Can EU Citizenship Become The Fundamental Status of EU Citizens?

In Grzelczyk (Case C-184/99), the Court of Justice of the European Union famously held that "Union citizenship is destined to be the fundamental status of nationals of the Member States". About twenty years later, many have suggested that this statement has proved nothing but a daydream.

Union citizenship is set out in Article 20 TFEU. It states that every national of the Member States of the EU shall have Union citizenship. It further states that citizenship shall be ‘additional to and not replace national citizenship’. The most significant right that Union citizenship grants is ‘the right to move and reside freely’ within the EU. For the purposes of this paper, citizenship shall be considered as being the legal and symbolic status from which individuals derive their rights and identity.[1]

This essay shall analyse three different interpretations of the significance that has been attached to Union citizenship in order to determine whether the statement from Grzelczyk[2] has proved nothing but a daydream. The first of these approaches is one which agrees with the above statement. This approach advances the idea that in the earlier case law, the Court of Justice established a foundation on which Union citizenship’s fundamental status could be formed but that the Court has recently departed from its earlier sentiments. The second approach disagrees with the idea that the recent judgments represent a departure, rather they have finetuned and further established the fundamental nature of Union citizenship. The third approach argues that there is no scope within the Treaties to make Union citizenship the fundamental status of EU citizens. Therefore, the statement in Grzelczyk has not been proved to be a daydream, rather it was always a daydream and continues to be a daydream as the Treaties currently stand. The third approach is the one that shall be defended in this essay.

The structure of this paper shall consist of an analysis of the first two approaches and their shortcomings, before advancing the argument that Union citizenship does not and never has constituted citizenship in any meaningful sense and therefore the idea that Union citizenship could become the fundamental status of EU citizens is implausible as the EU currently stands. After this, the essay shall consider whether it is possible for Union citizenship to gain fundamental status at some point in the future.

The First Approach

Early Case Law

This approach argues that the creation of Union citizenship had ‘far-reaching effects’[3] which could be seen in Martínez Sala,[4] Baumbast[5] and Grzelczyk. These cases established that once a Union citizen is lawfully resident, he or she is entitled to equal treatment by virtue of Article 18 TFEU. Further, in Baumbast, it was confirmed that Member States’ decisions to terminate residence must comply with the principle of proportionality and take into consideration the personal circumstances of the citizen. Spaventa argues that this case law firmly established EU citizen’s right to equal treatment and thus the significance of Union citizenship.[6] A criticism of this approach is that the requirement of lawful residence suggests that Union citizenship is not fundamental because it makes equal treatment conditional. Spaventa addresses this criticism by arguing that the Court’s approach is justified as it ensures that the claimant has a ‘real link with the domestic employment market’.[7] However, this does not address the fact that if such fundamental Union citizenship existed, integration would be irrelevant as all citizens would be entitled to move around the EU without restrictions. For this reason, it is argued that Spaventa’s approach attaches too much significance to the impact of cases such as Grzelczyk on Union citizenship.

The argument that these cases have shown Union citizenship to be of fundamental status is further weakened by the fact that Union citizenship has not ‘[extended] the scope ratione materiae of the Treaty to internal situations’.[8] This gives rise to reverse discrimination as those who can establish a cross-border link are subject to the much more favourable EU provisions instead of the generally harsher national immigration laws. The harsh impact of reverse discrimination can be seen most clearly in situations that involve family reunification rights.[9] As a result, certain EU citizens are able to rely on their citizenship rights while others are not and this is incompatible with the notion that Union citizenship forms the fundamental status of all EU citizens.[10] Moreover, there is no scope within the Treaties to remedy this issue.

In 2008, Spaventa disagreed with this and instead argued that the Treaties could be interpreted in a way which would prevent reverse discrimination by protecting static citizens as this interpretation would be ‘consistent with both the existing case law…and the demands of a meaningful concept of citizenship’.[11] Specifically, she argued that what is now Article 18 TFEU can be used to bring purely internal situations within the scope of Article 20 TFEU and substantiated this argument using examples from the case law where this seemingly happened.[12] However, the strongest support for the idea that Union citizenship rights can apply to static citizens can be found in Ruiz Zambrano[13] which emerged after Spaventa wrote her article. In this case, Article 20 was held to preclude a Member State from ‘refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence’ as it would ‘deprive those children of the genuine enjoyment [of their Union citizenship rights]’.[14] Mantu suggests that this application of Article 20 to a purely internal situation strengthened Union citizenship’s fundamental status.[15] However, it is argued that this conclusion is misguided as Ruiz Zambrano was, in fact, not a wholly internal situation. Davies convincingly makes this argument by pointing out that when the Court referred to the ‘genuine enjoyment’ of rights, it was referring to the right to move within the EU, thereby establishing a cross-border basis for the judgment.[16] This argument is evidenced by the fact that movement is the primary Union citizenship right outlined in Article 20 and by the fact that in later cases the Court explicitly clarified that this is the reason a Union citizen cannot be forced to leave the EU.[17]

Recent Case Law

Spaventa now argues that the Court’s interpretation of Union citizenship has regressed since the initial case law, meaning that Union citizenship is now a ‘mere, and small, addition to national citizenship rather than a true supranational status’.[18] Proponents of this argument point to Dano,[19] Brey[20] and Alimanovic[21] as evidence that the Court’s approach changed following Ruiz Zambrano. Nic Shuibhne, for example, argues that the abandonment of the proportionality test in Dano, combined with stricter compliance with the requirements of economically inactive citizens set out in Directive 2004/38, undermines the primary rights of Union citizens, namely the right to equal treatment set out in Article 18.[22]

This argument is again misguided as it overestimates the possibilities of the Treaty provisions on citizenship. Union citizenship never conferred meaningful or comprehensive rights and therefore was never fundamental in the first place. This means that any supposed change in judicial interpretation is irrelevant, as will be explored in the third section of this essay. The argument that the Court’s interpretation of the Union citizenship provisions has changed shall be specifically addressed in the next section of this essay.

The Second Approach

The second approach to the case law on Union citizenship is that Grzelczyk set out the fundamental nature of Union citizenship and that subsequent cases, such as Dano, have simply applied the earlier principles but to different scenarios. Therefore, there has been no departure from the ‘fundamental status’ rhetoric. Verschueren argues that a case like Dano where ‘a person moves to another Member State solely in order to obtain social assistance there’ is entirely different to one such as Baumbast where a person has sufficient resources and health insurance, just not emergency health insurance. He consequently argues that the question of proportionality did not need to arise in Dano as the claimant had objectively failed to meet the requirements set out in Directive 2004/38 and thus was not entitled to equal treatment.[23]

This argument is also advanced by Roeben et al, who argue that ‘that primary law enshrines an individualistic fundamental rights-based conception of Union citizenship’ and that ‘the case law has established Union citizenship as the fundamental status of individuals’.[24] They use Ruiz Zambrano as evidence of the fundamental nature of Union citizenship and argue that it demonstrates that citizenship rights apply to all citizens, not just those who move. They further argue that there has been no departure from Ruiz Zambrano and that this can be seen in the recent cases of Rendón Marín[25] and Chavez-Vilchez[26] where the Court restated that Member States cannot deprive EU citizens the genuine enjoyment of their citizenship rights by refusing their parents a residence permit. Lenaerts – the President of the Court of Justice – agrees and additionally suggests that the cases where the Court has stated that the Ruiz Zambrano principle only applies in ‘exceptional circumstances’[27] have in fact been examples of the Court merely applying the principles set out in the earlier cases and therefore there has been no shift in the Court’s approach which would render Union citizenship merely additional rather than fundamental.[28]

Nic Shuibhne disagrees with this interpretation of the recent case law, instead arguing that McCarthy[29] evidenced a ‘shift from predominantly rights-opening to predominantly rights curbing assessments of citizenship rights’.[30] In this particular case, the claimant attempted to rely on the principle from Ruiz Zambrano to gain a residence permit for her third country national husband. As mentioned, Nic Shuibhne also argues that the decision in Dano further evidences a distinct shift in the case law. She claims that this shift has been the result of political concerns relating to the Eurozone crisis and concerns over benefit tourism.[31]

It is submitted that the approach taken by Lenaerts is more compelling than that of Nic Shuibhne. Cases such as McCarthy do appear to be merely an extension of the principle in Ruiz Zambrano rather than a total U-turn because it is plain to see how a child would necessarily be compelled to leave the EU and give up their free movement rights if the parents on whom they were dependant were denied a right of residence. The same cannot be said for a woman whose husband she is not dependant on is denied a residence permit.

The Third Approach

Despite Lenaerts’ approach being stronger, both of the above approaches are erroneous because they overestimate the importance of the case law in establishing Union citizenship as being of ‘fundamental status’. The fact that a third country national can rely on their children’s Union citizenship to be granted a residence permit does not give Union citizenship fundamental status to EU citizens as only an extreme minority will be affected by the Ruiz Zambrano principle. Further, the migrant EU citizens’ right to equal treatment in host Member States, as applied in Grzelczyk and similar cases, also does not establish the ‘fundamental nature’ of Union citizenship because this right only applies to those who move and are economically self-sufficient, either through employment or through having their own resources. This argument is put forward by Craig, who adds that the Court consistently ‘pays insufficient attention to internal limits expressed [within the Treaties]’ when they reassert that Union citizenship is destined to become of fundamental status.[32] Most EU citizens will not move and therefore will be unaffected by their ‘fundamental’ Union citizenship rights.

Secondly, citizenship is usually considered to involve the conferral of civil, political and social rights.[33] By comparison, Union citizenship only offers the right to move, to vote and stand as a candidate, to diplomatic protection by other Member States and to petition Parliament. As Barnard observes, this ‘rather motley collection of rights’ falls short of the conventional concept of citizenship.[34] This is echoed by Follesdal who argues that the Union citizenship rights offer ‘too little’ and are of an ‘anaemic content’.[35] A further indication that Union citizenship as it is currently constituted cannot become of fundamental status is that these rights which are envisioned as promoting commitment to the EU are actually being enforced against Member States. Additionally, EU citizens can only rely on the Charter of Fundamental Rights when Member States are implementing EU law which is further evidence that no such fundamental status can be derived from Union citizenship.[36] Finally, the fact that host states can deport migrant EU citizens is irreconcilable with the idea that Union citizenship is these citizens’ fundamental status.

Union Citizenship’s Destiny

As has been argued, Union citizenship cannot currently become the fundamental status of EU citizens. However, this does not mean that there is no chance of the Treaty provisions on Union citizenship being amended at some point in the future to provide for universal equal treatment and meaningful rights that can be relied on in any situation.

However, Thym suggests that ‘Treaty changes and case law are not capable of bringing about an enhanced degree of pan-European identity’.[37] Therefore, if the EU does wish to meaningfully establish Union citizenship as a fundamental status, it will first have to reconstruct social identities by embedding a sense of Europeanness into social structures and political life. To this end, the EU has tried a number of initiatives, including promoting the education of EU citizens on their shared European values and the benefits of EU citizenship. For example, in 2016 the European Parliament approved a report on teaching children about the EU in schools in order to ‘overcome Euroscepticism’.[38]

Such initiatives may result in nationals of the Member States embracing Union citizenship and thus it is entirely possible that Union citizenship could be destined to become of fundamental status. Alternatively, as Harasimiuk argues, a dominant sense of European identity may never be shared by the majority of EU citizens because despite sharing ‘some historical, cultural or religious roots, EU citizens’ identity at the political level is still very weak’.[39] Harasimiuk adds that political events such as the rejection of the Constitutional Treaty in national referenda and, more recently, Brexit indicate that there are no common European values that can form the basis of EU citizens’ identity.[40] Therefore, it may not be possible to bring about the attitudinal change that would be required to reformulate Union citizenship – and the EU as a whole – so as to establish a Europewide nation-like community with Union citizenship as the fundamental status of EU citizens.

Conclusion

In summary, there is no scope within the Treaties as they currently stand to establish Union citizenship as the fundamental status of all EU citizens. This is evidenced by the case law as the Court has only given effect to the free movement provisions in circumstances which involve a cross-border link. Furthermore, the free movement rights conferred by Union citizenship in the Treaties and Directive 2004/38 will not affect the majority of EU citizens as most will have no need to rely on them. However, this does not mean that fundamental status being the destiny of Union citizenship is definitively a daydream. It is plausible that the EU Member States could integrate to such an extent that Union citizenship does become the fundamental status of EU citizens, but to allow this the scope of the Treaty provisions on Union citizenship would have to be considerably enlarged.