States that apply Directive 2004/38 to its own citizens

[acme4242]

http://eudo-citizenship.eu/citizenship- ... situations

Interesting analysis of the fallout from the Zambrano Judgment

The reach of Article 20 TFEU beyond Directive 2004/38/EC
A most notable outcome of the case is the fact that the reach of Article 20 TFEU extends to cases where the so-called ‘Citizens’ Directive’ 2004/38/EC is not applicable. In spite of the fact that primary law generally takes precedence over secondary legislation, this was far from evident, since Article 20 TFEU explicitly subjects the exercise of the rights derived from that article to the conditions and limits defined by the Treaties and secondary legislation. In Zambrano, the Court avoids the restrictions inherent in Directive 2004/38/EC, which applies only to Union citizens who move and reside in a Member States other than that of which they are a national and their family members, by relying on Article 20 TFEU instead. This way it also circumvents the application of the resource requirement in the Directive, which requires non-economically active Union citizens to demonstrate the availability of sufficient resources in order to reside in another member state for a period of more than three months. In this respect the Court departs from Chen, where the requirement of having sufficient resources was considered to be applicable to an infant Union citizen, even though it could be satisfied by relying on the resources of the parents. Thus, it seems to follow from Zambrano that by relying on Article 20 TFEU, Union citizens and their family members are not only freed from the requirement to move, but are equally not subject to any of the conditions and limitations contained in Directive 2004/38/EC. This has the paradoxical outcome that Union citizens who fall under the scope of Directive 2004/38/EC find themselves in a less favourable position than those who cannot rely on the said Directive and therefore fall under the regime of Article 20 TFEU.

[mastermind]

More analysis:
http://eudo-citizenship.eu/citizenship- ... march-2011

The Court of Justice of the European Union and Citizens of the Union: A Revolution Underway? The Zambrano judgment of 8 March 2011
Thursday, 17 March 2011 19:56
by Elspeth Guild, University of Nijmegen

8 March is generally celebrated as International Women’s Day. This year it may be celebrated as a milestone in children’s rights in the EU and as a point of transition for citizens of the Union. The key event was the handing down of the ECJ decision in the case C-34/-09 Zambrano.

The facts of the case are rather unusual and of a kind one would expect to find troubling the Court over the Returns Directive or some other immigration/asylum law directive. Instead, the Court is faced with an issue which is about EU citizenship. The Zambrano couple are Colombian nationals who have been resident in Belgium since 1999. They arrived on short stay visas then applied for asylum. Their asylum applications were rejected but on appeal the Belgian court, while not reversing the refusal, stated that the authorities must not send the couple back to Colombia on account of the civil war there. The couple thus fell into a limbo – no immigration/asylum status in Belgium but no action by the Belgian authorities to expel them. At first, Mr Zambrano was employed, but then his workplace was raided and his employer had to sack him as Mr Zambrano did not have a work permit. He was then refused unemployment benefit because of his irregular status. The couple kept applying for residence documents but their applications were consistently refused. Eventually, an industrial tribunal which was considering yet another refusal of social security benefits to the family refers the matter to the ECJ at the end of 2008.

What makes the case one about citizenship of the Union is that while all this was going on, the couple had two children, born in Belgium, who both acquired Belgian nationality by birth. One might well ask: How does this make the matter one about EU citizenship – is it not a case which falls outside EU law as it is wholly internal to one Member State? This is exactly what the eight Member States which intervened in the case argued. But the ECJ held otherwise.

The operative part of the judgment is surprisingly short – only 10 paragraphs. This may indicate that there was much disagreement among the judges about the legal issues. On the positive side, this means the case is very clear and there is no space for ambiguity. The key and startling findings of the ECJ are as follows:

• The case of the Zambrano family is a matter of EU law as the children are Belgian nationals, and therefore also EU citizens, living in Belgium;
• Directive 2004/38 does not apply to them as it only applies to EU citizens who move and reside in another Member State;
• The rights of the two Zambrano children, who are EU citizens, comes directly from Article 20 TFEU (citizenship of the Union);
• Those rights include:
o The right to live in Belgium (para 40 and 41);
o The right of residence for their third country national parents (both of them it would seem) to live in Belgium with them as this is necessary for the children who are EU citizens to enjoy their rights as citizens of the Union (para 42 and 43);
o The right to a work permit for the third country national parents to support the children (as otherwise they might all have to leave the state on ground of penury) (para 44).


There is no mention of the EU Charter of Fundamental Rights or the ECHR. These rights for third country nationals derive directly and exclusively from Article 20 TFEU – citizenship of the European Union.

What does this mean? There are two immediate consequences:

• Any third country national family which includes at least one dependent minor child who is an EU citizen, even if that child is the citizen of the state where the family lives, is entitled to rely on the EU child’s rights under Article 20 TFEU to a residence right in that state. There is no clarity on the form of the residence right.
• The third country national family members of a dependent minor who is an EU citizen, even where that child is a national of the state where the family lives, are entitled to work permits.

Both these rights for third country national family members are based on the principle that the dependent minor with EU citizenship might have to leave the territory of the Union in order to accompany his or her parents, if they were not allowed to reside and work to support the child.

From this logic some corollary issues arise:

• When is a child not a dependent minor child? In the ECJ’s judgment C-480/08 Teixeira interpreting Article 12 Regulation 1612/68, the Court found for the purposes of that provision, according to which a child is defined as dependent and under 21 for the purposes of education rights, that denying the right after the child passed the upper age limit would deprive the right of its force (para 82) and that even adult children may need the presence of their parents to successfully access their education rights. This line of argument could be applied by analogy;
• The same Teixeira judgment found that access to social welfare benefits for the parent was consistent with caring for the (adult) child in education;
• Does the logic also apply to a third country national spouse and other family members? There does not seem to be any obvious reason why the argument should be any different, if the third country national family member were a spouse rather than a child. The ECJ will have a chance to address this issue in the pending McCarthy case.

[mastermind]

A new comment on Zambrano case:
http://eudo-citizenship.eu/citizenship- ... ntegration
[quote]A comment on the Ruiz Zambrano judgment: a genuine European integration
Tuesday, 29 March 2011 14:18
by Loïc Azoulai, European University Institute

A genuine European integration
Let me say first where I see the main contribution of this judgment to the development of European citizenship. In the case-law of the Court which gave substance to this notion, EU citizenship consisted essentially in offering the nationals of the member states the opportunity to act on a transnational plane within the Union. Nationals of member states were granted rights in order to circulate freely, to be admitted in other member states and to enjoy the same treatment as nationals of the host country. They were vested with the power to address the authorities of another member state and to claim admission, residence and welfare benefits on the same conditions as the nationals of that state. This empowerment was aimed to ensure the social integration of EU citizens. The status of EU citizen has been mainly construed as a status of integration into the member states of the Union, a status of transnational integration. Now, what emerges from this case is the notion of integration within the territory of the Union taken as a whole. We move from a national or plurinational integration to a genuine European integration. The European territory as such is the natural place of life and integration for European citizens and their families.

‘Illegal residents’
This idea (an ideal?) comes up in relation to a specific situation exemplified by the Zambrano case. This case contains some interesting elements which are worth noting because they touch upon the general issue of migration in Europe today. Mr Ruiz Zambrano is a Colombian national who decided to leave his country of origin with his family and to seek asylum in Belgium. The Belgian authorities refused his application for asylum and subsequent applications to have his situation regularised. Despite this refusal and the absence of any resident permit, he and his wife have been registered as ‘residents’ in a Belgian municipality and he started to work regularly with a full-time employment contract. Since the rejection of his application for residence in March 2006 Mr. and Mrs. Zambrano have held special residence permits valid during the duration of the judicial action he has brought against this rejection. During this stay, Mrs Zambrano gave birth to two children, Diego and Jessica. They acquired Belgian nationality by the fact of being born in Belgium and since the parents did not take specific steps to have them recognised as Colombian nationals. This is the result of the application of the Belgian Nationality Code at the time of the case.

First point to note: their condition is typical of the condition of many migrants in Europe, who are in a transitory position, but a position which is intended to persist; they are migrants who are recognised and partially included in the administrative and economic life of the country but who are not authorised to stay in the territory. Mr and Mrs Zambrano belong to this category of people who have been provocatively labelled as ‘illegal citizens’ (E. Balibar). The second point concerns the children whose identity from a EU law perspective is twofold. First, they are dependent persons, a fragile population that cannot rely on its own resources. Arguably, the issue of the care is an important feature in that judgment. Second, they are Union citizens as Belgian nationals.

‘The territory of the Union’
Confronted with this case, the Court considers that EU citizenship law precludes Belgium from refusing Mr. Ruiz Zambrano a right of residence and a work permit. His minor children, who are EU citizens, should not be deprived of the right to stay within the territory of the European Union. In other words, deportation of European citizens to countries outside the territory of Europe is not permitted. The reference to the ‘territory of the Union’ is a central reference in the judgment. This reference is not only the metaphor which designates the sum of the physical territories of the member states. It is a normative reference which refers to a new common space, a space of distribution of rights and common values. What the Court is doing here is to recognise a status to specific categories of individuals – European citizens and the persons connected to them as dependents or care-takers. This status is attached to them wherever they happen to be, it does not depend on their physical location. It grants them rights to circulate and to occupy the European space. There is a strong normative dimension implicit in the reasoning. To reside in Europe means not only to be physically located in its territory but also to be granted a number of rights and ultimately to be under the protection of certain values of personal welfare and moral security.

Shifts in the legal theory of European citizenship
EU citizenship and mobility
The first and the most obvious shift lies in the disconnection of EU citizenship from free movement. In its first cases dealing with EU citizenship, the Court undertook to release the rights of citizenship from the economic considerations attached to freedom of movement in the realm of the internal market. The Court freed the mobility of individuals from the exercise of an economic activity. But the rights of citizenship were still dependent on mobility. This was reflected in Directive 2004/38 which codifies the jurisprudence of the Court and which states, in its preamble, that ‘Union citizenship is the fundamental status of nationals of the member states when they exercise their right of free movement’. Following the Zambrano judgment, one could say that EU citizenship is released from the mobility condition. This step couldn’t be achieved under the regime set up in the Directive and this is the reason why the Court, in the first part of its short judgment, sets aside the Directive and decides to ground its decision on the basis of Article 20 of the Treaty (concealing the fact that this provision explicitly refers to the conditions defined by the EU legislator in the Directive). On this basis, the Court is able to state that the sole presence of a Union citizen in a member state, even if this member state is his/her country of origin, is liable to trigger ‘European’ protection. The right of residence of the children is sufficient on its own to grant residence to the parents who take care of them. There is not even the need to refer to the fundamental rights of the children, their right to family life. The dispute is entirely settled on the basis of the statutory right of residence of the children.


The status of EU citizen
Another important change concerns the reference to the ‘status’ of citizen of the Union. The Court proclaimed that “Union citizenship is destined to be the fundamental status of nationals of the member statesâ€

[toves]

Hi

I know Norway, sweden and Denmark does, there you can choose which route to follow if you are a citizen in any of these countries and have exercised your treaty rights.