PROBLEM 3
Learning objectives:
1. What are the rights of EU citizens (including the justifications/limitations)?
a. Under the TFEU
b. Under the Citizenship Rights Directive (CRD)
c. Under the Charter of Fundamental Rights
2. Solve the problem: can a residence permit of same-sex spouse of an EU citizen be rejected on the basis of
national identity? (niet uitgewerkt)
Literature:
- E-lesson on EU citizenship
- E-lesson on Fundamental Rights in the EU
- Webcast on Basic Notions Part 1
- Webcast on Basic Notions Part 2
Case law:
Zhu and Chen (C-200/02; Only Rule) Coman-case (C-673/16)
Zambrano-case (C-34/09) Trojani-case (C-456/02)
McCarthy-case (C-434/09; Only Rule) Gebhard-case (C-55/94)
Baumbast-case (C-413/99) Dano-case (C-333/13; Only Rule)
Prinz-case (C-523/11 and 585/11) Wachauf (5/88; Only Rule)
Grzelzcyk (C-184/99; Only rule) ERT (C-260/89; Only Rule)
O. and B.-case (C-456/12; Only Rule) Schmidberger (C-112/00; Only Rule)
Digital Rights Ireland-case (C-293/12; Only Rule)
1) WHAT ARE THE RIGHTS OF EU CITIZENS?
The free movement of persons is one of the four free movements the EU adopted to establish the
internal market of the EU.
• The free movement of persons entails that EU citizens and their family members have under
certain circumstances travel and residing rights in the EU.
a. Under the TFEU
EU citizenship
The introduction of EU citizenship in 1992 with the Maastricht Treaty has made free movement law
concerning persons more complex.
• Article 20 TFEU states that ‘Every person holding the nationality of a Member State shall be a
citizen of the Union’ meaning that every person with the nationality of an EU Member State also
has EU citizenship.
• EU citizenship is therefore additional to, and conditional on, the national citizenship of an EU
Member State.
Zhu and Chen
• The CJEU ruled that a third-country national may, on the basis of Article 20 TFEU, have a derived
right to residence as long as a minor child that is an EU citizen of another Member State
depended on them as a caretaker provided, they had sickness insurance and sufficient
resources.
Something similar was decided in the Zambrano case (paras. 42-44)
1
, • Two Columbian parents challenged the rejection of their Belgian residency permits on the
ground that their children had been born in Belgium and thereby assumed Belgian and thus
European citizenship.
• The question arose whether the parents’ deportation would violate their children’s fundamental
status as European citizens.
• The Court held that the Belgian measures violated the Treaties, as they would have the effect
of depriving citizens of the Union of the genuine enjoyment of the substance of the rights
conferred by virtue of their status of citizens of the Union.
This was different in the McCarthy case where the Court decided that deporting the third-country
husband of an EU citizen would not be an unjustifiable limitation on the right to family life, where it does
not force the EU citizen herself to leave the EU.
Article 21 TFEU covers EU citizenship and gives the right to all EU citizens to reside and move freely within
the territory of the Member States.
• The free movement of persons has an economic rationale behind it
o The idea was to assist people wishing to work in another Member State
• Therefore, the concept was initially confined to economically active persons (i.e. persons that
add value to the economy, otherwise called market citizens or economic migrants).
• Treaty amendments later added rules on EU citizenship. With the introduction of the Union
citizenship, the EU has partially cut the economic link that connected persons with EU free
movement rights.
• Now, every EU citizen has the right to reside and move freely within the territory of the Member
States (Article 21(1) TFEU).
European Citizenship: A third source of movement rights (besides workers and the freedom of
establishment)
Does Article 21 TFEU have direct effect?
Baumbast-case
• The Court answered this by clarifying four things:
1. Art. 21 TFEU indeed has direct effect (paras. 78-86). We can also derive from the case
that the rights under art. 21 TFEU are subjected to limitations and conditions
2. That they are linked to the EU citizenship and not to a past or present economic position
(i.e. that a national of an EU Member State automatically enjoys free movement rights as
citizenship rights);
3. That they are residual provisions, meaning that they are only applicable when one of the
specialized movement regimes (e.g. the Workers’ Regulation when one is worker) is
inapplicable
4. And that any limitations to these rights are subject to judicial review and must be
proportionate, otherwise they will be in violation of Article 21 TFEU
Example disproportionate restriction: Prinz-case
• Facts: The case concerned a German national who lived with her family for 10 years in Tunisia
where her father was employed by a German company. On her return to Germany, Ms. Prinz
finished her studies in Frankfurt (Germany) in 2007. She then started her studies at the Erasmus
University in Rotterdam (Netherlands) in 2009. For this, she had received an educational grant
from the Region Hannover (Germany). However, the grant application for the academic year
2010/2011 was rejected on the ground that since she did not fulfill the condition of residence of
an uninterrupted residence of three years in Germany, she could not claim an education grant
for an unlimited period. Ms. Prinz would only be entitled to a grant for a period of one year.
• The CJEU however held that uninterrupted residence of three years constitutes a restriction on
the right to freedom of movement and residence enjoyed by EU citizens pursuant to Article 21
2
Learning objectives:
1. What are the rights of EU citizens (including the justifications/limitations)?
a. Under the TFEU
b. Under the Citizenship Rights Directive (CRD)
c. Under the Charter of Fundamental Rights
2. Solve the problem: can a residence permit of same-sex spouse of an EU citizen be rejected on the basis of
national identity? (niet uitgewerkt)
Literature:
- E-lesson on EU citizenship
- E-lesson on Fundamental Rights in the EU
- Webcast on Basic Notions Part 1
- Webcast on Basic Notions Part 2
Case law:
Zhu and Chen (C-200/02; Only Rule) Coman-case (C-673/16)
Zambrano-case (C-34/09) Trojani-case (C-456/02)
McCarthy-case (C-434/09; Only Rule) Gebhard-case (C-55/94)
Baumbast-case (C-413/99) Dano-case (C-333/13; Only Rule)
Prinz-case (C-523/11 and 585/11) Wachauf (5/88; Only Rule)
Grzelzcyk (C-184/99; Only rule) ERT (C-260/89; Only Rule)
O. and B.-case (C-456/12; Only Rule) Schmidberger (C-112/00; Only Rule)
Digital Rights Ireland-case (C-293/12; Only Rule)
1) WHAT ARE THE RIGHTS OF EU CITIZENS?
The free movement of persons is one of the four free movements the EU adopted to establish the
internal market of the EU.
• The free movement of persons entails that EU citizens and their family members have under
certain circumstances travel and residing rights in the EU.
a. Under the TFEU
EU citizenship
The introduction of EU citizenship in 1992 with the Maastricht Treaty has made free movement law
concerning persons more complex.
• Article 20 TFEU states that ‘Every person holding the nationality of a Member State shall be a
citizen of the Union’ meaning that every person with the nationality of an EU Member State also
has EU citizenship.
• EU citizenship is therefore additional to, and conditional on, the national citizenship of an EU
Member State.
Zhu and Chen
• The CJEU ruled that a third-country national may, on the basis of Article 20 TFEU, have a derived
right to residence as long as a minor child that is an EU citizen of another Member State
depended on them as a caretaker provided, they had sickness insurance and sufficient
resources.
Something similar was decided in the Zambrano case (paras. 42-44)
1
, • Two Columbian parents challenged the rejection of their Belgian residency permits on the
ground that their children had been born in Belgium and thereby assumed Belgian and thus
European citizenship.
• The question arose whether the parents’ deportation would violate their children’s fundamental
status as European citizens.
• The Court held that the Belgian measures violated the Treaties, as they would have the effect
of depriving citizens of the Union of the genuine enjoyment of the substance of the rights
conferred by virtue of their status of citizens of the Union.
This was different in the McCarthy case where the Court decided that deporting the third-country
husband of an EU citizen would not be an unjustifiable limitation on the right to family life, where it does
not force the EU citizen herself to leave the EU.
Article 21 TFEU covers EU citizenship and gives the right to all EU citizens to reside and move freely within
the territory of the Member States.
• The free movement of persons has an economic rationale behind it
o The idea was to assist people wishing to work in another Member State
• Therefore, the concept was initially confined to economically active persons (i.e. persons that
add value to the economy, otherwise called market citizens or economic migrants).
• Treaty amendments later added rules on EU citizenship. With the introduction of the Union
citizenship, the EU has partially cut the economic link that connected persons with EU free
movement rights.
• Now, every EU citizen has the right to reside and move freely within the territory of the Member
States (Article 21(1) TFEU).
European Citizenship: A third source of movement rights (besides workers and the freedom of
establishment)
Does Article 21 TFEU have direct effect?
Baumbast-case
• The Court answered this by clarifying four things:
1. Art. 21 TFEU indeed has direct effect (paras. 78-86). We can also derive from the case
that the rights under art. 21 TFEU are subjected to limitations and conditions
2. That they are linked to the EU citizenship and not to a past or present economic position
(i.e. that a national of an EU Member State automatically enjoys free movement rights as
citizenship rights);
3. That they are residual provisions, meaning that they are only applicable when one of the
specialized movement regimes (e.g. the Workers’ Regulation when one is worker) is
inapplicable
4. And that any limitations to these rights are subject to judicial review and must be
proportionate, otherwise they will be in violation of Article 21 TFEU
Example disproportionate restriction: Prinz-case
• Facts: The case concerned a German national who lived with her family for 10 years in Tunisia
where her father was employed by a German company. On her return to Germany, Ms. Prinz
finished her studies in Frankfurt (Germany) in 2007. She then started her studies at the Erasmus
University in Rotterdam (Netherlands) in 2009. For this, she had received an educational grant
from the Region Hannover (Germany). However, the grant application for the academic year
2010/2011 was rejected on the ground that since she did not fulfill the condition of residence of
an uninterrupted residence of three years in Germany, she could not claim an education grant
for an unlimited period. Ms. Prinz would only be entitled to a grant for a period of one year.
• The CJEU however held that uninterrupted residence of three years constitutes a restriction on
the right to freedom of movement and residence enjoyed by EU citizens pursuant to Article 21
2
