LLM in EU Law candidate, King’s College London; LL.B. (Hons) Dunelm
December 16, 2011 saw the Institute of Advance Legal Studies in Russell Square play host to a variety (and quite a diverse group) of legal scholars, practitioners and students all with one aim in mind – to uncover, or rather, as the title eludes, “unleashing the potential” of Union citizenship. Whilst this realm of the EU is not always one which is hotly debated or prominently featured in the media, it is nonetheless an extremely pertinent and exciting area where developments are constantly surprising, even for those who have been in it for several years.
The organisers of the seminar invited speakers from different backgrounds – from academics, such as the convenor, Professor Eleanor Spaventa, to representatives of the Citizens Advice Bureau. They dealt with controversial points as well as unorthodox perspectives on Union citizenship and their presentations gave rise to lively debates, especially between legal practitioners (one of whom had represented Mrs. McCarthy in the seminal McCarthy[i] case where perhaps the potential of Union citizenship was not so much unleashed than reined back).
The seminar kicked off with the introduction and discussion surrounding the political technicalities of free movement of Union citizens, spearheaded by Mr. Michal Meduna from the European Commission. This included analysis of Article 20, Treaty on the Functioning of the European Union (TFEU)[ii] as well as Directive 2004/38 (The Citizens’ Rights Directive).[iii] Quite a technical beginning it was, however, the gist of the presentation was to reiterate that Member States have faced significant issues while implementing the Directive, with 1100 mistakes found across the 27 Member States. As an example, Mr. Meduna brought attention to the situation in Denmark, which is notoriously denying Union citizens’ spouses entry, despite it being a right under Article 2 of the Directive (providing for an automatic right of entry and residence for core family members, irrespective of their Union citizenship status). Ms Catherine Taroni, PhD candidate at Durham University, then continued by presenting her take on the UK’s implementation of Directive 2004/38. A particular focus was placed on the case law of family rights to residence, and the fact that British McCarthy case, compared to Avello[iv] and Grunkin and Paul,[v] now demonstrates a clear shift away from potential movement to need of actual movement in order to rely upon the Directive. At least this was the opinion of Miss Taroni, though it is certainly debatable given the different factual situations in the cases themselves. However, for a Union citizenship enthusiast and believer, the shift is nonetheless present, and frowned upon.
This discussion led nicely into Mr. Simon Cox’s (Open Society Justice Initiative and lawyer for Mrs. McCarthy) criticism of the framework for enjoyment of Union citizenship rights. He noted more than few obstacles, with the general consensus being that at least in the UK, pragmatism and bureaucracy rather than formal legal restraints prevented the potential of citizenship rights to be unleashed. It was an eye-opening perspective to the process from a practical standpoint. Mr. Cox noted it was “excessive unpicking” for using the Directive to gain rights to residence, and noted that benefit tourism, a classic excuse against rights conferral, had not yet been proven. At this point, it was clear that whilst Union citizenship rights were aplenty, its potential was still being significantly held back by various different factors, not least the judicial process itself. It was clear that Mr. Cox favoured the empowerment of citizenship rights, and was frustrated at its troubles.
Professor Robin White of the University of Leicester then discussed Article 18 TFEU’s (equal treatment) application to residency seen first in Baumbast.[vi] He noted it filled a lacuna in Union citizenship rights. His topic of discussion was particularly pertinent given Zambrano’s[vii] recent radicalism in its conferral of an independent right to residence on the basis of Article 20 TFEU, separate from Directive 2004/38. Professor Bernard Ryan of the University of Kent then succeeded Professor White by noting the inherent tensions in permanent residence conferral compared to legal residence. The controversy surrounded any time periods spent in residence pre-Directive 2004/38 and whether this counted towards the five years needed for permanent residency. It became evident that there was hesitance because Member States had interest in protecting their social assistance systems, yet it ran counter to the idea of unleashing Union citizenship’s potential. This trend was evident throughout many of the seminar presentations, and it became more and more obvious that there was a significant depression in faith held of the strength of Union citizenship rights, at least held by those who had seen its effects and followed its development since Maastricht.
This tone continued into Dr. Charlotte O’Brien’s (York University) discussion both as an academic and a volunteer practitioner at the Citizens’ Advice Bureau. She took a condemnatory tone having seen the law apply (or not) to citizens who required legal advice, given the blatant disregard by some Member States. This was the rhetoric of the Citizens’ Advice Bureau representatives themselves, and the fact that it was concreted into the application by Member States only served to prove the point that unleashing citizenship’s potential was becoming more and more difficult. However, Richard Drabble QC who featured in Lassal[viii] did note that the UK were willing to recognise when their references to the Court of Justice were necessary, providing a glimmer of hope for citizenship which this author certainly favours. Finally, a completely new turn was taken by Dr. Amandine Garde of Durham University (a King’s Alumni) in her expertise as an Internal Market academic, with the notion that citizenship rights could be better protected if premised upon the best interests of the child principle, also the welfare principle. This was in the context of family reunification and family rights in Directive 2004/38. It provided a fresh outlook on citizenship, considering the downward spiral insinuated by many presentations and indeed in the heated discussions in between. Whilst there was clear uncertainty as to the welfare principle’s application, a fundamental rights discourse had been introduced. This is pertinent given the introduction of Article 6, Treaty of the European Union (TEU)[ix] in the Lisbon Treaty where the Charter of Fundamental Rights and European Convention on Human Rights were finally given equal status with the main Treaties of the EU.
For a Union citizenship fanatic such as me, it was a greatly informative and extremely relevant seminar. The introduction of the fundamental rights discourse also left the attendees with something to ponder, and indeed could be used to further “unleash the potential” of these clearly significant and potentially life-altering rights. Representation from both sides of the legal coin in the presence of QCs, academics and indeed, feeble students such as myself made the discussion and debate a varied and novel one. Even those without the background knowledge and experience some of the attendees had under their belts could see the intricacies and nuances of this particular area of EU Law, and undoubtedly more seminars on this dynamic topic will follow.
[i] Case C‑434/09 McCarthy  ECR I‑0000
[ii] Consolidated version of the Treaty on the Functioning of the European Union  OJ C-115/47
[iii] Council Directive 2004/38 of of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States  OJ L-158/77
[iv] C-148/02 Garcia Avello  ECR I-11613
[v] C-353/06 Grunkin and Paul  ECR I-07639
[vi] C-413/99 Baumbast  ECR I-7091
[vii] Case C‑34/09 Ruiz Zambrano  ECR I-0000
[viii] Case C‑162/09 Lassal  ECR I‑0000
[ix] Consolidated Version of the Treaty on European Union  OJ C115/13