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Citizenship of the European Union—A
Legal Analysis
Francis G. Jacobs*
Abstract: The aim of this article is to present a legal analysis of the concept of citizenship of the EU. This concept was considered by some to be embryonic in the original Com- munity Treaties, but was first expressly incorporated into the Treaties by the Treaty on European Union, signed at Maastricht on 7 February 1992. In the case-law of the European Court of Justice, which has given citizenship a content going beyond the express Treaty provisions, the concept is closely related to other basic concepts, including free movement of persons, the prohibition of discrimination on grounds of nationality and the protection of fundamental rights. This article seeks to review the case-law, to disentangle citizenship from other related concepts, and to determine what added value citizenship has brought to the Treaties and what the potential and the proper limits of the concept might be.
I Introducing Citizenship of the Union
A The Current Treaty Provisions on Citizenship
Citizenship of the EU was introduced by the Treaty on European Union (TEU), which entered into force in 1993. In the Preamble to that Treaty, the heads of state recorded that they were resolved ‘to establish a citizenship common to nationals of their coun- tries’. The Treaty accordingly inserted a new part in the EC Treaty (as the EEC Treaty was re-named by the TEU): Part Two, entitled ‘Citizenship of the Union’. Part Two comprised six Articles, numbered 8–8e and re-numbered 17–22 in the Amsterdam Treaty, signed in Amsterdam on 2 October 1997. The first Article, which became Article 8 (now Article 17) of the EC Treaty, provided as follows:
‘1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union.
- Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.’
- Professor of Law, King’s College London and Jean Monnet Professor; formerly Advocate General, European Court of Justice. I am grateful to Anne Thies of King’s College London for her great help in the preparation of the final version of this article and of the Annex.
European Law Journal, Vol. 13, No. 5, September 2007, pp. 591–610. © 2007 The Author Journal compilation © 2007 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
(The Amsterdam Treaty, implicitly suggesting that citizenship of the Union might be misunderstood, added at the end of the first paragraph: ‘Citizenship of the Union shall complement and not replace national citizenship’.) The four subsequent Articles conferred further specific rights. Article 8a (now Article 18 EC) confers the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down by the Treaty and by EC legislation. Article 8b (now Article 19 EC) confers on every EU citizen residing in a Member State of which he is not a national the right to vote, and to stand as a candidate, in the Member State in which he resides, at i) municipal elections and ii) elections to the European Parliament, under the same conditions as nationals of that state. The right does not therefore extend to general (parliamentary) elections. Article 8c (now Article 20 EC) entitles EU citizens, in the territory of any third country in which their Member State is not represented, to protection by the diplomatic or consular representatives of any Member State, on the same conditions as the nationals of that state. Finally, Article 8d (now Article 21 EC) entitles every EU citizen to petition the European Parliament and to apply to the European Ombudsman. The Amsterdam Treaty added the right to use any recognised Community language and to have an answer in the same language. A similar list of rights is contained in the EU Charter of Fundamental Rights (not yet in force), Chapter V, entitled ‘Citizens’ Rights’, and (in slimmer form) in the Consti- tutional Treaty (also not yet in force), Article I-8. It will be seen that Articles 18–21 EC add relatively little that is both new and significant; and the most important article, Article 18 EC, is expressly made subject to the limitations and conditions already laid down by Community law. Thus, the specific rights set out in the TEU seemed to add little to the existing rights flowing from the Treaties, the legislation and the case-law. Indeed, the introduction of EU citizenship in the Treaty was regarded in some quarters as a false prospectus. However, the European Court of Justice (ECJ) was able to give the concept a more substantial content than the authors of the Treaty provisions may have envisaged. This case-law is discussed in Part II of this article.
B Embryonic Forms of Union Citizenship
Although citizenship of the Union was introduced by the TEU, it was, as already mentioned, regarded by some as embryonic in the original EEC Treaty of 1957. That view was based mainly on the novel character of the Treaty, the original features of which were highlighted by the ECJ as early as 1963 and 1964 in van Gend en Loos^1 and Costa v ENEL , 2 and by certain provisions of the Treaty, notably those on the free movement of persons. In the original Treaty the main focus of free movement of persons was on workers, on freedom of establishment and on freedom to provide services, but the provisions were broadly construed by the ECJ. Moreover EC legisla- tion, notably on social security of migrant workers from 1958^3 and on rights of migrant
(^1) Case 26/62, van Gend en Loos v Netherlands Inland Revenue Administration [1963] ECR 1. (^2) Case 6/64, Costa v ENEL [1964] ECR 585. (^3) Council Regulation No. 3[4] on social security for migrant workers, [1958] OJ 30/561/58; subsequently superseded by Regulation 1408/71, [1971] OJ L149/2, supplemented by implementing Regulation 574/ fixing the procedure for implementing Regulation (EEC) No. 1408/71 on the application of social security schemes to employed persons and their families moving within the Community, [1972] OJ L74/1.
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The principle is stated in very broad terms, and is potentially of far-reaching scope. It is by no means obvious what Article 17 EC, on citizenship, adds to the scope of the principle, or, to put the matter differently, what the boundary is between Articles 12 and 17 EC. But Article 12 EC had been relatively rarely used; it had normally, in earlier case-law, been sufficient to rely on the more specific prohibitions of discrimination on grounds of nationality, particularly those governing the free movement of workers, freedom of establishment and freedom to provide services. Those specific prohibitions had themselves been interpreted broadly; so, for example, in Bickel and Franz^6 the court took the view that nationals of other Member States visiting Italy were (potential) recipients of services, and so fell within the scope of the Treaty ratione personae. On that basis, the need to extend the scope of the Treaty ratione personae was limited to those who were economically inactive; but it could be argued that those persons were covered by Article 12 EC, and therefore it was un- necessary to rely for that purpose on citizenship. And indeed it is by no means clear that Article 17 EC sought to extend the scope of the Treaty ratione personae , or indeed to extend it ratione materiae. Nonetheless, the court seems to have found it useful to invoke Article 17 EC in order to support a broad interpretation (certainly welcome in itself, in my view) of the scope of the Treaty for the purposes of the prohibition of discrimination, whether ratione personae or ratione materiae. Thus, it did so notably in Bickel and Franz itself, and even more significantly in Martinez Sala^7 and in Grzelczyk.^8 In Martinez Sala , the court held on the basis of the citizenship provisions that the claimant, a Spanish national, was entitled to a child-raising allowance in Germany; in Grzelczyk , it held that a French national could qualify for a minimum subsistence allowance in Belgium. While on the facts of Bickel and Franz , which concerned the availability of the use of German in criminal proceedings in a region of Italy in which German is widely spoken, the court’s positive decision is to be welcomed and imposed no significant burden on the host state, the question is more difficult in the two later cases, which concerned entitlement to financial benefits. While in principle it is of course desirable that there should be equal treatment in relation to social benefits of a financial character, there may be circumstances in which entitlement legitimately depends on conditions such as residence. Indeed, such conditions are often recognised in EC legislation itself. There can be no simple generalisation entitling all nationals to equal treatment in so complex a field. The same reservations may be felt in relation to student maintenance grants, the subject of the court’s decision in R ( Bidar ). 9 Here the court relied in part on the notion of citizenship to justify a departure from earlier case-law and to bring such grants within the scope of the Treaty. That particular argument seems somewhat dubious, and the resulting ruling may cause problems. While access to university education should incontrovertibly be open equally in terms of qualifications to all EU citizens—the subject of the court’s judgment of 7 July 2005 in Commission v Austria^10 —the issue of maintenance grants seems more complex. The court was thus led to qualify its
(^6) Case C-274/96, Criminal proceedings against Bickel and Franz [1996] ECR I-7637. (^7) Case C-85/96, Martínez Sala v Freistaat Bayern [1998] ECR I-2691. (^8) Case C-184/99, Grzelczyk v Centre Public d’Aide Sociale d’Ottignes-Louvain-la-Neuve [2001] ECR I-6193. (^9) Case C-209/03, R (Dany Bidar) v London Borough of Ealing and Secretary of State for Education and Skills [2005] ECR I-2119. (^10) Case C-147/03, Commission v Austria [2005] ECR I-5969.
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judgment by accepting that Member States were entitled to ensure that the grant of assistance does not become an unreasonable burden, and to require students to have demonstrated ‘a certain degree of integration into the society of that State’.^11 The application of the ruling may prove difficult. It will be interesting to see whether the court is going to focus merely on the length of lawful residence when assessing the degree of a citizen’s integration into the society of the state. Other parameters might be taken into account, such as previous or future contributions to the welfare system of the state concerned. Could—in the context of education—contributions made by the citizen’s parents/primary carer be taken into account for that purpose? Or could a state perhaps be entitled to oblige the citizen to make future contributions by an obligation to work in that state subsequent to university studies? In that case, how to deal with questions of potential unemployment, which might make it necessary to leave the host state in order to find employment corresponding to the professional qualification acquired? It is of interest to note that the situation on university education in the EU is far more integrated than in the USA, where state universities discriminate against out-of-state students both by quotas and by substantially heavier fees.
b) The Use of Citizenship to Broaden the Scope of the Non-Discrimination
Principle in the Context of Market Freedoms
Discrimination based on nationality between workers of the Member States was pro- hibited from the outset in the EEC Treaty: then Article 48, now Article 39 EC. Article 39(2) EC states that freedom of movement for workers shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. Here too the court has used the concept of citizenship to enlarge the scope of Article 39(2) EC. Thus, for example, in Collins ,^12 which concerned a claim to a job-seeker’s allowance in the UK, it held that the interpretation of the scope of the principle of equal treatment in relation to access to employment must reflect the development of citizen- ship. Thus, a residence requirement, as a condition of entitlement to a job-seeker’s allowance, was justifiable only on objective considerations that are independent of the nationality of the claimant and are proportionate to the legitimate aim of the national provisions. It was legitimate for a Member State to ensure that there was a ‘genuine link’ between the claimant and the employment market in question. A residence requirement was therefore in principle appropriate to ensure such a connection, as long as the principle of proportionality was respected and the application of the requirement was open to judicial review. A similar position was reached in Ioannidis ,^13 which concerned a claim to a ‘tide-over allowance’ in Belgium. Such decisions, although they too may be difficult to apply in practice, seek to establish an appropriate balance between the competing interests.
c) The Use of Citizenship as an Independent Source of Rights
The main innovation under this head is the recognition of Article 18 EC as creating for all EU citizens an independent right of free movement. Even before the introduction of citizenship there had been developments in that direction, not only in the case-law but
(^11) R ( Bidar ), note 9 supra , para. 57. (^12) Case C-138/02, Collins v Secretary of State for Work and Pensions [2004] ECR I-2703. (^13) Case C-258/04, Office national de l’emploi v Ioannidis [2005] ECR I-8275.
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It can be argued that the Treaty goes beyond prohibiting discrimination on grounds of nationality and also prohibits, under certain conditions, non-discriminatory restric- tions. This would follow the approach which the ECJ has taken to other fundamental freedoms under the Treaty, notably for goods and services. An example in relation to Article 18 EC is the Pusa case,^21 which was argued before the ECJ on the basis of discrimination but in which I took the view, as Advocate General, that what was in issue was not discrimination, but rather a restriction in the form of a burden on free movement, which was also, in my view, prohibited by the Treaty. I added:
‘The conclusion—which is consistent with and complementary to the Court’s judgments in D’Hoop and Baumbast —must thus be that, subject to the limits set out in Article 18 itself, no unjustified burden may be imposed on any citizen of the European Union seeking to exercise the right to freedom of movement or residence. Provided that such a burden can be shown, it is immaterial whether the burden affects nationals of other Member States more significantly than those of the State imposing it.’^22
Although the court itself did not use the language of ‘burdens’ or ‘restrictions’ in its judgment in the Pusa case, it is of interest that in the subsequent judgment of July 2005 in the Schempp case,^23 as Advocate General Kokott has pointed out, the court examined the question of an ‘obstruction’ of the right to move and reside in another Member State independently of any discrimination. As she suggests, such a harmonised approach, which aligns the right to freedom of movement or residence to the other fundamental freedoms, corresponds to the ‘fundamental status’ of Union citizenship established by the court and the new EU citizenship directive.^24 Another issue is the question of potential justification for ‘burdens’ or ‘restrictions’ in the context of financial benefits granted (merely) on the basis of citizenship. It has to be questioned which aims pursued by states can justify an obstacle to the exercise of citizenship rights. Looking at it from a different angle, to what extent are states obliged to ‘share their welfare’ not only with their nationals but with all citizens of the Union? It could be argued that an obligation for states exists if ‘shared interests’ of the Community are at stake that establish a sort of ‘solidarity relationship’ between all state authority and individuals, and thereby justifies expenses of states under their welfare system. The problem would be to define any ‘shared interest’ that goes beyond economic integration—which was most relevant, of course, when individual rights linked to the economic activity of citizens were at stake. Could Community compe- tences provided by the Treaty be crucial in order to assess ‘shared interests’ agreed upon by the Member States? As a consequence, the court might have to first assess the competence of the Community that is relevant in the context of the case before the court (e.g. employment, health, tax or education) in order to then assess the scope of citizenship rights relied upon. It seems problematic, however, to deduce ‘shared inter- ests’ from competences where no positive harmonisation has yet taken place. It might be better to let the Community legislature decide on the extent of financial obligations
(^21) Case C-224/02, Pusa v Osuuspanikken Keskinäinen Vakuutusyhtiö [2004] ECR I-5763. (^22) Ibid. , Opinion of AG Jacobs, para. 22. (^23) Case C-403/03, Schempp v Finanzamt München V [2005] ECR I-6421. (^24) J. Kokott, ‘EU citizenship—citoyens sans frontières?’, European Law Lecture, Durham European Law Institute Online Paper (2005), p 15. See [2004] OJ L158/77 for Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC.
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of states towards citizens instead of broadening the states’ obligation through the case-law on citizenship.
III Some Tentative Conclusions
A first conclusion, which can be stated very shortly, is that different categories of rights can be distinguished: citizenship rights can be distinguished from other rights, and different forms of citizenship rights can be distinguished.
- Citizenship rights can be distinguished from other rights: from rights of free movement for the economically active; from the general prohibition of discrimination on grounds of nationality; and from fundamental (human) rights—note the special category in the Treaty, Charter, etc. of citizens’ rights, and the general distinction between human rights and citizens’ rights.
- A distinction can be drawn between rights to social and financial benefits, on the one hand, and non-economic, but symbolically important, interests, on the other. A good example of the latter is the court’s recent case-law on the legislation of Member States governing the use of personal names. This is an issue of great importance to individuals, independently of any material interest, and with little cost to Member States, which simply have to adapt their legislation and practice to take account of the conventions of other Member States and to ensure that a citizen can be known throughout the EU by the same name.
Second, there is a need for clarification of the current case-law on several fundamental issues, for example:
- How far should non-discriminatory restrictions be regarded as prohibited?
- How far should considerations of public expenditure, solidarity, etc., be material in limiting rights?
- How far do citizenship rights extend? What additional rights should be recogn- ised, and how far by the court, how far by the legislature?
Third and last, how might citizenship develop in the future? Here it is possible only to indicate, in the briefest terms, some areas where the concept of citizenship might be deployed in the future. Three examples may be given:
- voting rights in national (parliamentary) elections;
- prohibiting reverse discrimination (i.e. the treatment by a Member State of other nationals more favourably than its own);
- free movement at internal frontiers and the abolition of automatic passport controls.
Annex—Survey of ECJ Case-Law
A survey of the case-law shows that the ECJ has used the concept of citizenship of the EU in various ways. It has applied the concept of citizenship in order to broaden the scope of application of the non-discrimination principle both under Article 12 EC and
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child-raising allowance.^31 Considering the status of citizen under Article 17(2) EC sufficient for the application of Community law ratione materiae , the court applied the principle of non-discrimination on grounds of nationality as laid down in Article 12 EC with regard to the child-raising allowance at stake.^32 The court did not address the question whether Article 18 EC would grant the right to reside in Germany and thus did not need to consider the limitations referred to by that Article.
c) ‘Minimum Subsistence Allowance’
Again in its Grzelczyk judgment in 2001, the ECJ held that Article 12 EC needed to be read in conjunction with the provisions on citizenship; as in Martínez Sala , Community law was applicable ratione personae on that basis.^33 Applying Articles 12 and 17 EC, the court stated that Union citizenship was ‘destined to be the fundamental status of nationals of the Member States’ that entitles them to be treated equally irrespective of their nationality, subject to such exceptions as are expressly provided for.^34 Mr Grzelczyk, a French national, had worked part time during the first three years of his university studies in Belgium. In the last year of his studies, he applied for a grant, which was first granted, but then withdrawn because he was not of Belgian nationality. The court considered the subject matter to fall within the scope of Community law ratione materiae , because the situation involved the exercise of the right to move and reside freely in another Member State as conferred by (now) Article 18 EC.^35 In Trojani^36 in 2004, the ECJ again faced the question whether a social assistance benefit was to be granted merely on the grounds of citizenship and in compliance with the principle of non-discrimination under Article 12 EC. The court concluded that a non-economically active person can enjoy a right to residence simply as a citizen of the Union by direct application of Article 18(1) EC. Although the right was subject to limitations and conditions, the authorities of the host Member State were obliged to apply general principles of Community law, in particular the principle of proportion- ality. As long as the citizen was lawfully resident in the host Member State, the non-discrimination principle of Article 12 EC was applicable and a social assistance benefit was to be granted on that basis. This would not preclude the host Member State from considering that a citizen no longer fulfilled the conditions of his right of resi- dence, but—referring to Grzelczyk , paragraphs 42 and 43—the court held that recourse to the social assistance system by a citizen of the Union may not automatically entail such a measure.^37
d) (Un-)employment/Labour Market
Also in the context of a ‘tideover allowance’ for young people who have just completed studies and seek employment, the ECJ held in D’Hoop that since Ms D’Hoop was lawfully resident in Belgium, the matter fell within the scope of Community law ratione personae on the grounds of citizenship.^38 The principle of non-discrimination of
(^31) Ibid. , para. 61. (^32) Ibid. , paras 62 et seq. (^33) Case C-184/99, Grzelczyk v Centre Public d’Aide Sociale d’Ottignes-Louvain-la-Neuve [2001] ECR I-6193, para. 30. (^34) Ibid. , para. 31. (^35) Ibid. , para. 33. (^36) Case C-456/02, Trojani v Centre publique d’Aide sociale de Bruxelles [2004] ECR I-7573. (^37) See ibid. , para. 45. (^38) Case C-224/98, D’Hoop v Office national de l’emploi [2002] ECR I-6191, para. 26.
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Article 12 EC thus applied. Ms D’Hoop, a Belgian national, had completed her secondary education in France and then studied at a university in Belgium. Her application for a ‘tideover allowance’ in Belgium was refused according to Belgian national legislation, because she had not completed her secondary education in Belgium. The court referred to the ‘right of freedom of movement’ of a citizen, linking it to the particular importance of free movement in the field of education, when affirming the principle of equal treatment.^39 The court recognised the potential need for Member States to impose restrictions on freedom of movement which pursued legiti- mate aims. However, the ECJ held that Community law precluded Member States from refusing to grant tideover allowance to one of its nationals, a student seeking her first employment, on the sole ground that that student had completed her secondary edu- cation in another Member State (principle of proportionality).^40
e) Name
In Garcia Avello in 2003, the ECJ (in an approach perhaps similar to that in Martinez Sala , D’Hoop , and later in Trojani and R ( Bidar )) held that because the children were Union citizens and lawfully resident in (another) Member State, the situation in question was not an internal situation which had no link with Community law.^41 As a consequence, the children could rely on the principle of non-discrimination on grounds of nationality under Article 12 EC.^42 Carlos Garcia Avello, a Spanish national, and his wife Isabelle Weber, a Belgian national, had two children of dual nationality, born in Belgium. In accordance with Belgian law and practice, the children were given the surname ‘Garcia Avello’ on their birth certificate. In accordance with Spanish law and practice, the children had, however, also been registered with the Spanish Embassy in Brussels under the surname ‘Garcia Weber’. A few years later, the parents asked the Belgian authorities to change their children’s surnames to ‘Garcia Weber’, contending that the Spanish system of surnames was deeply rooted in Spanish law, tradition and custom to which the children felt more intimately related. Furthermore, the name ‘Garcia Avello’ suggested, under that system, that they were siblings rather than children of their father and deprived them of any link by name to their mother. A change would enable them to use the same name in Belgium and Spain; it was not likely to cause harm to anyone else or give rise to confusion, and the fact that they would keep the element Garcia would guarantee continuity of name in the paternal line. Though the Belgian law permitted change in certain circumstances, the application was rejected. In my Opinion in that case, I examined the following points:
- Who is affected by the refusal to change name? Not only children, but also the father: ‘such an issue concerns both generations and it is just as much in the father’s interest to ensure that his surname is passed on in accordance with
(^39) Ibid. , paras 30 et seq. (^40) Ibid. , para. 39. (^41) Case C-148/02, Garcia Avello v Belgian State [2003] ECR I-11613, para. 27; in Case C-64/96 and 65/ Land Nordrhein-Westfalen v Uecker and Jacquet v Land Nordrhein-Westfalen [1997] ECR I-3171 the ECJ held that, despite the introduction of citizenship, a link with Community law would be necessary in order to rely on the principle of equal treatment; thus, purely internal situations would not suffice for the application of that principle. (^42) Garcia Avello , note 41 supra , para. 29.
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EC. In this context, however, the ECJ ruled that maintenance grants do not fall within the scope of Article 12 EC—this was not a matter of educational policy, but one of social policy still falling within the competence of the Member States.^47 After the introduction of citizenship in the EC Treaty, however, the ECJ considered in its R ( Bidar ) judgment in 2005 that the legal situation had changed since its judgments Lair and Brown and that Article 12 EC was applicable even where maintenance grants for students are at stake.^48 Since Dany Bidar was a citizen ( ratione personae ) and lawfully resident in the UK under Article 18 EC and Directive 90/364 ( ratione materiae ), the matter fell within the scope of application of the Treaty and the principle of non- discrimination on grounds of nationality was applicable.^49 This was confirmed by Article 24(1) of Directive 2004/38, according to which all Union citizens residing in the territory of another Member State are to enjoy equal treatment ‘within the scope of the Treaty’.^50 The ECJ concluded, since Article 24(2) defined the content of paragraph 1 in more detail, the grant of such aid is a matter which now falls within the scope of the Treaty.^51 The court held that, although Member States must show a ‘certain degree of financial solidarity’^52 with nationals of other Member States in the organisation and application of their social assistance system, they were entitled to ‘ensure that the grant of assis- tance does not become an unreasonable burden’; thus, it was legitimate to require the students to ‘have demonstrated a certain degree of integration into the society of that State’.^53 However, the court held that the national legislation could not preclude any possibility of a national of another Member State obtaining settled status as a student and make it impossible for such a national—whatever his actual degree of integration into the society of the host Member State—to satisfy that condition and hence to enjoy the right to assistance to cover his maintenance costs. Thus, the content of the pertinent legislation was considered not to be justified by the legitimate objective which those rules seek to secure.^54
g) Recognition of Previous Education
Shortly after its R (Bidar) judgment, the ECJ applied the principle of non- discrimination under Article 12 EC where access to university education as such was concerned.^55 The Commission brought an action against the Republic of Austria seeking a declaration that Austria has failed to fulfil its obligations under Articles 12 EC, 149 EC and 150 EC by not taking the necessary measures to ensure that holders of secondary education diplomas awarded in other Member States can gain access to higher and university education in Austria under the same conditions as persons awarded their secondary education diplomas in Austria. According to Austrian national legislation, holders of general university entrance qualifications awarded in other Member States must—in addition to satisfying the general requirements for
(^47) Case 39/86, Lair v Universität Hannover [1988] ECR 3161, para. 15; Case 197/86, Brown v The Secretary of State for Scotland [1988] ECR 3205, para. 18. (^48) Case C-209/03, R (Dany Bidar) v London Borough of Ealing and Secretary of State for Education and Skills [2005] ECR I-2119, para. 39. (^49) Ibid. , para. 42. (^50) Ibid. , para. 43. (^51) Ibid. , para. 43. (^52) Ibid. , para. 56. (^53) Ibid. , paras 56 et seq. (^54) Ibid. , para. 61. (^55) Case C-147/03, Commission v Austria [2005] ECR I-5969.
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access to higher or university studies—prove that they meet the specific requirements governing access to the chosen course, which are laid down by the state which issued those qualifications and gives entitlement to direct admission to those studies.^56 Referring to Gravier^57 and Commission v Belgium ,^58 the ECJ held that conditions of access to vocational training fall within the scope of the Treaty,^59 and thus applied Article 12 EC in the present case. Both higher education and university education were considered to constitute vocational training.^60 The ECJ held that citizens could not be penalised for using their freedom of movement ‘offered by the Treaty’ and reiterated that ‘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’.^61
B Broadening the Scope of Application of the Non-discrimination Principle in
the Context of Market Freedoms
a) Names
In Konstantinidis in 1993, the ECJ confirmed that the prohibition on grounds of nationality under Article 43 EC seeks to ensure that, as regards the right of establish- ment, each Member State accords nationals of other Member States the same treat- ment as its own nationals.^62 Konstantinidis , a Greek national working in Germany in a self-employed capacity, had found his name transliterated in Roman characters in the German register of civil status in a form which was both strikingly unexpected and, from most points of view, strikingly inappropriate but nonetheless in accordance with a prescribed system of transliteration from the Greek to the Roman alphabet. The ECJ concluded that Community law was infringed if the application of such rules causes such inconvenience as to interfere with a person’s right of establishment. That would be the case if a national of another Member State was obliged to use, in the pursuit of his occupation, a transliteration of his name used in the registers of civil status which modifies its pronunciation, and if the resulting distortion entails the risk that potential clients may confuse him with other persons. Such a rule would thus be incompatible with Article 43 EC.^63 In my Opinion in that case, I considered that the claimant suffered discrimination, prohibited by Articles 12 and 43 EC, since essentially only Greek nationals were obliged to accept in Germany a transliteration of their names likely to cause both loss of dignity and inconvenience in daily and professional life. I also considered that the transliteration in question could infringe fundamental rights as set out in, inter alia , the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms and as guaranteed to any Community national exercising his right to freedom of establishment.
(^56) Ibid. , para. 34. (^57) Gravier , note 45 supra , para. 25. (^58) Case C-65/03, Commission v Belgium [2004] ECR I-6427, para. 25. (^59) Commission v Austria , note 55 supra , para. 32. (^60) Ibid. , para. 33, referring to Case 24/86, Blaizot v University of Liège and Others [1988] ECR 379, paras 15–20, and to Case 42/87, Commission v Belgium [1988] ECR 5445, paras 7 and 8. (^61) Commission v Austria , note 55 supra , paras 44 et seq. (^62) Case C-168/91, Konstantinidis v Stadt Altensteig Standesamt [1993] ECR I-1191, para. 12. (^63) Ibid. , paras 15 et seq.
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Mr Ioannidis, a Greek national, arrived in Belgium after completing his secondary education in Greece. He obtained a graduate diploma after a three-year period of study in Belgium and registered as a job-seeker looking for full-time employment. Consequently, he followed a paid nine-month training course in France. After having returned to Belgium, Mr Ioannidis applied for a tideover allowance; his application was rejected on the ground that he had not completed his secondary education at an educational establishment run, subsidised or approved by one of the three communities in Belgium, as required under national law. The ECJ stated that the national court’s reference to certain provisions of Commu- nity law—in particular Articles 12, 17 and 18 EC—did not preclude the court from providing to the national court all the elements of interpretation which might be of assistance in adjudicating on the case pending before it.^73 The ECJ considered that in view of the establishment of citizenship of the Union and the interpretation of the right to equal treatment enjoyed by citizens of the Union, it was no longer possible to exclude from the scope of Article 39(2) EC a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State.^74 The ECJ concluded that Ioannidis could rely on Article 39 EC to claim that he could not be discriminated against on the basis of nationality as far as the grant of a tideover allowance was concerned.^75 Nationals of other Member States could be placed at a disadvantage, since the grant of that allowance was linked to the requirement that the applicant has obtained the required diploma in Belgium, and that condition could be met more easily by Belgian nationals.^76 Though the ECJ considered it legitimate for the national legis- lature to wish to ensure that there is a real link between the applicant for that allowance and the geographic employment market concerned, the single condition concerning the place where the diploma of completion of secondary education was obtained was held to be too general and exclusive in nature and thus not necessary to attain the pursued objective.^77 Furthermore, the national rule would be discriminatory considering that a dependent child of a migrant worker, resident in Belgium, would be entitled to the tideover allowance, even after having completed his secondary education in another Member State and without needing to prove a ‘real link’ with the geographic employ- ment market concerned.^78
C Citizenship as an ‘Independent Source of Rights’
a) Right to Move and Reside
Relying on Article 12 EC, the ECJ held, even before the introduction of citizenship, in Gravier (as long ago as 1985) that equal treatment as regards access to education included the right to residence.^79 In 1992 in Raulin , the ECJ applied (only) Article 12 EC and held that there was a right of residence for the duration of the vocational training.^80 In Wijsenbeek in 1999, citizenship as an ‘independent source of rights’ was in question with regard to the right to move freely, but the ECJ was rather cautious in defining the scope
(^73) Ibid. , para. 20. (^74) Ibid. , para. 22 (with reference to Collins , note 65 supra , para. 63). (^75) Ibid. , para. 25. (^76) Ibid. , para. 28. (^77) Ibid. , paras 30 et seq. (^78) Ibid. , paras 32 et seq. (^79) See Gravier , note 45 supra. (^80) Case C-357/89, Raulin v Minister van Onderwijs en Wetenschappen [1992] ECR I-1027, para. 34.
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of such a right; it emphasised that, even if Article (now) 18 EC conferred an uncondi- tional right to move freely within the territory of the Member States, Member States—in the absence of harmonisation—retained the right to carry out identity checks at the internal frontiers of the Community.^81 Mr Wijsenbeek, a Dutch national, was pros- ecuted, because he had refused to present his passport and to establish his nationality when he arrived in the Netherlands at an airport, where only flights from and to other Member States were operated. The ECJ concluded that any penalties applied must be comparable to those which apply to similar infringements of domestic law, and are not disproportionate, thus creating an obstacle to the free movement of persons.^82 Later, in the cases of Baumbast in 2002 and Chen in 2004, the ECJ held (explicitly) that citizens were—according to Article 18 EC—entitled to reside in another Member State merely on the grounds of their citizenship and without the need to be economi- cally active.^83 Relying on Article 18(1) EC the ECJ assessed the limitations and condi- tions imposed by the Treaty and measures adopted to give it effect. In compliance with the relevant EC legislation,^84 the citizens in question were covered by sickness insurance and showed sufficient resources not to become a burden for the host state. In Baumbast , the children’s right to reside was based on Article 12 of Regulation 1612/68, according to which they were admitted to the host state’s general educational, apprenticeship and vocational training. The same provision was the basis for Mrs Baumbast as the primary carer of these children being entitled to reside for the time of her children’s education. It was with regard to Mr Baumbast that the ECJ’s ‘new approach’ became crucial: despite him no longer working in the UK—and thus not being entitled to rely on Article 39 EC and Regulation 1612/68—Article 18 EC was considered to confer directly a right to residence upon Mr Baumbast. Article 18 EC was also held to confer directly a right of residence in the Chen case. A Chinese couple went to Ireland for the birth of their second child. According to Irish law at that time, the child gained Irish nationality by being born in Ireland ( ius soli ). In its preliminary ruling, the ECJ confirmed the child’s right under Article 18 EC and Directive 90/364 to reside for an indefinite period in the UK, subject to the condition of being covered by appropriate sickness insurance and possessing sufficient resources not to become a burden on the public finances of the host Member State.^85 In order to enable the child to exercise her right to reside, the right of her carer to stay with her was also emphasised.^86 The UK had argued that the applicants were not entitled to rely on the Community provisions in question because of their intention to ‘exploit’ Commu- nity law by giving birth to the child in Ireland merely in order to acquire Irish nation- ality and Union citizenship. However, the ECJ rejected those arguments concerning an ‘abuse of rights’ by reasoning that the Irish law determining Irish nationality must be respected and could not be restricted by imposing additional conditions for recognition of this nationality.^87
(^81) Case C-378/97, Criminal proceedings against Wijsenbeek [1999] ECR I-6207, para. 43; see with regard to passports as a pre-condition for right to entry and residence in the context of free movement of services Case C-215/03, Oulane v Minister voor Vreemdelingenzaken en Integratie [2005] ECR I-1215. (^82) See Wijsenbeek , note 81 supra , para. 44. (^83) Baumbast , note 18 supra , paras 84 et seq .; Chen , note 19 supra , para. 26. (^84) The different provisions are replaced by Article 7 of the new Directive 2004/38/EC, [2004] OJ L158/77. (^85) See Chen , note 19 supra , para. 26. (^86) Ibid. , paras 42 et seq. (^87) Ibid. , para. 39.
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However, the court stated, national legislation is in compliance with Community law, if it provides for tax to be taken into account to the extent that the debtor proves that he has in fact paid—or is required to pay within a given period—a specified amount as income tax in the Member State where he resides.^95 At the same time, the ECJ contin- ued, first, the debtor’s right—to have tax taken into account—must be clear from the legislation; second, the detailed rules must guarantee the right to obtain an annual adjustment of the attachable portion of his pension to the same extent as if such a tax had been deducted at source in the Member State which enacted that legislation; and, third, those detailed rules do not have the effect of making it impossible or excessively difficult to exercise that right.^96
c) De Cuyper
In the pending case De Cuyper ,^97 the ECJ will have to decide whether a residence requirement, applied as a condition of entitlement to an unemployment benefit to unemployed persons over 50, who are exempted, inter alia , from the obligation to be available for work, constitutes a restriction on the right of citizens of the EU to move and reside freely within the Community contrary to Articles 17 and 18 EC.^98 De Cuyper is a Belgian national who was previously employed in Belgium and was granted unemployment benefit in 1997. Despite his declaration that he resided in Brussels, De Cuyper had moved to France and thereby lost—under Belgian law—his entitlement to the unemployment benefit he received. In February 2006, Advocate General Geelhoed delivered his Opinion, in which he came to the conclusion that the residence require- ment in question is not contrary to Articles 17 and 18 EC, but justified by the Com- munity principle of non-exportability of benefits. Advocate General Geelhoed began by stating that the benefit in question was not an ‘early retirement’ benefit. Though the unemployed need not be available for work to satisfy the conditions for compliance with the national legislation at stake, they could register as job-seekers, thereby showing that they were available for work.^99 He concluded that the benefit was not different from benefits following involuntary unem- ployment, and was thus to be qualified as unemployment benefit under Article 4 (1)(g) of Regulation 1408/71.^100 Putting the unemployment benefit in context, he emphasised that the benefit at stake aimed to guarantee support for employees and their family members in the event of temporary or involuntary unemployment.^101 The beneficiaries were people forming part of the active working population on the regular labour market, and the payment usually, at least in part, was related to the last salary.^102 General taxes or more specific collective levies related to primary labour income were the source of the benefit.^103 The beneficiaries thus must remain available on the labour market, be registered with a body which helps to find a new position and accept any suitable offer.^104
(^95) Ibid. , para. 36. (^96) Ibid. , paras 40 et seq. (^97) Case C-406/04, De Cuyper v Office national de l’emploi. (^98) See on this question ibid. , Opinion of AG Geelhoed delivered on 2 February 2006, para. 31. (^99) Ibid. , paras 41 et seq. (^100) Ibid. , para. 53. (^101) Ibid. , para. 55. (^102) Ibid. , para. 56. (^103) Ibid. , para. 57. (^104) Ibid. , para. 58.
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Advocate General Geelhoed considered the unemployment benefit to be a branch of social security specifically provided for the working population, to have (since the 1980s) increasingly been used as an instrument of labour market and employment policy. He added that in some (mainly continental) states, a policy of ‘older make way for younger’ was pursued, and, consequently, older employees were exempted from the requirement to be available on the labour market.^105 The ‘availability-for-work crite- rion’ was used by states as an instrument of an ‘activating’ labour market policy.^106 Having analysed the Community’s limited competence under Articles 125 EC et seq ., Advocate General Geelhoed stated that competence in establishing employment and social security policy rests primarily with Member States, in which the Community plays a coordinating and complementary role.^107 Consequently, he came to the conclusion that Member States were entitled to use unemployment benefits as a policy instrument, and current EC legislation continued expressly to exclude the export of unemployment benefits.^108 He then dealt with the question of exportability under Regulation 1408/71.^109 He concluded 1) that Member States must be able to use unemployment benefits as policy instrument; 2) that an unemployed person has the greatest chance to find a job in the last state of employment; 3) that the residence requirement would allow a monitoring system regarding family situation and remuneration activity; 4) that the exportation of benefits would admit unfair competition onto the labour market the person moves to; and 5) that the benefit expresses solidarity between the residents and that its exporta- tion might undermine social cohesion and could lead to a disproportionate financial burden being carried by the residents of one Member State.^110 In a last step, he assessed how the questions referred should be considered in the light of Articles 17 and 18 EC.^111 De Cuyper being a citizen of the Union who exercised his right to move and reside freely within the territory of the Member States, the circum- stances fell within the scope of Community law.^112 There was no need to show discrimi- nation in order to apply Article 18 EC. The residence requirement in question restricted the right of a citizen to move and reside freely.^113 However, that restriction was justified by the general principle arising from Community legislation that unemployment benefits may not be exported.^114
First Submitted October 2006 Final Revision Accepted February 2007
(^105) Ibid. , paras 60 et seq. (^106) Ibid. , para. 65. (^107) Ibid. , paras 66 et seq. and 72. (^108) Ibid. , para. 73. (^109) Ibid. , paras 74 et seq. (^110) Ibid. , paras 85 et seq. (^111) Ibid. , paras 92 et seq. (^112) Ibid. , paras 102 et seq. (^113) Ibid. , paras 104 et seq. (^114) Ibid. , paras 111 et seq.
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