5 - Citizenship of the Union

Question 1

What does any notion of citizenship entail? (4)

Answer 1

1/ rights

2/ duties

3/ political participation

4/ notions of identity - community belonging

Question 2

What are the 2 main theories surrounding the notion of citizenship?

Answer 2

1/ liberal

2/ republican

Question 3

What does the liberal theory of citizenship focus on? (3)

Answer 3

1/ individuals

2/ rights

3/ market underpinnings

Question 4

What does republican theory of citizenship focus on? (2)

Answer 4

1/ practices of citizenship

2/ duties

Question 5

Which debate existed in the 1980s?

Answer 5

Between liberals and communitarians

Question 6

What did communitarians consider with respect to citizenship? (3)

Answer 6

1/ rights are not enough

2/ individuals have to be implicated in public affairs

3/ calls to cultivate civic virtues

Question 7

What does citizenship approached through the lense of liberalism lead to? (2)

Answer 7

1/ liberalism has a formal vision of citizenship

2/ this leaves out a number of individuals that still take part in activities of the community (e.g. refugees, migrant workers)

Question 8

What did the concern of those who are excluded by the liberal theory on citizenship lead to? (3)

Answer 8

1/ notion of de facto citizenship

2/ entails recognition that alien individuals are de facto citizens although not de jure citizens

3/ this notion focuses on the actual practice of individuals (e.g. how they participate in public affairs)

Question 9

Difficulties surrounding the concept of identity? (5)

Answer 9

1/ this concept is contested

2/ ind. can have multiple identities

3/ there is an emotional component

4/ as such, the notion of identity is difficult to formalise in law

5/ identity can also depend on an individuals’ location within the community

Question 10

Difficulty regarding the 4 elements that are recognised as important for ascertaining the concept of citizenship? (2)

Answer 10

1/ they are relevant within the context of nation States

2/ the starting point may however need to be different for the EU

Question 11

What was major at the 1991 Intergovernmental Conference? (3)

Answer 11

1/ Spanish Proposal to establish a ‘citizenship of European Political Union as personal and indivisible status of nationals of the MS’

2/ this would confer special rights and duties specific to the nature of the Union

3/ incl. possibility that status of EU citizen may also extend beyond EU boundaries

Question 12

What are the 1990s associated with? (2)

Answer 12

1/ political turn of the EU

2/ hence change in vocab from ‘European Community’ to ‘EU’

Question 13

Why can EU citizenship be viewed by some as a dangerous supplement?

Answer 13

Fear that it would threaten and replace national citizenship

Question 14

What is EU citizenship conditioned on?

Answer 14

Possession or acquisition of nationality of one of the MS

Question 15

What are 4 special rights conferred by EU citizenship?

Answer 15

1/ free movement and residence in the EU

2/ vote and stand as candidate in local gvt elections and EP elections in MS of residence

3/ diplomatic and consular protection

4/ petition EP and apply to Ombudsman

Question 16

What are 2 critical reactions to establishment of EU citizenship?

Answer 16

1/ eurosceptic views

2/ only a ‘market citizenship’ with no social rights

Question 17

What does Article 25 TFEU illustrate? (3)

Answer 17

1/ drafters were constructivists

2/ devolutionary notion of citizenship

3/ possibility of enrichment of initial design by consecutively adding more rights

Question 18

Evolution of EU citizenship? (5)

Answer 18

1/ no longer a purely decorative and symbolic institution

2/ CJEU has largely contributed to this

3/ until 1995, judicial minimalism & no active use of concept by CJEU

4/ between 1995 and 2002, CJEU signalled intentions it would use concept in a radical way

5/ after 2002, CJEU position became radical => tried to give flesh to various rights in favor of EU citizens

Question 19

What effect does EU citizenship have?

Answer 19

Direct effect

Question 20

What are the 4 models of European citizenship? Which one was chosen?

Answer 20

1/ market

2/ civic republican

3/ deliberative

4/ transformative => this one was chosen

Question 21

What is the personal scope of EU citizenship? (4)

Answer 21

1/ employees (workers)

2/ workers’ families

3/ workseekers

4/ non-active economic actors

Question 22

What is a difficult situation with respect to nationality in the EU?

Answer 22

The notion has not been harmonised so MS remain competent to determine the conditions for acquisition or loss of their nationality

Question 23

Critical considerations and questions surrounding nationality in the EU? (6)

Answer 23

1/ who is the gatekeeper?

2/ who defines nationality?

3/ see Art. 1 Hague Convention on Certain Questions Relating to the Conflict of Nationality Law

4/ see Declaration on Nationality of a MS annexed to Final Act of TEU (‘solely by reference to national law of MS’)

5/ there are different logics underpinning EU law concepts and national law concepts

6/ sovereignty concerns

Question 24

Concrete problems with respect to MS exclusive competence with respect to nationality? (5)

Answer 24

1/ race and nationality in UK law, leaving out citizens from several British colonies

2/ Russian speaking minority designated as non-nationals in Estonia and Latvia following their independence

3/ 18,000 permanent residents originating from other republics of the former Yugoslavia ‘erased’ in Slovenia

4/ MS decision to extend citizenship to nationals of another country on basis of their common ethnic membership (e.g. Hungary)

5/ divergence in naturalisation laws - integration requirements

Question 25

Important cases regarding MS nationality and EU citizenship? (3)

Answer 25

1/ Micheletti (1992)

2/ Zhu and Chen (2004)

3/ Rottmann (2010)

Question 26

Which legal instrument complements Treaty provisions on EU citizenship?

Answer 26

Directive 2004/38

Question 27

Which are the 2 issues the lecture focuses on?

Answer 27

1/ family reunification and rights of residence of 3rd country national family members

2/ EU citizenship and students’ rights

Question 28

What are the most important developments with respect to EU citizenship since 1992? (2)

Answer 28

1/ CJEU case law

2/ Directive 2004/38

Question 29

What happened after 2012?

Answer 29

EU citizenship became a weakened concept again

Question 30

What does lecturer propose as prospect for the future?

Answer 30

Stronger link between EU citizen rights and FR

Question 31

Why did Treaties pre-Maastricht focus mainly on economically active EU citizens? (3)

Answer 31

1/ internal market

2/ market rationale

3/ individuals perceived as factors of production

Question 32

Contribution of Citizenship Directive (2004/38)? (3)

Answer 32

1/ confers rights on economically active and inactive citizens

2/ scope of rights however differs

3/ but both categories are treated better than pre-Maastricht

Question 33

What does Article 3 of CD establish? (3)

Answer 33

1/ beneficiaries

2/ i.e. all EU citizens and their family members

3/ condition: exercise of right of free movement

Question 34

What are the 3 types of residence codified in the CD?

Answer 34

1/ Art. 6: 0-3 months

2/ Art. 7: 3 months-5 years

3/ Art. 16: +5 years

Question 35

Conditions of Art. 6 right of residence? (2)

Answer 35

1/ applies to EU citizens and family members

2/ no conditions beyond possession of valid ID document

Question 36

Conditions of Art. 7 right of residence? (3)

Answer 36

1/ applies to workers or self-employed persons and family members

2/ must have sufficient resources not to become a burden on social assistance system host MS & have a health coverage

3/ also applies to students enrolled in listed entity + comprehensive sickness insurance cover + assurance sufficient resources (as well as their family members)

Question 37

Conditions Art. 16 right of residence? (3)

Answer 37

1/ +5 years residence

2/ confers right of permanent residence

3/ applies to all EU citizens and family members

Question 38

Rationale of CD?

Answer 38

The longer an individual stays in a host MS, the more equally it will be treated with nationals of the host MS

Question 39

Core right earned through CD? (2)

Answer 39

1/ right to equal treatment with nationals of host MS (Art. 24(1))

2/ right is however not unlimited (Art. 24(1)(2), Chapter VI)

Question 40

What does Chapter VI of the CD cover? (3)

Answer 40

1/ restrictions to the right of entry and residence

2/ on grounds of public policy, public security or public health

3/ exception to these derogations is that these grounds cannot be invoked to serve economic ends (Art. 27(1) CD)

Question 41

What are the 3 analytical steps necessary when scrutinizing whether MS derogations to right of entry and residence are granted by the CD?

Answer 41

1/ is there a possible justification as stated in the CD (Art. 27(1))? i.e. public policy, public security, public health and no economic rationale

2/ are the general substantive requirements fulfilled (Art. 27(2) CD)? i.e. pcple of proportionality, personal assessment, previous criminal convictions cannot be ground for measure, genuine+present+sufficiently serious threat affecting one of the fundamental interests of society

3/ in case of expulsion measures, specific requirements of residence apply (Art. 28 CD)

Question 42

When are derogations possible with respect to residence of 0-3 months? (3)

Answer 42

Arts. 27(1) and 28(1) CD

1/ public health

2/ public policy

3/ public security

Question 43

When are derogations possible with respect to residence of 3 months-5 years? (2)

Answer 43

Arts. 27(1), 28(1) and 29(1)

1/ public policy

2/ public security

Question 44

When are derogations possible with respect to right of permanent residence (+5 years)? (3)

Answer 44

Art. 28(2)

1/ only serious grounds

2/ public policy

3/ public security