Union Citizenship - metaphor or source of rights - Essay Example

? 15 December Norbert Reich. “Union Citizenship – Metaphor or Source of Rights?”- An Analysis Summary Reich is of the view the EU citizenship is just based on the condition of nationality while at the same time, some basic rights is footed on the yardstick other than nationality / citizenship alone. As per Reich, citizenship of EU seems to be an imitative condition of nationality. The present EU law does not define whether the citizenship of EU will cover those non-citizen individuals who are residing in a Member States for long years. In Rudy case, the concept of citizenship to offer rights for free movement, the Court of Justice has been reluctant to confer “quasi-citizenship” rights to nationals of third countries who are residing in the Union for many years. Thus, the law relating to EU citizenship seems to be in the infancy stage where a lot of reform has to be undertaken to plug the existing loophole that is found in the present EU citizenship rules and to make the EU as a whole as a borderless territory. Reich is of the opinion that the phrase “EU citizenship “ has not been defined exactly and due to this , there are flooding of case laws as regards to free movement and social rights for non-citizens living in EU for many years. Reich is of the view that citizenship can be defined as “full membership of the community “which offers a package of rights, which consists of social, civic and political rights. Reich is more concerned about the rights of third nationals who are residing in the EU Member States for long years. He is of the view that EU citizenship should not be decided merely on the citizenship of Member States but also should include those who are residing in a Member States for many years. Reich insists that there should not be any non-discrimination for granting citizenship to those who residing in a Member State for many years as compared to those who are having natural citizenship. Reich is of the view that citizenship should be awarded both on the status path and on the rights path. Reich prefers that union citizenship as a simile with some valued added to it. Reich cites the verdict in Micheletti case, where EU citizenship is derived from the condition of nationality. The EU has no authority to grant citizenship as an outcome of nationality. The citizenship in the EU Member State has to be recognised Union-wide even where an individual who had a dual citizenship as held in Micheletti case As per Reich, for contrasting between the duties and rights of Member States’ nationals in the European Union, nationality should not be considered as a criterion unless there exists some particular variety of cross-border disputes that inflicts different norms. In concluding part, Reich is of the opinion that the question – Union Citizenship – Whether Metaphor or source of Rights – can be found to be positive only to a restricted degree. Reich is of the opinion that citizenship seems to be like a baby in a cradle who is in deep sleep who has to be awakened by a gentle kiss by the direct impact of community law. 2.How has the law relating to Union Citizenship developed since the publication of the article in 2001? ( 900 words) As per Siofra O’ Leary, there is a failure to make an obvious connection between ambit and operation of the community citizenship with that of fundamental rights of EU citizen. EU citizenship offers the following rights; right of unrestricted movement , right to stand for election both for municipal and EU parliament , the right to petition , the right of consular and diplomatic protection , the right of petition and safeguard by the Ombudsman of the European Parliament. However, EU citizenship is not essential for enjoying certain rights for those who reside in EU Member States like directives on consumer, worker, environmental protection and data. The same will hold true in the case of both European and International conventions either on the aspect of conflict of laws or on jurisdictions. Thus, the concept of residence not only complements but also surpasses the customary notion of citizenship/ nationality as the footing is empowering some rights to individuals. Though, the rights like voting rights and free movement are being granted on the basis of citizenship only and there arises a question why not nationality based citizenship can be abandoned? For contrasting between the duties and rights of Member States’ nationals in the European Union, nationality should not be considered as a criterion unless there exist some particular variety of cross-border disputes that inflicts different norms. In Cowan case of 1989, it was held that every tourist who travels in the Union has the right to receive services, which can be regarded as a foundation for a general proscription of discrimination footed on nationality1. In Micheletti case, ECJ stressed that it is only Member States that may decide the conferment or revoking of nationality. However, EU cannot place any restriction on it if another Member State has already conferred the citizenship2. Article 17 of the Treaty of European Union (TEU) states that if a person is a citizen of a Member State, then the citizenship of the Union is hereby established automatically. However, it should be remembered that the conception of EU citizenship is rather diverse from that of the customary conception of State citizenship. Thus, citizenship of EU is established to Member State citizens without any prior consent or agreement of the individuals, and it is automatically conferred on them3. Recent Developments The ECJ on March 8 2011 had given a land mark judgment in the Zambrano case, on the scope and elucidation of the concept of EU citizenship. The Court viewed that Article 20 TFEU bestows a privilege of residence and job opportunities to both the father and mother of a minor EU citizen who continuously resided in his Member State without leaving it. In Zambrano case, the ECJ unambiguously cites the Article 20 TFEU in an exhaustively internal scenario. In Zambrano case , the ECJ does not openly corroborate that a right to reside in any member state is being conferred by the Article 20 which is not dependent on the right to move , it unreservedly appears to acknowledge interpretation in that respect. The impact of disbanding the limitation to foot on the privileges received from Union Citizenship, especially in an internal scenario are enormous as only very small percentage of Union Citizen are enjoying the free movement rights. Thus, Zambrano case really broadens the reach of Union law to many numbers of probable beneficiaries4. In Metock case (Case C-127/08 judgment 25 July 2008), the European Court of Justice (ECJ) observed that a national from a third-country who is in the UK who is a family member of EEA national (a Union citizen) by effecting his Treaty privileges in UK, is authorised to a right of residence on the footing of the family relationship alone. The ECJ held further that this privilege is not warranted to a prerequisite of lawful residence5. In Metock case, Member Nations are barred from extending immigration control to family members of migrant EU citizens of third country and hence, all the Union citizens competent of applying their right to free movement have the choice to live with their family members in a second member nation. Further in another recent case namely Garcia Avello, Rottmann, the ECJ had removed a barrier like the need to show an obviously recognisable physical movement in the cross-border so as to foot on the privileges gained from the citizenship of the Union. This verdict led to a considerable magnitude of legal vagueness as the casuistic approach of ECJ and its initiatives to discern some type of artificial connection to cross-border movement6. In McCarthy case, the test corroborated in Zambrano case was applied but there is no attempt to elucidate its scope. In McCarthy case , the decision of the ECJ that ,unlike in Zambrano case, a citizen of EU would not be divested of the” real enjoyment” of the substance of her privileges by denial of residential right to her spouse who hails from third country. In Dereci case , an effort is made to elucidate the ambit and the application of the “legitimate enjoyment “ criterion for the right of residence for the family member of national of a third country of immobile EU citizens as held in Zambrano case. 3. To what extent is the author’s evaluation of Union Citizenship still appropriate today and how do you think the concept will develop in the future? (1850 words) Reich is of the view that Union citizenship is an upshot of the nationality of one of the EU Member Countries and thus, citizenship of the Union can be termed as a “derived condition of nationality.” In Micheletti case, it was argued that there was no existence of community citizenship at that time. Thus, still date, EU member states are making decision about EU citizenship status7. For example, in Micheletti case, the Court ignored national proficiencies when it dealt with the acknowledgement of citizenship, especially in case of double citizenship. There are instances where Court’s verdict to move further in offering supra-national privileges to citizens separately of Member States. In Avello case, Court has given a verdict which is associated to national provisions on the usage of surnames8. It is alleged that due to recent enlargement of EU , if EU citizenship is awarded to newly joined Member States ,then there will be great jeopardy to the solidarity principle between Member States as there will be an excess inflow of such double citizens in to EU in a short span of time. (Kruma 7). Hence, some observers recommend that the ground for availing Union citizenship should be made stricter. Even though, some person’s not possessing national citizenship is entitled to have identical rights of citizens, they cannot the same privileges, as accorded at their national level at EU level. For example, non-citizens of Latvia and Estonia have some privileges which are offered only to the State like the privilege to have protection at the diplomatic level. Nonetheless, such corresponding rights are not available to them in EU9. Further , third country national is yet to have any political rights in the EU like voting rights, and it is ambiguous whether such third country national will be construed as “ second rate “ citizens or they will be awarded citizenship rights on a supra-national level in the near future10. Martin Sala was the first ever case and considered to be a landmark case in which the EU citizen rights to reside and move in some other Member Nation had a sovereign impact , diverse from the customary safeguard to the free movement privileges that could be stuck off in the economic functions of services ,work or establishment – this earliest decision then widely acknowledged and expanded in a volley of case laws , on EU citizen’s electoral rights (political) and as well as on free movement rights. In an effort to consolidate all the verdicts of the ECJ on the question of free movement of citizens in general and attempting to fortify and simplify the privilege of residence and free movement of all the EU citizens, Directive 2004/38 was espoused so as to revoke the initiatives that governed the free movement privileges on a segment –by-segment basis. In Boukhafa case, the Court held that the status quo of a Belgian national employed in German Embassy in Algiers would fall under the free movement regulations. ECJ was of the opinion that there existed a close link between the Community and the Boukhafa despite the fact her work was carried over outside the EC as German social security and labour law decided her citizenship status11. In Sala case, a Spanish citizen working in Germany claimed child-benefit allowance when she was out of employment, which was refused by German government that she was not having a valid residence permit. However, the ECJ did not borrow the concept of restricting condition for claiming child-benefit allowance and cited that Article 8 stipulates non-discrimination and due to that child-benefit allowance cannot be refused in the absence of a residence permit in Germany12. The ECJ verdict in Grzelczyk case has initiated a general principle to conceive that any prejudice or discrimination on the footing of nationality will not be tolerated against EU citizens who have applied their rights for free movement. ECJ in this case took into account the stipulation that had been put in place in French national but not placed on the Belgian nationals amounted to discrimination on the footing of nationality. Grzelczyk is a landmark verdict as it acknowledges explicitly that EU citizenship permits nationals of the Member States , who are legally residing in that Member State , shall have the right to enjoy social benefits ahead of the present Secondary Community law13. In Bickel and Franz case , ECJ was of the view that not allowing German –speaking nationals from Germany or Austria to exercise their mother tongue in Bolzano , where this was permitted to German-speaking Italians , resulted in discrimination footed on nationality14. In Wijsenbeek case, where a Dutch national declined to produce his passport at Schiphol airport and a Dutch court issued a sanction against him. The ECJ found that Member States are empowered to carryout identity checks at airport and there should not be any unbalanced sanction like sentencing, which has to be construed as unwarranted restriction on free movement within EU15. In Gunaydin and in Birden case , ECJ held that if a third country national who resided in a Member state for certain years say 3 to 4 year and also obtained a secured and stable employment in the Member State labour force was automatically entitled to get the resident permit16. In De Cuyper [2006] case, ECJ observed that the harmony of Belgian law on unemployment benefits with that of resident rights and freedom of movement, ushered upon by Article 18 of EC Treaty on EU citizens. It was claimed by Belgium, the claim of unemployment benefit by a French national who was residing in Belgium was against the Belgian rules. ECJ observed that the Belgian laws put some Belgian nationals at a drawback simply because as they have employed the freedom of residence and movement and is thus amounted to a bar on the freedom offered under Article 18 of EC Treaty. However, the ECJ acknowledged that the bar was necessary by objective reflections of public interest, which is not dependent upon the citizenship of the individual concerned. Hence, ECJ was of the view that a residence clause to claim the unemployment benefits as applied by the Belgian government was not excluded by the Article 18 of the EC Treaty17. In Tas Hagen [2006] case, two Dutch national who are residing in another Member State applied for the financial benefit which is available to victims of civil war. The application was rejected on the footing that they are not residing in Dutch as they live in the Netherlands. On referral to ECJ by Dutch Court, it was held by the ECJ that the requirement of the Dutch residence was in opposition to EC law. It was observed by the ECJ that Dutch legislation has placed at a drawback on some of the nationals of the Member State just due to the fact that they have used their freedom to move and to live in another Member State, which is construed as a bar on the freedoms granted by Article 18(1) EC Treaty on each and every national of the EU18. Norbert Reich article was published in 2001 and after that , till date , ECJ has given various landmark verdicts thereby interpreting and elucidating the eligibility for EU citizenship, the right to have free movement and to work anywhere in EU and to those non-EU nationals who are residing in EU for long years . In the Zambrano case, the Court viewed that Article 20 TFEU bestows a privilege of residence and job opportunities to both the father and mother of a minor EU citizen who continuously resided in his Member State without leaving it. In Metock case, ECJ held that a national from a third-country who is in the UK who is a family member of EEA national (a Union citizen) by effecting his Treaty privileges in UK, is authorised to a right of residence on the footing of the family relationship alone. In Tas Hagen [2006] case, ECJ held that Dutch legislation has placed at a drawback on some of the nationals of the Member State just due to the fact that they have used their freedom to move and to live in another Member State, which is construed as a bar on the freedoms granted by Article 18(1) EC Treaty. It is suggested that definition of EU citizenship has to be redrafted so as to include the various definitions added by ECJ on EU citizens from 2001 itself and the following are suggested so that definition of EU citizenship should be expanded accordingly in the near future. There exists an inconsistency in the Member States between the reality and the appropriate legal regulations facing citizens in their day-to-day activities, predominantly in cross-border scenarios. It is to be noted that the main issues happen when it comes to execution of European regulations by individual Member Nations concerned and in fine-tuning, their national legal setups at par with current legislative developments19. It is suggested that there is a demand for European citizens to think beyond the barriers to free movement and to be able to totally relish their privileges within the ambit of the Treaties regardless of where they have selected to reside or where they have purchased products or enjoyed services. In general, the transposition of Directive 2004/38/EC is somewhat challenging and not completely successful, which damages the basic privileges of EU citizens20. It is suggested that EU Directive 2004/38/EC should be revised to include the regulation relation to free movement of EU citizens and members of their families, especially from third nations, which include the backing of good practices and acquaintance of EU rules and non-discrimination, through better propagation of info to EU citizens about their privileges of free movement. (EU Citizenship Report 2010). It is suggested that steps should be taken to grant national of third-country who are legally residing in the EU, a chance to partake at the local level in the political process, subject to the length of their residency. It is recommended to initiate steps to scratch red tape that makes European citizenship rights, especially, freedom of movement, a realism and to get rid of all discouraging practices or other types of prejudices that discriminate between EU citizens, especially in granting residence rights21. The decision of ECJ in Dereci case emphasises the extraordinary character of those scenarios in which EU citizens will be divested of the real enjoyment of the essence of their privileges through a denial of the citizenship permit to their family members from the third country. In Dereci case , ECJ offers a restricted elucidation to the ambit of application of the Zambrano test, explaining that the proof of living together with the family members is not enough to corroborate that the EU citizen will be compelled to desert the Union territory in the aftermath of not granting such right. Works Cited Baarsma N A. The Europeanisation of International Family Law. London: Springer. ,2011. “EU Case Law” .10 June 2007. De Cuyper [2006]. 15 December 2011< http://www.eucaselaw.info/de-cuyper-2006/>. “EU Citizenship Report 2010.” 17 March 2011. Policy Recommendations. 15 December 2011 . Kruma Kristine. 2004. EU Citizenship: Unresolved Issues. 15 December 2011. Peers, Steve. EU Justices and Home Affairs Law. Oxford: Oxford University Press, 2011. Reich, Norbert. “Union Citizenship – Metaphor or Source of Rights?” European Law Journal, 7 (1) (2001):4-23. Wiesbrock Anja. 9 March 2011. The Zambrano Case: Relying on Union Citizenship Rights in “internal situations.” 15 December 2011 . Read More