EU Foundations EU Citizenship Dr. J.J. Rijpma KOÇ UNIVERSITY Spring 2013

Article 26(2) TFEU 2. The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.

Free Movement of Persons Workers, Article 45 TFEU Services, Article 56 TFEU Establishment, Article 49 TFEU EU Citizen Article 21(1) TFEU (ex Article 18 EC) 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.

Who is an EU citizen?

Rudy Grzelczyk Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for.

Rights and duties Right to move and reside freely in MS Right to vote + stand as candidate Right to diplomatic protection Right to petition EP Right to non-discrimination Social, environmental, consumer rights, etc. Few duties: rather at national level See also the Charter

Sources of rights for EU migrants Individual migration Worker Student / Person Independent Means Non- economic migrant Self- employed Provider/ Recipient of Services Art. 45 TFEU Art. 49 Art. 56 Art. 21(1) Reg. 492/2011 + Dir. 2004/38 <3 mths >3 mths Art. 7 .> 3 mths Art. 6 Art. 56 TFEU + Art. 7(1)(b) Case law under

Baumbast Vertical Direct Effect of Article 21 TFEU 3. A citizen of the European Union who no longer enjoys a right of residence as a migrant worker in the host Member State can, as a citizen of the Union, enjoy there a right of residence by direct application of Article 18(1) EC. The exercise of that right is subject to the limitations and conditions referred to in that provision, but the competent authorities and, where necessary, the national courts must ensure that those limitations and conditions are applied in compliance with the general principles of Community law and, in particular, the principle of proportionality.

Art. 18 TFEU (ex Art. 12 EU) 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. - Cross border element (e.g. Morson & Jhanjan) Personal Scope (e.g. Iida) Material Scope (e.g. Josemans)

Article 14: Retention of Rights of Residence Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State. 2. Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein. In specific cases where there is a reasonable doubt as to whether a Union citizen or his/her family members satisfies the conditions set out in Articles 7, 12 and 13, Member States may verify if these conditions are fulfilled. This verification shall not be carried out systematically. 3. An expulsion measure shall not be the automatic consequence of a Union citizen's or his or her family member's recourse to the social assistance system of the host Member State.

Expulsion under Dir. 2004/38 Public Policy / Public Security Substantive Factors Procedural Personal Conduct – No general prevention Notice in writing + 1 month to leave unless urgency Genuine, Present, Sufficiently Serious Threat Criminal Conviction alone not sufficient Proportionate Degree of Integration (Art. 28(1)) Rights of Appeal and Review Fundamental Rights

Protection against expulsion Chapter VI, Directive 2004/38, Art. 28 Dir. 2004/38 The longer you stay, the more protection (from serious to imperative grounds) Orfanopoulos, Tsakouridis (social and economic danger to mankind), P.I. (direct threat to the calm and physical security of the population) Procedural safeguards, maximum duration of expulsion orders, right to family life

Protection against expulsion The Roma case in France: http://www.youtube.com/watch?v=4eecgXi_D3M

Metock First, none of the provisions of Directive 2004/38 requires that the Union citizen must already have founded a family at the time when he moves to the host Member State in order for his family members who are nationals of non-member countries to be able to enjoy the rights established by that directive. By providing that the family members of the Union citizen can join him in the host Member State, the Community legislature, on the contrary, accepted the possibility of the Union citizen not founding a family until after exercising his right of freedom of movement. That interpretation is consistent with the purpose of Directive 2004/38, which aims to facilitate the exercise of the fundamental right of residence of Union citizens in a Member State other than that of which they are a national.

Metock Second, in the light of the necessity of not interpreting the provisions of Directive 2004/38 restrictively and not depriving them of their effectiveness, the words „family members [of Union citizens] who accompany … them‟ in Article 3(1) of that directive must be interpreted as referring both to the family members of a Union citizen who entered the host Member State with him and to those who reside with him in that Member State, without it being necessary, in the latter case, to distinguish according to whether the nationals of non-member countries entered that Member State before or after the Union citizen or before or after becoming his family members.

Metock Third, neither Article 3(1) nor any other provision of Directive 2004/38 contains requirements as to the place where the marriage of the Union citizen and the national of a non-member country is solemnised. THUS: THE RIGHT OF A THIRD COUNTRY NATIONAL FAMILY MEMBER TO ACCOMPANY HIS/HER EU FAMILY MEMBER, THE TIME AND PLACE OF THE MARRIAGE ARE IRRELEVANT. THE IS NO NEED FOR A PRIOR RIGHT OF RESIDENCE OF THE THIRD COUNTRY NATIONAL FAMILY MEMBER IN THE HOME MEMBER STATE

Belgium Route/Malmo Model

Zambrano

Zambrano Para. 44 It must be assumed that such a refusal [of residence permit] would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.

The End of Reverse Discrimination?

McCarthy

McCarthy Para. 56 It follows that Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States

Dereci Confirms McCarthy in quite clear terms: Para. 68 Consequently, the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.