University of Catania, Italy. European Union Citizenship and Tourism of Welfare : Challenging European Social Rights in Time of Enduring Crisis.

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1 PANEL: POLICY CHANGE IN THE EU P272, SECTION : EUROPEAN UNION Daniela Fisichella University of Catania, Italy ECPR GENERAL CONFERENCE, OSLO 2017 European Union Citizenship and Tourism of Welfare : Challenging European Social Rights in Time of Enduring Crisis. Abstract The paper aims to investigate how European Union (EU) citizenship can currently deal more with internal Euroskeptical trends than migration flows external pressure. Boundaries have never been so firmly claimed before: EU is facing a severe challenge on its external borders due to huge migration from many third countries and, at the same time, is questioning freedom of movement of persons between Member States, thus increasing limitations to it. The European project is trying to survive to a long-lasting storm, softly started in 2002 by Euro as a single currency for Member States accepting it and worsened by both 2008 financial crisis and growing migration on external borders. EU citizenship, solemnly declared in 1992, intended to be the European core, bringing with it extended rights filling freedom of movement of persons already assessed. Unexpectedly, European Court of J ustice s (ECJ) relevant case law on European citizenship and social rights jeopardizes social solidarity instead of giving emphasis on EU citizenship alleged rights: from Brey (2013) to Dano (2014) and Alimanovic (2015) claims for social benefits have been more and more delimited to prevent non-national citizens becoming an unreasonable burden for host State social assistance system. Consistent ECJ rulings on Zhu Chen, Rottmann, Ruiz Zambrano, McCarthy, Dereci, Iida, O and S, Alokpa et al., Ymeraga are not so back in time: the same Court, early interpreting EU law to the maximum extent of guarantees, now strives to preserve Member State financial stability in social system. It could be argued that Directive 2004/38 on the right of EU citizens and their families to move and reside freely within territories of Member States, needs to be thoroughly clarified to refrain European citizens from boosting a tourism of welfare, harming few countries still providing for a healthy welfare system and improving free movement of EU citizens from less wealthy Member States. It s therefore urging to explore how ECJ is going to balance social solidarity and EU citizenship rights with Member States' claims to reduce social benefits to inactive nonnational citizens: a double-speed citizenship grounded on citizens income would never be acceptable. 1

2 1.Introduction. Great Expectations on European Union Benefits versus Euroskepticism: Can We Afford EU Citizenship? The widespread debate on migration movement across European Union external borders 1 is unfolding beside the one on EU citizenship values for Member States nationals as well as derogations narrowing its broad extension obviously claimed by Member States in order to keep their sovereignty. Leaving aside political issues and focusing on third countries nationals movement around Europe, neglecting visas, asylum and migration EU policy, ruled by a different legal basis than free movement of persons, the legal approach core issue revolves around EU citizenship benefits, assessed to Member States nationals dwelling on their European size - and identity, may be. In the long run, European institutions have been ruling more thoroughly on third country nationals legal rights, out of human rights already guaranteed, 2 to securing them not as such but for their link to European citizenship rights, values and status. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004, 3 quoted as Citizens Rights Directive, 4 is the most relevant EU secondary law act on European citizenship impact to non-european citizens movement throughout EU territory. Reminding of EU citizenship, introduced to European Communities Treaties by Maastricht Treaty in 1992, it was intended to start up building a European identity among Member States nationals, first to found and then to increase the individual European citizens sense of belonging to Europe. At the same time, Union citizenship aimed to ease the exercise of rights of free movement and residence already guaranteed by Treaties since the origins, in order to strengthen them in implementation phase. 5 EU citizenship is therefore conceived either to introduce a new legal status to give more emphasis on European membership under national civil societies point of view, helping to forge a Europaeus civis 6 as the civil unit of contemporary European Union: 7 Union citizenship is thus a meaningful clarification of non-discrimination principle, as matched in Treaty on the Functioning of European Union (TFEU) Articles 18 and 19 (no discrimination on whatever ground) and Articles 20 and 21 (Union citizenship); and to broaden free movement of persons as a target of internal market policy, notably evolved from previous European Economic Community common market. Free movement of Member States nationals has thus been changing from the original approach taking them into account only as workers and therefore as economic factors (Art. 45 TFEU) to the fundamental status of EU citizens, freely moving on EU territory within a wide variety of contextual situations not ever implying to be a worker. Union citizenship seems to be the long-desired relief for millions of Member States nationals looking at their Europe like a caring nurturer instead of that stepmother loudly promoted by most Member States. 8 Supported by fully consistent judicial case law, Union citizenship unveil an interesting code of rights empowering individuals more in their European status 2

3 and before it than in national one, making them aware of European project more than earlier and willing to rely on several different means and meanings of European skills and utilities: Union citizenship becomes the legal container for most civil rights already embodied by free movement of persons rules but non effectively provided. Scaling Member States nationals movement, most of it is still due to seeking a job, therefore confirming an economic purpose behind the free personal choice to move to a different State than the one of nationality and/or residence. What dramatically changed is the legal framework surrounding free movement of persons, since Union citizenship is added by lots of rights both implementing basic freedoms and introducing a new comprehensive status distinguishing between EU and non-eu citizens. 9 This legal framework has then been enriched by Directive 2004/38, ruling on non-eu nationals movement across EU territory inasmuch as they are bound by familiar ties to an EU citizen. Some preliminary considerations on Union citizenship: it was introduced to EU system in order to drive it to a constitutionalist legal order, close to a national legal system and aimed to pave the way to a European identity which, in its turn, would increase EU democratic governance itself. 10 Notwithstanding this solemn purpose, envisaging also a social solidarity later supported by ECJ case law, Union citizenship sounds more like a good supply, bringing huge benefits with it as a stream of Member States nationality, than a crucial factor to build a sense of belonging within EU. In addition, the most recent ECJ case law provides a narrow interpretation of relevant European legal acts on Union citizenship, delimiting it by freedom of movement rule of law instead of emphasizing its constitutional core value when referring to inactive EU citizens. Is it a missed opportunity to strengthening Union citizenship, thus confirming both its ethical and political value, or it s just a strictly normative interpretation of freedom of movement of persons, albeit extended through a long lasting implementation within an enlarging EU? Moreover, how can the good chance to reinforcing Union citizenship be congruent with Member States nationals fundamental status, given disappointed and widespread Euroskepticism currently featuring both Member States attitude - many of them, at least and their population? 11 We wonder how Europeanization can reach a constitutional level, summoned by Union citizenship, if not so many people seem to believe in it. Whilst striking improvements are recorded by freedom of movement ruling and implementation measures, mainly through ECJ case law strong support (Zhu Chen, Rottmann, Zambrano) and its thorough interpretation of CRD, it is still unclear how far Union citizenship goes, given recent ECJ judgments in Brey, Dano, Alimanovic and accounting a broad hostility towards EU governance through its inter-institutional commitments. 12 As the highest EU judicial institution, ECJ is called to balance different interests at stake, assessing EU mainstream rule of law and limiting exceptions to fundamental freedoms legal framework. Admittedly, the economic crisis become systemic rushed the Court to change its mind, therefore allowing restrictions to national social benefits access from inactive EUcitizens, thus affecting CRD implementation as far as concerns EU citizen s family right to stay in EU territory. The Court s interpretation of EU law relevant to Union citizens rights, narrower than before, can may be framed within the balance of contradictory interests 3

4 which is peculiar to its judicial task: in order to prevent a potential massive movement of EU citizens to Member States where a healthy welfare system is still guaranteed, the Court softened its previous approach about emphasizing Union citizenship rights, by the purpose to uphold State financial stability as a derogation to their plenty. 13 It can be wondered whether Union citizenship can be afforded to its full implications and, if not, what could be done by EU institutions to make it sustainable. Finally, to what extent Union citizenship detaches itself from freedom of movement of persons legal assets, not as meaningful as Union citizenship. 2. Directive 2004/38/EC and Union citizenship through a leap to European federalism, proportionality principle and judicial cooperation between European Court of Justice and national courts Zhu Chen, Rottmann, Ruiz Zambrano. In early 2000s, following CRD adoption, although not in force yet, ECJ significantly ruled on the right of residence in EU of a young minor, a Member State national needing to be cared by an adult who was, in this case, her Chinese mother, willing to move to UK and facing a refusal of a long-term residence permit from the host State. 14 The Court s judgement aimed to prevent a EU citizen forced leaving of EU territory as a consequence of the adult s third country nationality taking care of him/her. The right to reside in EU is thus derived to Mrs Chen, who was the Chinese mother of Catherine, born in Ireland, from Union citizenship of the young minor, unable to stay in EU territory without her mother but owner of the right to stay because of her Union citizenship and notwithstanding freedom of movement of persons rules weren t applicable to her, since she never moved from Ireland. The Court said that: situation of a national of a Member State who was born in the host Member State and has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation, thereby depriving that national of the benefit in the host Member State of the provisions of Community law on freedom of movement and of residence. 15 The Court rejects to qualify it as an internal situation in order to promote and guarantee Union citizenship rights by Art. 18 of European Community Treaty (TEC), now Art. 21; 16 and, consistently to Advocate General Tizzano s Opinion, 17 it leads the case under Directive 90/364/EC of 28 June 1990 on the right of residence, thus overcoming UK refusal of a long-term residence permit according to national provisions. The Zhu Chen case was hugely commented and disapproved too, 18 since the Court legitimated possible abuse in Member State s acquisition of nationality, to the purpose of enjoying the right to permanent residence in a Member State as a result of Union citizen s rights extension to his/her family members, third country nationals. 19 Ex post, by Zhu Chen 4

5 case the Court opened up a broad application of Union citizenship legal regime, implementing it extensively as it had already done for free movement of goods from Cassis de Dijon case, by principle of mutual recognition of national legislative measures. 20 Zhu Chen impact on internal market is even more dramatic, since movement of persons depends on their personal choice. In Rottmann case, 21 the Court confirms State discretionary powers to confer and withdraw nationality, being assessed domestic rule of law, if principle of proportionality is observed. Differently than in Micheletti case, 22 the Court doesn t protect Member State national citizenship anyway, since Mr Rottmann, an Austrian citizen, had acquired his German nationality by deception, concealing German authorities the proceedings against him in Austria. Later informed, they cancelled Mr Rottmann naturalisation, making him stateless since Austrian nationality had been already lost in order to obtain the German one. Rottmann case openly introduces the principle of proportionality paradigm to be applied by national courts to cases on citizenship, to a large extent as it will be seen further. Although the Court steady aimed to disseminate as widely as possible Union citizenship as a fundamental status for Member States nationals, it should also reckon on cooperation with national courts helping them to delimit nationality issues by proper tools: proportionality is one of the most important principles shaping EU system and it is suitable to balance single cases issues under review. The leading case considered as a connecting link between Union citizenship previous and expected legal regime is Ruiz Zambrano. 23 Going beyond Zhu Chen reasoning, the Court derives a third country national right to reside in EU territory from EU citizenship of his children, which would be compelled to leave EU territory following their father abroad as a consequence of his expulsion. Although Ruiz Zambrano s children never enjoyed their freedom of movement, as they were both born in Belgium and never left its territory, on this internal situation, not relevant under EU law, Union citizenship status deserved to be applied in order to guarantee Union citizens rights. CRD had meanwhile entered into force, but its Art. 3, paragraph 1, couldn t be applied to Ruiz Zambrano since to third country nationals, family members of a Union citizen, a right to stay in EU territory is guaranteed as deriving from Union citizen s movement to a host State, other than the one of origin. Therefore, the right to reside in a EU Member State derives, for third country nationals who are family members of a Union citizen, from EU citizen s enjoyment of the freedom of movement. Searching for a legal tool to prevent Ruiz Zambrano s children leaving EU territory as a consequence of their father expulsion, the Court declares that Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.. 24 The AG Sharpston goes further: 5

6 Articles 20 and 21 TFEU (formerly Articles 17 and 18 EC) are to be interpreted as conferring a right of residence in the territory of the Member States, based on citizenship of the Union, that is independent of the right to move between Member States. Those provisions do not preclude a Member State from refusing to grant a derived right of residence to an ascendant relative of a citizen of the Union who is a national of the Member State concerned and who has not yet exercised rights of free movement, provided that that decision complies with the principle of proportionality.. 25 Ruiz Zambrano case is the natural outcome of both Zhu Chen and Rottmann cases, at the same time introducing a more controversial case law stream on Union citizenship original and derived rights. It s noteworthy the reference to right to a family life as a fundamental right, which will be recurring next as other basic human rights guaranteed by European Convention on Human Rights (ECHR) as well as EU Charter. 26 Likewise Zhu Chen, Ruiz Zambrano case is a pivot in scholars debate on European mainstream: 27 EU institutions, both the legislative and the judiciary, aimed to raise a common sense of identity among Member States people and beyond a strong hostility to EU actions spread all over Europe. Indeed, on Euroskepticism it should be remarked that an opposite feeling against Europe is developing more through national implementation of European commitments, taken for oppressive and unfair by national citizens, than by European principles and legal institutes themselves. After these three leading cases on Union citizenship, ECJ won t confirm its reasoning at any time, sometimes complying with States claims, thus supporting their arguments against a broad application of Union citizenship rights 28. It can be wondered if it s the right method to improve a social sense of European identity among peoples, a sum of Member States nationals. Up to a few years ago, judicial balance of interests concerned led to a good compromise; if Union citizenship is a lighthouse for every EU citizen, it can t be presumed their rights been spotlighted whenever rejecting State arguments: one-directional legitimization is often unfair. A structural role of Union citizenship in EU federalism path could be hopefully predicted, 29 to assessing rule of law and equality rights under the flag of proportionality principle often, not ever, recalled by ECJ. The most recent ECJ case law narrow citizenship extent to meet some national budgetary needs, challenged by several applications to social benefits. As it will be seen further, the Court delimits Union citizenship only with regard to social assistance and notwithstanding Advocates General s reasoning often reiterates the broad pattern of the EU citizens extended rights. Marked differences between AG Opinion and Court s final judgement are justified on the ground of Union citizenship extent, since EU competence in the field are steady established After Ruiz Zambrano: McCarthy, Dereci, Iida, O. and S. Maahanmuuttovirasto v. L., Ymeraga, Alokpa, O and B - S and G. A careful analysis of Directive 2004/38/EC. 6

7 McCarthy The core value in Ruiz Zambrano is probably the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen declared by the Court. It wasn t fully clear what is included in it and it still isn t, the Court following a stone-by-stone approach gradually delimiting these rights. 30 Other than in Ruiz Zambrano, where the minors (Union citizens) could be forced to leave EU territory as a consequence of their father (a third country national) expulsion, thus annulling Union citizenship rights, in McCarthy the Court s reasoning doesn t meet Mrs McCarthy requests, since she could enjoy EU citizenship rights anyway, although in a different EU country than the one she d like to move with her husband. 31 Mrs McCarthy holds both an English and an Irish nationality, so far having relied only on the former, since she ever lived in UK. Getting married to a Jamaican national, who lacks leave to stay in UK according to Immigration Rules, she applies for an Irish passport obtaining it. In UK, Mrs McCarthy has never been a worker, nor a self-sufficient person and she receives State benefits. She applies for a residence permit in UK, although she is a national and she d never enjoyed freedom of movement, since she ever resided in UK. Her purpose was to get a residence permit in UK for her husband (a third country national) through EU citizenship rights as guaranteed by CRD implementation. The Court states for non applicability of both Articles 21 TFEU and 3, 1 of CRD, since both provisions don t concern a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State.. 32 In addition, with regard to Article 21, it says that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States.. 33 To be reminded also Article 7 CRD on right of residence for more than three months, which relevance is not disputed by the Court in this case since it stands for CRD non applicability Dereci In Dereci case, the Court confirms CRD implementation under freedom of movement strict legal framework. 35 In Dereci case all applicants are third country nationals, family members of EU citizens all living in Austria, never enjoying their freedom of movement nor economically dependent on applicants. Likewise in McCarthy as well as other case law brought before the Court, the third country nationals applying to claim EU law implementation for them through a EU citizen, often entered EU territory illegally or by a temporary visa. Several situations concerning freedom of movement of a EU citizen and his/her familiar as a third country national, actually are based upon the latter illegal status. Therefore Union citizenship rights, steady linked to freedom of movement provisions, often 7

8 cross migration, mostly ruled by national legal acts framing a different rationale. On McCarthy stream, EU citizens in Dereci are not entitled as beneficiaries under CRD, Article 3, paragraph 1, by consequent they can t convey to their family members derived rights legitimated by beneficiary original status. Similarly to McCarthy, where the Court excluded both CRD Articles 3, paragraph 1 and 21 TFEU, in Dereci it states that Article 20 TFEU must be interpreted to the effect that it does not apply to a Union citizen who is the spouse, parent or minor child of a national of a non-member country, where that Union citizen has never exercised his right to move freely between the Member States and has always resided in the Member State of which he is a national, in so far as the situation of that Union citizen is not accompanied by the application of national measures which have the effect of depriving him of the genuine enjoyment of the substance of the rights attaching to his status as a Union citizen or of impeding the exercise of his right to move and reside freely within the territory of the Member States.. 36 As far as concerns ECHR Article 8 and the right to respect for private and family life, the Court preliminarily remarks the correspondence of this right to Article 7 of EU Charter. Its application is a normative consequence of EU law applica bility, as EU Charter doesn t extend the field of application of EU law beyond Union s tasks and powers already agreed. 37 Two remarks on case law above: a) the Court s aim is not to propose the broadest interpretation of Union citizenship, but to guarantee its core values interpreting movement and residence of persons so that EU citizens are not forced to leave EU territory due to legal status of a family member, who is a third country national; b) the Court s purpose is not to make family reunion easier, 38 although CRD implementation often achieves this outcome. The Court aims to realize the free movement of persons that is an internal market freedom exploiting any opportunity given by Union citizenship status. Lacking a link to EU law, therefore EU Charter hasn t a ground out of ECHR where applicable. The genuine enjoyment of the substance of the rights attaching to status as a Union citizen doesn t translate the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union and is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.. 39 As shown by judicial case law, citizens movement around EU is free and already guaranteed by primary and secondary law and by internal market regime itself. Union citizenship adds some extra rights defining a legal status lying on freedom but not exclusive advantage, how it sometimes happens when a third country national, as Union citizen member family, is affected by his/her movement Iida The Court s reasoning in Iida is consistent to previous case law, on Mr Iida s right of residence though lacking requirements as occurred in Ruiz Zambrano. 40 Mr Iida, a national of Japan, had married a national of Germany in United States. They moved to Germany after their daughter birth and Mr Iida got a residence permit for family reunion, just before 8

9 starting to work full time under a contract of employment for an unlimited period. Later, Mrs Iida started a full time work in Vienna and she went on travelling for a while, then moving to Austria to settle down with her daughter, attending school there. Mr and Mrs Iida didn t divorced and they managed a very good relationship: Mr Iida regularly visited her daughter in Austria and she used to spend most of her holidays in Germany with her father who, in the meantime, lost his right to a residence permit as a consequence of breaking in living together with his spouse and their daughter, before the two years required by German law to obtain it. Although he was issued by a residence permit for his employment in Germany, its extension was both discretionary and temporary and didn t let him enjoy freedoms and rights like a residence permit issued for family reunion (a residence card for a Union citizen s family member); his application was thus rejected more than once because of lacking requirements to be met. The Court upheld national authorities refusal, since Mr Iida and his daughter having three nationalities: German, Japanese and American wouldn t be in Zhu Chen case situation, as the child s parent she lives with is a Union citizen, affording her economic support as she isn t dependent on Mr Iida revenues. Other than in Ruiz Zambrano, Mr Iida was not at risk of expulsion, he has a regular job, relations with his daughter are excellent, therefore he can easily care after her anyway. The child would never be forced to leave EU territory, as in Ruiz Zambrano, nor she has to move to Germany: she carries on living in Austria with her mother and Mr Iida doesn t need a permanent residence permit for family purposes. According to the Court, Mr Iida is not entitled to claim for a right of residence derived from a Union citizen when there is no other connection with the provisions on citizenship of European Union law O., S. v. Maahanmuuttovirasto, and Maahanmuuttovirasto v. L. Shortly after Iida case, the Court gave another preliminary ruling on two joined cases both concerning CRD application and Directive 2003/86/EC on right to family reunification in Finland. 42 The cases brought before ECJ are on two third country nationals claiming for a right of residence in EU as family members of two third country nationals, having a permanent right of residence in Finland, mothers of children whose they are fathers, but having previously given birth to children born in a relationship to a Finnish father, therefore getting Finnish nationality and EU citizenship from it. Both mothers were granted the sole custody of each single EU citizen child and joint custody of each third country national child. First applicant s spouse is gainfully employed, while the second one never worked, gaining subsistence support and other benefits. The first applicant had been employed for a while, for the second one there wasn t any evidence of having been gainfully employed, but he declared his ability to work in Finland due to his linguistic skills. Both men applied for a residence permit, relying on their family settled in Finland, but they were rejected for lacking of secure means of subsistence. Moreover, although it isn t so important in Court s reasoning, the second applicant was returned to his country of origin (Algeria) and it was not clear if he holds contact with his child. Consistent to its previous case law on Union citizenship, focused on the genuine enjoyment of the substance of the rights attaching to status as a Union citizen, the Court firstly 9

10 remarked that principles stated in Ruiz Zambrano case apply only in exceptional circumstances, but their application is not confined to situations in which there is a blood relationship between the third country national claiming for a right of residence and the Union citizen who is a minor from whom that right of residence might be derived. Situations of these two joint cases are wholly different than that one in Ruiz Zambrano, since applicants haven t the sole care of their children and, on the contrary, they live with their mothers, both caring of them. If both situations are under Directive 2003/86, its requirements must be met in order to get a residence permit for family reunification: Article 7 of the Directive states that: 1. When the application for family reunification is submitted, the Member State concerned may require the person who has submitted the application to provide evidence that the sponsor has: a) accommodation... which meets the general health and safety standards in force in the Member State concerned; b) sickness insurance... for himself/herself and the members of his/her family; c) stable and regular resources which are sufficient to maintain himself/herself and the member of his/her family without recourse to the assistance system of the Member State concerned Within a systemic legal framework, Directive 2003/86 and 2004/38 are together suitable to deal with complex situations concerning either third country nationals and/or EU citizens bounded by familiar relations. These joint cases doesn t affect Union citizens genuine enjoyment of the substance of the rights attached to Union citizenship status, since young Union citizens parent caring after them is a third country national beneficiary of a residence permit, therefore none of them would be forced to leave EU territory of course both mothers could move elsewhere bringing children with them, by a free choice and not a compulsory measure. 44 Three remarks for these joined cases: a) the Court confirms its reasoning around the genuine enjoyment of Union citizenship status; b) sufficient subsistence resources are a main reference to enjoy the right to family reunification according to Directive 2003/86 and to match a derived right to residence for Directive 2004/38; c) reference to national court s evaluation becomes pivotal in EU law on citizenship implementation: It is for the referring court to ascertain whether the decisions refusing residence permits at issue in the main proceedings were taken in compliance\with those requirements.. 45 Given the legal path by its preliminary rulings on the issue, aware of possible implications of ECHR rights, ECJ calls national courts to cooperate and guarantee an holistic implementation of European family rights. Freedom of movement of persons, Union citizenship as well as ECHR rights are often intertwined and more often than before, therefore a case-by-case implementation is needed on the national level by domestic courts, other than on European one. 46 Accordingly, next legal step to be clarified will probably be the respect for family life, fully included in ECHR interpretation and application differently than in EU system but gradually involved by ECJ case law Ymeraga and Alopka In Ymeraga case, the applicants are all from Kosovo. 47 As a teen age, Mr Kreshnik Ymeraga went to Luxembourg joining his uncle, a Luxembourg national, who became his legal 10

11 guardian. Later on, other family members arrived in Luxembourg, applying for residence authorisations on ground of family reunification, been rejected by national authorities; when at last Mr Kreshnik Ymeraga acquired Luxembourg nationality, his parents applied for a residence permit as family members of a EU citizen. According to Luxembourg authorities, Ymeraga applicants aren t entitled to protection afforded by Directives 2003/86 and 2004/38. The first one concerns only reunification of third country nationals and doesn t apply to EU citizens family member. 48 According to Directive 2004/38, are entitled to enjoy its rights all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.. 49 Therefore, family member is 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). 50 Although Mr Khresnik Ymeraga used to send money to his parents when they were in Kosovo, it wasn t an evidence of their dependence on him. Similarly, his brothers couldn t be automatically considered as members of the household according to Luxembourg law, as Mr Ymeraga had left Kosovo a long time before his brothers applications. Most important, Mr Ymeraga had never exercised his right of freedom of movement, he always resided in the same Member State conferring him the nationality relevant to EU law on citizenship and Directive 2004/38, which therefore couldn t be applicable neither to him nor to his family members, since they weren t beneficiaries for the purpose of Article 3, paragraph 1 of the Directive. With reference to Article 20 TFEU, the Court is consistent to its case law, ruling that Article 20 TFEU must be interpreted as not precluding a Member State from refusing to allow a third-country national to reside in its territory, where that third-country national wishes to reside with a family member who is a European Union citizen residing in the Member State of which he holds the nationality and has never exercised his right of freedom of movement as a Union citizen, provided such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen.. 51 Alokpa case involves Luxembourg law again: 52 Mrs Alokpa, a third country national, lives in Luxembourg with her twins, prematurely born in Luxembourg and having French nationality having been recognised by their French father. She had a discretionary leave, letting her stay in Luxembourg and get care services for her twins; as far as extension of her discretionary leave to remain was rejected, Mrs Alopka applied for a residence permit, as a family member of her twins, EU citizens. According to Directive 2004/38 requirements, neither they had exercised the freedom of movement, as they never left Luxembourg, nor Mrs Alopka could be numbered among dependent relatives in the direct ascending line of an EU citizen. She objected that forcing her to move to France would prevent her twins getting proper health services and would lead them to a inexistent family regime, since the twins father had only declared their birth, thus enabling the issue of French identity documents relating to them. Neither Directive 2004/38 nor Articles 20 and 21 TFEU 53 preclude a Member State from refusing to allow a third-country national to reside in its territory, where that third-country 11

12 national has sole responsibility for her minor children who are citizens of the European Union, and who have resided with her in that Member State since their birth, without possessing the nationality of that Member State and making use of their right to freedom of movement, in so far as those Union citizens do not satisfy the conditions set out in Directive 2004/38/EC or such a refusal does not deprive those citizens of effective enjoyment of the substance of the rights conferred by virtue of the status of European Union citizenship, a matter which is to be determined by the referring court. 54 Indeed, Mrs Alopka children situation is wholly different than that of Ruiz Zambrano s children, as she is entitled to stay with her children in the country of their nationality (France), as their sole carer and notwithstanding lack of sufficient subsistence resources. The Luxembourg refusal of a residence permit doesn t force her children to leave EU territory, letting the three of them move to EU citizens national country: It is therefore for the referring court to assess whether those rules afford it the possibility of taking into account the job offer produc ed in the course of proceedings by Mrs Alokpa, having regard to the well-established principles of equivalence and effectiveness.. 55 The role of national courts thus becomes more and more crucial throughout ECJ development on the issue O. v. Minister voor Immigratie, Integratie en Asiel and Minister voor Immigratie, Integratie en Asiel v. B. S. v. Minister voor Immigratie, Integratie en Asiel and Minister voor Immigratie, Integratie en Asiel v. G. The long judicial way to define EU citizenship legal building is enriched in 2014 by two joined cases concerning CRD and, more relevantly, Article 21 TFEU, in Netherlands law implementation. 56 Both cases concern the right to reside of a third country national, family member of a EU citizen, who temporarily leaves his country of origin, spending some time to another Member State (O. in Spain, B. in Belgium) or providing services (S. and G. both in Belgium) and coming back to his country of origin. By these claims, the Court has the opportunity to state on the right to reside of a third country national, a family member of a EU citizen, to the purpose of enjoying his/her rights in the country of origin, having already exercised the freedom of movement. CRD doesn t consider the return of European citizens to his/her State of origin, Article 3 only ruling to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them., thus declaring a derived right to reside only for a third country national, family member of a EU citizen having exercised the freedom of movement. 57 A similar derived right is not provided for a third country national, family member of a EU citizen who never left his country of origin. 58 In joined cases above, EU citizens movement of persons is undisputed, only the right to reside has to be delimited. The Court recalls Singh and Eind cases, 59 noting that, here other than there, EU citizens resided in the host Member State not as workers, like in Singh and Eind, but as Union citizens, according to Article 21 TFEU and as recipient of services according to Article 56 TFEU. In order to fully understand legal reasoning in these joined cases, challenging several EU laws and principles application, AG Sharpston s Opinion is far more helpful than Court s final judgement and it can be very useful to the national referring 12

13 court. A teleological and systemic interpretation of CRD doesn t lead to a derived right to reside of a third country national, family member of a EU citizen leaving the State of origin and returning to it, AG therefore stating its inapplicability directly to EU citizens returning to their Member State of nationality.. 60 Nonetheless, Directive should apply by analogy where that Union citizen returns, with the family member in question, to his Member State of origin. Therefore, the conditions for granting a derived right of residence to a third-country national who is a family member of that Union citizen, in the latter s Member State of origin, should not, in principle, be more strict than those provided for by that directive for the grant of a derived right of residence to a third-country national who is a family member of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national.. 61 According to AG the Member State of nationality may not give such EU citizens less favourable treatment than that owed to them as a matter of EU law in the Member State from which they moved to their Member State of nationality. As a result, Directive 2004/38 indirectly sets out the minimum standard of treatment that a returning EU citizen and his family members mus t enjoy in the EU citizen s Member State of nationality.. 62 A crucial legal argument is that EU citizens right to reside should never be restricted out of reasons already agreed by primary and secondary law. Situations like the above mentioned lead to a reverse discrimination according to which a Member State national would be treated less favourably than other EU citizens coming back to his own country of origin, since he/she would be prevented to rely on a right to reside already exercised in another Member State. 63 Besides CRD, adopted to ease the third countries nationals right to reside for a familiar bond to a EU citizen, fundamental EU principles interpretation must be consistent to EU legal order. To deprive a EU citizen of his/her right to reside conferred by EU law whenever returning to his/her home country would be a paradox and unfair too. With regard to EU citizen s time spent to a Member State other than that of origin, in AG s Opinion EU law does not require an EU citizen to have resided for any minimum period of time in another Member State in order for his third country national family members to claim a derived right of residence in the Member State of nationality to which the EU citizen then returns.. 64 Strong arguments are developed here with regard to the residence notion as well as the relevance of the habitual centre of EU citizen life to be considered in order to properly evaluate all these complex situations on EU citizenship and freedom of movement of persons. 65 Residence is the core concept of CRD rights, although it isn t defined neither by Directive itself nor by primary law. Some secondary law instruments refer to normal residence and habitual residence, as Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security system, defining residence as the place where a person habitually resides. 66 Rather vague, residence has nonetheless a Community-wide meaning. 67 AG s Conclusion on C-457/12 notes that Where an EU citizen residing in his Member State of nationality exercises rights of free movement in connection with his employment, the right of his third country national family members to reside in that State depends on the closeness of their family connection with the EU citizen and on the causal connection between the family s place of residence and the EU citizen s exercise of rights of free movement. In particular, the family member must enjoy a right of residence if denying that 13

14 right would cause the EU citizen to seek alternative employment that would n ot involve the exercise of rights of free movement or would cause him to move to another Member State. It is irrelevant in that regard whether the EU citizen is a frontier worker or exercises his right of free movement in order to fulfil his contract of employment concluded with an employer based in his Member State of nationality and residence.. 68 Since residence is the prominent criteria to calculating pension amounts paid as well as fiscal duties, ECJ case law on the issue is manifold. Following AG Sharpston Opinion, a special mention goes to Wencel and Swaddling cases 69 By the former the Court is called to rule on double habitual residence, while the latter gives it the opportunity to declare that EU law precludes the Member State of origin in the case of a person who has exercised his right to freedom of movement in order to establish himself in another Member State, in which he has worked and set up his habitual residence, and who has returned to his Member State of origin, where his family lives, in order to seek work from making entitlement to one of the benefits referred to in Article 10a of Regulation No 1408/71 conditional upon habitual residence in that State. 70 Respect to private life already recorded by previous case law sounds linked to habitual residence and although ECJ is still postponing to take the former into account indeed, expressed competence is on ECHR Court so far national courts have been called to do it for cases brought before them. It is then noteworthy that derived rights of residence only exist when they are necessary to ensure EU citizens effective free movement and residence rights. Unlike free movement of goods and Dassonville formula, possible restrictions to free movement of persons and right to reside have to be found actually and not potentially Social welfare and social tourism: solidarity v. financial stability. On the uncertainty of European rule of law on social rights. Judicial case law considered so far provides a clear interpretation of EU citizenship extent by relation to EU primary and secondary law on free movement of persons and the right to reside. Developed through a case-by-case reasoning, nonetheless Directive 2004/38 and Articles 20 and 21 TFEU all match to systemic legal framework. Most recent cases show a cautious Court attitude, prone to meet Member States claims to narrow free movement and residence of EU citizens out of nationals. CRD Article 7 on financial self sufficiency as a strict requirement to be entitled to a permanent residence permit thus becomes the social rights cornerstone to exercise freedoms and enjoy legal rights. 72 After twenty-five years and according to well-established ECJ case law, EU citizenship is expected to be the legal (and moral) foundation for all EU law rules on freedom of movement of persons, 73 third country nationals included if bound to a EU citizen (Directive 2004/38) and economically active on EU territory (Regulation 1231/2010). 74 EU political institutions are nownstill working to harmonize rules on free movement and to limit barriers on a residence ground, aiming also to prevent frauds and abuses. EU citizens rights dissemination boosts free movement of Member States nationals, relying on their European fundamental status and reaping the benefits for their families too. Although they are not ever fully aware of their rights, they tend to exploit effective chances, therefore spurring freedom of movement. To date, social benefits are the most challenged issue among social rights: stemming from national welfare systems, where States still have discretionary powers and EU has no competence, EU citizenship deals with domestic barriers while urging to conform national laws in order to guarantee broad EU citizens rights. It s the ordinary internal market asset and it s up both to 14

15 EU legislator and the judiciary to remove domestic restrictions to European freedoms. Unlike movement of goods and Cassis de Dijon principle, which easily opened up internal market of goods, on national welfare system equality principle is hardly implemented, since residence is the milestone for EU citizens to access most of social benefits. Even though a Member State has a rather soft attitude in dealing with issuance of a residence permit to non-nationals citizens, thus allowing them to stay and run an ordinary life, access to social benefits is often precluded or restricted whenever the applicant is unemployed or jobseeker (Directive 2004/38 applies) or inactive, economic self-sufficiency being lacking or uncertain. If Union citizenship aims to promote both no discrimination and equality principle among Member State nationals wherever they are hosted by another Member State, it also envisages a common sense of solidarity among Member States, to shape domestic legislation consistently to these EU basic principles: crucial role of Union citizenship in EU legal order is undisputable, whilst limits are still to be questioned. ECJ removed most of barriers hindering freedom of movement either for EU citizens and for their family members, third countries nationals, but strongest States intolerance still regards social security benefits, namely contributory benefits, paid in return for contributions, such as pensions, unemployment benefits, work-related accidents, sickness. Unlike them, non-contributory benefits are universal, helpful for applicant s needs and listed among subsistence benefits ; their purpose is to cover applicant s minimum living expenses and access to them is ruled by CRD. 75 Applying equal treatment to EU workers, CRD Art. 24, paragraph 1, states that all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.. 76 Derogating from paragraph 2, Member States are not compelled 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), nor, prior to acquisition of the right of permanent residence, 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.. 77 To draw a conclusion, applications for social benefits from EU mobile citizens are conditional on an economic activity status as such, likewise for their family members. Social solidarity therefore turns out to be the outcome of an economic factor, thus confirming EU internal market as already set up. 78 According to CRD Article 14, paragraph 1: Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.. 79 Article 6 extending an unconditional right to reside up to three months, being requested only a valid identity card or a passport, Article 7 is relevant on the right to reside for more than three months, stating that all citizens shall 80 enjoy it if they are: (a) workers or self-employed persons in the host Member State; or (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; (d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).. According to it, EU citizens and their family members have access to social assistance measures on the residence requirement, which in its turn is automatically met by workers or economic selfsufficiency. Article 14, paragraph 2, remarks that Union citizens and their family members 15