EU Citizenship and Fundamntal Rights Professor Adam Cygan December 2013

Individual rights of Union citizens (1) Established by the Treaty of Maastricht Rights of Union citizens summarized, in part, in article 20 (2) TFEU: (a) the right to move and reside freely within the territory of the Member States; (b) the right to vote and to stand as candidates in elections to the European Parliament and the right to stand as candidates in municipal elections in their Member State of residence (when differs from that of nationality)

(c) the right to enjoy, in the territory of a third country in which the national Member State is not represented, the protection of the diplomatic and consular authorities of any Member State (on the same conditions as the nationals of that State) (d) the right to petition the European Parliament (e) the right to apply to the European Ombudsman (f) the right to address the institutions of the Union in any of the Treaty languages and to obtain a reply in the same language. Individual rights of Union citizens (2)

Union citizenship v. citizenship of Member States Art. 20 TFEU: every person holding the nationality of a Member State is a citizen of the Union After the Lisbon Treaty: the UE citizenship is additional to national citizenship and no more complementary The power to establish the criteria for the attribution of national citizenship belongs to the member States (e.i. see Kaur, C-192/99, ). It is not permissible that the law of a Member State imposes additional conditions for the recognition of the nationality of another Member State when the exercise of fundamental freedoms provided in the EC Treaty are at stake (Micheletti, C-369/90, )

Freedom of movement: from Rome to.... (1) Rome Treaty (1957): Only workers and providers of services having the citizenship of a member State were entitled of the right of free movement in the territory of other Member States. 1990: the EC adopted 3 directives granting the free movement (and the right to reside) to 3 groups of individuals: - students - retired invididuals - any citizen of a member State who was not a workers or a service provider, but had sufficient economic resources and was covered by sickness insurance in the host Member State so that he would have been able to maintain himself without becoming a burden for the welfare State of the host State.

Treaty of Maastrich recognized the right to move freely and to reside in the territory of other member States to all EU citizens. Baumbast case (C-413/99, ): the Court has recognized the direct effect of these rights Freedom of movement: from Rome to.... (2)

… Lisbon Article 21 TFUE (former Article 18 TEC) “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.” Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

Jurisprudence of the ECJ (1) Whether limits of age may exist for a Union citizen to move freely and reside in another Member State (Zhu & Chen, C-200/02, ) - According to the Court a young child can exert the rights of free movement and residence guaranteed by Community law: indeed, the capacity of a national of a Member State to be the holder of the rights of free movement and residence cannot be made conditional upon the attainment of a minimum age to exercise those rights personally (e.i. the age prescribed for the acquisition of legal capacity). - In the Court’s opinion when the EC Treaty and the EC secondary law grant the right to reside in a Member State to a minor who is a national of another Member State, those same provisions allow a parent who is the minor’s primary carer to reside with the child in the host State.

Jurisprudence of the ECJ (2) May merely internal questions fall or not within the scope of application of the EU law ? - In the past: The Court of Justice performed its power to check the conformity, and so the validity, of national laws to the EU law only when the content of the internal law in question fell within the scope of application of the EC law. - Starting from the Garcia Avello case: ECJ’s change of mind when Union citizens have claimed that national laws concerning topics belonging to the exclusive competence of States put at risk rights deriving from the Union citizenship (see also Rottman C-135/08; Grunkin & Paul C-353/06)

Jurisprudence of the ECJ (3) Garcia Avello (C-148/02, ) The criteria for the attribution of a surname was a question that fell within the exclusive competence of a member State. Neverthenless, such a competence had to be performed respecting EU law every time a connection with the EU law could been ascertained. Link: the exercise of the right of movement and residence of Union citizens.

Directive 2004/38/EC It provides: a) the right to leave the territory of the State of citizenship b) the right to come back to that State c) the right to enter another member State (host State).

Right to leave (1) “All Union citizens with a valid identity card or passport have the right to leave the territory of a Member State to travel to another Member State.” No exit visa or equivalent formality may be imposed on the persons who want to leave a member State, except for the Id-card or passport. The right is also extended to family members who are not nationals of a Member State and who hold a valid passport.

Right to leave (2) Tas-Hagen (C-192/05, ): The Court declared contrary to article 18 of the EC Treaty (now art. 21 of the TFEU), the Duch legislation because it made the supply of a pension for war victims subordinate to their residence in the Netherlands. Jipa (C-33/0710, ): The Court of Justice held that the Romanian law preventing a Romanian citizen (an also a Union citizen), from moving freely in another member State constituted an obstacle to the free movement of persons, and that a Member State of the European Union was not allowed to place a limitation on the exercise of the right of freedom of movement of citizens within the territory of another Member State.

Right to come back to the State of citizenship Eind (C-291/05, ) Since Mr Eind was a Netherlands national, his right to reside in the territory of the Netherlands cannot be refused or made conditional upon the fact that he was engaged in an economic activity. Indeed the right of a migrant worker to return and reside in the Member State of which he/she is a national, after being employed in another Member State, is conferred by Community law in oder to ensure the useful effect of the right to free movement for workers.

Right to enter another member State (1) Directive 2004/38, Art. 5: Member States are only allowed to ask Union citizens to have a valid identity card or passport, while no entry visa or equivalent formality can be imposed on them. Right granted to family members who are not nationals of a Member State and posses a valid passport (or a entry visa when requested)

Commission v. The Netherlands (C-68/89, ): A citizen of a member State is not expected to justify or explain the reason why he is moving or why he is going to reside in another member State. A national law according to which the citizens of member States are obliged to answer questions concernig the purpose of their travels and the lenght of their staying in another Member State is contrary to the EU law. Oulane (C-215/03, ): The legislation of a Member State that sanctions who does not show an id-card or a passport in order to be identified at the time of entry in another member State is in conformity with the EU law (does not prejudge the freedom of movement of EU citizens) Right to enter another member State (2)

Right of residence in another member State (1) Directive 2004/38/EC: 3 different rights of residence according to the length of the staying: 1) Article 6: right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport;

2) Article 7: right of residence for more than three months for specific groups of citizens: a) workers or self-employed persons; b) those who are not engaged in working activities but who have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and also having a sickness insurance cover in the host Member State; c) those enrolled at a private or public institutions for the purpose of following a course of study, or for vocational training and having – as the previous group - sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence, included a sickness insurance cover in the host Member State; (d) family members accompanying or joining a Union citizen belonging to one of the groups just mentioned. Right of residence in another member State (2)

Right of residence in another member State (3) 3) Article 16: Union citizens who have resided legally for a continuous period of five years in a host Member State shall have the right of permanent residence there. The same right is granted to members of their families. Condition to be entitled to such a permit: the residence has been continuous. The c ontinuity of residence shall not be affected by: - temporary absences not exceeding a total of six months a year - or by absences for compulsory military service - or by one absence of twelve consecutive months for important reasons such as pregnancy, childbirth, serious illness, study or vocational training...

Right of residence in another member State (4) Some States that have recently become part of the Union are used not to count the period of residence an individual spent in their territory before their accession to the Union. Lassal (C-162/09, ) Reply to this practice by the Court of Justice: The Court has condemned a member State that had not taken into account those periods of residence.

Charter of Fundamental Rights of the EU Fundamental rights in the process of European integration; Charter proclamation on 7 December 2000; Charter: – innovative instrument bringing together all fundamental rights (dignity, freedoms, equality, solidarity, citizens rights, justice) making them visible and predictable; – addressed to EU institutions and bodies when exercising their competencies conferred by Treaties and EU MS when implementing EU law (Article 51 of the Charter). Does not extend the powers of the EU.

The new post-Lisbon context EU Charter legally binding. The EU’s accession to the ECHR. A specific portfolio for fundamental rights, justice and citizenship. A new boost for the Union’s work in this area

Few words on the EU’s accession to the ECHR An obligation steming from the EU Treaty. Strong political will. The missing link in Europe’s system of human rights protection. Very complex legal issues. A long process of ratification.

Strategy for the effective implementation of the Charter by the Union Communication of 19 October 2010, COM (2010) 573 final. Objectives: – The Union must be exemplary – To make the rights of the Charter as effective as possible.

Strengthening the culture of fundamental rights in the Commission At all stages of the procedure. Systematic control of compatibility of the Commission’s acts. From the impact assessment level to the final text. Operational guidance on fundamental rights

Taking the Charter into account in the legislative process As requested in the Stockholm programme. « throughout the legislative process by way of strengthening the application of the methodology for […] compliance with the Convention and the Charter » Interinstitutional agreements, amendments and ….Member States proposals. Conclusions of the JAI Council of 11 February.

Ensuring that Member States respect the Charter when implementing EU law Prevention. Infringement procedure. Within the limits of the Charter’s material scope of application!

The annual report Annual report on the application of the EU Charter. Objectives: – To take stock of progreses, – Opportunity for an annual exchange of views with the Parliament and the Council.

Conclusion The Charter, a new boost for the EU as regards fundamental rights. Accession, the missing link. Internally, the Union must be exemplary.... …throughout all the legislative procedure. And within the scope of EU competences.