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Citizenship in the European Union: a stock-taking exercise with examples

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  1. Citizenship in the European Union: a stock-taking exercise with examples Jo Shaw, Salvesen Chair of European Institutions, University of Edinburgh jo.shaw@ed.ac.uk Dubrovnik, April 2009

  2. Broader questions posed by the presentation • Is the EU a ‘citizenship-capable’ polity? • Is it enough just to point to Articles 17-21 EC – Citizenship of the Union? • When did ‘citizenship development’ start in the EU, what are the main lines and elements of this development, and – in 2009 – where does it leave citizenship in not of the Union? Dubrovnik, April 2009

  3. Two key narratives • Citizenship and free movement (law) – to what extent should we see citizenship as limited only to the discussion of the consequences of free movement and – if that’s so – where do the citizenship provisions come in? • Citizenship and constitutionalism – drawing on the national experience, this seems a more plausible link, but here – of course – the EU is very weak Dubrovnik, April 2009

  4. Three key examples • Case law on citizenship and the nationality laws of the MS in order to illustrate some difficult questions • The problematic implementation of the Citizens’ Rights Directive • The absence of significant Treaty change since Maastricht – if the Union has changed in legal character that does not include its approach to citizenship Dubrovnik, April 2009

  5. EU law and nationality laws of the Member States: Introduction • The ‘European’ context of nationality laws – why does it matter • Role of EU citizenship – Articles 17 and 18 EC – EU citizens are the nationals of the Member States • Includes ‘external effects’ – e.g. on states such as Moldova in the context of neighbourhood issues, as well as accession/candidate states Dubrovnik, April 2009

  6. The Court’s line on citizenship • Since Case C-184/99 Grelczyk v. Centre public d’aide [2001] ECR I-6193 • ‘Citizenship of the Union is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to receive the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for’ • Two element: fundamentality and equality Dubrovnik, April 2009

  7. Basic freedom of MS in relation to nationality • MS retain the right to determine rules on acquisition of nationality (Kaur; Chen) – whether restrictively or generously… • But in relation to dual nationality, no double burden or additional conditions to be imposed on a person seeking to rely upon a particular nationality (Micheletti; Garcia Avello) • And freedom in relation to how they use such determinations (e.g. in order to create rules on surnames – rather than residence rule) (Garcia Avello; Grunkin) Dubrovnik, April 2009

  8. Member States must comply with EU law • But in so doing they must act in compliance with the rules of EU law • no discrimination on grounds of nationality (Article 12 EC) • plus application of Aristotelian principle of treating like situations the same and unlike situations differently (Garcia Avello) (general principle of equality) • on grounds of free movement (Grunkin and Paul) (derives from cases such as De Hoop) Dubrovnik, April 2009

  9. Strict scrutiny of justifications by ECJ • ECJ sceptical of national justifications for having certain types of rules on surnames connected to nationality (rather than residence), such as: • that the immutability of surnames is a founding principle of social order; or • that nationality represents the [only] objective connecting factor which makes it possible to determine a person’s surname with certainty and consistency Dubrovnik, April 2009

  10. ECJ pushing the boundaries of EU citizenship ever outwards • Martínez Sala: in order to invoke Articles 17, 18 and 12 in combination, it was necessary to prove that applicant within both personal scope of EU law and also material scope • Using argument around construction of citizenship in order to access benefits covered by EU law Dubrovnik, April 2009

  11. Abandoning the link • Garcia Avello and Grunkinand Paul: only personal link of EU citizen resident in another MS • This is then combined with the argument that it is an inconvenience to free moving EU citizens to have their surname differently determined in different states – all the myriad circumstances in which people have to prove identity, etc. Dubrovnik, April 2009

  12. Restricting the Member States • This is using EU law in order to restrict freedom of Member States to use nationality criterion in respect of other matters of civil status which would normally fall within their exclusive competence (surname determination) • Konstantinidis is an important precedent here although at that time ECJ stressed economic dimension • But see the [obiter] suggestion of AG Jacobs in Standesamt Stadt Niebüll: ‘the combined effects of Articles 17 and 18(1) EC mean that it is now unnecessary to establish any economic link in order to demonstrate an infringement of the right to free movement’ • Cf. AG Jacobs dictum in Konstantinidis: should be able to say ‘civis europeus sum’… Dubrovnik, April 2009

  13. The direction of travel? • Rottmann: • what happens when an ‘EU citizen’ loses EU citizenship because, having had one MS nationality (Austrian), he acquires another by deception (German) • and is then threatened with deprivation of this second nationality because of the deception • but the ‘old’ nationality would not normally be revived • leading to the possibility of statelessness Dubrovnik, April 2009

  14. Possible arguments • Statelessness issues would be dealt with here solely under international law and the duties of states to avoid statelessness • EU citizenship imposes special duties on EU Member States to avoid persons losing their EU citizenship because of possible statelessness • And/or we could see the invocation of human rights arguments about MS responsibilities in relation to nationality law (put forward on behalf of the applicant but not engaged with in Kaur) Dubrovnik, April 2009

  15. Possible outcomes • It’s Mr Rottmann’s problem and no one else’s • Germany should act – i.e. not withdraw • Austria should act – i.e. ensure revival of old nationality Dubrovnik, April 2009

  16. Key cases • Case C-369/90 Micheletti v. Delegacíon del Gobierno en Cantabria [1992] ECR I-4239 • Case C-148/02 Garcia Avello [2003] ECR I-11613 • Case C-353/06 Grunkin and Paul, 14 October 2008 • Case C-135/08 Rottmann v. Freistaat Bayern (not yet decided) Dubrovnik, April 2009

  17. Other cases referred to • Case C-168/91 Konstantinides v. Stadt Altensteig [1993] ECR I-1191 • Case C-85/96 Martínez Sala v. Freistadt Berlin [1998] ECR-I 2691 • Case C-192/99 Kaur [2001] ECR I-1237 • Case C-200/02 Chen [2004] ECR I-9925 • Case C-96/04 Standesamt Stadt Niebüll [2006] ECR I-3561 Dubrovnik, April 2009

  18. Implementation of Citizens’ Rights Directive • Flagship piece of legislation • Happier relationship between EU law and national law (and between ECJ and national authorities) in case where there is legislation in place – i.e. does legislation strengthen legitimacy? • Limited – of course – just to mobile citizens Dubrovnik, April 2009

  19. The relevant EU texts • Article 39 EC • Other EU free movement rights including Articles 43 and 49 EC • The effects of EU citizenship – Article 18 EC • Directive 2004/38 EC – largely supercedes all previous implementing legislation Dubrovnik, April 2009

  20. However • Not a complete code of rights for EU citizens and their family members • ECJ case law including prior case law still relevant to understand key rights (e.g. especially the scope of the non-discrimination principle when applied in conjunction with EU citizenship • Does not treat all EU citizens the same – there are still some differences between those who are workers, jobseekers, students, retired persons, the self employed, persons of independent means Dubrovnik, April 2009

  21. Should be quite straightforward • For stay of less than three months: passport or identity card • For residence of more than three months • After five years of continuous residence – can acquire the right of permanent residence • Inter alia gives greater protection against possible deportation on grounds of public policy (e.g. after lengthy prison sentence) Dubrovnik, April 2009

  22. UK Implementation • Immigration (European Economic Area) Regulations 2006 • Some specific regulations, e.g. in the area of equal treatment • In some cases (ordinary) immigration law still applies – e.g. appeals process and some categories (e.g. extended family members) Dubrovnik, April 2009

  23. Also bear in mind • Entry Clearance Guidance • European Casework Instructions • UK Border Agency deals with these questions, with appeals to AIT or other tribunal e.g. Social Security Commissioner as appropriate Dubrovnik, April 2009

  24. Monitoring of national compliance • European Commission is responsible • Issued report in December 2008 • ‘Free movement of persons constitutes one of the fundamental freedoms of the internal market, to the benefit of EU citizens, of the Member States and of the competitiveness of European economy.’ Dubrovnik, April 2009

  25. Who benefits? • ‘The directive is fundamental not only for more than 8 million EU citizens who reside in another Member State and their family members, but also for the millions of EU citizens travelling every year inside the EU.’ Dubrovnik, April 2009

  26. The Commission’s disappointment • ‘The overall transposition of Directive 2004/38 is rather disappointing. Not one Member State has transposed the Directive effectively and correctly in its entirety. Not one Article of the Directive has been transposed effectively and correctly by all Member States.’ Dubrovnik, April 2009

  27. Issues for the UK • Making the right of residence of third country national family members conditional upon their prior lawful residence in another Member State • Its restrictive approach to the acquisition of permanent residence (whereby only periods of residence ‘under these Regulations’ are counted) Dubrovnik, April 2009

  28. Other issues not mentioned • Long delays in issuing residence documents to family members • The requirement that certain extended family members have previously resided in the same member state as the sponsor • Could go on and on… • The drafting of the regulations is a wonder to behold…Regulation 14(3) Dubrovnik, April 2009

  29. Where are things likely to go in the future? • The ECJ has not so far had much opportunity to interpret Directive 2004/38 • Some evidence in the related field of equal treatment in the area of student support • Case C-127/08 Metock v. Minister for Justice, Equality and Law Reform, 25 July 2008 Dubrovnik, April 2009

  30. Facts of Metock • Irish regulations requiring prior lawful residence in another Member State • TCN spouses married to nationals of other Member States resident and working in Ireland • Refused residence permits and threatened with deportation • Many had had asylum applications turned down • Therefore could be viewed as illegal entrants, or at least persons not present lawfully in Ireland Dubrovnik, April 2009

  31. Some comments on the Metock process • AG’s Opinion not written, or if it was not published (‘after hearing the Advocate General’) • Speed of procedure – reference was presented on 14 March 2008 • Not one of the third pillar cases where the Court has agreed a formal accelerated process • These are controversial issues, affecting national sovereignty. Has the ECJ taken sufficient time to reflect upon them? Dubrovnik, April 2009

  32. Where did the problem come from? • Case C-109/01 Akrich [2003] ECR I-9607 • “[i]n order to be able to benefit...from the rights provided for in Article 10 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, a national of a non-Member State married to a citizen of the Union must be lawfully resident in a Member State when he moves to another Member State to which the citizen of the Union is migrating or has migrated” • Case C-1/05 Jia v. Migrationsverket [2007] ECR I-1 Dubrovnik, April 2009

  33. Conclusions of the Court of Justice • ‘Directive 2004/38 confers on all nationals of non-member countries who are family members of a Union citizen within the meaning of point 2 of Article 2 of that directive, and accompany or join the Union citizen in a Member State other than that of which he is a national, rights of entry into and residence in the host Member State, regardless of whether the national of a non-member country has already been lawfully resident in another Member State.’ Dubrovnik, April 2009

  34. Justification given by the ECJ • ‘The refusal of the host Member State to grant rights of entry and reisdence to the family members of a Union citizen is such as to discourage that citize from moving to or residing in that member State, even if his family members are not already lawfully resident in the territory of another Member State.’ Dubrovnik, April 2009

  35. Is this likely to be accepted? • See case of HB (Algeria) – a Surindher Singh type case (AIT) • See also amendments to Entry Clearance Instructions and European Casework Instructions to remove offending references to Akrich • But as yet no sign of an amendment to EEA Regulations Dubrovnik, April 2009

  36. Meta level change? • What impact of the Treaty of Lisbon on citizenship? • The ‘will’ of citizens • The ‘equality’ of citizens • ‘Additionality’ instead of ‘complementarity’ • Citizens and the ‘democratic life of the Union’ • Citizens’ initiatives Dubrovnik, April 2009