User:Kaihsu/EUlawD3

Constitutional and institutional law of the European Union.

Section D: General principles of European Union law.

Chapter 3: [Non-discrimination and] Citizenship.

Notes by Kaihsu Tai, 2011-08-12.

Legal basis: the Treaties
"In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship."

Part 2 TFEU (non-discrimination and citizenship of the Union; Articles 18 to 25) includes: "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 be additional to and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

(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 in their Member State of residence, under the same conditions as nationals of that State;

(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 on the same conditions as the nationals of that 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.

These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder."

The provision in Article 20(2)(a) has been interpreted in the light of the specific provisions in Part 3, Title IV TFEU (free movement of persons, service and capital) and 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. Article 7(1)(b) of the directive provides that the non-working, non-student immigrant (and family) has to “have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State”.

Scope ratione personae
“A citizen of the European Union, such as the appellant in the main proceedings, lawfully resident in the territory of the host Member State, can rely on [Article 18 TFEU] in all situations which fall within the scope ratione materiae of [Union] law, including the situation where that Member State delays or refuses to grant to that claimant a benefit that is provided to all persons lawfully resident in the territory of that State on the ground that the claimant is not in possession of a document which nationals of that same State are not required to have and the issue of which may be delayed or refused by the authorities of that State”; this discrimination cannot be justified: Case C-85/96 María Martínez Sala v Freistaat Bayern, confirmed in Case C-184/99 Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve.

Article 18 TFEU (ex Article 12 TEC; non-discrimination) precludes “national legislation which grants students the right to assistance covering their maintenance costs only if they are settled in the host Member State, while precluding a national of another Member State from obtaining the status of settled person as a student even if that national is lawfully resident and has received a substantial part of his secondary education in the host Member State and has consequently established a genuine link with the society of that State”: Case C-209/03 The Queen (on the application of Dany Bidar) v London Borough of Ealing and Secretary of State for Education and Skills. A five-year residence requirement for educational grant eligibility is valid: Case C-158/07 Jacqueline Förster v Hoofddirectie van de Informatie Beheer Groep.

“A Member State which applies to citizens of the Union not Directive 64/221 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health but general legislation relating to foreign nationals which makes it possible to establish a systematic and automatic connection between a criminal conviction and a measure ordering expulsion fails to fulfil its obligations under Directive 64/221”: Case C-50/06 Commission v Netherlands.

“Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect”: Case C-34/09 Ruiz Zambrano at 42 and 43; similarly see Case C-413/99 Baumbast and R v Secretary of State for the Home Department.

Directive 2004/38
Article 5 of Directive 2004/38 provides “[...] Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport. ¶ No entry visa or equivalent formality may be imposed on Union citizens. [...] The Member State may require the person concerned to report his/her presence within its territory within a reasonable and non-discriminatory period of time.” Article 4 similarly grants the right of exit.

Article 7 grants the right of residence beyond 3 months for workers, students, family member of the above, or those with sufficient resources and sickness insurance to ensure they do not become a social-service burden for the host Member State.

“Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there” subject to other provisions in the same chapter: Article 16(1).

“Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence”: Article 24(1), confirming Martínez Sala. The host Member State is not obliged to grant social assistance until this right has been granted, or to students: Article 24(2).