5 - Citizenship of the Union Flashcards
What does any notion of citizenship entail? (4)
1/ rights
2/ duties
3/ political participation
4/ notions of identity - community belonging
What are the 2 main theories surrounding the notion of citizenship?
1/ liberal
2/ republican
What does the liberal theory of citizenship focus on? (3)
1/ individuals
2/ rights
3/ market underpinnings
What does republican theory of citizenship focus on? (2)
1/ practices of citizenship
2/ duties
Which debate existed in the 1980s?
Between liberals and communitarians
What did communitarians consider with respect to citizenship? (3)
1/ rights are not enough
2/ individuals have to be implicated in public affairs
3/ calls to cultivate civic virtues
What does citizenship approached through the lense of liberalism lead to? (2)
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)
What did the concern of those who are excluded by the liberal theory on citizenship lead to? (3)
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)
Difficulties surrounding the concept of identity? (5)
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
Difficulty regarding the 4 elements that are recognised as important for ascertaining the concept of citizenship? (2)
1/ they are relevant within the context of nation States
2/ the starting point may however need to be different for the EU
What was major at the 1991 Intergovernmental Conference? (3)
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
What are the 1990s associated with? (2)
1/ political turn of the EU
2/ hence change in vocab from ‘European Community’ to ‘EU’
Why can EU citizenship be viewed by some as a dangerous supplement?
Fear that it would threaten and replace national citizenship
What is EU citizenship conditioned on?
Possession or acquisition of nationality of one of the MS
What are 4 special rights conferred by EU citizenship?
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
What are 2 critical reactions to establishment of EU citizenship?
1/ eurosceptic views
2/ only a ‘market citizenship’ with no social rights
What does Article 25 TFEU illustrate? (3)
1/ drafters were constructivists
2/ devolutionary notion of citizenship
3/ possibility of enrichment of initial design by consecutively adding more rights
Evolution of EU citizenship? (5)
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
What effect does EU citizenship have?
Direct effect
What are the 4 models of European citizenship? Which one was chosen?
1/ market
2/ civic republican
3/ deliberative
4/ transformative => this one was chosen
What is the personal scope of EU citizenship? (4)
1/ employees (workers)
2/ workers’ families
3/ workseekers
4/ non-active economic actors
What is a difficult situation with respect to nationality in the EU?
The notion has not been harmonised so MS remain competent to determine the conditions for acquisition or loss of their nationality
Critical considerations and questions surrounding nationality in the EU? (6)
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
Concrete problems with respect to MS exclusive competence with respect to nationality? (5)
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
Important cases regarding MS nationality and EU citizenship? (3)
1/ Micheletti (1992)
2/ Zhu and Chen (2004)
3/ Rottmann (2010)
Which legal instrument complements Treaty provisions on EU citizenship?
Directive 2004/38
Which are the 2 issues the lecture focuses on?
1/ family reunification and rights of residence of 3rd country national family members
2/ EU citizenship and students’ rights
What are the most important developments with respect to EU citizenship since 1992? (2)
1/ CJEU case law
2/ Directive 2004/38
What happened after 2012?
EU citizenship became a weakened concept again
What does lecturer propose as prospect for the future?
Stronger link between EU citizen rights and FR
Why did Treaties pre-Maastricht focus mainly on economically active EU citizens? (3)
1/ internal market
2/ market rationale
3/ individuals perceived as factors of production
Contribution of Citizenship Directive (2004/38)? (3)
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
What does Article 3 of CD establish? (3)
1/ beneficiaries
2/ i.e. all EU citizens and their family members
3/ condition: exercise of right of free movement
What are the 3 types of residence codified in the CD?
1/ Art. 6: 0-3 months
2/ Art. 7: 3 months-5 years
3/ Art. 16: +5 years
Conditions of Art. 6 right of residence? (2)
1/ applies to EU citizens and family members
2/ no conditions beyond possession of valid ID document
Conditions of Art. 7 right of residence? (3)
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)
Conditions Art. 16 right of residence? (3)
1/ +5 years residence
2/ confers right of permanent residence
3/ applies to all EU citizens and family members
Rationale of CD?
The longer an individual stays in a host MS, the more equally it will be treated with nationals of the host MS
Core right earned through CD? (2)
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)
What does Chapter VI of the CD cover? (3)
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)
What are the 3 analytical steps necessary when scrutinizing whether MS derogations to right of entry and residence are granted by the CD?
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)
When are derogations possible with respect to residence of 0-3 months? (3)
Arts. 27(1) and 28(1) CD
1/ public health
2/ public policy
3/ public security
When are derogations possible with respect to residence of 3 months-5 years? (2)
Arts. 27(1), 28(1) and 29(1)
1/ public policy
2/ public security
When are derogations possible with respect to right of permanent residence (+5 years)? (3)
Art. 28(2)
1/ only serious grounds
2/ public policy
3/ public security
