EU Citizenship at the Edges of Freedom of Movement 9781509937257, 9781509937288, 9781509937271

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EU CITIZENSHIP AT THE EDGES OF FREEDOM OF MOVEMENT This book critically analyses the case law on EU citizenship in relation to its personal free movement rights, its status on the primary law level, and EU fundamental rights protection. The book exposes the legal space where EU citizenship variably loses or gains legal relevance, and questions how this space can be overcome. Through a thorough analysis of the core personal free movement rights of residence, family reunification, equal treatment and equal political participation, the book demonstrates how the development of the case law of the Court of Justice of the European Union has generated a two-tiered legal concept of EU citizenship. Depending on the nature of the legal claim at hand, EU citizenship may appear as a poor legal personhood for exercising free movement rights; sometimes pushing the individual who is in a factual cross-border situation out of the scope of Union law. Contrastingly, in other strands of the jurisprudence, we see EU citizenship and its primary law levelled-rights stretch the jurisdictional scope of Union law, triggering the EU’s Charter of Fundamental Rights for review of the individual case. The book enhances the understanding of the legal concept of EU citizenship in Union law and contributes to the debate on the future development of EU citizenship, its relationship to the Charter, and the strength of its legal position for the person who exercises freedom of movement. Volume 101 in the Series Modern Studies in European Law

Modern Studies in European Law Recent titles in this series: The EU Better Regulation Agenda: A Critical Assessment Edited by Sacha Garben and Inge Govaere Administrative Regulation Beyond the Non-Delegation Doctrine: A Study on EU Agencies Marta Simoncini The Interface Between EU and International Law: Contemporary Reflections Edited by Inge Govaere and Sacha Garben The Rise and Decline of Fundamental Rights in EU Citizenship Adrienne Yong The Court of Justice and European Criminal Law: Leading Cases in a Contextual Analysis Edited by Valsamis Mitsilegas, Alberto di Martino and Leandro Mancano The EU as a Global Regulator for Environmental Protection: A Legitimacy Perspective Ioanna Hadjiyianni Citizenship, Crime and Community in the European Union Stephen Coutts Critical Reflections on Constitutional Democracy in the European Union Edited by Sacha Garben and Inge Govaere Constitutional Law of the EU’s Common Foreign and Security Policy: Competence and Institutions in External Relations Graham Butler The Juridification of Individual Sanctions and the Politics of EU Law Eva Nanopoulos Sixty Years of European Integration and Global Power Shifts: Perceptions, Interactions and Lessons Edited by Julien Chaisse Fundamental Rights and Mutual Recognition in the Area of Freedom, Security and Justice: A Role for Proportionality? Ermioni Xanthopoulou Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union Edited by Madalina Moraru, Galina Cornelisse and Philippe De Bruycker Framing Convergence with the Global Legal Order: The EU and the World Edited by Elaine Fahey For the complete list of titles in this series, see ‘Modern Studies in European Law’ link at www.bloomsburyprofessional.com/uk/series/modern-studies-in-european-law

EU Citizenship at the Edges of Freedom of Movement Katarina Hyltén-Cavallius

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2020 Copyright © Katarina Hyltén-Cavallius, 2020 Katarina Hyltén-Cavallius has asserted her right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2020. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Hyltén-Cavallius, Katarina, author. Title: EU citizenship at the edges of freedom of movement / Katarina Hyltén-Cavallius. Other titles: European Union citizenship at the edges of freedom of movement Description: Oxford, UK ; New York, NY : Hart Publishing, Bloomsbury Publishing Plc, 2020.  |  Series: Modern studies in European Law ; volume 101  |  Includes bibliographical references and index. Identifiers: LCCN 2020022281 (print)  |  LCCN 2020022282 (ebook)  |  ISBN 9781509937257 (hardcover)  |  ISBN 9781509937271 (ePDF)  |  ISBN 9781509937264 (Epub) Subjects: LCSH: Citizenship—European Union countries.  |  Freedom of movement—European Union countries.  |  Free choice of employment—European Union countries.  |  Political rights—European Union countries.  |  Civil rights—European Union countries.  |  Emigration and immigration law—European Union countries.  |  Treaty Establishing the European Economic Community (1957 March 25) Classification: LCC KJE5124 .H95 2020 (print)  |  LCC KJE5124 (ebook)  |  DDC 324.2408/5—dc23 LC record available at https://lccn.loc.gov/2020022281 LC ebook record available at https://lccn.loc.gov/2020022282 ISBN: HB: 978-1-50993-725-7 ePDF: 978-1-50993-727-1 ePub: 978-1-50993-726-4 Typeset by Compuscript Ltd, Shannon

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ACKNOWLEDGEMENTS This book is based on the PhD thesis that I defended at the Faculty of Law, University of Copenhagen, in October 2017. The core arguments of the book have developed in the years since then, and have been updated with more recent judgments from the Court of Justice, and with the continued legal academic discussion on EU citizenship. During this time, I have been working on the manuscript for the book at the Department of Law, Aarhus University, and I am very thankful for the support I have received there from my colleagues. A great thank you to Sinead Moloney, and the excellent team at Hart Publishing for all their work with the publication of this book, and to the anonymous reviewers for their constructive feedback. As always, I am deeply grateful for the loving support and joyous presence of my family. Katarina Hyltén-Cavallius, Aarhus, February 2020

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CONTENTS Acknowledgements��������������������������������������������������������������������������������������������������������v Abbreviations������������������������������������������������������������������������������������������������������������ xiii Table of Cases��������������������������������������������������������������������������������������������������������������xv 1. Introduction�������������������������������������������������������������������������������������������������������������1 I. EU Citizenship: The Legal Space Between Status and Rights�����������������1 A. EU Citizenship in the 2010s: Hardships and Reinvention�������������1 B. Core Analytical Findings of the Book�����������������������������������������������3 C. Purpose of the Book����������������������������������������������������������������������������4 II. Method and Delimitations��������������������������������������������������������������������������4 III. Outline�����������������������������������������������������������������������������������������������������������5 2. EU Citizenship: Historical Backdrop and Debate�����������������������������������������������7 I. The Legal Origins of EU Citizenship���������������������������������������������������������7 II. Free Movement of Persons: The Creationist Bone of EU Citizenship���������������������������������������������������������������������������������������������������10 III. Freedom of Movement Based Directly on the Status of EU Citizenship���������������������������������������������������������������������������������������������������13 IV. Debating the ‘Promise’ and ‘Threat’ of Equal Treatment����������������������14 A. EU Citizenship: A Vehicle for Transnational Equality or a Humiliation of the State?�����������������������������������������������������������15 B. The Court’s Final(?) Assertion: Equal Treatment is Only for the Economically Active or Resourceful�����������������������������������17 V. The Constitutional Impact of EU Citizenship����������������������������������������18 A. EU Citizenship and Purely Internal Situations: The Issue of Reverse Discrimination�����������������������������������������������19 B. EU Citizenship and Fundamental Rights Review�������������������������20 VI. The 2010s: Has EU Citizenship Reached its Limits in Free Movement Law?������������������������������������������������������������������������������������������21 VII. Where to Go from Here?���������������������������������������������������������������������������24 3. The Right to Move and Reside Freely: Article 21(1) TFEU and Directive 2004/38�������������������������������������������������������������������������������������������26 I. Directive 2004/38: The Right to Integrate as a Union Citizen��������������27 A. The Purpose of Directive 2004/38���������������������������������������������������28

viii

Contents

II.

III. IV.

V.

VI.

VII.

B. The Directive’s Personal Scope: The Family Members of a Union Citizen������������������������������������������������������������������������������29 C. Limiting Residence Rights on Economic Grounds�����������������������30 Exit from a Home Member State and Entry into a Host Member State����������������������������������������������������������������������������������������������32 A. The Right to Exit: Removing Restrictions on the Freedom to Move Under Article 21(1) TFEU������������������������������������������������32 B. Entry and Initial Three-Month Stay in a Host Member State: Directive 2004/38�������������������������������������������������������������������������������34 A Right to Reside Beyond Three Months in a Host Member State������35 Retaining a Right to Reside and Obtaining Permanent Residence������37 A. Protecting the Continuity of Residence Under Directive 2004/38�������������������������������������������������������������������������������38 B. Making Article 7 of Directive 2004/38 into the Litmus Test of Integration������������������������������������������������������������������������������40 The Right of Permanent Residence Status�����������������������������������������������43 A. The Meaning of Permanent Residence Status��������������������������������44 B. The Implicit Behavioural Elements to Genuine ‘Integration’ in Directive 2004/38��������������������������������������������������������������������������46 Withdrawing Residence Rights on Public Interest Grounds����������������48 A. Public Interest Grounds Neutralising the Individual’s Economic Status���������������������������������������������������������������������������������49 B. Expulsion Measures Against Permanent Residents: A Criticised Jurisprudence���������������������������������������������������������������51 Conclusion���������������������������������������������������������������������������������������������������54

4. Residence and Family Reunification Rights�������������������������������������������������������56 I. The Right to Return as a Family to the Union Citizen’s Home Member State����������������������������������������������������������������������������������57 A. The Right to Return with Family Reunification Rights: Economically Active Persons�����������������������������������������������������������57 B. The Right to Return with Family Reunification Rights: Non-Economic but ‘Genuine’ Use of Freedom of Movement������58 C. The Right to Return and the Legal Nuances of Directive 2004/38��������������������������������������������������������������������������60 D. The Effect of Naturalisation on Family Reunification Rights in Directive 2004/38��������������������������������������������������������������61 II. Retained Residence Rights of Family Members�������������������������������������62 A. The Independence of the Individual Union Citizen in Directive 2004/38�������������������������������������������������������������������������������63 B. The Vulnerability of the TCN Spouse in Directive 2004/38���������64

Contents  ix C. Deriving Residence Rights from a Child of a Worker��������������������65 D. Enabling a Child’s Enjoyment of Residence Rights Under Article 21(1) TFEU�����������������������������������������������������������������������������68 E. The Territorial Aspect of Residence Rights: Within Host or Home Member State����������������������������������������������������������������������70 III. The Right to Reside Within the EU: Article 20 TFEU����������������������������71 A. The Right to Reside Without Exercising Freedom of Movement����������������������������������������������������������������������������������������72 B. Protecting the Existential Dimension of EU Citizenship��������������73 C. The Genuine Enjoyment Test: A Right to Reside Somewhere in the Union�����������������������������������������������������������������������������������������74 D. The Intrinsic Connection between Freedom of Movement and the Genuine Enjoyment Doctrine���������������������������������������������75 E. The Legal Space between Article 21(1) TFEU and Article 20 TFEU����������������������������������������������������������������������������������77 IV. Conclusion����������������������������������������������������������������������������������������������������78 5. The Right to Equal Treatment������������������������������������������������������������������������������80 I. The Right to Equal Treatment and EU Citizenship���������������������������������81 A. From Workers and Tourists to Citizens: Equal Treatment as a Fundamental Right����������������������������������������������������������������������83 i. The Tourist’s Right to Equal Treatment: Cowan and Bickel and Franz�������������������������������������������������������������������84 B. Equal Treatment as the Gateway to Social Rights in a Member State��������������������������������������������������������������������������������86 C. Differentiating between the Visitor and the Resident��������������������89 II. Demanding Genuine Use of Freedom of Movement������������������������������90 A. The Prohibition of Abuse of Free Movement of Persons Law�������91 B. From Accusations of Abuse to Demands of Genuine Use�������������93 III. Establishing the Edges to Equal Treatment����������������������������������������������96 A. First Development: ‘Legal’ Residence as the Basis for Equal Treatment���������������������������������������������������������������������������������������������97 i. Sala and Trojani: When Lawful Meant Integrated�����������������97 ii. An Obligation of Solidarity: Grzelczyk�������������������������������������98 B. Second Development: Demanding Sufficient Integration and Genuine Links����������������������������������������������������������������������������101 i. Jobseekers and Genuine Links: Collins and D’Hoop�������������101 ii. Students and Genuine Links: Strengthening the Bond of Nationality�����������������������������������������������������������������������������103 iii. Protecting an Important Bond or Welfare Nationalism?�����104 iv. A Certain Degree of Integration for Equal Treatment: Bidar��������������������������������������������������������������������������������������������105

x Contents C. The Third Development: Directive 2004/38 Dissolving the Direct Link between the Status of EU Citizenship and a Right to Equal Treatment�������������������������������������������������������107 i. Durational Lawful Residence as Integration: Förster�������������108 IV. Article 7 of Directive 2004/38 as the Sole Test of Integration��������������110 A. The Narrow Ground for Expulsion Measures for Economic Reasons: Brey�������������������������������������������������������������������������������������111 B. Three Legal Edges of Equal Treatment: Dano, Alimanovic and García-Nieto��������������������������������������������������������������������������������114 i. The Inactive Union Citizen and Article 24(1) of Directive 2004/38: Dano������������������������������������������������������������114 ii. The Jobseeker and Article 24(2) of Directive 2004/38: Alimanovic and García-Nieto�����������������������������������������������������118 V. The Legal Space between Directive 2004/38 and Article 18 TFEU�����120 A. A Right to Reside in Social Exclusion��������������������������������������������121 B. The Rationale of Directive 2004/38 Transposed to Regulation 883/2004: Commission v United Kingdom������������������123 C. A New Type of ‘Purely Internal Situations’������������������������������������124 VI. Conclusion��������������������������������������������������������������������������������������������������125 6. EU Citizenship and Political Free Movement Rights��������������������������������������127 I. Political EU Citizenship Rights as Free Movement Rights�������������������128 A. Political Rights as Free Movement Rights��������������������������������������129 B. The Municipal-Levelled Right to Political Equal Treatment�������130 C. The European-Levelled Right to Political Equal Treatment��������131 D. The ‘Voting Directives’ and the Concept of Residence����������������132 II. Extending the Jurisdictional Scope of Political EU Citizenship Rights��������������������������������������������������������������������������������������135 A. Case C-300/04 Eman and Sevinger�������������������������������������������������135 B. Case C-145/04 Spain v United Kingdom�����������������������������������������136 C. Towards a Substantive EU Citizenship Voting Right�������������������137 III. A Fundamental EU Citizenship Right to Vote in Elections to the European Parliament����������������������������������������������������������������������138 A. Political EU Citizenship After the Treaty of Lisbon���������������������138 B. Case C-650/13 Delvigne��������������������������������������������������������������������140 C. Fortifying the Idea of ‘Substance of Rights’ in EU Citizenship Law���������������������������������������������������������������������������������142 D. Would the Delvigne Principle Apply in a Free Movement Context?����������������������������������������������������������������������������������������������144 IV. National Disenfranchisement and Non-Enfranchisement as a Result of Exercising Free Movement�����������������������������������������������145 A. Inclusion and Exclusion in a National Franchise��������������������������146 B. The Insufficiencies of EU Citizenship as a Political Status�����������148 V. Conclusion��������������������������������������������������������������������������������������������������149

Contents  xi 7. EU Citizenship and the Charter�������������������������������������������������������������������������151 I. The Place of Human Rights in Union Law��������������������������������������������153 A. The Gradual Introduction of Fundamental Rights in Union Law������������������������������������������������������������������������������������154 B. The Charter: A Catalogue of Fundamental Rights in the EU Legal Order���������������������������������������������������������������������156 II. The Charter and EU Citizenship Rights������������������������������������������������157 A. Are Fundamental Rights EU Citizenship Rights – And Should They Be?����������������������������������������������������������������������158 B. Understanding the Treaty Twins: The EU Citizenship Rights in the Charter�����������������������������������������������������������������������161 III. The Charter and Article 21 TFEU����������������������������������������������������������164 A. The Cross-Border Requirement Under Pressure from EU Citizenship���������������������������������������������������������������������������������165 B. Restrictions on Movement and EU Fundamental Rights Review�����������������������������������������������������������������������������������������������167 C. Separating Fundamental Rights Guarantees from Equal Treatment������������������������������������������������������������������������������������������169 D. When are the Member States Implementing EU Law?���������������170 IV. The Charter and Directive 2004/38: An Unsettled Relationship�������171 A. Limits and Conditions in Directive 2004/38: Beyond Charter Review?�������������������������������������������������������������������������������172 B. Sanctioned Member State Restrictions versus Individual Failures of Integration���������������������������������������������������������������������173 V. The Charter and the Right to Equal Treatment������������������������������������175 A. To Demand Integration of the Individual: Not an Act of Implementing EU Law����������������������������������������������������������������176 B. The Interest of Preventing Financial Burdens on the Host Member State��������������������������������������������������������������������������177 C. Genuine Use of Freedom of Movement as a Test of Jurisdiction�����������������������������������������������������������������������������������179 VI. The Charter and Article 20 TFEU����������������������������������������������������������181 A. Article 20 TFEU as a Test of EU Jurisdiction�������������������������������182 B. The Legal Distance Between the Status of EU Citizenship and the Charter’s Rights������������������������������������������������������������������183 C. Fundamental Rights Review Becoming Part of the Genuine Enjoyment Doctrine��������������������������������������������������������185 D. Problems with the Genuine Enjoyment Doctrine�����������������������186 VII. Conclusion�������������������������������������������������������������������������������������������������190

xii Contents 8. Conclusion������������������������������������������������������������������������������������������������������������192 I. The Legal Edges of Personal Free Movement Rights���������������������������193 A. The Incentive to Stay, Integrate and Naturalise����������������������������194 B. A Purely Internal Situation in a Host Member State�������������������195 II. EU Citizenship: The Legal Space Between Status and Rights��������������196 III. Perspectives for Future Developments����������������������������������������������������197 Bibliography���������������������������������������������������������������������������������������������������������������199 Index��������������������������������������������������������������������������������������������������������������������������211

ABBREVIATIONS EC

European Community

ECHR

European Convention on Human Rights

ECtHR

European Court of Human Rights

EEA

European Economic Area

EEC

European Economic Community

EU

European Union

ICCPR

International Covenant on Civil and Political Rights

OJ

Official Journal of the European Union

SNCB

Special non-contributory benefits

TCN

Third-country national

TEU

Treaty on European Union

TFEU

Treaty on the Functioning of the European Union

xiv

TABLE OF CASES Judgments of the Court of Justice of the European Union Case C-679/16, A (Aide pour une personne handicapée), EU:C:2018:601������� 33, 87 Case C-617/10, Åkerberg Fransson, EU:C:2013:105�����������������������������������������������154 Case C-109/01, Akrich, EU:C:2003:491��������������������������������������������������������� 80–81, 92 Case C-434/10, Aladzhov, EU:C:2011:750�����������������������������������������������������������������32 Case C-529/11, Alarape and Tijani, EU:C:2013:290������������������������������45, 66–67, 73 Case C-67/14, Alimanovic, EU:C:2015:597 �������������������������� 1, 17–18, 31, 39–40, 42, 67, 89, 102, 109, 111, 114, 118–119, 142, 152, 161, 171, 175, 177, 187 Case C-86/12, Alokpa and Moudoulou, EU:C:2013:645 ��������������� 68–69, 74–75, 77, 144, 151, 161 Case C-281/98, Angonese, EU:C:2000:296���������������������������������������������������������� 36, 83 Case C-236/09, Association Belge des Consommateurs Test-Achats and Others, EU:C:2011:100����������������������������������������������������������������������������������181 Case C-176/12 Association de médiation sociale, EU:C:2014:2�����������������������������156 Joined Cases C-316/16 and C-424/16, B and Vomero, EU:C:2018:256�������������������������������������������������������������������������������27, 37–38, 43, 46, 50–53, 171 Case C-93/18, Bajratari, EU:C:2019:809��������������������� 68–69, 152, 162–63, 171, 187 Case C-89/17, Banger, EU:C:2018:570�����������������������������������������������������������������������30 Case C-413/99, Baumbast and R, EU:C:2002:493����������� 16, 26, 38, 66, 73, 100, 162 Case C-344/87, Bettray v Staatssecretaris van Justitie, EU:C:1989:226���������������������������������������������������������������������������������������������������������94 Case C-274/96, Bickel and Franz, EU:C:1998:563�����������������������������������������������������85 Case C-209/03, Bidar, EU:C:2005:169����������������������������������� 16, 84, 95, 101, 105–07, 108, 117, 177 Case C-67/74, Bonsignore v Oberstadtdirektor der Stadt Köln, EU:C:1975:34�����������������������������������������������������������������������������������������������������������49 Case C-249/11, Byankov, EU:C:2012:608�������������������������������������������������������������������32 Case C-140/12, Brey, EU:C:2013:565��������������������������������������������� 31, 39, 99, 111–15, 123–24, 145 Case C-196/04, Cadbury Schweppes and Cadbury Schweppes Overseas, EU:C:2006:544�������������������������������������������������������������������������������������������������� 80, 92 Case C-442/02, CaixaBank France, EU:C:2004:586�������������������������������������������������31

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Case C-60/00, Carpenter, EU:C:2002:434������������������������������� 70–71, 73, 90, 159–60, 165, 167, 174, 179, 187 Case C-9/74, Casagrande v Landeshauptstadt München, EU:C:1974:74���������������������������������������������������������������������������������������������������� 36, 84 Case C-212/97, Centros, EU:C:1999:126������������������������������������������������������� 80–81, 92 Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354���������19–21, 23, 33, 57, 71–76, 143, 152, 159–61, 163, 171, 183, 185–87 Case C-138/02, Collins, EU:C:2004:172�������������������������63, 95, 101–02, 106, 117–20 Case C-673/16, Coman and Others, EU:C:2018:385�����������������������26, 30, 56, 59–60, 152, 171, 180 Case C-75/11, Commission v Austria, EU:C:2012:605 ���������������������36, 88, 100, 106 Case C-110/05, Commission v Italian Republic, EU:C:2009:66 (‘Motorcycle Trailers’)����������������������������������������������������������������������������������������������82 Case C-388/01, Commission v Italy, EU:C:2003:30�������������������������������������������� 50, 89 Case C-113/80, Commission v Ireland, EU:C:1981:139 (‘The Irish Souvenirs Case’)������������������������������������������������������������������������������������31 Case C-249/81, Commission v Ireland, EU:C:1982:402 (‘Buy Irish’)����������������������31 Case C-308/14, Commission v United Kingdom, EU:C:2016:436���������������� 1, 31, 67, 88, 123, 142, 175 Case C-186/87, Cowan v Trésor public, EU:C:1989:47����������������� 10–11, 84–86, 165 Case C-304/14, CS, EU:C:2016:674������������������������������������������������������������� 50, 72, 189 Case C-544/18, Dakneviciute, EU:C:2019:761�������������������������� 18, 33, 36, 38, 41–42, 83, 121, 125–26 Case C-123/08, Dominic Wolzenburg, EU:C:2009:616�����������������������43, 47, 54, 111, 117, 169 Case C-333/13, Dano, EU:C:2014:2358�������������������������17–18, 25, 31, 39, 44, 88, 91, 107, 114–19, 121, 123, 125, 142, 145, 152, 154, 161, 170–71, 175–80, 187 Case C-230/17, Deha Altiner and Ravn, EU:C:2018:497����������������������������������� 59, 61 Case C-650/13, Delvigne, EU:C:2015:648�����������������������������4, 127–28, 138, 140–44, 150–51, 163–64, 184 Case C-401/15, Depesme and Kerrou, EU:C:2016:955���������������������������������������������36 Case C-256/11, Dereci and Others, EU:C:2011:734 �����������������57, 76, 144, 152, 154, 160–61, 168, 171, 181, 184, 186–88 Case C-224/98, D’Hoop, EU:C:2002:432��������������������� 87–88, 101–03, 106, 108, 165 Case C-246/17, Diallo, EU:C:2018:499�����������������������������������������������������������������������30 Case C-325/09, Dias, EU:C:2011:498�����������������������������44–45, 47, 90, 116, 145, 162 Case C-267/83, Diatta v Land Berlin, EU:C:1985:67������������������������������������������������70 Case C-293/12, Digital Rights Ireland and Seitlinger and Others, EU:C:2014:238�������������������������������������������������������������������������������������������������������181 Case C-291/05, Eind, EU:C:2007:771����������������������������������������������������58–59, 93, 165

Table of Cases  xvii Case C-300/04, Eman and Sevinger, EU:C:2006:545��������������������� 127–28, 131, 133, 135–37, 140–41 Case C-158/07, Förster, EU:C:2008:630 ������������� 3, 43, 89, 95–96, 108–11, 119, 177 Case C-400/12, G, EU:C:2014:9���������������������������������������������������������������������� 46, 51–52 Case C-148/02, Garcia Avello, EU:C:2003:539���������������������� 62, 80, 90, 159, 165–66 Case C-299/14, García-Nieto and Others, EU:C:2016:114�������� 3, 17–18, 35, 39, 67, 89–90, 102, 114, 118, 120–21, 125, 178 Case C-430/10, Gaydarov, EU:C:2011:749�����������������������������������������������������������������32 Case C-55/94, Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano, EU:C:1995:411�����������������������������������������������83 Case C-20/12, Giersch and Others, EU:C:2013:411������������������������������������ 84, 89, 103 Case C-257/00, Givane and Others, EU:C:2003:8�����������������������������������������������������64 Case C-103/08, Gottwald, EU:C:2009:597�����������������������������������������������������������������89 Case C-190/98, Graf, EU:C:2000:49��������������������������������������������������������������������������165 Case C-293/83, Gravier v Ville de Liège, EU:C:1985:69������������������������������������� 84, 99 Case C-184/99, Grzelczyk, EU:C:2001:458�������������������������������� 15–16, 36, 39–40, 87, 97–101, 111, 113 Case C-448/98, Guimont, EU:C:2000:663����������������������������������������������������������������165 Case C-442/16, Gusa, EU:C:2017:1004��������������������������������������18, 31, 33, 38, 41, 83, 120–21, 125–26 Case C-255/02, Halifax and Others, EU:C:2006:121 �����������������������������������������������80 Case C-212/05, Hartmann, EU:C:2007:437�������������������������������������������������������� 63, 83 Case C-287/05, Hendrix, EU:C:2007:494������������������������������������������������������������ 87–88 Case C-524/06, Huber, EU:C:2008:724������������������������������������������������������������� 80, 116 Case C-348/09, I, EU:C:2012:300������������������������������������������������������������������������� 51–52 Case C-255/13, I, EU:C:2014:1291����������������������������������������������������������������������������112 Case C-310/08, Ibrahim and Secretary of State for the Home Department, EU:C:2010:80������������������������������������������������������������ 45, 56, 66 Case C-40/11, Iida, EU:C:2012:691�������������������������������������� 25, 57, 63, 68, 70, 74–76, 161, 168, 170–71, 181, 184–88 Case C-11/70, Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel, EU:C:1970:114�����������������������������155 Case C-438/05, The International Transport Workers’ Federation and The Finnish Seamen’s Union, EU:C:2007:772����������������������������������������������159 Case C-1/05, Jia, EU:C:2007:1������������������������������������������������������������������������������ 30, 73 Case C-33/07, Jipa, EU:C:2008:396���������������������������������������������������������������������� 41, 49 Case C-137/09, Josemans, EU:C:2010:774 ��������������������������������������������������������� 80, 92 Joined Cases C-331/16 and C-366/16, K and HF, EU:C:2018:296����������� 37–38, 48, 51, 173–74 Case C-82/16, KA and Others, EU:C:2018:308��������������������� 1, 21, 23, 53, 56, 71–72, 76, 143, 152, 160, 171, 182–83, 185–87

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Case C-571/10, Kamberaj, EU:C:2012:233����������������������������������������������������� 158, 179 Case C-192/99, Kaur, EU:C:2001:106�������������������������������������������������������������������������34 Case C-108/09, Ker-Optika, EU:C:2010:725��������������������������������������������������������������82 Case C-19/92, Kraus v Land Baden-Württemberg, EU:C:1993:125����������� 36, 83, 92 Case C-299/95, Kremzow v Republik Österreich, EU:C:1997:254����������165–67, 183 Case C-555/07, Kücükdeveci, EU:C:2010:21������������������������������������������������������������154 Case C-39/86, Lair v Universität Hannover, EU:C:1988:322�����������������9, 91, 94–95, 105–06, 117 Case C-64/96, Land Nordrhein-Westfalen v Uecker and Jacquet / Land Nordrhein-Westfalen, EU:C:1997:285 ����������������������������������������������� 97, 164 Case C-162/09, Lassal, EU:C:2010:592�������������������������������������������������������� 45, 62, 145 Case C-341/05, Laval un Partneri, EU:C:2007:809�������������������������������������������������159 Case C-66/85, Lawrie-Blum v Land Baden-Württemberg, EU:C:1986:284�����������31 Case C-53/81, Levin v Staatssecretaris van Justitie, EU:C:1982:105 ���������� 31, 83, 94 Case C-42/11, Lopes Da Silva Jorge, EU:C:2012:517�������������������������������������������������54 Case C-165/16, Lounes, EU:C:2017:862������������������������������������������� 43–44, 61–62, 70 Case C-359/13, Martens, EU:C:2015:118�������������������������������������������������������������������84 Case C-85/96, Martínez Sala v Freistaat Bayern, EU:C:1998:217������� 15, 80, 87, 91, 97–98, 100, 119, 134, 165 Case C-434/09, McCarthy, EU:C:2011:277������������������62, 72, 160, 166, 184, 187–88 Case C-337/97, Meeusen, EU:C:1999:284�����������������������������������������������33, 36, 83–84 Case C-127/08, Metock and Others, EU:C:2008:449������������������� 70, 93, 159–60, 187 Case C-369/90, Micheletti and Others v Delegación del Gobierno en Cantabria, EU:C:1992:295���������������������������������������������������������������34 Case C-142/05, Mickelsson and Roos, EU:C:2009:336����������������������������������������������82 Joined Cases C-11/06 and C-12/06, Morgan and Bucher, EU:C:2007:626����������104 Case C-35/82, Morson and Jhanjan v Staat der Nederlanden, EU:C:1982:368�������������������������������������������������������������������������������������������������������164 Case C-46/12, N, EU:C:2013:97��������������������������������������������������������������������������������108 Case C-115/15, NA, EU:C:2016:487���������������������������������� 56, 63, 65, 72, 75–76, 144, 151, 161, 174–75, 188 Case C-575/11, Nasiopoulos, EU:C:2013:430�������������������������������������������������������������36 Case C-499/06, Nerkowska, EU:C:2008:300������������������������������������������������� 82, 87–88 Case C-413/01, Ninni-Orasche, EU:C:2003:600���������������������������� 9, 93–95, 106, 117 Case C-4/73, Nold KG v Commission, EU:C:1974:51���������������������������������������������156 Case C-456/12, O, EU:C:2014:135�����������������������������������������������������47, 58–59, 75, 90 Case C-36/02, Omega, EU:C:2004:614���������������������������������������������������������������������153 Case C-378/12, Onuekwere, EU:C:2014:13����������������2, 38, 43, 47–48, 126, 142, 145 Case C-215/03, Oulane, EU:C:2005:95 ��������������������������������������������������������������� 34, 83 Case C-182/15, Petruhhin, EU:C:2016:630������������� 19, 23, 82, 151, 167–70, 179–80 Case C-390/12, Pfleger and Others, EU:C:2014:281��������������������������������������� 154, 182 Case C-191/16, Pisciotti, EU:C:2018:222����������������������������������������4, 23, 82, 170, 180 Joined Cases C-523/11 and C-585/11, Prinz and Seeberger, EU:C:2013:524��������������������������������������������������������������������������� 87, 89, 103–04, 117

Table of Cases  xix Case C-224/02, Pusa, EU:C:2004:273������������������������������������������������������������ 19, 33, 82 Joined Cases C-578/10 to C-580/10, van Putten and Others, EU:C:2012:246�������89 Case C-370/90, The Queen v Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department, EU:C:1992:296���������������������������������������������������������11, 57, 59, 92–93 Case C-292/89, The Queen v Immigration Appeal Tribunal, ex parte Antonissen, EU:C:1991:80 ��������������������������������������������������������������������118 Case C-175/78, The Queen v Saunders, EU:C:1979:88���������������������������������������������58 Case C-247/17, Raugevicius, EU:C:2018:898������������������������������������23, 151, 169, 180 Case C-357/89, Raulin v Minister van Onderwijs en Wetenschappen, EU:C:1992:87����������������������������������������������������������������� 44, 84, 99 Case C-165/14, Rendón Marín, EU:C:2016:675��������������������� 1, 4, 20, 49–51, 57, 64, 68, 72, 75–76, 143–44, 151, 173, 188–89 Case C-423/12, Reyes, EU:C:2014:16������������������������������������������������������������������� 30, 73 Case C-135/08, Rottmann, EU:C:2010:104������������������������������������������24, 71, 142–43, 182–83, 185–86 Case C-363/89, Roux v Belgian State, EU:C:1991:41����������������������������������������� 26, 33 Case C-48/75, Royer, EU:C:1976:57��������������������������������������������������������������� 10, 26, 44 Case C-34/09, Ruiz Zambrano, EU:C:2011:124������������������������ 71–72, 143, 161, 182 Case C-129/18, SM (Enfant placé sous kafala algérienne), EU:C:2019:248������������������������������������������������������������������������������������������������ 30, 171 Case C-507/12, Saint Prix, EU:C:2014:2007 ���������������������������� 22, 31, 36, 38, 41–42, 83, 111, 121, 145 Case C-208/09, Sayn-Wittgenstein, EU:C:2010:806������������������������������������������������170 Case C-403/03, Schempp, EU:C:2005:446������������������������������������������������� 90, 159, 165 Case C-112/00, Schmidberger, EU:C:2003:333��������������������������������������������������������153 Case C-362/14, Schrems, EU:C:2015:650 ����������������������������������������������������������������181 Case C-218/14, Singh and Others, EU:C:2015:476������������56–57, 63, 65, 70, 174–75 Case C-145/04, Spain v United Kingdom, EU:C:2006:543������������������������������ 135–37 Case C-29/69, Stauder v Stadt Ulm, EU:C:1969:57�������������������������������������������������155 Case C-503/99, Stewart, EU:C:2011:500��������������������������������������������������������������������87 Case C-196/87, Steymann v Staatssecretaris van Justitie, EU:C:1988:475��������������94 Case C-90/97, Swaddling, EU:C:1999:96������������������������������������������������������������������112 Case C-483/17, Tarola, EU:C:2019:309��������������������������������������������18, 31, 38, 41, 83, 120–21, 125–26 Case C-192/05, Tas-Hagen and Tas, EU:C:2006:676����������������������������������������� 33, 87 Case C-480/08, Teixeira, EU:C:2010:83�������������������������������������������������56, 66–67, 121 Case C-221/17, Tjebbes and Others, EU:C:2019:189���������������������������19, 24, 142–43, 182, 185–86 Case C-456/02, Trojani, EU:C:2004:488������������������������������������ 39, 83, 87, 94, 97–98, 100, 116, 119 Case C-145/09, Tsakouridis, EU:C:2010:708 ��������������������������������������������51–54, 152, 171, 173, 175

xx Table of Cases Case C-33/74, Van Binsbergen / Bedrijfsvereniging voor de Metaalnijverheid, EU:C:1974:131����������������������������������������������������� 91–92 Case C-41/74, Van Duyn v Home Office, EU:C:1974:133 ���������������������������������������34 Case C-26/62, Van Gend en Loos v Administratie der Belastingen, EU:C:1963:1 ��������������������������������������������������������������������������������������������� 8, 139, 155 Case C-22/08, Vatsouras and Koupatantze, EU:C:2009:344����������������������������������119 Case C-92/09, Volker und Markus Schecke and Eifert, EU:C:2010:662����������������165 Case C-627/18, Wightman and Others, EU:C:2018:999�������������������������������������������24 Case C-87/12, Ymeraga and Ymeraga-Tafarshiku, EU:C:2013:291����������������������������������������������������������������������������������75–76, 161, 184 Case C-200/02, Zhu and Chen, EU:C:2004:639�������������������������������64, 68–69, 73, 92, 117, 121, 162, 165 Case C-424/10, Ziolkowski and Szeja, EU:C:2011:866�������������������28, 38, 45, 66, 77, 144, 162, 171, 174, 179, 187 Opinions of the Court of Justice of the European Union Avis 2/13 – Adhésion de l’Union à la CEDH, EU:C:2014:2454.�����������������������������157 Opinions of the Advocates General Opinion in Case C-109/01, Akrich, EU:C:2003:112�������������������������������������������������93 Opinion in Case C-158/04, Alfa Vita Vassilopoulos, EU:C:2006:212������� 18, 97, 100 Opinion in Case C-67/14, Alimanovic, EU:C:2015:210����������������������������� 42, 66–67, 118, 121 Opinion in Case C-93/18, Bajratari, EU:C:2019:512������������������������������������ 144, 174 Opinion in Case C-386/02, Baldinger, EU:C:2003:671������������������������������������������163 Opinion in Case C-274/96, Bickel and Franz, EU:C:1998:115������������������������� 21, 85 Opinion in Case C-256/11, Dereci and Others, EU:C:2011:626����������������������������187 Opinion in Case C-158/07, Förster, EU:C:2008:399�����������������������������������������������109 Opinion in Case C-212/06, Gouvernement de la Communauté française and Gouvernement wallon, EU:C:2007:398�����������������������������������������19 Opinion in Case C-212/05, Hartmann, EU:C:2006:615���������������������������������� 15, 100 Opinion in Case C-348/09, I, EU:C:2012:123�����������������������������������������������������������52 Opinion in Case C-168/91, Konstantinidis v Stadt Altensteig and Landratsamt Calw, EU:C:1992:504 �����������������������������������������9, 21, 151, 158 Opinion in Case C-165/16, Lounes, EU:C:2017:407���������������������������������� 47, 61, 194 Opinion in Case C-413/01, Ninni-Orasche, EU:C:2003:117������������������������������������95 Opinion in Case C-456/12, O, EU:C:2013:837����������������������������������������������������������63 Opinion in Joined Cases C-523/11 and C-585/11, Prinz and Seeberger, EU:C:2013:90���������������������������������������������������������������������������������������������������������103

Table of Cases  xxi Opinion in Case C-228/07, Petersen, EU:C:2008:281���������������������������������������������158 Opinion in Case C-224/02, Pusa, EU:C:2003:634��������������������������������������������������146 Opinion in Case C-2/92, The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Dennis Clifford Bostock, EU:C:1993:141�������������������������������������������������������������������������������������������������������158 Opinion in Case C-34/09, Ruiz Zambrano, EU:C:2010:560���������� 9, 20–21, 158–59 Opinion in Case C-218/14, Singh and Others, EU:C:2015:306�������������������������������70 Opinion in Case C-145/04, Spain v United Kingdom, EU:C:2006:231�������� 142, 148 Judgments of the European Court of Human Rights Biao v Denmark App no 38590/10 (2016)����������������������������������������������������������������160 Jeunesse v The Netherlands App no 12738/10 (2014)����������������������������������������������160 Matthews v United Kingdom App no 24833/984 (1999)�����������������������������������������137 Other R (Schindler) v Chancellor of the Dutchy of Lancaster [2016] UKSC 2016/0105���������������������������������������������������������������������������������������������������148 Teshome v The Lord President of the Council [2014] EWHC 1468.�����������������������145

xxii

1 Introduction I.  EU Citizenship: The Legal Space Between Status and Rights The recent decade has known a volatile judicial development of the legal concept of EU citizenship and its place in free movement law, and in primary Union law more broadly. As this book puts forward, in the judgments of the Court of Justice of the European Union (the Court) EU citizenship sometimes functions as a fundamental status of the individual, and other times merely designates a residual personal category with lesser or no legal protection under Union law.1 Depending on the nature of the legal claim at hand, the status of EU citizenship variably loses or gains relevance as a legal concept, thereby affecting the scope of application of Union law, and arbitrarily disadvantaging some individuals over others of its protection. This way, EU citizenship has developed into a two-tiered legal concept, reduced to a poor legal status in some cases, while in other cases upheld and given tangible legal effects, and triggering the scope of EU fundamental rights review. This book exposes and problematises the creation in the Court’s jurisprudence of an expanding legal space between two contrasting tiers of EU citizenship. This legal space is marked by the uncertainty of how and whether the status of EU citizenship will generate rights in a given case.

A.  EU Citizenship in the 2010s: Hardships and Reinvention The year 2013 marked the twentieth anniversary of EU citizenship as a codified legal concept in EU primary law.2 The year was proclaimed by the European Parliament and the Council to be the European Year of Citizens.3 The aim was that 2013 should be filled with initiatives by the EU institutions to raise awareness

1 Compare the role of EU citizenship in Case C-165/14, Rendón Marín, EU:C:2016:675 and Case C-82/16, KA and Others, EU:C:2018:308 with Case C-67/14, Alimanovic, EU:C:2015:597 and Case C-308/14, Commission v United Kingdom, EU:C:2016:436. 2 Citizenship of the Union was formally introduced in EU primary law through the Treaty of Maastricht. 3 Decision No 1093/2012/EU of the European Parliament and of the Council of 21 November 2012 on the European Year of Citizens (2013).

2  Introduction and knowledge of the rights and duties attached to the status of EU citizenship as given in the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU).4 Among the highlighted aspects were the right to move and reside freely within the Union; the right to equal treatment regardless of nationality; and the right to vote in municipal and European elections in a host Member State on equal terms as resident nationals,5 these personal free movement rights constituting the cherished core of EU citizenship. As the legal concept of EU citizenship approaches its thirtieth year, legal scholars have in recent years been debating whether the legal significance of its status, as a basis for the enjoyment of personal free movement rights, still subsists.6 The literature reflects views of EU citizenship as having gone from a constitutional­ising influence on free movement of persons law,7 to entering a reactionary phase,8 in turn leading to a phase in the 2010s where its status was even judicially deconstructed.9 This book adds to these analyses, and puts forward an understanding of the developing concept of EU citizenship as a two-tiered concept. While it has not been deconstructed, it is argued that there is a conflict between simultaneously stretching the concept in two opposite directions. On the one hand, EU citizenship has steadily declined as a legal tool for bringing about equal ­treatment, and thereby placed vulnerable Union citizens who are at

4 Consolidated Version of Treaty on European Union and the Treaty on the Functioning of the European Union (OJ C 202/01 2016). 5 Article 2 of Decision No 1093/2012/EU. 6 Among a rich literature debating what has happened to the status of EU citizenship as a basis for free movement of persons rights, see, in general, C O’Brien, ‘Civis Capitalist Sum: Class as the New Guiding Principle of EU Free Movement Rights’ (2016) 53 Common Market Law Review 937. N Nic Shuibhne, ‘Limits Rising, Duties Ascending: The Changing Legal Shape of Union Citizenship’ (2015) 52 Common Market Law Review 889. D Thym, ‘When Union Citizens Turn into Illegal Migrants: The Dano Case’ (2015) 40 European Law Review 249. E Spaventa, ‘Earned Citizenship: Understanding Union Citizenship Through Its Scope’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017). M Dougan, ‘The Bubble That Burst: Exploring the Legitimacy of the Case Law on the Free Movement of Union Citizens’ in M Adams et al (eds), Judging Europe’s Judges: The Legitimacy of the Case Law of the European Court of Justice (Oxford, Hart Publishing, 2013). D Kramer, ‘Earning Social Citizenship in the European Union: Free Movement and Access to Social Assistance Benefits Reconstructed’ (2016) 18 Cambridge Yearbook of European Legal Studies 270. D Kostakopoulou, ‘When EU Citizens Become Foreigners’ (2014) 20 European Law Journal 447. F Fabbrini, ‘The Political Side of EU Citizenship in the Context of EU Federalism’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge U ­ niversity Press, 2017). U Belavusau and D Kochenov, ‘Kirchberg Dispensing the Punishment: Inflicting “Civil Death” on Prisoners in Onuekwere (C-378/12) and MG (C-400/12)’ (2016) 41 European Law Review 557. 7 See assessments made by N Nic Shuibhne, ‘Derogating from the Free Movement of Persons: When Can EU Citizens Be Deported?’ (2006) 8 Cambridge Yearbook of European Legal Studies (2006) 187. M Dougan, ‘The Constitutional Dimension to the Case Law on Union Citizenship’ (2006) 31 European Law Review 613. 8 Spaventa (n 6); Nic Shuibhne, ‘Limits Rising, Duties Ascending’ (n 6). 9 A Iliopoulou-Penot, ‘Deconstructing the Former Edifice of Union Citizenship? The Alimanovic Judgment’ (2016) 53 Common Market Law Review 1007. C O’Brien, ‘The ECJ Sacrifices EU Citizenship in Vain: Commission v United Kingdom’ (2017) 54 Common Market Law Review 209.

EU Citizenship: The Legal Space Between Status and Rights  3 the edges of what is considered genuine use of freedom of movement, in uncertain legal spaces beyond review under the EU Charter of Fundamental Rights (the Charter). In other cases, it has extended the scope of Union law in the name of protecting the existential effet utile of the status of EU citizenship, making EU fundamental rights protection applicable in otherwise purely internal situations. A main issue resulting from this legal development is how to overcome the ensuing legal space between falling out of the edges of free movement rights, as defined mostly in secondary law, to coming within the protective scope of the status of EU citizenship and the fundamental freedoms at the primary law level.

B.  Core Analytical Findings of the Book The book’s main analytical finding is that there is a gap between the Court’s interpretation of the meaning of EU citizenship in relation to legal claims that involve the individual’s own ability to make genuine use of freedom of movement, compared with legal claims concerning Member States’ restrictive measures on freedom of movement or deprivation of the ‘genuine enjoyment’ of the rights attached to the status of EU citizenship. The discrepancy between these two tiers of EU citizenship is especially notable in how the Court treats the issue of the applicability of the Charter, and thus activates or rejects EU fundamental rights review. From the point of view of legal certainty, it is confusing that the Court has sought to affirm the limitations to non-economic personal freedom of movement by emphasising the efforts of integration that the individual Union citizen and family members need to make in a host Member State, while inconsistently expanding and withdrawing the scope of EU fundamental rights – all under the pamphlet of EU citizenship. The conflicting aims of the two tiers of EU citizenship are exposed by the book’s comparison of the case law on the personal free movement rights of residence, and family reunification (chapter three and chapter four); equal treatment (chapter five); and equal political participation (chapter six). These chapters lead to the conclusion that, on the one hand, the Court sanctions the Member States’ differential treatment between their nationals and non-nationals based on economic status or level of integration as defined by Directive 2004/38, without a review under primary law and EU fundamental rights protection.10 This creates a new kind of purely internal situations in host Member States, when a nonnational Union citizen or family member falls outside the secondary law norms of Directive 2004/38 that apply to their case, but cannot rely on a review of their case

10 See development from Case C-158/07, Förster, EU:C:2008:630 to Case C-299/14, García-Nieto and Others, EU:C:2016:114.

4  Introduction under the status of EU citizenship and its rights at the primary law level, nor EU fundamental rights protection.11 On the other hand, the Court relies on the rationale of effet utile of the fundamental freedoms and the status of EU citizenship at the primary law level to extend the jurisdictional scope of Union law, and thereby, the applicability of the Charter.12 The latter development resulting in a substantiation of some EU citizenship rights at the primary law level, such as the right to vote in European Parliament elections in Article 14(3) TEU; the right to reside in the Union under Article 20 TFEU; and the right to freedom of movement in Article 21 TFEU, letting legal claims under these provisions ignite the applicability of Charter review (chapter seven). In these types of cases, the legal strength of EU citizenship as a primary law concept, with a direct linkage to the Charter, has proven to really emerge.13

C.  Purpose of the Book The general purpose of the book is to be an addition to the legal research field and debate on the development of EU citizenship. The specific aim is to provide a critical analysis that exposes and questions the creation of a widening legal space between the meaning of EU citizenship with regard to conditions and limits on the exercise of personal free movement rights, and the more existential protection at the primary law level of the status of EU citizenship and the fundamental freedoms, and the resulting legal uncertainty regarding the applicability of EU fundamental rights protection. By elucidating the legal concept of EU citizenship in relation to its personal free movement rights, and the jurisdictional scope of the Charter’s fundamental rights protection, the book contributes to a greater understanding of the development, and potential, of the concept of EU citizenship in Union law.

II.  Method and Delimitations This work is an analysis of the legal concept of EU citizenship, and how it is affected by the legal norms within EU law that either limit its personal free movement 11 N Nic Shuibhne, ‘Integrating Union Citizenship and the Charter of Fundamental Rights’ in D Thym (ed), Questioning EU Citizenship: Judges and the Limits of Free Movement and Solidarity in the EU, Modern Studies in European Law (Oxford, Hart Publishing, 2017). S Iglesias Sánchez, ‘Fundamental Rights and Citizenship of the Union at a Crossroads: A Promising Alliance or a Dangerous Liaison?’ (2014) 20 European Law Journal 464. 12 See, respectively, Case C-650/13, Delvigne, EU:C:2015:648; Case C-165/14, Rendón Marín, EU:C:2016:675; and Case C-191/16, Pisciotti, EU:C:2018:222. 13 On the evolvement of EU citizenship outside the free movement context, see, in general, F Strumia, ‘Looking for Substance at the Boundaries: European Citizenship and Mutual Recognition of Belonging’ (2013) 32 Yearbook of European Law 432.

Outline  5 rights, or ensure the effectiveness of the status of EU citizenship itself. The analysis is therefore restricted to an expository and evaluative doctrinal reading of how personal free movement rights, and the status of EU citizenship, are defined and developed within the EU legal system. The book does not include analyses of nonlegal factors of political, social or economic significance, which may affect EU citizenship and the conditions for the exercise of freedom of movement. The book’s focus is restricted to three core free movement rights attached to the status of EU citizenship, all of which are actualised in a free movement context. The right to reside freely in a host Member State of Article 21 TFEU (encompassing a right to reside together with accompanying family members); the right to equal treatment (non-discrimination on grounds of nationality) of Article 18 TFEU, as inherent in the exercise of personal freedom of movement; and the right to political voting and candidacy on equal terms with nationals in a host Member State at the municipal and European level of Article 22 TFEU. Other Treaty-based EU citizenship rights are excluded from the scope of the book as their enjoyment neither depends on an individual Union citizen’s exercise of freedom of movement to a host Member State, nor residence within the Union’s territory. The book’s analysis therefore excludes those EU citizenship rights that are realised in the direct relationship between the individual and the EU ­institutions, such as the rights to petition to the European Parliament, to participate in the creation of a Citizens’ Initiative, and to apply to the European Ombudsman.14 Also the EU citizenship right to seek consular protection in a Member State ­representation in a third state15 is excluded, as the premises for the realisation of that right are found outside the context of EU free movement law, and outside the Union’s territory. Cases, legal materials and other publications dated after 15 October 2019 are not included in the book.

III. Outline In order to frame the book’s focus on EU citizenship’s legal development of the last decade, the introductory chapter is followed by a short account of the historical development of the legal concept of EU citizenship and its origins in EU free movement law, together with an account of the scholarly debate on the legal content and meaning of EU citizenship (chapter two). Chapters three, four, five and six explore the various norms for how to exercise and enjoy the core free movement rights that the status of EU citizenship confers on Union citizens in a host Member State. The right to movement and residence (chapter three); the right to reside derived by accompanying family members (chapter four); the right to

14 Article 15 Article

24 TFEU. 23 TFEU.

6  Introduction equal treatment (chapter five); and the right to vote and participate on equal terms with resident nationals at the municipal and European political level (chapter six). The final substantive chapter explores how the norms that limit and condition these rights relate to the jurisdictional scope and relevance of the status of EU citizenship, and its attached rights at the primary law level, in turn affecting the scope of application of EU fundamental rights protection (chapter seven). The concluding chapter (chapter eight) assembles the findings of the substantive chapters, and ­evaluates the possible future legal development of the status of EU citizenship and its personal free movement rights in Union law.

2 EU Citizenship: Historical Backdrop and Debate This book discusses the development in Union law towards a two-tiered concept of EU citizenship; a status that either has the effect of enlarging the jurisdictional scope of Union law, or pushing the individual out of enjoyment of personal free movement rights, and thus, beyond the applicability of EU fundamental rights review. The current chapter looks back on the historical origins of the legal concept of EU citizenship in EU law, and the legal debate on the meaning and purpose of its status, since its inception at the Treaty levels, almost three decades ago. The following account aims to show that the development of a two-tiered concept of EU citizenship in EU law, with a resulting space of legal uncertainty, has been a long time coming. The visions of a politically federalising, and legally potent status of a European citizenship, contrasted against the fears of the same, and the demand for boundaries to personal freedom of movement, have all been present since the early days of free movement of persons law.1

I.  The Legal Origins of EU Citizenship By the 1960s, the potential of a European citizenship was discernible in the legal order of the European Economic Community (EEC). First, it was present as an ideal, underlying the progressive furthering of free movement of persons law.2 The liberalisation of cross-border labour, achieved through several legislative steps, made the then vice-president of the European Commission reiterate that an ‘embryonic form of European Citizenship’ had been created.3 Second, the 1 On how the concept of EU citizenship ignites both hopes and fears, see in general, K Lenaerts and JA Gutiérrez-Fons, ‘Epilogue on EU Citizenship: Hopes and Fears’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017). 2 Although these rights had imperfections that would need to be addressed in order to create a ‘citizenship’, as reasoned in 1976 by R Plender, ‘An Incipient Form of European Citizenship’ in FG Jacobs (ed), European Law and the Individual (Elsevier, North-Holland Publishing, 1976) 45–48. AC Evans, ‘European Citizenship’ (1982) 45 Modern Law Review 497, 509 f. 3 AP van der Mei, Free Movement of Persons within the European Community: Cross-Border Access to Public Benefits (Oxford, Hart Publishing, 2003) 27 referencing Levi-Sandri.

8  Historical Backdrop and Debate contours of a European citizenship was discerned in the civic status of the person under Community law, created by the emphasis of the Court of Justice of the European Union (the Court) on the individual as an actor and rights-bearer.4 The case of Van Gend en Loos removed the Community legal order from the confines of traditional international law by making the private person a direct subject, as well as a rights-holding actor within its legal system.5 European citizenship was, at this point, a concept designating an implicit reality, or a phenomenon taking an ‘incipient form’ through steps taken by both the Court and the Member States as the legislator.6 A tangible political European citizenship started to take shape through the 1976 Act establishing that the national representatives to the European Parliament were to be elected through direct universal suffrage.7 This Act did however not create any actual right to vote for the individual Member State national.8 Only through the changes brought about in the 1993 Treaty of Maastricht was a right to vote and stand as a candidate in elections to the European Parliament introduced in EU primary law as one of the core free movement rights attached to EU citizenship.9 In December 1973, at the Copenhagen Summit, the Member States adopted a report on European identity, laying the ground for several reports, consultations and Commission proposals that would gradually lead up to the legal codification of EU citizenship two decades later.10 The Tindemans Report of 1974 spoke of the need for creating a citizenship status as a natural development of the Community and a means to foster solidarity between the peoples of Europe.11 The Adonnino Report of 1985 furthered the ideas of what concrete legal character such a European citizenship could have.12 Freedom of movement would be at its centre, while the right to reside freely in the Member State of choice would be an essential

4 See H van Eijken et al, ‘The European Citizen as a Bearer of Fundamental Rights in a Multi-Layered Legal Order’ in T van den Brink, M Luchtman and M Scholten (eds), Sovereignty in the Shared Legal Order of the EU: Core Values of Regulation and Enforcement (Antwerp, Intersentia, 2015) 249. 5 Case C-26/62, Van Gend en Loos v Administratie der Belastingen, EU:C:1963:1. An element of ‘citizenship’ was created through the Van Gend en Loos judgment, giving the individual a locus standi that contributed to the separateness of the EC legal order from other international treaties and organisations. 6 See in general, Plender (n 2). See also Evans (n 2). 7 The 1976 Act concerning the election of the representatives of the Assembly by direct universal suffrage. 8 J Shaw, The Transformation of Citizenship in the European Union: Electoral Rights and the Restructuring of Political Space, Cambridge Studies in European Law and Policy (Cambridge, Cambridge University Press, 2007) 173. 9 Article 8(b)(2) EC (Treaty of Maastricht). 10 Document on the European Identity published by the Nine Foreign Ministers (Copenhagen, 14 December 1973). 11 European Union Report by Leo Tindemans, Bulletin of the European Communities, Supplement 1/76 (Tindemans Report). 12 Report from the European Council by the ad hoc committee ‘On a People’s Europe’, A 10.04 COM 85, SN/2536/3/85 Bulletin of the European Communities Supplement 3/1985 (Adonnino Report).

The Legal Origins of EU Citizenship  9 element.13 However, the Adonnino Report pointed out that a citizenship right to reside must not lead to non-national citizens becoming unreasonable economic burdens on a host Member State, due to the lack of harmonisation of their social security systems.14 The concern of ‘social tourism’, a phenomenon that Union law does not accept as applicable to persons coming within the scope of the economic freedoms,15 has evidently been present from the start in the legal development of EU citizenship and non-economic free movement rights.16 The apprehensiveness towards free movers becoming ‘unreasonable burdens’ is echoed in the current Free Movement Directive 2004/38.17 The Adonnino Report also proposed the free movement right to equal political participation, and a right to seek consular protection in a third country from another Member State’s representation, as part of the special rights that should flow from a status of European citizenship, both of which are now established citizenship rights in primary law.18 The latter right has been given expression, and effect through the Consular Protection Directive, that entered into force in 2018.19 In the negotiations leading up to the introduction of EU citizenship via the Treaty of Maastricht, the Spanish government proposed that the shaping of a concept of EU citizenship with an attached rights-package should include fundamental rights guarantees.20 Such an explicit coupling between EU citizenship and fundamental rights was not made in the subsequent Treaty changes, and has not been achieved in the legal development since.21 Nonetheless, it is relevant to note that a provision recognising the Union’s respect for fundamental rights entered primary law at the same time as the concept of EU citizenship.22 The inheritance of the legal framework and norms developed in free movement of persons law, the ambitions of further political integration between the Member States, as well as the place of fundamental rights protection within that regime, form the basis for the legal creation of the status of EU citizenship, and its attached rights. 13 Adonnino Report (n 12) 14. 14 ibid. 15 See Case C-39/86, Lair v Universität Hannover, EU:C:1988:322; and Case C-413/01, Ninni-Orasche, EU:C:2003:600. 16 van der Mei (n 3) 44. 17 Recitals 10, 16; Articles 7, 12, 13, 14. 18 Adonnino Report (n 12) 19 f. See Articles 22 and 23 TFEU. 19 Directive (EU) 2015/637 on the coordination and cooperation measures to facilitate consular protection for unrepresented citizens of the Union in third countries. See analysis of the preliminary effectiveness of the Directive by M Moraru, ‘An Analysis of the Consular Protection Directive: Are EU Citizens Now Better Protected in the World?’ (2019) 56 Common Market Law Review 417. 20 As pointed out by S Iglesias Sánchez, ‘Fundamental Rights and Citizenship of the Union at a Crossroads: A Promising Alliance or a Dangerous Liaison?’ (2014) 20 European Law Journal 464, 464–65. 21 Despite the call by some Advocates General. See Opinion in Case C-168/91, Konstantinidis v Stadt Altensteig and Landratsamt Calw, EU:C:1992:504; and Opinion in Case C-34/09, Ruiz Zambrano, EU:C:2010:560. For a critique of pairing fundamental rights with citizenship status, see M van den Brink, ‘EU Citizenship and (Fundamental) Rights: Empirical, Normative, and Conceptual Problems’ (2019) 25 European Law Journal 21. 22 Title 1 Article F EC (Treaty of Maastricht).

10  Historical Backdrop and Debate

II.  Free Movement of Persons: The Creationist Bone of EU Citizenship In the early days of Community law, the provisions regarding free movement of persons aimed to facilitate cross-border movement of workers between the Member States, to bring about an integrated labour market.23 To do so, the initial legal framework for mobility of natural persons served to remove potential risks and alleviate personal costs of interstate labour migration.24 Free movement of workers was therefore associated with two essential, instrumental rights: a right to reside, as an individual, but also accompanied by close family members; and a right to equal treatment to national resident workers in the host Member State. The right to equal treatment functioned as an expression of the free movement law principle of non-discrimination on grounds of nationality, and was elaborated in several secondary law instruments.25 Through the Court’s generous reading of the personal scope of economic free movement of persons, and the derived rights that secondary law instruments extended to accompanying family members of the economically active Member State national, the free movement rights of residence and equal treatment became available to a greater number of persons.26 These rights were also ensured for the Member State national providing or receiving services in a host Member State under the protection of, what is now, Article 56 of the Treaty on the Functioning of the European Union (TFEU).27 Progressively, residence and equal treatment rights were also made available to non-economically active Member State nationals, the most notable legislative step being the adoption of the three Residence Directives of the early 1990s.28 These Directives introduced, at the secondary law level, a general right to reside. That right was obtainable upon fulfilling the pre-conditions of economic self-sufficiency and comprehensive sickness insurance; the basis for taking up residence and enjoying

23 van der Mei (n 3) 10–13. 24 C Barnard, The Substantive Law of the EU: The Four Freedoms, 5th edn (Oxford, Oxford University Press, 2016) 238. 25 See, eg, Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families; Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community; and Regulation (EEC) No 1251/70 of the Commission of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State. 26 In Case C-48/75, Royer, EU:C:1976:57, para 50, the Court made clear that the right to enter and reside in a host Member State was conferred on the individual Community national, by coming within the personal scope of the economic freedoms for natural persons. 27 Council Directive 64/220/EEC of 25 February 1964 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services. See also Case C-186/87, Cowan v Trésor public, EU:C:1989:47. 28 Council Directive 90/364/EEC of 28 June 1990 on the right of residence; Council Directive 90/365/ EEC of 28 June 1990 on the right of residence for employees and self-employed persons who have ceased their occupational activity; and Council Directive 93/96/EEC of 29 October 1993 on the right of residence for students.

Free Movement of Persons: The Creationist Bone of EU Citizenship  11 equal treatment rights in a host Member State of choice for the non-economically active Member State national. The three Residence Directives respectively created the premises for residence and equal treatment rights of students, pensioners and other persons of independent means, who wished to move and live in another Member State than that of their nationality. The legal development at this point seemed to be one of ever-expanding free movement of persons rights, progressively loosened from the necessity of coming within the scope of the economic freedoms, and characterised by a fundamentalisation of rights, linking them directly to the individual. The interest of protecting the person, who ventured across the Member States’ borders, relying on free movement rights, was at the heart of the Court’s interpretations of the economic freedoms in primary law, as well as in the legislation that aimed to facilitate this movement.29 The legal advancements regarding free movement of persons were therefore not only due to the Court’s generous interpretations of the economic free movement provisions, nor was it entirely due to the legislator’s creation of expansive legal norms in secondary legislation. It can best be understood as an interactive process between the Court and the legislator, where the Treaty provisions of freedom of movement were given a broad scope in the Court’s interpretations, while the legislator created and adopted legislation largely matching, or even going further than this broad scope.30 The broader the scope of free movement of persons rights, and the more substantive its material content, the more substance could be given to the new legal creation of EU citizenship as it came about in the early 1990s. Thus, in 1995, D’Oliveira called the right to free movement and residence ‘the nucleus’ around which any other rights or legal outcomes of the new concept of EU c­ itizenship would ‘crystallise’.31 It is natural that freedom of movement is listed as the first right of Union citizenship, currently found in Article 20(2) of the TFEU. The personal scope of EU citizenship was, and remains, exclusively based on an individual having Member State nationality. This demarcation line was important as it provided that only a Member State’s own nationals, but not its other residents – maintaining the movement of third-country nationals (TCNs) subject to immigration control – were to directly benefit from EU citizenship rights.32 29 Notably clear in cases like Case C-186/87, Cowan v Trésor public, EU:C:1989:47; and Case C-370/90, The Queen v Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department, EU:C:1992:296. 30 On the relationship between the Court and the EU legislator in the law-making process, see a critical analysis by G Davies, ‘The European Union Legislature as an Agent of the European Court of Justice’ (2016) 54 Journal of Common Market Studies 846. 31 HU Jessurun d’Oliveira, ‘Union Citizenship: Pie in the Sky?’ in A Rosas and E Antola (eds), A Citizens’ Europe, in Search of a New Order (London, Sage Publications, 1995) 81. 32 See discussions on whether legal residence could or should be a basis for acquiring EU ­citizenship, M-J Garot, ‘A New Basis for European Citizenship: Residence?’ in M La Torre (ed), European ­Citizenship: An Institutional Challenge (The Hague, Kluwer Law International, 1998). Á Castro Oliveira, ‘The Position of Resident Third-Country Nationals: Is it Too Early to Grant Them Union Citizenship?’ in M La Torre (ed), European Citizenship: An Institutional Challenge (The Hague, Kluwer Law International, 1998). Z Asztalos, ‘Union Citizenship Based on Residence: Writing the Future or a Nightmare?’ (2008) 6 European Integration Studies 199.

12  Historical Backdrop and Debate A certain parallelism between the standing on the internal market of Union citizens and that of TCN long-term residents has however ensued through secondary law.33 Nevertheless, the Treaties, as well as the Court’s case law, clearly distinguish the rights and legal effect as reserved for those individuals who hold the status of EU citizenship, and generally, they extend to TCNs only in their capacity as family members of a Union citizen.34 The listed rights attached to EU citizenship in primary law are now found in Article 20(2) TFEU. The provision, however, makes reference to all the rights and duties of the Treaties, signalling that any Treaty provision may be linked to the status of EU citizenship, and not just the rights enumerated in this provision.35 (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: (a) the right to move and reside freely within the territory of the Member States; (b) 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; (c) 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; (d) 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.

EU citizenship’s close attachment to a free movement context was seen also in the premises for the right in Article 20(2)(b) TFEU of exercising the right to equal political participation in a host Member State. Its detailed conditions were laid down in two Voting Directives: one referring to equal political rights at the municipal level; and one referring to equal political rights at the level of European elections.36 In keeping with d’Oliveira’s ‘nucleus’-vision, at this point, the political citizenship 33 See Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents; and Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification. See analysis by D Acosta Arcarazo, ‘Civic Citizenship Reintroduced? The Long-Term Residence Directive as a Post-National Form of Membership’ (2015) 21 European Law Journal 200. 34 See the proposal for how the rationale of status first, rights second, might be inversed, thereby allowing TCN family members to be included in the status of EU citizenship based on the rights that they firstly derive from that status: C Raucea, ‘European Citizenship and the Right to Reside: “No One on the Outside Has a Right to Be Inside?”’ (2016) 22 European Law Journal 470. 35 C Barnard, The Substantive Law of the EU: The Four Freedoms, 6th edn (Oxford University Press, 2019) 321–22. 36 Council Directive 93/109/EC of 6 December 1993 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals; and Council Directive 94/80/ EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals (the Voting Directives). See Jessurun d’Oliveira, ‘Union Citizenship: Pie in the Sky?’ (n 31) 81.

Freedom of Movement Based Directly on the Status of EU Citizenship  13 rights were strictly free movement rights.37 They did not ensure political rights to static Union citizens in relation to their home Member States, but were merely equal treatment rights for Union citizens residing in a host Member State. The consular protection right and the right to petition to the European Parliament and Ombudsman, have, however, all along been the notable exceptions to that, as they take effect independent of any free movement context. However, when the EU citizenship right to freedom of movement was inserted in primary law, and given its own expression in Article 21(1) TFEU, it came with an explicit reference to its limits and conditions, which the Treaty provisions giving the economic freedoms did not have.

III.  Freedom of Movement Based Directly on the Status of EU Citizenship Through the Treaty of Maastricht, the introduction of the status of EU citizenship became directly linked to a personal right to move and reside freely for all Union citizens. The EU citizenship provisions thereby created a Treaty basis for detaching the exercise of the right to freedom of movement from the internal market rationale and transforming them into proper individual rights. As opposed to the residence and equal treatment rights that flow directly from the cross-border worker status under Article 45 TFEU, the Union legislator did not want to create a citizenship right of residence and equal treatment to be enjoyed directly ‘at the doorstep’ of a host Member State, solely by virtue of being a Union citizen.38 The three Residence Directives in force when EU citizenship was inserted in primary law, and later replaced by Directive 2004/38, served as boundaries to a citizenship-based right to free movement. As pointed out by Dougan, the Residence Directives went overnight from being rights-enhancing legal instruments, to rights-limiting legal instruments, since they were now the secondary law basis that provided the limits and conditions to the citizenship right to reside in the host Member State of choice.39 It was therefore not far-fetched of legal scholars in the early 1990s to find that the introduction of the legal concept of EU citizenship would add very little to the already strongly developed free movement of persons acquis.40 The general right to freedom of movement for all citizens of the Union was given with one hand, while taken back with the other, as the exercise 37 K Groenendijk, ‘Article 40’ in S Peers et al (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014) 1063. 38 van der Mei (n 3) 7–8. 39 M Dougan, ‘The Constitutional Dimension to the Case Law on Union Citizenship’ (2006) 31 ­European Law Review, 613, 615. 40 HU Jessurun d’Oliveira, ‘European Citizenship: Its Meaning, Its Potential’ in J Monar, W Ungerer and W Wessels (eds), The Maastricht Treaty on European Union: Legal Complexity and Political Dynamic (Brussels, European Interuniversity Press, 1993) 92 f, 105. See in general, M Everson, ‘The Legacy of the Market Citizen’ in J Shaw and G More (eds), New Legal Dynamics of European Union (Oxford, Clarendon Press, 1995).

14  Historical Backdrop and Debate of freedom of movement rights remained subject to limitations.41 The relationship between rights and the limits to those rights have, however, proven to take a dynamic development in EU citizenship law over the last 25 years. The linkage between the status of EU citizenship, the right to move and reside freely, and the right to equal treatment rights in a host Member State, has transformed and evolved over time. In 2006, Nic Shuibhne described this link as intertwining the three concepts at the primary law level into a ‘mutant residence gene’ making residence and equal treatment rights almost inseparable from one another, and encircling the status of EU citizenship.42 In 2017, Spaventa pointed out a clearly opposite tendency in the legal development of the 2010s; that the conditions to personal freedom of movement in Directive 2004/38 have exhausted the legal relevance of these primary law concepts.43 According to her assessment, the case law has developed towards making the Directive both ‘floor and ceiling’ of the economically inactive Union citizen’s free movement rights,44 in a process that may empty the primary law rights attached to the status of EU citizenship of meaning.45 These different analytical findings reflect a diversified judicial development, informing the legal debate on how EU citizenship may be understood and applied.

IV.  Debating the ‘Promise’ and ‘Threat’ of Equal Treatment The link between the exercise of freedom of movement and the legal concept of EU citizenship has been studied and debated in legal scholarship since citizenship of the Union was formally adopted in primary law in 1993. As much potential as some have seen in EU citizenship,46 as many limits, and even irrelevance, to the concept are asserted by others, probing ideas for a reconstruction, or at least a ‘reconsideration’ of the status.47 A central controversial theme is not so much that 41 Jessurun d’Oliveira, ‘European Citizenship: Its Meaning, Its Potential’ (n 40) 92. 42 N Nic Shuibhne, ‘Derogating from the Free Movement of Persons: When Can EU Citizens Be Deported?’ (2006) 8 Cambridge Yearbook of European Legal Studies 187, 215–21. 43 E Spaventa, ‘Earned Citizenship: Understanding Union Citizenship Through Its Scope’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017) 220. 44 Spaventa, ‘Earned Citizenship’ (n 40) 220. 45 N Nic Shuibhne, ‘Limits Rising, Duties Ascending: The Changing Legal Shape of Union Citizenship’ (2015) 52 Common Market Law Review 889, 909. 46 See S O’Leary, The Evolving Concept of Community Citizenship: From the Free Movement of Persons to Union Citizenship (The Hague, Kluwer Law International, 1996); van der Mei (n 3). 47 For an early assertion that much would be needed to shape a legally substantive concept of EU citizenship, see Plender (n 2). A modern call for a reformed EU Citizenship is found in D Sarmiento and E Sharpston, ‘European Citizenship and its New Union: Time to Move On?’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017). See also S Seubert, O Eberl and F van Waarden (eds), Reconsidering EU Citizenship: Contradictions and Constraints, Interdisciplinary Perspectives on EU Citizenship (Cheltenham, Edward Elgar Publishing, 2018).

Debating the ‘Promise’ and ‘Threat’ of Equal Treatment  15 of the exercise of free movement and residence itself, but that of equal treatment of non-nationals to nationals in a Member State.

A.  EU Citizenship: A Vehicle for Transnational Equality or a Humiliation of the State? An early discussion was whether the (then) new concept of EU citizenship, with its attached free movement rights, added anything legally relevant to the pre-existing free movement of persons acquis, or, whether it was just a symbolic term, sealing an envelope of a legal development that had already taken place.48 However, around 2000, through interpretations given by the Court to this new Treaty-based creation of EU citizenship, EU lawyers agreed that it was in fact proving to be a forceful legal concept.49 The status of EU citizenship was indeed capable of producing tangible legal effects in the lives of individuals – notably for asserting equal treatment rights beyond the scope of the economic freedoms,50 and of playing a role in the Union’s constitutional law development.51 In its famous case of Grzelczyk, the Court interpreted EU citizenship to be the destined ‘fundamental’ status of the Member State nationals.52 Rather than being merely a symbolic expression, or a complementary legal status of the person next to the economic statuses of the cross-border worker or service provider,53 EU citizenship, paired with the right to equal treatment, both established at the primary law level, could possibly supersede the importance of a person’s standing under the economic freedoms.54 48 See in general, Jessurun d’Oliveira, ‘European Citizenship: Its Meaning, Its Potential’ (n 40); Everson (n 40); C Closa, ‘The Concept of Citizenship in the Treaty on European Union’ (1992) 29 Common Market Law Review 1137. 49 D Kostakopoulou, ‘Ideas, Norms and European Citizenship: Explaining Institutional Change’ (2005) 68 Modern Law Review 233, 246. S O’Leary, ‘Putting Flesh on the Bones of European Union Citizenship’ (1999) 24 European Law Review 68, 77–79. S Fries and J Shaw, ‘Citizenship of the Union: First Steps in the European Court of Justice’ (1998) 4 European Public Law 533, 554–59. 50 On the legal potency and effect of EU citizenship, see in general the analyses by O’Leary, ‘Putting Flesh on the Bones of European Union Citizenship’ (n 49); Fries and Shaw (n 49). C Jacqueson, ‘Union Citizenship and the Court of Justice: Something New under the Sun? Towards Social Citizenship’ (2002) 27 European Law Review 260. C Tomuschat, ‘Case C-85/96, María Martinez Sala v Freistaat Bayern, Judgment of 12 May 1998, Full Court [1998] ECR I-2691’ (2000) 37 Common Market Law Review 449. 51 See monographs on these topics by H van Eijken, EU Citizenship & the C ­ onstitutionalisation of the European Union, European Administrative Law Series 9 (Europa Law Publishing, 2015). A Tryfonidou, The Impact of Union Citizenship on the EU’s Market Freedoms, Modern Studies in European Law (Oxford, Hart Publishing, 2016). 52 Case C-184/99, Grzelczyk, EU:C:2001:458, para 31. 53 This conceptual view of EU citizenship as a restricted status compared with the economically active person’s status as a basis for free movement rights was applied by Advocate General Geelhoed in the Opinion in Case C-212/05, Hartmann, EU:C:2006:615. See notably paras 33–34. 54 van der Mei (n 3) 50, 144–45. M Dougan and E Spaventa, “‘Wish You Weren’t Here …”: New Models of Social Solidarity in the European Union’ in M Dougan and E Spaventa (eds), Social Welfare and EU Law (Oxford, Hart Publishing, 2005) 204–05.

16  Historical Backdrop and Debate The Court’s emphasis on the principle of proportionality when applying the conditions of the Residence Directives of the exercise of freedom of movement, as well as looking at individual factors of personal integration in a host Member State, could make the outcome of most equal treatment cases fall in favour of the individual Union citizen.55 In this ‘expansive’ period of EU citizenship,56 residence and equal treatment could be understood as prima facie citizenship rights, whereas the conditions and limits to these rights were treated as the narrowly construed derogations.57 This was a welcomed legal development by those who see EU citizenship’s potential for achieving transnational equality across the EU’s population.58 Others have taken a more critical view. If EU citizenship has the potential of ensuring enhanced equality of moving non-national and national Union citizens qua citizens, regardless of their economic activity, would it not put illegitimate pressure on the host societies?59 Adding to the criticism is the assertion that the Court’s linkage between EU citizenship and the right to equal treatment has the effect of diminishing the bond between national citizenship and a Member State of nationality, as Union law privileges the moving Union citizen at the expense of the ‘static’ local citizen.60 Does it not also discriminate arbitrarily against long-time resident third-country nationals in the Member States, just because of being non-Union citizens?61 Following this line, some found that the Court’s chosen path for EU citizenship in the early 2000s was an unwarranted legal development of forced solidarity obligations on the host societies, without sufficient regard to the Union legislator’s (the Member States’) express wishes.62 Solidarity, as a sentiment expressed within

55 Case C-184/99, Grzelczyk, EU:C:2001:458; Case C-413/99, Baumbast and R, EU:C:2002:493; Case C-209/03, Bidar, EU:C:2005:169. 56 Called ‘constituitive’ by Spaventa, ‘Earned Citizenship’ (n 40) 221 and called as phases of signalling intentions and engineering institutional change, by Kostakopoulou, ‘Ideas, Norms and European Citizenship’ (n 49) 246 f. 57 Dougan, ‘The Constitutional Dimension’ (n 39) 622 f. See in general, Fries and Shaw (n 49). 58 F Wollenschläger, ‘A New Fundamental Freedom beyond Market Integration: Union Citizenship and its Dynamics for Shifting the Economic Paradigm of European Integration’ (2011) 17 European Law Journal 1. 59 This is framed as the ‘assimilation effect’ between the EU citizenship right to free movement and equal treatment to the economically active, see A Iliopoulou and H Toner, ‘A New Approach to Discrimination Against Free Movers?’ (2003) 28 European Law Review 389, 392. For a critique, see A Somek, ‘Solidarity Decomposed: Being and Time in European Citizenship’ (2007) 32 European Law Review 787. 60 Somek (n 59) 817. See in general, G Davies, ‘The Humiliation of the State as a Constitutional Tactic’ in F Amtenbrink and PAJ van den Berg (eds), The Constitutional Integrity of the European Union (The Hague, TMC Asser Press, 2010). 61 See critiques by van den Brink, ‘EU Citizenship and (Fundamental) Rights’ (n 21); and G Davies, ‘“Any Place I Hang My Hat?” Or Residence is the New Nationality’ (2005) 11 European Law Journal 43. 62 A selection of the critiques for tying equal treatment rights to a status of EU citizenship include: Tomuschat (n 50); K Hailbronner, ‘Union Citizenship and Access to Social Benefits’ (2005) 42 Common Market Law Review 1245; J Meulman and H de Waele, ‘Funding the Life of Brian: Jobseekers, Welfare

Debating the ‘Promise’ and ‘Threat’ of Equal Treatment  17 certain groups must, when systematised, delimit between those individuals who are included and excluded in the group.63 The nature of the fundamental status of EU citizenship created by the Court purported a transnational solidarity that could powerfully include the non-national Union citizen in a local circle of solidarity. The adverse effect of such equal treatment based on the status of EU citizenship and the efficiency of freedom of movement is the risk of curtailing the Member States’ possibilities to achieve local socio-economic policy goals, aimed at bettering the life of the long-term resident members of its domestic communities.64 In that light, Davies has called the push by the Court to remove restrictions on Union citizens’ enjoyment of free movement rights with little regard to other important considerations a tactic to ‘humiliate the State’.65

B.  The Court’s Final(?) Assertion: Equal Treatment is Only for the Economically Active or Resourceful As a counterweight to the line of criticism that perceives pitfalls for national social cohesion and Member State’s own social policies, is the scholarship observing how EU free movement law, despite the noted legal impact of the status of EU citizenship, has maintained its distinct privileges for the individuals who firmly come within the scope of the economic freedoms.66 The critique here, which has intensified during the legal development of recent years, is rather that EU citizenship has not managed to achieve a shift of the economic paradigm of freedom of movement, and remains a limited status for the individual cross-border mover to rely on, compared with the economically active person.67 This assertion reflects the case law developed by the Court in the pre-Brexit era of the early and mid-2010s; notably the trilogy of Dano, Alimanovic, and García-Nieto, concerning economically inactive and second-time jobseekers’ equal treatment rights Shopping and the Frontiers of European Citizenship’ (2004) 31 Legal Issues of Economic Integration 275; and O Golynker, ‘Job Seekers’ Rights in the European Union: Challenges of Changing the Paradigm of Social Solidarity’ (2005) 30 European Law Review 111. 63 GJ Vonk and SK van Walsum, ‘Access Denied: Towards a New Approach to Social Protection for Formally Excluded Migrants’ (2013) 15 European Journal of Social Security 124, 127. 64 S Reynolds, ‘Union Citizenship: Placing Limitations on a Human-Centred Approach?’ in N Ferreira and T Kostakopoulou (eds), The Human Face of the European Union: Are EU Law and Policy Humane Enough? (Cambridge, Cambridge University Press, 2016) 178. See also Davies, ‘“Any Place I Hang My Hat?”’ (n 61). 65 Davies, ‘The Humiliation of the State as a Constitutional Tactic’ (n 60) 159 f. 66 N Nic Shuibhne, ‘The Resilience of EU Market Citizenship’ (2010) 47 Common Market Law Review 1597. E Spaventa, ‘Seeing the Wood Despite the Trees? On the Scope of Union Citizenship and its Constitutional Effects’ (2008) 45 Common Market Law Review 13. C O’Brien, ‘I Trade, Therefore I Am: Legal Personhood in the European Union’ (2013) 50 Common Market Law Review 1643. 67 See the monograph by PJ Neuvonen, Unequal Citizenship and its Limits in EU Law: We the Burden?, Modern Studies in European Law (Oxford, Hart Publishing, 2016). Everson (n 40); Wollenschläger (n 58).

18  Historical Backdrop and Debate to social assistance in a host Member State.68 Ensuing cases regarding workers’ and self-employed persons’ equal treatment rights, such as Tarola, Gusa and Dakneviciute69 have only reconfirmed the vital distinction between coming within or falling outside the economic personhoods of free movement law. In none of these cases did the status of EU citizenship figure as an independent legal basis for achieving a social safety net for the applicants, making some commentators assess that the role of EU citizenship for ever-expanding the rules of free movement law has reached its ‘end’.70 However, during this time, the status of EU citizenship has simultaneously evolved as a forceful legal concept beyond the edges of freedom of movement. In addition to the impact of EU citizenship on an individual’s possibility to assert free movement rights, or putting pressures on their local communities in the name of efficient freedom of movement, is the more macro-levelled dimension of EU citizenship as a constitutional concept of EU law. At this tier of EU citizenship, its status has been seen to assert, or even rethink, the jurisdictional scope of Union law, and the substantive meaning of EU fundamental rights protection.

V.  The Constitutional Impact of EU Citizenship A further impact of EU citizenship is seen in its influence on the material development on internal market law. EU citizenship has here been found to function as a ‘foundational’ status in the constitutional structure of Union law; the basis on which all the fundamental freedoms, whether economic or not, emanate and converge, which should fortify the fundamental freedoms as core values of the Union. This vision of EU citizenship is reflected in some of the Court’s case law, where EU citizenship has stimulated elements of convergence between the fundamental freedoms in the Court’s judgments, treating them all as fundamental rights of Union citizens.71 This has in turn led to a partial assimilation of the concepts of 68 Case C-333/13, Dano, EU:C:2014:2358; Case C-67/14, Alimanovic, EU:C:2015:597; Case C-299/14, García-Nieto and Others, EU:C:2016:114. On how the economic status of the person has overtaken the status of EU citizenship in these cases, see, among others, H Verschueren, ‘Preventing “Benefit Tourism” in the EU: A Narrow or Broad Interpretation of the Possibilities Offered by the ECJ in Dano?’ (2015) 52 Common Market Law Review 363; A Iliopoulou-Penot, ‘Deconstructing the Former Edifice of Union Citizenship? The Alimanovic Judgment’ (2016) 53 Common Market Law Review 1007; and Nic Shuibhne, ‘Limits Rising, Duties Ascending’ (n 45). 69 Case C-483/17, Tarola, EU:C:2019:309; Case C-442/16, Gusa, EU:C:2017:1004; and Case C-544/18, Dakneviciute, EU:C:2019:761. 70 For an earlier assessment of how important economic status is next to ‘mere’ EU citizenship, see S Currie, ‘Pregnancy-Related Employment Breaks, the Gender Dynamics of Free Movement Law and Curtailed Citizenship: Jessy Saint Prix’ (2016) 53 Common Market Law Review 543. See Sarmiento and Sharpston (n 47) 241. 71 For the proposal that EU citizenship is a ‘foundational’ status on which all fundamental freedoms converge, See Opinion in Case C-158/04, Alfa Vita Vassilopoulos, EU:C:2006:212, para 40. For a discussion on the ‘convergence thesis’ in EU citizenship doctrine, see F de Cecco, ‘Fundamental Freedoms, Fundamental Rights, and the Scope of Free Movement Law’ (2014) 15 German Law Journal 383, 392.

The Constitutional Impact of EU Citizenship  19 restrictions on freedom of movement so that obstacles to the exercise of any kind of freedom of movement may be treated under the non-economic free movement provision of Article 21 TFEU.72 By being treated as both a fundamental status for the individual, and a conceptually foundational status for the fundamental freedoms, EU citizenship has fortified the free movement rights of the economically active person,73 and also strengthened the position of cross-border jobseekers and students as special categories of non-economically active persons.74 However, the constitutional land-wins of EU citizenship have also had the adverse consequence of generating ever more cases of reverse discrimination, a growing problem as the classical free movement law line of demarcation – purely internal situations – has become a curtailed concept in view of the case law on EU citizenship.75

A.  EU Citizenship and Purely Internal Situations: The Issue of Reverse Discrimination An issue in the scholarly discussion is how far-reaching the jurisdictional scope of Union law may reach with EU citizenship as a vehicle.76 The classic jurisdictional test of EU free movement law, the condition of a cross-border element, has been put into question under the influence of EU citizenship, not the least by the ‘genuine enjoyment’ doctrine of Article 20 TFEU.77 The impact of that doctrine has been seen in cases concerning protection against a Union citizen’s forced departure from the Union, as well as the issue of a Member State withdrawing national citizenship, and thus EU citizenship from an individual.78 This jurisprudence, although retaining an ‘intrinsic connection’ to freedom of movement,79 takes Article 20 TFEU, and the status of EU citizenship itself, as the basis for developing a protection of Union citizens in situations where they risk being deprived of the genuine ­enjoyment of the substance of their core EU citizenship rights. 72 As in cases like Case C-182/15, Petruhhin, EU:C:2016:630; and Case C-224/02, Pusa, EU:C:2004:273. See A Tryfonidou, ‘Further Steps on the Road to Convergence Among the Market Freedoms’ (2010) 35 European Law Review 36, 37 f. Iliopoulou and Toner (n 59) 392. 73 See in general, Tryfonidou, The Impact of Union Citizenship on the EU’s Market Freedoms (n 51). 74 Golynker (n 62) 115; Wollenschläger (n 58) 13. 75 S Iglesias Sánchez, ‘Purely Internal Situations and the Limits of EU Law: A Consolidated Case Law or a Notion to Be Abandoned?’ (2018) 14 European Constitutional Law Review 7, 25–26. 76 See in general the discussions by Iglesias Sánchez. Spaventa, ‘Seeing the Wood Despite the Trees?’ (n 66); N Nic Shuibhne, ‘The Outer Limits of EU Citizenship: Displacing Economic Free Movement Rights?’ in C Barnard and O Odudu (eds), The Outer Limits of European Union Law (Oxford, Hart Publishing, 2009). 77 Opinion in Case C-212/06, Gouvernement de la Communauté française and Gouvernement wallon, EU:C:2007:398, paras 140–44. 78 Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354; Case C-221/17, Tjebbes and Others, EU:C:2019:189. 79 See analysis by S Reynolds, ‘Exploring the “Intrinsic Connection” Between Free Movement and the Genuine Enjoyment Test: Reflections on EU Citizenship After Iida’ (2013) 38 European Law Review 376.

20  Historical Backdrop and Debate Arguably, insisting on the necessity of a cross-border element for activation of Union law might be incompatible with the status of EU citizenship, as the increasingly blurry definitions of that cross-border element have resulted in different legal outcomes between Union citizens based on unclear, even arbitrary distinctions.80 This is especially felt in the area of the forceful combination of EU free movement rights, the genuine enjoyment doctrine, and protection of the fundamental right to respect for family life under Union law,81 which a Union citizen may enjoy in a cross-border context, or a context where a minor Union citizen risks being forced to leave the Union as a result of the deportation of their TCN primary carer.82 This has resulted in unequal treatment between citizens based solely on their placement in relation to an interstate border, were it not for the genuine enjoyment doctrine, which only in exceptional circumstances, may solve this. If the latter is not applicable, the phenomenon of reverse discrimination leaves Union citizens, who do not have the agency to self-realise under the fundamental freedoms, with lesser family reunification rights as governed only by domestic legal standards.83

B.  EU Citizenship and Fundamental Rights Review The issue of the legal soundness of a cross-border requirement for coupling EU citizenship with EU fundamental rights protection was extended in light of the legal entry into force of EU Charter of Fundamental Rights (the Charter).84 The argument followed that for a meaningful concept of EU citizenship, it would 80 Opinion in Case C-34/09, Ruiz Zambrano, EU:C:2010:560, paras 139–50. Iglesias Sánchez, ‘Purely Internal Situations and the Limits of EU Law’ (n 75) 13; Spaventa, ‘Seeing the Wood Despite the Trees?’ (n 66) 21; and in general, N Nic Shuibhne, ‘Free Movement of Persons and the Wholly Internal Rule: Time to Move On?’ (2002) 39 Common Market Law Review 731, 744. 81 MJ van den Brink, ‘EU Citizenship and EU Fundamental Rights: Taking EU Citizenship Rights Seriously?’ (2012) 39 Legal Issues of Economic Integration 273, 277. See also discussion by N Nic Shuibhne, ‘(Some of) the Kids Are Alright: Comment on McCarthy and Dereci’ (2012) 49 Common Market Law Review 349. 82 Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354; Case C-165/14, Rendón Marín, EU:C:2016:675. 83 H Kroeze, ‘Distinguishing Between Use and Abuse of EU Free Movement Law: Evaluating Use of the “Europe-Route” for Family Reunification to Overcome Reverse Discrimination’ (2018) 3 E ­ uropean Papers 1209. P Van Elsuwege, ‘The Phenomenon of Reverse Discrimination: An Anomaly in the ­European Constitutional Order?’ in LS Rossi and F Casolari (eds), The EU after Lisbon: Amending or Coping with the Existing Treaties? (Cham, Springer, 2014) 163. See in general, EA Christodoulidis, ‘Family Reunification: Who Pays for Love in Europe?’ in H Petersen (ed), Love and Law in Europe (Aldershot, Dartmouth, 1998); and C Dautricourt and S Thomas, ‘Reverse Discrimination and Free Movement of Persons Under Community Law: All for Ulysses, Nothing for Penelope?’ (2009) 34 European Law Review 433. 84 E Sharpston, ‘Citizenship and Fundamental Rights: Pandora’s Box or a Natural Step towards Maturity?’ in P Cardonnel, A Rosas and N Wahl (eds), Constitutionalising the EU Judicial System: Essays in Honour of Pernilla Lindh (Oxford, Hart Publishing, 2012) 267–71. A von Bogdandy et al, ‘Reverse Solange: Protecting the Essence of Fundamental Rights against EU Member States’ (2012) 49 Common Market Law Review 489. Iglesias Sánchez, ‘Fundamental Rights and Citizenship of the Union at a Crossroads’ (n 20).

The 2010s: Has EU Citizenship Reached its Limits in Free Movement Law?  21 be necessary to pair the status with some core guarantees of equality and fundamental rights.85 A counter-argument to tie fundamental rights directly to EU citizenship would be a normatively wrongful differentiation of fundamental rights protection between individuals in the EU based on whether they are Union citizens or not.86 The important question therefore, remains, whether the applicability of the Charter should depend on another material issue of Union law than the status of EU citizenship itself for its relevance,87 or whether the early citizenship vision of Advocate General Jacob’s should be realised. Famously, he purported the ideal that a European citizen, wherever in the Union the person may go, should be able to rely on some harmonised level of fundamental rights guarantees, by mere virtue of saying ‘civis europeus sum’.88 While there are tendencies in the case law to coupling the enjoyment of EU citizenship rights and, at least some, fundamental rights in cases concerning minors who are Union citizens,89 EU citizenship law has not yet developed a direct link between the status of EU citizenship and the fundamental rights recognised in the Charter.90

VI.  The 2010s: Has EU Citizenship Reached its Limits in Free Movement Law? A core argument of this book is that the developments in free movement of persons law has amounted to a two-tiered legal concept of EU citizenship in the Court’s case law. On the one hand, the Court has embarked on the construction of the genuine enjoyment doctrine in cases that it has tied directly to Article 20 TFEU.

85 See discussions by Advocate General Sharpston and Advocate General Jacobs in, respectively, Opinion in Case C-34/09, Ruiz Zambrano, EU:C:2010:560; Opinion in Case C-168/91, ­Konstantinidis v Stadt Altensteig and Landratsamt Calw, EU:C:1992:504; and Opinion in Case C-274/96, Bickel and Franz, EU:C:1998:115. See in general also arguments put forward by Spaventa, ‘Seeing the Wood Despite the Trees?’ (n 66). 86 van den Brink, ‘EU Citizenship and (Fundamental) Rights’ (n 21) 30–31. 87 See discussions by K Lenaerts and J Antonio Gutiérrez-Fons, ‘The Place of the Charter in the EU Constitutional Edifice’ in S Peers et al (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014). A Rosas, ‘When is the EU Charter of Fundamental Rights Applicable at National Level?’ (2012) 19 Jurisprudencija 1269; and Iglesias Sánchez, ‘Fundamental Rights and Citizenship of the Union at a Crossroads’ (n 20). 88 Opinion in Case C-168/91, Konstantinidis v Stadt Altensteig and Landratsamt Calw, EU:C:1992:504, para 46. 89 Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354; Case C-82/16, KA and Others, EU:C:2018:308. 90 See in general discussions by N Nic Shuibhne, ‘Integrating Union Citizenship and the Charter of Fundamental Rights’ in D Thym (ed), Questioning EU Citizenship: Judges and the Limits of Free Movement and Solidarity in the EU, Modern Studies in European Law (Oxford, Hart Publishing, 2017). Iglesias Sánchez, ‘Fundamental Rights and Citizenship of the Union at a Crossroads’ (n 20); and van den Brink, ‘EU Citizenship and EU Fundamental Rights: Taking EU Citizenship Rights Seriously?’ (n 81).

22  Historical Backdrop and Debate On the other hand, the Court has shifted its stance regarding the relationship between EU citizenship and the right to equal treatment by a­pplying an ever stricter reading of the limits and conditions to Union citizens’ equal treatment and residence rights in Directive 2004/38. The ensuing legal debate centres on the uncertainty this has created as to the status of EU citizenship’s legal standing.91 Some find that the limits and conditions of the free movement rights are now treated by the Court as ‘implied duties’ to be fulfilled by the individual Union citizen for effectively enjoying free movement rights.92 Others argue that the Court’s reading of the limits and conditions on Union citizens’ free movement rights as given in secondary legislation are appropriate in light of the wording of Article 21(1) TFEU, as that provision provides the basis for the Union legislator to adopt measures that condition the exercise of the EU citizenship right to personal freedom of movement.93 The Court is then right to respect the limiting legislative framework adopted by the Member States as legislators. Against this, it has been said that the constitutional hierarchy between primary law and secondary law should be better respected, so that provisions of secondary law do not have the effect of negating rights given in the Treaties,94 or even deconstructing the legal ‘edifice’ of EU citizenship once created in the case law.95 An increasing level of Member State discretion in the area of personal freedom of movement, and the legal uncertainties concerning the substantive content of free movement rights are likely to be exploited by the Member States to the disadvantage of Union citizens, particularly for those who are made vulnerable at the outer limits of these rights.96 Freedom of movement is then reserved for those Union 91 See in general, M Dougan, ‘The Bubble That Burst: Exploring the Legitimacy of the Case Law on the Free Movement of Union Citizens’ in M Adams et al (eds), Judging Europe’s Judges: The Legitimacy of the Case Law of the European Court of Justice (Oxford, Hart Publishing, 2013). C O’Brien, ‘The ECJ Sacrifices EU Citizenship in Vain: Commission v United Kingdom’ (2017) 54 Common Market Law Review 209. Nic Shuibhne, ‘Limits Rising, Duties Ascending’ (n 45). Iliopoulou-Penot (n 68). 92 Nic Shuibhne, ‘Limits Rising, Duties Ascending (n 45) 900–01. Iliopoulou-Penot (n 68) 1033. L Azoulai, ‘Transfiguring European Citizenship: From Member State to Union Territory’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017). O’Brien, ‘The ECJ Sacrifices EU Citizenship in Vain’ (n 91). 93 P Syrpis, ‘The Relationship Between Primary and Secondary Law in the EU’ (2015) 52 Common Market Law Review 461, 483 f. Spaventa, ‘Earned Citizenship’ (n 40) 222; Hailbronner (n 62) 1251. 94 As the Court itself reasoned in Case C-507/12, Saint Prix, EU:C:2014:2007 regarding the relationship between Directive 2004/38, and the primary law concept of worker in Article 45 TFEU; see judgment paras 31–38. See also N Nic Shuibhne, ‘The Developing Legal Dimensions of Union Citizenship’ in A Arnull and D Chalmers (eds), The Oxford Handbook of European Union Law (Oxford, Oxford University Press, 2015) 481; and J Shaw, ‘A View of the Citizenship Classics: Martínez Sala and Subsequent Cases on Citizenship of the Union’ in M Poaires Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Oxford, Hart Publishing, 2010) 361. 95 Iliopoulou-Penot (n 68). 96 See in general, J Shaw, ‘Between Law and Political Truth? Member State Preferences, EU Free Movement Rules and National Immigration Law’ (2015) 17 Cambridge Yearbook of European Legal Studies 247. D Kostakopoulou, ‘When EU Citizens Become Foreigners’ (2014) 20 European Law Journal 447.

The 2010s: Has EU Citizenship Reached its Limits in Free Movement Law?  23 citizens, who do not actually need to rely on the status of EU citizenship, to exercise it, as they are firmly within the personal scope of the economic freedoms.97 By contrast, those Union citizens who would really benefit from relocating within the Union to better their situations, are not enabled to use it.98 At this tier of EU citizenship, an individual Union citizen’s factual cross-border movement and factual residence in a host Member State appears to have little to offer the individual in terms of rights and protection under Union law, unless they can prove that they are making genuine use of freedom of movement, and integrating according to the norms of Directive 2004/38 in the host Member State.99 Contrasting this assessment, are the string of cases under the genuine enjoyment doctrine, that have established the protection of minor Union citizens to stay within the Union’s territory, together with their primary carers; thereby upholding an existential legal content to the status of EU citizenship.100 At the same tier of the genuine enjoyment cases, we also find the extradition cases, starting with the 2016 judgment in Petruhhin.101 These cases engage the issue of Member States’ restrictions to Article 21(1) TFEU, without involving an assessment of the individual under the conditions for residence and equal treatment in Directive 2004/38, to directly trigger the Charter’s fundamental rights standards. The jurisprudence of basing the applicability of EU citizenship on Article 21(1) TFEU, without reviewing the case under secondary law limits has been consolidated in cases following Petruhhin, such as Pisciotti, and Raugevicius.102 Both these tendencies – one of dissolving a direct link between a right to equal treatment and the status of EU citizenship, and the other one, establishing new areas of jurisdiction for EU fundamental rights review – may seem like ‘new’ phenomenon in the case law. However, their apparent striving in opposite directions, reflect a tension that has been present since the original framework for free movement of persons in Europe was laid in place. The fear of economic pressures on host Member States, motivating a call for limits to non-economically motivated freedom of movement runs alongside the legal development of an ever more efficient

97 H Verschueren, ‘Free Movement of EU Citizens: Including for the Poor?’ (2015) 22 Maastricht Journal of European and Comparative Law 10, 29–32. 98 See in general, Neuvonen (n 67). F Strumia, ‘Remedying the Inequalities of Economic Citizenship in Europe: Cohesion Policy and the Negative Right to Move’ (2011) 17 European Law Journal 725. 99 D Thym, ‘The Elusive Limits of Solidarity: Residence Rights of and Social Benefits for Economically Inactive Union Citizens’ (2015) 52 Common Market Law Review 17, 36 f. Verschueren, ‘Preventing “Benefit Tourism” in the EU’ (n 68) 385. On the irrelevance of a Union citizen’s mere ‘hereness’ in recent case law developments, see Azoulai (n 92) 190. 100 Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354; Case C-82/16, KA and Others, EU:C:2018:308. See comment by H van Eijken and P Phoa, ‘The Scope of Article 20 TFEU Clarified in Chavez-Vilchez: Are the Fundamental Rights of Minor EU Citizens Coming of Age?’ (2018) 43 European Law Review 949. 101 Case C-182/15, Petruhhin, EU:C:2016:630. Referred to as forming part of a ‘protective narrative’ of EU citizenship, by N Nic Shuibhne, ‘The “Territory of the Union” in EU Citizenship Law: Charting a Route from Parallel to Integrated Narratives’ (2019) Yearbook of European Law 1, 25 f. 102 Case C-191/16, Pisciotti, EU:C:2018:222; and Case C-247/17, Raugevicius, EU:C:2018:898.

24  Historical Backdrop and Debate free movement of workers regime, and the enhancements of internal market law more generally. Co-existing, and continuously evolving in EU law has also been a vision of a status of European citizenship, for creating further political unity as well as serving as a basis for the Union’s fundamental rights guarantees to the individual.

VII.  Where to Go from Here? There is uncertainty as to the exact legal ‘content’ and jurisdictional ‘reach’ of EU citizenship, but so much is clear to say that to lose EU citizenship, is to lose something significant.103 So significant in fact, that it motivates the Court to assert that a Member State which has notified the European Council of its intention to withdraw from the European Union, must be free to unilaterally revoke that notification, and to remain a Member of the European Union, enabling its nationals to remain Union citizens.104 The legal importance of EU citizenship has also been seen in the discussions on whether a reconceptualised EU citizenship status should be retained by British nationals, who lose the status as a result of the UK’s departure from the EU.105 In the wake of that departure, and its existential blow to the EU, it is possible that EU citizenship now has to be rethought. The limits to its impact in free movement of persons law may well have been reached, but its other potentials may now be extrapolated.106 For example, outside the Union, EU citizenship may be activated by the right to seek consular protection in any Member State embassy; a right that has recently been fleshed out in the Consular Protection Directive, and which holds the potential to have enormous ramifications for the individual, but which for now has not generated any case law at the Court.107 Regardless of how one values the current legal development phase of EU citizenship, it has become increasingly unclear which rights and legal outcomes that with certainty may be claimed directly under its status. This uncertainty adversely affects individuals who are at the edges of Directive 2004/38’s limits and conditions to their free movement rights, but cannot bring their legal claim within 103 Case C-135/08, Rottmann, EU:C:2010:104, paras 42–46; Case C-221/17, Tjebbes and Others, EU:C:2019:189, paras 30–32. 104 Case C-627/18, Wightman and Others, EU:C:2018:999, paras 64–65. 105 See discussions by D Kostakopoulou, ‘Scala Civium: Citizenship Templates Post-Brexit and the European Union’s Duty to Protect EU Citizens’ (2018) 56 Journal of Common Market Studies 854 and O Garner, ‘The Existential Crisis of Citizenship of the European Union: The Argument for an Autonomous Status’ (2018) 20 Cambridge Yearbook of European Legal Studies 116; and for opposing arguments, see M van den Brink and D Kochenov, ‘Against Associate EU Citizenship’ (2019) 57 Journal of Common Market Studies 1. 106 Sarmiento and Sharpston (n 47) 230. See in general, S Seubert, ‘EU Citizenship and Prospects for Cosmopolitanism’ in S Seubert, O Eberl and F van Waarden, Reconsidering EU Citizenship: Contradictions and Constraints, Interdisciplinary Perspectives on EU Citizenship (Cheltenham, Edward Elgar Publishing, 2018). 107 Moraru (n 19) 458.

Where to Go from Here?  25 the scope of Article 21(1) TFEU (restrictions) or Article 20 TFEU (deprivation) either.108 Between these two tiers of EU citizenship, a legal space has opened up, in which the status of EU citizenship may cease to be capable of producing tangible legal effects for the individual in a cross-border situation.109 Conversely, in this legal space of uncertainty, a reinvented, substantive core of EU citizenship has the potential to really emerge, showing its legal forcefulness regardless of the person’s standing under the Directive.110 The conceptual struggle of how to reconcile the primary law concepts of EU citizenship’s free movement rights, their link to the Charter, and the secondary law limits and conditions for the exercise of those rights has been ongoing, in the jurisprudence as well as in the legal debate, throughout the entire existence of EU citizenship. The ensuing development of a contrasting and two-tiered concept of EU citizenship, revealing an expanding legal space of uncertainty, make up the issues that will be analysed more closely in the following chapters.111

108 Regarding the inapplicability of the Charter under the status of EU citizenship, see Case C-333/13, Dano, EU:C:2014:2358, paras 85–92; and Case C-40/11, Iida, EU:C:2012:691, paras 78–82. 109 The status of EU citizenship has had such distinct legal effects, see N Nic Shuibhne, ‘EU Citizenship after Lisbon’ in D Ashiagbor, N Countouris and I Lianos (eds), The European Union after the Treaty of Lisbon (Cambridge, Cambridge University Press, 2012) 145. 110 On the evolvement of EU citizenship outside the free movement context see in general, F Strumia, ‘Looking for Substance at the Boundaries: European Citizenship and Mutual Recognition of Belonging’ (2013) 32 Yearbook of European Law 432. 111 For different conceptualisations of this process see in general, Kostakopoulou, ‘Ideas, Norms and European Citizenship’ (n 49); Nic Shuibhne, ‘The Developing Legal Dimensions of Union Citizenship’ (n 94); and Tryfonidou, The Impact of Union Citizenship on the EU’s Market Freedoms (n 51) ch 2.

3 The Right to Move and Reside Freely: Article 21(1) TFEU and Directive 2004/38 Free movement of persons law has, since its very beginning, been anchored in Treaty-sourced rights for natural persons to move and reside across Member State borders.1 But only through the introduction of EU citizenship through the Treaty of Maastricht in 1993, did free movement rights formally, at the primary law level, become detached from the condition of pursuing cross-border economic activity. The status of EU citizenship allowed the right to move and reside freely to the Member State of choice to develop into a ‘fundamental and personal’ right of Union citizens.2 While the Court of Justice of the European Union (the Court) in its case law has confirmed personal free movement rights as fundamental to EU citizenship, it has all the while acknowledged that there are legitimate limits and conditions to the exercise of those rights.3 The conceptual struggle, spanning between the two tiers of EU citizenship, is whether to emphasis the status of EU citizenship and its free movement rights at the primary law level, or to emphasis the limits and conditions to their enjoyment at the secondary law level.

1 Case C-48/75, Royer, EU:C:1976:57, para 31; Case C-363/89, Roux v Belgian State, EU:C:1991:41, para 9; Case C-413/99, Baumbast and R, EU:C:2002:493, paras 80–85. 2 Recital 11 of the Preamble to Council Directive 2004/38/EC of the European Parliament and of the Council 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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/ EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (2004). See, eg, Case C-673/16, Coman and Others, EU:C:2018:385, para 18, and cases there referred. For an analysis of this process see in general, F Wollenschläger, ‘A New Fundamental Freedom beyond Market Integration: Union Citizenship and its Dynamics for Shifting the Economic Paradigm of European Integration’ (2011) 17 European Law Journal 1. 3 Case C-413/99, Baumbast and R, EU:C:2002:493, paras 84–94. N Nic Shuibhne, ‘The Outer Limits of EU Citizenship: Displacing Economic Free Movement Rights?’ in C Barnard and O Odudu (eds), The Outer Limits of European Union Law (Oxford, Hart Publishing, 2009) 175. J Shaw, ‘A View of the Citizenship Classics: Martínez Sala and Subsequent Cases on Citizenship of the Union’ in M Poaires Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Oxford, Hart Publishing, 2010) 359.

Directive 2004/38: The Right to Integrate as a Union Citizen  27 Currently, it is Directive 2004/38 that lays down the legislated conditions for an individual Union citizen to establish and retain a right to reside in a host Member State, strengthening the person’s residence security in gradual, temporal stages, and without prejudice to the derogation grounds that a host Member State may rely on for expulsion of a Union citizen and family members.4 This chapter discerns the legal edges of the right to move and reside freely in a host Member State of choice under Article 21(1) of the Treaty on the Functioning of the European Union (TFEU), as conditioned in Directive 2004/38. By firstly establishing the purpose of the Directive (section I), to then elaborating on the interplay between primary law and Directive 2004/38 in developing the right to exit and movement (section II), and how the Directive’s conditions to reside in a host Member State for a period longer than three months and obtaining permanent residence status have largely overtaken the legal definitions of lawful residence under Article 21(1) TFEU (sections III and IV), to finally analysing the legal effects of having permanent residence status based on the Directive, notably whether that status truly generates an added protection against expulsion measures (sections V and VI). In this chapter and the following chapter four, which concerns the right to reside together with third-country national (TCN) family members, it will be demonstrated that there is a legal space between the edges of residence rights based on the Directive, and residence based directly on the status of EU citizenship in Article 20 TFEU, leaving uncertainty as to how the individual may move a legal claim from outside, to within the scope of application of EU fundamental rights protection.

I.  Directive 2004/38: The Right to Integrate as a Union Citizen The Free Movement Directive 2004/38 came into force on 30 April 2004, the evening before the formal achievement of the enlargement of the European Union of 10 new Member States on 1 May 2004. Its expiry date for implementation was set to two years later. Separately, the then 15 Member States were permitted to maintain transitional provisions to limit the movement of workers from the new Member States. As put forward by Dougan, three main reasons compelled the old Member States to maintain limits to the free movement of workers from the new Member States for as much as five to seven years after the enlargement.5

4 That residence security based on Directive 2004/38 is achieved in gradual stages, was affirmed by the Court in Joined Cases C-316/16 and C-424/16, B and Vomero, EU:C:2018:256, paras 48–55. 5 See analysis by M Dougan, ‘A Spectre is Haunting Europe … Free Movement of Persons and the Eastern Enlargement’ in C Hillion (ed), EU Enlargement: A Legal Approach (Oxford, Hart Publishing, 2004) 112 and analysis in general.

28  The Right to Move and Reside Freely First, there was a fear of large-scale social tourism migration from the East to the West. Second, there was a fear that a large immigration of new workers would cause serious disruptions to the existing Member States’ labour markets. Finally, that a large influx of new workers from the eastern Member States would lead to social dumping. These transitional restrictions were only available to restrict movement of workers, under what is now Article 45 TFEU. The freedom of establishment and free movement of services, under what is now Articles 49 and 56 TFEU, which also give the right to movement of natural persons, were not restricted this way. In addition, there was no transitional restriction to hinder the new Union citizens from the acceding Member States to rely on Article 21(1) TFEU – the provision for non-economical exercise of freedom of movement. Instead, the Member States had at their disposal the limits and conditions for Union citizens’ enjoyment of free movement rights, as laid down in Directive 2004/38, and adopted at the dawn of the eastern enlargement. The Directive reflected the Member States’ wish to protect their public finances from potential overburdening due to large-scale immigration based on non-economic movement.6 From the very beginning, the Directive was thereby not only a legal instrument for facilitating and strengthening the personal right to freedom of movement, but also for setting the limits to personal freedom of movement based on the mere status of EU citizenship.7

A.  The Purpose of Directive 2004/38 The Preamble to Directive 2004/38 provides a two-fold purpose of its provisions. First, to codify the developments to date in Union law on free movement of persons. Second, to repeal and replace the scattered body of secondary legislation and replace it with one legal instrument capturing the conditions for any exercise of the personal EU citizenship right to freedom of movement, whether economically motivated or not.8 Some special free movement rights for workers and their family members are, however, still to be found in the Workers Regulation 492/2011, replacing the old Regulation 1612/68. A novelty in Directive 2004/38 compared with the three Residence Directives of the 1990s is the possibility, after five years of residence in accordance with the Directive, to acquire permanent residence status.9 This provision, ensuring

6 See Recital 10 of the Preamble to Directive 2004/38. 7 See Recitals 3 and 4 of the Preamble to Directive 2004/38. 8 See Recitals 3 and 4 of the Preamble to Directive 2004/38. Note, however, Regulation 496/2011, which continues to contain special free movement rights of residence and equal treatment applicable to workers and their family members. 9 Residence based on a non-EU legal basis will not amount to permanent residence status, see Case C-424/10, Ziolkowski and Szeja, EU:C:2011:866.

Directive 2004/38: The Right to Integrate as a Union Citizen  29 residence security of the mobile person in a host Member State where an integrational bond has been forged, is similar to the right to remain of workers and their family members of the older Regulation 1251/70.10 The aim of establishing a right to permanent residence in Directive 2004/38 is expressed in its Preamble: to ‘strengthen the feeling of Union citizenship’ and promote ‘social cohesion’.11 EU citizenship is then perceived as a status, based on which a Member State national may integrate as an equal residential member of a host Member State.12 A Union citizen who manages to integrate in accordance with the norms that will grant him permanent residence status will have fulfilled the Directive’s aim of personal self-realisation as a Union citizen in a host Member State. To integrate in accordance with the norms of the Directive is to resonate with its ‘feeling’ of Union citizenship.

B.  The Directive’s Personal Scope: The Family Members of a Union Citizen The personal scope of the family members of a Union citizen, who may, irrespective of their own nationality,13 benefit from the rights of Directive 2004/38, are listed in its Article 2(2). Accordingly, the Union citizen’s spouse or registered partner may install themselves in the host Member State. Direct descendants under 21 years of age, or other dependants of either the Union citizen, or the spouse or partner, are also included in this family picture.14 As are direct relatives in the ascending line to the citizen, spouse or partner.15 In addition, the host Member State should facilitate entry and residence of other family members, and a partner with whom the Union citizen has a durable relationship, duly attested.16 At a first reading, the provision’s defined personal scope seemingly follows the same normative view of the family in free movement law as did the old secondary law instruments regarding cross-border workers’ families.17 But a judgment like

10 Regulation (EEC) No 1251/70 of the Commission of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State. 11 Recital 17 of the Preamble to Directive 2004/38. 12 S Barbou des Places, ‘The Integrated Person in EU Law’ in L Azoulai, S Barbou des Places and E Pataut (eds), Constructing the Person in EU Law (Oxford, Hart Publishing, 2016) 181, 186 f. 13 TCN family members of Member State nationals have been protected in free movement law since the 1960s. See, eg, Council Directive 64/220/EEC of 25 February 1964 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services. 14 Article 2(c) of Directive 2004/38. 15 Article 2(d) of Directive 2004/38. 16 Article 3(2) of Directive 2004/38. 17 On the European norm of the family structure and the family’s instrumental role in facilitating freedom of movement, see G Davies, ‘The Right to Stay at Home: A Basis for Expanding European Family Rights’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017) 469–74.

30  The Right to Move and Reside Freely Coman, establishing that same-sex spouses may well come within the Directive’s concept of ‘spouse’, and must be recognised as such also in Member States which do not allow for same-sex marriages in their national legal tradition, showed the progressive dynamic that Directive 2004/38 may induce.18 Similarly, the cases, SM, and Banger, both concerning the substantive meaning of a host Member State’s obligation to facilitate the entry and residence for, respectively, other family members, and unmarried partners under the Directive’s Article 3(2)(a) and (b), gave considerable procedural rights and recognised the fundamental rights’ safeguards that must apply when Member States exercise their discretion in that regard.19 Such procedural safeguards were also manifested in Diallo, regarding the host Member State’s obligation to issue residence cards for accompanying TCN family members of a Union citizen under Article 10(1) of the Directive.20 The relationship of dependency that has to prevail for a dependent person in the ascending line to a Union citizen to benefit from these provisions must be one of factual dependence, in the shape of that the Union citizen or spouse provides material support to the relative in his State of origin.21 Furthermore, the situation of dependence must exist in the State from which the family member concerned comes, at the time when the family member applies to join the Union citizen on whom the person is dependent.22

C.  Limiting Residence Rights on Economic Grounds As a heritage from the three Residence Directives, Directive 2004/38 recognises the interest in protecting the host Member State’s finances from pressures of migration in its Preamble.23 Its Article 7(1) maintains the requirements of economic self-sufficiency and comprehensive sickness insurance for those who are not within the personal scope of the economic freedoms, so as to not become a financial burden on the host society. This recognition of possible strains put on national budgets as a result of the personal exercise of freedom of movement, is in stark contrast to the rationale that has prevailed regarding the economic freedoms. Here, national protectionism is normally not accepted as a ground to restrict the 18 Article 2 (2)(a) and (b) of Directive 2004/38; see Case C-673/16, Coman and Others, EU:C:2018:385. For a critique that Directive 2004/38 does not expressly define ‘spouse’ to include same-sex spouses, see C Bell and N Bačić Selanec, ‘Who is a “Spouse” Under the Citizens’ Rights Directive? The Prospect of Mutual Recognition of Same-Sex Marriages in the EU’ (2016) 41 European Law Review 655. 19 Case C-129/18, SM (Enfant placé sous kafala algérienne), EU:C:2019:248, paras 61–70; and Case C-89/17, Banger, EU:C:2018:570, paras 37–40, and paras 48–52. 20 Case C-246/17, Diallo, EU:C:2018:499, paras 60–70. 21 Case C-423/12, Reyes, EU:C:2014:16, paras 20–21. 22 ibid, paras 22 and 30. See also Case C-1/05, Jia, EU:C:2007:1. 23 Recital 10 of the Preamble and Article 7(1)(b) of Directive 2004/38. See also the Preambles to the Residence Directives. This was also a noted concern in the 1985 Report from the European Council by the ad hoc committee ‘On a People’s Europe’, A 10.04 COM 85, SN/2536/3/85 Bulletin of the European Communities Supplement 3/1985 (Adonnino Report).

Directive 2004/38: The Right to Integrate as a Union Citizen  31 market freedoms.24 The Court has traditionally not recognised Member States’ economic reasons for restricting freedom of movement, motivated by the ­interest of doing away with national protectionism for the smooth functioning of the internal market.25 By contrast, the protectionist argument carries more respect for non-economic free movement rights where the protection of national finances is perceived as a legitimate ground for restricting rights.26 Moving Union citizens, relying solely on the status of EU citizenship for claiming residence and equal treatment rights in host Member States, are therefore subjected to a different rationale of constraints to their residence and equal treatment rights than Union citizens, who can rely on having an economic personal status under the market freedoms.27 The non-economically active Union citizens must prove their progressive integration by continuously being a ‘non-burden’ in the host Member State to ensure their residence and equal treatment rights. By contrast, the economically active Union citizens, even if they are not making an income exceeding the national subsistence minimum, are perceived as immediately integrated by virtue of their economic status, and should be ensured residence security and equal treatment rights based directly on that status, without further preconditions.28 The Court acknowledged this important difference between economic and non-economic freedom of movement in its judgment in Brey: ‘the right of residence for citizens of the Union can be subordinated to the legitimate interests of the Member States – in the present case, the protection of their public finances’.29 The Member States may therefore restrict free movement rights under Article 21 TFEU and justify discrimination under Article 18 TFEU, based on the interest to protect its public finances.30 This is an important derogation from the right to personal free movement rights, which, as will be demonstrated in chapter five, primarily has repercussions for the citizenship right to claim equal treatment as a residential member of the host society. 24 J Snell, ‘Economic Justifications and the Role of the State’ in P Koutrakos, N Nic Shuibhne and P Syrpis (eds), Exceptions from EU Free Movement Law: Derogation, Justification and Proportionality, Modern Studies in European Law (Oxford, Hart Publishing, 2016) 13–15. 25 Such economic free movement cases include Case C-442/02, CaixaBank France, EU:C:2004:586; Case C-113/80, Commission v Ireland, EU:C:1981:139; and Case C-249/81, Commission v Ireland, EU:C:1982:402. 26 Case C-140/12, Brey, EU:C:2013:565, para 55; Case C-308/14, Commission v United Kingdom, EU:C:2016:436, para 80. 27 The most striking examples of this are cases Case C-140/12, Brey, EU:C:2013:565; Case C-333/13, Dano, EU:C:2014:2358; and Case C-67/14, Alimanovic, EU:C:2015:597, when compared with cases like Case C-507/12, Saint Prix, EU:C:2014:2007; Case C-442/16, Gusa, EU:C:2017:1004; and Case C-483/17, Tarola, EU:C:2019:309. 28 Case C-66/85, Lawrie-Blum v Land Baden-Württemberg, EU:C:1986:284; Case C-53/81, Levin v Staatssecretaris van Justitie, EU:C:1982:105. D Thym, ‘The Elusive Limits of Solidarity: Residence Rights of and Social Benefits for Economically inactive Union Citizens’ (2015) 52 Common Market Law Review 17, 46. 29 Case C-140/12, Brey, EU:C:2013:565, para 55. 30 ibid, para 55; Case C-308/14, Commission v United Kingdom, EU:C:2016:436, para 80. G Davies, ‘Migrant Union Citizens and Social Assistance: Trying to Be Reasonable About Self-Sufficiency’ (2016) College of Europe Research Paper in Law 1, 3–4.

32  The Right to Move and Reside Freely

II.  Exit from a Home Member State and Entry into a Host Member State A.  The Right to Exit: Removing Restrictions on the Freedom to Move Under Article 21(1) TFEU Article 3 of Directive 2004/38 limits the Directive’s personal and material applicability to the situation of Union citizens and their family members when they are making use of freedom of movement to take up residence in a host Member State. Without coming within the Directive’s personal scope, and without an exercise of cross-border movement, the Directive will not apply to the person’s situation. Generally, Directive 2004/38 will therefore not apply to the citizen’s legal relationships with the courts and public authorities of the citizen’s home Member State. In this regard the right to exit stands out as it concerns the Union citizen’s ­possibility to rely on the Directive in order to leave the home Member State. Article 4 lays down the right to exit for Union citizens and their non-national family members, subject to them having a valid identity document. This condition indicates that Union citizens, who leave their Member State of nationality without first having obtained such a travel document, would not be protected under EU free movement law. To facilitate exit, Article 4(3) of the Directive obligates a home Member State to issue the appropriate travel documents to its own nationals. Reasons of public interest, although not financial ones, may be invoked by the home Member State to restrict the Union citizen’s right to exit to pursue freedom of movement in the Union. The basis for the home Member State’s lawful derogation from the right to exit is the same as the host Member State’s basis for limiting the right to enter: the grounds of public policy, public security, or public health.31 The Court’s few judgments on this matter have concerned persons whose movement was to be restricted by the home Member State because of having had a history of ‘illegal residence’ in other Member States, or because of the risk of possible evasion from private debt, or tax liabilities.32 In all these references for preliminary rulings, the Court found it unlikely that such reasons could, in a proportionate way, justify restricting the individual’s right to exit on any of the three public interest grounds. A justified and proportionate restriction on personal freedom of movement would require that the individual’s personal conduct constitutes a genuine, present and sufficiently serious threat to one of the fundamental interests of society. General, preventive measures may therefore not be the basis for restricting Union citizens’ right to exit. In addition, the right to exit holds an important protection in the Court’s interpretations of the primary law right to free movement in Article 21(1) TFEU. 31 Article 27 of Directive 2004/38. 32 Case C-430/10, Gaydarov, EU:C:2011:749; Case C-249/11, Byankov, EU:C:2012:608; Case C-434/10, Aladzhov, EU:C:2011:750.

Exit from a Home Member State and Entry into a Host Member State  33 A Member State’s measure that amounts to an obstacle to their own nationals’ exit may, without reference to Directive 2004/38, directly under Article 21(1) TFEU be challenged for its restrictive effect on the individual’s enjoyment of the freedom to move. A home Member State’s restriction on the use of any of the personal fundamental freedoms may therefore be scrutinised under primary law, even if it falls outside the scope of Directive 2004/38.33 The approach of removing restrictions on movement, whether discriminatory or not, has found its way into the EU citizenship right to freedom of movement from the case law on the economic freedoms. EU citizenship and Article 21(1) TFEU have thereby stimulated a conceptual assimilation of the rationale of all the fundamental freedoms, by functioning as the foundational status of the Member State national, based on which the person may pursue any and all the freedoms.34 Under this rationale, a home Member State measure that disadvantages or somehow makes the exercise of movement from the home Member State less attractive, can be challenged as a restriction on the personal right of freedom of movement. It is the threat that a Member State would hinder or make it more difficult for a Union citizen to self-realise under any of the fundamental freedoms – the threat to the effet utile of the status of EU citizenship and its right of personal freedom of movement in Article 21(1) TFEU – that is to be alleviated. As will be discussed further below in chapter four, the effectiveness argument also motivates that Article 20 TFEU has gained self-standing importance in relation to such home Member State measures that risk depriving the Union citizen of the future possibility of self-realisation through the genuine enjoyment of the substance of rights conferred by the status of EU citizenship.35 Furthermore, the Court’s reliance on the general provision for freedom of movement of Article 21(1) TFEU to remove restrictions on a Union citizen’s exit, highlights how it is not for the home Member State to, on economic grounds, restrict Union citizens’ possibility to try to better their situation by the use of free movement law. The home Member State has no reason to assess whether a person is likely to be able to enter the job market of a host Member State, or otherwise be capable of making genuine use of freedom of movement in accordance with Directive 2004/38. This way, the right to freedom of movement is condensed into being, essentially, a right to exit, to move and to relocate freely, regardless of which fundamental freedom the individual Union citizen has the view to pursue. The right to reside freely on the other hand, can be condensed to, in essence, a right to integrate in a host Member State, and is driven not so much by the intention of removing obstacles to movement, as by demanding proven efforts of integration of 33 Examples include cases like Case C-224/02, Pusa, EU:C:2004:273; Case C-192/05, Tas-Hagen and Tas, EU:C:2006:676; and Case C-679/16, A (Aide pour une personne handicapée), EU:C:2018:601. 34 Note the development of defining an equalised protection of the rights of workers under Article 45 TFEU and self-employed persons under Article 49 TFEU; Case C-363/89, Roux v Belgian State, EU:C:1991:41; Case C-337/97, Meeusen, EU:C:1999:284; Case C-442/16, Gusa, EU:C:2017:1004; Case C-544/18, Dakneviciute, EU:C:2019:761. 35 Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354, paras 61–63, and cases there cited.

34  The Right to Move and Reside Freely the individual. As has been manifested in the case law, this integration is achieved by the person’s alignment with the norms of Directive 2004/38.

B.  Entry and Initial Three-Month Stay in a Host Member State: Directive 2004/38 Union citizens may enter with their family members to reside for as long as three months in the territory of the Member State of choice without having to fulfil any formal demands from national authorities except from holding a valid identity document.36 During this time, the Union citizen is, by mere virtue of the status of EU citizenship, exercising the right to reside in accordance with Article 6 of Directive 2004/38. This provision also has the effect of further enabling a Union citizen to rely on being a tourist: a cross-border service recipient, under the free movement of services of Article 56 TFEU.37 The host Member State may check the identity documents of the person, but has an obligation of mutual recognition of the validity of the nationality status issued by another Member State.38 Throughout this initial period, a host Member State holds no discretion to restrict the Union citizen’s residence or presence on its territory unless it invokes one of the public interest grounds of Article 27 of the Directive, as reason to deny entry and stay of an individual.39 The proof of a valid identity document is, as such, sufficient to show that the Union citizen is lawfully exercising his right under the Directive’s Article 6.40 During this transitional period of entry, and initial residence, the right to freedom of movement is manifested in its most liberal way, for both the individual and the Member State. The freedom from conditions and formalities during these three months equates to a freedom from the demand of economic activity or integration. This is perhaps the most important benefit of the ‘pure’ status of EU citizenship in the Directive. It expresses both freedom from interference from the 36 Articles 5–6 of Directive 2004/38. See Case C-215/03, Oulane, EU:C:2005:95. 37 Consider the pre-Directive 2004/38 judgment, Case C-215/03, Oulane, EU:C:2005:95, regarding residence based on the tourist status of Article 56 TFEU and then as regulated in Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services. 38 The Member States are obligated to recognise the nationality issued by another Member State and thereby accept and treat nationals of another Member State as coming within the personal scope of EU citizenship, see Case C-369/90, Micheletti and Others v Delegación del Gobierno en Cantabria, EU:C:1992:295; and Case C-192/99, Kaur, EU:C:2001:106. On this point, see C Costello, ‘Citizenship of the Union: Above Abuse?’ in R de la Feria and S Vogenauer, Prohibition of Abuse of Law: A New General Principle of EU Law?, Studies of the Oxford Institute of European and Comparative Law (London, Bloomsbury Publishing, 2011) 334 f. 39 Case C-41/74, Van Duyn v Home Office, EU:C:1974:133, paras 6 and 13 regarding the then in force Directive 64/221/EEC of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health. 40 Compare with the pre-Directive 2004/38 Case C-215/03, Oulane, EU:C:2005:95, para 24.

A Right to Reside Beyond Three Months in a Host Member State  35 State while imposing limited positive obligations on the same. In this time period, as an expression of the reciprocity of the relationship between the Union citizen and the host Member State, the Union citizen’s freedom from imposed conditions by the authorities is mirrored by the non-obligation of the host Member State to provide any social assistance to the Union citizen.41 This was confirmed by the Court in the García-Nieto case, where it found that there is no obligation under free movement law to grant social assistance to a Union citizen, whose residence is based on Article 6 of Directive 2004/38.42 As will be discussed in chapter five, this raises the question of what sort of cash or in-kind transfers in the host Member State may be defined as ‘social assistance’ within the meaning of the Directive.43

III.  A Right to Reside Beyond Three Months in a Host Member State In the temporal space between completion of the initial three months of residence, and the acquisition of permanent residence status, which requires at least five years of continuous residence in accordance with Directive 2004/38, the conditions for sustaining a protected right to reside under EU free movement law are enumerated in Article 7(1) of the Directive. Depending on whether the Union citizen may rely on the economic personal statuses of the market freedoms or the non-economic status of EU citizenship, the right to reside will be based on a different rationale. Article 7(1) stipulates that all Union citizens shall have the right of residence on the territory of another Member State beyond the initial three months, if they: (a) are workers or self-employed persons in the host Member State; or (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or (c) are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and – have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by

41 Case C-299/14, García-Nieto and Others, EU:C:2016:114, para 45. On reciprocity as an ideal for the relationship between the Union citizen and the host Member State, see in general, P Eleftheriadis, ‘The Content of European Citizenship’ (2014) 15 German Law Journal, Special Issue: EU Citizenship Twenty Years On 776, 787 f. 42 Case C-299/14, García-Nieto and Others, EU:C:2016:114, para 52. 43 This has been discussed by Davies, ‘Migrant Union Citizens and Social Assistance’ (n 30) 17–19; and H Verschueren, ‘Free Movement or Benefit Tourism: The Unreasonable Burden of Brey’ (2014) 16 European Journal of Migration and Law 147, 165 f.

36  The Right to Move and Reside Freely such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence. As seen in Article 7(1)(b) and (c), the Directive differentiates between the requirements for the non-economically active Union citizen and the Union citizen with student status. Students come under the same requirements of self-sufficiency and comprehensive sickness insurance cover, but they do not have the same burden of proof regarding their economic resources. Cross-border students need only declare that they will be able to economically provide for themselves without becoming a burden. In that regard, to prove that they come within the personal scope of the student status seems to be of primary importance, while their sufficient resources have secondary importance. This may be due to the special place of the student status in EU free movement law, which has been protected in the case law, both as a worker under Article 45 TFEU seeking further training, as the child of crossborder workers seeking education,44 and as a person fulfilling the Union aim of increased student mobility.45 The student’s long-standing protection under free movement law can also be understood from the potential economic actor on the internal market that the student might become.46 In the 2001 Grzelczyk judgment, as will be discussed further in chapter five, the rationale for treating the residence rights under the cross-border student status as special in comparison to the person who is a non-economically active Union citizen, came to the fore with regard to equal treatment claims for social assistance.47 Article 7(2) of the Directive goes on to extend the conditions for a right to reside of family members of Union citizens, regardless of their nationality,48 and Article 7(3) lists various circumstances in which the status of being a worker or self-employed person may be retained. The Court has however applied a generous reading of the conditions for such retained status as an economically active person. In cases like Saint Prix and Dakneviciute, the Court established that Article 7(3) of Directive 2004/38 should not be read as an exhaustive list of instances for retained status as a worker or self-employed person.49 In this sense, the Court refused to allow provisions of a secondary legal instrument to narrow down any definitions of

44 See Case C-9/74, Casagrande v Landeshauptstadt München, EU:C:1974:74; Case C-337/97, Meeusen, EU:C:1999:284; Case C-401/15, Depesme and Kerrou, EU:C:2016:955. 45 See Title XII TFEU. The student status and enrolment at an educational establishment in the host Member State was a sign of genuine sufficient genuine links to incur equal treatment rights in Case C-75/11, Commission v Austria, EU:C:2012:605, para 64. 46 The prohibition to disadvantage an economically active person because of having pursued studies abroad was seen in Case C-19/92, Kraus v Land Baden-Württemberg, EU:C:1993:125; Case C-281/98, Angonese, EU:C:2000:296; and Case C-575/11, Nasiopoulos, EU:C:2013:430. 47 Case C-184/99, Grzelczyk, EU:C:2001:458. 48 Article 7(1)(d) and (2) and (4) of Directive 2004/38. 49 See Case C-507/12, Saint Prix, EU:C:2014:2007, para 38; Case C-544/18, Dakneviciute, EU:C:2019:761, para 28.

Retaining a Right to Reside and Obtaining Permanent Residence  37 an economically active person inferred from primary law, namely Articles 45 or 49 TFEU. This treatment of the conditions of Directive 2004/38 in relation to primary law provisions on freedom of movement has, however, not been transferred as generously to cases concerning non-economically active Union citizens.50 Two opposing characteristics of the right to move and reside freely thereby intermingle in Article 7(1) of the Directive. Its categorisation of the person and different conditions for protected residence status reflect both the nature of residence rights as instrumental to the exercise of the economic freedoms for persons as well as the directly effective, albeit not unconditional, fundamental right to reside conferred by the status of EU citizenship. The two characteristics of the right to reside converge in the Directive’s Article 7 and stimulate a two-tiered concept of EU citizenship. Paired with the principle of non-discrimination on grounds of nationality – the right to equal treatment – Union citizens are invited to self-realise and integrate in the host Member State, either through proving an economic personal status under the market freedoms, or as a Union citizen with sufficient economic resources.51 The conflict lies in simultaneously seeking to make economic free movement as effective as possible as part of internal market law, and to define the limitations to an individual Union citizen’s exercise of the personal right to non-economic freedom of movement.

IV.  Retaining a Right to Reside and Obtaining Permanent Residence Directive 2004/38 contains several provisions for how a Union citizen and family members gradually increase their residence security once they have installed themselves in a host Member State.52 The Directive protects all economically active persons from expulsion measures, save on grounds of public policy and public

50 See critiques by S Currie, ‘Pregnancy-Related Employment Breaks, the Gender Dynamics of Free Movement Law and Curtailed Citizenship: Jessy Saint Prix’ (2016) 53 Common Market Law Review 543; A Iliopoulou-Penot, ‘Deconstructing the Former Edifice of Union Citizenship?’ The Alimanovic Judgment’ (2016) 53 Common Market Law Review 1007; and E Spaventa, ‘Citizenship: Reallocating Welfare Responsibilities to the State of Origin’ in P Koutrakos, N Nic Shuibhne and P Syrpis (eds), ­Exceptions from EU Free Movement Law: Derogation, Justification and Proportionality, Modern Studies in ­European Law (Oxford, Hart Publishing, 2016). 51 This is the positive promise of Article 7 of Directive 2004/38 to the Union citizen. See L Azoulai, ‘Transfiguring European Citizenship: From Member State to Union Territory’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017) 183–84. 52 On the distinction between the ‘inception’ of a TCN family member’s right to reside and the protection of its continuity, see F Strumia, ‘Divorce Immediately, or Leave. Rights of Third Country Nationals and Family Protection in the Context of EU Citizens’ Free Movement: Kuldip Singh and Others’ (2016) 53 Common Market Law Review 1373, 1379. On the gradual acquisition of enhanced residence security, see Joined Cases C-316/16 and C-424/16, B and Vomero, EU:C:2018:256, paras 48–55; and Joined Cases C-331/16 and C-366/16, K and HF, EU:C:2018:296, para 73.

38  The Right to Move and Reside Freely security, and gives conditions for when worker status, or self-employed status, may be retained as a basis for residence also in instances of ceasing work activities.53 Conversely, the Union citizen’s and family members’ residence security is only ensured under the Directive in situations where the Union citizen can prove continuous material fulfilment of the Directive’s stated provisions for residence. Retention of the status as an economically active person is therefore important, and the non-economically active citizen must not become a financial burden on the national social assistance system.54 To this, the case law has added that there is a requirement of continuous observance of ‘the inherent norms of integration’ of Directive 2004/38, thereby seeing an implicit, qualitative element regarding a person’s behaviour that goes beyond the economic conditions.55 Although older case law established that the right to reside is directly conferred on the Union citizen by Article 21(1) TFEU,56 the case law of the 2010s, discerning the edges of that right, has affirmed that to reside on any other legal basis than Directive 2004/38, or the mere factual residence, or ‘hereness’ of the Union citizen in the host Member State, without material fulfilment of the Directive’s conditions,57 does not incur a protected residence right.58 Such residence periods cannot lead to permanent residence status, and without permanent residence status, there is no enhanced protection against expulsion within the meaning of the Directive’s Article 28(3)(a) either.59

A.  Protecting the Continuity of Residence Under Directive 2004/38 Article 14(1) of Directive 2004/38 protects the continuity of the right to reside during the first three months in a host Member State, based on Article 6, for Union citizens and their family members so long as they do not become an unreasonable

53 On retention of economic status in Directive 2004/38, see Case C-544/18, Dakneviciute, EU:C:2019:761; Case C-483/17, Tarola, EU:C:2019:309; Case C-442/16, Gusa, EU:C:2017:1004; and Case C-507/12, Saint Prix, EU:C:2014:2007. 54 Note the Court’s reasoning in Joined Cases C-316/16 and C-424/16, B and Vomero, EU:C:2018:256, paras 51–55. 55 Regarding these inherent norms of integration of Directive 2004/38 see notably, Case C-378/12, Onuekwere, EU:C:2014:13. See in general, S Coutts, ‘Union Citizenship as Probationary Citizenship: Onuekwere’ (2015) 52 Common Market Law Review 531. See also Joined Cases C-331/16 and C-366/16, K and HF, EU:C:2018:296, paras 54–60. 56 Case C-413/99, Baumbast and R, EU:C:2002:493. 57 Azoulai (n 51) 190. 58 See Case C-424/10, Ziolkowski and Szeja, EU:C:2011:866; and the critique by A Łazowski, ‘Children of a Lesser Law: Comment on Ziolkowski and Szeja’ (2013) 38 European Law Review 404. 59 Joined Cases C-316/16 and C-424/16, B and Vomero, EU:C:2018:256, paras 48–55; and Joined Cases C-331/16 and C-366/16, K and HF, EU:C:2018:296, para 73. See comments by M Benlolo Carabot, ‘Citizenship, Integration, and the Public Policy Exception: B and Vomero and K and HF’ (2019) 56 Common Market Law Review 771, 788.

Retaining a Right to Reside and Obtaining Permanent Residence  39 burden on the social assistance system. Article 14(2) goes on to specify that Union citizens and their family members retain the right to reside beyond the initial three months if they reside in accordance with the requirements of Articles 7 or 12–13 of the Directive. The two latter provisions give the special circumstances in which family members of a Union citizen retain a right to reside in the host Member State in the event of the death or departure of the Union citizen or divorce between the Union citizen and a spouse. Article 14(1) of the Directive may seem rather redundant since a Union citizen does not have a right to equal access to social assistance in the first three months of residence in the host Member State under Article 6 anyway, as is clear from the Directive’s Article 24(2).60 There may, however, be national law provisions, obligating the host Member State authorities to grant social assistance to Union citizens in those circumstances.61 If they do, it is nevertheless hard to perceive of how one individual Union citizen can become such an unreasonable burden on the social assistance system in only three months that he would be deportable for that reason. In its earlier case law, preceding Directive 2004/38, the Court reasoned that Union citizens having only temporary difficulties should not lose their residence rights, and may have some equal treatment rights based directly on the status of EU citizenship for access to social assistance.62 Particularly when taking the view that Union law contains an obligation of some degree of transnational solidarity, meaning that a host Member State should tolerate a non-national Union citizen posing ‘somewhat of a burden’.63 However, the Court has tangibly changed its stance regarding this kind of solidarity in its case law of the last decade. In cases like Dano and Alimanovic, the Court found that the Member States may categorically exclude Union citizens from equal treatment for inclusion in its basic solidarity system if the Union citizens are not residing in accordance with Articles 7 or 16 of Directive 2004/38.64 To reside lawfully in accordance with the Directive is therefore not enough in order to rely on the right to equal treatment as expressed in Article 18 TFEU, since Directive 2004/38 contains its own thresholds

60 Compare with Case C-299/14, García-Nieto and Others, EU:C:2016:114. On the tension in Directive 2004/38 between the requirement of economic self-sufficiency and the right to equal treatment, see E Guild, S Peers and J Tomkin, The EU Citizenship Directive: A Commentary (Oxford, Oxford University Press, 2014) 171. 61 Case C-140/12, Brey, EU:C:2013:565, para 65. 62 Case C-184/99, Grzelczyk, EU:C:2001:458; Case C-456/02, Trojani, EU:C:2004:488. 63 Case C-184/99, Grzelczyk, EU:C:2001:458, para 44; Case C-140/12, Brey, EU:C:2013:565, para 72. E Spaventa, ‘Once a Foreigner, Always a Foreigner. Who Does Not Belong Here Anymore? Expulsion Measures’ in H Verschueren Residence, Employment and Social Rights of Mobile Persons: On How EU Law Defines Where They Belong, Social Europe Series 36 (Cambridge, Intersentia, 2016) 98. C Jacqueson, ‘For Better or For Worse? Transnational Solidarity in the Light of Social Europe’ in N Countouris and M Freedland (eds), Resocialising Europe in a Time of Crisis (Cambridge, Cambridge University Press, 2013) 376. 64 Case C-333/13, Dano, EU:C:2014:2358, para 84; Case C-67/14, Alimanovic, EU:C:2015:597, para 61. M Cousins, ‘“The Baseless Fabric of This Vision”: EU Citizenship, the Right to Reside and EU Law’ (2016) 23 Journal of Social Security Law 89, 96.

40  The Right to Move and Reside Freely for integration, which require the Union citizen to progressively earn his social equal treatment rights.65 Staying within the internal logic of the Directive, the Court, in Alimanovic, justified why cross-border jobseekers, in a categorical manner, may be excluded from equal treatment to social assistance.66 Although they may be lawful residents under the special protection against expulsion for jobseekers under the Directive’s Article 14(4)(b), their equal treatment rights are curtailed, due to the fact that they are not residing in strict accordance with the norms of Article 7 of the Directive. as regards the individual assessment for the purposes of making an overall appraisal of the burden which the grant of a specific benefit would place on the national system of social assistance at issue in the main proceedings as a whole, it must be observed that the assistance awarded to a single applicant can scarcely be described as an ‘unreasonable burden’ for a Member State, within the meaning of Article 14(1) of Directive 2004/38. However, while an individual claim might not place the Member State concerned under an unreasonable burden, the accumulation of all the individual claims which would be submitted to it would be bound to do so.67

The Court here appeared to reason that a host Member State should not need to firstly become financially overburdened by social assistance demands of noneconomically active Union citizens before withdrawing residence rights. Instead, they may, at the outset, deny equal treatment rights without having to challenge the person’s right to reside¸ allowing the individual to maintain their free movement status in the host Member State, but without having to include them in a national circle of solidarity.

B.  Making Article 7 of Directive 2004/38 into the Litmus Test of Integration Directive 2004/38 codifies the principle established in the student case of Grzelczyk, that the mere request of social assistance may not automatically lead to a measure to end the Union citizen’s residence rights in the host Member State.68 The combination of this protection of residence and the categorical elimination from equal treatment rights, means that a Union citizen can be disqualified from basic welfare support due to non-integration in the host Member State, without there being grounds for active withdrawal of residence rights or expulsion. Under Article 21(1) TFEU, the Union citizen may continue to move, relocate,

65 Iliopoulou-Penot (n 50). See in general, D Kramer, ‘Earning Social Citizenship in the European Union: Free Movement and Access to Social Assistance Benefits Reconstructed’ (2016) 18 Cambridge Yearbook of European Legal Studies 270. 66 Case C-67/14, Alimanovic, EU:C:2015:597, paras 59–61. 67 ibid, para 62 (emphasis added). 68 Case C-184/99, Grzelczyk, EU:C:2001:458, para 43. See Article 14(3) of Directive 2004/38.

Retaining a Right to Reside and Obtaining Permanent Residence  41 re-enter, and start a new cycle of residence in accordance with Article 6 of the Directive in a host Member State. The Directive does give possibilities to assert a re-entry ban against a Union citizen to a particular host Member State, but solely on public interest grounds of Article 27, and not based on economic grounds. Although an expulsion order will break the continuity of residence status in a host Member State, a non-economically active Union citizen may not be banned from re-entering a Member State solely because of not being able to achieve economic self-sufficiency.69 This is rational, since there is nothing to say that a person will not achieve economic status next time they choose to move to a particular host Member State. Cross-border workers, who have ceased employment, may retain the worker status, and continue to base a right to reside in the host Member State on Article 7(1)(a) of the Directive. The conditions for retaining worker status of Article 7(3) include instances of being temporarily unable to work due to illness or accident and involuntary unemployment after having been employed for more than one year if registered as a jobseeker with an employment office.70 In Saint Prix and Dakneviciute, the Court made the important interpretation that this list of instances for retaining worker status is non-exhaustive. Saint Prix concerned a woman who had to give up employment due to complications during her pregnancy and the aftermath of childbirth.71 Under a strict reading of Article 7(3), she did not have a basis for retained worker status, and therefore, no continuous residence security or full equal treatment rights on that basis. Referring to the broad understanding of the worker status of Article 45 TFEU, and the protection of women in relation to pregnancy and maternity leave that Union law otherwise affords, the Court could decide that she could nevertheless retain her worker status during this temporary break from the employment market.72 According to the Court, a provision of secondary legislation may not have the result of narrowing down the primary law concept of cross-border worker of Article 45 TFEU.73 This meant that more instances could result in a retained worker status than the wording of the Directive allows for.74 The Member State here had an obligation to consider a more generous assessment of the Union citizen’s retained worker status than the Directive requires, as Article 45 TFEU is to be interpreted broadly.75 In the 2019 judgment in Dakneviciute, the Court repeated this reasoning in relation to Article 49 TFEU. It transposed the same protection as in Saint Prix to women with the status of a self-employed person, with regard to pausing their 69 Articles 21 and 27(1) of Directive 2004/38. Compare with the exit case, Case C-33/07, Jipa, EU:C:2008:396. 70 See Case C-483/17, Tarola, EU:C:2019:309; and Case C-442/16, Gusa, EU:C:2017:1004. 71 Case C-544/18, Dakneviciute, EU:C:2019:761, para 28; and Case C-507/12, Saint Prix, EU:C:2014:2007, para 38. 72 Case C-507/12, Saint Prix, EU:C:2014:2007, paras 40–47. 73 ibid, para 37. 74 ibid, para 38. 75 ibid, paras 33 and 38.

42  The Right to Move and Reside Freely active participation in the labour market due to pregnancy and childbirth. The applicant in Dakneviciute could take a break from her business as a self-employed person without losing her status as an economically active person, thus retaining an uninterrupted right to reside under the Directive.76 The Court’s reasoning in both these cases was based on a classical protection of the person under the economic freedoms, ensuring the effectiveness of the internal market.77 Retaining status as an economically active person had the immediate legally beneficial outcome for the applicants in Saint Prix and Dakneviciute, of remaining lawful residents in accordance with Article 7 of Directive 2004/38, and consequently, having full social equal treatment rights in the host Member State. It is not as certain that the applicant in Saint Prix could have enjoyed this same generous protection of residence and equal treatment if she had been relying solely on the status of EU citizenship.78 If the Court had found that Jessy Saint Prix had lost her worker status, the self-sufficiency requirements of the Directive’s Article 7(1)(b) would have applied to her. Most likely she would not have fulfilled the self-sufficiency requirement as she was relying on social assistance benefits at the time, leaving her at the edges of the right to reside, and cut off from the ancillary right of equal treatment. Whereas the reasoning in Saint Prix and Dakneviciute had the effect of ‘saving’ the applicant from having to rely solely on the status of EU citizenship,79 the Court took an opposite take on the retention of the cross-border worker status under Article 7(3) in the Alimanovic case.80 Here, the Court followed a different rationale and relied on the wording of Directive 2004/38 to find that the adult members of the Alimanovic family had lost their worker status under Article 7(3)(c). They had only been workers for a period of under 12 months and were now second-time jobseekers.81 Their right to reside was this way based on their status as active jobseekers, who may not be expelled (save on public interest grounds) under the Directive’s Article 14(4)(b). Their equal treatment rights could nonetheless be refused concerning social assistance based on the special derogation to equal treatment rights for jobseekers in Article 24(2). As the Alimanovic family were no longer residing in accordance with Article 7 of Directive 2004/38, nor had obtained permanent residence status, the host Member State was entitled to deny them social assistance.82 By moving the Alimanovic family out of the protection of Article 7 and into the residence safeguard for jobseekers in Article 14(4)(b), the qualitative strength of their integrational links to the host 76 Case C-544/18, Dakneviciute, EU:C:2019:761. 77 See notably para 44 in Case C-507/12, Saint Prix, EU:C:2014:2007. 78 Currie (n 50) 557 f. 79 Currie pointed out that Saint Prix showed what a poor social safety net EU citizenship is next to the worker status, see Currie (n 50) 561. 80 Case C-67/14, Alimanovic, EU:C:2015:597. 81 See the distinction between the first time and second time jobseeker in the reasoning of Advocate General Wathelet in his Opinion in Case C-67/14, Alimanovic, EU:C:2015:210, para 98. 82 Cousins (n 64) 96.

The Right of Permanent Residence Status  43 Member State were diminished, and, albeit retaining residence rights, their equal treatment rights could lawfully be reduced, relying solely on the internal logic of Directive 2004/38.

V.  The Right of Permanent Residence Status An innovative property of Directive 2004/38 is how it furthers the right to reside, allowing it to evolve into a permanent residence status. Article 16 of the Directive sets down the conditions for obtaining such status, which embodies a special protected standing for the individual, ensuring that absences from the territory of the host Member State, as well as the public interest grounds, may only exceptionally lead to the termination of residence rights. This level of secured residence rights had previously not been available for non-economically active persons, residing based on the three Residence Directives, but a variant of it had been reserved for the cross-border worker status through ‘the right to remain’ in older secondary law.83 Accordingly, under Article 16 of the Directive, a Union citizen and family members have the possibility to obtain permanent residence status in the host Member State through continuous fulfilment of the Directive’s conditions for retained residence rights for a period of at least five years. At that point, lawful residence turns into permanent residence, reflecting a stronger integrational link between the Union citizen and the host Member State.84 The Directive’s various economic conditions for lawful residence in accordance with Articles 7–14 then fall away and cease to be applicable. Permanent residence status, once obtained, should not be subject to any economic conditions as its aim is to function as a ‘genuine vehicle of integration’.85 Conversely, up until that point, the Union citizen’s link to the home Member State will, at least legally, have been the most important one.86 Without permanent residence status, a Union citizen is more easily ­deportable87 and has fewer equal treatment rights, depending on his economic status under Article 7 of the Directive.88 For the non-economically active Union 83 Regulation (EEC) No 1251/70 of the Commission of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State. On this point, see C Barnard, The Substantive Law of the EU: The Four Freedoms, 6th edn (Oxford, Oxford University Press, 2019) 346–48. 84 Case C-165/16, Lounes, EU:C:2017:862, paras 56–60; Case C-378/12, Onuekwere, EU:C:2014:13, paras 24–25. 85 Recital 18 of the Preamble to Directive 2004/38. See Joined Cases C-424/10 and C-425/10, Ziolkowski and Szeja, para 41. 86 Case C-123/08, Dominic Wolzenburg, EU:C:2009:616, para 68. 87 Article 28 of Directive 2004/38. See Joined Cases C-316/16 and C-424/16, B and Vomero, EU:C:2018:256, paras 48–55. See also Joined Cases C-424/10 and C-425/10, Ziolkowski and Szeja. 88 Case C-158/07, Förster, EU:C:2008:630 regarding access to study maintenance grants; and Case C-123/08, Dominic Wolzenburg, EU:C:2009:616 regarding national equal treatment regarding extradition.

44  The Right to Move and Reside Freely citizen, the home Member State remains ultimately responsible for his social safety net in respect of social assistance during these five years.89

A.  The Meaning of Permanent Residence Status The economic requirements for lawful residence status fall to the side once permanent residence status is obtained. From then on, the person’s residence security and equal treatment rights should remain the same, regardless of subsequent changes in economic status or resources. The derogations from equal treatment of Article 24(2) of Directive 2004/38 are then no longer applicable, and to fall out of the scope of the economic freedoms, or to rely heavily on the social assistance system of the host Member State, will not affect the person’s residence rights. While Article 7(1) relies on a categorisation of the person according to economic activity or not, the acquisition of permanent residence status neutralises this categorisation of Union citizens. Permanent residence status also has the effect of equalising Union citizens and their TCN family members with one another. Through obtaining a recognised permanent residence status, the latter become less dependent on the Union citizen for retaining their residence rights in the host Member State in case of changes in the family relationship. The Union citizen and family members have, at this point, achieved genuine integration as a residential member of the host Member State and fulfilled the goal of self-realisation of EU citizenship following the aims of Directive 2004/38.90 The only further step to be taken would be to naturalise to the host Member State’s nationality. In Lounes, the Court established that such an expression of the individual’s will to genuinely integrate in the host Member State should not mean that the rights incurred through the person’s exercise of freedom of movement in accordance with the Directive should be foregone.91 To acquire permanent residence status, the Union citizen will need to show that he has continuously and materially fulfilled the qualitative conditions for lawful residence in accordance with Directive 2004/38 for the previous five years. The possession of a residence permit is in this regard merely declaratory of his residence right, but cannot form the material basis for acquisition of permanent residence status. The Court made this clear in its judgment in the Dias case.92 The mere possession of a residence permit has no substantive effect if not paired with fulfilling the material conditions of coming within the scope of the economic

89 Case C-333/13, Dano, EU:C:2014:2358. On this point, see Spaventa, ‘Citizenship: Reallocating Welfare Responsibilities to the State of Origin’ (n 50) 45–46. 90 Recitals 17 and 23 of the Preamble to Directive 2004/38. 91 Case C-165/16, Lounes, EU:C:2017:862, paras 58–60. 92 Case C-325/09, Dias, EU:C:2011:498, para 54. This point had already been made in pre-citizenship cases like Case C-48/75, Royer, EU:C:1976:57; and Case C-357/89, Raulin v Minister van Onderwijs en Wetenschappen, EU:C:1992:87.

The Right of Permanent Residence Status  45 freedoms, or showing self-sufficiency and comprehensive sickness insurance in the Directive.93 Although the person’s right to reside may exist all along, it must be recognised by the public authorities through their assessment of the person’s sufficient integration in accordance with the Directive’s temporal, territorial and qualitative norms.94 Longer absences or periods spent relying on social assistance benefits, or residence periods which the Union citizen simply cannot prove have been in material accordance with the conditions of Directive 2004/38, therefore mean that it may take more than five years before an individual acquires permanent residence. Absences from the territory of the host Member State for less than six months should not subtract from the years spent in the host Member State as a genuine resident.95 Neither should longer absences if they are related to compulsory military service, reasons of pregnancy and childbirth, serious illness, study, or vocational training, or worker postings abroad.96 As the status of ‘permanent resident’ is a unique legal creation of Directive 2004/38, it cannot be acquired if the Union citizen and family members have resided on an alternative legal basis than the Directive.97 The Ziolkowski and Szeja case confirmed that residence periods based on national law, without simultaneous fulfilment of Directive 2004/38 or its predecessors’ conditions, could not count towards achieving permanent residence status.98 Any ‘real’ factors of personal integration in a host Member State are excluded from the special understanding of genuine integration that permanent residence status in Directive 2004/38 carries, and the primary law status of EU citizenship means little or nothing in itself for the assessment.99 Likewise, residence rights derived by a child of a cross-border worker under the Workers Regulation 1612/68 cannot lead to a right to permanent residence status as this legal instrument has not been repealed and replaced by Directive 2004/38, but now has its legal basis in Regulation 492/2011.100 As an exception to the five-year requirement, Article 17 of the Directive provides that the right of permanent residence status is to be awarded to Union citizens who are workers if they, among other grounds, reach retirement age before

93 Case C-325/09, Dias, EU:C:2011:498, paras 54–55. 94 ibid, para 64. 95 Articles 11(2) and 16(3) of Directive 2004/38. 96 ibid. 97 Unless that residence was in accordance with the secondary legislation that Directive 2004/38 repealed and replaced. See Case C-529/11, Alarape and Tijani, EU:C:2013:290, para 35; Case C-162/09, Lassal, EU:C:2010:592. 98 Case C-424/10, Ziolkowski and Szeja, EU:C:2011:866. On the failure of Union law to protect the residence rights of a long-term resident Polish family in Germany in this case, see the critique by Łazowski (n 58). 99 M Jesse, ‘The Value of “Integration” in European Law: The Implications of the Förster Case on Legal Assessment of Integration Conditions for Third-Country Nationals’ (2011) 17 European Law Journal 172, 178. 100 Case C-310/08, Ibrahim and Secretary of State for the Home Department, EU:C:2010:80, para 48; Case C-529/11, Alarape and Tijani, EU:C:2013:290, para 40.

46  The Right to Move and Reside Freely having completed five years of employment or if they are permanently incapacitated. Article 18 provides the conditions for obtaining the right of permanent residence status for TCN family members who have retained a right to reside in the host Member State after the death or departure of the Union citizen, or the divorce between the Union citizen and a TCN country national spouse.101 Once the status of permanent residence has been obtained, a Union citizen and their family members have enhanced their residence security in the host Member State, but to leave the host Member State for a longer period than two years will be a basis for the Member State’s withdrawal of that status.102 In addition, the person with permanent residence status is still in a less secure legal position compared with a naturalised national of the Member State, as some inequality between him and the national resident of the Member State will always persist. First, and as will be elaborated further below in chapter six, the non-national permanent resident may be excluded from the national electorate, and is therefore not an equal political citizen next to the national citizens in the host Member State. Second, the possibility to expel a Union citizen or family members does not at any point cease to apply after the acquisition of permanent residence, but if the citizen has resided for more than 10 years in the host Member State, counting back from the time of the decision to expel, the expulsion may only be based on imperative grounds of public security.103 Finally, expulsion measures based on the public interest grounds require that the public authorities take due consideration of the genuine integration that the individual might have achieved by then, implying a behavioural element to protection against expulsion.104

B.  The Implicit Behavioural Elements to Genuine ‘Integration’ in Directive 2004/38 The Preamble to Directive 2004/38 speaks of the special residence security that Union citizens, who have become genuinely integrated in a host Member State should have.105 For that reason, permanent residents have enhanced protection against expulsion measures on public interest grounds.106 The idea of genuine integration plays a role for the evaluation of the individual’s continuous lawful

101 This can be compared with the right to remain for family members of cross-border workers in repealed Regulation 1251/70. 102 Article 16(4) of Directive 2004/38. 103 Article 28(3)(a) of Directive 2004/38. See Case C-400/12, G, EU:C:2014:9, para 24. See also Joined Cases C-316/16 and C-424/16, B and Vomero, EU:C:2018:256, paras 64–66. 104 Article 28(1) of Directive 2004/38. See Joined Cases C-316/16 and C-424/16, B and Vomero, EU:C:2018:256, paras 64–66 and paras 70–83. 105 Recital 23 of the Preamble to Directive 2004/38. See also Article 28 of Directive 2004/38. 106 Article 28(2) of Directive 2004/38.

The Right of Permanent Residence Status  47 residence status in accordance with Directive 2004/38 that is necessary for ­obtaining permanent residence status in the first place.107 Although not explicit in the wording of the Directive’s Articles 7–16, the Court has found that there is a qualitative, behavioural dimension to residing in a host society, which is an inherent aspect of the lawful exercise of freedom of movement.108 In this manner, behavioural aspects influence the Union citizen’s path to achieving permanent residence, such as respecting the values of the host society, as expressed in their criminal code.109 If these behavioural conditions are not respected, they may rebut the presumption of genuine integration that fulfilment of the economic and temporal norms of the Directive normally signifies.110 The status of permanent residence, supposed to strengthen ‘the feeling of Union citizenship’, is this way a status to be earned through continuous observance of a particular ideal of EU citizenship.111 Integration of the Union citizen in the host Member State is the goal of the permanent residence status as much as it is the precondition for acquisition of that status.112 This precondition of genuine integration for Union citizens’ enhanced residence security has developed three main implications, which are not easily reconciled. First, it has the normative effect of equalising residence in strict legal accordance with the economic conditions of Article 7 of the Directive, to integration, as no other legal basis may achieve permanent residence status.113 Second, personal behaviour nevertheless matters, as the Court has found that some behaviours may have a disqualifying effect on the person’s successful integration in accordance with Directive 2004/38. Failure to live up to the implicit ‘values’ of the Directive will be to the detriment of the Union citizen of a family member’s acquisition of permanent residence status.114 This was the case in Onuekwere, where the Court found that a TCN spouse of a Union citizen had forfeited the time that could lead to permanent residence status with the time he spent in prison in the host Member State.115 It was not so much the fact that he was physically incarcerated, although the Court recognised that this could be seen as failing the conditions of residing with the Union citizen from whom he derived

107 See Case C-123/08, Dominic Wolzenburg, EU:C:2009:616 for how permanent residence is a marker of genuine integration. That only residence in accordance with Articles 7 or 16 of Directive 2004/38 can be considered genuine exercise of the right to reside has been confirmed in Case C-456/12, O, EU:C:2014:135. See also Opinion in Case C-165/16, Lounes, EU:C:2017:407, para 83. 108 Case C-325/09, Dias, EU:C:2011:498; Case C-378/12, Onuekwere, EU:C:2014:13. 109 Case C-378/12, Onuekwere, EU:C:2014:13, para 26. 110 D Kostakopoulou, ‘When EU Citizens Become Foreigners’ (2014) 20 European Law Journal 447, 459. 111 Coutts (n 55) 532. 112 Coutts (n 55) 537. On how naturalisation reflects the same aim, see Opinion in Case C-165/16, Lounes, EU:C:2017:407, para 83. 113 See in general, Jesse (n 99). 114 Azoulai (n 51) 189. 115 Case C-378/12, Onuekwere, EU:C:2014:13.

48  The Right to Move and Reside Freely his residence rights, as Article 16(2) of the Directive requires.116 Rather, it was the fact that the imprisonment itself, imposed as a result of a criminal conviction, revealed a disrespect for the values of the host society, as reflected in its criminal code, which made him err on the qualitative side of integration.117 The time spent in prison was to be subtracted from the time that could count towards permanent residence status, as it, in the Court’s view, was a time equal to periods of showing disrespect for the host Member State’s values.118 It can be challenged why imprisonment in itself should be equalised to non-integration under Directive 2004/38 as prisons are also part of society, albeit that they are their own sphere of socialisation and rehabilitation.119 Third, and finally, serious criminal behaviour as well as imprisonment itself may disqualify the enhanced residence security with which the already obtained status of permanent residence is associated. Non-observance of the values of the host Member State, notably by not respecting its criminal code, but also, as in the case of K and HF, concerning crimes against humanity, by showing ‘a disposition hostile to the fundamental values enshrined in articles 2 and 3 TEU’ – thereby offending the values of the integral European Union – may, also after many years, even decades of residence in the host Member State, justify a restriction on the EU citizenship right of entry and residence.120

VI.  Withdrawing Residence Rights on Public Interest Grounds While Directive 2004/38 replicates the public interest grounds that have traditionally been available to the Member States to restrict the movement and residence rights of persons – public policy, public interest and public health121 – it modifies their applicability in view of the legal strength that the permanent residence status should bring to the individual. The particularity of the permanent residence status as a sign of an individual’s ‘genuine integration’122 in a host Member State

116 ibid, para 23. 117 ibid, paras 25–27. 118 Coutts (n 55) 540–43. 119 Barbou des Places (n 12) 198. For a critique of how the purpose of rehabilitation in modern prison culture is lost in the normative view of integration in this regard, see D Belavusau and U Kochenov, ‘Kirchberg Dispensing the Punishment: Inflicting “Civil Death” on Prisoners in Onuekwere (C-378/12) and MG (C-400/12)’ (2016) 41 European Law Review 557, 574. 120 Joined Cases C-331/16 and C-366/16, K and HF, EU:C:2018:296, para 60. See comments on the EU as an ‘existential project’ by Benlolo Carabot (n 59) 793 f. 121 This was regulated in a separate Directive: Council Directive 64/221/EEC of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health. 122 Recital 23 of the Preamble to Directive 2004/38.

Withdrawing Residence Rights on Public Interest Grounds  49 determines why the Directive contains special provisions to safeguard against expulsion of long-term resident Union citizens.123 The Directive’s Article 27 gives its legal bases for restricting the right to reside of Union citizens and their family members on grounds of public policy, public security and public health.124 The latter as a grounds for restricting freedom of movement may only apply in the temporal space where no conditions for the person’s presence in the host Member State are applicable under Article 6 of the Directive. Public health is thereby only available as a ground to restrict the exercise of movement to a host Member State and an initial stay of three months. It cannot be applied against a Union citizen who contracts a disease of epidemic potential after having resided for more than three months in the host Member State, and whose legal situation aligns with the conditions of the Directive’s Article 7.125 Only public policy and public security grounds are available for withdrawing a right of residence of a Union citizen who is residing in accordance with Article 7. Beyond the point of having acquired permanent residence status, only serious grounds of public policy or public security may lead to a withdrawal of residence and expulsion.126 Article 28(3) stipulates the even higher threshold of ‘imperative grounds of public security’ for expulsion of permanent residents, who have resided for more than 10 years in the host Member State.

A.  Public Interest Grounds Neutralising the Individual’s Economic Status Restrictions adopted on any of the public interest grounds in Directive 2004/38 shall comply with the principle of proportionality and be based exclusively on the personal conduct of the individual concerned.127 That personal conduct must represent a genuine, present and sufficiently serious threat, affecting one of the fundamental interests of society.128 This prevents the Member States from taking general or precautionary measures to restrict freedom of movement, as well as measures taken against groups of persons, without proper consideration of each person’s individual conduct.129 Article 27(4) of the Directive provides that the Member State that issued the person’s identity document must accept that the 123 Article 28 of Directive 2004/38. 124 Public health as a ground for restricting free movement rights is defined in Article 29(1) of Directive 2004/38 and is limited to diseases of epidemic potential. 125 Article 29(1) and (2) of Directive 2004/38. 126 Article 28(2) of Directive 2004/38. 127 Article 27(2) of Directive 2004/38. Case C-165/14, Rendón Marín, EU:C:2016:675, para 59. 128 Article 27(2) of Directive 2004/38. Case C-33/07, Jipa, EU:C:2008:396, para 23 and case law there cited. 129 Case C-165/14, Rendón Marín, EU:C:2016:675, paras 60–61; Case C-67/74, Bonsignore v ­Oberstadtdirektor der Stadt Köln, EU:C:1975:34, paras 6–7.

50  The Right to Move and Reside Freely person is returned to its territory, even if the person’s nationality or origin is in dispute. Wholly absent from the issue of expulsion on public interest grounds is the issue of whether the individual comes within the personal scope of either of the economic freedoms, or whether he is residing as an inactive Union citizen under Article 21(1) TFEU. The public interest grounds apply without prejudice to a person’s economic activity or resources. Similar to how the economic interests of the State normally cannot be invoked by the host Member State to justify restrictions on the free movement of goods, workers and services,130 the three public interest grounds of public policy, public security and public health are not available for invoking economic reasons to restrict Union citizens’ free movement rights.131 To protect the public finances of the host Member State as a matter of public policy is therefore not accepted as grounds for restricting free movement of persons.132 The public interest grounds are to be applied by the host Member State without prejudice to the economic status and self-sufficiency of a Union citizen and regardless of whether the citizen and family members otherwise fulfil the requirements for residence in the Directive. Conversely, the public interest grounds may disqualify the individual’s right to reside regardless of the person’s economic status in the host Member State in accordance with Directive 2004/38, thereby having a neutralising effect on a person’s otherwise lawful residence. These grounds for withdrawal of rights override any other qualifying factors that the individual fulfils, and puts the worker, non-economically active Union citizen as well as the TCN family member on a par with one another.133 Nevertheless, before an expulsion measure is taken on grounds of public policy or public security, individual factors of genuine integration and personal ties to the host Member State, as well as the ties the person has to the home Member State, must be taken into consideration.134 Accordingly, Article 28(1) stipulates that before making an expulsion order on grounds of public policy or public security, the Union citizen’s age, state of health, family and economic situation, and social and cultural integration in the host Member State must be taken into account. The longer the Union citizen has spent in the host Member State and the stronger his interpersonal ties are to that State, the higher is the threshold for an expulsion measure, and the less likely is it that periods spent in imprisonment would have

130 Case C-388/01, Commission v Italy, EU:C:2003:30, para 22. 131 Article 27 of Directive 2004/38. 132 Although this has been put forward by Davies as a legitimate use of the public policy ground, see G Davies, ‘Could it all have been Avoided? Brexit and Treaty-Permitted Restrictions on Movement of Workers’ (European Law Blog, 18 August 2016). 133 The public interest grounds to expel a TCN family member who was otherwise residing in accordance with Directive 2004/38 were applied in Case C-304/14, CS, EU:C:2016:674; and Case C-165/14, Rendón Marín, EU:C:2016:675. 134 Joined Cases C-316/16 and C-424/16, B and Vomero, EU:C:2018:256, para 83; Case C-165/14, Rendón Marín, EU:C:2016:675, para 56.

Withdrawing Residence Rights on Public Interest Grounds  51 broken that integrative link.135 These factors are to be weighed against the threat that the personal conduct of the person may pose to the host society, or, as was the case in K and HF, regarding crimes against humanity, which disrespects the Union’s own values as expressed in Articles 2 and 3 of the Treaty on European Union (TEU).136 Regardless of the thresholds that genuine integration and permanent residence security puts up against the risk of expulsion, the public interest grounds of Directive 2004/38 remind us of the frailty of the residence rights of a non-national in any State. Unless fully naturalised as a national, there will always be a basis for withdrawing a Union citizen’s residence rights in the host Member State. This frailty has been confirmed in cases where the Court has interpreted the Directive’s public interest grounds, and the extent to which the relevance of permanent residence status may be compromised under them.137 The Court’s reasoning, common to these cases, has incurred scholarly criticism for undermining not only the legal meaning of the status of EU citizenship, but also, within the Directive’s own logic, undermining the very meaning of the residence security that permanent residence status ensures.138

B.  Expulsion Measures Against Permanent Residents: A Criticised Jurisprudence For the Union citizen or family member who has obtained permanent residence status in the host Member State, the threshold for expulsion is that only serious grounds of public policy and security may be invoked by the host Member State.139 For the person who has resided in accordance with the conditions of Directive 2004/38 for the previous 10 years in the host society, only imperative grounds of public security may be relied on for an expulsion measure.140 Due to the high level of integration that a Union citizen is assumed to have achieved in the host Member State at this point, expulsion measures should only be an exceptional

135 Case C-165/14, Rendón Marín, EU:C:2016:675, paras 56 and 62; Case C-145/09, Tsakouridis, EU:C:2010:708, para 53. See Recital 23 of the Preamble to Directive 2004/38. Joined Cases C-316/16 and C-424/16, B and Vomero, EU:C:2018:256, paras 70–83. 136 Case C-145/09, Tsakouridis, EU:C:2010:708, para 55; Case C-348/09, I, EU:C:2012:300, para 34. Joined Cases C-331/16; and C-366/16, K and HF, EU:C:2018:296, paras 56–60. 137 Case C-400/12, G, EU:C:2014:9; Joined Cases C-316/16 and C-424/16, B and Vomero, EU:C:2018:256; Case C-145/09, Tsakouridis, EU:C:2010:708; Case C-348/09, I, EU:C:2012:300. 138 For critiques of how relatively easy it can be to also expel a long-term residing Union citizen from a Member State, see D Kochenov and B Pirker, ‘Deporting the Citizens within the European Union: A Counter-Intuitive Trend in Case C-348/09, PI v Oberburgermeisterin Der Stadt Remscheid’ (2013) 19 Columbia Journal of European. Law 369, 376 f; and Kostakopoulou (n 110) 458 f; Benlolo Carabot (n 59) 783 f. 139 Article 28(2) of Directive 2004/38. 140 Article 28(3)(a) of Directive 2004/38.

52  The Right to Move and Reside Freely resort of the host Member State.141 The same high threshold applies if the expulsion measure targets a minor, unless the expulsion can be deemed necessary in the best interests of the child.142 In the MG and B and Vomero cases, the Court gave the interpretation that the significant threshold of ‘10 years’ is to be counted backwards, from the time of taking a decision of an expulsion measure.143 This means that although having spent decades in a host Member State, a Union citizen may have forfeited the enhanced protection against expulsion due to being imprisoned or otherwise engaging in a behaviour that poses a serious threat to public security, at some point during the previous 10 years at the moment of assessment. B and Vomero, PI and Tsakouridis have shown that even Union citizens, who have spent many decades, or who were even born and have spent their whole lifetime in a host Member State, may be expelled from a host Member State on imperative grounds of public security.144 In the PI case, the Court found that the serious criminal offences committed by an Italian national in Germany reflected such a disregard for the national criminal code that it disqualified the near two decades of otherwise lawful residence in the host Member State from being in accordance with the objectives of free movement law. In his Opinion, Advocate General Bot even perceived it as an ‘abuse’ of free movement law, if a Union citizen could rely on the Directive’s protection of his right to reside in a host Member State, while all the while relentlessly engaging in serious criminal behaviour:145 To acknowledge that Mr I may derive from his criminal conduct the right to the enhanced protection provided for in Article 28(2) and (3) of that directive would, in my view, conflict with the values on which citizenship of the Union is based.146

In its judgment, the Court did, however, not follow this route to perceive I’s residence security as going against the prohibition of abuse of rights of Article 35 of the Directive. Instead the Court relied on Article 28(3).147 Some argue that the Court thereby created such a broad meaning of what may constitute ‘imperative grounds of public security’ that it has eroded the meaning of the residence security that permanent residence status is to give.148

141 See Recital 24 of the Preamble to Directive 2004/38. 142 Article 28(3)(b) of Directive 2004/38. 143 Case C-400/12, G, EU:C:2014:9, paras 24–28; Joined Cases C-316/16 and C-424/16, B and Vomero, EU:C:2018:256, paras 64–67. 144 Joined Cases C-316/16 and C-424/16, B and Vomero, EU:C:2018:256; Case C-348/09, I, EU:C:2012:300; and Case C-145/09, Tsakouridis, EU:C:2010:708. 145 Opinion in Case C-348/09, I, EU:C:2012:123, paras 60–64. 146 ibid, para 62 (emphasis added). 147 Case C-348/09, I, EU:C:2012:300, paras 28–33. 148 Kochenov and Pirker (n 138) 378. L Azoulai and S Coutts, ‘Restricting Union Citizens’ Residence Rights on Grounds of Public Security. Where Union Citizenship and the AFSJ Meet: PI’ (2013) 50 Common Market Law Review 553, 568. Kostakopoulou (n 110) 458.

Withdrawing Residence Rights on Public Interest Grounds  53 It is a prevailing criticism that the Court has taken an increasingly Member State friendly approach in such expulsion cases to the detriment of the rights of the individual Union citizen, who can never really achieve integration to the point that they escape being treated as a ‘foreigner’ in a host Member State.149 This allows for a reassertion of national sovereignty to take precedence over any real meaning of residence security for the individual Union citizen.150 Notably, it might be an inadequate reading of when an individual really poses a ‘genuine, present, and sufficiently serious threat affecting one of the fundamental interests of society’,151 as it appears that the mere sentencing to prison is treated as a possible disqualifying factor from successful integration.152 If genuine integration is assumed to be achieved by obtaining permanent residence status, why should there not be a point in a person’s residence history where the host Member State assumes full responsibility for the criminal rehabilitation of one of its permanent residents who has committed a crime?153 Union law tends to push this responsibility back over to the home Member State, which the citizen may have left behind many years ago, but it should be borne in mind that Article 20 TFEU, for its part, safeguards a Union citizen’s right to reside ‘somewhere’ in the European Union.154 The latter may motivate how the Court reasoned in case B and Vomero regarding Union citizen offenders who have become genuinely integrated in a host Member State.155 The Court here held that ‘the social rehabilitation of the Union citizen in the State in which he has become genuinely integrated is not only in his interest but also in that of the European Union in general’ – thereby affirming a shared European space of values regarding criminal offences and their rehabilitation.156 Furthermore, Union citizens and family members who have not resided in accordance with the norms that lead to permanent residence status in Directive 2004/38 do not benefit from this provision of enhanced protection, regardless of whether they have resided for more than 10 years in the host Member State.157

149 See, eg, Kostakopoulou (n 110); and Belavusau and Kochenov (n 119). 150 Kostakopoulou (n 110) 448 and 458–59. A general tendency of increasing respect in the Court’s case law of Member State discretion regarding Union citizens’ free movement rights has also been found by U Šadl and M Rask Madsen, ‘Did the Financial Crisis Change European Citizenship Law? An Analysis of Citizenship Rights Adjudication Before and After the Financial Crisis’ (2016) 22 European Law Journal 40. 151 Article 27(2) of Directive 2004/38. 152 M Meduna, ‘Scelestus Europeus Sum: What Protection against Expulsion Does EU Citizenship Offer to European Offenders?’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017) 405. 153 Belavusau and Kochenov (n 119) 572; Azoulai (n 51) 189–90. 154 Case C-82/16, KA and Others, EU:C:2018:308, paras 49–51, and cases there cited. See in general, Davies, ‘The Right to Stay at Home’ (n 17). 155 As was the case in Case C-145/09, Tsakouridis, EU:C:2010:708. See also Azoulai (n 51) 200. 156 Joined Cases C-316/16 and C-424/16, B and Vomero, EU:C:2018:256, para 75. See Benlolo Carabot (n 59) 783 f. 157 Joined Cases C-316/16 and C-424/16, B and Vomero, EU:C:2018:256, paras 48–55.

54  The Right to Move and Reside Freely On the other hand, against any interests of ensuring Union citizens’ free movement rights under the status of EU citizenship, one must weigh the merits of another aim of Union law: that of ensuring the security of all citizens within the Union as an area of freedom, security and justice.158 One individual’s enjoyment of free movement rights under the status of EU citizenship might have to be restricted, or completely taken away, to ensure the safety of the other residents of a given host Member State.159 Why these assessments are to be based essentially on national belonging above all other factors of belonging appears reactionary in view of the goal of European integration and the ideal of a legally potent status of EU citizenship. In that regard, MG, Tsakouridis and PI reflect the clash between these two essential aims of the EU.160 The clash occurs when, either on the basis of executing a European Arrest Warrant, as in Wolzenburg and Da Silva,161 or on the basis of making expulsion a part of a criminal conviction, as in Tsakouridis and PI, the host Member State rejects the non-national Union citizen in favour of the security concerns of its other residents.

VII. Conclusion While Article 21(1) TFEU, embodying the fundamental right to freedom of movement at the primary level, may be forceful to remove Member States’ restrictions on an individual Union citizen’s exercise of movement across a Member State border, the right of residence has developed into almost solely relying on the individual’s own efforts to integrate in accordance with the norms of Directive 2004/38. The right to reside, as reflected in the Directive, only discerns the status of EU citizenship as a residual status. Its Article 7 limits the conditions for residence to coming within the economic personhoods of internal market law, or on the individual’s economical resourcefulness. Notably, the Union citizen must not become a financial burden on the host Member State, in which case, the status of EU citizenship cannot then protect the person from loss of residence rights. In addition, the case law on expulsion measures against Union citizens, even when having resided for decades in a host Member State, shows the inadequacy of the status of EU citizenship to bridge the distinction between national residents and a non-national resident in the host Member State. The status of EU citizenship, at the edges of the right to reside as conditioned by Directive 2004/38, has little to

158 Title V TFEU. See notably Article 67 TFEU. 159 E Herlin-Karnell, ‘Ett Konstitutionellt Perspektiv på Frågan om Tillit inom EU:s Straffrättsliga Samarbete’ in A Bakardjieva Engelbrekt, A Michalski and L Oxelheim (eds), Tilliten i EU vid ett Vägskäl Europaperspektiv 20 (Helsinki, Santérus, 2017) 161. 160 As discussed by H van Eijken, EU Citizenship & the Constitutionalisation of the European Union, European Administrative Law Series 9 (Europa Law Publishing, 2015) 133 f. 161 Case C-123/08, Dominic Wolzenburg, EU:C:2009:616; and Case C-42/11, Lopes Da Silva Jorge, EU:C:2012:517.

Conclusion  55 offer the individual in terms of legal protection. Beyond the issue of restrictions on freedom of movement under Article 21(1) TFEU, and at the edges of exercising the right of residence in accordance with Directive 2004/38, there is a legal space of uncertainty as to what the status of EU citizenship at the primary level might mean materially for a Union citizen and family members in a host Member State. As will be argued in the following chapter, the individual’s vulnerability in this legal space, is most noticeable, in the case of the right to reside as derived from a Union citizen, by a TCN family member.

4 Residence and Family Reunification Rights Third-country national (TCN) family members of Union citizens have a protected standing in EU free movement law when they join or accompany a Union citizen who is exercising freedom of movement to a host Member State. They are, however, made vulnerable by the fact that their residence rights are not directly conferred on them, but merely derived from their Union citizen family member’s own standing under EU law.1 Therefore, a Union citizen’s departure from the host Member State may immediately end, not only the Union citizen’s residence rights, but also those of their family members, even if the latter remain in the host Member State.2 As we have seen, Article 21(1) of the Treaty on the Functioning of the European Union (TFEU) may take effect in the Union citizen’s home Member State with regard to removing restrictions on the person’s exercise of movement out of the Member State. The same Article is essential for claiming the Union citizen’s right to family reunification on return to the home Member State together with their family members, after having made use of freedom of movement.3 In this situation, the conditions for the family members’ residence may not be stricter than the conditions that Directive 2004/38 would impose in a host Member State, as the Court of Justice of the European Union (the Court) has pronounced that the Directive’s conditions apply by analogy to the home Member State (section I).4 However, TCN family members may also retain a right to reside in a host Member State without the Union citizen. Such retained residence security depends on both the applicability of the Directive’s conditions to the situation, and whether there are children in the family picture, who might have an independent right to reside (section II).5

1 Case C-82/16, KA and Others, EU:C:2018:308, para 50. On the vulnerability of the TCN family member in this regard, see notably Case C-115/15, NA, EU:C:2016:487. 2 See, eg, Case C-115/15, NA, EU:C:2016:487; and Case C-218/14, Singh and Others, EU:C:2015:476. 3 For the ‘passporting’ of free movement rights, see S Coutts, ‘The Shifting Geometry of Union Citizenship: A Supranational Status from Transnational Rights’ (2019) 21 Cambridge Yearbook of ­European Legal Studies 318, 321. 4 See Case C-673/16, Coman and Others, EU:C:2018:385, paras 18–25, and cases there referred. 5 See Case C-115/15, NA, EU:C:2016:487; Case C-310/08, Ibrahim and Secretary of State for the Home Department, EU:C:2010:80; and Case C-480/08, Teixeira, EU:C:2010:83.

The Right to Return as a Family to the Union Citizen’s Home Member State  57 In addition, there is the Union citizen’s right to reside within the European Union’s territory as a whole, based on the status of EU citizenship and the genuine enjoyment doctrine under Article 20 TFEU.6 This legal basis may be relevant in situations where a Union citizen cannot rely on free movement law to claim residence rights for their family members, but has a dependency on a TCN family member that is of such a nature that it would compel the Union citizen to depart from the European Union if that TCN family member was expelled (section III).7 As will be demonstrated in this chapter, there is a legally uncertain space between the residence and family reunification rights based on Article 21(1) TFEU, and Directive 2004/38 – rights essentially tied to the exercise of freedom of movement and residence – and residence and family reunification rights when based on Article 20 TFEU, essentially tied to the protection of the continued existence of a Union citizen within the Union’s territory as a whole.8

I.  The Right to Return as a Family to the Union Citizen’s Home Member State A.  The Right to Return with Family Reunification Rights: Economically Active Persons The 1992 pre-citizenship case of Singh provided that a Member State national, who had exercised economic freedom of movement to a host Member State, and there enjoyed a right of residence with TCN family members, may preserve those family reunification rights when returning to the home Member State to pursue economic activity.9 The Court reasoned that, for the purpose of ensuring the efficiency of the economic freedoms, there should be no difference in treatment between exercising an economic freedom to move to a second host Member State or back to the home Member State. Such a difference in treatment with regard to family residence rights would amount to a possible deterrent to the use of the economic freedoms and was thereby an unjustified restriction.10 6 Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354, para 65 affirming the interest of protecting the Union citizens’ right to reside in the Union. See also Case C-165/14, Rendón Marín, EU:C:2016:675, para 78. 7 For instances when such a relationship of dependency did not exist, see Case C-40/11, Iida, EU:C:2012:691; and Case C-256/11, Dereci and Others, EU:C:2011:734. 8 On the tension between these two paradigms, see L Azoulai, ‘Transfiguring European C ­ itizenship: From Member State to Union Territory’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017). N Nic Shuibhne, ‘The “Territory of the Union” in EU Citizenship Law: Charting a Route from Parallel to Integrated Narratives’ (2019) Yearbook of European Law 1. Coutts (n 3). 9 Case C-370/90, The Queen v Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department, EU:C:1992:296. 10 ibid, paras 19–23.

58  Residence and Family Reunification Rights In the 2007 case of Eind, this reasoning was also made applicable to crossborder workers who return home as non-economically active persons.11 A Dutch Union citizen had exercised his right to freedom of movement of workers under Article 45 TFEU to the United Kingdom. His TCN daughter had joined him there, deriving a right to reside from the fact that she was the child of a crossborder worker under Article 10 of the Workers Regulation 1612/68. However, on his return to the Netherlands, citizen Eind was no longer a worker nor otherwise economically active, and was relying on social assistance. His right to reside in the Netherlands, based on being a national, was unaffected by Union law as the right to reside under the fundamental freedoms does not refer to the right to reside in the home Member State.12 Nevertheless, the Court held that the residence rights that Eind’s daughter enjoyed based on the Workers Regulation applied by ­analogy, and protected a right to reside with her father when returning to his home Member State.13 As a result, up until her reaching the age of 21, she would derive a right to reside based on her father having exercised his right to reside accompanied by her under the cross-border worker status in another Member State, even if he subsequently did not pursue any economic activity in the home Member State. The fact that Eind had made genuine use of his economic free movement of persons rights qualified him for retention of the enjoyment of family reunification under free movement law when he stepped out of being a contributor to the internal market. In light of EU citizenship, defining what could constitute the ‘genuine’ use of non-economic freedom of movement under Article 21(1) TFEU, has grown in importance.

B.  The Right to Return with Family Reunification Rights: Non-Economic but ‘Genuine’ Use of Freedom of Movement In the O case, the protection of non-economically active Union citizens’ family residence rights under free movement law was taken into focus. The Court confirmed that the right to continue to enjoy the same conditions for family reunification on returning home that a Union citizen had enjoyed in a host Member State under free movement law also applies after having exercised non-economic freedom of movement of Article 21(1) TFEU.14 In the specific case, the essential legal issue concerned how the exercise of residence to a host Member State based on non-economic freedom of movement may be sufficiently genuine so as to be recognised as a basis for family residence rights on return to the home Member State. The referring national Dutch court asked whether the exercise of the right



11 Case

C-291/05, Eind, EU:C:2007:771. C-175/78, The Queen v Saunders, EU:C:1979:88, para 10. 13 Case C-291/05, Eind, EU:C:2007:771, para 39. 14 Case C-456/12, O, EU:C:2014:135. 12 Case

The Right to Return as a Family to the Union Citizen’s Home Member State  59 to reside under Article 21(1) TFEU would need to be of a minimum duration in order to have a claim of continued family residence rights on return home to the Member State of nationality.15 The Court followed its established case law regarding the free movement of workers and the derived rights of family members.16 It pointed out that the right to exercise freedom of movement would be obstructed if cross-border workers could not enjoy legal certainty as to the continued protection of their family members’ residence rights in the Union on return to the home Member State.17 The Court found that this rationale also applied to noneconomically active Union citizens and their family members, residing in a host Member State based on Article 21(1) TFEU and Directive 2004/38.18 The Union citizen’s right to return home with a protection of his or her family life thereby does not discriminate based on which of the conditions in the Directive’s Article 7 that the Union citizen is exercising his right of residence. When a Union citizen returns to their home Member State, after having resided ‘solely by virtue of his being a Union citizen’,19 the conditions for a derived residence right for a TCN family in the home Member State member should not be stricter than those provided for in Directive 2004/38. Nevertheless, the Court in O needed to define what it meant to genuinely reside in a host Member State for a non-economically active Union citizen in order to preserve family reunification rights on returning home. First, it found that only residence in accordance with Directive 2004/38 could qualify as such genuine residence.20 Second, it asserted that to merely have resided based on the Directive’s Article 6 would not live up to the threshold of genuinely having exercised the non-economic right to reside, as this did not, to a sufficient degree, reflect an intention of settling in the host Member State.21 Finally, the Court established that only residence in accordance with the conditions of Article 7 of the Directive would prove an intention to settle, and thus qualify as ‘genuine residence’.22 To achieve permanent residence status in the host Member State in accordance with Article 16 would also count in this regard.23 This reasoning by the Court thereby excludes residence based on any other legal grounds than Articles 7 or 16 of Directive 2004/38 as being genuine within the meaning of preserving family reunification rights.

15 ibid, para 32. 16 Case C-370/90, The Queen v Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department, EU:C:1992:296; and Case C-291/05, Eind, EU:C:2007:771. 17 Case C-456/12, O, EU:C:2014:135, paras 45–47. 18 ibid, paras 48–49. 19 ibid, para 50. 20 ibid, paras 47–54. 21 ibid, paras 51–52. 22 ibid, para 53; Case C-673/16, Coman and Others, EU:C:2018:385, para 24; Case C-230/17, Deha Altiner and Ravn, EU:C:2018:497, para 20. 23 Case C-456/12, O, EU:C:2014:135, paras 55–56.

60  Residence and Family Reunification Rights The explicit prerequisite for relying on freedom of movement to achieve favourable conditions for family reunification is that Union citizens show proof of economic agency or self-sufficiency, as this is what is needed to establish residence status under Article 7 of the Directive.24 A Union citizen and family members might stay in a host Member State for more than three months, or several threemonths periods, without the authorities ever recognising their stay as an exercise of genuine residence in accordance with Article 7. It is likely that such absence of formal recognition of residence in the host Member State would bar them from being able to preserve their family life under the concept of ‘genuine residence’ if they return to the Union citizen’s home Member State.

C.  The Right to Return and the Legal Nuances of Directive 2004/38 The right to return with preserved family reunification rights was strengthened in a significant way in Coman. The core issue was the legal effect of same-sex marriages on the Union citizen’s return to his home Member State with a same-sex TCN spouse, when that home Member State does not recognise such marriages in its national legal system.25 The Court interpreted the term ‘spouse’ as it appears in Article 2(2)(a) of the Directive as a gender-neutral term, merely referring to ‘a person joined to another person by the bonds of marriage’.26 Accordingly, a marriage between two persons of the same sex, which has been entered into under the laws of a host Member State, must be recognised by other Member States to which the married couple may exercise the Union citizen’s right to freedom of movement.27 This includes the Union citizen’s home Member State to which he may exercise his right to return under Article 21(1) TFEU, and for which the conditions of the Directive apply by analogy with regard to preserving his right to protection of family life under Article 7 of the EU Charter of Fundamental Rights (the Charter), which he has established with a TCN spouse in a host Member State.28 Granting the home Member State discretion in this area would undermine the effectiveness of freedom of movement under Article 21(1) TFEU and amount to a restriction.29 Again, however, only residence in a host Member State that is ‘genuine’ within the meaning of Article 7 of the Directive will generate such an obligation for the home Member State to recognise the validity of the marriage

24 E Spaventa, ‘Family Rights for Circular Migrants and Frontier Workers: O and B, and S and G’ (2015) 52 Common Market Law Review 753, 766. 25 Case C-673/16, Coman and Others, EU:C:2018:385. 26 ibid, paras 32–34. 27 ibid, paras 35–40, 46. 28 ibid, paras 24–25, 47–51. 29 ibid, paras 39–40.

The Right to Return as a Family to the Union Citizen’s Home Member State  61 and, as a consequence, family reunification rights as protected under Article 7 of the Charter.30 The Ravn case brought forward yet another component of genuine use of freedom of movement, so as to trigger protection of family reunification rights. The judgment established that there must be some temporal continuity between the residence rights that the Union citizen and a TCN family member have enjoyed together in a host Member State and the TCN family member’s application for residence in the Union citizen’s home Member State under the right to return in Article 21(1) TFEU.31 If too much time passes between the Union citizen’s return home to his Member State of nationality and the subsequent residence application made by the TCN family member, the link to the Directive’s family reunification rights, which should apply by analogy, might be broken.32

D.  The Effect of Naturalisation on Family Reunification Rights in Directive 2004/38 The same concept of genuine residence that can preserve a TCN family member’s derived residence rights on the Union citizen’s return to the home Member State came up in a judgment regarding the effect of a Union citizen’s naturalisation to the host Member State’s nationality: the case of Lounes.33 The judgment concerned a Portuguese Union citizen’s naturalisation in the United Kingdom, after having resided there a long time as a permanent resident in accordance with Directive 2004/38, based on which she had established family reunification rights with a TCN spouse. In his Opinion, Advocate General Bot reasoned that a Union citizen’s naturalisation to the host Member State nationality should have the same effect on his family members’ derived residence rights as would a return to the Union citizen’s home Member State.34 This reasoning was motivated by looking at naturalisation in a host Member State as an ultimate sign of genuine residence and integration in that State: To deprive her henceforward of the rights to which she has till now been entitled in respect of the residence of her family members because, by being naturalised, she has sought to become more deeply integrated in the host Member State, would annihilate the effectiveness of the rights which she derives from Article 21(1) TFEU.35

Making the host Member State into the Union citizen’s new Member State of nationality should therefore not make family members’ residence rights any less



30 See

Coutts (n 3) 331. C-230/17, Deha Altiner and Ravn, EU:C:2018:497. 32 ibid, paras 28–35. 33 Case C-165/16, Lounes, EU:C:2017:862. 34 Opinion in Case C-165/16, Lounes, EU:C:2017:407, paras 81–90. 35 ibid, para 86 (emphasis added). 31 Case

62  Residence and Family Reunification Rights obtainable than they were while they were genuinely residing there based on Articles 7 and 16 of the Directive. The Court followed this proposed approach, motivated by ‘the underlying logic that informs Article 21(1) TFEU’: namely, that of ensuring the effet utile of any and all the fundamental freedoms.36 By its judgment, the Court also confirmed that the goal of self-realisation of the moving Union citizen under Directive 2004/38 is to integrate. This motivates why those Union citizens and TCN family members who have been successful in that regard, should also continue to benefit from the free movement rights after the Union citizen’s naturalisation – the ultimate sign of successful integration.37 It should be noted, that the Court in Lounes seemed to draw significance from the fact that the Union citizen had not given up her original Portuguese nationality. Thereby she was a dual citizen of two EU Member States; a status often treated favourably by the Court with regard to determining the scope of Union law.38 Such a reasoning, however, exacerbates the problem of reverse discrimination as the naturalised UK national in the Lounes case will have been able to conserve her more beneficial conditions for family reunification rights with her TCN spouse. This puts that family in a better position than other UK nationals under domestic law, who do not come within the scope of Union law, as well as those Union citizens who do not naturalise, but are only residing in the United Kingdom based on freedom of movement. The consequences of such reverse discrimination will surely be felt during the unfolding effects of Brexit on family reunification rights in the United Kingdom. Regardless of the strides to protect the Union citizen’s retention of family reunification rights with his TCN family members, a persistent issue of the right to reside in EU free movement law remains: the particular vulnerability of the TCN family member, whose rights depend on either maintaining a connection to a Union citizen, or dissolving that connection in the right way, at the right time, and within the right territory.

II.  Retained Residence Rights of Family Members The fluidity of residential membership of a society means that the Union citizen’s final departure from the host Member State either immediately cuts off, or at least weakens his integrational link.39 To leave the host Member State for a longer period or leave without a demonstrated intention of returning will, without 36 Case C-165/16, Lounes, EU:C:2017:862, para 58. 37 ibid, paras 50–61. Coutts (n 3) 330. 38 Case C-165/16, Lounes, EU:C:2017:862, paras 50–51. Compare with Case C-148/02, Garcia Avello, EU:C:2003:539, but note the limits to the benefits of dual Member State nationality in Case C-434/09, McCarthy, EU:C:2011:277. 39 R Bauböck, ‘The Three Levels of Citizenship within the European Union’ (2014) 15 German Law Journal, Special Issue: EU Citizenship: Twenty Years On 751, 756. See Case C-162/09, Lassal, EU:C:2010:592, para 55.

Retained Residence Rights of Family Members  63 further formality, put an end to the Union citizen’s lawful residence status there.40 The membership bond that residence status creates between a Union citizen and a local community in a host Member State is thus easily broken by ending factual residence.41 If the Union citizen has acquired permanent residence status in the host Member State under Article 16 of Directive 2004/38, his absence from the territory for more than two years will terminate the bond that this status represents.42 Furthermore, continuity of residence is broken by any expulsion decision that is enforced against the Union citizen, meaning that previous residence status in that host Member State cannot be accounted for in the case of a subsequent return to that Member State following an expulsion.43 For the purpose of equal treatment regarding social and tax advantages, a working Union citizen may preserve his link to a national job market even if he moves residence out of the national territory,44 or returns to that job market after a shorter absence.45 However, rights flowing from the Union citizen’s actual and lawful residence status,46 such as those derived by accompanying family members, are from the outset lost if that territorial residence ends as a result of the Union citizen’s departure.47 There are, however, special conditions for the family members’ retention of those derived free movement rights; whether they themselves are Union citizens or whether they are TCN.

A.  The Independence of the Individual Union Citizen in Directive 2004/38 When the Union citizen loses his lawful residence status in a host Member State, whether by an expulsion measure or by his voluntary departure, this may have direct implications for the legal standing of any family members who have been residing with him in the host Member State. Family members who are themselves Union citizens may, however, retain a right to reside in their own right under Directive 2004/38. Therefore, their own residence status is not necessarily affected by changed circumstances in family relationships.48 This way, the right to reside,

40 Case C-218/14, Singh and Others, EU:C:2015:476, para 62. 41 Bauböck (n 39) 756. 42 Article 16(4) of Directive 2004/38. 43 Article 21 of Directive 2004/38. 44 As seen in Case C-212/05, Hartmann, EU:C:2007:437. 45 Note how this was considered in Case C-138/02, Collins, EU:C:2004:172, para 28. 46 Several free movement rights are ancillary to first having established residence, see Opinion in Case C-456/12, O, EU:C:2013:837, para 99. 47 Case C-40/11, Iida, EU:C:2012:691, paras 54–60; Case C-115/15, NA, EU:C:2016:487, para 34. See also Case C-218/14, Singh and Others, EU:C:2015:476. 48 Articles 12(1) and 13(1) of Directive 2004/38.

64  Residence and Family Reunification Rights when directly attached to the status of EU citizenship, has an empowering quality for the individual as it lessens the mutual dependency between family members in a family consisting of Union citizens. In addition, there is no lower age limit for enjoyment of free movement rights. Union citizens, who are minors, may rely on Article 21(1) TFEU, so long as there is fulfilment of the residence conditions of the Directive to establish their independent residence rights in a host Member State.49 However, the distinction between the Union citizen and the TCN in the family is significantly more relevant. The right to reside in a host Member State that may be enjoyed by accompanying TCN family members is only a derived right, wholly dependent on the lawful residence status of the Union citizen in the family. This makes TCN family members vulnerable as they do not have the possibility to directly rely on the status of EU citizenship and free movement law to independently enjoy a right to reside in the EU.50 If the family relationship is dissolved while residing in the host Member State, there are, however, certain conditions under which the family members’ derived residence right transforms into being their own independent, self-standing rights of residence.51

B.  The Vulnerability of the TCN Spouse in Directive 2004/38 The characteristic of residence rights as derived rights, enjoyed only by TCN family members by virtue of their function to support a Member State national’s exercise of freedom of movement, has remained in light of the status of EU citizenship and non-economic freedom of movement.52 Directive 2004/38 does however contain provisions to, under certain circumstances, protect TCN family members who have resided with a Union citizen, allowing them to claim residence rights of their own in the host Member State if the relationship with the Union citizen dissolves. Articles 12–13 of the Directive give the special circumstances in which family members of a Union citizen retain a right to reside in the host Member State in the event of the death of the Union citizen, or divorce between the Union citizen and an accompanying spouse. Following these special conditions, family members residing based on such retained residence rights may also acquire permanent residence status.53 Consequently, TCN family members may retain a right of residence in the event of the death of the Union citizen, provided that they had been residing 49 That there is no lower age limit for the exercise of Article 21(1) TFEU has been confirmed in Case C-200/02, Zhu and Chen, EU:C:2004:639; and Case C-165/14, Rendón Marín, EU:C:2016:675. 50 G Barrett, ‘Family Matters: European Community Law and Third-Country Family Members’ (2003) 40 Common Market Law Review 369, 384–85. 51 Case C-257/00, Givane and Others, EU:C:2003:8, para 31. 52 G Davies, ‘The Right to Stay at Home: A Basis for Expanding European Family Rights’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017) 471 f. 53 Articles 17–18 of Directive 2004/38.

Retained Residence Rights of Family Members  65 together with the Union citizen in the host Member State for at least one year before the death of the Union citizen.54 In the event of divorce, the TCN spouse has a protected right to reside if the Directive’s requirements for how long the duration of the marriage must be are fulfilled, and if the divorce proceedings were initiated while the Union citizen still resided in the host Member State. Special conditions apply in cases of domestic abuse.55 However, as seen in Singh II and NA, a TCN spouse will normally lose a right to reside in the host Member State when the Union citizen spouse merely departs from the host Member State without the intention of returning.56 Only in the event of the Union citizen’s death in the host Member State, or in the case of divorce proceedings initiated before the departure of the Union citizen from the host Member State, may a TCN spouse retain a right of residence there.57 A problematic side effect of this is how a Union citizen can use the threat of departure to put pressure on a TCN spouse whose residence security depends on when and where divorce proceedings begin. This was seen in the NA case where the special protection to victims of domestic violence in Article 13(2)(c) of the Directive was not available to a TCN spouse as the Union citizen spouse had departed from the host Member State before the legal separation began.58 The spouse in NA was ‘saved’ by the fact that her children were the children of a former cross-border worker in the host Member State (the departed spouse). The ­children therefore had a right to reside derived from the Workers Regulation for the continuation of their schooling in the host Member State. Their mother could in turn derive a right to reside from the children’s residence rights, as she was the primary caregiver, and her presence was necessary in order for them to enjoy their right to education in the host Member State.59 This jurisprudence creates unequal treatment of TCN spouses, depending on whether they have children or not.60 A childless TCN spouse in a similar situation will be left with no links to free movement law if the Union citizen spouse merely leaves the territory of the host Member State.61

C.  Deriving Residence Rights from a Child of a Worker An alternative legal basis for children of workers, and in extension, their primary caregivers, to retain a right to reside is found in what is now Article 10 of

54 Article 12(2) of Directive 2004/38. 55 Article 13(2)(c) of Directive 2004/38. 56 Case C-218/14, Singh and Others, EU:C:2015:476; and Case C-115/15, NA, EU:C:2016:487. 57 Case C-115/15, NA, EU:C:2016:487, para 50. 58 ibid. 59 ibid, para 67. 60 A tendency in EU free movement law noted by Spaventa before the judgment in Case C-115/15, NA, EU:C:2016:487 came out, Spaventa (n 24) 766. 61 As was the situation in Case C-218/14, Singh and Others, EU:C:2015:476.

66  Residence and Family Reunification Rights Regulation 492/2011.62 This provision guarantees that children of cross-border workers, regardless of the child’s nationality, have equal access to general education and vocational training programmes in the host Member State in which they have installed themselves with the worker. In the case of Baumbast and R, the Court made clear that Article 10 provided a protected residence right of the child up until the completion of their education.63 In addition, the primary caregiver, whether a Union citizen or not of a child protected under this provision, will derive a right to reside from the child’s residence status, which in turn is derived from the cross-border worker status.64 This protection of the children and family members of a cross-border worker stems from the pre-citizenship rationale of protecting the individual in a free movement of workers context.65 Even if the cross-border worker ceases employment before the child commences schooling, or the child ceases to reside with the worker in the host Member State, the child continues to retain a right of residence so long as they are pursuing a general educational programme in the host Member State, and have not yet reached adulthood.66 As was confirmed by the Court in Ibrahim, residence on this ground does not have any conditions of economic self-sufficiency, meaning also that dependence on social assistance will not disqualify the child or the caregiver from residence based on Article 10 of Regulation 492/2011.67 In addition, residence on this ground generates the right to equal treatment for access to social advantages for the child and their caregiver as these are the equal treatment rights of workers.68 However, residence rights on this basis only run up until the child reaches adulthood, or longer if the child is dependent on the caregiver for pursuance of higher education.69 At that point, the right to reside of the TCN child and TCN parent expires and they must find an alternative legal basis for residence. Regardless of a long period of legal residence on this basis, it cannot lead to acquisition of permanent residence status, which the Court made clear in Alarape and Tijani.70 This is so, as only residence based on Directive 2004/38 can lead to the awarding of permanent residence status.71 To ‘have resided legally’ within the meaning of the Directive’s Article 16, can only refer to periods of residence that have materially been in accordance with the conditions of

62 Replacing the repealed Article 12 of Regulation 1612/68. 63 Case C-413/99 Baumbast and R, EU:C:2002:493, paras 61–63. 64 ibid, paras 71–75. Barrett (n 50) 389 f. 65 N Nic Shuibhne, ‘The Developing Legal Dimensions of Union Citizenship’ in A Arnull and D Chalmers (eds), The Oxford Handbook of European Union Law (Oxford, Oxford University Press, 2015) 496. 66 As was made clear in Case C-480/08, Teixeira, EU:C:2010:83. 67 Case C-310/08, Ibrahim and Secretary of State for the Home Department, EU:C:2010:80, para 59. 68 Advocate General Wathelet considered this precedence in his Opinion in Case C-67/14, Alimanovic, EU:C:2015:210, paras 119–22 as an alternative basis for residence and equal treatment for the Alimanovic family. 69 Case C-480/08, Teixeira, EU:C:2010:83, paras 85–87. 70 Case C-529/11, Alarape and Tijani, EU:C:2013:290. 71 Case C-424/10, Ziolkowski and Szeja, EU:C:2011:866, paras 46–51.

Retained Residence Rights of Family Members  67 its Article 7.72 That reasoning demonstrates how the norms of Directive 2004/38, since its adoption, have progressively absorbed the meaning of genuine use of freedom of movement, and integration, in the Court’s case law. Residence based on the Workers Regulation, although it does not require economic self-sufficiency, is therefore not as attractive for protected continuity of residence. It cannot bring with it the enhanced residence security of permanent residence status. Advocate General Wathelet, in his Opinion in Alimanovic, considered that parents, who are themselves Union citizens, and who have formerly had worker status in the host Member State, but now do not fulfil the economic conditions for residence in accordance with Article 7 of Directive 2004/38, should be able to base their residence security on their child’s status under the Worker Regulation.73 On this basis, they may then have equal treatment rights for social assistance benefits, thus avoiding the derogations to equal treatment of Article 24 of the Directive. His reasoning was in line with the Teixeira case, where the Court had stated that the adoption of Directive 2004/38 did not affect the meaning of Article 10 in Regulation 492/2011 as an independent basis for residence rights and where it accepted a Union citizen parent’s right to reside in the United Kingdom, although she was not economically self-sufficient.74 In its subsequent judgment in Alimanovic, the Court did, however, not refer to the reasoning of the Advocate General in this regard, and did not touch on this special legal basis for residence, nor the possible equal treatment rights that could flow from it. This challenges whether the precedence of the Teixiera case still stands. In Alimanovic, the Court reasoned solely on the fact that the Alimanovic family were no longer workers and were only lawfully residing as active jobseekers under Article 14(4)(b) of the Directive.75 Given that this legal basis for their residence immediately reduced their equal treatment rights in accordance with the wording of Article 24(2), as jobseekers residing under Article 14(4)(b), they had no right to social assistance.76 In light of Alimanovic, it is uncertain how the case law reconciles the reasoning on residence and self-sufficiency in relation to residence based on Article 10 of Regulation 492/2011, with the limits to equal treatment and residence rights of Directive 2004/38. Alimanovic and the following judgments of García-Nieto,77 and Commission v United Kingdom,78 all ignored the position of the child as a bearer of residence and equal treatment rights, to be derived by their adult family members. Instead, these cases made social equal treatment solely dependent on the adult Union citizen’s status under Article 7 of the Directive.79 72 Case C-529/11, Alarape and Tijani, EU:C:2013:290, para 35. 73 Opinion in Case C-67/14, Alimanovic, EU:C:2015:210, para 119. 74 Case C-480/08, Teixeira, EU:C:2010:83, para 56. 75 Case C-67/14, Alimanovic, EU:C:2015:597, paras 56–57. 76 ibid, paras 56–60. 77 Case C-299/14, García-Nieto and Others, EU:C:2016:114. 78 Case C-308/14, Commission v United Kingdom, EU:C:2016:436. 79 C O’Brien, ‘The ECJ Sacrifices EU Citizenship in Vain: Commission v United Kingdom’ (2017) 54 Common Market Law Review 209, 238 f. See also Coutts (n 3) 325–27.

68  Residence and Family Reunification Rights The entanglement of the different legal bases for caregivers’ derived residence rights from Union citizen children, depending both on territorial factors as well as on whether the adult caregiver is a Union citizen themselves, has been exacerbated by the development of the Zhu and Chen jurisprudence, allowing TCN parents to enjoy residence rights in a host Member State from their Union citizen child under Article 21(1) TFEU, so long as they have the sufficient economic resources to enable that child’s exercise of freedom of movement.80

D.  Enabling a Child’s Enjoyment of Residence Rights Under Article 21(1) TFEU The precedence of the Zhu and Chen case applies to minor Union citizens and their TCN caregivers without a connection to the free movement of workers and can be of relevance for children who are not yet in school. In Zhu and Chen, the TCN parent of a Union citizen infant derived a right of residence under what is now Article 21(1) TFEU in her role as the enabler of the infant’s lawful residence in accordance with the requirements of the Residence Directive 90/364. As the mother, a millionaire, provided the necessary economic resources to fulfil the requirement of self-sufficiency, she, out of necessity, had to be granted a right to reside in the host Member State with the Union citizen infant.81 A Union citizen child therefore has the right to be accompanied by their primary caregiver when exercising freedom of movement under Article 21(1) TFEU in the interest of the effet utile of the right to non-economic free movement.82 There is therefore no lower age limit for the enjoyment of freedom of movement as an EU citizenship right.83 Nor is there a requirement regarding the origin of the economic resources which enables a TCN parent to furnish the Union citizen with their income.84 However, the subsequent Alokpa case demonstrated that the economic resources for the Union citizen child’s self-sufficiency must be available from the commencement of residence in the host Member State.85 There is no basis in Article 21(1) TFEU and Directive 2004/38 for a TCN parent to claim the necessary work permits in a host Member State in order to start earning an income, and from that, fulfil the self-sufficiency condition of Article 7(1)(b) for his Union citizen children.

80 Case C-200/02, Zhu and Chen, EU:C:2004:639. See further K Hyltén-Cavallius, ‘Who Cares? Caregivers’ Derived Residence Rights from Children in EU Free Movement Law’ (2020) 57 Common Market Law Review 399. 81 Case C-200/02, Zhu and Chen, EU:C:2004:639, paras 42–47. 82 Case C-40/11, Iida, EU:C:2012:691, para 69; Case C-200/02, Zhu and Chen, EU:C:2004:639, para 45. 83 Case C-165/14, Rendón Marín, EU:C:2016:675, para 41. 84 Case C-93/18, Bajratari, EU:C:2019:809, para 30; Case C-165/14, Rendón Marín, EU:C:2016:675, para 48; Case C-200/02, Zhu and Chen, EU:C:2004:639, para 30. 85 Case C-86/12, Alokpa and Moudoulou, EU:C:2013:645, paras 29–31.

Retained Residence Rights of Family Members  69 Only TCN parents who are already self-sufficient can rely on the Zhu and Chen precedence. In the 2019 judgment in Bajratari, the Court applied the Zhu and Chen reasoning to the situation of Union citizen minors, with TCN parents, residing in a host Member State.86 In Bajratari, the precedence regarding Union citizens’ fundamental right to exercise freedom of movement under Article 21(1) TFEU regardless of age, and accompanied by their primary caregiver, was reconfirmed. The legal issue was whether income provided by a TCN parent from work he had carried out in the host Member State without a valid work or residence permit, could legitimately be relied on by the Union citizen children to fulfil Directive 2004/38’s requirement of sufficient resources not to become a burden. The Court reiterated its reasoning in Zhu and Chen that the Directive does not lay down a requirement as to the origin of the economic resources a Union citizen lives by.87 With emphasis on the fact that the father and his employer had paid taxes and social contributions in accordance with national law, throughout the father’s employment in the host Member State and, since there was no indication that the family had ever relied on the social assistance system of the host Member State, it would run contrary to the objective of Directive 2004/38 ‘to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States’, to not recognise that income as fulfilment of the condition of having sufficient economic resources.88 What made the Bajratari family stand out from other families who have been assessed more harshly under the norms of the Directive, such as the Dano and the Alimanovic families, seemed to be the economic activity and contribution that the father’s work had generated in the host Member State, keeping the family members away from the risk of becoming a financial burden.89 The situation in Bajratari – being somewhere between the undeniable resourcefulness of the applicants in the Zhu and Chen scenario, and the elimination from free movement rights of the TCN mother with neither work permit, nor income in Alokpa – unleashes the issue of how far the legal distance is between deriving residence rights from a Union citizen child under, respectively, Article 21(1) TFEU and Directive 2004/38, and residence rights derived under the genuine enjoyment doctrine of Article 20 TFEU. Under the latter, economic activity or self-sufficiency are irrelevant criteria for the sake of safeguarding a Union citizen’s continued residence within the Union’s territory. The legal roots of the case law that has developed the genuine enjoyment doctrine of Article 20 TFEU, are found in the original common market rationale that an effective free movement of workers regime necessitates the protection of the worker’s family life in the host Member State. 86 Case C-93/18, Bajratari, EU:C:2019:809. 87 ibid, paras 30–32. 88 ibid, notably para 47. 89 Coutts refers to this as showing the right ‘attitude’ in terms of integrating in a host Member State, see Coutts (n 3) 326–30.

70  Residence and Family Reunification Rights

E.  The Territorial Aspect of Residence Rights: Within Host or Home Member State An underlying principle stemming from the original free movement rights framework for workers, is that family members of a cross-border worker should be able to install themselves together with the worker in the host Member State.90 In older secondary legislation on workers’ rights, after having ceased employment in a host Member State, the cross-border worker and the family might enjoy a right to remain on the condition that the family had obtained genuine residence in the host Member State before that cessation.91 However, free movement law has never explicitly aimed to protect residence of family members of a cross-border worker who wants to arrange his family life so that he lives separated from them in another Member State, while his TCN family members reside in his home Member State.92 The edges to the residence rights of free movement law thereby necessitate that both the worker and any TCN family members reside within the same host Member State territory. In an early judgment on workers’ family reunification rights, Diatta, the Court confirmed that a cross-border worker may arrange a family life situation that involves separate residences within a host Member State.93 The cross-border worker resides and works in one location, whereas the family members reside in another.94 This means that the family members’ derived right to reside applies throughout the whole territory of the host Member State. The territorial condition is important as the residence right only applies so long as the worker and the family members reside within the same national territory.95 Under the exercise of freedom of movement, the TCN family member’s derived residence right is therefore never a right to reside wherever within the European Union while the cross-border worker resides in a different host Member State. Normally, the family members will lose their residence rights if the worker departs from the host Member State.96 For a similar reason frontier cross-border workers, who reside in their home Member States while commuting to a Member State of work, do not come within the scope of protected family residence rights of free movement law as the relevant

90 Case C-165/16, Lounes, EU:C:2017:862, paras 52 and 51. See also Case C-127/08, Metock and Others, EU:C:2008:449. 91 Regulation (EEC) No 1251/70 of the Commission of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State. 92 A problem acknowledged by Advocate General Kokott in Case C-218/14, Singh and Others, EU:C:2015:476. See the Opinion in Case C-218/14, Singh and Others, EU:C:2015:306, para 48. See the notable exception to this in Case C-60/00, Carpenter, EU:C:2002:434. 93 Case C-267/83, Diatta v Land Berlin, EU:C:1985:67, paras 16–20. 94 ibid, paras 19–20. 95 Confirmed also in Case C-40/11, Iida, EU:C:2012:691, para 64. 96 As confirmed by the Court in Case C-40/11, Iida, EU:C:2012:691; and Case C-218/14, Singh and Others, EU:C:2015:476.

The Right to Reside Within the EU: Article 20 TFEU  71 secondary legislation does not apply to the Union citizen’s home Member State. Exceptionally, if the deportation of the family member would have a restrictive impact on their cross-border pursuit of economic activity under Articles 45 and 56 TFEU, these primary law provisions can ensure protection of the Union citizen’s fundamental right to respect for family life.97 This was seen in the rather unique Carpenter case concerning a service provider’s right to family life in the home Member State while providing cross-border services.98 The rationale of removing restrictions on the exercise of freedom of movement, has this way extended family reunification rights with a TCN family member in some situations to apply to the territorial space of the Union citizen’s home Member State. That same rationale has found its way to the special protection of the effet utile of the status of EU citizenship through the Court’s genuine enjoyment doctrine.99 Here, residence rights in the Union citizen’s home Member State may be derived by TCN family members – without any direct applicability of free movement law – based on ensuring the effectiveness of the status of EU citizenship under Article 20 TFEU.100 A TCN family member may derive a right to reside in the Union citizen’s home Member State if a deportation would compel the Union citizen to leave the European Union’s territory as a whole, thus depriving the Union citizen of the genuine enjoyment of the substance of the rights conferred by the status of EU citizenship.101 However, the vulnerability of the TCN family member seen in Directive 2004/38, persists also with regard to Article 20 TFEU situations as the TCN’s derived residence right is no stronger than the Union citizen’s dependency on that particular family member for enabling the Union citizen to continue their own existence within the Union as a whole.102

III.  The Right to Reside Within the EU: Article 20 TFEU The emergence of the genuine enjoyment doctrine – referring to protection of access to the core substance of the rights that a Union citizen may enjoy under Article 20 TFEU – has introduced an alternative legal basis for derived residence rights for TCN family members. The doctrine may apply in situations where 97 Case C-60/00, Carpenter, EU:C:2002:434, see notably paras 39–46. 98 Case C-60/00, Carpenter, EU:C:2002:434. 99 First established in Case C-135/08, Rottmann, EU:C:2010:104; and Case C-34/09, Ruiz Zambrano, EU:C:2011:124. 100 On the extension of rights to TCN through the status of EU citizenship under Article 20 TFEU, see C Raucea, ‘European Citizenship and the Right to Reside: “No One on the Outside Has a Right to be Inside?”’ (2016) 22 European Law Journal 470. 101 Case C-82/16, KA and Others, EU:C:2018:308, para 51, and case law there cited. 102 See the Court’s guidance for assessing the nature of dependency that must exist between the Union citizen and the TCN family member in Case C-82/16, KA and Others, EU:C:2018:308, paras 63–75; and Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354, paras 63–72.

72  Residence and Family Reunification Rights family reunification rights cannot be obtained based on freedom of movement, a legal scenario first discerned and established in the Ruiz Zambrano judgment,103 and subsequently modified and further developed in the case law that followed.

A.  The Right to Reside Without Exercising Freedom of Movement The Ruiz Zambrano jurisprudence,104 elaborated in several following cases and most recently in Chavez-Vilchez105 and KA and Others,106 provides that if a Member State measure to deport a TCN family member would have the result that a dependent Union citizen would be compelled to also leave the territory of the Union, then Article 20 TFEU will extend a right to reside to the TCN.107 Typically, this would be the case if a Union citizen child is dependent on a TCN primary caregiver who is to be deported from the Union,108 but it may also apply to other family members where there is a relationship of dependency. In KA and Others, the Court held that, in the case of adults, the dependence must be so strong so that there could be ‘no form of separation’ between the Union citizen and the TCN family member.109 In practice, the Court has not (yet) perceived spouses, lawful cohabitants, and adult children to be eligible for this special protection under Article 20 TFEU as adults are expected to not be so dependent as to be forced to leave the Union if a TCN family member were expelled.110 In addition, the Court has been clear that residence rights based on Article 20 TFEU are subsidiary to residence rights based on the exercise of freedom of movement. The genuine enjoyment doctrine only applies if residence based on the fundamental freedoms and Directive 2004/38 are not applicable.111 This is why it will mostly apply to children, who cannot make use of their free movement rights on their own, nor sustain their existence in their home Member State of nationality without the presence of their primary caregiver; de facto compelling them to leave the Union as a whole if their TCN primary caregiver is expelled.112

103 Case C-34/09, Ruiz Zambrano, EU:C:2011:124. 104 ibid. 105 Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354. 106 Case C-82/16, KA and Others, EU:C:2018:308. 107 ibid, paras 51–52; Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354, para 63; Case C-34/09, Ruiz Zambrano, EU:C:2011:124, paras 40–44. 108 Case C-165/14, Rendón Marín, EU:C:2016:675, para 78; Case C-304/14, CS, EU:C:2016:674, para 32; Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354, paras 71–74. 109 Case C-82/16, KA and Others, EU:C:2018:308, para 65. 110 As was at issue in both Case C-82/16, KA and Others, EU:C:2018:308; and Case C-434/09, McCarthy, EU:C:2011:277. See also Davies (n 52) 486. 111 Case C-115/15, NA, EU:C:2016:487, paras 72–74. 112 Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354, paras 68–72; Case C-34/09, Ruiz Zambrano, EU:C:2011:124, para 4.

The Right to Reside Within the EU: Article 20 TFEU  73

B.  Protecting the Existential Dimension of EU Citizenship There is an understandable rationale for protecting a Union citizen’s right to reside in the Union, and thereby, the derived residence rights of a TCN family member whose presence is necessary to enable that residence. If taking the view that residence somewhere in the Union is an essential prerequisite if the Union citizen one day is to self-realise through the exercise of freedom of movement, it is an existential necessity to enable the Union citizen to be present in the Union.113 The logic of ensuring the effet utile of Article 20 TFEU is therefore not far removed from the internal market rationale of ensuring the effectiveness of freedom of movement.114 The Zhu and Chen and Carpenter cases laid the ground for this kind of reasoning by highlighting how much Union citizens, particularly minors, might depend on the presence of a TCN family member in order to make use of their free movement rights.115 Nevertheless, there are conceptual as well as legal certainty concerns that can be raised regarding this ‘relationship of dependency’ as a yardstick for determining both the right to reside in the Union of a TCN family member116 and whether a Union citizen risks being deprived of the possibility to enjoy the substance of EU citizenship of Article 20 TFEU.117 The genuine enjoyment doctrine gives no legal certainty regarding how long a TCN primary caregiver may enjoy a derived right of residence from their child. Does the TCN family member’s derived residence right expire as soon as the risk of depriving the child of enjoyment of EU citizenship rights is lifted?118 When the child reaches adulthood or leaves school, or moves away from the TCN parent, the derived residence conferred under Article 20 TFEU should in theory fall away, following a similar rationale to family residence rights based on Article 12 of Regulation 1612/68.119 Following the reasoning that only residence in accordance with Directive 2004/38 can lead to permanent residence status, such enhanced residence security might be unavailable for residence based on Article 20 TFEU. Although the Court in cases following Ruiz Zambrano firstly narrowed the scope of application of the genuine enjoyment doctrine to cover only ‘exceptional’ cases, it nevertheless let it also protect TCN parents of Union citizen children who 113 Davies (n 52) 471; Coutts (n 3) 333 f. 114 Coutts (n 3) 333 f. 115 Case C-200/02, Zhu and Chen, EU:C:2004:639, para 45; Case C-60/00, Carpenter, EU:C:2002:434, paras 38–39; Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354, para 63. 116 Relevant also when a TCN family member of the ascending line is to join in the host Member State, see Case C-423/12, Reyes, EU:C:2014:16; and Case C-1/05, Jia, EU:C:2007:1. Also relevant for TCN caregivers’ derived rights of residence based on Article 12 of the Workers Regulation as seen in Case C-413/99 Baumbast and R, EU:C:2002:493; and Case C-529/11, Alarape and Tijani, EU:C:2013:290. 117 Davies (n 52) 475. 118 F Strumia, ‘Looking for Substance at the Boundaries: European Citizenship and Mutual Recognition of Belonging’ (2013) 32 Yearbook of European Law 432, 450. 119 Case C-529/11, Alarape and Tijani, EU:C:2013:290, paras 39–40.

74  Residence and Family Reunification Rights have another parent who is also a Union citizen. In Chavez-Vilchez, the Court found that even though a Union citizen child might have a Union citizen parent, who, at least in theory, could care for the child in the Union, there may be such a relationship of dependence between the Union citizen child and their TCN caregiver that the child would nevertheless be compelled to go with that parent out of the Union in a case of deportation.120 As a result, regardless of the presence of a Union citizen parent, the TCN parent may still be in a position to derive a right of residence under Article 20 TFEU so long as they can prove the important criterion of dependency.121 The troublesome side effect is that the TCN’s protection against deportation is better the more removed the other parent is from the family picture, as the relationship of dependency will then be easier to prove.122 Although the Union citizen child’s best interests under Article 24(2) of the Charter are well preserved vis-a-vis their relationship to the TCN parent this way, it encourages the creation of conflicts and distances between a TCN parent and a Union citizen parent of that same child, as there is an incentive to tie the child’s dependency strongly to only the TCN parent. To emphasise the child’s dependency on one sole parent thereby involves a narrowing down of what constitutes the best interests of the child, compared with what the European Court of Human Rights would usually do in their interpretation of that fundamental right.123

C.  The Genuine Enjoyment Test: A Right to Reside Somewhere in the Union The status of EU citizenship under Article 20 TFEU protects the individual Union citizen from Member State measures that would infringe his right to reside within the Union – which in turn is the prerequisite for the enjoyment of the free movement rights, and other rights, that the status of EU citizenship confers on the individual.124 If a Union citizen depends on a TCN family member for the person’s subsistence in the Union, the status of EU citizenship necessitates that Article 20 TFEU confers a right to reside to the TCN family member.125 Residence rights

120 Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354, paras 71–72. 121 ibid, paras 73–77. 122 This dependence was not present in Case C-40/11, Iida, EU:C:2012:691, where the child had moved to another host Member State with her Union citizen parent, leaving the TCN father behind. To not have her TCN father with her was therefore not a restriction on her enjoyment of her Article 20 TFEU rights. See para 76. 123 F Staiano, ‘Derivative Residence Rights for Parents of Union Citizen Children under Article 20 TFEU: Chavez-Vilchez’ (2018) 55 Common Market Law Review 225, 235. 124 See analysis of the different narratives on Union territory in EU citizenship case law by Nic Shuibhne, ‘The “Territory of the Union” in EU Citizenship Law’ (n 8). 125 Case C-86/12, Alokpa and Moudoulou, EU:C:2013:645, para 32.

The Right to Reside Within the EU: Article 20 TFEU  75 based on Article 20 TFEU thereby appears as a ‘safety vent’ when residence rights based on free movement law are unavailable.126 The logic of this safety vent makes Article 20 TFEU mostly relevant in the Union citizen’s relationship with the home Member State. If the TCN caregiver fails to provide sufficient resources for the child and themselves in a host Member State in accordance with Directive 2004/38, as was the case in Alokpa,127 the child and parent should, if possible, return to the child’s Member State of nationality, where they can claim a right of residence based on Article 20 TFEU.128 Given the reasoning in the O case, regarding the genuine residence that is required in order for a non-economically active person to enjoy family reunification rights on return to the home Member State, it is not likely that the child and caregiver could assert residence rights for the TCN parent in the child’s home Member State on other Union law grounds than Article 20 TFEU.129 If they had been able to do so in the Alokpa case, they would have been able to stay in the host Member State. Raucea, in her analysis of the genuine enjoyment doctrine, rightly challenges the personal scope of EU citizenship rights, since, under Article 20 TFEU, TCN family members have become such an essential component in the Union citizen’s very possibility to be within the Union.130 Why should TCNs then not be able to acquire the formal status of EU citizenship based on the rights that are already extended to them under the genuine enjoyment doctrine?131 The scenario of the Alokpa case endorses Raucea’s argument: if the TCN mother had been able to enter into the status of EU citizenship, her economic free movement rights in the host Member State would have been immediate, enabling her to support and care for her Union citizen children.

D.  The Intrinsic Connection between Freedom of Movement and the Genuine Enjoyment Doctrine The Court has oftentimes reiterated that there is an ‘intrinsic connection’ between the right to freedom of movement and the genuine enjoyment doctrine.132 That connection was seen in Rendón Marín where the Court indicated that the right 126 Case C-115/15, NA, EU:C:2016:487, para 74. S Reynolds, ‘Exploring the “Intrinsic Connection” Between Free Movement and the Genuine Enjoyment Test: Reflections on EU Citizenship After Iida’ (2013) 38 European Law Review 376. 127 Case C-86/12, Alokpa and Moudoulou, EU:C:2013:645, paras 31–32. 128 ibid, paras 33–34. See also Case C-165/14, Rendón Marín, EU:C:2016:675. 129 Case C-456/12, O, EU:C:2014:135. 130 Raucea (n 100). 131 ibid, 476 and 483. 132 Case C-40/11, Iida, EU:C:2012:691, para 72; Case C-87/12, Ymeraga and Ymeraga-Tafarshiku, EU:C:2013:291, para 37; Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354, para 64; Case C-165/14, Rendón Marín, EU:C:2016:675, para 75.

76  Residence and Family Reunification Rights of residence under Article 20 TFEU might also apply to a Union citizen child and their TCN caregivers in the host Member State, if a return to the home Member State of the child is in practice impossible due to a lack of social or linguistic ties or similar reasons.133 Accordingly, while Article 21(1) TFEU and the norms of Directive 2004/38 should take precedence, Article 20 TFEU applies as a last resort to ensure a right to reside within the integral territory of the European Union, even if it is a host Member State that must be made ultimately responsible for it.134 The implicit message of Article 20 TFEU seems to be that anywhere in the Union has potential for being the place for a Union citizen to just ‘be present’, when the alternative is a forced departure from its territory as a whole.135 There is, however, a gap of legal protection in the space beyond the edges of Article 21(1) TFEU and Directive 2004/38, but where Article 20 TFEU materially does not apply. Failure of fulfilment of the Directive’s conditions, as well as not being able to show a strong enough bond of dependency to trigger Article 20 TFEU, will place a Union citizen and TCN family member in that legal space beyond the scope of EU law and fundamental rights review under the Charter. Furthermore, once residence is established under Article 20 TFEU, the dependency aspect of the genuine enjoyment doctrine continues to be of pivotal importance for the strength of the TCN family member’s residence security in the Union. If the TCN parent’s presence in the Union ceases to be necessary in order for the child to genuinely enjoy their EU citizenship rights, the TCN is at risk of losing the necessary link to the status of EU citizenship, and will no longer have a residence right protected by that status.136 In Dereci, the Court reasoned that by fault of the dependency criterion, the applicants in the case were not within the scope of Union law, thereby beyond the edges of the Charter’s protection as well.137 In subsequent case law, notably affirmed in Chavez-Vilchez, the Court has nuanced the linkage between the genuine enjoyment doctrine and the Charter.138 Instead, it now asserts that the Charter’s fundamental rights standards, notably its right to family life and the child’s best interests, must be taken into account when assessing the applicants’ bond of dependency.139 It is, however, not clear from this case law, whether fundamental rights considerations could overtake the special dependency bond altogether in a

133 Case C-165/14, Rendón Marín, EU:C:2016:675, para 79. On the link between the right to stay in the Union and in practice finding a home somewhere within the Union’s territory, see Nic Shuibhne, ‘The “Territory of the Union” in EU Citizenship Law’ (n 8) 19. 134 Case C-115/15, NA, EU:C:2016:487, para 74. 135 Azoulai (n 8) 190. 136 As was seen in Case C-40/11, Iida, EU:C:2012:691; and Case C-87/12, Ymeraga and ­Ymeraga-Tafarshiku, EU:C:2013:291. 137 Case C-256/11, Dereci and Others, EU:C:2011:734, paras 65–74. 138 Compare Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354, paras 69–70 with Case C-256/11, Dereci and Others, EU:C:2011:734. 139 Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354, paras 69–70; Case C-82/16, KA and Others, EU:C:2018:308, paras 71–72.

The Right to Reside Within the EU: Article 20 TFEU  77 scenario where the applicant Union citizen ‘outgrows’ their special dependency to the TCN family member, and is no longer as compelled to leave the Union with them. The legal space between falling outside the edges of free movement law and coming within the deprivation effect that triggers Article 20 TFEU remains perilous grounds for the individual to navigate in this regard.

E.  The Legal Space between Article 21(1) TFEU and Article 20 TFEU The parallel judicial development of, on the one hand, defining the conditions for, and limits to non-economic free movement rights in Directive 2004/38, and on the other hand, strengthening the Union citizen’s right to reside within the Union under Article 20 TFEU, has generated a legal space of uncertainty.140 The Court’s interpretations of the Directive have been concerned with avoiding non-economic freedom of movement resulting in financial burdens on host Member States, as well as safeguarding against abusive ‘“to-ing and fro-ing” with the purpose of obtaining beneficial rights of family reunification under EU law’.141 In parallel, the genuine enjoyment doctrine has spun far ahead, drawing on both the existential importance of keeping the Union citizen within the Union, and the Charter’s fundamental rights standards, thereby establishing family reunification rights in situations that economically would likely not live up to the Directive’s conditions for residence in its Article 7. These parallel developments are not so paradoxical when considering the ‘intrinsic connection’ between freedom of movement of Article 21(1) TFEU and the status of EU citizenship and its attached rights in Article 20 TFEU.142 The linkage between these two provisions is clear since safeguarding the very physical presence of the Union citizen within the Union is of the essence, if that individual is to be able to self-realise themselves in a free movement scenario governed by Directive 2004/38. While Article 20 TFEU designates the Union’s integral territory as the space where the EU citizen ‘ought to be’, Article 21(1) TFEU brings with it the constraints for the choice of locality for that ‘being’.143 To attach demands of integrational efforts of the individual in the latter context does therefore not contradict the ostensible ‘generosity’ of keeping that individual within the Union’s territory in the first place. Although Ruiz Zambrano and Alokpa lead to different

140 On the issue of parallel developments in EU Citizenship case law, see Nic Shuibhne, ‘The “Territory of the Union” in EU Citizenship Law’ (n 8) 25 f. 141 Coutts (n 3) 332. 142 ibid, 334–35. 143 As was clear in Case C-424/10, Ziolkowski and Szeja, EU:C:2011:866. See critique by A Łazowski, ‘Children of a Lesser Law: Comment on Ziolkowski and Szeja’ (2013) 38 European Law Review 404. See also points made by Nic Shuibhne, ‘The “Territory of the Union” in EU Citizenship Law’ (n 8) 25; Raucea (n 100) 481.

78  Residence and Family Reunification Rights outcomes in practice for the applicants, the two families’ respective situations were united in the fact that the status of EU citizenship demanded that some territorial place within the Union must be for them.144 Despite the privileging of the right to freedom of movement as a core of EU citizenship that is found in both these strands of jurisprudence, there is, nevertheless, a considerable legal distance to overcome before residence and family reunification rights under the exercise of freedom of movement and under the status of EU citizenship in Article 20 TFEU are comprehensively adjoined. This legal distance largely depends on where within the EU the territorial realisation of the Union citizen’s ‘right to be’ is taking place. Separating residence based on Article 21(1) and Article 20 TFEU, respectively, is only the crossing of a border of a home and a host Member State. Advocate General Szpunar, in his Opinion in Bajratari, pointed out that the space between the two provisions risks resulting in an uneven protection for children’s rights to reside in the Union while accompanied by their primary caregivers.145 Notably worrying, the scope and material content of the fundamental rights protection of the EU Charter appears to differ between Article 21(1) TFEU and Article 20 TFEU.146 While it may be legally coherent to differentiate between the legal outcomes generated by either Article 21(1) TFEU together with Directive 2004/38, and Article 20 TFEU, there is no legitimacy in consolidating an uneven EU fundamental rights protection in cases concerning residence and family reunification.

IV. Conclusion The behavioural and temporal edges of the right to reside as conditioned in Directive 2004/38 reveal the inadequacy of the status of EU citizenship to alleviate the individual’s failure to integrate according to the norms of genuine use of freedom of movement. However, the most vulnerable individual in this regard is the TCN family member. The TCN’s residence security in a host Member State depends on the continuous and genuine residence status of a Union citizen family member. The Union citizen’s departure from the host Member State instantaneously ends the TCN family member’s right to reside there and possibly anywhere else in the Union, unless the special rules for retaining a right to reside apply. As an alternative, the TCN family member can retain a right to reside in the host Member State based on the dependency of a child of a cross-border worker who needs the presence of the TCN caregiver to complete their education in the host Member State. This residence right is not linked directly to the status of EU citizenship, but rather serves the established instrumentalist rationale of protecting the



144 What

Raucea calls ‘the right to a place’, see Raucea (n 100) 481. in Case C-93/18, Bajratari, EU:C:2019:51, paras 80–89. 146 ibid, para 86. 145 Opinion

Conclusion  79 cross-border worker’s family member. In addition, this residence security, derived from a child, who in turn derives it from a link to a cross-border worker, cannot lead to permanent residence status in the host Member State, and thus leaves the child and the family member more vulnerable than if they had resided based on Directive 2004/38. Outside the scope of freedom of movement, Article 20 TFEU and the status of EU citizenship offer a last resort for residence of a TCN family member in their capacity as a primary caregiver of a dependent Union citizen. The TCN must then be given a right to reside somewhere in the Union where it is factually possible to reside together with the Union citizen, so that the latter is not deprived of the genuine enjoyment of their EU citizenship rights as conferred by Article 20 TFEU. As this legal basis for residence is subsidiary to residence under the fundamental freedoms and the Directive, the responsibility to ensure this right should usually fall on the Union citizen’s home Member State. It is however not entirely clear from the case law how Article 20 TFEU extends to protect Union citizen children and their primary caregivers in a host Member State, which would potentially cover the space between failing the conditions for genuine use of freedom of movement of Directive 2004/38, and coming within the protection of the genuine enjoyment doctrine. As will be further developed below in chapter seven, there is a worrying incoherence in that a Article 20 TFEU as legal residence basis, which is subsidiary to the actual e­ xercise of freedom of movement, nevertheless offers a more robust fundamental rights review under the Charter. In the following, we turn to the right to equal treatment, originally linked directly to the status of EU citizenship through the principle of non-discrimination on grounds of nationality in Article 18 TFEU. During the 2010s, this link has been dissolved by the categorisation of the individual as an economically or noneconomically active person under Directive 2004/38, reducing EU citizenship to a residual personal status for the individual to rely on.

5 The Right to Equal Treatment Equality is an inherent component of citizenship.1 Any person included in a given citizenry is formally an equal with others with regard to the enjoyment of the rights and duties that are attached to that particular citizenship.2 In Union law, the principle of equality is expressed in several primary law provisions and legislative instruments.3 The Union legislature has adopted special directives against discrimination on grounds of sex, ethnicity and religion.4 Equal treatment is thereby a guiding principle of Union law for combating discrimination on various grounds.5 However, the specific equality principle of EU citizenship relies on the free movement of persons rationale: to make EU citizenship a functional legal status for a person who exercises freedom of movement by prohibiting discrimination on grounds of nationality, as expressed in Article 18 of the Treaty on the Functioning of the European Union (TFEU).6 The equality ideal of EU citizenship therefore refers to being treated as an equal with national residents of either a home or host Member State when the Union citizen and family members are in a lawful free movement context.7 A broader term that encompasses this notion of ‘lawful’ is that the exercise of freedom of movement should be a genuine use, meaning that the use is in accordance with the objectives of the Treaty freedoms.8 Only then may the individual

1 P Eleftheriadis, ‘The Content of European Citizenship’ (2014) 15 German Law Journal, Special Issue: EU Citizenship Twenty Years On 776, 784. 2 The ideal of formal equality of citizenship does, however, not in itself ensure substantive equality as in full equal material opportunities in society, nor does it in itself protect against discrimination, see T Hammar, Democracy and the Nation State, Aliens, Denizens and Citizens in a World of International Migration, Research in Ethnic Relations Series (Aldershot, Ashgate, 1990) 3. 3 Article 9 Treaty on European Union; Article 18 TFEU; Articles 20–26 of Directive 2004/38. 4 Based on Article 19 TFEU, Directives to alleviate discrimination on various discrimination grounds have been adopted. 5 H van Eijken, EU Citizenship & the Constitutionalisation of the European Union, Administrative Law Series 9 (Europa Law Publishing, 2015) 107 f. 6 See definition of the right to equal treatment attached to EU citizenship in Case C-148/02, Garcia Avello, EU:C:2003:539, paras 29–31. 7 Consider how equal treatment was linked to lawful exercise of freedom of movement in cases as diverse as Case C-85/96, Martínez Sala v Freistaat Bayern, EU:C:1998:217; and Case C-524/06, Huber, EU:C:2008:724. 8 Case C-137/09, Josemans, EU:C:2010:774; Case C-109/01, Akrich, EU:C:2003:491; Case C-212/97, Centros, EU:C:1999:126; Case C-255/02, Halifax and Others, EU:C:2006:121; and Case C-196/04, Cadbury Schweppes and Cadbury Schweppes Overseas, EU:C:2006:544.

The Right to Equal Treatment and EU Citizenship  81 legitimately benefit from its protective scope and ancillary advantages.9 Conversely, an abuse of free movement rights is grounds for the Member States to withdraw or deny these advantages, such as residence rights, and the right to equal treatment in a host Member State.10 The legal meaning of ‘abuse’, and its opposite ‘genuine use’, as a basis for respectively denying and granting equal treatment under the status of EU citizenship, has in the last decade become replaced by the norms of Directive 2004/38. These norms place a positive demand on the individual to fulfil the Directive’s preconditions of lawful and durational residence as proof of integration in the host Member State. Failing this test of integration, a Union citizen may fall outside the scope of equal treatment under Article 18 TFEU, and out of Union law and EU fundamental rights review altogether. The following chapter analyses the EU citizenship right to equal treatment as taking its basis in the principle of non-discrimination on grounds of nationality in free movement law (section I). It goes on to depict the development of the norm of integration as a prerequisite for equal treatment as a resident, via concepts of lawful residence, abuse and demands of genuine links and integration, to the impact of the provisions of Directive 2004/38 (sections II, III and IV). Finally, the ­chapter assesses the legal standing of individuals under the status of EU c­ itizenship, who find themselves at the legal edges of the right to equal treatment in a host Member State (section V).

I.  The Right to Equal Treatment and EU Citizenship The principle of non-discrimination on grounds of nationality – the right to equal treatment – is inherent in all the economic freedoms of the TFEU, and is protected in its own primary law provision of Article 18(1) TFEU: ‘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’. The principle of non-discrimination on grounds of nationality is an essential component of internal market law as it necessitates that unjustified discriminatory measures adopted by the Member States are removed, so that goods, services and capital can flow across the Member States’ borders.11 Progressively, in the interest of the effet utile of freedom of movement, the principle has evolved into a broader ‘access to market’ – or ‘restrictions’ approach, to target measures that may not be

9 K Engsig Sørensen, ‘Abuse of Rights in Community Law: A Principle of Substance or Merely Rhetoric?’ (2006) 43 Common Market Law Review 423, 427–28. 10 Regarding residence rights, see Case C-109/01, Akrich, EU:C:2003:491; and concerning abuse as grounds to deny free movement rights, see Case C-212/97, Centros, EU:C:1999:126, para 24. 11 C Barnard, The Substantive Law of the EU: The Four Freedoms, 6th edn (Oxford, Oxford University Press, 2019) 23.

82  The Right to Equal Treatment outright discriminatory, but nevertheless make freedom of movement to or from a given Member State more difficult than what might be justified.12 For economically active Union citizens, the prohibition of discrimination on grounds of nationality is used to hinder protectionist measures and discrimination, which may deter them from exercising the economic freedoms in another Member State.13 Scholars have noted the development in the case law of the Court of Justice of the European Union (the Court) of how the EU citizenship right to freedom of movement under Article 21 TFEU has led to partial assimilation of the economic and non-economic freedoms with regard to the concept of restrictions on any exercise of free movement of persons.14 This approach can be relied on to remove obstructing measures put in place by a Member State, which, although not being discriminatory, nevertheless make the Union citizen’s exit from or access to a given Member State more difficult or less attractive.15 Removing restrictions on freedom of movement in EU citizenship law is therefore less about individual equal treatment in terms of social inclusion as a residential member of a host Member State. It is rather about removing obstacles created by the Member States to the Union citizen’s formal equal access to a host Member State, and the opportunity to self-realisation under any of the fundamental freedoms.16 By contrast, for the host Member State to impose some preconditions on the individual before granting full equal enjoyment of its welfare functions relies on the legitimacy of demanding proof of the individual’s integration through a genuine use of freedom of movement. To demand integration as a prerequisite for being treated as a socially included residential member of the host Member State, notably for equal enjoyment of residence-based social benefits, is something different from removing restrictions on a person’s use of freedom of movement. The Member States’ legal tools to differentiate between which Union citizen is to be either lawfully excluded, or legitimately included in its solidarity systems, therefore follow a different rationale from the principle of non-discrimination on grounds of nationality for the economic freedoms. 12 As in Case C-110/05, Commission v Italian Republic, EU:C:2009:66; Case C-108/09, Ker-Optika, EU:C:2010:725; and Case C-142/05, Mickelsson and Roos, EU:C:2009:336. On the prevalence of the market access or restrictions rationale, see E Spaventa, ‘Leaving Keck Behind? The Free Movement of Goods after the Rulings in Commission v Italy and Mickelsson and Roos’ (2009) 35 European Law Review 914, 921 f. 13 AP van der Mei, Free Movement of Persons within the European Community: Cross-Border Access to Public Benefits (Oxford, Hart Publishing, 2003) 31 f. 14 See in general, A Iliopoulou and H Toner, ‘A New Approach to Discrimination Against Free Movers?’ (2003) 28 European Law Review 389; and A Tryfonidou, ‘The Notions of “Restriction” and “Discrimination” in the Context of the Free Movement of Persons Provisions: From a Relationship of Interdependence to One of (Almost Complete) Independence’ (2014) 33 Yearbook of European Law 385. 15 Case C-182/15, Petruhhin, EU:C:2016:630, paras 33–34; Case C-191/16, Pisciotti, EU:C:2018:222, paras 45–46; Case C-224/02, Pusa, EU:C:2004:273, para 19; and Case C-499/06, Nerkowska, EU:C:2008:300, para 32. 16 U Neergaard, ‘Europe and the Welfare State – Friends, Foes, Or … ?’ (2016) 35 Yearbook of E ­ uropean Law 341, 351–52.

The Right to Equal Treatment and EU Citizenship  83

A.  From Workers and Tourists to Citizens: Equal Treatment as a Fundamental Right Like the right to reside, the prohibition of discrimination on grounds of nationality is an essential legal instrument for liberalising labour mobility between the Member States. When it comes to conditions for accepting and pursuing employment in a host Member State, cross-border workers should not be treated any less favourably than the national workers of that State.17 Article 7 of the old Workers Regulation 1612/68 therefore provided several equal treatment rights. Notably, its Article 7(2) specified that a cross-border worker should ‘enjoy the same social and tax advantages as national workers’. This provision is now in force as Article 7(2) of Regulation 492/2011. In addition to secondary law instruments serving to ensure equal treatment of workers, both overt and covert discrimination on grounds of nationality should be removed, unless justifiable, under the Treaty provision that is now Article 45 TFEU.18 As a consequence, any Member State national, fulfilling the criteria of cross-border pursuit of ‘effective and genuine work activities’,19 has a right to equal treatment with national workers, and protection against unjustified discriminatory requirements.20 A Member State’s disadvantageous treatment of a person, as a result of having a foreign professional degree, or work experience from another Member State has to be justified and proportionate in order to be in compliance with free movement law.21 The person does not need to integrate in any other way in the host Member State other than by obtaining and retaining the cross-border worker status.22 The more limits that have been set for inactive Union citizens’ equal treatment rights in the area of social benefits, the more vital it has become for an individual to retain worker status.23 This principle subsists, and has been replicated in the case law in the area of free movement of persons, for the purpose of providing services, or to pursue freedom of establishment, currently enshrined in Articles 56 and 49 TFEU.24 17 E Spaventa, ‘The Free Movement of Workers in the Twenty-First Century’ in A Arnull and D Chalmers (eds), The Oxford Handbook of European Union Law (Oxford, Oxford University Press, 2015) 565. 18 S Weatherill, The Internal Market as a Legal Concept, 1st edn (Oxford, Oxford University Press, 2017) 5–10. 19 Case C-53/81, Levin v Staatssecretaris van Justitie, EU:C:1982:105, para 17; Case C-456/02, Trojani, EU:C:2004:488, para 15. 20 For the wide scope of this protection, see Case C-212/05, Hartmann, EU:C:2007:437; and Case C-281/98, Angonese, EU:C:2000:296. 21 Case C-55/94, Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano, EU:C:1995:411; Case C-19/92, Kraus v Land Baden-Württemberg, EU:C:1993:125. 22 F Pennings, ‘EU Citizenship: Access to Social Benefits in Other EU Member States’ (2012) 28 International Journal of Comparative Labour Law and Industrial Relations 307. 23 See worker status cases post-dating the trend of limiting economically inactive persons’ equal treatment rights, Case C-483/17, Tarola, EU:C:2019:309; and Case C-442/16, Gusa, EU:C:2017:1004. 24 Case C-337/97, Meeusen, EU:C:1999:284; Case C-215/03, Oulane, EU:C:2005:95; and Case C-544/18, Dakneviciute, EU:C:2019:761 compared with Article 45 TFEU, Case C-507/12, Saint Prix, EU:C:2014:2007.

84  The Right to Equal Treatment In the early 1980s, the Court established that this equality principle also applied in the area of non-economic freedom of movement, firstly noticeable for cross-border students. Students had early on enjoyed special protection in free movement law as children of cross-border workers with equal treatment rights to access school and basic education.25 In the 1985 Gravier judgment, the Court took this further and found that Article 18 TFEU had direct effect, and applied to the conditions for access to pursue vocational training and further education in a host Member State of work.26 This progression enabled the Court to, in the Raulin case, find that the equality principle also applied to conditions, such as enrolment fees, for access to university studies.27 Non-national students from another Member State may then object to registration fees that are higher for them than for national students.28 The equal treatment principle that had formerly been attached to the status of the cross-border worker, and in extension, transposed to family members of such workers,29 thereby became a self-standing principle, serving the objective of cross-border student mobility and supporting educational development in the Member States.30 In 1989, in the pre-citizenship case of Cowan, the Court took the equality principle yet further by treating it as a self-standing, individualised right, and not necessarily attached to an instrumentalist function of the fundamental freedoms.31 The Court’s reasoning transferred the right to be protected against discrimination on grounds of nationality from the efficiency objective of the free movement of services directly to the individual Member State national, merely because the person was in a lawful cross-border situation. This treatment of the equality principle as a right tied directly to the individual in a free movement context would continue with the formal establishment of EU citizenship, as seen in Bickel and Franz in 1998, and the case law that followed.

i.  The Tourist’s Right to Equal Treatment: Cowan and Bickel and Franz Cowan was a British tourist in Paris who was the victim of a crime during his short stay. Under domestic law, as he was neither a French national, nor a resident, he could not benefit from a national solidarity fund granting compensation to

25 Case C-9/74, Casagrande v Landeshauptstadt München, EU:C:1974:74. 26 Case C-293/83, Gravier v Ville de Liège, EU:C:1985:69, paras 15, 20, 25–26. 27 Case C-357/89, Raulin v Minister van Onderwijs en Wetenschappen, EU:C:1992:87, para 28. 28 For a critique of this rationale, see S Jørgensen, ‘The Right to Cross-Border Education in the European Union’ (2009) 46 Common Market Law Review 1567, 1572 f. 29 This route of equal treatment for study grants via the cross-border worker to his children is, however, still important, Case C-359/13, Martens, EU:C:2015:118; Case C-20/12, Giersch and Others, EU:C:2013:411; Case C-337/97, Meeusen, EU:C:1999:284. 30 Title XII TFEU and notably Article 165(2) TFEU. See also Case C-209/03, Bidar, EU:C:2005:169, paras 40–41. 31 Case C-186/87, Cowan v Trésor public, EU:C:1989:47.

The Right to Equal Treatment and EU Citizenship  85 victims of crime. The Court found that the principle of non-discrimination on grounds of nationality applied as Cowan, as a tourist, was a cross-border ­recipient of services within the meaning of then Article 56 TFEU.32 As a Member State national in such a lawful cross-border situation, he could therefore rely directly on the ­prohibition on discrimination on grounds of nationality under what is now Article 18 TFEU.33 The denial of Cowan to access the compensation fund did not hinder the e­ ffectiveness of Article 56 TFEU, as Cowan’s actual access to and enjoyment of services in France had not been restricted, but he could rely on freedom of movement to claim equal treatment as an individual right.34 The Cowan reasoning was repeated in the free movement of services case of Bickel and Franz, coming out after the formal introduction of EU citizenship in primary law.35 Here, non-national Union citizens, in receipt of services under Article 56 TFEU, could invoke the prohibition on discrimination on grounds of nationality merely by coming within the status of being service recipients in a host Member State. As they were in a lawful free movement context, the right to equal treatment allowed them to oppose how they were disadvantaged in the host Member State, Italy, under the domestic rules regarding the right to choose the language of criminal court proceedings. As in Cowan, the language rules in question were not per se restricting them from receiving services in the host Member State, but as they were in a lawful free movement context, they could rely on the individual right to equal treatment conferred by Article 18 TFEU to object to discriminatory treatment in the host Member State. Purporting equal treatment as a right linked directly to the status of EU citizenship, Advocate General Jacobs, in his Opinion in Bickel and Franz, held that: ‘Freedom from discrimination on grounds of nationality is the most fundamental right conferred by the Treaty and must be seen as a basic ingredient of Union citizenship’.36 This vision would be furthered by the Court in subsequent cases as it continued to substantiate the legal concept of citizenship of the Union. Under the influence of EU citizenship, the equality principle would evolve into having two characteristics: on the one hand, it would continue being instrumental to the efficiency of the fundamental freedoms and underpinning the removal of restrictions on both economic and non-economic free movement; on the other, it would evolve into having the character of being an individual and fundamental right, directly linked to the status of EU citizenship for the person in a genuine free movement context.37 Under the latter rationale, the Union citizen making genuine use of freedom of movement was to be protected 32 ibid, para 17. 33 ibid, para 20. 34 Tryfonidou, ‘The Notions of “Restriction” and “Discrimination” in the Context of the Free Movement of Persons Provisions’ (n 14) 404. 35 Case C-274/96, Bickel and Franz, EU:C:1998:563. 36 Opinion in Case C-274/96, Bickel and Franz, EU:C:1998:115, para 24. 37 PJ Neuvonen, ‘EU Citizens’ Whimsical Status: Persons or Actors on their Way to Full Agency?’ in N Ferreira and T Kostakopoulou (eds), The Human Face of the European Union: Are EU Law and Policy Humane Enough? (Cambridge, Cambridge University Press, 2016) 187.

86  The Right to Equal Treatment against discriminatory treatment, as a right, whether the discrimination actually had a hindering effect on the person’s use of freedom of movement or not.38 It should be remembered that both Cowan and Bickel and Franz concerned equal treatment of Member State nationals who were temporary visitors in a host Member State under the personal scope of the services provision in Article 56 TFEU. Although the extent of the tourist’s equal treatment rights in this regard has been criticised,39 it is less controversial than the form of equal treatment that Union law extends to non-national Union citizens by recognising them as equal residential members of the host Member State.

B.  Equal Treatment as the Gateway to Social Rights in a Member State All the EU Member States have some form of social security and social assistance system, varying according to national policies and budgetary priorities. As there is no formal EU competence to harmonise the social security or direct taxation systems of the Member States,40 social rights are created and granted only through the prism of national law.41 Free movement law or the status of EU citizenship do not create social rights entitlements per se.42 Instead, the right to equal treatment is the Union law tool for giving non-national Union citizens access to social rights as defined in national law, when they are in a free movement situation.43 Union law can only create an obligation on the Member States to allow moving Union ­citizens to access these nationally defined social rights on an equal par with national workers or residents.44 In EU citizenship law, equal access to social rights are ensured for the moving Union citizen in two ways.45

38 Tryfonidou, ‘The Notions of “Restriction” and “Discrimination” in the Context of the Free Movement of Persons Provisions’ (n 14) 403–05. 39 G Davies, “‘Any Place I Hang My Hat?” Or Residence is the New Nationality’ (2005) 11 European Law Journal 43, 47–49. 40 However, for the finding that Union law has an informal harmonising impact on national social security law, see in general, J Paju, The European Union and Social Security Law, Modern Studies in European Law (Oxford, Hart Publishing, 2017) 77. 41 R Cornelissen, ‘Conflicting Rules of Conflict: Social Security and Labour Law’ in H Verschueren (ed), Residence, Employment and Social Rights of Mobile Persons, on How EU Law Defines Where They Belong, Social Europe Series 36 (Cambridge, Intersentia, 2016) 257. 42 On why social citizenship is only a parallel concept to ‘real’ citizenship, see D Kochenov, ‘Growing Apart Together: Solidarity and Citizenship in Europe’ in F Pennings and G Vonk (eds), Research Handbook on European Social Security Law (Cheltenham, Edward Elgar Publishing, 2015) 42. 43 M Dougan and E Spaventa, “‘Wish You Weren’t Here …”: New Models of Social Solidarity in the European Union’ in M Dougan and E Spaventa (eds), Social Welfare and EU Law (Oxford, Hart Publishing, 2005) 183. 44 Eleftheriadis (n 1) 778. On the relationship between state obligation and individual rights in social law, see Jørgensen (n 28) 1568–70. 45 van Eijken (n 5) 161.

The Right to Equal Treatment and EU Citizenship  87 First, as an exportable social benefit, ensuring equal treatment regardless of territorial residence, so as not to deter Union citizens to leave the home Member State where they have incurred a right to a particular social benefit.46 Second, on the basis of the right to equal treatment in the host Member State, to which the Union citizen moves and takes up residence, so as to neutralise any conditions of nationality or past territorial residence that are prone to disadvantage moving Union citizens in an unjustified and disproportionate way.47 While the former is an expression of the interest to remove restrictions on movement, the latter has developed into allowing the Member States to demand that the Union citizen pre-qualifies as either an economically active person, or as an integrated resident before having full equal access to its social systems.48 Neither Directive 2004/38, nor the Social Security Coordination Regulation 883/2004 create social rights entitlements, but the latter provides binding rules regarding applicable legislation.49 The right to equal treatment comes with the finding of the applicable law to the person in a cross-border situation.50 Both legal instruments were adopted in light of EU citizenship and the right to non-economically motivated freedom of movement. The provisions of Regulation 883/2004, and its implementation Regulation 987/2009,51 determine the competent Member State with regard to the social security legislation applicable to the person and claim, and classifies the types of social benefits it serves to coordinate. A main purpose is to ensure that a Union citizen does not fall between ‘two stools’ of social security coverage as a consequence of exercising freedom of movement.52 Another purpose is to safeguard against persons incurring overlapping social benefits from two or more social security systems.53 For Union citizens who find themselves in a cross-border situation concerning two or more Member States, the Regulation provides the rules for solving conflicts of law by determining the Member State of work and the Member State of residence.54 In this way, the

46 As in cases like Case C-679/16, A (Aide pour une personne handicapée), EU:C:2018:601; Case C-503/99, Stewart, EU:C:2011:500; Case C-192/05, Tas-Hagen and Tas, EU:C:2006:676; Case C-287/05, Hendrix, EU:C:2007:494; and Case C-499/06, Nerkowska, EU:C:2008:300. 47 As in cases like Case C-85/96, Martínez Sala v Freistaat Bayern, EU:C:1998:217, Case C-456/02, Trojani, EU:C:2004:488; Case C-184/99, Grzelczyk, EU:C:2001:458; Joined Cases C-523/11 and C-585/11, Prinz and Seeberger, EU:C:2013:524; and Case C-224/98, D’Hoop, EU:C:2002:432. 48 On the importance of ‘integration’ as a regulatory tool for coordinating cross-border access to social benefits, see N Rennuy, ‘The Trilemma of EU Social Benefits Law: Seeing the Wood and the Trees’ (2019) 56 Common Market Law Review 1549, 1552–58. 49 F Pennings, European Social Security Law, 6th edn, Ius Communitatis Series 6 (Cambridge, Intersentia, 2015) 9. 50 Article 4 of Regulation 883/2004. 51 Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems. 52 Paju (n 40) 31–33. 53 Recitals 12–15 of the Preamble to Regulation 883/2004. 54 P Schoukens and D Pieters, ‘The Rules within Regulation 883/2004 for Determining the Applicable Legislation’ (2009) 11 European Journal of Social Security 81, 82.

88  The Right to Equal Treatment Regulation serves to assess under which social security system the individual and a given social security claim belongs, when in a cross-border situation.55 Article 4 of Regulation 883/2004 provides its own equal treatment provision: ‘Unless otherwise provided for by this Regulation, persons to whom this Regulation applies shall enjoy the same benefits and be subject to the same obligations under the legislation of any Member State as the nationals thereof ’. This way, Union law does not guarantee that moving from one Member State to another will be neutral for the purpose of social security.56 That a Union citizen moves from one Member State where they have received social benefits to a Member State where the same type of social benefits are not available, is not a problem of unequal treatment under the Regulation. However, the non-exportability of such benefits might be challenged as a restriction on the exercise of free movement under Article 21 TFEU.57 In Nerkowska, the non-exportability of a social benefit, which did not come within the scope of Regulation 883/2004, was treated by the Court as an unjustified restriction on the effectiveness of the EU citizenship right to freedom of movement under Article 21 TFEU.58 While the Court has made clear that the laying down of substantive eligibility criteria for a given social advantage is a national competence,59 the exercise of that national competence must, nevertheless, comply with the Member States’ obligations under the Treaties; notably, the principle of non-discrimination on grounds of nationality.60 Discriminatory eligibility requirements in a host Member State or those that are liable to deter the use of freedom of movement from a home Member State, therefore, have to be justified and proportionate in order to comply with Union law.61 When comparing the Regulation and its purposes with Directive 2004/38, it is relevant to consider that the Directive contains its own special provision on lawful limits to the right to equal treatment for some social benefits. Article 24(1) of the Directive provides that subject to specific provisions of primary or 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’. Article 24(2) goes on to state some specific derogations from this rule of equal treatment: By way of derogation from paragraph 1, the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, 55 Cornelissen (n 41) 257. 56 Paju (n 40) 88–89. 57 Case C-287/05, Hendrix, EU:C:2007:494; Case C-499/06, Nerkowska, EU:C:2008:300. See in general, H Skovgaard-Petersen, ‘There and Back Again: Portability of Student Loans, Grants and Fee Support in a Free Movement Perspective’ (2013) 38 European Law Review 783. 58 Case C-499/06, Nerkowska, EU:C:2008:300, paras 26–29, 31 and 33. 59 Case C-287/05, Hendrix, EU:C:2007:494, para 58. See Case C-308/14, Commission v United ­Kingdom, EU:C:2016:436, para 65 and case law there cited. 60 Case C-333/13, Dano, EU:C:2014:2358, para 78; Case C-308/14, Commission v United Kingdom, EU:C:2016:436, paras 68 and 80. 61 Case C-308/14, Commission v United Kingdom, EU:C:2016:436, para 79; Case C-75/11, ­Commission v Austria, EU:C:2012:605, para 52; Case C-224/98, D’Hoop, EU:C:2002:432, para 36.

The Right to Equal Treatment and EU Citizenship  89 where appropriate, the longer period provided for in Article 14(4)(b), nor shall it be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families.

Social assistance benefits within the meaning of the Directive may therefore be denied to Union citizens who are residing based on the short-term stay provision of Article 6, and for active jobseekers residing for longer than three months, retaining a residence right based on Article 14(4)(b).62 In addition, inactive Union citizens, who have not yet obtained permanent residence status, may be denied equal access to the host Member State’s study maintenance grants for pursuing vocational training and other higher education.63 Full access to these benefits at an earlier stage of residence requires proof of the Union citizen’s integration as an economically active person, thereby showing genuine use of one of the market freedoms.

C.  Differentiating between the Visitor and the Resident Article 56 TFEU has been relied on by Union citizens to challenge residence requirements for subsidised road toll fees,64 or admission-free schemes for museums reserved for local residents only.65 Yet, this right to equal treatment rather refers to the Union citizen as a temporary visitor, and thereby service recipient, in a host Member State. It does not go as far as to generate full equal treatment rights for any and all social advantages in a host Member State.66 The Court has often found that a residence requirement, although it excludes the temporary visitor, is justified in relation to the nature of the social advantage at issue.67 For access to some local initiatives, equal treatment can legitimately be reserved to persons having a long-term bond to a given society.68 62 Case C-299/14, García-Nieto and Others, EU:C:2016:114; and Case C-67/14, Alimanovic, EU:C:2015:597. 63 Case C-158/07, Förster, EU:C:2008:630. 64 Case C-103/08, Gottwald, EU:C:2009:597. On a similar note, see free movement of capital in Joined Cases C-578/10 to C-580/10, van Putten and Others, EU:C:2012:246. 65 Case C-388/01, Commission v Italy, EU:C:2003:30. See critique against this protection of the non-national tourist over the local resident, by Davies, “‘Any Place I Hang My Hat?”’ (n 39) 47 f. 66 On how EU free movement law differentiates between the visitor and the Community member for access to solidarity systems, see Dougan and Spaventa (n 43) 184. 67 See notably Case C-103/08, Gottwald, EU:C:2009:597. This reasoning has also been applied to non-resident frontier workers, such as in Case C-20/12, Giersch and Others, EU:C:2013:411 and Joined Cases C-523/11 and C-585/11, Prinz and Seeberger, EU:C:2013:524. C Barnard, ‘EU ­Citizenship and the Principle of Solidarity’ in E Spaventa and M Dougan (eds), Social Welfare and EU Law (Oxford, Hart Publishing, 2005) 161–65. D Thym, ‘The Elusive Limits of Solidarity: Residence Rights of and Social Benefits for Economically Inactive Union Citizens’ (2015) 52 Common Market Law Review 17, 46. 68 Dougan and Spaventa (n 43) 197.

90  The Right to Equal Treatment When reserving some social benefits for those who reside in the host Member State, to the exclusion of visitors and tourists under Article 56 TFEU, it also becomes necessary to establish norms for at what point a Union citizen, exercising non-economic freedom of movement under Article 21 TFEU, should be recognised as a member of the residential community of a host Member State. As seen in the O case, residence based solely on Article 6 of Directive 2004/38 is not perceived by the Court as an act of ‘genuine residence’.69 It is too short-term to objectively prove an intention to settle in the host Member State. Correspondingly, in García-Nieto, the Court confirmed the legitimacy of the Directive’s limited equal treatment rights for social assistance claims of those residing based on Article 6.70 While the exercise of the right to reside under Article 6 designates a state of lawful exclusion from the solidarity system of the host Member State, the exercise of the right to permanent residence under the Directive’s Article 16 is a state of full inclusion in the host Member State to equal treatment rights reserved for residential members of society. The five-year residence requirement needed for permanent residence status reflects an assumption of integration and bars other factors of ‘real’ or personal integration to be taken into account.71 It is therefore in the time period between three months of Article 6 and five full years of Article 16 that the link between EU citizenship and enjoyment of the right to equal treatment depends on the Union citizen’s continuous efforts to make genuine use of freedom of movement.

II.  Demanding Genuine Use of Freedom of Movement The legal relevance of the status of EU citizenship usually does not take effect without a free movement context,72 although the necessary cross-border link to trigger the scope of free movement law has in some cases been tenuous.73 Then again, if a Union citizen is making social rights claims based on being a recognised resident in a host Member State, the mere factual cross-border element to his case is not enough. A person’s exercise of freedom of movement to become a resident of the host Member State also has to be qualitative, and in that regard, an expression of the genuine use of freedom of movement.74 This threshold is necessary for the

69 Case C-456/12, O, EU:C:2014:135. 70 Case C-299/14, García-Nieto and Others, EU:C:2016:114, para 53. 71 M Jesse, ‘The Value of “Integration” in European Law: The Implications of the Förster Case on Legal Assessment of Integration Conditions for Third-Country Nationals’ (2011) 17 European Law Journal 172, 178. 72 On the evolvements of this principle, see F Strumia, ‘Looking for Substance at the ­Boundaries: European Citizenship and Mutual Recognition of Belonging’ (2013) 32 Yearbook of European Law 432, 434 f. 73 See Case C-148/02, Garcia Avello, EU:C:2003:539; Case C-60/00, Carpenter, EU:C:2002:434; and Case C-403/03, Schempp, EU:C:2005:446. 74 Case C-325/09, Dias, EU:C:2011:498, para 64.

Demanding Genuine Use of Freedom of Movement  91 Member States’ tolerance of non-economic freedom of movement and enjoyment of a general right to reside in a host Member State of choice. The right to move and reside freely was considered essential for the construction of a European Citizenship,75 but the Union legislator was clear that it should not amount to financial burdens on the Member States.76 In addition, the Member States do not have to accept abusive use of freedom of movement.77 Equal social rights entitlement based merely on factual residence, or ‘presence’, has never been a reality in internal market or EU citizenship law.78 This means that the Union citizen must exercise the right to reside freely in compliance with the Union law norms for how it should be exercised, in order to rely on that exercise as a basis for equal treatment.79 Residence is therefore a qualitative legal concept in EU citizenship law, which may trigger equal treatment as an ancillary right only if it is genuine. The host Member State may legitimately require that the Union citizen somehow proves his intention to use freedom of movement in accordance with the objectives of the fundamental freedoms in their society.80 To this end, the material definition of what is genuine use of Article 21 TFEU has been subject to considerable legal development and transformations in the Court’s case law in view of the status of EU citizenship as well as the purpose of Directive 2004/38. To begin with, recognising it as legitimate that a host Member State may demand a genuine use of freedom of movement conversely means to allow the Member States to reject the Union citizen from the scope of equal treatment if the person abuses free movement rights. A person who is artificially creating a cross-border situation to exploit certain legal advantages in a Member State does not have to be ensured enjoyment of the right to equal treatment.81

A.  The Prohibition of Abuse of Free Movement of Persons Law A basic premise in EU free movement law is that the exercise of the fundamental freedoms must be lawful in order to benefit from protection under Union law. For that reason, illegal cross-border activities or transactions are excluded 75 Report from the European Council by the ad hoc committee ‘On a People’s Europe’, A 10.04 COM 85, SN/2536/3/85 Bulletin of the European Communities Supplement 3/1985 (Adonnino Report) 14. 76 Recital 10 to the Preamble of Directive 2004/38. 77 Case C-33/74, Van Binsbergen / Bedrijfsvereniging voor de Metaalnijverheid, EU:C:1974:131, para 13. 78 S Stendahl, ‘To Reside: To Live, Be Present, Belong’ (2016) 18 European Journal of Social Security 232, 235. Thym (n 67) 38–39. 79 From Case C-85/96, Martínez Sala v Freistaat Bayern, EU:C:1998:217 to Case C-333/13, Dano, EU:C:2014:2358, the Court has maintained that only lawful exercise of the right to freedom of movement brings the claim within the scope of the right to equal treatment. 80 Thym (n 67) 36 f. 81 Case C-39/86, Lair v Universität Hannover, EU:C:1988:322, para 43.

92  The Right to Equal Treatment from the protective scope of Union law.82 What is more controversial is whether it should be tolerated that a person creates a cross-border dimension that is objectively lawful, but created with the sole intention of achieving a self-serving purpose.83 A self-serving purpose for exercising free movement law can be to rely on the fundamental freedoms to move a legal situation outside the scope of national law, to avoid onerous national requirements.84 It can also be to move a legal situation within the scope of a chosen national jurisdiction solely to generate certain legal effects.85 The Member States tend to protest against such behaviour by calling it an abuse of free movement rights.86 Concerns of abuse have arisen when a natural or legal person has moved to a Member State solely to avoid national professional rules,87 escape incorporation costs of a legal person,88 or to avoid national tax rules.89 It has also been an issue in cases where the sole purpose of creating a cross-border situation was to achieve EU free movement law’s more generous rule of family residence rights with a third-country national (TCN) family member.90 Although accepting that the Member States may take measures against abuse,91 the Court has been careful to explicitly define a particular behaviour as abusive.92 The Court here has a delicate balance to strike, as an important means for ensuring the efficiency of the market freedoms is to associate the use of freedom of movement with certain advantages, which may even 82 Case C-137/09, Josemans, EU:C:2010:774, para 54. 83 See discussion by N Nic Shuibhne, The Coherence of EU Free Movement Law: Constitutional Responsibility and the Court Of Justice, Oxford Studies in European Law (Oxford, Oxford University Press, 2013) 85–90; and KS Ziegler, ‘“Abuse of Law” in the Context of the Free Movement of Workers’ in R de la Feria and S Vogenauer (eds), Prohibition of Abuse of Law: A New General Principle of EU Law?, Studies of the Oxford Institute of European and Comparative Law (London, Bloomsbury Publishing, 2011) 299–300. 84 As was the issue in cases like Case C-212/97, Centros, EU:C:1999:126; Case C-109/01, Akrich, EU:C:2003:491; and Case C-33/74, Van Binsbergen / Bedrijfsvereniging voor de Metaalnijverheid, EU:C:1974:131. 85 As was the issue in Case C-200/02, Zhu and Chen, EU:C:2004:639. See Engsig Sørensen (n 9) 448 f. 86 Case C-33/74, Van Binsbergen / Bedrijfsvereniging voor de Metaalnijverheid, EU:C:1974:131; and Case C-19/92, Kraus v Land Baden-Württemberg, EU:C:1993:125. Case C-212/97, Centros, EU:C:1999:126; Case C-196/04, Cadbury Schweppes and Cadbury Schweppes Overseas, EU:C: 2006:544; Case C-200/02, Zhu and Chen, EU:C:2004:639. 87 At issue in Case C-33/74, Van Binsbergen / Bedrijfsvereniging voor de Metaalnijverheid, EU:C:1974:131; and Case C-19/92, Kraus v Land Baden-Württemberg, EU:C:1993:125. 88 Case C-212/97, Centros, EU:C:1999:126. 89 At issue in Case C-196/04, Cadbury Schweppes and Cadbury Schweppes Overseas, EU:C: 2006:544. 90 Case C-200/02, Zhu and Chen, EU:C:2004:639; Case C-109/01, Akrich, EU:C:2003:491; and Case C-370/90, The Queen v Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department, EU:C:1992:296. See analysis by H Kroeze, ‘Distinguishing Between Use and Abuse of EU Free Movement Law: Evaluating Use of the “Europe-Route” for Family Reunification to Overcome Reverse Discrimination’ (2018) 3 European Papers 1209. 91 C-33/74, Van Binsbergen / Bedrijfsvereniging voor de Metaalnijverheid, EU:C:1974:131, para 13. 92 In Case C-212/97, Centros, EU:C:1999:126 and Case C-33/74, Van Binsbergen / Bedrijfsvereniging voor de Metaalnijverheid, EU:C:1974:131 the Court gave examples of abuse without decisively saying that the party of the case was abusing freedom of movement.

Demanding Genuine Use of Freedom of Movement  93 go beyond what the national law in the home Member State can offer.93 The generous protection of the cross-border worker’s family reunification rights is a way of ensuring the attractiveness, and thereby, the effectiveness of labour mobility.94 In some cases it has been clear that the purpose of creating a cross-border situation under free movement law is purely self-serving, as in, not with the interest of pursuing a fundamental freedom for its own sake, but solely with the view to obtain its derivative advantages.95 However, as long as the exercise of the freedom is objectively genuine, the Court has generally found these behaviours to be mere ‘use’ of the advantages of free ­movement law, rather than ‘abuse’ of the same. Abuse must therefore be a narrow legal concept of free movement law. If a person is objectively pursuing genuine economic activity in accordance with the market freedoms, it should not matter whether their subjective motivation is to obtain a derivative advantage.96 The legal concept of abuse has become even more elusive in light of the introduction of EU citizenship, and the right to personal freedom of movement regardless of economic aims. The non-economic free movement right of Article 21 TFEU does not contain the objectively observable criterion of economic activity that the market freedoms do, which has necessitated the shaping of alternative norms for its genuine use.97

B.  From Accusations of Abuse to Demands of Genuine Use In order to enjoy equal treatment in a host Member State on the basis of being a cross-border worker, the person’s activity in the host Member State has to fulfil the criteria of the personal and material scope of Article 45 TFEU. Article 7(2) of Regulation 492/201198 provides that a person should enjoy equal treatment for all social and tax advantages of the Member State of work. The assessment of whether the person fulfils worker status within the meaning of Article 45 TFEU should be based on objective considerations of the factual nature of the activity in light of the 93 Opinion in Case C-109/01, Akrich, EU:C:2003:112, on the issue of what is use and not abuse of free movement law, paras 95–106 or 172–85. For a critique of the Court’s promotion of free movement rights going beyond what the nation state provides for its own nationals and residents, see G Davies, ‘The Humiliation of the State as a Constitutional Tactic’ in F Amtenbrink and PAJ van den Berg (eds), The Constitutional Integrity of the European Union (The Hague, TMC Asser Press, 2010) 155 and in general. 94 Case C-370/90, The Queen v Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department, EU:C:1992:296, paras 19–21; Case C-291/05, Eind, EU:C:2007:771, paras 35–36; and Case C-127/08, Metock and Others, EU:C:2008:449, paras 82–84. 95 See discussion on ‘self-serving’ aims with the exercise of free movement law, by Nic Shuibhne, The Coherence of EU Free Movement Law (n 83) 85–90. 96 Case C-413/01, Ninni-Orasche, EU:C:2003:600, para 30. Ziegler (n 83) 305–06. 97 See in general, C Costello, ‘Citizenship of the Union: Above Abuse?’ in R de la Feria and S Vogenauer (eds), Prohibition of Abuse of Law: A New General Principle of EU Law?, Studies of the Oxford institute of European and Comparative Law (London, Bloomsbury Publishing, 2011). 98 Formerly Article 7(2) of Regulation 1612/68.

94  The Right to Equal Treatment normal employment market of the Member State.99 The personal scope of crossborder worker status is fulfilled by objective criteria, aimed at assessing whether the Union citizen’s cross-border economic activity is effective and genuine, and not purely marginal and ancillary.100 The level of remuneration, or whether the work is only part-time, or for a short period of time,101 should not prejudice the assessment.102 In-kind remuneration and pocket money in exchange for work activities lived up to the concept of worker in the Steymann case,103 but taking part in rehabilitation or charity-based activities was doubtfully a real economic activity in the Bettray and Trojani cases.104 The assessment of the genuine quality of the person’s work activity has nothing to do with the subjective intentions for wanting to obtain cross-border worker status.105 The genuine nature of the person’s work arrangement in relation to subjective intentions was nevertheless at issue in Lair, predating EU citizenship, and in the 2003 case of Ninni-Orasche.106 Both cases concerned the access to study maintenance grants in a host Member State, based on being a cross-border worker, residing in a host Member State. In both cases, the Court had to address whether the applicants could be excluded from equal treatment rights, if their sole intention with exercising freedom of movement of workers by pursuing short-term and small-scale employments in a host Member State was to achieve eligibility for study maintenance grants on the same conditions as national resident workers. In the Member States’ view, their situations were close to that of an artificial worker status, not genuinely created for the purpose of integration on the national employment market, but rather, strategically created to trigger the full equal treatment rights that cross-border worker status brings.107 The Member States sought to rely on the notion of abuse as a basis to deny the applicants’ worker status and thereby, to deny them the sought study grants as a matter of equal treatment. The Court safeguarded the interests of the individual applicants by emphasising the

99 Case C-456/02, Trojani, EU:C:2004:488, para 24. 100 Case C-53/81, Levin v Staatssecretaris van Justitie, EU:C:1982:105, para 17. 101 Case C-39/86, Lair v Universität Hannover, EU:C:1988:322, paras 41–42. 102 Case C-53/81, Levin v Staatssecretaris van Justitie, EU:C:1982:105, para 18. See also Case C-344/87, Bettray v Staatssecretaris van Justitie, EU:C:1989:226; Case C-196/87, Steymann v Staatssecretaris van Justitie, EU:C:1988:475; and Case C-456/02, Trojani, EU:C:2004:488. 103 Case C-196/87, Steymann v Staatssecretaris van Justitie, EU:C:1988:475. 104 Case C-344/87, Bettray v Staatssecretaris van Justitie, EU:C:1989:226; and Case C-456/02, Trojani, EU:C:2004:488. 105 Case C-413/01, Ninni-Orasche, EU:C:2003:600, para 30. 106 Case C-39/86, Lair v Universität Hannover, EU:C:1988:322; and Case C-413/01, Ninni-Orasche, EU:C:2003:600. 107 Case C-39/86, Lair v Universität Hannover, EU:C:1988:322, para 43; and Case C-413/01, Ninni-Orasche, EU:C:2003:600, para 16. Ziegler (n 83) 299.

Demanding Genuine Use of Freedom of Movement  95 importance of objectively coming within the scope of the worker status.108 It found that the applicants in both cases were objectively pursuing genuine economic activity under the standards of freedom of movement of workers.109 In addition, the applicants in Lair and Ninni-Orasche both had other interpersonal and durational links to the respective host Member States of Germany and Austria. Lair’s long history of residence in Germany and Ninni-Orasche’s marriage to an Austrian national could disprove that their respective cross-border worker situations were merely artificially created for the sole intention of availing national social advantages.110 In that regard, and in addition to their short-lived employments, their intention to reside and integrate in the host society qualified as genuine, which rebutted the accusation of abuse. For these reasons alone, it seems improbable that the referring courts could have excluded them from the equal treatment rights of workers on grounds of abuse.111 These two cases showed how, although a person’s link to the employment market may be tenuous, a very short span of employment can, when combined with other, non-economic, interpersonal and horizontal links to the host community, rebut that an equal treatment claim to residence-based social benefits would be abusive. While Lair and Ninni-Orasche had the economic status of the crossborder worker at their core, their demonstrated interpersonal links to the host Member State were also relevant. In his Opinion in Ninni-Orashe, Advocate General Geelhoed argued that the mere fact of having resided lawfully, as a noneconomically active Union citizen, for ‘a considerable time’ should be sufficient for the citizen to be able to rely on what is now Articles 18 and 21 TFEU, to assert equal treatment for access to study maintenance grants.112 This positive consideration of how durational lawful residence should qualify the person for full social inclusion in the host Member State, would prove important elsewhere in the case law. The Court would accept it as legitimate that the Member States required durational residence or proof of other genuine links as a prerequisite for economically inactive Union citizens’ equal social inclusion.113 In cases such as Bidar and Collins, concepts like a person’s sufficient degree of integration or genuine links to a host Member State would come to the fore as the necessary link between the status of EU citizenship and the right to equal treatment.114 Such objectively observable integrational factors that showed a link

108 Case C-39/86, Lair v Universität Hannover, EU:C:1988:322, para 41; and Case C-413/01, Ninni-Orasche, EU:C:2003:600, para 32. 109 Case C-39/86, Lair v Universität Hannover, EU:C:1988:322, para 42; and Case C-413/01, Ninni-Orasche, EU:C:2003:600, paras 27–28. 110 Opinion in Case C-413/01, Ninni-Orasche, EU:C:2003:117, para 95. 111 Nic Shuibhne, The Coherence of EU Free Movement Law (n 83) 87, 91. 112 Opinion in Case C-413/01, Ninni-Orasche, EU:C:2003:117, para 99. 113 See the trend started in Case C-158/07, Förster, EU:C:2008:630. 114 Case C-209/03, Bidar, EU:C:2005:169; and Case C-138/02, Collins, EU:C:2004:172.

96  The Right to Equal Treatment between the individual and the host Member State could prove that the inactive Union citizen had earned his equal treatment rights in the host Member State for a given social benefit. This legal development would do away with the need for a Member State to rely on abuse to deny rights as the demand for integration took over as a legal tool for the Member State to use when assessing the individual’s belonging within their social systems. In that regard, the relevance of the concept of abuse became somewhat superfluous in the sphere of EU citizenship and Articles 18 TFEU and 21 TFEU.115

III.  Establishing the Edges to Equal Treatment Rather than resorting to concepts of abuse as a basis for refusing equal treatment rights, the legal development of personal freedom of movement has amounted to that Member States may instead place a positive demand on the individual. Concerning non-economically active Union citizens, who may exercise the freedom to relocate for whatever purposes they wish, some other parameters are needed other than objectively genuine economic activity. To determine whether moving Union citizens under Article 21 TFEU have full rights to equal social inclusion, the responsibility for integrating the person is placed solely on the individual.116 The Union citizen needs to prove a genuine use of non-economic freedom of movement in order to benefit from its ancillary right to equal treatment. With this great freedom in the individual’s hands, conferred directly by primary law, integration of the person in the host Member State has gone from being the ‘goal’ of the right to equal treatment, to the ‘means’ of its attainment.117 The Union citizen exercising freedom of movement under Article 21 TFEU must prove that they have integrated, before enjoying full equal residential membership in the host Member State’s social system.118 The norms for how to measure this demand of integration on the noneconomically active Union citizen have evolved over time. In the early case law, mere legal residence, on any legal basis, was a sufficient basis for a noneconomically active Union citizen’s prima facie right to equal treatment in a host Member State under Articles 18 and 21 TFEU.

115 Costello has argued that the requirement of showing a real link to the Member State is a test that makes the concept of ‘abuse’ redundant and thereby welcomes the use of an integration requirement, see Costello (n 97) 347–49. 116 D Kramer, ‘Earning Social Citizenship in the European Union: Free Movement and Access to Social Assistance Benefits Reconstructed’ (2016) 18 Cambridge Yearbook of European Legal Studies 270, 275 f. 117 Thym (n 67) 36 f; Barnard, ‘EU Citizenship and the Principle of Solidarity’ (n 67) 174. 118 Case C-158/07, Förster, EU:C:2008:630. Kramer (n 116) 277. The demand of integration is also reflected in the Preamble to Directive 2004/38. On the prevalence, and benefits, of ‘integration’ as a tool for social rights coordination, see in general Rennuy (n 48).

Establishing the Edges to Equal Treatment  97

A.  First Development: ‘Legal’ Residence as the Basis for Equal Treatment After some years of hesitation as to the legal meaning of the status of EU citizenship,119 the Court began, in a direction, endorsed by some of its Advocates General,120 to refer to EU citizenship as destined to be the ‘fundamental status’ of the Member State nationals.121 Equal treatment became tied directly to this fundamental status for Union citizens residing legally in a host Member State. This raised the question of whether the cross-border worker status had served its purpose as a basis for residence and equal treatment rights.122 The proclaimed fundamental status of EU citizenship paired with the right to equal treatment could overtake the meaning of coming within the scope of the economic freedoms, as well as the relevance of an underlying national citizenship.123 EU citizenship had the potential to become the umbrella status for all Member Sate nationals in a cross-border situation, regardless of which fundamental freedom they were exercising.124

i.  Sala and Trojani: When Lawful Meant Integrated In one of the groundbreaking cases in that regard, Sala, the Court clearly pronounced a direct link between being a Union citizen, making a legal claim that itself came within the scope of Union law, and relying on the right to equal treatment of Article 18 TFEU.125 Through Sala and its following cases of Trojani and Grzelczyk, the right to equal treatment in a host Member State consolidated its characteristic as an individual and fundamentalised right, linked directly to the status of EU citizenship.126 The right to be treated as an equal with the national 119 See the early citizenship Case C-64/96, Land Nordrhein-Westfalen v Uecker and Jacquet / Land Nordrhein-Westfalen, EU:C:1997:285, where the Court chose not to develop EU citizenship. A period that Kostakopoulou refers to as one of ‘judicial minimalism’, see D Kostakopoulou, ‘Ideas, Norms and European Citizenship: Explaining Institutional Change’ (2005) 68 Modern Law Review 233, 244. 120 N Burrows and R Greaves, ‘The Advocates General and the Concept of Citizenship’ in N Burrows and R Greaves, The Advocate General and EC Law (Oxford, Oxford University Press, 2007) 268–75. 121 Case C-184/99, Grzelczyk, EU:C:2001:458, para 31. 122 S Fries and J Shaw, ‘Citizenship of the Union: First Steps in the European Court of Justice’ (1998) 4 European Public Law 533, 558. Iliopoulou and Toner (n 14) 392. E Spaventa, ‘From Gebhard to Carpenter: Towards a (Non-) Economic European Constitution’ (2004) 41 Common Market Law Review 743, 768 f. 123 For a proposal that national citizenship should not be the only basis for enjoying EU citizenship, see M-J Garot, ‘A New Basis for European Citizenship: Residence?’ in M La Torre (ed), European Citizenship: An Institutional Challenge (The Hague, Kluwer Law International, 1998). The latter would be a natural development phase of federal citizenship, see in general, C Schönberger, ‘European Citizenship as Federal Citizenship – Some Citizenship Lessons of Comparative Federalism’ (2007) 19 European Review of Public Law 61. 124 Compare with the Opinion in Case C-158/04, Alfa Vita Vassilopoulos, EU:C:2006:212, paras 40 and 51. 125 Case C-85/96, Martínez Sala v Freistaat Bayern, EU:C:1998:217, para 63. 126 Case C-456/02, Trojani, EU:C:2004:488; Case C-184/99, Grzelczyk, EU:C:2001:458. Neuvonen (n 37) 187.

98  The Right to Equal Treatment residents of a host Member State was available to the economically inactive Union citizen predicated on the condition that the person had legal residence in that host Member State.127 In these early citizenship cases, any type of legal residence (also on a non-EU legal basis) seemed to suffice to find that the individual Union citizen was genuinely exercising the right to free movement under, what is now, Article 21 TFEU. In Sala, a Union citizen’s residence right, based on a bilateral agreement between the host Member State of Germany and the home Member State of Spain, was sufficient to connect the person to the free movement right of EU citizenship and the right to equal treatment of Article 18 TFEU.128 Sala had a long history of residence in Germany based on this international agreement. The Court accepted that, despite not being a legal resident under applicable secondary legislation, she should still be considered as lawfully residing as a Union citizen.129 By being a legally resident Union citizen in a host Member State, she was fulfilling the objectives of Article 21 TFEU, and therefore making genuine use of freedom of movement. The Trojani case followed suit. A French national, residing in a Salvation Army homeless shelter in Belgium, based on having a Belgian residence permit issued under national law, was also found to fulfil the condition of lawful residence to trigger the status of EU citizenship and Article 18 TFEU to the social assistance claim.130 Finally, in the Grzelczyk case, the Court showed that the strict fulfilment of the Residence Directives’ conditions for lawful residence was of lesser importance than protecting a Union citizen student’s right to equal treatment under the fundamental status of EU citizenship.

ii.  An Obligation of Solidarity: Grzelczyk The student case of Grzelczyk revealed a strong interconnection between the status of EU citizenship, exercising freedom of movement under Article 21 TFEU, and the right to equal treatment of Article 18 TFEU, which had the effect of downplaying the importance of a strict fulfilment of the condition of lawful residence to claim equal treatment.131 Grzelczyk concerned a cross-border student, who was applying for a special social assistance allowance for students in the host Member State of study, where he had already lived and studied for some years. The Member State challenged whether Grzelczyk had a right to equal treatment with national students in the same situation, as cross-border students needed to have sufficient

127 Case C-85/96, Martínez Sala v Freistaat Bayern, EU:C:1998:217, para 61; Case C-456/02, Trojani, EU:C:2004:488, para 40. 128 Case C-85/96, Martínez Sala v Freistaat Bayern, EU:C:1998:217, paras 11–12. 129 ibid, para 61. 130 Case C-456/02, Trojani, EU:C:2004:488, para 40. 131 Case C-184/99, Grzelczyk, EU:C:2001:458.

Establishing the Edges to Equal Treatment  99 resources in order to have a legal right to reside under the Students Residence Directive 93/96.132 The Court admitted that Grzelczyk’s request for social assistance could signal that he was failing the lawful residence condition of economic self-sufficiency.133 However, for students, as opposed to other non-economically active Union citizens, the requirement of self-sufficiency need no proof in order to establish residence. It is enough that the student declares to have sufficient funds to support their stay in the host Member State, and to not become a burden on the social assistance system.134 The Court pointed out that such a declaration might well have been truthful at the time it was made, and therefore a correct basis for lawful residence status when the student first entered the host Member State. Nevertheless, the individual’s situation may change over time.135 Grzelczyk had been residing in Belgium as a cross-border student for three years based on the Students Residence Directive, before requesting any social assistance. That a student in that situation temporarily needs recourse to social assistance should therefore not automatically disqualify them from being a lawful resident.136 The Court pronounced that the three Residence Directives accepted ‘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’.137 The Court thereby, as it would repeat years later in its Brey judgment, found that the Member State should accept when a non-national Union citizen poses a r­easonable burden on the public finances.138 It affirmed that the Member States have an obligation to show some transnational solidarity with inactive Union citizens residing in their territories, without disqualifying them as lawful residents.139 The right to equal treatment, at this point in the legal development, gained a prevailing importance over the lawful residence requirement, but Grzelczyk is also a continuation of earlier cases affirming the free movement rights of cross-border students.140 To qualify under the cross-border student status in free movement law, may in itself be a sign that the use of freedom of movement is genuine. Students’ exercise of freedom of movement is in accordance with both the objectives of 132 Council Directive 93/96/EEC of 29 October 1993 on the right of residence for students. 133 Case C-184/99, Grzelczyk, EU:C:2001:458, para 42. 134 Article 1 of Council Directive 93/96/EEC, which is now Article 7(1)(c) of Directive 2004/38. Case C-184/99, Grzelczyk, EU:C:2001:458, paras 40–41. 135 Case C-184/99, Grzelczyk, EU:C:2001:458, para 45. 136 ibid, paras 42–43. EU free movement law is better at protecting the social assistance needs of those in temporary difficulties, rather than those whose needs are more permanent. See M Dougan, ‘The Constitutional Dimension to the Case Law on Union Citizenship’ (2006) 31 European Law Review 613, 622. 137 Case C-184/99, Grzelczyk, EU:C:2001:458, para 44. See Case C-140/12, Brey, EU:C:2013:565. 138 Case C-140/12, Brey, EU:C:2013:565, para 72. 139 E Spaventa, ‘Once a Foreigner, Always a Foreigner. Who Does Not Belong Here Anymore? ­Expulsion Measures’ in H Verschueren (ed), Residence, Employment and Social Rights of Mobile Persons: On How EU Law Defines Where They Belong, Social Europe Series 36 (Cambridge, Intersentia, 2016) 98. 140 Case C-293/83, Gravier v Ville de Liège, EU:C:1985:69; Case C-357/89, Raulin v Minister van Onderwijs en Wetenschappen, EU:C:1992:87.

100  The Right to Equal Treatment Article 21 and special provisions regarding higher education and student mobility of Title XII TFEU.141 Furthermore, citizen Grzelczyk had a longer history of lawful residence in accordance with the Students Residence Directive behind him before requesting equal treatment for the national solidarity system. This fact of having integrated in the host Member State, before making a social assistance claim, appeared to play a role in the Court’s judgment, as it emphasised that a temporary need for social assistance should not automatically lead to a withdrawal of the student’s residence right.142 Nevertheless, the Court’s proclamation of EU citizenship as a ‘fundamental status’ arguably laid the ground for all Union citizens, regardless of categorisation, being able to expect some level of equal treatment from just lawfully residing in a host Member State. Grzelczyk read in combination with the cases of Martinez Sala and Trojani, amounted to a line of jurisprudence where EU citizenship appeared as the overarching and fundamental status of the person. As such, it demanded prima facie equal treatment with resident nationals of the host Member State, ­regardless of which fundamental freedom a person was exercising. Legal residence was the bridge that linked the Union citizen to the right to equal treatment, but the material content of that legal residence was not problematised in these cases. EU citizenship and its rights to freedom of movement, and equal treatment, were at this point intertwined concepts of primary law value,143 which could not easily be dissolved by the limits and conditions in secondary legislation.144 However, these judgments predated the adoption of Directive 2004/38 and came out during the period that Spaventa calls ‘constitutive’ for EU citizenship law.145 During this phase, perhaps the Court was experimenting with the status of EU citizenship and its attached rights, treating it as generously as it had always done with the cross-border worker status, while pondering the ways in which it should be distinct from the market freedoms. EU citizenship could either be upheld as a fundamental status, overtaking any of the economic statuses, or merely a residual personal status, subsidiary to that of the worker or otherwise economically active persons.146 This conceptual struggle would take the status of EU citizenship into a

141 Case C-75/11, Commission v Austria, EU:C:2012:605, para 64. 142 Case C-184/99, Grzelczyk, EU:C:2001:458, para 43. 143 N Nic Shuibhne, ‘Derogating from the Free Movement of Persons: When Can EU Citizens Be Deported?’ (2006) 8 Cambridge Yearbook of European Legal Studies 187, 215–23. 144 On perceiving this as a broader constitutional effect of the judgment in Case C-413/99 Baumbast and R, EU:C:2002:493, see Dougan (n 136) 621. 145 E Spaventa, ‘Earned Citizenship: Understanding Union Citizenship Through Its Scope’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017) 208. 146 Compare Advocate General Poaires Maduro’s argumentation for the treatment as EU citizenship as foundational for all fundamental freedoms in his Opinion in Case C-158/04, Alfa Vita Vassilopoulos, EU:C:2006:212 with that of Advocate General Geelhoed’s argumentation that it is a residual status, subsidiary to the worker status in the Opinion in Case C-212/05, Hartmann, EU:C:2006:615. See also N Nic Shuibhne, ‘EU Citizenship after Lisbon’ in D Ashiagbor, N Countouris and I Lianos (eds), The European Union after the Treaty of Lisbon (Cambridge, Cambridge University Press, 2012) 147.

Establishing the Edges to Equal Treatment  101 new development phase, where mere legal residence would soon be perceived as insufficient for equal treatment rights under Article 18 TFEU. Some other objective signs of a ‘genuine use’ of freedom of movement had to be added in order for the Union citizen to qualify for a right to equal treatment as a fully included resident in a host Member State.

B.  Second Development: Demanding Sufficient Integration and Genuine Links Progressively, the Court modified the connection between the status of EU citizenship and lawful residence for coming within the scope of equal treatment under Article 18 TFEU. While legal residence remained a necessary basis for equal social rights, some other qualitative factors demonstrating integrational links were explicitly added as a prerequisite before the right to equal treatment could be legitimately claimed under the status of EU citizenship and Article 21 TFEU. In cases like Collins, D’Hoop and Bidar, the Court developed the normative view that, in addition to legal residence, some objective sign of integration is a legitimate prerequisite for a Union citizen’s enjoyment of the right to equal treatment as a resident national under Article 18 TFEU. These cases established the norms of a certain degree of integration and genuine links. The genuine use of freedom of movement under Article 21 TFEU was from then on not demonstrated only by legal residence, but needed to be combined with proof of some integrational links to the Member State. This rationale would function both to assert equal treatment of the Union citizen in a host Member State and to ensure equal inclusion in the home Member State of the returning Union citizen, after having exercised freedom of movement.147

i.  Jobseekers and Genuine Links: Collins and D’Hoop In Collins and D’Hoop, the Court elaborated on how a Union citizen without a sufficient history of territorial residence under national norms may nevertheless have genuine links to a Member State to rely on the right to equal treatment for a social benefit.148 The relevant factors that qualified as a genuine link were directly related to the nature of the benefit that the Union citizen was claiming. In the Collins case, the Court reasoned that an active jobseeker with g­ enuine chances of becoming employed had proven a genuine link to the national

147 Case C-138/02, Collins, EU:C:2004:172; Case C-224/98, D’Hoop, EU:C:2002:432; and Case C-209/03, Bidar, EU:C:2005:169. 148 Case C-138/02, Collins, EU:C:2004:172, para 69; and Case C-224/98, D’Hoop, EU:C:2002:432, para 38.

102  The Right to Equal Treatment employment market.149 This link brought the jobseeker status close to the worker status of Article 45 TFEU. This provision, in combination with the concept of a ‘fundamental’ status of EU citizenship, and the right to equal treatment of Article 18 TFEU afforded the jobseeker equal access to a jobseeker allowance, which by its nature served to facilitate access to the job market.150 The reasoning in the Collins case shaped a sort of hybrid status of EU citizenship and cross-border worker, making the jobseeker status into one of a special standing in free movement law.151 While strengthening the right to equal treatment, the Collins judgment also established the legitimacy of the Member States to demand a proven link between the individual and the domestic labour market to which the social benefit refers, as a prerequisite for equal treatment. This would be a justified and proportionate means for the Member States to limit a non-economically active Union citizen’s equal treatment rights under Article 18 TFEU.152 These limits have been drawn out even more in the more recent jobseekers’ cases, such as Alimanovic and García-Nieto.153 The case of D’Hoop marked the starting point of using genuine links as a legal tool for protecting a Union citizen’s equal treatment rights in relation to the home Member State.154 The case showed how a returning Union citizen risks being disadvantaged because of non-fulfilment of national residence requirements for a benefit, as a direct consequence of having exercised freedom of movement to a host Member State, failing to reside at ‘home’. In D’Hoop, a Belgian national student was denied a special unemployment allowance by Belgian authorities, which was otherwise available to students while transitioning into employment. The reason was that, because of partly being brought up in France, the applicant D’Hoop failed the eligibility criteria of residence and completion of secondary school in Belgium for access to the allowance. The Court found that the right to equal treatment under Article 18 TFEU applied to a Union citizen when faced with their home Member State, after having made use of freedom of movement under Article 21 TFEU.155 The Court acknowledged that it could be justified that a Member State demands a real link between an applicant and the national employment market in order to benefit from this particular kind of allowance.156 However, the eligibility criteria for the benefit used in national law was too exclusionary, as it disregarded other personal circumstances to prove an applicant’s genuine link to the Belgian labour market. Arguably, a returning national, having enjoyed free

149 Case C-138/02, Collins, EU:C:2004:172. 150 ibid. 151 N Nic Shuibhne, ‘“What I Tell You Three Times is True”: Lawful Residence and Equal Treatment after Dano’ (2016) 23 Maastricht Journal of European and Comparative Law 908, 926–27. 152 J Meulman and H de Waele, ‘Funding the Life of Brian: Jobseekers, Welfare Shopping and the Frontiers of European Citizenship’ (2004) 31 Legal Issues of Economic Integration 275, 285. 153 Case C-67/14, Alimanovic, EU:C:2015:597; and Case C-299/14, García-Nieto and Others, EU:C:2016:114. 154 Case C-224/98, D’Hoop, EU:C:2002:432. 155 ibid, para 35. 156 ibid, paras 34–38.

Establishing the Edges to Equal Treatment  103 movement rights as a Union citizen, now seeking to establish t­ hemselves in their home Member State’s employment market, could be said to have such a ­genuine link. The criteria used in domestic law for access to the allowance was not justified, as it ‘unduly favours an element which is not necessarily representative of the real and effective degree of connection between the applicant for the tideover allowance and the geographic employment market, to the exclusion of all other representative elements’.157 In this way, the genuine links doctrine would develop its usefulness to protect equal treatment rights of circular Union citizens, in their relationship to their home Member State on their return as inactive Union citizens.158 This has notably been useful for cross-border students.

ii.  Students and Genuine Links: Strengthening the Bond of Nationality The protection of the bond between a Union citizen and his Member State of nationality under Article 18 TFEU is particularly important for the enjoyment of study maintenance grants, as a non-economically active Union citizen will have restricted access to these grants in a host Member State under Article 24(2) of Directive 2004/38.159 By seeing study maintenance grants as requiring a special integrational bond to the Member State that provides them,160 equal access to such grants have also been found by the Court to be, under given circumstances, legitimately limited for frontier workers and their children.161 Protecting the integrational bond of the returning national, wishing to pursue studies, was a clear aim in the Prinz and Seeberger case.162 Here, a returning young Union citizen was disadvantaged in relation to exportable study maintenance grants due to not having been a resident in the home Member State for a sufficiently long period. Similar to D’Hoop, the Court found that the requirement of durational residence as the only basis for eligibility to be too exclusionary, and not necessarily representative of the real and effective degree of connection between a person and a Member State in relation to the nature of the benefit.163 Following the Opinion of the Advocate General, the Court in Prinz enumerated a number of factors that could demonstrate a Union citizen’s genuine links to a Member State, despite failing to be a resident.164 Such links may be that the person has the

157 ibid, para 39. 158 Joined Cases C-523/11 and C-585/11, Prinz and Seeberger, EU:C:2013:524. 159 Barnard, ‘EU Citizenship and the Principle of Solidarity’ (n 67) 177. On the exportability of study maintenance grants, see in general, Skovgaard-Petersen (n 57). 160 Why study grants have such a national quality to them has been questioned by AP van der Mei, ‘Union Citizenship and the Legality of Durational Residence Requirements for Entitlement to Student Financial Aid’ (2009) 16 Maastricht Journal of European and Comparative Law 477, 493. 161 Case C-20/12, Giersch and Others, EU:C:2013:411. 162 Joined Cases C-523/11 and C-585/11, Prinz and Seeberger, EU:C:2013:524. 163 ibid, para 37. 164 Opinion in Joined Cases C-523/11 and C-585/11, Prinz and Seeberger, EU:C:2013:90, para 95.

104  The Right to Equal Treatment nationality of that State, family links, employment history, language skills, as well as other social and economic factors.165 It would be too exclusionary to disregard such links and their relevance for access to the study maintenance grants in question, by applying a blanket residence requirement.166

iii.  Protecting an Important Bond or Welfare Nationalism? As pointed out from highly different viewpoints in scholarship, the genuine links doctrine tends to first and foremost protect the national Union citizen from losing social advantages in the home Member State, due to the person’s use of freedom of movement.167 Supporting this tendency is the argument that the exercise of freedom of movement should not put at risk the link that a Union citizen has to the home Member State, which may be assumed is the most important one for a person.168 The genuine links doctrine is therefore an effective means to protect that bond. Conversely, to demand genuine links functions as an efficient basis for the Member States to lawfully exclude the non-national Union citizen from equal treatment rights. A critique is that this induces ‘welfare nationalism’,169 making it impossible to access solidarity-based benefits anywhere but in the Member State of nationality.170 Regardless of which perspective one adheres to, it is clear that EU free movement law normatively emphasises that the home Member State is always that of nationality. This can arguably be problematic in a situation of a Union citizen’s direct migration from a third country to a host Member State, based on a passport of a Member State of nationality where the Union citizen has never resided.171 Furthermore, it creates large discrepancies between Union citizens’ material possibility to exercise freedom of movement, directly depending on their nationality. If this national belonging determines the social safety net that they have to rely on, both for the exportability of social benefits, and for what minimum social protection may ultimately be available to them within the Union,

165 Joined Cases C-523/11 and C-585/11, Prinz and Seeberger, EU:C:2013:524, para 38. See also Joined Cases C-11/06 and C-12/06, Morgan and Bucher, EU:C:2007:626. 166 Joined Cases C-523/11 and C-585/11, Prinz and Seeberger, EU:C:2013:524, para 40. 167 For a critique of the genuine links doctrine and its effect of normatively endorsing ‘welfare nationalism’, see C O’Brien, ‘Civis Capitalist Sum as the New Guiding Principle of EU Free Movement Rights’ (2016) 53 Common Market Law Review 937, 942. For a defence of the doctrine, as circular migrants’ need to be assured that they will not lose connection to the home Member State as a result of exercising freedom of movement, see K Lenaerts, ‘European Union Citizenship, National Welfare Systems and Social Solidarity’ (2011) 18 Jurisprudencija 397, 417. 168 Lenaerts (n 167) 417. 169 Term used in general by O’Brien, ‘Civis Capitalist Sum’ (n 167). For a discussion on when nationality prevails as defining solidarity circles, see also Barnard, ‘EU Citizenship and the Principle of Solidarity’ (n 67) 159–60. 170 E Spaventa, ‘Citizenship: Reallocating Welfare Responsibilities to the State of Origin’ in P Koutrakos, N Nic Shuibhne and P Syrpis (eds), Exceptions from EU Free Movement Law Derogation, Justification and Proportionality, Modern Studies in European Law (Oxford, Hart Publishing, 2016) 45. 171 See in general, Y Harpaz, ‘Ancestry into Opportunity: How Global Inequality Drives Demand for Long-Distance European Union Citizenship’ (2015) 41 Journal of Ethnic and Migration Studies 2081.

Establishing the Edges to Equal Treatment  105 the opportunities of freedom of movement are reserved for only some Member State nationalities.172 For non-economically active Union citizens’ right to equal treatment as a resident in a host Member State, the Court developed the rationale that the host Member State may add a demand of sufficient integration to the basic prerequisite of legal residence, before full enjoyment of the right to equal treatment.

iv.  A Certain Degree of Integration for Equal Treatment: Bidar Bidar was a judgment emanating from the interface period of the EU citizenship cases based on the older Residence Directives and the entry into force of the new Directive 2004/38.173 There was therefore an awareness in the Court’s reasoning in this case of the norms regarding equal treatment that were to come through the new Directive’s provisions. Bidar was a university student who held lawful residence in the United Kingdom and had attended secondary school in that host Member State. The British authorities were applying an eligibility condition for Union citizens, which meant that if the person did not come within the personal scope of the Workers Regulation 1612/68, they had to be ‘settled’ in the United Kingdom to have equal access to national study maintenance grants and study loans. However, the definition in national law did not allow a non-national Union citizen, with mere student status, to ever qualify as ‘settled’.174 Bidar’s application for study loans assistance was therefore rejected. The Court reasoned that although study maintenance grants had previously been found to be excluded from the scope of application of what is now Article 18 TFEU,175 it now came within that scope. This was clear in the wording of the newly adopted Directive 2004/38’s equal treatment provision in Article 24(2).176 Although that provision contained an explicit derogation from equal treatment for study maintenance grants, the fact that such grants appeared in the provisions showed that they were now within the material scope of Union law. In that regard, a secondary law provision in the new Directive changed the material scope of application of its primary law counterpart, something that would be a significant characteristic of the Directive’s provisions in cases to come. As a result, Bidar, as a lawful resident in a host Member State, could rely on Article 18 TFEU to claim equal treatment for any form of student assistance, whether it was in the shape of maintenance grants

172 See analysis in this regard by C Bruzelius, C Reinprecht and M Seeleib-Kaiser, ‘Stratified Social Rights Limiting EU Citizenship’ (2017) 55 Journal of Common Market Studies 1239. See also, F Strumia, ‘Remedying the Inequalities of Economic Citizenship in Europe: Cohesion Policy and the Negative Right to Move’ (2011) 17 European Law Journal 725. On EU citizenship as a ‘composite’ citizenship, where the specific national component is of high importance, see van Eijken (n 5) 268 f. 173 Case C-209/03, Bidar, EU:C:2005:169. 174 ibid, para 18. 175 As had already been found in the pre-citizenship Case C-39/86, Lair v Universität Hannover, EU:C:1988:322, para 15. 176 Case C-209/03, Bidar, EU:C:2005:169, para 43.

106  The Right to Equal Treatment or loans.177 The Court here found that a blanket exclusion in national law of nonnational Union citizen students from equal treatment for study grants and loans was an indirect discrimination on grounds of nationality.178 However, the Court pointed out that it was legitimate for a host Member State to demand, not only legal residence, but also that a Union citizen like Bidar demonstrated a sufficient degree of integration, before giving the person equal access to student assistance on par with national residents.179 In Bidar’s case, his residence history and secondary schooling in the host Member State could demonstrate a sufficient integration to the host Member State in relation to the claimed study assistance. The notable difference in Bidar, compared with D’Hoop and Collins, was that the link did not necessarily have to be market-based, as in a link to the national employment market. The novelty in Bidar was that a Union citizen’s personal and horizontal link to the host society demonstrated a sufficient degree of integration.180 The Court’s reasoning on what constitutes a sufficiently genuine link to a host Member State, in relation to the specific nature of a claimed social benefit, was also seen in the Commission v Austria case. The Court here highlighted that the genuine link required between the student claiming a benefit and the host Member State need not be fixed in a uniform manner for all benefits, but should be established according to the constitutive elements of the benefit in question, including its nature and purpose or purposes.181

The Court went on to find that Union citizen students, enrolled at a higher educational establishment in a host Member State, and thereby fulfilling the residence requirements of Article 7(1)(c) of Directive 2004/38, were thereby lawfully exercising their right to free movement as students. In this manner, having the cross-border student status fulfilled the legitimate requirement of a genuine link between themselves and the host Member State.182 Based on that link, they had a right to equal treatment concerning the sort of social advantages that resident national students could claim. In the given case, the claim concerned a social security scheme that granted reduced transport fares for students whose families resided in Austria. This disadvantaged students whose families were residing in 177 ibid, para 42. 178 ibid, paras 51–54. 179 ibid, para 57. 180 X Groussot, ‘“Principled Citizenship” and the Process of European Constitutionalization – From a Pie in the Sky to a Sky with Diamonds’ in U Bernitz et al (eds), General Principles of European Community Law, Reports from a Conference in Stockholm, 23–24, March 2007, Organised by the Swedish Network for European Legal Studies and the Faculty of Law, University of Lund (Alphen aan den Rijn, Kluwer Law International (Wolters Kluwer), 2008) 327. Compare with the Court’s reasonings in Case C-39/86, Lair v Universität Hannover, EU:C:1988:322; and Case C-413/01, Ninni-Orasche, EU:C:2003:600. 181 Case C-75/11, Commission v Austria, EU:C:2012:605, para 63. 182 ibid, para 64.

Establishing the Edges to Equal Treatment  107 other Member States, which resulted in an indirect discrimination on grounds of nationality liable to predominately affect cross-border students.183 In this case, to reside under the student status in accordance with the residence conditions of Article 7(1)(c) in a host Member State constituted the genuine link in itself. This treatment of the residence conditions found in Article 7 of Directive 2004/38 was foreboding for how the strict fulfilment of the conditions of that provision, in more recent jurisprudence, has developed into being synonymous with having a sufficient degree of integration for equal treatment with regard to solidarity-based benefits.184

C.  The Third Development: Directive 2004/38 Dissolving the Direct Link between the Status of EU Citizenship and a Right to Equal Treatment As from the time of entry into force of Directive 2004/38 in 2006, many questions referred to the Court would concern interpretations of the Directive’s limits and conditions on free movement rights. Gradually, these conditions have, in the case law become the necessary prerequisites for a Union citizen’s successful reliance on the right to equal treatment.185 The Preamble of the Directive states that it aims to strengthen and facilitate the exercise of the right to free movement and residence of all Union citizens.186 In the Court’s judgments, it has become the secondary law basis for limiting the substantive content of the status of EU citizenship in free movement law,187 and it now provides the legal edges to Article 18 TFEU for a Union citizen’s equal treatment claims as a residential member of a host Member State. O’Brien has referred to this process as the Court’s ‘project of EU citizenship-deconstruction’,188 whereas Tryfoniodu perceives it as a period where the concept of EU citizenship may be ‘coming of age’.189 Nic Shuibhne highlights that the Court has not managed, in a coherent manner, to integrate the fundamental rights standards of the EU Charter of Fundamental Rights (the Charter) into its jurisprudence on Union citizens’ 183 ibid, paras 50–51. 184 Notably affirmed in Case C-333/13, Dano, EU:C:2014:2358. 185 Tryfonidou refers to this as, following a Growth Phase (1998–2005), EU citizenship entered into a phase of Turbulent (Early) Adolescence (2006–09). See A Tryfonidou, The Impact of Union Citizenship on the EU’s Market Freedoms, Modern Studies in European Law (Oxford, Hart Publishing, 2016) 43 f. 186 Recital 3 of the Preamble to Directive 2004/38. 187 N Nic Shuibhne, ‘Limits Rising, Duties Ascending: The Changing Legal Shape of Union Citizenship’ (2015) 52 Common Market Law Review 889, 908–09. 188 C O’Brien, ‘The ECJ Sacrifices EU Citizenship in Vain: Commission v United Kingdom’ (2017) 54 Common Market Law Review 209, 240. 189 This period would be as from 2010 up until the present, see Tryfonidou, The Impact of Union ­Citizenship on the EU’s Market Freedoms (n 185) 49 f.

108  The Right to Equal Treatment equal treatment rights in the Directive.190 This latter point will be addressed further in chapter seven. The controversial development phase of the 2010s, where the link between EU citizenship and the right to equal treatment for economically inactive Union citizens has become absorbed through the prism of Directive 2004/38, was launched in the 2008 case of Förster.

i.  Durational Lawful Residence as Integration: Förster In the Förster judgment, the Court found that the equal enjoyment of study maintenance grants for Union citizen students could legitimately be conditioned by a number of years of lawful residence in the host Member State.191 Förster was a young German national, residing in the Netherlands. Through entering employment alongside pursuing studies, she came within the worker provision of what is now Article 45 TFEU. By working while studying, Förster could therefore enjoy the cross-border worker status equal treatment rights under the Workers Regulation 1612/68, and receive Dutch study maintenance grants.192 It then transpired that Förster had ceased work for part of her studies, and during that period, had not retained worker status in accordance with the conditions in Regulation 1251/70.193 She had ‘only’ had cross-border student status as a basis for her residence and equal treatment rights in the Netherlands during that time. As a result, the Dutch authorities requested that she repaid the grants she had received for that period. The Dutch State argued that, unlike the situation in Bidar, Förster had not been ‘in any way integrated into Dutch society’, before starting her studies in the Netherlands.194 Similarly, to its reasoning in Bidar, the Court recognised the potential burden that cross-border students could pose on a host Member State if they were to have equal access to publicly funded education, as well as study maintenance grants.195 To require a certain degree of integration was a legitimate demand, and to have resided for a certain length of time before pursuing studies could reflect such integration.196 The Court here departed from its reasoning on integration, known from Bidar and D’Hoop, where a variety of ‘representative elements’ could be taken into account to assess the individual’s link in relation to a specific benefit.197 190 See in general, N Nic Shuibhne, ‘Integrating Union Citizenship and the Charter of Fundamental Rights’ in D Thym (ed), Questioning EU Citizenship: Judges and the Limits of Free Movement and ­Solidarity in the EU, Modern Studies in European Law (Oxford, Hart Publishing, 2017). 191 Case C-158/07, Förster, EU:C:2008:630. 192 Cross-border worker and student status are not mutually exclusive in free movement law, see Case C-46/12, N, EU:C:2013:97. 193 Regulation (EEC) No 1251/70 of the Commission of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State. 194 Case C-158/07, Förster, EU:C:2008:630, para 22. 195 ibid, para 48. See also Jørgensen (n 28) 1576. 196 Case C-158/07, Förster, EU:C:2008:630, paras 49–50. 197 Case C-224/98, D’Hoop, EU:C:2002:432, para 39.

Establishing the Edges to Equal Treatment  109 Instead, the Court found that a blanket requirement of durational lawful residence of five years was a justified and proportionate demand for fulfilling the requirement of integration.198 Although Directive 2004/38 was not applicable in the case, it found support for this reasoning in the Directive’s Article 24(2), containing the derogation from equal treatment for study maintenance grants up until the Union citizen has obtained permanent residence status.199 The Dutch five-year residence requirement had been adopted precisely to reflect this new secondary law provision, limiting the right to equal treatment. Advocate General Mazák, in his Opinion in the case, had argued that the fiveyear residence requirement of Article 24(2) should rather be treated as an ‘outer limit’, beyond which a Union citizen’s integration can no longer be disputed, but it should not be used as an exclusionary minimum requirement of integration.200 In Förster’s case, she had already resided for three full years in the Netherlands before the ‘pure’ student status phase began. She had worked in the Netherlands and had a Dutch partner. The Advocate General argued that it would be disproportionate to not allow a Union citizen to rely on other ‘reasonable evidence that he or she is already substantially integrated into the society of the host Member State.’201 Maintaining a contrasting stance, the Court did not see a need to consider other integrational factors in order for the Dutch five-year residence demand to comply with Article 18 TFEU. The five-year residence requirement sufficiently safeguarded the interests of students and was a betterment of their rights in comparison to earlier national policies.202 This way of reasoning, to see the stated conditions and limits of Directive 2004/38 as a full and appropriate consideration of an individual’s legal standing for equal treatment, would be repeated in the later case of Alimanovic, concerning the derogation to equal treatment for social assistance of Article 24(2).203 The judgment in Förster ended the legal development phase where the status of EU citizenship and legal residence on any legal basis might provide a direct route to equal treatment under Article 18 TFEU. The aftermath of Förster would also do away with the relevance of other integrational factors as a means of qualifying for the right to equal treatment in a host Member State. Residence in accordance with the norms of the Directive would become the sole, golden standard of genuine use of freedom of movement. The positive side of letting the norms of the Directive prevail in this way, was that the five-year requirement and permanent residence status also emerge as an assumption of integration, meaning that Member States cannot restrict Union



198 Case

C-158/07, Förster, EU:C:2008:630, paras 52–54. para 55. 200 Opinion in Case C-158/07, Förster, EU:C:2008:399, para 132. 201 ibid, para 133 (emphasis added). 202 Case C-158/07, Förster, EU:C:2008:630, paras 69–70. 203 Case C-67/14, Alimanovic, EU:C:2015:597, paras 60–61. 199 ibid,

110  The Right to Equal Treatment citizens’ and their family members’ social inclusion by any further conditions.204 Nevertheless, Article 18 TFEU was now loosened from its close tie to EU citizenship, opening up an expandable space between its status and the enjoyment of equal treatment rights. Rather than being directly conferred by the primary law provisions of EU citizenship and Articles 18 and 21 TFEU, it instead assumed the character of being preconditioned by the Directive’s norms of qualitative, temporal and economically self-sufficient residence. It is the non-economically active Union citizen and their children, who are at a loss from the Förster reasoning, as they cannot become students in their host Member State of residence until after five years of residence.205 There is also no individual right in Union law to exportability of study maintenance grants from a home Member State.206 To enter into student status is therefore more difficult when the non-economically active Union citizen is already in a cross-border situation, than to enter into a free movement situation when already having that student status.207 In general, it is the non-economically active Union citizens, exercising freedom of movement under Article 21 TFEU, who are the most likely to find themselves at the legal edges of equal treatment in the current phase of the legal development.

IV.  Article 7 of Directive 2004/38 as the Sole Test of Integration To demand genuine links was perhaps the Court’s attempt to find a balanced approach to the non-economically active Union citizen’s equal treatment claims, and the Member States’ wish to protect their national solidarity systems.208 This made the normative content of what constitutes genuine links or sufficient degrees of integration pivotal for the Union citizen’s standing in relation to equal treatment claims under the status of EU citizenship. By the mid-2010s, the case law reached a point where any individual factors of integration were downplayed. Instead, the lawful residence test of Article 7 of Directive 2004/38 and the legislated derogations from equal treatment in its Article 24 absorbed the legal meaning of a Union citizen’s integrational links to a host Member State, and thereby also exhausted the meaning of ‘genuine use’ of freedom of movement. 204 This gives a clear advantage to the Union citizen compared with the TCN, to whom ‘real’ integration requirements may still apply, see Jesse (n 71) 188. 205 van der Mei, ‘Union Citizenship and the Legality of Durational Residence Requirements for ­Entitlement to Student Financial Aid’ (n 160) 487. 206 Skovgaard-Petersen (n 57) 788. 207 For a reasoning on how free movement law privileges mobile students at the expense of static Union citizens, see A Somek, ‘Solidarity Decomposed: Being and Time in European Citizenship’ (2007) 32 European Law Review 787, 818. Davies, ‘The Humiliation of the State as a Constitutional Tactic’ (n 93) 170–72. 208 H Verschueren, ‘Preventing “Benefit Tourism” in the EU: A Narrow or Broad Interpretation of the Possibilities Offered by the ECJ in Dano?’ (2015) 52 Common Market Law Review 363, 365.

Article 7 of Directive 2004/38 as the Sole Test of Integration  111 The requirement of legal residence and sufficient integration as a prerequisite for equal treatment209 has become synonymous with the individual’s strict fulfilment of the residence conditions of Article 7 of the Directive,210 most easily fulfilled by the individual who is active within, or retains the worker status.211 In several judgments the Court has confirmed that no considerations other than the Directive’s categorical conditions and limits to residence and equal treatment need to be taken into account to assess whether the Union citizen’s legal claim comes within the scope of Article 18 TFEU.212 However, failure to fulfil the Directive’s requirements for equal treatment is not synonymous with having lost a right to reside, and it does not constitute a ground for expulsion. This creates legal spaces of uncertainty for Union citizens and their family members’ minimum social protection rights in the host Member State where they might legally reside, but are barred from making a successful equal treatment claim based on the status of EU citizenship.

A.  The Narrow Ground for Expulsion Measures for Economic Reasons: Brey Article 14(3) of Directive 2004/38 confirms what the Court held in Grzelczyk: that an expulsion measure is not to be the automatic result of a Union citizen having requested social assistance.213 Similarly, in Brey, the Court found that for an inactive Union citizen to receive social assistance in the host Member State is not a ground for losing residence rights.214 The Brey case would prove to be a judgment that bridged the Court’s older line of reasoning concerning the conditions for residence and equal treatment for inactive Union citizens, to its new rationale of reducing the non-economically active Union citizen’s link to equal treatment rights, by only letting them go through the prism of the economic residence conditions of Directive 2004/38.215 The Brey case concerned a non-national Union citizen pensioner, who was residing in Austria and requested a supplementary pension benefit for retired persons with low pension incomes.216 Under Regulation 883/2004, this 209 Thym (n 67) 36 f. 210 M Cousins, “‘The Baseless Fabric of This Vision”: EU Citizenship, the Right to Reside and EU Law (2016) 23 Journal of Social Security Law 89, 96. 211 As seen in Case C-507/12, Saint Prix, EU:C:2014:2007. See O’Brien, ‘The ECJ Sacrifices EU ­Citizenship in Vain: Commission v United Kingdom’ (n 188) 225. 212 Case C-158/07, Förster, EU:C:2008:630; Case C-67/14, Alimanovic, EU:C:2015:597; and Case C-123/08, Dominic Wolzenburg, EU:C:2009:616. 213 Case C-184/99, Grzelczyk, EU:C:2001:458, para 43. 214 Case C-140/12, Brey, EU:C:2013:565, para 65. 215 Making Brey a ‘Janus-faced’ judgment according to G Davies, ‘Migrant Union Citizens and Social Assistance: Trying to Be Reasonable About Self-Sufficiency’ (2016) College of Europe Research Paper in Law 1, 12. 216 Case C-140/12, Brey, EU:C:2013:565.

112  The Right to Equal Treatment supplement was classified as a special non-contributory cash benefit (SNCB). For equal t­reatment in relation to an SNCB, the system of social security coordination applies the norm of ‘habitual residence’, as defined in Implementation Regulation 987/2009.217 Habitual residence is a legal concept that designates the Member State where a person covered by the Regulation has their factual ‘centre of interest’, and has little to do with the Directive’s conditions of lawful residence.218 Habitual residence within the meaning of the Implementation Regulation does not function as a lawful residence test, nor as a test of a person’s genuine links or sufficient integration to a particular Member State. However, it can be argued that the assessment of a person’s centre of interest in this regard lies closer to the semantic understanding of an individual’s ‘real’ place of integration.219 To determine a person’s Member State of habitual residence, Article 11 of the Implementation Regulation considers factors such as the duration and continuity of presence in the Member State, the nature of any activity the person pursues in the Member State, the person’s family status and family ties, and how permanent the person’s housing situation is. Following the rationale of the social security coordination regime of determining a sole competent Member State, there can be only one Member State where a Union citizen has their ‘centre of interest’, and that is the national system where they should be covered by SNCBs.220 Before Brey, the concept of SNCB in the Regulation had previously not been associated with that of social assistance within the meaning of Directive 2004/38.221 As a novelty compared with previous case law, in Brey, the Court transposed the concept of social assistance in the Directive, to include a social benefit that was classified as an SNCB in the Regulation. The Court held that the special Austrian income supplement that was the SNCB at issue in Brey could be defined as social assistance in the Directive, as by its nature, it was aimed at alleviating poverty.222 That an individual had such a low income, that they were eligible for this kind of benefit in the host Member State, could therefore be an indication that the person failed to fulfil the requirement of self-sufficiency for lawful residence in the Directive’s Article 7(1)(b). However, the Court continued to say that there was

217 Article 11 of Regulation 987/2009. 218 The length of a person’s stay in a host Member State is not an intrinsic element of the concept of residence within the meaning of Regulation 987/2009, see Case C-255/13, I, EU:C:2014:1291, paras 48–49. F van Overmeiren, E Eichenhofer and H Verschueren, ‘Social Security Coverage of Non-Active Persons Moving to Another Member State’ in E Guild, C Gortázar Rotaeche and D Kostakopoulou (eds), The Reconceptualization of European Union Citizenship (Leiden, Brill, 2013) 253. See also M Cousins, ‘Habitual Residence: Fact or (Legal) Fiction? Commentary on the Case of I v Health Service Executive at the European Court of Justice’ (2014) 16 European Journal of Social Security 385. 219 Article 11 of Regulation 987/2009. See van Overmeiren, Eichenhofer and Verschueren (n 218) 257. 220 Article 11 of Regulation 987/2009. For definitions of habitual residence in the case law, see Case C-90/97, Swaddling, EU:C:1999:96, para 29; and Case C-255/13, I, EU:C:2014:1291, paras 44–49. Pennings, European Social Security Law (n 49) 66–67. 221 Paju (n 40) 226–29. 222 Case C-140/12, Brey, EU:C:2013:565, para 34.

Article 7 of Directive 2004/38 as the Sole Test of Integration  113 nothing in Directive 2004/38 to preclude that inactive Union citizens receive social security benefits in a host Member State.223 As a result, to grant a Union citizen in that situation a social assistance-like benefit does not automatically mean that there are grounds to actively withdraw their right to reside.224 Only if the host Member State, with due regard to the principle of proportionality, finds that the grant of the benefit could place a burden on its social assistance system as a whole, are there grounds for actively withdrawing the inactive Union citizen’s right to reside.225 In other words, the applicant Brey most probably retained a right to reside in the host Member State.226 The issue was rather whether a union citizen might have a right to equal treatment based on that lawful residence in such a situation. The Court highlighted that an expulsion measure may not be taken without the host Member State’s examination of ‘whether the person concerned is experiencing temporary difficulties and take into account the duration of residence of the person concerned, his personal circumstances, and the amount of aid which has been granted to him’.227 This signalled that the reasoning of Grzelczyk still applied; the fundamental right of freedom of movement and the equally fundamental status of EU citizenship created an obligation that the Member States should tolerate a Union citizen becoming a ‘reasonable’ burden, and to show at least some transnational solidarity.228 Simultaneously, the Brey case confirmed that there is an upper limit to this obligation of solidarity. It does not go as far as to obligate the host Member State to accept an inactive Union citizen’s permanent dependence on social assistance.229 To grant Brey the claimed benefit might, in the long term, make the person such a burden that they would ultimately lose a right to reside.230 In that view, it was likely justified to deny him equal treatment for the sought benefit in the first place. The judgment in Brey thereby contained the contrasting elements of both the old and new rationale applied by the Court in the area of non-economically active Union citizens’ free movement rights. On the one hand, the Court widened the meaning of social assistance in Directive 2004/38, which in subsequent cases, would make the derogations from equal treatment in the Directive’s Article 24 more easily applicable. On the other hand, it protected the residence rights of the Union citizen who might receive social assistance-like benefits, by reference to the obligation of solidarity and a classical proportionality assessment.

223 ibid, para 65. 224 ibid, para 75. 225 ibid, para 72. 226 Davies, ‘Migrant Union Citizens and Social Assistance’ (n 215) 12. 227 Case C-140/12, Brey, EU:C:2013:565, para 69. 228 ibid, para 72. Spaventa, ‘Once a Foreigner, Always a Foreigner’ (n 139) 98. 229 Case C-140/12, Brey, EU:C:2013:565, paras 75–79. This has been called the ‘Victorian’ nature of EU citizenship, see Dougan (n 136) 622. 230 Davies, ‘Migrant Union Citizens and Social Assistance’ (n 215) 12–13.

114  The Right to Equal Treatment In this manner, the Brey case bridged the old and the new jurisprudence concerning the status of EU citizenship and how it relates to residence and equal treatment rights. In cases following Brey, the legal development has however taken a distinct turn towards transforming the status of EU citizenship from a fundamental to a residual status, applying strict preconditions for enjoying a right to equal treatment, but all the while protecting a Union citizen’s presence in the host Member State. This development constitutes the prevailing core of the judgments that have followed, including Dano, Alimanovic and García-Nieto.231 All three cases concerned an SNCB that the Court placed within the meaning of social assistance in Directive 2004/38, and each case resulted in the sharpening of a new legal edge to the EU citizenship right to equal treatment.

B.  Three Legal Edges of Equal Treatment: Dano, Alimanovic and García-Nieto Following Brey, Articles 7 and 16 of Directive 2004/38 evolved into being the exclusive path to enjoyment of the right to equal treatment for social benefits that are defined as ‘social assistance’. To reside in accordance with these provisions, is to make genuine use of freedom of movement, which both rebuts accusations of abuse, as well as satisfies the host Member State’s demands of sufficient integration. A non-economically active Union citizen can therefore no longer rely on a direct link between the fundamental status of EU citizenship and Article 18 TFEU to claim a prima facie right to equal treatment for social assistance. Such a request simultaneously disqualifies the person from both equal treatment as well as the fulfilment of the self-sufficiency requirement of Article 7(1)(b). This way of reasoning, was established in Dano, based on the Court’s interpretation of the Directive’s equal treatment provisions in Article 24(1) and (2), leading to a categorical exclusion from equal treatment of the Union citizen who resides on a legal basis, other than the economic and temporal conditions of Articles 7 or 16 of the Directive.

i.  The Inactive Union Citizen and Article 24(1) of Directive 2004/38: Dano The 2014 Dano judgment, which came out after Brey, was a clear departure from the Court’s older jurisprudence where some transnational solidarity had favoured the individual over the Member State in relation to resident Union citizens in

231 Case C-333/13, Dano, EU:C:2014:2358; Case C-67/14, Alimanovic, EU:C:2015:597; and Case C-299/14, García-Nieto and Others, EU:C:2016:114.

Article 7 of Directive 2004/38 as the Sole Test of Integration  115 temporary difficulties.232 The judgment asserted a definite disappearance of both the solidarity obligation of the host Member State as well as the previous emphasis on making an individual assessment of a person’s integrational links to the host Member State, with due regard to the principle of proportionality in relation to an equal treatment claim. Instead, the Court made a categorical reading of the link between fulfilment of the residence conditions of Article 7 of Directive 2004/38 and coming within the scope of the right to equal treatment of Article 18 TFEU by filtering the latter’s specific expression through the wording of the Directive’s Article 24(1). Neither the previously important ‘fundamental’ status of EU citizenship, nor the fact that Dano had a national residence permit, and could point to several interpersonal links to the host Member State, could be relied on to remedy the Union citizen’s own shortcomings to integrate by residing in accordance with the Directive’s Article 7(1)(b). The core question referred to the Court was whether a Member State may refuse an economically inactive, non-national Union citizen a social benefit, which would be accorded to nationals in the same situation. The Court found that the social benefit in question, classified as an SNCB under Regulation 883/2004, was a social assistance benefit within the meaning of the Directive. Similar to its judgment in Brey, it held that the Directive’s concept of social assistance refers to all assistance schemes established by the public authorities, whether at national, regional or local level, to which recourse may be had by an individual who does not have resources sufficient to meet his own basic needs and those of his family and who by reason of that fact may, during his period of residence, become a burden on the public finances of the host Member State.233

The Directive’s explicit derogation from equal treatment for social assistance in Article 24(2) only targeted citizens residing on the basis of Article 6; that is, only in the first three months of residence, which Dano was well beyond. Furthermore, in its reasoning in Brey, the Court had discussed the issue of losing residence rights as a result of social assistance dependency, but had not disqualified Brey from the outset for having lawful residence in its assessment. In Dano, it instead took another line of reasoning to find that a person in Dano’s situation, who had been residing in the host Member State for at least four years, and held a national residence permit, could lawfully be excluded from equal treatment with regard to the social assistance benefit, before even becoming a burden. The basis for this exclusion was to read the Directive’s Article 24(1) as a lex specialis expression of the right to equal treatment of Article 18 TFEU.234 As the 232 Case C-333/13, Dano, EU:C:2014:2358. S Giubboni, ‘Free Movement of Persons and European Solidarity’ in H Verschueren (ed), Residence, Employment and Social Rights of Mobile Persons, on How EU Law Defines Where They Belong, Social Europe Series 36 (Cambridge, Intersentia, 2016) 85. 233 Case C-333/13, Dano, EU:C:2014:2358, para 63. 234 ibid, para 61. Neergaard (n 16) 376; Nic Shuibhne, ‘Limits Rising, Duties Ascending’ (n 189) 908–09.

116  The Right to Equal Treatment former provision provides that equal treatment is to be enjoyed only by Union citizens residing on the basis of this Directive, the Court in one paragraph of the judgment made the lawful residence test of Directive 2004/38 into the only gateway to the right to equal treatment,235 at least with regard to access to the kind of social benefits, such as those at issue in the main proceedings.236 Although Dano had a long period of residence behind her in the host Member State, similar to Sala, and a national residence permit from the host Member State authorities, like the applicant in Trojani, she did herself not materially fulfil the economic residence conditions of Article 7(1)(b) of the Directive.237 This immediately disqualified her from enjoyment of the right to equal treatment under Article 18 TFEU, given this failure to prove any objective signs of genuine use of freedom of movement. Accordingly, the Court held that: 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.238

This conclusion by the Court could be read as having either a quite narrow scope of application, solely relevant to the nature of the specific benefit in question.239 Conversely, it could potentially amount to the revolutionary broad reading that the lawful residence test of the Directive has now become the only basis for equal treatment for any social benefit covered by Regulation 884/2004.240 This latter approach is to be expected since the Court in Dano relied on Article 24(1) of the Directive to apply to a benefit, which was regulated by the Regulation, instead of relying on the Regulation’s own equal treatment provision in its Article 4. On the other hand, given the importance of material fulfilment of the conditions of Article 7 of Directive 2004/38 for obtaining permanent residence status  – the ultimate proof of genuine integration – it could be questioned whether a Union citizen may subsequently make a successful claim of any kind of equal treatment with resident nationals without first proving fulfilment of the Directive’s economic residence conditions. This would mean that only those residing as an economically active person, or the self-sufficient Union citizen, may rely on equal treatment with resident nationals for any purpose in a host Member State. Consider the Huber case, regarding the German authorities’ discriminatory registries containing special personal data of only non-national residents.241 Would a

235 Case C-333/13, Dano, EU:C:2014:2358, para 76. 236 ibid, para 69. 237 Compare with Case C-325/09, Dias, EU:C:2011:498, para 64. 238 Case C-333/13, Dano, EU:C:2014:2358, para 78 (emphasis added). 239 Verschueren, ‘Preventing “Benefit Tourism” in the EU’ (n 208) 370 f. 240 ibid, 377 f. 241 In Huber, the Court referred to lawful residence as a basis for coming within the scope of what is now Article 18 TFEU. See Case C-524/06, Huber, EU:C:2008:724, para 35.

Article 7 of Directive 2004/38 as the Sole Test of Integration  117 Union citizen in Dano’s situation have a lawful basis for objecting to that kind of discriminatory treatment? Would the person first have to prove they were making genuine use of freedom of movement in accordance with the Directive? Similarly, in the extradition case of Wolzenburg, the acquisition of permanent residence status under the Directive was applied by the Court as the benchmark for when a non-national Union citizen should enjoy the same level of protection against extradition procedures as national residents did under the host Member State’s domestic law.242 Would this kind of equal treatment protection not have been obtainable for someone like Dano, regardless of the duration of the person’s factual residence in Germany? Returning to the specific outcome of Dano, as the applicant here was not within the economic freedoms, the person’s status as a lawfully residing Union citizen under Article 7(1)(b) was pivotal for enjoying social equal treatment rights. The individual was pushed out of the status of EU citizenship at a primary law level and into the strict conditions that apply to a non-economically active Union citizen, as the residual personal category of the Directive – thus barred from enjoying equal social inclusion as a resident. Mere reliance on the status of EU citizenship and other integrational factors were not enough to link the person to the right to equal treatment under Article 18 TFEU, the meaning of which was absorbed by Article 24(1) of the Directive. The applicant in Dano had failed to show the intention of genuinely wanting to integrate,243 narrowly understood as trying to self-realise under the economic freedoms and their personal statuses. This brought Dano close to the Bidar situation, who had also merely resided in a host Member State for a longer period and whose integration was horizontal, rather than economic. It nevertheless made Dano’s situation different from that of the Collins case, where the Court could see a jobseeker who was genuinely seeking work, thereby having a real link to the national employment market.244 Any other genuine links, such as those relevant in Prinz and Seeberger, had no bearing to her claim.245 The Court’s reference in Dano to how the subjective intention of making use of freedom of movement solely to obtain benefits matters, echoes the discourse in Lair and Ninni-Orasche, on what is ‘abuse’ as opposed to ‘genuine use’ of freedom of movement.246 The Court did, however, not directly discuss abuse as a basis for denying her equal treatment rights and did not refer to the abuse prohibition of Article 35 of Directive 2004/38. Instead, the case reflects the Court opting for a narrow reading of what the EU citizenship norm for genuine use of freedom of movement is: to reside, and thereby to integrate, in accordance with the objectives of the

242 Case C-123/08, Dominic Wolzenburg, EU:C:2009:616, para 73. 243 Verschueren, ‘Preventing “Benefit Tourism” in the EU’ (n 208) 374. 244 Case C-138/02, Collins, EU:C:2004:172, para 70. 245 Compare with Joined Cases C-523/11 and C-585/11, Prinz and Seeberger, EU:C:2013:524. 246 Case C-39/86, Lair v Universität Hannover, EU:C:1988:322; and Case C-413/01, Ninni-Orasche, EU:C:2003:600. See also Case C-200/02, Zhu and Chen, EU:C:2004:639.

118  The Right to Equal Treatment fundamental freedoms as specifically expressed in Article 7 of the Directive. To argue based on abuse of rights was not necessary, as Dano could instead be found to fail this test of genuine use of freedom of movement. In that regard, the judgment in Dano represents a clear legal edge to equal treatment; its enjoyment reduced to the conditionality of fulfilling the economic requirements for residence in the Directive. The subsequent cases of Alimanovic and García-Nieto, both of which concer­ ned the same German social assistance benefit as in Dano, would define two more legal edges of equal treatment based on a close reading of Directive 2004/38.

ii.  The Jobseeker and Article 24(2) of Directive 2004/38: Alimanovic and García-Nieto Advocate General Wathelet, in his Opinion in the Alimanovic case, considered three core situations where a Union citizen’s equal treatment rights may vary in relation to social assistance benefits.247 First, similar to the Dano situation, is the scenario of non-economically active citizens who are staying in a host Member State for less than three months, or who stay longer than that, but do not actively try to establish themselves in the employment market. Second, is the citizen who moves to a host Member State to actively seek employment, subsequently seen as the jobseeker in the García-Nieto case. Third, the citizen who has stayed in a host Member State for more than three months, and who has worked there, but who no longer retains worker status.248 This third instance was that of Alimanovic. The adult members of the Alimanovic family, as second-time jobseekers, who had not retained worker status under Article 7(3) of Directive 2004/38, no longer resided in accordance with any of the conditions of Article 7.249 Their legal residence was however protected under Article 14(4)(b), which prohibits the expulsion of genuine jobseekers.250 This residence security of the jobseeker is motivated by the rationale of the free movement of workers, affirmed in the early Antonissen judgment; access to the national employment market should be ensured for potential workers.251 The Court pointed out how the sought benefit, although categorised as a jobseeker’s allowance under national law, was predominately aimed at covering the ‘minimum subsistence costs necessary to lead a life in keeping with human dignity’.252 It was thereby a social assistance benefit within the meaning of

247 Opinion in Case C-67/14, Alimanovic, EU:C:2015:210. 248 ibid, para 87. 249 Case C-67/14, Alimanovic, EU:C:2015:597, paras 52–55. 250 ibid, para 56. Compare with Case C-292/89, The Queen v Immigration Appeal Tribunal, ex parte Antonissen, EU:C:1991:80 and Case C-138/02, Collins, EU:C:2004:172. 251 Case C-292/89, The Queen v Immigration Appeal Tribunal, ex parte Antonissen, EU:C:1991:80, paras 10–13. 252 Case C-67/14, Alimanovic, EU:C:2015:597, para 45.

Article 7 of Directive 2004/38 as the Sole Test of Integration  119 Directive 2004/38 and the Court did not treat it as a benefit to facilitate access to the employment market, as it had done with the benefit at issue in Collins.253 From there, the Court could reason in a way that made the Directive’s Article 24(2) diminish the Alimanovic family’s link to the right to equal treatment. This provision, as a derogation to the right to equal treatment, provides that Union citizens residing based on Article 14(4)(b) may be denied social assistance benefits. As a result, the family could categorically be denied equal treatment while still being lawful residents. This was a stark departure from early EU citizenship cases where lawful residence, on any legal basis, had linked the status of EU citizenship directly to Article 18 TFEU, generating a prima facie right to equal treatment, with the possibility of narrow derogations.254 As in Förster and Dano, no other elements of integration than fulfilment of the norms of Directive 2004/38 were considered in the assessment of the Alimanovic family’s genuine use of freedom of movement. The Court gave a clear explanation for why it did not consider any other individual circumstances, genuine links, or interpersonal elements of integration paired with the family’s legal residence as a possible basis for equal treatment rights. It held that, although a Member State must take account of a person’s individual situation before taking an expulsion measure, or for finding that the person is placing an unreasonable burden on its social assistance system, the Directive does not require such an assessment with regard to equal treatment.255 In that regard, it found that the Directive’s provisions, by establishing a ‘gradual system’ for retention of worker status, and access to social assistance, were already a sufficient consideration of a person’s varying circumstances.256 It also discussed how a host Member State is to make the assessment that an inactive Union citizen, residing on the basis of Article 6 of the Directive, has become such an unreasonable burden on the social assistance system so as to be deportable: [I]t must be observed that the assistance awarded to a single applicant can scarcely be described as an ‘unreasonable burden’ for a Member State, within the meaning of Article 14(1) of Directive 2004/38. However, while an individual claim might not place the Member State concerned under an unreasonable burden, the accumulation of all the individual claims which would be submitted to it would be bound to do so.257

It is peculiar that the Court would discuss residence based on Article 6, when the case concerned applicants who had been residing in the host Member State based on Article 7 and now relied on Article 14(4)(b) for their residence security. By putting forward this reasoning, the Court affirmed that it is in keeping with the 253 Case C-138/02, Collins, EU:C:2004:172. See also Case C-22/08, Vatsouras and Koupatantze, EU:C:2009:344. 254 Case C-85/96, Martínez Sala v Freistaat Bayern, EU:C:1998:217; Case C-456/02, Trojani, EU:C:2004:488. 255 Case C-67/14, Alimanovic, EU:C:2015:597, para 59. 256 ibid, para 60. 257 ibid, para 62.

120  The Right to Equal Treatment Directive to deny social assistance to any individual claimants residing outside the scope of its Article 7, so as to avoid that a large collective of claims amounts to an unreasonable burden. In this way, it has become legitimate under Union law that the Member States prevent burdens before they arise, as they may now also categorically deny access to social assistance benefits to lawfully residing but non-economically active Union citizens. This approach to the strict categorisation of the Union citizen under the Directive was repeated in García-Nieto, where the Court found that an active jobseeker may lawfully be denied social assistance while residing based on Article 6. This was so, as Article 24(2) provides that these first three months come with limited equal treatment rights for social assistance.258 The Court’s harsh approach to the limits of jobseekers’ equal treatment rights in Alimanovic and García-Nieto raises the question of whether the influence of EU citizenship, from being a strengthening element to the jobseeker status in Collins, has now become a detriment of the same.259 It is reasonable to ask whether there is ‘anything left’ of the jobseeker status in EU free movement law, in particular as a jobseeker’s allowances can relatively easily be classified as social assistance within the meaning of the Directive, as much as they are allowances designed to facilitate the access to the employment market. The importance of retaining the ‘worker’ status, during periods of being out of work, for a successful claim to equal treatment, has been made clear in cases that have followed, such as Gusa and Tarola.260 In this way, the ‘jobseeker’ status in free movement law, whether the person is newly arrived, or has a longer residence history in the host Member State, is now reduced to having the same position as the socially excluded, but lawfully residing temporary visitor of Article 6 of the Directive.

V.  The Legal Space between Directive 2004/38 and Article 18 TFEU For the jobseeker, the pensioner and the otherwise non-economically active Union citizen, the concepts of a certain degree of integration and genuine links have hit a wall in the wording of Directive 2004/38. The case law developments of the 2010s have led to a state of law, where, to reside in accordance with the economic conditions for residence in the Directive wholly defines the meaning of what is genuine use of freedom of movement, in turn generating a right to equal treatment.261 258 Case C-299/14, García-Nieto and Others, EU:C:2016:114, paras 49–53. 259 A Iliopoulou-Penot, ‘Deconstructing the Former Edifice of Union Citizenship? The Alimanovic Judgment’ (2016) 53 Common Market Law Review 1007, 1019. 260 Case C-442/16, Gusa, EU:C:2017:1004; Case C-483/17, Tarola, EU:C:2019:309. 261 See the comments on ‘citizenship-exhaustion’ with regard to free movement rights in D Sarmiento and E Sharpston, ‘European Citizenship and its New Union: Time to Move On?’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017).

The Legal Space between Directive 2004/38 and Article 18 TFEU  121 The host Member State may therefore apply the Directive’s broad understanding of the concept of social assistance and its categorical limits for the scope of equal treatment of Article 24, without considering alternative integrational links that the individual may have to the host society. This results in situations where Union citizens and their family members may well be residing lawfully, but also be lawfully excluded from minimum social protection because of their status as non-national Union citizens.262

A.  A Right to Reside in Social Exclusion Union citizens may find themselves in an ever-widening gap of social exclusion where they are lawfully denied equal treatment rights, without necessarily failing the requirement of legal residence. In neither Dano, Alimanovic, nor García-Nieto did the Court consider any other legal bases for a right to reside that could possibly be relied on to link the individual to the right to equal treatment. Dano was living with her sister, who was materially providing for her, but the Zhu and Chen reasoning on how a Union citizen’s residence rights may be enjoyed based on the resources of another, was not applied. The same was true in Alimanovic, where the question was whether the children in the family might have residence rights based on the Teixeira jurisprudence as schoolchildren of a former worker.263 If so, the family would not have been subject to the self-sufficiency requirements of Article 7(1)(b) of Directive 2004/38 and would have also had equal treatment rights for social assistance.264 Similarly, in García-Nieto, the applicant’s relationship to a Union citizen with worker status and his role as a caregiver to Union citizen children was not referred to as an alternative basis for residence.265 Nor did the Court in Alimanovic enter into a reasoning on whether the applicants could retain worker status directly under Article 45 TFEU, as it had in Saint Prix.266 The Court instead settled for a conclusion that the cross-border worker status was lost under Article 7(3) of the Directive, and that the Alimanovic family were jobseekers again. It is, however, not clear whether this state of social exclusion, albeit protection against expulsion based on which the Alimanovic family resides as jobseekers under the Directive’s Article 14(4)(b), may bring them towards permanent residence status under Article 16, eventually allowing them to enjoy full equal social inclusion. 262 D Kochenov, ‘The Citizenship of Personal Circumstances in Europe’ in D Thym (ed), Questioning EU Citizenship: Judges and the Limits of Free Movement and Solidarity in the EU, Modern Studies in European Law (Oxford, Hart Publishing, 2017) 52. 263 Case C-480/08, Teixeira, EU:C:2010:83. Although this was suggested as an alternative ground for residence and equal treatment rights by Advocate General Wathelet in his Opinion in Case C-67/14, Alimanovic, EU:C:2015:210, paras 119–22. 264 See Case C-480/08, Teixeira, EU:C:2010:83. 265 See critique of this approach by O’Brien, ‘Civis Capitalist Sum’ (n 167) 962–64. 266 Case C-507/12, Saint Prix, EU:C:2014:2007, para 32. See also Case C-442/16, Gusa, EU:C:2017:1004; Case C-483/17, Tarola, EU:C:2019:309; and Case C-544/18, Dakneviciute, EU:C:2019:761.

122  The Right to Equal Treatment It can be argued that these limits to equal treatment are appropriate, considering the budgetary constraints put on Member States at a European level, notably in view of the Eurozone crisis.267 For Union law to, on the one hand, restrict public expenditure and demand reduced government spending, while on the other, require that the Member States maintain solidarity and openness to their publicly funded social systems for Union citizens up until the point that the Member State experiences ‘burdening’, could undermine the legitimacy of both the imposed expenditure reductions as well as free movement law itself. A counter-argument, criticising this legal development, is that it places Union citizens in a lawful space of social destitution when in a host Member State, based solely on being a non-national Union citizen and having failed to self-realise themselves under the economic freedoms.268 This makes nationality the only remaining genuine link for the non-economically active Union citizen to rely on for minimum welfare rights, which arguably goes against the vision of a truly European citizenship as well as the effet utile of the fundamental freedoms.269 As Directive 2004/38 provides the legal bases for lawfully limiting jobseekers’ and inactive Union citizens’ equal treatment rights for social assistance, the question arises of how broadly the Directive’s concept of ‘social assistance’ can stretch. Could in-kind social assistance such as housing and guaranteed levels of minimum health care services fall within this scope?270 Any uncertainties regarding the material content of Union citizens’ free movement rights are likely to be exploited by the Member States to the detriment of the individual Union citizen.271 In this way, the lawful residence test of Article 7 has become ‘a licence to discriminate’ on grounds of nationality, to restrict jobseekers and inactive Union citizens’ access to a widening material scope of what is social assistance within the meaning of the Directive.272 In the Commission v United Kingdom judgment, the Directive’s social assistance concept was not available, but the rationale of its economic lawful residence test was nevertheless extended to apply to residence-based social security benefits, classified as a ‘family benefit’ in Regulation 883/2004.

267 Neergaard (n 16) 348–49. On the effect of the financial crisis on the Court’s treatment of EU citizenship rights, see in general, U Šadl and M Rask Madsen, ‘Did the Financial Crisis Change European Citizenship Law? An Analysis of Citizenship Rights Adjudication Before and After the Financial Crisis’ (2016) 22 European Law Journal 40. 268 See in general, H Verschueren, ‘EU Migrants and Destitution: The Ambiguous EU Objectives’ in F Pennings and G Vonk (eds), Research Handbook on European Social Security Law (Cheltenham, Edward Elgar Publishing, 2015). See also Kochenov, ‘The Citizenship of Personal Circumstances in Europe’ (n 262) 52. 269 Spaventa, ‘Citizenship: Reallocating Welfare Responsibilities to the State of Origin’ (n 170) 45. 270 Davies, ‘Migrant Union Citizens and Social Assistance’ (n 215) 17–19. 271 J Shaw, ‘Between Law and Political Truth? Member State Preferences, EU Free Movement Rules and National Immigration Law’ (2015) 17 Cambridge Yearbook of European Legal Studies 247, 263. See also Verschueren, ‘Preventing “Benefit Tourism” in the EU’ (n 208) 370. 272 For an early analysis of the residence test as a lawful test of discrimination, see P Larkin, ‘Migrants, Social Security and the “Right to Reside”: A Licence to Discriminate?’ (2007) 14 Journal of Social ­Security Law 61.

The Legal Space between Directive 2004/38 and Article 18 TFEU  123

B.  The Rationale of Directive 2004/38 Transposed to Regulation 883/2004: Commission v United Kingdom In the Commission v United Kingdom judgment, the rationale of the Court’s reasoning in Dano and Alimanovic was taken one step further and also made applicable to Regulation 883/2004.273 In this case, the Court assessed the legality of applying the lawful residence test as an eligibility criteria for residence-based family allowance benefits, which were neither social assistance within the meaning of Directive 2004/38, nor classified as an SNCB of Regulation 883/2004, but instead social security benefits classified as family benefits. The Court did not stretch its understanding of social assistance within the meaning of the Directive any further as it had in Brey and Dano. The Directive’s limits to equal treatment rights for social assistance therefore did not apply to the family benefits at issue.274 Instead, the Court asserted that the lawful residence test applied under national law resulted in indirect discrimination of non-national Union citizens.275 As British nationals are automatically lawful residents in the United Kingdom, only non-national Union citizens would need to materially fulfil the residence requirements of the Directive to pass the test. However, the Court reasoned that such indirect discrimination could be justified by the need to check the lawful residence of, in particular, noneconomically active Union citizens from other Member States in order to safeguard the host Member State’s public finances.276 The lawful residence test used as eligibility criteria in national law for family benefits, that should be available to resident Union citizens under the conflict of law rules of the Regulation 884/2004, could therefore be a justified and proportionate measure and the Commission’s action was dismissed.277 The judgment in Commission v United Kingdom, coming out right before the Brexit referendum in the United Kingdom, might in hindsight have been a one-off occasion of the Court taking the limits to equal treatment to their peak. Looking to the jurisprudence as a whole, this case nevertheless added a fourth legal edge to the EU citizenship right to equal treatment. In spite of the benefit in question not being materially within the scope of Directive 2004/38, the Court applied the rationale of the Directive to condition equal treatment for a residence-based social security benefit, as coordinated by Regulation 883/2004. This is remarkable, as it is not the Regulation but only the Directive that contains a stated purpose of respecting the finances of the Member States, notably their social assistance systems.278 This purpose was transposed to justify discrimination in relation to the 273 Case C-308/14, Commission v United Kingdom, EU:C:2016:436. See comment by O’Brien, ‘The ECJ Sacrifices EU Citizenship in Vain: Commission v United Kingdom’ (n 188). 274 Case C-308/14, Commission v United Kingdom, EU:C:2016:436, paras 54–61. 275 ibid, paras 76–77. 276 ibid, para 80. 277 ibid, paras 80–87. 278 See Recitals 10 and 16 of the Preamble to Directive 2004/38.

124  The Right to Equal Treatment social security coverage based on where a person has their social security rights located, through the Regulation’s own concept of ‘habitual residence’. This clearly goes against the aim of Regulation 883/2004 to ensure that individuals do not lose a belonging to residence-based social security coverage, as a result of exercising freedom of movement. In addition, it stimulates the creation of the new kind of purely internal situations of Union citizens, residing in a host Member State, but whose legal claims fall outside the protective scope of Union law.279

C.  A New Type of ‘Purely Internal Situations’ The string of case law from Brey to Commission v United Kingdom has created a new legal toolbox for the Member States in their relationship with residing Union citizen jobseekers, pensioners and otherwise non-economically active persons. As will be addressed in chapter seven, in this space of failed fulfilment of the norms of genuine residence in Directive 2004/38, the Union citizen is also outside the scope of application of the Charter; placed in a legal space outside the scope of Union law, although being in a factual cross-border situation.280 It allows the host Member State to lawfully exclude Union citizens from equal treatment by use of the lawful residence test of Articles 7 or 16 of the Directive without having to first establish that the individual is posing a burden on their finances, which would make the person lose residence rights.281 Furthermore, the purpose of the ‘habitual residence’ test, applicable to the residence-based SNCB of Regulation 883/2004 appears to have been put out of use by the rise of the lawful residence test of Directive 2004/38.282 The Brey judgment opened the door for negative conflicts of law scenarios where a Union citizen may, contrary to the purpose of Regulation 883/2004, fall between two stools of social security coverage when it comes to a residence-based SNCB.283 Under a strict application of the Regulation, an SNCB should be available to the Union citizen based on the person’s habitual residence and the right to equal treatment of Article 4 of the Regulation.284 If a Union citizen’s status as a habitual resident under the Regulation is now being downplayed by applying the Directive’s residence test for eligibility for social benefits covered by the Regulation, some Union citizens will find themselves in spaces of legal uncertainty regarding their social security

279 Paju (n 40) 140–45. 280 See in this regard, Nic Shuibhne, ‘Integrating Union Citizenship and the Charter of Fundamental Rights’ (n 190) 220. 281 On defining solidarity circles through durational residence in one place, see Somek (n 207) 812. On protecting solidarity circles based on nationality, see Barnard, ‘EU Citizenship and the Principle of Solidarity’ (n 67) 159–60 and in general. 282 H Verschueren, ‘Free Movement or Benefit Tourism: The Unreasonable Burden of Brey’ (2014) 16 European Journal of Migration and Law 147, 165. 283 ibid, 167. 284 Pennings, European Social Security Law (n 49) 66–67.

Conclusion  125 coverage.285 They may fall outside the territorial scope of their home Member State’s residence-based benefits, because of no longer being resident there, and due to the Coordination Regulation’s rules on non-exportable benefits. They may also fall outside the equivalent protection in the host Member State where the economic statuses of the market freedoms and the integration requirements of the Directive absorb their equal treatment rights.286 By disregarding any real factors of integration, a Union citizen, who has factually resided for a long time in a host Member State, may relatively easily be reduced to the limited equal treatment norms applied to temporary visitors of Article 6.287 This is the end of the individual assessment and due regard to the principle of proportionality, which was formerly an important aspect of a Union citizen’s reliance on the right to equal treatment as directly linked to the status of EU citizenship.288 It also marks the limits to EU citizenship as a substantive legal status capable of bringing about equality between Union citizens, regardless of their nationality. Cementing the exclusion of the non-economically active person, making EU citizenship as the residual status of the personhoods of free movement law, the Court has in subsequent rulings been preoccupied with defining a wide personal scope of the ‘worker’, as it is now the only direct link to a right to equal treatment. Rulings like Gusa, Tarola and Dakneviciute all reflected the importance of retaining status as an economically active person in order to have a protected right to equal treatment for various social benefits.289 A natural develop­ ment, as the link between equal treatment and the status of EU citizenship has been dissolved to the point that EU citizenship now has little to nothing to offer the individual in that regard.

VI. Conclusion The relationship between the status of EU citizenship and the right to equal treatment has transformed during the legal development of non-economic freedom of movement. From being strongly linked together, an inactive Union citizen’s right to equal treatment with regard to various kinds of social benefits has become preconditioned on an ever-narrowing definition of the integrational requirements that a Union citizen must fulfil when exercising freedom of movement under Article 21 TFEU. As a result, residence in accordance with Article 7 of Directive 2004/38,

285 Verschueren, ‘Preventing “Benefit Tourism” in the EU’ (n 208) 381. 286 Verschueren, ‘Free Movement or Benefit Tourism: The Unreasonable Burden of Brey’ (n 282) 163. 287 Compare Case C-333/13, Dano, EU:C:2014:2358 with Case C-299/14, García-Nieto and Others, EU:C:2016:114. On the differentiation in EU free movement law between the temporary visitor, and the residential member of a community and its solidarity systems, see Dougan and Spaventa (n 43) 195 f. 288 Iliopoulou-Penot (n 259) 1022 f. 289 Case C-442/16, Gusa, EU:C:2017:1004; Case C-483/17, Tarola, EU:C:2019:309; and Case C-544/18, Dakneviciute, EU:C:2019:761.

126  The Right to Equal Treatment or as a permanent resident – a status equally defined solely by the norms of the Directive – is now the only demonstration of integration available to the Union citizen to prove the genuine use of freedom of movement in accordance with its objectives. If a Union citizen falls outside the scope of the Directive’s requirements for equal treatment, the person has little avail of Article 18 TFEU either. To objectively fulfil the conditions of the Directive’s Articles 7 or 16 has become synonymous with the genuine use of freedom of movement. This does away with the reason to accuse an individual of an abusive exercise of freedom of movement for accessing social benefits. It has also reduced the need to make any individual assessment of a person’s ‘real’ integration in the shape of horizontal links or length of factual residence in the host Member State before denying the person equal treatment. It allows for a categorical social exclusion of Union citizens without necessarily challenging their right to reside in the host Member State. While this may be seen as a legally certain and foreseeable definition of what sort of treatment Union citizens may expect in a host Member State, it also creates uncertainty regarding free movement law’s ability to protect against the socioeconomic risk of exercising personal freedom of movement, notably, since it has such a detrimental effect on the Union citizen’s standing in the Directive to lose or be denied the cross-border worker status. To lose economic status and make social assistance claims solely on the status of EU citizenship and Article 18 TFEU is now to be in a legal space beyond the edges of free movement law.290 In general, the legal trend demonstrated in this chapter goes against the goal of European integration and the supranational promise that the free movement rights of EU citizenship once appeared to hold.291 It bars retired Union citizens from moving to a host Member State with higher living costs than their home Member State, with the view to live close to relatives who reside there.292 It also deprives those Union citizens who might benefit the most from being able to relocate, for example, as jobseekers or short-term contract workers, within the Union, from relying on that the status of EU citizenship will protect them in doing so.293 However, as will be seen in the following chapter, equal treatment when it comes to asserting the EU citizenship right to vote in elections to the European Parliament, has defined not only a new reach to the jurisdictional scope of Union law, but also linked the replicated EU citizenship rights of the Charter more closely to the status of EU citizenship itself.

290 Hence, the importance of retaining an economic status, see Case C-442/16, Gusa, EU:C:2017:1004; Case C-483/17, Tarola, EU:C:2019:309; Case C-544/18, Dakneviciute, EU:C:2019:761. 291 U Belavusau and D Kochenov, ‘Kirchberg Dispensing the Punishment: Inflicting “Civil Death” on Prisoners in Onuekwere (C-378/12) and MG (C-400/12)’ (2016) 41 European Law Review 557, 570. 292 Bruzelius, Reinprecht and Seeleib-Kaiser (n 172) 5–9. 293 Verschueren, ‘EU Migrants and Destitution’ (n 268) 436 f. C Jacqueson, ‘For Better or For Worse? Transnational Solidarity in the Light of Social Europe’ in N Countouris and M Freedland, Resocialising Europe in a Time of Crisis (Cambridge, Cambridge University Press, 2013) 380.

6 EU Citizenship and Political Free Movement Rights Articles  18 and 20(2)(a–b) of the Treaty on the Functioning of the European Union (TFEU) define the three distinctive free movement rights of EU citizenship: the freedom to move and reside freely; the right to equal treatment; and the rights of equal political participation in a host Member State.1 The political rights are those of voting, and participation as a candidate, on equal terms with the nationals of a host Member State at both the municipal and the European level. Some harmonising premises to facilitate the realisation of the political free movement rights are laid out in the two Voting Directives from the early 1990s.2 Through the changes brought about by the Treaty of Lisbon in 2009, the right of all Union citizens to vote in the elections to the European Parliament was separately established in Article 14(3) of the Treaty on European Union (TEU), and is also repeated in Article  39(2) in the EU Charter of Fundamental Rights (the Charter). The significance of this change at the primary law level was seen in the 2015 case of Delvigne, where the right to vote in elections to the European Parliament took effect without any free movement context, in the Union citizen’s relationship with the home Member State.3

1 Equality and political rights are core elements of a meaningful concept of citizenship and include: H  Lardy, ‘The Political Rights of Union Citizenship’ (1996) 17 European Public Law 611, 622; L  Besselink, ‘Case C-145/04, Spain v United Kingdom, Judgment of the Grand Chamber of 12 September 2006/Case C-300/04, Eman and Sevinger, Judgment of the Grand Chamber of 12 September 2006/ECtHR (Third Section), 6 September 2007, Applications Nos 17173/07 and 17180/07, Oslin Benito Sevinger and Michiel Godfried Eman v the Netherlands (Sevinger and Eman)’ (2008) 45 Common Market Law Review 787, 803. 2 Council Directive 93/109/EC of 6 December 1993 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals; and Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals (the Voting Directives). 3 Article  14(3) TEU; Article  39(2) of the Charter. See Case C-300/04, Eman and Sevinger, EU:C:2006:545; and Case C-650/13, Delvigne, EU:C:2015:648. By contrast, the right to municipal political participation is not granted as a universal citizenship right in Articles 20 and 22 TFEU. It is confined to being an equal treatment right, ancillary to exercising the right to reside in a host Member State. K Groenendijk, ‘Article 40’ in S Peers, T Hervey, J Kenner and A Ward (eds), The EU Charter of Fundamental Rights A Commentary (Oxford, Hart Publishing, 2014) 1063.

128  Political Free Movement Rights As this chapter will demonstrate, when it comes to political EU citizenship rights at the primary level, the status of EU citizenship has, on the one hand, come to embody a strong legal quality outside the edges of freedom of movement, extending the jurisdictional scope of Union law into otherwise purely internal situations and substantiating the material content of its political participatory rights in the Charter. On the other hand, this strengthening of EU citizenship as a political status is sharply contrasted by the fact that Union law has yet to alleviate the effect that the use of freedom of movement might have of disenfranchising a moving Union citizen from national elections and referendums in the home Member State. Likewise, Union law does not impose an obligation on a host Member State to extend the national franchise to its resident Union citizens.4 The chapter firstly addresses the political EU citizenship rights that function as equal treatment rights, when the Union citizen is exercising freedom of movement to a host Member State. Next is a discussion of the two franchise cases, Spain v United Kingdom and Eman and Sevinger, where the scope of Union law was extended to apply the right to equal treatment outside a free movement context. This is followed by an analysis of the Delvigne case, in which the right to vote in elections to the European Parliament pushed the jurisdictional scope of Union law even further, and substantiated this EU citizenship right by the support of the Charter. Finally, the chapter addresses the effect of Member States’ exclusion of a Union citizen from a national electorate as a direct result of the exercise of freedom of movement.

I.  Political EU Citizenship Rights as Free Movement Rights Elections of members to the European Parliament have been decided by direct universal suffrage since 1979.5 Political participation at the European level, just like freedom of movement of persons, thereby preceded the legal concept of EU citizenship. At that early stage, Union law did not establish any individual right to vote in European elections; the Member States retained the competence to define their electorate for the European level. It was in 1993, through the Treaty of Maastricht, that the right to vote and stand as a candidate in elections to the European Parliament was made into a primary law right together with the introduction of EU citizenship.6 Simultaneously, the free movement right for Union 4 See critique by D Kochenov, ‘Free Movement and Participation in the Parliamentary Elections in the Member State of Nationality: An Ignored Link?’ (2009) 16 Maastricht Journal of European and Comparative Law 197. 5 Act concerning the election of the representatives of the Assembly by direct universal suffrage annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976 (OJ 1976 L 278/1), as amended by Council Decision 2002/772/EC. 6 Article 8b(2) EC (Treaty of Maastricht).

Political EU Citizenship Rights as Free Movement Rights  129 citizens to have voting and candidacy rights on an equal par with nationals in municipal elections when residing in a host Member State, was established.7

A.  Political Rights as Free Movement Rights Political, participatory rights are a natural part of any citizenship.8 The Member States’ insertion of voting rights and citizenship in the 1993 Treaty reflected the ambitions of Maastricht to further the internal market goal into a political Union of the peoples of Europe.9 Furthermore, the insertion of municipal political rights was a natural step as it coincided with the 1992 Council of Europe Convention on the Political Participation of Foreigners in Local Life, signed and ratified by the Member States.10 The special nature of EU citizenship which, at the outset, links its legal relevance to a free movement context, is reflected in how these political rights were originally cast in the Treaty. Both rights, one for the local, municipal level, the other for the supranational, European level, were originally made to be equal ­treatment rights. As such, they functioned as a ‘corollary’ to the exercise of freedom of ­movement, only taking effect in a host Member State of residence.11 While the municipal vote is primarily to facilitate the integration of the Union citizen into a local community in a host Member State,12 the European voting right to elect representatives to the European Parliament rather reflects all Union citizens’ equal ‘stakeholdership’ in the political developments of the Union.13 Originally, both levels of political rights followed a similar free movement rationale of ensuring equal treatment of moving Union citizens to the nationals of their host Member State. The Union-levelled right has later come to free itself from depending on a free movement context.

7 Article 8b(1) EC (Treaty of Maastricht). 8 R Bauböck, ‘Political Membership and Democratic Boundaries’ in A Shachar et al (eds), The Oxford Handbook of Citizenship (Oxford, Oxford University Press, 2017) 65–67. 9 J Shaw, The Transformation of Citizenship in the European Union: Electoral Rights and the Restructuring of Political Space, Cambridge Studies in European Law and Policy (Cambridge, Cambridge University Press, 2007) 48–49. As said in the Preamble to the Charter, the creation of Union citizenship shows that the Union has put the individual at the heart of its activities. 10 J Shaw, ‘Citizenship and the Franchise’ in A Shachar et al (eds), The Oxford Handbook of Citizenship (Oxford, Oxford University Press, 2017) 303. 11 See Preambles to Directive 93/109/EC and Directive 94/80/EC. 12 Groenendijk (n 3). 13 The term ‘stakeholdership’, as minted by Bauböck, can refer to a non-national resident’s inclusion in a franchise, see R Bauböck, ‘The Rights and Duties of External Citizenship’ (2009) 13 Citizenship Studies 475, 478 f. See also Article 10(3) TEU which states that every citizen shall have the right to participate in the democratic life of the Union. See analysis of the various references to citizenship in the TEU by N Nic Shuibhne, ‘EU Citizenship after Lisbon’ in D Ashiagbor, N Countouris and I Lianos (eds), The European Union after the Treaty of Lisbon (Cambridge, Cambridge University Press, 2012).

130  Political Free Movement Rights

B.  The Municipal-Levelled Right to Political Equal Treatment Articles 20(2)(b) and 22 TFEU, and as mirrored in Articles 39(1) and 40 of the Charter, provide Union citizens with the right to vote and stand as a candidate in the elections to the European Parliament and in local elections in the host Member State on the same conditions as nationals of that Member State. By function of the membership they hold in the European citizenry, Union law thereby provides Union citizens the right to become so-called ‘denizens’ at a very local level, in the municipal host community where they take up residence.14 There, they get to enjoy the same level of rights of local political membership as their fellow residents who are nationals.15 Local political participation does not make the Union citizen an equal to the nationals of the entire host Member State, but only to the ­residents of the specific locality. Movement within the host Member State, to another municipality, will lead to immediate disenfranchisement from local elections in the previous place of residence.16 It can be seen as a slightly irrelevant feature of EU citizenship to embody a right that serves to make the moving Union citizen feel like more of a ‘local’ in a municipal district in the host Member State, rather than making the person feel ‘more European’.17 Perhaps this view can explain why this vehicle for local integration seems to be largely neglected by moving Union citizens. A 2018 Commission Report on the application of Directive 94/80/EC on the right to vote and to stand as a candidate in municipal elections showed that in host Member States, where an incoming Union citizen had to actively register in order to enjoy the municipal voting right, only 18.5  per  cent requested to do so.18 This low figure could be a reflection of either indifference or ignorance of the existence of the right. Furthermore, the political weight of the municipal vote may vary greatly between Member States. As there is no homogenous Union law definition of municipal elections, the extent, or even the existence, of the right to municipal political voting and participation, may be subject to great variations across the different Member States.19 It is within the national discretion to define the meaning and empowerment of municipal, or local government, which means that the impact 14 T Hammar, Democracy and the Nation State, Aliens, Denizens and Citizens in a World of ­International Migration, Research in Ethnic Relations Series (Aldershot, Ashgate, 1990) 13. 15 E Meehan, Citizenship and the European Community (London, Sage Publications, 1993) 18. Hammar (n 14) 169 f. 16 On the fluidity of local residential citizenship, see R Bauböck, ‘The Three Levels of Citizenship within the European Union’ (2014) 15 German Law Journal, Special Issue: EU Citizenship Twenty Years On 751, 756–57. 17 Shaw, The Transformation of Citizenship in the European Union (n 9) 49. 18 ‘Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the application of Directive 94/80/EC on the right to vote and to stand as a candidate in municipal elections’ COM(2018) 44 final, 5. 19 A O’Neill, ‘(Dis)Enfranchisement and Free Movement’ in P Koutrakos, N Nic Shuibhne and P Syrpis (eds), Exceptions from EU Free Movement Law: Derogation, Justification and Proportionality, Modern Studies in European Law (Oxford, Hart Publishing, 2016) 57.

Political EU Citizenship Rights as Free Movement Rights  131 of the right to political voting and participation at the municipal level is relative; the Member States may organise their own political systems in a way that does not include any local governance.20 The right to participation at the municipal level can therefore not be made into a guaranteed EU citizenship right outside the free movement context, but only ever guarantee an equal treatment right relative to the political structures of the host Member State. This echoes how Union citizens obtain access to social rights, which are also defined by national law, and granted to Union citizens as equal treatment rights, generated by their use of freedom of movement. Only the European-levelled right, by its nature free of national and local belongings, holds potential to be a self-standing EU citizenship right irrespective of freedom of movement. However, it too functions essentially as an equal treatment right when realised in a cross-border situation.

C.  The European-Levelled Right to Political Equal Treatment Initially, a similar rationale as the municipal political right, applied to the individual’s rights at the supranational political level: the elections to the European Parliament. The amended version of the 1976 Act concerning the election of the representatives of the Assembly by direct universal suffrage provided that the electoral procedures regarding elections to the European Parliament were to be governed by each Member State’s national provisions.21 The Member States’ competence to set the franchise boundaries for their respective national electorates was therefore largely preserved. Each Member State could, in principle, decide how to include and exclude its own nationals, as well as non-nationals, from voting in both national and European elections.22 Through the changes to primary law brought about by the Treaty of Maastricht, the political rights at the European level became a material matter of Union law, as they were made into equal treatment rights for Union citizens in a host Member State. This step modified the national competence to govern the electorate to the European Parliament, placing it within the realm of free movement law, and harmonising the conditions of both the municipal and European electoral rights in two Voting Directives.23 As will be elaborated further below, only through the Treaty of Lisbon would the European voting right be freed from the necessity of a cross-border element

20 ibid, 57–58. 21 Article 8 of the amended 1976 Act concerning the election of the representatives of the Assembly by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976 (OJ L 278/1 1976), as amended by Council Decision 2002/772/EC. 22 Case C-300/04, Eman and Sevinger, EU:C:2006:545, paras 44–45. 23 Council Directive 93/109/EC of 6 December 1993 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals.

132  Political Free Movement Rights altogether. First, we shall linger at the issue of municipal and European political rights in the free movement context and the concept of residence in the Voting Directives.

D.  The ‘Voting Directives’ and the Concept of Residence The conditions for exercising the rights to vote and participate in, respectively, European and municipal elections, are elaborated in the two Voting Directives from 1993.24 Their aim was to abolish nationality as a requirement for voting in municipal elections and in elections to the European Parliament in a host Member State, thereby ensuring political equality between a Member State’s resident nationals and resident non-national Union citizens.25 The Voting Directives lay out the conditions for enjoyment of moving Union citizens’ equal treatment rights for electoral and candidacy participation at the municipal and European level in a host Member State of residence. Depending on the applicable voting rules in different Member States, for the purpose of the elections to the European Parliament, a Union citizen may have the option to choose to remain in the voting registry of their Member State of nationality, or to register as a voter in the Member State of residence.26 A Special Eurobarometer survey from 2018 showed that 56 per cent of mobile Union citizens favour exercising their right to vote to the European Parliament in the host Member State where they reside.27 Only 26 per cent would rather exercise that right in their home Member State of nationality. A speculative reason why the host Member State franchise is favoured in this way may be the pure convenience of voting where one lives. According to the same Special Eurobarometer’s result, 74 per cent of mobile Union citizens find it important not to be disenfranchised from national elections in their home Member State as a result of exercising freedom of movement. In that regard, the European-levelled voting right may have succeeded in removing national allegiances from mobile Union citizens. Voting for a candidate to the European Parliament from the host Member State where one resides is perhaps perceived as just as legitimate and important as voting for a candidate from the Member State of nationality. In any case, the moving Union citizen must qualify under the respective Voting Directives’ norms for being considered an eligible resident voter in the host Member State. Both Voting Directives define the ‘Member State of residence’ as ‘the Member State in which a citizen of the Union resides but of which he is not a national’.28 There is no reference to ‘lawful’ or ‘habitual’ residence, which appears to reflect

24 Directive

93/109/EC and Directive 94/80/EC. to Directive 93/109/EC and Directive 94/80/EC. 26 Article 4 of Directive 93/109/EC. 27 See Report on Special EuroBarometer 477 on Democracy and Elections, November 2018. 28 See Article 2(3) of Directive 93/109/EC. See Article 2 (c) of Directive 94/80/EC. 25 Preambles

Political EU Citizenship Rights as Free Movement Rights  133 that a Union citizen’s factual residence, in the more semantical sense of the word, embodies the Voting Directives’ concept of residence.29 The European Voting Directive does allow that the host Member State requires some ‘durational residence’ in the Member State for voting eligibility in the European Parliament elections, but provides that the fulfilment of residence periods in another host Member State must be taken into account.30 Multiple uses of freedom of movement between host Member States should not be to the citizen’s disadvantage. By contrast, for the municipal voting right, the host Member State may apply a requirement of ‘durational residence’ within the local sphere that the franchise refers to. A Union citizen must, in that case, for a certain continuous period, have resided in the specific constituency, before attaining equal local voting rights.31 Voting Directive 94/80/EC thereby allows for a prerequisite of firstly achieving some level of factual integration into the local community before a non-national Union citizen is included in the municipal franchise. Yet, neither of the Voting Directives hint at how they relate to the concept of ‘lawful’ residence of Directive 2004/38. Despite the fact that the electoral rights of what is now Article 20(2)(b) TFEU, and the Voting Directives, have the character of being equal treatment rights, the applicability of which depend on a free movement context, they are not mentioned in Directive 2004/38. The general right to equal treatment for all legal matters coming within the scope of the Treaty, which is found in Article 24(1) of Directive 2004/38, could theoretically also apply to fortify such civic rights, and be a basis for arguing a right to political participation on equal terms with nationals of the host Member State.32 The question remains whether to make genuine use of the right to reside in accordance with the norms of Directive 2004/38 might be applicable as a precondition for enjoyment of the EU citizenship right to equal political inclusion.33 So far, there has been no reporting of Union citizens being denied exercising their political EU citizenship rights in host Member States because of a failure to fulfil the conditions for residence rights in Directive 2004/38. What the host Member State may lawfully require is that a Union citizen produces a valid identity document, in addition to a declaration of their nationality and address in the Member State of residence.34 Other than that, the Voting 29 For an analysis of different legal concepts of residence in Union law, see M Cousins, ‘Habitual Residence: Fact or (Legal) Fiction? Commentary on the Case of I v Health Service Executive at the European Court of Justice’ (2014) 16 European Journal of Social Security 385, 390 f. 30 See Article 5 of Directive 93/109/EC and 4(1) of Directive 94/80/EC. The Court has acknowledged the lawfulness of this requirement in Case C-300/04, Eman and Sevinger, EU:C:2006:545, para 53. 31 Shaw, The Transformation of Citizenship in the European Union (n 9) 131. 32 See E Guild, S Peers and J Tomkin, The EU Citizenship Directive: A Commentary (Oxford, Oxford University Press, 2014) 224 and 233 f. See also Kochenov, ‘Free Movement and Participation in the Parliamentary Elections in the Member State of Nationality’ (n 4) 213. 33 Particularly, as the European Parliament may draw up a proposal to harmonise the conditions for election of its members, making it a uniform procedure in all Member States. The Parliament has not yet exercised this competence, see Article 223 TFEU. 34 See Directive 93/109/EC and Directive 94/80/EC.

134  Political Free Movement Rights Directives do not support that the voting authorities in a host Member State ­independently assess a Union citizen’s fulfilment of Directive 2004/38’s conditions for lawful residence, before recognising the person’s political inclusion.35 However, it seems unlikely that a Member State that applies manual voting registration, would have included an individual as part of the local or European franchise if the person had not at any point first been recognised as a lawful resident within the meaning of Directive 2004/38. Conversely, in those Member States where registration for eligibility for municipal voting is simultaneous with first registration of residence in a given municipality, it would appear unlikely that an individual’s voting rights would change until the factual residence is terminated.36 At the dawn of the legal status of EU citizenship in 1993, when the Voting Directives were adopted, it may have been unnecessary to ponder on the material content of the residence conditions reflected in the Voting Directives. It was perhaps not anticipated that issues of lawful residence and sufficient integration would later dominate the legal development of the EU citizenship right to equal treatment. The early Sala case signalled that a Union citizen, who had any legal basis for their residence in a host Member State, was prima facie to be treated the same way as a cross-border worker, with full equal treatment with the nationals of the host Member State concerning social advantages that come within the material scope of Union law.37 Following the rationale of that jurisprudence, EU citizenship and factual residence in a host Member State could easily be equalised to mean eligibility for voting and democratic participation on the same term as nationals within the meaning of the Voting Directives. There is therefore no clear legal connection between the conditions for eligibility to vote according to the Voting Directives and the conditions for being a lawful resident in accordance with Directive 2004/38. The Voting Directives do, however, carry the similar trait of Directive 2004/38 of safeguarding a Member State against imbalances caused by large-scale exercise of freedom of movement. A ‘too successful’ free movement regime, where a large number of Union citizens exercise freedom of movement to a particular host Member State, is perceived as

35 Articles  9–10 of Directive 93/109/EC; and Article  8 of Directive 94/80/EC. Council Directive 2013/1/EU of 20 December 2012 amending Directive 93/109/EC as regards certain detailed arrangements for the exercise of the right to stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals (OJ L 26/27 2013) makes it easier for Union citizens in a cross-border situation to stand for election in the host Member State as they no longer should be required to provide attested proof from the home Member State that they are eligible to stand for candidacy. 36 Groenendijk has noted that in the majority of the Member States, registration in the electoral rolls is automatic with the registration of residence in the municipality, Groenendijk (n 3) 1066. For the fact that local residential membership is terminated as soon as factual residence ends, see Bauböck, ‘The Three Levels of Citizenship within the European Union’ (n 16) 756. 37 Case C-85/96, Martínez Sala v Freistaat Bayern, EU:C:1998:217. See van der Mei’s comments in the Sala case in AP van der Mei, Free Movement of Persons within the European Community: Cross-Border Access to Public Benefits (Oxford, Hart Publishing, 2003) 144–45. For a critical view, see C Tomuschat, ‘Case C-85/96, María Martinez Sala v Freistaat Bayern, Judgment of 12 May 1998, Full Court. [1998] ECR I-2691’ (2000) 37 Common Market Law Review 449, 452.

Extending the Jurisdictional Scope of Political EU Citizenship Rights  135 a potential risk of disrupting the political balance.38 If more than 20 per cent of the voters in a municipality are non-national Union citizens, the host Member State may take measures to limit their political influence.39 This consideration of the national interest to protect the structure of a Member State’s electoral circles echoes the idea of Directive 2004/38 that non-national Union citizens should not become ‘a burden’ on the social system of the host Member State, so as to risk financial imbalance as a result of free movement of persons. Union law provisions that this way ‘protect’ a national community from demands from incoming nonmembers might dissipate the effectiveness of EU citizenship as a true supranational citizenship.40 It certainly entrenches the importance of national belonging in relation to both political and equal treatment rights. There have not (yet) been any judgments where the Court of Justice of the European Union (the Court) has had to consider a non-national Union citizen’s access in a host Member State to the political rights of EU citizenship. Interestingly, the issues of political rights that have arisen at the Court are all outside the context of freedom of movement and concerned with the Member States’ discretion to include or exclude individuals in their national electorate, as the gateway to accessing their European-levelled political rights. Two judgments from the Court, Spain v United Kingdom and Eman and Sevinger, showed that the jurisdictional scope of Union law, as well as the personal scope of the EU citizenship right to vote in elections to the European Parliament, go a lot further than freedom of movement.

II.  Extending the Jurisdictional Scope of Political EU Citizenship Rights Without a free movement context, and in spite of Directive 93/109/EC not being applicable, the EU citizenship right to vote in elections to the European Parliament took legal effect in the judgments of Eman and Sevinger and Spain v United Kingdom.41

A.  Case C-300/04 Eman and Sevinger In the Eman and Sevinger judgment, the Court safeguarded the EU citizenship right to vote in European elections based on a reasoning of equal treatment, but 38 Kochenov, ‘Free Movement and Participation in the Parliamentary Elections in the Member State of Nationality’ (n 4) 208. 39 See Chapter III of Directive 94/80/EC. Kochenov, ‘Free Movement and Participation in the ­Parliamentary Elections in the Member State of Nationality’ (n 4) 208. 40 F Strumia, ‘Supranational Citizenship’ in A Shachar et al (eds), The Oxford Handbook of Citizenship (Oxford, Oxford University Press, 2017) 679. 41 Case C-300/04, Eman and Sevinger, EU:C:2006:545; and Case C-145/04, Spain v United Kingdom, EU:C:2006:543.

136  Political Free Movement Rights without  free movement of persons law being applicable.42 The issue concerned Union citizens of Dutch nationality, residing in the Dutch Antilles. The TFEU formally labels the Dutch Antilles as one of the Overseas Countries and Territories (OCTs) where Union law, in principle, does not apply,43 and where there is no formal obligation of the Member States to hold elections to the European Parliament.44 The Netherlands did not arrange elections to the European Parliament for its inhabitants of the Dutch Antilles, which was challenged by two inhabitants, Eman and Sevinger. However, from a national law perspective Dutch nationals residing in the Dutch Antilles were, formally considered to be residing within the national territory of the Netherlands.45 In that regard, national law did not separate between the Member State territory and the OCT. In its judgment, the Court reasoned that the personal status of EU citizenship applies to all Union citizens, regardless of whether they are residing in an OCT, which motivated the jurisdictional application of Union law to the case.46 The Court acknowledged that the Member States are competent to regulate their national voting rules and may use the criteria of territorial residence to regulate their own nationals’ eligibility to vote in the European Parliament elections.47 However, in comparison to Dutch nationals residing in a third country, who, under Dutch practices, retained a right to vote to the European Parliament, to not organise elections for the inhabitants in the OCT amounted to unjustified unequal treatment between nationals. By relying on EU citizenship, the Court removed from the Member State’s discretion to differentiate between Dutch nationals residing outside the Netherlands, and the Dutch nationals residing in an OCT, by disenfranchising only the latter group.48 In Spain v United Kingdom, the issue was the opposite: the extension of the European electorate to include non-Union citizens.

B.  Case C-145/04 Spain v United Kingdom On the same day as Eman and Sevinger, the Court delivered its judgment in Spain v United Kingdom.49 The legal issue stemmed from the opposite situation from that of Eman and Sevinger. The United Kingdom wanted to extend the franchise 42 Case C-300/04, Eman and Sevinger, EU:C:2006:545. 43 See in general, D Kochenov, EU Law of the Overseas, Outermost Regions, Associated Overseas Countries and Territories, Territories Sui Generis, European Monographs 77 (Alphen aan den Rijn, Kluwer Law International/Wolters Kluwer, 2011). 44 See Article 198 TFEU and Annex II to the TFEU. Besselink (n 1) 787. Case C-300/04, Eman and Sevinger, EU:C:2006:545, para 47. 45 Kochenov, ‘Free Movement and Participation in the Parliamentary Elections in the Member State of Nationality’ (n 4) 216–17. 46 Case C-300/04, Eman and Sevinger, EU:C:2006:545, paras 27 and 53. 47 ibid, paras 54–55. 48 ibid, paras 60–61. 49 Case C-145/04, Spain v United Kingdom, EU:C:2006:543.

Extending the Jurisdictional Scope of Political EU Citizenship Rights  137 for voting in the European Parliament to non-UK citizens, who were nonetheless British subjects in Gibraltar.50 This was the result of the Matthews judgment from the European Court of Human Rights, where the United Kingdom had been found to have violated the European Convention on Human Rights by not holding elections to the European Parliament in the British dependent territory of Gibraltar.51 The United Kingdom therefore made changes to their voting rules. As a result, they included British nationals in Gibraltar in their national electorate for the European Parliament elections.52 Spain challenged this enfranchisement of the inhabitants of Gibraltar, arguing that non-Union citizens would be granted an EU citizenship right, and that it was not a national competence to extend EU citizenship rights that way.53 Contrary to Spain’s argument, the Court found that, as it is a national competence to decide who is eligible for voting according to a Member State’s national electoral procedures, Union law does not hinder the extension of voting rights associated with EU citizenship to non-Union citizens.54 The application of the principle of equal treatment in this case resulted in Union law allowing that non-Union citizens, although not formally part of the European citizenry, may be made equal with Union citizens for the sake of participating in the political life of the Union.55 That a Member State may admit a non-national in its European electorate circle is not a controversial conclusion by the Court, given that Member States are competent to choose to include nonnationals in their national and local electorates too. The United Kingdom does so for resident Irish nationals, and several Member States have a tradition for also including non-national residents in municipal elections, notwithstanding the influence of EU citizenship.56 Yet, to refer to equal treatment to assert that Union law respected the inclusion of non-Union citizens to elect representatives to the European Parliament was arguably an innovative interpretation of the personal scope of EU citizenship rights. Together with the judgment in Eman and Sevinger, it was also a step in the direction of substantiating the European-levelled political right into a fundamental one.

C.  Towards a Substantive EU Citizenship Voting Right The place of residence was pivotal in both Eman and Sevinger and Spain v United Kingdom, as the voters were residing outside the regular territory of the 50 For the difference between a national citizenship, and a colonial citizenship, such as being a British subject, see Strumia (n 40) 672. 51 Matthews v United Kingdom App no 24833/984 (1999). 52 See case note by Besselink (n 1) 791. 53 Case C-145/04, Spain v United Kingdom, EU:C:2006:543, para 39. 54 ibid, paras 76–78. 55 Besselink (n 1) 803–04. 56 Lardy, ‘The Political Rights of Union Citizenship’ (n 1) 631. F Fabbrini, Fundamental Rights in Europe: Challenges and Transformations in Comparative Perspective, Oxford Studies in European Law (Oxford, Oxford University Press, 2014) 99–100.

138  Political Free Movement Rights two Member  States that were respectively limiting, or extending the franchise, but neither case contained an issue of freedom of movement. Instead, the application of EU citizenship and the right to equal treatment were triggered by Article 1(3) of the 1976 Act concerning the election of the representatives of the European Parliament by direct universal suffrage,57 which obligated the Member States to respect Union law when deciding over their national franchise rules.58 Furthermore, the core of both cases was the right to equal treatment for inclusion in the national electorate for individuals that evidently had a nationality link to the Member States in question. It is noteworthy that neither of the cases dealt with the question of whether Union law provides a right to vote in the elections to the European Parliament for Union citizens as a matter of individual right, and not just as a function of equal treatment. Both judgments were therefore silent on the issue of whether Union law protects the enjoyment of this voting right in relation to home and host Member States alike, and based solely on the status of EU citizenship.59 These issues came to the fore in Delvigne.60

III.  A Fundamental EU Citizenship Right to Vote in Elections to the European Parliament As from 2009, the changes to Union law made through the Treaty of Lisbon detached the right to vote in the elections to the European Parliament from its dependence on either a free movement, or an equal treatment dimension. The new primary law provisions would transform it into a self-standing right tied directly to the status of EU citizenship, available to claim also by static Union citizens in relation to their home Member State, laying the ground for the Court’s reasoning in the 2015 Delvigne judgment.61

A.  Political EU Citizenship After the Treaty of Lisbon Through the Treaty of Lisbon in 2009, EU primary law, for the first time, formally empowered Union citizens to be individual political actors, who may directly influence the European democratic level. The provisions under Title II TEU

57 Act concerning the election of the representatives of the European Parliament by direct universal suffrage annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976 (OJ L 278/1 1976), as amended by Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 (OJ L 283/1 2002) (the 1976 Act). 58 Case C-650/13, Delvigne, EU:C:2015:648, paras 32–33. 59 Besselink (n 1) 788. 60 Case C-650/13, Delvigne, EU:C:2015:648. 61 ibid. J Shaw and L Khadar, ‘Article 39’ in S Peers et al (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014).

A Fundamental EU Citizenship Right to Vote  139 extensively connect EU citizenship to the democratic principles set out for the European Union and its institutions.62 Article 10(3) TEU states that every Union citizen shall have the right to participate in the democratic life of the Union, and Article 14(3) TEU provides that the members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot. Article 11 TEU creates the novel premise for the interaction between the EU institutions and Union citizens by the possibility of forming a Citizens’ Initiative.63 Union citizens across the Union may come together to sign a proposal for legislative action to be taken by the Commission.64 This right, as well as the rights to petition to the European Ombudsman and to communicate with the EU institutions in any of the official EU languages, are repeated in Article 24 TFEU, following the other EU citizenship rights.65 The TEU thereby adds a primary law dimension to EU citizenship that goes beyond freedom of movement.66 This placing of the citizen in the TEU provisions is a political empowerment of the individual that mirrors the legal empowerment that the Court granted private parties in van Gend en Loos.67 Through that judgment, the Member States no longer served as the necessary link between the individual and the Union. Instead, the Court granted individuals living in the Union a potent, direct legal standing under Union law.68 In a similar fashion, the TEU’s political empowerment of Union citizens not only lays the ground for substantiating the legal concept of EU citizenship, but also removes the individual’s political influence at the European level from depending solely on the politics of their own Member State’s government. While this political empowerment of the individual may be the case formally, EU citizenship’s function as a supranational political membership has been criticised for being, in practice, diluted of political significance.69 As Strumia points out, there is hardly a ‘supranational public sphere’ to talk about for Union citizens to actively take part in.70 When it comes to the other innovation of the Lisbon Treaty, the possibility to launch a European Citizens’ Initiative for a proposal to legislate to the Commission, Karatzia notes that the European demos seems to be 62 ibid, 1038. See analysis by Nic Shuibhne (n 13) 137–38. 63 Article 11(4) TEU; and Article 24 TFEU. 64 For the premises for exercising this right, see the analysis by M Dougan, ‘What Are We to Make of the Citizens’ Initiative?’ (2011) 48 Common Market Law Review 1807. 65 Although change of territorial residence may affect a Union citizen’s standing in a Citizens’ Initative, see Dougan (n 64). 66 On the empowerment of the legal status of EU citizenship through its political rights, see Shaw, The Transformation of Citizenship in the European Union (n 9) 48–51. 67 Case C-26/62, Van Gend en Loos v Administratie der Belastingen, EU:C:1963:1. 68 ibid; van Eijken et al, ‘The European Citizen as a Bearer of Fundamental Rights in a Multi-Layered Legal Order’ in T van den Brink, M Luchtman and M Scholten (eds), Sovereignty in the Shared Legal Order of the EU: Core Values of Regulation and Enforcement (Antwerp, Intersentia, 2015) 249. 69 See generally Strumia (n 40); and A Karatzia, ‘The European Citizens’ Initiative and the EU Institutional Balance: On Realism and the Possibilities of Affecting EU Lawmaking’ (2017) 54 Common Market Law Review 177, 197. 70 Strumia (n 40) 679.

140  Political Free Movement Rights ‘missing’.71 Furthermore, she notes the apparent mismatch between the expectations of the citizens standing behind a European Citizens’ Initiative and the, in reality, rather weak potential it has to influence the Commission’s prerogative to propose legislation.72 This perceived lack of real influence has perhaps been reflected in the turnout for the elections to the European Parliament. In both 2009 and 2014, only around 43 per cent of Union citizens made use of their right to vote, but the figure rose significantly in 2019, where close to 51 per cent of Union citizens made use of their European vote. A follow-up survey after the elections in 2019 signalled a positive change for the better with regard to Union citizens’ estimate of whether their voices count in the EU.73 It should not be excluded that the political rights available in the Treaties may, with time, mature into tangible political empowerment. Yet, the political rights at the European level do not make up for the fact that moving Union citizens are effectively excluded from the national electorate of their host Member State and, in some cases, also disenfranchised by their home Member State when making use of freedom of movement.74 It is here that the gap between the edges of freedom of movement and the status of EU citizenship are felt in relation to political rights. The Court’s effort in the 2015 case of Delvigne, to fundamentalise the right to vote in elections to the European Parliament, may be of little effect with regard to connecting freedom of movement with significant political rights. Nevertheless, it was an important substantiation to the status of EU citizenship when the Court, in Delvigne, connected Article 14(3) TEU to Article 39(2) of the Charter, making the EU citizenship right to elect the representatives to the European Parliament into a fundamental right, and implicitly fortified the genuine enjoyment doctrine.

B.  Case C-650/13 Delvigne In the Delvigne judgment, the Court for the first time treated the right to vote to the European Parliament as a self-standing, fundamental right, in spite of the case being materially detached from freedom of movement, or any equal treatment dimension.75 At the outset, the case looked like a purely internal situation, since, the facts of the case solely concerned the right of a static Union citizen, to rely 71 Karatzia (n 69) 178. 72 ibid, 197–201 and 207. 73 Post-election survey 2019, Special Eurobarometer 91.5, 2019. 74 According to the Report on Special EuroBarometer 477 on Democracy and Elections, November 2018, 74 per cent of respondents held that not to be disenfranchised nationally because of use of freedom of movement was an important issue. See also Kochenov, ‘Free Movement and Participation in the Parliamentary Elections in the Member State of Nationality’ (n 4); and F Fabbrini, ‘The Political Side of EU Citizenship in the Context of EU Federalism’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017). 75 In his comment in the Eman and Sevinger and Gibraltar cases, Besselink criticised how the Court sidestepped the possibility of treating voting in the European Parliament as a fundamental right, despite the influence of the ECtHR in this area, see Besselink (n 1) 805 f.

A Fundamental EU Citizenship Right to Vote  141 on his electoral right to the European elections, in relation to his home Member State. The main issue in Delvigne was the compatibility with Union law of a French rule that disenfranchised a resident national as a consequence of a criminal conviction for a serious crime.76 From a free movement law perspective, the case was a purely internal situation, and Voting Directive 93/109 was therefore not applicable. Neither was there, as in Eman and Sevinger and Spain v United Kingdom, an issue of unequal treatment between nationals as the rule was applicable to all French nationals in a similar situation. Nevertheless, as the disenfranchisement also resulted in a loss of the right to vote to the elections to the European Parliament, the Court found that the issue came within the jurisdictional scope of Union law, and triggered the application of the Charter. The legal basis for that assessment was the 1976 Act read together with Article  14(3) TEU, which states that the members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot.77 The latter is repeated in Article 39(2) of the Charter as an EU citizenship right. Although Article 8 of the 1976 Act provides that the electoral procedure for voting to the European Parliament shall be governed in each Member State in accordance with their national provisions, the Court found that Article 39(2) modified this national competence. In the Court’s reasoning, the Charter’s mirroring of the right to vote meant that when the Member States use their discretion to restrict the voting rights of their own nationals, they are restricting a fundamental right as defined by the Charter.78 The French provisions on disenfranchisement, although they were applied against a resident national, were therefore within the scope of Union law, and should be reviewed under the Charter. The Court found that a Member State may not disenfranchise its own nationals from the right to vote in the elections to the European Parliament, unless such a measure was in accordance with the conditions for limiting a fundamental right in Article 52(1) of the Charter.79 That provision provides that: Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

The Court assessed that the French rules for disenfranchisement, as a result of a criminal conviction for a serious crime, complied with the demands of Article 52(1) of the Charter.80 The outcome was that France did not have to amend their rules on disenfranchisement of some imprisoned persons.

76 Case

C-650/13, Delvigne, EU:C:2015:648. paras 31–33. 78 ibid, para 45. 79 ibid, para 46. 80 ibid, paras 47–52. 77 ibid,

142  Political Free Movement Rights Kochenov and others have criticised the Delvigne judgment for weakening the status of EU citizenship.81 According to that critique, Delvigne read together with the Court’s case law on how periods of imprisonment negatively affect residence security under free movement law, legitimises the exclusion of the ‘misbehaving’ citizen from EU citizenship rights.82 That argument may have some merit, particularly when read together with the Court’s sharp jurisprudence for limiting the right to equal treatment with regard to social assistance, and the relative ease with which permanent residence status may be forfeited as a result of imprisonment.83 Nonetheless, by its reasoning in Delvigne, the Court acknowledged the existence of a direct and substantive, albeit not unlimited, EU citizenship right to vote in elections to the European Parliament, protected as a fundamental right in the Charter.84 This is a clear substantiation of the legal content of EU citizenship, adding to the genuine enjoyment doctrine that originated in the Zambrano and Rottmann cases, and making EU citizenship a legally relevant status outside the context of freedom of movement.

C.  Fortifying the Idea of ‘Substance of Rights’ in EU Citizenship Law In several ways, the Court’s reasoning in Delvigne lay close to that in Rottmann or Tjebbes and Others.85 In the two latter cases, the Court found that, although naturalisation laws are exclusively within the Member State’s competence, retracting nationality from a Union citizen is not a purely internal matter to the domestic legal system. By necessity, it comes within the scope of Union law as it results in the simultaneous retraction of the status of EU citizenship, which follows automatically from the individual’s national citizenship.86 Similarly, the Court in Delvigne made Union law applicable to an otherwise purely internal situation, by finding that to restrict the right to vote in the elections to the European Parliament necessarily came within the scope of Union law. Like the French disenfranchisement rules that were found to be proportionate in Delvigne, the Court in Rottmann 81 See generally, U Belavusau and D Kochenov, ‘Kirchberg Dispensing the Punishment: Inflicting “Civil Death” on Prisoners in Onuekwere (C-378/12) and MG (C-400/12)’ (2016) 41 European Law Review 557. 82 ibid, 564–66. 83 Case C-333/13, Dano, EU:C:2014:2358; Case C-67/14, Alimanovic, EU:C:2015:597; and Case C-308/14, Commission v United Kingdom, EU:C:2016:436. See critique of these judgments by C  O’Brien, ‘Civis Capitalist Sum Class as the New Guiding Principle of EU Free Movement Rights’ (2016) 53 Common Market Law Review 937; and J Paju, ‘On the Lack of Legal Reasoning in Case C-308/14, “European Commission v United Kingdom”’ (2019) 48 Industrial Law Journal 117. 84 This had already been asserted by Advocate General Tizzano in his Opinion in Case C-145/04, Spain v United Kingdom, EU:C:2006:231, paras 69–71. 85 Case C-135/08, Rottmann, EU:C:2010:104; Case C-221/17, Tjebbes and Others, EU:C:2019:189. 86 Case C-135/08, Rottmann, EU:C:2010:104, para 42; and Case C-221/17, Tjebbes and Others, EU:C:2019:189, para 32.

A Fundamental EU Citizenship Right to Vote  143 found that denaturalisation may be a justified and proportionate measure, notably when nationality has been obtained on fraudulent grounds.87 The same line of reasoning was repeated in 2019 in Tjebbes and Others, concerning Dutch rules for retracting nationality from individuals who had lost their genuine ties to the Netherlands.88 In the above three cases, the Court found that a Member State measure that either deprives its own nationals of the legal status of EU citizenship, or restricts the factual enjoyment of its political rights, may be legally compatible with Union law, which might have favoured the State over the individual in the given case. However, at the same time these judgments asserted an important furthering of the jurisdictional scope of Union law and the applicability of EU fundamental rights standards, based on the status of EU citizenship. Delvigne thereby cultivates the doctrine that was first established in Zambrano and Rottmann, and repeated in more recent cases like Tjebbes and Others, and KA and Others,89 that there is a material substance to the primary law status of EU citizenship, independent of whether the individual is actually exercising freedom of movement.90 In the name of protecting an individual’s ‘genuine enjoyment of the substance of rights’ of the status of EU citizenship, Union law may invade a jurisdictional space which the Member States considered to be wholly internal, making the fundamental rights standards of the Charter applicable.91 There is an important distinction between the legal reasoning in Delvigne and the explicit genuine enjoyment cases. The latter relies on Article 20 TFEU to assert that an individual’s enjoyment of the substance of EU citizenship rights should not unjustifiably be obstructed. In this regard, the legal reasoning in Delvigne took a different route. The wording of Article  20(2)(b) TFEU lays down Union citizens’ rights to political participation as equal treatment rights in relation to a host Member State, making it relevant only in a free movement context.92 Therefore, to detach the scope of application of this voting right from the necessity of a crossborder element, the relevant provisions had to be found elsewhere in primary law. Especially so, as the Charter may not apply to a case unless the jurisdictional scope of Union law is firstly triggered by another Union law provision.93 In this case, it was Article  14(3) TEU that enabled the Court’s jurisdiction, which in turn triggered Article  39(2) of the Charter. Delvigne thereby showed that Member State measures that restrict the Union citizen’s enjoyment of the right to vote to the European Parliament, just like the protection against being

87 Case C-135/08, Rottmann, EU:C:2010:104, paras 55–59. 88 Case C-221/17, Tjebbes and Others, EU:C:2019:189, paras 31–32. 89 Case C-221/17, Tjebbes and Others, EU:C:2019:189; Case C-82/16, KA and Others, EU:C:2018:308. 90 A view of EU citizenship that has been repeated in subsequent cases, like Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354; Case C-165/14, Rendón Marín, EU:C:2016:675; and Case C-221/17, Tjebbes and Others, EU:C:2019:189. 91 Case C-34/09, Ruiz Zambrano EU:C:2011:124, para 42. 92 See also Article 22 TFEU; and Articles 39(1) and 40 of the Charter. 93 See generally, A Rosas, ‘When is the EU Charter of Fundamental Rights Applicable at National Level?’ (2012) 19 Jurisprudencija 1269.

144  Political Free Movement Rights compelled to leave the Union, or to lose the status of EU citizenship, make part of the substance of rights that the status of EU citizenship protects under the genuine enjoyment doctrine.94

D.  Would the Delvigne Principle Apply in a Free Movement Context? In Delvigne, the Court made a strong principled link between the democratic principles of the Union, the Charter and EU citizenship, but the case was solely concerned with a national Union citizen, resident in the home Member State. Would this fundamental right to elect representatives to the European Parliament be protected the same way if the case had concerned a non-national Union citizen, residing based on Directive 2004/38 in a host Member State? As has been seen in the aftermath of Zambrano, and most notably so in NA and Rendón Marín, the genuine enjoyment doctrine has not yet been extended to protect the residence rights of Union citizens in a host Member State as effectively as in the home Member State.95 This usually makes the home Member State the last resort for Union citizens to enjoy protection of their rights under Article  20 TFEU. Similarly, the Court has not yet applied its reasoning in Delvigne to a situation of freedom of movement; a situation where the Voting Directives should apply. The Delvigne judgment means that a home Member State may not restrict the substance of EU citizenship’s political rights of its own nationals without due regard to the fact that they are limiting a fundamental citizenship right of the Charter. It remains unresolved how to assess a host Member State’s disenfranchisement of a non-national Union citizen as a result of a criminal conviction or imprisonment. Given the outcome in Delvigne, where the Court found that to disenfranchise prisoners could be a proportionate derogation of a fundamental right, it is likely that it would allow for the fact that a non-national Union citizen prisoner in the same situation may be disenfranchised. That an imprisoned Union citizen should retain political EU citizenship rights in a host Member State, where nationals in the same situation are disenfranchised, would go against the principle that electoral rights are to be enjoyed on an equal treatment basis with national residents of

94 Fabbrini, ‘The Political Side of EU Citizenship in the Context of EU Federalism’ (n 74) 288. 95 Although the Advocate General in C-93/18, Bajratari, EU:C:2019:512, paras 86–89 hinted that such a linkage may eventually be necessary. See notably, Case C-115/15, NA, EU:C:2016:487; and Case C-165/14, Rendón Marín, EU:C:2016:675. See also Case C-86/12, Alokpa and Moudoulou, EU:C:2013:645; and Case C-256/11, Dereci and Others, EU:C:2011:734. See also Case C-424/10, Ziolkowski and Szeja, EU:C:2011:866 with the criticism of why the Zambrano-doctrine was not applied there, by A Łazowski, ‘Children of a Lesser Law: Comment on Ziolkowski and Szeja’ (2013) 38 European Law Review 404, 416.

National Disenfranchisement and Non-Enfranchisement  145 the host Member State.96 Such a measure should nonetheless be scrutinised under the Charter. On the other hand, Directive 2004/38 allows that residence security may be discontinued as a result of imprisonment in a host Member State;97 periods of lack of economic activity or insufficient means;98 or periods or absences from the host Member State’s territory.99 The Court may therefore have to answer whether imprisonment in itself may lead to disenfranchisement of a non-national Union citizen also if such a measure is not taken against imprisoned nationals. Such a value-driven understanding of what it means to be an integrated and lawful resident in accordance with Directive 2004/38,100 could potentially exclude the imprisoned Union citizen from being a political member of both the local and European polity.101 Within the free movement context, EU citizenship still has a lot to prove before its character as a strong political status is clear. It can hardly do so without also entering into the delicate, but important, issue of Union citizens losing democratic influence at the national level, as a direct consequence of exercising freedom of movement.

IV.  National Disenfranchisement and Non-Enfranchisement as a Result of Exercising Free Movement An inherent trait of any concept of citizenship is the equal political participatory rights within the polity to which the citizenship refers.102 In the Aristotelian citizenship ideal, political participation is a virtuous duty to be fulfilled by those who are chosen for inclusion in a given citizenry.103 The Aristotelian ideal thereby refers to an active citizenship, where taking public office is not a right as much as it is a responsibility.104 This vision of citizenship is directly linked to having 96 As the issue was in the British case of Teshome v The Lord President of the Council ([2014] EWHC 1468). See J Shaw, ‘Prisoner Voting: Now a Matter of EU Law’ (EU Law Analysis Blog, 15 October 2015). 97 Case C-378/12, Onuekwere, EU:C:2014:13. 98 Case C-333/13, Dano, EU:C:2014:2358; Case C-140/12, Brey, EU:C:2013:565; Case C-325/09, Dias, EU:C:2011:498; Case C-507/12, Saint Prix, EU:C:2014:2007. 99 Case C-162/09, Lassal, EU:C:2010:592, para 55. 100 L Azoulai, ‘Transfiguring European Citizenship: From Member State to Union Territory’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017) 189. 101 See in general, Belavusau and Kochenov (n 82). 102 Kochenov, ‘Free Movement and Participation in the Parliamentary Elections in the Member State of Nationality’ (n 4) 198. H Lardy, ‘Citizenship and the Right to Vote’ (1997) 17 Oxford Journal of Legal Studies 75, 80 f. 103 Aristotle, Politics. A New Translation (Indianapolis, IN, Hackett Publishing Company Inc, 2017) 59. Lardy, ‘Citizenship and the Right to Vote’ (n 102) 80 f. 104 Lardy, ‘The Political Rights of Union Citizenship’ (n 1) 619.

146  Political Free Movement Rights a system of democratic governance, and presupposes equality between all who are included in a demos, or citizenry, in which they dutifully participate.105 The ideal of an active and duty-filled citizenship shows that, theoretically, citizenship must not necessarily coincide with a sense of national belonging.106 If anything, the Aristotelian ideal encourages the formation of a citizenship of the ‘willing’, consisting of those who qualify by their virtuous abilities to work for the best interests of a given society.107 This concept of equal, active citizenship therefore fits both well and poorly with the distinction that is made between the moving and the static Union citizen in EU free movement law. It fits well, in the sense that the Aristotelian ideal also builds on the inevitable exclusion of some individuals from the active citizenry. For a Member State to exclude non-nationals or to disenfranchise non-residents from the national electorate is then legitimate. On the other hand, it fits poorly as inclusion in the citizenry of EU citizenship presupposes that everyone who is a citizen is formally and politically equal. The personal scope of EU citizenship reaches all Member State nationals, whether economically active, or inactive, static, or moving. It can be argued that equal political empowerment should therefore be ensured for all Union citizens, regardless of nationality, whether they exercise freedom of movement or not, and independent of their economic status.108 Disenfranchisement from a national electorate as a direct consequence of using free movement rights also goes against what Advocate General Jacobs puts forward in his Opinion in Pusa: It is also clear that freedom of movement entails more than simply the abolition of restrictions on a person’s right to enter, reside in or leave a Member State. Such freedom cannot be assured unless all measures of any kind which impose an unjustified burden on those exercising it are also abolished. Whatever the context in which it may arise – including leaving or returning to the home Member State, or residing or moving elsewhere within the Union – no such burden may be imposed.109

The above vision is currently not the reality in Union law. As it stands, Union law allows for the exclusion of a moving Union citizen from the national franchise in both a home and a host Member State. Among the European citizenry, there is therefore no guarantee of political equality on all levels of influence.

A.  Inclusion and Exclusion in a National Franchise Although not theoretically necessary, with the progression of the nation state, membership of a political community as a citizen, largely merged to coincide 105 ibid, 622, 625. 106 ibid, 633. See also C Closa, ‘Citizenship of the Union and Nationality of Member States’ (1995) 32 Common Market Law Review 487, 488–93. 107 D Kramer, ‘Earning Social Citizenship in the European Union: Free Movement and Access to Social Assistance Benefits Reconstructed’ (2016) 18 Cambridge Yearbook of European Legal Studies 270, 280. 108 Fabbrini, ‘The Political Side of EU Citizenship in the Context of EU Federalism’ (n 74) 283. 109 Opinion in Case C-224/02, Pusa, EU:C:2003:634, para 21 (emphasis added).

National Disenfranchisement and Non-Enfranchisement  147 with  nationality.110 Naturalisation to the nationality of the host Member State remains the usual prerequisite for full rights to political participation as residence status alone, regardless of duration, is usually not sufficient.111 Likewise, whereas several Member States allow the retention of the national vote as an exportable ‘good’ for its nationals, who take up residence outside the State,112 national disenfranchisement in the home Member State, as a result of the exercise of freedom of movement, remains a real issue.113 Alternative understandings of citizenship offer factors of belonging other than nationality, such as residence,114 as a basis for enjoyment of voting rights. This form of citizenship-like status in a community of residents (or defined by some other parameter) is a so-called denizenship.115 In light of the equality ideal of non-discrimination on grounds of nationality that the status of EU citizenship enshrines, and enforces at the municipal and European political level,116 it is notable that EU citizenship law has not been able to free the moving Union citizen from the political importance of national belonging.117 Moving Union citizens are not, under Union law, made into ‘denizens’ at the national level of their chosen host Member State. Non-national Union citizens may be excluded from national electoral rights in a host Member State, regardless of their status as permanent residents, or other links of integration in the host society.118 There are exceptions to this, regulated outside the scope of Union law, such as the UK’s full inclusion

110 Closa (n 106) 492; Lardy, ‘The Political Rights of Union Citizenship’ (n 1) 633. S O’Leary, The Evolving Concept of Community Citizenship: From the Free Movement of Persons to Union Citizenship (The Hague, Kluwer Law International, 1996) 7–13. 111 Schönberger, ‘European Citizenship as Federal Citizenship’ 14. Note that there are exceptions to this, such as the UK rules that include Irish citizens in the national electorate if they reside in the United Kingdom, and vice versa for UK citizens residing in Ireland with regard to Irish parliamentary elections. See Lardy, ‘Citizenship and the Right to Vote’ (n 102) 77 f. 112 Bauböck, ‘The Rights and Duties of External Citizenship’ (n 13) 487–88. For the theoretical understanding of political participation as a ‘good’, see Lardy, ‘Citizenship and the Right to Vote’ (n 102) 87. 113 EPRS Report, Disenfranchisement of EU citizens resident abroad – Situation in national and European elections in EU Member States, PE 542.183, December 2014. See also Fabbrini, Fundamental Rights in Europe (n 56) 109. 114 See in general, D Thym, ‘Residence as De Facto Citizenship? Protection of Long-Term Residence under Article  8 ECHR’ in R Rubio-Marín (ed), Human Rights and Immigration (Oxford, Oxford University Press, 2014). M-J Garot, ‘A New Basis for European Citizenship: Residence?’ in M La Torre (ed), European Citizenship: An Institutional Challenge (The Hague, Kluwer Law International, 1998). D Acosta Arcarazo, ‘Civic Citizenship Reintroduced? The Long-Term Residence Directive as a PostNational Form of Membership’ (2015) 21 European Law Journal 200. Á Castro Oliveira, ‘The Position of Resident Third-Country Nationals: Is it Too Early to Grant Them Union Citizenship?’ in M La Torre (ed), European Citizenship: An Institutional Challenge (The Hague, Kluwer Law International, 1998). 115 Hammar has phrased the concept of ‘denizenship’ to designate the special political stakeholdingship that a non-national incurs by being a resident in a national polity in Hammar (n 14) 169 f. 116 Article 18 TFEU. See the Preambles to Directive 93/109/EC and Directive 94/80/EC. Lardy, ‘The Political Rights of Union Citizenship’ (n 1) 623. 117 See in general, Kochenov, ‘Free Movement and Participation in the Parliamentary Elections in the Member State of Nationality’ (n 4). 118 A singular exception is the British rules enfranchising Irish citizens who reside in the United ­Kingdom in the national franchise. See comment on this by Lardy, ‘Citizenship and the Right to Vote’ (n 102) 77 f. Kochenov, ‘Free Movement and Participation in the Parliamentary Elections in the Member State of Nationality’ (n 4) 211.

148  Political Free Movement Rights of resident Irish citizens in their national electorate, a favour reciprocated by Ireland in the case of parliamentary elections.119 Generally, it is not uncommon that the national citizen is disenfranchised from the national electorate in their home Member State, either immediately after ceasing to be a resident there, or progressively, after some time abroad.120 Conversely, a host Member State’s full enfranchisement of a non-national resident in the national electorate is rare; many Union citizens will therefore lose membership of a national franchise, without entering into a new one, as a direct result of their exercise of freedom of movement.121

B.  The Insufficiencies of EU Citizenship as a Political Status To enjoy belonging to the European citizenry through the exercise of freedom of movement may entail losing national-levelled political belonging.122 This effect of losing rights and democratic influence at the national level is problematic from an EU citizenship perspective, as an important aspect of European political participation is to elect the national representatives who will shape Union law and policies.123 In connection with the 2016 Brexit referendum, this was felt by disenfranchised UK nationals, residing in another EU Member State, and barred from voting. Similarly, the many non-British Union citizens residing in the United Kingdom, whose residence rights were based directly on the host Member State’s EU membership, were not enfranchised.124 Notwithstanding these awkward effects of national disenfranchisement and non-enfranchisement in a free movement context, it remains an exclusive Member State competence to decide over the participatory conditions for its national electorate. There is no obligation on a Member State under EU free movement law to include a non-national Union citizen in the national electorate. The Member States decide who is to become a national, politically influential citizen, serving as gatekeepers to both the processes of naturalisation and inclusion in their electorate.125 Despite calls from scholarship, the disenfranchisement of Union citizens from national elections and referendums in their home Member States as a direct result 119 As pointed out by Advocate General Tizzano in his Opinion in Case C-145/04, Spain v United Kingdom, EU:C:2006:231, paras 85–86. 120 Ireland and Denmark are examples of these two respective models of either immediate or progressive disenfranchisement. 121 Kochenov, ‘Free Movement and Participation in the Parliamentary Elections in the Member State of Nationality’ (n 4) 212; O’Neill (n 20) 55. 122 O’Neill (n 20) 55. 123 Fabbrini, ‘The Political Side of EU Citizenship in the Context of EU Federalism’ (n 74) 280. 124 See UK Supreme Court case: R (Schindler) v Chancellor of the Dutchy of Lancaster [2016] UKSC 2016/0105. 125 H Krunke and F Schulyok, ‘National Citizenship and EU Citizenship: What Actual Competence is Left for the Member States in the Field of Citizenship?’ in T Giegerich, O Josef Gstrein and S Zeitzmann, The EU Between ‘an Ever Closer Union’ and Inalienable Policy Domains of Member States, Schriftenreihe Des Arbeitskreises Europäische Integration eV 80 (Baden-Baden, Nomos, 2014).

Conclusion  149 of the exercise of freedom of movement, has not (yet) been treated by the Court as an unjustified restriction on enjoyment of the fundamental freedoms in free movement law, respecting the Member States’ competence in this regard.126 This is so, despite a 2018 Eurobarometer which showed that 74 per cent of moving Union citizens find it important not to be disenfranchised from their national elections when they move cross-border.127 The currently close link between national citizenship and enfranchisement is of great concern in a world of global migration.128 A meaningful notion of equal treatment would necessitate inclusion also in the national franchise in the Member State of factual residence.129 On the other hand, it could be argued that the EU citizenship right to freedom of movement, although it might result in national disenfranchisement, in any case functions as a safety vent for those who disapprove of their national political regimes.130 A Member State’s population has the freedom to escape an emerging autocratic regime that takes over in their State, through reliance on their right to freedom of movement. This frees them from the necessity to otherwise rally against a regime, as they can ‘vote with their feet’, but is also worrying as it might drain a Member State from valuable political dissidents.131

V. Conclusion Union law ensures supranational and local democratic participation as an equal treatment right for moving Union citizens, but fails to ensure equal political participation at the national level in the host Member State. That the latter remains reserved for national citizens, undermines the very idea of citizenship and reveals a sharp edge to freedom of movement.132 Why should, for example, the acquisition of permanent residence status in a host Member State based on the norms of Directive 2004/38, not result in full equal national enfranchisement in the host Member State, when it does so for social inclusion and welfare rights?133 It has been 126 See notably, Lardy, ‘The Political Rights of Union Citizenship’ (n 1); Fabbrini, ‘The Political Side of EU Citizenship in the Context of EU Federalism’ (n 74); and Kochenov, ‘Free Movement and Participation in the Parliamentary Elections in the Member State of Nationality’ (n 4). Kochenov has proposed application of the Court’s restrictions approach in free movement law as a solution to alleviate the problem of disenfranchisement of Union citizens who make use of freedom of movement, see Kochenov, ibid, 205 f. See in this regard also O’Neill (n 20) 65 f. 127 See Report on Special EuroBarometer 477 on Democracy and Elections, November 2018. 128 Lardy, ‘Citizenship and the Right to Vote’ (n 102) 98. 129 Kochenov, ‘Free Movement and Participation in the Parliamentary Elections in the Member State of Nationality’ (n 4) 206; Fabbrini, Fundamental Rights in Europe (n 56) 137. 130 R Daniel Keleman, speech given at the bEUcitizen Consortium’s final conference (Brussels, 28 April 2017). 131 ibid. 132 Lardy, ‘The Political Rights of Union Citizenship’ (n 1) 613; Fabbrini, ‘The Political Side of EU Citizenship in the Context of EU Federalism’ (n 74) 293. 133 C Closa Montero, ‘Constitutional Prospects of European Citizenship and New Forms of Democracy’ in G Amato, H Bribosia and B de Witte (eds), Genesis and Destiny of the European

150  Political Free Movement Rights argued that enfranchisement in the national electorate would be a more attractive right for European citizenship than the right to participate in municipal elections, which is usually far removed from the European political context.134 Against that reasoning, are the statistics showing that moving Union citizens themselves say they prioritise the possibility to remain in their home Member State’s national franchise when exercising freedom of movement.135 The association between a national citizenship and a right to the national vote is likely strong across the EU Member States, and naturalisation to the host Member State’s nationality is then perceived as a legitimate prerequisite for inclusion in its national political community. Although the requirement of nationality may be replaced by residence for some level of enfranchisement, it is notable that one or both is usually necessary for eligibility to vote. A non-national frontier worker does not acquire voting rights in the Member State of work at either the local or national level. ‘Taxation without representation’ is inevitable, as economic activity in a host Member State does not in itself serve as a basis for a democratic say at any political level of that Member State.136 In conclusion, Union law, as it stands, better protects the enjoyment of political rights in the EU for Union citizens who stay in their home Member States, and do not seek opportunities cross-border under the fundamental freedoms. EU citizenship has not removed the importance of nationality from the sphere of political rights and is at the moment insufficient as a status to close the gap between the use of freedom of movement and belonging to a national franchise. The concept of EU citizenship, and its place in EU free movement law, has much evolving to do before it equally empowers its bearers at all levels of political rights and democratic influence. As will be demonstrated in the following chapter, the Court’s reasoning on the applicability of the Charter in Delvigne lies far from several other EU citizenship cases. The status of EU citizenship has much development ahead before offering a ‘seamless web’ of fundamental rights protection for all Union citizens, regardless of their personal status under freedom of movement.137

­ onstitution:  Commentary on the Treaty Establishing a Constitution for Europe in the Light of the C Travaux Préparatoires and Future Prospects (Brussels, Brulyant, 2007) 1060. 134 HU Jessurun d’Oliveira, ‘European Citizenship: Its Meaning, Its Potential’ in J Monar, W Ungerer and W Wessels (eds), The Maastricht Treaty on European Union: Legal Complexity and Political Dynamic (Brussels European Interuniversity Press, 1993) 96. 135 See Report on Special EuroBarometer 477 on Democracy and Elections, November 2018. 136 Lardy, ‘The Political Rights of Union Citizenship’ (n 1) 627. 137 S Prechal and S de Vries, ‘Seamless Web of Judicial Protection in the Internal Market’ (2009) 34 European Law Review 5.

7 EU Citizenship and the Charter Union citizens and their third-country national (TCN) family members, who are present in a host Member State but who do not fulfil the conditions for genuine use of freedom of movement, are at the legal edges of both residence and equal treatment rights. The Union citizen may possibly assert his political rights at the municipal and European level in the host Member State based on the status of EU citizenship and mere factual residence there. In addition, the right to vote in elections to the European Parliament enjoys particular protection under the Treaty on European Union (TEU) and the EU Charter of Fundamental Rights (the Charter). The latter has substantiated this voting right into being a fundamental right of EU citizenship.1 Although some cases have indicated that Article  20 of the Treaty on the Functioning of the European Union (TFEU) and the genuine enjoyment doctrine may apply to a Union citizen and family members in a host Member State, there has not yet been a clear-cut judgment to affirm that.2 Even so, there will be a legal distance to overcome between falling outside the scope of Directive 2004/38 and coming within the scope of the genuine enjoyment doctrine. In that legal space, it is not clear how the mere status of EU citizenship relates to the jurisdictional application and material content of the Charter. Is the status of EU citizenship and factual cross-border movement under Article 21 TFEU capable of activating some EU fundamental rights guarantees, regardless of the person’s standing under the norms of Directive 2004/38?3 While not being conclusive on that topic, extradition cases Petruhhin, and Raugevicius point to that direction.4 By contrast, cases

1 Case C-650/13, Delvigne, EU:C:2015:648. See comments by H van Eijken and J Willem van Rossem, ‘Prisoner Disenfranchisement and the Right to Vote in Elections to the European Parliament: Universal Suffrage Key to Unlocking Political Citizenship?’ (2016) 12 European Constitutional Law Review 114. 2 Case C-115/15, NA, EU:C:2016:487; Case C-165/14, Rendón Marín, EU:C:2016:675; Case C-86/12, Alokpa and Moudoulou, EU:C:2013:645. On the applicability of Article 20 TFEU to a host Member State, as in Alokpa, see also C Raucea, ‘European Citizenship and the Right to Reside: “No One on the Outside Has a Right to be Inside?”’ (2016) 22 European Law Journal 470, 480–81. 3 Advocate General Jacobs, who advocated a harmonised fundamental rights standard applicable to EU citizenship, nevertheless, paired enjoyment of that protection with making use of freedom of movement in accordance with its personal and material conditions, see Opinion in Case C-168/91, Konstantinidis v Stadt Altensteig and Landratsamt Calw, EU:C:1992:504, paras 45–46. 4 Case C-182/15, Petruhhin, EU:C:2016:630, para 60; and Case C-247/17, Raugevicius, EU:C:2018:898, para 49. On the mixed messages regarding the status of EU citizenship and the Charter

152  EU Citizenship and the Charter concerning the individual Union citizen’s ability to make genuine use of freedom of movement in accordance with the norms of the Directive, such as Dano and Bajratari, respectively reject applicability of the Charter, or are remarkably silent on the matter.5 Those judgments signal that a Union citizen’s failure to fulfil the conditions for genuine use of freedom of movement under Directive 2004/38 is not alleviated by a reliance on the Charter’s fundamental rights standards. There is thereby an uneven, and inconsistent, application of the EU’s own fundamental rights standards, depending on the nature of the Union citizen’s legal claim. A  Member State restriction on freedom of movement will generate a different result in relation to the Charter, from an individual’s shortcomings under the conditions of genuine use of freedom of movement in the Directive. The Charter’s legal relationship with the genuine enjoyment doctrine is also far from a settled issue. Outside the exercise of freedom of movement, when does an assessment of an individual’s standing under the genuine enjoyment doctrine of Article 20 TFEU trigger a review of their rights under the Charter? While first rejecting the possibility in Dereci, the Court of Justice of the European Union (the Court) changed its stance somewhat in Chavez-Vilchez and KA and Others affirming that, at least as far as children are concerned, Articles 7 and 24(2) of the Charter must be included in the material assessment of the Union citizen’s dependency on a TCN primary caregiver.6 The legal landscape that this case law reveals is a mysterious one where the scope of application of EU primary law, and thus the Charter, does not follow the physical movement of the Union citizen in a consistent manner, nor the application of norms stemming from Directive 2004/38, and not the status of EU citizenship at the primary law either. Judgments like Tsakouridis and Coman respectively show that the Charter’s fundamental rights protection applies to the Directive’s provisions on expulsion, and to the right to return with protected family reunification rights, for which the Directive applies by analogy.7 Chavez-Vilchez and its following cases have brought the Charter and the genuine enjoyment doctrine closer. Yet, the fundamental right to respect for family life only indirectly makes part of the core substance of rights that Article 20 TFEU ensures, as its applicability is triggered only when the effet utile of the status of EU citizenship is at real risk. This chapter first examines the place of human rights in the EU legal order and the development leading up to the entry into force of the Charter. It then turns to the issues of how the Charter’s rights relate to the status of EU citizenship and

in connection with extradition from the EU, see S Coutts, ‘From Union Citizens to National Subjects: Pisciotti’ (2019) 56 Common Market Law Review 521, 535–38. 5 Case C-333/13, Dano, EU:C:2014:2358; and H Verschueren, ‘Preventing “Benefit Tourism” in the EU: A Narrow or Broad Interpretation of the Possibilities Offered by the ECJ in Dano?’ (2015) 52 Common Market Law Review 363, 386 f. Case C-93/18, Bajratari, EU:C:2019:809. See also Case C-67/14, Alimanovic, EU:C:2015:597. 6 Case C-256/11, Dereci and Others, EU:C:2011:734, paras 70–72, compared with Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354, para 70; and with Case C-82/16, KA and Others, EU:C:2018:308, para 71. 7 Case C-145/09, Tsakouridis, EU:C:2010:708; Case C-673/16, Coman and Others, EU:C:2018:385.

The Place of Human Rights in Union Law  153 its Treaty-based rights. Specifically, the issue is how the norms of genuine use of personal free movement rights to enjoy residence security and equal treatment under Directive 2004/38 relate to the jurisdictional scope and material content of the Charter. As will be argued below, this issue has been further problematised by the development of the genuine enjoyment doctrine under Article 20 TFEU, and how the latter relates to EU fundamental rights review.

I.  The Place of Human Rights in Union Law Human rights are the legal conceptualisation of the underpinning values of a society.8 The human rights that Union law recognises as fundamental serve as general principles of Union law, and are largely embodied in the EU’s own human rights catalogue, the Charter.9 The Charter is, in that regard, the human rights instrument of Union law, expressing the fundamental rights, freedoms and general principles that reflect the underlying values of the Union.10 These fundamental rights should serve as an interpretive backdrop for the legal meaning of Union law provisions.11 In addition, the Charter, which has primary law standing, is the basis for judicial review of acts of the EU institutions and Member State measures that come within its scope of application.12 For a Member State measure to be reviewable under the Charter’s standards, it has to be a measure that is perceived as an act of implementation of Union law.13 As a consequence, one of the most elusive concepts with regard to the Charter is that of implementing Union law.14 One thing that the Court has made clear in this regard is that a Member State action that is a ‘derogation’ from the Member State’s obligations under Union law – a measure that restricts the efficiency of a

8 R Schütze, European Constitutional Law, 2nd edn (Cambridge, Cambridge University Press, 2016) 434. 9 Article 6(3) TEU. 10 See Title I TEU. Respect for human rights is outlined as one of the foundations of the Union in Article 2 TEU and respect of the rights, freedoms and principles of the Charter is recognised by the Union in Article 6(1) TEU. The Union here also pledges to accede to the ECHR as well as ensures that the rights of the ECHR and stemming from the common constitutional traditions of the Member States are to constitute general principles of Union law, see Article 6(2)–(3) TEU. 11 Case C-36/02, Omega, EU:C:2004:614, paras 33–34; Case C-112/00, Schmidberger, EU:C:2003:333, paras 71–72. 12 Article 51(1) of the Charter. 13 ibid. 14 Among a rich debate on this concept, see in general the contributions by A Rosas, ‘When is the EU Charter of Fundamental Rights Applicable at National Level?’ (2012) 19 Jurisprudencija 1269. K Lenaerts, ‘Exploring the Limits of the EU Charter of Fundamental Rights’ (2012) 8 European Constitutional Law Review 375. FG Jacobs, ‘Wachauf and the Protection of Fundamental Rights in EC Law’ in M Poaires Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Oxford, Hart Publishing, 2010). E Hancox, ‘The Meaning of “Implementing” EU Law under Article 51(1) of the Charter: Åkerberg Fransson’ (2013) 50 Common Market Law Review 1411. A Ward, ‘Article 51’ in S Peers et al (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014).

154  EU Citizenship and the Charter fundamental freedom, or deprives the status of EU citizenship of efficiency – falls within this concept.15 The Charter’s own stated limits to its jurisdictional applicability and effect, such as Article  52(2) of the Charter, provide that not all legal issues a Member State deals with that have some connection with Union law will trigger the scope of application of the Charter.16 This implies a legal gap between the scope of application of Union law and the scope of application of the Charter.17 Within this caveat, it has been argued that EU fundamental rights review should still be available as a matter of general principles of Union law under Article 6(3) TEU.18 In addition, the use of the concept of general principles of Union law for making a fundamental rights review could make the material content of EU fundamental rights standards more open-ended than if they are reduced to only the stated rights and principles of the Charter.19 However, in some cases the Court has not differentiated between the jurisdictional scope of Union law and a measure that implements Union law. This would make the scope of application of fundamental rights in the Charter, and as general principles of Union law, one and the same.20 To understand this complex relationship between the jurisdictional scope of Union law on the one hand, and the applicability of EU fundamental rights protection on the other, it is useful to consider that, historically, fundamental rights protection only entered into the EU legal order by gradual moves.

A.  The Gradual Introduction of Fundamental Rights in Union Law Human rights protection was not formally included in the Treaties until the changes made through the Treaty of Maastricht. It was here that the Treaty provision was introduced where the Union promised to respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 15 Case C-390/12, Pfleger and Others, EU:C:2014:281 regarding restrictions on the free movement of services and the Charter. E Spaventa, ‘Should We “Harmonise” Fundamental Rights in the EU? Some Reflections about Minimum Standards and Fundamental Rights Protection in the EU Composite Constitutional System’ (2018) 55 Common Market Law Review 997, 1008. A Ward, ‘Remedies under the EU Charter of Fundamental Rights’ in S Douglas-Scott and N Hatziz (eds), Research Handbook on EU Law and Human Rights (Cheltenham, Edward Elgar Publishing, 2017) 175. 16 N Nic Shuibhne, ‘Integrating Union Citizenship and the Charter of Fundamental Rights’ in D Thym (ed), Questioning EU Citizenship: Judges and the Limits of Free Movement and Solidarity in the EU, Modern Studies in European Law (Oxford, Hart Publishing, 2017) 225. 17 As seen in Case C-333/13, Dano, EU:C:2014:2358; and Case C-256/11, Dereci and Others, EU:C:2011:734. 18 S Douglas-Scott, ‘The European Union and Human Rights’ in D Patterson and A Södersten (eds), A Companion to European Union Law and International Law (Chichester, John Wiley & Sons Inc, 2016) 462. See the Court’s reasoning in Case C-555/07, Kücükdeveci, EU:C:2010:21. 19 Lenaerts (n 14) 376, 386. 20 Case C-617/10, Åkerberg Fransson, EU:C:2013:105. See Hancox (n 14) 1412.

The Place of Human Rights in Union Law  155 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.21

Negotiations in the 1950s leading up to the original Treaty framework for the EEC had included a vision of human rights protection.22 These ambitions were discarded as the Member States could not agree on establishing a Community that would lead towards a cooperation of such a supranational character.23 The establishment of the European Economic Community in 1957 was therefore reduced to the mandate of creating a common market. Human rights protection was left to the Member States’ national legal systems and courts to ensure. The lack of human rights concepts in the crafting of the first Treaty did, however, not stop them from being relevant to the development of EEC law. They firstly gained relevance in the shape of general principles of law, found by the Court as natural essentials to the interpretation of the Community’s legal norms.24 The Court had good reason to see human rights standards as part of its legal realms in order to ensure the legitimacy and primacy of the new legal order that the Community had established.25 Otherwise, it risked that national courts would become forums for legal rejection of the Community’s policies on human rights grounds.26 Consequently, as early as in its case law in the 1960s, the Court found that the interpretation of Community law must respect human rights guarantees, such as those expressed in the Member States’ national constitutions and in the European Convention on Human Rights (ECHR).27 Human rights this way entered Union law in the shape of general principles of law to serve as an interpretive backdrop for assessing both the quality of its institutions’ own actions as well as the Member States’ implementation of its legal norms. Through the Treaty of Maastricht, the legal concept of EU citizenship was inserted in primary law at the same time as the Member States inserted the pledge in the Treaty that the Union shall respect fundamental rights.28 The Spanish Government’s proposal for the legal construction of EU citizenship included a coupling of the status of EU citizenship with some minimum fundamental rights

21 Article F EC (Treaty of Maastricht). See now Article 6(3) TEU. 22 G de Búrca, ‘The Evolution of EU Human Rights Law’ in P Craig and Ge de Búrca (eds), The ­Evolution of EU Law, 2nd edn (Oxford, Oxford University Press, 2011) 466. 23 ibid, 474–77. 24 See the Court’s reasoning on Community law’s recognition of fundamental rights standards in Case C-29/69, Stauder v Stadt Ulm, EU:C:1969:57; Case C-11/70, Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel, EU:C:1970:114, notably paras 3–4. See T Tridimas, The General Principles of EU Law, 2nd edn (Oxford, Oxford University Press, 2009) 300–04. 25 Case C-26/62, Van Gend en Loos v Administratie der Belastingen, EU:C:1963:1. 26 Douglas-Scott (n 18) 467–69, 471–72. 27 Case C-29/69, Stauder v Stadt Ulm, EU:C:1969:57; Case C-11/70, Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel, EU:C:1970:114, notably paras 3–4. Schütze (n 8) 432–35. 28 Article 8 and Article F EC (Treaty of Maastricht).

156  EU Citizenship and the Charter guarantees.29 Although such a coupling was not explicitly made, the insertions of both citizenship of the Union, and a legal recognition of fundamental rights as a material part of the Union’s legal order, reflected that the Treaties now carried the Member States’ vision of achieving further political integration. This vision took the Community into its new identity as a Union with ambitions reaching beyond the internal market goal.30

B.  The Charter: A Catalogue of Fundamental Rights in the EU Legal Order In 2000, the EU proclaimed its own Charter of Fundamental rights; a modern catalogue of the rights, freedoms, and principles recognised as fundamental rights in Union law.31 These included rights and freedoms as found in the ECHR, protected by the European Court of Human Rights (ECtHR) in Strasbourg, as well as elements found in the Member States’ national constitutions, or those stemming from other international law statutes such as the European Social Charter and the New York Convention on the Rights of the Child.32 The Charter was made into binding primary law through the Treaty of Lisbon in 2009. Its Preamble states the Union’s ambition to place ‘the individual at the heart if its activities’ and it replicates several primary law provisions found in the Treaties. In addition, the Charter comes with important limitations for its applicability and effect. It is legally binding on the EU institutions in all their actions, but applies only to such Member State measures that are acts of implementing Union law.33 Article 52(2) of the Charter provides that those of its stated rights that replicate a Treaty provision are not to have any other meaning or wider scope of application than their Treaty counterpart. In its mixed language of rights, freedoms and principles, the Charter provisions express a distinction that is important for the purpose of adjudication.34 Substantive rights are to be respected and relied on to limit the acts of the EU institutions and Member States, whereas principles are to be observed when enacting new policies

29 As pointed out by S Iglesias Sánchez, ‘Fundamental Rights and Citizenship of the Union at a Crossroads: A Promising Alliance or a Dangerous Liaison?’ (2014) 20 European Law Journal 464, 464–65. 30 de Búrca (n 22) 480 f. 31 Schütze (n 8) 443. 32 The European Social Charter, ETS No 035 – Turin, 18.X.1961; The New York Convention on the Rights of the Child, of 20 November 1989. See references to these instruments in the Explanations to the Charter. The Court made international treaties and the Member States’ constitutions into the source for EU fundamental rights standards through the judgment in Case C-4/73, Nold KG v Commission, EU:C:1974:51, see X Groussot, General Principles of Community Law (Europa Law Publishing, 2006) 62. 33 Article 51(1) of the Charter. 34 Schütze (n 8) 444 where Schütze refers to Case C-176/12, Association de médiation sociale, EU:C:2014:2, paras 45–48.

The Charter and EU Citizenship Rights  157 and legislation.35 Not all of the provisions that are designated as ‘rights’ in the Charter have been treated by the Court as judicially enforceable rights.36 The Court has yet to further develop which rights it considers enforceable by individuals and those that merely serve as guiding principles for legal outcomes or policies, and what the premises are for that distinction.37 Through the entry into force of the Charter, the place for human rights in Union law came full circle; from being an excluded ambition in negotiations in the 1950s, to a legally binding human rights catalogue of the Union as of 2009. From there, the leap to making the EU legal order a solid human rights order seemed close as Article 6(2) TEU provides that the EU itself shall accede to the ECHR as a party among other State parties to the Convention. However, the Court in its Opinion 2/13, found the Draft Accession Agreement to be incompatible with the Treaties due to, among other matters, the distortion of jurisdiction that this would result in between itself and the ECtHR.38 With accession to the ECHR being out of reach for the foreseeable future, the legally binding effect of the Charter in Union law may result in it assuming a more pronounced function as the ‘Bill of Rights’ of the Union.39 However, the prospects of such a development must be aligned with the Charter’s self-stated limitations, which hinders it from transforming the Union into a ‘human rights organisation’.40 Due to its jurisdictional and material constraints, the relationship between the Charter, the status of EU citizenship and its free movement rights remains unclear. It is against this backdrop that the legal space between the status of EU citizenship, the exercise of personal free movement rights, and the Charter should be understood.

II.  The Charter and EU Citizenship Rights Most of the Charter’s provisions are universally worded, meaning that they may apply to any individual whose claim is materially within its scope of application, regardless of the person’s nationality. For example, Article 34 of the Charter, stating that ‘everyone residing and moving legally within the European Union is 35 Explanations Relating To The Charter Of Fundamental Rights, see explanations to Article 52 the Charter (OJ C 303/02). See Schütze (n 8) 444 f. 36 See analyses by T Lock, ‘Rights and Principles in the EU Charter of Fundamental Rights’ (2019) 56 Common Market Law Review 1201; and D Gudmundsdóttir, ‘A Renewed Emphasis on the Charter’s Distinction Between Rights and Principles: Is a Doctrine of Judicial Restraint More Appropriate?’ (2015) 52 Common Market Law Review 685, 694 f. 37 Ward, ‘Remedies under the EU Charter of Fundamental Rights’ (n 15) 163 f. 38 Avis 2/13 – Adhésion de l’Union à la CEDH, EU:C:2014:2454. 39 Iglesias Sánchez (n 29) 465. For the view that the Court seeks hegemony in the area of fundamental rights protection, see in general, E Spaventa, ‘A Very Fearful Court? The Protection of Fundamental Rights in the European Union after Opinion 2/13’ (2015) 22 Maastricht Journal of European and Comparative Law 35. 40 Ward, ‘Remedies under the EU Charter of Fundamental Rights’ (n 15) 162.

158  EU Citizenship and the Charter entitled to social security benefits and social advantages in accordance with Union law and national laws and practices’, is not directly tied to the status of EU citizenship or freedom of movement. The provision is applicable to Union acts and policies that touch any individual under Union law.41 On the other hand, some Charter provisions echo the Treaties’ distinct rights reserved for EU citizenship, such as the political equal treatment rights, and the right to seek diplomatic and consular protection in other Member States’ representations in a third country.42 Importantly, Article  45(1) of the Charter replicates the EU citizenship right to move and reside freely within the territory of the Member States. Two issues that arise are, first, regardless of universal wording, whether all of the rights of the Charter should be seen as a catalogue of minimum rights standards of EU citizenship, for the individual to rely on merely by coming within the personal scope of that status.43 The second issue concerns what the meaning is of the distinct EU citizenship rights of the Charter, in view of them being replications of primary law provisions found in the Treaties.

A.  Are Fundamental Rights EU Citizenship Rights – And Should They Be? Some have considered EU citizenship as a legal figure where the ­fundamental freedoms of EU internal market law and fundamental human rights might ­ converge.44 Advocate General Jacobs famously envisioned how the European citizen should be able to rely on a core set of harmonised fundamental rights guarantees, in whichever Member State they may find themselves, merely by saying civis europeus sum.45 Such a vision was, however, seen as too far-reaching by Advocate General Gulmann in Bostock.46 He argued that there was no reason to extend Union fundamental rights standards to apply in legal situations lying outside the scope of the Union’s competences, as the Member States’ own fundamental rights systems could adequately resolve such issues.47 As a mid-way, Advocate General Sharpston in her Opinion in Zambrano, suggested that Article 18 TFEU should be interpreted as prohibiting reverse discrimination caused by the interaction between Article 21 TFEU and national law that entails a violation of a 41 As seen in Case C-571/10, Kamberaj, EU:C:2012:233. 42 Articles 39(2) and 40 of the Charter and Article 46 of the Charter. 43 Despite proposing an alleviation against reverse discrimination in the area of EU fundamental rights protection in her Opinion in the Ruiz Zambrano case, Advocate General Sharpston warned against ‘stretching’ the cross-border element of Article 21 TFEU too far, so as to make the personal scope of EU citizenship the same as coming within the scope of Union law, see Opinion in Case C-34/09, Ruiz Zambrano, EU:C:2010:560, paras 143–50. 44 Opinion in Case C-168/91, Konstantinidis v Stadt Altensteig and Landratsamt Calw, EU:C:1992:504; Opinion in Case C-228/07, Petersen, EU:C:2008:281. Iglesias Sánchez (n 29) 465. 45 Opinion in Case C-168/91, Konstantinidis v Stadt Altensteig and Landratsamt Calw, EU:C:1992:504, para 46. 46 Opinion in Case C-2/92, The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Dennis Clifford Bostock, EU:C:1993:141. 47 ibid, para 33. See comment by Groussot (n 32) 292.

The Charter and EU Citizenship Rights  159 fundamental right protected under EU law, where at least equivalent protection is not available under national law.48

This would solve part of the conundrum of the reach and limits to EU fundamental rights protection, but does not address the underlying issue of why ensuring the fundamental rights of individuals who happen to be Union citizens should be privileged over ensuring those of their TCN family members.49 Neither does it better the situation of reverse discrimination between Union citizens, who are separated in their access to EU fundamental rights review on the basis of either the cross-border requirement of free movement law, or the elusive limits of the genuine enjoyment doctrine.50 The Court has consistently avoided imposing EU fundamental rights standards as a self-standing matter in the Member States’ jurisdictions, thus respecting the limits of EU competence. It insists that there has to be a ‘link’ between an independent material issue of Union law and a fundamental rights dispute in order to trigger EU fundamental rights protection.51 On the other hand, free movement law has many examples of the Court shrinking the realms of so-called purely internal situations – where a legal matter should fall solely within national Member State jurisdiction.52 In addition, fundamental rights standards have played an evident role in the legal development of EU citizenship and personal freedom of movement. One example is the Court’s recognition in Laval and Viking of how fundamental social rights of workers may be an off-balancing interest to the free movement of services and freedom of establishment.53 A more pertinent example for EU citizenship is the right to family reunification in a host Member State when making genuine use of a fundamental freedom.

48 Opinion in Case C-34/09, Ruiz Zambrano, EU:C:2010:560, para 144. On this point, see also, in general, E Spaventa, ‘Seeing the Wood Despite the Trees? On the Scope of Union Citizenship and its Constitutional Effects’ (2008) 45 Common Market Law Review 13; and A von Bogdandy et al, ‘Reverse Solange: Protecting the Essence of Fundamental Rights against EU Member States’ (2012) 49 Common Market Law Review 489. 49 As seen in cases as diverse as Case C-60/00, Carpenter, EU:C:2002:434; and Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354. On the problem of linking fundamental rights to the inherently exclusionary status EU citizenship, see MJ van den Brink, ‘EU Citizenship and (Fundamental) Rights: Empirical, Normative, and Conceptual Problems’ (2019) 25 European Law Journal 21, 30. J Croon-Gestefeld, ‘Reverse Solange: Union Citizenship as a Detour on the Route to European Rights Protection against National Infringements’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017) 674–75. 50 See in general, S Adam and P Van Elsuwege, ‘EU Citizenship and the European Federal Challenge through the Prism of Family Reunification’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017). 51 Ward, ‘Article 51’ (n 14) 1450; Rosas, ‘When is the EU Charter of Fundamental Rights Applicable at National Level?’ (n 14); K Lenaerts and JA Gutiérrez-Fons, ‘Epilogue on EU Citizenship: Hopes and Fears’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017). 52 Among others, see Case C-403/03, Schempp, EU:C:2005:446; Case C-148/02, Garcia Avello, EU:C:2003:539; Case C-60/00, Carpenter, EU:C:2002:434; and Case C-127/08, Metock and Others, EU:C:2008:449. 53 Case C-341/05, Laval un Partneri, EU:C:2007:809; Case C-438/05, The International Transport Workers’ Federation and The Finnish Seamen’s Union, EU:C:2007:772.

160  EU Citizenship and the Charter This right has been enforced by the Court linking it to the fundamental right to respect for family life of Article 8 ECHR, also found in Article 7 of the Charter.54 In Metock, the Court highlighted how this fundamental right motivated a generous reading of the right to family reunification, which in itself is an important instrumental aspect of the right to reside and the effet utile of personal freedom of movement.55 This reasoning based on the Charter’s protection of family life has now been transposed to the genuine enjoyment doctrine, affirming the Union citizen’s right to family reunification with a TCN family member on whom the Union citizen depends in order to reside within the Union under Article 20 TFEU as necessary for the effet utile of EU citizenship itself.56 The shaping of the residence rights of family members under EU free movement law has thereby taken inspiration from both family reunification as instrumental to an efficient free movement law regime,57 and from the fact that protection of family life is recognised as a fundamental right recognised by Union law. However, family reunification in free movement law takes the standard of this fundamental right one qualitative step further compared with what the ECHR would demand. The ECHR standard is that as long as family life is enabled somewhere, the right to respect for family life is sufficiently safeguarded.58 By contrast, when tied to the rationale of freedom of movement, the fundamental right to respect for family life is protected in a particular host Member State of choice.59 Furthermore, under Article 20 TFEU, the right to family life is intertwined with the Union citizen’s right to in practice keep their residence within the Union’s territory. The stability of family life, when tied to the interest of an effective free movement of persons law regime, or the genuine enjoyment doctrine, is therefore better protected under the status of EU citizenship than traditionally afforded under the domestic standards of a Member State, or when reviewed solely under ECHR standards.60 This exacerbates the prevalence of reverse discrimination in EU free movement law with regard to fundamental rights protection.61

54 See Case C-60/00, Carpenter, EU:C:2002:434; and Case C-127/08, Metock and Others, EU:C:2008:449. 55 Case C-127/08, Metock and Others, EU:C:2008:449, paras 82–84. Adam and Van Elsuwege, ‘EU Citizenship and the European Federal Challenge through the Prism of Family Reunification’ (n 50) 254. 56 Case C-82/16, KA and Others, EU:C:2018:308, paras 51–52; Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354, paras 63 and 69. 57 G Davies, ‘The Right to Stay at Home: A Basis for Expanding European Family Rights’ in D ­Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017) 471. 58 See, eg, Biao v Denmark App no 38590/10 (2016); and Jeunesse v The Netherlands App no 12738/10 (2014). 59 D Thym, ‘EU Migration Policy and its Constitutional Rationale: A Cosmopolitan Outlook’ (2013) 50 Common Market Law Review 709, 719. N Nic Shuibhne, ‘(Some of) the Kids Are Alright: Comment on McCarthy and Dereci’ (2012) 49 Common Market Law Review 349, 373. 60 Compare in this regard Case C-60/00, Carpenter, EU:C:2002:434 with Case C-434/09, McCarthy, EU:C:2011:277; and with Case C-256/11, Dereci and Others, EU:C:2011:734. 61 Case C-434/09, McCarthy, EU:C:2011:277; Case C-256/11, Dereci and Others, EU:C:2011:734. M  Szpunar and E Blas López, ‘Some Reflections on Member State Nationality: A Prerequisite of

The Charter and EU Citizenship Rights  161 Union citizens and their family members who are in a purely internal situation enjoy neither the residence rights of freedom of movement, nor the same fundamental rights standard of family life protection that free movement law activates. Article 20 TFEU and the genuine enjoyment doctrine has not solved this as it has created its own jurisdictional limitations, and so far, has only explicitly served the outcome in cases involving Union citizen children with TCN parents.62 Therefore, it is a well-founded critique that the enjoyment of family reunification under free movement law remains reserved for those who can ‘finance’ that family life, by their economic agency, or self-sufficiency, and by exercising freedom of movement with the family to another Member State.63 As a contrasting argument, it can be upheld that, so far, the Court has firmly maintained a separation between the personal scope of EU citizenship and EU fundamental rights protection as the rights stemming from a citizenship should well be something other than the fundamental rights guarantees an individual should enjoy based on their humanity.64 Nevertheless, given the limits to the Charter’s reach, there is a legal space of uncertainty where a Union citizen in a factual free movement situation might find themselves. If the legal claim at hand does not involve a restriction on their exercise of freedom of movement under Article  21(1) TFEU, nor to their very continued existence within the Union territory under Article  20 TFEU, it is unclear what makes the Charter apply.65 Might the legal meaning and relevance of the distinct EU citizenship rights that are replicated in the Charter take effect in this space?

B.  Understanding the Treaty Twins: The EU Citizenship Rights in the Charter Article 45(1) of the Charter affirms that freedom of movement is a fundamental right, available to all Union citizens, by mere virtue of their EU citizenship. It firstly appears as an exact replica of the EU citizenship right to freedom of movement of Article 21(1) TFEU, but unlike its Treaty counterpart, the Charter right does not EU Citizenship and an Obstacle to its Enjoyment’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017) 121. See in general, Nic Shuibhne, ‘(Some of) the Kids Are Alright: Comment on McCarthy and Dereci’ (n 59). 62 See case law development from Case C-34/09, Ruiz Zambrano, EU:C:2011:124 to Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354. 63 EA Christodoulidis, ‘Family Reunification: Who Pays for Love in Europe?’ in H Petersen (ed), Love and Law in Europe (Aldershot, Dartmouth, 1998) 67. 64 Croon-Gestefeld (n 49) 674–75; van den Brink, ‘EU Citizenship and (Fundamental) Rights’ (n 49) 29–31. 65 The absence of the Charter was seen in cases like Case C-333/13, Dano, EU:C:2014:2358; Case C-67/14, Alimanovic, EU:C:2015:597; Case C-115/15, NA, EU:C:2016:487; Case C-86/12, Alokpa and Moudoulou, EU:C:2013:645; Case C-256/11, Dereci and Others, EU:C:2011:734; Case C-40/11, Iida, EU:C:2012:691; and Case C-87/12, Ymeraga and Ymeraga-Tafarshiku, EU:C:2013:291.

162  EU Citizenship and the Charter contain a reference to any limits and conditions to its exercise.66 At first glance, this would imply that the Charter’s right to freedom of movement is broader or legally stronger than Article 21(1) TFEU. The Explanations to the Charter provide that the insertion of the right to move to and reside freely as a fundamental EU citizenship right in Article 45(1) of the Charter is a codification of the Baumbast and R judgment.67 This was the case where the Court established that the freedom to move to and reside freely in the host Member State of choice was a directly effective individual right of all Union citizens.68 The ideal that Union citizens, by the mere status of EU citizenship, have a right to move and take up residence wherever they want in the Union thereby makes a solid part of the Union’s constitutional legal framework.69 As personal freedom of movement became ‘fundamentalised’ in the case law by reference to its place in primary law, it should have a natural place in the Charter’s catalogue of fundamental rights.70 Nonetheless, in Baumbast and R, and subsequent case law, the Court highlighted that a directly effective right may be subject to limits and conditions.71 The Charter also recognises that some of its fundamental rights may be derogated from in accordance with its Article 52(1). However, lawful limitations to a fundamental right in the Charter must be provided for by law, be proportionate and necessary, and genuinely meet objectives of a general interest that is recognised by the Union or the need to protect the rights and freedom of others.72 Article 52(2) of the Charter goes on to say that those rights that are recognised by the Charter for which provision is made in the Treaties shall be exercised under the conditions and limits defined by those Treaty provisions. This leads to a state of law where Directive 2004/38 serves as the secondary law basis for the limits and conditions to the right to freedom of movement of the TFEU, but where Article 45(1) of the Charter, read together with Article  52(2), seems inapplicable for reviewing the legal validity of the Directive. The Court may have had good reason to abstain from reviewing the limits on primary law rights, laid down in Directive 2004/38, under 66 Article 45(1) of the Charter, which states that ‘Every citizen of the Union has the right to move and reside freely within the territory of the Member States’. 67 Explanations to the Charter, see Explanation on Article  45 – Freedom of movement and of residence. 68 Case C-413/99, Baumbast and R, EU:C:2002:493, para 84. 69 F de Cecco, ‘Fundamental Freedoms, Fundamental Rights, and the Scope of Free Movement’ (2014) 15 German Law Journal 383, 385 f. 70 On the ‘fundamentalisation’ of freedom of movement, see in general A Tryfonidou, ‘The Notions of “Restriction” and “Discrimination” in the Context of the Free Movement of Persons Provisions: From a Relationship of Interdependence to One of (Almost Complete) Independence’ (2014) 33 Yearbook of European Law 385; and S Reynolds, ‘Union Citizenship: Placing Limitations on a Human-Centred Approach?’ in N Ferreira and T Kostakopoulou (eds), The Human Face of the European Union: Are EU Law and Policy Humane Enough? (Cambridge, Cambridge University Press, 2016). 71 Case C-413/99, Baumbast and R, EU:C:2002:493, para 90; Case C-325/09, Dias, EU:C:2011:498, para 48; Case C-200/02, Zhu and Chen, EU:C:2004:639, para 26; Case C-424/10, Ziolkowski and Szeja, EU:C:2011:866, para 36; Case C-93/18, Bajratari, EU:C:2019:809, para 47. 72 Article 52(1) of the Charter.

The Charter and EU Citizenship Rights  163 the Charter, so as to not put fundamental rights obligations on a host Member State that risk nullifying the safeguard against Union citizens becoming burdens on its financial system.73 Interestingly, those same concerns for financial burdens are not relevant to the Court’s developing jurisprudence of family reunification rights under Article 20 TFEU.74 As a conclusion, to insert freedom of movement as a citizenship right in Article 45(1) of the Charter may not have much self-standing importance as the Charter’s replicas of Treaty provisions are not to materially affect their Treaty twins.75 Article 45(1) of the Charter therefore seems hampered from developing its own substantive content and function. Likewise, as there firstly has to be a substantive issue of Union law relevant to a case for the Charter to apply, Article 45(1) of the Charter would rarely be applicable to a case without the market freedoms or Articles 20–21 TFEU firstly being so. Another view is that the Charter replica of the EU citizenship right to freedom of movement actually is substantively relevant. Its presence in the Charter consolidates the personal right to free movement as a fundamental EU citizenship right, for which exceptions should be narrowly construed and interpreted.76 Advocate General Colomer in Baldinger suggested seeing something more in Article 45(1) of the Charter than the Treaty provisions on personal freedom of movement provided for: I have pointed out on a previous occasion that the creation of citizenship of the Union, with the corollary of freedom of movement for citizens throughout the territory of the Member States, represents a considerable qualitative step forward in that it separates that freedom from its functional or instrumental elements (the link with an economic activity or attainment of the internal market) and raises it to the level of a genuinely independent right inherent in the political status of the citizens of the Union. Evidence of that qualitative development lies in the fact that freedom of movement and of residence, as an independent right, has been enshrined in Article 45(1) of the Charter of Fundamental Rights of the European Union.77

From that perspective, Article 45(1) of the Charter serves to strengthen the right to move and reside freely without economic activity as an independent citizenship right, detached from economic argument.78 Along a similar vision of EU citizenship and the Charter’s rights, the outcome in Delvigne was heavily constructed on the fundamental citizenship right to vote in the European Parliament elections 73 See reflection on the tension between host Member States requiring economic self-sufficiency and on the other hand imposing social rights obligations stemming from the Charter on the host Member State, Lenaerts and Gutiérrez-Fons, ‘Epilogue on EU Citizenship: Hopes and Fears’ (n 51) 754–55. 74 Compare Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354 with Case C-93/18, B ­ ajratari, EU:C:2019:809. See Lenaerts and Gutiérrez-Fons, ‘Epilogue on EU Citizenship: Hopes and Fears’ (n 51) 769. 75 Article 51(2) of the Charter; Article 52(2) of the Charter; and Article 6(1) TEU. 76 Nic Shuibhne, ‘Integrating Union Citizenship and the Charter of Fundamental Rights’ (n 16) 209. 77 Opinion in Case C-386/02, Baldinger, EU:C:2003:671, para 25 (emphasis added). 78 de Cecco (n 69) 388.

164  EU Citizenship and the Charter in Article 39(2) of the Charter.79 In the Delvigne judgment, the Charter’s standards for when a fundamental right may be restricted were relied on to review the French national rule of disenfranchisement, precisely because this EU citizenship right was replicated in the Charter.80 The judgment shows how the mirroring of the EU citizenship rights of the Treaties in the Charter may have a tangible impact on the substantiation of EU citizenship and its attached rights. Nevertheless, the state of law persists that the Charter cannot independently apply merely because a Union citizen and a right that is protected in the Charter both feature in a case.81 To understand how the Charter is activated in legal matters that feature individual Union citizens, the jurisdictional scope of personal freedom of movement needs to be addressed.

III.  The Charter and Article 21 TFEU An established principle of free movement law is that a legal issue must come within both the personal and material scope of its provisions for Union law to be applicable.82 In the early days of EU citizenship, the Court was clear on the fact that the personal scope of that status, which in itself had the potential to bring every Member State national within the scope of Union law,83 was not enough to trigger EU jurisdiction. The Court’s stance was that EU citizenship should not have the effect of altering the material scope of Union law.84 There had to be an independent material legal issue of free movement law tied to the situation of a Union citizen to trigger the jurisdictional scope of Union law, and the relevance of EU citizenship. This approach is echoed in the Court’s interpretation of Article 51(1) of the Charter that there must be a material issue of EU law that is independent of fundamental rights concerns for the Charter to apply to a case.85 The Court has, however, often applied a generous and purposive interpretation of when free movement law is materially activated, notably by its broad understanding of when the necessary cross-border element is fulfilled. The jurisdictional scope of Union law and the status of EU citizenship has therefore proven to extend to several situations that the Member States had expected to be purely internal

79 Case C-650/13, Delvigne, EU:C:2015:648. 80 ibid, para 46. 81 Rosas, ‘When is the EU Charter of Fundamental Rights Applicable at National Level?’ (n 14) 1277. 82 See Case C-35/82, Morson and Jhanjan v Staat der Nederlanden, EU:C:1982:368; and Case C-64/96, Land Nordrhein-Westfalen v Uecker and Jacquet / Land Nordrhein-Westfalen, EU:C:1997:285. 83 D Kochenov, ‘Citizenship without Respect: The EU’s Troubled Equality Ideal’ (2011) Jean Monnet Working Paper (NYU Law School) No 08/10, 34. 84 Case C-64/96, Land Nordrhein-Westfalen v Uecker and Jacquet / Land Nordrhein-Westfalen, EU:C:1997:285, para 23. 85 Lenaerts and Gutiérrez-Fons, ‘Epilogue on EU Citizenship: Hopes and Fears’ (n 51) 772.

The Charter and Article 21 TFEU  165 situations, in turn activating the scope of application of EU fundamental rights review.86

A.  The Cross-Border Requirement Under Pressure from EU Citizenship Although other factors may be relevant,87 the primordial criterion for triggering the jurisdictional scope of EU free movement law remains that of a cross-border element. For this requirement to be fulfilled, there is typically an issue of nationality discrimination of a Union citizen in a cross-border situation,88 or a restriction of a Union citizen’s real cross-border exercise of a fundamental freedom,89 or a tangible hindrance to the possible future realisation of such an exercise.90 A crossborder element can also be found in the past tense, as a Member State measure can also amount to a restriction because of a Union citizen having exercised one of the fundamental freedoms.91 A broad understanding of the cross-border element was seen in the Schempp judgment, where free movement law was applied to a static Union citizen in relation to the home Member State based on another person’s use of freedom of movement.92 The Court found that applicant Schempp was disadvantaged under national taxation rules as a direct result of his former spouse’s exercise of freedom of movement to take up residence in another Member State. That cross-border movement meant that Schempp, under national law, could not benefit from the tax rules for deducting maintenance payments in his tax return. The Court reasoned that although Schempp had not himself exercised freedom of movement, he could rely on freedom of movement, activating the right to equal treatment under Article 18 TFEU, to object to the disadvantageous tax treatment.93 Despite this elasticity of the cross-border concept, the Court has remained adamant that an applicant who raises concerns about a Member State’s restrictions on the hypothetical use of freedom of movement is not within the material scope of Union law.94 Kremzow concerned an Austrian national, imprisoned 86 See Case C-448/98, Guimont, EU:C:2000:663; Case C-60/00, Carpenter, EU:C:2002:434; Case C-403/03, Schempp, EU:C:2005:446; and Case C-148/02, Garcia Avello, EU:C:2003:539. 87 See the reasoning why a specific social benefit came within the material scope of community law in Case C-85/96, Martínez Sala v Freistaat Bayern, EU:C:1998:217, para 28. 88 As in Case C-186/87, Cowan v Trésor public, EU:C:1989:47. 89 Case C-60/00, Carpenter, EU:C:2002:434; and Case C-200/02, Zhu and Chen, EU:C:2004:639 pushed the limits for this assessment. 90 Case C-148/02, Garcia Avello, EU:C:2003:539. 91 Case C-224/98, D’Hoop, EU:C:2002:432; Case C-291/05, Eind, EU:C:2007:771. 92 Case C-403/03, Schempp, EU:C:2005:446. 93 ibid, paras 15, 27–37. 94 Case C-92/09, Volker und Markus Schecke and Eifert, EU:C:2010:662, para 40; Case C-299/95, Kremzow v Republik Österreich, EU:C:1997:254, para 16; Case C-190/98, Graf, EU:C:2000:49, paras 24–25.

166  EU Citizenship and the Charter in Austria under national criminal law. At the national level, Kremzow had challenged the detention as an infringement of Articles  5 and 6 ECHR. Subsequently, Kremzow argued that the detention was also a restriction on the free movement rights conferred on him under the status of EU citizenship. The argument was that during the detention, Kremzow was hindered from exercising the fundamental freedoms.95 When replying to the national court, which had referred the case for a preliminary ruling, the Court rejected jurisdiction of Union law to the case. It found that the issue concerned only a hypothetical hindrance to free movement of persons. To restrict a person’s physical movement based on national criminal law was not a restriction on cross-border movement.96 As a result, an assessment of Kremzow’s detention was a purely internal matter, and should be dealt with under the domestic fundamental rights standards only.97 Clearly, the real material issue in Kremzow was the possible infringement of the fundamental right to a fair trial.98 Although this right is protected under Union law, it could not independently trigger the scope of application of EU fundamental rights review.99 A further limit to the meaning of the cross-border element was drawn in the genuine enjoyment judgment in McCarthy. The case concerned a dual Irish–British national, who had never resided outside the United Kingdom, but was claiming family reunification rights with her TCN spouse in the United Kingdom based either on free movement law or the status of EU citizenship under Article 20 TFEU.100 The Court made it clear that mere possession of dual Member State nationality did not suffice as a fulfilment of the cross-border element.101 The fact that a Union citizen holds dual Member State nationality must firstly cause an issue of real discrimination or other tangible obstacles to the exercise of freedom of movement, as in Garcia Avello, to trigger the scope of Union law.102 Neither did the Court find that the applicant in McCarthy risked deprivation of the genuine enjoyment of EU citizenship as a result of deportation of her spouse. The case did therefore not come within the scope of the genuine enjoyment doctrine, and couldn’t trigger family life protection under EU fundamental rights standards.103 As a further limit to the reach of EU fundamental rights review, when a Union citizen has crossed a border, by relying on the right to free movement of Article 21(1) TFEU, it seems that this physical movement does not automatically

95 Case C-299/95, Kremzow v Republik Österreich, EU:C:1997:254, para 13. 96 ibid, para 17. 97 ibid, paras 14–15. 98 See on this note, Rosas, ‘When is the EU Charter of Fundamental Rights Applicable at National Level?’ (n 14). 99 An ‘extraneous element’ is needed for EU fundamental rights review to apply, Groussot (n 32) 296. 100 Case C-434/09, McCarthy, EU:C:2011:277. 101 ibid, paras 49–54. 102 Case C-148/02, Garcia Avello, EU:C:2003:539, paras 27–29. 103 Case C-434/09, McCarthy, EU:C:2011:277, para 49.

The Charter and Article 21 TFEU  167 make the Charter applicable to any and all legal claims the person might make in the host Member State. The Court seems to first look at the character of the Member State measure at issue, and whether it has the effect of restricting the exercise of freedom of movement, before triggering the Charter.

B.  Restrictions on Movement and EU Fundamental Rights Review As seen in Kremzov, when the primordial issue in a case is a fundamental rights infringement, the Charter is not applicable when reviewing the case.104 However, Member State measures that result in a derogation from its obligations under the fundamental freedoms are considered acts of implementing Union law. Restrictions on a person’s exercise of economic free movement as well as to the exercise of Article  21(1) TFEU may then be reviewed under EU fundamental rights standards. This view is confirmed by the respective cases of Carpenter and Petruhhin.105 In both cases, the Court firstly established that there was a Member State restriction on a Union citizen’s exercise of freedom of movement, before entering into a review under EU fundamental rights standards.106 The Carpenter case concerned a deportation order issued by British authorities against Mrs Carpenter, a resident of Philippine nationality. Mrs Carpenter was residing in the United Kingdom with her British national spouse, who made a living providing advertising services. Some of the spouse’s economic activity had a cross-border dimension, working with clients in other Member States. For this reason, the Court found that the case came within the jurisdictional scope of the free movement of services in what is now Article 56 TFEU. It went on to find that the home Member State’s measure of deporting Mrs Carpenter would have a restrictive effect on the spouse’s exercise of this fundamental economic freedom as it would disrupt his family life at home.107 The preservation of the Union citizen’s, Mr Carpenter’s, family life was essential for the continuation of being a cross-border service provider. This triggered the application of Union law for review of the deportation order’s compatibility with the fundamental right to respect for family life. This fundamental right had to be considered in view of the restrictive effect a disruption of family life had on a Union citizen’s exercise of a market freedom. The Court concluded that the reasons for deporting Mrs Carpenter did not overtake the intrusion this would have on her spouse’s right to respect for family life.108 104 Case C-299/95, Kremzow v Republik Österreich, EU:C:1997:254. See Rosas, ‘When is the EU ­Charter of Fundamental Rights Applicable at National Level?’ (n 14) 1279–81. 105 Case C-60/00, Carpenter, EU:C:2002:434; and Case C-182/15, Petruhhin, EU:C:2016:630. 106 On the argument that restrictions on the internal market more easily seem to trigger the Charter, see Spaventa, ‘Should We “Harmonise” Fundamental Rights in the EU?’ (n 15) 1008. 107 Case C-60/00, Carpenter, EU:C:2002:434, para 39. 108 ibid, para 41 ff.

168  EU Citizenship and the Charter It was clear that the fundamental right to respect for family life would not have been protected under Union law if it had not had implications for the efficiency of free movement of services.109 In addition, it is notable that Union law in this regard did not extend to review the fundamental rights of Mrs Carpenter residing based on national law in her spouse’s home Member State. Here the TCN spouse’s fundamental right to respect for family life was not a matter for Union law.110 To tie the scope of EU fundamental rights guarantees to the condition of firstly finding a restriction on a fundamental freedom was repeated in Petruhhin, which related to the exercise of non-economic freedom of movement under Article 21 TFEU. Petruhhin concerned an Estonian national who had exercised the right to freedom of movement under Article  21 TFEU to Latvia.111 While in the host Member State, Petruhhin faced a risk of extradition to a non-Member State, Russia. This situation was due to the fact that national law only prohibited extradition of Latvian nationals to outside the Union, but did not extend this prohibition to protect non-national Union citizens or TCNs. The question referred to the Court for a preliminary ruling was whether it would be a breach of the prohibition of discrimination on grounds of nationality of Article 18 TFEU to not extend the same protection against extradition to other Union citizens.112 Furthermore, the national court asked if it, in any case, had an obligation to make a review of the consequences of such an extradition under Article 19(2) of the Charter.113 This provision states that ‘no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment’.114 In its judgment, the Court did not engage with the issue of whether Article 18 TFEU was applicable and, therefore, did not assess whether an extradition of a non-national Union citizen would be a breach of the right to equal treatment. Instead, it focused on the finding that the risk of extradition, as a direct result of having exercised freedom of movement to a host Member State, amounted to a restriction on the right to freedom of movement of Article  21 TFEU.115 The risk of extradition due to being a non-national Union citizen in a host Member State would be a deterrent to exercise freedom of movement. This way, the Court found that the Charter applied as the contested Member State 109 Iglesias Sánchez (n 29) 469. 110 For a similar rejection by the Court that EU law would protect the family life of the TCN family member of a Union citizen, see Case C-256/11, Dereci and Others, EU:C:2011:734; and Case C-40/11, Iida, EU:C:2012:691. 111 Case C-182/15, Petruhhin, EU:C:2016:630. 112 ibid, para 17. 113 ibid. 114 Article 19(2) of the Charter. 115 Case C-182/15, Petruhhin, EU:C:2016:630, para 33.

The Charter and Article 21 TFEU  169 measure was a derogation from its obligations under the fundamental freedom of Article 21 TFEU.116

C.  Separating Fundamental Rights Guarantees from Equal Treatment By perceiving the issue in Petruhhin as a restriction on movement, there was no reason to address the question of the right to equal treatment under Article  18 TFEU, and its link to the status of EU citizenship. Unlike in Wolzenburg, an earlier extradition case, there was no reason to assess whether Petruhhin qualified as a ‘genuinely integrated’ residential member of the host Member State under the norms of Directive 2004/38. In Wolzenburg, the Court found that long-term residence, in accordance with the norms of the Directive, was a suitable measurement for equal treatment rights regarding extradition procedures.117 The non-national Union citizen’s standing as a permanent resident in accordance with the Directive thus determined whether national rules applicable to nationals, with regard to extradition procedures to another Member State, should be made equally applicable to his case. The more recent case of Raugevicius revealed the heightened tension between the dual objectives of personal free movement law to, on the one hand, demand integration of the individual so as to qualify for equal treatment but, on the other, to remove undue restrictions on the exercise of a fundamental freedom.118 In Raugevicius, the Court reiterated how a demand that the Union citizen should be ‘residing permanently’ in the host Member State, in accordance with national law, was a legitimate demand for application of equal treatment.119 However, the restrictive effect that an extradition would have on the Union citizen’s exercise of freedom of movement under Article 21 TFEU also triggered the Charter’s fundamental rights standards.120 Fulfilment of the Directive’s conditions was not per se mentioned by the Court in Raugevicius. The legal distance between the mere status of EU citizenship on the one hand, and the genuine use of freedom of movement on the other, for coming within the scope of application of the Charter, was nevertheless marked by the demand of social integration as a prerequisite for equal treatment. 116 ibid. Derogations from Union law have been defined as an act of implementing Union law, which triggers the application of the Charter. Ward, ‘Remedies under the EU Charter of Fundamental Rights’ (n 15) 175. 117 Case C-123/08, Dominic Wolzenburg, EU:C:2009:616, para 72. 118 Case C-247/17, Raugevicius, EU:C:2018:898. On this duality in the case law on EU citizenship, see in general S Coutts, ‘The Shifting Geometry of Union Citizenship: A Supranational Status from ­Transnational Rights’ (2019) 21 Cambridge Yearbook of European Legal Studies 318. 119 Case C-247/17, Raugevicius, EU:C:2018:898, paras 46–48. 120 ibid, para 49.

170  EU Citizenship and the Charter In the judgment in Pisciotti, another case concerning extradition from the Union of a Union citizen – whose use of freedom of movement consisted of having transferred between flights in a host Member State – the Court neither addressed the issue of equal treatment, nor the issue of the Charter’s applicability. Instead, it asserted that the individual’s home Member State might issue a European Arrest Warrant, which should then take precedence over the extradition order outside the Union’s territory.121 The former measure would be preferable as it would have a less restrictive effect on the Union citizen’s freedom to ‘move’.122 Elegantly, the questions regarding Directive 2004/38 as a basis for equal treatment, or the applicability of the Charter, were avoided, while upholding the rationale of removing restrictions on the exercise of freedom of movement.

D.  When are the Member States Implementing EU Law? In the Court’s reasoning in Petruhhin, the fundamental status of EU citizenship and the conditions for its rights of residence and equal treatment were not problematised. The Court’s finding that extradition measures of non-national Union citizens amount to a restriction on freedom of movement could just as well have been based on Articles 45 or 56 TFEU, as on Article 21 TFEU.123 The status of EU citizenship served only as the foundational basis on which the efficient exercise of all the fundamental freedoms may be protected.124 Therefore, the classical free movement rationale that restrictions on movement should either be removed, or justified, triggered the scope of application of the Charter. The extradition measure, viewed as a restriction on freedom of movement, would therefore be incompatible with Union law if there was a risk of being subjected to the death penalty, torture, or other inhuman or degrading treatment or punishment, which the Charter safeguards against. However, Petruhhin’s standing under Directive 2004/38 – whether he fulfilled the conditions for genuine use of freedom of movement – was not made an issue, as the Court refrained from reasoning on the question of equal treatment.125 By contrast, in cases like Dano, Dereci and Iida, the Court made clear that the Charter did not apply. In these cases, the Court did not find a restriction on a Union citizen’s real or potential exercise of free movement rights, or risk of deprivation

121 Case C-191/16, Pisciotti, EU:C:2018:222. 122 ibid, para 44, and see paras 50–54. 123 Similarly as in Case C-208/09, Sayn-Wittgenstein, EU:C:2010:806, where the issue of whether Articles 21 or 56 TFEU applied were of little consequence, as the measure to not register a German surname under Austrian law was a restriction on any and all fundamental freedoms, see notably, paras 37–42. 124 On the ‘foundational’ narrative in EU citizenship case law, see N Nic Shuibhne, ‘The “Territory of the Union” in EU Citizenship Law: Charting a Route from Parallel to Integrated Narratives’ (2019) Yearbook of European Law 1, 15–25. 125 ibid, 29.

The Charter and Directive 2004/38: An Unsettled Relationship  171 of the genuine enjoyment of EU citizenship rights under Article 20 TFEU. It was of little significance to this finding that the cases nevertheless involved making an assessment of the individual’s situation under legal norms stemming from Union law.126 The Court found the material issue of these cases to fall outside the scope of application of the Charter. However, in the most recent developments regarding the genuine enjoyment doctrine, the Chavez-Vilchez and KA and Others cases have established Articles  7 and 24(2) of the Charter must be integrated in the material assessment of a Union citizen child’s dependency bond to their TCN parent for determining whether the parent may derive a right of residence in the Union from Article 20 TFEU.127 Such a development is yet to be seen regarding the residence conditions of Directive 2004/38 where there is often an astonishing absence of the Charter in the Court’s review of the applicant’s legal standing.128

IV.  The Charter and Directive 2004/38: An Unsettled Relationship What sorts of measures taken by an EU Member State constitute an implementation of EU law so as to trigger the scope of application of the Charter?129 By looking to the case law concerning the provisions in Directive 2004/38, it seems that an active restriction on an individual’s exercise of freedom of movement, based on the legislated public interest grounds of the Directive’s Articles  27–28, must respect the fundamental rights guarantees of the Charter.130 Likewise, the Charter’s protection of the right to respect for family life in its Article 7, has been evoked in cases involving defining the conditions for accompanying family members coming within the Directive’s rights.131 By contrast, an assessment of whether the individual Union citizen or TCN family members fulfil the Directive’s conditions for lawful residence, retained residence rights, or right to equal treatment, is strangely ‘beyond’ EU fundamental rights review. As a consequence of the Directive’s absorption of the concept of genuine use of freedom of movement, the individual’s non-fulfilment 126 Case C-333/13, Dano, EU:C:2014:2358, paras 85–92; Case C-256/11, Dereci and Others, EU:C:2011:734, paras 70–74; and Case C-40/11, Iida, EU:C:2012:691, paras 78–79. 127 Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354, para 70; and Case C-82/16, KA and Others, EU:C:2018:308, para 71. On the distinction between a jurisdictional and a substantive application of the genuine enjoyment-doctrine, see M van den Brink, ‘The Origins and the Potential Federalising Effects of the Substance of Rights Test’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017) 90–92. 128 See, eg, Case C-424/10, Ziolkowski and Szeja, EU:C:2011:866; Case C-67/14, Alimanovic, EU:C:2015:597; and Case C-93/18, Bajratari, EU:C:2019:809. 129 Article 51(1) of the Charter. 130 Joined Cases C-316/16 and C-424/16, B and Vomero, EU:C:2018:256; Case C-145/09, Tsakouridis, EU:C:2010:708. 131 Case C-673/16, Coman and Others, EU:C:2018:385; Case C-129/18, SM (Enfant placé sous kafala algérienne), EU:C:2019:248.

172  EU Citizenship and the Charter of said conditions might place their legal claim outside the scope of application of not only the Directive, but outside Union law and the Charter altogether. Fundamental rights review under EU law of a person’s legal standing then applies relatively to the nature of the legal claim at hand in a given case. To trigger the Charter’s protection, it seems that the issue must concern the Member State’s restriction on freedom of movement, but not the individual’s ability to make genuine use of freedom of movement so as to avoid placing a financial burden on the host Member State.

A.  Limits and Conditions in Directive 2004/38: Beyond Charter Review? When a Union citizen or TCN family member in a host Member State makes a claim for retained residence rights, permanent residence status, or equal treatment for social assistance, they will be assessed under the conditions of Directive 2004/38. Although implemented in a national legal context, these conditions have their basis in primary law provisions such as Articles  18 and 21(1) TFEU and the Court’s case law. The Preamble to the Directive pledges that its provisions respect the Charter’s rights and principles, assuming a compatibility with the Directive’s provisions and the Union’s fundamental rights standards.132 In turn, the primary law provisions of freedom of movement and equal treatment are replicated in the Charter in its Articles 45(1) and 21(2). This implies a circular relationship between the Treaties, the Charter and the Directive. Although providing the limits and conditions for the exercise of the Treaty-based personal freedoms, the Directive should simultaneously be reviewable under the same Treaty provisions as well as comply with the Charter’s standards, which it assumingly does from the onset. While this circular relationship between Directive 2004/38 and the Charter may seem unsettling,133 it has benefited the Court in its shifting endeavours to either strengthen the personal rights of freedom of movement under the status of EU citizenship, or to assert the limits to the same. Previously, the Court was known to uphold primary law provisions of freedom of movement and EU citizenship paired with the principle of proportionality in a way that downplayed the legal effect of secondary law limits and conditions.134 In the 2010s, the secondary law 132 Preamble to Directive 2004/38. 133 See doctrinal approaches presented by P Syrpis, ‘The Relationship Between Primary and Secondary Law in the EU’ (2015) 52 Common Market Law Review 461. That the Charter maintains a restrictive understanding of EU citizenship rights has been highlighted by M Poaires Maduro, ‘The Double Constitutional Life of the Charter of Fundamental Rights’ in EO Eriksen, JE Fossum and AJ Menéndez (eds), The Chartering of Europe: The European Charter of Fundamental Rights and its Constitutional Implications (Baden-Baden, Nomos, 2003) 218. 134 See discussions from 2005 to 2006 on how primary law provisions and the principle of proportionality downplayed the legal meaning and effect of secondary law, M Dougan, ‘The ­Constitutional

The Charter and Directive 2004/38: An Unsettled Relationship  173 norms of the Directive were instead applied by the Court as the lex specialis that provides the material content of their underlying primary law provisions.135 The disturbing effect of such a reading of Directive 2004/38 is that it makes it unreviewable under EU primary law.136 Bar the legislated derogations from freedom of movement on public interest grounds – such as expulsion measures – when the Directive’s economic conditions for residence and equal treatment are used against a Union citizen or family member, the Court rarely extends the scope of application of the Charter to review the measure.

B.  Sanctioned Member State Restrictions versus Individual Failures of Integration In Tsakouridis, regarding a Member State’s measure to actively withdraw a Union citizen’s residence rights and expel the person on the legislated public interest grounds, the Court reminded the host Member State of the assessment it needed to make before taking an expulsion measure under Article 28 of Directive 2004/38.137 This assessment must take account of the fundamental rights ensured under Union law, such as the right to respect for private and family life in Article 7 of the Charter.138 In Rendón Marín, concerning the expulsion of a TCN parent of Union citizen children, the children’s standing under Article 7 of the Charter and the child’s best interests in its Article 24(2) were invoked as essential considerations for the national court when determining whether the father should be expelled because of past criminal conduct. His expulsion would amount to either a restriction on a child’s enjoyment of freedom of movement under Article 21 and Directive 2004/38, or possibly lead to depriving a child of the genuine enjoyment of the status of EU citizenship, under Article 20 TFEU.139 Similarly, in K and HF where the issue was restricting residence rights of Union citizens who had been found guilty of war crimes, based on the public

Dimension to the Case Law on Union Citizenship’ (2006) 31 European Law Review 613; K Hailbronner, ‘Union Citizenship and Access to Social Benefits’ (2005) 42 Common Market Law Review 1245; and N Nic Shuibhne, ‘Derogating from the Free Movement of Persons: When Can EU Citizens Be Deported?’ (2006) 8 Cambridge Yearbook of European Legal Studies 187. 135 For more recent discussions on the lex specialis relationship between Directive 2004/38 and Articles 18 and 21 TFEU, see Syrpis (n 133). E Spaventa, ‘Earned Citizenship: Understanding Union Citizenship Through Its Scope’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017); and N Nic Shuibhne, ‘Limits Rising, Duties Ascending: The Changing Legal Shape of Union Citizenship’ (2015) 52 Common Market Law Review 889. 136 Spaventa, ‘Earned Citizenship: Understanding Union Citizenship Through Its Scope’ (n 135) 220. See in general, Syrpis (n 133). 137 Case C-145/09, Tsakouridis, EU:C:2010:708. 138 ibid, para 52. 139 Case C-165/14, Rendón Marín, EU:C:2016:675, paras 66 and 81.

174  EU Citizenship and the Charter interest grounds in Article 27(2) of the Directive.140 Such a measure of restricting residence rights should not be taken without due consideration of the fundamental right to freedom of movement under the status of EU citizenship, and the possible interference with the Union citizen’s right to respect for family life under Article 7 of the Charter. When assessing a Member State’s expulsion measures – the kind of interference with freedom of movement that is explicitly sanctioned by Directive 2004/38 – the Court consistently includes the Charter’s fundamental rights standards in the assessment. By contrast, concerning Union citizens who cannot retain their residence rights, or assert equal treatment rights, out of lack of economic status or resources, it usually rejects applicability of the Charter. In Ziolkowski and Szeja, concerning Union citizens with a long history of residence in a host Member State on a non-EU legal basis, but who failed to fulfil the economic conditions for residence under Article 7 of the Directive, the Court did not apply the Charter.141 There was no assessment of the children’s best interests under Article 24(2) of the Charter, nor any other possible fundamental rights infringement that a denial of the Szeja family’s residence rights under Union law could result in. The EU fundamental rights protection that is made available to Union citizen children under the genuine enjoyment doctrine of Article 20 TFEU, who risk having to leave the Union as a whole, is not extended by the Court to Union citizen children at risk of deportation with their parents from a host Member State under Article 21 TFEU and the Directive.142 To be strictly assessed under the norms of Directive 2004/38, made the Szeja children into ‘children of a lesser law’,143 compared with the Zambrano children. The same can be said of the Union citizen children in Bajratari. If their TCN father’s economic activity in the host Member State had not been found to be in accordance with the requirement of self-sufficiency in Article  7(1)(b) of the Directive, it seems unlikely that Articles 7 and 24(2) of the Charter would have been applied to alleviate the consequences. The question therefore, as legitimately posed by Advocate General Szpunar in his Opinion in Bajratari, is why the fundamental rights protection for children should differ between Articles 21 and 20 TFEU.144 Furthermore, the Court tends to be less concerned with the fundamental rights protection of TCN family members in EU free movement law.145

140 Joined Cases C-331/16 and C-366/16, K and HF, EU:C:2018:296. 141 Case C-424/10, Ziolkowski and Szeja, EU:C:2011:866. 142 A Łazowski, ‘Children of a Lesser Law: Comment on Ziolkowski and Szeja’ (2013) 38 European Law Review 404, 416. 143 ibid, 410. 144 Opinion in Case C-93/18, Bajratari, EU:C:2019:512, para 86. See also K Hyltén-Cavallius, ‘Mål C-93/18 Bajratari, och tolkningen av villkoret “tillräckliga tillgångar” för uppehållsrätt i direktiv 2004/38’ (2020) 2 Europarättslig Tidskrift 237. 145 Case C-60/00, Carpenter, EU:C:2002:434; see comment by Iglesias Sánchez (n 29). Case C-115/15, NA, EU:C:2016:487; Case C-218/14, Singh and Others, EU:C:2015:476; see comment by F Strumia,

The Charter and the Right to Equal Treatment  175 The Charter was not used in Singh II or NA regarding failure to fulfil the conditions for retained residence in chapter III of Directive 2004/38.146 Unlike Tsakouridis, the two latter cases did not concern a Member State measure of actively relying on a derogation ground to freedom of movement, such as public security or public policy to restrict a right of residence that would otherwise have been in accordance with the economic, territorial and temporal conditions for lawful residence under the Directive. Instead, the anticipated loss of residence rights in Singh II and NA depended on whether the respective behaviour of the Union citizens in each case was in accordance with the conditions for how residence rights are retained for TCN family members in the Directive’s Articles 12–13. Both cases concerned TCN former spouses of Union citizens who risked deportation from the host Member State and the Union as they did not retain residence security in the host Member State after the Union citizen spouse’s departure. The effect of this loss of residence rights for the TCN’s fundamental rights was, however, not problematised in light of the Charter. In NA, the separated couple had children, who were themselves Union citizens, but the Charter was not referred to as a yardstick for measuring how a deportation of the TCN parent might affect the fundamental rights of either the TCN, or the children in question. Following the demand of making genuine use of freedom of movement, in accordance with the norms of integration of Directive 2004/38, the Charter does not apply for easing the conditions for retained residence rights, nor for alleviating a situation of social exclusion of a Union citizen who fails to link his status of EU citizenship to a right of equal treatment.

V.  The Charter and the Right to Equal Treatment As discussed above in chapter five, the equal treatment claims for social benefits of Dano and Alimanovic were treated by the Court exclusively under the economic residence test of Directive 2004/38.147 Neither Article  18 TFEU, nor the Charter’s fundamental rights provisions were applied. Rather, the cases were resolved solely within the confines of secondary law, allowing the Directive’s norms to wholly determine respectively an economically inactive, and job seeking Union citizen’s equal access to social assistance in a host Member State. The clearest point that the Court made concerning the inapplicability of the Charter to such a claim of equal treatment was in Dano.

‘Divorce Immediately, or Leave. Rights of Third Country Nationals and Family Protection in the Context of EU Citizens’ Free Movement: Kuldip Singh and Others’ (2016) 53 Common Market Law Review 1373. 146 Case C-218/14, Singh and Others, EU:C:2015:476; and Case C-115/15, NA, EU:C:2016:487. 147 Case C-333/13, Dano, EU:C:2014:2358; Case C-67/14, Alimanovic, EU:C:2015:597; Case C-308/14, Commission v United Kingdom, EU:C:2016:436.

176  EU Citizenship and the Charter

A.  To Demand Integration of the Individual: Not an Act of Implementing EU Law In Dano, the core question was whether a Member State may refuse a non-national and economically inactive Union citizen a social benefit, which would be accorded to nationals in the same situation.148 The Court found that such an exclusion from equal treatment by the Member State was lawful as the condition for enjoying equal treatment under Article  24(1) of Directive 2004/38 provided that the applicant must reside in accordance with the Directive’s economic residence conditions.149 Article 18 TFEU, the primary law basis for the Directive’s Article 24(1), did not affect that finding as the Court applied the Directive’s equal treatment provision as a lex specialis. Article 24(1) thereby gave the exhaustive meaning to the ­underlying primary law provision.150 Following the Directive’s wording, applicant Dano could not enjoy a right to equal treatment as she was not residing in accordance with the Directive’s conditions for residence. To read Article 24(1) of the Directive this way led directly towards the Court’s further reasoning concerning the inapplicability of the Charter. The referring national court had asked whether the social assistance benefit should nevertheless be granted to the Union citizen based on either Articles  1 (Human Dignity) or 20 (Equality before the law) of the Charter, but the Court found that the Charter was not applicable to the material issue of the case. It held that the conditions for eligibility for the social assistance benefit in question was solely within the national competence to regulate.151 As a result, when the German legislator created the conditions for eligibility for the particular social benefit in question, it was not implementing Union law.152 To demand that the individual integrates according to the economic norms for genuine use of freedom of movement, was therefore, bizarrely, not seen as an act of implementation of Union law. Furthermore, the national provisions, differentiating between applicants on the basis of nationality and applying the lawful residence test of Directive 2004/38, were not perceived by the Court as amounting to a restriction on the use of freedom of movement. If anything, it was the opposite. To demand that the Union citizen makes genuine use of the fundamental freedoms in order to come within the scope of Union law was affirmed as lawful and legitimate. The underlying Treaty provisions of Articles 18 and 21 TFEU were removed from the assessment, making the limits and conditions of the Directive absorb the material assessment in the case. As a consequence, when the applicant in Dano failed to fulfil the Directive’s norms, 148 Case C-333/13, Dano, EU:C:2014:2358. 149 ibid, paras 68–76. 150 ibid, para 61. Syrpis (n 133) 477 f; Nic Shuibhne, ‘Limits Rising, Duties Ascending: The Changing Legal Shape of Union Citizenship’ (n 135) 908–09. 151 Case C-333/13, Dano, EU:C:2014:2358, paras 88–92. 152 ibid.

The Charter and the Right to Equal Treatment  177 her legal claim to the social assistance benefit in question was transformed into a purely internal situation in the host Member State. Only domestic standards for minimum social protection and fundamental rights review would now govern her legal claim.153 Arguably, the legal situation in Dano might, from the outset, just as well have been found to come within the scope of the Charter. After all, Directive 2004/38 applied to determine the Union citizen’s status in the host Member State, and was applied in the case. So was Regulation 883/2004, which classified the sought benefit in question as a special non-contributory cash benefit. Based only on the latter, the issue of access to the social benefit in question could have been said to come within the scope of application of the Charter by remembering the cases where the Court has equalised coming within the jurisdictional scope of Union law with coming within the scope of the Charter.154 It can also be argued that the Member State’s act of assessing whether Dano was excluded from equal treatment under the norms stemming from the Directive was an act of implementing Union law, which in itself should be in compliance with the Charter’s standards.155

B.  The Interest of Preventing Financial Burdens on the Host Member State To make genuine use of freedom of movement is to exercise freedom of movement in accordance with the objectives of the fundamental freedoms. The objectives of the non-economic free movement right of Article  21(1) TFEU have found specific expression in the norms of Directive 2004/38, where genuine use of freedom of movement is synonymous with not being a burden on the finances of the host Member State. As the Court had already found in Förster, to continuously reside in strict accordance with the Directive’s conditions for residence is a sanctioned prerequisite for making an equal treatment claim based on the exercise of non-economic freedom of movement.156 In Förster, the Court even pointed out that this integration test, based solely on durational lawful residence under the Directive, created better and more legally foreseeable rights for students.157 This reasoning was echoed in Alimanovic regarding jobseekers’ equal treatment rights for social assistance.158 153 See discussion on the domestic German standard in this regard, by I Leijten, ‘The German Right to an Existenzminimum, Human Dignity, and the Possibility of Minimum Core Socioeconomic Rights Protection’ (2015) 16 German Law Journal 23. 154 M Dougan, ‘Judicial Review of Member State Action Under the General Principles and the ­Charter: Defining the “Scope of Union Law”’ (2015) 52 Common Market Law Review 1201, 1225. 155 Verschueren (n 5) 387. 156 Case C-209/03, Bidar, EU:C:2005:169, para 57; and Case C-158/07, Förster, EU:C:2008:630, para 49. 157 Case C-158/07, Förster, EU:C:2008:630, para 57. 158 Case C-67/14, Alimanovic, EU:C:2015:597, para 61.

178  EU Citizenship and the Charter In the trilogy cases of the mid-2010s – Dano, Alimanovic and García-Nieto – the effect of treating the national law criteria for access to social assistance benefits as a legitimate prerequisite of integration, distanced the legal issue from being a restriction on freedom of movement. The fundamental freedoms can only impose an obligation on the Member States of formal equal treatment, in terms of removing obstacles to Union citizens’ equal access to a market and to a Member State. They do not impose an obligation on the host Member State to grant material equal treatment rights for individual Union citizens as the person is expected to firstly self-realise by making genuine use of the fundamental freedoms.159 Substantive equality, in the shape of redistributive measures and material support to achieve self-sufficiency – the means to self-realise as an integrated resident in the host Member State under Article 7 of Directive 2004/38 – are not available under the status of EU citizenship and non-economic free movement.160 This may be seen as appropriate insofar as it is not part of the Union’s internal market competence, but within the Member States’ national competence to regulate redistributive mechanisms within their tax and social law systems.161 Union citizens’ equal access to the same residence-based social protection as national residents enjoy, therefore, only becomes a host Member State obligation under Union law when the individuals prove that they have ‘earned’ such equal treatment rights.162 They do this by either coming within the personal statuses of the economic freedoms or by achieving permanent residence status under Article 16 of the Directive.163 The Charter does not change this rationale, which also highlights the programmatic nature of Article  34 of the Charter which, rather than being a judiciable individual right, provides a principle of how Union law will respect rights to social security, social assistance and housing, where they are available.164 This social

159 PJ Neuvonen, Unequal Citizenship and Its Limits in EU Law: We the Burden?, Modern Studies in European Law (Oxford, Hart Publishing, 2016) 90 f. 160 Case C-333/13, Dano, EU:C:2014:2358, para 76. G Davies, ‘Migrant Union Citizens and Social Assistance: Trying to Be Reasonable About Self-Sufficiency’ (2016) College of Europe Research Paper in Law 1, 14. 161 U Neergaard, ‘Europe and the Welfare State – Friends, Foes, Or … ?’ (2016) 35 Yearbook of ­European Law 341, 347–48. 162 See in general, D Kramer, ‘Earning Social Citizenship in the European Union: Free Movement and Access to Social Assistance Benefits Reconstructed’ (2016) 18 Cambridge Yearbook of European Legal Studies 270. 163 P Eleftheriadis, ‘The Content of European Citizenship’ (2014) 15 German Law Journal, Special Issue: EU Citizenship Twenty Years On 776, 786. S Jørgensen, ‘The Right to Cross-Border Education in the European Union’ (2009) 46 Common Market Law Review 1567,1578 f. 164 R White, ‘Article 34’ in S Peers et al (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014). That EU free movement law truly respects the socio-economic policies of the Member States in this regard has, however, been contested, see critique in general by G Davies, ‘The Humiliation of the State as a Constitutional Tactic’ in F Amtenbrink and PAJ van den Berg (eds), The Constitutional Integrity of the European Union (The Hague, TMC Asser Press, 2010); and specifically regarding social housing and similar policies, see Reynolds, ‘Union Citizenship: Placing Limitations on a Human-Centred Approach?’ (n 70).

The Charter and the Right to Equal Treatment  179 rights standard of the Charter may nevertheless be adjudicated via other Union legislative instruments outside free movement law. Kamberaj is an example of where Article  34 of the Charter was interpreted by the Court as forming a substantive part of the Member States’ obligations under Union law.165 Kamberaj concerned the reception of TCN asylum seekers under the Long-Term Residence Directive.166 The Court highlighted that the Member States’ obligations under Article 34 of the Charter – in itself interpreted by the Court as being a principle rather than a judiciable right – were applicable to the Member States’ treatment of TCNs under that Directive, even though the Directive’s provisions explicitly afforded a large discretion to the Member States.167 By contrast to Dano and subsequent cases, the judgment in Kamberaj concerned an issue of Member States’ obligations under Union law, and not the individual’s own ability to integrate. This obligation has to do with the special responsibility which a State has towards asylum seekers under the principle of non-refoulement.168 In the cases of non-economically active and job-seeking Union citizens, the issue was rather that of the individual’s own responsibility to make genuine use of the fundamental freedoms, and thereby integrate in accordance with their objectives. The responsibility to integrate under free movement law, so as to earn recognition as an equal residential member of the host society, was the individual Union citizen’s alone.169

C.  Genuine Use of Freedom of Movement as a Test of Jurisdiction The limits to the applicability of the Charter on Union citizens’ free movement rights appear to be relative to whether it is the Union citizen or the Member State that is responsible for the realisation of the claimed right. In Dano and Ziolkowski and Szeja, and similar cases, the norms of Directive 2004/38 allowed for exclusion from equal treatment or residence rights, and these norms, and the act of assessing the individual under them, were not reviewed under the Charter.170 By contrast, in Carpenter and Petruhhin, the Member State’s active measure resulted in a restriction on a fundamental freedom, beyond the control of the individual’s own efforts to make genuine use of the fundamental freedoms.171 165 Case C-571/10, Kamberaj, EU:C:2012:233. 166 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents. 167 Case C-571/10, Kamberaj, EU:C:2012:233, paras 80 and 92. See Lock (n 36) 1223. 168 GJ Vonk and SK Walsum, ‘Access Denied: Towards a New Approach to Social Protection for Formally Excluded Migrants’ (2013) 15 European Journal of Social Security 124, 126. 169 To integrate, is to show evidence of having the right ‘attitude’ to use freedom of movement, see Coutts, ‘The Shifting Geometry of Union Citizenship’ (n 118) 325–30. 170 Case C-333/13, Dano, EU:C:2014:2358; and Case C-424/10, Ziolkowski and Szeja, EU:C:2011:866. 171 Case C-60/00, Carpenter, EU:C:2002:434; and Case C-182/15, Petruhhin, EU:C:2016:630.

180  EU Citizenship and the Charter The restrictions were therefore to be reviewed under EU fundamental rights standards. The status of EU citizenship shows its character of being a two-tiered legal concept by filling two starkly different legal functions in these cases. In Dano, EU citizenship was a residual and poor status next to the market status for an individual Union citizen relying on free movement rights. In Petruhhin, the status of EU citizenship was the foundational status to oppose Member State measures that restrict the effectiveness of any or all the fundamental freedoms. The dividing line is not whether a case comes within the jurisdictional scope of Union law, as it arguably did in both these cases. Rather, the dividing line is whether the Member State is derogating from its obligations under free movement law, or just imposing the condition that the individual makes genuine use of a fundamental freedom in order to enjoy its residence and equal treatment rights in the host Member State. The core issues of Petruhhin, Raugevicius and Pisciotti were not about financial burdens, but rather about the area of freedom, security and justice, which may explain why the Court stayed clear of discussing equal treatment based on Directive 2004/38. Likewise, in Coman, the individual’s material fulfilment of the Directive’s conditions that amount to genuine use of freedom of movement were taken for granted, and the link to the Charter could comfortably be made based directly on Article 21(1) TFEU and the right to return.172 While it can be said that the Member States are implementing Union law within the meaning of the Charter when there is a direct link between a contested national measure and a material Union law provision,173 this link dissolves as a result of free movement law’s placing a responsibility of self-realisation on the individual. The Directive’s limits and conditions to residence security and social equal treatment are this way assumed to be legitimate and lawful, and thereby also compatible with the Charter.174 This affirms an understanding of the constitutional hierarchy of Union law provisions as accepting secondary law as lex specialis, which overtakes the material meaning of the primary law provisions that underlie it.175 A Union citizen who fails to exercise freedom of movement in strict accordance with the norms of Directive 2004/38 then falls out of the scope of Union law altogether. In support of that view of the Directive is Article 52(2) of the Charter, which provides that rights that the Charter recognises, for which provision is made in the Treaties, shall be exercised under the conditions, and within the limits defined by those Treaty provisions. This motivates why the Charter cannot extend a right to a Union citizen, which the Directive, adopted based on Article 21(1) TFEU, lawfully derogates from.176 An issue that might come within the scope of Article 51 of the 172 Case C-673/16, Coman and Others, EU:C:2018:385, paras 24–26. 173 Ward, ‘Remedies under the EU Charter of Fundamental Rights’ (n 15) 177. 174 Spaventa, ‘Earned Citizenship: Understanding Union Citizenship Through Its Scope’ (n 135) 220. 175 Syrpis (n 133) 477 f. 176 See the reflections in this aspect of the Dano judgment by A Rosas, ‘Foreword’ in P Koutrakos, N Nic Shuibhne and P Syrpis (eds), Exceptions from EU Free Movement Law: Derogation, Justification and Proportionality, Modern Studies in European Law (Oxford, Hart Publishing, 2016) v.

The Charter and Article 20 TFEU  181 Charter might nevertheless not engage Charter applicability if Article 52(2) must be considered as well.177 To this, it can be added that Article  25 TFEU safeguards against the Court or any other institutional actor creating rights or duties attached to the status of EU citizenship without observing the procedural safeguards of unanimity in the Council and the consent of the European Parliament.178 In principle, this places the Directive’s provisions beyond any review under the Charter’s standards,179 which in turn goes against Article 51(1) of the Charter, according to which the Charter is to review measures adopted by the Union legislature. Yet, there are examples, outside the free movement context, where secondary law acts and decisions have been invalidated by the Court because of their conflict with underlying primary law provisions.180 Regarding EU citizenship and equal treatment, if the Charter is inapplicable to review a case and the equivalent Treaty provisions are not applied either, this places a Union citizen outside the scope of Union law. The Union citizen, who has exercised movement to a host Member State but fails to fulfil the norms of genuine use of freedom of movement under Directive 2004/38, is then in a purely internal situation in the host Member State.181 At this tier of EU citizenship, its status has little to offer the individual as it neither brings the person’s claim within the jurisdictional scope of Union law, nor is it any longer directly attached to a right to equal treatment in Article 18 TFEU. As the law currently stands, for a legal claim to residence or equal treatment by a Union citizen that falls out of the edges of freedom of movement as defined either by Directive 2004/38, or the rationale of removing restrictions on the fundamental freedoms, lies only the option of coming within the scope of the genuine enjoyment doctrine under Article 20 TFEU.

VI.  The Charter and Article 20 TFEU The Charter’s fundamental rights standards are not applicable to a Member State measure unless it is an act of implementing Union law. Member States’ 177 Nic Shuibhne, ‘Integrating Union Citizenship and the Charter of Fundamental Rights’ (n 16) 225. 178 K Lenaerts and JA Gutiérrez-Fons, ‘The Place of the Charter in the EU Constitutional Edifice’ in S Peers, T Hervey, J Kenner and A Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014) 1574. 179 Spaventa, ‘Earned Citizenship: Understanding Union Citizenship Through Its Scope’ (n 135) 220. 180 See Case C-236/09, Association Belge des Consommateurs Test-Achats and Others, EU:C:2011:100; Case C-293/12, Digital Rights Ireland and Seitlinger and Others, EU:C:2014:238; Case C-362/14, Schrems, EU:C:2015:650. 181 Due to the application of the genuine enjoyment test in Case C-40/11, Iida, EU:C:2012:691 and Case C-256/11, Dereci and Others, EU:C:2011:734, the limits between EU fundamental rights review and national fundamental rights review were difficult to distinguish. See MJ van den Brink, ‘EU Citizenship and EU Fundamental Rights: Taking EU Citizenship Rights Seriously?’ (2012) 39 Legal Issues of Economic Integration 273, 282 f. S Adam and P Van Elsuwege, ‘Citizenship Rights and the Federal Balance between the European Union and its Member States: Comment on Dereci’ (2012) 37 European Law Review 176, 180.

182  EU Citizenship and the Charter derogations from their obligations under the fundamental freedoms are such acts of implementation.182 A measure that amounts to a restriction on a person’s exercise of freedom of movement therefore comes within the scope of the Charter’s fundamental rights standards. In addition, in Rottmann and Zambrano, the Court found a basis in Article 20 TFEU to make Union law apply at the sidelines of a free movement context when the very existence of a Union citizen’s preserved status of EU citizenship within the Union’s territory is concerned.183 This created a pathway for EU fundamental rights protection to apply in more areas of the Member States’ jurisdictions, allowing the Court to review Member State measures that would otherwise have been purely internal matters.

A.  Article 20 TFEU as a Test of EU Jurisdiction In cases like Rottmann, Tjebbes, Zambrano and KA and Others, the Court was faced with Union citizens in situations that had no cross-border element. Neither the exercise of Article 21 TFEU, nor the economic freedoms were at issue. Rottmann, a German national, was subjected to an issue confined to German law and territory, and the Zambrano family’s case was equally confined to Belgian law, concerning Belgian national children and TCN parents. The applicants in these cases could therefore not avail of the EU free movement law provisions to claim that their cases were within the scope of Union law. Nevertheless, the Court found that Union law did apply as the legal issues in each case were directly linked to the status of EU citizenship under Article 20 TFEU.184 The contested Member State measures risked having the effect of depriving the Union citizens of their genuine enjoyment of EU citizenship rights, such as the future option of ever exercising freedom of movement.185 The applicants in Rottmann and Tjebbes risked losing their national citizenship, which would mean simultaneously losing their status of EU citizenship. Although it is a national competence for the Member States to regulate the conditions for both naturalisation and denaturalisation in their nationality law,186 the Court asserted that

182 Case C-390/12, Pfleger and Others, EU:C:2014:281. AP van der Mei, ‘The Scope of Application of the EU Charter of Fundamental Rights: “ERT Implementation”’ (2015) 22 Maastricht Journal of ­European and Comparative Law 432, 437. 183 Case C-135/08, Rottmann, EU:C:2010:104; and Case C-34/09, Ruiz Zambrano, EU:C:2011:124. 184 Case C-34/09, Ruiz Zambrano, EU:C:2011:124, para 42. See Case C-135/08, Rottmann, EU:C:2010:104, para 42. 185 Case C-34/09, Ruiz Zambrano, EU:C:2011:124, para 42. See Case C-135/08, Rottmann, EU:C:2010:104, para 42. For the assertion that freedom of movement is an inherent aspect of the genuine enjoyment test, see in general the analysis put forward by S Reynolds, ‘Exploring the “Intrinsic Connection” Between Free Movement and the Genuine Enjoyment Test: Reflections on EU Citizenship After Iida’ (2013) 38 European Law Review 376. 186 H Krunke and F Schulyok, ‘National Citizenship and EU Citizenship: What Actual Competence is Left for the Member States in the Field of Citizenship?’ in T Giegerich, O Josef Gstrein and S ­Zeitzmann (eds), The EU Between ‘an Ever Closer Union’ and Inalienable Policy Domains of Member

The Charter and Article 20 TFEU  183 denaturalisation processes must nevertheless respect Union law as it might result in the person’s loss of EU citizenship.187 For the Zambrano children, the risk to their potential enjoyment of the status of EU citizenship was that they would de facto be forced to leave the territory of the EU if their TCN parents were deported out of the EU as a result of a Belgian expulsion order. Triggered by the risk of losing the effective enjoyment of the EU citizenship rights conferred under Article 20 TFEU, the protective scope of Union law extended to the situation of the individual Union citizen, without any exercise, or even any manifested intention to exercise freedom of movement. This risk of a ‘deprivation effect’, either de jure or de facto,188 is what differentiated these cases from situations which would otherwise had been purely internal matters to the Member States.189 The genuine enjoyment doctrine this way adds an alternative test of jurisdiction to the traditional cross-border element, while maintaining that Union law has limits to its scope of application.190 Restrictions on the Union citizen’s exercise of movement under either Article  21 TFEU or the market freedoms, as well as Member State measures that risk depriving a Union citizen of the enjoyment of Article 20 TFEU, will trigger the material scope of application of Union law. Both types of measures are derogations from the Member States’ Treaty obligations, and therefore the Charter’s fundamental rights standards apply. So just how far into otherwise purely internal situations does Article 20 TFEU go? Cases following Zambrano and Rottmann firstly swayed towards a minimalist approach,191 but the case law has then taken a turn towards carefully expanding the genuine enjoyment doctrine by making (some) of the Charter’s fundamental rights an intrinsic part of its material assessment.192

B.  The Legal Distance Between the Status of EU Citizenship and the Charter’s Rights The genuine enjoyment test of Zambrano, much like the assertion of the right to vote in elections to the European Parliament as a fundamental citizenship right in States, ­Schriftenreihe Des Arbeitskreises Europäische Integration eV 80 (Baden-Baden, Nomos, 2014) 129 f. 187 Case C-135/08, Rottmann, EU:C:2010:104, paras 41–45. 188 Lenaerts and Gutiérrez-Fons, ‘Epilogue on EU Citizenship: Hopes and Fears’ (n 51) 765. 189 Case C-299/95, Kremzow v Republik Österreich, EU:C:1997:254. 190 See in general, F Schulyok, ‘The Scope of Application of EU Citizenship and EU Fundamental Rights in Wholly Internal Situations’ (2012) 3 Europarättslig Tidskrift 448; and H van Eijken and S de Vries, ‘A New Route into the Promised Land? Being a European Citizen after Ruiz Zambrano’ (2011) 36 European Law Review 704. 191 van den Brink, ‘The Origins and the Potential Federalising Effects of the Substance of Rights Test’ (n 127) 86. 192 Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354, para 70; Case C-82/16, KA and Others, EU:C:2018:308, para 71.

184  EU Citizenship and the Charter Delvigne, represent newer tendencies in the Court’s case law of detaching the status of EU citizenship from the confines of free movement rights, for filling it with legal relevance and substance.193 To assert EU fundamental rights review under the Charter, however, still necessitates that a separate material issue of Union law is relevant to the case. The genuine enjoyment doctrine has therefore not made fundamental rights protection into a self-standing area of Union law jurisdiction. This was clear in cases on family reunification rights following Zambrano, such as Dereci, Iida and Ymeraga. The Dereci case concerned the issue of national Union citizens, who had never exercised freedom of movement, and whose TCN family members risked deportation from the Union.194 The Court found that only if the deportation measure would risk depriving the Union citizens of their genuine enjoyment of the substance of rights, conferred by the status of EU citizenship, would the case be within the scope of Article 20 TFEU.195 If there was such a deprivation effect, the right to respect for family life under Article 7 of the Charter would apply for the review of the deportation measure. The Court made clear that the mere fact that it would be desirable for a Union citizen to maintain family life within a particular Member State, was not sufficient to find that there was a risk to the genuine enjoyment of EU citizenship rights under Article 20 TFEU.196 Other than this guidance, it was, however, left to the national court to assess whether the deportation order would have such a deprivation effect on the Union citizen’s genuine enjoyment of EU citizenship rights. If the national court found that Union citizens were not compelled to leave the Union with their TCN family members, the case would be a purely internal matter, and the Charter would not be applicable. In that situation, the Court, however, pointed to the ECHR standards for fundamental rights protection.197 Dereci confirmed that the Charter’s fundamental rights standards do not apply for determining whether a case comes within the scope of Article 20 TFEU in the first place.198 In the following judgments in Ymeraga and Iida, the Court repeated this stance that only if an assessment finds that the act of refusing a TCN family member a residence right would restrict the genuine enjoyment of EU citizenship rights could the measure be defined as an act of implementation of Union law.199

193 On a similar point, see F Strumia, ‘Looking for Substance at the Boundaries: European Citizenship and Mutual Recognition of Belonging’ (2013) 32 Yearbook of European Law 432, 432. 194 Case C-256/11, Dereci and Others, EU:C:2011:734. 195 ibid, para 74. 196 ibid, para 68. See also Case C-434/09, McCarthy, EU:C:2011:277 in this regard. 197 Case C-256/11, Dereci and Others, EU:C:2011:734, paras 70–74. See also Case C-40/11, Iida, EU:C:2012:691. 198 Nic Shuibhne, ‘Integrating Union Citizenship and the Charter of Fundamental Rights’ (n 16) 231. 199 Case C-87/12, Ymeraga and Ymeraga-Tafarshiku, EU:C:2013:291, paras 41–42; Case C-40/11, Iida, EU:C:2012:691, paras 71 and 79. See also Case C-434/09, McCarthy, EU:C:2011:277, para 49.

The Charter and Article 20 TFEU  185 In Iida, the Court disqualified a TCN family member from being a beneficiary of Directive 2004/38. The reason was that his connection to his Union citizen former spouse and his Union citizen child had been weakened, and could not be the basis for claiming residence as an accompanying family member.200 Neither was his residence claim within the material scope of the Long-Term Residence Directive 2003/109. For that reason, the host Member State’s refusal of Iida’s residence rights was held to not be an act of implementing Union law, and the Charter did not apply.201 While the Court indeed reviewed Iida’s situation under Union law provisions, it focused on not overstepping the prohibition on extending the Charter to matters beyond EU legislative competence.202 The Charter could not apply to review the legal claim of a TCN, whose residence rights in the end were assessed to be governed by domestic standards only. Iida’s residence claim was therefore a purely internal situation. The genuine enjoyment test has, however, faced criticism for making the legal edges of the jurisdictional scope of Union law even more blurry, and largely left to the discretion of the Member States to discern.203 In addition, the case law made a significant turn as of 2017, with the judgments in Chavez-Vilchez, KA and Others and Tjebbes, in which the Court incorporated Articles 7 and 24(2) of the Charter as essential elements in the assessment of the relationship of dependency between a Union citizen and their TCN parent, which is the necessary condition for allowing the latter to derive a right to reside in the Union from their Union citizen child.

C.  Fundamental Rights Review Becoming Part of the Genuine Enjoyment Doctrine Tjebbes dealt with the issue of the Netherlands retracting Dutch nationality from individuals deemed to have lost their link with the State.204 Following the line of Rottmann, the Court asserted EU law jurisdiction based on Article 20 TFEU, as loss of Dutch nationality, for some of the individuals concerned, would result in loss of the status of EU citizenship and the rights attached to that status.205 Similarly to Rottmann, the Court did not find that such retraction of nationality was per se incompatible with EU law, even if it meant a loss of EU citizenship, insofar as a consideration of the EU law implications was part of the individual

200 Case C-40/11, Iida, EU:C:2012:691. 201 ibid, para 81. 202 Article 51(2) of the Charter. See Ward, ‘Article 51’ (n 14) 1447–48. 203 See in general, D Kochenov, ‘The Right to Have What Rights? EU Citizenship in Need of Clarification’ (2013) 19 European Law Journal 502; Adam and Van Elsuwege, ‘Citizenship Rights and the Federal Balance between the European Union and its Member States: Comment on Dereci’ (n 181). 204 Case C-221/17, Tjebbes and Others, EU:C:2019:189. 205 ibid, paras 30–32.

186  EU Citizenship and the Charter assessment made by Dutch authorities in each case of denaturalisation.206 Notably, a measure resulting in the individual’s loss of EU citizenship must be compatible with the principle of proportionality. As a new development from Rottmann, and following the reasoning in Chavez-Vilchez, the Court in Tjebbes found that, to have due regard to the principle of proportionality necessitates a consideration of the possible consequences for the individual’s right to respect for family life, of Article  7 of the Charter.207 If minors are concerned, the best interest of the child, as protected in Article 24(2) of the Charter, must also be included in the assessment. Tjebbes thereby took a leap forward to adjoining the jurisprudence based on the genuine enjoyment doctrine that stems from Rottmann and Zambrano, respectively. They are united in that Article 20 TFEU, whether an issue concerns a Union citizen being compelled to leave the territory of the Union (de facto loss of genuine enjoyment of EU citizenship rights), or concerns the loss of Member State nationality (de jure loss of genuine enjoyment of EU citizenship rights) demands that at least Article 7 the Charter, and when the case concerns children, that Article 24(2) of the Charter is made part of the individual assessment.208 However, regarding family reunification claims, if the notion of dependency is not present in the given case, the genuine enjoyment test will not apply, and neither will the Charter. The Court repeated what it had said in Dereci in its judgment in KA and Others: that the mere fact that it might be ‘desirable’ for a Union citizen to keep his family together in the territory of the Union is not sufficient for this dependency requirement to be fulfilled.209 Despite that some fundamental rights standards have made their way into the dependency assessment, Dereci and Iida would probably reach the same outcome today, out of failure to show the special relationship of dependency, and therefore, not making likely a deprivation effect.

D.  Problems with the Genuine Enjoyment Doctrine In the scholarly debate, it has been proposed that it would be more legally sophisticated to rely on the fundamental right to respect for family life of the Charter as the yardstick for determining the necessary relationship of dependency.210 This approach has now, to some degree, been adopted by the Court in the most 206 ibid, paras 43–45. 207 ibid, para 45. Compare with Case C-82/16, KA and Others, EU:C:2018:308, para 70. 208 On the special position of minors in Tjebbes, see comment by H van Eijken, ‘Tjebbes in Wonderland: On European Citizenship, Nationality and Fundamental Rights: ECJ 12 March 2019, Case C-221/17, MG Tjebbes and Others v Minister van Buitenlandse Zaken, ECLI:EU:C:2019:189’ (2019) 15 European Constitutional Law Review 714. 209 See Case C-256/11, Dereci and Others, EU:C:2011:734, para 68 compared with Case C-82/16, KA and Others, EU:C:2018:308, para 74. 210 Davies, ‘The Right to Stay at Home: A Basis for Expanding European Family Rights’ (n 57) 476; van den Brink, ‘EU Citizenship and EU Fundamental Rights: Taking EU Citizenship Rights Seriously?’ (n 181) 287 f.

The Charter and Article 20 TFEU  187 recent Article 20 TFEU cases of Chavez-Vilchez and KA and Others.211 However, this exacerbates the peculiar absence of the Charter in relation to children and their parents who are assessed strictly under the genuine use rationale of Directive 2004/38.212 As free movement law has always sought to protect the right to reside accompanied by the closest family members, it is peculiar that the right to protection of family life has not developed into being an EU citizenship right in itself.213 On the other hand, Article  6 TEU and Article  51(2) of the Charter must be respected – the Charter may not extend the scope of EU law beyond the Union’s competences.214 The Court is therefore already balancing on a tightrope when furnishing the dependency assessment with some of the Charter’s fundamental rights standards. The Court has persisted in the fact that protection of family life as the fundamental right, expressed in Article  8 ECHR and Article  7 of the Charter, presupposes either a restriction on freedom of movement,215 or a deprivation of the Union citizen’s genuine enjoyment of his rights under Article  20 TFEU.216 The Court has still not considered that a possible violation of the fundamental right to respect for family life per se activates the scope of Union law, or in itself is considered a deprivation of the genuine enjoyment of EU citizenship rights of Article 20 TFEU.217 A Union citizen’s protection of the right to respect for family life is therefore only ambiguously part of the substance of rights attached to the status of EU citizenship.218 This is one of the reasons why the current state of law has opened up a legal space where Union citizens and their family members may find themselves if their situation falls outside the edges of the right to reside under Article 21(1) TFEU and Directive 2004/38, but does not come within the scope of Article 20 TFEU.219 In the aftermath of Zambrano, the Court has made clear that it does not seek to directly ensure the fundamental rights of individual Union citizens by mere virtue

211 Case C-133/15, Chavez-Vilchez and Others, EU:C:2017:354; and Case C-82/16, KA and Others, EU:C:2018:308. 212 Case C-424/10, Ziolkowski and Szeja, EU:C:2011:866; Case C-333/13, Dano, EU:C:2014:2358; Case C-67/14, Alimanovic, EU:C:2015:597; and Case C-93/18, Bajratari, EU:C:2019:809. 213 See arguments put forward by van den Brink, ‘EU Citizenship and EU Fundamental Rights: Taking EU Citizenship Rights Seriously?’ (n 181). 214 J Snell, ‘Editorial: Do Fundamental Rights Determine the Scope of EU Law?’ (2018) 43 European Law Review 475. 215 See Case C-60/00, Carpenter, EU:C:2002:434; Case C-127/08, Metock and Others, EU:C:2008:449. 216 Case C-434/09, McCarthy, EU:C:2011:277; Case C-256/11, Dereci and Others, EU:C:2011:734; Case C-40/11, Iida, EU:C:2012:691. 217 Case C-256/11, Dereci and Others, EU:C:2011:734, para 74. For a constitutional defence of the Court’s approach in this regard, see Lenaerts and Gutiérrez-Fons, ‘The Place of the Charter in the EU Constitutional Edifice’ (n 178) 1574; and discussion on Article 25 TFEU. 218 Opinion in C-256/11, Dereci and Others, EU:C:2011:626, paras 37–40. Snell (n 214). 219 H van Eijken and P Phoa, ‘The Scope of Article  20 TFEU Clarified in Chavez-Vilchez: Are the Fundamental Rights of Minor EU Citizens Coming of Age?’ (2018) 43 European Law Review 949, 967–69.

188  EU Citizenship and the Charter of the status of EU citizenship.220 Any Member State measure that merely affects the legal situation of a Union citizen is not enough to trigger Article 20 TFEU,221 but it remains difficult to determine when a Member State measure completely deprives a Union citizen of the enjoyment of core EU citizenship rights. The genuine enjoyment situation may be difficult to distinguish from both a purely internal situation and a situation where Article  21 TFEU or Directive 2004/38 should apply.222 To leave the assessment of whether there is a risk of deprivation of the genuine enjoyment of EU citizenship rights to the national courts, as in Dereci, allows the national legal context to determine both the content and the scope of application of EU citizenship rights.223 Furthermore, it is not entirely clear whether the measurement of the risk should be a total deprivation of the enjoyment of EU citizenship rights in law, or a total deprivation in fact.224 In its judgment in Rendón Marín, the Court leaned towards applying a de facto assessment.225 It held that the referring national court should consider whether the TCN parent of a dependent Polish national child could, in practice, move with the child from Spain to Poland.226 The national court should consider whether it would be possible, in view of their lack of social, linguistic and family ties, that the TCN parent could give the child a livelihood in Poland to ensure the child’s genuine enjoyment of EU citizenship rights.227 Otherwise, the host Member State of Spain could be obligated to allow residence for the TCN parent and the Polish child in Spain based on Article 20 TFEU.228 It made a similar reasoning in NA, but found that Article 20 TFEU did not apply as Regulation 1612/68 could provide a basis for continued residence security.229 These two judgments demonstrated that Article 20 TFEU may be available as a ‘last resort’ on which to also base a residence right in a host Member State. It applies if Article 21 TFEU or secondary legislation cannot provide residence rights for the TCN family member and, in practice, it is impossible for the TCN family member to live in the Union citizen’s home Member State, but the Union citizen would still not be able to stay within the Union without the support of the TCN. In Rendón Marín, the Court pointed out that in the referring court’s assessment, they

220 Case C-434/09, McCarthy, EU:C:2011:277; Case C-256/11, Dereci and Others, EU:C:2011:734; Case C-40/11, Iida, EU:C:2012:691. 221 Iglesias Sánchez (n 29) 478. 222 Adam and Van Elsuwege, ‘Citizenship Rights and the Federal Balance between the European Union and its Member States: Comment on Dereci’ (n 181) 185. 223 Case C-256/11, Dereci and Others, EU:C:2011:734, paras 72–74. Kochenov, ‘The Right to Have What Rights? EU Citizenship in Need of Clarification’ (n 203) 512 f. 224 Nic Shuibhne, ‘Integrating Union Citizenship and the Charter of Fundamental Rights’ (n 16) 22. 225 Case C-165/14, Rendón Marín, EU:C:2016:675. 226 ibid, para 79. 227 ibid. 228 ibid, paras 80–87. 229 Case C-115/15, NA, EU:C:2016:487, paras 70–74. See also paras 62–68.

The Charter and Article 20 TFEU  189 should consider whether the interest of deporting the TCN parent on grounds of public security in Article 27 of Directive 2004/38, outweighed the Union citizen child’s fundamental rights: notably, the child’s right to respect for family life of Article  7 of the Charter, in addition to the child’s best interests as protected in Article 24(2) of the Charter.230 These Charter rights were applicable as the deportation measure would likely result in the Union citizen child’s deprivation of their genuine enjoyment of EU citizenship rights. The same reasoning applied in the CS judgment, where the expulsion of a TCN caregiver on grounds of a criminal conviction was likely to be in conflict with the child’s right to stay within the Union under Article 20 TFEU.231 The elusive edges of the jurisdictional scope of the genuine enjoyment doctrine may make the issue of reverse discrimination in the area of fundamental rights protection even more pronounced. Some Union citizens will enjoy protection of their family life with TCN family members, even without exercising freedom of movement, or when in a free movement context where Article 20 TFEU may exceptionally be applicable.232 The distinction between the Union citizens who may rely on Article  20 TFEU, and their fellow static or moving Union citizens whose situations do not qualify under the genuine enjoyment test, appears legally uncertain, even arbitrary. The applicability of Article  20 TFEU, and thereby the Charter, appears to pivot solely on how dependent the Union citizen is on the TCN family member in order to live somewhere within the Union.233 As much as the status of EU citizenship has been criticised for not being able to assert more than formal equality between Union citizens, and not substantive equality,234 the genuine enjoyment doctrine can be criticised for failing to accomplish a foreseeable applicability of EU fundamental rights protection for its bearers, making the Charter’s standards as relative and circumstantial to the nature of the legal claim at hand, as it does for claims related to the Directive 2004/38.235 Therefore, it remains unclear how the Charter applies to an individual in a factual free movement situation, who makes a legal claim that is preconditioned by the person’s own efforts to make genuine use of freedom of movement in a host Member State. If an individual fails to fulfil the conditions for residence and equal treatment rights of Directive 2004/38, there is a legal space to overcome before they can relate their legal claim to the fundamental rights standards of the Charter.

230 Case C-165/14, Rendón Marín, EU:C:2016:675, paras 66 and 81. 231 For a similar reasoning, see Case C-304/14, CS, EU:C:2016:674. 232 See in general Adam and Van Elsuwege, ‘EU Citizenship and the European Federal Challenge through the Prism of Family Reunification’ (n 50) notably 463. See also van den Brink, ‘EU Citizenship and EU Fundamental Rights: Taking EU Citizenship Rights Seriously?’ (n 181) 277. 233 Davies, ‘The Right to Stay at Home: A Basis for Expanding European Family Rights’ (n 57) 475. 234 Neuvonen (n 159) 82 f; Eleftheriadis (n 163) 784. 235 Iglesias Sánchez (n 29) 470; Adam and Van Elsuwege, ‘EU Citizenship and the European Federal Challenge through the Prism of Family Reunification’ (n 50) 463.

190  EU Citizenship and the Charter The case of Bajratari illustrates the space of uncertainty between falling outside the edges of the Directive, but not reaching within the scope of the genuine enjoyment doctrine. In the coming years, the Court will have to clarify if Articles 7 and 24(2) of the Charter should apply to the legal assessment of Union citizen children under Directive 2004/38, in a situation where they and their TCN family members risk becoming an unreasonable economic burden on a host Member State. If the alternative to move to the children’s home Member State is not feasible – thus leaving them with the only option of leaving the territory of the European Union as a whole – the pivotal dependency test for application of Article 20 TFEU will not be legally certain as the sole path to activation of the Charter.

VII. Conclusion To be a Union citizen and make some sort of legal claim on or appeal to the host Member State is not sufficient to activate the Charter. Without an independent material issue of Union law relevant to a case, there is no availability of the Charter’s fundamental rights standards. The case is then a purely internal situation to be solved within the Member State’s domestic system for fundamental rights protection. For this reason, a non-national Union citizen in a factual crossborder situation in a host Member State may find that his legal claim is a purely internal situation. Regarding claims of free movement rights conditioned in Directive 2004/38, these purely internal situations are generated by a particular understanding of the hierarchical relationship between secondary law norms and their underlying Treaty provisions and the Charter. Claims of continued residence security for a Union citizen or a TCN family member, or claims that involve social inclusion as an equal residential member of the host society, are determined by the wording of the Directive as a lex specialis, taking over the relevance of underlying primary law provisions. A Union citizen’s failure to fulfil the conditions for genuine use of freedom of movement is then not alleviated by a reliance on the Charter’s fundamental rights standards. This makes Union citizens and their TCN family members in a host Member State vulnerable to whether their legal claim can be related to the Directive, or framed as a Member State restriction on freedom of movement. In this legal space of uncertain residence rights and unequal enjoyment of minimum social protection, the Union citizen and TCN family members can only rely on the purely domestic system for fundamental rights protection, for residence security and access to solidarity systems. For the EU citizenship rights replicated in the Charter, the status of EU citizenship does not carry the individual’s claim of residence and equal treatment in a host Member State any further than the limits of Directive 2004/38 allow for. Generally, it is the claim that is triggered only by a primary law provision,

Conclusion  191 whether it concerns loss of the voting right to the European Parliament elections under Article 14(3) TEU, Member State restrictions on movement under one of the fundamental freedoms, or the deprivation effect under Article 20 TFEU that triggers a Charter review. As the law currently stands, for claims that rest on the individual’s ability to fulfil the conditions for genuine use of freedom of movement, the Directive not only absorbs the material content of Treaty provisions on the free movement rights of EU citizenship, but also defines the limits to the jurisdictional scope of Union law.

8 Conclusion The ideal once put forward by Van der Mei: ‘When taken seriously, Union ­citizenship ought to be developed in such a way that both the “rich” and the “poor” can enjoy the rights that come with it’,1 seems further removed from the status of EU citizenship today than ever. Over the last decade, the limits to and conditions for the exercise of residence and equal treatment rights in Directive 2004/38, have become the sole prerequisites for their enjoyment; dissolving the previously strong primary law-levelled link between the status of EU citizenship and its personal free movement rights. The result is that an individual’s failure to fulfil the Directive’s conditions, which aim to avoid creating financial burdens on a host Member State, will not be alleviated by a reliance on the fundamental rights standards of the EU Charter of Fundamental Rights (the Charter). The legal claim is pushed out of the scope of Union law altogether, and into a purely internal situation in the host Member State. This creates a constitutional relationship between the Directive, Articles 18 and 21 of the Treaty on the Functioning of the European Union (TFEU) and the Charter, where the legal norms that limit and condition the full enjoyment of personal free movement rights are placed beyond review of both their underlying primary law provision and EU fundamental rights standards. Only if the Union citizen’s legal claim can instead be related to a Member State restriction on the efficiency of freedom of movement, or a deprivation of rights under the status of EU citizenship at the primary law level, will the legal situation be brought within the scope of Union law. The Charter applies to review such measures, as they are considered derogations from the Member States’ obligations under the Treaties, and thereby acts of implementation of Union law. There is a worrying inconsistency in this legal development, since legal claims that may appear quite similar – all essentially engaging free movement rights and the status of EU citizenship – are treated starkly differently in relation to Charter applicability. Ensuing is a space of legal uncertainty as to the position under Union law of the person who fails the conditions in Directive 2004/38, but whose legal claim cannot be related to the primary law provisions of freedom of movement, voting rights at the European level, or the protection of the status of EU citizenship under Article 20 TFEU. 1 AP van der Mei, Free Movement of Persons within the European Community: Cross-Border Access to Public Benefits (Oxford, Hart Publishing, 2003) 220.

The Legal Edges of Personal Free Movement Rights  193

I.  The Legal Edges of Personal Free Movement Rights Residence rights and equal social inclusion in a host Member State are available to the Union citizen, insofar as the person can prove the genuine use of freedom of movement in a host Member State. From having had a narrow acceptance of what may constitute abuse of free movement rights, the Court of Justice of the European Union (the Court), in its case law, has progressively gone in the opposite direction, giving the norms for what is genuine use of personal freedom of movement an ever-narrower meaning. The genuine use of freedom of movement has come to be wholly defined by the worded limits and conditions of Directive 2004/38. To demand integration in accordance with the norms of Directive 2004/38 applies to the free movement claims made by a Union citizen in the temporal space of having entered and taken up first residence in a host Member State, up until the Member State’s recognition of the person as a permanent resident. In this light, the status of EU citizenship is a poor personal status for the individual to rely on, and might push the person out of Directive 2004/38. Until the individual has proved capable of self-realisation in accordance with the Directive, the status of EU citizenship is a blank slate of little legal consequence for the individual to rely on in their relationship to the host Member State. The status of EU citizenship, or the fundamental rights standards of the Charter, do not emerge here as a primary law basis to relieve an individual’s disqualification under the norms of the Directive. However, to demand that the Union citizen proves continuous fulfilment of the norms of the Directive, before enjoying rights, fits uncomfortably with the legitimacy of the political rights of EU citizenship, making equal political participation dependent on an individual’s stable economic agency and resourcefulness. Although mere factual residence may be enough to assert political free movement rights, the Union citizen and family members are in other respects placed in a legal space where Union law holds little legal consequence, and only the host Member State’s domestic standards of residence security, minimum social protection and fundamental rights apply. The original considerations of protecting the person who is in a free movement context, which explained the generous residence, equal treatment and family reunification rights of the cross-border worker status, has been replaced by the interest of avoiding potential financial burdens on the Member States. It is uncertain what equal treatment rights may be claimed for the individual who is in a factual cross-border situation, but falling outside the norms of genuine use of freedom of movement according to Directive 2004/38. If a Member State’s denial of equal treatment can instead be framed as a restriction, directly related to Article 21 TFEU at the primary law level, the case might take a different turn entirely. The legal forcefulness of the status of EU citizenship is therefore better found in legal claims that follow the economic freedoms rationale of ensuring the efficiency of freedom of movement.

194  Conclusion

A.  The Incentive to Stay, Integrate and Naturalise The exercise of freedom of movement, for whatever purpose, is protected at the primary law level, where it assumes a character of being foundational to any and all of the fundamental freedoms. Union citizens’ right to exit, travel, relocate and enter a host Member State of choice to seek opportunities with economic, educational, or personal goals is strongly protected in EU citizenship law by the rationale of removing restrictions on free movement. Yet, for those who have the wish to stay in a host Member State and make it their new residential home, once they have entered the host Member State, EU citizenship is reduced to a blank slate. Only if the person achieves permanent residence status, does the status of EU citizenship appear again as the sole necessary basis for being a recognised residential member of the host Member State, and fully included in their national solidarity circles regardless of economic agency or self-sufficiency.2 By becoming a permanent resident, the categorisation of the economic statuses and their respective conditions in Article 7 of Directive 2004/38 wash away. Economically active and non-active citizens alike will be ensured the same treatment once they achieve this highest form of integration that the Directive provides. Permanent residence status is only superseded by naturalisation itself as the most genuine sign of integration.3 Only naturalisation will remove the risk of retroactively disqualifying residence security under the public interest grounds based on Articles 27–28 of the Directive. Nationality is also the only status that can ensure full equal political rights in a Member State, as free movement law does not alleviate the effects of disenfranchisement and non-enfranchisement at the national political level. Furthermore, the nationality bond has a special protection in free movement law under the genuine enjoyment doctrine, meaning that the nationality bond formed by naturalisation will also ensure that the ultimate responsibility for the person’s access to their status of EU citizenship lies with the Member State of nationality. This way, multiple mobility within the EU is not incentivised, as a Union citizen will then not achieve permanent residence status anywhere, while remaining dependent on having genuine links to the home Member State. It is then precarious to move more than once, seeking work opportunities in various host Member States, as the person might find themselves close to the edges of freedom of movement each time they do so. Free movement law does not provide a secure legal framework for cross-border jobseekers who are seeking opportunities, for shortterm workers, or pensioners or otherwise non-economically active persons with low incomes.

2 C Barnard, ‘EU Citizenship and the Principle of Solidarity’ in M Dougan and E Spaventa (eds) Welfare and EU Law (Oxford, Hart Publishing, 2005)174. 3 Compare with Advocate General Bot’s Opinion in Case C-165/16, Lounes, EU:C:2017:407.

The Legal Edges of Personal Free Movement Rights  195 By placing ever more individuals outside the narrowing norm of genuine use of freedom of movement, free movement law creates a growing space where Union law does not apply to the legal standing of Union citizens and their family members. To limit and condition the access to free movement rights under the status of EU citizenship is thereby also to limit the jurisdictional scope of application of Union law on the situation of the individual Union citizen in a host Member State.4

B.  A Purely Internal Situation in a Host Member State The status of EU citizenship removes obstacles to the Union citizen’s movement to a host Member State, but then evaporates as a potent legal status to rely on once the person has crossed the border into the host Member State. Free movement law does not recognise rights of residence security and equal treatment for a Union citizen based only on factual residence and interpersonal links to a host Member State. There is therefore a legal space between the exercise of movement to a new host Member State, and the achievement of recognised rights of residence and equal social inclusion. This space can be described as its own kind of purely internal situation. The mere presence of Union citizens and their family members in a host Member State, without continuously qualifying under the norms of the Directive, is governed solely by national law for alleviating any effects of social destitution or to protect the right to respect for family life. Rather than being ‘humiliated’ by the status of EU citizenship, the Member States are currently left with the issue of solving at the domestic level how to treat Union citizens who fail the conditions of the Directive, and are thus out of the jurisdictional scope of Union law, while being in their territory. To allow this space to be a purely internal matter to the host Member State will make the exercise of freedom of movement precarious for anyone who is not firmly exercising movement within the economic freedoms, or otherwise has stable socio-economic circumstances. As any person’s employment or financial circumstances, and family relationships may change while being in a free movement context, the effects of losing the cross-border worker status or ceasing a family relationship of dependency, may affect many mobile Union citizens and their family members. In addition, the particular vulnerability of the thirdcountry national (TCN) family member is seen in how their free movement rights derive from the agency and behaviour of a Union citizen under the norms of the Directive, or on the dependency of a Union citizen on the TCN under the genuine enjoyment doctrine.

4 Compare with analysis by F Strumia, ‘Looking for Substance at the Boundaries: European Citizenship and Mutual Recognition of Belonging’ (2013) 32 Yearbook of European Law 432, 458.

196  Conclusion

II.  EU Citizenship: The Legal Space Between Status and Rights While unable to overcome nationality as a primordial criterion for full equal treatment in a host Member State, the status of EU citizenship subsists. Its constitutional place in Union law remains strong by its character as a foundational status to remove restrictions on personal freedom of movement or to protect against the deprivation of the genuine enjoyment of EU citizenship under Article 20 TFEU. As such, EU citizenship promises the person formal equal access to the possibilities of personal and economic betterment through the exercise of the fundamental freedoms, as well as protection of the right to vote in elections to the European Parliament as a fundamental citizenship right. However, in a factual free movement situation, EU citizenship alone is a poor status to rely on. The legally substantive meaning and effect of EU citizenship is currently placed elsewhere in Union law, for legal claims placed firmly beyond the edges of freedom of movement. EU citizenship has more and more assumed the character of being a twotiered status. It variably means something different for the individual, depending on whether a legal claim refers to an obstacle to either the effet utile of freedom of movement, or of the status of EU citizenship itself in Article  20 TFEU, or whether it refers to the individual’s own efforts to integrate in accordance with Directive 2004/38. The interplay between these divergent approaches results in the ambivalent, two-tiered status of EU citizenship: affirming a distance between the conditioned enjoyment of free movement rights and the protective status of EU citizenship. At the first tier, EU citizenship has a conceptually important legal function in primary law as a foundational status: the basis for the right to pursue any of the personal fundamental freedoms. A Union citizen’s exercise of freedom of movement, as well as the potential enjoyment of the rights of Article 20 TFEU are thereby protected by the classical efficiency argument of internal market law. At the second tier, concerning the individual in a free movement situation in a host Member State, the status of EU citizenship has undergone a metamorphosis. From its former character in the Court’s jurisprudence of being destined to function as the fundamental status of the person in a free movement situation, it now functions as a residual status, dissolving its primary law-levelled link to residence and equal treatment. EU citizenship, as a status for the individual in a factual cross-border movement situation, thereby has no certain rights tied directly to it. The space between the individual and the scope of Union law widens when the gap between the legal standing of the economically active and inactive person grows, as well as by the currently open-ended understanding of what constitutes social assistance within the meaning of Directive 2004/38. For EU citizenship as a status to rely on for the individual’s equal political rights at the municipal and European level in a host Member State, the allocation of the

Perspectives for Future Developments  197 responsibility for their realisation is less clear. The rationale of removing restrictions on free movement does not alleviate the national disenfranchisement and non-enfranchisement that may be a direct side effect of the individual’s exercise of freedom of movement. Nor is it clear how the conditions in Directive 2004/38 relate to the premises for enjoying equal treatment for candidacy and voting under the Voting Directives. However, when a home Member State limits the individual’s enjoyment of the right to vote in elections to the European Parliament, as found in Article 14(3) of the Treaty on European Union (TEU), and ‘fundamentalised’ by its twin replica in the Charter, the home Member State must justify such a limitation in accordance with the Charter’s standards.

III.  Perspectives for Future Developments The last decade of legal development has seen a heightened tension between directly tying personal free movement rights to the status of EU citizenship, and expanding the distance between rights and status through derogations, limits and preconditions to their enjoyment. The great eastern enlargement of the EU in 2004, and the global financial crisis of 2008 were followed by a decade marked by a euro crisis, immigration crisis, as well as the looming threat and subsequent reality of Brexit. While all these factors are outside this book’s scope of analysis, they may hold contextual explanations to what spurred on the legal development of dissolving the link between residence, equal treatment and EU citizenship, and the unfortunate legal consequences it has had for EU free movement of persons law. The gradual dissolving of the link between EU citizenship and the right to equal treatment, has repercussions for more issues than that of an individual’s access to social assistance. Since equal treatment via Directive 2004/38 depends on residence rights based only on that Directive, both the enjoyment of residence and equal treatment rights have been absorbed by these provisions of secondary law, placing legal claims of free movement rights that do not fulfil the Directive’s strict conditions beyond Charter review, even outside the scope of Union law. This makes Union citizens and TCN family members, whose residence rights in a host Member State cannot be based on the Directive, vulnerable, as they are placed in a legal space of uncertain applicability of the status of EU citizenship and its rights at the primary law level. Ensuing is a special kind of purely internal situation of Union citizens and their family members in factual cross-border situations in a host Member State, whose legal claims cannot be reviewed under the primary law provisions of free movement and the Charter’s fundamental rights standards. At the opposite end of this expanding space between EU citizenship as a personal status and the enjoyment of its free movement rights, is the genuine enjoyment doctrine developed under Article 20 TFEU. There is a legitimate and legally coherent logic to protecting a Union citizen’s right to be enabled to stay

198  Conclusion within the territory of the Union, so as to not force them to be deprived of the potential ­enjoyments of EU citizenship rights. The genuine enjoyment doctrine can be applauded for having developed such a legal protection. Nevertheless, this doctrine, together with the internal market rationale of removing Member State restrictions on both economic and non-economic freedom of movement, marks the distance that a Union citizen must overcome after falling over the edges of personal free movement rights as conditioned in Directive 2004/38. The most worrying consequence of being in the space between the two tiers of EU citizenship is the legally uncertain application of the Charter’s fundamental rights standards. Perhaps it was inevitable that the fundamental status of EU citizenship needed to be sacrificed in order to ensure a free movement of persons regime that Member States can accept as legitimate. This however raises the issue of whether no EU citizenship at all in free movement law would be preferable to a two-tiered status of EU citizenship, which generates legal vacuums for individuals who fall outside Directive 2004/38, and where the nationality link between the individual and a Member State appears to always take precedence.5 The legal development of EU citizenship has led to a state of law where EU citizenship is a poor legal status for the person when claiming free movement rights. The status of EU citizenship, with its innate potential of erasing nationality as a criterion for both access to a host Member State and for residential social inclusion, has had the opposite effect. It incentivises the exercise of movement to be directly followed by a continuous period of being static in a single Member State in strict accordance with the norms of Directive 2004/38 until permanent residence or naturalisation is achieved. The conditions for residence security and equal social inclusion, as well as the effects of disenfranchisement from a national electorate, all amount to a retention of nationality as the supreme form of belonging between an individual and a Member State in the EU. In the coming decade, which is the fourth one for the status of EU citizenship as a primary law concept, the space between, on the one hand residence and equal treatment claims under Directive 2004/38 and, on the other, the efficiency rationale that protects EU citizenship rights at the primary level, will have to be overcome. Closing this gap is necessary to ensure a legally certain status of EU citizenship, and foreseeable legal outcomes for Union citizens and their TCN family members, when making claims to free movement rights in factual crossborder situations, and for an even protection of fundamental rights under the EU Charter.

5 Compare with E Spaventa, ‘Earned Citizenship: Understanding Union Citizenship Through Its Scope’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017) 206.

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INDEX Court of Justice equal treatment for economically active or resourceful, 17–18 EU citizenship, advancement of status, 16–17 forced solidarity obligations, unwarranted development, 16 State humiliation, whether causing, 17 two-tiered concept, development, 1, 21 Directive 2004/38 commencement, 27 entry, right of see Right to enter host Member State equal treatment, and, 107 EU Charter and see under EU Charter of Fundamental Rights exit, right to see Right to exit home Member State fears inherent on, 28 generally, 27–8 implementation, 27 inactive citizen and Article 24(1)— assessment of integrational links, termination, 115 burden on State, whether, 115 case law, 114–18 economic residence conditions, failure to fulfil, 116 extradition, protection against, 117 failure to integrate, 115, 117 generally, 114–18 genuine jobseeker, 117 genuine use of freedom of movement, no signs of, 116, 117–18 horizontal not economic integration, 117 lawful residence test, 116 lex specialis nature of Article, 115 non-national citizens, use of personal data, 116–17 self-sufficient citizen, 116 social assistance benefit see under Social assistance (inactive citizen, claim by) solidarity obligation, termination, 115

integration, Article 7 as test of— conditions, need to fulfil, 126 equal treatment, right to, 111 expulsion measure for economic reasons see under Expulsion generally, 40–3, 110–11 licence to discriminate, 122 legal edges of equal treatment— economic requirements, need to fulfil, 118 generally, 114 inactive citizen see inactive citizen and Article 24(1) above non-economically active person, restriction on rights, 114 social assistance, right to, 114 limits to movement, setting, 28 link between citizenship and equal treatment, dissolution, 107–10 persons benefitting from, 29–30 preamble, 107 purpose, 28–9, 107 residence— in accordance with Directive, 39–40 permanent see Permanent residence security, increasing, 37–8 TFEU Article 18, legal space between Directive and— generally, 120–1 purely internal situations, new type, 124–5 Regulation 883/2004, rationale of Directive transposed to, 123–4 social exclusion, right to reside in, 121–2, 126 transnational restrictions in, 28 Discrimination see under Equal treatment Equal treatment abusive claim, factors rebutting, 95 caregiver, 66 change of residence, preservation of link to national job market, 63 child of worker, 66 Court’s approach, whether humiliating State, 17 cross-border jobseeker excluded from, 40

212  Index discrimination— justifiable, 83 legislation to prevent, 83 overt and covert, removal, 83 reverse, 19–20 third-country national, against, 13 see also non-discrimination on nationality grounds below durational lawful residence as integration, 108–10 economically active or resourceful, for, 17–18, 82 edges to, establishing— durational lawful residence as integration, 108–10 generally, 96 genuine links, need for see genuine links, need for below individual’s responsibility for integration, 96 integration, importance see sufficient integration, need for below legal residence, and see residence as basis for below link between citizenship and equal treatment, dissolution, 107–10 non-economically active citizens, 110 sufficient integration, need for see sufficient integration, need for below see also Directive 2004/38 (legal edges of equal treatment) EU citizenship, dissolution of link with, 197 exclusion from, where justifiable, 39, 91 factual cross-border situation, individual in, 193 free movement— abuse, loss of rights on, 81, 91 flowing from, 10, 80–1 genuine need for see genuine use of freedom of movement below fundamental right, as, 83–6 generally, 10, 80–1, 125–6 genuine links, need for— circular citizens, protection, 103 home state, on return to, 102–3 jobseekers, and, 101–3 nationality bond, strengthening, 103–4 non-national, exclusion, 104 returning citizen, 102, 103 student, 102, 103–4 unemployment allowance, denial, 102 welfare nationalism, 104–5

see also sufficient integration, need for below genuine use of freedom of movement— abuse, prohibition, 91–3, 96 artificial worker status, 94, 95 durational lawful residence, 95 factors testifying to, 95 financial burdens, avoidance, 91 generally, 90–1 integrational factors, 95–6 labour mobility, importance, 93 prerequisites for parties’ inclusion, 95 self-serving purpose, and, 92 student benefits, to obtain, 94–5 subjective motivation, 93 triggering equal treatment, 91 worker status, need for, 93–6 inactive citizen see under Directive 2004/38 inherent component of citizenship, 80 integration— factors, disregarding, 125 prerequisite, as, 82, 96, 169 residence as demonstration of, 126 sole test see Directive 2004/38 (integration, Article 7 as test of) sufficient see sufficient integration, need for below see also Integration lawful free movement, need for, 80–1 legal trend going against, 126 legislation, 83 meaning, 80 nationality as primordial criterion for, 196 non-economically active Member State nationals, 10, 11, 84 non-discrimination on nationality grounds— access to market approach, 81, 82 generally, 10, 81, 84 restrictions approach, 81, 82 temporary visitors, 86 tourist, 84–6 prima facie right, as, 16 promise and threat, debating, 14–18 residence as basis for— early case law, in, 96, 97–101 generally, 97 integration, as demonstration of, 126 lawful meaning integrated, 97–8 legal residence, 97–101 social exclusion, right to reside in, 121–2 solidarity, obligation, 98–101 student, 98–101

Index  213 retired persons, restrictions on movement, 126 reverse discrimination, 19–20 right to— economically active citizens, 17–18, 82 generally, 81–2 TFEU Article 18(1), under, 81 social assistance— denied, where, 89 derogations from rule, 88–9 eligibility requirements, need to justify etc, 88 gateway to, 86–9 lawful limits, 88 legislation, 87–8 limits on rights, 122 means of ensuring, 87 nationality, as vital link, 122 non-exportability of social benefit, 88 student, 98–101 social exclusion, right to reside in, 121–2 students— generally, 84 nationality, strengthening of bond, 103–4 repayment of grant, 108 social assistance allowance, 98–101 study maintenance grant, 94–5, 103–4, 105–7, 108, 110 unemployment allowance, denial, 102 sufficient integration, need for— case law, 105–7 generally, 101, 105 host State’s right to demand, 106 importance, 96 personal and horizontal link to host society, 106 student, 105–7 temporary visitors, 86 third-country nationals, inherent discrimination against, 16 tourist, 84–6 transnational equality or humiliation, citizenship as vehicle for, 15–17 visitor and resident, differentiating between, 89–90 worker status— artificial, 94 importance of retaining, 118, 120, 125 need for, 93–6 objective pursuit of economic activity, 93 EU Charter of Fundamental Rights activation, matters insufficient for, 190 binding primary law, as, 156

catalogue of rights in, 156–7 Directive 2004/38, and—, 171 child of TCN parent, protection for, 174, 175 economic conditions, use, 173 expulsion of EU citizen, 173 expulsion of TCN parent, 173, 175 family life, respect for, 171 generally, 171–2, 192 genuine use of free movement, implications, 171 issue triggering Charter’s protection, 172 jurisdictional scope of EU law, defining limits, 191 limits and conditions in, whether beyond Charter review, 172–3 residence, failure to fulfil conditions for, restriction on free movement, 175 sanctioned State restrictions and individual failures of integration, 173–5 social exclusion, alleviation, 175 TCN family member disqualified from being beneficiary of, 185 war crimes committed by EU citizen, 173–4 equal treatment— financial burdens on host State, interest of preventing, 177–9 generally, 175 integration of individual, demand for, 176–7 internal situation in host State, 177 jurisdiction, genuine use of free movement as test, 179–81 separating fundamental rights guarantees from, 169–70 social benefit, right to refuse, 176–7 EU citizenship rights— Court’s approach to, 159 derogation from, 162 family life, respect for— child with TCN parent, 161 deportation affecting, 167 factual free movement situation, citizen in, 161, 189 generally, 159–61 genuine enjoyment doctrine, 160, 161 host Member State of choice, in, 160 internal situation, residents within, 161 limits to Charter’s reach, 161 residence within EU territory, 160

214  Index reverse discrimination, 160 see also Family reunification free movement see free movement below fundamental rights, whether comprising citizenship rights, 158–61 generally, 157–8, 161–4 minimum rights, 158 reverse discrimination between EU citizens, 159 TCN family members, and, 159 extradition— EU citizen, 170 non-national EU citizen, 168 free movement— burden on financial system, prevention, 163 codification of case law, 162 derogation from obligations, 168–9 fundamental right, as, 158, 161, 163 imprisonment, 166 independent citizenship right, as, 163 limits and conditions, 162 material activation, 164 TFEU, Article 21 see TFEU, Article 21, and below see also Free movement fundamental rights under, future protection, 198 generally, 151–3, 190–1 human rights coverage see Human rights internal situation, difficulties associated with, 190 jurisdictional applicability and effect— criterion for triggering, 165 cross-border element, 165–7 deportation, effect, 167 Directive 2004/38 defining limits, 191 equal treatment, separating fundamental rights guarantees from, 169–70 extradition to non-Member State, 168 implementation of EU law, 170–1 imprisonment, effect, 166 limits, 154 restrictions on movement and EU fundamental rights review, 167–9 see also TFEU, Article 21, and below primary law standing, 153 review of Member State measures under, 153 rights, freedoms and principles in, 156–7 social benefits under, 157–8

TFEU, Article 20, and— Charter rights and EU citizenship, legal distance between, 183–5 fundamental rights review as part of genuine enjoyment doctrine, 185–6 generally, 181–2 genuine enjoyment doctrine— de facto assessment, 188 dependency test, legal uncertainty, 190 economic dependency leading to departure from EU, 190 family life, protection, 187 fundamental rights review as part of, 185–6 generally, 182, 183–5 problems with, 186–90 reverse discrimination, and, 189 jurisdictional test, as, 182–3 last resort, as, 188 TFEU, Article 21, and— cross-border requirement under pressure from EU citizenship, 165–7 equal treatment, separating fundamental rights guarantees from, 169–70 generally, 164–5, 192 restrictions on movement and EU fundamental rights review, 167–9 EU citizenship Brexit, and, 24 changing relevance, 1 Charter rights, and, 21 constitutional impact— Charter rights, 20–1 fundamental rights review, 20–1 generally, 18–19 reverse discrimination, 19–20 consular protection, 9, 13, 24 core rights, 5 Court’s approach, effect, 16–17 deconstruction of status, 2, 107 developments in concept, 107–10 economic tensions, effect, 23 effet utile, 3, 4, 196 equal political participation, 9 equal treatment— as legal tool to procure, 2–3 dissolution of link with right to, 197 see also Equal treatment EU Charter, and see under EU Charter of Fundamental Rights extradition, 23

Index  215 foundational status for fundamental freedoms, as, 19, 196 freedom of movement see Free movement fundamental rights review, 20–1 fundamental status of citizen, as— generally, 1, 15, 19, 97, 100, 114, 196 need to sacrifice, 198 future developments, 24–5, 197–8 generally, 1–6, 192 historical background— Adonnino Report, 8, 9 freedom of movement, 8–14 fundamental rights, respect for, 9, 11 generally, 7 legal origins, 7–9 Treaty of Maastricht see Treaty of Maastricht unreasonable economic burden, avoidance, 9 implied duties, need to fulfil, 22 legal norms, effect, 4–5 lesser or no legal protection, 1 limits and conditions, 13, 22 loss, significance, 24 Member State discretion, use, 22 Member State nationality, need for, 11 minor’s rights, 21, 23 non-economically active persons, 19 petition rights, 13 political participation in host Member State, 12 political unity, and, 24 primary law level, rights at, 4, 12, 13, 15 reactionary phase, 2 residence rights see Residence rights residual status, as, 114, 196 restrictions, 23 reverse discrimination, leading to, 19–20 secondary law, effect, 22 social tourism, 9, 28 status and rights— legal space between, 196–7 perspectives for future developments, 197–8 poor legal status, 198 third-country national see Third-county national Treaty provisions applicable to, 12 two-tiered legal concept— discrepancy between tiers, 3–4 effect, 7 foundational status, 1, 15, 19, 97, 100, 114, 196

fundamental status, 19, 196 generally, 1, 2, 7, 21, 196 residual status, 14, 196 whether no citizenship preferable to, 198 Van der Mei’s ideal, 192 withdrawal from Union, and, 24 European Parliament right to vote in elections to— British subjects in Gibraltar, 137 Citizens’ Initiative, 139, 140 Delvigne principle— free movement context, whether applicable in, 144–5 nature, 140–2 non-national, and, 144–5 denaturalisation, effect, 142–3 direct universal suffrage, 139, 141 disenfranchisement for serious criminal conviction, 141–2 Dutch Antilles, citizens in, 136 equal treatment as basis for, 135 EU citizenship, rights attendant on, 138–40 free and secret ballot, 139, 141 fundamental nature of right, 140, 163–4 generally, 135, 138 imprisonment, effect, 141–2, 144–5 moving citizens’ disenfranchisement, 140 non-national, disenfranchisement, 144 non-Union citizens, extension of franchise to, 137 Overseas Countries and Territories, citizens in, 136 substance of rights, fortifying, 142–4 substantive EU citizenship right, towards, 137–8 third country, nationals resident in, 136 Treaty of Lisbon, effect, 138–40 turnout, 140 European Year of Citizens aim, 1–2 highlighted aspects, 2 Expulsion assessment of measures, 174 economic reasons, for— burden on system, where, 113 centre of interest, 112 Directive 2004/38, and, 174 equal treatment, whether right to, 113 EU Charter, and, 174 factors for consideration, 113 habitual residence requirement, 112

216  Index narrow ground for, 111–14 not automatic, 111, 113 permanent dependence, 113 proportionality assessment, 113 real place of integration, identifying, 112 ‘reasonable’ burden, citizen becoming, 113 social assistance, request for, 111–14 solidarity, obligation, 113 temporary difficulties, 113 non-national EU citizens, 170 permanent residence see under Permanent residence restriction on movement, as, 170 Family reunification child of worker— caregiver’s right to residence, 66, 68, 69, 79 completion of education, protection until, 66 departing spouse, child of, 65 duration of rights, 66 education and vocational training programmes, access to, 66 equal treatment, right to, 66 generally, 65–8 limits on rights, 66–7 Workers Regulation, rights under, 65, 67 generally, 56–7, 78–9 genuine enjoyment doctrine— analysis, 75 application, 71–2 children, application to, 72, 73, 74, 75, 76 derived residence rights, as basis for, 71 dependent’s rights under, 72, 76–7 deportation of third-country national, 72, 74 EU Charter, and, 151–3 existential dimension of EU citizenship, protecting, 73–4 freedom of movement, intrinsic connection with, 75–7 fundamental rights review as part of, 185–6 generally, 71, 151, 197–8 home State, importance of relationship with, 75 host State, right to residence in, 76 legal protection provided by, 198 legal space between TFEU Articles 20 and 21(1), 77–8 meaning, 71 parent deriving residence right, whether, 171 problems with, 186–90

right to reside somewhere in EU, test, 74–5 right to reside without exercising freedom of movement, 72 State of nationality, child returning to, 75 test, 74–5 retained residence rights of family members— child of worker see child of worker above child’s enjoyment of rights, enabling, 68–9 childless spouse, 65 death of EU citizen, 64–5 departure of spouse from host State, 65 divorce, 64, 65 economic self-sufficiency, where, 68–9 expulsion decision, effect, 63 factual residence, effect of ending, 63 generally, 56, 62–3 individual EU citizen, independence, 63–4 minors, 64, 65, 68–9 primary care-giver, 65 self-sufficient parent, 68–9 spouse, vulnerability, 64–5 territorial aspect see territorial aspect of rights within host or home Member State below return as family to home Member State— Directive 2004/38— legal nuances, 60–1 naturalisation, effect on rights, 61–2 economic agency or self-sufficiency, proof, 60 economically active person, 57–8 formal recognition of residence, absence, 60 genuine residence in host State: meaning, 59 non-economic but genuine use of freedom of movement, 58–60 non-economically active person, 58 permanently resident, where, 59 same-sex spouse, 60–1 temporal continuity, need for, 61 right to reside within EU— existential dimension of EU citizenship, protecting, 73–4 generally, 78–9 genuine enjoyment doctrine see genuine enjoyment doctrine above TFEU Article 20, under, 71–8 territorial aspect of rights within host or home Member State— commuting between States, 70–1 derived residence right, limits on, 71 generally, 70–1, 79

Index  217 genuine enjoyment doctrine see genuine enjoyment doctrine above removal of restrictions on freedom of movement, 71 separate residences within State, 70 worker and family to reside in same territory, 70 third-country national— caregiver, rights as, 79 child, rights derived from, 68–9, 78–9 derived nature of right, 64, 68 EU citizen’s dependency on, 57 generally, 56, 78–9 limited nature of rights, 56 retained residence security see retained residence rights of family members above return as family see return as family to home Member State above same-sex spouse, 60–1 vulnerability, 78 Free movement cross-border jobseekers, no secure legal framework for, 194 Directive 2004/38 see Directive 2004/38 economically active person, 19 entry, right of see Right to enter host Member State equal treatment see under Equal treatment exit, right to see Right to exit home Member State family, right to reside with— generally, 187 see also Family reunification first right of EU citizenship, 11, 13–14 fundamental and personal nature, 26 generally, 10, 13–14, 54–5 genuine use— effect of failure to fulfil conditions for, 151 see also under Equal treatment integrated labour market, to create, 10 internal situation in host Member State, legal space, 195 jurisdictional scope of EU law, limits on, 195 legal edge of rights— generally, 193 incentive to stay, integrate and nationalise, 194–5 internal situation in host Member State, 195 limits— conditions, and, 26 whether citizenship reaching, 21–4

multiple mobility not incentivised, 194 non-economically active persons, no secure legal framework for, 194 pensioners, no secure legal framework for, 194 political rights see Voting rights protection at primary law level, 194 re-entry ban on public interest grounds, 41 residence right, and— factual residence, whether sufficient, 193 generally, 10 see also Residence rights rights attached to— generally, 10, 127, 193 limits on, due to legal trend, 126 short-term workers, no secure legal framework for, 194 voting rights, and see Voting rights Genuine enjoyment doctrine see under Family reunification Home State right to exit see Right to exit home Member State social safety net, responsibility for, 44 Human rights place in EU law— EU Charter— catalogue of rights in EU legal order, 156–7 importance, 153 fundamental rights, gradual introduction, 154–6 generally, 153–4 Treaty of Maastricht, 154–5 Integration assumption, 109 Directive 2004/38 see Directive 2004/38 (integration, Article 7 as test of) durational lawful residence as, 108–10 equal treatment see under Equal treatment five-year residence, effect, 109 genuine use of free movement, and, 193 implicit behavioural elements to, 46–8 legal trend going against, 126 litmus test, 40–3 reasonable evidence as to, 109 representative elements, taking into account, 108 residence right as right of, 33–4, 109, 126 social assistance, request for, 40 special residence security, 46

218  Index Non-discrimination nationality, due to see under Equal treatment Permanent residence acquisition of status, 28–9, 35, 38 behaviour, effect, 47–8 child, in case of, 45 criminal behaviour, effect, 48, 52 economic requirements, exclusion, 44 effect, 44 equal treatment following, 44 expulsion— case law, 52–4 critical jurisprudence, 51–4 European Arrest Warrant, and, 54, 170 exceptional resort, as, 51–2 family members etc, 53 generally, 54 limits on, 46 reasons for, 51 safety and security of others, for, 54 serious criminal acts, where, 48, 52 social rehabilitation, or, 53 see also Expulsion family members, effect on, 44, 53 five years, after— exception to requirement, 45–6 generally, 43–4 implicit behavioural elements to integration, 46–8 imprisonment, effect, 47–8 inequalities with national resident, 46 integration— as form of, 194 goal and precondition, as both, 47 meaning, 44–6 multiple mobility working against, 194 no conditions attached to, 43 not acquired, where, 45 requirements, 44–6 withdrawal of status— generally, 46 see also under Residence rights Political rights election candidate, participation as, 127 European-levelled right to equal treatment, 131–2, 196–7 free movement rights, as, 131 generally, 128–9, 149–50 jurisdictional scope, extension, 135–8 municipal-levelled right to equal treatment, 130–1, 196–7

nationality to ensure, 194 voting see Voting rights Residence rights continuity of residence, protecting, 38–40 cross-border worker ceasing employment— generally, 41 see also economically active person below dependent persons, 30 Directives— Directive 2004/38 see Directive 2004/38 generally, 10, 11, 13 durational lawful residence as integration, 108–10 economic grounds, limiting rights on, 30–1 economically active person— generally, 54 maternity leave, 41 need to be, 38 retaining status while not working, 41–2 second-time jobseekers, 42–3 equal treatment, triggering, 91, 111 expulsion see under Permanent residence family members, reunification see Family reunification free movement, and, 10, 193 fundamental and personal nature, 26 general right to reside, 10 generally, 54–5 increasing, 37–8 inherent norms of integration, observance, 38 integration right, as see Integration legitimate State interests, subordination to, 31 limiting nature, 13 limits and conditions, 26 maternity leave, effect, 41–2 naturalisation to protect, 194 national sovereignty prevailing over, 53 non-economically active Member State nationals, 10, 31, 38 permanent residence status see Permanent residence persons able to exercise, 29–30 prima facie right, as, 16 proportionality, application of principle, 16 protection for citizen, limited nature, 54–5 residual status of citizenship, 54 second-time jobseekers, 42–3 temporary financial difficulties, 39 unemployment, temporary or involuntary, 41 war crime, effect of commission, 173–4

Index  219 withdrawal— generally, 48–9 home State’s duty to accept expelled party, 49–50 integration and personal ties, relevance, 50–1 permanent residence rights, 46 public interest grounds, on, 49–51 see also under Permanent residence (expulsion) Right to enter host Member State beyond 3 months, residence— continuity of residence, protecting, 38–40 economically active person, 36–7 family members, 36 generally, 35–7 reasons for, 35–6 students, 35, 36 identity document, need for, 34 initial 3-month stay, for— conditions and formalities, freedom from, 34–5 family members, with, 34 generally, 34–5 social assistance, no right to, 35, 39 temporary difficulties, 39 tourist, as, 34 public interest reason for restricting, 34, 41 Right to exit home Member State Directive 2004/38, under, 32 generally, 32–4 non-national family members, 32 restrictions on movement— Court’s protection, 32–3 invalid reasons for, 32, 33 legitimate State interests, for, 31 non-economically active citizens, 31 removal, 32–4 retention for public interest, 32 travel documents, issue, 32 valid identity document, need for, 32 Right to remain family reunification see Family reunification Regulation 1251/70, under, 29 Same-sex couple residence rights, 30 return as family to home Member State, 60–1 Social assistance active jobseekers, 67

eligibility criteria— generally, 124 legal uncertainty for citizens, 124–5 UK, in, 123 equal treatment, and see under Equal treatment exclusion from right to, 35, 39, 40, 67 expulsion following request for, not automatic, 111 family allowance benefits, 123–4 inactive citizen, claim by— burden on State, assessment, 119 case law, 118–20 deportation, whether liable to, 119 jobseeker, 118–20 power to deny benefit, 119–20 preventing burden arising, 120 protected residence, 118 refusal, 115, 116 subsistence benefit, 118–19 temporary visitor, jobseeker as, 120 three months’ residence, less than, 120 types of claimant, 118 varying circumstances, consideration, 119 worker status, importance of retaining, 118, 120 in-kind, examples, 122 integration factors, disregarding, 125 internal situations, 124–5 lawful residence as eligibility criteria, 123 limits on right to, 122 location of social security rights, 124 non-nationals, indirect discrimination against, 123 request for, effect on residence rights, 40 right to, 114 Third-country national discrimination against, 16 family member of EU citizen, where, 12 family reunification see under Family reunification residence rights, 30 rights, 12 Treaty of Lisbon EU Charter, and, 156 political rights, effect on, 127, 138–40 Treaty of Maastricht human rights protection, 154–5 introduction of citizenship in, 26

220  Index negotiations prior to, 9 proper individual rights flowing from, 13 voting rights under, 8, 128 Voting rights Aristotelian ideal, 145–6 Brexit vote, 148 disenfranchisement in home State, 128 economic activity not leading to, 150 EU Charter of Fundamental Rights, 127 European Parliament see European Parliament (right to vote in elections to) European-levelled right to equal treatment— eligibility, 132 fundamental right, whether, 137 generally, 131–2, 196–7 manual voting registration, 134 Voting Directives, 132 free movement rights, as, 129 generally, 127–8, 149–50, 197 Member State of residence: meaning, 132 municipal-levelled right to equal treatment— declaration of nationality and address, 133 durational residence, 133 factual integration, need for, 133 generally, 130–1, 196–7 limiting non-nationals’ influence, 135 manual voting registration, 134 valid identity document, need for, 133 Voting Directives, 132 national franchise— Brexit vote, exclusion from, 148 denizenship, 147

disenfranchisement due to exercise of free movement, 145–9 enfranchisement, Member State’s powers, 148–9 exclusion from, 146–8 generally, 149–50 inclusion in, 146–8 insufficiency of EU citizenship as political status, 148–9 naturalisation leading to inclusion in, 147 no obligation to extend to EU citizens, 128 non-enfranchisement due to exercise of free movement, 145–9 non-national resident, enfranchisement, 148 political dissidents, loss of, 149 resident Irish in UK, 148 nationality, importance, 150s political dissidents, freedom of movement leading to loss of, 149 residence— concept, 132–5 outside EU, 137–8 Special Eurobarometer survey, 132 substantive EU citizenship right, towards, 137–8 taxation without representation, 150 TFEU, under, 127 Treaty of Lisbon, effect, 127, 138–40 Treaty of Maastricht, under, 8, 128 Treaty on European Union, 127 Voting Directives, 127, 132–5, 196 Worker status see under Equal treatment