Cases

Question 1

Van Gen den Loos (1963)

Answer 1

A12 produces “direct effects” and creates individual rights which national courts must protect because it is a clear and unconditional negative condition to a MS

Question 2

Costa v. ENEL (1964)

Answer 2

EU treaty has primacy over MS national law, EC law is integral to MS law, it is part of MS law, which MS courts must enforce; substantive primacy, MS substantive law cannot violate EEC

Question 3

Simmenthal (1978)

Answer 3

Lower national courts can strike down MS law that conflict with Community law, they don’t need to refer to the top K ct; EU law has primacy over procedure. Essentially, MS courts must apply EC law!

Question 4

Factortame (1990)

Answer 4

EU law has primacy even over a MS K ct’s interpretation of its own K provision, primacy over remed. MS courts must enforce EU law, despite any MS K rules that would not allow for enforcement

Question 5

Fromagerie le Ski (Belgium, 1971)

Answer 5

Monism, EC primacy in Belgium derives from the very nature of int’l law

Question 6

Orfinger (Belgium, 1996)

Answer 6

A step-back from the Monism of le Ski; EC primacy in Belgium is grounded in the Belgian K allowing it to have primacy

Question 7

Internationale Handelsgesellschaft (1970)

Answer 7

ECJ won’t consider challenges to EU laws on grounds of MS national law or K principles; would hamper effectiveness and uniformity

Question 8

Solange I (Germany, 1974)

Answer 8

“So long as” the Community has not developed to provide for reliable FR guarantees, DE’s K Court will review FR claims against EU law

Question 9

Solange II (Germany, 1986)

Answer 9

“as long as” the Community remains committed to, and the ECJ protects, FR in general and in a way that is roughly equivalent (even if not identical) to DE’s own K rights guarantees, the DE K Court will no longer review FR claims. Except for wholesale claims of lacking EU law failing to protect FR

Question 10

Granital (Italy, 1986)

Answer 10

Ordinary courts shall give effect to Community law (meaning to apply it with full force) unless basic principles of the Italian legal system or FR are threatened, or if IT law clearly intends to displace EU law (explicitly traying to abrogate EU law). Only then will K court need to step in

Question 11

Carlsen v. Rasmussen (Denmark, 1998)

Answer 11

Denmark K demands that EU law is grounded in and limited by statute; delegations of power must be defined by statute. Danish S. Ct. has final say in controlling this limitation, if CJEU doesn’t. Ultra vires check.

Question 12

Lisbon Judgment (Germany 2009)

Answer 12

MS are still the masters of the EU. Ultra vires check and identity check in addition to Solange II.

Question 13

Brexit Case (UK, 2017)

Answer 13

K statute grounds EU legal force in U.K. for as long as the statute exists; U.K. allows EU law to enter the U.K.; EU law is not “derived” or “delegated” lawmaking, but its own source of law; must be a K act for UK to get out of EU

Question 14

Costa v. E.N.E.L. (1964) (direct effect excerpts)

Answer 14

Provisions that read like clearly expressed prohibitions, duties to refrain from an act, produce DE, while provisions that read more like reporting requirements do not produce DE

Question 15

Van Duyn (1974)

Answer 15

A48 may have a lot of fuzziness at the margin, but we can extract from it a clear and precise positive obligation for the MS to prohibit discrimination on the basis of nationality, which results in an individual right against the MS, vertical DE. A duty to go out and do something rather than a duty to refrain from doing something

Question 16

Walrave (1974)

Answer 16

Discrimination on the basis of nationality has DE even against a private organization’s rule; effectiveness and uniformity arguments

Question 17

Defrenne (1976)

Answer 17

DE of equal pay provision against private party where MS has failed to comply with that duty, even where provision is addressed to MS and not individuals. Just because MS failed to do its job, doesn’t mean that individuals can’t assert the clear and precise obligations in court.

Question 18

Angonese (2000)

Answer 18

Direct Effect even against a single private entity and a single instance of discrimination; Expansive HDE of primary law, any private action that undermines effectiveness of the treaty

Question 19

Van Duyne (1974)

Answer 19

Directives can have vertical DE under same criteria as vertical direct effect; DE here because directive is clear, precise, defined

Question 20

Ratti (1979)

Answer 20

Vertical DE from directive (on same criteria as primary law) ONLY AFTER expiration of the transposition period; MS is prohibited from relying on its own failure to not implement an EU directive in its dealings with individuals

Question 21

Wallonie (1997)

Answer 21

During the transposition period, MS cannot seriously compromise the objective of the directive; otherwise, MS have time to work towards implementing the directive

Question 22

Marshall (1986)

Answer 22

Secondary law cannot have horizontal direct effect

Question 23

Marleasing (1990)

Answer 23

MS have duty of conforming interpretation wrt directives, horizontal indirect effect; duty to interpret your domestic law in so far as possible in conformity with EU law

Question 24

Facini Dori (1994)

Answer 24

Confirms that duty of conforming interpretation is not just newspeak for supremacy

Question 25

Wells (2004)

Answer 25

Triangular relations; can bring a case against the MS (via vertical DE) even though it has collateral effect on another private individual

Question 26

Rewe (1976)

Answer 26

Default to MS remedial authority and procedural rules (where they have not been harmonized across EU), but they must be nondiscriminatory and must not make exercising rights under EU law impossible

Question 27

Van Colson (1984)

Answer 27

Turns “must not make EU law impossible” into ensuring that EU law is “sufficiently effective” to achieve the objective of the directive; sanctions must provide real and effective protections, deterrent effect, and must provide adequate compensation in relation to any damages

Question 28

Marshall II (1993)

Answer 28

Turns into plaintiff’s EU rights must be made good in full (reinstatement or compensation plus interest). No upper limit in compensation.

Question 29

Van Schijndel (1995)

Answer 29

MS courts must raise EU law on its own if MS law allows them to raise questions of EU law on its own, BUT need not do so if doing so would be incompatible with fundamentally passive role of court

Question 30

Factortame (1990)

Answer 30

But sometimes the ECJ goes for full supremacy, especially when the very fundamentals of the EU legal system (like A177) are involved.

Question 31

Commission v. Council (Crim. Sanctions in Environmental Meas.) (2005)

Answer 31

MS can impose criminal sanctions to make EU law sufficiently effective; penalties must be effective, proportionate, and dissuasive

Question 32

CLIFIT (1982)

Answer 32

MS Courts need not to refer questions re: EU Law to the ECJ if the answer to a question is clear from another case (acte clair)

Question 33

Froto-Frost (1987)

Answer 33

Although MS need not refer questions to the ECJ if the answer is already clear and obvious, MS courts may not declare an EU act invalid

Question 34

Francovich (1991)

Answer 34

MS may be held liable for failure to uphold their obligations under EU law; (1) individual right, (2) there is content to those rights), (3) causal link; the right to obtain reparation is right founded directly in community law

Question 35

Brasserie de Pecheur (1996)

Answer 35

Conditions for state liability: (1) Individual has a right under EU law; (2) MS engaged in a serious or manifest breach of EU law (if the court has held you to be in violation of the treaty, and you continue to violate); and (3) MS breach caused the individual’s harm

Question 36

Kobler (2003)

Answer 36

MS are liable for damage caused by a final decision of one of their high courts; CJEU will not designate which MS court is responsible to hear such claims against a MS high court, but MS must provide an effective remedy for such claims; individual can sue in regional court because of something the highest court did wrong, and that lower court can refer the question to the ECJ for review, ECJ as an appellate court

Question 37

Dassonville (1974)

Answer 37

Rules which are capable of hindering, directly or indirectly, actually or potentially, intra community trade are to be considered as measures having an equivalence of quantitative restrictions and will be reviewed under A34; broad scope of measures that can be reviewed under A34

Question 38

Cassis de Dijon (1979)

Answer 38

Even indistinctly applicable measures, general market regulations that don’t have on their face anything to do with imports, will be reviewed; obstacle to free trades caused by market disparities and general market regulations will bring the measure within A34. Indistinctly applicable measures justified via mandatory requirements rather than A36

Question 39

Buy Irish (1982)

Answer 39

ECJ will review general market measures that could potentially hinder commerce, even if they have no actual effect on commerce

Question 40

Commission v. France (Produce Imports) (1997)

Answer 40

ECJ will review even failures to prevent obstacles to trade, even when the MEQ is not actually a measure or any action on the part of the government.

Question 41

Commission v. Germany (Sekt v. Weinbrand) (1975)

Answer 41

Can’t give a good label to your own stuff and a bad label to the same stuff from other MS when there is not an actual reason to distinguish them

Question 42

Commission v. UK (Mark of Origin) (1985)

Answer 42

Get rid of anything that could cause customers to think about market divisions, anything that would enable consumers to choose domestic products over foreign products

Question 43

Commission v. France (Woodworking) (1986)

Answer 43

MS must generally trust the admin process of another MS; if another MS has checked for exactly the same thing that you want to ensure compliance with, trust their admin process and don’t test again (dual burdens)

Question 44

Commission v. UK (UHT Milk) (1983)

Answer 44

Again, mutual recognition for standards of other MS. In reviewing justification, court will look at whether measure is protectionist and run a reasonability/proportionality test. Here, standards for UHT treatment are similar across EU

Question 45

Sandoz (1983)

Answer 45

Justification re: protecting public health is ok because of precautionary principle: if it has not been proven to be safe, assume it to be harmful! (uncertain at the time whether it was safe to consume a lot of vitamins)

Question 46

Commission v. Germany (Beer Case) (1987)

Answer 46

MS must avoid crystallizing consumer habits. MS may not denigrate the other product based on existing consumer preferences and habits

Question 47

Henn and Darby (1979)

Answer 47

ECJ: Public morality decisions won’t be second guessed as much, difficult to engage in a reasonableness/proportionality test when objective is public morality

Question 48

Torfaen Borough (1989)

Answer 48

ECJ getting fed up with having to review all of these indistinctly applicable measures? Doesn’t engage in much a proportionality analysis

Question 49

Keck & Mithouard (1993)

Answer 49

Selling arrangements that apply in law and in fact and equally to all traders and goods alike are outside the scope of A34 entirely, so we don’t even get to A36 or mandatory justifications. Selling arrangements = how people sell the good, not measures re: the good itself

Question 50

Societe D’Importation LeClerc (1995)

Answer 50

Total ban on TV ads for certain products is a selling arrangement that in law and in fact applies equally to all goods and traders; affects the marketing of products from other MS and that of domestic products in the same manner

Question 51

Clinique (1994)

Answer 51

challenged rule concerned the composition, packaging or labeling of products and does not fall within Keck because it is not a selling arrangement; thus, reviewed under Cassis de Dijon, violates A34 because of dual burdens imposed by the measure

Question 52

Gourmet Int’l Products (2001)

Answer 52

Swedish measure that prohibits all alcohol ads in media, does not apply equally in fact to all traders (Foreign producers disadvantaged) so does not fall within Keck; indistinct measure but sent back to trial court to determine whether it is justified by an A36 public health justification. Indistinctly applicable, but ECJ uses A36 rather than mandatory requirements

Question 53

Doc Morris (2003)

Answer 53

prohibition on internet sales of pharmaceuticals is more of an obstacle to pharmacies outside Germany than to those inside Germany. Does not apply equally in fact to all traders so not within Keck. Restriction on non-prescription medicines not justified, restriction on prescription medicines is

Question 54

Commission v. Italy (motorcycle-towed wagon) (2009)

Answer 54

Use restriction that makes it basically impossible to sell the product in Italy is not a selling arrangement under Keck; restriction is justified because it does not seem protectionist and justified by protection of public health

Question 55

Germany v. Parliament and Council (Tobacco Advertising) (2000)

Answer 55

Purpose test re: whether measure is okay under 114 is whether the Union measure is genuinely aimed at the establishment and functioning of the common market. EU ban on advertising of tobacco in EU struck down, many of the provisions did not facilitate in anyway the functioning of the single market or remedy any appreciable (meaning an additional cost) distortions to competition

Question 56

Swedish Match (2004)

Answer 56

EU can ban a product under 114 in order to harmonize market and fix obstacles to free movement caused by disparities in MS regulations; CJEU will ask re: whether ban is proportionate to a legitimate aim, ban here is proportionate because EU takes as a baseline a high level of consumer health

Question 57

Stork (1959)

Answer 57

ECJ is not competent to apply MS K law; “we only do EU law here!”

Question 58

Hauer (1979)

Answer 58

Again, we cannot look at MS FR in the ECJ…but the EU has FR, so consider the prohibition of the growing of new vines based on EU FR protections; restriction on growing new vines was justified by legit aim and proportionate to that aim

Question 59

Cinetheque (1985)

Answer 59

(NOT GOOD LAW): If a MS is operating pursuant to an A36 exception (public policy justification is within the jurisdiction of MS legislature), courts do not need to check for FR protections

Question 60

ERT (1991)

Answer 60

Even measures that are excepted/justified under provisions like A36 and A62 have to conform with EU FR protections; court will check for FR violations if MS is justifying based on an EU law

Question 61

Kremzow (1997) (Pre-charter)

Answer 61

Proceedings held in EU citizen’s absence and subsequent imprisonment was outside the scope of EU law because man was not actually exercising his right to free movement, there was no cross-border activity

Question 62

Mary Carpenter (2002) (pre-charter)

Answer 62

Situation where an EU citizen’s, who exercised his fundamental freedom to provide services in other MS, wife was not allowed to stay in UK is within scope of EU law because the restriction would limit his ability to provide services. Restriction of the right to family life was not a proportionate measure

Question 63

Ackerberg (2013) (Swedish VAT Case)

Answer 63

Scope of EU FR protection is not limited to when MS is “implementing” EU law…ECJ takes broader approach to the scope. Suggests that anything generally connected to EU law and a MS obligations to EU law is within the scope of EU FR protections

Question 64

Counter-Terrorism Data Decision (German Court Decision) (2013)

Answer 64

MS pushback to broad scope of Ackerberg, connections to obligations to EU does mean that MS is implementing EU law such that EU FR review applies; MS does not want everything it does brought within the scope of EU FR protections

Question 65

Siragusa (2014)

Answer 65

Indirect connections of MS measure to EU law is not enough by themselves to bring measure within scope of EU FR protection; instead, look at whether
 MS intended to implement EU law
 The nature of the legislation
 Pursuing objectives other than those sought by the EU?
 Specific EU law on the matter?

Question 66

Hernandez (2014)

Answer 66

Not within scope of EU law even though measure is very related to an EU directive

Question 67

Pfieffer (2004)

Answer 67

Confirms that Marleasing duty is not code for supremacy. ECJ says that MS court should use all methods at its disposal to conform national law to EU law, but if a MS court genuinely cannot do so, they just’ cant do it! During implementation period, no duty of conforming interpretation, just duty not to sabotage the objective of the directive

Question 68

Mangold (2005)

Answer 68

If a directive gives effect to a general principle, meaning primary union law, then it can produce direct effect even in a horizontal dispute. Thus, MS court has a duty to set aside domestic legislation that conflicts with a directive that gives expression to a general principle.

Question 69

Adeneler (2006)

Answer 69

Before the expiration of the transposition period, MS have Wallonie duty not to seriously compromise, sabotage the ends of the directive. After the expiration of the transposition period, Marleasing duty of interpreting MS law to conform with the directive; where directive does not give effect to a general principle. Mangold not intended to drastically change case law re: HDE

Question 70

Bartsch (2008)

Answer 70

For Mangold to apply before the expiration of the transposition period, the MS measure in question must have been introduced to implement an EU law that gives effect to a general principle

Question 71

Kucukdevici (2010)

Answer 71

After expiration of the transposition period, Mangold duty applies, if the directive gives effect to a general principle or primary law, to all MS law within the subject matter of that directive

Question 72

P v. S (1996) (vertical case)

Answer 72

Discrimination against transsexuals is discrimination on the basis of “sex”; disparate treatment on the basis of whether a person has stuck with their original sex

Question 73

Grant (1998)

Answer 73

Unequal treatment of people based on sexual orientation is not discrimination on the basis of sex; defers to underlying policy re: not allowing same sex marriage, but in P v. S the court did not refer to the MS’ policy on gender reassignment

Question 74

Johnston (1986)

Answer 74

Context of work may make sex a determinative factor such that disparate treatment is permissible

Question 75

Kreil (2000)

Answer 75

Derogations relying on the occupational qualification exception may apply only to specific activities; prohibiting all women from holding a military post involving the use of arms was too much of a blanket prohibition

Question 76

Dory (2003)

Answer 76

Although Kreil requires that only specific activities may fall within the occupational qualification exception, court holds here that preventing women from compulsory military service falls within the exception and is not disparate treatment

Question 77

Kalanke (1995)

Answer 77

National rules which guarantee women absolute and unconditional priority for appointment or promotion (when two candidates were equally qualified) go beyond promoting equal opportunities and overstep the limits of the exception in A2(4) (positive action provision) of the directive; disproportionate

Question 78

Badeck (2000)

Answer 78

Law that reserves for women half of the available enrollment places in a training course and half of the interview slots for certain posts where women are underrepresented is proportionate positive action measure

Question 79

Abrahamson (2000)

Answer 79

Disproportionate measure; Result is that the selection of a candidate from among those who are sufficiently qualified is ultimately based on the mere fact of belonging to the under-represented sex, even if the merits of the candidate so selected are inferior to those of a candidate of the opposite sex

Question 80

Chez (2015)

Answer 80

Not such a remarkable case but it lays down the baseline for race discrimination claims. Does not rule on whether there is direct discrimination, but says that burden shifts to D when there is a prima facie case of discrimination. Ultimately rules that neutral practice here constitutes indirect discrimination that has not been justified. Showed that someone who is not personally part of the protected class could nonetheless be a kind of innocent bystander harmed by the discrimination, the objectionable legal discrimination against people in the protected class

Question 81

Achbita (2017)

Answer 81

Indirect discrimination (facially neutral policy banning all religious garb) was justified by a legitimate objective aim of the company to project an image of neutrality, and proportional/least restrictive means to that objective.

Question 82

Bougnaoui (2016/2017)

Answer 82

Indirect discrimination is not justified by the subjective preference of the company’s client; AG says that expression of religion (headscarf) cannot be separated from her religion, thus this should have been direct discrimination.

Question 83

Digital Rights Ireland (2014)

Answer 83

ECJ strikes down Data Retention Directive of 2006 because interference with the right to privacy was not justified, as there were not clear and precise rules governing the scope and application of the measures. Provisions of the directive were not sufficiently tied back to the objective of the directive, to prevent, detect, and prosecute serious crimes

Question 84

Tele2 (2016)

Answer 84

ECJ again says that only the objective of fighting serious crime is capable of justifying such access to the retained data. Moreover, directive must lay down clear and precise rules indicating in what circumstances and under which conditions the providers of electronic communications services must grant the competent national authorities access to the data

Question 85

Minsterio Fiscal (2018)

Answer 85

Serious intrusions must be reserved for serious crimes…less serious intrusions may be justified by lesser crimes. Trying to cabin in data retention, implements a sort of balancing test asking, “does nature of the crime necessitate the nature of the data retention?”

Question 86

Google Spain (2014)

Answer 86

There is a right to be forgotten. Any controller engaged in data processing must generally honor a data subject’s reasonable request for erasure, even when the underlying information is still legally and publicly available. Reasonability of request is a proportionality type of approach, asking “what is the purpose of collecting and processing the data v. the relevancy and time since the data was posted.” Finally, the economic interests of the operator is insufficient to override the data subject’s interest in privacy

Question 87

Bosphorous (ECJ) (1996)

Answer 87

ECJ engaged in classic FR analysis, holds that infringement upon FR to property was justified by a legitimate aim to further sanction against Y and that impounding the plane was proportionate to that aim

Question 88

Bosphorous (ECHR) (2005)

Answer 88

(1) MS can legally transfer some of their power to the EU, which does not violate the ECHR, but the MS remains responsible under the convention for anything that it does, even if it is doing so based on commands from the EU; (2) MS can justify the limitation of an individual’s convention liberties from simply participating in the EU and carrying out those duties; (3) Presumption that as long as the EU is providing comparable FR protections, MS carrying out EU commands is a proportionate measure

Question 89

Kadi (Court of First Instance) (2005)

Answer 89

Court of first Instance says that the EU is a part of PIL so a UN command is a UN command and we can’t do anything about I; UN primacy over EUt. EU won’t look at UN measures for compliance with EU laws.

Question 90

Kadi (ECJ) (2008)

Answer 90

ECJ comes back and says that the EU is an autonomous legal order and not a part of PIL such that PIL cannot compromise the K principles of the EU. ECJ asserts itself as the K court of the EU, ECJ will review the validity of ALL community measures in light of FR; no other rule of law is going to affect those K principles of the EU.

Question 91

Melloni (2013)

Answer 91

Despite A53 of CFR, MS nationals cannot vindicate their K rights against EU law. MS may only consider their rights protected under MS Ks in the implementation of EU, and only insofar as such consideration does not undermine the primacy, unity, and effectiveness of EU law

Question 92

R v. Oberlandesgericht Düsseldorf (Germany, 2015)

Answer 92

Identity claim from Lisbon Judgment at play; UAW after guy was tried in absentia violated his presumption of innocence and thus the core principle of the German K, human dignity. So Germany doesn’t have to send him to IT

Question 93

C.K. v. Slovenia (2017)

Answer 93

MS may refuse to transfer a migrant to receiving country when there are systemic flaws in the receiving country’s system OR sending them back would result in a real risk of inhuman or degrading treatment

Question 94

Proceedings Against LM (2018)

Answer 94

In contrast to CK, still seems to demand systemic deficiencies in the receiving country for a MS to refuse to execute a UAW. There must be generalized or systemic inefficiencies PLUS these flaws must put the individual at risk (a whole sale problem that also creates a real risk at the retail level)

Question 95

Sala (1998)

Answer 95

In accordance with A12 (now A18 TFEU), EU nationals legally resident in another MS should be free from discrimination on the basis of nationality regarding matter within the scope of application of the treaties and she is within scope of EU treaty based on her EU citizenship; discrimination provision now applies to any EU citizen who is legally resident in the MS, not just if you are a worker

Question 96

Trojani (2004)

Answer 96

Court reads the citizenship provision as a presumption of the right to residency, check any encroachment against this presumption by looking at legitimate aims and proportionality. Residency must actually be revoked to prevent that person from losing their rights to social assistance on the same terms as nationals under article 12 EC. Can’t just revoke his residency because he applies for this social assistance.

Question 97

Baumbast (2002)

Answer 97

Court now interprets this secondary legislation (and all secondary legislation) through the lens of citizenship as a FR; It is disproportionate to read the limitations of the “wealthy person” directive as demanding access to emergency room treatment as part of your sickness insurance, disproportionate to the legit aim of preventing MS national of becoming an unreasonable burden on the host MS. Directive now seen as detracting from presumptive right to residency rather than as an added bonus.

Question 98

Collins (2004)

Answer 98

Now primary law is even seen as limiting EU citizens’ presumptive right to residency. A45 TFEU can no longer be read as excluding financial benefits to facilitate access to employment in the labor market of a MS for EU jobseekers from another MS; Eu citizens seeking mployment in another MS fall within the scope of A48; MS can derogate by requiring a genuine link to the labor market via residence requirement, but that derogation must be proportionate to furthering an objective aim

Question 99

Gravier (1985) Blaizot (1988) (pre-citizenship)

Answer 99

Equal access to vocational training (tuition and fees) because situation is within the material (benefit) and personal(vocational training linked to working) scope of the treaty; also includes University studies that prepare for an occupation. Because we are within scope of the treaty, no discrimination on the basis of nationality!

Question 100

Lair (1988) (pre-citizenship)

Answer 100

Maintenance grants fall outside the treaty, which means that you don’t have a right to it, unless the claimant is a worker under Reg. 1612/68, and therefore entitled under A7(2) of that Regulation to social advantages as a national worker, provided there is a link to your prior work. Here, she is entitled to the maintenance grant because of her status as a worker

Question 101

Grzelyzck (2001) (post-citizenship)

Answer 101

Within the scope of EU law based on citizenship provision and moving across MS, not because they fall within a directive. Host MS must grant maintenance grant to all lawfully resident EU citizens on the same terms as States’ own nationals…can’t discriminate against them on the basis of nationality; But a host MS may rescind residence permission to prevent EU citizen from becoming an unreasonable burden on its public finances, just cannot automatically do so based on application for subsistence grant. Rescinding of residency must be proportional

Question 102

Bidar (2005) (post-citizenship)

Answer 102

ECJ dialing back, MS can impose limitations, such as insisting on “genuine link with the society of the State” (aka “a certain degree of integration) by demanding 3 years of residence before granting higher education financial maintenance assistance

Question 103

Chen (2004)

Answer 103

In an interstate case, child EU citizen has the right to presence of a non-EU supporting parent; ECJ does not care about clever use of EU law with ulterior purpose

Question 104

Rottman (2010)

Answer 104

Matters within MS competence must respect EU law in situations covered by EU law; MS cannot withdraw or refuse to reinstate national citizenship in ways that violate EU law, e.g., may only do so in ways that are proportionate to serving a legitimate interest. Any loss of citizenship can come only if it proportionate to a legitimate interest

Question 105

Zambrano (2011)

Answer 105

MS cannot deprive its own national of the genuine enjoyment of rights of EU citizenship, even EU citizens who are national of its own home state. Even if you are in your homestate and have not moved as Diego Zambrano was, he has a right to his supporting parent to be there, because otherwise you would be compelled to leave the territory of the union ad that would destroy any possibility of you enjoying your rights to citizenship

Question 106

McCarthy (2011)

Answer 106

Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States. Loss of familial companionship, as such, need not be constructive eviction, and must be considered on a case by case basis (incl. FR)

Question 107

Derechi (2011)

Answer 107

MS not precluded from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union. It may seem desirable to a Union citizen to keep his or her family together but that is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted. Finally, MS should consider whether the measure would violate the FR to family life, either through the CFR or the ECHR

Question 108

Dano (2013)

Answer 108

Directive 2000/38 comprehensively regulates right to reside and access to benefits for EU nationals in host MS; Ms. Dano did not satisfy the conditions of residence (and access to benefits) under the directive so Germany could withhold welfare from Ms. Dano. No longer staring with presumption of right to residency or non-discrimination based on her legal residency; instead, citizenship gets you what the directive gets you