European Union Citizenship: More Than Merely Financial Integration
IN THIS ARTICLE
Is European Citizenship merely a mechanism for a deepening financial integration of the European Union? Or is there a deeper meaning and a deeper reasoning for the development of the concept of European Union Citizenship into an all-encompassing philosophy which gives rights and stretches into all areas of life for member state citizens?
In order to critically discuss this we must look at the concept of citizenship of the Union and its evolution in particular its role in the integration of European Union law with that of member states domestic law. We must also examine whether European Union Citizenship has indeed evolved beyond being merely a mechanism for economic participation in the internal market with a view to discovering its current position in the law of the European Union in particular through the various case law given by the European Court of Justice on the subject.
European Union Citizenship Concepts
Firstly we will examine the concept and the evolution of European Union Citizenship as both a theory and as a reality for the nationals of member states. Although the concept of citizenship within the European Union has been part of the landscape of Europe for many decades, as Williams tells us, ‘it is still a struggle to obtain a comprehensible outline of what it means and how it is designed to develop’1 it was not formally introduced and added to the EC Treaty until the Treaty on European Union in 1992 where under Art. 20(1) TFEU the principle of ‘Citizenship of the Union’ was established and Art. 21(1) TFEU where it is stated that; ‘every citizen of the Union shall have the right to move and reside freely within the territory of the member states, subject to the limitations and conditions laid down in the Treaty’. These provisions listed specifically in Art. 20(2) TFEU a number of rights which European Union Citizens can enjoy such as political rights including voting rights and rights to see European Union documentation, rights to free movement and to reside and rights to consular protection outside the country of their nationality. This has as Barnard tells us ‘started a lengthy and on-going debate about the nature of EU citizenship’2 which has raged on ever since.
One of the many academic debates on this issue is the idea of whether Union Citizenship should be based on a policy of inclusion or exclusion. The type of thinking that citizens of the European Union should enjoy the benefit of a wide range of political, civil, economic and social rights could be described as ‘social citizenship’3. It is true in this that due to the introduction of Citizenship of the Union member states are no longer free to exclude others and the power to discriminate is now very limited within a member state to such things as national elections and certain sensitive occupations, as Chalmers, Davies and Monti tell us; ‘National citizenship may still exist, but it confers very few special rights. It is, therefore diminished and constrained’4. Furthermore, Kostakopoulou states that; ‘the reduction of European citizenship to a transnational citizenship downplays both the resourcefulness of Union citizenship and the supranational character of EU law…Above all, it conceals the extent to which European Union citizenship penetrates and subverts national citizenship’5
As we can see citizenship within the European Union is a convoluted area and is attempting to limit the extent to which a member state can exercise a power to discriminate and exclude other member state nationals. This concept of limiting the power of Member States to discriminate against nationals of other Member States and to further the powers of the EU through citizen’s right has formed the bedrock of the case law surrounding Citizenship of the Union.
European Courts of Justice Case Law Development
We will now consider the development of the principles of European Union Citizenship with regards to the decisions of The European Court of Justice (ECJ) and their evolution over the course of time. Craig and De Burca tell us that; ‘The ECJ’s rulings on EU Citizenship have been important in several ways’6 and as we will discuss the ECJ has established that the Treaty provisions on citizenship create certain autonomous rights which are independent of other Treaty provisions which regulate movement of persons. Also as Craig and De Burca state ‘The ECJ has linked the provisions on citizenship with the prohibition on discrimination on grounds of nationality in a way which has strengthened the rights and entitlement of EU nationals and their families – both in host Member States and in their own – on matters such as social benefit, taxation criminal procedures and dual nationality situations’7 we will examine these ideas through the development of the ECJ case within the score of Union Citizenship.
The ECJ has continually reiterated their stance on European Union Citizenship which was first stated in the case of Grzelczyk; ‘Union citizenship is destined to be the fundamental status of nationals of the Member States’8. The old rule on European Union Citizenship was set by the case of Lebon9 where it was said that a member state is under no obligation to give social advantages to job seekers. This same principle at the time was thought to apply to all non-economically active persons, and indeed those people only qualified for residence if they did not become a ‘burden on the social security system of the host member state’10.
However, the case of Martinez Sala v Freistaat Bayern11 was the first to begin to explore the extent to which a non-economically active person can claim social advantages in a host member state and claim equal treatment in respect of social advantages under Art. 21(1) TFEU. This centred on a Spanish national who had lived in Germany since the age of twelve. In 1993 the German authorities rejected her application for a child-raising allowance on the grounds that she was not a German national and did not have a residency permit. The court considered the case with regards to non-discrimination and citizenship. The ECJ found that a national of a member state lawfully residing in the territory of another member state such as Martinez Sala could come within the personal scope of citizenship provisions. Therefore the rights laid down by Art. 20(2) of TFEU were applicable to the situation including the right not to suffer discrimination on the grounds of nationality as per Art. 18 TFEU.
This type of thinking included a situation where a member state delayed or refused to grant a benefit provided to all persons lawfully resident in the territory of that state on the grounds that the claimant did not have a document in this case a residence permit, which nationals of the state were not obliged to possess. The court found that Martinez Sala was being directly discriminated against because of nationality and this was contrary to Union law under Art. 18 TFEU. A number of issues were left unclear by the ECJ in this case; firstly; the court did not make clear on what basis Martinez Sala was lawfully a resident of Germany.
It would appear that the claimant was not economically active so therefore could not fulfil the conditions of being a worker or an employed person and consequently would not be a lawful resident of Germany under European Union law. It seems that because Martinez Sala had resided in Germany for so long and had not been asked to leave because she was not unlawfully living in the country she was entitled to equal treatment and therefore the social advantage of the child raising allowance. The implications of this case with regards to European Union Citizenship is of great importance; as O’Leary comments the ECJ were willing to ‘explode the linkages’12 of the previous rules which had been necessary for the principle of non-discrimination to apply.
This case if highly important as we can see this as the beginning of European Union Citizenship as being more than just a mechanism for participation in the economic internal market, as Steiner and Woods tells us; ‘Martinez Sala therefore starts the process of decoupling the acquisition of rights from the requirement to be economically active. The Union does not require that citizens pursue a professional or trade activity, whether as an employed or self-employed person, in order to enjoy rights provided in Part Two of the EC Treaty, on citizenship of the Union’13
The decision in Martinez Sala has been backed up by the courts position in Trojani14 and subsequently in Bidar15 which will be discussed later, that a national of a member state can rely on Art. 18 TFEU when he has resided in a host member state for a certain period of time or if he possesses a residency permit as in Trojani, whereas Martinez Sala and Bidar concerned lawful residence spent in the host member state.
The case law regarding citizenship in the European Union was developed further by the ECJ’s decision in Grzelczyk16 as Barnard tells us in this case the ECJ; ‘significantly broadened the scope of the principle of equal treatment’.17 This case also demonstrates the idea that citizenship of the Union is far more than purely a means for economic integration which has developed parallel to deepening European integration and as Craig and De Burca state; the influence of EU citizenship on the outcome of the case was once again crutial’18.
In this case a French national had been studying in Belgium and supported himself with a part time employment. Towards the end of his studies he applied for a grant which was freely available to Belgian students. This was rejected as was his further leave to reside in his host state. As the grant was freely available to Belgian nationals who were studying Grzelczyk was being directly discriminated against due to his French nationality which was contrary to Art. 18 TFEU.
As he had been residing lawfully in Belgium he was entitled to rely on Art. 18 TFEU with regards to those situations which fell within the material scope of the Treaties which include those situations involving the exercise of the right to move and reside freely in another member state, as conferred by Art. 21(1) TFEU. The fact that Grzelczyk had actually moved from youth hostels to a Salvation Army hostel was pivotal in this case as this broadened the scope in which European Union Citizens could rely on their citizenship of the Union for equal treatment.Continued on Next Page »