by Prof. Susan Millns*
Citizenship is a contested concept and EU Citizenship is none less so. It has a multiplicity of dimensions including participation in public life; rights and duties; inclusion and exclusion, identity, loyalty and allegiance. One of the big questions raised by the introduction of European citizenship is whether it ought to be conceptualised along the lines of national citizenship or whether it is something altogether new and independent. It has shown itself to be the latter thanks to the work of the Court of Justice of the EU.
Of course, the road to EU citizenship rights is not without an interesting history. In its fundamental freedoms, the original EEC Treaty included only the free movement of workers. Under the Single European Act 1986 the internal market was then taken to include the free movement of persons. Along the way, the Court developed a broad view of the scope of coverage of EC rules extending rights to tourists (Case 186/87 Cowan) and students (Case 293/83 Gravier). Prior to the Inter-Governmental Conferences leading up to the Treaty on European Union, calls were made for the development of greater human, social and civic rights in the Community. As the Spanish expressed in a note of 24 September 1990: "it is… necessary to establish a citizenship of European Political Union as 'the personal and indivisible status of nationals of the Member States.'"
The provisions finally adopted (now in Art. 20 Treaty on the Functioning of the EU) set out the array of rights that EU citizens enjoy: (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 in municipal elections; (c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State; (d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.
From the emerging case law the Court of Justice of the EU appears eager now to endow citizenship with a meaningful content. Cases such as Rottmann (Case C-135/08) have dealt with the potential loss of nationality and citizenship by an EU citizen and Carpenter (Case C-60/00) with the relationship between citizenship and free movement particularly in the context of the right to family life. EU citizenship has additionally been found to confer access to social benefits and educational benefits for EU migrants as a result of the requirement not to discriminate between citizens on the grounds of their nationality. In the case of Martinez Sala (Case C-85/96) a Spanish national resident in Germany, who had not worked there for many years because of her childcare responsibilities was able to rely upon a combination of the non-discrimination principle and the citizenship provisions to gain equal access to a German child-raising benefit. As a Union citizen she was able to claim equality of treatment even though not economically active and solely dependent on welfare.
Subsequent developments in this line of case law have encouraged an increasingly wide interpretation of the citizenship provisions to include those who are not economically active, in particular students. In Grzelczyk (Case C-184/99) it was decided that a French national studying in Belgium was entitled, in the same way as a Belgian student, to the payment of the minimex (a non-contributory minimum subsistence allowance). Approaching the case on the basis that Grzelczyk was not a worker, the Court found that there was discrimination on the grounds of nationality and that Grzelczyk fell within the personal scope of the prohibition of discrimination as a Union citizen lawfully residing in Belgium.
In Baumbast (Case C-413/99) the Court went further still in decoupling EU citizenship from market rules, by finding that the Treaty provisions on citizenship are directly effective, that is to say they may be relied upon directly by individuals who would otherwise struggle to fit within the scope of European law protection. The subtext of these developments in uncoupling citizenship from market participation has been of considerable importance in underlining not only that the Court of Justice takes fundamental rights seriously, but also that it does now pay heed to the indispensable role that citizens play in activities that extend beyond the economic sphere of the market.
A further example of the extension of citizenship rights, in this case having implications for the rights of residency of third country nationals, is the judgment in Chen (Case C-200/02). Here the UK Secretary of State for the Home Department had refused to grant a long-term residence permit to either Catherine Chen (a minor aged eight months of Irish nationality because she had been born in Northern Ireland) or her mother (of Chinese nationality) on the grounds that Catherine was not exercising any free movement rights arising from the EC Treaty and her mother was not entitled to reside in the UK under domestic regulations. The Court stated that Catherine’s right of residence derived from her status as an EU citizen and a refusal to allow the parent, whether a national of a Member State or a national of a non-member country, who is the carer of an EU citizen minor to reside with that child in the host Member State would deprive the child’s right of residence of any useful effect.
The theme of citizenship and parental care obligations has been reiterated in the recent case of Ruiz Zambrano (Case C-34/09) in the context of third country national parents whose children were born into EU citizenship and, most controversially, had never exercised any free movement rights at all. The sum of the above is to indicate that EU citizenship is a dynamic concept which goes well beyond the economic sphere of the market to embrace a growing array of social, residency and free movement rights courtesy of an ambitious European judiciary.
*( The author is Co-Director of Sussex European Institute)