EU Citizenship: Articles 20 and 21 TFEU

Article 20 and 21 TFEU

• Establish a right to reside, but to what extent?
• Provide a freestanding right, but dependent on secondary legislation to implement?
• Dependent on economic activity, but citizenship is different from free movement of workers
• The EU is an economic organization or a political organization?

Article 20(2) TFEU

• Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties
• They shall have, inter alia, the right to move and reside freely within the territory of the Member States

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

Case Law: Zhu and Chen

• Catherine Zhu, born in Northern Ireland to Chinese parents, made a deliberate choice to make her eligible for Irish citizenship
• Child didn't physically move residence, but was resident in a Member State other than which they were a national
• Court held that financial resources came from parents, no economic activity required, and residing in another Member State than which they were a national counted as exercising free movement and right to residence

Case Law: Ruiz Zambrano

• Does it provide a right to reside in the EU even if you don’t move?
• Free and self-standing right to reside, even if you don’t move and are residing in your home Member State
• Citizens entitled to a ‘genuine enjoyment of the substance of the rights’
• Creates a new category of parental and carer residence based on care for EU citizen

Citizenship Directive

• Directive 2004/38/EC
• Aimed at facilitating and regulating free movement
• Balances and compromises, increasing freedom and restrictions
• Legislation limits court's ability to interpret Treaty provisions

Citizenship Directive: Article 6

• Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or formalities
• Also applies to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen

Citizenship Directive: Residence up to 3 months

• Right of residence for up to three months possible if:
  • Hold a valid identity card or passport from an EU Member State
  • Family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining a Union citizen

Citizenship Directive: Residence for more than 3 months

• Residence for longer than 3 months if one of the following:
  • You are a worker
  • You have sufficient resources not to become a burden on the social welfare system and have comprehensive sickness insurance
  • You are studying and have comprehensive sickness insurance
  • You are a family member accompanying or joining one of the above

Citizenship Directive: Workers

• What is a worker? Covers anyone who undertakes ‘genuine and effective work for which they are paid under the direction of someone else’
• Concept of worker has been held to include job-seekers
• But remember ‘sufficient resources’ are required

Citizenship Directive: Sufficient Resources

• What resources count as sufficient?
• Article 8(4) CRD: ‘Member States may not lay down a fixed amount which they regard as ‘sufficient resources’ but they must take into account the personal situation of the person concerned’
• Does not matter where those sufficient resources come from, as long as not an undue burden

Citizenship Directive: Family Members

• Article 2(2)(a) CRD: Spouse, registered civil partnership considered equivalent to marriage, direct descendants under 21 or dependent, direct ascendents that are dependent
• Coman: A third-country national of the same sex as a Union citizen whose marriage to that citizen was concluded in a Member State in accordance with the law of that state has the right to reside in the territory of the Member State of which the Union citizen is a national for more than three months