Law of the European Union

II
Union citizenship
Weeks 8-10

Dr Nikos Vogiatzis
In the first lecture…
• We looked at the establishment of Union citizenship

• The reasons behind the introduction of EU citizenship

• Access to the status of EU citizenship (Article 20(1) TFEU)

• Prohibition of discrimination on grounds of nationality (Article 18 TFEU)

• General observations about the role of the Court

In this lecture…

• We will focus on the Citizens’ Rights Directive (Directive 2004/38/EC

of the European Parliament and of the Council of 29 April 2004 on the
right of citizens of the Union and their family members to move and
reside freely within the territory of the Member States, OJ L 158/77)
• We will talk about the definitions, beneficiaries, residence rights,
equal treatment – among others
• We will also (briefly) discuss the provisions of the Withdrawal
Agreement (WA) between the EU/UK
Article 21(1) TFEU
• 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 Treaties and by the
measures adopted to give them effect.

• Directly effective provision (Baumbast, see next lecture)

Generally viewed as the most significant EU citizenship
right…

Eurobarometer: The European Ombudsman and Citizens’ Rights, (2011) available at:
www.europarl.europa.eu/at-your-service/en/be-heard/eurobarometer/the-european-ombudsman-
and-citizens-rights
p. 6
CRD - Three important points

1) The Directive applies only when we have a cross-border element

2) Family members (irrespective of their nationality) accompanying or

joining mobile Union citizens are also covered by the Directive

3) But the CJEU has generally accepted that these rights are not
autonomous rights of those family members, but derived rights
Who is a ‘family member’? See Article 2(2)
of the Directive
• ‘Family member’ means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered
partnership, on the basis of the legislation of a Member State, if the
legislation of the host Member State treats registered partnerships as
equivalent to marriage and in accordance with the conditions laid down
in the relevant legislation of the host Member State;
(c) the direct descendants who are under the age of 21 or are dependants
and those of the spouse or partner as defined in point (b);
(d) the dependent direct relatives in the ascending line and those of the
spouse or partner as defined in point (b).
Coman

• In the case of Coman, the CJEU ruled that same-sex marriages fall
under the definition of spouse under Article 2(2)(a) of the CRD
• And this does not depend on the relevant legislation of the Member
State; crucial to safeguard the right to free movement and the
effectiveness of the CRD; also, the right to respect for private and
family life guaranteed by the Charter is a fundamental right
• (technically, the CRD did not apply here – more on that later in the
course…)
Article 3(2) of the Directive on partners not
falling under Article 2(2)

• ‘The host Member State shall, in accordance with its national

legislation, facilitate entry and residence for … the partner with whom
the Union citizen has a durable relationship, duly attested’.

• And ‘the host Member State shall undertake an extensive

examination of the personal circumstances and shall justify any denial
of entry or residence to these people.’
The significance of Metock for beneficiaries

• Prior lawful residence in another member state is not a requirement

• The rights family members enjoy are irrespective of when and where
the marriage with the Union citizen took place and of how a third
country national entered the host Member State  a family can be
founded after the Union citizen’s entry into the host member state.
3 categories of residence rights

• Residence for a period up to three months (Article 6)

• Residence for a period longer than three months (Article 7): under
conditions.
Note: who has the right of residence under Article 7 has been legally
significant for the Court in deciding on social benefits, as we will see in Dano

• Right of permanent residence if continuous legal residence in the host

member state for 5 years; but also exceptions. See Articles 16-17.
Equal treatment and derogations
• Equal treatment: see Article 24(1) of the Directive

• Derogations under Article 24(2): ‘The host Member State shall not be
obliged to confer entitlement to social assistance during the first three
months of residence or, where appropriate, the longer period
provided for in Article 14(4)(b) [work-seekers who have a genuine
chance of finding employment], nor shall it be obliged, prior to
acquisition of the right of permanent residence (five years – with
exceptions) to grant maintenance aid for studies, including vocational
training, consisting in student grants or student loans to persons other
than workers, self-employed persons, persons who retain such status
and members of their families’.
Restrictions on grounds of public policy,
public security, public health

• See the relevant discussion in the free movement of workers

• Measures should comply with the proportionality principle and be

based exclusively on the personal conduct of the individual concerned
Feedback exercise: 3 examples
Do you agree or disagree?

1) Stella is a citizen of Luxembourg who decides to start an

undergraduate degree in Architecture at Stockholm University. After 1
year, she applies for a small student grant – but her application is
rejected. She claims that this breaches the provisions of the CRD.
2) Bruno is an Italian national who has moved to France to meet
friends. After six months, the French authorities inform him that he has
to leave the country because he does not have sufficient resources. He
disagrees, claiming that he is protected by the CRD.
3) Tina is an Irish national who moves to Italy. She marries Boris, a US
citizen. The Italian authorities inform Boris that he cannot remain in
Italy because he is not an EU citizen.
How to interpret the CRD?
• Note that: it was adopted in April 2004, giving 2 years to member
states to implement it

• ‘When interpreting [key] provisions of the Directive, there is an

inevitable tension between the EU objective of promoting the free
movement rights of EU citizens on the one hand, and many member
states’ objective of controlling immigration from third states on the
other’.
S Peers et al, The Citizenship Directive: A Commentary (OUP 2014) 19
Key idea…

• ‘At the heart of the CRD lies the basic idea that the rights enjoyed by
the migrant citizen and their family members increase the longer a
person is resident in another Member State’.

C Barnard, The substantive law of the EU: The four freedoms (OUP 2016) 331
The WA between the EU/UK
• The WA mirrors (or refers explicitly) to the provisions of the CRD

• Applies to EU citizens living in or entering the UK up until the end of the

‘transition period’ – and vice versa

• But note that at the time of writing…

- The future of the WA is uncertain
- Yet citizens’ rights have eventually emerged as a rather straightforward part
of the negotiations, since both sides acknowledge the need for protection.
So the principles therein relevant
- Although in the absence of agreement legally the default position is ‘no
deal’, recent developments suggest that this is highly unlikely.
The WA between the EU/UK
• See part 2 of the WA: Citizens’ Rights
• Right to enter and exit the UK (Art. 14 WA)
• Right to short term, long term and permanent residence (Art. 13 WA)
• Non-discrimination (Art. 12 WA) and right to equal treatment (Art. 23
WA)
• Definition of family members (Art. 9 WA)
• Restrictions to right of entry/ residence (Art. 20 WA)

See S Reynolds, ‘Brexit and EU Citizens’ Residence Rights in the UK’ (2018)
Presentation at the British Medical Association European Forum
The UK settlement scheme
• Settled and pre-settled status for EU citizens and their families
• Settled status: lived in the UK for a continuous 5-year period (known as
‘continuous residence’)
• Pre-settled status: started living in the UK by 31 December 2020; can be
converted to settled status upon completion of 5 years’ residence

• The UK has waived the fee

• First impressions from the pilot scheme

See further: https://www.gov.uk/eusettledstatus

The framework for the future relationship:
The Political Declaration
• See, in particular, part 9 (IX) of the declaration on mobility….

• …acknowledging that the UK has decided to end free movement after

the transition period
• The mobility arrangements will be based on non‐discrimination
between the EU’s Member States and full reciprocity.
• The parties will aim to provide for visa-free travel for short term visits
• And facilitate research, training, study, youth exchanges
See further
• M Dougan, ‘Migrant rights under May's Brexit deal’, available at:
https://www.youtube.com/watch?v=Y2vpQ_VGY5U

• European Commission, ‘Questions and Answers – the rights of EU and

UK citizens, as outlined in the Withdrawal Agreement’, available at:
https://ec.europa.eu/commission/publications/questions-and-answers-rights-eu-
and-uk-citizens-outlined-withdrawal-agreement_en
To sum up…

• Cross-border element to apply the Directive

• Definition of family members under Article 2(2); beneficiaries under
Article 3
• Three types of residence rights
• Equal treatment under Article 24, and derogations
• Public policy/ security/ health restrictions as discussed in part 2 of the
module