by a clear and precise provision of the Treaty. Purely as a national of a Member State, and consequently a citizen of the Union, C therefore has the right to rely on Article 18(1) EC.

Admittedly, the right for citizens of the Union to reside within the territory of another Member State is conferred subject to the limitations and conditions laid down by the EC Treaty and by the measures adopted to give it effect. However, the application of the limitations and conditions acknowledged in [Article 21(1) TFEU] in respect of the exercise of that right of residence is subject to judicial review!! Consequently, any limitations and conditions imposed on that right do not prevent the provisions of Article 21 (1) EC from conferring on individuals rights which are enforceable by them and which the national courts must protect.

Commentary: Eeckhout: The Court did not clarify what it meant when it spoke of this “fundamental status”. It is an enigmatic statement, particularly in light of the subsidiary nature of EU citizenship as additional to, and not replacing national citizenship. Perhaps the Court had in mind that this status is fundamental within the scope of EU law (and not outside).

Question 78

Chen v SSHD [2004]

Answer 78

(one-child policy) C was a Chinese national who came to the UK and moved temporarily to Northern Ireland in order to give birth to her child, Catherine, who thereby acquired Irish nationality. C lived with Catherine in Wales, and C and her husband were both employed by a company established in China. The SSHD rejected their applications for long-term residence permits because, although Catherine was lawfully dependent on C and had sufficient resources to avoid becoming a burden on the state’s resources, Catherine was not exercising any EU rights and therefore C was not covered by EU law. The issues were threefold: i) did Catherine enjoy a directly effective right to movement and residence based solely on EU citizenship derived from her Irish nationality? Ii) whether the circumstances amounted to an abuse of rights iii) whether the resources of C could be taken into account in determining whether C had sufficient resources not to become a burden on the social schemes of the state. ECJ Held: denying the right of residence to C, whether an EU national or not, who is the carer of Catherine who possessed EU citizenship, and enjoying sufficient resources and health insurance, would deprive of Catherine’s right of residence of any useful effect!

Re 1): Purely as a national of a MS, and therefore as a citizen of the EU, Catherine is entitled to rely on Art [21(1) TFEU], subject to the limitations and conditions imposed by the Treaty…

Re 2): Under international law, it is for each MS to lay down the conditions for the acquisition and loss of nationality. There is no question of legality of Catherine’s acquisition of Irish nationality even though C admits that the purpose of her stay in the UK was to enable Catherine to acquire nationality of another MS in order thereafter to secure for her and herself a long-term right to reside in the UK. The UK must NOT be allowed to restrict the effects of the grant of the nationality of another MS by imposing an additional condition for recognition of that nationality!

Re 3): Under Art 1(1) of Directive 90/394, it is sufficient for nationals of MSs to have the necessary resources. That provision lays down NO requirement whatever as to their origin. That provision which in reinforced by principles such as that of the free movement of persons must be interpreted broadly!

Commentary: this confirms Baumbast that the rights in Art 20(1) are directly effective and autonomous, and does NOT depend on possession of any previously existing EU status category! Art 21 does create a new and directly effective right.

Question 79

When does CDR apply?

Answer 79

1. Union citizens defined in Art 201(1) TFEU, and
2. Family members who ‘accompany or join’ the Union citizen who ‘moves to or resides in a MS other than that which they are a national. These family members are either admitted (mandatory admission) or whose entry and residence must be facilitated (discretionary admission)
   - Mandatory admission: the family members MUST be admitted
   ¬ Spouses
   ¬ Descendants under 21
   ¬ Dependent descendants
   ¬ Dependent ascendants
   ¬ Registered partners recognised in home and host state

• Discretionary admission: the family member’s admission MUST be facilitated
  ¬ Other family members not falling in the mandatory group, who are dependants OR members of the household of the Union citizen having the primary right of residence OR having serious health conditions requiring personal care by the Union citizen
  ¬ Partner with whom the Union citizen has a durable relationship, duty attested

Question 80

Metock [2008]

Answer 80

Article 3(1) CRD states that ‘This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members who accompany or join them’. Third country nationals arrived in Ireland and married migrant EU citizens who were resident in Ireland.. Prior to that decision the case law required that the family relationship, in the case of spouses, preceded the migration to another Member State (i.e. in order to benefit from the rights, a TCN spouse can move to another MS with the migrant EU citizen only once the TCN spouse had lawfully entered and resided in one EU state (prior lawful residence principle). The TCNS applied for residence cards but were refused by the Irish authorities on the ground that they did not satisfy the PLR principle. ECJ Held: the PLR principle is rejected – marriage may post-date movement. a migrant EU citizen may marry anyone – they will have residence rights

Question 81

Article 24(1) CRD 2004/38

Answer 81

1) The right to equal treatment (non-discrimination)

Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.
- There are no case law under Art 24(1) CRD, but there are cases decided under Article 21(1) TFEU in respect of social advantages for citizens lawfully resident in the host state. These cases explain the meaning of equal treatment

Question 82

Direct and indirect discrimination

Bickel and Franz [1998]

Answer 82

Trial language) tourists were arrested for carrying a knife in Italy. In the region of Bolzano, both German and Italian were spoken. C claimed the right to be tried in German - a privilege conferred on the citizens of that region, but not on other Italians or indeed on nationals from other Member States. The criminal law was purely national law and had nothing to do with EU law - the only link was that they were nationals of other MSs who were making use of their free movement rights as they were providing (transport) services; respectively receiving (tourism) services. AG Jacobs: It is unnecessary in this case for the Court to decide the broader question whether all criminal proceedings against a citizen of the Union fall within the scope of application of the Treaty for the purposes of Article [18], even where that citizen has not exercised his right to free movement. For example, would a national of Member State A charged with a criminal offence in Member State B on account of remarks published in a Member State B newspaper be entitled to rely on Article [18] of the Treaty? ECJ Held: the rule was indirectly discriminatory to non-nationals. National legislation may not discriminate against persons who EU law gives the right of equal treatment by Community law.

Question 83

Where a non-economically active EU national is lawfully resident in the host state, he is promised the right to equal treatment! This can be qualified by ‘sufficient resources’ and ‘financial solidarity’ and ‘degree of integration’ to the society

Martinez Sala [1998]

Answer 83

(child-raising allowance requirement; the lawful residence test) Spanish lady, Martinez Sala, was lawfully residing in Germany (pursuant to German law) since she was 12. She had various residence permits. When she gave birth she did not have a residence permit but only a certificate saying that an extension of the permit had been applied for. The German authorities refused to give her child-raising allowance on the grounds that she was neither a German national nor did she have a residence permit. The benefit came within the scope of the EU social security legislation, but since Mrs Martinez Sala was not a “worker” at the time when she applied for it, she was not entitled to the benefit. She argued that she was discriminated, on grounds of nationality, in relation to the child-raising allowance. ECJ Held: As regards the scope ratione materiae of the Treaty, reference should be made to the replies given to the first, second and third questions, according to which the child-raising allowance in question in the main proceedings indisputably falls within the scope ratione materiae (material scope) of Community law.

**As a national of a Member State lawfully residing in the territory of another Member State, the appellant in the main proceedings comes within the scope ratione personae (personal scope) of the provisions of the Treaty on European citizenship. Martinez was suffering from direct discrimination on the ground of nationality contrary to Art 18 TFEU.

Commentary: Barnard: it was not clear on what basis the Court thought Martinez was a lawful resident in Germany. She did not appear to be economically active and did not fulfil the conditions of then Directive 90/394 and therefore did not appear to be lawfully resident under EU law! However, her ‘not unlawful’ residence may have derived from national law, and so she was entitled to equal treatment (supported by Trojani):Trojani [2004] — a citizen of the Union who is not economically active may rely on Article [18 TFEU] where

i) he has been lawfully resident in the host state for a certain period of time; or
ii) he possesses a residence permit

Question 84

Grzelczyk [2001] — (sufficient resources; application of the Sala test)

Answer 84

Grzelczyk, a French national, had to work on his dissertation in Physical Education in Belgium in his 4th year, but he hit hard times. He supported himself financially for the first 3 years, but then applied for the minimex (minimum income guarantee) at the start of his 4th and final year. Migrant students are NOT allowed to receive the benefit. To prevent benefit tourism, the Citizenship Directive 2004/38 requires that EU citizens have comprehensive sickness insurance and sufficient resources so as “not to become a burden on the social assistance system of the host Member State”. Under the Students’ Directive 93/96, G must also have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during his period of residence, and so it was argued that the fact that he applied for minimex meant that this requirement was no longer met. Held: G had actually moved. Since G was lawfully resident in Belgium he could rely on Article 18 TFEU according to Martinez Sala in respect of those situations which fell within the material scope of the Treaty, including the Art 21(1) TFEU right. Court finds discrimination in this case. The MS must accept “a certain degree of financial solidarity”. Directive 93/96, like Directives 90/364 and 90/365, thus accepts a certain degree of financial solidarity between nationals of a host Member State and nationals of other Member States, particularly if the difficulties which a beneficiary of the right of residence encounters are temporary.

Commentary: this significantly broadened the scope of the principle of equal treatment. So the court held that there exists a ‘certain degree of financial solidarity between nationals of a host MS and nationals of other MSs, the Belgian authorities had to provide some temporary support to the migrant citizen (but only for so long as they do not become an unreasonable burden on public finances).

Barnard**: this opened up the social welfare system of host MSs to migrants. But migrants face a dilemma here: while lawful residency promises equal treatment within the host state, the exercise of the right might require the host MS to consider whether G has become an unreasonable financial burden!

Eeckhout: The decision established that, even if a student needs to show sufficient resources at the start of her studies, she may still not be discriminated against on grounds of her nationality when applying for a benefit, later on.

Question 85

D’Hoop [2002]

Answer 85

Belgian national completed her secondary education in France and returned to Belgium for tertiary education. At the end of her studies she applied for a Belgian tide-over allowance (unemployment benefit for young people fresh out of studies). Her application was rejected on the basis that she did not receive secondary education in Belgium. ECJ Held: as a Belgian national, she fell within the personal scope of the citizenship provisions. As a free move, she also fell within the material scope of the Treaty provisions. Hence, she could rely on the principle of equal treatment. D’Hoop had been ‘placed at a disadvantage by discriminatory provisions’ on the ground of the individual having exercised her rights of free movement in order to pursue education in another MS. This constituted a restriction on free movement.

Question 86

Bidar [2005]

Answer 86

A French national lived in the UK with his grandmother and went to UCL. B was turned down for financial assistance (student loan) because he did not satisfy the criteria of being settled in the UK nor did he satisfy the residence requirements. ECJ Held: these requirements are indirectly discriminatory as they placed nationals of other MSs at a disadvantage. However, based on the need to show a degree of financial solidarity with nations of other MSs, it was legitimate for a MS to grant assistance only to students who had demonstrated a certain degree of integration into the society of the MS. Commentary: so this is one qualification.

Question 87

Discrimination caused by similar treatment

Garcia Avello [2003]

Answer 87

GA (Spanish) married a Belgian national (Weber), and they lived together in Belgium. They had 2 children who were given their father’s surname (GA). GA then applied to the Belgian authorities to have the children’s surnames changed to Garcia Weber, reflecting the Spanish patterns for surnames. The Belgian authorities did not allow that because usually ‘children bear their father’s surname’. Held: the citizenship provisions applied here. Since the children had dual nationality, they enjoyed the status of citizen of the Union as well as equal treatment. They suffered discrimination on the ground of nationality in respect of their surname. Although, as Community law stands at present, the rules governing a person’s surname are matters coming within the competence of the Member States, the latter must none the less, when exercising that competence, comply with Community law. The Belgian government’s justifications (immutability of surnames as a founding principle of social order and integration of foreign nationals) are rejected. Arts 18 and 20 TFEU precluded the Belgian authorities from refusing a name change to GA’s children

Citizenship of the Union, established by Article 17 EC, is not, however, intended to extend the scope ratione materiae of the Treaty also to internal situations which have no link with Community law. Such a link with Community law DOES, however, exist in regard to persons in a situation such as that of the children of Mr Garcia Avello, who are nationals of one Member State lawfully resident in the territory of another Member State. That conclusion cannot be invalidated by the fact that the children involved in the main proceedings also have the nationality of the Member State in which they have been resident since their birth and which, according to the authorities of that State, is by virtue of that fact the only nationality recognised by the latter. It is not permissible for a Member State to restrict the effects of the grant of the nationality of another Member State 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. They had a right to be treated in a manner different to that in which persons having only Belgian nationality are treated, unless the treatment in issue can be justified on objective grounds.

Question 88

The non-discriminatory restrictions approach

Does Arts 20 and 21 enhance the rights of EU citizens to challenge restrictive measures by MSs?

Answer 88

Although the landmark cases were decided under the equal treatment model, there is a shift to a restrictions/market access approach. So if a measure dissuades in any way a national from exercising his freedom to move and reside outside his nation, that measure may be treated as a restriction.

Question 89

Pusa [2004] —

Answer 89

AG Jacobs: ‘discrimination on grounds of nationality, whether direct or indirect, is not necessary in order for Art 21 TFEU to apply…non-discriminatory restrictions are also precluded by Art 21 TFEU!’ ECJ: endorsed the approach.

Question 90

Tas-Hagen [2006]

Answer 90

(war benefits residence requirement) Dutch law made payments of a benefit to civilian war victims conditional on the applicants being resident in the Netherlands at the time that they made their application. C resided in Spain, and therefore did not comply with the residence requirement in the Dutch legislation. ECJ Held: Their Spanish residence brought them within the personal scope of the Treaty according to Martinez Sala, and the Court adopted a similar reasoning as it would with a migrant worker. The Dutch law was liable to dissuade Dutch nationals such as C from exercising her freedom to move and reside outside the Netherlands.

National legislation which places at a disadvantage certain of the nationals of the Member State concerned simply because they have exercised their freedom to move and to reside in another Member State is a restriction on the freedoms conferred by Article 21(1) TFEU on every citizen of the Union. The Dutch rule therefore constituted a restriction on the freedoms conferred by Art 21(1) TFEU on every citizen of the EU.

Although a justification may be solidarity with the population of the Netherlands both before and after the war, the requirement of residence was still disproportionate! In respect of benefits not covered by EU law, MSs enjoy a wide margin of appreciation in deciding what criteria were to be used in assessing connection to society.

Commentary: the traditional discrimination analysis can be difficult to apply in this context

Question 91

De Cuyper [2006]

Answer 91

(employment benefits residence requirement) the Belgian government withdrew an unemployment allowance payable to a Belgium national on the ground that he no longer resided in Belgium since Regulation 883/04 allows certain benefits as such to be subject to a residence requirement. The Belgian government argued that the case should stop here. ECJ Held: rejected the residence requirement to review under Art 21 TFEU. The law places at a disadvantage certain of its nationals simply because they have exercised their freedom to move and reside in another MS. It is a restriction on the freedoms conferred by Art 21 TFEU. The residence requirement could, however, be justified by the need to monitor the employment and family situation of the unemployed and there was no less restrictive measures existed to achieve the objective.

Commentary: the rule is thus that migrant citizens who are not economically active have the right to claim all benefits available in the host state on the same terms as nationals unless the benefits are explicitly excluded by EU law or objectively justified.

Iliopoulou and Toner: this is the perfect assimilation approach – treatment of EU migrants is now placed on equal footing with that of nationals of the MS unless specifically provided otherwise.

Barnard: Welfare states are legitimised in part by a diffuse sense of solidarity, which is founded on some sense of shared interests. Thus national citizenship fosters the sense of national solidarity. However, the ECJ has taken to concept of EU citizenship to justify the sense of transnational solidarity between taxpaying nationals of a MS and nationals for other MSs, with the result that non-economically active migrants need to be treated in the same way as nationals when accessing social benefits! This is striking as the courts are looking for a certain degree of financial solidarity from a MS - this seems to be a quantitative approach to equality (i.e. the longer the migrant resides in the MS, the more integrated they are in that state: see Martinez Sala and compare with Collins)

Question 92

Nerkowska [2008]

Answer 92

(disability pension residence requirement) N (polish national) was born in Belarus, her parents were deported to Siberia where they died. N was deported to the former USSR where she lived ‘under difficult conditions’. N returned to Poland in 1957 and lived there until 1985 when she moved to Germany. N was denied payment of a disability pension by Poland granted to civilian victims of war and repression because she was resident in Germany. ECJ Held: the Polish rule constituted a restriction on free movement of citizens, but could be justified on the grounds of 1) ensuring that there was a connection between the society of the MS concerned and the recipient of a benefit and 2) the necessity of verifying that the recipient continued to satisfy the conditions for grant of the benefit. Nevertheless, the rule was disproportionate, as the fact that N lived in Poland for more than 20 years was sufficient to generate the connection in 1). 2) can also be achieved by other means which are just as effective but less restrictive!

Question 93

Purely internal situations (reverse discrimination)

Answer 93

• Purely internal situations are situations where all elements of case are purely internal to single Member State
• Reverse discrimination is where the national worker cannot claim rights in their own MS but workers who are nationals of other MSs could claim there.

Garcia Avello [2003] — treaty provisions on citizenship conferred rights on C even when they had never left of territory of the MS in which they were born, and were not presently intending to move.

Metock [2008]

Question 94

The ‘genuine enjoyment’ test

Answer 94

applies to the residence permit cases for third country nationals (TCN) below. A European Union citizen who has the option to reside with his family member within a second Member State will not satisfy the condition of deprivation of genuine enjoyment

Question 95

Ruiz Zambrano [2011]

Answer 95

(establishment of the test; non-EU parents and EU children)The case was brought by RZ, a Colombian national, living in Belgium, who had been refused refugee status and was therefore an illegal resident. RZ was benefiting from non-refoulement protection because there was a civil war in Colombia. RZ had no work permit but he did have a job. RZ and his wife had 2 children in Belgium who held Belgian nationality. When the authorities found out that he did not have a working permit, they stopped him working and also denied him unemployment benefits. This is an internal situation as nobody had moved to another MS. RZ wanted the residence permit in Belgium. AG Sharpston: EU citizenship is not wholly bound up with movement between MSs, and that the right of residence and the right to move are independent rather than combined rights. ECJ Held: Article 20 required RZ to be given both a residence and work permit.

Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect!

** It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, circumstances, those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.

**Thus, Art 20 TFEU is to be interpreted as meaning that it precludes a MS from refusing a third country national upon whom his minor children (EU citizens) are dependent, a right of residence in the MS, and from refusing to grant a work permit to that third country national, insofar as such decisions depriving those children of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.

Commentary: Craig: this decision is controversial because it directly challenged the core aspects of MS’s migration policies. Ministers saw it as a means of ‘driving a coach and horses’ through their immigration and social security rules. Barnard: however, subsequent case laws sought to confine the decision to the specific facts of the case. EUDO: limited to carer relationships only, so spouses in McCarthy will NOT count!

Question 96

McCarthy v SSHD [2011]

Answer 96

(refinement of the test; EU wife and non-EU husband) M has dual UK and Irish citizenship, and had lived in the UK all her life. M is married to a Jamaican national (X), who was refused residence rights in the UK. M wants to rely on her right of residence as an EU citizen under the Treaty and Directive 2004/38 so that X could enjoy derived residence rights under Ruiz. The UK did not grant M her residence permit. ECJ Held: the Treaty and Directive claims both to be rejected. Article 3(1) of Directive 2004/38 was NOT applicable to an EU citizen who had never exercised her right to freedom of movement and who had always resided in the MS of which she was a national. In particular it only applied to situations where a Union citizen has moved to another Member State. In addition, the Directive concerns the conditions of residence of a Union citizen in another Member State. As a national of the UK M’s residence there could not be subject to conditions. The Directive was therefore inapplicable.

As a national of at least one Member State, a person such as M enjoys the status of a Union citizen under Article 20(1) TFEU and may therefore rely on the rights pertaining to that status, including against his Member State of origin, in particular the right conferred by Article 21 TFEU to move and reside freely within the territory of the Member States. However, no element of the situation of Mrs McCarthy, as described by the national court, indicates that the national measure at issue in the main proceedings has the effect of depriving her of the genuine enjoyment of the substance of the rights associated with her status as a Union citizen, or of impeding the exercise of her right to move and reside freely within the territory of the Member States, in accordance with Article 21 TFEU. UK law.

Indeed, the failure by the authorities of the United Kingdom to take into account the Irish nationality of Mrs McCarthy for the purposes of granting her a right of residence in the United Kingdom in no way affects her in her right to move and reside freely within the territory of the Member States, or any other right conferred on her by virtue of her status as a Union citizen. In that regard, by contrast with the case of Ruiz Zambrano, the national measure at issue in the main proceedings in the present case does not have the effect of obliging Mrs McCarthy to leave the territory of the European Union. (=no dependency?)

As the Court noted in Grunkin and Paul [2008], in circumstances such as those examined in Garcia Avello, what mattered was not whether the discrepancy in surnames was the result of the dual nationality of the persons concerned, but the fact that that discrepancy was liable to cause serious inconvenience for the Union citizens concerned that constituted an obstacle to freedom of movement that could be justified only if it was based on objective considerations and was proportionate to the legitimate aim pursued (see, to that effect, Grunkin et Paul, paragraphs 23, 24 and 29).

Thus, in Ruiz Zambrano and García Avello, the national measure at issue had the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status or of impeding the exercise of their right of free movement and residence within the territory of the Member States.

Question 97

Commentary on McCarthy

Answer 97

Eeckhout: Applying the Ruiz Zambrano reasoning, M would need to leave the territory of the EU if she wanted to live with her Jamaican husband, and so not giving residence rights to X would deprive M of the genuine enjoyment of the substance of rights conferred by virtue of her status as a Union citizen. But the Court distinguished the cases. Who is able to explain to Mrs McCarthy the “serious inconvenience” of not being able to carry a Spanish double surname, compared to her predicament of not being able to live with her husband in the UK??
EUDO: McCarthy confirms the general rule that EU citizenship law, and in particular Articles 20 and 21 TFEU prohibit national measures that deprive their own nationals of ‘the very enjoyment of the substance of rights conferred by the status of EU citizenship. Contrary to some readings the ‘purely internal’ rule has not been abolished but persists, if in a modified form. Only in exceptional cases, where ‘the very enjoyment of the substance of rights conferred by the status of EU citizenship’ is in question does a situation with no cross-border element fall within the scope of EU law. On the specific (and more practical) issue of residence rights for family members of citizens, McCarthy would appear to limit the application of Zambrano to situations where a carer relationship exists. Thus, whereas in Zambrano the company (and indeed authorisation to work) of a carer-parent was considered essential for the continued residence of the citizen on the territory of the Union, in McCarthy the same logic did not apply to the company of a spouse.

ZCT: artificial to say that spouses do not count but carers do. Why does the court say that M was not obliged to leave the EU and there was no serious professional inconvenience found in Garcio Avello? But then did the wife have to ‘depend’ on the husband in the same way the child had to depend on the parents in Ruiz?

Craig: the ultimate ruling is that Art 21 TFEU does not apply to an EU citizen who has never exercised her right to freedom of movement and has always resided in a MS of which she is national, and who is also a national of another MS provided that
i) she is NOT deprived of the genuine enjoyment of the substance of her EU citizenship rights
ii) Her rights to free movement and residence are not impeded.
It seems artificial to characterise this as a purely internal situation but not doing so in Ruiz by focusing on a relatively slight factual distinction: the perceived difference in the degree of dependence and vulnerability of the EU-citizen family member (i.e. minor children v adult spouses)

Question 98

Dereci [2011]

Answer 98

(refinement of the test; EU wife and children, non-EU husband) D is a Turkish national who entered Austria illegally and married an Austrian citizen. D and his wife had three children, all of whom are Austrian citizens and minors. D is currently resident with his family in Austria. D had his applications for residence permits rejected by the Austrian authorities, which refused to apply provisions under Directive 2004/38/EC for family members of EU citizens on the grounds that D has not exercised right of free movement. Does Art 20 TFEEU preclude Member States from refusing residence permits to the applicants, notwithstanding that each respective Union citizen is not dependent upon his/her family member for their subsistence? ECJ Held:

In Ruiz Zambrano, the question arose as to whether a refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside and a refusal to grant such a person a work permit have such an effect. The Court considered in particular that such a refusal would lead to a situation where those children, who are citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. In those circumstances, those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union. *** It follows that the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of European Union citizen status refers to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.

Consequently, the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.

Question 99

Commentary:

Answer 99

the judgment highlighted the exception nature of the situation in which it can be said that the ‘genuine enjoyment’ deprivation test can be satisfied. But in Ruiz, two non-EU parents (Colombians) can claim the residence permit because of their children. In Dereci, where the wife and the children are EU citizen (Austrian) and the father a non-EU citizen, he cannot claim the residence permit! Why?

Eeckhout: the message sent was that, as a child who is an EU citizen living in her Member State of nationality, you are better off when both your parents are non-EU nationals - Ruiz Zambrano: the whole family can stay in Belgium - compared to when only one of your parents is a non-EU national.
EUDO: Dereci re-asserted the ‘genuine enjoyment’ test in Ruiz and refined the scope of the test. For the test to be satisfied, the Union citizen must be in a situation where he ‘has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole’. This statement seems to suggest that a European Union citizen who has the option to reside with his family member within a second Member State will not satisfy the condition of deprivation of genuine enjoyment. This would, however, render the Ruiz Zambrano test meaningless in its application to non-minor EU citizens that can independently exercise a right of movement within the Union: Member States are prohibited from applying immigration control to third country national family members of migrant EU citizens following the decision of the Court in Metock, and thus all Union citizens capable of exercising their right to free movement have the option to reside with their family members in a second Member State! Whilst this may be unfortunate for those applicants wishing to invoke fundamental rights in favour of their claim to residency, this position of the Court is in keeping with established case law of the Court on the scope of fundamental rights as recognised by Advocate General Sharpston in her Opinion on Ruiz Zambrano.
Shuibhne: McCarthy and Dereci are rights-limiting. But the limits were NOT created in a coherent way:
(1) The ‘genuine enjoyment’ test is problematic:

(a) Unjustified assumption: In Ruiz Zambrano, before it began, the court had already assumed that there would be the ‘forced departure from the territory of the EU test’. There was no ontological profile or guidance for the parameters of the test in RZ:

But in McCarthy, the ECtHR distinguished from situation from that in Ruiz
Zambrano on the basis that the effect of the national measure did not require Mrs McCarthy to leave the territory of the Union, connecting this point to her unconditional right to reside in the UK anyway under international law. In contrast, the Court was content to “assume” (para 44) enforced departure from the Union with respect to the Ruiz Zambrano family!

In McCarthy, AG Kokott confirmed that McCarthy was an internal situation case. The courted noted that there was ‘serious inconvenience’ in Garcia Avello which was not present in McCarthy! The ‘outside the EU’ test was restated in Dereci. How can uprooting a family possibly be seen as less “serious” than surname-use “inconvenience”? There is simply no engagement with these points in McCarthy or Dereci!

There was institutional awareness of Ruiz Zambrano in these cases, but the considerations were unsound. The McCarthy judgment ignored the Carpenter/Akrich respect for family life under Art 8, and Dereci severely curtailed that right!

(b) On internal situations: in Ruiz Zambrano, the internal situation control was pierced as soon as genuine enjoyment was hindered. But then in McCarthy, this exclusionary rule seems to be reinstated again!
(c) Different tests: McCarthy focused on two tests: 1) the genuine enjoyment test and 2) the ‘impediment to free movement’ test, while Dereci exclusively focused on 1). This is a critical point of disjointedness:

♣ In Ruiz Zambrano, we see no need for movement.
♣ In McCarthy, movement is considered but there is a problematic rejection of the possibility that there might be any impediment to it. Impediments to movement are supposed to constitute a distinct – and sufficient – test, yet this was not added in Ruiz
♣ in Dereci, there is no discussion of it at all

(d) Tiered family: After McCarthy, the extent to which the Court had intended to create tiers of families for the purposes of invoking the protection of EU citizenship rights was raised
(e) Use of judicial formula: In McCarthy and Dereci, however, the second problem identified above comes to the fore – what happens when the Court has to choose between potentially applicable formulas?

(2) The ECJ failed to engage with protection of FHR in its case laws
(a) AG Sharpston raised the Carpenter/MRAX/Baumbast/Metock/Akrich case laws. Yet there was no discussion of this AT ALL in Ruiz or McCarthy!
Conclusion: The case law has become so individualistic, so facts-specific, as to raise accusations of arbitrariness. AG Sharpston: “lottery rather than logic would seem to be governing the exercise of EU citizenship rights”!
*******The circumstances in Ruiz Zambrano, McCarthy and Dereci were either all purely internal to one Member State, on a strict construction of the plain facts (and diluting the dual nationality point in McCarthy); or the actual likelihood of forced departure from the Union should have been established rather than presumed in all of them, via the referring courts; or they should all come within a more rights-infused deprivation/genuine enjoyment test; and/or the catch-all net of impediments to prospective movement (drawing from case law such as Garcia Avello and Rottmann).

Question 100

Iida [2012]

Answer 100

(narrow reading of the test; EU wife and daughter, non-EU husband) I is a Japanese national residing in Germany who is the husband of a German national. They have a daughter, with German nationality. At some point the family splits (but there is no divorce), and mother and daughter go to live in Vienna. Although I did not ‘accompany’ nor ‘join’ his wife in Austria. I and his daughter regularly visit each other. As the father of an EU citizen who is residing in another Member State than that of her nationality, I claims permanent residence rights in Germany (where the wife and daughter are from, but not residing in presently), but was refused. ECJ Held: Since I lived in Germany before, he has a right of residence under national law until 2 November 2012, which is prima facie renewable, according to the German Government, and can in principle be granted the status of long-term resident within the meaning of Directive 2003/109. However, the Court finds that I cannot claim a right of residence as a family member of an EU citizen on the basis of Directive 2004/38. Under that directive, such a right presupposes that the direct relative in the ascending line is dependent on the child. I does not satisfy that condition, as it is his daughter who is dependent on him. Mr Iida can be granted a right of residence in Germany on another legal basis, without it being necessary to rely on his daughter and his spouse’s EU citizenship.

It cannot validly be argued that the decision at issue in the main proceedings is liable to deny Mr Iida’s spouse or daughter the genuine enjoyment of the substance of the rights associated with their status of Union citizen or to impede the exercise of their right to move and reside freely within the territory of the Member States. Purely hypothetical prospect of exercising the right of freedom of movement does not establish a sufficient connection with European Union law to justify the application of that law’s provisions.

Commentary: Eeckhout: these cases seem complex and particularly difficult to reconcile, it unfortunately needs to be noted that the above analysis has left issues relating to fundamental-rights protection out of the equation. They render this case law even less convincing.

Question 101

Do Union citizens residing in a host Member State have similar rights
to that of nationals of the host Member State?

Answer 101

The citizenship of the Union stays fundamentally inegalitarian because there is still no equality of
treatment between every union citizen.

article 21.1 TFEU on freedom ofmovement and residence subjects this freedom to the necessary
compliance with limitations and conditions imposed by EU primary and secondary law. The
citizenship directive from 2004 is also imposing conditions to the freedom of movement and
residence of Union citizens especially for long-term residence. This directive even allows Member
states to terminate the residence of Union citizens in case of threat to:

(1) public policy,
(2) public security,
(3) and public health,
(4) of abuse of rights and
(5) of unreasonable burden on the social assistance system of the host Member state.

Question 102

Which Union citizens have the least rights?

Answer 102

The less favoured is certainly the economically inactive resident not fulfilling the
conditions of article 7 (mainly lacking necessary financial resources) and therefore not being a
lawful resident.

Question 103

Who are economically inactive workers?

Answer 103

Economically inactive Union citizens are citizens who are not exercising an economic activity and are
not assimilated to workers by the citizenship directive.

However, Article 7-3 of Directive 2004/38/EC retains the status of workers to certain categories of
economically inactive Union citizens who are temporarily unable to work because of illness or
accident, victims of involuntary unemployment or embarking on vocational training.

Question 104

What are the categories of economically inactive workers?

Answer 104

There is no express reference in the primary and secondary EU law. Nonetheless, there are 5 general
categories:

(1) Job-seekers who are not retaining the status of workers:

(a) First, the first time job-seeker,
(b) Then, job-seekers who are former workers or self-employed persons who have lost their status of
workers:

(i) former workers or self-employed in the host Member State who have left this State for a
significant period,
(ii) former workers or self-employed persons who are not fulfilling the conditions of Article 7-3 of
Directive 2004/38/EC.

(2) Students: article 7.1c of Directive 2004/38/EC is targeting students who are enrolled
at a private or public establishment, accredited or financed by the host Member state
for the principle purpose of following a course of study, including vocational
training.

(3) Pensioners who are not assimilated to workers and not benefiting from the advantages
of article 17 of directive 2004/38/EC. According to the latter, the right of permanent
residence is granted to certain old age pensioners before the completion of a
continuous period of five years of residence.

(4) Short-term tourists,
(5) Poor citizens, not self-sufficient.

Question 105

What rights to economically inactive citizens have?

Answer 105

(1) Residency rights;
(2) Social assistance rights;
(3) Equality of treatment;

Question 106

What are the restrictions on these rights?

Answer 106

(1) Non-lawful residence;
(2) Abuse of rights;
(3) Unreasonable burden on social security system of the host Member State;
(4) Threat to public policy;

Question 107

(1) What residence’s rights and obligations do economically inactive Union citizens have?

Answer 107

Citizenship Directive 2004/38/EC that allows every Union
citizen to benefit from the right to move and reside freely within the territory of the Member
states. The citizenship directive refers to three types of residence: (a) short-term stay for up to
three months, (b) stay for more than three months and (c) permanent residence.

(a) The freedom of movement of economically inactive Union citizens is barely total during the
first three months of stay because short-term stay is permitted without conditions (upon a
valid ID or passport).

(b) Stays more than 3 months are conditional for economically inactive Union citizens. The
Citizenship directive provides for general conditions applying to all economically inactive
Union citizens and specific provisions applying just to certain categories.

(c) According to article 7 of Directive 2004/38/EC, economically inactive Union citizens who
want to stay more than three months have to fulfill two main requirements:

(i) The possession of sufficient financial resources to support themselves and their
family members (article 7-2 and article 8-4), the aim being not becoming an
unreasonable burden for the host Member State. Students are here privileged
because a simple declaration of self-sufficiency or equivalent is accepted in their case
while other economically inactive citizens have to prove their self-sufficiency
(art.7.1c).

(ii) The possession of comprehensive sickness insurance. The insurance’s form (private
or public) and origin (from the host Member state or another State) are not relevant as
far as the insurance covers the territory of the host State and provides for a
comprehensive coverage.

There is a special provision in article 14-4 for economically inactive Union citizens who are
job-seekers in the host Member State. As far as they are seeking employment and have a
genuine chance of being engaged, they benefit from the right of residence and should not be
expelled.

Article 7 has also a special provision for students. They benefit from a right of residence of
more than three months as far as they are enrolled at a private or public establishment,
accredited or financed by the host Member State.

Question 108

How to acquire permanent residence?

Answer 108

Concerning the last type of residence, the permanent residence, economically inactive Union
citizens who wish to benefit from it should demonstrate a legal stay for a continuous period of
five years in the host Member State. Exceptionally, the permanent residence can be granted
before five years of residence if the Union citizen is fulfilling the conditions of article 17 of
Directive 2004/38/EC (for example, an old-age pensioner who is a former worker for a certain
period in the host Member state).

Question 109

(2) What social assistance rights do economically inactive citizens have?

Answer 109

In the Brey’s case C-140/12, the Court considered that social assistance refers to all assistance
introduced by public authorities, whether at national, regional, local level, that can be claimed
by an individual who does not have sufficient resources to meet his own basic needs and the
needs of his family and for this reason might become a burden. The concept of social
assistance has been interpreted narrowly by the Court of Justice, allowing Union citizens on
the move to be granted more social benefits in the host Member state. It does not include, for
example, exceptional or unforeseen needs (Chakroun- C-578/08) or benefits of a financial
nature intended to facilitate access to the labour market (Vatsouras- C-22/08 and C-23/08).

Directive 2004/38/EC mentions access to social assistance for economically inactive Union
citizens in its provision on equal treatment (article 24). There is first a general provision
stating that the host Member state is not obliged to confer entitlement to social assistance
during the first three months of residence. Then, there is a special provision for job seekers
who can provide evidence that they are seeking employment and have a genuine chance of
being engaged. For those persons, entitlement to social assistance is not compulsory during the
period of search of a job in the host Member state.

There is also a special provision for
students. The host Member state is not obliged to grant maintenance aid for studies like
student grants or student loans before the acquisition of the permanent residence. It is clear
from the provisions of the Citizenship directive that access to social assistance is very limited
for economically inactive Union citizens

Question 110

How has the Court interpreted the restrictions?

Answer 110

In November 2014, the Court changed its approach from interpreting restrictively the exceptions to its
approach in Dano’s case by stating that a Member State must have the possibility of
refusing to grant social benefits to economically inactive Union citizens who exercise their
right to freedom of movement solely in order to obtain another Member State’s social
assistance although they do not have sufficient resources to claim a right of residence.

Question 111

Summary of social assistance rights:

Answer 111

As Jean-Claude Barbier has already said, despite far-reaching Europeanization, access to
social protection has, since the Treaty of Rome in 1957, remained firmly national and EU
law still does not treat economic and social rights in an equivalent way. Most of the texts
establishing social rights concern the workers (Regulation 883/2004 on the coordination of
social security systems, Community Charter of fundamental social rights for workers from
1989) with the exception of the Charter of fundamental rights from 2000 which includes
also the economically inactive Union citizens.

Question 112

(3) What does ‘equality of treatment’ mean for EU economically inactive citizens?

Answer 112

The citizenship directive itself does not provide a full equality of treatment to
all Union citizens moving to another Member state. Indeed, this equality of treatment claimed
by article 24.1 of Directive 2004/38/EC17 and by article 18 TFEU (no discrimination on the
basis of nationality) is still virtual in many areas.

The proclamation of equality of treatment at Article 24.1 is in fact jeopardized by the second
point of this article which states special derogations to this general principle. These
derogations are mainly targeting economically inactive citizens. Their access to social
assistance and to maintenance aid for studies is limited during the first 3 months or more or
before they acquire the permanent residence.

Question 113

Where are the tensions in EU law in terms of equality of treatment?

Answer 113

There is a clear tension between the declaration of equality of treatment of Article 24-1 and of
Article 18 TFUE on one side, and the limitations of the right to access to social benefit and
other provisions, on the other side. There is also a clear tension between the inequality of
treatment of economically inactive Union citizens and the proclamations of some provisions
of the Charter of fundamental rights of the European Union. This is the case of article 34
which states that everyone residing and moving legally within the European Union is entitled
to social security benefits and social advantages in accordance with Union law and national
laws and practices.

Question 114

What are the limitations on (1) grounds of non-lawful residence?

Answer 114

Economically inactive Union citizens who intend to stay more than three months in the host
Member state are supposed to be self-sufficient and to possess comprehensive sickness
insurance. Those who are not fulfilling these conditions are not lawful residents. Expulsion is not
automatic.

This raises questions about discrimination of poor citizens!

Question 115

How do the grounds of non-lawful residence discriminate against poorer citizens?

Answer 115

The great differentiation of living standards between the 28 Member states explains different needs
among Union citizens. A Romanian citizen is capable to live with very modest means while a
German citizen will need a higher standard of living. Why a Romanian citizen should not be
able to stay in France while living in poor conditions, under the local standard, nevertheless
satisfactory for him? His level of standard in France still being much higher than the one he
had in his country of origin. Poverty should not be punished by the sanction of illegality of
stay. Should not we give poor Union citizens on the move the chance to improve their living
standard with time and adjust the local standards of the host Member state? And this time
might take more than the three months delay required by the Citizenship directive.

We should take also into account the case of homeless persons on the move. These persons
neither at home neither on the territory of the host Member state will fulfill the conditions of
article 7 of the Citizenship directive. Shall they, for this reason, limit their residence in
another Member state to a maximum of three months even if they don’t represent any burden
for the social security system of the host Member state?

Question 116

What are the limitations on (2) abuse of rights grounds?

Answer 116

Article 35 of the Citizenship directive allows the host Member state to refuse, terminate or
withdraw any right conferred by this Directive in case of abuse of rights. This particular
provision has been used by some Member states to restrict the right of residence of
economically inactive Union citizens. This practice has been facilitated by the fact that the
Directive leaves to the Member states the task to define this notion. Besides the marriage of
convenience which constitutes the most usual abuse of rights, Member States have enacted
various forms of abuses.

France, for example, has opted for a very extensive definition of the abuse of rights allowing
an easy expulsion of economically inactive Union citizens. The French definition of abuse of
rights under Article L-511-3-1 of CESEDA21 comprehends two cases:

• First case: The Union citizen is renewing stays of less than 3 months in order to
remain on the French territory while the conditions for a stay of more than 3 months
are not met.

• Second case: The Union citizen is staying in France with the primary aim to benefit
from the French social assistance system.

Question 117

What are the limitations on (3) grounds of unreasonable burden on the social seccurity system of
the host Member State?

Answer 117

According to article 14 of Directive 2004/38/EC on the retention of the right of residence,
Union citizens have the right of residence provided by article 6 (stays up to three months) as
long as they do not become an unreasonable burden on the social security system of the host
Member state (paragraph 1). This provision is firstly contradicting the unconditional right of
residence for short-term movers, the only equal right that benefits to economically inactive
Union citizens. Moreover, the utility of this provision is doubtful as, in practice, the shortness
of the stay is excluding the existence of an unreasonable burden, the access to social
assistance not being available most of the time.

Similarly, Union citizens residing for more than three months in the host Member states have
the right of residence as far as they respect the conditions laid down by article 7 (sufficient
resources and comprehensive sickness insurance) of Directive 2004/38/EC (paragraph 2).
Paragraph three specifies that an expulsion measure should not be the automatic consequence
of a Union citizen‘s recourse to the social assistance system of the host Member state. These
provisions allow the host Member state to terminate the right of residence of the Union citizen
being an unreasonable burden. While the word expulsion is expressly used for the general
grounds of threat to public order, public security and public health, indirectly used for the
burden on the social assistance system, the ground of abuse of rights privileges the
expressions „terminate“ and „withdraw“ the right of residence. In practice, all these
limitations are conducing to the same result, the departure of the migrant from the host
Member state. But the form of departure is differing a lot if it is a voluntary departure or a
forced expulsion.

Question 118

What are the main categories of people mostly affected by this ground?

Answer 118

Mainly two categories of people have been affected by the Belgian measures: students and
economically poor citizens (families with insufficient financial resources, job seekers, and so on).
Many of Belgium’s administrative practices towards Union migrants have been criticized.
First, the automatic refusal of stays of Union citizens who have not provided proof of
sufficient resources in time is certainly a disproportionate sanction. Secondly, Belgium is also
accused of systematically controlling the economic situation of economically inactive Union
migrants. Indeed, as soon as the migrants are granted Belgian social welfare or professional
reintegration status, an alert system is triggered to allow the Belgian administration in charge
of foreigners to retry their right of stay after three months of residence on the ground of
unreasonable burden to the Belgian social assistance system

Question 119

What are the limitations on (4) grounds of public policy?

Answer 119

Some Member states like France are using the ground of threat to public policy normally
reserved to serious threats to fundamental interests of the State to expel economically inactive
Union citizens. This has been possible thanks to the important margin of manoeuvre given to
Member states regarding the definition of legal grounds restricting freedom of residence.

E.g. illegal occupation of property and stealing in landfills by Romanian and Bulgarian citizens were
considered to be a threat to French public policy. It is in contradiction to the established jurisprudence
of French courts according to which the illegal occupation of a settlement, even in circumstances
constituting a risk to health policy, is
not sufficient to qualify as a threat to public policy. Indeed, many administrative French
appeal courts have held that the illegal occupation of a settlement is not sufficient – in the
absence of exceptional circumstances – to establish that the stay of a Romanian citizen in
France constitutes a threat to public policy.

Question 120

What was significant about the Grzelcyck case?

Answer 120

In the Grzelcyck case, the Court of Justice reminded that a certain degree of
financial solidarity between nationals of a host Member State and nationals of other Member
States should prevail, particularly if the difficulties encountered are temporary.

Question 121

What is the position today?

Answer 121

Primary and secondary Union law limits this solidarity to lawful residents. The Court of Justice followed
this way in the Dano’s case in 2014. An economically inactive resident is lawful only if he is
in possession of sufficient financial resources and of comprehensive sickness insurance.

Question 122

How could the law be changed?

Answer 122

(1) soften the concept of lawfulness of residence of economically inactive Union citizens

Economically inactive Union citizens non-self-sufficient could benefit from a lawful residence as
far as they are not a burden for the social assistance system of the host Member state. National
budgets of the host Member states would not be put in danger.

(2) Another solution, which is a far much ambitious way, would be to give a more dense meaning to
the citizenship of the Union including a social citizenship. (See B. Bercusson, Manifesto for a social
Europe, European Law Journal, 3(2), pp. 189-205. See also Christoph Schonberger, European
Citizenship as Federal Citizenship. Some Citizenship Lessons of Comparative Federalism, Revue
Européenne de Droit Public, Vol. 19, Nb. 1, 2007, pp. 61-81. In this last article, Christoph
Schonberger reminds that Federal citizenship in the United States really came true when all federated
States agreed not only on the free movement of the poor citizens of the other States but also on their
access to social assistance.

Such an evolution would require the political will of the Member States to develop further the
content and scope of the citizenship of the Union. However such a big step would participate
to the realization of one of the objective of the European Union and of the Charter of
fundamental rights which is combating social exclusion.

Question 123

What is the incompatibility between the exceptions to equal treatment with the Charter of fundamental
rights of the European Union?

Answer 123

In the Dano case, the German court posed one important question to the Court of Justice that
unfortunately did not receive any answer. The question was: To what extent the refusal of social
assistance to non-economically active Union citizens respects Articles 1 (human dignity) and 20
(equality before the law) of the Charter of fundamental rights of the European Union? Indeed, we
can ask ourselves to what extent the “differential treatment” of economically non-active Union
citizens is compatible with the concept of a European citizenship and of all the fundamental
rights linked to it.

Question 124

What are the issues with the current grounds allowing for expulsion of Union citizens and mainly
economically inactive citizens for different reasons?

Answer 124

(1) Itis endangering legal security. There is a clear risk of abuse of their expulsions powers by the
Member states.

(2) Secondly, the uniformity of application of the law of the Union is not guaranteed.

(3) Thirdly, the principle of equality of treatment between Union citizens on the move
is also reached. A Union citizen can be expelled in France on the ground of
renewing stays of three months while he would not be expelled in the Czech
Republic.

Question 125

Is expulsion subject to any limitation?

Answer 125

Articles 27 and 28 of Directive 2004/38/EC are reminding, expulsion measures should be
subject to the principle of proportionality. In the Gebhard’s case, the Court stated that such
measures must be appropriate for securing the attainment of the objective which it pursues
and must not go beyond what is necessary in order to obtain it.

Moreover, expulsion measures cannot serve economic ends. For these reasons, in cases of social
tourism, sanctions should really be limited to the refusal of the requested social assistance. As Pierre
Rodière and Jean-Yves Carlier already said, we should not forget that social tourism is in fact
poverty tourism.

Question 126

What is the starting position regarding the rights of an economically inactive Union citizen?

Answer 126

They do not have unconditional access to social benefits. In this initial case law, the Court stated,
inter alia, that the person concerned may not constitute an unreasonable burden on the public
finances (Grzelczyk) must have a sufficient link with the labour market of the host country (Collins)
or must be able to demonstrate a certain degree of integration into the host society (Bidar).
For the Court, requiring this kind of sufficient link with the host Member State is a legitimate objective
that can justify restrictions on the right of free movement (Baumbast and Commission v Belgium).

Question 127

What is the second point for consideration re rights of economically inactive Union citizen according to the case law?

Answer 127

They do not have unconditional access to social benefits. In this initial case law, the Court stated,
inter alia, that the person concerned may not constitute an unreasonable burden on the public
finances (Grzelczyk) must have a sufficient link with the labour market of the host country (Collins)
or must be able to demonstrate a certain degree of integration into the host society (Bidar).
For the Court, requiring this kind of sufficient link with the host Member State is a legitimate objective
that can justify restrictions on the right of free movement (Baumbast and Commission v Belgium).

Question 128

Is there any authority in EU law re Union citizens not having unconditional access to social benefits?

Answer 128

Directive 2004/38:

Economically inactive Union citizens only have a right of residence in the host Member State in the
first three months if they do not constitute an unreasonable burden on the social assistance system of
the host country (Article 6 juncto Article 14(1)). After these first three months and until they have
obtained a permanent right of residence after a legal stay of five years, their right of residence
depends on them having sufficient resources for themselves and their family members in order to
prevent them from becoming a burden on the social assistance system of the host country
(Article 7(1)b)).

Moreover, Article 24(2) of this Directive states that Union citizens who are economically inactive
are not entitled to social assistance in the first three months of their stay in the host Member State.
An even longer period applies to jobseekers, more specifically, in the period that they continue to
seek employment and have a genuine chance of finding a job and therefore a right of residence in
this Member State.

Question 129

What is the main justification for the restriction to benefits?

Answer 129

The protection of public funds (Brey).

Question 130

What did Botond Koszegi argue for in terms of regulation?

Answer 130

He assumes that consumers choose between studying and browsing (studying = examining a product
or service in depth; browsing = comparison shopping between alternatives but only superficially.
Limited time and energy means consumers have to choose.

Since comparing products is costly, there is less of it - and therefore producers face less competition.
This means that they can get away with selling shoddier goods and services at a higher prices than
they otherwise would.This is where public regulation comes in. By freeing consumers form the need
to ‘study’ what they buy, product and service standards induces more ‘browsing’ or comparison
shopping and therefore more competition. The results are greater economic efficiency, lower prices
and higher quality - over and above any effect that the requirements the regulation imposes.

Ultimately, he argues that deregulation, by making it easier for companies to hide what they’re really
selling, reduces competition. Regulators are not perfect, but a wholesale withdrawal would hurt
vulnerable and uninformed consumers, economic efficiency and gross domestic product.

In terms of Brexit, EU regulation allow economic actors to co-ordinate in mutuall beneficial ways
across borders which boosts trade. As a result, Britain will need to retain its regulations.

Question 131

They do not have unconditional access to social benefits.

Answer 131

(1) Must be an EU national, making them an EU citizen under Article 20(1).

(2) If they exercise their free movement then they are protected by the Citizens Directive. They
must satisfy Article 7 of the Directive - right of residence for more than three months. If the citizen
is not a worker they need sufficient resources.

(3) They cannot relu on the equal treatment rule for subsistence allowance.

Question 132

They do not have unconditional access to social benefits.

Relevant cases:

Answer 132

(1) Grzelczyk was entitled to the financial support for his studies (‘minimex’). Although CRD
art 7(1)(c) required a student to have sufficient resources, there was no requirement to preclude
students receiving social security. TFEU art 21 with art 18 precluded the Belgian law discriminating
against Grzelczyk. This is because citizenship was held to be, ‘the fundamental status of nationals
of the 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 exceptions as are expressly
provided for.’

(2) Dano: Ms Dano and her son were Romanian nationals who lived in Germany. Ms Dano did
not have sufficient resources, did not work and was not seeking work. She did have a limited
residence certificate and received child benefit for her son but was denied subsistence benefit
because she was a foreign national who was not economically active. The Court examined whether
the denial complied with the principle of non-discrimination on grounds of nationality but ultimately
held that Article 7(1)(b) of Directive 2004/38 seeks to prevent economically inactive Union citizens
from using the host Member State’s welfare system to fund their means of subsistence. A Member
State must therefore have the possibility, pursuant to Article 7 of Directive 2004/38, of refusing to
grant social benefits to economically inactive Union citizens who exercise their right to freedom of
movement solely in order to obtain another Member State’s social assistance although they do
not have sufficient resources to claim a right of residence.

Question 133

Does a student have a right to maintenance grant/laons?

Answer 133

There are 2 ways:

(1) EU law does not impose an obligation on member states to grant assistance for studies abroad
(in another member state). In the recent case of Martens, a Dutch national moved to Belgium with
her parents aged 6 and received primary and secondary legislation. She then attended university in
Curacao and worked part-time after in the Netherlands. She then applied to Dutch authorities for a
study grant. In the application, she falsely declared that she resided in the Netherlands for three out
of the six years preceding the beginning of her studies (required under Dutch law for eligibility for
study finance to nationals and non-nationals alike). Ms Martens was granted the money but after
a check by the ministry, her grant was retracted and she was ordered to repay the money. The Court
reconfirmed that as a Union citizen, Ms Martens has the right to rely on that status even against her
MS of origin. However, MSs do not have any obligation under EU law to provide any funding for
higher education. If a State choses to do so, the funding scheme must not ‘create an unjustified
restriction of the rights to move and reside within the territory of the member states’ or dissuade a
national from using his or her free movement rights. The Dutch three-out-of-six rule was likely to
penalise students who had exercised their free movement rights. Ultimately, Ms Martens was given
the right solely on the basis on having made use of the rights conferred on her by her status as a
Union citizen, a non-economically active one for that matter. Furthermore, the Dutch authorities’
public interest argument was justifiable, but the residence requirement was ‘too exclusive and
arbitrary’ as there were other factors which could demonstrate a genuine link with the member
state e.g. nationality of the student, his/her schooling, family, employment, language skills.

(2) A general claim by arguing that Italy’s measures discriminates on grounds of movement.
Restricting such free movement is contrary to Article 21(1). Moreover, in the key case of D’Hoop,
a Belgian national completed her secondary education in France and returned to Belgium for tertiary
education. At the end of her studies she applied for an unemployment benefit for young people fresh
out of studies. Her application was rejected on the basis that se did not receive her secondary
education in Belgium. However, the ECJ held that she could rely on the principle of equal
treatment because (a) she was a Belgian national, and therefore a Union citizen, and (b) she
exercised her right to movement. The claimant had been ‘placed at a disadvantage by
discriminatory provisions’ on the basis of having exercised her rights of free movement in order
to pursue education in another MS. This constituted a restriction on free movement.

Question 134

Which Article establishes Union citizenship and the right to freely move and reside?

Answer 134

Article 20(1) TFEU establishes Union citizenship to every person holding the nationality of a Member 
State. Article 21(1) TFEU states, ‘every citizen of the Union shall have the right to move and freely
reside within the territory of the Member States, subject to the limitations and conditions laid down in 
the Treaties and by the measures adopted to give them effect.’

Question 135

How can a non-EU citizen claim a right to reside in a Member State?

Answer 135

Either:

(1) that they have a right of residence under the Directive 2004/38 as the spouse of an EU citizen
(Article 2(2)(a)) or

(2) that refusal to allow them to reside in the EU MS amounts to the possible deprivation of ‘genuine
enjoyment’ of EU citizenship (introduced by Ruiz Zambrano and refined by McCarthy and Dereci).

Question 136

When does Directive 2004/38 not apply?

Answer 136

If a citizen is living in their home EU member state and has not worked in other EU member state,
then this Directive does not apply. All movement of non-EU family members into the home state is
governed by national law.

Question 137

What if a EU citizen briefly studies in another country?

Answer 137

In Moser, the ECJ held that ‘a purely hypothetical prospect of employment in in another MS does not
establish a sufficient connection with Community law’. Mr Moser had passed the second state
examination when he was younger but this did not necessarily mean that he was entitled to secure
the post-graduate training to become a teacher in Germany. Therefore, studying for a year many
years ago means that it is too remote to satisfy the requirement of the Directive 2004/38 that the
citizen has worked in another EU MS

Question 138

What is the deprivation of ‘genuine enjoyment’ test?

Answer 138

It applies to the residence permit cases for third country nationals. The seminal case of
Ruiz Zambrano [2011] established this test.

Question 139

What were the facts/held in Ruiz Zambrano?

Answer 139

A Colombian national (RZ) lived in Germany and was refused refugee status. He was therefore an
illegal resident. RZ had no work permit but he did have a job. RZ and his wife had two children in
Belgium who held Belgian nationality. When the authorities found out that he did not have a
working permit, they stopped him working and denied him unemployment benefits.

Article 20 TFEU precludes national measures which have the effect of depriving citizens of the
Union the genuine enjoyment of the substance of the rights conferred by virtue of their status as
citizens of the Union. In this case, the ECJ held that Article 20 require RZ to be given both a
residence and work permit. This is because refusal to grant a right of residence to a third country
national with dependent minor children in the MS where those children are nationals and reside
has the effect of depriving the children of the EU rights. The minors would have to leave the
territory of the Union in order to accompany their parents.

Question 140

What is the current ‘genuine enjoyment’ test?

Answer 140

The ‘genuine enjoyment’ test formulated in McCarthy v SSHD and Dereci.

Question 141

What were the facts/held in McCarthy?

Answer 141

M has dual UK and Irish citizenship, and had lived in the UK all her life. M is married to a
Jamaican national (X), who was refused residence rights in the UK. M wants to rely on her
right of residence as an EU citizen under the Treaty and Directive 2004/38 so that X could enjoy
derived residence rights under Ruiz. The UK did not grant M her residence permit.

ECJ Held: the Treaty and Directive claims both to be rejected. Article 3(1) of Directive 2004/38 was
NOT applicable to an EU citizen who had never exercised her right to freedom of movement and who
had always resided in the MS of which she was a national. In particular it only applied to situations
where a Union citizen has moved to another Member State. In addition, the Directive concerns the
conditions of residence of a Union citizen in another Member State. As a national of the UK M’s
residence there could not be subject to conditions. The Directive was therefore inapplicable.

Key: The failure by the authorities of the United Kingdom to take into account the Irish nationality
of Mrs McCarthy for the purposes of granting her a right of residence in the United Kingdom in no
way affects her in her right to move and reside freely within the territory of the Member States, or
any other right conferred on her by virtue of her status as a Union citizen.

Question 142

What were the facts/held in Dereci?

Answer 142

D is a Turkish national who entered Austria illegally and married an Austrian citizen. D and his
wife had three children, all of whom are Austrian citizens and minors. D is currently resident with
his family in Austria. D had his applications for residence permits rejected by the Austrian authorities,
which refused to apply provisions under Directive 2004/38/EC for family members of EU citizens on
the grounds that D has not exercised right of free movement. Does Art 20 TFEEU preclude Member
States from refusing residence permits to the applicants, notwithstanding that each respective
Union citizen is not dependent upon his/her family member for their subsistence?

ECJ Held: the mere fact that it might appear desirable to a national of a Member State, for economic
reasons or in order to keep his family together in the territory of the Union, for the members of his
family who do not have the nationality of a Member State to be able to reside with him in the
territory of the Union, is not sufficient in itself to support the view that the Union citizen will be
forced to leave Union territory if such a right is not granted.

Commentary: the judgment highlighted the exceptional nature of the situation in which it can be said
that the ‘genuine enjoyment’ deprivation test can be satisfied. But in Ruiz, two non-EU parents
(Colombians) can claim the residence permit because of their children. In Dereci, where the wife
and the children are EU citizen (Austrian) and the father a non-EU citizen, he cannot claim the
residence permit!

Question 143

How does this square with Garcia Avello?

Answer 143

AG Kokott confirmed that McCarthy was an internal situation case. The courted noted that there
was ‘serious inconvenience’ in Garcia Avello which was not present in McCarthy! The ‘outside the
EU’ test was restated in Dereci.

How can uprooting a family possibly be seen as less “serious” than surname-use
“inconvenience”? There is simply no engagement with these points in McCarthy or Dereci!

Question 144

What were the facts/held in Garcia Avello?

Answer 144

GA (Spanish) married a Belgian national (Weber), and they lived together in Belgium. They had
2 children who were given their father’s surname (GA). GA then applied to the Belgian authorities
to have the children’s surnames changed to Garcia Weber, reflecting the Spanish patterns for
surnames. The Belgian authorities did not allow that because usually ‘children bear their father’s
surname’.

Held: the citizenship provisions applied here. Since the children had dual nationality, they enjoyed
the status of citizen of the Union as well as equal treatment. They suffered discrimination on the
ground of nationality in respect of their surname. Although, as Community law stands at present,
the rules governing a person’s surname are matters coming within the competence of the Member
States, the latter must none the less, when exercising that competence, comply with Community
law. The Belgian government’s justifications (immutability of surnames as a founding principle of
social order and integration of foreign nationals) are rejected. Arts 18 and 20 TFEU precluded
the Belgian authorities from refusing a name change to GA’s children

Citizenship of the Union, established by Article 17 EC, is not, however, intended to extend the
scope ratione materiae of the Treaty also to internal situations which have no link with Community
law. Such a link with Community law DOES, however, exist in regard to persons in a situation
such as that of the children of Mr Garcia Avello, who are nationals of one Member State lawfully
resident in the territory of another Member State. That conclusion cannot be invalidated by the fact
that the children involved in the main proceedings also have the nationality of the Member State
in which they have been resident since their birth and which, according to the authorities of that
State, is by virtue of that fact the only nationality recognised by the latter. It is not permissible for
a Member State to restrict the effects of the grant of the nationality of another Member State
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. They had a right to be treated in a
manner different to that in which persons having only Belgian nationality are treated, unless
the treatment in issue can be justified on objective grounds.

Question 145

Overview:

Answer 145

McCarthy confirms the general rule that EU citizenship law, and in particular Articles 20 and 21
TFEU prohibit national measures that deprive their own nationals of ‘the very enjoyment of the
substance of rights conferred by the status of EU citizenship. Contrary to some readings the
‘purely internal’ rule has not been abolished but persists, if in a modified form. Only in exceptional
cases, where ‘the very enjoyment of the substance of rights conferred by the status of EU citizenship’
is in question does a situation with no cross-border element fall within the scope of EU law. On the
specific (and more practical) issue of residence rights for family members of citizens, McCarthy
would appear to limit the application of Zambrano to situations where a carer relationship exists.
Thus, whereas in Zambrano the company (and indeed authorisation to work) of a carer-parent
was considered essential for the continued residence of the citizen on the territory of the Union, in
McCarthy the same logic did not apply to the company of a spouse.

Question 146

How else might a non-EU national seek to enforce rights to reside?

Answer 146

In Dereci, the court underlined that all MSs are party to the European Convention of Human
Rights. Article 8 of The Convention asserts the ‘right to private and family life’. This inconvenience
interrupts this right. However, the court in Dereci also deferred any guidance to the national courts.