EU Citizenship at the Edges of Freedom of Movement

Katarina Hyltén-Cavallius

• Publisher: Hart Publishing
• Year: 2020
• Print ISBN: 9781509945498
• eBook ISBN: 9781509937264
• Edition: 1
• Topic: Law
• Subtopic: Immigration Law
• Index: Law

This book critically analyses the case law on EU citizenship in relation to its personal free movement rights, its status on the primary law level, and EU fundamental rights protection. The book exposes the legal space where EU citizenship variably loses or gains legal relevance, and questions how this space can be overcome. Through a thorough analysis of the core personal free movement rights of residence, family reunification, equal treatment and equal political participation, the book demonstrates how the development of the case law of the Court of Justice of the European Union has generated a two-tiered legal concept of EU citizenship. Depending on the nature of the legal claim at hand, EU citizenship may appear as a poor legal personhood for exercising free movement rights; sometimes pushing the individual who is in a factual cross-border situation out of the scope of Union law. Contrastingly, in other strands of the jurisprudence, we see EU citizenship and its primary law levelled-rights stretch the jurisdictional scope of Union law, triggering the EU's Charter of Fundamental Rights for review of the individual case. The book enhances the understanding of the legal concept of EU citizenship in Union law and contributes to the debate on the future development of EU citizenship, its relationship to the Charter, and the strength of its legal position for the person who exercises freedom of movement.

1

Introduction

I.EU Citizenship: The Legal Space Between Status and Rights

The recent decade has known a volatile judicial development of the legal concept of EU citizenship and its place in free movement law, and in primary Union law more broadly. As this book puts forward, in the judgments of the Court of Justice of the European Union (the Court) EU citizenship sometimes functions as a fundamental status of the individual, and other times merely designates a residual personal category with lesser or no legal protection under Union law.¹ Depending on the nature of the legal claim at hand, the status of EU citizenship variably loses or gains relevance as a legal concept, thereby affecting the scope of application of Union law, and arbitrarily disadvantaging some individuals over others of its protection. This way, EU citizenship has developed into a two-tiered legal concept, reduced to a poor legal status in some cases, while in other cases upheld and given tangible legal effects, and triggering the scope of EU fundamental rights review.

This book exposes and problematises the creation in the Court’s jurisprudence of an expanding legal space between two contrasting tiers of EU citizenship. This legal space is marked by the uncertainty of how and whether the status of EU citizenship will generate rights in a given case.

A.EU Citizenship in the 2010s: Hardships and Reinvention

The year 2013 marked the twentieth anniversary of EU citizenship as a codified legal concept in EU primary law.² The year was proclaimed by the European Parliament and the Council to be the European Year of Citizens.³ The aim was that 2013 should be filled with initiatives by the EU institutions to raise awareness and knowledge of the rights and duties attached to the status of EU citizenship as given in the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU).⁴ Among the highlighted aspects were the right to move and reside freely within the Union; the right to equal treatment regardless of nationality; and the right to vote in municipal and European elections in a host Member State on equal terms as resident nationals,⁵ these personal free movement rights constituting the cherished core of EU citizenship.

As the legal concept of EU citizenship approaches its thirtieth year, legal scholars have in recent years been debating whether the legal significance of its status, as a basis for the enjoyment of personal free movement rights, still subsists.⁶ The literature reflects views of EU citizenship as having gone from a constitutionalising influence on free movement of persons law,⁷ to entering a reactionary phase,⁸ in turn leading to a phase in the 2010s where its status was even judicially deconstructed.⁹ This book adds to these analyses, and puts forward an understanding of the developing concept of EU citizenship as a two-tiered concept. While it has not been deconstructed, it is argued that there is a conflict between simultaneously stretching the concept in two opposite directions. On the one hand, EU citizenship has steadily declined as a legal tool for bringing about equal treatment, and thereby placed vulnerable Union citizens who are at the edges of what is considered genuine use of freedom of movement, in uncertain legal spaces beyond review under the EU Charter of Fundamental Rights (the Charter). In other cases, it has extended the scope of Union law in the name of protecting the existential effet utile of the status of EU citizenship, making EU fundamental rights protection applicable in otherwise purely internal situations. A main issue resulting from this legal development is how to overcome the ensuing legal space between falling out of the edges of free movement rights, as defined mostly in secondary law, to coming within the protective scope of the status of EU citizenship and the fundamental freedoms at the primary law level.

B.Core Analytical Findings of the Book

The book’s main analytical finding is that there is a gap between the Court’s interpretation of the meaning of EU citizenship in relation to legal claims that involve the individual’s own ability to make genuine use of freedom of movement, compared with legal claims concerning Member States’ restrictive measures on freedom of movement or deprivation of the ‘genuine enjoyment’ of the rights attached to the status of EU citizenship. The discrepancy between these two tiers of EU citizenship is especially notable in how the Court treats the issue of the applicability of the Charter, and thus activates or rejects EU fundamental rights review. From the point of view of legal certainty, it is confusing that the Court has sought to affirm the limitations to non-economic personal freedom of movement by emphasising the efforts of integration that the individual Union citizen and family members need to make in a host Member State, while inconsistently expanding and withdrawing the scope of EU fundamental rights – all under the pamphlet of EU citizenship.

The conflicting aims of the two tiers of EU citizenship are exposed by the book’s comparison of the case law on the personal free movement rights of residence, and family reunification (chapter three and chapter four); equal treatment (chapter five); and equal political participation (chapter six). These chapters lead to the conclusion that, on the one hand, the Court sanctions the Member States’ differential treatment between their nationals and non-nationals based on economic status or level of integration as defined by Directive 2004/38, without a review under primary law and EU fundamental rights protection.¹⁰ This creates a new kind of purely internal situations in host Member States, when a non-national Union citizen or family member falls outside the secondary law norms of Directive 2004/38 that apply to their case, but cannot rely on a review of their case under the status of EU citizenship and its rights at the primary law level, nor EU fundamental rights protection.¹¹

On the other hand, the Court relies on the rationale of effet utile of the fundamental freedoms and the status of EU citizenship at the primary law level to extend the jurisdictional scope of Union law, and thereby, the applicability of the Charter.¹² The latter development resulting in a substantiation of some EU citizenship rights at the primary law level, such as the right to vote in European Parliament elections in Article 14(3) TEU; the right to reside in the Union under Article 20 TFEU; and the right to freedom of movement in Article 21 TFEU, letting legal claims under these provisions ignite the applicability of Charter review (chapter seven). In these types of cases, the legal strength of EU citizenship as a primary law concept, with a direct linkage to the Charter, has proven to really emerge.¹³

C.Purpose of the Book

The general purpose of the book is to be an addition to the legal research field and debate on the development of EU citizenship. The specific aim is to provide a critical analysis that exposes and questions the creation of a widening legal space between the meaning of EU citizenship with regard to conditions and limits on the exercise of personal free movement rights, and the more existential protection at the primary law level of the status of EU citizenship and the fundamental freedoms, and the resulting legal uncertainty regarding the applicability of EU fundamental rights protection.

By elucidating the legal concept of EU citizenship in relation to its personal free movement rights, and the jurisdictional scope of the Charter’s fundamental rights protection, the book contributes to a greater understanding of the development, and potential, of the concept of EU citizenship in Union law.

II.Method and Delimitations

This work is an analysis of the legal concept of EU citizenship, and how it is affected by the legal norms within EU law that either limit its personal free movement rights, or ensure the effectiveness of the status of EU citizenship itself. The analysis is therefore restricted to an expository and evaluative doctrinal reading of how personal free movement rights, and the status of EU citizenship, are defined and developed within the EU legal system. The book does not include analyses of non-legal factors of political, social or economic significance, which may affect EU citizenship and the conditions for the exercise of freedom of movement.

The book’s focus is restricted to three core free movement rights attached to the status of EU citizenship, all of which are actualised in a free movement context. The right to reside freely in a host Member State of Article 21 TFEU (encompassing a right to reside together with accompanying family members); the right to equal treatment (non-discrimination on grounds of nationality) of Article 18 TFEU, as inherent in the exercise of personal freedom of movement; and the right to political voting and candidacy on equal terms with nationals in a host Member State at the municipal and European level of Article 22 TFEU.

Other Treaty-based EU citizenship rights are excluded from the scope of the book as their enjoyment neither depends on an individual Union citizen’s exercise of freedom of movement to a host Member State, nor residence within the Union’s territory. The book’s analysis therefore excludes those EU citizenship rights that are realised in the direct relationship between the individual and the EU institutions, such as the rights to petition to the European Parliament, to participate in the creation of a Citizens’ Initiative, and to apply to the European Ombudsman.¹⁴ Also the EU citizenship right to seek consular protection in a Member State representation in a third state¹⁵ is excluded, as the premises for the realisation of that right are found outside the context of EU free movement law, and outside the Union’s territory.

Cases, legal materials and other publications dated after 15 October 2019 are not included in the book.

III.Outline

In order to frame the book’s focus on EU citizenship’s legal development of the last decade, the introductory chapter is followed by a short account of the historical development of the legal concept of EU citizenship and its origins in EU free movement law, together with an account of the scholarly debate on the legal content and meaning of EU citizenship (chapter two). Chapters three, four, five and six explore the various norms for how to exercise and enjoy the core free movement rights that the status of EU citizenship confers on Union citizens in a host Member State. The right to movement and residence (chapter three); the right to reside derived by accompanying family members (chapter four); the right to equal treatment (chapter five); and the right to vote and participate on equal terms with resident nationals at the municipal and European political level (chapter six). The final substantive chapter explores how the norms that limit and condition these rights relate to the jurisdictional scope and relevance of the status of EU citizenship, and its attached rights at the primary law level, in turn af...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Contents
• Abbreviations
• Table of Cases
• 1. Introduction
• 2. EU Citizenship: Historical Backdrop and Debate
• 3. The Right to Move and Reside Freely: Article 21(1) TFEU and Directive 2004/38
• 4. Residence and Family Reunification Rights
• 5. The Right to Equal Treatment
• 6. EU Citizenship and Political Free Movement Rights
• 7.EU Citizenship and the Charter
• 8. Conclusion
• Bibliography
• Index
• Copyright Page