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Citizenship of the European Union was introduced by the Maastricht Treaty signed in 1992. It exists alongside national citizenship and provides additional rights to nationals of Member States of the European Union.

Who is an EU citizen?

Article 17 (1) of the amended Treaties of Rome states that
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.


All nationals of Member States are citizens of the union. "It is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality." This also means that member states are not totally free, in the way they give their nationality, albeit the restrictions are mostly theoretical. For example, if a member state were to give overnight its nationality to millions of citizens of non member states, that would be illegal under current EU laws (as well as international law).

Rights of EU citizens

Specific rights

The amended EC Treaty provides the following rights to EU citizens:

  • a right not to be discriminated against on grounds of nationality within the scope of application of the Treaty (Article 12);
  • the right of free movement and residence throughout the Union and the right to apply to work in any position (including national civil services with the exception of a wide range, but with large variations between member countries, of positions deemed to be sensitive: this means in fact that in many instances a citizen of state A may be found exercising a profession in state B the equivalent of which a citizen of state B is in no way authorised to exercise in state A) (Article 18);
  • the right to vote and the right to stand in local and European elections in any Member State, other than the citizen's own, under the same conditions as the nationals of that state (Article 19);
  • the right to protection by the diplomatic or consular authorities of other Member States when in a non-EU Member State, if there are no diplomatic or consular authorities from the citizen's own state (Article 20);
  • the right to petition the European Parliamentmarker and the right to apply to the European Ombudsman in order to bring to his attention any cases of poor administration by the Community institutions and bodies, with the exception of the legal bodies (Article 21)This right also extends to "any natural or legal person residing or having its registered office in a Member State": Treaty of Rome (consolidated version), Article 194.;
  • the right to apply to the Community institutions in one of the official languages and to receive a reply in that same language (Article 21); and
  • a right of access to European Parliamentmarker, Council, and Commissionmarker documents (Article 255).


The right to residence for nationals of the two most recent EU members (Romaniamarker and Bulgariamarker) may be limited by member states. However, such limitations can only be imposed in the seven years following those countries' accession, i.e. until the end of 2013. At the year 2013 the restrictions by these two EU Member States shall be lifted permanently.

Article 18 Freedom to move and reside

Article 18 (1) of the amended Treaties of Rome states that
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.


The European Court of Justice has remarked that,
EU Citizenship is destined to be the fundamental status of nationals of the Member States,
but this appears to be still far from the case (in most European countries court work is strictly reserved for nationals of the country in question).

The ECJ has held that this Article confers a directly effective right upon citizens to reside in another Member State. Before the case of Baumbast, it was widely assumed that non-economically active citizens had no rights to residence deriving directly from the EC Treaty, only from directives created under the Treaty. In Baumbast, however, the ECJ held that Article 18 of the Treaty granted a generally applicable right to residency, which is limited by secondary legislation, but only where that secondary legislation is proportionate. Member States can distinguish between nationals and Union citizens but only if the provisions satisfy the test of proportionality. Migrant EU citizens have a "legitimate expectation of a limited degree of financial solidarity... having regard to their degree of integration into the host society" Length of time is a particularly important factor when considering the degree of integration.

The ECJ's case law on citizenship has been criticised for subjecting an increasing number of national rules to the proportionality assessment.

Article 39 Freedom of movement to work

Article 39 of the amended Treaties of Rome states that
1.
Freedom of movement for workers shall be secured within the Community.
2.

Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.


However, the accession treaties of some new (Central Europe) member states have been such as to delay the effective date of application of Article 39 to their citizens. This has varied among the origian (Western European) member states: for example, The United Kingdom, Ireland and Sweden all accepted migrant workers from Poland from the date of accession, whereas their access to other labour markets (such as Germany's) is delayed for up to ten years.

Citizens Rights Directive

Much of the existing secondary legislation and case law was consolidated in Directive 2004/38/EC on the right to move and reside freely within the EU.

History

The concept of EU citizenship as a distinct concept was first introduced by the Maastricht Treaty, and was extended by the Treaty of Amsterdam. Prior to the 1992 Maastricht Treaty, the European Communities treaties provided guarantees for the free movement of economically active persons, but not, generally, for others. The 1951 Treaty of Paris establishing the European Coal and Steel Community established a right to free movement for workers in these industries and the 1957 Treaty of Rome provided for the free movement of workers and services.

However, the Treaty provisions were interpreted by the European Court of Justice not as having a narrow economic purpose, but rather a wider social and economic purpose. In Levin, the Court found that the "freedom to take up employment was important, not just as a means towards the creation of a single market for the benefit of the Member State economies, but as a right for the worker to raise her or his standard of living". Under the ECJ caselaw, the rights of free movement of workers applies regardless of the worker's purpose in taking up employment abroad, to both part-time and full-time work, and whether or not the worker required additional financial assistance from the Member State into which he moves. Since, the ECJ has held that a recipient of service has free movement rights under the treaty and this criterion is easily fulfilled, effectively every national of an EU country within another Member State, whether economically active or not, had a right under Article 12 of the European Community Treaty to non-discrimination even prior to the Maastricht Treaty.

In Martinez Sala, the European Court of Justice held that the citizenship provisions provided substantive free movement rights in addition to those already granted by Community law.

Controversy regarding differences of treatment with third countries

Although, officially, all EU nationals enjoy a broad range of rights throughout the union, EU citizenship functions on a de-facto two tier basis. Western European nationals enjoy a full set of rights throughout the union such as the right to work in any member state and the right to travel, visa-free, to many other third countries, such as the US, whilst nationals of some Eastern European member states enjoy a bit more limited set of rights (mostly right to work in any member state). This observation has created a fair amount of controversy regarding the emergence of a 'second-class' citizenship and it has contributed to tension between the old and new member states and their citizens.

See also



Further reading



References

  1. Treaty of Rome (consolidated version)
  2. Case C-396/90 Micheletti v. Delegación del Gobierno en Cantabria, which established that dual-nationals of a Member State and a non-Member State were entitled to freedom of movement; case C-192/99 R v. Secretary of State for the Home Department, ex p. Manjit Kaur. It is not an abuse of process to acquire nationality in a Member State solely to take advantage of free movement rights in other Member States: case C-200/02 Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department.
  3. Case C-184/99 Rudy Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve .
  4. Case C-413/99 Baumbast and R v Secretary of State for the Home Department, para. [85]-[91].
  5. Durham European Law Institute, European Law Lecture 2005, p. 5.
  6. . See also Case C-209/03 R (Dany Bidar) v. London Borough of Ealing and Secretary of State for Education and Skills, para. [56]-[59].
  7. Directive 2004/38/EC of the European Parliament and of the Council 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.
  8. This rendered the provision to the same effect in Protocol no. 5 on the position of Denmark in the Treaty on the European Union superfluous. See
  9. Article 69.
  10. Title 3.
  11. Case 53/81 D.M. Levin v Staatssecretaris van Justitie.
  12. Case 139/85 R. H. Kempf v Staatssecretaris van Justitie.
  13. Joined cases 286/82 and 26/83 Graziana Luisi and Giuseppe Carbone v Ministero del Tesoro.
  14. Case 186/87 Ian William Cowan v Trésor public.
  15. Advocate General Jacobs' Opinion in Case C-274/96 Criminal proceedings against Horst Otto Bickel and Ulrich Franz at paragraph [19].
  16. Case C-85/96 María Martínez Sala v Freistaat Bayern.



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