1. Summarise the article in no more than 500 words. The eu citizenship inspired by the freedom of movement for persons envisaged in the Treaties, the introduction of a European citizenship with precisely defined rights and duties was considered as long ago as the 1960s. Following preparatory work that began in the mid-1970s, the Treaty on European Union (TEU), adopted in Maastricht 1in 1992, gave as an objective for the Union ‘to strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union’.
A new part of the EC Treaty 2is devoted to this citizenship. The ECJ reformulated the questions of the UK Supreme Court to include an assessment of the applicability of both the Directive and Article 21 3. The Directive was held to be inapplicable to the situation of Mrs McCarthy. In particular it only applied to situations where a Union citizen has moved to another Member State. In addition, the Directive concerns the conditions of residence of a Union citizen in another Member State. As a national of the UK Mrs McCarthy’s residence there could not be subject to conditions. The Directive was therefore inapplicable.
Nor could Mrs. McCarthy rely on Article 214. While the fact that she had never exercised her right of free movement did not necessarily preclude her relying on her status as a Union citizen, the national measure in question did not have ‘the effect of depriving her of the enjoyment of the substance of the rights associated with her status as a Union citizen’. In particular it did not have ‘the effect of obliging Mrs McCarthy to leave the territory of the European Union. ’ The situation was therefore held not to be governed by EU law. The dual nationality of Mrs McCarthy did not in itself alter this conclusion.
As a consequence Mr. McCarthy did not enjoy a right of residence under EU law. McCarthy follows the ground-breaking decision in Zambrano 5and both confirms its general finding while limiting its application. McCarthy confirms the general rule that EU citizenship law, and in particular Articles 20 and 216 prohibit national measures that deprive their own nationals of ‘the very enjoyment of the substance of rights conferred by the status of EU citizenship. ’ The Court equally held that Directive 20047 only applies where a citizen moves to another Member State.
In confirming this aspect of Zambrano, the Court elaborates significantly on it’s reasoning and relies on the wording, purpose and context of the Directive. More specifically, McCarthy 8confirms that one of the rights conferred by the status of EU citizenship is residence on the territory of the Union. Perhaps as important as the practical implication is the symbolic connection between citizenship and territory emerging from Zambrano and confirmed in McCarthy. However, perhaps more significantly, McCarthy places limits on the application of Zambrano.
Contrary to some readings the ‘purely internal’ rule has not been abolished but persists, if in a modified form. Only in exceptional cases, where ‘the very enjoyment of the substance of rights conferred by the status of EU citizenship’ is in question does a situation with no cross-border element fall within the scope of EU law. McCarthy also clarifies the situations of dual nationals and discusses previous cases touching on the issue. The Court clarified that the mere fact of dual nationality does not, in and of itself, bring the situation into the scope of EU law.
Rather, a national measure must impact on a specific right conferred by EU law. On the specific (and more practical) issue of residence rights for family members of citizens, McCarthy would appear to limit the application of Zambrano to situations where a carer relationship exists. Thus, whereas in Zambrano the company (and indeed authorisation to work) of a carer-parent was considered essential for the continued residence of the citizen on the territory of the Union, in McCarthy the same logic did not apply to the company of a spouse. 2.
Explain how EU citizenship has developed over time with particular reference to case law you consider relevant. (1000 words) The EU Citizenship is held by any person who holds the nationality of any EU country, which makes them automatically a EU, citizen. EU citizenship is additional to and does not replace national citizenship. It is for each EU country to lay down the conditions for the acquisition and loss of nationality of that country. Citizenship of the Union is conferred directly on every EU citizen by the Treaty on the Functioning of the EU. 9
The Treaty of Rome (1957) set out the idea of freedom of movement that people should be allowed to move freely across national borders. 10 The Maastricht Treaty built upon this principle and set out four rights that are open to all nationals of EU member states: the right to move and reside within EU territory; the right to vote and stand for election at the local and European level in any member state; the right to protection from the diplomatic authorities of any member state when travelling outside the EU, and the right to petition the European Parliament. Citizenship has long been linked to national identity.
An important part of the way in which people define who they are relates to the country in which they live. This cannot be transformed through a treaty. 11 The Maastricht Treaty, any national of a Member State is a citizen of the Union. The aim of European citizenship is to strengthen and consolidate European identity by greater involvement of the citizens in the Community integration process. Thanks to the single market, citizens enjoy a series of general rights in various areas such as the free movement of goods and services, consumer protection and public health, equal opportunities and treatment, access to jobs and social protection.
There are four categories of specific provisions and rights attached to citizenship of the European Union; 1) Freedom of movement and residence throughout the Union; 2) the right to vote and stand as a candidate in municipal elections and in elections to the European Parliament in the state where he/she resides; 3) protection by the diplomatic and consular authorities of any Member State where the State of which the person is a national is not represented in a non-member country; 4) the right to petition the European Parliament and apply to the Ombudsman. 2 Overtime the EU Citizenship has developed, this also known as the modern citizenship. The evolving has taken place over a certain period of time, during the industrial revolution, following the American and French revolutions. 13 The society has become less feudal and more democratic, and individual acquire more rights and possibilities. The core elements of the resulting notion of citizenship were legally enforceable rights, loyalty, a sense of belonging to the national community and participation in political decision making. Contemporary national citizenship is the product of modernity. 4 The economy, social and political change in the 18th century and the 19th century have transformed the state, the national community and the position of the individual in that community. Matters of nationality remain within the exclusive competence of the Member States. They decide who can or cannot be a EU citizen. Being a national of a Member State is the condition sine qua non for acquiring EU citizenship, and therefore enjoying the rights linked to it. This led some scholars to the conclusion that EU citizenship might be characterised as a “derived condition of nationality”. 5 One of the development that is found in the Directive 2003/86/EC which determine the conditions for the exercise of the right to family reunification by nationals of non-member States residing lawfully in the territory of the Member States. The directive provides in particular that a national of a non-member State lawfully living in the EU is in principle entitled to bring his/her children to join him/her by way of family reunification. The directive nevertheless allows Member States in certain circumstances to apply national legislation derogating from the rules that apply in principle.
The European Parliament took the view that several provisions are contrary to fundamental rights, in particular the right to respect for family life and the right to non-discrimination. Because of that it brought an action for annulment However after a very intense analyse and after making the first referral to the EU Charter, the ECJ ruled that the Community legislature did not exceed the limits imposed by fundamental rights in permitting Member States that had, or wished to adopt, specific legislation to adjust certain aspects of the right to family reunification. 6 This occurred before the ECJ. 3. To what extent do you agree with the author’s assessment of Case C-434/09, Shirley McCarthy v. Secretary of State for the Home Department, Judgment of the Court of Justice (Third Chamber) of 5 May 2011, nyr; and Case C-256/11, Dereci and others v. Bundesministerium fur Inneres, Judgment of the Court of Justice (Grand Chamber) of 15 November 2011, nyr. Please justify your answer with reference to academic commentary, case law and other relevant material you have found during your research.
In this paper, two cases would be individually discussed named, McCarthy case and the Dereci case. Each case has been studied in detail before making any analysis. The given background of the cases made the basis for the understanding of each case with its all conditions and circumstances involved in it17. The first case of McCarthy would be discussed in this paper with its complete background and related issues. Mrs. McCarthy as a dual national of UK and Ireland was seeking the residing in UK with his family including his husband Mr.
McCarthy who was a Jamaican national18. After the refusal of first request many appeals has been made by McCarthy to accept here request of granting her to reside in UK. The other case of Dereci concerns the series of refusals in against the request for grant of residence permits to the family members who were the third country nationals and never experience the European Union rights of free movement. Both cases would be discussed in detail with reference to academic commentary and other related material to conclude this paper.
Case C-434/09, Shirley McCarthy v. Secretary of State for the Home Department, Judgment of the Court of Justice (Third Chamber) of 5 May 2011, nyr; The above-mentioned case arose from the attempt made by Mrs. McCarthy. Mrs. McCarthy was a dual UK-Irish national19. She was relying on the European Union citizenship rights so that she can secure a right of residence for her husband who was a Jamaican National in the UK. It is also worth noticing that Mrs. McCarthy never resided in any other member state.
Also she has never been in the position of self-employment, and was not self-sufficient and was neither relying nor enjoying the social welfare benefits. Mrs. McCarthy applied for and received the Irish Passport while she was married to Mr. McCarthy, a Jamaican national without a right of residence in the UK20. Depending on her status as an Irish citizen, residing in the UK, she wanted a right of residence in UK as a European Union citizen, which was based on the Directive 2001/38/EC. And at the same time Mr. McCarthy was also looking for nd sought a right of residence on behalf of her spouse, who was a European Union national. The request made by Mrs. McCarthy was refused on the basis that: she is neither a worker nor a self-employed person. Moreover she is not a person of sufficient independent means. Therefore, she cannot qualify for the permanent residence under the Directive mentioned earlier21. After that refusal, she made number of appeals to the Supreme Court of the United Kingdom and requested a preliminary on the interpretation of the Directive from the European Court of Justice (ECJ).
The European Court of Justice then reformulated the questions of the United Kingdom Supreme Court to make an assessment of the applicability of both the Directive as well as Article 21 TFEU22. Later it was found that the directive was held inapplicable in case of Mrs. McCarthy because it can only be applied to the situations where a citizen of Union or the Union Citizen has moved to another member state. Moreover, the directive was more concern about the residence’s conditions of Union Citizen in another member state. Mrs. McCarthy could not be subject to conditions as she was a UK national.
Therefore the directive was inapplicable for the situation of Mrs. McCarthy. Moreover, Mrs. McCarthy cannot even rely on Article 21TFEU because of the fact that had never used her right of free movement23. This even did not exclude her relying on her status as a Union Citizen. The national measure in question did not have the effect of depriving her of the enjoyment of the rights associated with her status as a Union Citizen. Especially, it did not have the effect of obliging the Mrs. McCarthy to leave the European Union territory. The conclusion could not be altered even by the status of Mrs.
McCarthy of dual nationality. As a result Mrs. McCarthy didn’t able to enjoy the right of residence under the law of European Union24. The groundbreaking decision in Zambrano was followed by the McCarthy and both confirm the general finding while limiting the application of it. Furthermore, McCarthy confirms the European Union citizenship general rule, according to which Articles 20 and 21TFEU prohibit the national measures that deprive their own nationals for the enjoyment of the substance of rights honored by the status of European Union citizenship.
It was clearly stated that court equally held that the Directive 2004/38/EC only applies to those citizen who moves to another member state. The court elaborate significantly in confirming the aspect of Zambrano on it’s relying on the wording, reasoning, context of the Directive and its purpose. Infact, as it was important, as the practical implication is actually the symbolic connection between the territory emerging from Zambrano and the citizenship and confirmed in McCarthy. Although more significantly, limits on the application Zambrano has been placed by the McCarthy.
The Court then clarified that the fact, Mrs. McCarthy having dual nationality does not itself bring the condition in to the scope of European Union Law25. On the specific issue of citizen’s family member’s residence rights, McCarthy would appear to limit the Zambrano situations. Therefore, in Zambrano the company of a career-parent was considered to be essential for the continued residence in the territory of the Union of the citizen, in McCarthy situation the same logic didn’t apply to the company of a spouse. Case C-256/11, Dereci and others v.
Bundesministerium fur Inneres, Judgment of the Court of Justice (Grand Chamber) of 15 November 2011, nyr. The immediate importance of Dereci lies in the re-assertion of the ‘genuine enjoyment’ test that was established in Ruiz Zambrano and was also specifically the limitations that the court has placed upon the test’s scope. In Para. 66, the court emphasis that to satisfy the test, it is necessary for the Union Citizen that he must be in the situation where he has to leave not only the territory of the member state of which he is a national but also the territory of the Union as a whole.
The above mentioned statement suggest that a European Union citizen who has the option to reside with this family member in the second member state will not be satisfying the condition of deprivation of genuine enjoyment26. This would, however, make the Ruiz Zambrano test worthless in its application to non-minor European Union citizens that is allowed to exercise the right of movement independently within the Union: though the member states are restricted from applying the immigration control to the family members who are third country national of migrant European Union citizens following the Court’s decision in Metock.
And therefore all the Union citizens are able to exercise their right of moving freely as the option to reside with their family members in a second member state. The decision made by the court highlights the unique nature of those situations and conditions in which European Union citizen would be deprived of the enjoyment of the substance of their rights through a residency permit refusal to their third country national members of the family.
A limited clarification offered by the court stating that the desirability of residing with the family members is not sufficient to prove that the European citizen will be force to leave the territory of the Union in the event that right is not granted. However, the above-mentioned statement clearly narrows the sound scope of the decision took in Ruiz Zambrano, the negative justification offered by the court. The treatment of fundamental rights in Dereci by the court will afford little comfort to those struggling to satisfy the test of genuine enjoyment.
While leaving the court to determine that the applicant’s situation should fall within the scope of European Union law, it was highlighted by the court that Article 7 CFR would be provoked or triggered only in the exceptional circumstances in which the test of Ruiz Zambrano was satisfied and hence not a purely internal situation out with the scope of European Union law. The commentaries made on the cases McCarthy and Ruiz Zambrano have made significance from the reference made by the Court to Art 20 and 21 TFEU.
The ‘citizenship provisions’, was referred by the court in Dereci collectively by passing the importance of alignment with reformulated provisions of treaty under Lisbon27. This clearly establishes the court decision as founded with the ‘contextual and teleological’ interpretation of the European Union scope of citizenship. The distinguish between the categories of familial relationship was not appeared by the court in Dereci in applying the test of ‘genuine enjoyment’.
While on the McCarthy decision, it may have suggested that relationship with spouse by its nature would be failed where the dependency relationship of child and a parent will be succeed. This distinction develops little substantiation in the joint cases of Dereci and others. The judgment made in Dereci did not resolve the ambiguity factor surrounded the application of requirement of adequate resources to the family members belong to the third world country seeking family reunification. References
Case C-127/08, Metock and Others,  ECR I-6241, para 58 O’Leary, op. cit. supra note 61 Wiesbrock argued strongly against the legitimacy of such an interpretation of McCarthy, citing Case C-408/03 Commission v. Belgium  ECR I-2647, para 40 and Zhu A. G. Kokott cites Case C-369/90, Micheletti and Others,  ECR I-4239, para 10; Garcia Avello, cited supra note 9, para 28; and Zhu and Chen, cited supra note 3, para 39. See also Case C-138/02, Collins,  ECR I-2703 Akrich, cited supra note 32, paras. 55–57 Metock, cited supra note 68, para 75
Case C-341/05, Laval,  ECR I-11767; Case C-438/05, Viking Line,  ECR I-10779 Azoulai, “The Court of Justice and the social market economy: The emergence of an ideal and the conditions for its realization”, 45 CML Rev. (2008), 1335 at 1339–1340 Bibliography Textbooks Azoulai, “The Court of Justice and the social market economy: The emergence of an ideal and the conditions for its realization”, 45 CML Rev. (2008) Chalmers Damian, Davies Gareth and Monti Giorgio; European Union Law, second edition; Cambridge university press Word count- 3054