Transcript EU citizenship

EU Citizenship and Fundamntal Rights
10-11 December 2013
Professor Adam Cygan
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)
Individual rights of
Union citizens (2)
(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.
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,
2001-02-20).
• 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, 1992-07-07)
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.
Freedom of movement:
from Rome to .... (2)
• 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, 2002-09-17): the Court has
recognized the direct effect of these rights
… 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, 2004-1019)
- 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, 2003-10-02)
 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, 2006-10-26 ):
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, 2008-07-10):
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, 2007-12-11)
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)
Right to enter another
member State (2)
• Commission v. The Netherlands (C-68/89, 1991-05-30):
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, 2005-02-17):
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 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;
Right of residence in
another member State (2)
• 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 (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 continuity 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, 2010-10-07)
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.