“EU citizenship” is a concept that gained legal status by Articles 17-18 of the TEU. The ECJ has repeatedly used this Delphic phrase “will become the fundamental status of EU nationals” with little or no explanation. I argue here that the correct interpretation of the Court’s case law hinges on how we understand “fundamental status”.
Within the domain of Community law, EU citizenship does seem to have a fundamental status. Community rights can be gained under other Treaty Articles, but these depend on certain conditions being satisfied, usually being a worker or self-employed person. Most of the Treaty freedoms and much secondary legislation contains specific provisions on anti-discrimination. This suggests that this is a specialised form of Community right as distinct from the fundamental status of citizenship.
In the absence of these non-fundamental statuses, those lawfully resident in other Member States may still have recourse to their basic status as EU citizens
We must examine, therefore, the meaning the Court imports to the phrase “fundamental status”. There are two senses in which it might me meant. The first sense means most important: EU citizenship usurps the status of citizenship under national law.
Of course this feeds into Eurosceptic politics. The European Union, through its body of law, aims to undermine national law in some grand “United States of Europe” project. The Court, if it does not intend this, has been careless or naive in using the definite article – the fundamental status – and failing to spell out clearly its true intentions.
Indeed, the concept of EU citizenship is shrouded by a-legal rhetoric that does not aid the lawyer in defining the precise import of Articles 17 and 18. For instance, Article 17 makes reference to the “duties” of EU citizenship, which appear to be a purely rhetorical counterpoint to the rights that the ECJ has held Articles 17 and 18 to grant: 413/99 Baumbast (2002), .
EU citizenship is expressly not designed to replace national citizenship, but is in addition thereto: Article 17(1). Indeed, EU citizenship is parasitic on the rules by which national citizenship applies: Art. 17(1). Moreover, the ECJ has consistently held that EU citizenship is of no relevance in purely internal situations. If the act complained of does not come within the ratione materiae of Community law there is no recourse to Community law. Germans can do as they like to other Germans, as it were: see 112/91 Werner (1993). If Community law is not affected, the ECJ has been quite clear that the only important “status” is that of national citizen.
Moreover, it has done the same thing for the other Treaty freedoms. In 98/86 Mathot (1988), for example, it was held that Article 28 was not breached by Belgian regulations that but an extra burden on Belgian producers, but not foreign ones. It is clear then, that the case law of the Court is not impacting on the status of EU citizens except insofar as they are affected by Community law. Moreover, the rights granted by Articles 17-18 are not treated in any special manner in this regard.
“Fundamental status” cannot, then, connote some usurpation of national citizenship. The second sense in which the Court might use the phrase, and the one I propose as an explanation for the case law, is as a means of eliminating discrimination. Discrimination based on national citizenship is the primary sort that Community law aims to eliminate. If national citizenship becomes a ground for discrimination it becomes erroneous as leading to an outcome that is contrary to the aims of the Union and the Treaties. As such, national citizenship must fall away, revealing this back up, egalitarian, EU citizenship. Union citizenship is fundamental in the sense that it is the safety net once national citizenship leads to erroneous results.
In 85/96 Martinez Sala (1998), the applicant was a non-worker from Spain who was lawfully resident in Germany. The first stage in the Court’s reasoning, at para , was that, being a Union citizen lawfully in a foreign country brought her within the ratione personae and ratione materiae of EU law. As such, she was entitled to protection under Article 12, which sets out the Union’s general commitment to anti-discrimination.
In 456/02 Trojani (2004) it became clear that the substantive rights granted by EU citizenship are not general rights of residence. Following the Martinez Sala reasoning, person exercising Community rights may not be discriminated against on grounds of nationality by virtue of their EU citizenship.
The novelty of this is that it extends not only to workers and jobseekers and the other classifications of people created by the other substantive Treaty rights.
The Court’s approach to discrimination has always been a broad one. In 68/99 P v S and Cornwall CC (2002), the Court pointed out that all of the anti-discrimination provisions within the corpus of Community law actually betrayed a general principle of anti-discrimination within EU law.
The Court’s case law on citizenship has been much the same. Article 18 is a directly applicable Treaty article. The Court’s reasoning has used Article 18 to bestow on Article 17 the direct applicability, by stating that the enjoyment of Article 18 rights depends on Article 17: 85/96 Martinez Sala (1998), para . Bringing Article 12 into the question bestows direct effectiveness on that Article too.
The nature of the Court’s reasoning in cases like Martinez Sala and Trojani shows the way EU citizenship has been used as a way of further buttressing protection in Community law against discrimination based on nationality.
This is also reflected in the way the Court has policed the restrictions that MSs may legitimately place on the exercise of citizenship rights. Directive 2004/38 codifies much of the Court’s case law and earlier Residency Directives. Article 7(1)(b) provides that those resident in MSs who are not economic actors must have sufficient resources and health provision so as not to become a burden on the social security system of the MS. This is a codification of Trojani, which established that a simple failure to meet this standards at some point in time could not suffice to allow the MS to deport the individual instantly. The principle of proportionality becomes relevant. In this way, the Court requires a spirit of fraternity that is implicit in a “general principle” approach to discrimination, rather than a text based one. Thus Catherine Barnard’s conclusion: “The ECJ has required these conditions to be interpreted and applied in a proportionate manner, recognising that a degree of solidarity between citizens of different Member States has been created by the status of EU citizenship”.
In 200/02 Chen (2004), the ECJ threw out the UK’s unmeritorious argument that a baby could not avail herself of EU citizenship because the resources that would satisfy the requirements of Article 7(1)(b) of the Directive belonged to her mother. The Court takes a realistic appreciation of fact situations to eliminate discrimination in fact and in law any nationality discrimination.
Clearly, the intensity of review is high but it does not spill over into internal situations. In 148/03 Garcia Avello (2003), the ECJ stated that a situation was not purely internal where the applicants held dual nationality. Such an applicant was entitled to rely on the nationality that would take her out of the internal situation and make the application a matter of EU law. Unlike in Chen, were the Court resolved to look at the reality of the fact situation, in Garcia Avello the Court stopped at the strictly legal position of the applicants. As a passport holder of one MS lawfully resident in a different one, there was no internal situation. The Court was not impressed by arguments that the applicant had lived all of her life in the hose state and was, as a matter of fact, a national being treated like all other nationals.
By “fundamental state” the Court has shown itself to be concerned with discrimination as a general principle of EU law. It has, therefore, taken an expansive approach to the direct applicability of Articles 12, 17 and 18. Moreover, its reasoning with regard to the limitations placed on the exercise of citizenship rights and the fact situations that will be wholly internal is designed such that nationality based discrimination is gotten rid of. Recourse to EU nationality as a fundamental state, therefore, is not a different way of saying that EU citizenship has usurped national citizenship. Rather, it is an anti-discriminatory device.
Grahame Robert Anderson