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EU Law Reading Session 7 Free Movement of Person and Citizenship of the Union General Reading: Craig and de Burca
- The TEU introduced the concept of legal citizenship as part of an effort to move from a mainly economic community to a political union. In addition to affirming rights of movement & residence & gathering some existing entitlements under the umbrella of citizenship, Arts 17 - 22 created a number of new political-electoral rights.
- Judging by Commission reports & litigation brought before the ECJ, these political rights haven't been extensively relied upon by EU citizens, nor have they been implemented particularly rigorously by the MS.
- Directive 2004/38 consolidates, updates & replaces most of the legislation governing the rights of movement & residence of all previous categories of persons enjoying such rights under EU law, e.g. the workers, self-employed, students etc under the title of 'citizens.'
- Most sig judicial development of the legal concept of citizenship has so far involved interpreting Arts 12 & 18 of the Treaty in a way which has extended incrementally the entitlement of EU nationals in host MS to equal treatment to various social benefits.
= In terms of legal implications one of the recurrent questions has been whether the introduction of EU citizenship has made any significant changes in practice or whether it's primarily symbolic.
= Citizenship provisions = contained in Arts 17 - 22 EC. Art 17 provides: Article 17
1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.
= Important things:
1.) EU citizenship is expressly made 'complementary' to national citizenship [?] doesn't seriously challenge the centrality of national citizenship; and
2.) EU citizenship is contingent upon possession of the nationality of a MS ? EU law doesn't purport to regulate the conditions under which MS confer nationality, other than by requiring them to recognise the nationality duty granted by another MS;
3.) 'duties' seems largely theoretical, since there are no obvious duties or regulations imposed by the Treaty on individuals. Article 18
1. 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 this Treaty and by the measures adopted to give it effect.
2. If action by the Community should prove necessary to attain this objective and this Treaty has not provided the necessary powers, the Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1. The Council shall act in accordance with the procedure referred to in Article 251.
3. Paragraph 2 shall not apply to provisions on passports, identity cards, residence permits or any other such document or to provisions on social security or social protection.
= One of the central questions raised by 17 & 18 is whether they introduced any innovation, other than the title of citizenship & its symbolic dimension, into existing EU law on the free movement of persons. Is it just a new name to cover old stuff?
= Can be broken down into a set of more specific queries: a.) do the new provisions introduce an autonomous & directly effective right to move &
reside in a MS, regardless of whether the person falls within any previously existing EU law status category?
b.) Do 17 & 18 change the law as it relates to 'wholly internal situations'? ? do they allow Is to challenge restrictions on their right to move & reside within their on MS, where they have not otherwise exercised EU rights of movement?
c.) have 17 & 18 contributed to the creation of new substantive rights for EU nationals who don't fall within any prior-status category?
a.) Does 18 create a new & directly effective right?
= Does 18 introduce an autonomous & directly effective right to move & reside within a MS, regardless of whether that person falls into any other category of EU law?
= The right of EU citizens to move & reside was introduced by Art 18(1) EC ? expressly made 'subject to the limitations & conditions laid down in the EC Treaty & by the measures adopted to give it effect.' Clearly includes limitations such as those listed in the Treaty enabling MS to adopt restrictive measures on the grounds of public policy, security &
health, also seemed probable that 18 intended to refer to the financial & health-insurance conditions imposed by the 3 Residence Directives on students & non-economically active persons. [?] raised the question of whether 18(1) actually added anything to the existing law or whether it simply renamed the existing rights (& limits) as the rights of EU citizenship.
= In Baumbast (2002), the ECJ was asked whether 18 conferred a directly effective right of residence on an EU national who had been found by the relevant national tribunal to be neither a worker nor a person covered by one of the Residence Directives.
= Baumbast (2002): the Court was asked whether an EU citizen who no longer enjoys a right of residence as a migrant worker in the host MS can, as a citizen of the EU, enjoy there a right of residence by Art 18(1). ECJ: 80. Union citizenship has been introduced into the EC Treaty and Article 18(1) EC has conferred a right, for every citizen, to move and reside freely within the territory of the Member States ... the Treaty on European Union does not require that citizens of the Union pursue a professional or trade activity, whether as an employed or selfemployed person, in order to enjoy the rights provided in Part Two of the EC Treaty, on citizenship of the Union.
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