EU CITIZENSHIP Hubert Smekal
Hubert.Smekal@mu.ie
AIMS
Master the basics of concept of the EU citizenship
Became familiar with the main streams of CJEU case law on EU citizenship
Understand the problems linked to CJEU case law
Practice reading CJEU case law
AG COLLINS –
OPINION C-181/23
COMMISSION V
MALTA
Photo: Guardian
IMAGINE YOU WERE A LEGAL COUNSEL TO
Author: emDee Author: Mika500
EU CITIZENSHIP BASICS
CONCEPTUAL UNDERPINNINGS
Identity, belonginess
Exclusive status?
Creating citizens
Habermas – constitutional patriotism
CONCEPTUAL UNDERPINNINGS
Three views of co-existing multiple demoi (decoupling of nationality from citizenship
– membership in civil and political rather than ethno-cultural terms, i.e. the Union
composed of citizens not sharing the same nationality (Weiler))
1) Concentric circles
2) Simultaneous belonging
3) Variable geometry: MS nationality and EU citizenship totally interdependent
HISTORICAL OVERVIEW
1970s: a European identity needed to deepen integration
Mainly European Parliament activities
Maastricht: especially Spain pushed for the inclusion of citizenship
Denmark opt-out (Edinburgh Agreement 1992)
‘Citizenship
The provisions of Part Two of the Treaty establishing the European Community relating to citizenship
of the Union give nationals of the Member States additional rights and protection as specified in
that Part. They do not in any way take the place of national citizenship. The question whether an
individual possesses the nationality of a Member State will be settled solely by reference to the
national law of the Member State concerned.’
(See Amsterdam: ‘Citizenship of the Union shall complement and not replace national citizenship.’)
(Denmark back)
DETERMINED BY MS NATIONALITY
Article 20
(ex Article 17 TEC)
1. Citizenship of the Union is hereby established. Every person holding the
nationality of a Member State shall be a citizen of the Union. Citizenship of the
Union shall be additional to and not replace national citizenship.
EU CITIZENSHIP RIGHTS (ART. 20 ET SEQ.)
EU CITIZENSHIP AS A FUNDAMENTAL STATUS
CJEU: Grzelczyk
DETERMINED BY MS NATIONALITY
Article 20
(ex Article 17 TEC)
1. Citizenship of the Union is hereby established. Every person holding the
nationality of a Member State shall be a citizen of the Union. Citizenship of the
Union shall be additional to and not replace national citizenship.
DETERMINED BY MS NATIONALITY
C-135/08 Rottman
 Gave up Austrian citizenship to take up German citizenship. Fraud
discovered, stripped of German citizenship, left Mr Rottman stateless.
 CJEU - ‘due regard’ to EU law in situations that it applies to.
 Could justify on grounds of solidarity and good faith, but must be compatible
with proportionality.
DETERMINED BY MS NATIONALITY
C-135/08 Rottman
42 It is clear that the situation of a citizen of the Union who, like the applicant in the
main proceedings, is faced with a decision withdrawing his naturalisation, adopted by the
authorities of one Member State, and placing him, after he has lost the nationality of
another Member State that he originally possessed, in a position capable of causing him
to lose the status conferred by Article 17 EC and the rights attaching thereto falls, by
reason of its nature and its consequences, within the ambit of European Union law. (+
proportionality test by national courts)
C/118-20 JY V WIENER LANDESREGIERUNG
1. The situation of a person who, having the nationality of one Member State only,
renounces that nationality and loses, as a result, his or her status of citizen of the
Union, with a view to obtaining the nationality of another Member State, following the
assurance given by the authorities of the latter Member State that he or she will be
granted that nationality, falls, by reason of its nature and its consequences, within the
scope of EU law where that assurance is revoked with the effect of preventing that
person from recovering the status of citizen of the Union.
2. Article 20 TFEU must be interpreted as meaning that the competent national
authorities and, as the case may be, the national courts of the host Member State are
required to ascertain whether the decision to revoke the assurance as to the grant of
the nationality of that Member State, which makes the loss of the status of citizen of
the Union permanent for the person concerned, is compatible with the principle of
proportionality in the light of the consequences it entails for that person’s situation.
That requirement of compatibility with the principle of proportionality is not satisfied
where such a decision is based on administrative traffic offences which, under the
applicable provisions of national law, give rise to a mere pecuniary penalty.
LOSING EU CITIZENSHIP
Opinion AG Collins C-673/20 EP v Préfet du Gers and Institut national de la statistique
et des études économiques (24 Feb 2022)
23. Given the lucidity of those provisions, it is no surprise that the case-law of the
Court, notably the judgments in Rottmann, (4) in Tjebbes (5) and, most recently,
in Wiener Landesregierung, (6) explicitly recognises that Member States retain the
power to determine who is a national and, in consequence, who is a Union citizen.
That division of competence is unaltered by the case-law of the Court, to the effect
that, in situations covered by Union law, Member States must have due regard to
Union law when they exercise powers such as those governing the acquisition and
the loss of nationality. (7)
LOSING EU CITIZENSHIP
Opinion AG Collins C-673/20 EP v Préfet du Gers and Institut national de la statistique et des études économiques (24 Feb
2022)
42. To my mind, EP cannot rely upon the judgments in Rottmann (36) and in Tjebbes (37) by asserting that, had account
been taken of her personal circumstances, such an assessment might have led to a different outcome in her case. The
principle of proportionality requires that a competent authority balance conflicting rights and norms before taking a
decision affecting an individual. The circumstances of this case require no balancing by the deciding authority that would
take account of EP’s personal circumstances. As a direct result of the sovereign decision of the United Kingdom to withdraw
from the European Union, a person in EP’s position lost the right to vote and to stand as a candidate in municipal elections in
France, her Member State of residence. It is that sovereign decision, not that of a Member State or any authority thereof,
that caused EP to lose the benefit of those rights. In contrast to the situations that arose for consideration in both of the
judgments in Rottmann (38) and in Tjebbes, (39) neither the decision-maker nor the referring court had or have any power to
accede to EP’s demands. No consideration of EP’s individual circumstances could have led to another outcome consonant
with Union law. For the same reasons, the recent judgment of the Court in Wiener Landesregierung (40) is of no avail to EP.
43. I would add that, in so far as EP seeks to assimilate her position to that of stateless persons, which formed part of
the background to the judgments in Rottmann (41) and in Wiener Landesregierung, (42) it may be observed that she is a
British national. She can address any issue that she may have concerning her status or rights as a British national to the
United Kingdom authorities. France or the European Union are incapable of playing any role in such a dispute.
LOSING EU CITIZENSHIP
Opinion AG Collins C-673/20 EP v Préfet du Gers and Institut national de la
statistique et des études économiques (24 Feb 2022)
55. For the reasons set out in detail in points 19 to 52 above, by virtue of the United Kingdom’s decision to
invoke the process under Article 50 TEU and of the Withdrawal Agreement made between the European Union
and the United Kingdom as a consequence thereof, British nationals ceased to be nationals of a Member State
of the European Union. They accordingly ceased to be Union citizens. Any legal consequences arising from EP’s
residence outside of the United Kingdom for the exercise of voting rights in that State’s elections are a matter
between her and the United Kingdom, a third State, and thus fall outside of the jurisdiction of this Court.
56. Accordingly, I propose that the Court respond to the referring court’s first question that Article 50 TEU
and the Withdrawal Agreement have the effect of terminating, as of midnight (CET) on 31 January 2020, the
Union citizenship of British nationals, including those who had, before the end of the transition period, exercised
their rights to freedom of movement and to settle freely in the territory of another Member State.
EU CITIZENSHIP RIGHTS
EUROPEAN CITIZENS' INITIATIVE (LISBON
TREATY)
11(4) TEU
4. Not less than one million citizens who are nationals of a significant number of
Member States may take the initiative of inviting the European Commission, within the
framework of its powers, to submit any appropriate proposal on matters where
citizens consider that a legal act of the Union is required for the purpose of
implementing the Treaties.
See Ecomm website
AMBITIOUS PATHS NOT TRAVELLED
Opinion of AG Jacobs C-168/91 Konstantinidis
"Christos Konstantinidis" or "Hrestos Konstantinides"?
AMBITIOUS PATHS NOT TRAVELLED
C-168/91 KONSTANTINIDIS
RIGHT TO MOVE AND RESIDE (ART. 21 TFEU)
Article 21
1. Every citizen of the Union shall have the right to move and reside freely within the
territory of the Member States, subject to the limitations and conditions laid down in the
Treaties and by the measures adopted to give them effect.
C-413/99 Baumbast (breaking the FM and economic activity link)
ART 21(1) TFEU RIGHTS (BASED ON CJEU CASE LAW)
Right to leave the home state
The initial right of entry
The right of residence
The right to enjoy social advantages without discrimination when lawfully resident in a
host state
The right to regular review of decisions
FAMOUS EU CITIZENSHIP JUDGMENTS
RIGHT TO MOVE AND RESIDE + NON-DISCRIMINATION
TFEU LEGAL BASE
PART TWO NON-DISCRIMINATION AND CITIZENSHIP OF THE
UNION
Article 18 (ex Article 12 TEC)
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.
Article 20 (ex Article 17 TEC)
1. Citizenship of the Union is hereby established. Every person holding the nationality of a
Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to
and not replace national citizenship.
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;
(…)
Barnard
EARLY CITIZENSHIP CASE LAW
DIRECT EFFECT OF ART 21
EARLY CITIZENSHIP CASE LAW
C-85/96 Martinez Sala
 A Spanish mother living in Germany, but didn’t possess residence permit – hence, refused child
allowance
 German govt: yes, it is discrimination (Germans do not need to produce a residence permit in order to
receive a child allowance), but the case does not fall within the scope of EU law because the person is
not a worker
 Martinez Sala: (After Maastricht) – I am an EU citizen, thus the case falls within the scope of the EU
law. And therefore the principle of non-discrimination applies.
EARLY CITIZENSHIP CASE LAW
C-184/99 Grzelczyk
 French student applied for a student grant in Belgium, refused because not Belgian.
 Only bar to grant was nationality, treatment prohibited by Art 18.
 Union citizenship as the fundamental status, ‘(…) the same treatment in law irrespective of their
nationality, subject to such exceptions as are expressly provided for’
 Lawfully resident EU citizens can rely on Art 18 against all treatment falling within material scope of
the Treaty.
 ‘The fact that a Union citizen pursues university studies in a Member State other than the State of which
he is a national cannot, of itself, deprive him of the possibility of relying on the prohibition of all
discrimination on grounds of nationality’.
EARLY CITIZENSHIP CASE LAW
C-413/99 Baumbast
A German married with a Colombian wife and two children.
Baumbast worked in the UK and stayed there with his family for three years
Then, he worked in Asia and Africa. His family stayed in the UK.
He financially supported the family, travelled to Germany to get German health
insurance
The Home Office refused to renew his family's permits.
The UK court: Baumbast neither a worker nor a person covered by the Citizenship
Directive 2004/38. Sickness insurance did not cover emergency treatment in the UK.
Did he have an independent right of residence as an EU citizen under Art 21 TFEU?
C-523/11 Prinz
 German student lived with family in Tunisia for a decade, returned to Germany to undertake last two
years of school. Then took up a university place in Netherlands, supported by German grant. Applied
to extend grant, but refused on basis that needed minimum of three years continuous residence in
Germany.
 CJEU – disproportionate restriction. Although applied without distinction, condition of uninterrupted
residence was a restriction on right to movement of citizens that was ‘likely to dissuade nationals …
from exercising their right to freedom of movement and residence in another Member State, given the
impact that exercising that freedom is likely to have on the right to the education or training grant’.
RIGHT TO MOVE AND (OR?) RESIDE
BRINGING TCN FAMILY MEMBERS INTO YOUR
HOME STATE IF YOU DON’T MOVE?
If denied this, surely you would be in a worse position overall compared to an EU
migrant living in your state, who would be allowed to bring their family to live with
them. Conflicts with the ideals of EU citizenship?
But CJEU has legally distinguished this situation – it would be wholly internal, and thus
fall outside the scope of the Treaty.
But the CJEU still wants to see the citizenship provisions used to facilitate better lives
for all EU citizens – so finds creative cross border connections in these situations.
WHAT ABOUT A WHOLLY INTERNAL SITUATION?
C-34/09 Ruiz Zambrano
 Columbians living in Belgium – children gained Belgian citizenship.
 Parents threatened with deportation to South America. Claimed that children would be forced to go
with them, this would violate their citizenship rights.
 Although the children had never moved, and had no other cross border connections, if the parents were
deported then this would cause the children to have to leave the EU, thus violating the substance of
their citizenship rights.
 CJEU - substance of EU citizenship includes a right to live in the EU.
 Therefore, parents must be able to derive a right to reside from their children.
 Deprivation effect
C-34/09 RUIZ ZAMBRANO
Article 20 TFEU is to be interpreted as meaning that it precludes a
Member State from refusing a third country national upon whom his
minor children, who are European Union citizens, are dependent, a
right of residence in the Member State of residence and
nationality of those children, and from refusing to grant a work
permit to that third country national, in so far as such decisions
deprive those children of the genuine enjoyment of the substance
of the rights attaching to the status of European Union citizen.
DEPRIVATION OR IMPEDING EFFECT?
C-434/09 McCarthy
A national of both the UK and Ireland, has never used free movement
After marrying a Jamaican man, used her Irish passport to apply for an UK residence
permit. Her husband applied as a spouse of an EU citizen.
DEPRIVATION OR IMPEDING EFFECT?
C-434/09 Dereci
A Turkish national residing illegally in Austria, with his
Austrian kids
Kids are minors, never exercised right to free movement
What about right to family life?
ANY FURTHER CATEGORIES OF FAMILY MEMBER?
CREATIVE CROSS BORDER CONNECTIONS?
Chen
 Mrs Chen living and working for a Chinese firm in Wales, with her partner, as temporary migrants.
 Had child in Northern Ireland – gained Irish citizenship.
 Mrs Chen claimed that her baby’s status as an EU citizen entitled her to reside permanently in the UK
as the carer of the child.
 CJEU - ‘a young child can take advantage of the rights of free movement and residence guaranteed
by EU law’ just as much as an adult.
 Refusing to allow the parent, whatever their nationality, who is the ‘carer of a child’ to whom EU law
rights are granted, to reside with that child in a host MS would ‘deprive the child’s right of residence of
any useful effect’,
 ‘Enjoyment by a young child of a right of residence necessarily implies that the child is entitled to be
accompanied by the person who is his or her primary carer and accordingly that the carer must be in a
position to reside with the child in the host Member State’.
PROBLEM
Reverse discrimination
SOMETHING INTERESTING TO FINISH WITH
EU CITIZENSHIP AND NAMES
A taster:
C-186/91 Konstantinidis (Christos Konstantinidis OR Hréstos
Kónstantinidés?)
C-148/02 Garcia Avello (OR Garcia Weber?)
C-208/09 Ilonka Sayn-Wittgenstein (OR Fürstin von Sayn-
Wittgenstein?)