EU Citizenship: Concept and Development
European Union citizenship is a fundamental status of nationals of the Member States, established by the Treaty on European Union (Maastricht Treaty) and now codified in Articles 18–25 TFEU. EU citizenship is conferred automatically on every person holding the nationality of a Member State and is additional to, not a replacement for, national citizenship. The Court of Justice has described EU citizenship as “destined to be the fundamental status of nationals of the Member States” (Grzelczyk, Case C-184/99). The concept has been progressively developed through Treaty amendment and judicial interpretation to confer a range of rights and to impose limits on Member State action affecting the legal position of Union citizens.
Legal Basis: Article 20 TFEU
Article 20 TFEU establishes that every person holding the nationality of a Member State is a citizen of the Union and enumerates the rights attaching to citizenship status: the right to move and reside freely within the territory of the Member States; the right to vote and stand as candidates in European Parliament elections and municipal elections in the Member State of residence; the right to diplomatic and consular protection from any Member State in a third country where the citizen’s own Member State is not represented; the right to petition the European Parliament and to apply to the European Ombudsman; and the right to address the EU institutions in any Treaty language and receive a reply in the same language. These rights are exercised under the conditions and limits defined by the Treaties and by measures adopted under them.
The determination of who is a national of a Member State — and therefore who enjoys EU citizenship — is a matter for each Member State to determine in accordance with its own nationality law. However, the Court has held in Rottmann v Freistaat Bayern (Case C-135/08) that when a Member State decides to withdraw nationality from a person who also holds nationality of another Member State, that decision falls within the scope of EU law and must comply with the principle of proportionality. Mr Rottmann, an Austrian national who acquired German nationality by naturalisation while retaining his Austrian nationality, was investigated by the German authorities for having concealed his prosecution in Austria. The German authorities withdrew his naturalisation, rendering him stateless and depriving him of EU citizenship. The Court held that the decision to withdraw naturalisation was not disproportionate in principle but that the referring court must assess whether the loss of EU citizenship was justified by the gravity of the original deception.
The Genuine Enjoyment Test: Ruiz Zambrano
The Court of Justice significantly expanded the protection of EU citizenship in Ruiz Zambrano v Office National de l’Emploi (Case C-34/09). Mr Zambrano, a Colombian national, resided in Belgium with his wife, also Colombian. Their children were born in Belgium and acquired Belgian nationality because Colombian nationality law provided that children born abroad did not acquire Colombian nationality automatically. Under Belgian law, the children derived Belgian nationality through residence. The family faced destitution and removal from Belgium where the parents had no right to reside.
The Court held that 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 who is the primary carer of a minor EU citizen would deprive that EU citizen of the genuine enjoyment of their citizenship rights, because the child would be forced to leave the territory of the Union altogether. The Zambrano judgment established that EU citizenship creates a core of rights that must be protected even in wholly internal situations where no cross-border element exists.
The Court has subsequently refined and limited the Zambrano doctrine. In Dereci v Bundesministerium für Inneres (Case C-256/11), the Court clarified that the genuine enjoyment test applies only where the EU citizen would be compelled, as a matter of fact, to leave the territory of the Union as a whole. Mere difficulties or inconvenience do not trigger the protection. In Chavez-Vilchez v Raad van Bestuur van de Sociale Verzekeringsbank (Case C-133/15), the Court elaborated that national authorities must assess whether the relationship of dependency between the third-country national parent and the EU citizen child is such that the child would be compelled to leave the Union if the parent were denied a residence right.
Rights and Duties
EU citizenship rights are not absolute and may be subject to limitations justified on grounds of public policy, public security, or public health, under Directive 2004/38/EC. The Citizens’ Rights Directive codifies the rights of free movement and residence, establishing graduated rights based on duration of residence: the right of residence for up to three months (subject only to holding a valid identity document); the right of residence for longer than three months (subject to working, studying, or having sufficient resources and comprehensive sickness insurance); and the right of permanent residence after five years of continuous legal residence.
Article 20 TFEU also imposes duties on citizens, including compliance with EU law and respect for the values of the Union listed in Article 2 TEU. The Court has held that EU citizenship can be lost where a Member State withdraws its nationality in accordance with national law, provided that the withdrawal complies with EU law proportionality principles. The relationship between EU citizenship and national citizenship remains contested, with national constitutional courts asserting limits on the transfer of competences to the EU in citizenship matters.