The Current State of Union Citizenship Case-law: from Mobile Citizens’ Rights to Resident Citizens’ Rights?

Abstract

This paper considers whether and to what extent the introduction of Union citizenship has contributed to extending the freedom of the nationals of the Member States. The paper first overviews the development of the European Court of Justice (ECJ)’s case-law on the right of free movement of Community workers since the 1960s; then the paper highlights the major ECJ cases dealing with the Union citizens’ right to free movement and residence in the Union since the 1990s. Those cases include Martínez Sala (C-85/96), Grzelczyk (C-184/99), Baumbast (C-413/99), Carpenter (C-60/00), Garcia Avello (C-148/02), Zhu and Chen (C-200/02), Rottmann (C-135/08), Zambrano (C-34/09) and Macarthy (C-434/09).
The cases reveal several points: firstly, Union citizens’ right to free movement and residence (Article 21 TFEU) has not contributed to a wider freedom of movement because the Directive 2004/38 has subjected the exercise of the movement/residence right to several economic conditions.
Secondly, however, the ECJ has found the basic article that creates Union citizenship (Article 20 TFEU) a different and original role, to ensure continuous residence of the Union citizens even in the Member State of their own under limited circumstances: in Rottman, Zambrano and Macarthy, the ECJ repeatedly emphasized that citizenship of the Union was intended to be the fundamental status of nationals of the Member States, and that Article 20 TFEU precluded those measures taken by their own State that had the effect of depriving Union citizens of “the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.”
Thirdly, the exact “substance” of a resident Union citizenship is still not clear. Although the national court that referred the Zambrano case to the ECJ indicated the possible interpretation that incorporates those rights listed in the EU Charter of Fundamental Rights into the “substance” of Union citizenship, the ECJ did not respond to that specific question.
Lastly, it is now clear that EU law on Union citizenship can restrict the Member States’ exercise of immigration control power as long as that power affects the secure residence of any Union citizen of minor age (including the Member States’ own nationals) and his or her family of any (even third country) nationality: the situation that the Member States control their own nationals and third country nationals used to be a “purely internal” situation that excluded the application of EU law. Union citizenship case-law has penetrated into that situation in order to ensure the genuine enjoyment of the substance of the Union citizens’ rights. How far the penetration would extend remains to be seen.