• EUROPEAN CITIZENSHIP

• Mr. And Mrs. Chen decided to have a child in Northern Ireland, since, at certain conditions, a person who is born there may acquire the Irish citizenship.

• Therefore, Catherine Chen – daughter of Mr. and Mrs. Chen - became an Irish citizen

• Mrs. Chen moved to Wales and asked a residence permit for her daughter as EU citizen and a residence permit for herself, as parent custodian

• The UK authorities refused both permits. Therefore, Mrs. Chen summoned UK in front of the Immigration Appellate Authority, that posed a preliminary question to the European Court of justice (interpretation of EU law).

• Two basic questions:

• Has a baby, a European citizen, the right to live in a Eu country of which she is not citizen?

• Has her mother a right to obtain a permit, in order to live with her baby in the country of which she is not national?

• The Court stated that little Catherine has the right to live on the territory of any other EU State because she is a European citizen

• Her mother has also the right to live with her daughter

• What is EU citizenship?

Citizenship: “right to have rights”

• The right to free movement in the territory of EU Union

• The right to vote, for a EU citizen that is resident in another EU country, at the European Parliament elections and at the local elections

• The right to envoy petitions to the EU mediator• The right to obtain diplomatic or consular

protection from another EU country

• Catherine Chen is not a worker, is not moving for working reasons

• Regulation 1612/1968. free movement is recognized only to EU workers

• Freedom of movement was recognized in order to:

• Allow workers to be hired in another EU country

• Encourage free circulation of services

• If we think to EU as a Common market, her interest to move from Ireland to UK should not be protected by EU law

• For the same reason, her mother should not have the right to a residence permit

• In some other, previous decisions, the ECJ had guaranteed the right to free circulation for non workers (Royer; Luisi e Carbone; Gravier)

• Some directives (90/364, 90/365, 90/366) had previously extended this right to non working citizens (e.g. students, pensioners, citizens that had sufficient financial resources to live)

• Baumbast (Baumbast e R. c. secretary of State for the Home Department, 2002)

• Mr. Baumbast was a German citizen that had worked in UK. Does he have the right to live in UK after having finished working?

• The Court recognized the right awarding direct efficacy to article 21 TFUE (free movement of people)

• In this case: conclusions of advocate general Geelhoed: the right is a consequence of the introduction, in 1992, of EU citizenship.

• The right to free movement happens to be recognized in a non market perspective, it is a self standing right founded on the law of EU citizenship

the Chen case and the protection of the right of the parent

• Family reunion: the ECJ started to protect the position of the family members

• Carpenter (Mary Carpenter c. Secretary of State for the Home department, 2002)

• Mrs. Carpenter was a Philippines citizen, while her husband was a UK citizen. Uk denied a residence permit to Mrs Carpenter.

• The ECJ held that freedom of movement of Mr. Carpenter had been violated.

• In fact, Mr. Carpenter used to provide services in other EU countries, and her wife living in UK would have facilitated his free circulation, looking after their house and their sons.

• The ECJ affirmed, in this way, the existence of a connection between the case and EU law. Therefore, the Court could declare that the expulsion of Mrs. Carpenter was contrary to article 8 of the ECHR

• Is the motivation of the decision convincing?

• Is there an effective “cross border movement”?

Metock

• The connection with EU law seems to be weak in Carpenter (Toner).

• In the Metock case, the ECJ recognized the right to family reunion under EU law between a European citizen that has established himself in another EU country and a third country national

• Reverse discrimination issue

The Chen case

• The Chen case regards two persons that have moved from a EU country to another.

• Their right to live in the second country is not founded on the free movement principle (like in the Carpenter case), it is considered a right that derives from EU citizenship (ART. 18 TCE, free circulation of people, now art. 21 TFUE)

• Is there a connection with EU law?

• The UK Government affirms that, since little Catherine is not an economically active person, her position had to be considered as “purely internal”.

• The ECJ held that, since she is a EU citizen, living in another EU country, there is a connection with EU law.

• A “cross border situation” related to a citizen, not a worker

• Market oriented EU law versus rights based EU integration.

• Little Catherine cannot be protected as “worker”, applying the EU directives; therefore, she is protected as citizen (ARTICLE 18 TCE, free circulation of people, now art. 21 TFUE).

• Is there a connection with EU law?

• The separation between State law and EU law is under attack? A federal perspective?

• 1) all the EU rights can be invoked only in the case in which there is a “cross border movement” and, therefore, a EU competence.

• 2) the purely internal situations cannot benefit of EU law protection (e.g., in the Carpenter case, the non EU citizen wife of a man that did not provide services in other EU countries would have been a purely internal situation)

• 3) the Chen case lays the foundations of the right to residence of the Chen family on mere EU citizenship and, therefore, creates a tool that could be used in order to overcome reverse discrimination

From Chen to Zambrano

• Baumbast 2002• Carpenter 2002• Chen 2002• Directive 2004/38/Ce, regulates free

movement of people and makes clear that this right is recognized to the European citizen, that can, in some circumstances and at certain conditions, establish himself in another EU country.

Zambrano

• In 2011, Mr. Zambrano asks to Belgium a residence permit, since his daughter was born in Belgium and, in accordance with Belgian law, became Belgian citizen.

• Which is the common element between the Chen case and the Zambrano case?

• In the Chen case, the decision seemed to be based on the concept of citizenship

• The Zambrano case does not imply any kind of “cross border movement”.

• In this case, since there is no movement, the decision aims to protect the “substantial rights of the European citizen” A federal perspective?

• In the Chen case the ECJ protected a right in a cross border situation

• The new element in Zambrano’s is that the son would have been deprived of the substantial rights of the citizen if his parents had not obtained a residence permit

Case McCarthy

• McCarthy (Shirley McCarthy c. Secretary of State for the Home Department, 2011)

• Mrs. McCarthy is both British and Irish citizen and lives in UK. Her husband is Jamaican. She asks for family reunion under EU law (Carpenter and Metock cases). She is not under age as little Catherine Chen is

• The Supreme Court of UK asks for a ECJ preliminary ruling.

• The ECJ affirms that the 2004/38/CE directive cannot be applied since it is a “purely internal situation”

• The ECJ affirms also that art. 21 TFUE (freedom of movement) is not violated, since being resident in one of the two Home countries cannot be considered functional to the exercise of the “substantial rights” of the European citizen.

• 1) In Chen (2002), is there a cross border situation? The decision seems to protect the substantial rights of the citizen, since little Catherine is not a worker

• 2) Directive 2004/38/Ce makes clear that free movement is recognized not only to workers

• 3) In Zambrano’s, the Court affirmed that a European citizen can exercise his substantial rights as a citizen even in his home country.

• 4) In McCarthy’s, the right to family reunion under EU law is recognized under a cross border perspective, unless (Zambrano case) the citizen is an under age person.

• Reverse discrimination issue

The Rottmann case (2010)

• Mr Rottmann is a Austrian citizen. • He moves to Germany. After some years, he becomes

German citizen and loses the Austrian citizenship. • After some years, the German citizenship is revoked. • Mr. Rottmann appeals against the decision, affirming

that the decision is making him a stateless person, depriving him of the European citizenship.

• The judge asks for a preliminary ruling of the ECJ

The Rottmann case (2010)

• The ECJ stated that: • A) European citizenship relies on national

citizenship;• B) States have an exclusive competence

on national citizenship• C) when national decisions draw on

European citizenship, the judge must verify that the proportionality principle has been respected.

• In a federalist perspective this decision:

• 1) can be appreciated because it states as mandatory the respect of the proportionality principle;

• 2) nonetheless, it does not affirm that European citizenship is independent – just like a federal citizenship – from national citizenships.

• 3) the Court does not affirm in Rottmann the principle that has been affirmed one year later in Zambrano (the substantial rights of the European citizen can be invoked autonomously in respect of the national citizenship, even in the home country of the citizen).

• 4) a federal citizenship can be introduced only through the treaties’ revision

• 5) it would be necessary in order to provide common rules for third country nationals acquiring European citizenship.

• E.g. in Italy, an alien can become citizen if he has lived in Italy for 10 years with a permit and without interruptions.

• What if a third country national has lived 7 years in Italy, 1 year in Belgium and two years in UK?

• If EU citizenship were independent from national citizenships, the third country national could acquire the European union citizenship after some years (10?) of residence in the European union.