Chapter 19 - Citizenship, rights of free movement and residence

Question 1

With legislation regulates the free movement rights?

Answer 1

EU directive 2004/38/EC (known as the ‘Citizens’ Rights Directive’ CRD)

Question 2

What are the 3 rights included in the free movement of persons?

Answer 2

• Right of exit: Art. 21 TFEU+Art. 4 Dir
• Right to enter another member state: Art. 21 TFEU+ Art. 5 Dir
• Right to reside and work: Arts. 21, 45, 49 TFEU & Chapter III Dir

Question 3

Which article of the TFEU governs the rights on citizenship?

Answer 3

Article 21 TFFEU

Question 4

Which article of the TFEU governs the free movement of workers?

Answer 4

Article 45 TFEU

Question 5

Which legislation regulates the right of workers?

Answer 5

Regulation 492/2011/EU

Question 6

Which article of the TFEU deals with the right of Establishment?

Answer 6

Article 49 TFEU

Question 7

Can free movement of persons rights be enforced by individuals against private bodies?

Answer 7

Yes, articles 21, 45, 49 and 56 TFEU are all capable of horizontal direct effect

Question 8

Which article TFEU confers citizens the right to move to another Member State for work purposes and to accept offers of employment, to work there without needing a work permit, to reside there for that purpose and to stay there even after employment has finished?

Answer 8

Article 45 TFEU.

It also confers the right to enjoy equal treatment with nationals as regards access to employment, remuneration and other conditions of work and employment. Thus it implies the abolition of any discrimination (direct or indirect) based on nationality in the exercise of these rights as well as of any unjustified obstacle which impedes the exercise of the right to free movement.

Question 9

What does article 20 TFEU stipulates?

Answer 9

Article 20 TFEU establishes the citizenship of the Union to which all persons holding the nationality of a Member State are entitled. It also lists the main rights and duties of citizens of the Union.

The EU citizenship does not replace but complements the national citizenship

It is directly effective as per case C-224/98

Question 10

Which articles TFEU require an economic nexus?

Answer 10

Articles 45, 49 and 56 TFEU

This means the migrant must be engaging in an economic activity

Question 11

Do the rights of establishment (art 49) and the rights to provide service (art 56) apply both to EU individuals and companies?

Answer 11

Yes, they are accorded under the Treaty to EU nationals and to companies formed according to the law of one of the member states.

Question 12

Which case established that to benefit from the freedom to provide services, an EU national (or company) must be established in a member state?

Answer 12

Fidum Finanz v Bundesanstalt für Finanzdienstleistungsaufsicht case C-452/04

There is a double requirement of nationality (of one of the member states of the union) and residence, and both must be satisfied.

Question 13

DO member states have discretion in granting nationality?

Answer 13

Yes, nationality is determined according to the domestic law of the member state concerned.

It is for each member state to decide for itself how and who is to be considered a national of that member state

Question 14

Can member states criticise the decision of another member states to recognise an individual as having the nationality of that member state?

Answer 14

No, they may not as per case C-369/90 Micheletti and Others v Delegación del Gobierno en Cantabria

Question 15

What did the case of Zhu Chen established?

Answer 15

• Member states cannot challenge another member state’s choice about refusing or restricting citizenship / nationality.
• A minor who is a national of a EU member state has the right to reside in the EU with their third-country national parents, provided the minor and parents have health insurance and will not become a burden on the public finances of the member state of residence.

Question 16

Can member states deprive their citizens of their nationality?

Answer 16

Yes, member states can deprive their citizens of their nationality (and therefore of EU citizenship) on public interest grounds, but only subject to proportionality and judicial review. Tjebbes case C-221/1 - JY case C-118/20

Question 17

Do citizens of a state having withdrawn from the EU keep their EU citizenship?

Answer 17

No, EU citizenship is automatically lost by the nationals of a state which withdraws from the EU. This is because the people concerned (unless they also have citizenship of a remaining member state) are no longer nationals of a member state. C-673/20 Préfet du Gers and Institut National de la Statistique and des Études Économiques

Example: Brexit

Question 18

How is a company’s nationality determined?

Answer 18

A company’s ‘nationality’ is determined by reference to the member state in which it has its seat.

Question 19

Can a member state choose how a company acquires its nationality?

Answer 19

Yes, it may choose the connecting factors for a company to acquire ‘nationality’, that is the conditions it must satisfy to be recognised by the law of the member state as a company established under the laws of that member state. Cartesio Oktató és Szolgáltató bt case C-210/06

Question 20

Do the free movements of persons rights apply to situations internal to one country only?

Answer 20

No, there must be a cross border element. Nino Cases C-54, 91/88 and 14/89

Question 21

Are the free movement rights triggered automatically?

Answer 21

No, In order to trigger free movement rights under article 21and under Article 3(1) of the directive, a person must move. Case C-434/09 McCarthy v Secretary of State for the Home Department

Question 22

Does a company has to completely move to another member state to enjoy establishment rights?

Answer 22

No, migration occurs not only when a company moves, but when it sets up branch, agency or subsidiary in another member state. Marks and Spencer v Halsey (Inspector of Taxes) case C-446/03

Question 23

Are establishment rights enforceable only against the host member state?

Answer 23

NO, they may be exercised against home and host member state.

Question 24

What did the case C-115/78 Knoors v Secretary of State for Economic Affairs established?

Answer 24

A right may also be relied on when those who have exercised their rights of free movement seek to return to their state of origin.
In relation to the acknowledgment of his qualifications obtained outside his country of origin.

Question 25

Which cases established that the concept of ‘worker’ is a union concept, not dependent for tits meaning on the laws of member states?

Answer 25

Case 75/63 Hoekstra and case C-53/81 Levin v Staatsseecretaris Van Justitie

Question 26

Does a person having a part time job qualify as a worker under article 45 TFEU?

Answer 26

Yes, in Levin v Staatsseecretaris Van Justitie case C-53/81, the CJ held that the term ‘worker’ applied even to those who worked to a limited extent (ie part time), provided that the work was ‘real’ and ‘genuine’ work, and not nominal or minimal

Question 27

Which case provided the definition of a worker?

Answer 27

Lawrie-Blum v Land Baden-Württenberg case C-66/85 provided a definition for ‘worker’: a worker is a person who performs services for and under the direction of another person in return for which he receives remuneration for a certain period.

Question 28

Does the remuneration of a worker has to necessarily be in the form of cash?

Answer 28

No, Remuneration also could be benefits in kind. Steymann v Staatsseecretaris Van Justitie case C-196/97

The essential part is that there should be come consideration for work performed.

Question 29

Would someone satisfy as a worker If the work performed does not have an economic purpose within society?

Answer 29

No, to give rise to the status of ‘worker’ the work performed must fulfil, or derive from, some genuine economic purpose. Bettray v Staatsseecretaris Van Justitie case C-344/87

Rehabilitation does not constitue work for the purposes of article 45 TFEU.

Question 30

What did the case of Trojani v Le Centre Public D’aide Sociale de Bruxelles case C-456/02 establish?

Answer 30

That it is for the national court to carry out the examinations of fact necessary to determine whether someone is a worker in the case pending before it.

To do so it must use objective criteria and make an overall assessment of all the circumstances of the case relating to the nature both of the activities concerned and of the work relationship at issue.

It must ascertain in particular whether the services actually performed by the person concerned are capable of being regarded as forming part of the normal labour market. For that purpose, account may be taken of the status and practices of the employer, the content of the tasks, and the nature and details of performance of the services.

Question 31

What are the 3 elements needed for the right of establishment under article 49 TFEU to apply?

Answer 31

A right of establishment is a right to install oneself, to ‘set up shop’ in another member state, permanently or semi-permanently, whether as an individual, a partnership or a company, for the purpose of performing a particular economic activity there.

The 3 elements are:
- Migration
- Economic activity
- Self-employed activity

Question 32

What are the criteria fro self-employed established in Jan for the right of establishment?

Answer 32

1. The provision of a service
2. Outside any relationship of subordination concerning the choice of that activity, working conditions and conditions of remuneration
3. Under that person’s own responsibility
4. In return for remuneration paid to that person directly and in full

Note: In assessing whether a person is carrying out such activities, it does not matter that they are undergoing professional training. Case C-313/01

Question 33

Which article gives the definition for services used under article 56 TFEU

Answer 33

Article 57(1) TFEU: ‘Services’ are defined as those ‘normally provided for remuneration, insofar as they are not governed by the provisions relating to freedom of movement for goods, capital and persons’

Question 34

Does Article 56 TFEU only regulate the free movement rights of the service itself?

Answer 34

No, it also regulate the rights of the provider of the service.

A service can be deemed to ‘move’ within the Union without either the provider or the recipient moving across national borders.

Question 35

Will restrictions on cross-border advertising relating to the distribution of goods be dealt under article 56 TFEU?

Answer 35

No, they will dealt with under the free movement of goods provisions of article 34 TFEU. Leclerc-Siplec, decided on Keck principles

Question 36

When and against whom can the right of services can be relied upon?

Answer 36

It can be relied on against both host and home member state and in an ‘export’ situation as well as when the services are being imported. Alpine Investments

Question 37

Which case established that the right to provide services included the right to receive them?

Answer 37

Luisi and Carbone v Ministero del Tesoro Case 286/82

Question 38

What test did the case of Deliège establish in relation to article 56 TFEU?

Answer 38

The test derived is that services performed must be genuine and effective and not marginal and ancillary.

Question 39

What is the difference between the right of establishment under article 49 TFEU and the right to provide services under article 56 TFEU?

Answer 39

The strength of the connection between the right holder and the host member state.

Whereas establishment suggests some degree of continuity or permanence, for the right to provide services, it is not necessary to reside even temporarily, in the member state in which the service is provided.

Question 40

Which case stated: The right of establishment refers to the right to ‘participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin and to profit therefrom’

Answer 40

Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano case C-55/94

Question 41

What did the case of Metock C-127/08 establish?

Answer 41

A national of a non-member country, the spouse of a Union citizen, who accompanies that citizen to or joins that citizen in the host Member State, may enjoy rights conferred by that directive irrespective of when and where their marriage took place and of how the national of a non-member country entered the host Member State.

This shows that the right of family members are derived from the EU national who seeks to exercise free movement rights.

Question 42

Who is considered as family member under article 2(2) of the Directive 2004/38?

Answer 42

(1) The spouse of the EU citizen

(2) The partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State

(3) The direct descendants of the EU citizen who are under the age of 21 or are dependants and those of the spouse or partner

(4) The dependent direct relatives in the ascending line

Ascendants are parents and their ancestors ( grandparents…), and descendants are parent’s children and their issue, regardless of whether such relationship is biological or legal.

Question 43

Who is considered as family member under article 3(2) of the Directive 2004/38?

Answer 43

(1) Any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen. Extended family = uncles, cousins…

(2) The partner with whom the citizen has a durable relationship, duly attested.

Note: the family members relevant for the purposes of Article 3(2)(a) are only those of the main right-holder, to the exclusion then of those of the registered partner/spouse.

Question 44

Can a cohabitee (concubin en fr) be considered as a spouse under article 2(2)?

Answer 44

Yes, as per State of the Netherlands v Ann Florence Reed

‘A foreigner who has a stable relationship with a EU national and lives with him in the same household may as regards the right of residence be treated in the same way as a spouse, on condition inter alia that both parties are unmarried and appropriate accommodation and sufficient means of existence are provided for the foreign partner’.

Question 45

Which article of the Directive provides both EU nationals and 3rd country nationals with some protection in the event of a divorce, annulment and termination of registered partnerships?

Answer 45

Article 13 of the Directive 2004/38

The protection granted does not extend to partnerships which are not registered, nor does it apply to other family members falling within article 3(2)(a)

Question 46

To benefit from continuing rights under article 13(2) CRD, which tests must TCNs satisfy?

Answer 46

• prior to initiation of the divorce or annulment proceedings or termination of the registered partnership, the marriage or registered partnership has lasted at least - three years, including one in the host Member State
• by agreement between the spouses or partners or by court order, the person who is not an EU national has custody of the Union citizen’s children
• this is warranted by particularly difficult circumstances, such as having been the victim of domestic violence during the subsistence of the marriage or registered partnership
• by agreement between the parties or by court order, the spouse or partner who is not an EU national has the right of access to a minor child, provided that the court has ruled that the access must be in the host Member State, for as long as is required.

Question 47

What is the meaning of dependency by a TCN established in case C-423/12?

Answer 47

The fact that a family member receives a steady income regularly is enough to secure a situation of dependence and that there is no requirement to show that the dependent family member tried unsuccessfully to find a job in the country of origin

Question 48

Which case introduced the grounds for the restriction of free movement rights?

Answer 48

Jipa case C-33/07

These grounds are adopted in article 27 CRD.

Question 49

What did the case of MRAX v Etat Belge case C-459/99 establish in relation to TCN?

Answer 49

It is in any event disproportionate and, therefore, prohibited to send back a TCN married to a national of a Member State where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health.

Question 50

Which articles entitle member states to ‘adopt the necessary measures to refuse, terminate or withdraw any right conferred by this directive in the case of abuse of rights or fraud, such as marriages of convenience’

Answer 50

Article 27 and 35 of the CRD.

Question 51

Which article set out the rights of Union citizens?

Answer 51

Article 20(2) TFEU:
- The right to move and reside freely within the territory of the Member States (Art. 21 TFEU)

• The right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State
• The right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State
• The right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language

Question 52

Which article states: ‘Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship’ ?

Answer 52

Article 20(1) TFEU

Question 53

Do the right of entry and residence enjoyed by workers also apply to jobseekers?

Answer 53

Yes, as per Procureur du Roi v Royer case C-48/75

Similarly, citizens providing services or seeking to establish themselves have the right of residence.

Question 54

What did the case of Belgium establish in relation to jobseekers?

Answer 54

That those genuinely seeking work are entitled to stay in the host member state for longer than 3 months

Question 55

Can a member state after 6 months deport a job seeker?

Answer 55

Yes, as per R v Immigration Appeal Tribunal, ex parte Antonissen case C-292/89: A member state can deport an EU migrant if they have not found employment after 6 months unless they provided evidence that they were continuing to seek employment and had a genuine chance of being engaged.

Question 56

Does a person who is carrying out minimal economic activities and is dependant on the host state derive a right to reside in the territory for want of sufficient resources?

Answer 56

No as per Trojani

Question 57

Do all citizens have the same rights of residence?

Answer 57

No, it depends on our status (EU national) or note as well as the period spent in the host member state

Question 58

Is the right of residence of up to 3 months under article 6 CRD conditional?

Answer 58

No, Union citizens and their family members enjoy this right free of any conditions or formalities other than the requirement to hold a valid identity card or passport

EU citizens will retain this right as long as they do not become an unreasonable burden on the social assistance system of the host member state under article 14(1).

Question 59

What is the period of time for settled residence rights to apply?

Answer 59

EU citizens and their family members enjoy settled residence rights when staying the host country between 3+ months and less than 5 years.

Question 60

Which article sets out the settled residence rights?

Answer 60

Article 7 of the CRD

Union citizens and their family members enjoy such rights only if they fall into one these 3 categories:
(a) are workers or self-employed persons in the host Member State; or
(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or
– are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and
– have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence