LLM student at King’s College London
This year has been deemed the Year of the Citizen by the European Union, thus it seems appropriate to look at what it actually means to be an EU citizen today. EU Citizenship was introduced (some would say invented) in 1992.[i] It was initially a merely symbolic concept with very few actual consequences; however the Court of Justice of the European Union (the Court, the Court of Justice) has over the years significantly expanded its relevance to create a number of rights. In one early case, Grzelczyk, the Court stated “Union citizenship is destined 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.”[ii] In this article I shall first briefly explore what is meant by the phrase ‘fundamental status’ and then contrast its possible meanings against some of the Courts case law.
The Fundamental Status Question
What is meant by making EU citizenship the ‘fundamental status’ of nationals of Member States is not expanded upon by the Court. One could see there are two possible meanings of ‘fundamental status.’
The first is the idea that it is the most important status for citizens implying that it supersedes any national identity. This seems to be incorrect since Article 9 of the Treaty on the European Union provides that ‘Citizenship of the Union shall be additional to and not replace national citizenship.’ The fact that citizenship is dependent on Member State nationality also discredits this definition of ‘fundamental status.’
The second possible meaning is that it is supposed to eliminate the possibility of discrimination on the basis of nationality. The idea being that once EU law is engaged the only status that matters is our EU citizenship. This is supported by the principle laid down in the case of Martinez-Sala[iii] that citizenship provisions may only be invoked where EU law is engaged; they are not applicable in purely internal situations. However the Court has certainly expanded the concept of EU citizenship in unexpected ways in order to rule on matters which seemed to be purely internal situations. The case-law on this point shall be explored below, but first it is important to discuss the case of Martinez-Sala in more detail.
It is always important to discuss Martinez-Sala case when exploring the direction in which the Court of Justice is taking citizenship because it represents a big shift in the ideals underpinning the EU model.
The case concerned a Spanish mother living in Germany who was refused a child benefit because she could not produce a certain residence document. It was not disputed that from a national perspective the decision was valid. Moreover, all the parties to the case, including the German government, acknowledged that refusing the benefit due to lack of residence document was discrimination exclusively based on her nationality. However, the German government argued that the case did not fall within the scope of Community law, because Ms. Martínez Sala could not be regarded as a worker.
Prior to the Maastricht Treaty this would have been the case, however, Ms. Martinez-Sala argued that the very fact that she was an EU citizen brought the case within the scope of EU law. And the Court of Justice accepted this argument stating that after the creation of EU citizenship, the relationship between a Member State and nationals of another Member State were governed by Community law, even if the citizen in question was economically inactive.
It is widely recognized that this case significantly extended the scope of EU law and enhanced the rights of non-economic migrants. It discarded the idea of EU citizenship as a warm fuzzy nothing which simply encompassed rights which already existed and transformed the concept into something with real meaning. It brought all EU nationals – whether economically active or not – under the same banner of EU citizen and thus abandoned the perception that EU law concerned only ‘workers’. This was a fundamental change in the EU’s outlook, moving it away from a purely economic body to a more political being – something that unites all the people of Europe. It also represented a further limitation on Member State power in an important area of sovereignty – the relationship between a state and its residents. This limitation on sovereignty is a theme which also runs through the cases to be discussed below.
In Chen[iv] a pregnant Chinese national moved legally to Northern Ireland and gave birth there. Every baby born in Northern Ireland was entitled to dual Irish and British citizenship. The mother then moved to Wales where they applied for long-term residence, which was refused.
This was challenged as breaching EU law because the baby was an EU national and as such was free to move around the Union as she pleased. This was not denied but the mother was not an EU national – could she exercise her daughters free movement rights? The UK government argued that because the mother was not an EU citizen, this was a purely internal situation regarding the UKs immigration policies.
The Court of Justice thought otherwise. It reasoned that the mother was her daughter’s primary carer and financial support, and without her the baby’s citizenship rights would be meaningless. Thus the mother should be able to stay with her daughter for as long as she is her dependent. The Court of Justice met the outrage of Member States by stating that this was not an abuse of citizenship rights nor was it an infringement of Member State sovereignty because the states themselves decide how nationality is granted. This is compatible with the view of the ‘fundamental status’ of citizenship being a basis for the elimination of discrimination because it recognises that the baby’s citizenship rights cannot be stripped from her purely because of her age. The fact that the Court reiterates the point that Member States are free to set their own nationality laws reinforces the idea of the ‘fundamental status’ of citizenship as being parasitic in nature. It will only apply to people the Member States see fit to grant nationality to.
However in the case of Rottman[v] the Court did impinge on Member State nationality rules on the basis of citizenship. In that case an Austrian man acquired German nationality by naturalisation and as such lost his Austrian nationality. Germany then wished to revoke his German nationality on the grounds that it was obtained fraudulently (Mr Rottman had not disclosed he was under investigation in Austria).
A preliminary ruling was sent to the Court of Justice asking whether or not the citizenship provisions meant the withdrawal of German nationality also resulted in a loss of EU citizenship. If this was the case then Mr Rottman would be rendered stateless.
Although the Court of Justice emphasised the fact that acquisition and loss of nationality are matters for the Member States, it went on to say that where a citizen of the Union is to be rendered stateless then the situation shall fall within the scope of EU law. Such a decision will be reviewable in light of EU law against the principle of proportionality. The Court then went on to specify that to be proportionate the authorities must consider and correctly balance factors such as whether this decision is justified in relation to the gravity of the offence committed, the lapse of time between the naturalisation decision and the withdrawal decision and whether it is possible for that person to recover his original nationality.
Thus the Court used EU citizenship as a way of reviewing the legitimacy of a decision to revoke the nationality of a citizen of the Union. This lends more credit to the idea of EU citizenship as superseding national citizenship. Whether or not EU law is truly engaged here depends on the relationship between EU citizenship and Member State nationality. If, as outlined above, EU citizenship is parasitic in nature, the removal of Member State nationality should not concern the Court of Justice. Once nationality is removed so is its jurisdiction. However, the idea that the Court of Justice can interfere with the removal of nationality on the basis of EU citizenship suggests that they are more intertwined than that. Citizenship therefore seems to take precedence over Member States sovereign rights to determine its nationals which point to it as a replacement national identity. The case also has nothing to do with the elimination of discrimination which seems to move EU citizenship away from that meaning.
The highly unusual case of Ruiz-Zambrano[vi] is the most significant indicator yet of the idea of citizenship as superseding national identity. Mr Zambrano was a Colombian national who left his country of origin and sought asylum in Belgium. His asylum application was rejected but he was not sent back to Colombia. His subsequent applications for asylum or to have his situation regularised where also refused.
Despite this, he and his wife became registered as residents of a Belgian municipality and began to work full-time. Meanwhile his wife gave birth to two children who had Belgian nationality. Mr Zambrano lost his job when the Belgian authorities gave notice to his employer that he did not have a work permit. Then he was unable to claim unemployment benefit and he challenged the refusal of the Belgian government to grant him a work permit or in any way regularise his situation.
This went to the Court of Justice. The Belgian government, along with various other intervening Member States were of the opinion that situations such as these – where the children of non-citizens of the Union have never exercised their right to free movement – does not come within the remit of EU law.
The Court once again emphasised the idea of EU citizenship as the fundamental status of nationals of Member States. It then went on to say that as such Article 20 TFEU precludes 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.’[vii] It then went on to hold that the refusal to grant a work permit to the father of EU citizens who were still dependant on him had such an effect and thus was in breach of EU law.
This seems to have entirely removed the need for a cross-border link in order for citizenship provisions to be applicable. This case again has nothing to do with discrimination. Unlike in Chen, the children here have not attempted to exercise their EU citizenship rights and been discriminated against. This judgement implies that the Belgian government should have recognised that these children were first and foremostly EU citizens and that an act which deprives them of the possibility of exercising the rights bestowed by that identity will be prohibited. This seems to exemplify the idea of EU citizenship being more important than national identity. It allows the Court of Justice to interfere in areas which until now had been thought outside its reach.
The Future of EU Citizenship
From the above case law we can see that the prediction in Grzelczyk[viii] has had a lasting impact on the case law of the Court. The ‘fundamental status’ of citizenship was initially used to ensure equal treatment between nationals and non-nationals. It was based on the argument that we are all European, ergo we should receive the same treatment in other Member States. However, the reference to the ‘fundamental status’ in later cases such as Rottman and Ruiz-Zambrano show that it may have a different meaning. The pure status of ‘citizen’ seems to confer a package of rights and duties. These rights and duties are to be protected regardless of whether or not they have been exercised. However, recently the Court moved away from this style of judgement.
In McCarthy[ix], a woman was a national of both the UK and Ireland, however, she had never resided elsewhere. Following her marriage to a Jamaican man, she obtained an Irish passport and applied to the UK authorities for a residence permit as an Irish national wishing to reside in the UK. Her husband applied for a residence document as the spouse of an EU citizen. The UK refused the applications. The Court of Justice found that the EU Directive which allowed for the spouse of an EU citizen to reside with them in the EU did not apply here because she had never exercised her right to free movement. She had always resided in a Member State of which she was a national. So it appears that the Court has drawn a line under Ruiz-Zambrano. The cases of Rottman and Ruiz-Zambrano were exceptional with very sympathetic circumstances so they may possibly be conceived as a ‘one offs’.
The number of intervening Member States in cases such as Ruiz Zambrano (7 states) and Rottman (8 states) reveal the dissatisfaction with the way the Court has used the citizenship provisions. No doubt when the citizenship was ‘invented’ it was meant as a woolly provision, not a tool for the Court to further limit Member States’ power. The turnouts for the elections to the European Parliament with less than 50% of the population voting in 2009[x] indicates the public does not see its EU citizenship as its most important status. This is supported by a poll which found that only 18% of Europeans know their rights as EU citizens and only 41% knew what ‘citizen of the EU’ meant.[xi] Thus it seems evident that the people of Europe do not consider their most important status to be that of EU citizens. The idea of it as removal of discrimination may also be tested in the coming months. The Eurozone crisis has reignited anti-EU feeling within many Member States and reinforced divisions among its citizens. The attempts by various Member States,[xii]including the UK, to qualify the access of Romanians and Bulgarians to free movement and non-discrimination shows the solidarity of the EU may be crumbling. Such behaviour does not exactly seem to be in the spirit of the Year of the Citizen.
[i] The Maastricht Treaty amended the EEC Treaty to insert Art 8 on citizenship
[ii] Case 184/99 Grzelczyk  ECR 1- 6193
[iii] Case 85/96 Martinez-Sala  ECR I-269
[iv]Case 200/02 Chen ECR I-9925
[v] Case 135/08 Rottman  ECR I- 1449
[vi] Case 34/09 Ruiz-Zambrano  ECR I- 1177
[vii] Case 34/09 Ruiz-Zambrano  ECR I- 1177 para 42
[viii] Case 184/99 Grzelczyk  ECR 1- 6193
[ix] Case 434/09 McCarthy  ECR I3375
[xi] R. Bellamy ‘Evaluating Union Citizenship: Belonging, Rights and Participation within the EU’ 12( 6) Citizenship Studies 2008