Tampere 1st November 2004

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Tampere 1st November 2004
Judge Allan Rosas
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• 1. Concept of EU citizenship nationals of the
  Member States
• Article 17
• 1. Citizenship of the Union is hereby
  established. Every person holding the nationality
  of a Member State shall be a citizen of the
  Union. Citizenship of the Union shall complement
  and not replace national citizenship.
• 2. Citizens of the Union shall enjoy the rights
  conferred by this Treaty and shall be subject to
  the duties imposed thereby.

3

• Case C-192/99, Kaur, 2001 ECR I-1237
• As the Court held in paragraph 10 of
  Micheletti and Others, cited above, 'under
  international law, it is for each Member State,
  having due regard to Community law, to lay down
  the conditions for the acquisition and loss of
  nationality. (point 19)
• On the basis of that principle of customary
  international law, the United Kingdom has, in the
  light of its imperial and colonial past, defined
  several categories of British citizens whom it
  has recognised as having rights which differ
  according to the nature of the ties connecting
  them to the United Kingdom. (point 20)
• The United Kingdom has defined those rights in
  its domestic legislation, in particular in the
  Immigration Act 1971, which became applicable
  from 1 January 1973 - the same date as that on
  which the Treaty on the Accession of the United
  Kingdom entered into force. That national
  legislation reserved the right of abode within
  the territory of the United Kingdom to those
  citizens who had the closest connections to that
  State. (point 21)

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• When it acceded to the European Communities,
  the United Kingdom notified the other Contracting
  Parties, by means of its 1972 Declaration, of the
  categories of citizens to be regarded as its
  nationals for the purposes of Community law by
  designating, in substance, those entitled to the
  right of residence in the territory of the United
  Kingdom within the meaning of the Immigration Act
  1971 and citizens having a specified connection
  with Gibraltar. (point 22)
• Although unilateral, this declaration annexed
  to the Final Act was intended to clarify an issue
  of particular importance for the other
  Contracting Parties, namely delimiting the scope
  ratione personae of the Community provisions
  which were the subject of the Accession Treaty.
  It was intended to define the United Kingdom
  nationals who would benefit from those provisions
  and, in particular, from the provisions relating
  to the free movement of persons. The other
  Contracting Parties were fully aware of its
  content and the conditions of accession were
  determined on that basis. (point 23)

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• It follows that the 1972 Declaration must be
  taken into consideration as an instrument
  relating to the Treaty for the purpose of its
  interpretation and, more particularly, for
  determining the scope of the Treaty ratione
  personae.
• (point 24)
• Furthermore, adoption of that declaration did
  not have the effect of depriving any person who
  did not satisfy the definition of a national of
  the United Kingdom of rights to which that person
  might be entitled under Community law. The
  consequence was rather that such rights never
  arose in the first place for such a person.
  (point 25)
• It is common ground that the 1982 Declaration
  was an adaptation of the 1972 Declaration
  necessitated by the adoption, in 1981, of a new
  Nationality Act, that it substantially designated
  the same categories of persons as the 1972
  Declaration and that, as such, it did not alter
  Ms Kaur's situation as regards Community law.
  Furthermore, it has not been challenged by the
  other Member States. (point 26)
• The answer to be given to Questions 1(1)(a)
  and (b) must therefore be that, in order to
  determine whether a person is a national of the
  United Kingdom of Great Britain and Northern
  Ireland for the purposes of Community law, it is
  necessary to refer to the 1982 Declaration which
  replaced the 1972 Declaration. (point 27)

6

• Case C-200/02, Chen, Judgment of 19/10/04
• By virtue of Article 17(1) EC, every person
  holding the nationality of a Member State is a
  citizen of the Union. Union citizenship is
  destined to be the fundamental status of
  nationals of the Member States. (point 25)
• It is true that Mrs Chen admits that the
  purpose of her stay in the United Kingdom was to
  create a situation in which the child she was
  expecting would be able to acquire the
  nationality of another Member State in order
  thereafter to secure for her child and for
  herself a long-term right to reside in the United
  Kingdom. (point 36)
• Nevertheless, under international law, it is
  for each Member State, having due regard to
  Community law, to lay down the conditions for the
  acquisition and loss of nationality. (point 37)
• None of the parties that submitted
  observations to the Court has questioned either
  the legality, or the fact, of Catherines
  acquisition of Irish nationality. (point 38)
• Moreover, it is not permissible for a Member
  State to restrict the effects of the grant of the
  nationality of another Member State by imposing
  an additional condition for recognition of that
  nationality with a view to the exercise of the
  fundamental freedoms provided for in the Treaty.
  (point 39)

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• 2. Articles 18 22, 12 EC
• Article 18
• 1. 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 this
  Treaty and by the measures adopted to give it
  effect.
• 2. If action by the Community should prove
  necessary to attain this objective and this
  Treaty has not provided the necessary powers, the
  Council may adopt provisions with a view to
  facilitating the exercise of the rights referred
  to in paragraph 1. The Council shall act in
  accordance with the procedure referred to in
  Article 251.
• 3. Paragraph 2 shall not apply to provisions on
  passports, identity cards, residence permits or
  any other such document or to provisions on
  social security or social protection.

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• Article 19
• right to vote and to stand as a candidate at
  municipal
• elections, as well as in elections to the
  European
• Parliament, in the Member State in which he
  resides
• Article 20
• protection by the diplomatic or consular
  authorities

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• Article 21
• right to petition the European Parliament, right
  of complaint to the Ombudsman, right to write to
  EU institutions or bodies
• Article 22
• review clause

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• Article 12
• Within the scope of application of this Treaty,
  and without prejudice to any special provisions
  contained therein, any discrimination on grounds
  of nationality shall be prohibited.
• The Council, acting in accordance with the
  procedure referred to in Article 251, may adopt
  rules designed to prohibit such discrimination.

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3. Case-law of the Court of Justice Fundamental
status Case C-138/02, Collins, Judgment of
23/3/04 As the Court has held on a number of
occasions, citizens of the Union lawfully
resident in the territory of a host Member State
can rely on Article 12 of the Treaty in all
situations which fall within the scope ratione
materiae of Community law. Citizenship of the
Union is destined to be the fundamental status of
nationals of the Member States, enabling those
who find themselves in the same situation to
enjoy the same treatment in law irrespective of
their nationality, subject to such exceptions as
are expressly provided for. (point 61)

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Right to move and reside freely Case C-200/02,
Chen, Judgment of 19/10/04 As regards the
right to reside in the territory of the Member
States provided for in Article 18(1) EC, it must
be observed that that right is granted directly
to every citizen of the Union by a clear and
precise provision of the Treaty. Purely as a
national of a Member State, and therefore as a
citizen of the Union, Catherine is entitled to
rely on Article 18(1) EC. That right of citizens
of the Union to reside in another Member State is
recognised subject to the limitations and
conditions imposed by the Treaty and by the
measures adopted to give it effect. (point 26)

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The answer to be given to the national court
must therefore be that, in circumstances like
those of the main proceedings, Article 18 EC and
Directive 90/364 confer on a young minor who is a
national of a Member State, is covered by
appropriate sickness insurance and is in the care
of a parent who is a third-country national
having sufficient resources for that minor not to
become a burden on the public finances of the
host Member State, a right to reside for an
indefinite period in that State. In such
circumstances, those same provisions allow a
parent who is that minors primary carer to
reside with the child in the host Member State.
(point 47)

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Case C-456/02, Trojani, Judgment of 7/9/04 a
citizen of the Union in a situation such as that
of the claimant in the main proceedings does not
derive from Article 18 EC the right to reside in
the territory of a Member State of which he is
not a national, for want of sufficient resources
within the meaning of Directive 90/364. Contrary
to the circumstances of the case of Baumbast and
R, there is no indication that, in a situation
such as that at issue in the main proceedings,
the failure to recognise that right would go
beyond what is necessary to achieve the objective
pursued by that directive. (point 36)
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• Rights or advantages derived from Articles 12,
  17 and/or 18
• (Compensation for the victims of crime, Case
  186/87,
• Cowan, ECR 1989, p.195)
• Language rules applicable to criminal
  proceedings,
• Case C-274/96, Bickel and Franz, ECR 1998, p.
  I-7637
• Child-raising allowances, Case C-85/96, Martinez
  Sala,
• ECR 1998, p. I-2691
• Social assistance in the form of a minimum
  income
• guarantee, Cases C-184/99, Grzelczyk, ECR 2001,
  
• p. I-6196 and C-456/02, Trojani, Judgment of
  7/9/2004
• Unemployment benefits to persons having
  completed
• secondary education, Case C-224/98, DHoop,
• ECR 2002, p. I-6191

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• Job-seekers allowances Case 186/87, Collins,
  Judgment
• of 23/3/2004
• Minimum income immune from the enforcement of
• debts, Case C-224/02, Pusa, Judgment of
  29/4/2004
• Change of family name, Case C-148/02, Garcia
  Avello,
• Judgment of 2/10/2004
• NB. Mr. DHoop and Mr. Pusa are nationals of the
  Member State concerned (Belgium and Finland).

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Direct effect and interpretative effect Case
C-413/99, Baumbast As regards, in particular,
the right to reside within the territory of the
Member States under Article 18(1) EC, that right
is conferred directly on every citizen of the
Union by a clear and precise provision of the EC
Treaty. Purely as a national of a Member State,
and consequently a citizen of the Union, Mr
Baumbast therefore has the right to rely on
Article 18(1) EC.(point 84)
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Case C-138/02, Collins In view of the
establishment of citizenship of the Union and the
interpretation in the case-law of the right to
equal treatment enjoyed by citizens of the Union,
it is no longer possible to exclude from the
scope of Article 48(2) of the Treaty - which
expresses the fundamental principle of equal
treatment, guaranteed by Article 6 of the Treaty
- a benefit of a financial nature intended to
facilitate access to employment in the labour
market of a Member State. (point 63)
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Joined Cases C-482/01 and C-493/01, Orfanopoulos
and Oliveri, Judgment of 29/4/2004 In that
regard, the Court has consistently held that the
principle of freedom of movement for workers must
be given a broad interpretation whereas
derogations from that principle must be
interpreted strictly (point 64) It must be
added that a particularly restrictive
interpretation of the derogations from that
freedom is required by virtue of a persons
status as a citizen of the Union. As the Court
has held, that status is destined to be the
fundamental status of nationals of the Member
States... (point 65)
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• 4. Perspectives and challenges
• internal market (area without internal
  frontiers Article 14 CE) and area of freedom,
  security and justice (Article 2 EU, Article 61
  EC)
• additional rights ?
• obligations ?
• fundamental and human rights
• Treaty establishing a Constitution for Europe
• (signed on 29 October 2004)