EU Law and Fundamental Rights: Citizenship and Free Movement of Persons

EU Law and Fundamental Rights

EU Citizenship and Free Movement of Persons

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EU Law and Fundamental Rights

5.
Fundamental rights I - EU citizenship and free movement of persons
Unit 5.1 - EU citizenship
One of the fundamental aspects of the European integration process is the idea that
the citizens of each Member State are not to be considered as "foreigners" by another
Member State and must be able to generally benefit from the same treatment guaranteed
to nationals.
A turning point in this regard was the introduction of the European Union citizenship
by the 1992 Treaty of Maastricht. Essentially, EU citizenship is a status that is
automatically attributed to all individuals already possessing the citizenship of one of the
Member States. Article 9 of the TEU expressly states that "( ... ). Every national of a
Member State shall be a citizen of the Union. Citizenship of the Union shall be additional
to and not replace national citizenship".
Hence, the qualification of European citizens is strictly connected to and dependent
on national citizenship. Indeed, each Member State remains the sole subject having the
competence to establish the requirements necessary for the acquisition or loss of national
citizenship and, consequently, of the European one.
Nevertheless, the Court of Justice clarified that such competence must be in any
case exercised in conformity with EU law. For instance, a national provision providing for
the revocation of citizenship on the basis of racial reasons would certainly be contrary to
EU law, giving rise to a violation of the Treaties.
EU citizenship is intimately linked with the principle of non-discrimination on the
ground of nationality that is a founding element of the entire EU framework. Moreover, the
status of European citizens entails the attribution of a series of rights, which are:

1. Right of free movement and residence (art. 21 TFEU and art. 45 of the
   Charter). An analysis of the right at stake is provided for in the module
   concerning "the freedom of movement of persons" of the present Unit.

EU Law and Fundamental Rights Overview

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EU Law and Fundamental Rights

1. Rights to vote and to stand for election to the European Parliament and to
   the local elections in the Member State of residence (art. 22 TFEU and art.
   39-40 of the Charter). Accordingly, EU citizens that reside in a Member
   State other than the one of which they are citizens are entitled to vote and
   to be elected in the State of residence under the same conditions as the
   nationals of that State.
2. The right to diplomatic and consular protection in the territory of a third
   State in which the Member State of citizenship is not represented (art. 23
   TFEU and art. 46 of the Charter). As a result, whether a Member State is not
   represented in the territory of a third State, its nationals - being also EU
   citizens - are entitled to diplomatic and consular protection on the part of
   the authorities of any other Member State under the conditions laid down by
   it for its own citizens.
3. The right to petition to the European Parliament and to the right to lodge a
   complaint in front of the European Ombudsman (art. 24, 227-228 TFEU and
   art. 43-44 of the Charter). These rights can be exercised by legal persons
   that are registered in a Member State and by natural persons that reside in a
   Member State, even if they are not EU citizens.
4. The right to apply to any EU institution in one of the official languages of the
   Union and the right to reply in this language (art. 24 TFEU and art. 41(4) of
   the Charter). This right is connected to the right to transparency in the
   action of EU institutions and is integrated by the right of access to
   documents contained in articles 15 TFEU and 42 of the Charter. Despite the
   right at stake is expressly attributed to EU citizens, it must be guaranteed
   with regard to all natural and legal persons legally residing in a Member
   State.
5. The right of initiative of European citizens (art. 11 TEU and 24 TFEU). This
   is an innovation of the Lisbon Treaty that provides that one million citizens

EU Law and Fundamental Rights Continued

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EU Law and Fundamental Rights
who are nationals of a significant number of Member States may invite the
European Commission - within the framework of its powers - to submit any
appropriate legislative proposal on issues where citizens deem that an EU
legal act is required for the purpose of implementing the Treaties. The
procedure to present such initiative is governed by Regulation 211/2011.
The European citizenship is not only a set of rights, as it also possesses a strong
symbolic significance. Indeed, it highlights the existence of a political connection among
the citizens of the various Member States and constitutes the ground for the creation of a
real European population. In other words, it is intended to recognise to the citizens of
Member States a leading role in the system of the European Union. They are therefore
seen not just as the addressees of a set of rules and obligations.
In this respect, it is significant that the Court of Justice affirmed that EU
citizenship is meant to be the fundamental status of Member States' nationals.
On the other hand, some aspects of the EU citizenship are still under developed.
Indeed, equal treatment among citizens of different Member States is not yet entirely
effective, due, inter alia, to the conditions that each Member State is entitled to impose in
this respect. Furthermore, there is still the need to identify which duties are connected to
the status (this an element of major difference with national citizenship where this aspect
constitutes an essential element).
Lastly, it must be highlighted that EU citizens are able to invoke the rights
mentioned above only in the situations that are relevant for EU law and not with regard to
purely internal affairs. However, the Court of Justice gave a narrow interpretation of what
"purely internal" means, so to include in the scope of application of EU citizenship also
situations having just a weak link with EU law.

EU Law and Fundamental Rights: Movement and Residence

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EU Law and Fundamental Rights

5.
Fundamental rights I - EU citizenship and free movement in the EU
Unit 5.2 - The right to movement of persons and the right to residence
Since the 1957 Rome Treaty establishing the European Economic Community, the
freedom of movement of persons - which meant "workers" at that time - was identified as
one of the four fundamental freedoms establishing the common market (together with the
free movement of goods, capital and services). The concrete recognition of the rights to
movement and to residence in the different Member States required time and was reached
gradually.
Initially, the rights to free movement and residence were attributed only to the
citizens of a Member State that moved to another Member State to work as employees or
as self-employed workers. Indeed, the initial perspective of the European Treaties was
mainly economic. For this reason, the founding Treaties were mostly focused on people
carrying out economic activities.
Over the years, the rights to movement and residence have been extended also to
other categories of people, as, for instance, students and tourists. An important step in
this evolution has been the adoption in the 1990s of three directives, which, in 2004, have
been replaced by a single directive that is still in force: Directive 2004/38/CE.
The Directive at stake, on one side, guarantees the right to reside also to people
that do not perform any working activity, but, on the other, it prescribes very precise
conditions for it to apply. As explained in the module concerning EU citizenship, the
freedoms of movement and residence form part of the rights that are attributed to all
subjects possessing EU citizenship. Nevertheless, limitations can derive from both Treaty
provisions and dispositions of secondary law acts as stated by Article 21(1) TFEU: "Every
citizen of the Union shall have the right to move and reside freely within the territory of
the Member States, subject to the limitations and conditions laid down in the Treaties and
by the measures adopted to give them effect".

EU Law and Fundamental Rights: Residence Conditions

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EU Law and Fundamental Rights
The limitations provided for in the Treaties consist in reasons of public order, public
safety and public health.
Conversely, the conditions to benefit from the right to residence are laid down in
secondary law acts and, in particular, in the above-mentioned Directive 2004/38/CE. Such
instrument distinguishes among three different situations that are based on the length of
the period of residence of the EU citizen on the territory of a Member State other than the
one of his/her nationality.
Firstly, the right to residence up to three months is guaranteed to all EU citizens
with an identity document.
Secondly, citizens of other Member States can reside for more than three months in
case they:

• are employed or self-employed workers in the hosting State; or
• are following a course of either study or vocational training, are covered by a
  health insurance and declare to have sufficient economic resources; or
• are related to a EU citizen, who has been granted the right to family
  reunification.

If none of these conditions is met, the citizen has a right to reside if s/he is
covered by a health insurance and possesses sufficient economic resources.
Thirdly, the Directive attributes the right to permanent residence to all those having
legally resided on a continuous basis in the host Member State for five years. Hence, these
subjects are not required to further demonstrate to meet the previously mentioned
conditions.
One of the most controversial issues is the definition of "sufficient resources".
Over the last few years, the Court has adopted a narrower interpretation of this notion, so
to respond to the concerns expressed by some Member States with regard to the so-called
social tourism. This phenomenon occurs when non-economically active EU citizens travel
and reside in another Member State for the sole purpose of taking advantage of the social
benefit offered by that other State.