Seeing the wood despite the trees? On the scope of union citizenshipand its constitutional effects

Common Market Law Review

Volumn 45, Issue 1, 2008, Pages 13-45

  Spaventa, Eleanor ^a  

^a DURHAM UNIVERSITY   (United Kingdom)

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EID: 39749129047     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (182)

1. Case C-467/05, Dell'Orto, judgment of 28 June 2007, nyr.
2. For another example of the relevance of defining the personal scope of legislation (this time Directive 92/85) see A.G. Kokott's Opinion in Case C-116/06, Kiiski, delivered on 15 March 2007, case still pending at the time of writing.
3. Framework Decision 2001/220/JHA of 15 March 2001, on the standing of victims in criminal proceedings, O.J. 2001, L 82/1.
4. Framework decisions cannot have direct effect (Art. 34(b) TEU), but following the Court ruling in Case C-105/03, Pupino, [2005] ECR I-5285 they might give raise to a duty of consistent interpretation.
5. Cf. Case C-419/92, Scholz v. Opera Universitaria di Cagliari, [1994] ECR I-505, para 9. The two conditions do not need to be related; thus a person who moves her residence to another Member State but continues to exercise her economic activity in her Member State of origin falls, by sole virtue of having moved residence, within the personal scope of the Treaty;
6. see e.g. Case C-470/04, N v. Inspecteur van de Belastingdienst Oost/kantoor Almelo, [2006] ECR I-7409;
7. Case C-287/05, Hendrix, judgment of 11 Sept. 2007, nyr.
8. Cf. Art. 39(2) EC; Regulation 1612/68, O.J. sp. ed. 1968, L 257/2, p. 475; Arts. 43 and 49 EC.
9. E.g. Art. 39(3) EC.
10. See now Art. 2 Directive 2004/38, O.J. 2004, L 229/35, on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.
11. Case 175/78, R v. Saunders, [1979] ECR 1129.
12. Consistent case law; see e.g. also Joined Cases 35 & 36/82, Morson and Jhanjan v. Netherlands, [1982] ECR 3273.
13. Case C-60/00, Carpenter v. Secretary of State for the Home Department, [2002] ECR I-6279, esp. para 29.
14. Admittedly the requirement to establish a cross-border link has been relaxed to the point of becoming meaningless; see, for instance, Case C-405/98, Gourmet International (GIP), [2001] ECR I-1795 where the Court accepted that the existence of a potential recipient of services in another Member State was enough to establish the cross-border link; and Case C-355/00, Freskot, [2003] ECR I-5263, where the Court accepted that the existence of potential provider of services in another Member State was enough to trigger the Treaty.
15. E.g. O'Leary, "Putting flesh on the bones of European Union citizenhip", 24 EL Rev. (1999), 68;
16. Shaw and Fries, "Citizenship of the Union: First Steps in the European Court of Justice", 4 EPL (1998), 533;
17. Illiopoulou and Toner, "A new approach to discrimination against free movers? D'Hoop v Office National de l'Emploi"", 28 EL Rev. (2003), 389;
18. Dougan and Spaventa, "Educating Rudy and the (non-)English patient: A double-bill on residency rights under Article18 EC", 28 EL Rev. (2003), 699;
19. Barnard, Annotation of Bidar, 42 CML Rev. (2005), 1465.
20. E.g. Meehan, Citizenship and the European Community (Sage, 1993);
21. O'Leary, The Evolving Concept of Community Citizenship (Kluwer Law International, 1996);
22. O'Keeffe, "Union Citizenship" in O'Keeffe and Twomey, (Eds.) Legal Issues of the Maastricht Treaty (Chancery Law, 1994), ch 6;
23. Preuß, "Problems of a Concept of European Citizenship", 1 ELJ (1995), 267;
24. Shaw, "The Many Past and Futures of Citizenship in the European Union", 22 EL Rev. (1997), 554;
25. Guild, The Legal Elements of EU Identity: EU Citizenship and Migration Law (Kluwer Law International, 2004).
26. E.g. Barnard, "EU Citizenship and the Principle of Solidarity" and Dougan and Spaventa, '"Wish You Weren't Here. . .' New models of social solidarity in the European Union", both in Dougan and Spaventa (Eds.), Social Welfare and EU Law (Hart Publishing, Oxford, 2005), Chs. 8 and 9;
27. Ferrera, "Towards an 'Open' social citizenship? The new boundaries of welfare in the European Union" in De Burea (Ed.), EU Law and the Welfare State (OUP, 2005), Ch. 2;
28. Davis, "Citizenship of the Union . . . Rights for All" 27 EL Rev. (2002), 121;
29. Hailbronner, "Union citizenship and access to social benefits", 42 CML Rev. (2002), 1245.
30. E.g. Jacqueson, "Union citizenship and the Court of Justice: Something new under the sun? Towards social citizenship", 27 EL Rev. (2002), 260;
31. Dougan, "The constitutional dimension to the case law on Union citizenship", 31 EL Rev. (2006), 613;
32. Besselink, "Dynamics of European and national citizenship: inclusive or exclusive?" 3 EuConst (2007), 1.
33. See section 3.2. below for an analysis of those cases in which the cross-border element might have been weaker.
34. Not least, since the general principles of Community law only apply to determine the lawfulness of limitations to the rights granted by the Treaty (material scope) and not to the interpretation of its personal scope.
35. And it is not open to the Member States to question the rules of other Member States concerning the grant of nationality, e.g. Case C-369/90, Micheletti, [1992] ECR I-4239;
36. Case C-200/02, Chen, [2004] ECR I-9925.
37. See Case C-300/04, Eman and Sevinger, [2006] ECR I-8055, and A.G. Tizzano's Opinion para 146: ". . . persons possessing the nationality of a Member State are citizens of the Union and therefore, in principle and regardless of where they live, enjoy all rights available to such citizens under Community law, including naturally those provided for in the second part of the Treaty" (emphasis added).
38. Cf. Art. 21 EC; such rights are not exclusive to Union citizens, see Arts. 194 and 195 EC.
39. Case C-85/96, M M Martínez Sala v. Freistaat Bayern, [1998] ECR I-2691.
40. Ibid., esp. paras 59 and 60.
41. Case C-224/98, M N D'Hoop v. Office national d'emploi, [2002] ECR I-6191.
42. Ibid., para 27. This section of the ruling is entitled "The scope ratione personae and ratione materiae of the Treaty provisions on citizenship of the Union"
43. D'Hoop, supra note 23, para 29, our emphasis.
44. See also Case C-184/99, Grzelczyk, [2001] ECR I-6193, para 33.
45. Case C-413/99, Baumbast and R v. Secretary of State for the Home Department, [2002] ECR I-7091.
46. Ibid., paras 82 and 83.
47. Case C-456/02, Trojani, [2004] ECR I-7573, para 31. "It must be recalled that the right to reside in the territory of the Member States is conferred directly on every citizen of the Union by Article 18(1) EC . . . . Mr Trojani therefore has the right to rely on that provision of the Treaty simply as a citizen of the Union" (emphasis added).
48. Case C-138/02, Collins, [2004] ECR I-2703, para 61. In Case C-148/02, Garcia Avello, [2003] ECR I-11613, the Court held that the effect of the citizenship provisions was not to broaden the material scope of the Treaty; it did not comment upon the effect of such provisions on its personal scope.
49. Joined Cases C-502/01 & C-31/02, Gaumain Cerri and Barth, [2004] ECR I-6483.
50. Council Regulation (EEC) 1408/71, consolidated version O.J. 1997, L 28/1, and〈www.europa.eu.int/eur-lex/en/consleg/pdf/1971/en_1971R1408_do_001. pdf〉, on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community; soon to be replaced by Regulation 883/2004, O.J. 2004, L 166/1, on the coordination of social security systems.
51. Gaumain Cerri and Barth, supra note 30, para 34.
52. Case C-403/03, Schempp, [2005] ECR I-6421, para 17.
53. The Court's interpretation seems rather artificial for two reasons. First, there is a certain discordance in the finding that the exercise of a right to move by a person other than the claimant brings, for that reason alone, the matter within the material scope of Community law. In this respect, Schempp can be distinguished from Case C-76/05, Schwarz and Gootjes-Schwarz, judgment of 11 Sept. 2007, nyr, because of the inherent difference in the type of link existing between ex-spouses on the one hand, and children who are dependent on their parents on the other. Secondly, the reasoning of the Court seems to suggest that had Mr Schempp's former wife been a third country national, and all other things being equal, the situation would have fallen outside the scope of the Treaty, a result which seems rather arbitrary.
54. Case C-192/05, Tas-Hagen and Tas, [2006] ECR I-10451, paras. 18 and 19;
55. "18. Regarding the scope ratione personae of that provision, suffice it to state that, under Article 17(1) EC, every person holding the nationality of a Member State is a citizen of the Union. Furthermore, Article 17(2) EC attributes to citizens of the Union the rights conferred and duties imposed by the Treaty, including those mentioned in Article 18(1) EC. [19] As Netherlands nationals, Mrs Tas-Hagen and Mr Tas enjoy the status of citizens of the Union under Article 17(1) EC and may therefore benefit from the rights conferred on those having that status, such as, inter alia the right to move and to reside freely within the territory of the Member States conferred by Article 18(1) EC".
56. Case C-11/06, Morgan, judgment of 23 Oct. 2007, nyr;
57. see also Schwarz and Gootjes-Schwarz, supra note 34.
58. Daniele has noted how almost half of the Union citizenship cases have involved claims of Union citizens against their Member State of nationality; "Free movement of Union citizens and free movement of economically active persons: What's the difference?", Durham European Law Institute seminar, 5 Nov. 2007, not published.
59. Of course, in relation to specified fields, static citizens have always enjoyed Community law rights, e.g. in relation to equal treatment on grounds of sex under Art. 141 EC.
60. Baumbast, supra note 26.
61. We are not concerned here with the "core" citizenship rights, i.e. right to stand and vote for the European Parliament; the right to petition the European Parliament; the right to apply to the Ombudsman; and the right to consular protection from other Member States when outside the territory of the Union. Those rights are not always confined to Union citizens; e.g. in Case C-145/04, Spain v. United Kingdom, [2006] ECR I-7917, the Court clarified that Member States might grant the right to vote for the European Parliament to those who are not Union citizens for the purposes of Community law; or the fact that Arts. 194 and 195 EC confer the right to write to the institutions or complain to the Ombudsman on TCNs and foreign companies lawfully resident in the Union.
62. See recently Case C-50/06, Commission v. Netherlands, judgment of 7 June 2007, nyr.
63. Member States are entitled to impose administrative formalities, although those, as well as the penalties for failure to comply, need to respect the principle of proportionality; Case C-378/97, Wijsenbeek, [1999] ECR I-6207;
64. and Directive 2004/38, cited supra note 7.
65. E.g. Case C-237/94, O'Flynn, [1996] ECR I-2617, para 18;
66. Case C-195/98, Österreichischer Gewerkschaftsbund, Gewerkschaft öffentlicher Dienst v. Republik Österreich, [2000] ECR I-10497.
67. E.g. D 'Hoop, supra note 23.
68. D'Hoop, supra note 23; the reasoning of the Court is a bit confused, referring both to discrimination on grounds of nationality and to discrimination on grounds of movement. The latter however was the deciding factor.
69. Schempp, supra note 33.
70. Schwarz and Gootjes-Schwarz, supra note 34.
71. See also Case C-224/02, Pusa, [2004] ECR I-5763;
72. Case C-520/04, Turpeinen, [2006] ECR I-10685.
73. Case C-406/04, De Cuyper, [2006] ECR I-6947.
74. Ibid.
75. Tas-Hagen and Tas, supra note 35;
76. and Cf. also Pusa, supra note 48, which related to rules concerning enforcement for the recovery of debt. On these issue see Cousins, "Citizenship, Residence and Social Security", 32 EL Rev. (2007), 386.
77. Case 9/78, Gillard, [1978] ECR 1661;
78. Case 207/78, Even, [1979] ECR 2019;
79. in Case C-3 86/02, Baldinger, [2004] ECR I-8411, the Court did not consider the relevance of the Union citizenship provisions in relation to benefits for victims of war.
80. To this end cf. A.G. Kokott's Opinion in Tas-Hagen and Tas, supra note 35, esp. paras 25 et seq.
81. Case C-11/06, Morgan, judgment of 23 Oct. 2007, nyr.
82. Case C-109/92, Wirth, [1993] ECR I-6447.
83. Cf. A.G. Jacobs Opinion in Case C-96/04, Familiensache: Standesamt Stadt Niebüll, [2006] ECR I-3561.
84. See Garcia Avello, supra note 29.
85. Case C-212/06, Government of the French Community and the Walloon Government v. the Flemish Government, Opinion delivered on 28 June 2007, case still pending at the time of writing.
86. The right to stay for the first three months is unconditional; Art. 6 Directive 2004/38.
87. Art. 7 Directive 2004/38; the right to reside of those engaged in an economic activity is of course unconditional.
88. After the first three months of residence Member States cannot rely on the public health derogation; cf. Art. 29(2) Directive 2004/38.
89. See Dougan and Spaventa, op. cit. supra note 12, 699.
90. Baumbast, supra note 26.
91. Baumbast, supra note 26, para 94.
92. Trojani, supra note 28, para 36;
93. the Court held that since Mr Trojani was lawfully resident he had in any event a right to equal treatment pursuant to Art. 12 EC, see infra section 5.1.
94. Case C-200/02, Chen, [2004] ECR I-9925.
95. Case C-408/03, Commission v. Belgium, [2006] ECR I-2647.
96. Economically inactive Union citizens benefited from a limited right to equal treatment by virtue of their status as service recipients; e.g. Case 186/87, Cowan v. Trésor Public, [1989] ECR 195;
97. Case C-45/93, Commission v. Spain, (Museum admission), [1994] ECR I-911;
98. Case C-274/96, Bickel and Franz, [1998] ECR I-1121.
99. and see infra section 6.1.
100. Case C-209/03, Bidar, [2005] ECR I-2119.
101. Case 263/86, Humbel, [1988] ECR 5365.
102. Garcia Avello, supra note 29.
103. See generally the critical case note by Ackermann, 44 CML Rev. (2007), 141-154.
104. In Case C-168/91, Konstantinidis v. Stadt Altensteig, Standesamt und Landratsamt Calw, Ordnungsamt, [1993] ECR I-1191, the Court accepted that rules on transliteration of a Greek name could fall within the scope of the Treaty to the extent they affected the pursuit of an economic activity.
105. This would still be the case in relation to a claim against the host State for benefits awarded because of the special link of nationality, such as war veteran pensions, see Case 207/78, Even, [1979] ECR 2019. As said above, however, once the claimant fulfils the criteria for the award of such benefits, Member States cannot make the entitlement of such benefits conditional upon residence in the national territory: Tas-Hagen and Tas, supra note 35.
106. E.g. Martínez Sala, supra note 21;
107. Trojani, supra note 28.
108. E.g. Grzelczyk, supra note 25;
109. Trojani, supra note 28.
110. Grzelczyk, supra note 25; this principle has been codified in Art. 14(3) Directive 2004/38.
111. In Trojani, supra note 28, the Court held that a Union citizen can rely on Art. 12 EC if he/she has been lawfully resident for a certain time or has a residence permit (para 43);
112. see also Bidar, supra note 69, para 37.
113. E.g. Case C-274/96, Bickel and Franz, [1998] ECR I-1121.
114. See Dougan and Spaventa, op. cit. supra note 14, p. 181;
115. and also Dougan, op. cit. supra note 15, at 629.
116. Collins, supra note 29.
117. Bidar, supra note 69.
118. Collins, supra note 29.
119. Cf. also Barnard, Annotation of Bidar, 42 CML Rev. (2005), 1465, who talks about a "quantitative approach" to equal treatment (at 1468).
120. See also Spaventa, Free Movement of Persons in the European Union - Barriers to Movement in their Constitutional Context, (Kluwer Law International, 2007).
121. Although the Union institutions take a more restrictive stance as to the significance of the "fundamental status" of Union citizens; cf. whereas 3, Directive 2004/38 which states "Union citizenship shall be the fundamental status of nationals of Member States when they exercise their right of free movement and residence. . . ." (emphasis added).
122. It should be noted that Directive 2004/38 applies only to Union nationals "who move to or reside in a Member State other than that of which they are a national" (Art. 3), and therefore static Union citizens do not come within its scope and cannot claim a right to equal treatment by reason of either Art. 24 of that Directive, Art. 12 EC, or the general principles of Community law. In this respect, the Directive is narrower than the existing case law, in that it does not specify that the returning migrant should be equated to the migrant for the purposes of Community law (Case C-370/90, The Queen v. Immigration Appeal Tribunal et Surinder Singh, ex parte Secretary of State for Home Department, [1992] ECR I-4265).
123. However, this is unlikely to have any bearing on the existing case law. The abolition of reverse discrimination has been long advocated by the scholarship, see e.g. D'Oliveira, "The Community Case - Is reverse discrimination still permissible under the Single European Act?" in Forty years on: the Evolution of Postwar Private International Law in Europe, Kluwer, Amsterdam, 1990, 71-86;
124. and more recently Nie Shuibhne, "Free movement of persons and the wholly internal rule: Time to move on?", 39 CML Rev. (2002), 731.
125. D'Hoop, supra note 23, para 28.
126. Schempp, supra note 33, para 17.
127. Garcia Avello, supra note 29, para 26.
128. Martinez Sala, supra note 21.
129. It is important to stress that in Martínez Sala the situation did not fall within the material scope of the Treaty by virtue of Art. 18(1) EC since the Court held that it was not necessary to investigate the legal effect of such provision. Similar confusion in relation to the material scope of the Treaty can be found in Bidar; however, in that case, as in Grzelcyck the situation fell in any case within the material scope of the Treaty by virtue of Art. 18(1) EC.
130. Similarly circular is the reasoning in the pre-citizenship Case 293/82, Gravier, [1985] ECR 593.
131. Garcia Avello, supra note 29.
132. In other cases, the situation could be more easily brought within the personal and material scope of the Treaty because of its indirect effect on intra-Community trade or free movement rights; e.g. Case C-92/92, Phil Collins, [1993] ECR I-5145;
133. Case C-360/00, Land Hessen v. G. Ricordi & Co. Bühnen- und Musikverlag GmbH, [2002] ECR I-5089;
134. and Case C-28/04, Tod's Spa et al v. Heyraud SA, [2005] ECR I-5781, on copyright and related rights;
135. Case C-43/95, Data Delecta, [1996] ECR I-4661;
136. Case C-323/95, Hayes, [1997] ECR I-1711;
137. Case C-122/96, Saldanha, [1997] ECR I-5323 on security costs in judicial proceedings.
138. Case 186/87, Cowan v. Trésor Public, [1989] ECR 195
139. Case C-45/93, Commission v. Spain (Museum admission), [1994] ECR I-911;
140. see also Case C-388/01, Commission v. Italy (Italian museums), [2003] ECR I-721, where however the Court applied Art. 49 EC alone;
141. for a critique of the latter ruling see Davies, '"Any place I hang my hat?' or: residence is the new nationality", 11 (2005) ELJ, 43.
142. Case C-274/96, Bickel and Franz, [1998] ECR I-1121
143. Case C-411/98, A Ferlini v. Centre Hospitalier de Luxembourg, [2000] ECR I-8081.
144. Art. 7(2) Regulation 1612/68, supra note 5, on freedom of movement for workers within the Community.
145. On the other hand there is evidence to suggest that migration alone is sufficient, at least in certain cases, to trigger Art. 12 EC. See e.g. Case C-224/00, Commission v. Italy, (fines for road offences), [2002] ECR I-2965;
146. and also Case C-29/95, Pastoors and Trans Cap, [1997] ECR I-285.
147. E.g. Joined Cases C-64 & 65/96, Uecker and Jacquet, [1997] ECR I-3171.
148. And in fact such an interpretation is much preferable to the artificial stance taken in Case 59/85, Reed, [1986] ECR 1283, where the Court qualified the right for a worker to have his/her partner living with him/her as a social advantage in order to ensure that the right to equal treatment in relation to the partner's residence rights would be upheld.
149. And the Court has been generous in allowing Union citizens to establish the cross-border link even in situations which were, for all intent and purposes, purely internal; see e.g. Carpenter, supra note 10;
150. and generally Nic Shuibhne, op. cit. supra note 85, 731.
151. Carpenter, supra note 10.
152. Baumbast, supra note 26.
153. Although in some instances that might also be the case; cf. the proposed UK protocol to the Reform Treaty in relation to the effect of the Charter and the debate about the right to strike in Case C-438/05, The International Transport Workers' Federation and The Finnish Seamen's Union v. Viking Line ABP and OÜ Viking Line Eesti, Opinion delivered on 23 May 2007, case still pending at the time of writing.
154. See section 7 below on the constitutional effects of the Union Citizenship case law.
155. I am extremely grateful to Francesco De Ceceo for having raised this objection.
156. See also Spaventa, op. cit. supra note 83, Ch.7
157. and supra note 11.
158. E.g. Case C-55/94, Gebhard v. Consiglio dell'Ordine degli Avvocati e Procuratori di Milano, [1995] ECR I-4165, para 37;
159. and for the need to comply with fundamental rights, see e.g. Case C-260/89, Elliniki Radiophonia Tileorassi AE (ERT) v. Dimotiki Étairia Pliroforissis (DEP), [1991] ECR I-2925;
160. and Case C-368/95, Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v. Heinrich Bauer Verlag, [1997] ECR I-3689.
161. Although Hendrix, supra note 4, might be signalling a shift in the Court's approach towards home State barriers, insofar as that case could be read as introducing a Baumbast sort of reasoning also in these cases. However, the case is not conclusive since the Dutch legislation at issue left some discretion to the relevant authorities and it could therefore be argued that the obligation to take into account the personal circumstances of the claimant arose as a result of that discretion.
162. Dougan, op. cit. supra note 15, at 626.
163. For an excellent comparative overview see Cappelletti, "The 'Mighty Problem' of Judicial Review and the Contribution of Comparative Analysis" 6 LIEI ( 1979/2), 1.
164. This is the case even when the legality of a piece of legislation is assessed in relation to unwritten principles, such as presumptions of intention in the UK constitutional context.
165. The difference between administrative and constitutional review is also present in the Community system, and so is the extent to which the Court is willing to interfere with the broad margin of discretion left to the legislature; e.g. Case 331/88, Fedesa, [1990] ECR I-4023.
166. This is the case even when the effect of such nullity can be tamed as to its temporal application.
167. The situation is of course different in the United Kingdom where there is no written Constitution and Acts of Parliament cannot be declared "unlawful" by any court, although following the Human Rights Act courts can issue a declaration of incompatibility between the Act of Parliament and the ECHR.
168. Cf. e.g. operative part of the ruling in Baumbast, supra note 26;
169. in Bidar, supra note 69;
170. also Carpenter, supra note 10.
171. E.g. recently Case C-442/02, Caixa-Bank, [2004] ECR 1-8961;
172. Case C-79/01, Payroll Data Services (Italy) et al., [2002] ECR I-8923.
173. Caixa-Bank, previous footnote;
174. Payroll Data Services, previous footnote.
175. This step towards the "administrativization" of the enforcement of national law, where-by the authorities find themselves under a Community law duty to consider the case in its nuances even when it fits the black letter of the law, is not an isolated phenomenon and in certain respects is also visible in the health care cases, where the Court imposed upon the national authorities substantive duties to review the denial of reimbursement for health care received abroad even though such a refusal was consistent with the provisions of Regulation 1408/71; see especially Case C-157/99, Geraets-Smits and Peerbooms, [2001] ECR I-5473;
176. Case C-385/99, Müller Fauré and van Riet, [2003] ECR I-4509.
177. Further, a similar approach has been adopted in Carpenter, supra note 10;
178. however I am inclined to consider Carpenter as a citizenship case; see Spaventa, "From Gebhard to Carpenter: towards a (non-)Economic European Constitution", 41 CML Rev. (2004), 743;
179. and id. op. cit. supra note 83, Ch. 6
180. On this point see also the discussion in Dougan, op. cit. supra note 15, who seems to advocate an alignment between the Baumbast approach and the case law on secondary legislation.
181. Cf. e.g. Case C-189/01, Jippes and others, [2001] ECR I-5689.
182. See also Hendrix, supra note 4.