Entitlements Connected to the Status
What holds EU citizenship rights together is the principle of non-discrimination on grounds of nationality (Art. 18 TFEU). The entitlements connected to EU citizenship share the assumption that the nationality a person holds is irrelevant for the purpose of enjoying the rights attributed by the Union. In this sense, European citizens are equal before EU law in their citizens’ rights.
Over the years, we have witnessed an extension, or development, of rights in a two-fold way. Since its inception, the EU citizen has been subjected to a process of extension of both the number of rights and of the personal scope of the rights associated with it.
In the original Maastricht Treaty from 1992, the entitlements associated with European citizenship consisted of the following:
• The right to free movement and residence throughout the EU (and the right to work)
The treatises that followed have added entitlements: The Amsterdam Treaty from 1997 added the right to address the EU in any official language and to receive a reply in that same language (Art. 24). This is a right that de facto will not be challenged by Brexit since other member states use English as official language. The Nice Charter, or Charter of Fundamental Rights of the European Union, from 2000 added the right to access documents from the European Parliament, the Council and the Commission (Art. 15) and the right to good administration (Art. 41). This Charter, even though authoritative, was not recognised as binding law until it was incorporated into the Treaty of Lisbon in 2009.
The major innovation that the Treaty of Lisbon added to the list of entitlements associated with Union citizenship was, however, another: The European Citizens’ Initiative (Art. 11 TEU & Art. 24 TFEU), according to which EU citizens, representative of a cross-national opinion, present thus in several member states, can suggest to the Commission that it activate its legislative function on a particular matter. To activate a citizens’ initiative, it is necessary that one million EU citizens, coming from at least seven member states, sign the initiative. Once it is activated, the Commission may decide to propose legislation as a result of it.
Entitlements have not only become more numerous, but they have also come to be interpreted as covering a higher number of persons and situations. This is largely due to the activity of the European Court of Justice, which has often extended the personal scope of entitlements. Generally speaking, the case-law has often taken on a kind of avant-gardism in pushing EU citizenship beyond the merely economically motivated concept.15 Many are nonetheless unimpressed by its success in doing so. Without any claim to exhaustiveness, key rulings in which the Luxembourg Court played an active role include the following.
In the ruling Rudy Grzelczyk (C-184/99), the court declared that ‘EU citizenship is destined to be the fundamental status of nationals of the Member States.’ Non-economically active citizens had restricted rights to residence because of secondary law. In 1999 the ruling Baumbast (C-413/99) established that residence rights derive directly from the EU Treaty. Secondary legislation can limit this right but only in observance of the principle of proportionality. In the ruling Zhu & Chen (Case C-20/02), it was found that primary caretakers of minor EU citizens have a residence right: more precisely, it was found that denying residence to the third country national mother of a minor EU citizen ‘would deprive the child’s right of residence of any useful effect. ’ In Ruiz Zambrano (Case C-34/09) the Court supplemented the protection of the status of Union citizenship with the requirement that the substance of rights attached to the status be enjoyed:
Article 20 TFEU precludes national measures which 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 as citizens of the Union. A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, [... ] has such an effect.
The court resorted to the ‘substance’ of European citizenship to ground the entitlement of a third country national to reside and work in Belgium as the father care-taker of two children who had been born nationals of Belgium in order to avoid statelessness that would have followed from being born by Colombian nationals who did not reside in Colombia (Colombia being a country applying ius soli quite strictly). However, the genuine substance doctrine has a quite limited ratio decidendi and is not likely to be applied broadly. Recently, the Court of Justice seems to have taken a more restrictive view: in Dano (Case C-333/13), through a restrictive interpretation of existing legislation, so-called benefit tourism was ruled out, by providing that ‘persons exercising their right of residence should not, however, become an unreasonable burden on the social assistance system of the host Member State.’
A highly significant ruling for the arguments made in the following chapters is Janko Rottman v. Freistaat Bayern (Case C-315/08), illustrated in Chapter 6. Here it suffices to say that the case regarded loss of EU citizenship. The Court of Justice concluded that ‘a citizen of the Union who is faced with a decision withdrawing his [citizenship], and placing him (...) in a position capable of causing him to lose the status conferred by Article 17 EC [Article 20 TFEU] and the rights attaching thereto falls, by reason ofits nature and its consequences, within the ambit of European Union law.’16 Since Rottman, member states are subjected to the general principles of European law in matters such as loss of Union citizenship. This means that member states are not unbounded in denationalising or imposing loss of status civitatis. This, to some, is a first crack in the idea that nationality law belongs to the field of ‘core sovereignty’ to use the phrasing of the German constitutional Court.
Some of the rights we are dealing with here were recognised before being proclaimed as rights associated with Union citizenship. For instance, the right to petition was first introduced into the European Coal and Steel Community in 1953. With the exception of electoral rights, the rights associated with Union citizenship are to a considerable extent a systematisation of already recognised entitlements. This is true for freedom of movement, the right of residence and the right of petition.
Do notice also that non-discrimination on the grounds of nationality applies independently of residence on Union territory. This means that, given that Article 20 TFEU does not make any reference to residence, the personal scope of European citizenship cannot be limited with reference to residence, as shown in Eman & Sevinger}7 This has some importance here because it implies that Brexit cannot affect non-territorial rights of EU citizens as such, but only those rights the exercise of which is strictly territorial, most notably protections linked to freedom of movement.
The entitlements listed above are the major rights associated with European citizenship in the Treaties. British nationals, having no other member state nationality to rely on, and who are residing in the UK, would effectively be deprived of these rights in a non-negotiated Brexit scenario. They would lose rights associated with freedom of movement and residence, voting rights for the elections of the European Parliament, consular protection by another member state, right to adhere to European citizens’ initiatives. Jurisprudentially developed protections, such as the right to export benefits and entitlements tied to nationality to a host member state18 and the right not to be burdened, or discriminated for having exercised the freedom to move,19 are entitlements that would also be lost together with the status of Union citizen.
British citizens, without a second member state nationality, who reside in another member state, will also lose these rights, but they will not - differently from British citizens in the UK - lose rights associated with EU citizenship whose personal scope is over-inclusive in respect of having the nationality in a member state. Some rights associated with European citizenship are recognised to all residents, not to all having the nationality of a member state. Entitlements that have this characteristic include the right to petition Parliament and the Ombudsman, the right to access documents from European Parliament, Council and Commission and the right to good administration. UK nationals in the Union would retain these rights also as third country nationals. Moreover, they will lose voting rights in local elections in many member states, but not all since some countries allow non-national franchise.
Special mention needs to be made of the right to freedom of movement. It is often cast as the core of the EU citizens’ rights or the most significant right. It is a transnational right, linked to the crossing of borders. While other rights connected to EU citizenship can be exercised in loco by static EU citizens, free movement presupposes the crossing of borders by mobile EU citizens. It immediately follows from the so-called four freedoms. When it was framed as a right of the European citizen at Maastricht, the innovative character laid in the extension of the personal scope of a right that already existed. In fact, the EEC Treaty attributed the right of free movement only to certain categories of workers; more specifically, to employees (Art. 39-42 TEC), self-employed (Art. 43-48 TEC) and service providers (Art. 49-55 TEC). In the Nineties, the personal scope was extended to include also potential workers, such as students, and those benefiting from services, such as pensioners. A person’s economic ability provided the reason for the limitation of the personal scope of the right to free movement. Nevertheless, free movement significantly extended over the years, first by effect of the case-law, and then by means of legislation. This change relegated economic activities to a secondary role in the interpretation of Community law and consequently the number of categories admitted to freedom of movement increased.
Today, freedom of movement and residence is not an entitlement strictly linked to Union citizenship. Its mtio personae is both over- and underinclusive. It is under-inclusive because it is not recognised unconditionally to Union citizens, since there are Union citizens that may not exercise the rights connected with it.20 It is over-inclusive because the personal scope of the freedom of movement includes individuals who do not have
EU citizenship. In fact, a number of third country nationals are covered by the acquis in relation to freedom of movement: Either because their stay is short;21 or because of their personal situation or qualification (e.g. blue card, intracorporate transfers, long-term residents, researchers, students). It is therefore not entirely correct to call it an EU citizenship right, even though it is unquestionably an entitlement much appreciated by mobile Europeans.
Regardless of whether the rights of Union citizenship are to be understood as the legal entitlements the personal scope of which coincides with those having EU citizenship or if we are to take the label in a broader meaning, the point remains that these entitlements include rights of a very different nature (including liberties, powers, protections etc.) and type (civil, political, social, etc.); having different grounds (systematisation, mutual recognition, federal vocation, etc.) and being different in character (transnational, supranational, etc.) and scope (all nationals of member states, all residents, all having health insurance and not being threat to public safety, etc.). The political bottom-line of this set of entitlements is not different from any other set of rights. As Maas stressed a decade ago: ‘as long as the resulting supranational citizenship continues to be based on a popular bargain among member states rather than enjoying widespread popular support, however, the rights of the common citizenship remain endangered in the same way that citizenship rights everywhere remain contingent upon continued support from leaders and publics’ (Maas 2007, p. 6).