the evolution of european union citizenship

8/9/2019 The Evolution of European Union Citizenship

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SYMPOSIUM

the evolution of european unioncitizenshipdora kostakopoulouUniversity of Manchester School of Law, University of Manchester, Williamson Building,

Oxford Road, Manchester M13 9PL, UK

E-mail: [email protected]

doi:10.1057/eps.2008.24

AbstractIn the 1990s most scholars saw European citizenship as a purely decorative

and symbolic institution which added little new to the pre-Maastricht

regime of free movement rights. In addition, many felt the need to defend

the primacy of national citizenship by highlighting the derivative nature and

weak content of European citizenship. Accordingly, its transformative

potential remained at the margins of the debate. Despite such assess-

ments, European Union citizenship has matured as an institution, owing to

a number of important interventions by the European Court of Justice and

legislative initiatives, such as the Citizenship Directive (Dir 2004/38).

Keywords European citizenship; postnationalism; European Court of

Justice; free movement rights

The introduction of Union citizenship

by the Treaty on European Union

(EU) (1 November 1993) shattered

prevailing economic approaches to

European integration (Durand, 1979;

Evans, 1984) and generated debates

concerning issues of polity formation,

such as European democracy and legiti-

macy, European constitutionalism, the

formation of a European demos and

the design of a European public sphere

(Weiler, 1995; de Burca, 1996; Curtin,

1997; Closa, 1992, 1998; Meehan, 1993;

Kostakopoulou, 1996, 1998; Preuss,

1996; Shaw, 1997; Wiener, 1997). As

such, it featured centrally in what has

been termed the normative turn in

European studies (Weiler, 1995). In addi-

tion, the mere fact that citizenship had

burst its statist and national bounds

(Heater, 1999) sparked intriguing ques-

tions, such as what citizenship might

mean in a supranational context, how it

might affect the development of a non-

statal form of governance and how citizen-

ship per se might be transfigured in

analytical and institutional terms (Delanty,

1997; OLeary, 1996). Constructivist ap-

proaches addressed these questions and

highlighted the transformative potential

of European citizenship (Kostakopoulou,

2000, 2001; Wiener, 1998; Shaw, 1998).

But this perspective failed to convince.

Most scholars saw European citizenship

european political science: 72008

(285295) & 2008 European Consortium for Political Research. 1680-4333/08 www.palgrave-journals.com/eps

285


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as a purely decorative and symbolic

institution, and a mirror image of pre-

Maastricht market citizenship (Everson,

1995; dOliveira, 1995; Lehning, 1997).

For instance, scholars observed that

Union citizenship had added substantiallylittle new to existing Community law,

with the exception of electoral rights in

European Parliament and local elections

and the right to diplomatic and consular

protection. Others argued that since

European citizenship was essentially a

mercantile form of citizenship designed

to facilitate economic integration, it

would only be relevant to favoured EC

nationals, that is, to a minority of

European citizens who possess the ne-cessary resources required for intra-EU

mobility.1 On the basis of such assess-

ments, EU citizenship could not induce

real institutional change.

And yet, institutional change has oc-

curred. European citizenship has matured

owing to the European Court of Justices

(ECJs) tactical interventions in-between

Treaty revisions and developments, such

as adoption of the Charter of Fundamen-

tal Rights of the European Union, whichwas proclaimed in Nice in December

2000, and the entry into force of Directive

2004/38 on 1 May 2006. In addition, it

features centrally on the Commissions

policy agenda, as attested by the desig-

nation of 2006 as the European Year of

workers mobility,2 the conversion of the

European Union Monitoring Centre on

Racism and Xenophobia into a Funda-

mental Rights Agency,3 the adoption of

a Community action programme to pro-

mote active European citizenship4 and

the follow-up Europe for Citizens pro-

gramme that runs from 2007 to 2013,

designed to ensure the publics active

involvement in the process of European

integration.5 The institutional develop-

ment of Union citizenship shows that

much of the 1990s literature on

European citizenship incorrectly under-

estimated its conceptual resources and

wide-ranging transformative potential. It

also demonstrates that European citizen-

ship can be the engine for creating a

political community in which diverse peo-

ples become associates in a collective

experience and institutional designers,

and the prototype for a post-national

citizenship design.

SCEPTICAL AND

CONSTRUCTIVIST

APPROACHES

The establishment of EU citizenship by

the Treaty on European Union did not

capture the political imagination to anygreat extent. Most scholars and policy-

makers saw European citizenship as a

purely decorative and symbolic institu-

tion (Everson, 1995; dOliveira, 1995;

Downes, 2001). They observed that

European citizenship reflected existing

law, that is, the rights of free movement

and residence, and did not include any

reference to the duties owed by European

citizens. For sure, if one juxtaposes the

minimalist content of European citizen-

ship to that of national citizenship, which

includes a wide range of rights and a

notion of membership in a national com-

munity, it may be concluded that the

former represents a pale shadow of its

national counterpart (dOliveira, 1995).

Scepticism among scholars also centred

upon the market-oriented character

of EU citizenship (Everson, 1995). Scho-

lars pinpointed, for instance, that Union

Most scholars sawEuropean citizenship asa purely decorative and

symbolic institution,and a mirror image

of pre-Maastrichtmarket citizenship.


the evolution of european union citizenship286


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citizenship reflected a loose and fragmen-

ted form of mercantile citizenship de-

signed to facilitate European integration

(Vink, 2005). As a form of mercantilecitizenship, European citizenship could

not but have a weak affective dimension.

Unlike national citizenships, which reflect

strong national identities and the hori-

zontal ties of belonging to a nation,

European citizenship was going to facil-

itate the formation of a European demos.6

In addition, although the establishment

of a supranational citizenship at Maas-

tricht showed that citizenship could no

longer remain a national-statist affair, the

nationality model of citizenship prefigured

European citizenship. Union citizenship

has been conditioned upon the acquisition

and retention of national citizenship

(Article 17(1) EC). Making European citi-

zenship derivative of national citizenship

not only gives prominence to the nation-

ality principle, but also, perhaps more

worryingly, subjects membership of the

European public to the definitions, terms

and conditions of membership prevailing

in national publics (Kostakopoulou, 1996,

2001). As the Declaration on Nationality

of a Member State, annexed to the FinalAct of the Treaty on European Union,

expressly stated, the question whether

an individual possesses the nationality of

a Member State shall be settled solely

by reference to the national law of the

Member State concerned. Similar de-

clarations were adopted by the European

Council in Edinburgh and Birmingham.

The Birmingham declaration confirmed

that, in the eyes of national executives,

Union citizenship constitutes an addi-

tional tier of rights and protection that

is not intended to replace national

citizenship a position that found con-

crete expression in the amended Article

17(1) at Amsterdam.7 The ECJ has by and

large upheld the international law maxim

that determination of nationality falls

within the exclusive jurisdiction of the

member states, despite the anomalies

that this creates in the field of application

r [email protected]

dora kostakopoulou european political science: 72008 287


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of EC law and its exclusionary implica-

tions with respect to the rights of long-

term resident third-country nationals.

In Micheletti, the ECJ confirmed that

determination of nationality falls within

the exclusive competence of the memberstates, but it went on to add that this

competence must be exercised with due

regard to the requirements of Community

law,8 and in Kaur it stated that it is for

each Member State, having due regard to

Community law, to lay down the condi-

tions for the acquisition and loss of

nationality.9 This, essentially, means that

persons who are legally recognised to be

nationals of a member state should

be able to exercise their rights to freemovement without impediments imposed

by additional regulations adopted by

other member states.

In Chen, the ECJ criticised the restric-

tive impact of such additional conditions

for the recognition of nationality of a

member state. Ms Chen, a Chinese na-

tional, was able to rely on Article 18 EC in

order to reside in the UK as the carer of a

child (Catherine Zhu) who had acquired

Irish nationality. The United Kingdom(UK) had thus an obligation to recognise

the minors Union citizenship status even

though her mother had gone to Ireland

with the intention to circumvent UK

migration legislation. Since Catherine

had legally acquired Irish nationality un-

der the ius soli principle enshrined in the

Irish Nationality and Citizenship Act 1956

and had both sickness insurance and

sufficient resources, which were provided

by her mother, the limitations and condi-

tions referred to in Article 18 EC and laid

down by Directive 90/364 had been met,

thereby conferring on her and her mother,

who was her carer, an entitlement to

reside for an indefinite period in the UK.10

Owing to the foregoing reasons, scho-

lars and commentators concluded that

European citizenship was a symbolic in-

stitution that was incapable of inducing

real institutional change. But constructivist

perspectives put forward an alternative

interpretation. Reflecting longstanding

concerns about the maintenance of na-

tionality as a proxy for defining political

community and encouraged by develop-

ments above and below the nation-state,such as globalisation, multi-level govern-

ance arrangements, transnationalism

and growing internal differentiation, con-

structivists focused on the potential of

European citizenship to call into question

traditional ways of thinking about com-

munity and membership and to prompt

wider socio-political transformation. On

this reading, the constraints of Union

citizenships existing political and legal

structures were seen as neither funda-mental flaws nor limits; instead, they

were viewed as opportunities for institu-

tional modification and for building a

political community on purely political

grounds. In other words, the main defi-

ciency of the EU, namely the lack of a

primordial substratum and/or cultural

commonalities was, in the view of con-

structivists, its principal advantage, since

it signalled the construction of a genu-

inely pluralistic community that wouldtake difference seriously and denationa-

lise political belonging.

THE EVOLUTION OF

EUROPEAN CITIZENSHIP

Although the introduction of European

citizenship had led to a conceptual meta-

morphosis of the Community rights of

free movement and residence,11 the ECJ

initially invoked this institution in order to

consolidate existing law. In the period

19931997, European citizenship was

thus used as a supplementary basis in

order to confirm precedent. The first

opportunity for institutional change arose

in Martinez Sala in 1998. In this case,

the ECJ held that lawful residence of a

Community national in another member

state was sufficient to bring her within

the scope of ratione personae of the




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provisions of the Treaty on European

citizenship. Since Sala had been

authorised to reside in Germany, the

requirement of the 1985 Federal Law that

a Community national had to produce a

residence permit in order to receive achild-raising allowance, when that states

own nationals were not required to pro-

duce any document of that kind,

amounted to unequal treatment prohib-

ited by Article 12 EC. In other words, Sala

was entitled to receive non-discrimina-

tory treatment on the grounds of nation-

ality as a European citizen lawfully

residing in another member state. By

putting flesh on the bones of European

Union Citizenship, the court displayed itscapacity to attach a new constructive

meaning to the status of citizenship of

the Union, thereby overriding the inter-

ests of member states (OLeary, 1999).

More importantly, it did so by calling into

question the link between the existence of

citizen status and economic activity or

self-sufficiency.12 In Elsen the Court high-

lighted further the importance of Union

citizenship,13 by ruling that, although

member states retain the power to orga-nise their social security schemes, they

must, nonetheless, comply with Commu-

nity law and the Treaty provisions on

Union citizenship.

The proclamation of the EU Charter of

Fundamental Rights in Nice (7 December

2000)14 and the Commissions proposal

for a Directive on the right of citizens

and their family members to move and

to reside freely within the territory of

the member states15 created a political

climate that favoured constructive

readings of European citizenship. The

draft directive16 entailed provisions that

strengthened the rights of EU nationals in

the host Member State and a phased

approach to the disentanglement of

residence from economic activity. Non-

active economic actors would have to

satisfy the self-sufficiency and posses-

sion-of-sickness-insurance conditions in

the first four years of residence in the

host state, but thereafter would enjoy a

permanent and unqualified right of resi-

dence and virtually complete equality

of treatment.17 This would guarantee

security of residence and access to socialwelfare in the host member state.18

Capitalising on this climate, in Grzelczyk

Advocate General Alber stated that:

Citizenship of the Union took on greater

significance, in contrast to the perception

of individuals as purely economic actors

which had underlain the EC Treaty.

The conditions on which freedom of

movement may depend are now no long-

er economic in nature, as they still were in

the 1990 directives. The only limitationsand conditions attached to freedom of

movement now are imposed on grounds

of public policy, public security and

public health.19

Grzelczyk, a French national studying

physical education in Belgium, had

spent the first three years of his studies

supporting himself through various jobs.

In his fourth year, he faced economic

difficulties and applied to the CPAS

(Centre Public daide sociale dOttignies-Louvain-la-Neuve) for a minimum subsis-

tence allowance paid in Belgium, known

as minimex. CPAS granted Grzelczyk

the social assistance benefit, but when

it sought the reimbursement of the

payments from state authorities, the

application was declined on the ground

that Grzelczyk was not a Belgian

national. Mr Grzelczyk challenged this

refusal before a labour tribunal. Rejecting

the minimalist perspective associated

with the model of market citizenship

(section 1), the ECJ stated that, Union

citizenship is destined to be a fundamen-

tal status of nationals of the Member

States, enabling those who find them-

selves in the same situation to enjoy the

same treatment in law irrespective of

their nationality, subject to such excep-

tions as are expressly provided for.20

Since Union citizens can rely on Article



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12 EC, which prohibits discrimination on

the ground of nationality, in all situations

that fall within the material scope of the

EC Treaty (Sala), Article 12 EC, read in

conjunction with Union citizenship, led

the Court to rule that students studyingin another member state and facing

temporary economic difficulties can rely

on the non-discrimination clause in claim-

ing social advantages. Indeed, a certain

degree of financial solidarity between

nationals of a host member state and

nationals of other member states must be

recognised, provided that beneficiaries do

not become an unreasonable burden on

the host member state.

The ruling in Grzelczyk advanced themeaning of EU citizenship by strengthen-

ing the rights of non-active economic

actors and thus broadening the bound-

aries of social citizenship at the national

level. It called into question the link

between economic activity and residence

in certain circumstances (i.e., temporary

economic difficulties), thereby shifting

the emphasis away from the grant of

particular rights to particular groups of

(economic) actors and instead embracinga powerful mission of protection of in-

dividual rights (Weatherill, 2003: 490).

By so doing, it initiated a wider learning

process that transformed students facing

temporary economic difficulties into as-

sociates since they are entitled to claim

social assistance benefits under the same

conditions as nationals of the member

state concerned. The associate member-

ship status of students was re-affirmed in

the Bidar case in 2005.21 This case

examined the conditions for the grant of

financial assistance to a student who has

moved to another member state in order

to study there. By departing from earlier

case law that excluded students from

the provision of financial assistance by

the state, the Court ruled that students

who have demonstrated a certain degree

of integration into the society of the host

state can claim maintenance grants. But

the member states are also entitled to

ensure that the grant of assistance does

not become an unreasonable burden.

Even though the requirement of demon-

strating a certain degree of integration is

not sufficiently clear, the Court has,nevertheless, indicated that a reasonable

period of residence and the ensuing im-

mersion in a web of interactions in the

host state generates an entitlement to

non-discrimination. Departing from exist-

ing case law, the Court thus ruled in

Trojani that a lawfully resident non-active

economic actor is entitled to a social

assistance benefit on the basis of Article

12 EC,22 whereas in Collins, the absence

of a genuine link between a jobseeker andthe employment market of the host state

invalidates an entitlement to a jobsee-

kers allowance.23 In both cases, however,

the principle of proportionality must be

respected and the application of a resi-

dence requirement is open to judicial

review. In DHoop the Court highlighted

that Union citizenship forms the basis of

rights to equal treatment, irrespective of

nationality,24 and noted that it would

contravene EC law if a citizen received inher own Member State treatment less

favourable than that she would otherwise

enjoy had she not availed herself of the

right to free movement.25

The rights of dependent family mem-

bers of EU citizens have also been

strengthened. In Carpenter, the Court

did not hesitate to derive a right of

residence from a Treaty article (Article

49 EC), thereby overriding restrictive

national immigration rules (Barret,

2003). This enabled Mrs Carpenter, a

national of the Philippines and the spouse

of a UK national who was providing

services abroad, to challenge successfully

a deportation order issued by the Home

Secretary on the ground that her depor-

tation would impede her husbands right

to provide and receive services in other

member states, since she was looking

after his children from his first marriage.




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Disagreeing with the UK Governments

submission,26 the court ruled that

Mr Carpenters right to provide services

under Article 49 EC would not be fully

effective if he were to be deterred from

exercising it by obstacles raised in hiscountry of origin relating to the entry and

residence of his spouse.27 Article 49 EC

read in light of the principle of respect

for family life, which is recognised by

Community law,28 must thus be inter-

preted as precluding Carpenters deporta-

tion.29 The principle of respect for family

life also led the court to rule that restric-

tive state practices, such as sending back

to the border third-country national

spouses of Community nationals who donot possess the necessary entry docu-

ments (i.e., an identity document or

visa), denying them a residence permit

or ordering an expulsion order on the

grounds that they are illegal entrants

or residents, are disproportionate and

unlawful under Community law. These

issues were raised in proceedings be-

tween the Movement Against Racism,

Anti-Semitism and Xenophobia (Mouve-

ment contre le racism, lantisemitisme etla xenophobie (MRAX)) and the Belgian

State in July 2002.

The Courts stance on the mobility

rights of third-country national family

members of Union citizens shows that

European judges do not faithfully serve

the interests of the member states, as

Garrett had argued.30 Nor would it be

correct to say that the ECJs strategic

interventions are confined to policy areas

that have low costs for member states.

The cases examined above show that the

ECJ did not hesitate to procure institu-

tional change in key areas of high politics

drawing on the normative dimensions

of Union citizenship and a favourable

organisational climate. However, member

states are not apathetic about such

interventions and do not hesitate to ex-

ploit potential ambiguities in secondary

EC law or case law in order to pursue

protectionist policies. The Home Offices

interpretation of the ECJs ruling in Akrich

is a case in point.31

In Baumbast, the Court advanced EU

citizenship in an innovative way. Not only

did it derived a new right of residence fora parent who was the primary carer of a

child studying in a host member state

(Article 12 of Council Reg. 1612/68), but

it also ruled that Article 18(1) EC had

created directly effective rights enforce-

able in national courts.32 Relying on the

normative weight of Union citizenship,

the Court stated:

y 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 as a citizen of

the Union, Mr Baumbast therefore has

the right to rely on Article 18(1) EC.

Any limitations and conditions imposed

on that right are subject to judicial review

and thus do not prevent the provisions ofArticle 18(1) EC from conferring on in-

dividuals rights which are enforceable by

them and which the national courts must

protect. Such an interpretation further

weakened the link between economic

status and the right to free movement

and reflected broader normative aspira-

tions for a constructive understanding of

European citizenship that eventually

found their way into juridico-political re-

form ten years after the establishment of

this institution.

Following Baumbast, the Court contin-

ued to utilise Union citizenship in a radical

way. In Garcia Avello, a refusal of the

Belgian authorities to register a child of

dual nationality with the surname of both

parents, following the Spanish pattern of

entering the mothers maiden name in

addition to the patronymic surname of the

father, constituted discrimination on the



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grounds of nationality prohibited under

Articles 12 and 17 EC.33 And although the

Belgian Government submitted that

the immutability of surnames is condu-

cive to the social order and integration

of non-Belgian nationals into Belgiansociety, the Court dismissed this argu-

ment by stating that children, who en-

joyed the status of EU citizens, should not

suffer discrimination in respect of their

surname and that the Belgian practice

was neither necessary nor appropriate for

promoting the integration of non-Belgian

nationals. In Pusa, Advocate General

Jacobs stated that, far from being limited

to a prohibition of direct or indirect

discrimination, Article 18 EC applies tonon-discriminatory restrictions, including

unjustified burdens.34 Similarly, in Tas

Hagen and Turpeinen the Court sought

to protect citizens who live in another

member state from disadvantages im-

posed by legislation in the fields of taxa-

tion and the award of civilian war

benefits.35

On the same day that the Court deliv-

ered its judgment in Pusa, the Directive

on the Right of Citizens and their FamilyMembers to move and reside freely

within the territory of the Member States

was adopted.36 The Directive remedied

the sector-by-sector, piecemeal approach

to free movement rights by incorporating

and revising the existing Directives

and amending Council Regulation 1612/

68.37 Building on the rights-based

approach characterising the rights of

free movement and enhancing it by giving

concrete form to the principle that resi-

dence generates entitlements, the Direc-

tive gave further substance to Union

citizenship by establishing an uncondi-

tional right of permanent residence for

Union citizens and their families38 who

have resided in the host member state for

a continuous period of five years. The

right of permanent residence entails a

right of equal treatment with nationals in

areas covered by the Treaty that will be

extended to family members who are not

nationals of a member state and who

have the right of residence or permanent

residence. In light of the typology of

residence rights established by the

Directive, shorter periods of residenceexceeding three months entail a right of

residence for Union citizens and their

family members if they: (a) engage in

economic activity; (b) have sufficient

resources and comprehensive sickness

insurance cover in the host Member

States as non-active economic actors

and (c) are enrolled at a private or public

establishment, have comprehensive sick-

ness insurance cover and are self-suffi-

cient in order to avoid becoming a burdenon the social assistance system of the

host member state. More importantly, a

novel provision of the Directive provides

that as long as the beneficiaries of the

right of residence do not become

an unreasonable burden on the social

assistance system of the host member

state they should not be expelled, there-

by incorporating the ECJs ruling in

Grzelczyk.39 This provision attests Union

citizenships capacity to change our un-derstanding of community membership

and to prompt a rethinking of the mean-

ing of citizenship itself with a view to

creating more inclusive forms of political

association. Finally, for short periods of

residence for up to three months, Union

citizens shall have the right of residence

without any conditions or any formalities

other than the requirement to hold a valid

identity card or passport. In sum, the new

Directive on free movement creates the

institutional preconditions for a construc-

tive approach to citizenship, which is

more inclusive than nationality-based

models of citizenship, be they of either

liberal or republican or of a deliberative

nature.40 For this reason, the Directive

makes provision for the possibility to

extend the period of time during which

Union citizens and their family members

may reside in the territory of the host




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member state without any conditions.41

At the heart of EU citizenship thus lies

the principle of equal treatment and the

denationalisation of membership in a

political community.

CONCLUSION

The above developments clearly show

that EU citizenship matters. The latter is

neither a symbolic institution nor a form

of market citizenship. It is thus unfortu-

nate that much of the relevant literature

in the 1990s did not recognise the trans-

formative resources entailed by European

citizenship. The constructivist template

captured the transformative potential of

EU citizenship. As an institutional de-

signer and agent of change, the ECJ has

succeeded in institutionalising European

citizenship, that is, in giving meaning,

specificity and value to it, thereby estab-lishing new institutional norms that will

impact on, and modify, national legal

cultures. This has induced further changes

in law and politics, as attested by the

adoption of the Citizenship directive and

the Commissions programmes on enhan-

cing civic participation. Developing EU

citizenship has become a priority for

EU action and a means of enhancing

citizens identification with the EU.

Notes

1 This is because they are either active economic actors or self-sufficient and in possession of sickness

insurance under the 1990 three residence Directives (90/364, 90/365 and 90/366, which was replaced

by Directive 93/96). The European Parliament and Council Directive 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 (2004/38/EC), which repeals the above mentioned Directives, introduces three separate

categories of residence rights and establishes an unqualified right of permanent residence after five years

of continuous legal residence in the host Member State; OJ 2004 L 158/77 (30 April 2004).

2 The European Year was launched in Brussels on 2021 February 2006. See also the Commissions

Communication on action for skills and mobility, COM(2002) 72 final.

3 See the Commissions Communication to the Council and the European Parliament, The HagueProgramme Ten Priorities for the next five years, COM(2005) 184 final and Council Regulation 168/

2007 establishing a European Union Agency for Fundamental Rights OJ 2007 L 53/1.

4 Council Decision 2004/100/EC of 26 January 2004, establishing a Community action programme to

promote active European citizenship, OJ L30, 4/2/2004. The programme has awarded grants to a number

of organisations that promote civic participation in the EU over a three-year period (20042006).

5 Proposal for a decision of the European Parliament and of the Council, of 6 April 2005, establishing for

the period 20072013 the programme Citizens for Europe to promote active European citizenship;

COM(2005) 116 final. The main aims of the programme are to enhance interaction among European

citizens and civic participation, with the aim of promoting intercultural dialogue and a sense of European

identity. Three types of action have been envisaged, namely, active citizens for Europe, active civil

society in Europe and together for Europe, and the proposed budget for the implementation of the

programme is h235 million.

6 See the Commissions third report on Union citizenship; COM (2001) 506 final.

7 Bull. EC 10-1992 I 8.9. The Amsterdam Treaty added the statement that Union citizenship shall

complement national citizenship to Article 8(1) EC (Article 17(1) on renumbering).

8 Case C-369/90 Micheletti and Others v Delegacion del Gobierno en Catanbria [1992] ECR I- 4329.

9 Case C-192/99 R v Secretary of State for the Home Department, ex parte Kaur[2001] ECR I-1237, para 19.

10 Case C-200/02 Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home

Department, Judgement of the Court of 19 October 2004.

11 COM(93) 702 Final, 21/12/93. See also Advocate General Legers opinion in Case C-1214/94 Boukalfa

v Federal Republic of Germany [1996] ECR I-2253.

12 As the Advocate General stated, the limitations in Article 8a itself concern the actual exercise but not

the existence of the right; Case C-85/96 at para 18.

13 Case C-135/99 Ursula Elsen v Bundesversicherungsanstalt fur Angestellte, Judgment of the Court of

23 November 2000.



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14 [2000] OJ C364.

15 COM (2001)257 Final; Brussels 23.5.2001.

16 COM (2001) 257 final, para 1.3 of the explanatory memorandum.

17 Ibid. Article 14.

18 Ibid. Articles 26 and 21(1).

19 Case C-184/99 [2001] ECR I-6913 at para. 52. The discussion here draws on my article Ideas, Norms

and European Citizenship: Explaining Institutional Change, which appeared in The Modern Law Review,68(2), 2005, 233267.

20 Grzelczyk, above n 84 at para 31. Under the Commissions proposed directive, on completion of a

four-year educational course in an MS, the self-sufficiency conditions attached to the residence of

students would cease to apply, thereby enabling former students to stay on in the host state and to

receive social security entitlements on the same basis as nationals (Articles 7 and 8(4)).

21 Case C-209/03, Bidar v London Borough of Ealing, Judgment of 15 March 2005.

22 Case C-456/02 Trojani v CPAS [2004] ECR I-7573.

23 C-138/02 Brian Francis Collins [2004] ECR I-2703. Similarly, the taking up of residence abroad is not

a satisfactory indicator of a loss of connection with ones home Member State which is demonstrating its

solidarity with the applicant by granting a civilian war benefit to him/her; Case C-192/05, K. Tas-Hagen

and R.A. Tas, Judgement of the Court of 26 October 2006.

24 Case C-224/98 Marie-Nathalie DHoop v Office national de lemploi[2002] ECR I-6191.

25 Compare also C-258/04 Ioannidis, Judgement of 15 September 2005. Ioannidis was denied a

tideover allowance on the grounds that he had completed his secondary education in another Member

State. See also Pusa, n. 55 below.

26 Case C-60/00 M. Carpenter, Judgement of the Court of 11 July 2002, paras. 2830.

27 Ibid., at para 39.

28 On this, see the provisions of the Council Regulations and directives on the free movement of

employed and self-employed persons as well as Article 8 ECHR.

29 Carpenters deportation could not be justified on public order or safety grounds.

30 Garrett, n 90 above.

31 Case C-109/01 Secretary of State for the Home Department v Akrich [2001] ECR I-9607. Although

the case involved a third-country national spouse of a Community national who was not lawfully resident

in the UK before moving to another member state, the UK has operated a blanket requirement that

dependent relatives of EU nationals must be lawful residents in a EU state before they are granted

residence rights in another member state. In Jia, the Court was keen to distinguish Akrich and ruled that

there was no requirement for Mrs Jia to have lawfully resided in another member state in order to begranted a long-term residence permit in Sweden as a dependent relative of a national of a member state.

(32) Case C-1/05 Jia v Migrationverket[2007] ECR I-000.

32 Case C-413/99 Baumbast, R v Secretary of State for the Home Department, Judgement of the Court

of 17 September 2002.

33 Case C-148/02 Garcia Avello v Etat Belge [2003] ECR I-11613.

34 Case C-224/02 Heikki Antero Pusa v Osuuspankkien Keskinainen Vakuutusythio [2004] ECR I-5763.

35 Case C-192/05 Tas-Hagen v Raadskamer WUBO van de Pensioen en Uitkeringsgsrad [2006] ECR I-

000, Case C-520/04 Turpeinen [2006] ECR I-000

36 Directive 2004/38/EC, OJ 2004 L 158/77. I have discussed this in Kostakopoulou (2005) n 19 above.

37 Articles 10 and 11 of Council Reg. 1612/68 were repealed with effect from 30 April 2006.

38 The definition of a family member includes a registered partner if the legislation of the host member

state treats registered partnership as equivalent to marriage.

39 Ibid., Article 14.40 However, egalitarian processes co-exist with the practice of exclusion of long-term resident third-

country nationals from the personal scope of Union citizenship.

41 Ibid., chapter VII, Article 39.

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About the Author

Dora Kostakopoulou is Jean Monnet Professor in European Law and European Integration at theUniversity of Manchester. Her research interests lie in the intersection of European law andpolitical theory. Her research on citizenship has been funded by two research grants from theBritish Academy (Thank Offering to Britain Fellowship) and the Arts and HumanitiesResearch Council (Innovation Award), respectively.


the evolution of european union citizenship

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