EU Citizenship & the Freedom of Movement1

8/2/2019 EU Citizenship & the Freedom of Movement1

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EU Citizenship & theFreedom of MovementThe cross-border element


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DispositionUnion CitizenshipArticle 21 TFEU

Cross-border element and its development incase-law.

AG-OpinionZambrano and McCarthy

No more cross-border element?Should we keep the cross-border element?

Conclusion


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EU CitizenshipArt. 9 TEU: National citizenship = Unioncitizenship

EU Citizenship: part two TFEU, Art. 18 25- Art. 20 spells out the rights.

- Art. 21: Every citizen of the Union shall have the right tomove and reside freely within the territory of the Member

States, subject to the limitations and conditions laid down inthe Treaties and by the measures adopted to give themeffect.


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EU Citizenship


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Freedom of movementMaterial scope of Article 21 when does a situationcome within the scope of EU law?

Cross-border element: citizen may not apply EU lawin a wholly internal situation.

A number of cases suggest that the condition is beingeroded as it takes little to trigger the application of Union law.Catherine Barnard.


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C-148/02, Garcia Avello,

2003Children living in Belgium with a Spanishfather and Belgian mother. They have neverleft Belgium. Parents wants the children to

have the surname of both the father and themother. Belgian authorities refuse.

Does the situation fallwithin the scope of

EU law?


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C-200/02,Zhu and Chen,

2004Chinese women gives birth to girl in NorthernIreland. According to Irish law the babyacquired Irish nationality. Girl never leaves UK

territory. Parents do not have residencepermit.

Can the parents rely in their

daughters Union citizenshiprights to stay in the UK? Does

the case come within the

scope of EU law?


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C-135/08, Rottman,

2010Austrian national moves to Germany andacquires German nationality. According toAustrian law he loses his Austrian nationality.

The German authorities withdrew hiscitizenship when they found out that Rottmanhad been involved in a criminal investigation in

Austria, something that he had not disclosed toGerman authorities.

Does this situation fall within the scope of EUlaw?


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AG Sharpston Opinion,

C-34/09,ZambranoColombian couple living in Belgium.Wife gives birth to two children who

acquire Belgian nationality. Children

have never moved outside Belgium.

Does situation fall within the scope of Eu

law? (Difference to Zhu and Chen is that the child lived in UKwith Irish nationality)


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Sharpstons opinionCurrent case-law = lottery rather than logic.Refers toZhu and Chen and Rottman and

uses those judgments to come to theconclusion that the case comes within thescope of EU law and is not a wholly internalsituation.

Art.21 freely move and reside = Right tomove and a right to reside.


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AG Kokott Opinion,

C-434/09, McCarthy

Mrs. McCarthy holds dual nationality,

British and Irish. Mrs. McCarthy has never left

the UK. She married a man from Jamaica, whodidnt have a residence permit. Does thesituation falls within the scope of EU law?


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Kokotts opinionKokott starts by stating, contrary to SharpstoninZambrano, that she is not of the view thatUnion citizens can derive from Article 21 TFEU

a right of residence where there is no cross-border element.

She also distinguishes the case fromAvello as

she argues that it is true that Mrs. McCarthyholds dual nationality but thatMr. McCarthysright to stay or not to stay in the UnitedKingdom arises no issue that could hinderMrs. McCarthys right to free movement.


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The cross-border

element,to be or not to be


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No cross-border element

Avello,Zhu and Chen and Rottman all point inone direction.

Current case-law has left open too manydoors allowing the circumvention of the cross-border element.

Sharpstons conclusion follows a logical and

structured argumentation even though itsvery bold.

How should case-law develop without a cross-border element?

- Ri ht of residence with the combination that


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Keeping the cross-border

elementLegal certainty which outcome wouldenhance it?

- The current criteria have been heavily eroded,but is still a firm and concrete condition.

- What is the alternative?

Principle of conferral

- EU law has no say in purely internal situations.

- By expanding the material scope inZambranoand McCarthy, the principle of conferral can, in parts,

be overstepped and signify an expansion of theUnions com etence.


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How will/should the ECJ

rule?

Take a big step forward regarding Union

citizenship or play it safe?

Continue eroding the rule, making a decisionon the exceptional circumstances in the case,without addressing the issue.


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Judgment:Zambrano, 8

march42 In those circumstances, Article 20 TFEUprecludes national measures which have theeffect of depriving citizens of the Union of the

genuine enjoyment of the substance of therights conferred by virtue of their status ascitizens of the Union (see, to that effect,Rottmann, paragraph 42).

43 A refusal to grant a right of residence to athird country national with dependent minorchildren in the Member State where thosechildren are nationals and reside, and also arefusal to grant such a person a work permit,


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THANK YOU

Documents

EU Citizenship & the Freedom of Movement1