Citizenship

Aricle 20/21 TFEU

 Introduction

• The concept of citizenship was introduced for the first time in the
Treaty of Maastricht;
• In the original treaty the free movement rights were specifically
reserved for the economically active people and their families;
• In the years that followed the EEC Treaty moved beyond purely
economic focus and developed into EC;
• Hence the free movement rights were also extended to non-
economically active people.
 Article 20 TFEU
Article 20 TFEU states:

‘Every citizen holding the nationality of a member state shall be a

citizen of the Union.’

Rottman case: Citizenship of the Union shall be in addition to and not

replace national citizenship.
 Rights under Article 20 TFEU

• Move and reside freely within the territory of a member state;

• Vote and stand as a candidate in European Parliament and municipal
elections;
• Diplomatic and consular protection;
• Petition the European Parliament and Ombudsman.
 Rights under Article 21 TFEU
Article 21 TFEU states:

‘every citizen shall have the right to move and reside freely within the
territory of a member state.’

This right is subject to the conditions and limitations laid down in then
treaties and measures adopted to give them effect.
 Conditions and limitations
• The conditions and limitations are found in Directive 2004/38:

• The citizen must be financially self sufficient;

• He/She must have comprehensive sickness insurance.
 Directive 2004/38
(Citizenship Directive)

• It codifies previously dispersed secondary legislation.

• It is about the right of citizens and their family members to move and
reside freely within the territory of the EU.
• It cuts down the administrative formalities to the bare minimum.
• Limits the scope of refusing entry on terminating the right of
residence.
This topic is to be approached keeping four
questions in mind

• Did Article 20 TFEU create an autonomous and directly effective right?

• Did Article 20/21 TFEU change the law regarding wholly internal
situations?
• Did Article 20/21 TFEU create rights for EU nationals who are neither
economically active not economically self sufficient?
• Did Article 20/21 enhance the rights of EU nationals to challenge
restrictive member state measures?
Did Article 20 TFEU create an autonomous and directly effective right?

• This question was addressed in the Baumbast case.

• It clearly eastablished that Article 20/21 confers a directly effective right on

EU citizens to reside in a host member state, regardless of whether they are
employed or self employed.
• Furthermore, it has been established that the conditions and limitations must
be interpreted and applied in a proportionate manner.
• In the Chen case the ECJ confirmed that Article 20 (1) TFEU confers a
directly effective and autonomous right of residence on EU citizens
who do not fall within any of the existing EU law status category.
• Existing EU Law status categorty: worker/former worker/job seeker/protected
family member/service rcecipient

• The citizen in this case was a new born baby;

• In this case the child was dependent on the mother and if she was refused
the right of residence it would deprive the child’s right of residence of any
useful effect.
IMP: This was conditional on having sufficient resources and health insurance.
Did Article 20/21 TFEU change the law regarding wholly internal situations?

General principle:

EU law rights of movement and residence cannot be invoked in a ‘wholly internal

situation’. (Kremzow and Uecker)

•However, since the introduction of EU citizenship there have been two developments:

•A number of circumstances have been identified as having cross border dimension;

•There has been significant pressure on the ECJ from scholars, practitioners and others
to rethink its stance on purely internal situation.
 Case law
• Schempp • Garcia Avello
• A German national had not made • Gracia was a dual Belgium and
use of his free movement rights Spanish national residing in
• However, his former wife to whom Belgium.
he continued paying maintenance • This was once again NOT a wholly
had exercised her right as an EU internal situation.
citizen and moved to another • SINCE HE WOULD BE REGARDED
member state. AS A SPANISH NATIONAL IN
• This was NOT regarded as a wholly BELGIUM.
internal situation
• HIS TAX POSITION WITHIN
GERMANY WAS AFFECTED.
• Zambrano
• The ECJ regarded the refusal of residence
• The couple was from Columbia; and work permit to the parent as an
• They has fled the country due to a civil war obstacle to the enjoyment of an EU
taking place there; citizen right.
• They asked for a refugee status but were
refused; • The AG argued that the right of residence
• They were nevertheless allowed to stay and the right to move are independent
due to the civil war; rather than combined rights.
• While their stay they had two children who
automatically received Belgium nationality;
• They were EU nationals.
• This is the most important and
revolutionary case in the area of
citizenship.
• McCarthy
• Applicant was a dual British and • She was refused.
Irish citizenwho who was born and
• This case was distinguished from
always resided in UK;
Zambrano since she was not required
• In 2002, she married a Jamaican to leave the EU.
who had no valid leave to remain
in the state; • Therefore, she had not been deprived
• After marriage she required an of her rights as an EU citizen.
Irish passprt and sough to assert • This case has been criticised for not
her and her husband’s right to free following the Garcia Avello case.
movement within the EU.
• Dereci • The applications were rejected.
• Directive 2004/38 does not apply in
wholly internal situations.
• This was a joint case of four
applicants; General principles were emphasized:
• They were Non EU nationals; • Article 20 precludes national measures
which deprives the Union citizens of the
• They wished to reside in Austria
genuine enjoyment of the rights
with their families; conferred by that status;
• Their families has not exercised
• Where Article 7 (right to protect family
their free movement right.
life) of the Charter is resorted to right of
residence cannot be refused in any
event.
 Crux of the Matter

• The introduction of EU Citizenship and the rights of free movement

and residence in Article 20 and 21 have placed continuous pressure
on the notion of ‘purely internal’ situation and has cetainly reduced
though not eliminated its scope.
Did Article 20/21 TFEU create rights for EU nationals who are
neither economically active not economically self sufficient?

• The two categories of non economically active persons are:

• Students;
• Job seekers.
 Students
Gravier
It was held that the ‘conditions of access
to vocational training’, fell within the
The introduction of EU citizenship scope of the treaty, since it was likely to
has also been used by the ECJ to promote the free movement of persons.
strengthen the rights of students
under EU law. Kaj Lyyski
This case overruled Lair/Brown, and
held that a maintenance grant to pursue
university education would not be
covered.
Grzelczyk • However, the Court was of the opinion
Facts: that the application for social benefits
has no automatic effect on the right of
• A French student doing University residence.
education in Belgium applied for
social assistance benefits in the last
year of his studies. • If the problem is a temporary one then
the residency will not be terminated.

• This in itself meant that he no longer

complied with the conditions of his • The right of residence must not
residence. become an unreasonable burden on
the public finances.
Bidar • The Court said that he could apply for
a maintenance grant provided he
• A French national while studying could establish a degree of
in UK applied for a maintenance integration.
grant in order to pay for his
living.
• Three years was regarded as sufficient
in this case to claim the maintenance
grant.
• This once again meant that he
did not fulfill the formal
conditions for right of residence.
Forster Morgan and Bucher

• In this case it was held that a five • The ECJ acknowledged that the
year period imposed by the integration requirement must
relevant Dutch authorities was not become an unreasonable
equally acceptable under EU law. burden on the student.
Commission v Austria Bressol

• Imposition of additional conditions • Putting a quota system on medical

of access to university education degree programmes is contrary to
Article 18/21 TFEU;
on students who had obtained
their secondary education
diplomas in another member state • However, it can be justified where the
constit indirect discrimination. national authorities can show that it is
restricting access to ensure a sufficient
supply of national graduates to staff
the Community Public Health Service.
 Jobseekers
• Collins • Vatsouras
• The ECJ held that a job seeker was • Ruling in Collins was confirmed;
henceforth entitled under Article 45 • LEBON was overruled;
TFEU to a ‘benefit of a financial nature • Article 45(2) covered non-discriminatory
intended to facilitate access to the entitlement to benefits intended to
employment market.’ facilitate access to the emplyment market.
• The job seeker must have a genuine link
with the employment market of a state.
• The person has for a reasonable period
of time genuinely sought work in that • Article 45(2) TFEU: Free movement of
state. workers
• There shall be no discrimination on grounds of
• Residence condition has to be applied in nationality regarding employment,
a proportionate manner. remuneration and other conditions of work.
 Did Article 20/21 enhance the rights of EU nationals to challenge restrictive member state
measures?

• Yes it has
Bickel and Franz:
German and Austrian nationals were subject to criminal proceedings in
Italy. They were entitled to German being used in the proceedings, on
grounds of exercising their right to free movement as European citizens
based on Article 21 TFEU.
Huber:
It was held that a member state’s crime prevention system which
involved processing the personal data specific to EU citizens who were
not nationals violated Article 18/21 TFEU.
 Political Rights

• Voting in the municipal elections;

• Accessing European government documents;
• Petitioning Parliament and Ombudsman;
• Linguistic Rights
 Social Assistance
Article 24(2) Directive 2004/38

• 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 host member state shall not be obliged to confer entitlement to
social assistance during the first three months of residence;
• It shall not be obliged to confer a maintenance grant for studies
including vocational training other than workers, self-employed
persons before the acquisition of a residence permit.
• Martinez Sala • Trojani
• So long as an EU national is • EU citizen cannot derive a right of
lawfully resident in another residence from Article 21 TFEU
member state he or she is entitled where they lack sufficient resources;
on a combined reading of Article • However, if they are lawfully
18 and 21 TFEU to equal resident on some other basis within
treatment with member state a member state, they can claim
nationals in relation to benefits social assistance on the same
within the scope of the Treaty. conditions as nationals under Article
18/21 TFEU.
• In this case Mr. Trojani was
protected as a worker.
• Recourse to social assistance • Recital 16 of Dir 200/38
cannot automatically lead to a
revocation of residence • There must be a proper inquiry
permission or deportation. into the sufficiency of an EU
citizen’s resources.
 Questions
Q1)

The Citizen’s Directive goes a long way towards harmonizing the

treatment of economically active and non-economically active EU
citizens. However, recent judgments of the CJEU in this area are more
important and decisive than ever.  
Discuss.
Q2)

Anna and Yuri are both Russian nationals who have lived and worked in Hungary for
seven years. They are employed as dancers in a leading ballet company in Budapest.
They have two children, aged five and six, who have Hungarian nationality. The ballet
company has fallen upon hard times and both Anna and Yuri lose their jobs. They apply
for unemployment benefit, child benefit and housing assistance to the Hungarian
authorities. This is refused and they are told that they have to leave as they no longer
have enough income to maintain themselves and their children.

Advise Anna and Yuri as to any rights to remain and claim benefits they and their
children have under EU law.
Q3)

‘Unfortunately no one can say with confidence that Dereci and the
recent case law provide all of the answers in respect to how Article 20
of the Treaty can be used in relation to the rights that can be enjoyed
by EU citizens.’

Discuss.