The Reconceptualization of European Union Citizenship [1 ed.] 9789004251526, 9789004251519

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The Reconceptualization of European Union Citizenship

Immigration and Asylum Law and Policy in Europe Edited by

Jan Niessen Elspeth Guild

VOLUME 33

The titles published in this series are listed at brill.com/ialp

The Reconceptualization of European Union Citizenship

Edited by

Elspeth Guild Cristina J. Gortázar Rotaeche Dora Kostakopoulou

LEIDEN • BOSTON 2014

Library of Congress Cataloging-in-Publication Data The reconceptualization of European Union citizenship / Edited by Elspeth Guild.   pages cm. -- (Immigration and asylum law and policy in Europe ; 33)  Includes bibliographical references and index.  ISBN 978-90-04-25151-9 (hardback : alk. paper) -- ISBN 978-90-04-25152-6 (e-book) 1. Citizenship--European Union countries. I. Guild, Elspeth, editor of compilation.  KJE5124.R43 2013  323.6094--dc23 2013041477

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. ISSN 1568-2749 ISBN 978-90-04-25151-9 (hardback) ISBN 978-90-04-25152-6 (e-book) Copyright 2014 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Nijhoff, Global Oriental, Hotei Publishing and IDC Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

Contents Introduction�������������������������������������������������������������������������������������������������������������������������������1 Part I: Identity and EU Citizenship Identity, Member States Nationality and EU Citizenship: Restitution of Former European Nationals v. Naturalisation of New European Residents?��������������������������������������������������������������������������������������������������� 15  Cristina J. Gortázar Rotaeche The Framing of the Roma as Abnormal EU Citizens: Assessing European Politics on Roma Evictions and Expulsions in France ��������� 33  Sergio Carrera Nationality: The Missing Link between Citizenship of the European Union and European Migration Policy���������������������������������������������������������������������������� 65  Sara Iglesias Sánchez Towards a Citizenship of the Association? On the Future of Non-Discrimination, Preferential Treatment and the Standstill Clauses in the EU-Turkey Association Regime������������������������������������ 89  Annette Schrauwen and Thomas Vandamme Privileged Third-Country Nationals and Their Right to Free Movement and Residence to and in the EU: Questions of Status and Competence������������������������������������������������������������������������������������������������������������������111  Paula García Andrade Social Integration of Third Country Nationals and Spanish Nationality Law��������������������������������������������������������������������������������������������������������������������133  José María Rúiz de Huidobro Dealing with Loopholes in National and EU Citizenship: Spanish Nationality in the Case of Western Sahara�������������������������������������������������������������������149  Alberto Martín Pérez and Francisco Javier Moreno Fuentes

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Part II: Solidarity and EU Citizenship Reverse Discrimination, Family Reunification and Union Citizens of Immigrant Origin�����������������������������������������������������������������������������������������������������������������169  Kees Groenendijk Does European Citizenship Blur the Borders of Solidarity?������������������������������������189  Elspeth Guild Directive 2004/38 and Access to Social Assistance Benefits�����������������������������������209  Paul Minderhoud Social Security Coverage of Non-Active Persons Moving to Another Member State������������������������������������������������������������������������������������������������������������������������227  Filip van Overmeiren, Eberhard Eichenhofer and Herwig Verschueren Part III: Equality and EU Citizenship Reverse Discrimination – A Belgian Perspective��������������������������������������������������������265  Valérie Verbist Citizenship of Rights and the Principle of the Highest Standard of Fundamental Rights’ Protection: Notes on the Melloni Case����������������������������������285  Alessandra Aparecida Souza Silveira Equality across the Legal Orders; Or Voiding EU Citizenship of Content������������301  Dimitry Kochenov The Charter of Fundamental Rights and EU Citizenship: The Link with EU Law Re-Examined����������������������������������������������������������������������������������������������������������������323  Jože Štrus and Nina Peršak European Citizenship: Toward Renationalization or Cosmopolitan Europe?�����������������������������������������������������������������������������������������������������������������������������������343  Espen D.H. Olsen Immigration Without Incorporation: EU Migration Policy in a Post-Citizenship Europe?��������������������������������������������������������������������������������������������������361  Peo Hansen Bibliography��������������������������������������������������������������������������������������������������������������������������381 Index����������������������������������������������������������������������������������������������������������������������������������������399

About the Authors Sergio Carrera Dr Sergio Carrera is Senior Research Fellow and Head of the Justice and Home Affairs Research Programme at the Centre for European Policy Studies (CEPS) in Brussels. He holds a PhD on immigration law from the University of Maastricht (The Netherlands). Carrera has acted as an external expert on Justice and Home Affairs for the European Economic and Social Committee, the Committee of the Regions, the European Parliament and the EU Fundamental Rights Agency. His latest publications include: Bigo, D., S. Carrera & E. Guild (2013), Foreigners, Refugees or Minorities? Rethinking People in the Context of Border Controls and Visas, Ashgate Publishing Limited, 2013; Carrera, S. & B. Petkova (2013), “The role and potential of civil society and human rights organizations through third party interventions before the European Courts: The case of the EU’s Area of Freedom, Security and Justice”, in: M. Dawson, E. Muir & B. de Witte (eds), Judicial Activism at the Court of Justice: Causes, Responses and Solutions, Cheltenham: Edward Elgar, forthcoming; Carrera, S. (2013), “Integration of Immigrants in EU Law and Policy: Challenges to Rule of Law, Exceptions to Inclusion”, in: L. Azoulai and M. Cremona (eds), Migration and EU Law and Policy, Oxford University Press, forthcoming; Carrera, S. & R. Hernandez (2011), “Mobility Partnerships: ‘Insecurity Partnerships’ for Policy Coherence and Migrant Workers’ Human Rights in the EU”, in R. Kunz, S. Lavanex & M. Panizzon (eds), Multilayered Migration Governance: ThePromise of Partnership, Routledge; Carrera, S. & A. Wiesbrock (2010), “Whose European Citizenship in the Stockholm Programme? The Enactment of Citizenship by Third Country Nationals in the EU”, European Journal of Migration and Law, 12, p. 337–359. Eberhard Eichenhofer Prof. Dr. Dr. h.c. Eberhard Eichenhofer (*1950) studied at the universities of Tübingen and Saarbrücken, 1979 doctoral degree (Leitende Angestellte als Begriff des Unternehmensrechts) by Universität des Saarlandes, Saarbrücken; 1980–1982 law clerk at the Federal Court for Social Law Kassel; 1982–1989 Researcher at the Max-Planck-Institut für ausländisches und internationales Sozialrecht Munich; 1987 Habilitation(= second dissertation) at Universität des Saarlandes Saarbrücken; academic teaching permission for Civil, Private International, German and International Labour and social security Law; 1989 Professor for Civil

viii  About the Authors

Law and Social security law at the universities Osnabrück(since 1997) and Jena (since then); recent books: Geschichte des Sozialstaats in Europa, 2007; Sozialer Schutz unter den Bedingungen der Globalisierung, 2009; Sozialrecht, 2012 (8. Auflage); Soziale Menschenrechte im Völker-, Europa- und deutschen Recht, 2012; Recht des aktivierenden Wohlfahrtsstaates, 2013. Paula García Andrade Paula García Andrade is Lecturer in European Union law in the Faculty of Law of the University Pontificia Comillas in Madrid, where she teaches EU law and other subjects related to EU immigration law and policy. She also collaborates as a lecturer at the European Summer School organised by the Odysseus Network of Academic Experts on Immigration and Asylum in the European Union. She holds a PhD in Law (Doctor Europeus) from the Universidad Pontificia Comillas, and a Master’s Degree in European law from the University Libre de Bruxelles. Paula García Andrade has been a visiting researcher at the University Libre de Bruxelles, at the University of La Coruña, and at the European University Institute of Florence. Her research interests include EU External Relations Law, the External Dimension of the European Area of Freedom, Security and Justice, and EU Immigration and Asylum law and policies. She also participates in research projects for the “Salvador de Madariaga” Institute of European Studies of the University of La Coruña. Her most recent publications include: García Andrade, P. (2012), “La dimension externe de la politique migratoire de l’UE: un bilan au travers de ses instruments“, in : M. Dony (ed.), La dimension externe de l’espace de liberté, de sécurité et de justice au lendemain de Lisbonne et de Stockholm: un bilan à mi-parcours, Bruxelles: Éd. Université de Bruxelles, p. 113–145; García Andrade, P. (2012), “La responsabilidad de examinar una solicitud de asilo en la UE y el respeto de los derechos fundamentales: comentario a la Sentencia del TJUE de 21 de diciembre de 2011 en los asuntos N.S. y M.E. y otros”, RGDE (27), p. 1–34; García Andrade, P. (2012), “La geometría variable y la dimensión exterior del espacio de libertad, seguridad y justicia”, in: J. Martín y Pérez de Nanclares (coord.), La dimensión exterior del espacio de libertad, seguridad y justicia de la Unión Europea, Madrid: Iustel, p. 85–120. Cristina J. Gortázar Rotaeche Professor Cristina J. Gortázar Rotaeche is Professor of International Law, European Law and International Relations at the Universidad Pontificia Comillas in Madrid, and Senior Lecturer in Asylum and Refugee Law and Human Rights. Since 2000 she has been the Spanish National expert in the Odysseus Network (Academic Network for Legal Studies on Immigration and Asylum in Europe), and in 2002

About the Authors  ix

she was appointed to a Jean Monnet Chair on European Law. From 2002 to 2007 she served as Vice-Rector for International Relations and Extension Programs at the University Pontificia Comillas, and from 2007 to 2012 she has been the Director of the University’s Institute for Migration Studies. She is a noted expert on International and European Immigration Law, having authored, co-authored and edited more than 50 books or scientific articles and hundreds of conferences papers on the subject. Her recent publications include: Gortázar, C.; M.C. Parra, B. Saegart, C.H. Timmerman (eds) (2012), European Migration and Asylum Policies: Coherence or Contradiction. An Interdisciplinary Evaluation of the EU Programmes of Tampere (1999), The Hague (2004), Stockholm (2009), Brussels: Bruylant; Gortázar Rotaeche, C. (2012), “El SECA y la externalización del control de fronteras en la UE: el peculiar problema de los espacios marinos”, in: J. Martín y Pérez de nanclares (coord.), La Dimensión Exterior del Espacio de Libertad, Seguridad y Justicia, Publicaciones de la Universidad de Salamanca, Madrid: Iustel, p. 217–234; Gortázar Rotaeche, C. (2012 ), “Building the CEAS ad intra & ad extra Migration and Asylum: How to avoid refoulement and neo-refoulement”, in: P. Xuereb (Ed.), Migration and Asylum in Malta and the European Union: Rights and Realities 2002 – 2011, Malta: Malta University Press, p. 15–32. Kees Groenendijk Professor Emeritus Kees Groenendijk, Radboud University Nijmegen, Chair of Meijers Committee of Experts on EU Immigration, Asylum and Criminal Law. Professor Groenendijk is one of the leading experts on EU immigration, asylum and integration law. He has published widely on the subject and regularly provides advice and information to the EU institutions on proposals and developments. He has also advised lawyers in many of the key cases which have come before the Court of Justice of the European Union. He is the Dutch member of the Odysseus Network of Academic Experts on Immigration and Asylum in the European Union. Recent publications include: Fernhout, R., C.A. Groenendijk, A. Oosterom-Staples & P.E. Minderhoud (2012), Report on the Free Movement of Workers in the Netherlands in 2011–2012, Nijmegen: Centre for Migration Law. Groenendijk, C.A. (2012), “Are third-country nationals protected by the Union law prohibition of discrimination on grounds of nationality?”, in: K. Barwig & R. Dobbelstein (eds), Den Fremden akzeptieren. Festschrift für Gisbert Brinkmann, Schriften zum Migrationsrecht 6, Baden-Baden: Nomos, p. 131–142. Groenendijk, C.A. (2012), “Five pragmatic reasons for a dialogue with and between member states on free movement and voting rights”, in: R. Bauböck, P. Cayla

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& C. Seth (eds), Should EU citizens living in other Member States vote there in national elections?, EUI Working Papers RSCAS, 2012/32, Florence: EUI, p. 21–22. Groenendijk, C.A. (2012), “Integration of immigrants in the European Union: The Old or The New Way?”, in: Y. Pascouau & M.H.A. Strik (eds), Which Integration Policies for Migrants? Interaction between the EU and its member states, Nijmegen: Wolf Legal Publishers, p. 3–14. Elspeth Guild Jean Monnet Professor ad personam Elspeth Guild, Radboud University, Nijmegen, Queen Mary, University of London, Centre for European Policy Studies. Professor Guild has specialized in EU borders and immigration law for more than 20 years. She also researches EU privacy and data protection law and the nexus with human rights. She co-ordinates the European Commission’s Network of Experts on Free Movement of Workers which the Radboud University manages, bringing together academic experts from the 27 Member States providing national reports annually on the implementation of EU law in the Member States, thematic reports, regional conferences and a national conference each year. She is also co-editor of the European Journal of Migration and Law and Free Movement of Workers (the European Commission’s on-line journal) and on the editorial board of the journal International Political Sociology. She is co-editor of the book series Immigration and Asylum Law and Policy in Europe published by Martinus Nijhoff. Professor Guild provides regular advice to the European Parliament, the European Commission, the Council of Europe and others. Her recent publications include: Mantu, S.A. & E. Guild (2013), “Acts of citizenship deprivation. Ruptures between citizen and state”, in: E.F. Isin & M. Saward (eds), Enacting European Citizenship, Cambridge: Cambridge University Press. Groenendijk, C.A., E. Guild, R. Cholewinski, P.E. Minderhoud, H. Oosterom & S.A. Mantu (2012), European Report on the Free Movement of Workers in 27 EU Member States in 2011–2012, Nijmegen: Centre for Migration Law. Minderhoud, P.E. & E. Guild (eds) (2012), The first decade of EU migration and asylum law, Immigration and asylum law and policy in Europe 24, Leiden: Martinus Nijhoff, XVI + 485 p. Peo Hansen Peo Hansen is Associate Professor of Political Science at the Institute for Research on Migration, Ethnicity and Society (REMESO), Linköping University. His publications include Migration, Citizenship, and the European Welfare State: A European Dilemma (co-authored with Carl-Ulrik Schierup and Stephen Castles, Oxford University Press 2006); The Politics of European Citizenship: Deepening

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Contradictions in Social Rights and Migration Policy (co-authored with Sandy B. Hager, Berghahn Books 2012); and Eurafrica: The Untold History of European Integration and Colonialism (co-authored with Stefan Jonsson, Bloomsbury, forthcoming). Sara Iglesias Sánchez Sara Iglesias Sánchez is currently Lecturer of Public International Law at the Law School of the University of Cádiz, where she teaches various courses related to EU law and Public International Law, and coordinates the Bilingual Master’s Degree in International Relations and Migration Policies. Dr. Iglesias also collaborates as Lecturer in the Master’s Degree in Environmental Management at the IE School of Social and Behavioral Sciences, and as a tutor in the Master’s Degree in Constitutional Law at the Center of Political of Constitutional Studies in Spain. She holds a PhD in Law, awarded by the University Complutense of Madrid, an LL.M. from the Yale Law School, and a B.A. in Political Science awarded by the UNED. She has been visiting researcher at the Max Planck Institute for International and Comparative Law, at the Radboud University in the Netherlands, and the Center of Research and Studies of the Hague Academy of International law, and she has been a Schuman Fellow for the legal service of the European Parliament. Sara Iglesias is the author of a book (La libre circulación de extranjeros en la Unión Europea, Reus 2010) and of several contributions to journals and collective books. Her articles have been published in the Common Market Law Review, the European Law Journal, the Vienna Journal of International Constitutional Law, the Revista de Derecho Comunitario Europeo, the Revista Electrónica de Estudios Internacionales, the Revista General de Derecho Europeo, and the Revista de Derecho Migratorio y de Extranjería. Sara Iglesias also participates as a researcher on several projects in collaboration with the University Complutense of Madrid, where she researches terrorism and international legality, and the University of Cádiz, where she researches territorial issues in the area of the Strait of Gibraltar. Dimitry Kochenov Prof. Dimitry Kochenov holds a chair in EU Constitutional Law at the Department of European and Economic Law. He is also a fellow of the Graduate School of Law. He has been teaching at the Faculties of Law and Arts (Euroculture Erasmus Mundus programme) in Groningen for a number of years (first appointed as Ubbo Emmius Fellow in 2003) and was also a guest professor at several institutions worldwide, including Osaka Graduate School of Law (2007), UNAM Mexico (2009), American Bar Association Rule of Law Promotion Initiative (2007), and Angers Business School (ESSCA, Ateneo de Manila programme) (2009). His main research focus splits into five main lines: European Citizenship Law; EU Minority

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Protection, Non-Discrimination and Equality Law; EU External Relations and Enlargement Law; EU Law in the Overseas Possessions of the Member States; Rule of Law, Democracy and the Foundations of the European Legal Order. Prof. Kochenov has recently published articles in European Law Review, European Law Journal, Columbia Journal of European Law, Legal Issues of Economic Integration, Maastricht Journal of European and Comparative Law, Fordham International Law Journal, Boston College International and Comparative Law Review, Comparative European Politics. Theodora Kostakopoulou Dora Kostakopoulou joined Warwick Law School in September 2012 as Professor of European Union Law, European Integration and Public Policy. Formerly, she was Jean Monnet Professor in European Law and European Integration and Co-director of the Institute of Law, Economy and Global Governance at the University of Manchester (2005–2011) and Professor of European Union Law and Director of the Centre for European Law at the University of Southampton (2011– 2012). She joined the AHRC’s Peer Review College in 2009 and is a member of the editorial board of Citizenship Studies. She has been British Academy, Thank Offering to Britain Fellow (2003–2004) and recipient of an Innovation Award by the Arts and Humanities Research Council (2004–2005). She is the author of Citizenship, Identity and Immigration in the European Union: Between Past and Future (2001, Manchester University Press) and The Future Governance of Citizenship which was published by Cambridge University Press in 2008 (Law in Context Series). Her articles have appeared in the Canadian Journal of Law and Jurisprudence, Columbia Journal of European Law, Oxford Journal of Legal Studies, Modern Law Review, European Law Journal, Journal of Common Market Studies, Political Studies, European Political Science, Journal of Ethnic and Migration Studies, Journal of European Public Policy, European Journal of Migration and Law, European Security, Perspectives on European Politics and Society and the Journal of Political Philosophy. Alberto Martin Pérez Dr. Alberto Martín Pérez is Assistant Professor at the Department of Sociology and Analysis of Organizations of the University of Barcelona. Between 2008 and 2010, he worked at the Institute of Public Goods and Policies of the Spanish National Research Council (CSIC). He holds a PhD in Sociology (2007) from the École des Hautes Études en Sciences Sociales in Paris and the Universidad Complutense de Madrid. His current research focuses on the access of immigrants to welfare provisions and public services, on the street-level practice of social policy, and on the interrelation between citizenship and the welfare state. His recent publications include:

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Martín Pérez, A. & F.J. Moreno Fuentes (2012), “Migration and citizenship law in Spain: path-dependency and policy change in a recent country of immigration”, International Migration Review, 46(3), p. 625–655. Martín Perez, A., E. Martín Coppola, A. Gentile, M. Gutiérrez Sastre (2012), “Representaciones de la ciudadanía en los servicios públicos: reconocimiento, mérito y autonomía”, Revista Espanola de Investigaciones Sociologicas, 139, p. 189–200. Paul Minderhoud Dr Paul Minderhoud is an Associate Professor at the Radboud University, Nijmegen. He is an expert on European social security law and publishes widely on the subject. He advises both EU institutions and national ones on related issues. He is the principal coordinator of the Network on Free Movement of Workers, funded by the European Commission, which consists of academic experts in all EU Member States who report on national implementation of the rights of mobile EU workers and their family members and specific issues related thereto. His recent publications include: Fernhout, R., C.A. Groenendijk, A. Oosterom-Staples & P.E. Minderhoud (2012), Report on the Free Movement of Workers in the Netherlands in 2011–2012, Nijmegen: Centre for Migration Law. Groenendijk, C.A., E. Guild, R. Cholewinski, P.E. Minderhoud, H. Oosterom & S.A. Mantu (2012), European Report on the Free Movement of Workers in 27 EU Member States in 2011–2012, Nijmegen: Centre for Migration Law. Grütters, C.A.F.M., K.M. Zwaan, R. Fernhout, C.A. Groenendijk, A.H. Hekman, M. Kullmann, M. Luiten, P.E. Minderhoud, R. van Oers & M.H.A. Strik (eds), (2012). Migratierecht (Boom Basics), Den Haag: Boom Juridische uitgevers. (236 p.) Hart, B. de, A.B. Terlouw, P.E. Minderhoud & M.H.A. Strik (2012), “De immigratievoorstellen van het regeerakkoord ontrafeld II”, Asiel & Migrantenrecht, 27. Francisco Javier Moreno Fuentes Francisco Javier Moreno Fuentes, Research Fellow at the Institute of Public Goods and Policies (IPP) of the Spanish National Research Council (CSIC), holds a BA in Sociology from the Universidad Complutense of Madrid, a Master’s Degree in Social Sciences from the Juan March Institute of Madrid, an MSc in Social Policy and Planning from the LSE, and a PhD in Political Science from the Universidad Autónoma of Madrid (2003). He has held visiting positions at international institutions (NYU, Harvard, Sciences-Po Paris), and has taught at both graduate and undergraduate levels at such institutions as the Universitat Pompeu Fabra, Universitat de Barcelona, and CEPEL-Université de Montpellier. His main areas of

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research interest are public policies in comparative perspective, with a special focus on immigration, welfare and urban policies. Among his recent publications are: Moreno Fuentes, F.J. & M. Bruquetas Callejo (2011), Immigration and the Welfare State in Spain, Barcelona: Colección de Estudios Sociales de ‘La Caixa’ Nº 31; Andreotti, A., P. Le Galès & F.J. Moreno Fuentes (2013), “Transnational mobility and Belonging: European Urban Upper Middle classes”, Global Networks, Vol. 13 (1), p. 41–59; Martín Pérez, A. & F.J. Moreno Fuentes (2012), “Migration and citizenship law in Spain: path-dependency and policy change in a recent country of immigration”, International Migration Review, 46(3), p. 625–655. Espen D.H. Olsen Espen D.H. Olsen is Senior Researcher at Arena, Centre for European Studies at University of Oslo. He holds a PH.D in political science from the European University Institute, Florence. His main research interests are in the areas of citizenship theory, European citizenship, EU democracy and constitution-making, transnational integration, citizen deliberation, theories of deliberative democracy, and political theory. He has previously taken part in the ARENA-led RECON project which focused on empirical and theoretical issues regarding democratic polity models for the European Union, and in Europolis which was a research project that dealt with citizen deliberation in a transnational setting. His main publications include Transnational Citizenship in the European Union: Past, Present, and Future (London and New York: Continuum Books 2012), and articles in Political Studies, Journal of European Public Policy and Perspectives on European Politics and Society. Filip van Overmeiren Dr Filip van Overmeiren is attached to the University of Gent, Belgium. He is predominantly interested in the European and international aspects of social security law and labour law. He has a special preference for the European coordination of social security systems, internal market law, the social dimension of European citizenship, mobility of workers and cross-border social fraud. His recent publications include: Nina Peršak Prof. dr. Nina Peršak has studied law at the University of Ljubljana (B.A. and Ph.D.) and University of Cambridge (LL.M.), and social and developmental psychology (M.Phil.) at University of Cambridge. She is a professor in the field of Criminology and Sociology of Law, Faculty of Law, University of Ghent, and a member of the Institute for international research on criminal policy (IRCP). Her research interests

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lie in the area of (European and comparative) criminal law, criminology, human rights, legal philosophy, victimology, sociology of law and social psychology. Van Overmeiren, Filip, Herwig Verschueren & Eberhard Eichenhofer (2011) “Social Security Coverage of Non-active Persons Moving to Another Member State.” trESS Analytical Reports, trESS website: trESS. Van Overmeiren, Filip (2010) Modernized EU Social Security Coordination: Preparation for the Application of the New Regulations on the Coordination of Social Security, Stockholm, Sweden: Swedish Social Insurance Agency. José María Ruiz de Huidobro José María Ruiz de Huidobro holds a PhD in Law and a BA in Business Administration (a 5-year degree). Dr. Ruiz de Huidobro is Associate Professor of Civil Law in the Faculty of Law-ICADE at the Universidad Pontificia Comillas in Madrid, where he is currently the Director of Department of Private Law. He regularly collaborates with the Institute for Migration Studies of the same university. His research focuses mainly on civil law, immigration law, law on aliens and nationality law. His recent publications include: Aparicio Gómez, R. & J.Mª Ruiz de Huidobro (2010), “Combating the exploitation of irregular inmigrant workers in Spain: the recognition of their rights and their access to social benefits”, in: Policies on irregular migrants, vol. IV, Strasbourg: Council of Europe, p. 7–60; Aparicio Gómez, R., A. Tornos Cubillo, J.Mª Ruiz de Huidobro & M. Fernández García (2008), “Combating illegal employment of foreigners in Spain: scale and reasons behind the phenomenon, laws and policies against”, in: E. Hönekopp & H. Mattila (eds.), Combating illegal employment of foreigners in an enlarged EU, Budapest: IOM, p. 249–294; Aparicio Gómez, R. & J.Mª Ruiz de Huidobro (2008), “Report from Spain (2008)”,  in: J. Doomernik & M. Jandl (eds), Modes of Migration Regulation and Control in  Europe, IMISCOE Reports, Amsterdam: Amsterdam University Press, p. 147–169. Annette Schrauwen Annette Schrauwen holds a Chair of European Integration, in particular Citizenship Law and history at the University of Amsterdam. She graduated in European Studies from the University of Amsterdam, where she also defended her PhD thesis on the concept of the internal market in European law. She has been lecturing at the Faculties of Humanities and Law for a number of years, and given numerous guest lectures and paper presentations both in the Netherlands and abroad. She is editor of Legal Issues of Economic Integration. At present, she is director of the Department of public international law and European law.

xvi  About the Authors

Alessandra Aparecida Souza Silveira Professor Silveira is the Director of the Centre of Studies in European Union Law (CEDU) of the University of Minho (UM). Director of the Master’s Degree in European Union Law (UM). Academic Coordinator of the joint cathedra entitled European Union Law and Transnationality – Cathedra University of Minho / University of Vale do Itajaí (Brazil). Integrates the Directing Commission of the Master’s Degree in Tax Law (UM). Academic Coordinator of the Jean Monnet Action (Information and Research Activities) “European Union Law and Transnationality” (2009–2010). She was Vice- President of the Faculty of Law of the University of Minho and Director of the Course of Law (December, 2008 – March, 2010). PhD in Public Law (Faculty of Law of the University of Coimbra), February, 2006. She integrated the investigative unit “Human Rights Interdisciplinary Centre of Investigation”, where she directed a plan of action about the judicial protection of fundamental rights in the European Union (June, 2007 – December, 2009). Member of the University of Minho teaching-staff since October, 2000, mainly lecturing Constitutional Law and European Union Law to the 1st and 2nd cycles. She elaborated (along with three other specialists) the institutional opinion of the University of Minho on the Treaty of Lisbon, presented to the Portuguese Republic Assembly (Portuguese Parliament). Areas of expertise: European Union Law, Constitutional Law, Federative Systems. Jože Štrus Jože Štrus received his LL.M. from Harvard Law School in Cambridge, United States, where he studied Immigration Law, Constitutional Law and Legal Philosophy, and his B.A. in law from the Faculty of Law in Ljubljana, Slovenia, with his cum laude thesis on EU citizenship. He has been working for the European Commission (Directorate-General for Justice) in the areas of the independence, quality and efficiency of national justice systems, and the EU Charter of Fundamental Rights into EU legislative proposals, and responding to complaints on fundamental rights violations in the implementation of EU law. Before joining the European Commission, he worked for the Slovenian Parliament focussing on international law of treaties and maritime delimitation. Thomas Vandamme Thomas Vandamme works as an assistant professor in European Law at the Department of Public International Law and European Law of the University of Amsterdam. After having studied European law at the University of Utrecht, Thomas Vandamme became an attorney at law with the firm of Stibbe (Amsterdam). In 1999 he switched from legal practice to doing doctoral research into the validity of European directives and their (constitutional) relationship with national legislation. Since 2009, Thomas Vandamme has been the editor of the European Constitutional Law Review.

About the Authors  xvii

Valérie Verbist Valérie Verbist is Ph. D. fellow of the Research Foundation – Flanders (FWO) and is attached to the KU Leuven, Belgium. Her research interests lie in the area of European constitutional law. She is preparing a Ph. D. on reverse discrimination of Union citizens. Her recent publications include: Verbist, V. (2012), “Omgekeerde discriminatie en de Belgische rechtsorde: op zoek naar een standpunt”, in: A. Alen & J. Theunis (eds), Leuvense Staatsrechteijke Standpunten, Deel III, Brugge: Die Keure, p. 403–428. Verbist, V. (2011), “Citizenship in Europe: a dynamic interplay beween national and Union citizenship”, in: M-C. Foblets, M. Hildebrandt & J. Steenbergen (eds), Liber Amicorum René Foqué, Gent: Larcier, p. 473–481. Verbist, V. (2011), “De invloed van het Unieburgerschap op zuiver interne situaties”, Rechtskundig Weekblad (11), p. 510–527. Herwig Verschueren Herwig Verschueren teaches International and European Labour and Social Security law at the University of Antwerp (Belgium). He is also a visiting professor at the University of Brussels (VUB). He graduated in law at the University of Leuven (Belgium; 1980). Subsequently he worked as a researcher at the Universities of Antwerp and Leuven. He received his doctorate degree (Ph.D.) in 1990 on the subject of “International labour migration”. From 1992 to 2004, he was a civil servant at the European Commission (Brussels) working in the field of free movement of workers and the co-ordination of social security schemes. Since 2004 he is a professor at the University of Antwerp and a visiting professor at the University of Brussels. His research concentrates on European social law and more specifically on the legal position of migrant workers and persons with regard to labour and social security rights. He is a member of the European academic networks “Tress” (European social security co-ordination) and “Free Movement of Workers”. He regularly acts as a consultant for Belgian and European public authorities, including the European Commission, on legal issues related to the cross-border application of labour and social security law.

Introduction: The Reconceptualization of European Union Citizenship Elspeth Guild, Cristina J. Gortázar Rotaeche and Dora Kostakopoulou The European Commission designated 2013 to be the “European Year of Citizens” in order to mark the 20th anniversary of European Union citizenship. This book takes a long and hard look at what has become of citizenship of the Union from an interdisciplinary perspective and draws attention to the strengths and weaknesses of the status which have appeared over that period of time. The first focus of this book is on the juridical aspects of this citizenship which was so new in 1992 but also includes wider perspectives on how citizenship of the Union intersects with national conceptions of citizenship. Since the coming into force of the Maastricht Treaty in 1993, the European Union has changed in significant ways. Not only has it expanded to include most countries of the former Soviet bloc in Eastern Europe, it has also changed institutionally. EU citizenship has played an active part in this process of change as it has created a new legal status for the nationals of the Member States that has brought along a rethinking of identity, community and belonging within the EU member states. Although in the 1990s most scholars saw European citizenship as a purely decorative and symbolic institution, which added little new to the ‘pre-Maastricht’ regime of free-movement rights, European Union citizenship has matured owing to judicial and legislative interventions and has captured the imagination of several actors. Given the important changes that have taken place recently, it is time to revisit EU citizenship and examine how the Member States have responded to these changes and explore the implications of the process of reconceptualisation of EU citizenship for European integration and identity-building as well as for national legal regimes. This book maps out, from a variety of theoretical standpoints, the challenges generated by European integration and EU citizenship for community membership, belonging and polity-making beyond the state. It does so by focusing on three main issues which we consider relevant for how EU citizenship has developed and its capacity to challenge state sovereignty and authority as the main loci of creating and delivering rights and protection. First, we look at the relationship between citizenship of the Union and European identity and assess how immigration and access to nationality in the Member States impact on the development of a common European identity. Secondly, we discuss how the idea of solidarity interacts with the boundaries of EU citizenship as constructed by the

2  Elspeth Guild, Cristina Gortázar and Dora Kostakopoulou

entitlement and capacity of mobile citizens to enjoy equality and social rights as EU citizens. Thirdly, the book engages with issues of EU citizenship and equality as the building blocks of the EU project. By engaging with these themes, we provide a topical and comprehensive account of the present and future development of Union citizenship and study the collisions between the realisation of its constructive potential and Member State autonomy. A distinctive feature of this book is the treatment of EU citizenship as an experimental institution and the prototype for experimentation in the domain of citizenship on a global scale. By focusing on the shifting meanings of EU citizenship, that is, the transition from free movement in the internal market to EU citizenship as a fundamental status and to enhancing democratic political participation in post-Lisbon Europe, and their implications for the creation of a sense of community belonging and European identity, the book teases out some of the challenges that the institutionalisation of Union citizenship has posed for its hybrid legal structure. In addition to developing a conceptual framework that captures the changing meaning of boundaries and belonging in the context of European citizenship, we articulate some tools which could be used as yardsticks for assessing existing laws, administrative practices and official discourses and as a normative reference point for future reform. In the following three sections we follow the structure of the book and set out the objectives and outcomes of the project in its three parts. Part I: Identity and EU citizenship: this first part of the book examines the meaning of citizenship of the Union from the perspective of a transition from foreigner to citizen – but with a particular focus on what it means to be a citizen of an entity which is neither a state nor an accepted federal body of any kind. Where is the dividing line between citizenship and foreign status, immigrant status and other terms used to designate otherness? In the first chapter Cristina Gortázar Rotaeche contributes to analytical discussion on the interplay between the objectives of Member States’ immigration policies and the evolution of the Member States’ citizenship/nationality laws. In light of the fact that EU citizenship rights are bestowed on nationals of all of the 28 Member States of the EU, what principles are used by Member States in order to legislate access to nationality? This is a crucial aspect of European integration and identity-building. Two processes are at work simultaneously in the EU – the widening of EU citizenship through enlargement and the recovery of citizenship in historic relationships in Europe which defy the limitations of citizenship of the Union. To understand how EU citizenship is developing the two trends need to be brought together. Moreover, the greater the number of competences shared between the MS and the EU regarding the status of non–EU migrants (third country nationals), the more complex the interplay between immigration and nationality law becomes. It is possible that

Introduction  3

the more EU law reinforces the admission (exclusive State competence on the issue is already falling apart regarding certain social groups) and integration of new residents, the stricter Member States’ resistance to facilitating naturalization procedures will become. However, at the same time such a situation could provoke the intervention of the CJEU, in an attempt to prevent deviations from the EU’s legal principles (see CJEU decision in Rottmann).1 In the second chapter, Sara Iglesias examines how nationality is claimed as one of the spheres in which Member States retain full sovereignty. The citizenship of the Union is anchored to the sole will of States inasmuch as it is determined by reference to Member State’s nationality. In this way, it is assured that States remain not only the gatekeepers of membership to their own political communities, but also the ultimate architects of the composition of EU citizenry. For a long time, the doctrine has explored the possibilities in which EU law could potentially affect State competences in the field of naturalization, but the subsequent reforms of the Treaty have left the definition of EU citizenship untouched, and there is no improvement to be expected in the near future. Against this background, the powerful potential of citizenship of the Union has already given place to striking developments in the Court of Justice, which have started to erode the absolute discretion of States in granting and withdrawing nationality. But these punctual developments (that also arise out of rather exceptional cases), make it very difficult to draw general conclusions on the general impact of EU law on the determination of nationality as a path towards a meaningful a coherent approach towards a common project of citizenship. With the introduction of a truly common immigration policy of the EU, new problems and contradictions are likely to arise in the near future. Indeed, the construction of a common immigration policy that supposedly aims at integration of migrants is strongly distorted by the fact that the last step in a process of successful integration – naturalization- is banned from any influence of EU law. The potential of EU citizenship to become a catalyst for membership and identity depends very much on the achievement of common principles that inspire the intersection between EU migrants and EU citizens. This chapter is devoted to the analysis of the practical and theoretical dysfunctions for EU citizenship and for EU migration policy, caused directly by the lack of a harmonized approach to naturalization. In the third chapter, Paula Garcia Andrade asks how, although EU citizenship is exclusively enjoyed by nationals of Member States, certain third-country nationals also benefit from some of the rights inherent to this status, mainly the right of free movement and residence. The allocation of EU citizenship rights depends on Member States’ rules on nationality. However, nationals from Norway, Iceland, 1 C-135/08 Rottmann ECR [2010] I-1449.

4  Elspeth Guild, Cristina Gortázar and Dora Kostakopoulou

Liechtenstein and Switzerland have received a similar status by virtue of international agreements concluded with these countries by the EU and its Member States. Moreover, the comparison of their privileged situation with that of nationals of other associated countries to the EU makes it difficult, indeed, to draw the line between the EU competences on migration and on free movement of persons, especially as far as the external domain is concerned. This paper will therefore attempt to reflect on the competence to extend the right of free movement and residence to non-Member State nationals, as well as on the status of these privileged third-country nationals in relation to the concept of EU citizenship. In the fourth chapter Sergio Carrera focuses on the nature and implications of the ‘Ethnicisation’ of European citizenship looking at the controversies surrounding the Roma in EU. Two case studies are examined: the events in France and Italy in 2010/11, as well as those in Czech Republic-Canada visa dispute which was on going from 2009 up to and including 2013. What does EU citizenship effectively mean for ‘the Roma’ who are nationals of EU Member States and thus are entitled to the status yet at the same time find themselves the objects of social exclusion which follows them as they move from one Member State to another? The chapter examines this question by looking at the various ways in which these two case studies show how state actors have primarily sought to locate ‘ethnicity’ (instead of nationality) as the key determining or connecting factor underlying the normative nature and scope of Union citizenship rights and freedoms, and hence justifying discrimination and expulsion. It assesses how ‘the act mobility’ (framed in EU law as ‘freedom of movement’ or free movement of persons) has profoundly challenged these exclusionary state practices by bringing in supranational institutional sites and legal frameworks of protection on EU citizenship-related freedoms. In the fifth chapter, Annette Schrauwen and Thomas Vandamme examine the EC-Turkey Association Agreement in order to find out whether there is indeed progressive inclusion of Turkish nationals in the rights based framework of citizenship and free movement. The chapter first introduces the concept of substantive equality that the authors use as a tool to measure progressive inclusion of Turkish nationals in the citizenship framework. Then they give an overview of the provisions in the association arrangements that are relevant for progressive inclusion and their interpretation by the CJEU. From there, they argue that the EU citizenship regime should be used as comparator for the position of Turkish nationals under the Association regime. In the final section they provide an analysis of several recent cases from the Court of Justice of the European Union (CJEU), with a focus on the amount of substantive equality and point to future challenges. In the sixth chapter, Francisco Javier Moreno Fuentes and Alberto Martin Pérez analyse Spanish nationality legislation as an example of the loopholes that exist in the boundaries of definition of EU citizenship. They focus on the most striking

Introduction  5

case relating to the attribution of Spanish nationality to citizens from former colonies: that of the Western Sahara. This case provides a good example of the loose boundaries of EU citizenship when analysed from the point of view of the edges of national citizenship. This shows that EU citizenship remains, in fact, the result of the addition of very diverse national legislations that facilitate or restrict the access into its common space of belonging. Chapter seven provides José María Rúiz de Huidobro the opportunity to analyse how the social integration of foreigners is evaluated as a legal requisite for the acquisition of Spanish nationality. The social integration requirement for foreigners becomes a prerequisite which can hardly be achieved as full social integration is only possible when full citizenship is recognised. Administrative practice and case law has progressively been made stricter since the beginning of the 21st century as regards the evaluation of social integration of foreigners and progressively include increasing vague legal concepts. It is especially worrying that the generalisation which can be called tacit examination of citizenship not only lacks legal certainty but also remedies for the individuals caught up in it. In Part II of the book we examine solidarity and EU citizenship. Here the defining feature is the relationship of citizenship to equality as regards social solidarity. Two aspects are considered in this section – first the impact of EU citizenship is resulting in better treatment for EU citizens who do not hold the underlying nationality of the Member State where they are resident and the constitutional issues which arise from the so called reverse discrimination, and the mechanisms of social solidarity in the form of social benefits. The latter is expressed in the social security, social benefits and welfare systems of states. The objective of these redistributive systems is to ensure that people who need benefits get them albeit there are many different facets of this type of redistribution – some insurance based, others needs based. One of the features of the 21st century in the EU is an increasing reliance on a double set of criteria for access to social benefits – nationality of the state and residence for a period of time. How do these criteria fit with citizenship of the Union? In the first chapter in this section, Kees Groenendijk asks why, after the judgments of the EU Court of Justice in Zambrano,2 McCarthy3 and Dereci,4 the issue of reverse discrimination of Union citizens in migration law has been discussed mainly in relation to the treatment of third-country national parents of minor children who are Union citizens. This chapter deals with a wider perspective on reverse discrimination: the effects of the absence of EU rules on family 2 C-34/09 Zambrano ECR [2011] I-1177. 3 C-434/09 McCarthy ECR [2011] I-3375. 4 C-256/11 Dereci 15 November 2011 (not yet published).

6  Elspeth Guild, Cristina Gortázar and Dora Kostakopoulou

reunification of Union nationals who have not used their right to move to another Member State. Why is it a problem? Who is affected by the absence of EU rules? How are the differences in approach of this issue between Member States to be explained? It is argued that Union citizens of immigrant origin are experiencing the negative effects of reverse discrimination far more often than other Union citizens. Reverse discrimination in national law often is introduced with this group of ‘second class nationals’ in mind. Since neither the Court of Justice not the Union legislator are able to agree on a solution for this issue, the task of ending reverse discrimination falls either on the national (constitutional) courts or parliaments, or on the European Court of Human Rights. In the second chapter, Elspeth Guild examines the meaning of our traditional approach to understanding citizenship which relies firmly on the principle of equality among citizens. The French Revolution 1789 called for liberté, égalité et fraternité which has become the foundation of the dominant European understandings of citizenship. But what does this mean for citizens of the Union? The EU is currently struggling with the issue of equality among EU citizens in particular as it relates to social solidarity. The Citizens’ Directive (Directive 2004/38) promises equality but permits limitations on social rights and the possibility of expulsion from the national territory. The personal scope of EU citizenship has received much attention after the CJEU decisions in Rottmann5 and Zambrano6 but the scope of the rights is possibly even more important. The conceptualization of citizenship outside law, in particular as bundles of rights (a ‘follow the rights’ approach to solidarity) has been much discussed in social sciences outside law. It provides an excellent starting place to examine the call for equality and solidarity. To what extent do EU citizens who do not hold the underlying nationality of a Member State enjoy access to social solidarity and on what terms? It has frequently been posited that allowing people to move without immigration controls or with light controls diminishes the capacity of communities to express social solidarity in the form of social benefits. In this chapter Guild challenges this perspective on the basis of the developments in the EU between the big bang enlargement of 2004 and 2013 and the deepening of EU law on the creation by the Member States of new duties to extend social solidarity to all EU citizens which takes place over the same period. In the third chapter of this section, Paul Minderhoud examines access to social assistance benefits under Directive 2004/38 by focusing on the issues concerning the implementation of the Directive in the light of access to social assistance benefits for EU citizens in other Member States. One problem with the 5 C-135/08 Rottmann ECR [2010] I-1449. 6 Ibid.

Introduction  7

implementation of Directive 2004/38 is that it is not clearly defined when a EU citizen becomes an ‘unreasonable burden’ to the social assistance system of a host Member State. Leeway is given to Member States to examine whether financial difficulties may be temporary. As a result, Member States have developed their own definitions. Some legal experts hold the opinion that before EU citizens have acquired a permanent residence right, it will not be possible to deny them access to social benefits. The policy and practice in the UK, however, show a different picture. By using a habitual residence test and a right to reside test, the social benefits system of this country seems to exclude inactive EU citizens effectively from entitlement during a certain period of time. In this chapter Minderhoud looks at the meaning of these rules for the purposes of understanding EU citizenship. In the final chapter of this section, Van Overmeiren, Eichenhofer and Verschueren examine the interdependence of two key instruments for the access of non-active persons to social citizenship: Regulation 883/2004 and Directive 2004/38. In essence the questions come down to a matter of priority: can a non-active person appeal to his or her coordination rights to social benefits under Regulation 883/2004 to fulfill the self-sufficiency condition of Directive 2004/38 or should he or she, on the contrary, be legally resident first as envisaged in Directive 2004/38 before a right to residence based benefits coordinated by Regulation 883/2004 can be acquired? The latter option would mean that the limitations on the principle of equal treatment in Directive 2004/38 may limit the right to special non contributory benefits (SNBCs) and to health care under Regulation 883/2004. The analysis of both instruments shows that, from a legal point of view, there are no elements to establish that any provision of Directive 2004/38 would have an influence on the normal application of Regulation 883/2004. This application remains the same, in particular as to the interdependence between the right to SNCBs and to residence based sickness benefits on the one hand and the sufficient resources and comprehensive health insurance requirement on the other hand. Both instruments must be applied separately and in line with EU obligations. Making the bridge to the relevant case law of the CJEU, it is apparent that EU law is sensitive to the Member States’ desire for the establishment of a genuine link between a person claiming residence based non-contributory benefits and the Member State granting the benefit. However, in that regard the residence notion of Regulation 883/2004 was not only formally accepted as a solid basis for the entitlement to both SNCBs and residence based sickness benefits in a competent Member State, but also seems to be in line with the substantial requirements developed by the CJEU for the establishment of a genuine link with the host Member State for access to non-contributory benefits. The current state of EU law nevertheless remains unsatisfactory as to the precise relationship between the instruments, leaving too much room for different interpretations on the national level. It would

8  Elspeth Guild, Cristina Gortázar and Dora Kostakopoulou

thus be useful if the European legislator could anticipate possible further case law from the CJEU by providing the necessary clarification in this field. Part III of this book is entitled Equality and EU citizenship. Here the key issue is the articulation of EU citizenship with the wider concepts of equality which are present in EU law. The entitlement of all EU citizens to equality which is contained in the Treaty on the Functioning of the European Union (TFEU) has traditionally been understood to apply to those EU citizens who exercise their treaty rights and move but not to those who remain at home and never use their EU rights. However, there are questions which arise in respect of this understanding. In this chapter these issues are examined not only from the perspective of EU law’s ability to touch citizens of states where there has been no movement but also how national law and the courts responsible for its interpretation of nationality have sought to reconcile the situation of their citizens in the face of EU citizenship. In the first chapter in this section, Valérie Verbist examines Belgium’s attitude towards reverse discrimination. According to settled case law of the CJEU, the Treaty provisions on the free movement of goods, services, persons and capital and the Treaty provisions on Union citizenship do not apply in a purely internal situation. These are situations which have no connecting factor with any of the situations governed by European Union law and which are confined in all relevant respects to a single Member State. In such a purely internal situation it is possible for a Member State to treat its own nationals less favourably than other Union citizens (both own nationals and nationals of other Member States) in a cross-border situation. According to the Court of Justice, Union law does not prohibit reverse discrimination and the Member States individually have to decide whether or not to remedy it. Although this case law has strongly been criticized, especially after the introduction of Union citizenship, the Court of Justice has on several occasions explicitly confirmed the purely internal situation rule. This chapter focuses on the Belgian attitude towards reverse discrimination. Both the position of the Belgian legislator and the approach of the Belgian Constitutional Court are examined and Verbist provides a critique of the traditional case law concerning purely internal situations and reverse discrimination in the light of Union citizenship. In the second chapter here, Alessandra Aparecida Souza Silveira looks at what a citizenship of rights might look like in the context of a European fundamental standard of rights acquired through the status of EU citizenship. On account of the EU fundamental rights’ protection, the Court of Justice of the European Union is developing a broad notion of “citizenship of rights”. Recent CJEU case law is bringing the EU legal order face to face with the meaning and scope of the European citizenship: does it serve only to support the freedom of movement of

Introduction  9

economically active citizens, or is it connected with a uniform set of rights and duties, typical of a Union based on the rule of law, in which fundamental rights perform an essential role?7 In this sense, it is arguable that one can infer the substance of European citizenship with reference to the EU standard of fundamental rights’ protection. Being a European citizen basically means one is the holder of rights protected by the European legal order, including fundamental rights. Perhaps the CJEU has found in the European citizenship the last/conclusive link with EU law (when another link is not so evident) for safeguarding the highest standard of fundamental rights’ protection for which the CJEU is responsible. The objective of this text is precisely to understand the sense of this principle of the highest standard of fundamental rights’ protection [stated on Article 53 of the Charter of Fundamental Rights of the European Union (CFREU)], especially in the light of the recent Melloni case (C-399/11), and to know in what manner the EU citizenship conceived in those terms can affect the evolution of the integration process itself. In the third chapter, Dimitry Kochenov makes a simple claim. The direct byproduct of a purely formalistic application of the national and supranational principles of ‘equality’ strictly within the confines of the different legal orders, which is the case in the Union today, leads to injustice and is not sustainable. In this situation no one can legitimately claim that basic equality before the law in the Union is safeguarded. More often than not it is even unknown which law is to apply and why and a satisfactory test to resolve jurisdictional conflicts is missing. In this situation EU citizenship is profoundly undermined and the very promise of the European integration project is ditched by formalism. To have future, the Union is bound to turn to the concept of justice seriously, providing for the ability to guarantee meaningful equality for its citizens. In the fourth chapter Jože Štrus and Nina Peršak look at the impact which the legal status of the EU Charter of Fundamental Rights, which also incorporates a section on citizens’ rights has on the realisation of EU citizenship. The European Commission developed a strategy for the effective implementation of the Charter. This fundamental rights policy rests upon Article 51 of the Charter, which defines its scope of application. According to this provision, the Charter is addressed to the EU institutions and bodies, and to the Member States but only when they are implementing EU law. The European Commission’s annual reports on the application of the Charter demonstrate, with concrete examples, how EU institutions and Member States have implemented the Charter. The CJEU on EU citizenship, seems to suggest that the Court of Justice of the EU has partially extended the

7 Ruiz Zambrano (C-34/09) September 30, 2010, A.G. Opinion, paragraph 3.

10  Elspeth Guild, Cristina Gortázar and Dora Kostakopoulou

doctrine on the scope of application, at least as regards the rights attached to the status of the EU citizenship. The book concludes with two chapters, first one by Espen Olsen where he examines the meaning of EU citizenship from the perspective of the controversies of 2011/12 which reveal Member States’ reluctance to accept that EU citizens are ‘real’ citizens or that their citizens are ‘real’ EU citizens. He traces and analyzes policy decisions, legal reasoning, and political reactions of the Danish centerright government to suspend parts of the Schengen Agreement and re-instate border controls between Denmark and its neighbours, perhaps one of the most aggressive ways of refusing the coherence of citizenship. He then looks at the landmark Zambrano ruling of the CJEU where European citizenship was made less dependent on the principle of free movement and thereby bolstered as a fundamental status of itself. In analyzing these policy moments made at the time of recurring European crises, the chapter utilizes an analytical framework focused on two polity models of the EU: one nation-state oriented and one cosmopolitan. The chapter seeks to highlight how two different ‘worlds’ of citizenship politics are at play simultaneously. The question is whether we see more of ‘re-nationalization’ (Schengen case) or ‘cosmopoliticization’ (CJEU/Zambrano) in EU citizenship politics. Secondly, Peo Hansen examines some of the fundamental issues which the central themes of the book have raised. He argues that the EU’s allegedly tremendous ‘demographic deficit’ has lead many analysts to point to the Union’s securitized migration policy as counter-productive, bound to yield to a more open labour migration policy managed less by border guards and more by demand and supply mechanisms. For the European Commission and member state governments, however, it is rather the other way around. In order to meet the great demand for migrant labour, they assert, even more vigilant migration controls will become necessary. In this logic, the neoliberal policy concept of ‘circular migration’ has taken central stage. As this chapter demonstrates, circular migration is promoted as a means to meet a large demography-driven labour demand while at the same time relieving member states of the perceived socioeconomic burdens associated with migrants’ permanent residence and social incorporation. In order to prevent circular migration from becoming permanent, therefore, more stringent migration controls are deemed indispensible – a logic that, as is shown, manifests itself distinctly in EU policy vis-à-vis Africa. But as the chapter goes on to argue, important aspects of this development no longer confines itself to the EU’s external migration policy. Rather – and certainly much propelled by the growing crisisinduced disparities between member states and the increasing anti-immigrant tendencies in the EU – the eroding commitment to migrants’ social incorporation can now also be seen to be catching up with the very institution of free movement in the EU itself. More and more, then, a formerly commended free movement of

Introduction  11

EU citizens is being recast as a detrimental immigration of welfare tourists. Accordingly, many governments are now calling for restrictions on free movement, requesting, above all, a curtailment of the social provisions that until now have formed an integral part of the EU’s free movement regime. While this could be seen as calling into question the whole edifice and hence the whole future of EU citizenship as we know it, it could also be taken as a sign that many of the features of the EU’s external migration policy are about to be internalized, with a socially embedded free movement increasingly metamorphosing into a no-frills circular migration.

Part One Identity and EU Citizenship

Identity, Member States Nationality and EU Citizenship Restitution of Former European Nationals v. Naturalisation of New European Residents? Cristina  J. Gortázar Rotaeche 1. Introduction: EU Citizenship and Identity-Building This paper seeks to make a modest contribution to analytical thought on the interplay between, on the one hand, Member States’ policy objectives regarding the status of non-EU migrants and the evolution of Member States’ nationality Law; and, on the other, the principles underlying MS’ nationality Law and its compatibility with a reconceptualised European Union citizenship. The greater the number of competences shared between the MS and the EU regarding the status of non-EU migrants (third country nationals), the more complex the interplay between immigration and nationality law becomes. It is possible that the more EU law reinforces the admission1 and integration of new residents, the stricter Member States’ resistance to facilitating naturalization procedures will become. However, at the same time such a situation could provoke the intervention of the CJEU, in an attempt to prevent deviations from the EU’s legal principles. Now, twenty years on from the entry into force of the Maastricht Treaty, it is perhaps a good time to revisit EU citizenship and to reassess its evolution, by paying particular attention to how this process is shaping a concept of EU identity and by emphasising the role of the CJEU in this reconceptualisation of European citizenship. Given that EU citizenship is granted to nationals of any EU Member

1 For instance, exclusive State competence with regard to the admission of non-EU migrants is already falling apart regarding certain social groups: for example, family members seeking to be reunited, students, and researchers. Moreover, Iglesias points out that “The precarious state of the (EU) common immigration policy does not undermine its far-reaching potential implications” and that once the admission of (some) non-EU migrants no longer falls under the States’ exclusive power, a common EU immigration policy could become “a first stone in the involvement of Union in the selection of the pool of its own potential citizens”. See, in page 87 of this book: S. Iglesias Sánchez, “Nationality: the missing link between the citizenship of the European Union and the European migration policy”.

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State, the principles used by these States when legislating on access to and/or refusal of nationality is crucial to the issue of European integration and identity-building. There are two principles of nationality law at the core of this paper: the principle of nationality restitution and that of immigrants’ integration. The principle of nationality restitution exists in the democratic policies of democratic States, and naturalisation of third country nationals has also always played a part in Member States’ nationality legislation. However, the moment has perhaps come to reflect upon the rather dangerous tendency to encourage an ‘idealistic’ restitution principle, one which might be to the detriment of another, more pragmatic principle – one probably more in keeping with EU Law – regarding the naturalisation of new residents. By this I am referring to those people who have decided to seek establishment in a European Union guided by the principle of ‘unity in diversity’. In this chapter, I offer examples of both principles from the current scenario in Member States nationality legislations.2 I also reflect on the extent to which they may be adaptable to the new reality of EU citizenship, which is slowly but clearly being shaped by the CJEU. Indeed, the original intention of EU citizenship3 was intended to facilitate free circulation in a Europe with no internal borders: the aim was to grant, particularly with regard to freedom of circulation and establishment, additional rights to those already in place by virtue of having Member State nationality. Now, looking at the big picture with twenty years of hindsight4 a contradiction appears to have opened up. On the one hand, we have EU citizenship, with its strong integrationist powers – particularly evident in the CJEU’s rulings in the cases of Rottman5 and Ruiz Zambrano.6 On the other, there are Member 2 See S. Carrera, In search of the perfect citizen? The intersection between integration, immigration and nationality in the EU, Martinus Nijhoff 2009. 3 Created by the Maastricht Treaty (1992), in force from 1993. 4 EU citizenship has potentially been re-created by the Lisbon Treaty (2007), in force since 2009. See, inter alia, H. de Waele, “EU citizenship: Revisiting its Meaning, Place and Potential”, European Journal of Migration and Law 123 (2010), 319. 5 Case C-135/08 Rottmann (2010) ECR I-1449. Janko Rotmann, an Austrian and EU citizen, moved to Germany and naturalized there in 1999. He lost Austrian nationality ex lege because of his German naturalisation, but he committed fraud when acquiring German nationality (he failed to mention a national arrest warrant issued by Austria). German authorities thus withdrew his nationality because he had fraudulently acquired it. The problem arises because Austrian legislation does not permit the recovery of Austrian nationality. Rotmann appealed against the German decision on the grounds of his statelessness that he founded against International and EU law The German Federal Administrative Court referred two questions to the CJEU: Was the fact that withdrawal of nationality on grounds of fraud led to statelessness legal under EU law? And if so, was Germany obliged not to withdraw or Austria to change its law and permit Rottmann to recover his nationality? We will comment on the CJEU answers in the course of this chapter.

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States’ efforts to modify and regulate their legislation on nationality by delaying naturalisation of immigrants and by fostering nationality acquisition among ethnic Europeans. If these last two tendencies were the case we would have a situation in which the EU, seeking to acquire competences, and the Member States, On Rottmann, see, inter alia, D. Kochenov, “Annotation of Case C-135/08 Rottmann”, 47 Common Mrkt. L. Rev. (2010) 1831; G. De Groot, A. Seling, “Decision of 2 March 2010, Case C-135/08, Janko Rottman v. Freistaat Bayern – Case Note II – The Consequences of the Rottman Judgment on Member State Autonomy – The European Court of Justice’s Avant-Gardism in Nationality Matters”, 7 Eur. Const. L. Rev. (2011), 150; J. Shaw (ed.), Has the European Court of Justice challenged Member States sovereignty in nationality law? EUI working papers RSCAS 2011/62; N. Cambien, “Case C-135/08, Janko Rottman v. Freistaat Bayern”, Columbia Journal of European Law 17, 2 (2010– 2011); A. Ciuca, Citizenship between National and International: Discussions on a Case (2010). The New Review of Human Rights, No. 2, CH Beck Publishing House, 2010. Available at: http://ssrn. com/abstract=2089504, visited 2 March 2013. 6 Case C-34/09 Ruiz Zambrano, ECR (2011) I-0000. Judgment of the Court (Grand Chamber) 8 March 2011. R. Zambrano concerned the claim for a right of residence in Belgium, as well as the right to work, brought by a Colombian citizen who had arrived in Belgium seeking asylum in 1999. His asylum claim was refused in 2000, but the decision contained a non-refoulement clause prohibiting his deportation to Colombia. Two of Zambrano’s children, Jessica and Diego, were born in Belgium and acquired Belgian nationality at birth. After 2006 Mr. Zambrano definitively lost his work permit, and Zambrano and his wife were due to be deported. The CJEU protected the children, who were EU citizens and minors, from being deprived of their right to reside in the EU, even though they had never exercised their rights to free movement. It was understood that the parents could not be deported since, as the minors’ main carers, this would deprive Jessica and Diego of their right, as EU citizens, to live there. The parents therefore has to be ‘regularised’ as immigrants in Belgium The CJEU’s most significant conclusion was that ‘Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union’. However, the Court did not reach the same conclusion in a later case regarding an adult applicant whose partner was a third country national (Case C-434/09, McCarthy v. Secretary of State for the Home Department, (2011) ECR I-000, judgment of 5 May 2011). Unfortunately, according to the Court, in McCarthy, the genuine enjoyment of the substance of the rights is not violated by depriving a citizen from living in the EU with his/her partner, since it is understood that s/he could live outside the EU with his/her partner, or in the EU without his/her partner. For the moment (CJEU jurisprudence should be seen as being in a phase of development rather than as having achieved fixity) the above-mentioned genuine enjoyment of the substance of the rights is only violated by depriving EU citizens who are minors from living in the EU (for which reason their carers will have the right to reside in the EU as caregivers of those citizens who are minors; Zambrano), but not when an EU citizen is deprived from living in the EU with his/her family (McCarthy). On Zambrano see, inter alia, A.P. Abarca Junco and M. Vargas Gómez-Urrutia, “El estatuto de ciudadano de la Unión y su posible incidencia en el ámbito de aplicación del Derecho Comunitario (STJUE Ruiz Zambrano)”, Revista Electrónica de Estudios Internacionales [23] (2012), www.reei.org; S. Iglesias Sánchez, “El asunto Ruiz Zambrano: una nueva aproximación del Tribunal de Justicia de la Unión Europea a la ciudadanía de la Unión”, Revista General de Derecho Europeo, 24 (2011), 1; M.R. Carmona Luque, “El disfrute efectivo de la esencia de los derechos de ciudadanía de la Unión”, Revista de Derecho Comunitario Europeo 38 (2011), 185; K. Lenaerts and J.A. Gutiérrez Fons,

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seeking to conserve them, were locked in struggle to decide which people are citizens of Europe, and which are not. But there is a further discrepancy between the Member States and the EU over the basic philosophy underlying what criteria to consider when dealing with European citizenship issues. Thus there are reasons for believing that while the EU (especially through CJEU case-law) is slowly moving towards human rights-based view of the nature of European citizenship7 – (a view embodied fundamentally by the Ruiz Zambrano decision8), the Member States (or at least some of them) are keeping a tight grip on their competences so as to complicate naturalization for third country residents whilst at the same time promoting the acquisition or recovery of nationality for ethnic Europeans. There are nonetheless grounds for optimism in the CJEU’s clear belief that Member States will not be able to use their competences in the field of nationality to the detriment of the basic principles of EU law such as, for example, the principles of proportionality or fundamental rights. At another level, in the argument I will develop over the following pages, I wish to distance myself from the growing tendency in MS legislations and practices to test the suitability for integration of candidates seeking naturalisation by using culture-based exams. These are excessive to the point of being sometimes surreal, as for example when failing the exams is used to justify rejecting a candidate for naturalisation. Kochenov has graphically pointed out that States use the myth of integration to justify exclusion from naturalization to those who are considered by popular culture to be ‘other’. He himself passed an official exam in Dutch culture so as to acquire Dutch nationality and recalled the following startling questions from the exam: “A young neighbour has died. What should you do?1) nothing, 2) I send a condolences card, 3) I go and help the widow.” Of course, nobody who is integrated into Dutch culture will fail to see that only one of these three answers is correct.9 “Ruiz-Zambrano (C-34/09) o de la emancipación de la Ciudadanía de la Unión de los límites inherentes a la libre circulación”, Revista española de derecho europeo 40 (2011), 493; K. Hailbronner & D. Thym, “Note to Case C-34/09, Ruiz Zambrano, Judgment of the Court (Grand Chamber) of 8 March 2011, not yet reported”, Common Market Law Review 48 (2011), 2253. 7 For Javier de Lucas, “si la ciudadanía es exclusión es incompatible con la legitimidad democrática a cuyo núcleo pertenecen los derechos fundamentales”; J. de Lucas, “Hacia una ciudadanía europea inclusiva. Su extensión a los inmigrantes”, Ciudadanía europea e inmigración. Revista CIDOB d’Afers Internacionals, 53 (2001), pp. 63–75 at 53. See also; J. de Lucas “El proyecto europeo y la ciudadanía para los inmigrantes”, Arbor, Vol. 181, No. 713 (2005); J. de Lucas, “Cómo transforma la inmigración a la ciudadanía”, Eikasia. Revista de Filosofía 4 (2006). 8 This case confirms, beyond any cross-border consideration, the autonomous content of the EU citizenship. 9 More surprisingly, a further question quoted by Dimitry Kochenov is: “Mrs De Jong says: ‘I will go and eat now’. 1) You are invited to join Mrs De Jong, 2 ) Mrs De Jong does not feel like speaking with you anymore and wishes to go home, 3) Mrs De Jong will probably invite you to eat with her later.” D. Kochenov,

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Are at least some Member States thrashing around in the dark regarding which criteria to use in the pursuit of a common European identity? Or, even worse, is it possible that these tests are being prepared so as to put obstacles in the way of our new neighbours, the immigrant residents, on their road to becoming full citizens? 1.2. Two Member States Principles Which Inspire Nationality Legislation If we look at current Member States’ nationality legislations – their amendment proposals and political debates – it becomes clear that they contain several different principles, which are sometimes conjoined, sometimes isolated, which may or may not be easily characterised, and which may even be in open contradiction with one another. Several principles of international law are of course well recognised under specific international obligations (UN and Council of Europe Treaty Law, General Customary Law, etc.). Thus from a legal perspective, the prevalence of all such principles – for example those regarding unjustified discrimination, the prevention of statelessness, and the facilitation of citizenship to refugees and stateless migrants – over any other principle of regional or national Law must be taken into account. Nonetheless, given the necessity of facilitating the development of International Public Law, there has for some time been, in the most homogenous regional spheres (for instance, in the EU), a tendency to continually recreate International Public Law by adapting its principles to the historical moment at which it is to be applied. For this reason, the regional courts (meaning the CJEU) as well as deciding not to apply those principles underpinning the ‘romantic period of Public International Law’,10 should insist on full application of the spirit of certain important principles of international law– the struggle against statelessness, for example – rather than exceptions to these principles.11 “Mevrouw de Jong Gaat Eten: EU Citizenship and the Culture of Prejudice, EUI working papers RSCAS, 2011/06, p. 7. Once again, every Dutch person, or anyone incorporated into Dutch culture, will understand perfectly that there is only one single way of interpreting Mrs Jong’s desire to eat. 10 This was the reference to the Nottebohm case (Liechtenstein v Guatemala (Nottebohm) 1955 ICJ Reports 4) made by AG Tesauro in Micheletti. In Kochenov’s view “The approach embraced by the court in Rottmann is a clear departure from its previous case law on nationality, exemplified by the sound Micheletti tradition, where the Court took a principled stance, refusing to accept the illogical orthodoxy of a ‘genuine connection’ doctrine accepted in International law since Nottebohm, saving both common sense and the common market”, D. Kochenov ( 2011) “Two Sovereign States vs. a Human Being: CJEU as a Guardian of Arbitrariness in Citizenship Matters”, in J. Shaw (ed.), Has the European Court of Justice challenged Member States sovereignty in nationality law?, EUI working papers RSCAS 2011/62. 11 But unfortunately, in Rottmann, the CJEU resorts to the exception – the option to withdraw nationality due to its fraudulent acquisition – at the expense of the basic legal principle of avoiding statelessness: “Unlike Micheletti, (…) Rottmann moved away from fetishising the few exceptions from the main rule of international law on statelessness”, ibid.

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EU Member States thus need to seek formulas which combine ius sanguinis and ius soli with due respect for the principles of international law; moreover, within the EU, any MS nationality legislation must also have ‘due regard to Community law’.12 Currently this means, inter alia, following the principle of proportionality and either the principle of fundamental human rights or any other principle held by the EU. Among others, there are two principles of nationality which are used as a consequence of MS sovereignty, principles which should of course be applied only with prior assurances that principles of international law and of EU law are being duly followed. They are the principle of restitution of former citizenship (the system of give-away passports) and the principle of immigrant integration. The principle of restitution of citizenship to remedy past errors has been justified on the grounds that it repairs the post-war abuses which led to sections of the populations of several European States losing their nationalities. Such abuses include the territorial divisions made by victorious powers (Hungary’s case, for example, with the 1920 Treaty of Trianon), or enforced exile imposed by authoritarian regimes (Franco’s Spain after the 1936 Civil War). The idea of so-called giveaway passports derives precisely from this principle, which has inspired numerous reforms in the legislation on nationality in several EU Member States. With application of such legislation starting in Hungary in January 2011 the issue of giveaway passports has again taken the limelight. The principle of immigrant integration is aimed at facilitating immigrants’ access to naturalization and at finding formulas for granting nationality to second generations of immigrants so as to contribute to their integration into national/ EU society. 2. Nationality Restitution (Give-Away Passports): Redressing Past Errors or/and Pushing for Ethnic Citizenship? Although the principle of restitution of nationality has existed and continues to exist in all the legislative policies of democratic States both inside and outside the EU, in recent years the EU has seen much discussion, most of it distrustful, of this ‘passport offer’. First there was Rumania, with the Moldovans who spoke Rumanian; they were followed by the Macedonian Slavs; then came the Turks who fled Bulgaria to avoid the forced assimilation imposed by Communism; and now there are the ethnic Hungarians in Serbia and Ukraine. The give-away passports offered by Rumania, Bulgaria and Hungary could raise by five million the number of Europeans with the right to free movement, which 12 Case C-369/90 Micheletti [1992] ECR I-4239, para.10.

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would mean a 1% increase in the EU’s population.13 The fear being spread in the media is that give-away passports attract people without academic or professional qualifications, who would increase the burden on Social Security instead of alleviating it. The real and potential non-EU beneficiaries of give-away passports are mainly the citizens of Moldova, Macedonia, Serbia, Ukraine and Turkey.14 The introduction of ethnic criteria in those Member States within the orbit of the former Soviet Union has arisen from their need to rectify errors made in their Communist past, errors which, in Hungary’s case, go back as far the territorial divisions made by the victorious powers after the First World War. Likewise, in Spain, the law on Historical Memory15 is an attempt to rectify the errors of the Spanish Civil War and the Franco regime. But in neither case are there sufficient indications to suggest that these are attempts to revive the historical concept of the ethnic nation. A comparative study made by the IMISCOE Network16 rebuts Brubaker’s 199217 thesis, which concluded that Germany, Hungary and Poland, due to their having had a grand tradition of nationality as an ethnic concept, believed that their collective identity was defined by language, culture, and in part by shared religion. According to Brubaker, the policies on nationality of these three States thus followed this line. But the IMISCOE research is conclusive, and states that as regards ethnicity/de-ethnicity,18 the nationality legislation of these three European States now follows divergent models. Germany has decided to abolish emigrants’ privileges when they are seeking access to nationality, and Poland and Hungary follow 13 Mutler & G. Jahn (2010) http://www.msnbc.msn.com/id/38580772/ns/world_news-europe/, last visit 2 March 2013. 14 However, of course, not all citizens will accept the offer, nor do all those who do accept necessarily have to exercise their right to move and reside in EU territory. 15 See http://www.boe.es/boe/dias/2007/12/27/pdfs/A53410-53416.pdf, last visit 2 March 2013. 16 A. Maatsch, Coming closer or moving apart? Comparing ethnic citizenship regimes in Germany, Hungary and Poland. 7 IMISCOE Annual Conference ‘New Migration in Industrial Cities and Regions of Europe’, University of Liège, 13–14 September 2010. 17 Brubaker (1992) understands that the national legislations on nationality diverge because of varying concepts of nation. Thus, a State like Germany, with the concept of the ethnic nation, tends towards legislation on ethnic nationality, while a State such as France, with the concept of the civic nation, tends towards legislation based on civic rather than ethnic nationality. R. Brubaker (1992) Citizenship and Nationhood in France and Germany, Cambridge, Mass.: Harvard University Press. However, in the space of just a few years, reality has thwarted this theory: Germany, with its history of ethnic nationality, in the 90s instigated a de-ethnic approach to nationality, while France has added a strongly assimilationist approach to its equalitarian, republican policy as regards immigration – one, indeed, which starts to look rather different from the model appropriate to a global, diverse society. 18 Joppke argues that left-wing parties are in favour of a de-ethnicization nationality policy, while right-political parties are in favour of re-ethnicization, C. Joppke (2003) “Citizenship between deand re-ethnicization”, European Journal on Sociology, Vol. 44, pp. 429–458.

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relatively similar lines as regards nationalisation19 facilities granted to emigrants. Indeed, it may be that the concept of ethnic nation no longer exists. Of Brubaker’s three examples, Germany has now opted for a de-ethnicity model, while Poland and Hungary are remedying the errors of the past. But of course there is still the possibility that the principle of restitution is concealing an ember which further down the line, and with the justification that historical errors are being repaired, might rekindle a move towards an ethnic Europe.20 The Example of Hungary Current Hungarian policy on nationality tends towards the recuperation of Hungarian nationality for all ethnic Hungarians, a policy which is combined with tolerance of dual citizenship.21 Thus in 2010 legislation was approved which would, via fast-track citizenship, facilitate and simplify the process for the reco­v­ ery of nationality by ethnic Hungarians. The law took effect on August 20, 2010 and became enforceable on January 1, 2011. It allows ethnic Hungarians to apply for citizenship if they can show that they are of Hungarian origin: they are required to provide consular officials with proof of Hungarian roots – for example, by showing the birth certificate of a Hungarian parent or grandparent, by speaking the language, and by posing no danger to public or national security.22 Applicants no longer need to be resident in Hungary to obtain citizenship, and applications may be submitted at more than 90 diplomatic missions abroad and 2,200 registry offices in Hungary.23 However, as non-residents, they are not entitled to vote in Hungarian elections. In Rumania, there are over 1.5 million 19 A. Maatsch, Coming closer or moving apart? op. cit. 20 In Hungary, the parties on the left took up a position against ethnic nationalisation while the parties on the right were decidedly in favour of it. Those on the left opposed it due to economic factors and the fact that they considered that ethnicity might be counter to International Law and EU Law. In Germany, the children of immigrants with the option of German nationality must choose before they are 23 years old (and renounce nationality of origin), in order to be Germans; however, the children of repatriated persons (acquisition for ethnic affinity) maintain their dual nationality for life. 21 In 1920, the victorious allies of World War I signed the Treaty of Trianon with Hungary. This treaty stipulated that Hungary would lose a vast amount of territory and more than 60 per cent of its population. This left large Hungarian communities living in neighbouring countries. The main beneficiaries of Hungary’s territorial loss were Rumania, Czechoslovakia and the Kingdom of Serbs, Croats and Slovenes. 22 http://www.bbc.co.uk/news/world-europe-12114289, last visit 2 March 2013. 23 By 7 March 2013, POLITICS. HU states “The government has granted Hungarian citizenship to over 320,000 residents of other countries under its simplified nationalisation procedures in the past two years, Népszabadság reports, citing an official summary. Deputy prime minister Zsolt Semjén said recently that only 1.5% of applications are rejected. The vast majority of those turned down do not speak Hungarian and a small number are rejected for public or national security

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ethnic Hungarians; in Slovakia there are more than half a million,24 about a tenth of the country’s population; and in Serbia there are over 250,000. Things are different in the case of Romanian give-away passports. The right to re-naturalisation in Romania was granted to all former citizens and their descendants, irrespective of their ethnic origin, their form of de-naturalisation and the length and period of their previous attachment to the Rumanian state.25 Indeed, Rumania had encouraged Moldovans to obtain Rumanian citizenship, even though Moldova is not an EU Member State. And with regard to Bulgaria, it should be pointed out that, during the years, prior to his 2011 removal, Minister Dimitrov promoted precisely this policy to bring all Bulgarians together. His policy was inspired both by the willingness to pay back ‘historical debts’ and to solve the ‘biggest problem in this country: its demographic crisis’.26 The Spanish Example In Spain,27 the most notable changes in nationality legislation since the recuperation of democracy and the approval of the 1978 Constitution have involved the principle of restitution. Until now, modifications to the Law on nationality have been intended, albeit not exclusively, to account for those people who due to considerations, according to the summary. ‘It is our responsibility to see that agents or extremely crazy people are not granted Hungarian citizenship,’ Semjén said. By far the largest number of applications, 125,000, came from Romania. Another 39,000 applications were submitted in Serbia, 8,000 in Ukraine, 1,300 in the US, and over 800 in each of Canada and Israel.” http://www.politics.hu/20130307/320000-granted-hungarian-citizenship-under-government -drive/, last visit 19 March 2013. 24 Slovakia’s current citizenship law prohibits Slovak nationals from applying for citizenship of another country. Those who violate the law lose their Slovak citizenship http://www.politics .hu/20110104/hungarians-abroad-apply-for-citizenship-under-new-law, last visit 2 March 2013. 25 C. Iordachi, Country Report: Romania, EUDO Citizenship Observatory, updated May 2010. http://eudo-citizenship.eu/docs/CountryReports/Romania.pdf. 26 In 2012, 18 000 foreigners were granted Bulgarian citizenship: “As in previous years, the bulk of foreigners granted Bulgarian citizenship were from Macedonia (8185 people) and Moldova (5705 people). Given the numerous border changes in the 20th century, many Macedonians can claim at least one grandparent with Bulgarian citizenship, which is sufficient ground to be granted citizenship in grounds of Bulgarian descent – and it is the easiest way for many Macedonians to acquire EU citizenship”, Sofia Globe, 23 January 2013. 27 Spain continues to favour the ius sanguinis over the ius solí on nationality issues. Regarding acquisition of nationality on grounds of residence, Spain requests that immigrants be legally resident in the country for ten years, and obliges them to renounce their previous nationality. Important exceptions to this are, apart from EU citizens, immigrants from Latin American countries, Andorra, the Philippines, Equatorial Guinea and the Sephardies, where only two years of residence in Spain are required. See also, R. Rubio Marìn, I. Sobrino, A. Martin Pérez & F.J. Moreno Fuentes, Country Report: Spain, EUDO Citizenship Observatory, updated November 2012 http://eudo-citizenship.eu/docs/CountryReports/Spain.pdf.

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emigration lost their Spanish nationality in the past. The main development has thus been the adoption of the Additional Provision Five of Law 52/2007,28 which recognises and extends rights for, and establishes measures in favour of, those who were persecuted or who were the victims of violence during the Spanish Civil War and the dictatorship. This Provision entered into force on 27th December 2008, and affects both those persons whose father or mother was Spanish by birth and the grandchildren of those who, due to exile, lost or were forced to renounce their Spanish nationality.29 Having completed its work on ‘historical memory’, Spain must now adapt its legislation on nationality to the principle of immigrant integration, by reducing the period of residence for nationality acquisition and by proposing dual citizenship for the countries of origin of its migratory flows. By way of example, we might compare the situations of Moroccans accessing Spanish nationality and nationals from Latin American countries doing the same. Although Moroccans are the most widely-represented nationality among Spanish immigrants, they require ten years of residence, as against the two years required of Latin Americans. Moreover, Moroccans have to renounce their nationality of origin, while Latin American nationals have dual citizenship.30 For colonial/historical reasons, one group of people has relatively easy access to national citizenship, while for another group the process is much more arduous: perhaps, for such distinctions to be justifiable, the principle of proportionality should at some point be applied. 2.1. Immigrant Integration: Naturalization of New Europeans Originally, Member States with an immigrant tradition were committed to immigrant integration, while States with an emigrant tradition were more committed to solving their own emigration problems. However, a large number of Member States which were formerly emigrant countries have now become countries which attract immigrants. Spain heads the list of such countries, which also includes the rest of the Mediterranean EU Member States. In such cases, it is not 28 Supra quotation number 15. 29 By the end of the period (December 2011) more than 500,000 applications were presented and half of them (250,000) were approved while the other half were pending. V. Marín, Migrar con Derechos, http://www.parainmigrantes.info/500-000-solicitudes-de-nacionalidad-espanola-por -la-ley-de-memoria-historica-749/, last visit 2 March 2013. 30 In Italy, dual citizenship and other measures for facilitating the recovery of Italian nationality by those who lost their nationality following emigration were established in 1992. However, immigrants may apply for naturalisation after only 10 years of residence. Although, following 1992, many bills were presented to reform citizenship legislation by reducing the period of residence necessary to apply for naturalisation and to make acquisition easier for second generations, none were passed.

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unusual to employ both principles – nationality restitution and immigrant integration – to establish the right to nationality. As regards those Member States which have recently joined the EU, although they still have legislative policies on nationality which are as yet not fully consolidated, both founding principles can be observed: the integration of immigrants into the host European society and the protection of emigrants. It is here, in the access of immigrants to nationality through residence, where the policies on immigration of the EU Member States and their policies on nationality are most obviously related. Have the Member States opted for an assimilationist approach regarding immigrant integration which is now spreading like an oil stain? Is there any hope for the multiculturalist model? In this regard, it is important to mention the way in which the demands imposed by the MS regarding the integration of immigrants with a view to their naturalization have ‘infected’ the norms adopted by certain MS when they are awarding residence permits to third country nationals. The criteria for the social integration of immigrants as a conditio sine qua non for their admission into the host State (in the case, for example, of family reunification) or for the renewal of residence permits (especially when they are seeking long-term permits)31 are based fundamentally on exams which test knowledge of the language used in the receiving State and on exams about the culture of the host society (these tests are sometimes identical to those used for soliciting naturalisation32). Considered as a necessary requisite for gaining access to certain residence permits, these tests can be completely one-sided, and the situation is particularly painful when applied in the country of origin with the aim of allowing entry for worker’s families for reasons of family regrouping.33 If to this we add that sometimes excessively lengthy 31 This trend is not absolute. Belgium, for instance, has abolished language and integration requirements for long term residence permits. Apart from Belgium, a significant number of MS do not impose conditions of integration for the acquisition of long-term residence status while they impose social integration tests for naturalization: Bulgaria, Cyprus, Finland, Hungary, Malta, Poland, Slovenia, Spain, Sweden, and Ireland. By contrast, France, Germany, Italy, Luxembourg, Netherlands, Denmark, Austria, the Czech Republic, Portugal, Latvia, Romania, Greece, Lithuania, Slovakia and the UK require integration conditions prior to or at the moment of acquiring long-term residence permits. D. Acosta Arcárazo, The long-term Residence Status as Subsidiary form of EU citizenship (an analysis of Directive 2003/109), The Hague: Martinus Nijhoff/ Brill 2011, pp. 176–185. 32 For instance, in the Netherlands and the UK the same test applies for becoming naturalised as for acquiring long-term residence status. Ibid, op. cit., at p. 163. 33 Act 1 March, 2000, amending the nationality Code. See M.C. Flobets and Z. Yanasmayan (2010) “Languages and integration measures in Belgium: discordances between the Flemish policy of Inburgering and the federal legislatiors’ views on the on the integration of newcomers and migrants”, in R. van Oers, E. Ersbøll, D. Kostakopoulou, A redefinition of belonging? Language and integration tests in Europe, The Hague: Martinus Nijhoff, pp. 277–278.

26  Cristina  J. Gortázar Rotaeche

periods are required for processing the naturalisation of third country nationals, we see that the path to achieving naturalisation, far from being smooth, is actually strewn with obstacles. The Example of the Netherlands Holland is a good example of how immigration policies and policies for accessing nationality are interconnected. In the 1980s, Holland had a clear policy for facilitating the integration of immigrants, and the corollary to this was that it offered advantageous conditions for accessing Dutch nationality. At the beginning of the 1990s, the need to renounce previous nationality was thus repealed. However, the number of naturalisations then increased so that in 1997, the requirement to renounce previous nationality was reintroduced. Shortly afterwards, following the publication of ‘The Multicultural Tragedy’ (Het multiculturele drama), and the 2004 death of Theo van Gogh, the system of immigrant integration was exchanged for an assimilation model. Little by little the conditions for accessing nationality have thus become stricter, so that now it is only after a lengthy process of proven integration that it is possible to access Dutch nationality.34 In order to become a naturalised citizen in the Netherlands, applicants currently have to demonstrate that they are sufficiently well-integrated into Dutch society by passing a naturalisation test to assess their knowledge of Dutch language and society. In 2006 a compulsory naturalisation ceremony was introduced as one further element in the procedure for obtaining Dutch citizenship. Although other dates may be chosen, municipal authorities are obliged to hold a ceremony on 24 August (the day in 1815 on which the Dutch Constitution came into effect), which is now known as National Naturalisation Day. The German Example Before the 2000 reform, Germany closely followed the principle of ius sanguinis for the acquisition of German nationality. Currently, those children born after 1 January 2000 to non-German parents acquire German nationality at birth if at least one parent has been legally residing in Germany for at least the past eight years (previously, it was 15 years) and has an unlimited right of residence. Those children holding citizenship of another country must declare, between the ages of 18 and 23, whether or not they wish to retain their German nationality. If so, they are required to renounce any foreign nationalities, and failure to do so will result in the loss of their German nationality. However, the number of naturalisations in 2008 decreased to the lowest level since 1990. Statistics indicate that persons with a foreign passport who had fulfilled the naturalisation requirements 34 Country Report: Netherlands, EUDO Citizenship Observatory, updated January 2013. http://eudo -citizenship.eu/country-profiles/?country=Netherlands.

Identity, Member States Nationality and EU Citizenship  27

very seldom applied for a German passport. Such a situation inevitably generates debate about the role of nationality acquisition in the process of immigrant integration and the acceptance of dual nationality.35 In Germany, as in the Netherlands and Austria, naturalisation courses, compulsory tests and formalised ceremonies take place before naturalisation; the preconditions for naturalisation were determined with regard to language requirements, and modified with regard to knowledge of the Germany’s legal and social system. The French Example On the one hand, France represents the model of an inclusive civil republic with a non-ethnic citizenship. On the other hand, the grounds of French nationality lie in the principle of assimilation, via the progressive integration of immigrants into French society. Traditionally France has therefore functioned as a model of nonethnic nationality combined with the principle of immigrant integration, by following the assimilationist, as opposed to the multiculturalist approach. In recent years, however, the assimilationist model has run into serious difficulties, with public and political debates increasingly focusing on the cultural and religious characteristics of Muslim migrants who are perceived as a threat to ‘traditional’ republican integration.36 2.2. Looking Ahead to Good Practice These examples of nationality legislation in EU Member States show how the principles of nationality restitution and immigrant integration have been combined. None of the examples, though, is fully convincing. Spain itself is somewhat lazy when it comes to adapting its nationality legislation to the reality of immigration, although it is helped by the fact that many of its immigrants are from countries with which it has historical links; for such people, the period of residence required previous to the granting of nationality is relatively short. In 2011, Hungary strengthened its policy in order to recover its emigrant population, although such a policy has nuances which could conceivably provoke a rekindling of imperialism. The assimilationist policies of Holland, Germany and France are alarming, and seem to be having a domino effect. Belgium may be an example of liberality regarding its application of the principle of immigrant integration, but its legislation seems to be strongly conditioned by its political vicissitudes and by decentralisation. 35 Country Report: Germany, EUDO Citizenship Observatory, updated October 2012. http://eudo -citizenship.eu/country-profiles/?country=Germany. 36 Country Report: France, EUDO Citizenship Observatory, updated January 2013 http://eudo -citizenship.eu/country-profiles/?country=France.

28  Cristina  J. Gortázar Rotaeche

However, I wish to conclude with a positive practical example: the case of Portugal. Portuguese nationality legislation seems to combine both objectives: to maintain and even increase links between Portugal and its expatriates, and to be inclusive regarding immigrants. The current system intelligently combines ius sanguinis with ius soli. In some cases, immigrant’s nationality constitutes a subjective right of the immigrant – a real right to naturalisation. This right extends also to minors, and in certain circumstances may include immigrants in irregular situations on Portuguese soil. In 2006, a further amendment to the nationality regulations was made, which extended the concession of nationality to second generation migrants, if one of the parents has been legally resident for at least five years. This established, for the first time, these children’s subjective right to naturalisation.37 Such a policy of immigrant integration should clearly act as guidance for all the Member States when they are designing their nationality policies. The Member States are perfectly aware of European demography and of the social burden which those having to financially support an ageing Europe will soon need to bear, if migration’s essential task of rejuvenating Europe – be it with nationalisation or not – is put on hold. The decision to truly integrate immigrants – by facilitating their access to the nationality of the European State where they reside, though without losing their nationality of origin – is a clear starting point for an better-integrated EU, one which is also plural and united in its diversity. To this end, the Member States should support the process of integration and subsequent naturalisation. Ideally, such naturalisation should not even constitute a sine qua non condition for achieving integration: this could be achieved via having long-term resident immigrant status, with no need for nationalisation. In this case, naturalisation should be the free decision of the immigrant, as a type of gift which the immigrant would make to the EU Member State, for the welfare achieved and for the integration which the State itself has ‘facilitated’. In such a case, the Member States could not possibly demand that the immigrant renounce his/her nationality of origin. A large, united, sustainable population is the best insurance for peace and welfare that a region can achieve. To this way of thinking, it is not coherent that the nationalisation processes for immigrants should either to entail a real struggle, as it does with the Netherlands, or to even cease to be an issue, as with Germany. Several EU Member States have modified their nationality legislations to facilitate the acquisition of ethnic nationality for ‘old Europeans’. The norm of 37 Country Report: Portugal, EUDO Citizenship Observatory, updated November 2012 http://eudo -citizenship.eu/country-profiles/?country=Portugal. It is, however, premature to leap to conclusions, since Portugal currently has far lower immigration figures than Spain or Italy.

Identity, Member States Nationality and EU Citizenship  29

‘Europeanising’ Europe may often be sensible, as when it aids the process of repairing or making up for past errors, but at other times it may seem to be merely fuelled by nationalist zeal to achieve an ethnic population at any cost. But is this really gaining an identity? If so, which identity? Twenty-eight different identities? Such a tendency obviously does not follow the ideal of a single European citizenship based on the principles of human rights, the rule of law and the triumph of social justice. 3. Shaping the Future. The Role of the CJEU: EU Citizenship as the

Fundamental Status of Member State Nationals

Regarding the CJEU’s shaping role, time has passed since Micheletti38 and García Avello39 when the Court remarked that MS nationality legislations must have ‘due regard to Community law’.40 Recently, potentially ushering in a new era, at Rottmann41 the CJEU reaffirmed this reasoning.42 Although it was not a case related with non-EU migrant naturalization, but with an existing EU citizen in danger of losing his citizenship, it stated that the Court should be competent in the judicial revision of nationality decisions by Member States, and that the EU principle of proportionality applies to cases concerning the loss and recovery of nationality. Though it did not reflect a cross-border situation, the Rottmann case 38 In Micheletti the CJEU stated that it was not permissible for the legislation of a MS to restrict the effects of the nationality granted by another MS. Case C-369/90 Micheletti [1992] ECR I-4239. 39 Case C-148/02 Garcia Avello [2003] ECR I-1163. In this case, the refusal of Belgian authorities to change the name of the García Avello children, who were born and were always resident in Belgium and who had Belgian nationality, was unconnected with their freedom of movement (they never have moved from Belgium). However, as they were also Spanish (dual nationality) they ‘could be considered’ nationals of a Member State (Spain) with legal residence in another Member State (Belgium). The complaint was therefore admitted, as they wished to use their family name according to Spanish legislation – having two surnames, the first from the father and the second from the mother – while under Belgian law the children retained only the father’s surname as their last name. 40 In the famous tenth paragraph of Micheletti. Apart from Micheletti and García Avello, the CJEU has continued to declare the status of EU citizenship to be fundamental: Case C-413/99 Baumbast and R. v Secretary of State for the Home Department [2002] ECR I-7091; Case C-184/99 Rudy Grzelczyk v Centre Public d’Aide Sociale d’Ottignies-Louvain-la-Neuve (CPAS) [2001] ECR I-61 and Case C-209/03 R (Dany Bidar) v London Borough of Ealing and Secretary of State for Education and Skills [2005] ECR I-2119. 41 N. Cambien, “Case C-135/08, Janko Rottman v. Freistaat Bayern”, Columbia Journal of European Law 17 (2010–2011), 375; A. Ciuca, “Citizenship between National and International: Discussions on a Case”, The New Review of Human Rights 2010, No. 2, CH Beck Publishing House 2010. Available at: http://ssrn.com/abstract=2089504, last visit 2 March 2013. 42 Paragraph 45 of Rottmann.

30  Cristina  J. Gortázar Rotaeche

fell under EU law ‘by reason of its nature and consequences’.43 Although the CJEU determined that withdrawal of the citizenship obtained by fraudulent naturalization was not against International44 or EU law, it does nevertheless require that the principle of proportionality be observed, and the German court should verify the observance of the principle of proportionality with regard to the consequences brought upon the plaintiff (and family) by the withdrawal of German nationality.45 More specifically, it is necessary to monitor whether the decision is justified in terms of the seriousness of the offense46 and of any possibility the plaintiff may have of regaining citizenship of origin.47 In Davies’ view,48 since Rottmann several aspects of national citizenship now fall within the scope of EU law and come under the authority of the Court of Justice; “the Court has announced that it is now the supreme adjudicator on (at least some aspects of) the acceptable content of national citizenship law. Would it not be unconvincingly scholastic to say that disproportionately taking away Union citizenship rights engages EU law, but disproportionately denying them does not?” This is certainly good food for thought. In short, there are still many open questions hanging over the CJEU’s future work as it sets about rethinking the issue of EU citizenship. But perhaps the most intriguing question is whether the CJEU is starting to erode the discretional power of MS when granting or refusing nationality, by acting as a limitation on Member States’ freedom of legislation on the issue. If the answer were positive, then it would make sense to tackle the question of how the Member States facilitate or not third country nationals’ access to naturalisation. In other words, the Member States may feel somehow threatened by the CJEU’s increasing power to determine 43 Rottmann, para. 42. 44 Article 8 para. 2 of International Convention on the Reduction of Statelessness and Article 7 para. 1 and 3 of the European Convention on Nationality contain provisions relating to the possibility of depriving a person of the citizenship obtained through fraud, even at the risk of becoming stateless. 45 Para 54 of Rottmann states that the national court should follow a test of proportionality “to ascertain whether the withdrawal decision at issue in the main proceedings observes the principle of proportionality so far as concerns the consequences it entails for the situation of the person concerned in the light of European Union law”. 46 Para. 56 of the judgment states: “it is necessary to establish, in particular, whether that loss is justified in relation to the gravity of the offence committed by that person, to the lapse of time between the naturalisation decision and the withdrawal decision and to whether it is possible for that person to recover his original nationality”. 47 Para. 58 of Rottmann, invited the national court to “afford a reasonable period of time in order to try to recover the nationality of his Member State of origin”. 48 G.T. Davies, “The entirely conventional supremacy of Union citizenship and rights”, in J. Shaw (ed.), Has the European Court of Justice challenged Member States sovereignty in nationality law?, EUI working papers RSCAS 2011/62.

Identity, Member States Nationality and EU Citizenship  31

the design of EU citizenship, and start feeling defenseless and disempowered by comparison with their former absolute, discretional competence on nationality. In this case, the Member States would be using their domestic competences regarding nationality to foster ethnicity, whilst using Member States’ nationality legislation to increase or decrease the integration of third country nationals into European society. This is a starting point for a rethink of Member States’ national legislations and their use (or abuse) of certain traditional principles regarding nationality acquisition. The way forward for the CJEU over the coming years is rich in possibilities, and it is not unrealistic to think that after Rottmann, EU law might demand that Member States’ decisions on acquisition (?) and loss of nationality are reasoned through and that the principles of proportionality and, in all likelihood, also fundamental right, need to be respected; and that the review of the CJEU may apply.49 Although some post-Rottman and Ruiz Zambrano sentences may have dampened our initial enthusiasm,50 it makes little sense to conclude that the CJEU has judicial control over Member States’ norms regarding nationality loss via the principle of proportionality, and simultaneously that this very EU principle of law will not control acquisition of nationality. As yet, there is nothing definitive: as Jo Shaw rightly maintains, no CJEU case “represent[s] a final resting place for the Court’s case law on the evolving relationship between EU law and national citizenship, but rather they are just lines in an evolving and always challenging conversation”.51

49 D. Kochenov, “Two Sovereign States vs. a Human Being: CJEU as a Guardian of Arbitrariness in Citizenship Matters”, in J. Shaw (ed.), op. cit., EUI working papers RSCAS 2011/62. 50 Case C-434/09, McCarthy v. Secretary of State for the Home Department (2011) ECR I-0000. Case C-256/11, Dereci and others v. Bundesministerium für Inneres (2012) ECR I-0000 See, Case C-434/09, Shirley McCarthy v. Secretary of State for the Home Department; Case C-256/11, Dereci and others v. Bundesministerium für Inneres, with annotation by N. Nic Shuibhne, Mrkt. L. Rev. 49,1 (2012) 349. 51 J. Shaw, “Concluding remarks: Rottmann in context”, in J. Shaw (ed.), op. cit., EUI working papers RSCAS 2011/62.

The Framing of the Roma as Abnormal EU Citizens Assessing European Politics on Roma Evictions and Expulsions in France Sergio Carrera* The evictions and expulsions of Romanian and Bulgarian Roma nationals by France during the summer of 2010 attracted wide debates across national, European and international spheres. The controversy constituted one of those strange occasions where the highest European Union institutions representa­ tives and those of a government of an influential Member State engaged in turf wars over issues related to the discrimination of EU Roma citizens. Three years have already passed and not much has publicly transpired about the wherea­ bouts and final outputs of the affair. Since the moment when the former French government of Nicolas Sarkozy declared its willingness to follow ‘the ultimatum’ given by the Vice-President of the European Commission Viviene Reding in October 2010 and adapt its national law ‘to the letter’ of the Citizens Directive 2004/38, no further attention and enforcement measures have taken place against France. The case however remains largely unresolved. The French practices on evic­ tions and expulsions of Romanian and Bulgarian nationals of Roma origin have not only continued, but they seem to have increased during 2012 and the first tri­ mester of 2013 under François Hollande’s socialist government. There is a wealth of information provided by civil society organizations illustrating the prolifera­ tion of these malpractices. The uneasy relationship between dismantlement and returns and fundamental human rights has been highlighted by several European and international bodies, and has been also confirmed by recent decisions of the European Committee of Social Rights and the Council of Ministers of the Council

* The author would like to express his gratitude to all the officials who were interviewed for the purposes of this Chapter at the European institutions, in particular the various Departments of DG Justice of the European Commissions, the European Agency for Fundamental Rights (FRA), the Permanent Representation of Romania in Brussels as well as the representatives of civil soci­ ety organizations, in particular the European Network against Racism and Xenophobia (ENAR). This Chapter constitutes a shorter version of a larger report previously published by the Centre for European Policy Studies (CEPS) in Brussels conducted for the purposes of this research project.

34  Sergio Carrera

of Europe, which have held French policies to be in contravention to the European Social Charter. How can we understand the French controversy from the perspective of citizenship of the Union? In which ways has European citizenship contributed to the origins and subsequent developments of the French Roma affair? One of the central elements in this story has been the ways in which the exercise of the ‘free­ dom to move’ (crossing EU internal borders of Member States) have brought Romanian and Bulgarian nationals of Roma origin to the legal status of ‘citizens of the Union’, and therefore opened up a series of supranational freedoms and spheres of protection beyond the Member States’ governments. The locus of responsibility over those citizens exercising free movement holds no longer exclusively in hands of domestic authorities but also of EU institutional instances which have been designed to protect all nationals of EU Member States (indepen­ dently of grounds such as those of nationality and ‘ethnicity’) and secure their fundamental freedoms as citizens of the Union in a non-discriminatory fashion against unlawful interferences or derogations by the nation state. Since the inception of the French affair a key question at stake has been ‘whose responsibility’ are those Romanian and Bulgarian citizens of Roma origins exer­ cising ‘free movement’ to France?’ This chapter argues that the ways in which the controversy has developed since 2010 reveals a set of evolving strategies amongst the EU citizenship institutional actors aimed at ‘shifting responsibilities’ between EU and national realms and the evasion of their duties to protect Romanian and Bulgarian nationals. European Roma politics have moved from highly visible and politicized actions by the European Commission centred on enforcing EU free movement law and European citizenship freedoms against a disobedient Member State, towards the development of an EU framework of national Roma integra­ tion strategies and bilateral cooperation between the Member States concerned with the ‘integration’ and ‘reintegration’ of Roma in their country of origin. This transition in policy priorities has most significantly meant an ‘ethnicisation’ of citizenship of the Union. The imagined ‘ethnicity’ and ‘nomadic lifestyle’ of Roma seems to have taken precedence over their actual nationality and EU citizenship. Integration and reintegration have been framed as the solution to prevent ‘mobile Roma’ from exercising their European citizenship freedoms and being treated as unwanted foreigners and undeserving beggars ‘abusing’ EU rights and citizenship freedoms. The result has been that the onus of responsibility has ended up on the Roma themselves via the prioritization and promotion of Roma integration and reintegration national policies calling for them ‘to be included’ in Member States societies. Integration has been designed as a policy mechanism for passing the buck over the Roma themselves as regards their discrimination and exclusion because of their differences, cultures and nomad ways of life.

The Framing of the Roma as Abnormal EU Citizens  35

Section 1 of this chapter starts by looking at the origins of the 2010 French Roma affair. It outlines the sequence of events which constructed and led to the contro­ versy, and the ways in which the allocation of responsibilities between EU and national governmental instances over ‘whose citizens’ constituted a central com­ ponent since the very first steps of the incident. Section 2 moves towards the state of affairs in 2013 of evictions and expulsions of Romanian and Bulgarian of Roma origin since 2010 in light of information provided by civil society organizations and decisions by human rights bodies. Next, section 3 examines the main lines delineating the various directions that EU responses, in particular those of the European Commission, have taken in relation to France and Roma politics more generally since the end of 2010. It is argued that while the Commission has continued monitoring the practical imple­ mentation by France of the Citizens Directive 2004/38,1 the political priorities have moved towards the EU Framework for National Roma Integration Strategies and the (re)integration of Roma in the Member State’s domestic arenas in various ‘areas of life’. Member States have also developed their own bilateral strategies and cooperation towards this same policy direction. How has this EU ‘policy tran­ sition’ – from free movement towards integration/(re)integration – reshaped the division of responsibilities dilemma between EU and national governments over citizenship of the Union? Section 4 puts in relation the priority given to ‘(re)integration’ policies with the non-discrimination principle by national and EU institutions in the scope of citizenship of the Union. It is argued that the fundamentals of citizenship of the Union have been transformed, by encouraging mobile Roma not to move or leave their country, and those who have moved considering them as ‘nomads’, as abusers of EU citizenship rights, and henceforth ‘not integrated at home’ and not deserving citizenship protection. This insecurity narrative has been used at various official levels to justify policies aimed at ‘moving them back’ (encouraging and/or forcing them to use their freedom of movement back) and develop their national ties through re-integration in their countries of origin. It is concluded that the policy move towards reintegration and integration stands in a difficult relationship with the duty not to discriminate on the basis of 1 See Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the terri­ tory of the member states amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/ EEC and 93/96/EEC, OJ L 158/77, 30 April 2004; see S. Carrera, “What does free movement mean in theory and practice in an enlarged EU?”, European Law Journal, Vol. 11, No. 6, November 2005, pp. 699–721.

36  Sergio Carrera

nationality and ethnicity of the right to leave their own country and settle in another Member State which stands at the foundations of citizenship of the Union. 1. The French 2010 Roma Affair: Origins and Subsequent Developments The affair started on the 30 July 2010, when former French Prime Minister Nicolas Sarkozy delivered a speech at the city of Grenoble in France. The discourse fol­ lowed an episode of rioting after a young man’s death by the police during an armed robbery, and an attack to a police station in another French town by peo­ ple labelled as ‘gens du voyage’ after another man had been killed by police forces because of not stopping in a police road block.2 Sarkozy called for a “war against traffickers and thugs” and a policy reform to improve “the fight against irregular immigration”, and prevent “abuses of the free movement right” and “the uncontrolled establishment of Roma camps”.3 He made reference to the existence of 539 “illegal camps” in French territory during 2010 and announced a plan to dismantle them in a period of three months. The Declaration prepared the grounds for the next steps in the securitization of the Roma, and the public visibility of Romanian Roma deportations, in France.4 The removals of ‘Roma camps’ started in the beginning of August 2010.5 An offi­ cial statement was issued by the former immigration minister, Besson, the 30 August 2010 stating that 128 “illegal settlements” had been closed and 979 Bulgarian and Romanian citizens had been returned since the end of July (828 ‘voluntarily’ return and 151 forced).6 The French authorities claimed that a voluntary and ‘humanitarian’ repatriation was being carried out in return for a compensation of 2 Refer for instance to “Une gendarmerie attaquée à la hache dans le Loir-et-Cher”, 16.7.2010, Le Monde; See also “La nuit a été plus calme à Grenoble, quadrillée par les forces de l’ordre”, 17.7.2010. 3 Refer to http://www.lemonde.fr/politique/article/2011/07/30/ce-que-nicolas-sarkozy-a-fait-du -discours-de-grenoble_1553877_823448.html. 4 H. Barbulescu (2012), “Constructing the Roma People as a Societal Threat: The Roma Expulsions in France”, European Journal of Science and Theology, June, Vol. 8, Supplement 1, pp. 279–289. See also O. Parker (2012), “Roma and the Politics of EU Citizenship in France: Everyday Security and Resistance”, Journal of Common Market Studies, Vol. 50, no. 3, pp. 475–491. On the ways in which the Romanian Roma expulsions became a new symbol in French policies see S. Bertossi, (2010) France and Deporting the Roma: How did we get there?, ARI 146/2010, Madrid: Real Instituto Elcano. 5 See http://www.bbc.co.uk/news/world-europe-10892669 and http://www.bbc.co.uk/news/world -europe-10955717. 6 Ministre de l’Immigration, de l’intégration, de l’identité nationale et du développement dolidaire, E. Besson, a propos de l’evacuation des campements illicites, 30 August 2010. See also 27 August 2010, Press Release by French Minister Eric Besson explaining the measures taken by the French authorities and their compatibility with EU law.

The Framing of the Roma as Abnormal EU Citizens  37

€300 per adult and €100 per child.7 Also, in order to prevent Roma from coming back to France, the recipients of this compensation were requested to sign a form and their fingerprints were taken, not to be given this money a second time shall they return to France. Sarkozy’s announcements encountered heated reactions from various national and supranational instances, including those at the highest EU institutional levels.8 The European Parliament was amongst the first EU institutional actors firmly condemning the French policy. It adopted a Resolution of September 2010 ‘on the expulsion of Roma from France’, calling France to immediately suspend the expulsions.9 The Resolution acknowledged that deportations had been taken place in a context of public statements by French government leaders suggesting linkages between Roma and criminality,10 considering Roma groups as a commu­ nity constituting a threat to public order and safety and as ‘a burden on the social assistance system’. It also underlined that the measures where against EU law due to their discriminatory nature on the bases of race and ethnicity. The EP criticized the late and limited response by the European Commission as guardian of the Treaties, most notable in verifying the consistency of the French measures with the EU directives on non-discrimination and freedom of movement.11 The compatibility of the French measures with EU law became indeed a specific issue of concern for the European Commission, in particular the then newly established Directorate General for Justice, Citizenship and Fundamental Rights led by Vice-President Viviene Reding. A Joint Information Note on ‘The Situation of Roma in France and in Europe’ issued on the 1 September 2010, by Reding and Commissioners Laszlo Andor and Cecilia Malsmtröm, to the College of Commissioners addressed the legality of the practices from an EU law view­ point. The Joint Information Note underlined that France would be in violation of EU law if the measures had targeted a certain group on the basis of nationality, 7 On the ways in which France has developed since 2007 a complex procedure of ‘humanitarian’ returns which involves the granting of a financial retribution and its human rights implications see C. Cahn & E. Guild (2008), Recent Migration of Roma in Europe, Study commissioned by the OSCE High Commissioner on National Minorities and the Council of Europe Commissioner for Human Rights, 10 December 2008, pp. 47–48. 8 Refer to http://www.guardian.co.uk/world/2010/aug/24/france-roma-expulsions-backlash. 9 European Parliament, Motion for a Resolution on the expulsion of Roma from France, 0312/2010, 9.9.2010. 10 The Resolution stated in Paragraph 5 “Is deeply concerned, in particular, at the inflammatory and openly discriminatory rhetoric that has characterised political discourse during the repatria­ tions of Roma, lending credibility to racist statements and the actions of extreme right-wing groups;”. 11  Paragraphs 11 and 12 of the Resolution.

38  Sergio Carrera

race or ethnic origin. During a closed-doors high-level meeting with former French ministers Eric Besson and Pierre Lellouche, Commissioners Reding and Malmström received political assurances that specific ethnic groups had not been targeted by the French policies. However, these assurances were directly contradicted with the release of a gov­ ernmental document leaked to the media by le Canard Social the 9 September 201012 where the French Ministry of Interior was calling the préfet (state represen­ tatives in departments/regions) to give priority to the ‘campements illicites des Roms’ as the primary objective of the evictions and expulsions policy.13 Following the disclosure of this document, a new Circular was released the 13 September 2010 by the French Minister of Interior deleting any express reference to Roma.14 This came along with a controversial statement by the French Secretary of State for European Affairs, Pierre Lellouche, who said that, the only “Guardian of the Treaties is the French People”.15 It did not take long for the Commission to react. In a speech delivered on the latest developments on the Roma situation the 14 September 2010,16 VicePresident Reding qualified the situation in France as a “disgrace” and as “deeply disturbing” and added “…people are being removed from a Member State of the European Union just because they belong to a certain ethnic minority. This is a situation I had thought Europe would not have to witness again after the Second World War. But I make it very clear my patience is wearing thin: enough is enough. No Member State can expect special treatment, especially not when fundamental values and European laws are at stake. This applies today to France. This applies equally to all other 12 See http://www.lecanardsocial.com/ArticleFil.aspx?i=182. 13 The Circulaire IOC/K/1016329/ J du 24 juin 2010 of the Ministry of Interior titled ‘Evacuation des Campements Illicits’, issued the 5 August 2010, acknowledged the objective set by the President of the Republic the 28 July 2010 to evict ‘illicit camps’ or ‘campements illicites’ at 300 illicit camps or establishments in a period of three months, “en priorité ceux des Roms”. It was said that “Il revient donc, dans chaque departement, aux préfets d’engager, sur la base de l’état de situation des 21 et 23 juillet, une démarche systématique de démantèlement des camps illicites, en priorité ceux de Rome…Par ailleurs, il convient évidemment d’empêcher l’installation de nouveaux campements illicites des Roms”. This was accompanied by a Télégramme 30 juillet 2010 which stated that “…, je vous remercie de veiller a m’informer préalablement (au minimum 48 heures auparavant) de toute opération d’évacuation revêtant un caractère d’envergure, ou susceptible de donner lieu a un écho médiatique.” 14 http://www.lefigaro.fr/assets/pdf/circulaire-hortefeux.pdf. 15 http://www.google.com/hostednews/afp/article/ALeqM5jIvlxEBvmuOKyQ49CTY1WZvkQS Vw. 16 Viviane Reding, Vice-President of the European Commission responsible for Justice, Funda­ mental Rights and Citizenship Statement on the latest developments on the Roma situation Brussels, 14 September 2010 Midday a briefing in Press Room, Speech/10/428, 14.9.2010. http:// www.youtube.com/watch?v=4eecgXi_D3M.

The Framing of the Roma as Abnormal EU Citizens  39 Member States, big or small, which would be in a similar situation. You can count on me for that.” (Emphasis added).

Reding confirmed to be firmly convinced about the necessity to start infringe­ ment proceedings against France for a discriminatory application of the Citizens 2004/38 Directive and the lack of transposition of its procedural and substantive guarantees in cases of expulsions of EU citizens.17 The Vice-President asked the French authorities for immediate and swift explanation of the matter. The impact of Reding’s speech was noticeable during the one-day European Council summit of 16 September 2010 in Brussels which was originally envisaged to be dedicated to discussing the Union’s external relations with strategic part­ ners. The Roma controversy took over the debates. It was reported that Sarkozy accused the Commission of insulting France,18 considering Reding’s words as ‘outrageous’ and embarrassing, and alluding at the impact that her comments had displayed over at international and national levels,19 with the issue being the subject of all discussions in France, in streets and synagogues. Sarkozy said that “Je suis seulement venu parce qu’elle (Mme Reding) s’est excusée, après avoir dit a Barroso que je ne viendrais pas si elle ne s’excusait pas”. It appears that Barroso did not agree in apologizing for Reding’s words and that “The loud noises from the French president that came in response to Barroso’s attack were audible from the corridor”. Sarkozy confirmed that France would continue dismantling and returning these people.20 The Commission decided on 29 September 2010 to issue a letter of formal notice to France requesting the full transposition of the Citizens Directive 2004/38, and stated that unless draft transposition measures and a detailed trans­ position schedule would be provided by the French authorities by 15 October 2010, infringement proceedings would be opened.21 It was reported that right before mid-night (15–16 October 2010) France reported to the Commission its intention to align its national legislation with EU law on free movement of 17 See also her declarations to the BBC at http://www.bbc.co.uk/news/world-europe-11437361. 18 http://www.euractiv.com/future-eu/summit-sees-sarkozy-barroso-clas-news-497878. See also http://www.euractiv.com/future-eu/eus-reding-loses-patience-france-news-497770. 19 http://www.economist.com/node/17103993 see also http://www.liberation.fr/societe/01012289849 -l-onu-juge-la-politique-francaise-avec-les-roms-preoccupante. 20 http://www.nytimes.com/2010/09/17/world/europe/17union.html?_r=0. 21 29 September 2010 – Press Release, European Commission assesses recent developments in France, discusses overall situation of the Roma and EU law on free movement of EU citizens. In the meantime, on the 7 October 2010 another issue reached the media attention, the publica­ tion of a database by French gendarmerie covering Roma http://www.lemonde.fr/politique/ article/2010/10/08/le-gouvernement-embarrasse-apres-la-revelation-d-un-fichier-illegal-sur-les -roms_1422196_823448.html and http://libertes.blog.lemonde.fr/2010/10/07/le-fichier-des-roms -du-ministere-de-linterieur/.

40  Sergio Carrera

persons.22 “I think this is a positive move: France has answered our ultimatum”, Reding told French news agency AFP. An official Press Release was issued the 19 October 2010 by the Commission where Reding addressed the recent develop­ ments concerning the respect for EU law as regards the situation of Roma in France.23 The Commission concluded that “France has thus done what the Commission had asked for” and therefore the decision was taken not to pursue the infringe­ ment procedure against France decided by the College of Commissioners the 29 September 2010. The Press Release however stated that “The European Commission will closely watch over the full implementation of the commitments made by France, in the interest of EU law and EU citizens.” Reding also announced the Commission’s intention to instead focus on the economic and social integration of Roma, exam­ ining how EU funds could help to further strengthen national measures for Roma integration and the presentation of an EU Framework for national Roma strategies by April 2011. The Commission still explained that while the dimension on substantive and procedural guarantees was covered by the French letter, there was still another one open, that of discrimination. Reding insisted in France 24 “que le dossier de la discrimination ‘n’[était] pas clos’ et avait réfuté l’idée d’un ‘compromis’”,24 and that while the Commission had clear evidence of the non-application or incorrect practice of the Citizens Directive, it had no objec­ tive, material and concrete evidence in what concerns the discrimination dimen­ sion “and we will request more information about this issue” from France. Sarkozy declared to be “très heureux”25 and that “la raison ait triomphé”.26 On 3 November 2010 Eric Besson said before the French National Assembly that in 2009 the ‘voluntary returns’ for Romanians and Bulgarians in irregular situation had meant the expenditure of 8,2 million Euros, engaged a total of 11,000 benefi­ ciaries, had involved a further 7,5 million Euros as ‘aid to humanitarian return’, 22 The Press Release stated that following the Commission request, the French authorities had sub­ mitted detailed documentation, including draft legislative measures and a credible calendar for putting these procedural safeguards required by the Citizens Directive into French national law by early 2011. 23 Statement by Viviane Reding, Vice-President of the European Commission, EU Commissioner for Justice, Fundamental Rights and Citizenship, on the recent developments concerning the respect for EU law as regards the situation of Roma in France, MEMO/10/502, Brussels, 19 October 2010. 24 h ttp://www.france24.com/fr/20100929-commission-europeenne-menage-france-dossier -roms-procedure-infraction-transposition-directive-discrimination. 25 http://www.france24.com/fr/20101019-procedure-infraction-france-commission-europeenne -machine-arriere-garanties-suffisantes-roms-expulsions See also http://www.euractiv.com/ enlargement/french-expulsions-aimed-romanian-news-499461. 26 http://www.france24.com/fr/20101019-procedure-infraction-france-commission-europeenne -machine-arriere-garanties-suffisantes-roms-expulsions.

The Framing of the Roma as Abnormal EU Citizens  41

and 0,7 million Euros for assisting in re-integration’.27 Interestingly, he empha­ sized that during 2010 there had not been a real rupture with the kind of policy implemented, but rather an acceleration of the expulsion of ‘nomad Romanians’ in irregular situations during August and September. Besson also clarified that France had accepted the Commission’s request, but that in his view, the main issue concerned the non-transposition of a number of formalistic elements envis­ aged in the 2004 Directive into French national law, which France replied with a well founded legal response. He stated that “we did not need to do it because our general principles of law already required [the remedies], such as for example, the individual treatment of cases”. But in order to show that the French government was “willing to establish a harmonious relationship with the Commission”, he said that they had accepted to ‘faire un geste’ and formally transposed into French leg­ islation a number of elements which were already there. What has happened since the end of 2010 as regards evictions and expulsion practices by France (Section 2) and the follow up responses by the Commission and the EU Member States involved (Section 3)? 2. The State of Roma Evictions and Expulsions France 2010–2013 The contributions by civil society organisations have been rich and substantive in following up and monitoring the nature and human rights effects of evictions and returns. While official statistical data on the state of evictions and expulsions in France is largely lacking, reports from non-governmental organisations have brought new light on the scope and latest developments of evictions and returns under the government of François Hollande since May 2012. According to the European Association for the Defence of Human Rights (AEDH), despite the orig­ inal opening discourses and political promises, the current socialist government has developed a policy “as destructive and negative as the precedent one”. Estimates provided by the AEDH for the year 2012 and first semester of 2013 evictions of Romanian and Bulgarian nationals of Roma origin have not only continued dur­ ing 2012 and 2103, but they have progressively increased.28 11,803 persons were obliged to leave their place of living, out of which 80% following a forced eviction, 11% were returned by the OFII and 9% had to leave their homes following fire, flooding or attacks by neighbours in 2012. During the 27 Eric Besson, French National Assembly, Thirteenth Legislature, Regular Session of 2010–2011, Verbatim Report, Session of Wednesday http://www.assemblee-nationale.fr/13/cri/2010-2011/ 20110039.asp#INTER_13. 28 Refer to http://www.aedh.eu/2013-First-quarter-Census-of.html See also http://www.aedh .eu/?lang=en.

42  Sergio Carrera

same period, there have been 1,728 ‘Obligations de Quitter le Territoire Français’ (OQTF), which may in fact be an under estimation because the OQTF appear not to be regularly reported by the French authorities. Moreover, during the first semester of 2013, 4,152 persons were obliged to leave their homes, out of which 2,873 followed a forced eviction, 272 were returned by the OFII and 1,007 had leave their home following fire or attack.29 A Joint Press Release was issued on the 9 April 2013 by the AEDH and the French League for Human Rights (LDH) con­ demning this situation,30 and emphasized how this proves not only a complete absence of change in the French policy but also its reinforcement.31 A similar picture has been provided by the European Roman Rights Centre (ERRC),32 which confirmed that the French eviction policy of Roma has been systematic during 2011 and 2012.33 In what concerns expulsions, the ERRC under­ lined how during 2011 the French authorities did not release any official figures. Yet, according to data provided by a document sent by the Minister of Interior to the ERRC on 19 November 2012, almost 2700 expulsion orders were issued to Romanians and 340 to Bulgarians in the first three months of 2012. In 2011, more than 7400 Romanians received an expulsion order and 1250 Bulgarians. The ERRC pointed out the ways in which Romani settlements continue being dismantled under Hollande’s government “and others expelled in the same summary and illegal fashion as under his predecessor Nicolas Sarkozy”.34 Amnesty International (AI) has also been vocal on the continuation of the French policy on Roma evictions. In its Report ‘Chased Away: Forced Evictions of Roma in Ile-de-France’ of November 2012,35 AI documented the ways in which many Roma families living informal settlements find themselves homeless after an eviction, as there is no alternative accommodation offered, and how forced evictions exacerbate the extremely poor living conditions of these people. 29 As the report by Amnesty International stated “While the NGO-compiled figures regarding the number of forced evictions that took place in 2011–2012 have not been independently verified by Amnesty International, and cannot be comprehensive insofar as they are only made up of evic­ tions reported by media or local associations and support groups, they are strongly indicative of the prevalence and regularity of evictions of Roma communities from informal settlements.” 30 http://www.aedh.eu/Census-of-forced-evictions-from,1908.html. 31 h ttp://www.lemonde.fr/societe/article/2013/02/06/pres-de-12-000-roms-evacues-de-leurs -campements-en-2012_1828037_3224.html. 32 http://www.errc.org/index. 33 According to ERRC research and monitoring activities in collaboration with local organisations, the eviction policy in 2011 against Roma in France has been systematic. In 2011, the ERRC recorded at least 80 forced evictions involving around 8000 Romani people. Between January and April 2012, the ERRC registered at least 15 forced evictions involving around 2400 individuals. 34 http://euobserver.com/opinion/117366. 35 Amnesty International (2012, Chased away: Forced evictions of Roma in Ille-de-France, London: Amnesty International.

The Framing of the Roma as Abnormal EU Citizens  43

Interestingly, the Report was followed by the publication of a Press Release by the French Minister of Interior, Manuel Valls, published on 12 March 2013, offering a number of ‘precisions’ in light of Amnesty’s work in what concerns the conditions under which the evictions from ‘illicit camps’ are taking place.36 It also under­ lined the Government’s disagreement with AI report, in particular in what con­ cerns the argument that these principles of action are incompatible with the provision of adequate alternative accommodation. Furthermore, Valls expressed his regret at material mistakes in AI report, in particular as regards the descrip­ tion of certain evacuation operations.37 The information and concerns raised by civil society organisations have none­ theless been confirmed by several decisions by the European Committee of Social Rights of the Council of Europe following collective complaints against France, which is the body monitoring Member States compliance with the European Social Charter (ESC).38 The question was the extent to which the French prac­ tices were in compliance with the ESC, and the Committee based itself on the wealth of information provided by some of the above-mentioned NGOs.39 These demonstrated how the French dismantlement and return decisions were not founded on an individual examination of the personal circumstances of the peo­ ple involved, did not respect the proportionality principle and were discrimina­ tory in nature since they targeted ‘the Roma community’.40 The Committee 36 http://www.immigration.interieur.gouv.fr/Info-ressources/Actualites/Communiques/Rapport -d-Amnesty-International The Press Release stated that “The expulsions have been implemented under two main principles. First of all, and it is the rule under a rule of law system, that of the application of judicial decisions requesting the expulsion of occupied land illegally. The expul­ sions have also taken place in order to ensure the security of the persons living in the camps. The conditions of live can be particularly dangerous and represent a threat to public security and public health, especially for minors.” 37 According to the Press Release, it is necessary to remind that the préfets implement the interministerial circular respecting all its provisions, especially in what concerns the diagnosis of the sanitary and social circumstances surrounding an eviction, and the search for solutions of alter­ native accommodation, and alluded to the situation were the dispositifs d’urgence are saturated, and in other occasions the persons refuse alternative accommodation. 38 http://www.coe.int/t/dghl/monitoring/socialcharter/ECSR/ECSRdefault_en.asp The Committee is a body entrusted with the competence to decide whether there has been a violation of the Charter. Its views are not legally binding on States, however they constituted ‘authoritative inter­ pretation’ of treaty obligations which are binding upon Member States. 39 Reference was here made to Collectif National Droits de l’Homme Romeurope (2012), Rapport 2010–2011, Les Roms, boucs-émissaires d’une politique sécuritaire qui cible les migrants et les pauvres, February 2012, pp. 17–18. 40 Centre on Housing Rights and Evictions (COHRE) v. France (Complaint No. 63/2010, decision on the merits of 28 June 2011, §§35–55) and European Roma and Travellers Forum (ERTF) v. France (Complaint No. 64/2011, decision on the merits of 24 January 2012, §§126–135. European Roma Rights Centre (ERRC) v. Bulgaria, Complaint No. 31/2005, decision on the merits of 18 October 2006, § 53.

44  Sergio Carrera

declared the French evictions policy to be in contradiction with the ESC, in particular in what concerns the human dignity of the Roma of Romanian and Bulgarian origin concerned.41 The Committee of Ministers followed up the Committee’s Decisions address­ ing specific recommendations to the French government which had been found non-compliant with the ESC Decisions.42 In its Resolution CM/ResChS(2013) 1 European Roma and Travellers Forum (ERTF) v France, Complaint No. 64/2011 of 5 February 2013, the Committee of Ministers concluded that “The operations carried out during the period concerned by this complaint nonetheless had the same characteristics as those that took place in the earlier period” in France. The viola­ tion of the proportionality principle was based on “the burden of coverage of the persons concerned by the social assistance system would have to be excessive, or even unreasonable, for an expulsion measure to be necessary, so as to relieve the State of this burden.”, which was deemed was not the case. It therefore concluded that the French policies continued to constitute indirect discrimination and had a dispro­ portionate impact on the Roma, in particular those originating from Romania and Bulgaria. The Committee added that the conditions in which the forced evic­ tions of Roma camp sites take place were inconsistent with human dignity and constituted a violation of the ESC.43 3. Assessing the European Commission and Member States’ Responses Returning to the end of 2010, as has been explained in Section 1 above, after the turf wars between the Commission and the French Government, France expressed its agreement to comply with the request by Vice-President Reding to align its national legislation to the guarantees envisaged by the Citizens Directive 41 It stated that “… with regard to their expulsions from sites where they have settled illegally, the situation of migrant Roma has not improved since its finding of a violation of Article 31.2… It therefore considers that the violation of Article E read in conjunction of Article 31.2 persists”. (Paragraph 81) Reference was made here to Commission Nationale Consultative des Droits de l’Homme (2012), Avis sur le respect des droits des ‘gens du voyage’ et de Roms migrants au regard de réponses récentes de la France aux instances internationales, 22 mars 2012, &54–55; Collectif National Droit de l’Homme Romeurope (2012), Rapport 2010–2011, février 2012, pp. 17–18; Observatoire régional de santé d’Ile-de-France (2012), Situation sanitaire et sociale des ‘Roms migrants’ en d’Ile-de-France, janvier 2012, p. 27. 42 Khaliq & Churchill (2008), “The European Committee of Social Rights”, in Langford (ed.), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, New York: Cambridge University Press; see also; A. Nolan (2012), “‘Aggravated Violations’: Roma Housing Rights and Forced Evictions in Italy: Recent Developments under the European Social Charter Collective Complaints System”, Human Rights Law Review, 11:2, pp. 343–361. 43 In particular, Article E in conjunction with Article 31§2 ESC.

The Framing of the Roma as Abnormal EU Citizens  45

2004/38 in all cases of expulsions of EU nationals. What have been the main European Commission and Member States’ responses since then? Two main lines of action can be broadly identified: First, the enforcement of EU free movement and non-discrimination legislation; and second, the integration and reintegration of Roma in the EU Framework of Member States’ national strategies and bilateral cooperation between France and Romania. It is argued that there has been a fundamental transition in the EU’s political priorities from an enforcementdriven logic focused on ensuring French compliance with EU citizenship and non-discrimination law, towards one emphasizing the integration and inclusion of Roma. What has this policy move actually meant from the perspective of the shifting of responsibilities over Romanian and Bulgarian citizens and more gener­ ally European Roma politics? 3.1. EU Free Movement Law Since the presentation by the French government of the roadmap for ensuring compliance with the Citizens Directive 2004/38 at the end of 2010, the Commission reiterated in several occasions its intention to remain vigilant as regards the actual implementation of the legislative reform aligning French law with free movement legislation. The decision was formally taken since that moment however not to formally launch infringement proceedings before the Court of Justice of the European Union (CJEU) in Luxembourg against France for an alleged violation of citizenship of the union free movement rights and freedoms. In a Press Release issued on 2 August 2011 on ‘Free movement: Determined Commission action has helped resolve 90% of open free movement cases’,44 the Commission underlined how during 2010 several events had signalled important deficits with respect of procedural and substantive guarantees under the Citizens Directive in Member States such as France. It was also said that the Commission had taken action to ensure that “all 27 Member States” comply with EU’s free movement rights.45 The Commission emphasized that it would follow up closely how those Member States which had announced the adoption of new implementing legislation would deliver their commitments and would evaluate the application of the Directive. The implementation of the substantive and procedural safeguards against expulsions was still signalled as one of the most 44 http://europa.eu/rapid/press-release_IP-11-981_en.htm. 45 The Press Release was rather self-congratulatory when saying that thanks to “political pressure” the Commission had achieved “concrete results” and “16 Member States have either fully addressed the Commission’s concerns or have drafted amending legislation to ensure full compliance with the Directive. For the remaining Member States, the Commission has started or is considering infringement proceedings under the EU Treaties.”

46  Sergio Carrera

problematic issues of incomplete or incorrect transposition and implementation. The results of this exercise will appear in an upcoming Report to be published on the application of the Free Movement Directive to be submitted to the European Parliament and the Council, which was originally envisaged for the end of 2013 and has now been moved to 2014.46 In an interview published by Le Monde in September 2012 Vice-President Reding stated that since the end of 2010 France has adopted legislation to reinforce the procedural guarantees in cases of expulsion in line with European standards.47 She also underlined that the evictions were “to her knowledge” conse­ quent to a judicial decision, that the individuals concerned are properly informed and the evictions are not collective. She highlighted that the policy focus was rather now in the integration of these people and the implementation of the French national integration strategy of Roma. The responses by the Commission to the French policy and practices since the end of 2010 have been subject to several criticisms. The academic literature has expressed concerns that despite a brief war of words at the origins of the affair, no concrete enforcement measures were commenced by the Commission, nor was the case referred to the CJEU despite the clear legal questions raised by the French practices and sound evidence showing their incompatibility with an especially important area of EU law.48 Several scholarly contributions have already compre­ hensively addressed the legality of the French evictions and expulsions in light of EU law.49 The question whether the French practices are in accordance with EU law remains however not a straightforward one. 46 Moreover the Press Release stated that “on 25 August 2010, Vice-President Reding said of the situation of the free movement rights of EU citizens: It is clear that those who break the law need to face the consequences. It is equally clear that nobody should face expulsion just for being Roma.” And continued “In the French case, the government adopted the legislative amendments required by the Commission to ensure compliance with the Free Movement Directive on 16 June, including the safeguards that protect EU citizens against arbitrary expulsions or discriminatory treatment.” (Emphasis added). 47 http://www.lemonde.fr/europe/article/2012/09/01/viviane-reding-meme-en-crise-l-europe-n -est-pas-qu-un-marche_1754411_3214.html. 48 See H. O’Nions (2011), “Roma explusions and discrimination: The elephant in Brussels”, European Journal of Migration and Law, Vol. 13, pp. 361–388. Refer also to Q. Bennett (2011), “Please don’t be our guest: The Roma expulsion from France under European Union law”, Journal of International and Contemporary Law, Vol. 40, pp. 219–245. 49 Lhernoud, “L’eloignement des Roms et la Directive 2004/38 relative au droit de sejour des citoy­ ens de l’UE”, 11, Droit Sociale, 2010, pp. 1024–1036. See also A.M. Korando (2012), “Roma go home: The plight of European Roma”, Law and Indequality, Vol. 30, pp. 125–147; E. Diana (2011–2012), “Expulsion of the Roma: Is France violating EU freedom of movement and playing by French rules or can it proceed with collective Roma expulsions free of charge?”, Brooklyn Journal of International Law, Vol. 37649–682; C.J. Chido (2011), “Peril of Movement: Migrating Roma risks

The Framing of the Roma as Abnormal EU Citizens  47

Indeed, as a majority of EU officials interviewed for the purposes of this chapter reiterated, the EU citizenship right of freedom of movement is not abso­ lute or unconditional in nature. It is indeed a ‘privilege’ largely reserved to those who have ‘sufficient resources’ not to become a ‘disproportionate burden’ for the receiving Member States where they move. True, any exception to EU citizenship freedoms must be interpreted strictly and any restrictive measures must be taken in a non-discriminatory manner and on a case-by-case basis where the personal conduct of the individual “represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the host Member State”.50 However, there are still many nuances as regards the ways in which these are practiced at national levels. As O’Nions (2011) has pointed out, it is for instance not entirely clear the extent to which an EU citizen no longer respecting the residency conditions can be expelled legally. She has argued that “The principles seem clear but the absence of specific clarity on the question of expulsion outside Article 27 (Citizens Directive) remains a deficiency. It has enabled Member States to rely on a grey area to justify expulsions without formally demonstrating a specific threat. In France the offer of payment was used to suggest that the departures were voluntary…”51 The situation in France is one where the letter of the national law (Law No. 2011–672 on Immigration, Integration and Nationality of 17 June 2011)52 might be formally in line with the Citizens Directive 2004/38, but what is actually at stake are the administrative practices implementing it on a daily basis by the relevant competent (regional and local) authorities. According to a briefing analysis car­ ried out by Human Rights Watch (HRW) submitted to the European Commission in July 2011, the French law and practice continued violating its obligations under EU law and the newly enacted national legislation intended to align French law with the Citizens Directive 2004/38 did not solve the concerns that led the Commission to intervene in summer 2010.53 HRW specifically signalled that “the expulsion as EU member states test the limits of the free movement directive”, Journal of International and Comparative Law, Vol. 20, pp. 233–254. 50 European Commission, Communication on Guidance for better Transposition and Application of Directive 2004/38, COM52009)313/4 final, 2.7.2009; refer also to European Commission, on the application of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, Report, COM(2008) 840 final, 10.12.2008. Also, no restrictive measures can be taken on merely preventive grounds. Court of Justice of the European Union, Case C-67/74 Bonsignore, paragraphs 5–7. 51 Page 371. 52 Loi n° 2011–672 du 16 juin 2011 relative à l’immigration, à l’intégration et à la nationalité, JORF n°0139 du 17 juin 2011, p. 10290. See in particular Article 39. 53 Human Rights Watch (2011), France compliance with the European Free Movement Directive and the Removal of Ethnic Roma EU Citizens, A Briefing Paper submitted to the European Commission, July 2011, 28 September 2011, retrievable from www.hrw.org.

48  Sergio Carrera

French authorities have continued to target Roma EU citizens for removal, often in conjunction with camp or squat evictions, in a way that amounts to unlawful discrimination under EU and human rights law”.54 A key question therefore remains as to the extent to which the formal adoption of a new law by France has actually changed the administrative and law enforcement practices as regards evictions and expulsions of Romanian and Bulgarian Roma. 3.2. Also, Are Romanian and Bulgarian Nationals of Roma Origins Those Mainly and Disproportionally Targeted by the Current French Policy on Evictions and Returns? The political priorities of the European Commission have gradually moved since the beginning of 2011 towards the ‘integration’, ‘reintegration’ or ‘(re)inclusion’ of Roma. A policy move has taken place away from the enforcement of EU citizenship (free movement and non-discrimination) laws and towards the integration of Roma through soft-policy coordination mechanism of Member States inclusion policies. As explained in Section 1 above, in concluding the political controversy with France over the Roma affair, Vice-President Reding was clear when announcing that the Commission’s intention was instead to centre the focus on the economic and social integration of Roma and the presentation of an EU Framework for national Roma strategies. The policy transition, as framed by the Commission, was confirmed in the Commission 2012 Report on the Imple­ mentation of the EU Charter of Fundamental Rights published in May 2013,55 which stated that the situation about “developments in France” has changed con­ siderably in the last years with France modifying its law to guarantee full compli­ ance with the free movement directive and adopting its national Roma integration strategy. On the basis of this strategy, the Report acknowledged, “close coopera­ tion and enhanced efforts on Roma inclusion is taking place with the active par­ ticipation of France.” The EU Framework for National Roma Integration Strategies up to 2020 was formally adopted by the Commission in a Communication published in April 2011.56 The Framework Communication aims at tackling the societal and economic challenges faced by ‘EU’s Roma population’. According to the Communi­cation, “it is a means to complement and reinforce the EU’s equality legislation and policies by addressing, at national, regional and local level, but also through dialogue with and participation of the Roma, the specific needs of 54 Ibid. 55 European Commission (2013), 2012 Report on the Application of the EU Charter of Fundamental Rights, COM(2013) 271 final, Brussels, 8.5.2013, p. 8. 56 European Commission, Communication (2011), An EU Framework for National Roma Integration Strategies up to 2020, COM(2011)173 final, 5.4.2011.

The Framing of the Roma as Abnormal EU Citizens  49

Roma” regarding the following four key focus areas: equal access to employment, education, housing and healthcare.57 ‘Integration’ has been placed at the heart of the policy priorities. The Framework Communication declares that “To achieve significant progress towards Roma integration, it is now crucial to step up a gear and ensure that national, regional and local integration policies focus on Roma in a clear and specific way, and address the needs of Roma with explicit measures to prevent and compensate for disadvantages they face.” The Commission proposed the design and adoption of ‘national Roma integration strategies’, which should include clear goals and (common, comparable and reliable) indicators, targeted actions and a special focus on the allocation of sufficient funding to put them into practice in line with the ‘Common Basic Principles on Roma Inclusion’.58 EU funding has been therefore placed at the heart of these actions.59 The Framework Communication was followed by Council Conclusions where Member States committed themselves to put it into practice.60 After the presen­ tation by all Member States of their respective national integration strategies,61 the Commission published another Communication titled ‘National Roma Integration Strategies: A first step in the implementation of the EU Framework’ in May 2012.62 The Communication focused on evaluating Member States approaches and how structural requirements and funding were addressed in their national strategies. It acknowledged that “Better integration of Roma is therefore both a moral and an economic imperative, which moreover will require a change of mindsets of the majority of the people as well as of members of the Roma 57 Page 3 of the Communication. 58 The principles were adopted by the Council Conclusions on the Inclusion of the Roma, 2947th Employment, Social Policy, Health and Consumers Affairs Council Meeting, Luxembourg, 9 June 2009, Annex. 59 The Framework Communication stated that “The implementation and success of national Roma integration strategies will very much depend on an effective and sufficient allocation of national resources. EU funding alone can certainly not solve the situation of Roma, but the Commission recalls that up to € 26.5 billion of EU funding is currently programmed to support Member States’ efforts in the field of social inclusion, including to support efforts to help the Roma”, p. 9. 60  The European Council Conclusions called for the rapid implementation of the Council Conclusions of 19 May 2011 on the EU framework for national Roma integration strategies up to 2020, “as regards the preparation, updating or development of Member States’ national Roma inclusion strategies, or integrated sets of policy measures within their broader social inclusion policies for improving the situation of the Roma, by the end of 2011”. European Council Conclusions, 23/24 June 2011, EUCO 23/11, Brussels, 24 June 2011. 61  These are available at http://ec.europa.eu/justice/discrimination/roma/national-strategies/ index_en.htm see also the factsheets by Member State at http://ec.europa.eu/justice/newsroom/ discrimination/news/120523_en.htm. 62 European Commission (2012), National Roma Integration Strategies: A first step in the implementation of the EU Framework, COM(2012) 226 final, Brussels, 21.5.2012.

50  Sergio Carrera

communities.”63 The Communication also recalled that it is Member States having “the primary responsibility and competences to change the situation of marginalized populations, so action to support Roma lies first and foremost in their hands”. The text clarified a bit further the objectives of the EU Framework when saying that its aim is “to support” Member States in making a “tangible difference to Roma people’s lives” in promoting change in their inclusion policy approaches. In the words of the Commission “legislation alone is not enough; Member States need to develop and implement an integrated and sustainable approach that combines efforts in different areas, including education, employment, health and housing”.64 The Communication identified as the upcoming priorities more efforts focused on effective implementation of the national strategies and actions plans, “with specific measures commensurate with Roma inclusion targets, supported by a clear timetable and appropriate funding”. The Communication included a section on anti-discrimination and protection of fundamental rights, which broadly called Member States to ensure that anti-discrimination legislation is effectively enforced in their territories and announced that the Commission will address legal issues with a particular emphasis on those aspects relevant to Roma integra­ tion in its reporting of the EU’s Race Equality Directive foreseen before the end of 2013.65 Yet, it is not clear the ways in which the Commission’s follow up will be made and no concrete examples were provided as to how Member States have effec­ tively addressed and implemented them in the ground. Moreover, discrimination issues of mobile EU Roma citizens are not part of the national strategies and the reporting actions by Member States. The Framework does not cover EU citizens of Roma origin exercising the freedom to move between EU Member States. Civil society organisations have been also critical about the limits of the EU Framework. The ERRC has pointed out the lack of clear targets, its non-binding nature for Member States and effective monitoring (and reporting requirements) in their implementation and, perhaps more worryingly, the lack of concrete steps to address Roma discrimination.66 This has been the case in relation to the French National integration Strategy which was prepared without the involve­ ment of civil society organisations, and it does not cover the discrimination and

63 Ibid., p. 2. 64 Ibid., p. 3. 65 Page 18. 66 http://euobserver.com/opinion/117366 The ERRC has also stated “The result is a strategy that cannot fail because its outcomes cannot be measured. But it is doomed to failure for the very same reason.”

The Framing of the Roma as Abnormal EU Citizens  51

fundamental rights challenges inherent to the situation of Roma and EU citizens of Roma origin exercising their free movement rights.67 The Commission is also encouraging Member States to develop transnational cooperation through bilateral arrangements. The social integration and/or inclu­ sion focus of the EU Framework has been for example developed by a bilateral initiative between France and Romania which covers issues related to ‘mobile EU Roma citizens’. These two countries have concluded a bilateral agreement on police cooperation (Romanian police authorities assisting French ones in identi­ fying Roma and ‘criminals’ and returning them to Romania) and the ‘social inclu­ sion’, ‘reintegration’ or ‘re-inclusion’ of “the Roma minority” into Romanian society. During a visit of the French Minister Valls to Romania on 12/13 September 2013, a bilateral treaty was signed between l’Office français de l’Immigration et de l’Intégration (OFII) and the Romanian authorities, part of the wider FrenchRomanian Partnership, and comprising two main angles:68 First, experimental projects on reintegration in the country of origin which will be granted to a total of 80 families of Romanian nationals of Roma minority willing to return from France to Romania, and who are to be supported with a project of ‘economic and social reinsertion’ consisting of a financial aid for setting up an enterprise and the necessary training for the specific needs to put it into practice in Romania; and second, the continuation of the sending of Romanian police officers to France to assist French authorities and participate in joint patrolling and investigations teams “against those who exploit the Roma population in France”.69 4. European Citizenship, Free Movement and (Re)integration How can this policy transition be read from the perspective of citizenship of the Union? In which ways has European citizenship contributed to the origins of the 67 European Roma Rights Centre (ERRC), Written Comments by the European Roma Rights Centre concerning France, For consideration by the European Commission on the Transposition and Application of the Race Directive and on the Legal Issues Relevant to Roma integration; See also ERRC (2012), Factsheet: Roma Rights in Jeopardy, 16 February 2012. 68 h ttp://www.immigration.interieur.gouv.fr/Info-ressources/Actualites/Communiques/ Deplacement-en-Roumanie-de-Manuel-Valls-et-Bernard-Cazeneuve Refer to Accord-cadre entre l’Office Français de l’Immigration et de l’Intégration et le Ministère du Travail, de la Famille et de la Protection Sociale et le Ministère de l’Administration et de l’Intérieur de la Roumanie pour la mise en œuvre, à titre expérimental, d’une aide à la réinsertion des familles des citoyens rou­ mains appartenant à la minorité rom, rentrés de France avec une aide au retour de l’Office Français de l’Immigration et l’Intégration, 12 septembre 2012. 69 Refer to Romanian Ministry of Internal Affairs, Press Release French authorities congratulated the Romanian police officers in Paris, Bucharest, 30 January 2013, which reports the deployment

52  Sergio Carrera

French Roma affair, or how has it affected its developments and current state of play? The detailed overview and analysis outlined in the preceding Sections of this chapter reveal two main dimensions of relevance when read from the per­ spective of Union citizenship: First, the shifting of responsibilities between the EU and Member States (Section 4.1); and second, the integration-reintegration policy as the solution and the ‘ethnicization’ of European citizenship (Section 4.2 below). 4.1. Shifting Responsibilities: Whose Citizens? One of the core issues of contention since the first steps of the French Roma affair has been whose responsibility are Romanian and Bulgarian nationals of Roma origin exercising the free movement of persons, and therefore ‘whose citizens’ are those people experiencing evictions and expulsions. The duty to protect underly­ ing the state-individual citizenship relationship in liberal democracies, and the ways in which European citizenship has transformed that relationship by expand­ ing and supranationalizing the set of institutional actors deemed to guarantee those citizenship freedoms beyond the nation-state, has constituted a central point of controversy in the affair. As it has been examined in Section 1 above, the French government did not wait long to use a discourse allusive of ‘the failure to integrate the Roma minority’ by Romania and Bulgaria, and calling these two countries to assume their own responsibilities towards Roma. Yet, the ‘whose responsibility’ question took different shapes and was substantially reinterpreted during the closed-doors debates at the one-day European Council summit of 16 September 2010 in Brussels. Both France and Romania argued in that meeting for the question of Roma evictions and expulsions to be considered a ‘European problem’, not a national or Member State one. Sarkozy even proposed to agree a common position by the Council that this constituted a European issue, some­ thing which was supported by the Romanian President Basescu who declared that the Roma who are “nomads” are a European, not a Romanian, ‘problem’. The reframing of the issue as requiring a ‘European solution’ was still confirmed by the French Minister of Interior, Valls in an interview given in September 2012.70 The ways in which EU Roma politics have influenced the framing of the Roma as a ‘European problem’ and a ‘transnational European minority’, that is a group without clear national lobby or external homeland to defend its interests, presented as ‘a separate nation without a state’ has been studied by

of 25 police officers from Romania in Paris. Retrievable from http://www.mai.gov.ro/engleza/ Home_eng/english.htm. 70 http://www.lefigaro.fr/flash-actu/2012/09/11/97001-20120911FILWWW00345-roms-la-france -prend-sa-part-valls.php.

The Framing of the Roma as Abnormal EU Citizens  53

Vermeersch (2012).71 He has argued that some politicians have used it as an oppor­ tunity to encapsulate the Roma as a European ethnic minority, excluded from ‘national’ populations. Most importantly, it has led to the conclusion that Member States should not be blamed for the current problem nor can be held responsible for solving it.72 It was indeed the mobility angle (the exercise by Romanian and Bulgarian nationals of Roma origin of the freedom to move) which brought the issue within the remits of EU competence and the Commission more in particu­ lar, which has been entrusted by the Treaties to guarantee the removal of obsta­ cles and unlawful derogations standing in the way of citizens’ enjoyment of their rights and freedoms as envisaged in primary and secondary EU law. The link of the case with citizenship of the Union was underlined by the European Union Agency for Fundamental Rights (FRA), which stated that the case of Roma EU citizens settling in another Member State raises questions as regards the meaning of EU citizenship and associated rights as a broad concept, and what citizenship of the Union means or should mean for these individuals73 The Commission responsibilities, and those of its DG for Justice, Fundamental Rights and Citizenship, were therefore subject to a detailed scrutiny since the beginning of the affair. As described above, the European Parliament and civil society organisations were amongst the first ones calling the Commission to act and assume its duties as guarantor of the Treaties and citizenship of the Union by launching infringement proceedings against France. The politicization of the Commission in handling the case and the overall EU infringement proceedings has been an issue of concern,74 which has led to the academic literature to devise innovative ways in which current enforcement mechanisms at EU level could be

71 P. Vermeersch (2012), “Reframing the Roma: EU Initiatives and The Politics of Reinterpretation”, Journal of Ethnic and Migration Studies, Vol. 38, No. 8, September 2012, pp. 1195–1212. 72 Page 1207. Vermeersch (2012), argues that “The EU’s involvement thus represents not only the most recent phase in a longer and unfinished political debate about Roma in Europe; it also illustrates how the debate moves back and forth between different public policy contexts and political arenas and is therefore continually invested with new narratives, discursive arguments, ideas and meanings. These shifts create new public policy frames….the current EU appeals for increased attention entail the creation of a political space for the formation and contestation of new understandings of who the Roma are, what they need, and how they should be helped. In other words, the EU has now joined a complex political game of framing and reframing the Roma.” (p. 1196). 73 FRA (2009), The situation of Roma EU citizens moving to and settling in other EU Member States, November 2009, Vienna. 74 It appears that the Commission decided to use the card of prudence in order to ‘appaise’ the rela­ tions with Sarkozy. You can also see that in the debates of 13 September Council meeting, where the Commission says that it was helping France in relation to the EP, which was very critical about it.

54  Sergio Carrera

made more objective and depoliticized.75 More generally, and as Bigo has rightly argued, “…the issue is not the Roma people’s attitude, or their integration, but is first of all that of the attitude of our governments as regards free movement of persons and human rights in Europe, with a debate that has the observance of their previous EU commitments at its core”.76 These struggles of authority between the Commission and the French national government about ‘whose competence’ have in addition come along with others related to ‘whose responsibility’, where EU institutional instances have also played a role. Section 3 of this chapter has illustrated the transition in the policy priorities or actions by the European Commission when it came to respond to the French evictions and expulsions of Roma. The original attention paid to ensuring the proper transposition of EU free movement and non-discrimination law into French national legislation moved towards other terrains where the ‘(re)integra­ tion’ or ‘inclusion’ of Roma communities became ‘the’ political priority. The com­ patibility of French policies on evictions and expulsions with EU citizenship law appears to have lost ground towards ensuring Member States’ policies to ensure the integration of Roma communities in their domestic arenas. Vermeersch has also indicated that the Commission became aware of Member States’ attempt to exempt themselves from the responsibility and potential liability of the Roma affair in light of EU law. We argue that this might have actually constituted a deci­ sive factor encouraging the Commission to focus mainly on the EU Framework for National Roma Integration Strategies, as an opportunity to give Member States incentives to develop and finance their national efforts on Roma policies and bilateral cooperation. As raised above, it is quite telling to notice that EU citi­ zens of Roma origin exercising their freedom of circulation are simply excluded from the personal scope of the EU Framework. Moreover, this has come with the Commission’s argument that it does not have the necessary legal competence over these national or purely domestic ‘integration’ 75 See for instance M. Dawson & E. Muir (2011), “Individual, Institutional and Collective Vigilance in Protecting Fundamental Rights in the EU: Lessons from the Roma”, Common Market Law Review, 48, pp. 751–775; see also S. Carrera & B. Petkova, “The potential of civil society and human rights organizations through third party interventions before the European Courts; the EU’s area of freedom, security and justice”, in M. Dawson, B. de Witte & E. Muir (eds), (2013), Judicial Activism at the European Court of Justice, Cheltenham: Edward Elgar, pp. 233–263. See also S. Carrera & A. Faure-Atger (2010), L’affair des Roms: A Challenge to the EU’s Area of Freedom, Security and Justice, CEPS Liberty and Security in Europe Publications Series, Centre for European Policy Studies, Brussels: CEPS. 76 D. Bigo (2013), “When Montesquieu goes transnational: The Roma as an excuse, visas as preven­ tive logic, judges as sites of resistance”, in D. Bigo, E. Guild & S. Carrera (eds), Foreigners, Refugees or Minorities? Rethinking people in the context of border controls and visas, Farnham: Ashgate Publishing, pp. 21–38.

The Framing of the Roma as Abnormal EU Citizens  55

issues, such as those related to access to housing and evictions. The official posi­ tion of the European Commission has been indeed that the evictions fall outside the scope of EU law and its ‘legal competence’, as they are deemed as a ‘purely internal situation’. As stated in the interview given by Vice-President Reding to Le Monde in September 2012, “The dismantlement of illegal and insalubrious camps remains a national question. There is no European law in this field.” There seems to be a commonly accepted understanding at the highest levels inside the Commission that the current outstanding issues in France fall generally outside the Commission’s competences. This was actually noticed by the Committee of Ministers of the Council of Europe highlighted (see above), the Commission has since the end of 2010 taken a general positioning according to which the evictions of nationals of EU member states fall ‘exclusively’ within the jurisdiction of mem­ ber states, and therefore their obligations under international law, such as those arising from the ESC.77 By doing so, the Commission indirectly renounced its ownership and obliga­ tions over EU citizenship acts and claims of Romanian and Bulgarian nationals of Roma origins exercising one of the most paradigmatic components of citizenship of the Union, i.e. freedom to move. In order to prevent certain national govern­ ments from framing the issue as primarily a ‘European problem’, DG Justice of the Commission has instead focused its attention in ‘given incentives’ for Member States to fulfil their obligations towards their own Roma citizens and better ensure their ‘integration’ in their national arenas. The Commission’s strategy to bring Member States’ national governments duties to the forefront of the EU pol­ icy priorities has however fostered the emergence of a difficult relationship between free movement and the (re)integration and/or integration of Romanian and Bulgarian Citizens of the Union, subject of the next section. 4.2. The Ethnicization of European Citizenship The European Commission and Member States responses have, perhaps more fundamentally, brought a number of paradoxes to the legal and political founda­ tions of European citizenship. This is particularly so as regards the right to move and reside freely within the territory of the Member States as envisaged in 77 European Daily Bulletin, No. 10464, 1 October 2011, p. 14. The Committee noticed that following a submission in July 2011 to the European Commission by Human Rights Watch (HRW) of a docu­ ment related to the lack of compatibility between the French expulsions of Roma of Romanian and Bulgarian origin and EU law, “a Commission spokesperson declared that the issue of expulsions of nationals of EU member States fell ‘exclusively within the jurisdiction of member States’ and, consequently, within the member States’ obligations under international law, including those arising from the Charter”.

56  Sergio Carrera

Article 21 of the Treaty on the Functioning of the European Union (TFEU) and Article 45 of the EU Charter of Fundamental Rights, which both enshrine this right at the core of EU citizens’ freedoms. The case of Roma exercising freedom of movement problematizes the scope and prospects of citizenship of the Union and freedom of circulation. The exercise by Romanian and Bulgarian Roma of EU citizenship mobility rights led them to face the most severe exclusion from the security of residence envisaged by citizenship of the Union and the protection against expulsion. The justification used for this differential treatment has been a reframing of freedom movement of EU Roma or the so-called ‘mobile Roma’, as having inherent ‘nomadic’ behaviour, which is framed as an illegitimate form of mobility across borders surrounded by fears of potentially abuses to the social welfare of the receiving Member State and engaged in forms of ‘illegalities’. Roma EU citizens are therefore presented as l’individu anormal, ‘the abnormal EU citizen’78 or the ‘non-modern’79 who by definition is seeing as coming from ‘the outside’, or still shows signs of ‘outsider’ or foreigner. ‘Integration’ and ‘reintegration’, now also mixed with a discourse on ‘inclusion’, have been presented as the solutions to the French Roma Affair in order to address the deviations attributed to the exercise of EU citizenship freedoms by Roma from Romania and Bulgaria. They constitute policy tools for EU institutional actors and national governments that saw their interests directly colliding in the summer of 2010 to blur and reframe their spheres of responsibility on the rights and freedoms of Romanian citizens of Roma origin, and pass that responsibility on to the Roma themselves. Those Roma who have exercised the ‘freedom to move’ to another Member State are considered not to be legitimated in so doing. This is constructed as the undesired form of free movement, and they are instead encouraged or forced not to move or to ‘move back’ (to exercise their freedom to move back) to their country of origin and to reintegrate there into the national society. The ‘nomad Roma’ are in this way designed as the undeserving Union citi­ zens. As the Romanian President Basescu declared in the above-mentioned European Council Summit of September 2010,

78 M. Foucault (1999), Les Anormaux, Cours au Collège de France. 1974–1975, Hautes Études, Paris: Gallimard Le Seuil. See in particular Foucault’s study of the “problématique de l’anomalie et les techniques autour de l’anomalie”. See also M. Foucault (2001), Dits et Écrits 1954–1988, II (1976–1988), Édition Établie sous la Direction de D. Defert & F. Ewald avec la collaboration de J. Lagrange, Paris: Quarto Gallimard, p. 1690. 79 For a theoretical account of the framing of the Roma as ‘pre-civilised’ or ‘pre-modern’ see M. Koblanck (2013), “Legal modernities – conceptual transformations around the management of human mobility in international relations”, in D. Bigo, E. Guild & S. Carrera (eds), Foreigners, Refugees or Minorities? Rethinking people in the context of border controls and visas, Farnham: Ashgate Publishing, pp. 75–90.

The Framing of the Roma as Abnormal EU Citizens  57 It is necessary to make a distinction between the Roma who are nomads and the others. The Roma who are sedentary do not constitute a problem of integration. The nomad Roma, on the contrary, do not respect the law, they don’t want to work. They don’t understand the need to send their kids to school. We need a solution based on their culture. (Emphasis added).

The mobile or nomad Roma is constructed as a risk category of citizens whose attributed abnormality is their lack of ‘integration’ into the concept of ‘the mainstream national society’. Integration is here not practised as a condition for Romanian and Bulgarian nationals of Roma origin to exercise their EU citizen­ ship freedom to move. It is instead understood as the cause of their undesired mobility and a potential solution for those Roma not to leave their countries of origin. This understanding of integration and re-integration as an effective way to prevent Romanian nationals of Roma origin to exercise their freedom to move after been returned from France is evident in all the Franco-Romanian coopera­ tion and the above-mentioned bilateral agreement concluded between these two countries as referred to in Section 3. The underlying public goal might well constitute a challenge or even an indirect restriction to the right to leave envis­ aged in Article 4.1 of the Citizens Directive 2004/38, which stipulates the right by all EU citizens holding a valid identity card or a passport to leave the territory of a Member State to travel to another one. Indeed, the freedom to move encom­ passes both the right for citizens of the European Union to enter a Member State other than the one of origin and the right to leave the state of origin. This has been a contested issue both for Romania and Bulgaria, which both have historical precedents in applying restrictions on their nationals to prevent them from leaving the country.80 Citizenship of the Union made these restric­ tions unlawful as they were conceived to be discriminatory measures against their own citizens. This was a matter covered by the CJEU in the Case C-33/07 Jipa,81 which dealt with an preliminary ruling asking whether Article 27 of the Citizens Directive 2004/38 precluded Member States legislation which restricts the right of their nationals to travel to another Member State on the ground that s/he had been previously repatriated from the latter Member State on account of his or her ‘illegal residence’ there. The case was about Mr Jipa who had left Romania on 10 September 2006 to travel to Belgium. On account of his ‘illegal residence’ in Belgium, he was repatriated to Romania under the terms of a Readmission Agreement which had been concluded in 1995 between Belgium, 80 See for instance Court of Justice of the European Union, Case C-249/11 Byankov, 4 October 2012. 81 Court of Justice of the European Union, Case C-33/07 Ministry of Administration and Home Affairs – Directorate General for Passports, Bucharest v. Gheorghe Jipa, 10 July 2008. Refer also to Case 81/87 Daily Mail and General Trust [1988] ECR 5483, paragraph 16; Case C-379/92 Peralta [1994] ECR I-3453, paragraph 31; and Case C-415/93 Bosman [1995] ECR I-4921, paragraph 97.

58  Sergio Carrera

Luxembourg and the Netherlands before Romania’s accession to the EU. The CJEU held that the Citizens Directive does not: “… preclude national legislation that allows the right of a national of a Member State to travel to another Member State to be restricted, in particular on the ground that he has previously been repatriated from the latter Member State on account of his ‘illegal residence’ there, provided that the personal conduct of that national consti­ tutes a genuine, present and sufficiently serious threat to one of the fundamental interests of society and that the restrictive measure envisaged is appropriate to ensure the achievement of the objective it pursues and does not go beyond what is necessary to attain it.” (Emphasis added).

Also in light of this judgment, the fact that the Romanian national had been returned because he no longer met the residence conditions stipulated in the Citizens Directive 2004/38 could not be regarded as sufficient basis for restricting the right of a national to travel to another Member State.82 The CJEU left it to national courts, and therefore a judicial authority, to decide the extent to which a particular person can be deemed to constitute a threat to public policy and security. In addition to the tensions raised by the re-integration/integration paradigm in respect of the right to leave by nationals of the territory of their country of origin, the focus on integration or inclusion also changes some of the fundamen­ tal contours of citizenship of the Union towards venues where ethnic origin becomes a central factor in the recognition and attribution of European citizen­ ship freedoms against unlawful derogations by Member States authorities. As we have underlined somewhere else, “what is clear is that among some European states, citizenship of the Union has taken on an ethnic dimension. It is no longer simply a statement of the relationship of the individual with his or her state of origin but an indication of ethnicity”.83 The ‘ethnicity’ and ‘nomadic lifestyle’ of Roma as framed by insecurity policies and discourses seems to have taken precedence over their acts and claims of citizenship, including those related to citizenship of the Union. The Roma are henceforth treated as unwanted foreigners and undeserving beggars ‘abusing’ EU rights and freedoms because of their attributed ‘differences’. 82 G. Fábián & E. Veress (2009), “The Possibility of Restricting the Free Movement of the Own Citizens: Comments on the Jipa-case”, in P. Minderhoud & N. Trimikliniotis (eds), Rethinking the Free Movement of Workers: The European Challenges Ahead, Nijmegen: Wolf Legal Publishers, pp. 197–210. 83 E. Guild & S. Carrera (2013), “Introduction: International relations, citizenship and minority discrimination: setting the scene”, in D. Bigo, E. Guild & S. Carrera (eds), Foreigners, Refugees or Minorities? Rethinking people in the context of border controls and visas, Farnham: Ashgate Publishing, pp. 1–20.

The Framing of the Roma as Abnormal EU Citizens  59

They are described as not meeting the cultural and social criteria of the legitimate community of consumers eligible for the protection and security that the state and the EU claims to guarantee to all their citizens, including the right to leave and move freely. Their description as nomads instead of EU citizens freely moving within the Union justifies the restrictions of their citizenship freedoms (and their forced return) on grounds of insecurity. It also reinforces the popular idea that they are not true nationals of EU Member States (i.e. Romanians or Bulgarians for the purposes of this chapter),84 and therefore are not entitled to non-discriminatory treatment in scope of European citizen­ ship. The Roma will also need to be integrated into some imagined ‘way of life and society’ in the attributed state of origin, and be more national than those nationals in order to be allowed to cross the functional border toward the level of membership granted to the model of perfect European citizen.85 Thus, as Aradau et al (2013) have argued, “while free movement can lead to rights claims in the EU, it is intertwined with modes of governance that instigate hierarchies of citizenship through criminalising and delegitimizing particular mobilities and mobile subjects”.86 The policy priorities given to ‘(re)integration’ policies however stand in a diffi­ cult relationship with the non-discrimination principle and duty allocated to national and EU institutions in the scope of citizenship of the Union for all indi­ viduals holding Member States’ nationality, independently of their economic sit­ uation or ethnicity. In particular, the insistence put on the re-integration of Romanian and Bulgarian Roma having exercised their freedom to move also raises questions of ethnic discrimination in relation to EU mobile citizens from other EU Member States as well as other Romanian and Bulgarian nationals deemed to be ‘integrated’ into their societies and national cultures. The most far reaching end result has been however that the onus of responsibility has ended in the Roma themselves via the prioritization and promotion of Roma integration and reintegration national policies in the scope of the EU Framework and bilat­ eral Member States cooperation.

84 For an analysis of the extent to which exclusion, containment and assimilation have played a role in the case of the governance of Romani people in Italy see N. Sigona (2011), “The Governance of Romani People in Italy: discourse, policy and practice”, Journal of Modern Italian Studies, 16(5), pp. 590–606. 85  S. Carrera (2009), In Search of the Perfect Citizen? The Intersection between Integration, Immigration and Nationality in the EU, Leiden: Martinus Nijhoff Publishers, pp. 441–448. 86 C. Aradau, J. Huysmans, P.G. Macioti & V. Squire (2013), “Mobility interrogating free movement: Roma acts of European citizenship”, in E.F. Isin & M. Saward (eds), Enacting European Citizenship, Cambridge: Cambridge University Press, pp. 132–154.

60  Sergio Carrera

6. Conclusions The French affair on evictions and expulsions of Romanian and Bulgarian nation­ als of Roma origins has brought a fundamental test to the foundations and normative assumptions delineating citizenship of the Union. After the turf wars evidenced between the highest European Commission instances and the former French government of Sarkozy, the waters calmed down significantly after France pledged the Commission to formally transpose in the Citizens Directive 2004/38 into its national legislation. The Commission decided not to launch infringement proceedings and bring France before the CJEU, and considered French national law to be in compliance with EU citizenship law and free movement guarantees. While not much has transpired about the whereabouts and subsequent develop­ ments of the affair, the situation remains however largely unresolved. Evictions and forced expulsions have not only continued since the end of 2010, but they have been reinvigorated during 2011 until the first semester of 2013. Contrary to preliminary expectations, the following government of François Hollande contin­ ued with these malpractices. This chapter has examined the ways in which the French Roma controversy can be read and understood from the perspective of citizenship of the Union. The main argument has been that the controversy can be better understood from the perspective of the fierce struggles between the EU institutions and national authorities over the questions ‘whose responsibility’ and ‘whose citizens’ are Roma holding Romanian and Bulgarian nationality and exercising the EU free­ dom to move. Citizenship of the Union has exerted its most visible consequences over the power relations between EU and member states governments and the exact remits of authority over the freedoms and security of residence of mobile EU citizens. The disputes and strategies of reshaping the scope of competences and responsibilities between national and EU authorities need to be primarily understood from this perspective. The European Commission, the French and Romanian governments have engaged into a series of discursive and policy strategies primarily aiming at narrowing down and evading their own responsibilities over the treatment and discrimination of mobile EU Roma citizens. Since the beginning of the events the French and Romanian governments qualified the issue as ‘a problem’ requiring a ‘European solution’. The Commission has reacted by reallocating the onus of citizenship duties back towards the national arenas through the EU Framework on Roma Integration Strategies and promoting bilateral cooperation between the Member States concerned. There has been a distinctive policy transition at EU levels from the priority given to enforcing EU free movement and non-discriminations law, towards the promotion of EU (soft) policy coordination of Member States policies on ‘the (re)integration of Roma’. This transition has significantly transformed and shifted

The Framing of the Roma as Abnormal EU Citizens  61

the justification over the derogations in EU citizenship freedoms and rights to the Roma because of their attributed differences. Discriminatory treatment of EU Roma citizens having exercised their freedom to move has been legitimised because of their ‘nomadic’ and abnormal behaviours, and due to their ‘lack of integration’ into the perceived mainstream nation and the cohesiveness of society in their countries of origin. Priority has been therefore granted to the reintegration of EU Roma citizens in Romania and Bulgaria as a way to prevent them from re-exercising their freedom to move and discourage their ‘undesired form of cross-border nomadism’. The examination provided by this chapter has underlined how the shifting of responsibilities and the understanding of integration and re-integration policies as ‘the solution’ to address Roma evictions and expulsions in France (and else­ where in the EU) pose fundamental tensions with the non-discriminatory fundamentals standing at the basis of European citizenship. The reactions by the former and current national governments of France and Romania, as well as that of the European Commission, have perhaps most profoundly taken citizenship of the Union towards distant venues where ethnicity has acquired a decisive func­ tion in the attribution of responsibility to secure citizenship of the union free­ doms to Roma. The policy transition towards reintegration and integration stand more sharply in a difficult relationship with the duty by state authorities not to discriminate on the basis of nationality and ethnicity of the right to leave their own country and settle in another Member State which lay at the roots of the EU legal system and the status of citizenship of the Union. This, in turn, has legiti­ mized the perpetuation of coercive insecurity practices such as those of evictions and expulsions in France and calls for a critical re-interrogation of the scope and potentials of citizenship of the Union. References Aradau, C., J. Huysmans, P.G. Macioti & V. Squire (2013), “Mobility interrogating free movement: Roma acts of European citizenship”, in E.F. Isin & M. Saward (eds), Enacting European Citizenship, Cambridge University Press, pp. 132–154. Barbulescu, H. (2012), “Constructing the Roma People as a Societal Threat: The Roma Expulsions in France”, European Journal of Science and Theology, Vol. 8, Supplement 1, June, pp. 279–289. Bennett, Q. (2011), “Please don’t be our guest: The Roma expulsion from France under European Union law”, Journal of International and Contemporary Law, Vol. 40, pp. 219–245. Bertossi, S. (2010), France and Deporting the Roma: How did we get there?, ARI 146/2010, Madrid: Real Instituto Elcano. Bigo, D. (2013), “When Montesquieu goes transnational: The Roma as an excuse, visas as preventive logic, judges as sites of resistance”, in D. Bigo, E. Guild & S. Carrera (eds), Foreigners, Refugees or Minorities? Rethinking people in the context of border controls and visas, Farnham: Ashgate Publishing, pp. 21–38. Cahn, C. & E. Guild (2008), Recent Migration of Roma in Europe, Study commissioned by the OSCE High Commissioner on National Minorities and the Council of Europe Commissioner for Human Rights, 10 December 2008, pp. 47 and 48.

62  Sergio Carrera Carrera, S. (2005), “What does free movement mean in theory and practice in an enlarged EU?”, European Law Journal, Vol. 11, No. 6, November, pp. 699–721. —— (2009), In Search of the Perfect Citizen? The Intersection between Integration, Immigration and Nationality in the EU, Leiden: Martinus Nijhoff Publishers, pp. 441–448. Carrera, S. & A. Faure-Atger (2010), L’affair des Roms: A Challenge to the EU’s Area of Freedom, Security and Justice, CEPS Liberty and Security in Europe Publications Series, Centre for European Policy Studies, Brussels: CEPS. Carrera, S. & B. Petkova (2013), “The potential of civil society and human rights organizations through third party interventions before the European Courts; the EU’s area of freedom, security and justice”, in M. Dawson, B. de Witte & E. Muir (eds), Judicial Activism at the European Court of Justice, Cheltenham: Edward Elgar, pp. 233–263. Chido, C.J. (2011), “Peril of Movement: Migrating Roma risks expulsion as EU member states test the limits of the free movement directive”, Journal of International and Comparative Law, Vol. 20, pp. 233–254. Collectif National Droits de l’Homme Romeurope (2012), Rapport 2010–2011, Les Roms, boucs-émissaires d’une politique sécuritaire qui cible les migrants et les pauvres, February, pp. 17–18. Dawson, M. & E. Muir (2011), “Individual, Institutional and Collective Vigilance in Protecting Fundamental Rights in the EU: Lessons from the Roma”, Common Market Law Review, 48, pp. 751–775 Diana, E. (2011–2012), “Expulsion of the Roma: Is France violating EU freedom of movement and playing by French rules or can it proceed with collective Roma expulsions free of charge?”, Brooklyn Journal of International Law, Vol. 37, pp. 649–682. Fábián, G. & E. Veress (2009), “The Possibility of Restricting the Free Movement of the Own Citizens: Comments on the Jipa-case”, in P. Minderhoud & N. Trimikliniotis (eds), Rethinking the Free Movement of Workers: The European Challenges Ahead, Nijmegen: Wolf Legal Publishers, pp. 197–210. Foucault, M. (1999), Les Anormaux, Cours au Collège de France. 1974–1975, Hautes Études, Paris : Gallimard Le Seuil. Foucault, M. (2001), Dits et Écrits 1954–1988, II (1976–1988), Édition Établie sous la Direction de D. Defert et F. Ewald avec la collaboration de J. Lagrange, Paris: Quarto Gallimard, p. 1690. FRA (2009), The situation of Roma EU citizens moving to and settling in other EU Member State, November, Vienna. Guild, E. & S. Carrera (2013), “Introduction: International relations, citizenship and minority discrimination: setting the scene”, in D. Bigo, E. Guild and S. Carrera (eds), Foreigners, Refugees or Minorities? Rethinking people in the context of border controls and visas, Farnham: Ashgate Publishing, pp. 1–20. Human Rights Watch (2011), France compliance with the European Free Movement Directive and the Removal of Ethnic Roma EU Citizens, A Briefing Paper submitted to the European Commission, July 2011, 28 September 2011, retrievable from www.hrw.org. Khaliq U. & R. Churchill (2008), ‘The European Committee of Social Rights’, in Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, New York: Cambridge University Press. Koblanck, M. (2013), “Legal modernities – conceptual transformations around the management of human mobility in international relations”, in D. Bigo, E. Guild & S. Carrera (eds), Foreigners, Refugees or Minorities? Rethinking people in the context of border controls and visas, Farnham: Ashgate Publishing, pp. 75–90. Korando, A.M. (2012), “Roma go home: The plight of European Roma”, Law and Inequality, Vol. 30, pp. 125–147; Lhernoud, J.P. (2010), “L’eloignement des Roms et la Directive 2004/38 relative au droit de sejour des citoyens de l’UE”, 11, Droit Sociale, pp. 1024–1036. Nolan, N. (2012), “‘Aggravated Violations’: Roma Housing Rights and Forced Evictions in Italy: Recent Developments under the European Social Charter Collective Complaints System”, Human Rights Law Review, 11:2, pp. 343–361. O’Nions, H. (2011), “Roma expulsions and discrimination: The elephant in Brussels”, European Journal of Migration and Law, Vol. 13, pp. 361–388.

The Framing of the Roma as Abnormal EU Citizens  63 Parker, O. (2012), “Roma and the Politics of EU Citizenship in France: Everyday Security and Resistance”, Journal of Common Market Studies, Vol. 50, no. 3, pp. 475–491. Sigona, N. (2011), “The Governance of Romani People in Italy: discourse, policy and practice”, Journal of Modern Italian Studies, 16(5), pp. 590–606. Vermeersch, P. (2012), “Reframing the Roma: EU Initiatives and The Politics of Reinterpretation”, Journal of Ethnic and Migration Studies, 2012, Vol. 38, No. 8, pp. 1195–1212.

Nationality: The Missing Link between Citizenship of the European Union and European Migration Policy Sara Iglesias Sánchez 1. Introduction: The Law as It Stands and New Developments Nationality has traditionally been claimed to be one of the spheres in which Member States retain full sovereignty. The incipient conception of citizenship of the Union has found itself anchored to the sole will of States, since its acquisition and loss is determined solely by reference to the nationality of the Member States. It is thus ensured that States remain not only the gatekeepers of  membership with regard to their own political communities, but are also the  ultimate architects of the composition of EU citizenry. The mainstream approach to which  the perception of Union citizenship is still anchored rests upon two basic  premises: (1) citizenship of the Union derives from Member State  nationality; (2) Member State nationality is the exclusive competence of Member States. Ergo, citizenship of the Union is in the exclusive hands of the Member States. The doctrine has long explored the ways in which EU law could potentially affect State competences in the field of naturalization,1 but only recently has the powerful potential of the concept of Union citizenship started to develop, as the result of significant judicial decisions which have decisively begun to erode the absolute discretion of States in withdrawing (and arguably granting) nationality. The simple reasoning based on the two above-mentioned assertions thus no longer benefits from the clear-cut esthetics of a logical-mathematical operation. This erosion has occurred through the decisive action of the Court of Justice at two key moments in the process of European integration. First, on the eve of the Maastricht Treaty, the Court established in its judgment in the Micheletti 1 E.g. G.R. De Groot (2004), “Towards a European Nationality”, 3 Electronic Journal of Comparative Law, p. 1; G.R. De Groot (1998), “The Relationship between the Nationality of the Member States of the European Union and European citizenship”, in M. La Torre (ed.), European Citizenship: an Institutional Challenge, Deventer: Kluwer, p. 115; S. Hall (1996), “Loss of Union Citizenship in Breach of Fundamental Rights”, 21 European Law Review, p. 129; S. O’Leary (1996), The evolving concept of Community Citizenship, Deventer: Kluwer, p. 57 ff.

66  Sara Iglesias Sánchez

case that under international law,2 and having due regard to EU law, it was “not permissible for the legislation of a Member State to restrict the effects of the grant of the nationality of another Member State (…)”.3 Even though this pronouncement was effectively a defence of Member States’ autonomy in the field of nationality – by protecting them from the impingement of other Member States – it did contain an early warning, one already prefigured in Airola,4 in stating that the discretion to determine nationality was to be exercised by “having due regard to Community law”.5 This warning only materialized eighteen years later, not by coincidence immediately after the entry into force of the Treaty of Lisbon and its Charter of Fundamental Rights. This time the Court went as far as to affirm that the exercise of the power to lay down the conditions for acquisition and loss of nationality “in so far as it affects the rights conferred and protected by the legal order of the Union (…), is amenable to judicial review carried out in the light of European Union law”.6 In the case at issue, the principle of proportionality was the element of EU law to which the national court was directed to assess the situa­tion, bearing in mind “the importance that primary law attaches to the status of citizenship of the Union”.7 The doctrine recognized very early on the potential of the slight changes in the new wording of the citizenship provisions in the Lisbon Treaty:8 Union citizenship is no longer said to be ‘complementary’ but rather ‘additional’,9 therefore emphasizing the autonomy of the content of the citizenship of the Union.10      2 The importance attached to the international regulation of nationality has to be highlighted. Some months after Micheletti, his approach was again adopted with regard to the nationality of vessels in the Case C-286/90 Poulsen [1992] ECR I- 06019, para. 13.      3 Case C-369/90 Micheletti [1992] ECR I-4239, para. 10. Also in this direction, Case C-200/02 Chen [2004] ECR I-3887.      4 Case 21/74 Airola [1975] ECR 221, regarding the situation of an official of the Commission who was denied expatriation allowance since her nationality was obligatorily changed by marriage. The Court established the need to interpret the concept of ‘nationality’ in the staff regulations as ‘excluding nationality imposed by law on a female official upon her marriage with a national of another state when she has no possibility of renouncing it’, para. 12. 5 Ibid. 6 Case C-135/08 Rottmann [2010] ECR I-1449 para. 40. 7 Ibid., para. 56.      8 The preparatory works in the Convention make it clear that that the change in wording was not intended to have any legal meaning. See A. Wiesbrock (2012), “Granting Citizenship-related Rights to Third-Country Nationals: An Alternative to the Full Extension of European Union Citizenship?”, 14 European Journal of Migration and Law, pp. 63 ff., at 70. 9 Art 20 TFEU. 10 A. Schrauwen (2008), “European Union Citizenship in the Treaty of Lisbon: Any Change at all?”, 15 Maastricht Journal of European and Comparative Law, p. 55; H. de Waele (2010), “EU Citizenship: Revisiting its Meaning, Place and Potential”, 12 European Journal of Migration and Law, pp. 319 ff., at 322.

Nationality: The Missing Link between Citizenship  67

It seems that the Court, in its post-Lisbon citizenship case law, has confirmed this reading, reinforcing the autonomous content of the citizenship of the Union, and buttressing the vertical relationship between the Union and its citizens in Rottmann and in the landmark judgment in Zambrano,11 issued shortly afterwards.12 Despite their more obvious connection with the issue of the progressive 11 Case C-34/09, Ruiz Zambrano, 2011, not yet reported. 12 These judgments have inspired a very broad debate in the literature, which cannot properly be explored here. On Rottmann, see e.g.: D. Kochenov (2010), “Case C-135/08, Janko Rottmann v. Freistaat Bayern, Judgment of the Court (Grand Chamber) of 2 March 2010”, 47 Common market law review, p. 1831; J. Shaw (ed.), Has the European Court of Justice Challenged Member State Sovereignty in Nationality Law?, EUDO Citizenship Forum, available at http://eudo- citizenship. eu/citizenship-forum/254-has-the-european-court-of-justice-challenged-member-state-sovereignty-in-nationality-law?start=1; H.U. Jessurun d’Oliveira (2011), “Decision of 2 March 2010, Case C-135/08, Janko Rottman v. Freistaat Bayern – Case Note I – Decoupling Nationality and Union Citizenship?”, 7 European Constitutional Law Review, p. 138; G.R. De Groot & A. Seling (2011), “Decision of 2 March 2010, Case C-135/08, Janko Rottman v. Freistaat Bayern – Case Note II – The Consequences of the Rottman Judgment on Member State Autonomy – The European Court of Justice’s Avant-Gardism in Nationality Matters”, 7 European Constitutional Law Review, p. 150; H. Tewocht (2010), “Unionsbürgerschaft, rückwirkender Verlust der durch Einbürgerung erworbenen Staatsangehörigkeit wegen betrügerischer Handlungen bei ihrem Erwerb, Staatenlosigkeit, Verlust der Unionsbürgerschaft”, 4 Zeitschrift für Ausländerrecht und Ausländerpolitik, p. 143; S. Iglesias Sánchez (2010), “Sentencia de 02.03.2010 (Gran Sala), Janko Rottmann/Freistaat Bayern, C-135/08 ¿Hacia una nueva relación entre nacionalidad estatal y la ciudadanía europea?”, 37 Revista de Derecho Comunitario Europeo, p. 933.  On Zambrano, see e.g.: K. Hailbronner & D. Thym (2011), “Note to Case C-34/09, Ruiz Zambrano, Judgment of the Court (Grand Chamber) of 8 March 2011, not yet reported”, 48 Common Market Law Review, p. 2253; K. Hailbronner & D. Thym (2011), “Ruiz Zambrano: Die Entdeckung des Kernbereichs der Unionsbürgerschaft”, 64 Neue Juristische Wochenschrift, p. 2008; D. Düsterhaus (2012), Union Citizenship after Ruiz Zambrano or how many Rights are there in a Status?, Proceedings of the I CIDUE Conference, La Ley-Kluwer; A. Hinarejos (2011), “Extending Citizenship and the Scope of EU Law (Comment on Ruiz Zambrano, C-34/09”, 79 The Cambridge Law Journal, p. 309; S. Iglesias Sánchez (2011), “El asunto Ruiz Zambrano: una nueva aproximación del Tribunal de Justicia de la Unión Europea a la ciudadanía de la Unión”, 24 Revista General de Derecho Europeo, p. 1; M.R. Carmona Luque (2011), “El disfrute efectivo de la esencia de los derechos de ciudadanía de la Unión”, 38 Revista de Derecho Comunitario Europeo, p. 185; A. Lansbergen & N. Miller (2011), “Court of Justice of the European Union European Citizenship Rights in Internal Situations: An Ambiguous Revolution? Decision of 8 March 2011, Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi (ONEM)”, 7 European Constitutional Law Review, p. 287; K. Lenaerts & J.A. Gutiérrez Fons (2011), “Ruiz-Zambrano (C-34/09) o de la emancipación de la Ciudadanía de la Unión de los límites inherentes a la libre circulación”, 40 Revista española de derecho europeo, p. 493; K. Lenaerts (2011), “Civis europeus sum: from the cross-border link to the status of citizen of the Union”, 3 Online Journal Free Movement Workers EU 7. Available at: http://ec.europa.eu/social/BlobServlet?docId=7281&langId=en.  This lively discussion has continued in the comments to the corrective case law following Zambrano: e.g. A. Wiesbrock (2011), “Disentangling the ‘Union citizenship puzzle’? The McCarthy

68  Sara Iglesias Sánchez

abandonment of the ‘purely internal situation’ approach, these two judgments entail two closely interlinked developments: the re-affirmation and extension of an autonomous legal content for European citizenship even beyond cross-border considerations (Zambrano), and the affirmation of the role of EU law as the legal parameter for national decisions regarding nationality (Rottmann). It is clearly not by chance that these developments have occurred; rather they constitute a joint legal manifestation of the maturity of the status of EU citizenship as a genuine fundamental status.13 One further element makes the time ripe for a reopening of the old debate on the issue of naturalization of third country nationals and their place within the integration process. With the introduction of a truly common EU immigration policy, the harmonization of nationality law becomes a significant issue for reasons of internal coherence and good policy. With the introduction of Union citizenship, as is the case with any federal citizenship, a triangular relationship has replaced the traditional binomial ‘national/foreigners’, giving rise to a new categorization that corresponds to that of ‘nationals of the Member State, nationals of the federation and foreigners to the federation’.14 With the common migration policy, the traditional concept of ‘third country nationals’ is progressively being supplanted by a new notion: that of ‘foreigners to the Union’, whose status requires an overall architecture that takes the status of citizens of the Union as a reference. As Professor Del Valle has eloquently noted, the Union has engaged in the determination of its political community even though it lacks an autonomous conceptual apparatus that could properly enable such a development. Indeed, EU immigration and citizenship law are still tributary to notions and concepts strictly entrenched in the language of nation-State sovereignty, which may not be suited to the governance of a new supranational reality.15 Nationality’s central role in the case”, 36 European Law Review, p. 861; N. Nic Shuibhne (2012), “‘(Some of) The Kids Are All Right’, Case Note on Dereci and McCarthy”, 49 Common Market Law Review, p. 349; D. Marín Consarnau (2012), “Nuevos matices a la protección que ofrece el estatuto de ciudadano de la Union”, 41 Revista de Derecho Comunitario Europeo, p. 221; A. Stanislas & P. Van Elsuwege (2012), “Citizenship rights and the federal balance between the European Union and its Member States: Comment on Dereci”, 37 European Law Review, p. 176; J.M. Cortés Martín (2011), “Sobre lo esencial de los derechos vinculados a la ciudadanía y a su articulación con el derecho fundamental a la vida familiar”, 40 Revista de Derecho Comunitario Europeo, p. 871; A. Tryfonidou (2012), “Redefining the Outer Boundaries of EU Law: The Zambrano, McCarthy and Dereci trilogy”, 18 European Public Law, p. 493. 13 As announced in Case C-184/99 Grzelczyk [2001] ECR I-6193. 14 O. Beaud (2002), “The Question of Nationality within a Federation: a Neglected Issue in Nationality Law”, in R. Hansen & P. Weil, Dual Nationality, Social Rights and Federal Citizenship in the U.S. and Europe. The Reinvention of Citizenship, Berghahn Books, p. 315 ff, at 317. 15 A. del Valle Gálvez (2003), “Extranjería, Ciudadanía Fronteras y Tribunal de Luxemburgo”, in N. Colneric, D. Edward, J.P. Puissochet, D. Ruiz-Jarabo Colomer, Une Communauté de droit. Festschrift für Gil Carlos Rodríguez Iglesias, Berliner Wissenchafts-Verlag, p. 207. Also, by A. del

Nationality: The Missing Link between Citizenship  69

relationship between the Union and the individuals under its jurisdiction is proba­bly the most paradigmatic example of this reality, in which the appropriate interplay between Union citizenship and EU immigration policy has been distorted by the centrality of nationality and its monopoly by the Member States. Against such a background, this chapter seeks to offer an analysis of, and to advance specific proposals for, the role of nationality in the interaction of EU citizenship and EU immigration policy. In this sense, nationality must be regarded as a complex and multifunctional phenomenon which impacts on not only the dividing lines between citizens and foreigners (acquisition and loss of nationality), but also on the basic content of the legal status of both categories of persons (bearing in mind that, under EU immigration law too, nationality is the central element in the prohibition of discrimination). Nationality also acts as a strong constraint upon the policy options of the Union when adopting a protective stance towards citizens and/or third country nationals. 2. The Differing Foundations of EU Citizenship and EU Immigration Policy Before analyzing the most salient effects of the isolation of nationality from EU law for EU citizenship and EU immigration policy, a preliminary issue should be addressed: that these two fields of EU competence have been built upon differing premises, respond to different legal approaches, and are governed by divergent philosophies. In the EU context, nationality is not only the bond between man and State, but it also structures some of the most significant manifestations of the Union’s involvement with individuals. EU law projects its effects onto individuals in the same way that States do. First, in its realm of competences – and generally through national implementation – EU law is the law of the land within the territory of the Union applicable to all individuals physically present in it.16 Valle Gálvez (2007) “Inmigración, extranjería y fronteras en la Unión Europea: cinco problemas conceptuales”, in J.J. Forner Delaygua (ed.), Fronteras exteriores de la UE e inmigración a España: Relaciones internacionales y derecho. Cuadernos 33 de la Escuela Diplomática, Tirant lo Blanch, p. 43. 16 Most rules in EU law do not establish limitations of their scope of application based on nationality. This limitation is only expressly recognized by the Treaty with regard to the freedom of esta­ blishment, and has been extended by interpretation to free movement of workers. On the scope of fundamental freedoms, K. Hailbronner & G. Jochum (eds) (2006), Europarecht II, W. Kohlhammer, pp. 63–65. On the contrary, third country nationals are covered by free movement of goods or by free movement of capital as well as by other policies that are meaningful in terms of granting rights to individuals, such as consumer policy. On this issue and relevant case law: S. BoelaertSuominen (2005), “Non-EU Nationals and Council Directive 2003/109/EC on the Status of ThirdCountry Nationals who are long-term residents: five paces forward and possibly three paces

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Second, there is a set of rules aimed at regulating both the specific status of Union citizens (i.e. rules on citizenship of the Union and free movement provisions),17 and the status of foreigners (i.e. immigration and asylum policy).18 Since free movement law is the basis of much of the law of the Union able to deploy a direct impact on individuals, the limitation of its scope to nationals of the Member States leads in many situations to a virtual exclusion of third country nationals.19 As is the case in some States, specific regulations mitigate the sharpness of this division with regard to family members of citizens,20 and nationals of States with whom international agreements have been concluded.21 The fact that the process of integration is still at the development stage gives rise to significant particularities that strongly affect the way in which the Union determines the basic structure of its relationship with individuals. Under the

back”, 42 Common Market Law Review, p. 1011 ff., at 1014; K. Groenendijk, E. Guild & R. Barzilay (2000), The Legal Status of Third Country Nationals who are Long-Term Residents in a Member State of the European Union, Centre for Migration Law-University of Nijmegen-Council of Europe. 17 Particularly, Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/ EEC and 93/96/EEC, [2004] OJ L158/77. 18 A growing number of secondary acts is being adopted under Title V of Part III of the TFEU, whose second chapter encompasses the legal basis of legal and undocumented migration, asylum and border control. Within the framework of the legal immigration policy, EU law to date covers the status of family members of legal residents, long-term residents, students, researchers, and highly qualified workers, and establishes a minimum standard with regard to workers: Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, [2003] OJ L 251/12; Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents [2004]OJ L 16/44; Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment [2009] OJ L 155/17; Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research [2005] OJ L 289/15; Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service [2004] OJ L 375/12 and Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State [2001] OJ L 343/1. 19 E.g. Case 238/83 Meade [1984] ECR 2631 and Case C-230/97 Awoyemi [1998] ECR I-6781. 20 Provisions regarding family members of Directive 2004/38. 21 Some of the most advanced agreements with Turkey [1964] OJ L 217/3687 with Morocco [2000] OJ L 70/1; with Algeria [2005] OJ L 265/2 and with Tunisia [1998] OJ L97/2.

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pressure of legal and jurisprudential developments, the current system as enshrined in the Treaties is increasingly coming up against more serious pro­ blems in articulating citizenship and immigration policies. This is precisely because of the differing legal foundations that the policies have within primary law. On the one hand, Treaty rules on the citizenship of the Union are strongly linked to its subsidiary and derivative nature. The established interpretation of these basic provisions is tightly bound to their historical genesis,22 which is rooted in the political goal of winning the affection of the populations of the Member States,23 rather than in the plainspoken will to create a common supranational citizenry (with all the legal consequences that this would entail). Accordingly, its legal content was indeed originally conceived of as comprising additional rights, but not as giving the Union the general competence to regulate the basic elements of the status of the Union citizens. On the contrary, the common migration policy has entered into the realm of Union competences through the back door. This policy is one of the areas in which ‘compensatory measures’ were deemed necessary, so as to counter the undesirable outcomes that the abolition of internal border controls could bring. The ultimate objective of the introduction of immigration as an ‘area of interest’ in Maastricht, and of competences in the field of extra-community migration in Amsterdam, was therefore to contribute to the enhancement of free movement within the internal market.24 Contrary to citizenship of the Union, functional needs rather than political rhetoric have inspired the progressive construction of the legal basis for a common migration policy; this was also the motivation for the first generation of immigration measures constituting ‘minimum harmonization’, whose objective was the free movement of persons within the internal market rather than the construction of a comprehensive and truly common migration policy. This approach, clearly adopted in Maastricht and later maintained in Amsterdam and Nice, has radically evolved in the Lisbon Treaty. Indeed, the latest Treaty reform not only decoupled the foundations of the migration policy from the internal market, but it also established an autonomous common

22 We refer here to the ‘established interpretation’, assuming that the wording of the Treaty does not preclude other interpretations that would not contradict it. In this regard, D. Kochenov & R. Plender (2012), “EU citizenship: from an incipient form to an incipient substance? The discovery of the Treaty text”, 37 European Law Review, p. 369. 23 E.g. P. Adonnino (1985), “A People’s Europe. Reports from the ad hoc Committee”, Bulletin of the European Communities, Supplement 7/85. 24 In this sense, e.g. K. Pollet (2000), “The Amsterdam Treaty and Immigration and Asylum Policies: A Legal Analysis”, 57 R.A.E.- L.E.A., at p. 59; A. del Valle Gálvez (1998), “La refundación de la libre circulación de personas, tercer pilar y Schengen: El Espacio Europeo de Libertad, Seguridad y Justicia”, 3 Revista de Derecho Comunitario Europeo, p. 41 ff., at 49.

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migration policy, providing it with specific objectives and principles that should guide its development.25 The ‘additional’ nature of Union citizenship contrasts sharply with the ‘basic’ or ‘minimum standard’ nature of the Union’s action towards immigrants. On the one hand, the basic component of Union action towards its own citizens is missing: with regard to migrants, the Union has assumed the task of establishing the most basic lines of protection, which remain a State competence when it comes to its own static citizens (the overwhelming majority of EU citizens). On the other hand, the ‘European additional component’ of immigration policy is so weak as to be negligible. The added value of the common migration policy is its role as minimum threshold for the status and admission procedures for third country nationals, but the ‘European’ content of the status is minimal, due to the lack of a coherent system of intra-EU mobility for third-country nationals, or indeed of political rights of any kind at the EU level.26 When we take this situation into consideration, it becomes difficult if not impossible to coherently construct the mutual interaction between a citizenship status that is derivative and of ‘additional nature’ on the one hand, with on the other hand an immigration policy which constitutes a common policy whose vocation is to establish the basic general rules that should determine the status of third country nationals. The Treaty’s current structure continues to sharply separate the provisions relating to immigration from those regarding Union citizenship. EU law offers no guiding elements on the interrelation between the status of foreigners and Union citizens: the link between European citizenship and European immigration law is missing in both the Treaty and in secondary law. Both spheres of material competence remain anchored to State nationality, which at times serves as a vehicle of communication, but at other times as insulating material. 3. Citizenship of the Union and EU Migration Policy: The Role of Nationality

in a Dysfunctional Relationship

Having provided in outline the complex interaction between citizenship and immigration in the EU, I will now go on explore the basic problems that arise from this situation. I shall argue here that most of the dysfunctional effects of this 25 In particular, art. 79 TFEU establishes that “[t]he Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings (…)”. 26 See section III (c) of this Chapter.

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situation arise from the fact that State nationality is still paramount, and thus impedes the direct connection between EU citizenship and EU immigration policy. This occurs in three different domains: (a) in the policy field, where EU measures in the field of migration can negatively affect the reaction of Member States in framing their nationality policies; (b) in the field of acquisition and loss of nationality, where it produces systemic failures in the processes of naturalization due to lack of coordination; and (c) in the field of the legal status of migrants, where the attachment of EU migration to State nationality as the term of comparison deprives the status of EU migrants of a significant European component. 3.1. Policy Interaction: The Functional Link between Immigration Law and Nationality Law Within States, nationality and immigration law are linked through a relationship of connection and mutual adjustment, and frequently serve common policy goals. Since naturalization is the hinge between full membership and being an alien, the generalization and facilitation of the possibilities of acquiring citizenship by residence has strengthened the connection between immigration and nationality law.27 Indeed, these spheres of law serve complementary and interdependent policy goals, and require constant adjustment if undesirable outcomes are to be prevented. In this sense, naturalization and migration policies often go hand in hand, mutually adjusting their gears at the service of inclusionary or exclusionary goals. For this purpose, there exists a variety of combinations which offer a range of possibilities, depending on the model of membership being sought (e.g. the options range from openness in the migration and nationality fields – the model of the first era of immigration countries – to strict migration and nationality policies – the model of zero migration, following the 1973 crisis).28 27 On this convergence, P. Weil (2001), “Access to Citizenship: A comparison of Twenty-Five Nationality Laws”, in T.A. Aleinikoff & D. Klusmeyer (eds), Citizenship Today: Global Perspectives and Practices, Carnegie Endowment for International Peace, p. 17. Nationality law continues to evolve, one of the most important trends being the introduction of integration testing, which may hamper naturalization by residence. In this regard, H. Waldrauch (2006), “Acquisition of Nationality”, in R. Bauböck, E. Ersbøll, K. Groenendijk & H. Waldrauch (eds), Acquisition and Loss of Nationality. Policies and Trends in 15 European States, Vol. 1. Comparative Analysis Amsterdam University Press, p. 121 ff., at 134 ff. 28 This interconnected design operates upon the basis that both competences – those on migration and those on nationality- are concentrated on the national level. This is usually true even in fede­ rations, where, despite distinctive administrative practices in the implementation field being possible depending on the decentralization level, it is usually true that both powers – migration and naturalization – belong to the Federation. I have explored elsewhere the idea that alternative designs are nonetheless possible, taking as examples the Swiss and the Canadian situations,

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Taking this interconnection into account, and in the absence of any coordination in the field of nationality, the introduction of an EU migration policy potentially entails the disruption of this relationship of mutual adjustment in national strategies of immigration and naturalization. Indeed, the Union’s assertion of its role of determining the core elements of immigration policy impacts on Member States’ leeway when determining the routes in and out of the national political community. Aware of this problematic outcome, the initial primary law framework of the common migration policy under the Treaty of Amsterdam submitted the regulation of legal migration to the most stringent decision-making conditions. The requirement of unanimity on legal migration – when other areas of the common migration policy have progressively entered the realm of majority voting29 – must be understood as an attempt to protect national monopolies of sovereign competence in determining population composition. Following the enactment of a constitutional basis for a truly common migration policy with the Lisbon Treaty and with the generalization of the ordinary legislative procedure,30 this situation is now largely a thing of the past. But the ‘admissions volume clause’ still represents a desperate attempt by Member States to retain their vital prerogative.31 Another interesting attempt by the States to limit the potential impact of EU immigration law on their national communities is the introduction in the Students Directive of a temporary derogation clause exempting States from the obligation to grant residence permits to students, thus making it possible to preclude time spent as a student from being taken into account in naturalization procedures.32 Despite these attempts, several EU norms already determine the admissibility requirements for certain categories of migrants. Their fulfillment entails the right to enter into the territory of the Member States,33 and therefore paves the way towards membership. where very wide naturalization and migration competences respectively belong to sub-federal levels of government See S. Iglesias Sánchez (2012), “European Immigration and the Path Towards Federalism: a New Model for the New EU as an Area of Freedom, Security and Justice?”, in C. Gortázar, C. Parra, B. Segaert & C. Timmerman (eds), European Migration and Asylum Policies: coherence or Contradiction An Interdisciplinary Evaluation of the EU Programmes of Tampere (1999), The Hague (2004), Stockholm (2009)?, Brussels: Bruylant, p. 227. 29 Art 63 (3) and (4) TCE. On the specificity of this provisions under the TCE, K. Hailbronner (1998), “European Immigration and Asylum Law under the Amsterdam Treaty”, 35 Common Market Law Review, p. 1047 ff., at 1051. See also the Opinion of AG Kokott of 8 September 2005, Case C-540/03 Parliament v Council, points 34–42. 30 Art. 79 (2) TFUE. 31 Art. 79 (5) The interpretation of this clause is fraught with incertitude. 32 See Article 23 in relation to Art. 15 of Directive 2004/114. See, on the Spanish position, Council Document nº 6892/04 of 27 February 2004. 33 This is the case of family members (Directive 2003/86), students (Directive 2004/114) and researchers (Directive 2005/71). The admission of highly qualified workers (Directive 2009/50)

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The interrelation between immigration and naturalization policies may lead to States seeking to compensate for their loss of sovereignty in migration issues with a tightening-up of their naturalization policies, which still remain entirely in their hands. This has already been made clear in the field of free movement of persons and in the interactions of nationality law with the migration rights of family members.34 The effects of the Chen case – which contributed to the national debate on the abandonment of an absolute ius soli approach – are in this sense paradigmatic,35 and it is not beyond the realms of possibility that the judgment in the Ruiz Zambrano case might provoke a reaction by States in the field of nationality.36 Indeed, as was the case with Chen, the EU affirmation of immigration rights for family members can be countered by States changing the rules of acquisition of nationality,37 in particular by departing from or restricting the ius soli approach. In the Ruiz Zambrano case, nonetheless, Belgian nationality law – which, by contrast with the Irish case, did not have a system of absolute ius soli – had been adjusted shortly before the ECJ’s decision.38 can nonetheless be subjected to admission volumes. Students, researchers, long-term residents (Directive 2003/109) and highly qualified workers already resident in a Member State will be granted a right to reside in a second Member state under certain conditions established in the intra-EU mobility provisions of the above-mentioned instruments. 34 On this matter, N. Cambien (2012), The Impact of Union Citizenship on Member State Immigration Laws: Some Potentially Perverse Side-Effects Resulting from Recent ECJ Case Law, available at SSRN: http://ssrn.com/abstract=2189492 or http://dx.doi.org/10.2139/ssrn.2189492. 35 Even though the changes in Irish nationality law were not completely motivated by the judgment of the ECJ, its impact was noticeable. See R. Handoll (2006), “Ireland”, in R. Bauböck, E. Ersbøll, K. Groenendijk & H. Waldrauch (eds), Acquisition and Loss of Nationality. Policies and Trends in 15 European states. Vol. 2, Amsterdam University Press, p. 289; E.C. Piola (2006), “The Reform of Irish Citizenship”, 5 Nordic Irish Studies, p. 41. See also K. Rostek & G. Davies (2006), “The impact of Union citizenship on national citizenship policies”, 10 European Integration Online Papers, p. 1. 36 See Opinion of AG Sharpston, points 114 and 115. See also, e.g. A. Wiesbroek, The Zambrano case: Relying on Union citizenship rights in ‘internal situations, http://eudo-citizenship.eu/citizenship-news/449-the-zambrano-case-relying-on-union-citizenship-rights-in-internal-situations and Cambien (n. 34). 37 It is noteworthy that before the Chen case, the Irish Supreme Court had stated the need to preserve the integrity of the asylum, and immigration systems could be considered as grounds for refusing residence rights to parents of children that had gained Irish nationality through ius soli. See L. and O. v. Minister for Justice, Equality and Law Reform [2003] 1 I.R. 1. 38 Indeed, as the Opinion of AG Sharpston in the Ruiz Zambrano case highlights, Article 10 (1) of the Belgian Nationality Code (stating that “any child born in Belgium who, at any time before reaching the age of 18 or being declared of full age, would be stateless if he or she did not have Belgian nationality”) was amended by the Law of 27 December 2006, which made it impossible for such a person to get Belgian nationality “if, by appropriate administrative action instituted with the diplomatic or consular authorities of the country of nationality of the child’s parent(s), the child’s legal representative(s) can obtain a different nationality for it” (see point 17 of the Opinion). On the modification of Belgian nationality law, see Cambien (n. 34).

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In the end, the prevailing freedom of states in the realm of nationality empowers them to react to any immigration decision at the EU level. This deprives the EU not only of the chance to adopt a protective approach towards the membership issue, but also of pressing forward with a rights-oriented approach towards migration: good cases may provoke reactions from Member States which then produce a situation where individuals would end up worse off than before. 3.2. Acquisition and Loss of Nationality: Systemic Failures If we consider naturalization to be the most perfect legal recognition of integration, then significant problems also arise on the integration side. The construction of a common immigration policy supposedly aimed at integrating migrants is strongly distorted by the fact that the final step in any process of successful integration – naturalization – is precluded from coming under the material influence of EU law. The possibility of decoupling EU citizenship from State nationality in order to grant third country nationals direct access to European status has been considered at length by the doctrine,39 but its fulfilment remains improbable under the current treaty context; the reigning political climate means that, at least in the near future, it is unlikely to change. The problematic effects of mobility on the field of acquisition and nationality loss can already be discerned in the realm of free movement of EU citizens. Several Member States have tried to mitigate the potentially unwelcome results by facilitating naturalization of other EU citizens, or by preventing loss of nationality when residency in another Member State would entail such a risk.40 As intraEU mobility rights for legally resident third country nationals increase in importance,41 these problems are reproduced: the exercising of limited intra-EU mobility rights may have a seriously detrimental effect on the processes of acquisition of nationality on the basis of residence in any of the Member States 39 E.g. W. Maas (2008), “Migrants, states, and EU citizenship’s unfulfilled promise”, 12 Citizenship Studies, p. 583. 40 Some States exempt residence in other Member States from the effects of continuing residence abroad as a reason for loss of nationality (the Netherlands), establishing that the obtention of the nationality of another State does not entail loss of nationality (Germany). M. Vink & R.G. de Groot (2010), “Citizenship Attribution in Western Europe: International Framework and Domestic Trends”, 36 Journal of Ethnic and Migration Studies 713. See also B. de Hart & R. van Oers, “European trends in nationality law”, in Bauböck et al, Acquisition and Loss of Nationality, (n. 27), p. 317. 41 S. Iglesias Sánchez (2009), “Free Movement of Third Country Nationals in the European Union? Main Features, Deficiencies and Challenges of the New Mobility Rights in the Area of Freedom, Security and Justice”, 15 European Law Journal, p. 791; A. Kochenov (2008), “What IntraCommunity Mobility for Third-Country Workers?”, 6 European Law Review, p. 913.

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involved, since periods of residence outside the territory of the State usually interrupt the period for naturalization.42 Mobility, which is supposed to situate Member State nationals within the scope of EU law, may in fact hinder the process of integration of third country nationals into EU society, and make it impossible for them to become full EU citizens. 3.3. Nationality as the Term of Reference: Depriving EU Immigration Law of an ‘Additional Component’ Besides the problems analyzed in the previous section, nationality – this time in its preeminent role as the term of comparison for any European status – gives rise to further disruptive effects. Similarly to EU law on the free movement of persons, EU immigration law states that it is Member States’ nationality, and not EU citizenship, that is the term of reference, and not only for the application of the equal treatment principle, but also for the overall construction of new legal statuses. This fact has an initial cosmetic effect, in that it reflects badly on the citizenship of the Union itself by exposing its weakness as a fully-fledged reference for the endowment of rights. Indeed, the ‘complementary’ foundation of EU citizenship makes it unsound as the basis for the construction of the status of EU immigrants. As a direct consequence, this underlying conception of EU immigration law as disconnected from EU citizenship status prevents the intersection between these two legal fields from being constructed under a rationale of mutual consideration according to the demands of logical coherence. The absolute (and astonishing) disconnection between the two legal fields in the Treaty gives rise to a ‘nationalization’ of the content of migration in secondary law. Indeed, those EU Directives on legal migration regulating the legal status of third country nationals which rely on a (partial) application of the equal treatment principle, refer to the status of Member States nationals rather than to the status of the citizens of the Union. The legal consequences might in principle be similar, but this issue, though apparently irrelevant and merely formal, carries within it the seeds for diverging interpretations with regard to the EU acquis in Free Movement of Persons Law. Despite these dangers, the path followed by EU case law is contributing to a unification of the interpretation of immigration provisions with that of provisions on free movement.43 But the lack of any firm constitutional approach that 42 F. Strumia (2009), “European Citizenship: Mobile Nationals, Immobile Aliens, and Random Europeans”, in M.S. Greve & M. Zöller, Citizenship in America and Europe. Beyond the NationState, The AEI Press. See also S. Iglesias Sánchez (2010), La libre circulación de extranjeros en la Unión Europea, Reus. 43 See Section 4.3.

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would clearly attach the definition of status of third country nationals to the status of citizens of the Union allows the EU legislator to enact weakened versions of the equal treatment principle, applying derogations that would be considered unacceptable with regard to EU citizens, even to the status of long-term residents.44 This is all the more worrying in view of the recurring (though continuously contested) determination to exclude third country nationals from the general provision on non-discrimination on nationality grounds as contained in article 18 TFEU.45 A second consequence that clearly arises from the lack of interconnection between EU citizenship and EU migration law is that the European perspective of the status of third country nationals has so far been neglected. The need to provide for a European profile that will include immigrants into the project of integration, and which would make them beneficiaries of the most important rights that the European construction brings with it, is not adequately reflected. The fact that EU citizenship is not in itself the term of comparison allows EU-specific rights to be kept out of the equation. The most paradigmatic examples are extremely weak intra-EU mobility rights and a lack of political rights even for long-term residents.46 4. The Ways Forward: Citizenship, Fundamental Rights, Coordination and

Reinforcement of the Status of Third Country Nationals

On the basis of the issues discussed above, and in order to tackle comprehensively and coherently the multiple connections and interactions that are deployed within the nationals/EU citizens/ third country nationals triangle, any analysis of possible ways forward should take into account the need to understand EU 44 Article 11 of Directive 2003/109 regarding long-term residents; Article 12 of Directive 2004/71 regarding researchers; Article 14 of Directive 2009/50 regarding highly qualified workers; Article 12 of Directive 2011/98 (single permit Directive), regarding workers. 45 For a recent jurisprudential confirmation of this position: joined Cases C-22/08 and C-23/08 Vatsouras [2009] ECR I-4585. The complete exclusion of third country nationals from this provision, even though their status is now a matter of EU law, has been repeatedly criticized by the doctrine, e.g. C. Hublet (2009), “The Scope of Article 12 of the Treaty of the European Communities vis-à-vis Third-Country Nationals: Evolution at Last?”, 15 European Law Journal, p. 757; R. Cholewinski (2002), Borders and discrimination in the European Union, ILPA report; S. Boelaert-Suominem (2005), “Non-EU Nationals and Council Directive 2003/109/EC on the Status of Third-Country Nationals who are long-term residents: five paces forward and possibly three paces back”, 42 Common Market Law Review, p. 1011; D. Kochenov (2009), “Ius Tractum of many faces: European citizenship and the difficult relationship between status and rights”, 15 Columbia Journal of European Law, p. 169 ff., at 237. 46 Kochenov, ibid.

Nationality: The Missing Link between Citizenship  79

immigration law and the citizenship of the Union as two closely connected fields of law. 4.1. The Freestanding Protection of EU Citizenship under Art. 20 TFUE and the Role of Fundamental Rights In view of the undesirable outcomes described above, the margin of reaction of Member States in the field of nationality raises serious concerns. But the instruments currently available to EU law interpreters to argue restrictions on the leeway of Member States in nationality issues are nonetheless limited. A preliminary discussion is required, one which would assert the competence of EU law to fix minimal limitations regarding nationality acquisition. Case law is still a long way from letting us come to general conclusions about the general impact of EU law on the determination of nationality. Indeed, because the decision of the Court in Rottmann is based upon the ‘deprivation’ rationale, and not only does not reverse the Kaur precedent,47 but in fact reinstates it, it is still doubtful that the obligation to pay due respect to EU law (specifically, to the principle of proportionality) will be also applicable to situations of acquisition of nationality – and not only to situations involving withdrawal.48 Judgments in the area of citizenship following Rottmann have emphasized that the effects of the new approach towards the realm of application of EU citizenship are limited to ‘deprivation cases’.49 These cases all concern situations of residence rights for third country nationals, and supply no connection to matters relating to loss and acquisition of nationality. But this should not prevent a serious reconsideration of the obligation to respect EU law when Member States act in the realm of their competences. Indeed, to return to Rottmann, the principles stated in the 47 Case C 192/99 Kaur [2001] ECR I-1237. The case concerned the fact that the UK Declaration annexed to the Treaties regarding the determination of its own nationals left British Overseas Citizens outside the definition of British citizens for EU purposes. ECJ stated that the determination of UK nationality for Community purposes had to be established by reference to the Declaration, and declared that “the adoption of that declaration did not have the effect of depriving any person who did not satisfy the definition of a national of the United Kingdom of rights to which that person might be entitled under Community law. The consequence was rather that such rights never arose in the first place for such a person”, para. 25. 48 Doctrinal discussion is vast on this topic. See A. Tryfonidou (2011), “The impact of EU law on nationality laws and migration control in the EU’s member states”, 25 Journal of Immigration Asylum and Nationality Law, p. 358. Some authors maintain that the approach of the ECJ to cases of loss of nationality should be also applicable to cases regarding acquisition, e.g. D. Kochenov, “Case C-135-/08, Janko Rottmann’ (n. 13); De Groot & Seling, ‘The Consequences of the Rottmann Judgment” (n. 12). 49 Case Ruiz Zambrano (n. 11); Case C-434/09, McCarthy, nyr; Case C-256/11 Dereci, judgment of 15 Nov. 2011, nyr.

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judgment (including the application of the principle of proportionality) are also applicable to the issue of nationality reacquisition. It is not inconceivable, therefore, that a situation involving an arbitrary regulation of acquisition of nationality going beyond proportionality – e.g. penalizing EU mobility or free movement rights of third country nationals – could be considered, by engaging the freestanding protection of article 20 TFUE, as falling within the scope of EU law.50 More problematic is the issue of whether the Court will be ready to apply the EU fundamental rights standard (the Charter) to cases of acquisition and loss of nationality. The Ruiz Zambrano formula would allow to apply EU fundamental rights in those cases involving deprivation of nationality that would entail a deprivation of the genuine enjoyment of the substance of citizenship rights. Following this rationale, in Rottmann the Court limited its analysis to the examination of compliance with the general principle of proportionality. After the judgement of the Court in the case Åkerberg Fransson it is clear that the scope of application of EU fundamental rights according to Article 51 coincides with the scope of application of fundamental rights as general principles before the Treaty of Lisbon.51 Therefore, the possibility to apply EU fundamental rights depends on the interpretation of the notion of ‘genuine enjoyment of the substance of citizenship rights’,52 which can be clearly connected to cases of loss of nationality, but not so easily linked to the regulation of acquisition. The role of EU fundamental rights will then remain circumscribed to the field of diplomatic pressure and, in the last resort, to article 7 TEU.53 4.2. Coordination and International Law The lack of Union competences in the field of nationality and the limitations of the arguments based on EU citizenship and on EU fundamental rights have traditionally led some authors to advocate a process of coordination among Member States, which could resort to the open method of coordination for this purpose.54 Coordination is a highly advisable option, and the academic analyses have already 50 We have elaborated further on this issue in M. Hailbronner & S. Iglesias (2011), “The European Court of Justice and Citizenship of the European Union: New Developments Towards a Truly Fundamental Status”, 5 Vienna Journal of International Constitutional Law, p. 497. 51 C-617/10 Åkerberg Fransson, judgment of 26 February 2013, nyr. 52 The strict interpretation in the cases Dereci (n. 49) and C-40/11 Iida, judgment of 8 November 2012, nyr, para. 79–80, has been slightly modulated in a progressive way by the judgment of the Court in the joined cases C-356/11 and C-357/11 O. and S., judgment of 6 December 2012 nyr. 53 On the insufficiency of this approach see A. Von Bogdandy, M. Kottmann, C. Antpöhler, J. Dickschen, S. Hentrei & M. Smrkold (2012), “Reverse Solange – Protecting the Essence of Fundamental Rights Against EU Member States”, 49 Common Market Law Review, p. 489. 54 Rostek and Davies (n. 35); Bauböck et al, Volumes 1 & 2 (n. 27).

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eased the path through comparative studies on nationality law in the Member States of the Union.55 The importance of coordination has come to the fore with Rottmann, in which a situation of fraud in acquisition of nationality in one Member State led to withdrawal of nationality. This gives rise to a situation in which a European citizen may be rendered stateless, since the nationality previously held had been lost by operation of restrictive nationality laws that contemplate naturalization in another State as a ground for loss of nationality. From its inception – in the Tampere European Council of 1999 – the common immigration policy has been linked to the idea of establishing fair access to nationality in the Member States of residence. The approach towards coordination in nationality matters has since only been tackled within the framework of the Common Agenda for Integration, adopted in 2005.56 But the importance of nationality matters has not been properly recognized within the Common Basic Principles,57 as the issue has been diluted into the wider question of ‘participation of immigrants in the democratic process’. After the entry into force of the Lisbon Treaty, cooperation in nationality matters is comprised under the basis of the new support competence introduced by article 79 (4) TFEU.58 Even though several actions have been taken at the level of exchange of knowledge and good practices between Member States through the European Migration Framework59 and through the European Integration Forum,60 there seems to be no clear approach towards those problematical issues for EU citizenship and EU 55 Bauböck et al. ibid; R. Bauböck, B. Perchinig & W. Sievers (2009), Citizenship Policies in the New Europe, Amsterdam University Press. See also the EUDO Citizenship Project, http://eudo-citizenship.eu. 56 Communication from the Commission to the Council, the European Parliament, the European Economic and Social committee and the Committee of the Regions – A Common Agenda for Integration – Framework for the Integration of Third-Country Nationals in the European Union. COM (2005) 389 final. 57 See M. Illamola Dausà (2011), “Los Principios Básicos Comunes como marco de la política de integración de inmigrantes de la Unión Europea y su incorporación en la política española de inmigración”, 38 Revista de Derecho Comunitario Europeo, p. 155. 58 Article 79.4 states: “The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures to provide incentives and support for the action of Member States with a view to promoting the integration of third-country nationals residing legally in their territories, excluding any harmonisation of the laws and regulations of the Member States.” 59 See ‘European Migration Network Specifications for Annual Policy Report 2012’, Doc 274 and the ‘Ad-Hoc Query on acquisition of nationality (Compilation produced on 10th November 2010), available at http://emn.intrasoft-intl.com. 60 Other documents devoted to acquisition and loss of nationality have been drawn up in the framework of the cooperation in integration policy and can be found at the European Integration website (http://ec.europa.eu/ewsi/en/index.cfm), e.g. the Handbook on Integration for policymakers and practitioners, third edition, April 2010.

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migration policy which are the result of the lack of coordination in nationality policies. Despite the problems identified and the complaints received by the Commission,61 a greater level of coordination in the field of loss and acquisition of nationality does not appear to be on the agenda: nationality matters are not even mentioned in the latest agenda for integration of the European Commission.62 Notwithstanding the possibilities of coordination in this field, it is striking that harmonization in nationality matters is considered a taboo for Member States and institutions when it comes to Treaty reform. Not only do examples exist of a certain limitation on the determination of nationality for ‘community purposes’ in other regional international organizations,63 but in Europe too there have already been experiences substantially harmonizing certain aspects of nationality law and coordinating their interactions in light of the effects of free movement. It can be argued that harmonization would make it still more difficult to access nationality, since every Member State would bring its own concerns to the process,64 and cultural and historical distinctions would risk erasure.65 Nonetheless, a minimum level of harmonization can still be envisaged, particularly if the aim were to eliminate the prejudicial outcomes of inter-state mobility. Nordic countries, unlike the European Union, have addressed the effects of free movement on the acquisition and change of nationality. Facilitating the acquisition of nationality by Nordic citizens from other Nordic states was already one objective of the Helsinki Treaty of 1962.66 This harmonization of naturalization 61 See European Commission (2008), Fifth Report on Citizenship of the Union (1 May 2004 – 30 June 2007), COM(2008) 85 final, p. 2. 62 European Commission (2011), European Agenda for the Integration of Third-Country Nationals, COM(2011) 455 final. 63 One remarkable feature of the ECOWAS is that free movement rights are proclaimed with regard to Community citizens, who are defined as the citizens of the Member States that fulfil the conditions of the Protocol on the definition of Community citizen. This protocol does not automatically recognize as a community citizen every national of a Member State, but establishes additional conditions for acquiring and losing community citizenship. Protocol A/P.3/5/82 Relation to the Definition of Community Citizen. 64 D. Kochenov (2010), Rounding up the Circle: the Mutation of Member States’ Nationalities under Pressure from EU Citizenship, EUI Working Papers, EUDO- RSCAS 2010/23, 1. 65 Advocating for the advantages of an EU citizenship dependent on Member State nationality, D.J. Mann & K.P. Purnhagen (2011), The Nature of Union Citizenship between Autonomy and Dependency on (Member) State Citizenship. A Comparative Analysis of the Rottmann Ruling, or: How to Avoid a European Dred Scott Decision?, 9, Amsterdam Centre for European Law and Governance Working Paper Series. 66 Article 3 of the Treaty of Co-operation between Denmark, Finland, Iceland, Norway and Sweden (the Helsinki Treaty), vol. 795, p. 370. This Treaty was signed on 23 March 1962 and entered into force on 1 July 1962 (as amended by Agreements that were signed on 13 February 1971, 11 March 1974, 15 June 1983, 6 May 1985, 21 August 1991, 18 March 1993, and 29 September 1995).

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norms has been followed up by an Agreement, which not only offers very favourable conditions when changing nationality from one Nordic state to another, but which also takes into account residence periods in other Nordic countries so as to facilitate the naturalization of third country residents across Nordic states (subject to certain conditions regarding the length of residence and the age of the applicant).67 In the absence of any serious attempt to coordinate within the EU, International law gains particular relevance, having established the most important limitations to date to which Member States are subject regarding nationality. Besides the existing treaties of general application, regional international law – in particular the European Convention on Nationality – seems to be a promising instrument, which may serve as a minimum standard.68 It is worth highlighting that, when describing their reactions to the Ruiz Zambrano judgment, some States saw as deriving from international law the obligation to grant nationality by ius soli to children who otherwise would be stateless.69 But not even in this regard have EU Member States managed to adopt a common position: there are still six Member States that have neither signed nor ratified the ECN, while seven remain at the signature stage. The Rottmann case, moreover, has made it clear that the lack of coordination between Member States could not be avoided by resorting to the available international law instruments, since no provision examined by the Court would have prevented the deprivation of nationality. 4.3. Enhancing the Status of Third Country Nationals and Its European Dimension Under the treaties’ current terms, and given the established interpretation of the provisions on citizenship and fundamental rights, it seems that the most productive way to tackle the dysfunctions caused by the EU’s lack of competence in nationality issues would be precisely to render nationality as insignificant as possible. The strengthening of the status of third country nationals could be achieved 67 Agreement between Denmark, Finland, Iceland, Norway and Sweden on the Implementation of Certain Provisions Concerning Nationality. Done at Copenhagen 14 January 2002, UNTS, vol. 2374, p. 313. 68 For a complete account of the relevant instruments see K. Hailbronner, “Nationality in public international law and European law”, in Bauböck et al., Volumes 1 and 2 (n. 27). 69 See the responses of the UK and Spain to Ad-Hoc Query on the Consequences of the Zambrano case (C-34/09) requested by Commission on 14th April 2011. Available at the website of the European Migration Network http://emn.intrasoft-intl.com. The States referred to the Convention for the Reduction of Statelessness, UN A/CONF.9/15, 1961 whose Article 1 establishes the criteria under which “a Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless” and to Article 7 of the Convention on the Rights of the Child, 1989, United Nations Treaty Series, vol. 1577, p. 3.

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without posing significant competence problems for the EU, and the cumbersome­ and sensitive issue of transforming the relationship of EU citizenship to the nationalities of the member states would therefore be avoided. Enhancing the status of third country nationals would then render nationality a ‘useless intermediary’.70 Such an approach is supported by the conclusions which have been drawn in the field of free movement of persons and EU citizenship, with recent studies on access to citizenship in Europe demonstrating that EU/EFTA countries are less likely to become citizens in the member state of residence.71 This shows that a system based on movement and equal treatment may be suitable to dimi­ nish the legal significance of nationality, thus advancing towards the equivalence of nationalities of member States:72 nationality as such would become important as a connector to EU citizenship, but not per se.73 The long-term residents Directive has already been designed with this in mind, and represents a first attempt at the construction of a ‘subsidiary form of citizenship’.74 Nonetheless, two important further steps should be taken if this instrument is to represent a serious alternative to citizenship acquisition: its provisions should be interpreted as closely as possible to the European citizenship acquis, and the instrument should be modified in order to enhance its ‘European added value’. In the first place, as far as possible the EU acquis on free movement of persons should be taken into account when interpreting EU immigration law. This approach is already being followed by the Court of Justice, and has become particularly salient with regard to the interpretation of the family reunification directive.75 It is an argument which seems even more compelling when we come to the interpretation of the long-term residents Directive. Although the prohibition of discrimination on grounds of nationality is worded in such a way as that it takes as a reference the status of nationality of Member States, it is clear that it is an instrument which should be interpreted as far as possible by analogy to the status of Union citizenship. Indeed, if we take into account its legislative history and its 70 De Waele (n. 10), p. 333. 71 J. Dronkers & M.P. Vink (2012), “Explaining access to citizenship in Europe: How citizenship policies affect naturalization rates”, 1 European Union Politics at p. 18. 72 In this sense, G. Davies (2005), “‘Any Place I Hang My Hat?’ or: Residence is the New Nationality”, 43 European Law Journal, p. 11; D. Kochenov, “Rounding up the Circle”, op. cit. at note 62. 73 See S. Besson & A. Utzinger (2008), “Towards European Citizenship”, 39 The Journal of Social Philosophy, p. 185. 74 At length, D. Acosta (2011), The Long-Term Residence Status as a Subsidiary Form of EU Citizenship, Martinus Nijhoff. 75 Case C-578/08 Chakroun [2010] ECR I-1839. See J.M. Cortés Martín (2012), “Ciudadanos de la Unión vs. nacionales de terceros países: sobre la incipiente convergencia interpretative del derecho europeo a la reagrupación familiar”, 26 Revista General de Derecho Europeo. Wiesbrock (n. 8), at p. 84; Acosta, ibid.

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objective, it is clear that the Directive seeks to endow third country nationals who are long term residents with a set of uniform rights which are ‘as near as possible to those enjoyed by citizens of the European Union’.76 Granted, the wording of the Directive on occasion makes it very difficult to argue for an absolute analogy with the rights of EU citizens:77 this is the case, for example, with the possibility of restricting the application of the equal treatment principle to social assistance and social protection to ‘core benefits’. In Kamberaj,78 the Court has reinstated the findings in the Chakroun case, and has posited that, since the integration of longterm residents in the Member States and their right to equal treatment (in the areas listed in Article 11) is the general rule, the derogation regarding social assistance and social protection has to be interpreted restrictively.79 Moreover, the strength of the Charter of Fundamental Rights cannot be overestimated, with the Kamberaj case again an example of how the Charter can be used to interpret the long-term residence Directive in a way that strongly undermines the limitations on the equal treatment principle.80 Secondly, the long-term residents Directive still has to overcome well-founded criticisms of its shortcomings. Besides the limitations on the equal treatment principle, the regime on intra-EU mobility is notably insufficient, and is not even comparable to that on free movement.81 Paradoxically, it is precisely the free movement of persons which is the element that may make acquisition of nationality more attractive to third country nationals, since EU law, despite its express competence for advancement in this field, has so far failed to do so. Strengthening EU mobility would therefore be an interesting way to mitigate the relative importance of one of the remaining incentives to acquire nationality: the possibility to enjoy EU free movement rights. Whereas the extension of free movement rights to third country nationals is already prefigured by the Treaty and the Charter, therefore making its current unsatisfactory regulation a mere legislative option, the possibility of granting voting rights to third country nationals (even if only to the European 76 Second preamble of Directive 109/2003. 77 At length, Iglesias, La libre circulación de los extranjeros (n. 42). 78 Judgment in the case C- 571/10, Kamberaj, of 24 April 2012. 79 Para. 86, Kamberaj. 80 Para. 92, Kamberaj. 81 On this issue: A. Wiesbrock (2010), “Free movement of third-country nationals in the European Union: the illusion of inclusion”, 35 European Law Review, p. 455; Iglesias, La libre circulación de extranjeros (n. 42); Iglesias ‘Free Movement of Third Country Nationals’ (n. 42) and Kocharov, ‘What Intra-Community Mobility’ (n. 42). 82 J. Shaw, The Transformation of Citizenship in the European Union: Electoral Rights and the Restructuring of Political Space, Cambridge University Press 2007; F. Fabbrini (2011), “Voting Rights for Non-Citizens: The European Multilevel and the US Federal Constitutional Systems Compared”, 7 European Constitutional Law Review, p. 392.

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Parliament) encounters greater difficulties regarding its possible legal basis.82 Under the current legal framework, resort to coordination under the support of the EU under art. 79 (4) TFEU remains one possible way of advancing in this direction. 5. Concluding Remarks The absolute discretion of States in determining who their citizens are has for a long time been discussed and criticized by the doctrine. The most common grounds for criticism have been the obvious consequences for other Member States, since naturalized citizens automatically acquire EU citizenship and free movement rights.83 The risks of this doctrinal reluctance materializing were successfully tackled by the Court in the landmark case Micheletti, which prevented Member States from questioning nationality concessions made by other Member States. Protecting the autonomy of States in nationality matters has become one of the key elements of accession to EU citizenship. As long as Member States maintain approaches that are acceptable, this is not necessarily negative. For that matter, International Law accounts for a certain level of approximation of nationality legislations, with the legal and political interactions within the process of EU integration also having led to significant convergence. The basic framework is completed by the protection of human rights under the Rome Convention, and by the progressively more significant limitations imposed by EU law (i.e. proportionality and, arguably, fundamental rights). Within these parameters, States remain free to determine their own systems regarding nationality acquisition and loss. One important development in EU law that should lead to a reconsideration of the role of nationality in EU law is that admission of non-EU migrants is no longer in the exclusive power of States. The competence of the Union has already been developed by significant regulations which have established the admission criteria for entry of third country nationals into the Member States. The consequence is that the first gateway towards membership is no longer under the States’ exclusive control. The Union’s exercise of its competence in this sense, however, has been anything but pervasive. The EU legislator has scrupulously respected of 83 The example of Spanish nationality law with regard to Latin America is paradigmatic. See G.R. de Groot (2002), “Latin-American European citizens: Some consequences of the autonomy of the Member States of the European Union in nationality matters”, 9 Maastricht Journal, p. 115. Explaining the Spanish position, E. Pérez Vera (1981), “El sistema español de doble nacionalidad ante la futura adhesion de España a las Comunidades Europeas”, 8 Revista de instituciones europeas, p. 685.

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Member States’ concerns, and has proceeded only to a de minimis harmonization (imposed in the pre-Lisbon period by the unanimity requirement). The first norm on legal migration to be adopted in the post-Lisbon era – the ‘single permit Directive’ – was, moreover, affected by the ‘admissions volume clause’, and therefore conscientiously refrains from in any way becoming involved in the determination of admission. Nonetheless, this situation might well be temporary: from the theoretical perspective, the precarious state of the common immigration policy does not undermine its potentially far-reaching implications of depriving States of the absolute control of one element in the equation that leads to the configuration of their body of citizens. The common migration policy thus represents the first stone in building real Union involvement in deciding the pool of its own potential citizens. In this chapter, we have analyzed some of the problematic outcomes arising from the disconnection between EU citizenship and EU immigration policy. We have addressed the issues posed by the lack of competences in the field of determination of nationality and by the centrality of nationality as a term of comparison so as to determine rights attached to the status of third country nationals. We have also argued that most of the incoherencies produced by the lack of competences in the field of nationality could be resolved by enhancing the status of third country nationals. Under the current Treaty framework, there is still a place for constructive interpretation which will bring certain issues relating to nationality acquisition and loss within the scope of EU law, though this will ultimately depend on how these issues evolve in the case law of the Court of Justice. But in any case, and bearing in mind the limitations of a potential subsidiary EU control on nationality matters (which would still remain a State competence), the common migration policy does allow for a valuable alternative: namely the substantive enhancement of the content of its rules, and particularly, of long term residence status, enhancing its EU dimension and fostering an interpretation of its provisions which approaches as closely as possible the status enjoyed by Union citizens.

Towards a Citizenship of the Association? On the Future of Non-Discrimination, Preferential Treatment and the Standstill Clauses in the EU-Turkey Association Regime Annette Schrauwen and Thomas Vandamme* 1. Introduction In the 2011 Dereci case,1 a Turkish family member of an EU citizen could derive a right to reside in Austria from the EU-Turkey Association Regime2 where his status as family member of EU citizen did not help him. The Court made clear that the famous ‘standstill clauses’ of the association regime prohibit the tightening of rules altogether, as they aim to create conditions conductive to the progressive establishment of free movement of workers, services and freedom of establishment respectively.3 The factual situation in this case (the Union citizen who could have provided a derived right to Dereci never moved) leads to an outcome that is at odds with what one would expect based on the difference in positions of Third Country Nationals (TCNs) having derived rights as family members of EU citizens on the one hand and that of TCNs having independent rights on the other.4 A decade ago, Hedemann-Robinson stated that the international arrangements concluded between the EU and third countries, apart from the EEA and EU-Swiss * Earlier versions of this paper were presented at the Nijmegen Jean Monnet workshop ‘Re-conceptualisation of EU Citizenship’, 25 and 26 May 2011 and at the Amsterdam Ius Commune workshop ‘Multiple Forms of Citizenship’, 30 November 2012. We thank all participants in these workshops for their valuable comments and suggestions. 1 Case C-256/11, Dereci, judgment of 15 November 2011, nyr. 2 Although the official name of the 1963 Ankara Agreement (see infra) still refers to the ‘EEC’, the regime’s main decision taking body, the Association Council, nowadays adopts the name of ‘EU-Turkey Association Council’, see for example COM(2012) 152 (final). In the following we shall use the term ‘EU-Turkey Association Regime’ to cover all legal instruments and CJEU jurisprudence that together shape the Association rules in place between the EU and Turkey. 3 See par. 90 Dereci, as cited note 1. 4 See also the comparison between EU citizens, Third Country nationals and Turkish nationals under the Association by K. Groenendijk (2006), “Citizens and Third Country Nationals: Differential Treatment or Discrimination?”, in J.Y. Carlier & E. Guild, The Future of Free Movement of Persons in the EU, Brussels: Bruylant, pp. 79–92.

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arrangements, ‘do not ensure that any nationals of the third countries signatories who reside within the Union enjoy rights remotely commensurate to those currently enjoyed by [Member State nationals] under Community law’.5 Non-citizens however are not a ‘single category’, but the extent to which they obtain the elements of citizenship (rights and duties, membership and participation)6 depend on the agreement between their state of nationality and the EU. Nationality rather than residence determines what Union rules are applicable.7 This heterogeneous, even hierarchical, approach to TCNs’ rights, depending on the specific regime at hand can be illustrated by the following paragraph from the Court’s case law: [T]he term ‘member of the family’ of a Moroccan migrant worker, within the meaning of Article 41(1) of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco (…), extends to relatives in the ascending line of that worker and of his spouse who live with him in the host Member State. That interpretation, given in respect of a cooperation agreement, must apply a fortiori with respect to an association agreement, which pursues a more ambitious objective. (emphasis added)8

The Dereci case inspired us to examine the case law on the stand-still clauses in the EU-Turkey Association regime in order to find out where the rights enjoyed by Turkish nationals fit into Hedemann-Robinson’s statement that they are not necessarily remotely commensurate to those enjoyed by EU nationals. Articles 12, 13 and 14 of the 1963 Association Agreement (AA) aim to ‘progressively secure’ the free movement of workers, of services and the freedom of establishment. As the EU-Turkey association arrangements have their own place within the ‘pattern of hierarchy’ between various agreements in terms of the range of individual rights granted,9 we limit ourselves to these arrangements. More in particular, we explore whether the concept of ‘association citizenship’ is appropriate to describe the contemporary reality of Turkish nationals under the Association regime. The use of a citizenship concept beholds the idea that full citizenship presupposes at least the concept of formal equality – likes must be treated

5 M. Hedemann-Robinson (2001), “An Overview of Recent Legal Developments at Community Level in Relation to Third Country Nationals Resident Within the European Union, with Particular Reference to Case Law of the Court of Justice”, 38 Common Market Law Review, pp. 525–586, at 532. Paula Garcia Andrade qualifies nationals from Norway, Iceland, Liechtenstein and Switzerland as “privileged third-country nationals” who enjoy the rights of free movement and residence attached to Union citizenship (Nijmegen Jean Monnet working paper). 6 D. Held (1991), Between State and Civil Society: Citizenship, London: Lawrence and Wishart. 7 Hedemann-Robinson, as cited note 5, at p. 527 and 581. 8 See Case C-275/02, Ayaz, judgment of 30 September 2004, [2004] ECR I-8765, par. 47 (on the interpretation of art. 7 Decision 1/80 that deals with ‘family members’ of Turkish workers). 9 Hedemann-Robinson, as cited note 5, at p. 533.

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alike.10 As always, one needs to define the correct criteria in order to determine the comparator, the ‘like’ element for the ‘alike treatment’. In our analysis, the comparators for the position of Turkish nationals are Union citizens who reside in a Member State other than that of their nationality. In a EU context, the Union citizen qualifies as the ‘maximum citizen’ possessing the fullest possible set of rights and duties, membership and participation.11 In order to find out whether the position of Turkish nationals under the Association arrangements is progressively moving towards that maximum citizenship we use the substance of equal treatment as yardstick in a case law analysis. The focus of the analysis is on recent case law of the European Court of Justice (CJEU) on two provisions in the association arrangements that read together seem to dictate a progressive inclusion: the non-discrimination clause of the AA and of the standstill clauses of the Additional Protocol (AP) and of Decision 1/80 respectively.12 In the following, the chapter proceeds with a short explanation of our choice for the concept of association citizenship followed by a section that gives an overview of the provisions in the association arrangements that are relevant for 10 C. Barnard & B. Hepple (2000), “Substantive Equality”, 59 Cambridge Law Journal, pp. 562–585, at p. 562. 11 P. Riesenberg (1992), Citizenship in the Western Tradition. Plato to Rousseau, Chapel Hill and London: University of North Carolina Press, pp. 145–146, remarks that in medieval Italian cities citizenship got connected to economic benefit and monetary advantage. He writes: “The coincidence of a booming economy with a fast developing legal science produced a litigiousness and concern for status in legal and economic affairs that provokes a comparison with our own age”, p. 154; see also Groenendijk, as cited note 4. 12 Our choice is partly imposed by the limited scope of this chapter; we will not deal with rights for family members under article 7 of Decision 1/80, though arguably the comparison with rights of family members of EU nationals working in another Member State certainly falls within a citizenship framework. As Tezcan-Idriz has shown, the CJEU is applying a concept of substantive equality in this respect too, looking at the general context instead of only at formal equality, see N. Tezcan-Idriz (2009), “Free Movement of Persons Between Turkey and the EU: To Move or not to Move? The Response of the Judiciary”, 46 Common Market Law Review, pp. 1621–1665 at p. 1664. See also Case C-451/11, Dülger, judgment of 19 July 2012, nyr, ruling that a Thai national, member of the family of a Turkish worker, could invoke Article 7 paragraph 1 of Decision 1/80. The Court remarks that Article 7 of Decision 1/80 “goes well beyond considerations of a purely economic nature” (par. 45). This is at odds with the remark made by the Court in Case C-371/08, Ziebell, judgment of 8 December 2011, nyr, par. 64, that the EEC-Turkey Association pursues a solely economic purpose and that therefore the Union citizenship regime is not applicable to Turkish nationals. Other instances of equality can be found in the way the Court interprets ‘abuse of rights’ in the context of the rights of family members – referring to sham marriages as sole case of abuse of rights in Case C-303/08, Bozkurt, judgment of 22 December 2010, [2010] ECR I-13445, and in the interpretation of the public order exception as requiring an actual, genuine and serious threat to public policy, public security or public health on account of personal conduct.

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progressive inclusion of Turkish nationals in a citizenship framework. The fourth section argues that the EU citizenship regime should be used as comparator for the position of Turkish nationals under the Association regime. The next section introduces the concept of substantive equality that we use as a tool to measure progressive inclusion of Turkish nationals in the citizenship framework. The sixth section contains the actual analysis of several recent cases on the relevant provisions in the association arrangements, with a focus on the degree of substantive equality. The final section answers the question whether association citizenship is an appropriate label under the EU-Turkey association regime and points at future challenges. 2. Association Citizenship as a Concept Several reasons motivated us to use a citizenship concept to capture the legal developments in the EU-Turkey Association. First of all, citizenship implies a normative value, notably the acknowledgment that EU and Turkish nationals share a core of rights that goes beyond the rights stemming from some of the other specific legal regimes established between the EU and third countries. A second reason for wanting to use a citizenship concept is provided by the fact that Union citizenship is a status ‘enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality’.13 Admittedly, the CJEU recently ruled in its Ziebell judgment that the EU-Turkey Association differs substantially from EU citizenship law in wording, object and purpose with the result that the scheme providing for protection against expulsion enjoyed by Union citizens cannot be applied mutatis mutandis to Turkish nationals.14 However, we are not arguing that the Association regime provides for formal equality and full citizenship. We propose to depart from the idea that citizenship is necessarily a uniform concept. At this juncture one can look for inspiration in literature on history of law that explains how citizenship was regarded as heterogeneous in nature as early as medieval times. Already in the medieval Italian citystates, there was a tendency to move towards ‘functional equality’. Those who did not enjoy full citizenship of the community (yet) could, by performance of certain duties and tasks (functions) strengthen both their own legal status as well as 13 As repeatedly stated by the CJEU, recently in Case C-367/11, Prete, judgment of 25 October 2012, nyr. 14 Case C-371/08, Ziebell, judgment of 8 December 2011, nyr, par. 74. It may be suggested that the CJEU saw opportunity in its Ziebell judgment to stress that Turkish (Association) Citizens and EU Citizens are still different categories, thus appeasing critique that an overly liberal reading of the Association regime may dilute that distinction.

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the viability of that society in which they lived (civic activity). The result could be a form of citizenship that was, if not in name, at least in functional terms, comparable to full citizenship of the local commune.15 The progressive element typical for EU-Turkey relations ties in nicely with such a historic parallel. Furthermore, a status implies that attributed rights follow from that status and this corresponds to the working of the standstill clauses in the association arrangements. A third motive lies in the constructive potential of the concept of citizenship. At this point we link to the linguistic relativity hypothesis, that there is a connection between language, thought and reality. Admittedly, the claims of the strong version of this hypothesis, also named the Sapir-Whorf hypothesis, that language determines thought is contested and not backed up by empirical evidence. However, research indicates that a lesser version of this hypothesis is true, notably that language influences (but not ‘governs’) thought and perception of reality.16 Thus a change in ‘label’ from ‘Third Country National’ to ‘Association Citizen’ could positively influence the acceptance of Turkish nationals living as fellowcitizens in the EU-Turkey Association.17 Fourth, the concept of Association citizenship allows for a differentiation in status according to the regime in which it is used. Next to national citizenship and Union citizenship, we see a place for Association citizenship to indicate the common status enjoyed by both Turkish and EU nationals under the Association regime. 3. The EU-Turkey Association Regime The first constitutive step in the formation of the EU-Turkey Association regime was the 1963 EEC-Turkey Association Agreement (often referred to as the Ankara Agreement). Its aim is to promote a continuous and balanced strengthening of trade and economic relations between the EU and Turkey (Article 1 AA) and ‘to establish ever closer bonds between the Turkish People and the peoples of the European Economic Community’ (preamble AA), with a view to possible accession of Turkey to the EU (Article 28 AA). The Association comprises a preparatory stage, a transitional stage and a final stage (Article 2(2) AA). Articles 12 -14 AA seek to progressively secure free movement of workers and the self-employed as well 15 Riesenberg as cited note 11, pp. 145–146. 16 I. Thohidian (2009), “Examining Linguistic Relativity Hypothesis as One of the Main Views on the Relationship Between Language and Thought”, Journal of Psycholinguisitic Research, pp. 65–74, provides a good overview of the versions of the hypothesis and studies that have been performed to test the hypothesis. 17 And vice versa as the EU Turkey Association regime is largely reciprocal.

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as freedom to provide services between Turkey and the EU. To that end, the free movement provisions in the Treaty on the Functioning of the EU will ‘guide’ the parties. The programmatic nature of the Agreement itself prevents most provisions on free movement of persons from being directly effective. Article 9 of the Agreement, the non-discrimination provision resembling Article 18 TFEU, seems capable of having direct effect in conjunction with other association instruments.18 It has been said to be a potential ‘wild card’.19 The Association Agreement provides for the establishment of a Council of the Association that must ensure the implementation and progressive development of the Association (art. 6 AA). An additional Protocol (AP) was signed in 1970, which lays down conditions, arrangements and timetables for implementing the transitional stage. Articles 36–42 of the Protocol program the free movement of Turkish nationals in the EU between the end of the twelfth and the twenty-second year after the entry into force of the Association Agreement (i.e. 1 December 1964, thus it had expired in 1986). Where the 1963 AA and the 1970 AP offered little in terms of substantive rights (at least at first sight, see infra), the decisions of the Association Council were designed to implement in legal terms the programmatic provisions of the AA and the Protocol. Decisions 1/80 and 3/8020 of the Association Council provide these rules. Most notably they established important substantive rules for rights, including residence rights and social security protection for Turkish workers and their families.21 Although for various political and economic reasons many of the commitments of the Agreement and the Protocol were not lived up to, the CJEU has during the ‘dead years’ of the Association regime (the 1980’s and the early 1990’s) proven to be a motor for integration of the Association, using whatever limited legal materials available, most notably the substantive rights under Decision 1/80: the right to access to employment (Article 6), the right to employment of the members of their family (Article 7) the standstill clauses (Article 41 Protocol and Article 13 Decision 1/80) and the non-discrimination clauses (Article 9 AA, Article 37 Protocol and Article 10 Decision 1/80). A recurring argument underpinning this case law has been the consistent reference to the ‘progressive inclusion’ of Turkish

18 See Hedemann-Robinson, as cited note 5, and the literature cited in footnote 73 at p. 542. 19 S. Peers (1996), “Towards Equality: Actual and Potential Rights of Third-Country Nationals in the European Union”, Common Market Law Review, 33, pp. 7–50, at p. 18. 20 Decisions of the Association Council from 1964 till 2000 can be found at: http://ekutup.dpt.gov .tr/ab/okk2.pdf (last visited 14 January 2013). 21 On 30 March 2013 the Commission has proposed an amendment of Decision 3/80 on social security of Turkish workers and their family members in response to the ruling of the CJEU in Case C-485/07, Akdas, judgment of 26 May 2011, nyr, see COM (2012) 152 (final).

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nationals (be they workers, service providers, or seeking establishment). Finally, Article 59 AP must be mentioned here. It states that in the fields covered by the Protocol, “Turkey shall not receive more favourable treatment than that which Member States grant to one another pursuant to the Treaty establishing the Community”. 4. EU and Turkish Nationals as Comparators: The Goal of (Ultimate)

Accession

As with any treaty, the political and legal background of the EU-Turkey Association regime is a factor of importance in conceptualizing the position Turkish nationals enjoy under this regime. Indeed, it seems hard to overstress the special relationship Turkey maintains with the EU and its Member States. In terms of economic integration with the EU, Turkey is ‘outranked’ only by the non-EU members of the European Economic Area (Norway, Liechtenstein and Iceland) although that may not even be true for the free movement of goods, as even these highly integrated states have not established a customs union with the EU as Turkey had done in 1995.22 Of course, it may be said that the lack of coherence in the rights of third country nationals (TCN’s) makes the case for a whole array of sui generi statuses. Yet, no one will deny the special position that the EU-Turkey Association regime takes in the spectre.23 The lack of coherence in the corpus of the rights of TCN’s in the different legal frameworks is apparent from the contrast with the Partnership and Cooperation Agreements (PCA’s) and the EU-Mediterranean Agreements (EMA’s) that are less ambitious than the EU-Turkey Association regime. Whereas the original political goal of the EU-Turkey Association was to progressively establish the free movement of workers, freedom to provide services and the freedom of establishment, the so-called ‘Barcelona Process’ (named after the Barcelona Declaration that heralded the start of the new round of cooperation agreements with the north African and Middle Eastern countries) was to

22 See Decision 1/95 of the EU-Turkey Association Council of 22 December 1995, OJEU 1996 L 35/1. The only other non-EU Member States that form a customs union with the EU are the micro states of Andorra, San Marino and Monaco. As Tezcan-Idriz also states, the links between the free movement of goods and the free movement of persons should not be neglected in this regard, see Tezcan-Idriz, as cited note 12, at p. 1631. 23 See also Tezcan-Idriz, as cited note 12, at p. 1621. She remarks that in this respect, Turkish nationals enjoy an intermediate position between Union citizens and TCNs. Arguably, this can be interpreted as support for the thesis that Turkish nationals in the EU enjoy an amount of substantive equality that partly includes them in a citizenship framework.

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improve conditions locally with the aim to curb EU immigration pressure coming from these countries.24 As this difference in political background puts the EU-Turkey Association regime in a hierarchically different class from the cooperation regimes under the different EMA’s and PCA’s, it would be in contradiction with the hierarchy when the latter at some point provide the citizens, for instance of these Maghreb and Mashrek countries,25 rights the Turkish citizens do not have. This view is confirmed in practice. Thus, the Commission recently proposed a new Asso­ ciation  Council Decision on social security coordination, partly to align the Association Regime with more advanced social security coordination in other cooperation regimes.26 Furthermore, we can point at the ruling of the CJEU in Ayaz, quoted above: rights derived from a EMA must a fortiori also accrue to Turkish nationals under the Association Regime.27 Evidently, treating other TCN’s better than Turkish citizens is perceived as an incongruence. In sum, the EU-Turkey Association regime grants Turkish nationals resident in the EU a status that is closer to that of EU migrants than that of workers from other third countries.28 Therefore, we believe the most appropriate comparator for free movement of Association citizens are EU citizens. 5. The Concept of Equality In order to measure progressive inclusion of Turkish nationals in a citizenship regime,29 we must move beyond the concept of formal equality as consistency that does not guarantee any particular outcome. For one reason, formal equality does not allow the conclusion that there is equality ‘in part’. Furthermore, formal equality does not guarantee a particular ‘citizenship oriented’ outcome: if certain rights, or elements of membership or participation are denied to Union citizens as well as to Turkish nationals under the association regime, formal equality is not 24 See Hedemann-Robinson, as cited note 5, at p. 560. 25 Maghreb countries include Tunisia, Morocco and Algeria (and in principle also Libya). Mashrek countries are Egypt, Jordan, Lebanon and Syria. 26 See COM(2012) 152 (final). 27 See also Case C-4/05, Güzeli, judgment of 26 October 2006, [2006] ECR I-10279, par. 52, referring to an interpretation of an analogous provision in the EU-Morrocco Agreement in Case C-416/96, El-Yassini, judgment of 2 March 1999, [1999] ECR I-01209. 28 See also Groenendijk, as cited note 4, who reaches the same conclusion on p. 98. 29 For a full picture of Association citizenship, a legal appraisal of the position of EU nationals in Turkey is of course also required. Due to limited space and time we shall not address that aspect here but we cordially invite (Turkish) legal scholars to complete the picture as drawn in this Chapter.

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violated, but the result is not leading to ‘progressive inclusion’ in a citizenship framework. In order to overcome these limitations we turn to the concept of substantive equality as developed by Sandra Fredman in the context of U.K. anti-discrimination law.30 Fredman has identified four different approaches to equality that aim at the substance: (1) equality of results, (2) equality of opportunities, (3) equality as auxiliary to substantive rights and (4) equality as a broad value driven approach. As we are drawing on these approaches to help us identify instances where the position of Turkish nationals is ‘moving towards’ equality with EU citizens and can be seen as a (nascent) citizenship, we will adapt these approaches to this specific context. Thus, equality of results can be seen where EU nationals and Turkish nationals are able to claim rights, membership and participation in the host state. Instances where this approach can be detected is in the several cases where the CJEU has decided on the interpretation of terminology31 and rights32 of the Association regime in analogy to similar terms dealing with EU citizenship. An example where equality of results leads to rights for Turkish migrant workers duly registered as belonging to the labour force as regards remuneration and other conditions of work can be found in Wählergruppe Gemeinsam, where the Court ruled that Article 10 (1) of Decision 1/80 lays down a precise obligation of result demanding that a nationality condition for eligibility to the general assembly of a chamber of workers should be disapplied without further implementing measures.33 Equality of opportunities considers the respective starting position of EU nationals and Turkish nationals in obtaining rights, membership and participation. Article 10 (2) of Decision 1/80 that gives entitlements to assistance from employment services to Turkish workers and Article 9 of the same Decision that

30 Barnard & Hepple, as cited note 10, at p. 564 and S. Fredman (2001), “Equality: A New Generation?”, 30 Industrial Law Journal, pp. 145–168. Tridimas has identified four functions of equality that operate in contemporary EU law, see T. Tridimas (2006), General Principles of EU Law, Oxford: OUP, at p. 61. These functions are not necessarily related to substantive equality and therefore we opted for the categorization made by Fredman. 31 See for example Case C-14/09, Genc, judgment of 4 February 2010, [2010] ECR I-00931, par. 17 et seq in which the term ‘worker’ in the association regime was interpreted in analogy with that concept in art. 45(1) TFEU. 32 For instance in Case 171/95, Tetik, judgment of 23 January 1997, [1997] I-00329, par. 27 in which Turkish ex-workers were deemed allowed to stay in the territory of an EU Member States in order to find new employment (by analogy to cases such as Case C-292/89, Antonnissen, judgment of 26 February 1991, [1991] I-00745) and in Case C-325/05, Derin, judgment of 18 July 2007, [2007] ECR I-6495, where the Court rejected formal equality between children of EU workers and children of Turkish nationals for the purpose of their residence rights as family members under article 7 par. 1 of Decision 1/80, because this would lead to inequality of results. 33 Case C-171/01, Wählergruppe Gemeinsam, judgment of 8 May 2003, [2003] ECR I-4301, par. 58.

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provides educational rights to Turkish children can be seen as establishing equality of opportunities.34 An example of equality as auxiliary to substantive rights can be found in Article 21, paragraph 2 of the Charter of Fundamental Rights of the EU, or Article 9 AA. Both provisions confine equality to a subsidiary role within the scope of application of the Treaties or, respectively, the Association Agreement. Under the association’s arrangements, Turkish nationals have not been granted any initial right of entry into the territory of the EU, nor any right of free movement between EU Member States. Turkish nationals cannot invoke Article 9 AA to claim equal treatment with EU nationals in that respect. However, as we will see below, they can invoke Article 9 once they can rely on the stand-still clauses as these do fall within the scope of the Association Agreement. Equality as a broad value driven approach in the particular context of this contribution underpins the idea that treatment leading to restrictions in rights, membership and participation for both EU nationals and Turkish nationals does not satisfy the principle of equality, because it does not lead to progressive inclusion in the citizenship framework. As the approaches to substantive equality are overlapping,35 in the following section we will point out instances of (a degree of) substantive equality without systematically referring to one of the approaches. 6. Putting Association Citizenship to the Test Does the sui generis nature of the Association Regime reflect on the sui generis nature of Turkish citizens in the EU (and the rights of EU citizens in the Turkish Republic) in a way that gives content to the concept of Association citizenship? The standstill clauses and the non-discrimination clauses have generated impressive case law of the CJEU. Ever since the first CJEU ruling on the Association Regime, Demirel,36 case law on free movement of persons under the association arrangements has been growing steadily. There have been over 50 cases, the majority of them relating to provisions of Decision 1/80.37 We will not deal with 34 The ‘equality of opportunities aim’ is confirmed by the CJEU in Case C-374/03, Gürol v. Bezirksregierung Köln, judgment of 7 July 2005, [2005] ECR I-6199, at par. 32: ‘ensuring that Turkish children actually enjoy, like the children of nationals of the host Member State, the choice of education or training that they propose to follow’ and esp. 40: ‘That is also the only interpretation that makes it possible to attain in full the objective pursued by Article 9 of Decision No 1/80, namely, to guarantee equal opportunities for Turkish children and those of nationals of the host Member State in the sphere of education and vocational training.’ 35 Barnard & Hepple, as cited note 10, at p. 564. 36 Case C-12/86, Demirel, judgment of 30 September 1987, [1987] ECR 3719. 37 Though other Articles of the Association arrangements are interpreted as well, one could make a rough subdivision of this list of cases: 46 cases on Decision 1/80, 5 on Decision 3/80 and 5 on the standstill provision of 41 (1) AP. Article 9 AA has been interpreted in 10 cases. In the recent Joined

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all those cases here, as excellent reviews and overviews are given elsewhere.38 Instead, we focus on several recent cases of the CJEU, where the regime’s standstill clauses, its non-discrimination clauses and the instances where these intertwine, result in an amount of substantive equality. In the following sub-sections the sui generis label will be demonstrated first by highlighting the limits imposed on the Member States as to the regulation of the ‘first entry’ of Turkish nationals to their territory. The reason to do so is on account of the primordial place of the right to move amongst the substantive elements of citizenship enjoyed by EU nationals. Furthermore, the non-discrimination clauses must be assessed, especially as regards the substantive equality that they seek to accomplish. The substantive equality becomes all the more apparent when the non-discrimination clauses start to intertwine with the standstill clauses as happened in the Dutch Visa Charges I case.39 6.1. The Standstill Clauses: On the Road to Nowhere?40 Typical for the Association Regime and its ‘original telos’ of a Turkish EU Membership are the standstill clauses in Article 13 of Decision 1/80 (workers) and Article 41(1) AP (services and establishment). At the outset it must be stated that standstill clauses are of course not unique for association agreements preparing for EU membership. The Stabilisation and Association Agreements, for instance those with Croatia and Macedonia, also contain standstill clauses. Yet what makes the standstill clauses unique in the context of the EU-Turkey Association regime is their scope (most standstill clauses deal with tariff and non-tariff barriers to trade in goods) as well as their sheer longevity, going back as far as 1973 when the  Additional Protocol entered into force or to 1980 at the entry into force of Decision 1/80. The standstill clauses were designed to be the first building blocks of a regime that was to ‘progressively abolish restrictions on freedom of establishment and  ases C-7/10 and C-9/10, Kahveci and Inan, judgment of 29 March 2012, nyr, two Turkish nationC als, family members of dual Dutch-Turkish nationality argued that they fell under the Association arrangements and could invoke Article 7 of Decision 1/80 against the Dutch dismissal of their application for an extension of their residence permit. The Court accepted this argument. 38 Tezcan-Idriz, as cited note 12; C. Barnard (2010), The Substantive Law of the EU. The Four Freedoms, 3rd edition, Oxford: Oxford University Press, pp. 548–556, K. Groenendijk & M. Luiten (2010), Rechten van Turkse burgers op grond van de Associatie EEG-Turkije, Nijmegen: Wolf Legal Publishers; P. Boeles a.o. (2009), European Migration Law, Antwerp: Intersentia, pp. 91–113. 39 Case C-92/07, Commission v Netherlands, judgment of 29 April 2010, [2010] ECR I-3683. 40 As already described by E. Lenski (2006), “Turkey, including Northern Cyprus”, in S. Blockmans & A. Lazowki, The European Union and Its Neighbours, A legal appraisal of the EU’s policies of stabilisation, partnership and integration, The Hague: T.M.C. Asser Press, at p. 283.

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freedom to provide services’. As to date no decisions were taken by the Association Council to accomplish that abolition, the standstill clauses were all the CJEU could go by. Article 41 (1) AP states that “the contracting parties shall refrain from introducing between themselves any new restrictions on the freedom to establishment and the freedom to provide services”. For workers, Article 13 of Decision 1/80 also introduced a standstill clause. That the ‘no new restrictions’ rule was never intended to last several decades became apparent in the aftermath of the seminal Soysal ruling of the CJEU.41 In this case the CJEU had established firmly that Turkish lorry drivers could rely on the Standstill clause of Article 41(1) AP in order to ‘revive’ defunct German legislation from the 1970’s under which they did not require a visa to provide their services as lorry drivers in Germany in 2006. Moreover, the fact that Germany merely implemented EU legislation that was established in the mean time (Regulation 539/2001 on visa requirements for certain TCN’s) could not justify crossing the standstill clause, which implies that the Regulation itself should be brought in line with the standstill clause. Member States have always relied on their exclusive prerogative of the regulation of first entry of Turkish citizens (be they workers, service providers or exercising the right of establishment). Yet, the standstill clauses as interpreted by the CJEU limited that prerogative considerably. One case where that was painfully clear was Savas,42 a case preceding Soysal, that dealt with a Turkish couple who legally entered the UK under a tourist visa (valid for one month only), but then outstayed it for 11 years and in that time established a business in the UK. The CJEU ruled that Mr and Mrs Savas could still rely on the standstill clause of Article 41(1) Protocol despite qualms of the British Government that the Association regime does not cover ‘a person who is not lawfully present in the territory of a Member State’.43 From the perspective of the right of first entry, the following Tum and Dari case44 was even more spectacular. It concerned two Turkish citizens who were denied asylum in the UK but who then successfully relied on the standstill clauses (changing their tune from asylum seeker to that of persons who seek to establish a business) and invoked old British immigration rules under which they could enter the UK without as much as a visa. Again the Member State prerogative on first entry of Turkish citizens was invoked. The British Government (as well as Advocate General Geelhoed in his Opinion to the case) tried to create a 41 Case C-228/06, Soysal, judgment of 29 February 2009, [2009] ECR I-1031. See also K. Groenendijk & E. Guild (2012), Visa Policy of Member States and the EU towards Turkish Nationals after Soysal, Economic Development Foundation Publications no. 257, Istanbul. 42 Case C-37/98, Savas, judgment of 11 May 2000, [2000] ECR I-2927. 43 See Savas, as cited note 42, par. 34. 44 Case C-16/05, Tum and Dari, judgment of 20 September 2007, [2007] ECR I-7415.

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difference with the previous Savas judgment as in that case at least the first entry still occurred legally,45 whereas in the case of Tum and Dari the first entry itself was subject of the dispute. Yet, again the CJEU gave full priority to the standstill clauses with the result that the Member State prerogative on first entry arguably was reduced further still. The text of the standstill clause on workers provided the Member States with more ‘grip’ to safeguard their prerogative on the right to first entry. Or at least so it seemed. Article 13 of Decision 1/80 states that the Contracting Parties may not ‘introduce new restrictions on the conditions of access to employment, applicable to workers and members of their families legally resident and employed in their respective territories’ (emphasis added). In Abatay the CJEU confirmed that this clause too, prevents Member States from rendering more difficult access to territory and employment in view of the ‘gradual establishment of the freedom of movement for workers’.46 The official line of reasoning of the CJEU in these ‘standstill cases’ has always been that the Association Regime still does not grant a substantive right of first entry (and first admission to the labour market) to Turkish citizens. Of course, the standstill clauses remain procedural in nature. In fact, the CJEU repeatedly said as much: A standstill clause, such as that embodied in Article 41(1) of the Additional Protocol, does not operate in the same way as a substantive rule (…) but as a quasi-procedural rule which specifies, ratione temporis, the provisions of a Member State’s legislation that must be referred to for the purposes of assessing the position of a Turkish national who wishes to exercise freedom of establishment in a Member State47

In fact however, the way the standstill clauses are applied gives them a very broad radius of applicability to the detriment of inter alia the right of the Member States to regulate first entry. Furthermore, under the (quasi-permanent) transitory system of the standstill clauses, it appears that in all cases of doubt, the CJEU has opted for the pro-integration approach and heeding the original commitment to a progressive establishment of an ever-closer association. As a result, the standstill 45 See Tum and Dari, as cited note 44, par. 35. 46 Joined Cases C-317/01 and C-369/01, Abatay et al., judgment of 21 October 2003, [2003] ECR I-12301, par. 72 and C-242/06 Sahin, judgment of 17 September 2009, [2009] ECR I- 8465. It did however also confirm that under this specific standstill clause the Member States are still allowed to introduce more stringent rules as regards Turkish nationals whose position is not lawful, see par. 85 of Abatay. See also par. 51. The importance attached to the difference in scope between the two standstill clauses, as submitted by Tezcan-Idriz seems in that light a bit stretched, see Tezcan-Idriz, as cited note 12, at p. 1634. 47 See par. 89 of Dereci, as cited note 1. See for an earlier statement to that effect par. 64 of Savas as cited note 42.

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clauses are turned into something more than a purely procedural concept. Progressive free movement is the value underlying the approach to the standstillclauses and as a result the situation of Turkish nationals under the Association regime can only become closer to that of EU citizens. Soon the Court will again get the chance to further expand the progressive character of the Association Regime when it is to pronounce itself on the question whether the reception of services also falls under the standstill clause of Article 41(1) AP.48 It is noteworthy that the position of service recipients, within the EU, led to cases such as Cowan,49 which are seen as predecessors of the citizenship framework. In sum, although the standstill clauses do not confer a right of first entry, they provide the right that first entry is assessed under the least restrictive national rules that have been in place since 1973 (for services and establishment) or 1980 (for workers) or a later date in case a State acceded to the Union on a later date and can be said to add substance to movement rights of Turkish nationals. 6.2. Non-Discrimination of Turkish Citizens Article 37 AP, Article 10 of Decision 1/80 and Article 3(1) of Decision 3/80 bestow upon Turkish citizens the right to be treated equally in access to employment and other work conditions respectively social security. That there is a substantive dimension to the application of these clauses has been stated by the CJEU on several occasions. Thus, In Wählergruppe Gemeinsam, the CJEU ruled that Article 10 of Decision1/80 ‘lays down a precise obligation of result’.50 Sceptics could say this deals with nothing more than the question of direct effect of Article 10. Yet, later developments point in another direction. Under the general non-discrimination clause of Article 9 AA the jurisprudence took again an interesting turn.51 That happened when non-discrimination intersected with the aforementioned standstill clauses. In the Dutch Visa Charges I case,52 an infringement procedure against the Netherlands, the CJEU was called to interpret the standstill clause of Article 41 AP and the non-discrimination provisions of Article 9 AA and Article 10 of Decision 1/80. Dutch charges for visa and residence permits had increased enormously, which is prima facie in contradiction with the 48 Case C-221/11, Demirkan, pending. 49 Case C-186/87, Cowan, judgment of 2 February 1989, [1989] ECR 195. 50 See Case C-171/01, Wählergruppe Gemeinsam, judgment of 8 May 2003, [2003] ECR I-4301, par. 58, referred to in par. 26 of the Dutch Visa Charges I case. 51 In fact, in Dutch Visa Charges the direct effect of Article 9 AA was not even as such addressed by the Court (the case dealt with infraction proceedings) but nevertheless was used to resolve the dispute. 52 As cited note 39.

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standstill clause. Yet, the Dutch charges for registration certificates for EU nationals had also increased and that brought Article 59 AP to the fore. The latter provision states that Member States are not to treat Turkish workers better than EU nationals. This renders a simple application of the standstill clause in the case at hand impossible as it would result in better treatment of Turkish nationals as compared to treatment of EU nationals. Still, application of standstill clauses is not ruled out altogether as the Court already decided in Sahin53 that in such a case Turkish nationals may not be subjected to restrictions which are disproportionate as compared with those established for EU nationals. In its defence the Netherlands made the point that EU and Turkish nationals form two wholly different classes of people, as EU nationals are part of the Internal Market and Union citizens whereas Turkish nationals are not. Hence a difference in treatment would not amount to any discrimination.54 This denial of EU citizens being the comparator of Turkish citizens was firmly rejected by the CJEU, for it stated that ‘the objective of the Association Agreement is to bring the situation of Turkish nationals and citizens of the Union closer together through the progressive securing of free movement’.55 It added that the Commission correctly relied on both the non-discrimination rules as well as on Article 59 AP to verify compatibility with the standstill rules. As a result, ‘new restrictions’ on Turkish citizens were allowed but only if they are also imposed upon EU citizens and if they are not ‘disproportionate as compared with those established for those citizens’.56 The CJEU thus permits new restrictions for Turkish nationals that are ‘slightly’ more cumbersome than those applied to EU nationals,57 a test the Netherlands flagrantly failed in the case at hand. Furthermore, the Commission claimed that the high charges were also incompatible with the non-discrimination clauses as such. The CJEU follows the Commission with the very brief statement that ‘it is necessary to state that’ the charges are discriminatory and hence contrary to the non-discrimination clauses of the Association regime.58 53 As cited note 46. 54 Paragraphs 35 and 66. 55 Paragraph 67. In the recently decided Dutch Visa Charges II case, Case C-508/10, Commission v. The Netherlands, Judgment of 26 April 2012, the CJEU ruled that Directive 2003/109 on the status of long term residents precludes the levy of high and disproportionate charges. However, the Court made no comparison with EU nationals here. The Dutch government argued that no comparison is asked by directive 2003/109. The Court does not go into that argument, but rules that high charges are contradictory to the spirit of the Directive that sets out to promote the integration of long term residents in the EU. 56 Paragraph 55. 57 Paragraph 74. 58 Paragraph 75.

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In sum, equal treatment is the ground rule, irrespective of the precise economic status of the Turkish national. Any disproportionate diversion of equal treatment needs a proper justification which the Netherlands failed to give. Moreover, despite the remarks of the German Government that article 9 AA is not directly applicable,59 it seems that Turkish citizens can rely on Article 9 in Court. Indeed, there have been cases in national courts where Turkish nationals invoked Article 9 AA successfully. In the Netherlands, the Centrale Raad van Beroep ruled that the obligation to follow an integration course (inburgeringsplicht) imposed on Turkish nationals was contrary to Article 9 because the obligation was not imposed on EU nationals.60 In a case before the Raad van State, Article 9 was invoked in a dispute on visa for Turkish self-employed persons.61 The Raad found the visa requirement for Turkish self-employed persons incompatible with Article 9. Arguably, the CJEU does not apply a formal equality test in Dutch Visa Charges I. Still, the result is an amount of substantive equality between Turkish and EU nationals. The non-discrimination clauses function as auxiliary to substantive rights of access to the market62 and again ‘progressively securing’ free movement is the value underlying the approach to the standstill clauses. In social security matters, article 3(1) of Decision 3/80 of the Association Council provides for same obligations and same benefits for those subject to the Association regime as for nationals of a Member State. In Case C-485/07, Akdas,63 the dispute was on a Dutch rule that, after an amendment of the EU Social Security Regulation No 1408/71,64 restricted the payment abroad of social security benefits, first for Turkish nationals and later also for EU nationals no longer resident in the Netherlands territory. The referring Court asked some interesting questions on the application of Article 9 AA, but the CJEU decided the dispute on the basis of the first subparagraph of Article 6(1) of Decision 3/80 of the Association Council on social security schemes.65 It prohibits any restriction ‘on 59 Paragraph 42. 60 Centrale Raad van Beroep, 16 August 2011, LJN BR4959. 61 Raad van State, 14 maart 2012, LJN BV9454. Article 9 AA did not help the complainant though, as he could not qualify as self-employed. 62 In the words of the CJEU: they ‘contribute to facilitating the progressive integration of migrant Turkish workers and Turkish nationals who move for the purposes of establishment or in order to provide services in a Member State’, at paragraph 68. 63 Case C-485/07, Akdas, judgment of 26 May 2011, nyr. 64 Regulations 1247/92 (OJ ) and 647/2005 (OJ ) abolished the exportability obligation of Article 10 of Regulation 1408/71 for certain benefits, such as the supplementary benefits under dispute. 65 In a comment on the introduction of the territoriality principle in Dutch social security rules Paul Minderhoud concludes that the non-discrimination provisions of the Association regime preclude application of the territoriality principle for those benefits that are not covered by

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the benefits acquired by the Turkish nationals by reason of the fact that the recipient resides in Turkey or in the territory of a Member State other than that in which the institution responsible for payment is situated’. The amended Regulation 1408/71 does not call into question the interpretation of Article 6(1) of Decision 3/80. Nevertheless the result of the application of Article 6(1) would be that Turkish nationals are placed in a more favourable position than EU nationals, because they can claim exportable benefits whereas EU nationals can not, which would be incompatible with Article 59 AP. The CJEU rejects incompatibility with Article 59 AP. It first underlines that Article 39(4) AP specifically provides for exportability of these benefits and that applying the non-compulsory exportability of Regulation 1408/71 to Turkish nationals would amount to an amendment of Decision 3/80 of the Association Council. Only the Association Council can amend Decision 3/80. So it seems that Article 59 AP might demand an amendment of either the Association Council Decision or the EU Regulation, which is in accordance with the primacy of international agreements concluded by the Union over secondary Union legislation.66 However, the Court continues its reasoning with a comparison between Turkish nationals and EU nationals, and acknowledges the fact that Turkish nationals are not entitled to remain in the host state once they are incapacitated following an accident at work and definitively removed from the labour market. This makes comparison with EU nationals under Article 59 AP ‘not useful’, because EU nationals have the choice to remain in the territory of the host state and receive the benefit, or to leave the territory of the host state and loose the benefit.67 One could see the Court’s reasoning as an equality of results approach. The different starting position of Turkish nationals compared to that of EU nationals is recognized in such a way that Turkish nationals do not automatically loose their benefits when EU nationals have the option to either stay and keep benefits, or leave the host state and loose them. As follow-up on this case, the Commission has recently proposed a draft Decision of the Association Council, to replace Decision 3/80, ‘in order to provide legal certainty and to give full effect to the principles of social security coordination contained in the Ankara Agreement and the Additional Protocol’.68 The new Article 6(1) of Decision 3/80, see P. Minderhoud (2012), “Houdt het woonlandbeginsel in de sociale zekerheid bij de rechter stand?”, Tijdschrift Recht en Arbeid, 4 (8/9), pp. 16–19. 66 See also Tezcan-Idriz, as cited note 12, at p. 1630. 67 Akdas, as cited note 63, paragraph 95. 68 Com (2012) 152 final of 30.3.2012, Proposal for a Council Decision on the position to be taken on behalf of the European Union within the Association Council set up by the Agreement establishing an association between the European Economic Community and Turkey with regard to the provisions on the coordination of social security systems, at p. 2.

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article 3 of the draft Decision contains a rather general non-discrimination clause: ‘Turkish workers who are legally employed in a Member State and any members of their families legally residing with them shall enjoy, with regard to the benefits within the meaning of Article 1(1)(h), treatment free from any discrimination based on nationality relative to nationals of the Member States in which those workers are employed’. Article 1(1) (h) refers to benefits within the meaning of article 3 of EC Regulation 883/2004 on the coordination of social security systems. Of the benefits mentioned in that Regulation, the draft Decision makes clear that  a number of them are exportable to Turkey, notably old-age pensions, survivor’s pensions, pensions in respect of accidents at work and occupational diseases and invalidity pensions.69 The Decision thus grants additional rights to Turkish nationals to export these benefits to Turkey in comparison with the rights granted under the EU social security regulation. This seems to confirm the difference in position between Turkish nationals and EU nationals as explained by the Court. Interestingly, the Commission proposes Articles 48 and 218(9) TFEU as legal basis. The Commission motivates the choice for Article 48 TFEU by referring to the aim of the Association arrangements, notably ‘extending so far as possible to Turkish nationals the principles laid down in the Union provisions on free movement of workers’.70 Ireland and the UK argue that Article 48 TFEU can only provide a legal base for measures intended to apply to employed or self-employed Member State nationals and their dependents moving within the Union.71 They maintain that Article 79(2) (b) TFEU is the correct legal basis (immigration policy).72 The Decision will be adopted by the Association Council only after judgement of the CJEU in two pending cases, C-431/11 and C-656/11, on the correct legal basis in similar Decisions regarding the EEA and Switzerland. Arguably, the Court will have to decide which framework is appropriate; that of EU workers or that of third country nationals. Finally, this sub-section needs to address the scope of the principle of non-discrimination as regards conditions of work and remuneration. It has been subject of discussion since the Court ruled on the nationality conditions of the Spanish football federation in the Kahveci case.73 As we have seen above, Article 10(1) of Decision 1/80 of the Association Council is directly effective and in Wählergruppe 69 Article 4 jo 1(1) under (i) of the Draft Decision, Com (2012) 152 final, at p. 15. 70 Com (2012) 152 final, p. 6. 71 Press release PRES/12/406, interinstitutional file 2012/0076 (NLE) 13988/12 ADD1 and ADD2. 72 In which case they would have an opt-in according to Protocol 21 on the Position of the UK and Ireland in the Area of Freedom Security and Justice. 73 Case C-152/08, Kahveci v Consejo Superior de Deportes, Real Federación de Fútbol, judgment of 25 July 2008 [2008] ECR I-6291.

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Gemeinsam the CJEU ruled that for determining its scope ‘reference should be made to the interpretation given to that principle in the field of freedom of movement for worker who are nationals of a Member State of the Community’. It added that ‘[s]uch an approach is all the more justified because that article is formulated in terms almost identical to those of Article 42(2) of the Treaty [now 45(2)TFEU]’.74 Though this seems to imply that there is both formal and substantive equality between Turkish nationals and EU nationals in this respect, there is no guarantee of ‘identical interpretation’, as only ‘reference should be made to’. Furthermore, the ‘Polydor’ line of case law holds that ‘a mere similarity in the wording of a provision of one of the Treaties establishing the Communities and an international agreement between the Community and a non-member country is not sufficient to give to the wording of that agreement the same meaning as it has in the Treaties’.75 In Kahveci there is no reference whatsoever to EU Treaty provisions, but the question is treated as being similar to the questions referred in the Deutscher Handballbund and Simutenkov, cases based on the Association Agreement with Slovakia and on the Partnership and Cooperation Agreement with Russia respectively.76 The CJEU refers to the ‘very similar wording of Article 37 Additional Protocol [implemented by Article 10(1) of Decision 1/80] to that of the non-discrimination provisions from these agreements’.77 This seems to undermine our position that EU nationals should be the ‘comparator’ for Turkish nationals working in the EU. Nevertheless, the Polydor case law has never been mentioned in the context of the EU-Turkey Association regime.78 Furthermore we could also see reference to the other agreements as an indirect reference to the scope of article 45(2) TFEU (as interpreted by the CJEU in the Bosman case law) for the Court in paragraph 35 of Simutenkov states that the relevant provision of the Partnership Agreement with Russia ‘establishes, for the benefit of Russian workers lawfully employed in the territory of a Member State, a right to equal treatment in working conditions of the same scope as that which, in similar terms, nationals of Member States are recognized as having under the EC Treaty’.79 As Tobler notes, the Polydor case law is not applied to the concept of discrimination as such, but the difference in interpretation follows the context of the relevant

74 Kahveci, as cited note 73, paragraphs 73 and 74. 75 Case C-270/80 Polydor and RSI Records Inc v Harlequin Records Shop Limited and Simons Records Limited, 9 February 1982, [1982] ECR 329. 76 Case C-438/00 Deutscher Handballbund, judgment of 8 May 2003, [2003] ECR I-4135 and Case C-265/03 Simutenkov, judgment of 12 April 2005, [2005] ECR I-2579. 77 Kahveci, as cited note 73, paragraph 25. 78 Teczan-Idriz, as cited note 12, at p. 1650. 79 Ibid., at p. 1648.

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legal regimes in relation to which discrimination is prohibited.80 Thus, Article 10(1) of Decision 1/80 covers remuneration and other conditions of work, but not access to employment. If Kahveci is to be read as interpreting the scope of the prohibition of discrimination under the Association Agreement similar to that under EU law, direct effect of Article 9 AA might enhance the substance of rights through its auxiliary function. 7. Association Citizenship and the Future Our analysis has indicated that Turkish nationals under the Association regime enjoy a certain substantive equality as compared to EU nationals. The aim of progressively securing free movement rights is the value that underlies the Court’s interpretation of both the standstill clauses and the non-discrimination clauses of the Association regime. It results not in formal equality, but in a certain amount of substantive equality between Turkish nationals under the Association and EU nationals under EU law. In our opinion, this confirms our position that application of a citizenship concept in the Association regime is justified. What makes the recent judgments hard to tackle is the obvious difficult relationship between the standstill clauses and the ‘no preferential treatment’ rule of Article 59 of the Protocol. The resulting test that new restrictions may be applied if they are also imposed on EU nationals but only if these are not disproportionate vis-à-vis Turkish nationals is complex, but necessary. It shows clearly that the Association regime with its standstill clauses is designed as a transitory regime. The transitory status is most visible from the fact that the standstill clauses have no exceptions. Whereas in the internal market the EU Member States continuously introduce new restrictions that are allowed by the Treaty rules or by secondary EU legislation, the standstill clauses do not allow for such dynamics. The reason is that they were never intended to last as long as they did. The longer the transitory regime exists, the more likely the incongruities between the normal internal market rules or citizenship rules on the one hand and the ‘no preferential treatment rule’ of Article 59 AP on the other hand. These tensions reflect the normative value of the standstill clauses. They hold a mirror up to the Member States reflecting times when ‘stricter measures’ where not deemed necessary. At the same time, they point at what was agreed when the Accession arrangements were designed: bringing the situation of Turkish nationals and citizens of the Union closer together through the progressive 80 C. Tobler (2010), “Equal Treatment on the grounds of migrant Turkish citizens in the EU: Contrasting the Kahveci case with the Olympique Lyonnais case”, 7 Ankara Law Review, 1, pp. 1–28, at p. 25.

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securing of free movement for workers and the abolition of restrictions on freedom of establishment and freedom to provide services.81 As the Court falls back on the general non-discrimination clauses, the rhetoric of cases such as Dutch Visa Charges I start to take on the form and logic of the internal market, where the Member State is only allowed to differentiate between categories of citizens if this can be objectively justified and is not disproportionate. In that light the Association Regime does seem to form the basis of a nascent ‘Association citizenship’ that is grounded on a general non-discrimination rule whereby EU citizens are the appropriate comparators to assess the proper position of Turkish nationals. Hence the language of citizenship of the Association might indeed be appropriate to describe the contemporary reality of Turkish nationals under the Association Regime. In fact, such a concept may be the only sustainable solution, fit to last either permanently or to function as more workable ‘stepping stone’ to full EU membership of Turkey at last. In order to further devise such a new citizenship framework there is still a lot to be done. Failing the steps taken by the Association Council, the initiative lies again with the CJEU.

81 See par. 67 of the Dutch Visa Charges I case, as cited note 39.

Privileged Third-Country Nationals and Their Right of Free Movement and Residence to and in the EU: Questions of Status and Competence Paula García Andrade 1. Introduction Although, at the current state of development of the EU legal order, EU citizenship is exclusively enjoyed by nationals of the Member States, certain thirdcountry nationals also benefit from some of the rights inherent to this status, mainly the right of free movement and residence. This is the case with nationals from Norway, Island, Liechtenstein and Switzerland to which the rules on free movement of persons applicable within the EU have been extended. As EU citizenship rests on Member States’ rules on nationality, the fact that the essential right conferred by this status has also been granted to these thirdcountry nationals raises issues that this paper seeks to tackle. Firstly, it is necessary to reflect on the concrete status of these privileged thirdcountry nationals in the EU. The first section of this paper will thus examine the rights, associated with EU citizenship, enjoyed by nationals from Norway, Iceland, Liechtenstein and Switzerland, comparing the extent of these rights to those enjoyed by EU citizens. It will also be of interest to compare their status to that of nationals from other third countries associated to the EU. Secondly, the extension of the right of free movement and residence to nationals from Norway, Iceland, Liechtenstein and Switzerland is granted by virtue of international agreements concluded between the Union and its Member States, on the one hand, and those third countries, on the other. As far as the EU is concerned, this raises the question of what the legal basis in primary law is that allows the Union to extend the right of free movement to third-country nationals when the Treaty confers it on EU citizens only. In addition, it is necessary to inquire into the reasons for there being recourse to mixity in these cases and into whether the participation of Member States in the conclusion of those agreements was legally mandatory or politically driven. Answering these questions will require us to draw a line between the free movement regime and the immigration system, as well as to clarify the distinction

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between EU competences on these two different fields, a controversial issue, especially as far as the external domain is concerned. 2. Status EU citizenship rights include the right to free movement and residence within the territory of Member States; the right to vote and to stand as candidates in the European Parliament and in the local elections in the Member States of residence; the right to enjoy diplomatic and consular protection from a Member State in a third country in which the Member State of nationality is not represented; and finally 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 Treaty language and to obtain a reply in the same language.1 These rights are conferred by the TFEU on Member States’ nationals as part of their fundamental status as EU citizens. However, as the CJEU has declared, “that does not necessarily mean that the rights recognised by the Treaty are limited to citizens of the Union”.2 Firstly, the right to petition the European Parliament and the right to access the European Ombudsman are granted by other provisions of the Treaty to any natural person residing in a Member State,3 while the right to communicate with EU institutions in any of the official languages is enjoyed by every person, according to the EU Charter on fundamental rights.4 Indeed, the nature of these rights, as Kochenov points out, renders questionable their classification as citizenship rights.5 Secondly and most importantly, the right of free movement and residence, which is considered to be the ‘core’ right granted by EU citizenship,6 has also been conferred on certain third-country nationals. This operation has been carried out by virtue of the Agreement on the European Economic Area (hereinafter, EEA Agreement), which governs the relations between the EU and its Member States on the one hand, and EFTA States on the other,7 as well as on the basis of 1 Article 20(2) TFEU. 2 Case C- 145/04, Spain v. United Kingdom, [2006] ECR I-7917, para. 74. See also case C-135/08, Rottman, Opinion of AG Poiares Maduro, [2010] ECR I-1449, para. 23. 3 Articles 227 and 228(1) TFEU. 4 Article 41(4) of the Charter. 5 D. Kochenov (2009), “Ius Tractum of Many Faces: European Citizenship and the Difficult Relationship between Status and Rights”, CJEL 15/2, p. 206. 6 Case C-34/09, Ruiz Zambrano, Opinion of AG Sharpston, [2011] ECR I-1177, para. 80. 7 Agreement on the European Economic Area, done at Oporto on 2 May 1992, OJ L 1, 3.1.1994 (in force since 1 January 1994; for Liechtenstein, since 1 May 1995).

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the Agreement on the free movement of persons concluded with Switzerland (hereinafter, FMP Agreement).8 The EEA Agreement, concluded in 1992, reaffirms the high priority attached by the EU and its Member States to the privileged relationship with the EFTA States, one of its objectives being the fullest possible realization of the free movement of goods, services, capital and persons with these States.9 Only Norway, Iceland and Liechtenstein are covered by this agreement, given the accession to the EU of other former EFTA States. As the Swiss people rejected the ratification of the EEA Agreement, the EU and its Member States signed the FMP Agreement with Switzerland in 1999. This agreement is part of a package of seven sectorial agreements, legally connected by virtue of the so-called ‘guillotine clauses’. Under these, all seven agreements could only come into force simultaneously and will also come to an end if one of them is terminated or not renewed.10 The other six concern air transport; carriage of passengers and goods by road and rail; trade in agricultural products; mutual recognition of conformity assessment; certain aspects of government procurement and scientific and technological cooperation.11 With regard to their content, the EEA Agreement extends the application of the four freedoms of the internal market to the relations between EU Member States and EFTA States.12 This is done through the almost literal reproduction of the corresponding Treaty provisions and the incorporation of secondary law acts developing them, which is operated by annexes to the EEA Agreement.13 Workers and self-employed nationals of Norway, Iceland and Liechtenstein thus have the right to work and reside in the territories of EU Member States and vice versa.14 8 Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, done at Luxembourg on 21 June 1999, OJ L 114, 30.4.2002 (in force since 1 June 2002). 9 Para. 2 and 5 of the preamble to the EEA Agreement. 10 See, for instance, article 25 of the FMP Agreement. 11 See C. Kaddous (2008), “The relations between the EU and Switzerland”, in: A. Dashwood & M. Maresceau (eds), Law and practice of EU external relations: salient features of a changing landscape, Cambridge: Cambridge University Press, pp. 227–269; S. Breitenmoser (2003), “Sectoral Agreements between the EC and Switzerland: Contents and Context”, CMLR 40, pp. 1137–1186; M. Vahl & N. Grolimund (2006), “Integration without Membership. Switzerland’s Bilateral Agreements with the European Union”, Foreign and Security Policy, CEPS Paperbacks, http://www.ceps.eu/book/integration-without-membership-switzerlands-bilateral -agreements-eu (accessed 3 December 2012). 12 Article 1 of the EEA Agreement. 13 See in particular Annex V on free movement of workers, Annex VI on social security, Annex VII on mutual recognition of professional qualifications and Annex VIII on the right of establishment. 14 See Part III of the EEA Agreement (article 28 et seq.).

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Despite the economic objectives of the EEA, not only have free movement of workers, freedom of establishment and freedom to provide services been extended to EFTA States, but free movement of persons in the strict sense too. References to the sectorial directives on economically inactive persons were found in the original Annex VIII of the EEA Agreement, which was amended in 2007 so as to incorporate Directive 2004/38 on the free movement of EU citizens and their families into the relations between EU Member States and EFTA States.15 Nevertheless, until 1 January 1998, Liechtenstein had the right to apply transitional measures with regard to free movement of persons. These included national provisions submitting entry, residence and employment to prior authorization; applying quantitative limitations for new residents, seasonal workers and frontier workers; limiting professional mobility of seasonal workers; and delaying the family reunification rights of workers.16 Similarly, Iceland and Norway are allowed to apply restrictions, existing at the date of signature of the EEA Agreement, on the right of establishment in the fishing sector.17 The FMP Agreement with Switzerland is more complex, since it specifically regulates the content of the rights, instead of replicating the corresponding Treaty provisions on free movement. Nonetheless, the objectives of the Agreement, as far as free movement of persons is concerned, are identical to those of the EEA Agreement: that is, to accord the right of entry, residence, access to work as employed persons, establishment on a self-employed basis,18 and the right to stay in the territory of the Parties; to accord the right of entry and residence to economically inactive persons; and to ensure the same living, employment and working conditions as those accorded to nationals.19 Free provision of services is not granted in its entirety, except for services of brief duration,20 and the persons to which the Agreement applies have the right to family reunification.21 The FMP Agreement also contains rules on the coordination of social security systems and on the recognition of diplomas, certificates and other qualifications.22 Annexes 15 Decision of the EEA Joint Committee nº 158/2007 of 7 December 2007 amending Annex V and Annex VIII of the EEA Agreement, OJ L 124, 8.5.2008. 16 Only the prior authorization of entry, residence and employment was reciprocal and thus could be applied by EU Member States and other EFTA States with regard to Liechtenstein. See Protocol 15 on transitional periods on the free movement of persons, OJ L 1, 3.1.1994. 17 Annex VIII to the EEA Agreement, points 9 and 10. 18 Note that the right of establishment under the FMP Agreement is not granted to legal persons, but only to natural persons. See Case C-351/08, Grimme, [2009] ECR I-10777, para. 39. 19 Article 1(a), (c) and (d) of the FMP Agreement. 20 Article 1 (b) of the FMP Agreement. 21 Article 7 (d) of the FMP Agreement. 22 Articles 8 and 9, respectively.

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to the Agreement specify the concrete rules to be applied to employed persons, self-employed persons, provisions of services and economically non-active persons (Annex I); social security rules (Annex II) and mutual recognition of professional qualifications (Annex III).23 Switzerland was also entitled to apply quantitative limits on the access to economic activities by EU Member States’ nationals for a transitional period of five years from the date of entry into force of the Agreement and to maintain controls on the priority of workers for a maximum of two years.24 These reservations should not, however, modify the qualification of the agreement in dealing with free movement rights, if we take into account that, analogously, EU Member States can apply similar kinds of transitional measures to workers coming from new Member States acceding to the EU. In addition, the EEA and FMP agreements must be read in conjunction with those agreements concluded by the EU according to which controls in the respective frontiers have been abolished, thereby associating these countries to the Schengen acquis.25 The reach of the EEA and FMP agreements is therefore exceptional, in that they grant third-country nationals, in reciprocal terms, true rights of entry, residence and access to work in the territories of EU Member States. The fact that these agreements confer the right of free movement between the third country and an EU Member State implies that Norwegians, Icelanders, Liechtensteiners 23 For an analysis of the content of the FMP Agreement, see, for instance, S. Peers (2000), “The EC-Switzerland Agreement on Free Movement of Persons: Overview and Analysis”, EJML 2, pp. 127–142. 24 Article 10 of the FMP Agreement. Regarding quotas of residence permits that Switzerland is bound to annually reserve to Member States’ nationals, see also art. 10(3) and (4). These transitional measures indeed suggest that it is the EU who knocks at the door of the third country and not the other way around, as acknowledged in J. Martín y Pérez de Nanclares (2002), La inmigración y el asilo en la Unión Europea. Hacia un nuevo espacio de libertad, seguridad y justicia, Madrid: Colex, p. 188. 25 Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis, done at Brussels on 18 May 1999 (OJ L 176, 10.7.1999); Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, done at Luxembourg on 26 October 2004 (OJ L 53, 27.2.2008) and Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, done at Brussels on 28 February 2008 (OJ L 160, 18.6.2011).

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and Swiss also enjoy freedom of movement within the EU. Although no explicit reference to the latter freedom can be found in the agreements, this is inherent to the system established in them. In short, the status of these third-country nationals in the EU is almost identical, in terms of free movement rights, to that of EU citizens, giving them a privileged status that has not been granted by the EU to nationals of any other third country. To compare now the EEA and FMP agreements with other association and cooperation agreements concluded by the EU and its Member States with further third countries, it is evident that nationals from the latter do not enjoy freedom of movement and residence either to the EU or within the EU. In particular, the Euro-Mediterranean Association agreements with Northern African countries,26 the Stabilisation and Association agreements with the Western Balkan countries27 and the Partnership and Cooperation Agreements with some East European and Asian countries28 accord no right of entry to, or residence in, Member States’ territories, but exclusively regulate the rights of already legally resident nationals of the Parties. In this regard, these agreements confer on them equal treatment with nationals on working conditions, salary and dismissal; right of access to employment to family members of workers from these countries; and they include rules on the coordination of social security systems for workers and their family members. These agreements may thus provide for a more favourable status in the EU for nationals of these countries with regard to ‘ordinary’ third-country nationals. Notwithstanding, the agreements usually contain provisions or declarations recalling the application of national legislations on entry, residence and work,29 thereby clearly showing that no free movement rights are granted to the nationals of the Parties, either between their country of origin and the EU or among EU Member States.30 26 Tunisia (1995, OJ L 97, 30.3.1998); Morocco (1996, OJ L 70, 18.3.2000); Israel (1995, OJ L 147, 21.6.2000); Jordan (1997, OJ L 129, 15.5.2002); Egypt (2001, OJ L 304, 30.9.2004); Algeria (2002, OJ L 265, 10.10.2005); Lebanon (2002, OJ L 143, 30.5.2006). 27 FYROM (2001, OJ L 84, 20.3.2004); Croatia (2001, OJ L 26, 28.1.2005); Albania (2006, OJ L 107, 28.4.2009); Montenegro (2007, OJ L 108, 29.4.2010); Bosnia and Herzegovina (2008, not yet concluded). 28 Ukraine (1994, OJ L 49, 19.2.1998); Russia (1994, OJ L 327, 28.11.1997); Moldova (1994, OJ L 181, 24.6.1998); Kazakhstan (1995, OJ L 196, 28.7.1999); Kyrgyzstan (1995, OJ L 196, 28.7.1999); Georgia (1996, OJ L 205, 4.8.1999); Armenia (1996, OJ L 239, 9.9.1999); Azerbaijan (1996, OJ L 246, 17.9.1999); Uzbekistan (1996, OJ L 229, 31.8.1999); Tajikistan (2004, OJ L 350, 29.12.2009). 29 See, for instance, declaration to article 64 of the Euro-Mediterranean Association Agreements with Morocco; article 63 of the SAA with Croatia; or article 48 of the PCA with Russia. With regard to the Euro-Mediterranean Association Agreement with Morocco, see Case C-416/96, El-Yassini, [1999] ECR I-1209, para. 31–32. 30 Note that, even if these agreements confer rights on family members of workers from associated countries, they do not regulate the right to family reunification. This right will be exercised

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In this context, the Association Agreement concluded with Turkey merits however particular attention, since, by virtue of this agreement and the decisions adopted by its Association Council, Turkish workers and their families enjoy a far-reaching status within the EU. Aside from including similar provisions to those contained in other association and cooperation agreements with regard to equal treatment on working conditions or social security rules, Turkish workers legally resident in EU Member States are entitled to a right of renewal of their work permits, and therefore to a right of residence as a corollary;31 to more favourable rules on the access to work, also applicable to their family members;32 and, by virtue of the ‘stand-still’ clause contained in article 41 of the Additional Protocol to the Agreement, to a right to enter the territory of certain Member States in order to provide services or exercise a right of establishment.33 However, the favoured status of Turkish workers and their families in the EU does not mean, as the CJEU reminds us, that they enjoy freedom of movement on the basis of the Ankara Agreement, either between Turkey and the EU or among EU Member States.34 Although the EU-Turkey Agreement explicitly states that it aims at gradually achieving freedom of movement for workers between EU Member States and Turkey, as inspired by the corresponding Treaty provisions,35 according to Directive 2003/86 on the right to family reunification, applicable to any third-country national. Similarly, for other issues not covered by these agreements, secondary law acts adopted by the EU institutions on immigration policy will apply to nationals of the associated countries. For the interaction between EU migration law and association agreements, see S. Peers (2008), “EU Migration Law and Association Agreements”, in: B. Martenczuk & S. van Thiel (eds), Justice, Liberty and Security. New Challenges for EU External Relations, Brussels: VUBPress, pp. 53–87. 31 Article 6(1) of Decision 1/80 of the EEC-Turkey Association Council, of 19 September 1980, on the development of the association. See Case C-192/89, Sevince, [1990] ECR I-3461, para. 29 or Case C-237/91, Kus, [1992] ECR I-6781, para. 29–30. 32 Article 7 of Decision 1/80 of the EEC-Turkey Association Council. 33 Case C-228/06, Soysal, [2009] ECR I-1031. See E. Guild & K. Groenendijk (2010), “Visa Policy of Member States and the EU towards Turkish Nationals after Soysal”, Economic Development Foundation Publications 232 and S. Peers (2011), EU Justice and Home Affairs Law, 3rd ed., Oxford: OUP, p. 246 et seq. 34 See, among its various pronouncements, Case C-462/08, Bekleyen, [2010] ECR I-563, para. 35–37, where the Court recalls that Decision nº 1/80 does not encroach upon Member States’ competence to regulate both the entry into their territory of Turkish nationals and the conditions under which they make take up first employment, as well as the power to regulate entry and conditions of residence of their family members. Neither are Turkish nationals entitled to freedom of movement within the EU, since they are able to rely only on certain rights in the territory of the host Member State. 35 Article 12 of the Agreement and article 36 of the Additional Protocol to the Agreement. The latter foresaw that this freedom shall be secured between the end of the twelfth and the twentysecond year after the entry into force of the Agreement.

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the subsequent development of the Agreement has rendered this objective programmatic or symbolic.36 The provisions of the Ankara Agreement relating to workers and their families, like those contained in the aforementioned association agreements, are therefore migration-driven, quite unlike the far-reaching scope of the EEA and FMP agreements, which are inspired by the concept of freedom of movement. With regard to the EEA Agreement, the vocation of the EFTA States to accede to the EU has been an important factor in the decision to accord free movement rights to their nationals,37 rights that they would have enjoyed in a near future as ‘nationals of EU Member States’. However, this rationale was certainly not behind the conclusion of the FMP Agreement with Switzerland. As the academic literature points out, the best explanation of the difference between the EEA and FMP agreements and other association and cooperation agreements relates to economic factors. The degree of economic and social convergence among Norway, Iceland, Liechtenstein, Switzerland and the EU Member States has indeed been decisive in extending the rights of free movement and residence between these countries, since no migratory potential exists among them.38 The status of Norwegians, Icelanders, Liechtensteiners and Swiss is indeed almost identical to that of EU citizens, at least with regard to freedom of movement and residence. Taking into account the important contribution made by the CJEU in this field, it is thus worth analysing the extent to which CJEU case-law on free movement of persons, and in particular its more recent pronouncements, can be applied to these privileged third-country nationals. As one of the objectives of the EEA Agreement is to reach a uniform interpretation and application of its provisions and those of EU law, the interpretation contained in CJEU case-law, prior to the date of signature of the Agreement, is applicable to the provisions of the Agreement “in so far as they are identical in substance” to the corresponding rules of EU primary law and secondary law acts.39 Likewise the FMP Agreement states that account shall be taken of the relevant CJEU case-law prior to the date of signature.40 As far as future case-law is concerned, 36 M.-P. Lanfranchi (1994), Droit Communautaire et travailleurs migrants des États tiers. Entrée et circulation dans la Communauté européenne, Paris: Economica, p. 110 et seq. See also I. Blázquez Rodríguez, Los nacionales de terceros países en la Unión Europea, 2ª ed., Córdoba: Servicio de Publicaciones de la Universidad de Córdoba 2003, p. 245 et seq. 37 M.-P. Lanfranchi 1994, op. cit., p. 107. 38  Ibid.; M. Hedemann-Robinson (2001), “An Overview of Recent Legal Developments at Community Level in Relation to Third-country Nationals Resident Within the European Union, with Particular Reference to the Case-law of the European Court of Justice”, CMLR 38, p. 538; D. Kochenov 2009, op. cit., p. 233. 39 Article 6 of the EEA Agreement. 40 Article 16 of the FMP Agreement.

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the EEA Agreement compels the EEA Joint Committee established by the agreement to keep the development of CJEU and the EFTA Court case-law under constant review, entrusting it with preserving the homogenous interpretation of the Agreement.41 A system of exchange of information concerning judgments of the Courts is also foreseen.42 In slight contrast, the FMP Agreement is less developed, indicating merely that the CJEU case-law adopted after the signature of the Agreement shall be brought to Switzerland’s attention, with the Joint Committee created by the Agreement charged with determining the implications of such case-law at the request of either of the Parties.43 This slight difference between the two agreements, which is due to the different systems they set out, can be observed in CJEU case-law. Thereby since the EEA Agreement aims to extend the EU internal market to the EFTA States, those rules of the EEA Agreement which are identical in substance to those of the TFEU deserve a uniform interpretation.44 However, the interpretation given to provisions of EU law concerning the internal market cannot automatically be applied by analogy to interpret the FMP Agreement, which does not share the same objective, unless there being express provisions to that effect laid down by the Agreement itself.45 Indeed, the CJEU has stated that the extension of the interpretation of a Treaty provision to a comparable, similar or even identical provision of an international agreement concluded by the EU depends on the aim of each provision in its particular context and that a comparison between the objectives and context of the agreement and those of the Treaty is of considerable importance.46 This reasoning precisely serves to affirm that the formula used by the CJEU to protect merely internal situations or domains falling under Member States’ competence, such as the citizenship of the Union as “the fundamental status of 41 Article 105(2) of the EEA Agreement. If, within two months after a difference in the case-law of the two Courts has been brought before it, the EEA Joint Committee has not succeeded in preserving that homogenous interpretation, a procedure of settlement of disputes before the EEA Joint Committee may be applied, according to article 111 of the Agreement. 42 Article 106 of the EEA Agreement. 43 Article 16 of the FMP Agreement. 44 See, for instance, Case C-452/01, Ospelt, [2003] ECR I-9743, para. 29 and Case C- 522/04, Commission v. Belgium, [2007] ECR I-5701, para. 76. 45 See Case C-351/08, Grimme, para. 29; Case C-541/08, Fokus Invest, [2010] ECR I-1025, para. 28 and 34 and Case C-70/09, Hengartner, [2010] ECR I-7233, para. 41–42. Indeed, the Court highlights the fact that, by rejecting the EEA Agreement, the Swiss Confederation did not subscribe to the project of an economically integrated entity with a single market but chose the route of bilateral arrangements between the EU and its Member States in specific areas (see Case C-351/08, Grimme, para. 27). 46 See, among others, Case C-312/91, Metalsa, [1993] ECR I-3751, para. 11 and 12.

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nationals of Member States”47 and “the substance of the rights conferred by virtue of their status as citizens of the Union”,48 cannot be applied to the relations between Norway, Iceland, Liechtenstein, Switzerland and EU Member States. Although the substance of the rights enjoyed by these third-country nationals as regards freedom of movement and residence is the same, the federal element of citizenship, from which the CJEU has derived the reinforced status of Member States’ nationals, is lacking.49 Consequently, the far-reaching case-law established in Rottman, Ruiz Zambrano and others cannot be extended to these privileged thirdcountry nationals,50 although we are not aware that the kind of situations covered by the aforementioned case-law have arisen or could arise in respect of these nationals. At the same time, some recent CJEU case-law relating to the EU-Turkey Association Agreement is not transferable to the EEA and FMP Agreements, since Turkish nationals do not enjoy the same advantaged status in the EU as Norwegians, Icelanders, Liechtensteiners and Swiss. The Court has consistently held that the terms and principles enshrined in the Treaty and also in secondary legislation relating to free movement of workers must be extended, as far as possible, to Turkish nationals who enjoy rights under the Ankara Agreement.51 But other schemes such as that of the protection against expulsion enjoyed by EU citizens on the basis of Directive 2004/38 “cannot be applied mutatis mutandis for the purpose of determining the meaning and scope of Article 14(1) of Decision nº 1/80”.52 Comparing the terms and objectives of both set of rules allows us to note, as the Court does, that the EU-Turkey Association Agreement pursues a solely economic objective and is limited to gradually achieving free movement of workers, while the concept of Union citizenship, which is intended to be the fundamental status of Member States’ nationals, justifies the strengthened protection provided in Directive 2004/38.53 In opposition to Turkish nationals, CJEU caselaw interpreting Directive 2004/38 shall be applied to nationals from Norway, Iceland, Liechtenstein and Switzerland, not on the basis of Union citizenship but 47 Case C-434/09, McCarthy, [2011] ECR I-3375, para. 47; Case C-34/09, Ruiz Zambrano, [2011] ECR I-1177, para. 41; Case C-135/08, Rottman, [2010] ECR I-1449, para. 43; Case C-148/02, García Avelló, [2003] ECR I-11613, para. 22; Case C-413/99, Baumbast, [2002] ECR I-7091, para. 82; Case C-184/99, Grzelczyk, [2001] ECR I-6193, para. 31. 48 Case C-434/09, McCarthy, para. 47; Case C-34/09, Ruiz Zambrano, para. 42. 49 Decision no. 158/2007 of the EEA Joint Committee incorporating Directive 2004/38 to the EEA Agreement explicitly specifies that “the concept of ‘Union citizenship’ is not included in the Agreement”. 50 In this sense, D. Kochenov 2009, op. cit., p. 232; S. Breitenmoser 2003, op. cit., p. 1162. 51 Case C-371/08, Ziebell, [2011] ECR, para. 58 and the CJEU case-law mentioned in that paragraph. 52 Ibid., para. 74. 53 Ibid., para. 73. See also Case C-371/08, Ziebell, Opinion of AG Bot, [2011] ECR, para. 43–55.

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because of the explicit extension of Directive 2004/38 to these third-country nationals by virtue of the EEA and FMP Agreements. Consequently, it could be argued that the EEA and FMP Agreements have created within EU law an intermediary status between that of citizen and that of foreigner.54 Indeed, the status of Norwegians, Icelanders, Liechtensteiners and Swiss in the EU, as far as free movement rights are concerned, is so close to that of EU citizens that it leads, to a certain extent, to a dilution of the distinction between Member States and third countries.55 3. Competence Having analysed the privileged status enjoyed by nationals from Norway, Iceland, Liechtenstein and Switzerland in the EU, it is now time to deal with the competence issue. This section will therefore try to determine, firstly, which legal basis of primary law allows the Union to conclude international agreements that extend the right of free movement to third-country nationals when the Treaty solely confers it to EU citizens, and secondly, the nature of this external competence in relation to Member States’ external powers. Regarding the existence of external competences of the EU, article 216(1) TFEU states that the Union may conclude an agreement with a third country “where the Treaties so provide”, so confirming the conferral of an explicit external competence as the first criterion to this effect. Furthermore, this provision affirms that the Union will also have an external competence “where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties”, thus codifying in the Treaties the CJEU doctrine on implied external competences.56

54 Regarding the EEA Agreement, see D. Martin & E. Guild (1996), Free Movement of Persons in the European Union, London: Butterworths, p. 237, where they affirm that “in the field of free movement, the Agreements creates more than an association; it implies a regime modelled on that of accession excluding, however, Articles 7a and 8a EC which have no place in the EEA arrangements”. 55 According to Roldán Barbero, the extension of EU internal rules to third countries through international agreements relativizes, to a certain extent, the dichotomy of ‘Member State’ and ‘third country’: J. Roldán Barbero (2003), “La delimitación de competencias en las relaciones exteriores de la UE”, in D.J. Liñán Nogueras & C. López-Jurado (eds), La reforma de la delimitación competencial en la futura Unión Europea, Granada: Universidad de Granada, p. 129. 56 Doctrine started with Case 22/70, Commission v. Council (ERTA), [1971] ECR 263; Joined Cases 3, 4 and 6/76, Kramer, [1976] ECR 1279; Opinion 1/76, [1977] ECR 741, and which became consolidated in subsequent case-law.

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Given the content of the EEA Agreement and the FMP Agreement,57 the EU external competence to conclude both could have been based either on article 79 TFEU on immigration policy, or on articles 21, 45, 50 and 56 TFEU related to the free movement of persons, workers, right of establishment and freedom to provide services. Regarding the first possibility, it is questionable that an external competence to confer rights of free movement and residence upon third-country nationals could be found in Title V of the TFEU. It is true that the Union enjoys the power to regulate conditions of entry and residence of third-country nationals in Member States’ territories according to article 79(2)(a), and an implied external competence can be deduced from this provision. However, neither the EEA Agreement nor the FMP Agreement, as has been shown, can be qualified as agreements on legal migration, since these treaties eliminate the distinctive elements of an immigration policy. Note that, on the one hand, Norwegians, Icelanders and Liechtensteiners do not need ‘residence permits’ in order to stay and reside in EU Member States. On the other, despite the fact that the FMP Agreement with Switzerland refers to ‘residence permits’,58 these permits have a merely declarative value, their conferral not being subject to a discretionary decision of the State.59 Apart from the transitional periods referred to in the agreements, the national employment situation is not taken into account when granting the right of movement to workers, but these privileged third-country nationals are considered as if they were ‘Member States’ nationals’. Therefore, Member States have relinquished their power to decide whether or not these foreigners may enter their territories, conferring upon them a right to enter, to reside and work, or even to reside with no economic purpose. This preferential regulation means that we move from migration policy to the concept of freedom of movement – a reasoning which is not contradicted by the terms of article 79(2)(b) TFEU, since this provision only refers to the “definition of the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and residence in other Member States”, but not between the country of origin and EU Member States as the EEA and FMP agreements do. Neither would the second possibility, consisting in concluding these agreements on the basis of the Treaty provisions on free movement of persons, workers, services and freedom of establishment, be legally correct, since an implicit external competence cannot be deduced from those provisions. As can be 57 Given that the EEA Agreement deals with other policies such as competition, environment or social policy, our competence analysis will be exclusively devoted to the provisions of the Agreement on free movement rights. 58 See references in Annex I to the FMP Agreement. 59 In this sense, see S. Peers 2000, op. cit., p. 137.

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inferred from the CJEU case-law and from article 216(1) TFEU, the application of the doctrine of implied external competences to a concrete field requires the development of the following reasoning in three stages. Firstly, does the EU have an internal competence in the domain to be regulated by an international agreement? Secondly, what is the objective of this internal competence? And finally, does the conclusion of an international agreement facilitate the achievement of the latter objective? Applying this reasoning to the Treaty provisions on free movement rights, the conclusion of international agreements with third countries does not seem to facilitate the objective of the EU’s internal competences, which is to ensure the freedoms of movement of Member States’ nationals within the Union.60 In practice, the initial proposal from the Commission to conclude the FMP Agreement referred to the free movement provisions of the EC Treaty.61 Nevertheless, the Council decided to adopt a single decision to conclude the seven sectorial agreements with Switzerland, using former article 310 ECT as a single legal basis,62 even if it did not constitute an association agreement stricto sensu, but rather several sectorial agreements covering different fields of specific cooperation. The decision to conclude the EEA Agreement, for its part, was also based on former article 310 ECT, current article 217 TFEU.63 In my view this was the only legal way to extend to third-country nationals the rules on free movement, because article 217 TFEU, as interpreted by the CJEU, allows the EU “to guarantee commitments towards non-member countries in all the fields covered by the Treaty”,64 in this case that on free movement of persons.65 60 See references in article 21(1), 45(2), 49, first para. and 56, first para. TFEU. Article 56, second para., empowers the EP and the Council to extend the freedom to provide services to third-country nationals who are established within the Union. However, the EEA and FMP Agreements extend that right to third-country nationals established in third countries. 61 See Proposal for a Council Decision on the conclusion of the Agreement on the Free Movement of Persons between the European Community and its Member States, of the one part, and the Swiss Confederation, on the other part, COM (1999) 229, 4.5.1999. It was based on former articles 18, 39.3.d), 40, 42, 44.1 and 2, 46.2, 47, 52.2 and 3, 55, 95, 150.4, 299 and 300 of the EC Treaty. 62 Decision 2002/309 of the Council, and of the Commission as regards the Agreement on Scientific and Technological Cooperation, of 4 April 2002 on the conclusion of seven Agreements with the Swiss Confederation, OJ L 114, 30.4.2002. 63 Decision 94/1/EC, ECSC of the Council and the Commission of 13 December 1993, OJ L 1, 3.1.1994. 64 Case 12/86, Demirel, [1987] ECR 3719, para. 9. 65 Maresceau considers in this regard that recourse to article 310 ECT “was certainly, from an internal EC perspective, the easiest and most pragmatic legal basis”, since “once Article 310 EC serve as a legal basis, there is no need to refer to additional substantive law provisions of the Treaty and complicated discussions about competence can be avoided”: M. Maresceau (2004), “Bilateral agreements concluded by the European Community”, RCADI 309, p. 415. In my view, as well as avoiding the necessity for discussions on competence, this was the only legal possibility.

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It can be inferred from this interpretation of the Court that it is not necessary to resort to the different substantive legal basis of the Treaties regulating each of the matters that have been included in the association with a third country, since article 217 TFEU is self-sufficient in this regard. As a result, the recourse to this explicit external competence avoids having to justify the existence of specific EU external competences in each of the domains of cooperation included in the agreement, either on the basis of explicit or implied external powers.66 As applied to our subject, the choice of article 217 TFEU as the legal basis of the FMP Agreement was the only way to overcome the lack of an explicit or implicit competence to develop an “external dimension of the free movement of persons”.67 Following this interpretation, it is striking to observe that the Council decision to conclude the Swiss agreements states that, as regards the FMP Agreement, “the undertakings […] that fall within the scope of Part Three, Title IV of the [ECT] are not binding on the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland as obligations under Community law but as obligations arising from an undertaking between those Member States and the Swiss Confederation”.68 As Guild and Peers have pointed out,69 this declaration would be incorrect, since free movement of Swiss nationals into the EU is linked to former Title III of Part 3 of the EC Treaty, on the free movement of persons, not to former Title IV on immigration and asylum, which is the one covered by the optout Protocols applying to the United Kingdom, Ireland and Denmark.70 Similar declarations have also been included in other association agreements concluded by the EU and its Member States after the entry into force of the Treaty of Amsterdam.71 In my view, these assertions are, on the contrary, legally correct because the provisions of these agreements relating to workers correspond to immigration powers, and more precisely to rights of third-country nationals residing legally in a Member State.72 Although article 217 TFEU is not part of the exceptions covered by the opt-out Protocols, this provision confers upon the EU the power to contract commitments with third countries in all the fields covered 66 In this sense, see Case 12/86, Demirel, Opinion of AG Darmon, [1987] ECR 3719, para. 14. 67 Regarding the EEA Agreement, the choice of the legal basis of the association was justified by the fact that this Agreement regulates different fields of cooperation aimed at establishing a privileged relationship with the EFTA States. 68 Para. 3 of the preamble of Decision 2002/309. 69 E. Guild & S. Peers (2006), “Out of the Ghetto? The Personal Scope of EU Law”, in: S. Peers & N. Rogers (eds), EU Immigration and Asylum Law. Text and Commentary, Leiden: Martinus Nijhoff Publishers, p. 99. 70 Protocols nº 21 and 22 to the TFEU. 71 See, for instance, the penultimate intent of the preamble of the Euro-Mediterranean Association Agreement with Algeria or the antepenultimate intent of the preamble of the Stabilisation and Association Agreement with Croatia. 72 Article 79(2)(b) TFEU. For a different view, see E. Guild & S. Peers 2006, op. cit., p. 99.

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by the Treaty. It seems, then, consistent to argue that the EU could only engage, through this legal basis, Member States bound by those fields. Given that the United Kingdom, Ireland and Denmark are not bound by the domains covered by Title V of the TFEU, then neither is the EU able to engage them by means of the conclusion of an association agreement, as far as those domains are concerned.73 However, as previously indicated, this is not the case with the FMP and the EEA Agreements, which do not pertain to immigration policy in the sense of the Treaties, but to the rules on freedom of movement. The present discussion about the domain of the Treaties to which both agreements relate is useful not only in determining whether these agreements were correctly concluded or not, but remains of practical importance regarding their future development. Indeed, in June 2011, the Council adopted a decision to establish the position to be taken by the EU within the EEA Joint Committee concerning an amendment to the Social Security rules of the EEA Agreement.74 The aim of this amendment is to extend the application of the new regulations on social security coordination within the EU to Norway, Iceland and Liechtenstein, in particular Regulation 883/2004 as amended by Regulation 988/2009 and the implementing Regulation 987/2009.75 Since these acts of secondary law were adopted on the basis of the free movement of workers rules, and since the spirit of those rules is at the core of the EEA Agreement, the decision seems to be correctly based on article 48 TFEU, together with article 218(9).76 An action for annulment of the Decision 2011/407 has however been brought by the United Kingdom before the CJEU, arguing that the Council was wrong to adopt it by using article 48 TFEU as substantive legal basis.77 According to the United Kingdom, the correct legal basis should be article 79(2)(b) TFEU, since the decision aims to extend social security rights to third-country nationals residing legally within the EU, whereas article 48 provides an EU competence to legislate only for 73 In this sense, see B. Martenczuk (2008), “Variable Geometry and the External Relations of the EU: The Experience of Justice and Home Affairs”, in: B. Martenczuk & S. van Thiel (eds), Justice, Liberty and Security. New Challenges for EU External Relations, Brussels: VUBPress, p. 518 and P. García Andrade (2012), “La geometría variable y la dimensión exterior del espacio de libertad, seguridad y justicia”, in: J. Martín y Pérez de Nanclares (coord.), La dimensión exterior del espacio de libertad, seguridad y justicia de la Unión Europea, Madrid: Iustel, p. 96. 74 Council Decision 2011/407 of 6 June 2011, OJ L 182, 12.7.2011. 75 OJ L 166, 30.4.2004, OJ L 284, 30.10.2009 and OJ L 284, 30.10.2009, respectively. 76 According to this procedural provision, the Council, on a proposal from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, shall adopt a decision establishing the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects. 77 Action brought on 18 August 2011, case C-431/11, United Kingdom v. Council, OJ C 311, 22.10.2011. Time after handing in this contribution, the Court ruled this case, dismissing the action of the United Kingdom and thus accepting article 48 TFEU as the correct substantive legal basis of the decision: Case C-431/11, United Kingdom v. Council, [2013] ECR (not yet published).

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Member States’ workers. The British argument resides on the fact that using the latter has deprived it of its right to opt out under Protocol 21 to the Treaties. The Council had previously adopted a similar decision in order to amend the social security rules of the FMP Agreement with Switzerland.78 Despite the Commission arguing in favour of article 48 TFEU, Council Decision 2011/505 was, on the contrary, based on article 79(2)(b) TFEU, and did not therefore bind the United Kingdom, Ireland and Denmark as obligations under Union law.79 The latter two Member States subsequently aligned themselves with the EU position, but not the United Kingdom, which presented its own position to the Swiss, where it proposed not to apply the social security coordination rules to economically non-active persons in the UK’s relations with Switzerland.80 For Switzerland, the British position was unacceptable, at least without the introduction of further derogations for non-active persons in relation to all EU-Member States.81 Because of the Swiss refusal, a new Council decision was adopted in December 201182 which served as the basis for finally amending the rules on social security of the FMP Agreement.83 Following the Commission’s opinion, Council Decision 2011/863 has however been based on article 48 TFEU, giving rise to the introduction of another action for annulment by the United Kingdom.84 One of the British arguments is that article 48 TFEU cannot serve as substantive legal basis of a measure that is intended to cover not only workers, but also Swiss nationals who are not economically active. In this regard, it is true that both Regulation 883/2004 and Regulation 988/2009 used a double legal basis, article 42 EC regarding workers and 308 EC in order to cover non-active persons. The Lisbon reform, aware of this lack of competence, amended article 21 TFEU in order to empower the EU to adopt measures concerning social security or social protection affecting nonactive persons.85 Consequently, the Council decisions adopting the EU positions amending the social security rules of the EEA and FMP Agreements should have been based on articles 48 and 21(3) TFEU, together with article 218(9) as procedural­ 78 Council Decision 2011/505 of 6 December 2010, OJ L 209, 17.8.2011. 79 See para. 5 and 6 of the preamble to Council Decision 2011/505. 80 See the Commission’s proposal, COM(2011) 671, 24.10.2011, p. 1–2. 81 Ibid., p. 2. 82 Council Decision 2011/863/EU of 16 December 2011, OJ L 341, 22.12.2011. 83 Decision nº 1/2012 of the Joint Committee established under the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons of 31 March 2012 replacing Annex II to that Agreement on the coordination of social security schemes, OJ L 103, 13.4.2012. 84 Action brought on 21 December 2011, case C-656/11, United Kingdom v Council. By Order of 18 April 2012, the President of the Court has dismissed the application for suspension and interim measures requested by the United Kingdom in relation to Council Decision 2011/863. 85 Article 21(3) TFEU.

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legal basis.86 In my view, the United Kingdom is therefore right on the existence of a problem of legal basis, but not on the correct legal basis. An a contrario argument to this effect is to be found in the several Council decisions regarding the position to be adopted by the EU within the Association Councils of the Agreements with Morocco, Tunisia, Algeria, Israel, FYROM and Croatia in order to develop the provisions on social security coordination of these Agreements.87 Similar decisions have also been adopted with regard to Albania, Montenegro, San Marino and Turkey.88 They are rightly based on article 79(2)(b) TFEU in conjunction with article 218(9) TFEU because nationals of these associated countries do not enjoy the right of free movement either to the EU nor within the EU.89 This shows that article 79 could not be the correct legal basis for similar positions with regard to the EEA and the FMP Agreement, which have a very different objective. The only exception is represented by the Council decision related to Turkey, which is based on article 48 TFEU. The Commission explains this choice by the fact that the Ankara Agreement and its Additional Protocol provide for a different legal situation, since their objective is to secure the free movement of workers in progressive stages.90 However, taking into account that this objective has not been achieved and that the content of the Ankara Agreement does not extend that freedom to Turkish workers, the choice of this legal basis makes it much more difficult to draw the line between EU competences on free movement, on the one hand, and its competences on migration, on the other. A final question to be addressed is that concerning the legal nature of the EEA and FMP Agreements, or more specifically their conclusion in mixed form. As 86 Nevertheless, it could be argued, in my opinion, that any Council decision establishing the position to be adopted by the EU within an association council should use article 217 TFEU as material legal basis, taking into account that the international implementation of an international agreement depends on the EU rules of distribution of conventional powers – association competence, in this case –, not the distribution of execution powers – free movement, in this case. This reasoning has been developed in P. García Andrade (2012), La acción exterior de la Unión Europea en materia migratoria: un problema de reparto de competencias, PhD Thesis, Department of Public Law, Faculty of Law, Universidad Pontificia Comillas, Madrid (publication forthcoming). In a similar vein, see case C-431/11, United Kingdom v. Council, Opinion of AG Kokott, [2013] ECR (not yet published), para. 52 et seq. It is nonetheless essential to determine whether the decision to be adopted by the association council corresponds to the field of free movement or that of immigration for the purpose of the opt-outs, given that the EU cannot bind these three Member States in Title V domains through article 217 TFEU, as previously indicated. 87 Council decisions nº 2010/697, 2010/698, 2010/699, 2010/700, 2010/701 and 2010/702, respectively, of 21 October 2010, OJ L 306, 23.11.2010. 88 Council decisions nº 2012/773, 2012/774, 2012/775 and 2012/776, respectively, of 6 December 2012, OJ L 340, 13.12.2012. 89 See nonetheless the comment made supra note 86. 90 COM (2012) 152, p. 6.

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indicated above, both agreements have been concluded, on the EU side, by the Union and its Member States. They are therefore ‘mixed agreements’, as is the case with the majority of association agreements concluded to date. Mixity is indeed used when EU external competences to conclude an international agreement do not exist or when they lack an exclusive nature with regard to some of the domains covered by the agreement, making it either necessary or possible to include Member States as Contracting Parties together with the EU91. However, association agreements present, in my view, some particularities with regard to other mixed agreements. Since article 217 TFEU confers upon the EU an explicit external competence to adopt engagements in all the fields covered by the Treaties, this legal basis avoids having to justify not only the existence, but also the nature and the possibility of exercising EU external competences in each of the fields covered by the association agreement. Recourse to mixity will thus be legally mandatory only when the association agreement also deals with aspects pertaining to Member States’ exclusive powers. This is because, when the EU concludes an association agreement, it does not exercise the external competences on each subject covered by the agreement, but the specific external competence to associate a third country to some of its policies. Given that article 217 TFEU only confers an external competence to conclude an agreement and not a corresponding internal one to execute its commitments, the implementation of an association agreement will depend on the distribution of internal competences between the EU and its Member States,92 without a risk of preemption effects derived of the external action of the Union, usual reason behind mixity. Member States’ participation in association agreements, except for those cases in which they also cover fields of their exclusive remit, is rather symbolic or politically-driven.93

91 Among the vast doctrine related to mixed agreements, see, for instance, P. Eeckhout (2011), EU External Relations Law, 2nd ed., Oxford: OUP, p. 212 et seq.; C. Hillion & P. Koutrakos (2010), Mixed Agreements Revisited. The EU and its Member States in the World, Oxford: Hart Publishing; E. Neframi (2007), Les accords mixtes de la Communauté Européenne: aspects communautaires et internationaux, Bruxelles: Bruylant; M. Dony (2005), “Les accords mixtes”, in: J.-V. Louis & M. Dony (dir.), Relations Extérieures, Commentaire J. Mégret, Le Droit de la CE et de l’Union européenne, vol. 12, Bruxelles: Éd. Université Libre de Bruxelles, pp. 167–199; J. Helikoski (2001), Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States, The Hague: Kluwer Law International; D. O’Keeffe & H.G. Schermers (1983), Mixed Agreements, Deventer: Kluwer. 92 Case 12/86, Demirel, para. 10. In this sense, see E. Stein (1991), “External relations of the European Community: Structure and Process”, Collected Courses of the Academy of European Law 1(1), p. 155. 93 See A. Rosas (1998), “Mixed Union – Mixed Agreements”, in: M. Koskenniemi (ed.), International Law Aspects of the European Union, The Hague: Kluwer Law International, p. 141.

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Following this reasoning, the mixed character of the FMP Agreement with Switzerland could be a priori questionable,94 because it regulates a field - the free movement rights - which is apparently completely covered by the Treaties. However, is it consistent to maintain that the EU is competent to confer upon third-country nationals a right of admission to Member States’ labour markets under the free movement rules, but that it is unable to confer the same right under its immigration competences? In my view, this question should be answered affirmatively. Member States have not transferred to the EU their discretionary power to decide on the admission to their labour markets of foreign workers, be they third-country nationals or nationals from other Member States. On the one hand, Member States have explicitly preserved that sovereign power as exclusive regarding third-country nationals coming from a third country by means of article 79(5) TFEU. On the other hand, by creating a right to free movement of workers in the Treaties, Member States have expressly renounced making use of their discretionary power regarding workers who are nationals from other Member States. In both cases, however, Member States’ consent is or has been necessary, without conferring on the EU an internal or external competence to decide on the issue.95 Consequently, the conclusion of an international agreement by the Union aimed at extending a right of admission for economic purposes to nationals of a third country will require the participation of Member States. Nevertheless, the authors of the Treaties have conferred on the EU an explicit external competence to conclude association agreements with third countries, a competence that, as has been previously recalled, must empower the EU to guarantee commitments towards third countries in all the fields covered by the Treaties. In his conclusions to the Demirel case, Advocate General Darmon argued that this broad interpretation shall be limited to association agreements concluded with a view to accession, in order to facilitate the associated country’s acceptance of the obligations arising out of the EU Treaties.96 Since Member States have already given their consent to admit other Member States’ nationals to their labour markets by means of primary law, the EU has enough competence, on the basis of article 217 TFEU, to extend free movement of workers to the nationals of that ‘third country/future Member State’. The Court extended however this reasoning to any association agreement, either preparing accession or as an 94 Due to the fact that it covers other fields of cooperation additional to the free movement regime, we cannot assert the same conclusion with regard to the EEA Agreement. 95 As far as Member States’ nationals are concerned, the competence transferred to the EU institutions is limited to the adoption of the measures required to effectively achieve freedom of movement for workers, as stated in article 46 TFEU. 96 Case 12/86, Demirel, Opinion of AG Darmon, para. 14.

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alternative to accession. Therefore, as far as free movement of workers is concerned, recourse to mixity in association agreements is not legally mandatory, irrespective of the aim of the association agreement in question. Nevertheless, reluctance to accept this broad interpretation of the association competence given by the CJEU could explain the political motives behind Member States’ insistence to participate in association agreements such as the FMP agreement with a country that will not accede to the EU. 4. Concluding Remarks This paper has analysed how the essential right conferred by EU citizenship to Member States’ nationals has also been granted to certain third-country nationals by virtue of international agreements concluded by the EU. Norwegians, Icelanders, Liechtensteiners and Swiss indeed enjoy true rights of free movement and residence to the EU and within the EU and thus benefit from a privileged status, almost identical to that of EU citizens, that has not been granted to nationals of any other third country. Confronting the rights conferred by the EEA Agreement and the FMP Agreement with those provided by other association and cooperation agreements concluded by the EU permits the drawing of a clear line between the free movement regime and the migration system. However, the fact that the federal element of citizenship has not been included in the EEA and FMP Agreements leads to the affirmation that the latter have created, within EU law, an intermediary status between that of EU citizen and that of foreigner, which simultaneously generates a dilution of the distinction between Member States and third countries. Although an answer to the question of competences is not straightforward, it is controversial that the free movement regime provided by the EEA and FMP Agreements could have found, for the conclusion of the agreements and their developments, an appropriate legal basis in the provisions related to immigration of Title V of the TFEU. Since an implied external competence cannot be deduced either for this purpose from the Treaty provisions on free movement rights of EU citizens, the EU power to extend those rights to third-country nationals resides in article 217 TFEU, allowing the Union to conclude association agreements. This seems to be the only legal way to overcome the lack of explicit or implicit external competences in order to develop an “external dimension of the free movement of persons”. Nevertheless, as has been shown by the recent developments of the provisions on social security contained in both the EEA and FMP Agreements, this has given rise to legal disputes within the Council. Two pending cases will fortunately provide the CJEU with the opportunity to clearly distinguish between the scope of EU competences on free movement and that of its competences on immigration.

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Finally, although it can be maintained that granting rights of admission to national labour markets always requires Member States’ consent, the extensive interpretation given by the CJEU to the external competence enshrined in article 217 TFEU once again questions the legal justification for the mixed character of the FMP Agreement and, as far as free movement rights are concerned, the EEA Agreement, too.

Social Integration of Third Country Nationals and Spanish Nationality Law José María Ruiz de Huidobro* 1. Objective This paper’s objective is to analyse the way in which the social integration of foreigners is evaluated as a legal requirement for the acquisition of Spanish nationality due to residence. Two points should be underlined at the outset: firstly that this requirement is binding on both foreigners from third countries and those from the European Union who wish to acquire Spanish nationality; and secondly, that under the current regulation – and consequently, the conception – of European Union citizenship, the usual means for nationals of third countries to achieve full European Union citizenship is to be naturalised in any of the EU states. Given the above, the social integration requirement for foreigners seeking nationality could become an actual petition in principle, as full social integration can only be achieved when full legal citizenship is recognised. 2. Legal Regulation of the Acquisition of Spanish Nationality due to

Residence

2.1. Introduction: Outline of the Legal Regulation of Spanish Nationality The legal regulation of Spanish nationality is located in the Civil Code (Articles 17–27)1 and, with regard to the Civil Registry, in the Law of Civil Registry

* The origin of this paper lies in my participation in the Jean Monnet Workshop The Reconceptualization of European Union Citizenship, held in Madrid, October 7–8, 2011. 1 For further information on the legal regulation of Spanish nationality, see A. Álvarez Rodriguez (2009), Cuestionario práctico sobre nacionalidad española, León: Eolas ediciones; A. Álvarez Rodriguez (2003), La nacionalidad española. Análisis de la normativa vigente Madrid: Ministerio de Trabajo y Asuntos Sociales; J. Carrascosa González (2011), Derecho español de la nacionalidad. Estudio práctico, Granada: Comares editorial; J. Carrascosa González, A. Durán Ayago &

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of 1957 (Articles 63–8) and Regulations of Civil Registry of 1958 (Articles 220–237).2 Independently of the attribution of Spanish nationality, which is based on ius sanguinis (including the adoption of minors) and subsidiarily on ius soli so as to avoid the perpetuation of foreign lineage or stateless children born in Spain, as stated in Article 17 and Article 19 of the Civil Code, Spanish legislation stipulates four means of acquiring Spanish nationality:  1. By possession (or consolidation). This is a means of acquiring Spanish nationality based on having been in possession of Spanish nationality, with good will, for ten years; it is based on registration in the Civil Registry, as stated in Article 18 of the Civil Code. As regards social integration, possession of nationality over an extended period of time is taken to imply a sufficient degree of integration. 2. By having naturalisation Charter. This is a discretionary concession made by the Government of the Nation, and is used only under exceptional circumstances. The application is presented at the Civil Registry, and the administrative procedure is the competence of the Justice Ministry, as set out in Article 21 of the Civil Code. With regard to social integration, such exceptional circumstances are taken to imply sufficient integration. B.L. Carrillo Carrillo (2008), Curso de Nacionalidad y Extranjería, Madrid: Colex; L.V. Martín Sanz & T. Marañón Maroto (2010), Nacionalidad. Práctica registral y formularios procesales, Madrid: Dykinson. Also, for classical legal commentaries former to the last legal reform of 2002, see J. Diez del Corral Rivas (1991), “Comentario a los artículos 17 a 28 del Código”, in Comentario del Código Civil, t. I, Madrid: Ministerio de Justicia, Secretaría General Técnica, Centro de Publicaciones, pp. 175–223; M. Peña y Bernaldo de Quiros (1993), “De los españoles y extranjeros”, in M. Albaladejo & S. Díaz Alabart (dir.), Comentarios al Código civil y compilaciones forales, t. I, vol. 3, Madrid: Edersa. 2 In Law 20/2011, of July 21, of the Civil Registry and Organic Law 8/2011, of July 21, complementary to the law on the Civil Registry, whereby Organic Law 6/1985, of July 1, of Judicial Power was modified, a profound legal reform in the Spanish Civil Registry was addressed. The reform will come into force on July 22, 2014. With regard to our present subject, the acquisition of Spanish nationality due to residence entails no substantial change in the current legal regulations, although the regulation is reduced from six to only two Articles (Article 68: “Registration of nationality and civil condition (vecindad civil). 1. The acquisition of Spanish nationality due to residence, naturalization Charter and option, as well as its recovery and the declarations of willingness as regards residence, will be recorded in the individual register. These registrations will be of a constitutive nature. Spanish nationality acquired by any of the means recognised by legislation cannot be registered unless registration of birth has previously been registered. The registration of loss of nationality is of a merely declarative nature. 2. In order to make the registrations related to nationality and civil condition the same, entitlement to recognition of Spanish nationality or of corresponding civil condition status will be sufficient”. Also Article 69: “Presumption of Spanish nationality without prejudice to the stipulations in the Civil Code and taking into account the foreignness of the parents, those born on Spanish territory from parents also born in Spain are presumed to be Spanish. The same presumption applies for civil condition”).

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3. By declaration (or option) only. This is a way of acquiring Spanish nationality based solely on the declaration of the person who is protected under the legal provisions. These include minors under the parental protection of a Spaniard, as established in Article 20.1.a) of the Civil Code; children of former Spaniards who were born in Spain, as set out in Article 20.1.b) of the Civil Code;3 and persons over eighteen years of age, adopted by one or two Spaniards or persons over eighteen years of age, whose Spanish parent was legally determined after the person became eighteen, as established in Article 20.1.c) in relation to Article 19.2 and Article 17.2 of the Civil Code. The application is presented in the Civil Registry; the Registry Official examines this further only if the person is protected under the legal provisions, with further measures for integration not being taken into consideration. Protection under the legal provision is taken to imply sufficient social integration. 4. By residence. In practice, this is the most frequent means of acquiring Spanish nationality, wherein Spanish nationality is granted to the foreigner due to their having settled within the Spanish nation, as demonstrated – together with other requirements – by the period of residence on Spanish territory. This implies that residence over an extended period of time should lead to sufficient social integration; however, the law establishes additional requirements relating to social integration. 2.2. Legal Regulation of the Acquisition of Spanish Nationality Due to Residence Spanish nationality due to residence is granted by the Minister of Justice who, once all the legal requirements are met, may reject the application on the grounds either of maintaining public order or in the national interest. The Administration’s action is a regulated concession, whereby the competent administrative authority  grants nationality insofar as all legislative requirements are met, and it may reject the application only with such justifications as those given above. The Administration’s negative judgement is therefore jurisdictionally controlled,  as set out in Articles 21 and 22 of the Civil Code. Jurisdiction is contentious-administrative.4 3 Temporarily, between December 28th 2008 and July 27th 2012, children of former Spaniards, migrants or exiles as established in the Law on the “Historical Memory” (BOE 27/12/2007), complemented by the new Law of Civil Registry 20/2011 (BOE 22/07/2011). 4 “Spanish nationality is also acquired by residence in Spain in the conditions contained in the following Article and through the concession granted by the Justice Ministry, which may be rejected due to reasoned grounds involving ‘public order or the national interest’”, as stated in Article 21.2 of the Civil Code. “The grant or denial of nationality due to residence makes an exception of contentious-administrative proceedings”, as established in Article 22.5 of the Civil Code.

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Residence must be legal, continuous and immediately prior to the application, as set out in Article 22.3 of the Civil Code; and the applicant must be able to demonstrate a high level of civic conduct and a sufficient level of integration into Spanish society.5 The application is presented at the Civil Registry and the administrative procedure is the competence of the Justice Ministry.6 The decision is taken by the Minister of Justice, who by delegation is currently the Director of the DGRN – the General Directorate of Registries and Notaries (Dirección General de Registros y Notariado). The key steps in the procedure are the following: a) application by the person concerned; b) hearing of the person concerned by the judge or Official responsible at the Civil Registry, with the aim of checking those points in the application regarding the justification of good civic conduct and the sufficient level of integration into Spanish society;7 c) transferral of the dossier to the DGRN at the Justice Ministry, along with the Official’s report, and possibly a further report from the Prosecutor’s office; d) the DGRN will request the official reports it considers relevant, together with the compulsory report of the Interior Ministry, as stated in Article 222 of the Regulations of the Civil Registry. The requisite information may, for example, be obtained from the National Intelligence Centre (Centro Nacional de Inteligencia); e) appointment and interview with the applicant in the police station which corresponds to their address, with relevant enquiries made by the General Documentation Office (Comisaría General de Documentación); e) resolution of the Ministry of Justice.8 This resolution is transferred to the Civil Registry, 5 “The person concerned must justify good civic conduct and sufficient integration into Spanish society in the proceedings regulated by the legislation of the Civil Registry”, as stated in Article 22.4 of the Civil Code. 6 “The concession of nationality due to residence will be made by the Justice Ministry following the due proceedings. With the sole objective of resolving the application submitted by the person concerned, the competent authorities for the processing and resolution of the applications for the acquisition of nationality due to residence will, ex officio, collect all the reports required from the Public Administrations in order to check whether the applicants comply with the requirements as set out in Article 22 of the Civil Code, and the consent of the persons concerned is not required … In any case, the person concerned may provide a report issued by the Autonomous Community in order to accredit his integration into Spanish society, as stated in Article 63 of the Law of the Civil Registry. The proceeding is regulated in the Articles 220 a 224 of the Regulations of the Civil Registry. 7 “In the proceedings for the concession of nationality due to residence, the judge responsible at the Civil Registry will personally hear the applicant, especially in order to check the level of adaptation to the culture and lifestyle of the Spaniards, and they will also endeavour to hear the spouse separately and in private regarding the change of nationality and circumstances involved”, as established in Article 221 of the Regulation of the Civil Registry. 8 As of June 25, 2012, when the Minister of Justice signed with the official Association of registrars an agreement of entrustment of management, property registrars collaborate with the DGRN in

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and legal notification is made to the person concerned, who has 180 days to comply with the requirements of Article 23 CC9 by their due appearance as set out in Article 21.4 of the Civil Code, and Article 224 of the Regulations of the Civil Registry. 2.3. Requirements for Applying for Nationality Due to Residence A) Residence Article 22.3 of the Civil Code establishes that “residence must be legal, continuous and immediately prior to the application”. The duration of required residence depends on the following criteria: ten years are required in general, five years for refugees, two years for people from former Spanish colonies, and one year for people born in Spain or with family links with Spaniards.10 In order for this requirement to be met, the reference taken is the date of application, and compliance with the above-mentioned requirements is verified by going back in time until the period required by law for the concession has been covered. For example, if the application was made on November 1, 2000 and the time limit required is ten years, the period between November 1, 1990 and November 1, 2000 will be taken into account in order to verify whether the requirements have been met. However, the practice of the DGRN, as recorded in several resolutions of rejection - for instance, Resolution of the DGRN of 4th September 30, 1996 - took into consideration the time necessary for processing of the dossier in order to maintain residence, and its resolutions were jurisdictionally annulled (Decisions of the National Court, CA Section 3rd of June 2, 2000 and 6 of June 2000). Currently, DGRN practice is to use the date of application in the Civil

carrying out certain procedural acts by which nationality by residence is granted. See Instruction of October 2, 2012 of DGRN. When in this paper we refer to the “current DGRN practice”, we refer to criteria that registrars follow according to an Official Procedural Guide.   9 “The following are general requirements for the validity of the acquisition of Spanish nationality by option, naturalisation Charter or residence: a) That the person be over fourteen years old and be able to declare for himself, swear or promise loyalty to the King and obedience to the Constitution and to the Laws. b) That the same person declares that he renounces his previous nationality. Exceptions to this requirement are nationals of the countries mentioned in section 1 of Article 24. c) That the acquisition is registered in the Spanish Civil Registry” (Article 23 of the Civil Code). 10 “One. In order to concede nationality due to residence, it is necessary that residence has lasted ten years. Five years will be sufficient for those who are refugees, and two years will be sufficient for nationals from Latin-American countries, Andorra, Philippines, Equatorial Guinea or Portugal and Sephardic Jews.

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Registry as recorded on the entry stamp, and if not, then the date of the ratification (hearing) is deemed to apply. The following questions arise:11 a) As regards “residence being immediately prior to the application”: the person must reside in Spain at the time the application is made. As we have seen above, several DGRN resolutions appeared to require that residence be maintained during the processing of the case. A further question is that the processing of the case is due to the need to repeat the application, in which case residence at the time of the repeated application is required. Another question deals with the point at which the applicant may have entered into an irregular situation by not having renewed their authorization or residence permit. In this case, if the irregular situation lasts more than one year, DGRN practice is to refuse to grant nationality on the grounds of lack of good civic conduct, since remaining in Spanish territory without a valid residence permit represents a serious administrative infringement. b) Legal residence implies that residence is protected by authorisation of residence, in the terms established by legislation on aliens such as chapter II of Part II of Organic Law 8/2000, in particular, Articles 29, 31 and 33. This legislation has been made more flexible by acceptance of the fact that periods of time which, although not covered by a residence permit, are covered by other legal entitlements which may give the foreigner’s stay in Spain a certain legality; for example, foreigners who are mistakenly in possession of a Spanish ID Card on Spanish territory. The Decision of the National Court CA Section 3rd of April 5, 2005 (Aranzadi JUR 2005, 266631) considered as legal the residence of a person from Equatorial Guinea who was married to a Spanish woman, the father of a Spanish child, with an ID Card from 1967 to 1998, and the holder of a Spanish passport with validity until 2004.   Two. One year’s residence will be sufficient for:  a) A person born in Spanish territory.  b) A person who has not duly exercised the option.  c) A person who has been legally subject to the guardianship, custody or acceptance of a Spanish citizen or institution for two consecutive years, even when s/he continues in this situation at the time of application.  d) The person who has been married to a Spaniard for one year and who is not legally or de facto separated.  e) The widower or widow of a Spaniard, if there was no legal or de facto separation at the time of death.  f) The person born outside Spain with a father, mother, grandfather or grandmother who were originally Spanish”, as established in Articles 22.1 y 2 of the Civil Code. 11 See Carrascosa González 2011, pp. 142–56; Rodriguez Álvarez 2003, pp. 92–4.

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European Union citizens must accredit their legal residence in Spain either via registration certificate in the Central Registry of Foreigners (Registro Central de Extranjeros) in which they are obliged to be registered (Articles 7 and 14 of RD 240/2007), or via the residence permit of a relative of a citizen of the European Union, for those who are obliged to apply for it (Articles 8 and 14 of RD 240/2007). Such citizens are legally resident from the date of their entry into Spanish territory. c) As regards the continuity of legal residence, according to DGRN practice the entire reference period must be covered by the appropriate residence permit. Thus Supreme Court Decision Chamber 3rd, Section 6th, of June 13, 2011 (Aranzadi RJ 2011\5261) confirms the refusal to grant nationality to an applicant whose legal residence was interrupted for two years during the ten-year period required although, during part of this time, s/he was receiving unemployment benefit. In some previous resolutions of the DGRN the denial of nationality has been justified, in cases where there was a break in the continuity of legal residence, if the renewal of the expired residence permit was requested after the expiration date of the previous permit – despite this falling within the statutorily admitted period for the renewal (see Articles 37.5 y 47.4 of RD 2393/2004 – repealed – and Articles 51.1, 61.1, 71.1, 82.3, 93.1, 109.2, 130.5, and 47.4 of RD 557/2011- existing). These resolutions were jurisdictionally annulled (see the National Court Decisions CA Section 3rd of 2 June 2000 and 16 January 2001), and admitted, the former albeit confusedly, that in these cases there is no solution of continuity of residence; Supreme Court Decisions Chamber 3rd of May 24, 2007 and November 14, 2008, confirmed the continuity of legal residence under such circumstances.12 Currently, DGRN practice is to consider that there has been a break in the continuity of legal residence if the renewal application later than three months after the expiry of the residence permit (before the entry into force of RD 577/2011 RD) or ninety working days after the expiry of the residence permit (after the entry into force of RD 577/2011), except when the last residence permit is for long-term residence. d) Does legal residence presuppose de facto residence? Is effective residence also necessary? This question has been debated in the National Court insofar as they consider that Article 22.3 of the Civil Code prescribes only legal residence.13 However, several Supreme Court decisions seem to require de facto residence.14 12 See Carrascosa González 2011, p. 144. 13 See Decision National Court Section 3rd of June 2, 2000. Implicitly, it appears that this leads to the recognition of the continuity of legality, National Court Decision, Section 3rd of June 6, 2000. 14 See Decision Supreme Court, Chamber 3rd of July 15, 2002; Supreme Court Decision, Chamber 3rd of July 19, 2004 (the subject, who is a Moroccan administration official and whose legal domicile

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In the legislative iter of Law 36/2002, the word ‘effective’, added in article 22.3 in the draft of the proposed law, was abolished on the grounds that legalizing the residence permit guarantees effective residence, considering that after six months of absence from Spanish territory the permit expires. Therefore in legal terms de facto residence is unnecessary. It is clear that six months of absence from the Spanish territory negates legal residence. In my opinion, several of the Supreme Court’s decisions seem to refer, more than to de facto residence, to the degree of integration in Spanish society. However, Carrascosa states otherwise.15 e) As regards the continuity of de facto residence, in addition to what has been discussed above there is debate as to whether constant residence in Spanish territory is required, i.e. whether there are interruptions due to brief absences from Spanish territory. The Supreme Court made declarations on this point in its Decision of September 19, 1988, which does admit absences, but of a restrictive nature. DGRN practice in this regard must be seen as excessively restrictive: in some resolutions, Spanish nationality has been refused because of interruptions of little more than one and a half months, particularly in cases where there have been other, less prolonged absences from national territory. National Court doctrine appears to be more flexible regarding these interruptions, and would appear to admit absences of up to three months (for example, Decisions of the National Court Section 3 of June 2 and 6 of 2000, November 26, 2002); likewise, justifying the absences due to illness or similarly serious reasons, the Supreme Court issued the following decisions: Chamber 3, Section 6 of November 23, 2000 (RA 2001, 340), of July 15, 2002 (RA 6145), of December 22, 2003 (RA 2003, 9225) and of November 29, 2005 (RA 2005, 9835). DGRN practice does not currently permit absences of more than three months for cases in which only one or two years’ residence is required. The absences may be recorded in the police report or in the passport itself. B) Not Being Contrary to the National Interest or to Law and Order There can be little doubt that the twin concepts of public order and national interest are indeterminate legal concepts that allow for wide discretion in their application. Such vague premises should be made specific in their application to each case.16 Furthermore, it is the Administration’s responsibility to establish reasoned grounds which may justify the refusal of Spanish nationality as possibly is in Morocco, does not have effective residence in Spain); Decision Supreme Court, Chamber 3rd, of May 18, 2007 (Moroccan subject with family residing in Spain, but runs a gas station in Morocco, has no de facto residence). See Carrascosa González 2011, p. 143, 148. 15 Carrascosa González 2011, p. 148. 16 See Álvarez Rodriguez 2003, pp. 108–109.

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causing damage to either public policy or national interest. In administrative practice and judicial doctrine, the following approaches are followed: The applicant’s relationships and activities are held to be significant as regards their possible links with the politics of another State or with extremist groups (for instance, Al Qaeda) or foreign intelligence services, or whether s/he has taken part in political activity against the interests of Spain or Spaniards by, for example, advocating the boycott and annulment of the commemorative events of the Fifth Centenary of the Discovery of America (Decision of the National Court Section 4th of June 26, 1997). The Supreme Court has resolved cases of this type in the Decisions of Chamber 3rd, Section 6th of February 8, 1999 (RA 1779), May 13, 1999 (RA 4804), May 5, 2000 (RA 6262), February 17, 2003 (RA 3278) and June 20, 2011.17 In these cases, Police Department or National Intelligence Centre reports are normally incorporated into the dossier and, if these are deemed unfavourable, they must be proven to be erroneous by the person concerned via the certification of other, more favourable circumstances. In the Decision of the Supreme Court Chamber 3rd, Section 6th of April 22, 2004 (RA 2004, 2644) the Decision of the National Court is confirmed, which declared as unjustifiable the rejection of Spanish nationality on account of its being deemed contrary to public order and the national interest: the rejection was based on a National Intelligence Centre report which was of a generic nature and which was declared to be classified information, with no further evidence admitted. In a similar vein, we have the Decisions of the Supreme Court Chamber 3rd, Section 6th of January 21, 2004 (RA 2004, 2165); January 14, 2011 and April 14, 2011. C) Justification of Good Civic Conduct and the Sufficient Level of Integration into Spanish Society There can be no doubt that the above requirements for the acquisition of Spanish nationality by residence are designed to assess the possibility of social integration for foreigners who wish to hold Spanish nationality beyond that type of social integration which merely denotes residence in Spanish territory. The following observations can be made with regard to the DGRN’s resolutions and the Decision of the National Court and the Supreme Court: a) Good civic conduct is an indeterminate legal concept, which the authorities must evaluate by examining the circumstances of each specific case, assessing it as a whole and with reference to a longer period of time so as to demonstrate that the applicant lives, and has lived, in accordance with “the average standard of conduct capable of being assumed by any culture and by any 17 See Carrascosa González 2011, pp. 186–187.

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person. A standard that applies to each and every one, examined on the understanding that it is not a question of imposing a uniform way of life on the national community, nor that the person who uses this form of nationality acquisition has to demonstrate that their conduct has been irreproachable throughout their entire life” (Supreme Court Decision, Chamber 3rd, Section 6th, of December 15, 2004, F.J. 4, C). “The applicant should be positively accredited as showing compliance with good civic conduct. It is not sufficient that there be no public registry record of activities deserving of criminal or administrative sanctions, which, per se, imply misconduct, since Article 22 of the Civil Code requires the applicant to positively justify that their conduct was in accordance with the rules of civic interaction during the period of residence in Spain and that they have previously (…) complied with the civic duties reasonably required (…) This is because good civic conduct is an additional requirement to the mere observance of that conduct which does not transgress the criminal or administrative regulations such that it may involve sanctions” (Supreme Court Decision, Chamber 3rd, Section 6th, of April 15, 2006, F.J. 2º). It is true that the absence of a criminal record does not presuppose the positive existence of good civic conduct, which would anyway then have to be accredited with other positives, in compliance with the average standard of conduct required by Article 22.4 of the Civil Code. Neither can it automatically be inferred that a criminal record determines the absence of good civic conduct; see for example Supreme Court Decision, Chamber 3rd, Section 6th, of June 8, 2010.18 In any case, it would be necessary to evaluate all the circumstances in the specific case. As has been frequently pointed out in Case Law, “negative police reports cannot automatically lead to good civic conduct being discounted. It should be remembered that simple police reports, by definition, lack the reliability inherent to other kinds of documents which may have been drafted with stronger procedural guarantees. The evidential force of police reports thus depends on the level of coherence of the facts contained therein and on their corroboration by other evidence” (Supreme Court Decision, Chamber 3rd, Section 6th, of September 22, 2008, F.J. 3º). In this particular case, the Supreme Court concluded that there were more points in favour of the applicant’s good civic conduct than against it. In similar terms, although it does underline the fact that the criminal record was obtained in the distant past, there is Supreme Court Decision, Chamber 3rd, Section 6th, of June 23, 2008, F.J. 3º). 18 Comment is made on the Decision in A. Ortega Jiménez (2011), “Antecedentes penales y acceso a la nacionalidad española”, Actualidad jurídica Aranzadi, n. 812, p. 13.

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It will always be necessary to weigh up all the aspects of each particular case. But in general terms, we can see that in both administrative practice and in Case Law there is increasing rigorousness as regards the requirement of good civic conduct. Thus criminal record or legal proceedings, even those which end in acquittal, may be considered to be a refutation of good civic conduct if further positive data makes it clear that such good conduct exists, as in the Supreme Court Decisions, Chamber 3rd, Section 6th of October 17, 2007 (RA 7237), May 21, 2007 (RA 3167), March 15, 2007 (RA 2564), October 29, 2010 (RA 7755), October 29, 2010 (RA 7751).19 Finally, current DGRN practice considers that good civic conduct may be refuted by a criminal record for a crime whose penalty is either serious (for instance, deprivation of liberty for five years or more); less serious (for instance, deprivation of liberty for three months to five years); or for two crimes whose penalties are mild (i.e. they do not include deprivation of liberty). Good conduct is also refuted by negative police reports if the person has been arrested three or more times within a year, or if there is an expulsion order. b) In Case Law, in order to determine the sufficient level of integration into Spanish society, the following indicators have been taken into consideration.20 In the first place, knowledge of the Spanish language has frequently been emphasized as a criterion, with the proviso that it is not essential to read or write Spanish should the age and the educational level of the applicant in their country of origin justify the lack of such skills, as established in Supreme Court Decision, Chamber 3rd, Section 6th of May 12, 2009. In addition, in those cases where the applicant has insufficient knowledge of Spanish, all the dossier reports are examined and/or a re-examination of the person concerned is carried out, so as to establish the nature of the insufficiency, as is pointed out in Supreme Court Decisions, Chamber 3rd, Section 6th of November 3, 2009, of June 30, 2009, of September 23, 2009, of March 16, 2011 (RA 2177), and of July 18, 2011 (Aranzadi JUR 275193). In the second place, an evaluation is made as to whether the person concerned holds customs, beliefs or practices which are so disassociated from those of Spain that either they call into question the basic principles on which Spanish society is founded, or they directly contradict public order or indeed the terms of Spanish Constitution. For example, the practice of polygamy as established in Supreme Court Decisions Chamber 3rd, Section 6th of July 14, 19 For further information, see Carrascosa González 2011, pp. 156–175. 20 See Carrascosa González 2011, pp. 175–183.

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2009, of June 13, 2011 [Aranzadi JUR 255491], of June 13, 2011 [RA 5259]; the use of the burka as set out in the Decision of the National Court CA Section 4th, of May 5, 1999); or membership of the “Tabligh” movement, as established in the Decision of the National Court CA Section 3th, of January 4, 2010). Finally, a lack of knowledge of basic information regarding Spanish institutions, culture and history is assumed to indicate a lack of sufficient integration. As an example, “during his appearance before the Civil Registry Officer on June 6 2004, for instance, it was verified that although an appellant had no language difficulties in terms of understanding and oral expression, which he had studied until the third year of secondary education, he did show a basic ignorance of Spain’s institutions and political system. This was despite a lengthy period of legal residence dating back to 1993, despite his youth (he was born in 1978), despite his family, including his parents and his wife, being established in Spain, and despite his having gone to school in Spain – circumstances which one can assume would generally encourage involvement in the society in which one lives. Furthermore, the examination to which he was submitted was the most basic, within the reach of anyone with any involvement in the country, even though the information might only come via the news on the media. The result was conclusive, since the applicant did not know what the Constitution, the form of Government, or the Congress were, and did not even know the design of the Spanish flag (in his opinion, its three bands were vertical). Resolution is therefore sufficient and properly grounded in itself and by reference to the content of the proceedings; from the beginning, the appellant was fully aware of the obstacles to his application, as is shown by the claim itself. This absolute ignorance of the basic institutions is incompatible with the exercise of the political rights which follow on from the obtention of nationality, and it goes beyond simply leading a professional, economic and family life in Spain, which are the points on which the integration under question is focussed. It must be remembered that, as was pointed out by the Supreme Court in its Decision of December 22, 2003, the acquisition of nationality makes him a Spanish citizen, which in turn means, according to Article 23 ce, that he acquires the right to participate in public affairs directly or through representatives who have been freely elected in periodic elections by universal suffrage, and to access public functions and posts under equal conditions” (Decision of the National Court CA Section 3rd, of November 26, 2009, F.J. No. 3).21 21 In similar terms, Supreme Court Decision, Chamber 3rd, Section 3rd of November 26, 2010 (RJ 20108711): “The applicant lacks knowledge of our society’s basic institutions, such as the capital of Spain, the name of the heir to the crown, the name of the Kings of Spain and the President of the

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3. Tacit Examination of Citizenship for the Accreditation of a Sufficient Level

of Integration into Spanish Society?

With regard to the aforementioned resolutions, the question arises as to whether consideration of a basic knowledge of Spanish institutions, culture and history becomes a form of “tacit examination of citizenship”, to which the applicant is submitted in order to obtain Spanish nationality at a reserved hearing, as stipulated in Article 221 of the Regulations of the Civil Registry, and under the imprecise terms of Articles 220 and 221 of the Regulations of the Civil Registry. In my opinion, it is of particular concern that the generalisation which I have termed Government or Constitution Day. In addition, when the Registry Official asked about why he wished to be Spanish, the appellant stated that he would not answer the question”. Decision of the National Court CA Section 3rd, of July 20, 2009, Appeal No. 960/2007, F.J. No. 3: “asked whether he knew the name of the capital of Spain, he did not answer; he does not know what the Constitution is nor the Autonomous Communities, nor does he know the names of any of these Communities; he does not know the names of the two main political parties in our country, nor does he know what the Congress and the Senate are”. Decision of the National Court CA Section 3rd, of July 20, 2009, Appeal No. 978/2007, F.J. nº 3: “in the opinion of the person responsible in the Registry, after the personal appearance of the person concerned, and, although the appellant has adapted to the Spanish way of life and customs, he has not demonstrated sufficient knowledge of our institutions, culture and history. This Court has pointed out that a citizen who resides in our country and intends to obtain Spanish nationality must demonstrate that s/he has a minimum knowledge of our country’s institutions and culture”. Decision of the National Court CA Section 3, of July 16, 2009, Appeal No. 697/2007, F.J. nº 3: “As noted by the Official, there is no impediment of language, nor adaptation to Spanish customs, nor integration in the social environment in which he lives. The only noteworthy impediment is his ignorance of the culture and history of Spain and the ignorance or non-acceptance of Spanish idiosyncrasies. This evaluation was complemented by a formal statement which drew attention to the appellant’s serious deficiencies in writing and reading, although not at the spoken level. Moreover, it has been verified that he has a very deficient knowledge of Spain as regards its territorial structure, politics and institutions, and is unaware of those significant contemporary aspects of life in Spain which are fully dealt with in the media and which are within the reach of any person with a basic education (for example, the applicant did not know what was being voted on just before the electoral campaign for the European Parliament). It must be taken into account that this applicant for Spanish nationality is a young man (born in 1986), has legally resided in Spain since he was eight years old, and went to school in our country (he has both primary and secondary education). The lengthy period spent by the appellant in Spain, which includes his academic training within the Spanish education system, benefiting from its general and obligatory nature, means that the gaps in his language at writing and reading level are hard to justify. It is possible to state that this basic ignorance of Spanish reality and current affairs, ignorance detected by the Judge responsible and confirmed by the Chamber, is incompatible with the exercise of the political rights which the obtention of Spanish nationality entails and which go beyond simply living day to day”. .

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“tacit examination of citizenship” comes with imprecise legal cover, and does not offer the due guarantees. The DGRN recognizes that there is currently no uniform model interview, and that there may be different versions of hearings carried out by the judges responsible for the various Civil Registries. At present the integration requirement is usually seen as taking into account the following parameters (which allow an appreciation of the applicant’s efforts to achieve integration): knowledge of the language, adaptation to the culture and customs of Spain, and knowledge of the basic institutions of the Spanish State.22 Below I transcribe a legal complaint for a claim made before the National Court against a DGRN resolution which refused Spanish nationality to a Moroccan woman with eleven years of residence in Spain, due to her lack of integration in Spanish society. It is offered as an example of what should not occur, i.e. an insufficiently well-recorded citizenship examination recorded in the dossier: The DGRN Resolution refusing nationality made on April 29, 2008 is based on the reports of the Prosecutor’s Office and of the judge responsible for the Register. It cites the following points from them, respectively: ‘he lacks even a basic knowledge of Spanish customs: for example, he states that he does not know the Spanish political system’ and ‘although he speaks and knows Spanish, he does not know Spanish customs and is not really willing to acquire Spanish nationality’. Both the Prosecutor’s Office’s report and that of the judge, dated September 26, 2006 and September 27, 2006 respectively, originate from the hearing held on January 13, 2006, whose minutes are in dossier No. 19. They contain a list of nine stereotypical questions, and our client’s answers are recorded so briefly as to make it difficult to infer anything specific from them. It is even more difficult to positively state his lack of integration in Spanish society, as the Prosecutor’s Office and the judge responsible do. Take the first question, ‘What are your reasons for requesting Spanish nationality?’. The answer is, ‘Because I have lived here for a long time’. If the Judge responsible observed in this reply a real lack of willingness to acquire Spanish nationality, his inference ignores the final grounds for the concession of Spanish nationality based on residence, which is permanent residence in the host society, since the subject is from the place where he lives, where he spends most of his life (just as the saying has it that a person is from the place where his children are). Moreover, the inference of the Registry Officer that the subject is not willing to acquire Spanish nationality is contradicted by his answer to the seventh question, ‘Do you plan to stay in Spain definitively if you are granted Spanish nationality?’, as the answer here is a definite yes. The eighth question, “Will you renounce your nationality if you are granted Spanish nationality” is again answered with a definitive yes. My client replied “yes” to the second question about reading and writing Spanish, and indeed a further statement was made: “it is verified that he speaks Spanish in a correct, manner (sic). The third question was: “What customs do you consider to be Spanish?” He answered ‘Holy Week and Christmas’. Such a brief reply makes it difficult to infer 22 See the Official Procedural Guide, cited note 7.

Social Integration of Third Country Nationals  147 anything, as neither further details nor the circumstances of the questioning are given. Thus my client, who is from Morocco, distils the nucleus of Spanish culture into two traditional Christian celebrations. Despite the process of secularisation we are experiencing nowadays, I do not believe that we can deny the Christian component of our culture. He answered ‘yes’ to the fourth question: ‘Do you know that Spain is a nondenominational state, and what this means?’ The constant pithiness of the minutes makes it difficult to make any inferences. Furthermore, it is obvious that the question is phrased in such a way that it would be difficult even for the average Spaniard to answer. The answer to the fifth question, ‘Do you know the political system in Spain?’ is that she does not. As I have stated, the brevity of the answer and its lack of detail make it impossible to infer anything about integration. Moreover, at an examining hearing, it is reasonable to assume that the person concerned might prefer not to express him or herself when the questions are delicate, in line with the saying ‘the less said, the better’. Therefore, such a question as the one referred to must be accompanied by details and/or further specific questions, or it will reveal little about the knowledge of the person being asked about the institutions. If average Spaniards were asked the same question, in the same terms, there would be a variety of different answers: people would reply ‘a monarchy’, ‘a democracy’, ‘an autonomous state’, ‘a multinational state’, etc.  Finally, questions 6 and 8 refer to the date of arrival in Spain and to the means of livelihood. Independently of the fact that these are already included in the dossier, the answers given were ‘at the end of 1994’ and ‘he is studying, endeavouring to set up a hairdresser’s’ (sic) respectively, which must surely be considered clear indicators of social integration.

The National Court confirmed the refusal, and there is currently an appeal taking place before the Supreme Court. Our basic allegation is that the resolution of rejection (and the confirmatory decision) are not based on sufficiently strong legal grounds. The question, however, is of further importance, since following the reserved hearing, the DGRN continues to use the criterion of accepting the proposal of the judge responsible at the Civil Registry, without any further enquiry into whether the requirement of sufficient level of integration into Spanish society has been fulfilled. Furthermore, in the case of any discrepancy between the judge’s proposal and the Public Prosecutor’s report or the police report, the former prevails. This leads to a disparity in the resolution of the cases, because every judge proposes their ‘tacit citizenship test’ and then uses their own criteria of assessment of it in determining the outcome, thus prejudicing the principles of legal certainty and equality.23 23 The author of this paper has obtained the opinion of a Registrar of property who has worked in the processing of tens of dossiers and the lawyers of an NGO that provides legal advice to migrants, both have confirmed the assessment of main text.

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In the light of the above, this examination of citizenship as a part of the procedure for the acquisition of nationality should be undertaken with the due guarantees for the person concerned, i.e. notification of its existence and basic content, sufficient individualisation to suit the circumstances of the case, repetition of the examination when the refusal to nationalise rests exclusively on this with such information not being provided in detail. If nationality is to be refused, the result of insufficiency in the examination must be reliably recorded in the dossier and with the due details. All these points are clearly inferred from the Decisions of the National Court previously cited, except for the above-discussed case, whose denial was confirmed by the National Court. It is desirable that in the process of implementation of the new legislation of the Civil Registry this citizenship test should be fully regulated, if it is deemed to be necessary. Nevertheless, in my opinion, it is not necessary; indeed, from my perspective, a citizenship exam ultimately becomes a simple procedural obstacle, which may be more or less annoying to overcome, but which is a poor indicator of authentic social integration. 4. Concluding Remarks It can be seen that over the last few years administrative practice and Case Law has progressively become more rigorous with regard to the application of undetermined legal concepts which make it possible to evaluate the social integration of the foreigner who wishes to acquire Spanish nationality due to residence. The generalisation which I have termed ‘tacit examination of citizenship’ with imprecise legal cover does not offer the due guarantees, and brings with it a troubling disparity in decisions on the sufficient degree of integration in Spanish society of the applicant. It is hoped that in the process of implementing of the new Civil Registry Law, it should be extensively regulated if deemed necessary, or indeed simply be abolished. Finally, similarly to what happens in other European countries, the Spanish authorities’ concern with preventing the granting of Spanish nationality to foreigners who do not assume the constitutional principles and values of a democratic society is clear. Therefore the requirements of good civic conduct, sufficient level of integration in Spanish society or other requirements relative to the national interest or public order, are all indeterminate legal concepts, which ultimately relate to specific interpretations of social integration.

Dealing with Loopholes in National and EU Citizenship: Spanish Nationality in the Case of Western Sahara Alberto Martín Pérez and Francisco Javier Moreno Fuentes 1. Introduction This chapter explores the potentially fuzzy boundaries of the concept of European citizenship, and its deep interconnection with the nationality legislations of the European Union (EU) Member States. The complexity and plurality of these national regulations involves an extremely wide range of procedures, mechanisms and conditions for obtaining derivatively the status of EU citizen. Embedded within this plurality, several inequalities between legislations (and some loopholes) also appear to exist, making EU citizenship a potentially inconsistent concept, particularly at the outer limits of national belonging. In order to illustrate this issue, which affects the very notion of EU citizenship, we shall review the issue of the loose boundaries of Spanish nationality law, focusing specifically on the status of its regulatory framework regarding Western Sahara. This former Spanish colony, whose political status over the last four decades, following the termination of Spanish control over the territory, has undergone an incomplete and conflictive process of redefinition. Spanish nationality law remains deeply anchored in the traditional paradigm of a country of emigration, and is focused mainly on maintaining ties with Spanish communities abroad. This pattern has historically been influenced by the country’s colonial past: although nationality issues are still barely visible on Spain’s public and political agendas, the system is strongly path dependent on Spain’s long history as a former colonial power and as a country of emigration. The system entails, for example, preferential treatment for citizens from countries with historical ties with Spain, in terms of dual citizenship, recovery of grandparents’ citizenship, and naturalization granted by Spanish nationality law. But the case of Western Sahara, as a former Spanish colony, is an exception. Because of the particular historical context of that territory’s unachieved decolonization, even now, the case of Western Sahara is not contemplated by nationality regulation, and it does not benefit from the preferential status established in Spanish legislation for citizens from former colonies.

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Taking the above into consideration, this chapter is structured into three sections. First, we review the interconnections between the nationality laws of Member States and the concept of EU citizenship as defined by European Treaties and institutions. Second, we review the main characteristics of current Spanish citizenship law by linking current legislation with its historical background, stressing both Spain’s connections with its former colonies and its concern for the fate of Spanish communities living abroad. Finally we explore, with regard to Spanish nationality legislation, the specifics of the case of the Western Sahara. This case represents a loophole in the boundaries which define Spanish citizenship, and therefore constitutes an example of the fuzzy boundaries of EU citizenship regarding Third-Country Nationals (TCNs). 2. EU Citizenship as a Collage of Member States’ Nationality Legislations EU citizenship has historically been thought to be of the most significant means of expanding belonging within the EU.1 However, rather than constituting an alternative to national political identities, EU citizenship continues to be based on the addition of Member States’ nationalities. The main purpose of the idea of European citizenship was to lower barriers to the mobility of member state citizens within the Union, while also contributing to the emergence of a common political and symbolic space. The political side of the process seems to have been successful in facilitating mobility and economic, political and cultural opportunities for EU citizens throughout Union territory. But symbolic achievements have not developed so quickly: although the idea of EU citizenship is aimed at promoting a supranational identity based upon common cultural values and political symbols, it has not yet succeeded in superseding Member States’ national identities, which remain preeminent compared to what is still considered a supranational, and thus secondary, alternative of belonging.2 There is therefore no conflict between national and EU citizenship: one may be considered an EU citizen only by holding member state nationality. Union citizenship only complements national membership. For EU citizens, rights and opportunities are granted within the Union regardless of the country where they come from, live or intend to work, and this includes restricted political rights in local polls and in the election of the European Parliament. But the creation of a common space around EU citizenship has also led to a limitation on such access

1 W. Maas (2007), Creating European Citizens, Lanham MD: Rowman & Littlefield. 2 K. Eder & B. Giesen (eds) (2001), European Citizenship: Between National Legacies and Postnational Projects, Oxford: Oxford University Press.

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to citizenship status to TCNs. Whereas EU citizenship seeks to encourage the formation of a common identity for member state nationals, this cohesive identity is somehow off limits for both those TCNs intending to migrate to a EU member state, or to those wishing to move more or less freely within the union.3 Such restrictions on TCNs are lifted in the case of the promotion of a European “social citizenship”. TCNs who are legally settled in EU countries basically benefit from the same social and economic rights as nationals and other EU citizens. These TCNs are thus considered full beneficiaries of social and welfare policies in Europe. Nevertheless, access to this kind of recognition still depends on integration policies within the national community (though the EU does currently play an important role in the definition of labour migration policies). The main reason that these dynamics of inclusion and exclusion depend on national belonging is that EU citizenship is defined derivatively: beyond the Member States’ boundaries of the national community, there is no definition of what it means to be European. Thus the limits of EU citizenship are not fixed by homogeneous agreements within EU institutions, or by consensual agreements among nation states. Each EU member state designs its own legislation on nationality. Although these regulations do in some cases converge (EU countries observe one another’s legislation whenever reforms of nationality laws are enacted), they usually differ on the specifics as to attribution of citizenship, institutional mechanisms for naturalisation, treatment to be given to nationals abroad, or when dealing with individuals having historical ties with the country, such as those from former colonies or, in some cases, from current dominions. Citizenship regimes and regulations are enormously diverse within the EU, with different naturalization regimes coexisting with different treatments for TCNs with historical ties with EU countries. This has consequences for the definition of EU citizenship: for example, when Spain or Italy agree on preferential treatment for their descendants currently living abroad, these countries are opening the way to inclusion into EU citizenship for TCNs for whom no such possibility exists when they are in contact with other countries. The same applies for those who benefit from dual nationality agreements in one specific country, but not in the neighbouring EU member state. Thus the limits of EU citizenship loosen when observing particular cases as specified in each country’s regulation on nationality. As we shall see, the issue is further complicated if the historical colonial process has not been definitively concluded; such a situation creates the possibility of loopholes, and strongly affects the citizenship status of the affected individuals. 3 M. Vink (2005), Limits of European Citizenship: European Integration and Domestic Immigration Policies, Houndmills: Palgrave MacMillan.

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3. Accounting for Contemporary Spanish Nationality Law4 Historical conceptions of what constitutes the national community are a key element in the configuration of citizenship law. The setting of the boundaries of the political community and the ways of managing the diversity within it are ‘policy paradigms’ which, although open to change, represent a normative foundation that influences strongly the patterns that the various populations within a particular society must follow in order to fit in.5 Citizenship law is strongly linked to these conceptions, since it establishes the normative framework that defines the boundaries of the inner-group (nationals), as well as the different routes by which aliens may become members of the national community.6 In this respect, and despite the gradual transformation of the socio-political conditions in which they are deemed to operate, we can nationality law can be expected to show significant continuity. The idea of a clear ‘path-dependency’ in the normative arrangements that regulate nationality helps to account for the key role played in the definition of contemporary Spanish nationality law by its concern for the situation of Spanish nationals living abroad. Spain’s colonial past, notably in Latin America, is crucial here, as is the role Spain has played in the world migration system over the last century. In this respect the Spanish case resembles that of other European countries such as Portugal and France, or even Belgium in the case of its colonial history, or Italy, with its history as a country of emigration. The ‘path-dependency’ of Spain’s heritage in nationality legislation – historically focused on maintaining links with the former colonies, and on the protection of Spanish communities abroad – accounts for the stability of its specific combination of ius sanguinis (the strongest principle in this policy domain); ius soli (relatively liberal, but not designed to facilitate the incorporation of populations of immigrant origin into Spanish society); and residence criteria for naturalization (which combines a very strict general requirement with generous treatment for nationals of certain countries historically connected to Spain). Spain’s shifting position within the international migration system, from being a country of emigration to being a net receiver of migrants, has not been matched 4 This section is based mainly on a previous work by the present authors: A. Martín Pérez & F.J. Moreno Fuentes (2012), “Migration and citizenship law in Spain: path-dependency and policy change in a recent country of immigration”, International Migration Review, vol. 46, no. 3, pp. 625–655. 5 A. Favell (1998), Philosophies of Integration: Immigration and the Idea of Citizenship in France and Britain, New York: Palgrave. 6 R. Brubaker (1992), Citizenship and Nationhood in France and Germany, Cambridge MA: Harvard University Press.

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by an equivalent shift in the objectives to be achieved by citizenship legislation. That nationality issues are currently hardly visible on the Spanish public and political agendas, and that policies on the incorporation of immigrants have not yet been included in the debates on citizenship law, can be explained by the lack of political incentives regarding the introduction of such reforms. Following Money (2010),7 in Spain’s case the ‘matching’ of rights and responsibilities between immigrants and citizens (apart from the right to vote, they have roughly similar rights and responsibilities), offer few incentives for those politicians capable of putting the subject on the political agenda. Since the condition of ‘denizen’8 would be relatively easy to obtain (a fairly comprehensive set of civil and social rights are granted to immigrants, regardless of their legal status), and the rights and obligations attached to it are not dissimilar to those of a citizen, there is little room for mobilization along such lines. For over a century, the legislation regulating Spanish nationality has been driven by the will to maintain close links with Spanish communities abroad as well as by the close relationship between this policy area and Spanish foreign policy regarding its former colonies. The mechanisms by which Spanish nationality could be passed on, retained and recovered – the main issues affecting these communities of Spanish origin abroad – indeed attracted most of the legislative attention when reforms of nationality legislation were carried out. But the establishment of preferential treatment on naturalization for those nationals of territories with colonial links to Spain conditioned the regulation of the process of acquiring Spanish nationality by residence. Such a policy framework makes sense in the context of a history marked by colonialism and by significant emigration flows. To this day Spain, as does a small group of other countries, continues to regulate its nationality law (including residency requirements for the naturalization of foreigners, the right of children of foreign parentage to acquire Spanish nationality, and dual nationality regulation) through various articles in the Civil Code. The absence of any law specifically devoted to regulating this potentially sensitive issue reflects the low profile that this policy area has traditionally held in the Spanish political agenda. Two types of citizenship are defined in Spanish legislation: ‘by origin’ and ‘derivative’.9 Four different situations lead to being considered a Spanish national 7 J. Money (2010), “Immigrants as Fellow Citizens?”, in A. Luedtke (ed.) Migrants and Minorities: the European Response, Cambridge: Cambridge Scholars, pp. 311–337. 8 T. Hammar (1990), Democracy and the nation state: aliens, denizens, and citizens in a world of international migration, Aldershot: Avebury. 9 The main difference between them is that Spaniards ‘by origin’ cannot be deprived of their nationality (as established in the 1978 Constitution).

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‘by origin’: 1) being born to a Spanish parent, it being sufficient for one of them to be a full citizen (ius sanguinis); 2) being born in Spain to foreign parents, if at least one of them was also born in Spain (double ius soli);10 3) being born in Spain to parents with no nationality - provided that, in the case that subjects would thus remain stateless, the legislation of the parents’ country of origin attributes no nationality to children born abroad (ius soli at birth); 4) being born in Spain to unknown parents (ius soli at birth). The underlying logic remains strongly rooted in the ius sanguinis principle, with ius soli attributing Spanish citizenship to thirdgeneration immigrants and only in some particular situations to the second. Naturalization procedures for the obtaining of ‘derivative’ citizenship differ for nationals of different countries as well as for certain personal situations. The 10 years period of residence required is long when compared with other European countries. However, there are exceptions to the general principle that, in practice, reveal the Spanish system to be more liberal than it may seem at first sight. The first exception involves recognized refugees, who need only five years of legal residence before applying for citizenship. The second and most frequent case of naturalization is the exception established for citizens of several countries with historical links to Spain, where a two-year period of legal residence in order to qualify for naturalization applies. These countries are the ‘Ibero-American’ community of nations (including Brazil), Andorra, the Philippines, Equatorial Guinea, Portugal, as well a specific group, the Sephardic Jews (descendants of Jews expelled from Spain in 1492). There are in addition many situations which allow candidates for Spanish citizenship to apply after only one year of residence: 1) foreign residents married to a Spanish national (spousal transfer); 2) those born abroad to a Spanish parent or with a grandparent who was originally a Spanishborn citizen (this reinforces a form of ius sanguinis after birth); 3) those born in Spain to foreign parents. In this case, second generation immigrants do not need to come of age before applying for citizenship, but their parents can apply on their behalf only one year after their birth. This regulation thus allows secondgeneration immigrants to become Spanish citizens fairly straightforwardly, and it therefore reinforces the notion of ius soli after birth. There also exists one exceptional procedure for obtaining Spanish citizenship, which is termed ‘carta de naturaleza’. This mechanism is a discretionary process of naturalization that can, in certain circumstances, be used by the government to grant a Spanish passport to certain persons or groups.11 10 A. Álvarez Rodríguez (2006), Nacionalidad de los hijos de extranjeros nacidos en España, Madrid: Ministerio de Trabajo y Asuntos Sociales. 11 This was used, for instance, in 1996 when granting Spanish citizenship to those who fought in the International Brigades during the Spanish Civil War (1936–39). In 2004, the same scheme was used to grant Spanish citizenship to the foreign victims of March 11th terrorist attack in Madrid.

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Dual nationality regulation also makes distinctions depending on country of origin and personal situations. In this respect, the Civil Code establishes the possibility for dual nationality only in the case of those countries with historical links with Spain whose citizens can apply for Spanish citizenship only after two years of legal residence. These applicants do not need to renounce their previous status; reciprocally Spanish citizens can maintain Spanish nationality when naturalizing in one of those countries. No further cases of dual citizenship are contemplated by the law, but Article 24 does establish the option of maintaining dual nationality for Spanish nationals simultaneously holding the passport of another country as long they declare their will to do so within three years of gaining their new citizenship. No reciprocity is offered by this provision: with the above-mentioned exceptions, foreigners who acquire Spanish nationality must renounce their previous nationality. However, the application of this principle currently depends on provisions for citizenship in the country of origin (whether or not that country recognizes this renunciation), and may also be influenced by discretionary verification practices in each of the countries involved. The strength of the ius sanguinis principle, together with a liberal system of naturalization for certain groups with historical links with Spain, is characteristic of a fairly ethnicized system of citizenship. Historically this principle has nevertheless struck a balance with the presence in the legislation of a relatively unrestrictive scheme of ius soli. These provisions are, in fact, shaped by the historical path of Spanish citizenship law, and by its relation with former colonialism and migration. Therefore, after the 16th century, Spain was strongly affected by emigration to its American colonies. Following the independence obtained by the new republics in the early nineteenth century, bilateral agreements with these new countries stated that Spanish migrants should receive preferential treatment when settling and when maintaining Spanish citizenship after having naturalised there. These agreements were aimed at reconciling the demographic needs of the new states with the guarantee of some degree of protection for Spanish emigrants and their descendants, thus paving the way for the development of the dual nationality regulation that we have now.12 Since the passing of the 1889 Civil Code, maintaining the links with Spanish communities which have settled abroad has been a characteristic objective of Spanish citizenship law. The combination of a strong ius sanguinis with a relatively generous ius soli, according to which all those born to a Spanish parent held In more peaceful contexts, the same procedure is used to fast-track Spanish citizenship for foreign artists, sportsmen or intellectuals, but there are few such cases each year. 12 Only those colonies separated from Spain at the end of the 1898 Spanish-American War – Cuba, Puerto Rico and the Philippines – did not sign treaties allowing first generation Spanish settlers and their descendants to retain Spanish nationality.

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Spanish nationality regardless of their birthplace, was already embedded in this legislation. Thos brought about a large number of cases of dual nationality, especially in Latin America where large communities of Spanish migrants were settling. In order to tackle such a situation, Spanish emigrants wishing to maintain their citizenship were required to register at a Spanish embassy or consulate. This particular combination of ius sanguinis with administrative restrictions was aimed at preventing the possibility of generations of Spanish nationals from living abroad without any real connection to their mother country. Spain’s 1931 Constitution of the Second Republic replaced the Civil Code in regulating citizenship issues. In addition to increasing protection for Spanish nationals abroad (by making the application of ius sanguinis still more flexible, and by explicitly regulating dual nationality), it also established the exception of only two years of residence for nationals of the ‘Ibero-American’ community of  nations (and, at that time, for citizens of the Spanish protectorate in Morocco). Following the nationalist rebels’ victory in the Spanish Civil War (1936– 9), Franco’s dictatorship (1939–75) restored the previous legislation, based on the Civil Code. As we can see in Table 1, the War brought to an abrupt halt the migration of Spanish workers to Latin America – although it did send a large number of people into exile. The Francoist regime did not automatically deprive exiles of their Spanish citizenship, but as a long-term consequence of their exile, many of them (and of course their descendants) ended up – in those cases where they refused to establish contact with the bureaucracy of an illegitimate authoritarian regime in order to maintain their Spanish passport – by losing their citizenship after obtaining nationality in another country. Even though Spanish nationals continued to migrate to Latin America well into the 1950s, this flow was later replaced by emigration towards other European countries. Between 1960 and 1979, there were  nearly two million Spanish migrants, mainly to France, Germany and Switzerland. In 1973, some 920,000 Spanish nationals were still living in other European countries.13 Franco’s regime introduced several reforms that helped to shape the current dual nationality system through the establishment of dual nationality agreements with each country in the ‘Ibero-American community of nations’. This measure suited Franco’s ideological framework in that in terms of international relations it  made Spain the epicenter of ‘Spanishness’. Thus during the 1950s and 60s, twelve bilateral agreements on dual nationality were signed with Latin American

13 R. Rubio Marín, I. Sobrino, A. Martín Pérez, FJ. Moreno Fuentes (2012, Coutry Report: Spain, EUDO Citizenship Observatory, RSCAS/EUDO-CIT-CR 2012/11, Last access February 2013, (http:// eudo-citizenship.eu/docs/CountryReports/Spain.pdf).

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Table 1. Spanish emigration by continent, 1885–1995. Years

Total Emigration

1886–95 1896–1905 1906–15 1916–25 1926–35 1936–45 1946–55 1956–65 1966–75 1976–85 1986–95

770,562 745,093 1,531,541 937,993 588,938 99,341 570,164 788,823 812,319 196,246 101,129

America

Europe

Africa

Rest of World

545,171 513,749 1,236,637 817,577 411,289 34,556 408,269 351,783 69,954 17,900 7,409

21,263 15,859 44,948 19,665 19,584 5,870 14,351 414,764 732,675 147,718 88,790

185,282 181,427 243,082 98,059 156,163 58,780 147,118 12,988 169 29,796 3,465

18,846 34,058 6,435 2,692 1,902 135 425 9,288 9,521 10,952 1,465

Source: Anuario de migraciones, 1997 (reproduced from Martín Pérez & Moreno Fuentes, op.cit.).

countries.14 At the same time, the Civil Code recognized the still-existing preferential treatment for nationals of the ‘Ibero-American’ countries and the Philippines by requiring only two years of residence before qualifying for naturalization. During the transition towards democracy, in the late 1970s, the status of Spanish communities abroad continued to be the main political concern of citizenship law. The democratic Constitution of 1978 made it the obligation of Spanish authorities to protect Spanish communities which were settled in foreign countries explicit, and to facilitate their return to Spain if they so wished. The period from the mid 1970s to the mid 1980s was characterized by a large and constant flow of return migration, with a large number of Spanish migrants who had settled in other European countries now relocating to Spain. The historical and ethnic argument linking post-colonial Spain with several countries and groups played a central role in the process of extending the privileged system of naturalization beyond nationals of the Philippines and Latin American countries, to include citizens from Andorra and Equatorial Guinea, as well as the Sephardic Jews. Indeed, these preferential provisions still represent a relatively generous treatment of former colonial citizens when compared to the provisions of other former European imperial powers.15 14 These countries are Chile, Peru, Paraguay, Guatemala, Nicaragua, Bolivia, Ecuador, Costa Rica, Honduras, Dominican Republic, Argentina, and Colombia (Alvarez Rodriguez 1990, p. 132). 15 H. Waldrauch (2006), Acquisition of Nationality, EUDO Working Papers, Florence, last access February 2013 (http://www.law.ed.ac.uk/citmodes/comparativeanalyses.aspx).

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Table 2. Foreign residents in Spain, 1975–2010. Years 1975 1980 1985 1990 1995 2000 2001 2004 2005 2008 2009 2010

Total

America Latin North*

Europe EU** Non-EU

165,289 37,781 12,361 92,917 182,045 34,338 12,363 106,738 241,971 38,671 15,406 142,346 407,647 59,372 21,186 – 499,773 88,940 19,992 235,858 895,720 184,720 15,244 306,203 1,109,060 283,778 15,020 331,352 1,977,291 648,931 16,936 497,673 2,738,932 986,178 17,052 569,284 3,979,814 1,215,351 19,256 1,546,309 4,791,232 1,458,442 20,572 1,872,505 5,708,940 1,741,179 28,250 2,346,515

Africa

9,785 3,232 11,634 4,067 15,780 8,529 – 25,854 19,844 95,718 55,234 261,385 81,170 304,149 168,867 498,029 337,177 649,251 114,936 841,211 135,128 994,696 226,379 1,048,909

Asia 9,393 11,419 19,451 29,116 38,352 71,015 91,552 142,667 177,423 238,770 299,743 317,194

  * Except Mexico, included within the Latin-American category. ** EU figures calculated with the Member States of each period (therefore including Romania and Bulgaria after 2008). Source: Anuario de migraciones (partly reproduced from Martín Pérez & Moreno Fuentes, op.cit.). Throughout the late 1970s, Spain started to receive immigrants from Latin America, Africa and Asia, initiating its transition from country of emigration to net recipient of migratory flows. During the 1980s, the Spanish economy underwent significant transformations (such as tertiarization and a crisis in the labourintensive sectors) due to the opening-up of international markets and its admission into the European Communities (EC). From roughly half a million foreigners living in Spain in 1995, those figures had multiplied almost elevenfold only fifteen years later, with some 5,700,000 million foreigners. Most were from Latin America (Ecuador, Colombia, Peru, Argentina, the Dominican Republic), North Africa (Morocco) and Eastern Europe (Romania, Poland and Bulgaria). In recent years, and with the logical reluctance of the country’s politically conservative forces, there has been increasing concern among left-wing Spanish parties about the fate of those forced into political exile by the Civil War and its economic, political and social aftermath. The 2007 “Ley de Memoria Histórica” (Law of Historical Memory), and its implications for nationality law (in the form of the so-called “Ley de Nietos”, ‘Grandchildren’s Law’), constitutes the latest reform of the Spanish nationality regulation to be motivated by the concern for communities of Spanish origin which are settled abroad.16 16 At the end of the process, 503,439 applications for Spanish citizenship using this mechanism had been made (more than 95% of them – 477,462 – from Latin-American countries). In March 2012,

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Table 3. Naturalizations by continent of origin. Years

Total

1970–74 2,204 1975–79 12,052 1980–84 27,310 1985–89 31,971 1990–94 32,282 1995 6,750 1996 8,411 1997 10,293 1998 13,165 1999 16,373 2000 11,996 2001 16,735 2002 21,805 2003 26,556 38,335 2004 2005 42,829 2006 62,339 2007 71,810 2008 84,170 2009 79,597 2010 123,721 2011 114,599

America Latin North* 674 5,059 13,184 10,450 18,718 4,053 5,410 6,204 8,024 10,063 6,893 9,447 13,382 13,954 23,813 31,290 50,254 56,741 67,443 1,068 1,734 2,086

37 138 335 518 685 111 119 176 223 302 254 395 496 457 573 540 692 725 912 776 667 837

Europe EU** Non-EU

Africa

949 94 192 4,101 278 968 8,855 596 1,319 5,130 568 12,498 4,940 806 5,745 616 53 1,059 688 59 1,029 846 81 1,471 1,137 103 2,149 1,168 150 2,880 828 122 2,575 1,043 192 3,824 1,226 191 4,325 1,252 193 8,522 1,426 295 9,991 1,146 307 7,346 1,037 397 7,618 1,135 445 10,312 1,404 490 11,201 661 66,659 8,816 1,022 103,971 13,828 960 89,698 18,333

Asia Other 147 1,019 2,633 2,567 4,303 818 1,080 1,486 1,480 1,756 1,283 1,787 2,131 2,122 2,198 2,164 2,303 2,418 2,684 1,692 2,294 2,536

121 179 284 251 256 40 26 29 49 54 41 47 54 56 39 36 38 34 36 40 35 41

  * Except Mexico, included within the Latin-American category. ** EU figures calculated with the Member States of each period (therefore including Romania and Bulgaria after 2008). Source: Authors’ elaboration with data from the Dirección General de Registros y Notariado, Ministerio de Justicia. Naturalizations have also risen considerably, reaching a peak of more than 123,000 in 2010. This tendency is likely to continue in the coming years, as more and more migrant groups reach their minimum required period as legal residents in Spain and apply for naturalization. Among new Spanish nationals, those from Latin America represent by far the biggest group. That there are large numbers of people from Spanish-speaking countries who obtain Spanish citizenship by the number of those who obtained a Spanish passport was 241,763, although some of the files submitted were still being evaluated by the Ministry of Justice, which is responsible for the process of granting Spanish nationality.

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residence reflects the preferential treatment granted by Spanish nationality legislation to citizens of the former colonies. Despite the predominance of Latin-American migrants in naturalization procedures, in recent years migrants from Africa and Asia have taken an increasingly high profile. The period of legal residence required from these groups is ten years, so the “maturation” of the process in the case of African and Asian migrants will obviously prove to be longer, but will eventually come. Signs of this delayed assimilation into the naturalization process can already be seen in the growing number of African migrants (most of them Moroccans) who have obtained Spanish citizenship since the mid 2000s. 4. The Case of Western Sahara: A Loophole in Spanish and EU Citizenship

Legislation

As we have seen, nationals of countries with a strong colonial or historical connection to Spain benefit from a relatively quick naturalization procedure. The case of the citizens of Western Sahara likewise poses a particularly interesting challenge to Spanish nationality law. Western Sahara is a former Spanish territory on the western North African coast, sharing borders with Morocco, Mauritania and Algeria. This territory became a Spanish protectorate in 1884, and was defined as an autonomous Spanish province in 1958, at which point the residents of Western Sahara were granted Spanish nationality (some 32,000 people in 1975). A series of UN resolutions called on Spain to hold a referendum on self-determination for Western Sahara from the early 1960s, but only in 1974 did the Spanish government accept the idea of such a referendum. Spain then drafted a census of the population of the province. Although the International Court of Justice rejected the arguments of both Morocco and Mauritania in their claims of sovereignty over the territory and its inhabitants, Moroccan political and military pressure forced a troubled Spain - in the last stages of General Franco’s dying authoritarian regime - to sign a temporary tripartite administration for the still Spanish province, and to remove its troops and civil administrators from the territory. Following Spain’s abandonment of Western Sahara, Morocco and Mauritania agreed on a mutual partition of the territory in April 1976 (although Mauritania renounced its territorial claims and withdrew its military forces in 1979). As a result of the Moroccan and Mauritanian takeover, approximately half the Saharan population fled the territory and became refugees, mostly in camps located near Tindouf, in neighbouring Algeria. The number of refugees still estimated to be living in those camps is around 170,000. The remainder of the population either stayed on in Western Saharan territory under Moroccan control, or

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lives in a small portion of the territory in the east of Western Sahara controlled by the Polisario Front, which claims the right to self-determination for the former Spanish colony. Following Spain’s formal withdrawal from the colony, the Polisario Front proclaimed the independence of the Saharan Arab Democratic Republic (SADR) in 1976; its statehood has been recognised by more than 70 countries, although not by any of the key players in the international arena. This territorial dispute has remained unsolved for over three decades, and the people of Western Sahara continue to be trapped by the lack of a definition of their citizenship status. Since Spain abandoned the territory without transferring its authority either to another state or to the government of any newly-created and internationally recognised country, the general principle of the choice of the individual between the nationality of the predecessor or the successor states could not apply, leaving the citizens of Western Sahara (until then Spanish nationals) in a legal limbo. The governments of the occupying countries did not have the legal authority to automatically extend citizenship to the residents of the area, since their rule over the territory and its inhabitants lacked international recognition. Neither are passports issued by the SADR recognised by many countries, not even by those most directly involved in the conflict, nor by the former metropolis. What are therefore the available options for these former Spanish nationals? In accordance with the Royal Decree (Real Decreto) 2258/1976, those born in the Spanish province of Western Sahara had (under certain conditions)17 the option to retain their Spanish nationality if they expressed their will to do so within a period of one year following the passing of that decree. Although some Western Saharans followed this procedure and secured their Spanish nationality, a large majority of the population did not, and so, at least in principle, they lost their Spanish citizenship by the end of the established transition period. According to Moroccan law, those Saharans living in the area under Moroccan control are Moroccan nationals, thus eligible for passports and other official Moroccan documents. Those who remained in their homes and opposed Morocco’s de facto control over the territory faced significant restrictions on their civil liberties, including in some cases the right to obtain identity papers and travel documents.18 Another group (of unknown size) of Western Saharans obtained Mauritanian nationality, and the remainder (notably those living in the  refugee camps and the territories under SADR) obtained identity documents from the authorities of the SADR, which permit them to travel to the few

17 Either they were residents in Spain at that time and were in possession of Spanish documents, or they were outside Spain but were holders of a Spanish passport or were included in the registers of Spanish representations in foreign countries. 18 B. Manby (2009), Struggles for citizenship in Africa, London: Zed Books.

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countries recognizing the self-proclaimed Sahrawi Republic (which include Mauritania). Finally, and in special situations, the Algerian authorities issue shortterm travel documents to Saharan refugees needing to travel to countries that do not recognize the SADR. As a result of this long-term lack of definition of their citizenship status, the wish to obtain (or in some cases, to regain) Spanish nationality has increased for Saharans; some individuals have indeed pleaded in Spanish courts to have their Spanish citizenship recognised. Two of these cases were behind rulings by the Spanish Supreme Court (Tribunal Supremo) which attempted more precisely to define the legal limits of RD 2258/1976. In the first of these rulings, made public in October 1998, the Supreme Court acknowledged the right of Western Saharans to be recognized as Spanish citizens even after their official documents (Spanish passport and National Identity Card) had been considered invalid for their not having applied to maintain their condition as Spanish nationals during the oneyear period established in the 1976 Decree. The conditions under which Spanish nationality was recognized were very strict,19 strongly limiting the possibility a general solution to the problem for the Sahrawi population.20 In the second ruling, in May 1999, the Supreme Court rejected the claim of a Sahrawi citizen who had requested naturalization under a special clause of Spanish nationality Law (article 22.2.b of the Civil Code), which states that the period of residence may be reduced to one year for those people who “could not opt for Spanish citizenship” (a clause introduced for the very special case of foreign minors under the supervision of Spanish nationals). According to this ruling, Sahrawi citizens had been given the chance to opt for Spanish nationality by RD 2258/1976, and were therefore not included under any special clause regarding preferential treatment for naturalization. Despite such efforts to clarify the interpretation of RD 2258/1976, there are still many doubts over the legal foundations of a measure which can dispossess former Spanish passport holders of their nationality simply because they fail to express their wish to retain it. As Ruíz Miguel points out (1999), the 1976 Decree contradicts the Civil Code of the time, which in Articles 22 and 23 stipulated, prior to amendments made later, that the only situation in which Spanish nationals could be dispossessed of their citizenship was when they voluntarily acquired the nationality of another country (which was clearly not the case with Western 19 In order to have their Spanish nationality recognised, they had to fulfil a series of conditions including showing that they had held and continuously made use of their Spanish nationality, for a period of 10 years, in “good faith” and with their nationality recorded in the Civil Registry (Registro Civil). 20 C. Ruiz Miguel (1999), ‘Nacionalidad española de ciudadanos saharauis: Secuela de una descolonización frustrada (y frustrante)’, Revista General de Derecho, no. 663.

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Saharans); by the ruling of a court sanction; or, according to the wording of that time (which changed in the reforms of the Civil Code which followed), for women who married a foreign national. As Ruíz Miguel tells us, a decree cannot overrule  or contradict regulations established by a higher law such as the Civil Code,  meaning that RD 2258/1976 may be in direct violation of the Civil Code of  that time.21 In addition, the decree also contradicted article 11.2 of the 1978  Spanish Constitution, which establishes that “no Spaniards by origin can be deprived of their nationality”, as well as article 15 of the Universal Declaration of Human Rights, which establishes that no one can be arbitrarily deprived of their nationality. The implementation of the legislation defining possible access of Sahrawis to Spanish nationality has struggled for primacy with the above regulations. In this respect, there seems to have been a great deal of bureaucratic discretion since Spain’s abandonment of Western Sahara. Some of these administrative practices reinforced RD 2258/1976’s restrictive nature, thereby making it extremely difficult for Sahrawis to do what would have been necessary in order to keep (or regain) their Spanish nationality. In other cases, street-level bureaucrats may have exploited gaps in the somewhat ambiguous legislation so as to help certain applicants obtain their Spanish passports. On the restrictive side, we can cite the extreme difficulties reported by applicants seeking to access information from civil registries regarding Western Sahara during the time of the colonial administration;22 the lack of recognition of documents issued by the SADR authorities in relation to nationality applications (although apparently Spanish administrations do accept them for other purposes, such as certification of residence in relation to immigrant labour and residence permits); and the obstacles introduced by state lawyers who systematically appeal against the recognition of Spanish citizenship to Western Saharans. Regarding more flexible interpretations of the legislation, we can cite the facilities granted by civil registries in certain provinces to Saharans who claimed to have had Spanish passports and who applied for renewal, thereby permitting recognition of their Spanish nationality. An extremely revealing confrontation between these two forms of bureaucratic discretion has been ongoing since 2008 in the Civil Registry of the southern Spanish city of Córdoba. The confrontation has ended up involving several Spanish ministries, including the Departments of Justice and Foreign Affairs. In February 2008, a Sahrawi holding an expired Spanish passport and an old Spanish ID applied for renewal of these documents. The judge responsible ( the daughter 21 C. Ruiz Miguel, op.cit. 22 C. Ruiz Miguel, op.cit.

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of one of the last officials of the Spanish colonial administration in Western Sahara) used the Supreme Court’s October 1998 ruling to claim that the application was merely a procedure for recognition of Spanish nationality, rather than an application for that status ex-novo. Surprisingly, the response from the Ministry of Justice was positive, and an increasing number of Sahrawis started to reclaim Spanish nationality via this same civil registry office. Several hundred applications were filed, and during the following months around 700 obtained a positive response and were granted Spanish passports and national IDs. In May 2009 the provincial State Attorney appealed against a large number of those already closed cases, claiming that either administrative procedure had been defective, or that they could not in fact be considered as cases involving previously existing Spanish nationality rights. Many of those Sahrawis who had obtained their new Spanish passports now saw them cancelled – in many cases losing their Spanish citizenship for the second time – and were made to wait for a conclusion to the administrative procedures regarding their cases. Civil society organisations advocating for the Sahrawi people’s rights, as well as associations of Sahrawis living in Spain, such as the Asociación de la Diáspora Saharaui en España, requested that not only should the rights of those Sahrawis who once held a Spanish passport be recognised, but also that Western Saharans should benefit from preferential treatment in the naturalisation process (two years of residency in the country), similarly to other groups with former colonial links to Spain. 5. Concluding Remarks Sahrawis, although coming from a former Spanish colony, are not included in the privileged system for naturalisation and dual nationality which applies to citizens from countries with historical ties with Spain. This can be easily explained by the fact that the majority of the international community still does not recognise Western Sahara is as a sovereign state. In such a case, the principle of reciprocity in applying the same rules as used for other former Spanish colonies cannot be implemented, as there is no partner to negotiate with on equal terms. The likelihood is that no change in current Spanish nationality legislation will be enacted to include Sahrawis in the privileged system for naturalization, unless the international conflict is resolved either by the self-determination of the Western Saharans or by an internationally recognised incorporation into Morocco. Recent Spanish court rulings show that the Western Saharan case becomes still more difficult to tackle when it is considered from a historical perspective. Although in 1976 Spain removed Western Saharans’ right to their previously granted Spanish citizenship, it remains controversial whether or not this removal can actually be considered as having taken effect. Legislation passed in

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democratic Spain prevents Spanish citizens ‘by origin’ from losing their nationality. Moreover, despite Morocco’s having conferred passports on Sahrawis living in the occupied territories, at the time that Spain abandoned Western Sahara there were no internationally accepted agreements on citizenship or on the establishment of any transition phase. As a result, one leading interpretation of Western Saharans’ citizenship status declares that they were never in fact deprived of their original Spanish nationality, as they had never benefitted from the nationality of any successor country. The main debate in this case therefore turns on how Western Saharans’ access to Spanish citizenship is to be applied. The terms of the controversy are located between the application of naturalization rules, regulation on the recovery of previously lost Spanish nationality, and the recognition that Western Saharans were in fact (in line with international regulations) never deprived of their original Spanish citizenship. The application of these different options has varied over time, and has to a large extent depended on which authorities were in control of the implementation procedure. The discretion of street-level bureaucrats needs to be further analysed, as it has come to be seen as a key factor in the understanding of the controversy and to any possible legitimate) solution to it. Spanish political parties remain silent regarding this loophole in nationality law. This attitude matches that of by the Spanish authorities over the unresolved conflict in Western Sahara: Spain supports a negotiated solution of the conflict, which would lead to the promised referendum on self-determination without any calling into question of Morocco’s current occupation of the territory. Between the two main Spanish political forces, there are no distinctions of position on the subject. As long as no other changes occur in the region, no alteration of this position can reasonably be foreseen in the near future. This case has clear implications for the definition of the sometimes undefined boundaries of EU citizenship. In this particular case, if in the end it were accepted that Western Saharans had never been deprived of their former Spanish nationality, then Western Saharans will automatically become full citizens of the European Union. This hypothesis would have a strong impact on the definition of the common space of EU citizenship. For instance, in such a case, most of the Sahrawi refugees living in western Algeria would be entitled to recover their Spanish nationality and so become EU citizens. Another possibility, one that seems to have been applied by street-level bureaucrats in the last few years, is that of recognizing the right to recovery of Spanish nationality only for those Western Saharans currently living in Spain. However, if the procedure is perceived as being recovery of nationality, then it would attract immigration by Western Saharans to Spain, or even to other EU countries. The legislation remains unclear, and its interpretation is currently mainly in the hands of civil registries and courts. In other words, this case proves that, at the edges of EU citizenship, the terms of inclusion and

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exclusion have no clear definition, but are subjected to the ups and downs of Member States’ international relations, especially with respect to their past history. As a consequence of this, these terms are subject to the discretion of authorities which apply contradictory criteria. With regard to the present case, we hope to have shown that the Spanish judicial authorities are playing a crucial role in establishing the limits of the characteristics of EU citizenship.

Part Two Solidarity and EU Citizenship

Reverse Discrimination, Family Reunification and Union Citizens of Immigrant Origin Kees Groenendijk 1. Introduction: Reducing Racial Discrimination in the EU The rules on free movement of nationals of Member States, the introduction of the concept of Union citizenship, and the abolition of controls at the internal borders in the Schengen area all three have significantly contributed to the reduction of racial discrimination in the Member States. The actual reduction of racial discrimination resulting from each of those three measures is far greater than the effect of Directive 2000/43/EC against racial discrimination.1 The abolishment of controls at the internal borders of the Schengen area put an end to a highly visible practice of different treatment by state officials based primarily on the colour of the skin of travellers rather than on the colour of their passport at almost every border checkpoint in the EU.2 Both free movement law and the concept of Union citizenship tend to support equal treatment of Union citizens by governments, private organisations and individuals, irrespective of the nationality or the ethnic origin of the Union citizen. The limited personal scope of the rules on free movement of persons by leaving room for open or hidden forms of unequal treatment, allows Member States to restrict this beneficial effect of Union citizenship. Union citizens who have not used their free movement rights (sedentary Union citizens or first country nationals (FCN) in the new jargon) are not covered by Directive 2004/38 on the free movement of Union citizens and their family members. They are subject to the national law of their Member State, which may provide for more or less favourable treatment than the nationals from other Member States who have used their

1 OJ 2000 L 180/22. 2 The substitute inland controls behind the borders may result in similar practices, K. Groenendijk (2003), “New borders behind old ones: Post-Schengen controls behind the internal borders and inside the Netherlands and Germany”, in: K. Groenendijk, E. Guild & P. Minderhoud (eds), In Search of Europe’s Borders, The Hague: Kluwer Law International, pp. 113–146 and J. Drohla (2012), “Hautfarbe als Auswahlkriterium für verdachtsunabhängige Polizeikontrollen?”, Zeitschrift für Ausländerrecht und Ausländerpolitik, pp. 411–417. But such controls are far less numerous and systematic and their legitimacy is far more problematic than the old controls at the borders.

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free movement rights (second country nationals of SCN). We speak of reverse discrimination when a state treats its own nationals less favourable in comparison with privileged non-nationals, such as resident nationals of other Member States (SCN). Reverse discrimination occurs in different fields: e.g. as a result of the application of national tax law to nationals living at one side and working at the other side of the border, as a result of the EU rules on recognition of professional or educational qualifications applicable to EU nationals after return to their own Member State and the national rules on such qualifications applied to static Union nationals (FCN) or because a French worker employed in Flanders under the Union rules on the coordination of social security is entitled to a more favourable treatment to public care insurance than a Belgian worker living in the French speaking region and working in the Dutch speaking region of Belgium.3 This contribution deals with the issue of reverse discrimination with respect to the rules on family reunification only. We will first explore why reverse discrimination with regard to family reunification is a problem (par. 2) and who is affected by this form of reverse discrimination (par. 3). After having observed that there are clear differences between Member States in perception of and dealing with reverse discrimination (par. 4), we try to explain these different approaches (par. 5). Finally, we will discuss the question whether the EU can solve this problem or solution should come from outside EU law? 2. Why Is Reverse Discrimination a Problem?4 Reverse discrimination results from the co-existence of three sets of rules (national rules and EU rules) on the same issue (family reunification), each set relating to a different category of persons. A French worker in Germany has the right to be accompanied or reunited with his French wife or his Moroccan wife and her mother in Germany under the EU rules on free movement (Directive 2004/38).5 Whether a German national living in Germany is entitled to reunification with his Moroccan family members or not depends primarily on German national law, which may be more liberal or more restrictive than the EU rules on free movement. The right of a third-country national, e.g. a Moroccan national 3 CJEU 1 April 2008, case C-212/06 Government of the French Community and Walloon Government [2008] ECR I-1683. 4 For a different answer to the same question: H. Verschueren (2009), “Reverse Discrimination: An Unsolvable Problem?”, in: P. Minderhoud & N. Trimikliniotis (eds), Rethinking the Free Movement of Workers: The European Challenges Ahead, Nijmegen: Wolf Legal Publishers, pp. 99–118 at 106–108. 5 OJ 2004 L 229/35.

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lawfully resident in Germany to live with his Moroccan family members in Germany is provided for in another set of EU rules, Directive 2003/86 on the right to family reunification.6 Thus, the right to family reunification of Union nationals who migrated in the EU (SCN) and of third-country nationals (TCN) sponsors is regulated in Union law, irrespective of the nationality of their family members, and the right to family reunification of the large majority of Union nationals who are living in their own country (more than 90% of the total population of the EU) is governed by national law of each Member State. In some Member States the national rules on family reunification are more generous and in other Member States they are less generous than the EU rules on free movement. In the latter case the national rules may be more generous than the EU rules on family reunification of third-country nationals in Directive 2003/86, if only because that directive provides for a right to family reunification only for the spouse and the minor children of the TCN.7 Reverse discrimination is contrary to the ‘normal’ logic that nationals deserve better or at least equal treatment by their State as non-nationals. The closer ties between the citizen and ‘his’ state appear to justify the privileged treatment of nationals. International law allows states, within limits set by human rights treaties, to grant certain rights to nationals only, such as the right to enter and not be expelled from the territory or the right to work in the country, and withhold those rights from non-nationals. It is one of the essential elements of Union law that this ‘natural’ unequal treatment does not apply within the Union. From the very beginning (Article 6 of the EEC Treaty) any discrimination on the basis of nationality within the scope of the treaty was prohibited. Union citizens in other Member States than their own are, generally, entitled to national treatment (as if they were nationals of that state). But that prohibition only applies within the scope of the Treaty. EU free movement law does not apply to static Union citizens (FCN) who have not used their right to move. The recent case law of the Court of Justice in Zambrano, McCarthy, Dereci and O.S. & L. illustrates that in exceptional cases static Union citizens may be entitled to live with their TCN family members in the Union on the basis of their rights as Union citizens under Articles 20 and 21

6 OJ 2003 L 251/12; this directive does not apply to Denmark, Ireland and the UK. I disregard here that due to the standstill clauses in the law on the association between the EU and Turkey more privileged rules on family reunification may apply under EU law in certain Member States for lawfully resident Turkish nationals. 7 In some Member States the implementation of Directive 2003/86 was used as an occasion or a justification to reduce the right to family reunification of the nationals of that Member State, see K. Groenendijk a.o. (2007), The Family Reunification Directive in EU Member States, The First Year of Implementation, Nijmegen: CMR/Wolf Legal Publishers and Y. Pascouau & H. Labayle (2011), Conditions for family reunification under strain, Brussels: European Policy Center.

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TFEU.8 But, contrary to what many authors hoped and others feared, the Court’s case law relates to the exceptional confirming the general principle that ‘fully internal situations’ are not covered by EU free movement law. 2.1. The Logic of Integration versus the Logic of Selection The discrepancies between the three sets of rules on family reunification reflect a different logic behind those rules that is in turn related to qualities ascribed to the different categories of family members concerned. The central logic behind the EU rules on family reunification, both in Directive 2004/38 on free movement of Union citizens and in Directive 2003/86 on third-country nationals, is that family reunification assists the integration of the immigrant in his or her country of residence.9 The dominant logic behind national rules on family reunification in several Member States (and in non-EU states) is that, since family migration is a major segment of the total immigration, rules on family reunification should reduce the number of immigrants coming under that ticket.10 The logic of integration prevails in the EU rules and the rules of some Member States and the logic of selection and reduction dominates the national rules of other Member States. 3. Who Are the Sponsors? EU rules govern both the admission of family members (EU and TCN) of migrant EU nationals (SCN) and of third-country nationals (TCN). If the sponsor is an EU national the rules (in Directive 2004/38) are more liberal than if the sponsor is a TCN (Directive 2003/86). The national rules on family reunification basically deal with the admission of TCN family members of its own static nationals. We do not discuss here the position of the increasing group of dual nationals, who, being both Union national and third-country nationals, blur the sharp distinction between the two categories.11 Reunification with a family member who is a Union citizen is    8  H. Oosterom-Staples (2012), “To what Extent has Reversed Discrimination been reversed?”, European Journal of Migration and Law, pp. 1–21 and K. Lenaerts (2011), “‘Civis europeaus sum’: from the cross-border link to the status of citizen of the Union”, FMW, Online Journal on free movement of workers within the European Union, No. 3, December, pp. 6–18, http://ec.europa.eu/social.    9 K. Groenendijk (2006), “Family Reunification as a Right under Community Law”, European Journal of Migration and Law (8), pp. 215–230. 10 S.H. Legomsky (2011), “Rationing Family Values in Europe and Americ: An Immigration Tug of War between States and their Supra-National Associations”, Georgetown Immigration Law Journal (25), pp. 807–858. 11 The Court of Justice on 29 March 2012 in case C-7/10 and C-9/10 (Kahveci & Inan), a case of Turkish-Dutch workers, held that acquisition of the nationality of the host Member State by a

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hardly ever a problem: the family member is entitled to live with the sponsor either because he is a national of the same country (two German spouses in Germany) or because he is a national of another Member States and thus entitled to enter and live with the sponsor under EU free movement rules (a Spanish spouse of a German national in Germany). National rules apply exclusively if the static Union citizen wants to bring his TCN family members to his own Member State. Most national family reunification rules on paper are colour blind, but their effects in real life are not. Union citizens of immigrant origin far more often experience the negative effects of those rules than other (indigenous) Union citizens, if only because they far more often have close family members, friends and other contacts, living outside the EU. The first group also travels outside the Union more often than Union citizens without direct roots outside the Union. The chances that they will have a spouse or partner from outside the EU are far greater than among the other Union citizens. 3.1. Reverse Discrimination Disproportionally Affects Union Citizens of Immigrant Origin Data on two Member States may illustrate this differential effect. In the Netherlands in 2003–2006 more than 80% of the sponsors of TCN family members admitted under national law were Dutch nationals (dual nationals included); less than 20% of the sponsors had the nationality of a non-EU country. Two third of the sponsors were of immigrant origin (51% was born outside the Netherlands and 14% were children of immigrants).12 Thus, almost half of the sponsors were Dutch nationals of immigrant origin. In Germany since 2000 the number of German nationals acting as sponsor for a spouse from outside the EU exceeds the number of third-country national sponsors for a non-EU spouse. In 2006 in Germany 57% of the sponsors of TCN family members admitted under the   Turkish worker who retains his Turkish nationality does not end the protection of Association Council Decision no. 1/80. Referring to the aim of that decision to integrate the worker and his family members in the host society, the Court held that after naturalisation a Turkish worker and his family members can still rely on their rights under that decision. The Court effectively restricted the room for reverse discrimination by the Dutch authorities applying the less favourable Dutch law to these new citizens rather than Union law. The interesting question is whether the Court will follow the same reasoning with regard to the personal scope of Directive 2003/86: do Turkish-Dutch or Moroccan-Dutch dual nationals lose their right to family reunification under that directive with naturalisation in the host Member State. After Kahveci & Jnan, I find it hard to accept that the court would have implicitly decided the issue of dual nationality in Ymeraga (c-87/12, judgment of 8 May 2013, par.25 and 26) without mentioning that issue. 12 I. Kilu-Glasgow, A. Leerkes a.o. (2009), Internationale gezinsvorming begrensd? Een evaluatie van de verhoging van de inkomens- en leeftijdseis bij migratie van buitenlandse partners naar Nederland, WODC Cahier 2009–4, Den Haag: WODC, p. 30 and 177.

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national rules were German nationals. More than 40% of the TCN family members admitted came from three countries only (Turkey, Russia and Serbia).13 Most probably, their sponsors were predominantly German nationals of immigrant origin. In 2011 in Germany 12% and in the Netherlands 11% of the population was born abroad.14 Together with their children (first and second generation) those immigrants in both countries make up approximately 20% of the total population. Hence, Union nationals of immigrant origin are clearly overrepresented among the sponsors of family members from third countries. Those sponsors not only experience the effects of the national rules far more often than indigenous Union nationals, the restrictive national rules are often introduced with the explicit or implicit aim to reduce the number of family member of nationals of immigrant origin. From the parliamentary debates on the recent introduction of the recent forms of reverse discrimination in Belgium and Germany, it appears that these measures were introduced with the nationals of immigrant origin in mind. Laura Block on the basis of her interviews with participants in the political debates on structuring the national rules on family reunification after 2005 observes that the three main points mentioned why ethnic minority Germans sponsoring spousal migration are considered to be different and thus should be treated differently than ethnic Germans: the heightened propensity of Germans of immigrant origin to marry a spouse from their own ethnic background [apparently, forgetting that ‘native’ Germans have a similar propensity], transnational marriage is perceived critically as a symptom and a cause of reluctant integration, and, thirdly, German citizens of immigrant origin do not necessarily speak German language well. German nationals of Turkish or Russian origin are perceived as only ‘formally’ German nationals. Block uses the term “devaluation of German citizenship”. From her analysis of the debate in the Bundestag, it appears that the extension of the new language test abroad to the family members of German nationals focussed on the family members of German nationals of immigrant origin, especially those born in Turkey or Russia, in mind.15 The Belgian immigration legislation more than a quarter century provided for equal treatment of Belgian nationals and nationals of other Member States. A first minor exception to this principle was made some years ago with the introduction of an income requirement for the admission of non-EU parents of Belgian nationals. During the debate on the proposal to extend reverse discrimination in the Aliens Act MPs of several parties repeatedly made references to 13 L. Block (2011), Conditioning membership, conditioning the family; Framing spousal migration in Germany, PhD, EUI Florence, pp. 101–106. 14 K. Vasileva (2012), “Eurostat Statistics in focus”, Population and social conditions, no. 31/2012. 15 Block 2011, fn. 13 supra, p. 92ff and chapters 4 and 6; A. Walter (2008), Reverse Discrimination and Family Reunification, Nijmegen/Osnabrück: Wolf Legal Publishers, p. 10.

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Belgian nationals of Moroccan origin. Most references on the focus group in the debate were made in an indirect, coded form. The aim of the proposal clearly was to reduce family reunification of Belgian nationals of Moroccan or Turkish origin.16 The debate in the Netherlands in 2005 on the introduction of the integration exam abroad in the Netherlands focused on the reduction of admission of spouses of children of immigrants from Turkey and Morocco, most of whom are Dutch nationals.17 The selective effect of allowing reverse discrimination is reinforced by national rules that explicitly exempt certain categories of sponsors or family members or by selective application of national rules. In Germany and Netherlands family members or sponsors who are nationals of eight ‘Western’ or rich countries are exempted from the requirement to pass the language or integration test abroad. The UN Committee against Racial Discrimination (CERD) in 2010 held that the Dutch rules “resulted in discrimination on the basis of nationality, particularly between so-called ‘Western’ and ‘non-Western state nationals’” and were incompatible with Article 2 and Article 5 of the UN Convention against racial discrimination. The CERD recommended the Netherlands to review this legislation with a view to abolishing the discriminatory application of the civic integration examination abroad.18 Two years earlier Human Rights Watch in a special report had already concluded that the application of the Dutch legislation violates nondiscrimination clauses in human rights treaties.19 Both the CERD’s recommendation and the HRW conclusions were disregarded. In Germany the rule that German sponsors are “generally” exempted from the income requirement is applied selectively: only to sponsors who are deemed to have more ties with their country of origin than with Germany. German nationals who are dual nationals or speak the language of the country of origin of the spouse are in practice affected

16 Chambre des Représentants de Belgique, Report of 19 May 2011, DOC 53 0443/018, p. 13, 22, 59–61, 166 and 172–174. During the debate on the bill explicit reference was made to “a difference in treatment of European and non- European Belgian nationals” and to Belgian nationals of Turkish and Moroccan origin, CRIV 53 PLEN 036, p. 57, 99–100 and 106; see also S. Dawoud (2011), Gezinshereniging en omgekeerde discriminatie: de Belgische context, presentation at the conference Centrum voor Gelijkheid van Kansen, Brussels 6 December 2011, see www .diversiteit.be. 17 K. Groenendijk (2011), “Pre-departure Integration Strategies in the European Union: Integration or Immigration Policies?”, European Journal of Migration and Law (13), pp. 1–30 and T. Spijkerboer (2007), Zeker weten: Inburgering en de fundamenten van het Nederlandse politieke bestel, Den Haag: Sdu. 18 Concluding observations of CERD of 25 March 2010, CERD/C/NLD/CO/17-18, point 5. 19 Human Rights Watch (2008), The Netherlands: Discrimination in the Name of Integration, Migrants Rights under the Integration Abroad Act, May 2008, www.hrw.org/publications/reports.

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by this practise.20 If the EU free movement rules would apply, such national measures and practices would be unlawful. This selective effect of reverse discrimination is not new. It is not by incidence that two of the three first cases on family reunification before the Court of Justice concerned the reverse discrimination of EU nationals of immigrant origin: Morson and Jahnjan were Dutch nationals of Surinamese origin who applied for admission of their Surinamese parents in the Netherlands and Surinder Singh was an Indian national married to a UK national of Indian origin and refused admission to UK when his wife returned to the Member State of their nationality after having worked several years in Berlin.21 The heart of the problem of reverse discrimination is the less favourable treatment of Union nationals under the national rules on family reunification affecting primarily its nationals, also Union citizens, but of immigrant origin. With  the introduction or continuation of policies of reverse discrimination a state may well legitimise unequal treatment of Union citizens of immigrant origin in other areas. 4. Different Approaches in Member States The practice on this issue varies considerably between Member States. In theory, Member States have several options when making their national rules on family reunification of their own static nationals (FCN) who want to live with their TCN family members: those rules can provide for better treatment than the EU rules on family reunification of nationals of other Member States, for equal treatment with those Union citizens or for less favourably treatment (reverse discrimination). Some Member States in their national rules on family reunification apply the first option, providing in certain rules for more favourably treatment of their own nationals than nationals of other Member States are entitled to under directive 2004/38. The German immigration legislation provides more favourable rules on the admission of the foreign spouse and foreign minor children of German nationals and for the non-German parent who cares for its minor German child.22 French immigration law also has more favourable rules on the admission of foreign spouse of French nationals and the foreign parent taking care of his or her 20 §28(1)(3) Aufenthaltsgesetz and Walter 2008, fn. 15 supra, p. 10, Block 2011, fn. 13 supra, p. 117 and T. Strik, B. de Hart & E. Nissen (2013), Family Reunification: a barrier or facilitator of integration? A comparative study, Brussels/Nijmegen: European Commission/Wolf Legal Publishers, p. 21. 21 CJEU 27 October 1982, case 35 and 36/82 (Morson and Jahnjan) [1982] ECR p. 3723 and CJEU 7 July 1992, C-370/90 (Surinder Singh) [1992] ECR I-4265. 22 § 28 Aufenthaltsgesetz (Familiennachzug zu Deutschen).

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French minor child.23 Moreover, the expulsion of a non-French parent who cares for his or her minor French child living in France is only possible in exceptional circumstance.24 Both Member States protect the right of the minor child to be raised and educated in the country of its nationality. The state protects the production of its own future citizens. Several Member States have opted for the second option (equal treatment). The Belgian Aliens Act since 1980 provided that Belgian nationals had the same right to family reunification as nationals of other Member States under EU free movement law.25 A similar provision was introduced in the first Spanish immigration legislation implementing EU free movement law in 198626 and is present in the current immigration legislation of Portugal.27 The Netherlands and the UK are examples of Member States with a long tradition of applying the third option, reverse discrimination. That is why the first family reunification cases before the Court of Justice arose in those two Member States. On the occasion of the implementation of Directive 2004/38 in the Netherlands the Dutch State Council observed that Dutch nationals with respect to family reunification are treated less favourable than nationals of other Member States and their family members. It qualified this difference in treatment as ‘not reasonable’ and advised the government to amend the relevant legislation.28 The government did not heed that advice. 4.1. Directive 2003/86 as the Bottom Line Member States applying the third option have an additional choice regarding the relation between their national rules and EU law: should their national rules on family reunification of their own citizens provide for more favourable, equal or less favourable treatment than the rules of EU Directive 2003/86 on the right to family reunification grants to third-country nationals living in their country? Treating your own nationals worse than nationals of other Member States is one thing, but treating your own nationals worse than third-country nationals living in your country is another thing. Treating a French national in Germany better 23 Articles L 313-11,4o, L 314-9,3o, L 314-11,2o, L 511-4,7o, L 521-2,2o and L 521-3,3o CESEDA. 24 Articles L 313-11,6o, L 314-9,2o, L 511-4,6o, L 521-3,4o and L 521-2,1o CESEDA and Articles 131-30-1,2o and 131-30-2,3o Code Penal. 25 Article 40 of Vreemdelingenwet of 15 December 1980. For an application of the provision and its interpretation see CJEU 18 October 1990, C-297/88 and C-197/89 (Dzodzi) [1990] ECR .I-3763. 26 Royal Decree No. 1199 of 26 May 1986. In 2007 two exceptions to this rule were introduced by Royal Decree no. 240 of 16 February 2007, see Walter 2008, fn. 15 supra, p. 19. This Royal Decree of 2007 was partially annulled by the Spanish Constitutional Court by a decision of 1 June 2010. 27 T. Strik a.o., fn. 20, p. 20. 28 Advice of 17 March 2006, Annex to Staatscourant 2006, no. 90 and Migratieweb ve06000761.

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than a German will require justification, treating a German national worse than a Turkish national in Germany with respect to family reunification will be even harder to justify. Developments in the Netherlands provide a good illustration. In Chakroun the Court of Justice held that the Dutch rule, setting the income requirement for admission of spouses of third-country national sponsors at 120% of the statutory minimum wage if the marriage was contracted after the sponsor had entered the Netherlands, was incompatible with Directive 2003/86.29 After this judgment the income requirement was reduced to 100%. Without a single word in the explanatory memorandum on the relevant decree the new rule was also applied to the family reunification of spouses of Dutch nationals.30 Directive 2003/86 does not apply to family reunification with Union nationals. The Dutch government, apparently, considered it hard to justify continuing to require Dutch nationals to meet the 120% income requirement, even though not prohibited to do so by Union law.31 Directive 2003/86 on the right of family reunification for third-country nationals de facto sets a political limit to the reverse discrimination  of nationals whose right to family reunification is not (yet) regulated by Union law. Looking at the policies on this issue over the past decades clear differences in traditions in Member States are visible: the UK and the Netherlands have a long practise of reverse discrimination; Germany and France provide for more favourable treatment of their nationals; but both countries in recent years introduced more strict rules on family reunification with their own nationals. Portugal and Spain have a tradition of equal treatment of Union nationals, the mobile and the sedentary ones. In recent years the relevant national law in Member States has developed in surprisingly different directions. Reverse discrimination was introduced in Germany in 2007 and in Belgium in 2011.32 In Hungary and Italy rules providing  for equal treatment were introduced in the legislation in 2007.33 The 29 CJEU 4 March 2010, C-578/08 (Chakroun) [2010] ECR I-1839. 30 Royal Decree 24 July 2010, Staatsblad 2010, no. 306. 31 The CJEU judgment of 26 April 2012, case C-508/10 (Commission/Netherlands) on fees for residence permits issued under Directive 2003/109 had a similar effect: after the highest administrative court had held that the reasoning of the CJEU’s judgment also applied to fees for residence permits issued on the basis of Directive 2003/86, the government also reduced the fees for permits for family members of Dutch nationals, again without mentioning this ‘voluntary’ extension of the new rule Dutch sponsors. 32 In Germany in the Gezetz zur Umsetzung aufenthalts- und asylrechtelicher Richtlinien der Europäischen Union of 27 August 2007, Bundesgesetzblatt 2007, I-1979 and in Belgium in Article 9 the Act of 8 July 2011, Belgisch Staatsblad 2011, p. 58915, introducing a new Article 40ter in the Aliens Act of 1980. 33 In Italy in Article 23 of Legislative Decree 2007 no. 30 and in Hungary by the Act of 1 July 2007 implementing EU free movement law.

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constitutionality or the compatibility with international law of national rules providing for reverse discrimination was subject of disputes in several Member States. In Austria the Constitutional Court in 1997 held that the more favourable rules for family reunification of EEA nationals should be applied to Austrian nationals as well in the light of “the requirement of Article 8 in connection with Article 14 ECHR that guarantees the rights and freedoms stipulated in the ECHR without discrimination”.34 In 2005 reverse discrimination was reintroduced in the Austrian immigration legislation, but this time the difference in treatment was based not on nationality but on having used or not the freedom of movement. In 2009 the Constitutional Court held this difference in treatment to be justified by objective facts.35 In Germany the requirement of third-country national spouses of German nationals to pass a language exam abroad was introduced in 2007. In 2012 the Bundesverwaltungsgericht, the highest administrative court, ruling on the constitutionality of this new requirement, held that it should not postpone family reunification for more than one year.36 The issue of legality of the provision introducing reverse discrimination in Belgium is pending before the Belgian Constitutional Court.37 The Spanish Constitutional Court in 2010 partially annulled the introduction of reverse discrimination in the Spanish immigration legislation.38 Some Member States used the implementation of the (new) EU rules on free movement of Union nationals as an occasion to end or avoid reverse discrimination of their own nationals, other Member States did not. 4.2. How Can Different Approaches in Member States Be Explained? In my view the differences in approach of this issue between Member States are related to the four factors: (1) the colonial policies of Member States and their consequences for immigration from its former colonies, (2) national immigration policy traditions, (3) the phase of the immigration from outside the EU (old or relatively recent) and the resulting composition of the immigrant population, and (4) the presence or absence of constitutional review in Member States. A tentative application of these four variables to the policies and developments in Member States would be as follows.

34  Verfassungsgerichtshof 17 June 1997, Sammlung der östereichischen Verfassungsgerichtsentscheidungen no. 14.863. 35 Walter 2008, fn. 15 supra, p. 13–15 and Verfassungsgerichtshof 16 December 2009, case G 224/09. 36 Bundesverwaltungsgericht 4 September 2012, no. 10 C 12.12; for an English translation of this judgment see www.bverwg.de/informationen/english/decisions. 37 The hearing in this case, introduced by ADDE and five other immigrant and human rights NGOs against the Belgian State, was held in January 2013. 38 Decision of 1 June 2010 concerning Article 2.1 of Royal Decree 240/2007, see fn. 26.

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The Netherlands and the United Kingdom both decades ago experienced a large immigration from their former colonies. Most of those immigrants held the nationality of that Member State at entry or acquired it shortly afterwards. Reverse discrimination was justified by the wish to reduce immigration from the former colonies. The absence of constitutional review in both countries made the justification of unequal treatment a political rather than a legal issue, to be decided in Parliament rather than in the courts. In Belgium three quarters of the non-Belgian population are Union citizens. This made the application of the free movement rules to Belgian nationals more self-evident. Most cases of family reunification in Belgium are governed by the EU rules on free movement anyhow. The recent introduction of reverse discrimination in Belgium can be explained as a reaction to the relatively liberal naturalisation practice after the 2000 amendment of the Belgian nationality law, which resulted in a growing number of Belgian nationals originating from countries outside the EU. The presence of a Constitutional Court made that the issue in the political debate from the very beginning was framed as a legal issue as well. Germany has a long tradition in their immigration law of privileged treatment of spouses of German nationals and parents of minor German nationals. The introduction of a limited form of reverse discrimination, setting a minimum age for the spouses and requiring spouses of German nationals to pass the language test abroad, was related to the wish to better prepare the spouses of German nationals of Turkish and Russian origin. Just like in Belgium it can be seen as a reaction to a growing number of naturalisations of Turkish residents and to presence of a large number of Aussiedler, ethnic Germans from Rumania, Russia or Kazakhstan who received German nationality shortly after entry in Germany. The constitutionality of this provision was openly disputed by the then Minister of Justice.39 The Bundesverwaltungsgericht in 2012 opted for a compromise solution: the language test abroad should not postpone the reunification for more than a year. In Austria and Spain the presence of a constitutional court increased the chances of the issue being framed as a legal one and the principle of equality treatment, requiring the legislator to justify to unequal treatment, being taken more serious. In Hungary the ban on reverse discrimination might be related to the government’s policy of reinforcing the rights of ethnic Hungarians living in the neighbouring countries. The recent developments on this issue indicate a tendency in Member States to introduce reverse discrimination measures once the number of nationals of immigrant origin increases and to focus those measures on reducing the rights of those nationals, who are all Union citizens. 39 Groenendijk a.o. 2007, fn. 7 supra, p. 27.

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5. Can the Union Solve This Problem? Reverse discrimination is possible because of the co-existence of EU law and national law on family reunification providing for different levels of rights for different groups: more rights for Union citizens who have moved in the Union (SCN) and, in some Member States, less rights for static Union citizens (FCN). In theory, the discrepancies between the two levels could be solved either by amending the national law or amending Union law. Judge Lenaerts observed that, since the Court of Justice is not going to issue a general prohibition on reverse discrimination, the issue should be dealt with at the national level either by political pressure or by application of “the constitutional principle of equality”. On the first alternative he writes: “Where reverse discrimination affects a majority of nationals, it will be very unlikely to persist. Politicians will be obliged to adopt new policies in compliance with the views of that majority. But what happens where reverse discrimination only affects a minority of nationals? Although the political process does not seem a viable alternative in systems suffering from a ‘majoritarian bias’, such a minority may still rely on the judicial remedies provided for by national law.”40

We observed that both premises for political pressure to end reverse discrimination, mentioned by Lenaerts are not present: firstly, only a minority of nationals is affected most of them being of immigrant origin and, secondly, in several Member States the legislator in recent years introduced or extended reverse discrimination with the implicit or explicit aim to curb family migration of nationals of immigrant origin. Besides, considering the diversity in the national law and the historical, cultural and demographic roots of that diversity, a common solution by amending the national legislation of the Member States actually practicing reverse discrimination is not be expected on the short term. Difference in levels of rights can be solved in two ways: levelling up and levelling down. So far, most critics of reverse discrimination explicitly or implicitly have advocated levelling up as the solution: static Union citizens who marry with a third country national should have the same right to live with that spouse and his or her family members, as the Union citizens who have moved within the Union.41 Thus, two questions arise: does the EU have the competence  to make binding rules on the right of static Union citizens to live with their family members who are nationals of non-member countries and, secondly, 40 Lenaerts 2011, fn. 8 supra. 41 E.g. J-Y. Carlier (2011), Non-discrimination et étrangers, text presented at the colloquium “La discrimination entre europeens”, 7 April 2011, Université Montesquieu Bordeau IV and Shuibhne 2002, fn. 50 infra.

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does the EU legislator when making EU rules on this issue has the option to choose between levelling up and levelling down? The answer to the first question is yes and to the second question no. 5.1. Proposals for Levelling Up and Levelling Down Since the Treaty of Amsterdam the Union has the competence to make binding rules on family reunification: to adopt measures on “the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunification”.42 In its first proposal for the directive on the right to family reunification made in 1999 the Commission included a provision that would have granted sedentary Union citizens the same rights to family reunification as the migrant Union citizens.43 This proposal met with opposition from the Netherlands since it would have put an end to the long-standing Dutch policy of reverse discrimination. The UK was not really interested since it opted out from this directive and thus would not be bound by it. At first, Germany also opposed this proposal, mainly because it would limit the possibilities to restrict family reunification of ethnic Germans originating from Russia and other Eastern countries and of naturalised German nationals.44 After a compromise between the German Minister of Interior and the Commission on a transitional clause that would postpone the application of this provision for several years, the German opposition was reduced. However, the Dutch opposition was joined by Finland and the provision was deleted in the 2002 revised proposal for the directive.45 Pleas to the Commission to use the European Year of the citizen (2013), as the occasion to come with a proposal for the Union legislator to confirm the rights of all Union citizens and their family members,46 42 Now Article 79(2)(a) TFEU. 43 Article 4 of the proposal in COM(1999)638 and Walter 2008, fn. 15 supra, p. 41. Point 9 of the preamble of the proposed directive stated: “To avoid discriminating between Union citizens who exercise their rights to free movement and those who do not, provision should be made for the family reunification of Union citizens residing in countries of which they are nationals to be governed by the rules of Community law relating to free movement.” 44 The German official in charge of the German delegation during the negotiations in Brussels wrote that the proposed Article 4 would considerable extend “the rights to family reunification of family members of Aussiedler and naturalised third-country nationals”, C. Hausschild (2003), “Neues europäisches Einwanderungsrecht: Das Recht auf Familienzusammenführung”, Zeitschrift für Ausländerrecht und Ausländerpolitik, pp. 266–273 at 269. Note the way he describes the German nationals concerned. 45 See COM(2002)225 and Walter 2008, fn. 15, pp. 41–43. 46 Jean-Yves Carlier (2013), “La libre circulation des personnes dans et vers l’Union européenne”, Journal de droit européen, pp. 103–114 at 114.

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probably will not be heeded for lack of political support in the relevant Member States. It is not a question of competence but of political will. In March 2011 the Dutch government, that depended in Parliament on the votes of the anti-immigrant party of Geert Wilders, proposed in a Position Paper sent to the other Member States to reduce the right of family reunification of Union citizens who have used their right to free movement to the level of Directive 2003/86 on the right of family reunification of third-country nationals.47 This proposal openly to level down to the lowest level available in Union law, apparently, did not receive much support from other Member States. It was not mentioned by other Member States in their reactions on the Commission’s Green paper on the right to family reunification published in 2011.48 Both the Commission’s proposal to level up and the Dutch proposal to level down were based on the competence of the Union to adopt binding measures on the issue. 5.2. Could the Court Solve the Problem? From its very first judgment on family reunification of EU nationals in Morson in 1982 the Court has held that the rules on free movement of workers do not apply to an EU worker who is employed in his own Member State and has never exercised the right of freedom of movement within the Union “if the worker has the nationality of that State and the relative the nationality of a non-member country”.49 In Metock the Court repeated this position with regard to Union citizens. Union law does not apply to purely internal situations and hence does not prohibit forms of reverse discrimination in national law. The argument that reverse discrimination was incompatible with the concept of Union citizenship and the equality principle was proposed by several authors.50 In 2007 the advocategeneral Sharpston tried to convince the Court in vain.51 The Court does not see it as its task to impose the logic of citizenship on unwilling Member States. 47 Position paper – the Dutch standpoint on EU migration policy of 16 March 2011, p. 7, www .rijksoverheid.nl/documenten/documenten-en-publicaties/, visited on 12 April 2013. 48 COM(2011)735 and European Commission, Summary of stakeholders responses to the Green Paper on the right to family reunification of third-country nationals, 11 May 2012, www.ec.europa .eu/dgs/home-affairs/ under ‘public consultation 2012’ where the reactions of Member States can be accessed too. 49 CJEU 27 October 1982, case 35 and 36/82 (Morson and Jahnjan) [1982] ECR, p. 3723, par. 13. 50 S. O’Leary (1996), The Evolving Concept of Community Citizenship, The Hague/London/Boston: Kluwer; N. Nic Shuibhne (2002), “Free Movement of Persons and the Wholly Internal Rule: Time to Move One?”, Common Market Law Review, p. 731ff; Walter 2008, fn. 15 supra; Verschueren 2009, fn. 4 supra, pp. 106–108 and other authors mentioned by Oosterom-Staples 2012, fn. 8 supra in her fn. 7. 51 See her opinion in case C-212/06 Government of the French Community and Walloon Government.

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Apparently, the Court considers that a major change in the division of competences between the Union and its Member States, with consequences in other fields that are difficult to foresee, exceeds its judicial task. When the Court in Zambrano made a little exception to the purely internal situation rule to protect the rights of minor Union citizens to live in the country of their nationality and in the Union, this move was strongly criticized by Member States.52 In later judgments in McCarthy and Dereci the Court again reiterated the ‘purely internal situation’ principle, only allowing for residence rights of third-country national family members of Union citizens on the basis of Article 20 and Article 21 TFEU if refusal of that residence right would “have the effect of depriving Union citizens of genuine enjoyment of the substance of the rights conferred by virtue of that status [of Union citizen]”.53 On the other hand, the Court in its judgment in Metock did effectively block the possibility for the Union legislator to level down the existing family reunification rights of EU migrants by adopting new secondary Union legislation. The Court held that making the admission of third-country national family members of EU migrant depend on national law of Member States would be contrary to the Internal Market that requires a level playing field in all Member States.54 A levelling down of those rights to the level of third-country national sponsors under Directive 2003/86, would indeed create a level playing field required by the Internal Market. But that solution is not possible because it would seriously obstruct the freedoms they are granted by the Treaties.55 Reducing the right to family reunification of migrating Union citizens to the level of third-country nationals lawfully resident in a Member State would require amending the TFEU. The Court is unwilling to end the practice of reverse discrimination in the national law of some Member States on the basis of the general treaty provisions on Union citizenship. The Union legislator ten years ago did not accept the Commission’s proposal to level up of the family reunification rights of static Union citizens and it lacks the competence to make secondary legislation levelling down the current rules on family reunification of Union citizens. Does this deadlock mean that we have to live with the current diversity in EU and that real and effective use of free movement rights is the only way out for Union citizens confronted with reverse discrimination in their national law? After McCarthy and 52 For an expression of that view on the proper division of competences and the role of the Court in the Union, K. Hailbronner & D. Thym (2011), “Case C-34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi”, Common Market Law Review, p. 1253ff. 53 See McCarthy, par. 46 and Dereci, par. 61. 54 CJEU 25 July 2008, C-127/08 (Metock), [2008] ECR I-6241, par. 67 and 68. 55 Metock, par. 56 and 62.

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Dereci, Member States, maintaining such barriers for their own nationals to living together with their close family members from outside the EU, can no longer claim that real and effective use of this échappatoire, that in political debates is often disqualified as the Belgium route, the Sweden route or the Europe route, amounts to misuse of Union law. But the Court in Metock pointed the way to an alternative solution in case neither the national legislator nor the national (constitutional) courts would apply the logic of equality. 6. A Solution on the Basis of the ECHR? In the Metock case several governments argued that the interpretation of Directive 2004/38, accepted by the Court in its judgment, “would lead to unjustified reverse discrimination, insofar as national of the host Member State who have never exercised their right of free movement would not derive rights of entry and residence from Community for their family members who are nationals of non-member countries”. The Court rejected this argument referring to its case law that “any difference of treatment between those Union citizens and those who have exercised their right to freedom of movement, as regards the entry and residence of their family members, does not therefore fall within the scope of Community law.” Implicitly, the Court said: practising reverse discrimination is your own choice. But the Court immediately afterwards explicitly reminded the Member States that they are all bound by Article 8 ECHR.56 Implicitly the Court reminded Member States that any difference in treatment between the groups of Union citizens has to be justified in the light of Article 8 and – I would add – Article 14 ECHR. Four kinds of justification for less favourable treatment of static Union citizens have been proposed or could be imagined. The first justification proposed is that the Court of Justice has agreed or accepted this difference in treatment.57 The proposition is clearly based on an incorrect reading of the Court’s constant case law since Morson. The Court has held that the treatment of static Union citizens by their own Member State is outside the scope of Union law – unless covered by Article 20 TFEU – and, hence, the Court cannot rule on this issue. The second justification is that the differential treatment is a consequence of the EU being a special legal order and that this has been accepted as a justification by ECtHR in its judgment in Moustaquim.58 This proposition disregards that the Moustaquim 56 CJEU 25 July 2008, C-127/08 (Metock), [2008] ECR I-6241, par. 78 and 79. 57 So the Dutch Vreemdelingencirculaire 2000 in B10/5.3.1 under the heading “discrimination own subjects”. The relevant text of these instructions to the immigration authorities has been repeatedly copied by Dutch courts in their judgments. 58 EctHR 18 February 1991, Moustaquim v Belgium, appl. No. 12313/86, Series A193.

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case was about the justification of a difference in treatment between EU nationals and nationals of non-member states with respect to the protection against expulsion. We are concerned with a difference in treatment between two groups of EU nationals (FCN and SCN). The ECtHR has not ruled on that issue yet. The argument of the EU being a special legal order is less convincing as a justification for treating one group of Union citizens different than another group. All the more so, since it is a difference in treatment based on the nationality of the sponsor and the Member State has to justify treating its own nationals, with whom it has a more close legal bond, less favourably with respect to a fundamental right, than nationals of another Member State with whom the formal links are less close. Justification is so difficult since reverse discrimination is based on logic entirely different from the logic of citizenship and the logic of equality.59 The third possible justification is that the difference in treatment is a necessary consequence of the division of competences between EU and MS, leaving MS freedom to make their own national rules on the family reunification of their own nationals. The fact that Union law leaves this freedom does, however, not imply that Member States are not bound by their obligations under international law, among others the ECHR, as the Court of Justice in Metock pointed out. Finally, a fourth justification could be that third-country national family members of migrating nationals of other Member States integrate quicker and better in host Member State than the third-country national family members of static EU nationals of that same state. I have not seen any empirical evidence supporting this proposition that on its face appears to be rather improbable. 6.1. The Hode & Abdi Judgment of the ECtHR The judgment of ECtHR in Hode & Abdi v the UK makes it clear that the Court in Strasbourg will require weighty arguments to justify reverse discrimination under Article 8 and Article 14 ECHR. The central question in that case was: is there an objective and reasonable justification why refugees on one hand and workers and students on the other hand are treated differently as to their right to live with a spouse they married after entry into the UK, the rules on worker and students being more liberal than the rules for refugees. The ECtHR held that different treatment on the basis of nationality or immigration status both qualify as ‘other status’ under Article 14.60 With regard to the argument of the UK government that refugees and workers or students are not in analogous situations, the ECtHR held 59 Presentation by Pavlos Eleftheriadis (Oxford) in Uppsala 21 March 2013. 60 EctHR 6 November 2012, Hode and Abdi v. UK, appl 22341/09, par. 46–48.

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that it is not necessary that the two groups compared are in identical situations. It is sufficient that their situations are relevantly similar.61 UK governments argued that it has to honour its international obligations with regard to the admission of refugees, but does not want to stimulate refugees coming to UK as they want to stimulate workers and students coming. Moreover, the government argued that the relevant national rules did not concern any of the ‘suspect’ grounds of discrimination such as sex or race. The Court accepted “that offering incentives to certain groups of immigrants may amount to a legitimate aim for the purposes of Article 14 of the Convention” but observed that that aim was not advanced as a justification in recent domestic cases.62 The ECtHR held that the UK government did not provide objective and reasonable justification for treating refugees who married post-flight differently from those married pre-flight with regard to family reunification with their spouse. The Strasbourg Court explicitly held that “where a measure results in the different treatment of persons in analogous positions, the fact that it fulfilled the State’s international obligations will not in itself justify the difference in treatment”.63 This effectively answers the second and the third justification mentioned above. Would the Court’s reasoning only apply to the Refugee Convention and not to Union law? Reverse discrimination is a difference in treatment based on the nationality of the sponsor: persons with the nationality of the host Member State versus persons with the nationality of another Member State, those who have used their right to free movement and those who have not. The two groups are in analogous situations: both want to live with their TCN family member in the same Member State. The nationals of other Member States are treated more favourably because the host Member State wants to honour its obligations under Union law. The difference is maintained as long as the Union citizen does not use his or her right of free movement. Once, that right is effectively used, the reverse discrimination ends. The national is compelled to leave the country of his nationality and, thus, give up his fundamental right to live in that country, in order to realize his family life with his spouse.64 Finally, there is a difference with the Hode and Abdi case, as illustrated in par. 3 above: there is a relationship between the less favourable treatment of certain Union citizens and their ethnic origin, not only a statistical relationship but also in the mind of the national legislator.

61 Idem, par 50. 62 Idem, par. 53. 63 Idem, par. 55. 64 Verschueren 2009, fn. 4 supra, p. 108 called it “the right not to use freedom of movement”.

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7. Conclusions The implicit message in the political debate on reverse discrimination and the administrative practice in some Member States is that the state considers its nationals of immigrant origin as nationals on paper only, not as ‘real’ citizens.65 Reverse discrimination amounts to a denial of solidarity and will negatively affect the integration of those second class nationals. As long as the EU Court of Justice does not see it as its task to push the logic of citizenship much further than the small steps made in Zambrano and Dereci, and the Member States are unable to agree on a legislative instrument based on the logic of citizenship, the EU implicitly appears to allow Member States to give second class treatment to a category of Union citizens, which will only increase in the years to come. In the current debate on the division of competence between the European Union and its Member States with many politicians claiming that competences should be returned from Brussels to the Member States, a proposition to extend competence of the Union by taking away one of the remaining national competences with regard to admission of third-country national family members of their own nationals, will probably not be received favourably in some capitals. On the other hand we should not forget that the logic of equality prevailed in several Member States when they first implemented the EU rules on free movement of persons, the logic of equality determined the national law for decades or determines the current national law in many Member States. Moreover, national constitutional and other courts in several Member States are, apparently, struggling with the justification of reverse discrimination. Hence, it may be the right time for the logic of equality to be applied either at the national level by parliaments or courts or by the European Court of Human Rights in Strasbourg.

65 This tendency is supported by the use of terms such as ‘allochtonen’ in the Netherlands and ‘Deutsche mit Migrationshintergrund’ in Germany by the state and public authorities as appropriate labels for large numbers of their own citizens, K. Groenendijk 2011), “Categorizing human beings in EU migration law”, in Saskia Bonjour, Andrea Rea & Dirk Jacobs (eds), The Others in Europe, Brussels: Editions de l’Université de Bruxelles, pp. 21–36. See also fn. 44 supra.

Does European Citizenship Blur the Borders of Solidarity? Elspeth Guild 1. Introduction1 Citizenship is currently the building block of political organization in Europe. Our insistence on the value of representative democracy which can be found, for instance in the preamble to the Treaty on European Union and the right to vote and stand for election in the Treaty on the Functioning of the European Union (TFEU) is the manifestation of the centrality of citizenship to politics. It is the organizing principle of political legitimacy in the Member States and the EU. Accordingly, it is a matter of some interest who controls the power to create citizens or extinguish people’s status as such. The current EU compromise is that exclusively Member States have this power but the EU creates rights for the Member States’ citizens. Citizens are those persons to whom the Member States have allocated the status. With this status comes the right to vote and stand for election at all levels within the state and at the EU level. Thus the citizen has the right to choose the government, nationally, locally and the European Parliament. The government (in theory) determines the political direction which the administration puts into practice. The citizens are the beneficiaries (again in theory) of these practices which reflect the political choices which they have made. Of course this schema is idealized and in practice the situation is somewhat different (C B Macpherson 1992) but it is the political myth which concerns me here. This framing of citizens and the state allows the researcher to disregard anyone to whom the state has not allocated voting rights and the title of citizen (though there is in the EU increasing divergence on voting rights (Groenendijk 2010)). Instead of this liberal democratic framework, I am going to seek the definition of citizenship through successful claims to solidarity – the right to social benefits.

1 Many thanks to the Jean Monnet Grant programme for generously funding the research which lead to this article. I would also like to thank my colleagues, Dr Paul Minderhoud, Professor Cristina Gortázar and Professor Dora Kostakopoulou for their kind comments and suggestions in respect of this article. All shortcomings, however, are my own.

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Apart from political rights necessary to the claim to liberal democracy, the content of citizenship is something of a black box which is constrained only by the limits of administrative imagination. The rights of citizens depend first on national constitutions and then on EU law. The relationship of citizenship with social protection is particularly ambiguous. Social protection schemes are creatures of national law and policy. They are normally open to citizens and third country nationals who are permanent residents (though there are many exceptions). The EU engages with social protection in two ways – first through coordination of schemes across the Member States and secondly through equality – the prohibition on discrimination on the basis of nationality (Article 18 TFEU – bearing in mind of course the multiple limitations on the principle). The link of citizenship and social protection can also be instrumentalised. For instance, the Dutch authorities have adopted legislation in the form of a Remigration Act where dual nationals (usually with the second citizenship of Turkey) can renounce their citizenship in return for a state pension payable in their country of other citizenship. The consequence is that the Netherlands loses citizens which it does not want by paying them to cease to be citizens and leave the country. Directed at Dutch nationals who are also Turkish workers in the Netherlands, this means that where people choose the option, subsequently they can only return even to visit the Netherlands if they can convince the Dutch authorities to issue them a visa. What rights citizens should have or are entitled to is determined at the national level first then at the EU level. However, since the 18th century (in particular through the French Revolution), the idea that citizens are equal has become increasing popular. The revolutionary call for liberté, égalité, fraternité (freedom, equality, solidarity) remains evocative and capable of garnering support across Europe. This is reflected in the TFEU in Article 18 which prohibits discrimination on the basis of nationality. But what does equality mean when coupled with solidarity? So far in Europe, it clearly does not mean that everyone should have the same economic resources. Taxation schemes based on radical redistribution policies have not been particularly popular in any Member State. However it does mean a degree of redistribution in the form of social security and social assistance. The two concepts have quite different trajectories and historical baggage. Social security, which is normally associated with Bismarck’s 19th century work protection system funded on an insurance basis still constitutes the framework of social security systems in many Member States (Lyon-Caen 1994). The UK’s Beveridgian system based on the principle of a fixed sum allocated in respect of the realization of social risks was absorbed into the EU’s system of social security coordination with plenty of hiccups. Social assistance, in theory, is not based on insurance principles but made available by the state to people in respect of whom it has accepted responsibility on the basis of the people’s indigence. In practice in

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the EU, the coordination system has led to increasing convergence of the two (European Commission 2003). The purpose of this chapter, though, is not to delve into either of them. Rather it is to examine how the relationship of citizenship (as an accumulation of bundles of rights) based on a principle of equality operates in conjunction and intersects with the system of social solidarity (encompassing both social security and social assistance) at the supra national level (European Union). T.H. Marshall, a 20th century British sociologist, examined the meaning of citizenship from a perspective other than attempts to conceptualize the nation. According to Marshall, citizenship describes a process of accumulation of bundles of rights by people. As people within a territory and under a bureaucratic authority claim bundles of rights and as those claims become realized so citizenship is created and enacted (Marshall 1050; Isin & Turner 2002). In his own work regarding the UK, he examined how civil rights in the UK were acquired by people in struggles in the 18th century followed by political rights in the 19th century and the gradual extension of universal suffrage and finally social rights in the 20th century (Marshall 1950; Bulmer & Rees 1996). If one follows the bundles of rights which people acquire one can plot the historical development of the content of citizenship. For his final bundle of rights – social rights – he commenced by looking at education rights. The arguments for universal free education were underpinned, according to his research, by the need of the state for an educated electorate. The acquisition of political rights in the 19th century presaged and made necessary the allocation of social rights as citizenship rights in the 20th. The extension of those arguments to the provision of health cover, old age pensions, unemployment benefits etc is fairly straight forward. However, Marshall ended his study with considerations of the personal scope of citizenship rights. His approach was that a substantial degree of social cohesion is essential before citizenship can be imbued with redistribution rights which are based on solidarity. This linking of social cohesion with the creation and maintenance of systems of social solidarity as a lineal process has ferocious supporters among conservative thinkers (see Freeman 1986) but also their Marxist counterparts (Schierup et al 2006). The conservatives, often based in the USA, argue that the US cannot create or sustain profound social solidarity systems because it is a country open to the world, a country of immigration where social cohesion is under constant construction. As people do not feel a sense of strong social cohesion they are unwilling to support social solidarity mechanisms with others. Thus while in old Europe, states enjoy strong social solidarity, this is a manifestation of their closed nature which permits their selfish citizens to prefer state managed social solidarity to its family based intergenerational alternative. It is because of the open-ness to immigrants, the argument goes, that the US cannot sustain comprehensive systems of

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social security. The Marxists take a somewhat different approach though the end point is similar. The EU as “one huge single transnational market for commodities, capital, labour and entrepreneurship” (Schierup et al. 2006, p. 12) dilutes and degrades social solidarity to which it is not seriously committed. The result is the exclusion of more and more people from social benefits and the destruction of the welfare state. It is in the movement of people, migration, that capitalism finds the key to diminish social solidarity. Immigrants are the first group to be excluded from the welfare state but in their exclusion, they create a path down which the state subsequently forces others. In both cases, the point of convergence is that only within cohesive social settings can substantial redistribution in the form of social solidarity be sustained. Another line of approach in the literature is represented by Keating (Keating 2009). Here the relationship of territory and social solidarity is examined in the light of globalization. This research indicates that contrary to those who claim that globalization leads to a race to the bottom in social solidarity, European governments (at least) “have not dismantled their welfare states in the face of market competition…” (Keating 2009). Rather they have reformed and reshaped welfare to respond to the new economic and external challenges. Gaston and Rajaguru (Gaston et al. 2013) examine from an economic perspective the relationship of migration and welfare examining data primarily from OECD sources. Their research indicates that immigration has a relatively modest effect on welfare state spending. While they note evidence of a disciplining effect of globalization on welfare spending they also find that states take compensatory steps some of which may involve limiting migration but all of which engage a defence of social solidarity on the basis of economic need. I want to test the arguments regarding the negative impacts of migration on social solidarity on the basis of our experience with social solidarity in the EU and at the EU level. When looking at the development of citizenship as an EU status and an EU status of rights of third country nationals, I am not sure that we see the correlation between the development of social rights as citizenship rights and narrow conceptions of social cohesion as Marshall envisaged them. One of two moves is necessary – either we must think differently about the relationship of citizenship and social rights in EU law or we must think differently about the content of social cohesion. Arising from the above – The research questions are the following: • What is the relationship of social solidarity in the form of entitlements to social benefits with citizenship of the European Union? • When there are changes in the contours of European citizenship are there compensating changes to access to social benefits? • To whom does ‘citizenship’ apply if acquisition of social benefits is a central criterion?

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2. Solidarity, Social Benefits and Social Cohesion In order to understand what we mean by solidarity, social benefits and social cohesion in EU law, I commenced by looking at where we use the concepts in the TEU and the TFEU. This turned out to be illuminating but not as I had expected. The first place where solidarity is used is in the TEU preamble: “DESIRING to deepen the solidarity between their peoples while respecting their history, their culture and their traditions” as an argument for the Treaty altogether. Article 2 TEU states: “[These] values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” Article 3 TEU which sets out the objectives of the Union is full of references to solidarity with a variety of contexts and meanings including: • The Union is required to “promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child”. • To “promote economic, social and territorial cohesion, and solidarity among Member States.” • “In its relations with the wider world, the Union shall uphold and promote … solidarity and mutual respect among peoples….” At this point the relationship between people as recipients of social solidarity ends. Article 21 TEU on the Union’s external action states that this must be based on “democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law” including in Article 24 “political solidarity among Member States”. Again in Article 24 the external action of the EU is entitled to Member States “loyalty and mutual solidarity” which includes working together to enhance “political solidarity” (again) in the same section. In abstaining from voting in Council, Member States must refrain from hindering action by other Member States in the spirit of “mutual solidarity” in Article 31 and again in Article 32. After that the TEU is silent on solidarity. The TFEU also uses the word solidarity starting with the preamble where it states that it is “INTENDING to confirm the solidarity which binds Europe and the overseas countries and desiring to ensure the development of their prosperity, in accordance with the principles of the Charter of the United Nations”. Solidarity then arises again in Article 67(2) relating to border controls, though the reference here is to common Member State action – “[the area of freedom, security and justice] shall ensure the absence of internal border controls for persons and shall

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frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals”. All EU policies and their implementation regarding border checks, asylum and immigration must, according to Article 80, “be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States”. Article 122 TFEU provides for solidarity among Member States where economic conditions require, with reference to energy and again in the section entitled Energy, (Article 194) solidarity among the Member States. Article 222 contains a solidarity clause which applies in respect of terrorist attacks: “The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster.” After this article no further reference is made to the concept. It seems that for the two key EU treaties, solidarity is a concept to which an appeal is made when there are issues of competence or worries about Member States’ commitment to the subject matter (see also Peers and Ward 2000). Solidarity, other than in the preamble and opening provisions does not apply to people. Social benefits make no appearance in the TEU or TFEU. Cohesion appears but only tangentially: in the preamble economic and social progress must take into account reinforced cohesion. The internal market must promote social and territorial cohesion in Article 3. In the political process, the President of the Council is required to promote cohesion in Article 15(6)(c). In the TFEU, social and territorial cohesion is the object of a number of provisions including Article 4 (a shared competence), an aspect of services of general economic interest (Article 14); a Cohesion Fund for transport infrastructure in Article 171. It merits its own title XVIII – Economic Social and Territorial Cohesion from Article 174 – 178 where “…the Union shall develop and pursue its actions leading to the strengthening of its economic, social and territorial cohesion” which concerns regional development. In Article 326, enhanced cooperation must not undermine economic, social or territorial cohesion after which the treaty falls silent on the subject. So far this investigation has not been very fruitful. The concepts of solidarity, social benefits and cohesion as they appear in the treaties give very little indication of people or how they are to work together. This is rather unsatisfactory, from my perspective of seeking to understand the relationship with citizenship. What is clear is that the treaties provide none. The trail becomes more promising when one approaches the EU Charter of Fundamental Rights. Here Title IV is entitled Solidarity and contains 12 articles: • Workers right to information and consultation within the undertaking; (Article 27)

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• • • • • • • • • • •

The right to collective bargaining and action; (Article 28) The right to access to placement services; (Article 29) Protection in the event of unjustified dismissal; (Article 30) Fair and just working conditions; (Article 31) A prohibition on child labour and protection of young people at work; (Article 32) The protection of family and professional life; (Article 33) Social security and social assistance; (Article 34)2 Health care; (Article 35) Access to services of a general economic interest; (Article 36) Environmental protection; (Article 37) and Consumer protection (Article 38).

This is quite a heterogeneous selection of subjects and issues to find in a section entitled solidarity. While most of the provisions are related to work and social justice, the final three seem less related to these subjects, particular environmental protection which is tied to the principle of sustainable development (rather than, for instance, health and safety at work) or consumer protection, that is not to say that workers may not also be consumers. However, at least solidarity includes social security and social assistance. Article 34 EUCFR has three parts (see footnote 3). In the first, the Union recognizes and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment. In the second, everyone residing legally and moving legally within the Union is entitled to social security benefits and social advantages; in the third, to combat social exclusion and poverty the Union recognizes and respects the right to social and housing assistance to ensure a decent existence of all those who lack sufficient resources. All three parts are limited to what is in accordance with Union law. For the moment, in all these references there is no limitation regarding citizenship. Indeed, in the second part of Article 34 the use of the word ‘everyone’ is 2 1. The Union recognises and respects the entitlement to social security and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Union law and national laws and practices. 2. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Community law and national laws and practices. 3. In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Community law and national laws and practices.

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designed to exclude a nationality limitation in general. From this first examination of the Treaties and their counterpart the Charter, while the Treaties set out many rights limited to citizens, none of these relate to solidarity or cohesion which provisions are mainly framed around acts of Member States towards one another. When one looks at the Charter one finds a whole chapter on solidarity but it is not related to citizenship status but applies to everyone or workers. So for the moment there is no intersection between solidarity and citizenship (also see Minderhoud 2009). If one moves then to EU law on social security, one finds oneself in a completely different landscape from that of Treaty and Charter references to solidarity or cohesion, fundamental rights or citizenship. Instead, one is in the area of workers’ rights. Article 48 TFEU provides for the coordination of social security as a fundamental component of free movement of workers. The argument goes that if workers’ social rights are not protected when they move from one state to another then the potential loss of protection will inhibit workers from using their free movement right. The initial implementing legislation for coordination of social security in fact predates the end of the transitional arrangements in respect of free movement of workers, an indication perhaps of the importance which the EU has given to this aspect. EU social security coordination is based on three main principles: (1) non discrimination between EU migrant workers and nationals of the host state as regards access to benefits; (2) aggregation of contributions made in different member states for the purposes of calculating entitlements to benefits; (3) the right to export benefits (European Commission 2003). The personal scope of the Treaty provision is now citizens of the Union who are affiliated to a Member State’s social security system and have exercised their free movement right. The persons covered by the current Regulation, 883/2004 are set out in Article 2: “1. This Regulation shall apply to nationals of a Member State, stateless persons and refugees residing in a Member State who are or have been subject to the legislation of one or more Member States, as well as to the members of their families and to their survivors. 2. It shall also apply to the survivors of persons who have been subject to the legislation of one or more Member States, irrespective of the nationality of such persons, where their survivors are nationals of a Member State or stateless persons or refugees residing in one of the Member States.”

Citizenship and social protection have finally collided in EU law but in a rather odd manner. The stateless and refugees are included in the scope (Jorens 1998). The right to social benefits under the Regulation is premised exclusively on the fact of the individual having moved. A person who has not moved is excluded from the protection of the Regulation. This was the case in the CJEU judgment in

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C-95/99 Khalil where the Court accepted that refugees and stateless persons are within the scope of the social security regulation (at that time Regulation 1408/71) because they are specifically included in the personal scope, but could not benefit from the protections of the regulation (unless they had been affiliated to the social security system of more than one Member State which normally means exercising a free movement right): “In those circumstances, the answer to the second question in Cases C-95/99 to C-98/99 and C-180/99 must be that workers who are stateless persons or refugees residing in the territory of one of the Member States, and members of their families, cannot rely on the rights conferred by Regulation No 1408/71 where they are in a situation which is confined in all respects within that one Member State.” Social protection in EU law is only available to people who move across EU Member State borders and affiliate themselves to more than one state scheme. The main group of people affected is EU citizens and their family members of any nationality as only they had an EU right of free movement until the entry into force of Directive 2003/109 on third country nationals (see below). So EU citizens and their families acquire EU social security coordination rights by moving, becoming immigrants in any other terms. The right to social security includes: • • • • • • • • • •

Sickness benefits; Maternity and equivalent paternity benefits; Invalidity benefits; Old-age benefits; Survivors’ benefits; Benefits in respect of accidents at work and occupational diseases; Death grants; Unemployment benefits; Pre-retirement benefits; Family benefits (Article 3 Regulation 883/2004).

It is also by moving to exercise economic rights in another Member State (expressly as workers) that EU citizens acquire the right to equal treatment in social advantages (Article 7(2) Regulation 492/2011). In this case it is their status as worker which is key. What they get in the form of social advantages is everything which the coordination of social security systems (Regulation 883/2004) excludes because it is classified as social assistance. What this means as regards the convergence of social solidarity and EU citizenship is once again somewhat elusive. Yes, citizens have free movement rights across the Member States but their capacity as workers gives them the most comprehensive right to social solidarity. While under the complex mechanisms of Regulation 883/2004 an EU citizen can be entitled to coordination of social security without having worked in more than one Member State but has been affiliated to more than one social

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security system, the simplest route to equality is via worker status. Nonetheless, EU citizens benefit as a result of that status which is a prerequisite to having worker status.3 3. Changing EU Citizenship and Accessing Social Benefits Many things took place in the EU in 2004 not least the enlargement of the Union from 15 Member States to 25. Ten states in the Baltic, Central and Eastern Europe and two Mediterranean islands became EU Member States on 1 May 2004. Eight of the then new Member States had lower GDP levels than most of the existing Member States (the exceptions were the two Mediterranean islands). The population of the EU increased on that day by more than a third. Many people, nationals of the EU 10 Member States, who the day before (30 April 2004) were immigrants or irregular immigrants in the EU 15 the following day (1 May 2004) become EU citizens entitled to the presumption of a residence right. My question in this section is what did this mean for social solidarity. If the Freeman et al and Schierup et al arguments are correct and there is a linear relationship between social cohesion and social solidarity then the arrival of ten Member States most of which were only fairly recent democracies and were still experimenting with market economies, should have presented a monumental challenge to social cohesion and blocked any development of solidarity. In fact the reverse occurs – just before the enlargement date the 15 Member States adopted: 1. Directive 2004/38 (on 29 April 2004 – just under the wire); 2. Regulation 883/2004 (also on 29 April 2004). Starting with Directive 2004/38, it is entitled: on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. It is ironic that it was adopted two days before the transformation of the nationals of the EU 10 into citizens. In comparison with its predecessors, the directive is quite revolutionary as regards the right to social benefits for migrant EU nationals. Article 16 creates a new status – that of permanent residence which automatically accrues to any EU national who has lived for five years  in a host Member State exercising Treaty rights (ie as a worker, self employed  person, student or economically inactive but self sufficient person). Article 24(2) makes it clear that any EU citizen with permanent residence has access to all social assistance and other social benefits in the host Member State.

3 C-369/90 Ayowemi [1998] ECR I-6781.

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In conjunction with Article 14(3), this means that there must be complete social solidarity with all EU nationals (and their third country national family members) who have permanent residence. While EU nationals have a right of residence in the host Member State from arrival until they have completed five years, Article 14(3) allows for the possibility of expulsion where the individual is reliant on social assistance (“An expulsion measure shall not be the automatic consequence of a Union citizen’s or his or her family member’s recourse to the social assistance system of the host Member State”). After the five year point, Member States no longer have this option (Minderhoud 2010). The convergence of a strengthening of social solidarity with enormous new strains on EU social cohesion across the Member States (through enlargement) indicates that the two are not necessarily closely related. Turning briefly to the Member State practices, one may ask the question whether states actually provide social assistance benefits to EU permanent residents, particularly if they are from Member States which entered the EU in 2004. The answer is partial. The possibility of limiting free movement of workers (but not other citizens) from the EU8 (all the 2004 states except the islands) for a maximum period of seven years also permitted those Member States applying the restrictions to limit access to social assistance. By the fifth year of the transitional period, all Member States but two (Austria and Germany) had abandoned the transitional restrictions (the UK position was muddled and inconsistent – on the one hand the government claimed not to have applied any transitional restrictions and on the other, a few years later in 2009, sought to extend, exceptionally the transitional restrictions). Some Member States argued that periods of residence before an individual becomes a citizen of the Union do not count towards the five year period for permanent residence. The CJEU rejected this argument.4 Another argument regarding permanent residence has been that time only starts to run from the transposition date of the Directive (1 May 2006) so that periods of residence before that date do not count. When the question was referred to the CJEU by a British court, only two Member States intervened – Denmark and Portugal – and of the two only Denmark supported the UK’s position that the transposition date is the relevant one. The CJEU held that the five year period is not qualified by the directive’s entry into force. This would indicate that the other Member States were not concerned about the issue. On the ground, are EU nationals with permanent residence able to access social assistance in host Member States? The answer to this question appears to be positive on the basis of the information available from non-governmental

4 C-424/10 Ziolkowski.

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organisations assisting EU nationals and their third country family members whose position is assimilated to that of their EU principal.5 Turning then to Regulation 883/2004, it is entitled: on the coordination of social security systems. Its objective, according to its preamble is to modernise and simplify the coordination system in order to help achieve the EU’s aim of free movement of persons. It replaced Regulation 1408/71 and although adopted on 29 April 2004, it entered into force only on 1 May 2010. The three fundamental organising principles of the Regulation remain non-discrimination on the basis of nationality, aggregation of contributions made in different Member States for the purpose of calculating benefits and the right to export benefits anywhere in the EU. To all three principles there are some exceptions but they remain such. As the explanatory memorandum to the implementing regulation states,6 the new regulation has been extended to concern all EU citizens including the non-working population. This is a major achievement of the Regulation, noted in all commentary, sometimes with a certain degree of concern.7 This is far from evidence of a weakening of the Member States commitment to social solidarity in the event of substantial challenge to social cohesion. It in fact evidences the opposite. While the regulation needed six years to enter into force its consequences are profound. For instance, a Slovak worker with 20 years of pension contributions at the Slovak rate who moves to work in the Netherlands for five years and then retires is entitled to the aggregation of his or her pension contributions in both states. This is certainly an indication that solidarity in the EU has not been diminished by enlargement. 4. EU Citizenship and Social Benefits In this final section, I would like to return to T H Marshall and his approach to citizenship. Until now in this chapter, I have accepted without question the Member States’ monopoly over the allocation of citizenship. Here I will question this taking as a starting place the contention that citizenship describes a process whereby people acquire bundles of rights vis-à-vis the state and society. From this approach, one could say that states allocate citizenship in recognition that people have acquired rights rather than the other way around. If one takes this approach to EU citizenship, does the acquisition of entitlements to social solidarity affect the claims people can make to citizenship? To what extent can third country

5 See for instance the AIRE Centre. 6 COM(2006)16. 7 See House of Commons Select Committee Report.

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nationals in the EU be considered to share EU citizenship with nationals of the Member States on the basis of these criteria? This examination starts with Directive 2003/109 on long term resident third country nationals.8 This directive had to be transposed in the Member States on 23 January 2006. The European Commission published on 28 September 2011 its report on transposition of the directive.9 As the Commission states, the objective of the directive is to grant a secure residence status to long term resident third country nationals and a uniform set of rights which are as close as possible to those enjoyed by citizens of the EU. The criteria for acquiring the status is that a third country must have resided lawfully in a Member State for five years, have comprehensive health insurance and an income sufficient to support him or herself and any family members. An integration requirement may be applied by the Member States (see below). Denmark, Ireland and the UK do not participate in this directive. The directive affects more than half a million third country nationals in the Union. It has been extended to beneficiaries of international protection, thus enlarging its scope substantially.10 The Commission notes that it only has difficulties with five Member States11 regarding the scope of the directive. The five have adopted implementing legislation which in the Commission’s view unduly labels as temporary and therefore outside the scope of the directive third country nationals who are entitled to its protection, including artists, ministers of religion, low skilled migrants and some others. The acquisition of an EU residence status which is equivalent to permanent residence for EU citizens, according to the directive depends on five years lawful residence in a Member State (Article 4). According to the Commission, five Member States have transposed the notion of lawful residence in a manner inconsistent with the directive.12 In each of those five, the concept is too narrow and artificially excludes third country nationals who are the proper beneficiaries of the directive. The second criterion to acquire the status is that the individual must have sufficient resources and sickness insurance. The income requirement varies from Member State to Member State but the Commission found that as a rule it is set by reference to the level of social assistance, minimum living standards or minimum wages or pensions. Only one Member State’s practice regarding the stability of income raised questions for the Commission on compatibility with the Directive.13 But many Member States are too restrictive in the Commission’s 8 Denmark, Ireland and the UK do not participate in this Directive. 9 COM(2011)585. 10 Directive 2011/51. 11 Austria, Cyprus, Greece, Italy and Poland. 12 France, Italy, Luxembourg, Sweden and Slovakia. 13 Cyprus.

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opinion by requiring individuals to have income of their own rather than sharing income across family members.14 The relationship of the acquisition of permanent residence to the possession of stable resources is problematic. It places third country nationals in a disadvantageous position in comparison with EU citizens who acquire permanent residence after five years residence in the host Member State even if they have inadequate resources and claim social benefits (as long as they have retained the status of worker). However, once acquired, the status of permanent residence, whether for the third country national or the EU citizen, opens the gates of solidarity and access to social benefits on the basis of equality with nationals of the host Member State. I will return to this shortly. Article 5(2) of the directive was much criticised at the time of adoption of the directive as it permits Member States to add a criterion for the acquisition of permanent residence that the individual fulfils integration conditions. Although at the time of adoption few Member States had such legislation (Carrera 2009) now 14 Member States do.15 However, the integration conditions appear to include a wide variety of things, not just language proficiency but knowledge of the host society, history, legal order etc. The Commission expresses concern regarding the proportionality of some of the requirements in light of the objective of achieving rights for third country nationals. This argument has been much developed in the legal literature as well (Carrera 2009; Van Oers 2010; Acosta 2011). It is now for the EU’s Court of Justice to determine what proportionality means in this context.16 The Commission notes that the acquisition of the status is distinct from the permit which evidences that acquisition. Not all Member States make this important distinction in their implementation.17 Returning, then to access to social solidarity, Article 11 of the directive requires equal treatment of long term resident third country nationals with nationals of the host state in a wide variety of areas one of which is access to social protection. However Article 11(4) permits Member States to limit that equality to core benefits which are defined in the preamble as minimum income support, assistance in case of illness, pregnancy, parental assistance and long term care. Only one Member State18 has taken advantage of this possibility to limit access to core benefits, indicating that the others accept full equality in social protection for those protected by the directive. Once again, we see that social solidarity is not diminished when third country nationals are granted access. The fact that the directive 14 Bulgaria, Estonia, Greece, Malta, Poland and Romania. 15 Austria, the Czech Republic, Germany, Estonia, Greece, France, Italy, Lithuania, Luxembourg, Latvia, Malta, the Netherlands, Portugal and Romania. 16 C-502/10 Singh. 17 France, Latvia, the Netherlands, Portugal and Sweden. 18 Greece.

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expressly permits such a move indicates that in the negotiations some Member States had doubts or concerns about their capacity to deliver social solidarity to third country nationals. However, in implementation, those doubts disappeared except in one Member State. One could argue that half a million people are not a particular strain to the social benefits system of an EU of 501 million, which is undoubtedly true. But the symbolic power of inclusion or exclusion of third country nationals must not be underestimated. The relationship of the status under the directive and national residence titles is also addressed by the Commission. The issue is whether Member States can make third country nationals who qualify choose between the EU status or a national status. The problem is the possibility of instrumentalisation by Member States of national statuses where they can change the content of entitlements or withdraw them according to national law and are not bound by EU law. Thus flexibility of national statuses could be an incentive in some Member States to seek to discourage third country nationals who qualify for the EU status not to do so. In the opinion of the Commission while Member States are entitled to retain national statuses which they consider more favourable, they cannot prevent or discourage a third country national from also obtaining the EU status. The holding of both a national status and an EU status is not inconsistent with the directive but in fact necessary where Member States continue to issue national permits. 14 Member States require third country nationals to choose between either a national permit or an EU status.19 This aspect evidences the mirror relationship of long term resident status with EU citizenship. In both cases, the status is acquired by an individual on the basis of national law. But once the status is conferred and its content is controlled by the EU. Member States cannot change the content of the EU status without convincing all the EU institutions and the Member States to agree to amend the EU measure. However, hereafter, the mirror image changes. As is apparent from the CJEU decision in Rottmann20 a Member State, by withdrawing national citizenship deprives a person also of EU citizenship. The grounds on which a state can deprive one of its nationals of citizenship remain national (with only the slightest of possibility of EU interference). However, for a long term resident third country national, a Member State can withdraw the national permanent residence permit but that has no effect on the validity of the EU long term residence permit. The later can only be withdrawn according to the provisions of the directive.

19 Austria, Belgium, Germany, Estonia, Greece, Finland, Italy, Lithuania, Luxembourg, Poland, Portugal, Romania, Slovenia and Slovakia. 20 C-135/08 Rottmann [2010] ECR I-01449.

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The directive provides for the circumstances under which a holder of a long term residence permit has the right to move to another Member State to live and carry out activities. This is an important right as it is by being affiliated with the social security system of more than one Member State that third country nationals can come within the scope of Regulation 883/2004 by virtue of that regulation’s extension to them by Regulation 987/2009. The Commission recognises that the implementation of this mobility right is among the least satisfactory of all the provisions of the directive. It singles out six Member States where the practice is particularly good facilitating third country nationals with a permit issued by another Member State access to their territory and labour market.21 What makes these states good examples is that they do not apply a labour market test and some of them do not require work permits at all for these people. Generally, however, it is clear from the report that third country nationals with the EU long term resident status do not have unfettered access to the EU labour market beyond that of the Member State where they obtained their permit. The relationship of movement around the EU for long term resident third country nationals and social solidarity is not clear. Most Member States are silent on this issue, leaving its organisation to the social security coordination system. However, one Member State has transposed the provision so as to withdraw a residence permit issued to a third country national with a long term residence permit from another Member State who has moved to that state on the grounds that the individual has applied for social assistance.22 What conclusions can one draw from the current status of long term resident third country nationals in the EU? First, the legislator has chosen expressly to aim to provide them with near equality with EU citizens. Secondly, in putting that objective into practice, the directive includes the right to social protection for these third country nationals thus drawing the line of solidarity around them rather than excluding them. Thirdly, in implementing the directive all but one Member State include these third country nationals without reservation in their social protection schemes. Thus they are inside the realm of social protection. However, when it comes to showing solidarity with third country nationals who have acquired their long term residence status in another Member State, there appears to be much less enthusiasm. Many Member States appear to place substantial obstacles in the way of these third country nationals exercising mobility  rights for the purpose of work. But only one Member State has sought to exclude migrant long term resident permit holders from social protection by

21 Belgium, Cyprus, Hungary, Latvia, Poland, Portugal and Sweden. 22 The Netherlands.

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threatening them with expulsion if they seek benefits. In so far as inclusion within the solidarity mechanism of social protection is a right which points in the direction of citizenship, then long term resident third country nationals in the EU are a group in the process of acquiring bundles of citizenship rights. 5. Conclusions In this chapter I have examined the relationship of European citizenship and social solidarity. My main question is whether enlarging the group of people entitled to social benefits results in a diminution of social rights – the solidaritycohesion question. I started by searching the EU treaties to understand the meaning of solidarity and cohesion. Apart from the Charter of Fundamental Rights, this was a rather unsatisfactory exercise. I then examined EU secondary legislation on the coordination of social security and free movement of EU nationals in light of the EU’s enlargement in 2004 (the addition of 10 new Member States). I found that instead of causing a dilution of social rights in EU law, the arrival of many millions of new EU citizens with the right to move and reside across the EU (even bearing in mind the five-seven year delay on workers rights) coincided with a dramatic strengthening of both social rights for migrant workers and coordination of social security. Finally I examined whether third country nationals, when acquiring an EU residence right also gain access to social benefits. Here again I found a positive answer with few hesitations in a couple of Member States. My conclusion then is that in the EU the dilution of social cohesion is entirely consistent the widening of social protection and solidarity. There is no apparent correlation between the two policy fields either in law or practice on this point. In the EU, the theory that there is a link between migration and solidarity which means that immigration works as an inhibiting or debasing factor for social protection does not correspond to the reality of the past ten years. Returning then to the research questions I posed at the outset, the relationship between social solidarity in the form of social benefits and citizenship of the EU is one of enhancement. The big jump in extending social solidarity in the the EU in 2004 was taken exactly at the time when citizenship of the Union was extended to a third more people, most of whom living in countries where the GDP at the time (and indeed including in 2014) is substantially lower per capita than the pre 2004 Member States. The 2009 enlargement only accentuated this effect. While in a small number of Member States (Denmark, Netherlands and the UK in particular but also in Austria, Belgium and to some extent Germany) there have been populist concerns about EU citizens’ and their wide access to social benefits, the majority of Member States remain fairly unconcerned and deaf to suggestions of change.

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As regards my second question – the change to the contours of EU citizenship and the compensating changes to access to social benefits – the facts’ point exclusively in one direction, to the widening of social benefits just at the moment that the widening of EU citizenship granted rights to move and exercise economic activities was granted to a large number of poor people. The sequence of events points to a concern by the EU that poor EU citizens who move to seek to improve their lives must be able to benefit from access to social benefits in the destination States where they go. Free movement of persons does not, it appears in law at least, seems to be reserved for the well heeled but is also specifically and intentionally available to those who are poor and trying to improve their life chances by a change of states. The critical date is 1 May 2004 (followed by the next enlargement on 1 January 2007 of Bulgaria and Romania and 1 July 2013 to Croatia). On the day before the enlargement the then EU Member States chose to widen and extend dramatically the scope and availability of social solidarity both in the form of social security and social assistance not least in anticipation of the arrival of the citizens of the acceding Member States. The renewal and updating of Regulation 492/2011 (formerly Regulation 1612/68) which includes a very important right to equality in social benefits for all workers, which took place in 2011 did not result in any diminution of the right to equality in social solidarity for workers from Member States other than the host one. This decision to maintain the right to equality in this field also indicates that the Member States were in favour of EU citizenship including a strong element of equality of treatment as regards social solidarity. My final question was to whom does ‘citizenship’ apply if acquisition of social benefits is a central criterion. Here I return to the work of Isin and others (Isin and Turner 2002), if the defining feature of citizenship is the enactment of rights then the EU, by including long term resident third country nationals within the class of persons to whom equality in the field of social solidarity applies, is granting citizenship-type rights to third country nationals. The defining feature of the acquisition of full social solidarity whether for migrant EU citizens or third country nationals is five years’ lawful residence on the territory of the host Member State. The equivalence of the central criterion for both those formally designated as EU citizens and those who are third country nationals is the key feature. The EU and its Member States through their choices of legislation, clearly act on the basis that social solidarity on the basis of equality with nationals of the state is an entitlement of everyone who resides lawfully for five years on the territory. As I have set out above, yes, there are contrary movements – some Member States seek to diminish the class of third country nationals with long term residence status by applying difficult integration tests to the acquisition of the status. But the majority do not. The conclusions which a careful analysis of the EU legislation reveal do not correspond at all with the vigour of the polemic debate in some rather noisy

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Member States and the response of some parts of the European Commission may be less robust than might have been expected.23 Taking account of the developments in social solidarity at the EU level and free movement rights of citizens of the Union there is a clear picture of widening and deepening of rights consistently with no reversal of policy at any time. This is clearly inconsistent with any theory which purports that widening the group of people entitled to social benefits (and moving beyond the class of nationals) inevitably results in a degradation of social solidarity. In the EU at least, over the period 1971–2013 every step has refuted this theory. Bibliography Acosta, D. (2010), Integration, Leiden: Martinus Nijhoff. Bulmer, M. and A. Rees (1996), Citizenship Today: The Contemporary relevance of T H Marshall, London: UCL Press. Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, Modernising Social Protection for More and Better Jobs a comprehensive approach contributing to making work pay, COM/2003/0842 final (Commission 2003b). European Commission, Free movement of Workers and Coordination of Social Security Systems, Proceedings Conference June 2003. Freeman, G.P. (1986), “Migration and the Political Economy of the Welfare State”, Annals of the American Academy of Political and Social Science, Vol. 485: From Foreign Workers to Settlers? Transnational Migration and the Emergence of New Minorities (May), pp. 51–63. Gaston, N. and G. Rajaguru (2013), “International migration and the welfare state revisited”, European Journal of Political Economy 29, pp. 90–101. Groenendijk, K. (2008), Local Voting Rights for Non-Nationals in Europe: What we know and What we need to learn, Brussels: Migration Policy Institute, http://www.migrationpolicy.org/transatlantic/docs/Groenendijk-FINAL.pdf, visited 4 November 2011. Isin, E. & B.S. Turner (2002), Handbook of Citizenship Studies, London: Sage. Jorens, Y. (1998), European Social Security Law and Third Country Nationals, Brussels: Die Keure/la Charte. Lyon-Caen, A. (1994), “Social Security and the Principle of Equal treatment in the EC Treaty and Regulation No 1408/71”, in European Commission, Social Security

23 http://www.euractiv.com/socialeurope/commission-gets-cold-feet-push-l-news-519366.

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in Europe: Equality between Nationals and non-Nationals European Conference report, Oporto November 1994. M Keating, M. (2009), “Social Citizenship, solidarity and welfare in regionalized and plurinational states”, Citizenship Studies 13:5, p. 501–513. Macpherson, C.B. (1992), The Real World of Democracy, Toronto: Anansi Press. Marshall, T.H. (1950), Citizenship and social class: And other essays, Cambridge: University Press. Minderhoud, P.E. (2008), “Social Security Rights of Third Country Nationals under EU Law and under the European Convention of Human Rights”, in A. Böcker, T. Havinga, P. Minderhoud, H. van de Put, L. de Groot-van Leeuwen, B. de Hart, A. Jettinghoff & K. Zwaan (Eds), Migratierecht en rechtssociologie, gebundeld in Kees’ studies. Migration Law and Sociology of Law, Collected Essays in Honour of Kees Groenendijk, Nijmegen: Wolf Legal Publishers, pp. 239–248. Minderhoud, P.E. (2009), “Access to Social Assistance Benefits and Directive 2004/38”, in E. Guild, C.A. Groenendijk & S. Carrera (Eds), Illiberal Liberal States. Immigration, Citizenship and Integration in the EU, Farnham: Ashgate, pp. 221–241. Minderhoud, P.E. (2010), “Social Security Rights of Third Country Nationals. Developments in EU Legislation and in the Case Law of the European Court of Human Rights”, Journal of Social Security Law, 17(4), 227–239. Oers, R. van, E. Ersbøll, D. Kostakopoulou (Eds) (2010), A Re-definition of Belonging? Language and integration tests in Europe, Leiden/Boston: Martinus Nijhoff Publishers. Paskalia, V. (2007), Free Movement, Social Security and gender in the EU, Oxford: Hart. Peers, S. & A. Ward, The EU Charter of Fundamental Rights Hart, Oxford: 2000. Schierup, C-U., P. Hansen & S. Castles (2006), Migration, Citizenship and the European Welfare State, Oxford: OUP.

Directive 2004/38 and Access to Social Assistance Benefits Paul Minderhoud* 1. Introduction This chapter focuses on the issues which have been raised regarding the implementation of Directive 2004/38 in the light of access to social assistance benefits for EU citizens in other Member States. This Directive regulates the entry and residence of EU citizens and their family members in another Member State. Directive 2004/38 makes a distinction between residence up to three months, residence from three months to five years and residence for longer than five years. Different preconditions for residence apply in each of these three categories. Furthermore, the treatment of economically inactive persons differs from the treatment of economically active persons. For each category there are different rules regarding access to social assistance benefits.1 The Directive gives all EU citizens a right to entry to any EU state without any conditions or formalities other than the requirement to hold a valid identity card or passport for three months (Article 6). It is, however, explicitly stated in Article 24(2) that the host Member State shall not be obliged to confer any entitlement to social assistance during these first three months of residence. According to Article 7(1) Directive 2004/38 Union citizens only have the right of residence on the territory of another Member State for a period of longer than three months if they (as far as relevant for this chapter): 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

* An earlier version of this chapter was published in Journal of Social Security Law 2011, issue 4, pp. 153–166. 1 Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. OJ L 158/77. The transposition period of the Directive ended on 30 April 2006. This Directive amends Regulation (EEC) No 1612/68 and repeals Directives 64/221/EEC, 68/360/EEC, 72/194/ EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/ EEC.

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during their period of residence and have comprehensive sickness insurance cover in the host Member State.2 Union citizens who have resided legally for a continuous period of five years in  the host Member State shall have the right of permanent residence there.3 This  means that after five years, a right of permanent residence is given to Union  citizens (and their family members), without any further conditions, even if these persons do not have sufficient resources or comprehensive sickness insurance cover. 2. Entitlement to Social Assistance Benefits? A big problem is the ambiguity of the wording of Directive 2004/38 regarding entitlement to social assistance benefits. On the one hand the Directive only allows inactive persons to use their free movement rights if they have the necessary resources. On the other hand does it include all kinds of signals that when these inactive persons apply for a social assistance benefit, this should be granted and this will not mean automatic expulsion of these inactive EU citizens. Lenaerts and Heremans have spoken in this context of a balancing act between the interest awarding social rights as a consequence of the right of free movement against the interest of safeguarding the national welfare systems.4 Articles 14(1) and (2) of Directive 2004/38 regulate the retention of the right of residence. On the basis of Article 14(1) ‘Union citizens and their family members shall have the right of residence provided for in Article 6 (right of residence up to three months), as long as they do not become an unreasonable burden on the social assistance system of the host Member State’. Article 14(2) reads: ‘Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein’. This wording seems to imply that an appeal to social assistance will lead to an ending of the right of residence for those inactive persons who stay in another Member State for less than five years. But this is not the case, because according to Article 14(3):

2 There is a section c) regarding students I will not deal with here. 3 See Article 16(1) Directive 2004/38. 4 Koen Lenaerts & Tinne Heremans (2006), “Contours of a European Social Union in the Case-Law of the European Court of Justice”, European Constitutional Law Review, pp. 101–115.

Directive 2004/38 and Access to Social Assistance Benefits  211 ‘An expulsion measure shall not be the automatic consequence of a Union citizen’s or his or her family member’s recourse to the social assistance system of the host Member State’.

‘Unreasonable burden’ is not further defined in Article 14, but is described in Recital 16 of the Preamble: ‘As long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance system of the host Member State they should not be expelled. Therefore, an expulsion measure should not be the automatic consequence of recourse to the social assistance system. The host Member State should examine whether it is a case of temporary difficulties and take into account the duration of residence, the personal circumstances and the amount of aid granted in order to consider whether the beneficiary has become an unreasonable burden on its social assistance system and to proceed to his expulsion. In no case should an expulsion measure be adopted against workers, self-employed persons or job-seekers as defined by the Court of Justice save on grounds of public policy or public security.’

The abovementioned ambiguity of Directive 2004/38 can also be found in Article 24. On the one hand, Article 24, paragraph 1 provides for equal treatment for all Union citizens (and their family members) residing on the basis of this Directive in the territory of the host Member State. But, on the other hand, according to paragraph 2 of this Article the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or for job-seekers looking for employment nor to grant maintenance aid for students, who have no right of permanent residence yet. In an attempt to clarify several aspects of Directive 2004/38 the former Directorate-General of Justice, Freedom and Security published in 2007 a ‘Guide on how to get the best out of Directive 2004/38/EC’.5 This guide states that: “If your right to reside is conditional upon having sufficient resources not to become a burden on the social assistance system of the host Member State during the period of residence (i.e. when you study or are an inactive person there), it might be terminated once you become an unreasonable burden on the social assistance system.  This does not mean that you cannot apply for social assistance there when you are in need. However, in this case the host Member State is entitled to examine whether it is a case of temporary difficulties and after taking into account the duration of your residence, the personal circumstances and the amount of aid granted, it may consider that you have become an unreasonable burden on its social assistance system and proceed to your expulsion. An expulsion measure can in no case be the automatic consequence of recourse to the social assistance system.  Should you be expelled on these grounds, the host Member State cannot impose a ban on the entry and you can return back at any time and enjoy the right to reside if you meet the conditions described above. 5 See: http://ec.europa.eu/justice/citizen/files/guide_2004_38_ec_en.pdf.

212  Paul Minderhoud  This limitation does not apply to categories where the right to reside is not subject to the condition of sufficient resources, such as workers or self-employed persons.”

In July 2009 the Commission published a Communication on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.6 It repeated that in assessing whether an individual whose resources can no longer be regarded as sufficient and who was granted the minimum subsistence benefit is or has become an unreasonable burden, the authorities of the Member States must carry out a proportionality test. To this end, Member States may develop for example a points-based scheme as an indicator. Recital 16 of Directive 2004/38 provides three sets of criteria for this purpose: 1. Duration (For how long is the benefit being granted? Is it likely that the EU citizen will get out of the safety net soon? How long has the residence lasted in the host Member State). 2. Personal situation (What is the level of connection of the EU citizen and his/ her family members with the society of the host Member State? Are there any considerations pertaining to age, state of health, family and economic situation that need to be taken into account?). 3. Amount (Total amount of aid granted? Does the EU citizen have a history of relying heavily on social assistance? Does the EU citizen have a history of contributing to the financing of social assistance in the host Member State?).  The Communication emphasizes that as long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance system of the host Member States, they cannot be expelled for this reason. Although this Guide and Communication were meant for clarification, it still leaves discretion for the Member States to define the concept of unreasonable burden. Unsolved questions seem to be: when is it a case of temporary difficulties, how long should the duration of residence have been, which personal circumstances should be relevant and how much aid granted is too much? 3. Transposition Issues of the Directive Directive 2004/38 has had a somewhat paradoxical career in this field. As I will discuss below, it has been claimed as the catalyst for reduction of EU citizens’ social rights as well as a clarification of entitlements. An important issue is that in some Member States the implementation of Directive 2004/38 has also been used 6 COM(2009)313.

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to limit the access of job-seekers to job seeking allowances. Another issue of interest is the determination of when a Union citizen becomes ‘an unreasonable burden’ in various Member States.7 3.1. Social Assistance During the First Three Months of Residence In many Member States the transposition of Directive 2004/38 was used as an occasion to introduce clauses in their social law explicitly excluding EU nationals and their family members from entitlement to public assistance during the first three months of residence in another Member State, referring to Article 24(2) of the Directive. A good example in this respect is The Netherlands. At the occasion of the transposition of Directive 2004/38 the Dutch government changed the Social Assistance Act and introduced legislation excluding all EU citizens explicitly from social assistance benefits during the first three months of their stay. Under the old legislation these EU citizens were formally entitled to social assistance from the moment they entered The Netherlands. However, an appeal on social assistance would lead immediately to a termination of their residence status and consequently to a loss of social assistance entitlement.8 To prevent discrimination the Dutch government took the opportunity of this change of legislation to introduce in the Social Assistance Act the condition of habitual residence for the entitlement of social assistance for all claimants (Dutch or non-Dutch). Also Dutch citizens, who came from abroad would not be entitled any more to social assistance for at least the first three months of their residence because they would not be seen as habitual residents immediately. This introduction was challenged in the First Chamber, because it was seen in breach with the Dutch Constitution, which entitles in Article 20(3) every Dutch citizen to social assistance, being an habitual resident or not. After the State Secretary of Social Affairs had assured the First Chamber that this change of legislation did not mean that there was a waiting period of three months for Dutch citizens, who came from abroad to The Netherlands, the Bill was approved.9 This solution raises the question whether it is possible in the light of Article 18 TFEU to impose this three months waiting period on EU citizens or not. 7 This information is for a large part based on the national reports which have been written for the European Network on Free Movement of Workers, which is coordinated by the Centre for Migration Law in Nijmegen. The reports are available at the website of the European Commission http://ec.europa.eu/social/main.jsp?catId=475&langId=en and of the Centre for Migration Law: http://www.ru.nl/law/cmr/projects/fmow-2/national-reports-fmw/. 8 Job-seekers do not have access to social assistance benefits during the time they are looking for a job in The Netherlands. 9 Handelingen EK 2005–2006, nr. 36, p. 1747–1753, Staatsblad 2006, 373 and 456.

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To complicate matters even further, according to the Directive it is not forbidden for Member States to provide social assistance in these first three months of residence. Recital 21 of the Preamble states that: ‘It should be left to the host Member State to decide whether it will grant social assistance during the first three months of residence, or for a longer period in the case of job-seekers, to Union citizens other than those who are workers or self-employed persons or who retain that status or their family members, or maintenance assistance for studies, including vocational training, prior to acquisition of the right of permanent residence, to these same persons’.

This recital has led to discussion in Sweden how to apply the derogation of Article 24(2) Directive 2004/38. Sweden has used this discretion in the end to give EU citizens during the first three months of residence access to essential healthcare and working allowances in strictly regulated cases. 3.2. No Access to Social Assistance Benefits for Job-Seekers? In some other Member States the implementation of Directive 2004/38 has been used to limit the access of job-seekers to job seeking allowances. A good example is Germany where an amendment of the Social Code II10 (the Second Book of the Social Code) changed the rules on entitlement to social benefits as a job-seeker by making use of the restrictions of Directive 2004/38 under Art. 24(2). According to this amendment all foreigners, including EU citizens whose right of residence derives exclusively from the purpose of looking for employment, are not entitled to job-seeker allowances.11 According to the drafting history of this new provision,12 the legislator wanted deliberately to exclude access to social benefits for foreigners entering Germany for the purpose of seeking employment. Contrary to the previous less restrictive provisions which granted an entitlement to every foreigner on the basis of ordinary residence in Germany the access to social benefits under the Social Code II 10 Law of 24 March 2006, BGBl. I, p. 558. 11 Section 7(1) Social Code II reads in German: Leistungen nach diesem Buch erhalten Personen, die 1. das 15. Lebensjahr vollendet und das 65. Lebensjahr noch nicht vollendet haben, 2. erwerbsfähig sind, 3. hilfebedürftig sind und 4. ihren gewöhnlichen Aufenthalt in der Bundesrepublik Deutschland haben (erwerbsfähige Hilfebedürftige).  Ausgenommen sind Ausländer, deren Aufenthaltsrecht sich allein aus dem Zweck der Arbeitssuche ergibt, ihre Familienangehörigen sowie Leistungsberechtigte nach § 1 des Asylbewerberleistungsgesetzes. Aufenthaltsrechtliche Bestimmungen bleiben unberührt. 12 Cf. Bundesratsdrucksache 550/05; Bundestagsdrucksache 16 (11), 80.

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(Arbeitslosengeld II: job-seekers’ allowances) are excluded explicitly even beyond the time period of three months in accordance with Article 24, paragraph 2 of Directive 2004/38. This change of legislation has been challenged before several German social courts with different results. Early 2008 the social court of Nürnberg held the opinion that EU-citizens, whose right of residence in Germany derives only from the fact that they are job-seekers, should have no entitlement to any social assistance at all. To get more clarity on this issue the court referred to the Court of Justice of the European Union for a preliminary ruling. The answer of the CJEU came in the Vatsouras and Koupatantze13 decision in which the CJEU examines the possibility of refusing a social assistance benefit to job-seekers who do not have the status of workers. In that regard, it noted that, in view of the establishment of citizenship of the Union, job-seekers enjoy the right to equal treatment for the purpose of claiming a benefit of a financial nature intended to facilitate access to the labour market. A Member State may, however, legitimately grant such an allowance only to job-seekers who have a real link with the labour market of that State. The existence of such a link can be determined, in particular, by establishing that the person concerned has, for a reasonable period, in fact genuinely sought work in the Member State in question. It follows that citizens of the Union who have established real links with the labour market of another Member State can enjoy a benefit of a financial nature which is, independently of its status under national law, intended to facilitate access to the labour market. It is for the competent national authorities and, where appropriate, the national courts not only to establish the existence of a real link with the labour market, but also to assess the constituent elements of the benefit in question. The objective of that benefit must be analysed according to its results and not according to its formal structure. The Court points out that a condition such as that provided for in Germany for basic benefits in favour of job-seekers, under which the person concerned must be capable of earning a living, could constitute an indication that the benefit is intended to facilitate access to employment. Benefits of a financial nature which, independently of their status under national law, are intended to facilitate access to the labour market cannot be regarded as constituting ‘social assistance’ within the meaning of Article 24(2) of Directive 2004/38. But the CJEU also adds that examination of this question has not disclosed any factor capable of affecting the validity of Article 24(2) of Directive 2004/38. The German federal authorities have argued that the exclusion clause under Section 7(1) of the Social Code II continues to be applicable with respect to 13 Case C-22/08 and C-23/08. CJEU judgment of 4 June 2009.

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foreigners who are staying in Germany exclusively for the purpose of seeking labour since the social benefits under this clause can be attributed to social assistance in the sense of Article 24(2) of the Directive 2004/38. It is to be expected that the question will again come up for the social courts since it is argued that the view taken by the Federal Ministry for Labour and Social Affairs is not in line with the jurisprudence of the European Court.14 An interesting other approach was followed in a recent judgment from the Bundessozialgericht (the highest Court in social security cases in Germany) delivered on 19 October 2010 (B 14 AS 23/10 R).15 This case concerned a French citizen who moved to Berlin in 2007. As he had a small job for a little while, he first had a right to stay in Germany as a worker. After he was made unemployed, he retained his right as a worker for six months on the basis of article 7(3)(c) 2004/38.16 During this period he was entitled to the Social Code II jobseekers allowance, which was the same benefit that was disputed in the Vatsouras case. After these six months his residence right was based on the fact that he was still looking for work and therefore was a job seeker.17 The German authorities however stopped his Social Code II benefit, which excludes foreign job seekers from entitlement, as we have also seen above in the Vatsouras case. However, according to the German Court this refusal is in breach with Article 1 of the European Convention on Social and Medical Assistance, which is a treaty, concluded in 1953 under the auspices of the Council of Europe.18 Article 1 of this Convention reads: “Each of the Contracting Parties undertakes to ensure that nationals of the other Contracting Parties who are lawfully present in any part of its territory to which this Convention applies, and who are without sufficient resources, shall be entitled equally with its own nationals and on the same conditions to social and medical assistance provided by the legislation in force from time to time in that part of its territory”.

14 See the Report on the Free Movement of Workers in Germany in 2009–2010: http://www.ru.nl/ law/cmr/projects/fmow-2/national-reports-fmw/. 15 http://juris.bundessozialgericht.de/cgi-bin/rechtsprechung/list.py?Gericht=bsg&Art=en. 16 Article 7(3)(c) reads: “For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances: (c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months”. 17 See Article 14(4)(b) Directive 2004/38. 18 http://conventions.coe.int/Treaty/EN/Treaties/Html/014.htm.

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According to Article 2 for the purposes of this Convention the term “Assistance” means in relation to each Contracting Party all assistance granted under the laws and regulations in force in any part of its territory under which persons without sufficient resources are granted means of subsistence and the care necessitated by their condition, other than non-contributory pensions and benefits paid in respect of war injuries due to foreign occupation. The German Court ruled that although the personal scope of this Social Code II jobseekers allowance is different from the personal scope of the German social assistance benefit (Sozialhilfe), both have the character of a general social assistance law (Fürsorgegesetz) and therefore both fall under the definition of Article 2 of the Convention. This is in contrast with the decision of the CJEU in the Vatsouras case, which stated that the Social Code II jobseekers allowance was not a social assistance benefit in the sense of Directive 2004/38. As the Frenchman in this case was lawfully residing as a job seeker in Germany, based on Article 14(4)(b) Directive 2004/38, and as German citizens, who were in the same position did receive this jobseekers allowance, the German Court decided the Frenchman had to be treated equally. The Frenchman had also made the argument that the Vatsouras judgment was applicable in his situation, but the Court said it was not necessary to deal with this argument, given the fact he was already entitled under the European Convention on Social and Medical Assistance. The meaning of this decision of the German Court does not apply to all EU citizens, but is only applicable to nationals of the Contracting Parties. The Contracting Parties as far as relevant here are: Belgium, Denmark, Estonia, France, Germany, Greece, Ireland, Italy, Luxembourg, Malta, Netherlands, Portugal, Spain, Sweden and the UK. Turkey is also a Contracting Party, but Turkish citizens cannot derive a right of residence as a jobseeker in EU law as EU citizens can. Norway and Iceland are also Contracting Parties and have the right of residence as a jobseeker because Directive 2004/38 has been integrated in the EEA Agreement. An interesting aspect of this case is the influence of an ‘old’ Council of Europe Convention in relation to European citizenship. This relation occurred before, albeit in an opposite direction, in the Martinez Sala judgement of the CJEU.19 Ms Martinez Sala was a Spanish citizen in Germany who had a very weak residence status but who could claim a lawful residence position on the basis of Article 6(a) of this same Convention. This lawful residence position gave her the same entitlement to child allowances as German citizens according to the equal treatment provisions of the EC Treaty. In the abovementioned case of the Bundessozialgericht 19 12 May 1998, C-85/96.

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it is just the other way around. Here the right of residence is based on EU law, but the entitlement of the benefit is derived from the European Convention on Social and Medical Assistance. In reaction to the decision of the German Court, the government of the Federal Republic of Germany on 19 December 2011 has registered this provision to the annex of this Convention, which lists provisions excluded from the scope of the Convention.20 Implementing rules explain that the Convention now no longer applies section 7 of the Social Code II (SGB II).21 The judgment of the German Court has effectively been reversed by the executive. However, there are court challenges to this position based on public international but not EU law.22 3.3. When Does a Union Citizen Become an Unreasonable Burden? Another issue that raises problems is the determination of when a Union citizen becomes ‘an unreasonable burden’. In The Netherlands, the government has developed a kind of sliding scale to answer this question. This scale has been made tighter in 2012. According to those new rules during the first two years of residence an appeal by an EU national on social assistance or on social care in a hostel for more than eight nights will cause an expulsion order. In the third year the criteria for an expulsion decision are: social assistance for more than two months or complementary social assistance for more than three months or social care for 16 nights or more. In the fourth year: four to six months social assistance or social care for more than 32 nights and in year five: 6 or 9 months social assistance or social care for more than 64 nights.23 Similar to the Dutch sliding scale, the authorities in the Czech Republic use a ‘system of points’. If a non active EU citizen (who had registered for a stay longer than three months) claims a social assistance benefit, the competent authority examines whether a person concerned could become an ‘unreasonable burden on the social assistance scheme’. For non active persons there is a system of points attributed to certain facts or characteristics of the person concerned. The facts that are taken into account are mainly the previous length of residence, previous length of employment or self-employment

20 It may be found online on the Council of Europe website at http://conventions.coe.int/Treaty/ Commun/ListeDeclarations.asp?NT=014&CM=8&DF=9/17/2006&CL=GER&VL=1. 21 See Geschäftsanweisung SGB II Nr. 8 v. 23.2.2012 – Vorbehalt gegen das Europäische Fürsorgeabkommen (EFA), Geschäftszeichen SP II 21 / SP II 23 – II-1101.1, available online at http://www.arbeitsagentur.de/nn_166486/zentraler-Content/HEGA-Internet/A07-Geldleistung/ Dokument/ GA-SGB-2-NR-08-2012-02-23.html. 22 See the Report on the Free Movement of Workers in Germany in 2011–2012: http://www.ru.nl/ law/cmr/projects/fmow-2/national-reports-fmw/. 23 Par. B10/4.3 of the Dutch Aliens Circular 2000.

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in the Czech Republic, previous periods of study in the Czech Republic, possibilities in finding a job. There is a discretionary power to take into account whether the person concerned has only temporary difficulties, his/her personal circumstances, family commitments, and the potential amount of benefit. The fewer points one gets, the sooner he will be seen as an unreasonable burden. This information will be given to the Aliens and Border Police, who can initiate an expulsion procedure. In Finland the Aliens Act laying down the grounds for refusing EU citizens’ and their family members’ entry was amended in the light of transposing Directive 2004/38 as follows: “An EU citizen’s and her family member’s entry to Finland may be refused if her right of residence has not been registered or she has not been issued with a residence card and if she: 2) by resorting repeatedly to social assistance as provided in the Act on Social Assistance, or to other comparable benefits, or by other comparable means, during her short stay in the country burdens unreasonably the Finnish social assistance system.”24

Those who burden unreasonably the national system of social assistance shall not be regarded as having a right of residence, and if a person does not have a right of residence, her entry may be refused. What constitutes an unreasonable burden to the social assistance system shall be decided case by case in Finland. Refusing entry is not an automatic consequence of burdening the social assistance system. Referring to the CJEU cases C-456/02 Trojani and C-184/99 Grzelczyk, it was stated in the proposal to the Act that refusing an EU citizen entry on the ground of lack of resources comes into question only in very rare cases. Belgium, however, has withdrawn in 2012 the residence permits of over 2,000 EU citizens, who received social assistance for more than three months. They are not actually expelled, but invited to leave the country. It concerns mostly citizens from Romania.25 4. United Kingdom: The Right to Reside Test In 2004 the UK used the accession of the ten new Member States to restrict substantially the access to social benefits for all EU migrants. In order to access benefits following the change of regulation, applicants must show now they have a right to reside in the UK. These regulations were intended to deal primarily with those who are not economically active. The regulations are intended to prevent

24 Section 167(2) Finnish Aliens Act. 25 http://www.deredactie.be/cm/vrtnieuws.english/news/1.1388657 (last visited 24 April 2013).

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those EU migrants who have no right of residence in the UK – because they are neither EU workers, relevant dependents, nor self-sufficient and entitled to residence in their own right – from claiming a range of benefits. The British government claimed that there was no systematic way under UK law and practice to identify and refuse these benefits to those who were not entitled under Union law. The habitual residence test which was introduced in the mid-1990s did not perform this role, focusing on the fact of residence rather than its legality or legal basis. The solution to this problem was to add a new requirement for eligibility for the relevant benefits. Applicants have to show that they have a right to reside in the UK and no-one without such a legal basis for residence will be regarded as habitually resident.26 The changes in 2004 mean that there are now two stages to the Habitual Residence Test: •  An initial test to determine whether the person has a ‘right to reside’; and •  The original Habitual Residence Test. Any person who does not have a right to reside automatically fails the Habitual Residence Test. A person with a right to reside must also satisfy the main Habitual Residence Test, to be entitled to benefit. The term “habitual residence” is not defined in regulations, so in order to determine whether a person is habitually resident, a Decision Making Officer considers a variety of factors about the person’s circumstances. European case law has established that factors to be considered include: •  the length, continuity and general nature of actual residence •  reasons for coming to the UK •  the claimant’s future intentions. EEA nationals who are lawfully employed or are self-employed have a right to reside as an employed or self-employed person. Those who are economically inactive – such as students, pensioners, or lone parents – only have a right to reside provided they have sufficient resources to avoid becoming a ‘burden’ on the social assistance system. The right of EEA nationals to reside in the Common Travel Area is set out in the Immigration (European Economic Area) Regulations 2006, which implement Directive 2004/38.27

26 H. Toner (2006), “New Legislative and Judicial Developments in EU citizenship”, in P. Shah & W. Menski (eds), Migration, Diasporas and Legal Systems in Europe, London: RoutledgeCavendish. See also R. White (2005), “Residence, Benefit Entitlement and Community Law”, Journal of Social Security Law. 27 http://www.legislation.gov.uk/uksi/2006/1003/contents/made.

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The Right to Reside test applies to benefits that are social security benefits and fall within the scope of Regulation 883/04 (Income Support, State Pension Credit, Income based Jobseeker’s Allowance, and Income related Employment and Support Allowance, Child Benefit and Child Tax Credit and Health in Pregnancy Grant) and benefits that are not covered by Regulation 883/04 but are social advantages under Regulation 492/2011 (Housing Benefit, Council Tax Benefit, Social Fund Crisis Loans and housing assistance from local authorities). The bottom line of the right to reside test is that an EU citizen who has no permanent residence in the UK and who is without means or work will not be treated under UK law as eligible for these benefits. A leading case concerning a Swedish national and a Norwegian national (both born in Somalia) show the effect of the right to reside test for all European citizens. In a ruling in 2007 by a British Court of Appeal both were refused social benefits on the basis that they did not fulfil the right to reside test.28 Neither claimant was, at the relevant time, a worker or otherwise economically selfsufficient, and each claimed social benefits, having their claim initially rejected on the basis that they did not have the right to reside in the UK, as a result of the test introduced as from 1 May 2004. The Court concluded that the right to reside is only conferred upon British citizens, certain Commonwealth citizens, ‘qualified  persons’ as defined by the UK Immigration (European Economic Area) Regulations 2000 and others protected by national law. The Court considered that as the claimants did not fulfil the requirements for ‘qualified persons’ status, they had no right to reside, and subsequently no right to the benefits sought, which are now dependent on fulfilment of the new test. In particular, this means that those EU citizens who are neither workers nor in possession or receipt of funds from other sources to qualify as self-sufficient will be excluded from receipt of these benefits. In this Abdirahman ruling, the Secretary of State presented the argument to the Court of Appeal that the cases did not fall within the scope of the EU Treaty because EU law did not extend to cases where no right of residence exists under either the Treaty or the relevant domestic law and that therefore the question of indirect discrimination contrary to Article 12 EC (now 18 TFEU) does not arise. The Court of Appeal accepted this argument and added that if there was indirect discrimination against non UK nationals, this was justified as a legitimate response to the manifest problem of ‘benefit tourism’. This same line of reasoning was used in the judgment of the Supreme Court of 16 March 2011 in the Patmalniece

28 Joined Cases [2007] EWCA Civ 657 Nadifa Dalmar Abdirahman v. Secretary of State for Work and Pensions (2006/1639), and Ali Addow Ullusow v. Secretary of State for Work and Pensions (2006/1668), 5 July 2007.

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case which dealt with the compatibility of the right to reside requirement for social security benefits which fall within Regulation 1408/71 (now Regulation 883/2004).29 4.1. Special Problems for A8 and A2 Nationals As already mentioned, the right to reside regulations came into effect on the same date of the accession to the EU as the ten new Member States (1 May 2004). At the same time a Worker Registration Scheme was introduced to control access to the labour market for workers from the so called A8 countries (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia).30 Nationals of these States were able to take up employment in the UK, providing they were authorised, under the scheme. If they did not have a job but came to the UK to seek employment, they would need to be self-sufficient in order to have a right to reside. According to this UK Worker Registration Scheme, A8 nationals who stopped working before completing one year with an authorized employer did not have the right to reside as a worker as well. Without this right to reside they were excluded from receiving social benefits.31 This obligation to register under this Scheme ended on 1 May 2011, when the transitional arrangements on the free movement of workers from the A8 countries came to an end. Before that time, the European Commission already considered the Scheme contrary to the transitional arrangements because it allowed the UK not only to restrict nationals from the above-mentioned Member States the right to move to the UK to work, but also to discriminate when paying benefits. On 28 October 2010 the Commission officially requested the UK to end these discriminatory conditions, which was a bit late perhaps.32 With the end of the Workers Registration Scheme from 1 May 2011, the infringement procedure on this issue has ended as well. 29 Patmalniece v. Secretary of State for Work and Pensions [2011] UKSC 11 Supreme Court. See the extensive analysis of this judgment by Mel Cousins in (2011) 18 Journal of Social Security Law, pp. 136–142. 30 Until 1 May 2011 A8 nationals were obliged to apply to register under the ‘Worker Registration Scheme’ (WRS) within one month of starting a job. The registered A8 national would then receive a ‘Registration Certificate’ and a ‘Registration Card’. The worker registration card was only issued the first time that the worker applies to register, and would continue to be valid even where an A8 national changed employment. The worker registration certificate, on the other hand, was specific to an employer and therefore had to be changed every time the A8 national changes employment during the registration period. 31 An important judgment which directly addressed A8 nationals was given by the UK House of Lords on 12 November 2008, in a case concerning a claim for social benefits by a Polish national which was refused. See Zalewska v. Department of Social Development (Northern Ireland), [2008] UKHL 67. See http://www.bailii.org/uk/cases/UKHL/2008/67.html. 32 http://ec.europa.eu/social/main.jsp?langId=en&catId=457&newsId=917&furtherNews=yes.

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But A2 nationals (Bulgarians and Romanians) still must have an authorisation (in the form of a work permit) to work in the UK. They cannot retain worker status or reside as jobseekers unless they have completed twelve months of authorized work. The transitional arrangements for these two countries will come to an end on 1 January 2014. Croatians, who will join the EU from 1 July 2013 will encounter the same problems as Bulgarians and Romanians have now. 5. Conclusion The 2004 Directive on free movement has made immigration of inactive EU citizens (and their family members) easier. Every EU citizen now has a right of residence for up to five years in any Member State, although it is conditionally. After that, he or she will receive the right to permanent residence, with full social protection. A problem with the implementation of Directive 2004/38 is, that it leaves room for different interpretations in situations where an inactive EU citizen without a permanent residence right applies for a social assistance benefit. It is not clearly defined when an EU citizen becomes an ‘unreasonable burden’ on the social assistance system. Leeway is given to states to examine whether financial difficulties may be temporary. As a result, states have developed their own definitions and ways of implementing the directive on this point. Is it possible to deny EU citizens access to social assistance benefits before they have a permanent residence? And is it possible to prove that any one person has become an ‘unreasonable’ burden on a country? Hailbronner has argued that ‘in any individual case it will hardly ever be possible to show the unreasonableness of a burden. The social system as such cannot be substantially affected by an additional beneficiary’.33 And according to Martinsen it may be difficult for a Member State to prove that an EU citizen is an ‘unreasonable burden’ on the social system, when, as has been demonstrated in the case-law of the CJEU, recourse to social assistance in itself is not a sufficient reason.34 So far the Court of Justice of the EU, however, has not allowed unconditional access to social assistance benefits of the host State. A first condition is always that the applicant has to have legal residence in the host State. In several cases the CJEU has formulated additional conditions that the applicant should “have a 33 Kay Hailbronner (2006), “Union citizenship and social rights”, in Jean-Yves Carlier & Elspeth Guild (eds), The future of Free Movement of Persons in the EU, Antwerp: Bruylant, pp. 65–79. 34 Dorte Sindbjerg Martinsen (2007), The Social Policy Clash: EU Cross-Border Welfare, Union Citizenship and National Residence Clauses, Paper prepared for the EUSA Tenth Biennial International Conference, Montreal, May 17–19, 2007.

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genuine link with the employment market of the State concerned” (Collins, para 67–69),35 or “need to demonstrate a certain degree of integration into the society of the host State” (Bidar, para 57).36 And the CJEU also recognises the right of the host Member State to stop the right of residence of the person concerned, even if it may not become “the automatic consequence of relying on the social assistance system” (Grzelczyk, para 4337 and Trojani, para 36).38 Lenaerts and Heremans indicate that on the one hand, the European Court of Justice has made it clear that Article 18 EC (now 21 TFEU) cannot be a ‘letter of safe-conduct’ for social tourism, but on the other hand shows that a society can no longer limit its solidarity to its nationals and should include all persons who demonstrate a sufficient degree of integration in that society. A request for a minimum subsistence allowance can by itself be considered as an unreasonable burden, but when, as in the Grzelczyk case, a student will clearly only require this support for the duration of one year, the pressure on the system is reduced and the balancing act changes.39 However, the policy and practice in the UK show a different picture. By using a habitual residence test and a right to reside test, the social benefits system of this country seems to exclude inactive EU citizens effectively from entitlement during a certain period of time. But what is the validity of the right of residence test? The judgments in the British cases could be challenged. They stress that the right to reside in the UK is linked to domestic law and not to Union law, which is odd, given that the domestic law is designed to implement Union law.40 In my opinion there is a right of residence under EU law, for inactive EU citizens without a permanent residence status even if they apply for social assistance benefits. This application can lead to the withdrawal of their residence right, but this right cannot be withdrawn automatically on the basis of temporary reliance on social assistance. After the introduction of Directive 2004/38 the reasoning of  the Trojani case that there is no right of residence under EU law because Mr. Trojani did not satisfy the condition of having sufficient resources has to be modified.

35 23 March 2004, C-138/02. 36 15 March 2005, C-209/03. 37 20 September 2001, C-184/99. 38 7 September 2004, C-456/02. See also Herwig Verschueren (2007), “European (Internal) Migration Law as an Instrument for Defining the Boundaries of National Solidarity Systems”, European Journal of Migration and Law, pp. 307–346. 39 Koen Lenaerts & Tinne Heremans (2006), “Contours of a European Social Union in the Case-Law of the European Court of Justice”, European Constitutional Law Review, pp. 101–115. 40 V. Mitsilegas (2007), “Free Movement of Workers, EU citizenship and Enlargement”, Immigration, Asylum and Nationality Law, Vol. 21, No. 3.

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Although a non-national citizen of the Union, applying for a benefit because of lack of resources, does not derive a right of residence directly from Article 18 of the TFEU, this citizen derives a right of residence from Directive 2004/38 until the moment this right is withdrawn, when he or she has become an unreasonable burden to the social assistance system. In March 2013 the UK, together with Austria, Germany and the Netherlands has sent a letter to the European Commission asking for measures to allow EU Member States to limit access to basic social benefits to other EU nationals. The European Commission is opposed to changing the rules and stresses that there are already measures to expel EU citizens who abuse a country’s welfare system.

Social Security Coverage of Non-Active Persons Moving to Another Member State Filip van Overmeiren, Eberhard Eichenhofer and Herwig Verschueren Introduction The analysis of the transitional coverage of non-active persons moving to another Member State is related to vital instruments of secondary Union law in the area of the free movement of persons, one of the cornerstones of the European Union. Directive 2004/38, which has repealed a bundle of older directives, was introduced to strengthen and simplify the exercise of the right to free movement and residence. Regulation 883/2004, in its turn replacing its predecessor Regulation 1408/71, was adopted to simplify and modernise the EU coordination system that guarantees that insured persons do not lose their social security protection when moving to another Member State. Although the essence of both domains of EU law has not changed in these latest versions, confusion has recently grown about their interdependence. At the meeting of the Administrative Commission for the coordination of social security systems (hereafter ‘the Administrative Commission’) in October 2009, an earlier trESS Think Tank report, presenting a general view on the relationship between these instruments, was discussed and in the same year the Commission published a communication1 providing further guidance on the application of Directive 2004/38. This topic remained the centre of interest during the Belgian Presidency in 2010, which lead to a note from the Secretariat and from the Presidency in the Administrative Commission in December 2010, clarifying the position of the Commission and the Member States respectively. The Commission made a clear distinction between the current legal situation on the one hand and the legitimacy of further discussion on possible future policy routes on the other hand. The Member States made clear that they were uncertain on how to apply both Regulation 883/2004 and Directive 2004/38, especially with regard to the different concepts of residence therein and to the relation between certain coordination rights and the conditions for legal residence set out in Directive 2004/38. Both agreed on the need for further analysis of this subject.

1 COM(2009)313.

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After the presentation in the Administrative Commission of a number of notes from the Member States on this topic, the Commission consequently decided to take concrete steps to further explore the subject and mandated the trESS Network with an ad hoc analytic study. This study was to be based on the replies from the Member States to a questionnaire that was presented to them in 2011, expecting their responses by June 2011. This report is the result of that analysis, providing an overview of the legal framework concerned, a mapping of residence based benefits in the Member States, a fact-finding analysis of the replies of the Member States and a legal evaluation with suggestions for future policy objectives. The topic has also been brought to a high political level. At the EPSCO Council of 17 June 2011, a joint statement of 13 Member States was added to the Council conclusions, in which they repeated that the concept of residence in the context of the interaction of the social security coordination Regulation 883/2004 with other relevant EU instruments, notably the free movement Directive 2004/38, should be further discussed. They called on all Member States and the European Commission to continue to look into this issue as a matter of priority. After the trESS analytical study, the subject was taken over by the Administrative Commission, which immediately established an ad hoc working group on the theme of residence. In March 2013, this ad hoc group has mandated a private consultancy firm to perform a thorough fact-finding analysis of the impact on the Member States’ social security systems of the entitlements of non-active intra-EU migrants to SNCB and health care on the basis of residence. In other words, it is very clear that this topic is still very much in the picture and subject to discussion at different levels. I. Overview of the Legal Framework This chapter gives an overview of the currently applicable legal provisions which may be relevant for the discussion on the issue of residence rights as well as the right to social benefits for economically inactive persons moving within the EU. It will concentrate on the provisions of Directive 2004/38 as well as on those of Regulation 883/2004 and on the interference between these instruments. I.1. Residence Rights of Economically Inactive EU Citizens Moving within the

Union

I.1.1. The Right to Free Movement as a Fundamental Right The right for Union citizens to move and reside freely within the territory of the Member States is enshrined in both the TFEU (Article 21) and in the Charter of

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Fundamental Rights of the EU (Article 45; hereinafter the “Charter”). This right is irrespective of the exercise by the Union citizen of an economic activity. The Court of Justice (ECJ) has recognised the direct effect of Article 21 TFEU, thus confirming that this right is conferred directly on every citizen of the Union by a clear and precise provision of the Treaty.2 The ECJ also observed that citizenship of the Union confers on each citizen a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and restrictions laid down by Union law. Yet, limitations and conditions laid down in EU law must be interpreted restrictively and must be applied in accordance with the principle of proportionality.3 According to the ECJ provisions laying down a fundamental principle such as that of the free movement of persons must be interpreted broadly.4 I.1.2. Conditions and Limitations for Economically Inactive Migrant Persons in Directive 2004/38 Directive 2004/385 specifies the residence6 rights of moving Union citizens (and the members of their families) and defines some conditions and limitations. It aims to facilitate the free movement of Union citizens and in particular to simplify and strengthen that right (recital 3). Among other things, the ECJ confirmed that Union citizens cannot derive fewer rights from that directive than from the instruments of secondary legislation which it amends or repeals.7 Directive 2004/38 grants the right of residence for up to three months to all Union citizens without any conditions or any formalities other than the requirement to hold a valid identity card or passport (Article 6(1), Directive 2004/38). Nevertheless, Article 14(1) of Directive 2004/38 guarantees the retention of the right of residence provided for in Article 6 to Union citizens only as long as they

2 Case C-413/99 Baumbast ECR [2002] I-7091, para 84 et seq. 3 Case C-162/09 Lassal [2010] I-9217, paras 29–31. See also Case C-413/99 Baumbast ECR [2002] I-7091, para 91. 4 See inter alia Case C-200/02 Zhu and Chen [2004] I-9925, para 31 and Case C-408/03 Commission v. Belgium [2006] I-2647, para 40. 5 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. See on this Directive the Communication from the Commission on guidance for better transposition and application of Directive 2004/38/EC of 2 July 2009, COM(2009) 313. 6 Directive 2004/38 does not provide any definition of the concept of residence. It seems to cover both temporary stay as well as habitual residence in the host Member State. 7 Case C-162/09 Lassal [2010]I-9217, para 30. See also Case C-127/08 Metock and Others [2008] ECR I-6241, paragraphs 82 and 59.

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do not become an unreasonable burden on the social assistance system of the host Member State. The right of residence for more than three months for economically inactive persons is on condition that they have sufficient resources for themselves and their family members so as not to become a burden on the social assistance system of the host Member State, as well as on the condition that they have comprehensive sickness insurance (Article 7(1)(b)&(c), Directive 2004/38). These conditions regarding sufficient resources and comprehensive sickness insurance neither apply to workers and self-employed persons, nor to persons who stopped being economically active but who do retain this status pursuant to Article 7(3) of Directive 2004/38.8 Nor do they apply to jobseekers who entered the territory of the host Member State in order to seek employment. Such persons may not be expelled for as long as they can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged (Article 14(4)(b), Directive 2004/38). Their right of residence does not depend on them having sufficient resources or comprehensive sickness insurance. The residence rights of economically active persons and persons considered as such follow directly from the Treaty provisions on the free movement of workers and of service providers (Articles 45 and 49 TFEU). Article 14(2) of Directive 2004/38 limits the residence right to Union citizens and their family members as long as they meet the conditions set out in Article 7, which for economically inactive persons means having sufficient resources and comprehensive sickness insurance. It continues by stating that in specific cases where there is reasonable doubt as to whether a Union citizen or his or her family members satisfies the conditions set out in Article 7, including the conditions on sufficient resources and health care coverage, Member States may verify if these conditions are fulfilled. However, this verification shall not be carried out systematically. Furthermore, Article 14(3) of Directive 2004/38 provides that an expulsion measure shall not be the automatic consequence of a Union citizen’s or his or her family members’ recourse to the social assistance system of the host Member State. In the Commission’s view, this provision means that “as long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance system of the host Member State, they cannot be expelled for this reason”.9

8 Pursuant to Article 7 (3) Directive 2004/38 an EU citizen maintains his status as an employee or self-employed person in certain circumstances, i.e. if he or she is temporarily unable to work as the result of an illness or accident or is in duly recorded involuntary unemployment or embarks on vocational training. 9 COM 2009(313) p. 9.

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For the assessment of the unreasonableness, recital 16 of Directive 2004/38 specifies that the host Member State should examine whether it is a case of temporary difficulties and take into account the duration of residence, the personal circumstances and the amount of aid granted in order to consider whether the beneficiary has become an unreasonable burden on its social assistance system and to proceed to his or her expulsion.10 In its case law, the ECJ confirmed that the origin of a person’s resources is not relevant to assess the fulfilment of the resources requirement in the residence directives.11 After five years of legal residence, a Union citizen and the members of his or her family obtain the right of permanent residence (Article 16, Directive 2004/38).12 This right of permanent residence does not depend on being economically active or having sufficient resources and comprehensive sickness insurance. The ECJ also recognised that Directive 2004/38 is not the only secondary law instrument that may grant migrating Union citizens a right to reside. In Ibrahim and Teixeira13 the ECJ confirmed that, pursuant to Article 12 of Regulation 1612/68,14 the children of an EU citizen who have settled in a Member State during the exercise by their parent(s) of rights of residence as a migrant worker in that Member State are entitled to reside there in order to attend general educational courses. The fact that the parents of the children concerned have meanwhile divorced and the fact that the parent who exercised rights of residence as a migrant worker is no longer economically active in the host Member State and even does not possess sufficient means of subsistence are irrelevant in this regard. It is sufficient that the child settled in the Member State concerned at the time that one of the parents resided there as a migrant worker. The ECJ also ruled that, as a consequence of the children’s right to reside, the parents who are their carers must be allowed to remain in the host Member State during the period of their children’s education.15 The ECJ did explicitly not accept that Directive 2004/38 would have made the application of the provisions of Regulation 1612/68 subject to compliance with the conditions for residence set out in Directive 2004/38. In 10 See on this issue also the Commission’s Communication of 2 July 2009, COM(313), p. 8–9. 11 Case C-200/02 Zhu and Chen [2004] I-9925, para 30–31 and Case C-408/03 Commission v. Belgium [2006] I-2647, para 40. 12 Pursuant to Article 17 of Directive 2004/38, this right of permanent residence can even be enjoyed before the completion of five years of residence for certain categories of persons. 13 Case C-310/08, Ibrahim, [2010] I-1065 and Case C-480/08, Teixeira, [2010] I-1107. 14 Regulation (EEC) 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community. This Regulation has recently been replaced by Regulation (EU) 492/2011 of the EP and the Council of 4 April 2011. However, this new regulation does not alter the provisions of the former but only codifies them. 15 See already in Case C-483/99, Baumbast [2002] ECR I-7091.

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the ECJ’s view this would mean that the provisions of Regulation 1612/68 are interpreted restrictively and rendered ineffective, which is not acceptable.16 Restricting the provisions of another EU secondary law instrument would only be possible by an explicit decision of the EU legislature, which was not the case here. I.2. Entitlement to ‘Social Assistance’ for Economically Inactive Migrant

Union Citizens in the Host State under Directive 2004/38

One of the basic principles of Union law is the prohibition of discrimination on grounds of nationality. This principle is laid down in Article 18 TFEU in general and in Article 45 TFEU in particular for workers and jobseekers. In its case law prior to the adoption of Directive 2004/38 the ECJ confirmed that this principle applies to social minimum benefits. However, the ECJ did not allow economically inactive migrants unconditional access to welfare benefits of the host State. Legal residence in the host State is the first condition to be fulfilled by the applicant.17 In addition and depending on the case, he or she should “not become an unreasonable burden on the public finances”;18 “have a genuine link with the employment market of the State concerned”19 or “need to demonstrate a certain degree of integration into the society of the host State”.20 So, the ECJ accepts possible justifications for derogations to equal treatment for social minimum benefits provided that the proportionality test is met. This case law is reflected in Directive 2004/38. Article 24(1) of Directive 2004/38 guarantees all Union citizens residing on the basis of this directive in the territory of the host Member State equal treatment with the nationals of that Member State within the scope of the Treaty. However, as regards social assistance, Article 24(2) of Directive 2004/38 stipulates that the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, during the longer period provided for in Article 14(4)(b). The latter provision refers to Union citizens who entered the territory of the host Member State in order to seek employment. Such persons may not be expelled for as long as they can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged. However, the ECJ has interpreted Article 45 TFEU in such a way that a minimum subsistence allowance for 16 Case C-480/08, Teixeira, [2010]I-1107, para 60 and 67. 17 Case C-456/02, Trojani [2004] ECR I-7573, para 43. 18 Case C-184/99, Grzelczyk [2001] ECR I-6193, para 44. 19 Case C-138/02, Collins [2004] ECR I-2703, para, 67–69. 20 Case C-209/03, Bidar [2005] ECR I-2119, para 57.

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jobseekers meant to facilitate access to employment in the labour market of a Member State cannot be regarded as “social assistance” within the meaning of Article 24(2) of Directive 2004/38. For the ECJ it would have to be granted to a person who has a genuine link with the employment market of the host State – which may be established through residence for a reasonable period and the fact that the person has genuinely sought work in that State.21 Prior to the acquisition of the right of permanent residence, the host Member State shall not be obliged either to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain this status and members of their families. I.3. Entitlement to SNCBs and/or Health Care Coverage for Economically

Inactive Migrants in the Host Member State under Regulation 883/2004

I.3.1. The Objectives and Principles of the EU Coordination of Social Security Systems The EU coordination of social security systems is designed to lift obstacles to the free movement of persons following from the diversity of the social security systems of the Member States. The system put in place is merely a system of coordination. It does not seek to harmonise the Member States’ systems or to bring them closer together. The only objective is to coordinate them in such a way that the negative effects the differences between those systems may have for migrant persons are removed. Fulfilling the mandate of Article 48 TFEU, the EU legislator adopted an elaborate system of coordination of the Member States’ social security schemes. Until 1 May 2010 this was laid down in Regulation 1408/7122 and Regulation 574/7223 and from this date in Regulation 883/200424 and Regulation 987/2009.25 21 Cases C-22/08 and C-23/08, Vatsouras and Koupatantze [2009] ECR I-4585, para 36–37. See also: Case C-138/02, Collins [2004] ECR I-2703, para 56; Case C-258/04, Ioannidis [2005] ECR I-8275, para 30. 22 Regulation (EEC) 1408/71 of 14 June 1971 concerning the application of the social security schemes to employees and self-employed persons, as well as to their family members travelling within the Community. 23  Regulation (EEC) 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) 1408/71. 24 Regulation (EC) 883/2004 of 29 April 2004 on the coordination of social security systems. 25 Regulation (EC) 987/2009 of 16 September 2009 laying down the procedure for implementing Regulation (EC) 883/2004.

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In the first place, this coordination regime determines which Member State’s social security legislation applies in a cross-border situation (Title II of Regulation 883/2004). These rules on the determination of the applicable legislation are based on the State of employment principle for economically active persons and the State of residence principle for economically inactive persons. This is intended to prevent that the application of the legislation of the Member States would lead to double affiliation to the social security systems of the Member States, or to the absence of affiliation as a result of which migrant persons would fall between two stools. Another underlying principle of this coordination is that of the prohibition of discrimination on grounds of nationality (Article 4, Regulation 883/2004). In addition, the coordination also contains rules with regard to the waiving of residence clauses in the allocation or preservation of social security benefits (Article 7 Regulation 883/2004). It also establishes a number of rules with regard to the aggregation of periods of insurance, employment and residence (Article 6 Regulation 883/2004). Economically inactive persons can also be covered by this EU coordination system. Indeed, Regulation 883/2004 refers in the definition of its personal scope to all nationals of a Member State who are or have been subject to the legislation of one or more Member States (Article 2, Regulation 883/2004), without referring to the status of employed or self-employed person (as was the case in Article 2, Regulation 1408/71). I.3.2. Special Coordination Systems for the so-called Special Non-Contributory Benefits (SNCBs) This coordination system is applicable to the different branches of social security,26 but it excludes ‘social and medical assistance’27 (see Article 3, Regulation 883/2004). 26 The different social security branches were summed up in Article 3 of Regulation 883/2004. The benefits are related to the classic social risks. These are maternity or paternity, sickness, invalidity, old age, accidents at work, occupational disease, death, unemployment, pre-retirement and family maintenance obligations. To qualify a given branch of social protection of a Member State in the light of EU law as social security, it does not matter whether the benefits are enshrined in a general or a special scheme, are financed out of taxes or contributions or the administration is based on public or private law. 27 Social and medical assistance are mentioned in Article 3(5) of Regulation 883/2004, but no definition of such benefits is provided. The distinction between social security and social assistance rests entirely on the factors relating to each benefit, in particular its purpose and the conditions for its grant. Case 249/83, Hoeckx [1985] ECR I-973, para 11 and Case 122/84, Scrivner and Cole [1985] ECR I-1027, para 18. Especially in the current state of welfare organisation, in which social security and social assistance have grown towards each other, such a general distinction becomes more difficult.

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However, the CJEU has developed a broad definition of social security within the meaning of these regulations. Confronted with claims to export a number of minimum subsistence benefits, the CJEU had to rule on the question whether they fall under the notion of social assistance and are therefore excluded from the scope of this coordination system and its principle of export of benefits. This discussion concerned benefits that were called “special non-contributory benefits of a mixed kind” since they were halfway between traditional social security and social assistance, falling simultaneously within both categories. Examples of such benefits are supplements to pensions and special benefits for disabled persons. In its case law of the 1970s and 80s, the CJEU developed a broad definition of social security including these special non-contributory benefits (SNCBs) to which the CJEU applied the export provision.28 In response to this case law, the EU legislature intervened in 1992 by creating a special coordination system for these benefits.29 For the benefits listed in the newly created Annex IIa of Regulation 1408/71, Member States could apply a residence condition preventing the export of these benefits. As a consequence, a beneficiary of such a benefit would, on the one hand, lose it when transferring his or her residence to another Member State and would, on the other, be entitled in his new Member State of residence to benefits of that state listed in Annex IIa. This entitlement in the new Member State of residence was clearly the price the Member States wanted to pay to avoid the obligation to export these benefits as imposed by the case law of the CJEU. The CJEU endorsed this agreement in principle,30 but was very critical of the qualification of some specific benefits as SNCBs.31 Regulation 883/2004 took over this special coordination regime for a number of such benefits listed in its Annex X (see Article 70, Regulation 883/2004). This means that persons falling under the scope of this regulation are entitled to the SNCBs included in this list in the Member State where they reside. The only 28 See for instance Case 1/72, Frilli [1972] ECR 457 (on the Belgian “Guaranteed income for old people”); Case 187/73, Callemeyn [1974] ECR 553 (on the Belgian “Benefits to handicapped persons”); Case 63/76, Inzirillo [1976] ECR 2057 (on the French “Allowance for handicapped adults”); Case 139/82, Piscitello [1983] ECR 1427 (on the Italian “Social aid pensions”); Joined Cases 379–381/85 and 93/86, Giletti and others [1987] ECR 955 (on the French “Supplementary allowance” paid to the recipients of old-age, survivor’s and invalidity pensions by the national solidarity fund); Case C-356/89, Newton [1991] ECR 3017 (on the UK “Mobility allowance” for the disabled). 29 By Regulation (EEC) No 1247/92 of the Council of 30 April 1992. 30 See for instance Case C-20/96, Snares [1997] ECR I-6057; Case C-297/96, Partridge [1998] ECR I-3467; Case C-160/02, Skalka [2004] ECR I-5613; Case C-154/05, Kersbergen-Lap [2006] ECR I-6249. 31 See for instance Case C-43/99, Leclere [2001] ECR I-4265; Case C-215/99, Jauch [2001] ECR I-1901; Case C-299/05, Commission v. European Parliament and Council ECR [2007] ECR I-8695.

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requirement for entitlement to these benefits is residence defined in Article 1(j) of Regulation 883/2004 as being the place where a person habitually resides. This definition is further specified in Article 11 of Regulation 987/2009 as being the centre of interests of the person concerned, based on an overall assessment of all available information relating to relevant facts. These may include the duration and continuity of presence on the territory of the Member States concerned and the person’s situation, including inter alia his family status and family ties, the exercise of any non-remunerated activities, his housing situation, in particular how permanent it is, and the Member State in which the person is deemed to reside for taxation purposes. If these elements do not produce a solution, the person’s intention, as it appears from such facts and circumstances, especially the reasons that led the person to move, shall be considered to be decisive to establish that person’s actual place of residence. This provision adopts an EU wide definition of the concept of residence for the implementation of Regulation 883/2004, including this special coordination regime for the SNCBs listed in Annex X. It therefore sets aside nationally defined concepts of residence.32 It is also clear that the concept of residence so defined is more restricted than the concept of residence used in Directive 2004/38, which encompasses both temporary stay and habitual residence. This residence condition was apparently considered by the EU legislature as creating a genuine link between the claimant and the host Member State for the entitlement to the SNCBs listed in Annex X. For non-contributory benefits in cases falling outside the scope of the EU social security coordination, the CJEU has indeed recognised that Member States may require the existence of such a link.33 In a case on an exportable non-contributory benefit falling within the scope of Regulation 1408/71 the CJEU also acknowledged that it can be considered to be legitimate for a Member State to award such a benefit only after it has been established that there was a genuine link between the claimant and the competent State.34 Yet, as far as the non-exportable special non-contributory benefits listed in Annex IIa of Regulation 1408/71 were concerned, the CJEU clarified that the benefit entitlement which is conditional on the claimant’s residence in the competent State, is not conditional on the claimant previously having been subject to the social security legislation of the State in which he applies for the benefit.35 Thus, we may conclude that for these non-exportable SNCBs residence on 32 See on the need to have such an EU wide definition: Case C-90/97, Swaddling [1999] ECR I-1075. 33 See for instance: Case C-184/99 Grzelczyk [2001] ECR I-6193; Case C-138/02 Collins [2004] ECR I-2703; Case C-209/03 Bidar [2005] ECR I-2119; Case C-192/05 Tas-Hagen and Tas [2006] ECR I-10451; Case C-158/07 Förster [2008] ECR I-8507. 34 Case C-503/09, Stewart, nyr, para 92. 35 Case C-20/96 Snares [1997] I-6057, para 48.

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the territory of the competent State seems to be accepted both by the EU legislature and by the CJEU as creating a genuine link between the claimant and that State. I.3.3. Access to Health Care in the Host Member State for Economically Inactive Migrant Persons  In principle, economically inactive persons are subject to the legislation of the Member State of residence (Article 11(3)(e), Regulation 883/2004). This includes the right to equal treatment with the citizens of this host State, including health care coverage. However, pursuant to specific rules in the sickness benefits chapter of Regulation 883/2004 (Articles 17–35) in a number of situations the access to health care in the host State is at the expense of another State, even for economically inactive migrants. This is in the first place the case for migrants who are only temporarily staying in the host Member State while continuing to be covered by the health insurance of their home State (which for that purpose issued a European Health Insurance Card – EHIC). This may also be the case for migrant persons habitually residing in the host State, such as pensioners only drawing a pension from another State. The latter State will reimburse, according to specific provisions agreed in this respect, the costs of the treatment for these pensioners. However, the host State may not always be able to claim reimbursement of the costs for health care delivered to economically inactive migrants from another Member State. In such situations, the equal treatment provision of Article 4 of Regulation 884/2004 guarantees such persons entitlement to health coverage  under the same conditions as the nationals of the host State resident in that State.36 I.4. The Link between the Entitlement to Social Benefits and Health Care Coverage under Regulation 883/2004 and the Right to Reside and to Equal Treatment under Directive 2004/38 We explained above that under Directive 2004/38 the right to reside in the host Member State for economically inactive persons is dependent on them having sufficient resources and a comprehensive sickness insurance (unless the person has obtained a right to permanent residence). Yet, expulsion measures depend on 36 For an extensice overview of the legal position of uninsured persons, see the trESS Think Tank Report (2010), Healthcare provided during a temporary stay in another Member State to persons who do not fulfil conditions for statutory health insurance coverage, http://www.tress-network .org/.

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the unreasonableness of the reliance on the social assistance systems of the host Member State. Entitlement to a social benefit or to health care coverage on the basis of Regulation 883/2004 may help the economically inactive migrant person to fulfil these requirements. This is certainly true in case of export of benefits such as pensions and health care coverage on behalf of another Member State than the host State. We also explained that as a result of the provisions agreed by the EU legislature in Regulation 883/2004, economically inactive migrant persons may also be entitled to special non-contributory benefits as well as health coverage in the Member State of residence. Questions are raised on whether the limitations on the principle of equal treatment in Article 24(2) of Directive 2004/38 in respect of social assistance may limit the rights to SNCBs and to health care under Regulation 883/2004. In addition, the question is raised whether persons wanting to invoke Regulation 883/2004 in order to claim SNCBs or health coverage in the Member State in which they reside, put their right of residence at stake, because they no longer fulfil the requirements with regard to a right to reside in the host State under Directive 2004/38. These questions are further dealt with in the next chapter of this contribution. II. Fact-Finding on Issues Related to the Coverage of Non-Active Persons in

the Member States

The following chapter is based on an analysis and synthesis of the replies of the Member States (hereinafter ‘the responding Member States’) to a questionnaire from the Secretariat of the Administrative Commission on the relationship between Regulation 883/2004 and Directive 2004/38. Exactly 18 of the 31 Member States responded to this questionnaire.37 The replies have been processed into a fact-finding analysis of their views on issues related to the transitional coverage of non-active persons in the Member States. More specifically, attention was drawn to the question which persons and which benefits are involved, but we predominantly focus on the topics that were signalled as problematic from the perspective of the Member States, supported by figures or statistics if such were made available.

37 Replies were received from Austria, the Czech Republic, Denmark, France, Germany, Ireland, Italy, Latvia, Luxembourg, Malta, the Netherlands, Poland, Portugal, the Slovak Republic, Slovenia, Spain, Sweden and the United Kingdom.

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II.1. The Definition of Non-Active Persons Before commencing an analysis of the reported issues with relation to claims of benefits by ‘non-active persons’ in a host Member State, it is self-evidently very important to investigate whether a common denominator could be derived from the replies of the Member States when it comes to circumscribing this specific category of persons. When providing a definition of what can be understood under non-active persons, most of the responding Member States in principle seem to designate the same or at least a similar category of persons. Non-active persons are generally described as persons who are not economically active in their host Member State and who have neither coordination rights under Regulation 883/2004 as an employed or self-employed person nor as a family member of an economically active person in that Member State.38 They are clearly discerned from ‘(currently) economically inactive persons’, who have previously been engaged in an economic activity and therefore continue to be covered by the coordination rules of Regulation 883/2004 as employed or self-employed persons. When it comes to naming the more concrete daily life situation and / or legal status that can be attached to this category of persons, reoccurring examples are ‘single parents’, ‘divorced persons’, ‘disabled persons’, ‘jobseekers’, ‘students’, ‘pensioners’ and ‘homeless persons’. As to their residence status, the concerned non-active persons are mainly viewed as persons who are ‘newly’ (< 3 months residence) or ‘mid-term’ (≥ 3 months and < 5 years residence) residents in the host Member State. As already pointed out, for a legal mid-term residence, economically inactive citizens have to fulfil the conditions with regard to sufficient means and comprehensive sickness insurance of Article 7(1)(b)&(c) of Directive 2004/38. However, the group of 38 Non-active persons are also further categorised in the following categories: a) Persons who have lost their entitlements in the competent Member State and are living in a noncompetent Member State; b) Persons who have used the right to free movement and living in a host Member State for up to three months; c) Pensioners without a sufficient period of insurance that have used the right of free movement and are living in a host Member State; d) Persons who have used the right of free movement and living in a host Member State for a period of more than three months and have not fulfilled obligations set in the Article 8(1) of the Directive 2004/38/EC; e) Persons who have used the right of free movement and are living in a host Member State for a period of more than three months based on Article 7 (1 (b)) of Directive 2004/38/EC and after a period of time do not have sufficient resources for themselves and/or do not have comprehensive sickness insurance.

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non-active persons described in the replies of the responding Member States appears to be broader than that. Persons who have already been living in the host Member State for several years (even ≥ 5 years residence), but suddenly end up in a state of indigence due to particular life events, are also envisaged. This seemingly rather clear view on which persons are involved is, however, just a starting point. It must indeed be added that the Member States’ definition of the category of ‘non-active persons’ becomes slightly confusing when taking into account some rather precarious or totally deviant views of certain Member States on this topic. First, the status of ‘non-active person’ for nationals of other Member States is sometimes derived from a rather opaque link between an increasing number of newly resident EU nationals and the high unemployment rate in the host Member State. Secondly, this category is also assimilated with the category of ‘uninsured’ persons falling completely outside the scope of Regulation 883/2004 due to a lack of any insurance coverage in any Member State. Lastly, the picture of the category of non-active persons – normally filled in by different sorts of indigent individuals – totally changes as it is also connected to self-sufficient persons with other sources of income in their Member State of origin with a medium/high standard of living who move to another Member State. These different perspectives clearly show that, besides the prima facie consensus about which persons are involved, there is still a considerable amount of uncertainty about the exact contours of the categorisation of non-active persons. What is certain, is that all persons concerned have never worked in the host Member State and are considered to have no previous attachments to that state, but at a given moment claim certain residence based benefits. The latter belong to the wide variety of residence based benefits in the Member States’ welfare schemes and can possibly be classified as ‘social security’, including ‘SNCBs’, or ‘social assistance’ within the meaning of Regulation 883/2004. II.2. Benefits Involved As the reported issues are all related to claims of non-active persons to residence based benefits, the question immediately arises which welfare schemes and which benefits are involved exactly. In other words, where did the responding Member States encounter certain issues ‘ratione materiae’? The answer to this question is quite straightforward, as the replies clearly point to the same types of benefits. Of the total of 18 replies from the Member States, 10 replies in some way mention the category of ‘SNCBs’ as laid down in Article 70 of Regulation 883/2004. In 8 replies, ‘health care’ (i.e. sickness benefits as described in Article 3(1)(a) of Regulation 883/2004) was referred to. Three replies

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also brought up ‘family benefits’ (Article 3(1)(j), Regulation 883/2004) in this context. As to the SNCB concerned, the example can be given of a compensatory pension supplement in order to give pensioners a minimum income so that they can provide for themselves, by making up the difference between the pension and an applicable standard amount. Similarly, supplementary allowances for the elderly or for widow(er)s which provide for a minimum level of resources were referred to. Other typical examples can be found in benefits for disabled persons (or more specific: incapacity / blindness / low mobility) or special benefits specifically created to support jobseekers. Some SNCBs have a potentially wide scope of beneficiaries, whereas for others it is acknowledged that, due to the specific characteristics of the benefit in question, only a very narrow group of beneficiaries can qualify. With regard to sickness benefits, several responding Member States emphasise that free and equal access to their health care systems can be based purely on ‘residence’, ‘permanent residence’ or ‘legal residence’. Access is granted independently of the economic status of the beneficiary and is often paid by the state and thus free of charge or sometimes related to a contribution by the beneficiary. Next to this residence based entrance to the health care scheme, a subsidiary insurance obligation under the statutory sickness insurance of a host Member State, applying to persons who have no other entitlement to cover in the event of illness, was mentioned. This was reported as the residence status was the decisive factor to determine whether EU (and other non-)nationals are covered. If not, they are obliged to take out private sickness insurance whilst residing in the concerned Member State. Only 3 responding Member States referred to the involvement of residence based family benefit schemes, for which beneficiaries can qualify without completing any insurance periods or paying any contributions. It suffices to be resident in the host Member State and to be raising children. One concrete example was related to a family benefit for single parents. It was reported by one responding Member State that these benefits can almost amount to the level of the minimum wage. II.3. Fact-Finding on the Coverage of Non-Active Persons in the Member

States

Departing from a bird’s-eye perspective on the answers to the questionnaire, one must first conclude that, with some exceptions, the reactions from the responding Member States did not contain a sufficient amount of figures, facts or practical examples to get a satisfying overview of the current issues in the Member

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States with relation to the analysed subject matter, let alone to conclude that there would be an obviously coinciding trend in all the responding Member States. The answers differed too much or did not contain enough background material to come to such an all encompassing ascertainment. However, this has not prevented the detection of some recurring and therefore horizontal39 issues or concerns, which are threefold. First, they are related to very general concerns about social tourism or other undesirable pressure on the solidarity mechanisms that form the foundation of the Member States’ welfare schemes. Secondly, several Member States pinpoint an increase of welfare claims from non-active persons with regard to residence based benefits. Lastly, the Member States’ concerns relate to more concrete legal questions, namely regarding the entitlement of those non-active persons to SNCBs and sickness benefits under Regulation 883/2004 and how this entitlement correlates to the provisions of Directive 2004/38 and to the – in that regard crucial – concept of “residence”. II.3.1. General Fear for ‘Social Tourism’ and a Reported Increase of Claims First, it should be mentioned that some of the responding Member States explicitly stated that they had no new issues to report, neither in the context of the coverage of non-active persons nor regarding the relationship between Regulation 883/2004 and Directive 2004/38. However, several of the responding Member States, even those without specific issues or facts to notify, recognised that a certain uncomfortable vagueness surrounds this topic. Most of these rather general reservations are related to the legal uncertainty with regard to the interference between the aforementioned EU legislative instruments and to a – although not necessarily documented or factdriven – fear for the possibility of ‘social tourism’. Objections like “problems of social and health tourism may affect the Member State […]” or “easy access to welfare services and benefits may lead to an inflow of less skilled immigrants […]” illustrate these anxieties perfectly. They are inspired by the lack of a ‘quid pro quo’ in the case of non-active persons, receiving residence based benefits which are financed by means of resources to which they have never contributed. Moreover, these fears aggravate in cases where it is obvious that the entitlement to certain benefits constitutes a decisive or perhaps the only motivation to use the right to free movement within the EU. Besides the general fear for social tourism, several replies also made mention of a recent increase in the number of cases of non-active persons claiming residence 39 Please note that this does not mean that these issues were mentioned in every reply from the Member States. It simply means that this issue was an unmistakably recurring one.

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based benefits (SNCBs, sickness benefits, family benefits) in the responding Member States, in which they do not perform any economic activity and with which they have no other close connection. Some extracts from the responding Member States’ replies can illustrate what is exactly meant by these ‘cases’. A first example comes from the Austrian authorities. The Austrian ‘Ausgleichszulage’, a compensatory pension supplement recognised as an SNCB,40 was created to guarantee pensioners a minimum income to enable them to provide for themselves. According to the Austrian authorities, there has been a dramatic increase41 in the number of cases in which recipients of a small pension from another Member State who did not previously have any close ties with Austria have applied for the right of residence and then obtained the compensatory pension supplement from the first day. It is suspected that in many cases people in reality continue to live in another Member State, but are officially resident in Austria at an address of convenience in order to obtain the compensatory pension supplement.

Another good illustration of the Member States’ concerns came from the reply of the Czech social security authorities. While the Czech Republic states not to experience a particular flow of inactive migrants, the institutions have noticed several cases where certain families moved in the Czech Republic to basically live off social benefits. A typical example is the following. An entirely inactive family moves their residence to the Czech Republic – an unemployed father with a mother raising a dependent child (under 4 years). The father registers with the employment services and receives vocational training. In such circumstances, the whole family would get a healthcare coverage for free (contributions with respect to all three persons would be paid by the State) and they could receive – basically on their arrival – both Parental allowance and Re-qualification benefit without having ever worked in the Czech Republic and without contributing to the Czech scheme. On a seemingly completely different level, the Portuguese authorities have noticed an increase of health care claims made by non-active persons and their family members (children), to be entitled to healthcare under the National Health Service (NHS) and, therefore, to get NHS user’s card. […] In fact, they are mostly persons with other sources of income in their countries of origin with a medium/ high standard of living who decide to come to live in Portugal and invoke the residence in this country under the Regulation 883/2004 in order to have access to the NHS […].

40 See Annex X to Regulation 883/2004 and Case C-160/02, Skalka [2004] ECR I-5613. Its qualification as ‘social assistance’ within the meaning of Directive 2004/38 is the main subject of the request for a preliminary ruling in the Brey case (C-140/12). 41 See infra Table 1.

244  Filip van Overmeiren, Eberhard Eichenhofer and Herwig Verschueren

Considering these examples, it becomes entirely clear that some of the responding Member States find the reported augmentation of residence based access to their welfare system problematic when it concerns non-active persons moving to the Member State. It must however already be added that only a small minority of the responding Member States backed up such expressed concerns with official figures and statistics. An interesting aspect of the evaluation of this reported increase is the possible influence of the personal scope of Regulation 883/2004 in this area. Considering that the social security coordination system has left behind any reference to economic activity (as opposed to the former Regulation 1408/71), some Member States assume a link between the broadened personal scope of the regulation and the increase of claims from non-active persons. A small minority of the responding Member States even explicitly argues that the increased number of claims should be attributed to non-active persons who were previously not included in the scope of Regulation 1408/71.42 Most responding Member States, however, do not suggest this interdependence and 1/3 of this group even explicitly excludes a causal link between the broad personal scope of the modernised coordination system and the increase of claims from non-active persons. They contend that the very wide interpretation of the terms ‘employed person’ and ‘self-employed person’ under the personal scope of Regulation 1408/71 could already produce similar issues and that the new regulation has not caused a significant change for the access of non-active persons to residence based benefits that fall under its material scope. The authors of this report fully agree with this view. As to the widened personal scope of social security coordination, none of the responding Member States could give an estimate of the number and category of persons who are now covered by Regulation 883/2004, but did not fall within the personal scope of Regulation 1408/71. Most responding Member States reported that this information is not available, some of them emphasising that this is irrelevant, considering that the issue should not be framed as one that is linked to the entry into force of Regulation 883/2004.

42 In this context, it was remarked by a responding Member State that the change in the personal scope of the coordination system was not accompanied by an assessment of which groups were targeted or of the impact on the budget of the Member States. A reference was made to Article 11, 3, e, Regulation 883/2004, pointing out the fact that this article does not make a distinction between beneficiaries of long-term benefits (invalidity, old-age or survivors’ pensions, pensions in respect of accidents at work or occupational diseases or sickness benefits in cash covering treatment for an unlimited period) and “other non-active persons”. The latter are also referred to as “pure non-active persons”.

Social Security Coverage of Non-Active Persons  245

II.3.2. The Ambiguous Relationship between Regulation 883/2004 and Directive 2004/38 Considerable confusion is noticeably caused by the unclear relationship between Regulation 883/2004 and Directive 2004/38. It can be derived from several replies that the responding Member States are uncertain about the possible interplay between these two instruments. More particularly, two dominant questions come to the fore. On the one hand, the Member States’ legislation and administrative practice mentioned in the replies show that there are severe doubts about whether coordination rights with regard to SNCBs and sickness benefits can be invoked to fulfil the residence conditions laid down in Article 7(1)(b)&(c) of Directive 2004/38. On the other hand, it is still unsure whether these benefits could be qualified as ‘social assistance’ within the meaning of Directive 2004/38. Such qualification would not only open the possibility for the Member States to make a connection between an appeal to these coordination rights and the assessment of the legality of the residence of the non-active person, but would also enable them to legitimately derogate from the equal treatment principle, within the limits of Article 24(2) of Directive 2004/38. This state of uncertainty immediately catches the eye when a comparison is made between the different ways the responding Member States tackle the relationship between the coordination rights according to Regulation 883/2004 and the residence and corresponding equal treatment rights and exceptions in Directive 2004/38. In general, several responding Member States explicitly favour the establishment of legal residence according to Directive 2004/38, before nonactive persons would be able to invoke their social security coordination rights. Different Member States seem to agree that the entitlement to an SNCB in a host Member State should not enable non-active persons to fulfil the sufficient resources requirement of Article 7(1)(b)&(c) of Directive 2004/38. However, it appears from the replies that not all Member States bring this conviction into practice. In this sense, it was reported by a Member State that, as a matter of principle, it considers the derivation of a residence right for non-active persons from entitlement to an SNCB in the host Member State to be incorrect. However, this does not seem to prevent this Member State to consistently apply the factual residence concept of Regulation 883/2004, using the criteria laid down in Article 11 Regulation 987/2009, to assess the entitlement to an SNCB.43 ‘Legal residence’ or

43 Which is to our opinion still the correct approach to handling such claims, given the current state of EU law.

246  Filip van Overmeiren, Eberhard Eichenhofer and Herwig Verschueren

‘equal treatment derogations’ following from the provisions Directive 2004/38 are not involved in this assessment. This is, however, obviously not the case in every responding Member State. In one Member State, the national legislation has recently been adapted in order to change the qualification of a particular SNCB to “social assistance within the meaning of Directive 2004/38”. This change was inspired by suspicions of abuse and social tourism. Another example also concerns a Member State’s legislation with relation to an SNCB, in which entitlement to this benefit is excluded during the first three months of stay, if the foreign national is not a worker or a selfemployed person or has not kept such an economic status. This means that an “Article 24(2) Directive 2004/38-like exception” is already foreseen in the national legislation for the SNCB concerned. A final example relates to the administrative practice of a Member State with regard to non-active persons who have lost all entitlements associated with their previous insured status or residence in another Member State. Before examining any other condition for the award of any benefits that are granted subject to ‘legal residence’, including SNCB and sickness benefits, the national institutions first check the legality of the residence, i.e. whether the non-active person has sufficient means and a comprehensive sickness insurance. These examples make it very clear that in some Member States, the provisions of Directive 2004/38 have already found their way into the coordination of benefits falling under the material scope of Regulation 883/2004. In some countries it has also been examined how qualifying periods for entitlement to residence based benefits and services can be used to reduce ‘unintended use’. It goes without saying that this inconsistent application of EU law in different Member States is the consequence of the doubts and the differing views that still exist concerning the interference between the relevant legislation in the field of the free movement of persons. For that matter, the perception of the concept of residence in EU law as an ambiguous and unclear notion plays a very important role. In the next chapter, particular focus will be dedicated to the current state of EU law and the possible ways forward in this area. II.4. Figures and Statistics In order to gather all relevant information with regard to possible issues concerning non-active persons between the Member States, the latter were asked to supply any statistical information on the number of cases related to possible issues with non-active persons, as well as any other relevant statistical evidence.  However, almost no responding Member States could provide such information.

Social Security Coverage of Non-Active Persons  247

Whereas one Member State supported the regular occurrence of claims from non-active persons by a reference to a ‘consultation of the offices’ without further specifications, the vast majority of the responding Member States declared that no such data were available in their systems. Three Member States (Austria, France and the United Kingdom) did provide some statistical information to back up the issues mentioned in their replies. In the reply from Austria, statistics were provided concerning the number of recipients of the aforementioned compensatory pension supplement (‘Ausgleichszulage’), an SNCB. Table 1 gives an overview of the number of recipients of this benefit between December 2009 and March 2011 and indeed shows an increase. The reply from France also contained some statistical material, namely with regard to the number of recipients of a solidarity allowance for the elderly (‘Allocation de Solidarité aux Personnes Agées’), also an SNCB, and of state provided medical assistance. For both benefits, the number of beneficiaries who are EEA nationals has also increased in recent years. The same goes for the number of EEA nationals applying for SNCBs in the UK (Table 2). The number of beneficiaries of UK SNCBs has not augmented due to the relatively higher number of refused applications. Next to the fact that these figures show an increase of the number of claimants and/or beneficiaries of residence based benefits, no further background information or explanation is provided in either one of the examples. a) Austria: “Ausgleichszulage” (SNCB) (Table 1) b) France: “Allocation de Solidarité Aux Personnes Agées” (SNCB) and Health Care ‘Minimum old-age benefit’: The solidarity allowance for the elderly (ASPA) is currently granted to 583 000 persons, or 4 % of the population over 60. We do not have any statistical breakdown by nationality as regards the current and potential future award by the French pension authorities of the ‘minimum old-age benefit’ to European nationals in receipt of benefits on the grounds of old age. Concerning applications for benefits from persons not receiving benefits on the grounds of old age, the most recent data suggest that, as at 31/12/2010, 35.6 % of the 70 919 recipients were non-nationals, of whom 3.5% were European nationals and 32.1% were non-EEA foreign nationals. In numerical terms, benefits were granted to 2 255 foreign nationals in 2010, of whom 234 were EEA nationals. Since 2008, the number of beneficiaries who are EEA nationals has shown an increase, rising from 194 in 2008 to 449 – representing 7 % of total benefits – in 2009. Health care The French medical insurance funds do not identify the nationality of persons in their information system when assigning rights to the general medical insurance

248  Filip van Overmeiren, Eberhard Eichenhofer and Herwig Verschueren

Table 1. Development EWR – ‘Ausgleichszulage’44 recipients: March 2011 compared with December 2009. Foreign benefit from Dec 2009

March June 2010 2010

Sep 2010

Dec 2010

March Change 2011 since Dec 2009

BE

1

1

1

1

1

1

0%

BG

17

21

29

37

53

61

259%

366

369

381

386

391

394

8%

1

1

1

DK GE EE FI FR

6

8

8

7

7

8

33%

EL

1

1

1

1

1

1

0%

UK

25

26

25

28

29

29

16%

IT

18

19

17

16

17

17

−6%

LV

2

2

2

2

2

2

0%

LI

1

2

4

5

5

5

400%

6

6

6

6

6

6

0%

36

39

41

46

50

53

47%

IE IC

LT LU MT NL NO PL

44 This is the benefit at stake in the upcoming Brey case (C-140/12).

Social Security Coverage of Non-Active Persons  249

Table 1. (cont.) PT

1

1

1

RO

31

47

68

90

100

112

261%

SE

4

6

6

7

8

9

125%

CH

15

17

22

22

22

22

47%

SK

4

5

5

10

10

12

200%

SI

9

9

11

11

11

11

22%

1

1

ES CZ

2

2

3

3

3

3

50%

HU

10

9

11

15

16

16

60%

555

590

642

694

734

764

38%

CY Total result

scheme under Regulation 883/2004, to universal health cover (CMU), or to state provided medical assistance (AME) for foreign nationals who have no health care or who are not legal residents and whose resources are below €7 611/year (or €634/month) for a single person. Of the 227 000 recipients of state provided medical assistance in June 2010, a recent study showed that the proportion of EEA nationals entering the scheme in the second quarter of 2010 was 8%, an increase of 14% relative to the first quarter of 2010. 37% had been in France for less than one year, 36% between one and two years and 27% for more than two years. c) United Kingdom: SNCBs (Table 2) III. Evaluation and Possible Future Perspectives It is crystal clear that the responses from the Member States have not provided a complete image of the concerns that were expressed by some Member States with regard to the access of non-active persons to residence based benefits in the

250  Filip van Overmeiren, Eberhard Eichenhofer and Herwig Verschueren

Table 2. Estimates based on clerically gathered information of people who have applied for cash SNCBs. 2008–200945 2009–2010 Number of EEA citizens applying for cash SNCBs

34 116

42 810

Number of applications refused

22 270

27 621

% of applications unsuccessful

65%

64%

Member States. Uncertainty still remains about which persons and which benefits are exactly involved as well as about the size and the precise impact of certain allegedly problematic issues. We have been able to find some common ground on what could be regarded as ‘non-active persons’ and it is certain that concerns are mainly directed towards SNCBs and sickness benefits. However, the general lack of case studies, figures and statistics impedes a clear insight. Be that as it may, the vagueness impeding the detection of trends or common factual problems does not prevent a legal assessment of the currently paramount issue with regard to the access of non-active persons to social benefits in the Member States, namely the relationship between the European system for coordination of social security on the one hand and the EU legislation with regard to movement and residence of Union citizens and their family members on the other hand. In this final chapter, we will try to clarify it by analysing the current state of EU law in this context, but also by connecting this subject to the relevant developments in the CJEU case law. To conclude, some paths for future developments are explored. III.1. The Current State of EU Law The relationship between Regulation 883/2004 and Directive 2004/38 is quite clear from a certain perspective, as none of both instruments refers to the other, from which one could derive that they should be assessed separately and that they certainly do not explicitly influence each other. However, important questions remain on possible implicit interference between both instruments. Can the coordination rights under Regulation 883/2004 be used to fulfil the requirements of Directive 2004/38 and could the restrictions in this residence directive be applied to benefits which are coordinated under Regulation 883/2004, such as 45 Information of annual figures from April-March.

Social Security Coverage of Non-Active Persons  251

SNCBs and sickness benefits? Or, put differently, can the right to SNCBs and sickness benefits in a host Member State be made subject to the possession of a residence right in accordance with Directive 2004/38? Departing from the residence conditions laid down in Article 7(1)(b)&(c) of Directive 2004/38, it must first be observed that the CJEU has repeatedly held that as long as the concerned person has sufficient resources, the origin of these resources is not relevant for the fulfilment of the condition, as it is not necessary for the attainment of the objective pursued, namely the protection of the public finances of the Member States.46 This means that entitlement to a social (security) benefit or to health care coverage on the basis of EU law is certainly able to provide a basis for a residence right in the host Member State in accordance with Directive 2004/38.47 However, whereas this is undoubtedly the case for the entitlement to exported benefits or health care coverage at the expense of another Member State than the host Member State, doubts arise when these entitlements are at the expense of the latter. In that case, the beneficiary weighs on the public finances of this State. The pivotal question in this regard is whether the beneficiary of such benefits weighs on the ‘social assistance system’ of this Member State, as the provisions of Directive 2004/38 try to prevent. Indeed, restrictions could be placed on the entitlement to SNCBs and sickness benefits in a host Member State, were such benefits are to be qualified as ‘social assistance’ within the meaning of Directive 2004/38. An appeal to these entitlements could then possibly be regarded as an unreasonable burden on the social assistance system of the host Member State, which could – although not automatically48 – lead to the end of the residence right of the person concerned. Moreover, the equal treatment derogation with regard to social assistance in Article 24(2) of Directive 2004/38 could be applied to SNCBs and sickness benefits. However, Directive 2004/38 does not contain a definition of social assistance. Consequently, it is not certain whether this concept can be assimilated with the social assistance concept of Article 3(5) of Regulation 883/2004. This would immediately exclude SNCBs and sickness benefits from the social assistance notion in Directive 2004/38. The reference to ‘social assistance system’ in the directive could indicate that it covers more than the narrowly defined notion of social assistance under Regulation 883/2004, but that is just an assumption as any 46 Case C-200/02 Zhu and Chen [2004] I-9925, para 33 and Case C-408/03 Commission v. Belgium [2006] I-2647, para 41. 47 Such entitlement was even explicitly mentioned in the former Directive 90/365. 48 Article 14(3) Directive 2004/38 provides that an expulsion measure shall not be the automatic consequence of a Union citizen or his or her family member’s recourse to the social assistance system of the host Member State, as already mentioned.

252  Filip van Overmeiren, Eberhard Eichenhofer and Herwig Verschueren

other and does not answer the question whether SNCBs or sickness benefits could be regarded as such. The only certainty is that the precise extent of this notion remains unclear without further guidance from the European legislator or from the CJEU, which until now has only taken away a small part of the vagueness by excluding specific benefits. In Vatsouras and Koupatantze, the CJEU gave a narrow interpretation of the concept of ‘social assistance’ within the meaning of Article 24(2) of Directive 2004/38. The CJEU decided that benefits of a financial nature which, independent of their status under national law, are intended to facilitate access to the labour market cannot be regarded as constituting ‘social assistance’ within the meaning of this provision.49 The CJEU referred in this respect to the interpretation in accordance with Article 45 TFEU on the free movement for workers, which also applies to jobseekers. In spite of the CJEU’s narrow interpretation of the concept of ‘social assistance’ in Directive 2004/38, it nevertheless does not seem to be impossible that, from the perspective of the residence directive,50 a number of the benefits listed in Annex X of Regulation 883/2004 could be classified as social assistance within the meaning of Directive 2004/38. In this context, income support for retired or disabled persons comes to mind, in particular when such persons cannot rely on Article 45 TFEU. Yet, such benefits continue to fall simultaneously within the category of social security and social assistance. However, an analysis of both instruments seems to indicate that they cannot affect each other and that entitlement to SNCBs as well as to sickness benefits under Regulation 883/2004 cannot be made subject to the conditions for legal residence under Directive 2004/38. This must be the conclusion when one legally analyses the totally separated and differing residence notions (factual residence in Regulation 883/2004 versus legal residence in Directive 2004/38) in these instruments, especially in the light of the respective aims of both pieces of secondary legislation. The provisions of Regulation 883/2004 granting access to non-contributory minimum benefits or health care coverage in the State of residence as well as the definition of the concept of ‘residence’ in Article 11 of Regulation 987/2009, in no manner refer to the residence requirement as being a requirement for which the legal status of the residence would be relevant.51 Neither do they make their 49 Cases C-22/08 and C-23/08, Vatsouras and Koupatantze [2009] ECR I-4585, para 45. 50 It should be repeated here that, from the perspective of the coordination regulation, these benefits are definitely not considered as social assistance but as special benefits which also fall under the scope of the system for the coordination of social security. 51 The CJEU also never referred to the former or current residence directives when interpreting the residence notion of the former Regulation 1408/71.

Social Security Coverage of Non-Active Persons  253

application subject to the fulfilment of the criteria for obtaining a residence right under Directive 2004/38 or its predecessors. Which concrete impact does Directive 2004/38 have on the coordination system then? There are only two answers possible. One can say, coordination is to be interpreted on the basis of residence law or both spheres of law are independent from one another. Under the first approach, restrictions in the residence directive are to be translated into coordination. Under the second approach, both systems are conceived as mutually independent from one another and the inquiry is restricted to analyse the consequences of the duplicity of non-interfering rules to the same subject matter. It seems to follow from the absence of any reference in Regulation 883/2004 to the person’s status under Directive 2004/38, that entitlement to the SNCBs listed in Annex X of Regulation 883/2004 is only subject to the condition of a person having his habitual centre of interest in a Member State and does not depend on the legal nature of this residence under Directive 2004/38 (provided of course this person fulfils the other relevant criteria under the national legislation such as an income threshold). Relying on Regulation 883/2004, he can be entitled to an SNCB from the first day of ‘factual residence’, which can provide him with sufficient resources as envisaged by Directive 2004/38. Interpreting these provisions differently and making entitlement to these benefits subject to the fulfilment of the conditions to obtain a residence right under Directive 2004/38, including having sufficient means of subsistence, would make this special coordination system meaningless. Indeed, if an economically inactive person would be denied entitlement to an SNCB listed in Annex X to Regulation 883/2004 because of Article 24(2) of Directive 2004/38 or even if he would jeopardise his right of residence by claiming a benefit under Regulation 883/2004, this would deprive the provisions of Regulation 883/2004 of their effectiveness. It would also undermine the balance agreed by the EU legislature between the limitations on the export of these benefits in the event of migration and the obligation for the new Member State of residence to grant the benefits listed in Annex X. This balance was the price the Member States were prepared to pay for the right not to export these benefits and to stop their payment to persons no longer residing on their territory. Besides, each of the benefits in Annex X was only listed therein after the explicit request of the Member States concerned. Any other conclusion would deny the very essence of social security coordination, more specifically preventing migrant persons from falling between two stools. It would constitute a clear obstacle to the exercise of the right to free movement, recognised as a fundamental right under the treaties and the Charter, the limitations of which must be interpreted narrowly. The same conclusion can be drawn with regard to the entitlement to health care coverage in the host Member State, on the basis of the equal

254  Filip van Overmeiren, Eberhard Eichenhofer and Herwig Verschueren

treatment provisions of Article 4 Regulation 883/2004. In a situation where the Regulation designates the Member State of residence as the competent Member State, this Article guarantees equal access to the residence based sickness benefits of a host Member State as soon as the person establishes his habitual centre of interest there. Moreover, it even seems fully supported by the text of Directive 2004/38 that the entitlement to sickness benefits under Regulation 883/2004 cannot be regarded as a burden on the ‘social assistance system’ of a host Member State. Article 7(1)(b)&(c) of Directive 2004/38 does not contain any reference to ‘not becoming a burden on the social assistance system of the host Member State’ with regard to the comprehensive sickness insurance requirement, as is the case for the sufficient resources requirement. This indicates that the appeal to sickness benefits in the host Member State can in no way be regarded as an appeal to the social assistance system of that Member State. Consequently, under the current state of EU law, an economically inactive migrant person can be entitled to a special non-contributory benefit listed in Annex X of Regulation 883/2004 of the State of (habitual) residence and to the health care coverage in that State, despite the provisions of Directive 2004/38. Such a conclusion seems to be endorsed by the recent case law of the CJEU that Union citizens cannot derive less rights from Directive 2004/38 than from other sources of secondary EU law.52 Yet, other minimum subsistence benefits not covered by Regulation 883/2004 and its special coordination regime for the SNCBs listed in its Annex X, remain subject to other provisions of EU law, including those of Directive 2004/38 limiting the access to social assistance benefits in the host Member State. III.2. The Treaty-Based Right to Equal Treatment for All Union Citizens and Its Limitations As a starting point, it should be reminded that Article 21 TFEU guarantees citizens of the Union the right to move and reside freely within the EU, subject to the conditions and restrictions laid down by Union law. In the landmark case Martinez Sala,53 the CJEU attached to this freedom a right to equal treatment for lawfully resident Union citizens in all situations which fall under the material scope of EU law. Such situations include those involving the mere exercise of the right to move and reside freely in another Member State.54 A substantial part of the ‘post Martinez Sala’-case law with regard to equal treatment rights for Union citizens 52 See references in footnote 11 above. 53 Case C-85/96, Martinez Sala [1998] ECR I-2691. 54 Case C-184/99, Grzelczyk [2001] ECR I-6193, para 33 and Case C-158/07 Förster [2008] ECR I-8507, para 37.

Social Security Coverage of Non-Active Persons  255

concerned the access of economically inactive persons to residence based social benefits in a host Member State. The Court thus created a Treaty-based equal treatment right to residence based social benefits for Union citizens in a crossborder situation, regardless of possible entitlements under secondary EU law. Next to the legal view on the current relationship between Regulation 883/2004 and Directive 2004/38, one should however take into account the expressed concerns of the Member States with regard to the access of non-active persons to residence based benefits. When these persons are not economically active in the host Member State and do not have any other previous attachments to that State, these concerns generally come down to the aim of the Member States to avoid an unreasonable burden on their public finances and to assure that the persons concerned can demonstrate a certain degree of integration, with a view to the protection of the financial balance of their social security system. Some Member States explicitly favour an approach according to which non-active persons would need to demonstrate a certain stabile affiliation to the concerned Member State before they are granted residence based benefits via the coordination system. It must be observed that the CJEU has declared, in the aforementioned series of judgments regarding access to non-contributory social benefits, that such aims are legitimate and are capable of justifying restrictions on the rights of freedom of movement and residence under Article 21 TFEU.55 Whereas this case law predominantly concerned benefits falling outside the scope of Regulation 883/2004 (such as genuine social assistance benefits,56 benefits for war victims57 and study loans or grants58), also national legislation with regard to benefits coordinated by this regulation was already affected by the genuine link requirement.59 The CJEU also reiterated at different occasions that the measures restricting the free movement of Union citizens, in order to guarantee such a legitimate objective, must certainly not go further than is necessary to achieve that aim.60 55 This aim was first recognised as a legitimate objective in the D’Hoop case. Case C-224/98 D’Hoop ECR [2002] I-6191, para 38. 56 Case C-184/99, Grzelczyk [2001] ECR I-6193 and Case C-456/02, Trojani [2004] ECR I-7573. 57 Case C-192/05 Tas-Hagen and Tas [2006] ECR I-10451; Case C-499/06 Nerkowska [2008] ECR I-3993 and Case C-221/07 Zablocka-Weyhermüller [2008] ECR I-9029. 58 Case C-209/03, Bidar [2005] ECR I-2119 and Case C-158/07 Förster [2008] ECR I-8507. 59 Case C-138/02, Collins [2004] ECR I-2703; Case C-212/05, Hartmann [2007] ECR I-6303; Case C-213/05, Geven [2007] ECR I-6347; Case C-287/05, Hendrix [2007] ECR I-6909, and very recently Case C-503/09, Stewart, nyr. In most of these cases, the relevant coordination rules could not be applied in the given circumstances. The Hendrix case was a notorious exception, as the ECJ used the genuine link requirement to possibly overrule a residence requirement in the national legislation concerning an SNCB and thus to indirectly assess the non-export rule with regard to SNCBs in Regulation 1408/71. 60 Case C-138/02, Collins [2004] ECR I-2703, para 72; Case C-406/04 De Cuyper [2006] ECR I-6947, para 40; Case C-192/05 Tas-Hagen and Tas [2006] ECR I-10451, para 33; C-221/07

256  Filip van Overmeiren, Eberhard Eichenhofer and Herwig Verschueren

Moreover, the measures to ensure a genuine link between a claimant of a benefit and the competent Member State should consequently be assessed in the light of the proportionality principle, as a fundamental principle of EU law. In essence, this requires that a person should be enabled to demonstrate his or her degree of integration via a variety of relevant connecting factors or criteria, taking into account all individual circumstances of the case. A dominant connecting factor or criterion for the establishment of the genuine link should thus be avoided. In several of these ‘Union citizenship judgments’, a residence duration condition – i.e. a requirement to have been resident in the host Member State for a certain period of time – was accepted by the CJEU as an appropriate criterion to demonstrate a certain degree of integration in a host Member State.61 However, taking into account the intensive proportionality requirement in this area, a certain period of previous residence should in principle not be used as a monolithical criterion.62 The CJEU very recently stressed this point of view:63 Indeed, by requiring specific periods of past presence in the competent Member State, the condition of past presence unduly favours an element which is not necessarily representative of the real and effective degree of connection between the claimant [to short-term incapacity benefit in youth] and that Member State, to the exclusion of all other representative elements. It therefore goes beyond what is necessary to attain the objective pursued.64 Zablocka-Weyhermüller [2008] ECR I-9029, para 37; Case C-544/07, Rüffler [2009] ECR I-3389, para 74 and Case C-503/09, Stewart, nyr, para 87. 61 Case C-138/02, Collins [2004] ECR I-2703, para 72; Case C-209/03, Bidar [2005] ECR I-2119, para 61 and Case C-158/07 Förster [2008] ECR I-8507, para 52. 62 See also K. Lenaerts & T. Heremans (2006), “Contours of a European Social Union in the CaseLaw of the European Court of Justice”, EuConst., 2, (101), p. 114. In the Förster case, which concerned access to study loans and grants in a host Member State, the ECJ has deviated from this intensive proportionality requirement in an explicit choice for legal certainty and transparency. Case C-158/07 Förster [2008] ECR I-8507, para 57. 63 In this judgment, the ECJ was very clear with relation to the restricting nature of conditions relating to past presence in general: “Legislation, […], which makes acquisition of the right to short-term incapacity benefit in youth subject to a condition of past presence is likely, by its very nature, to deter claimants […] from exercising their right to freedom of movement and residence by leaving the Member State of which they are nationals to take up residence in another Member State. Indeed, while claimants who have not made use of the opportunities offered by the Treaty in relation to freedom of movement and residence can easily satisfy the abovementioned condition, that is not the case for claimants who have taken advantage of them. It is actually very probable that the latter, because they have take up residence in another Member State, do not satisfy that condition.” Case C-503/09, Stewart, nyr, para 85. See also the Opinion of Advocate General Cruz Villalón with regard to the “suspicion” towards conditions relating to residence under EU law. Opinion of Advocate General Cruz Villalón in Case C-503/09, Stewart, nyr, para 36. 64 Case C-503/09, Stewart, nyr, para 95. See, by analogy, also the first case related to the genuine link requirement, Case C-224/98 D’Hoop ECR [2002] I-6191, para 39.

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This is very logical, as a residence duration condition alone can never reveal the real bond a person has built up with a host Member State.65 The main question is whether this trend in the case law is of any particular influence on the access to SNCBs. Upon a closer look at the SNCB regime, this seems not to be the case and one could even argue that the SNCB regime – as it stands now – already ensures the existence of a genuine link between the claimant of such a benefit and his Member State of residence. With regard to SNCBs, it was already analysed above66 that the European legislator and the CJEU both accepted the (factual) habitual residence condition of Regulation 883/2004 as creating a sufficiently genuine link between the claimant and the host Member State for the entitlement to such mixed benefits. This was a crucial element of the balance achieved after the neutralisation of the export principle for these specific benefits. In the light of the aforementioned case law, it should however be emphasised that this notion in Regulation 883/2004 also seems to fit perfectly into the main tendency of the CJEU case law concerning the requirement of a certain degree of integration. The variety of elements that has to be taken into account to establish whether a person has his habitual centre of interest in a Member State indeed appears to be in harmony with the case law concerning the ‘genuine link’. This variety of factors was introduced by the CJEU’s interpretation of the residence concept67 in Regulation 1408/71 and is now in a further elaborated form codified in Article 11 of Regulation 987/2009, according to which, in case of a difference of views68 between the institutions of two or more Member State, an overall assessment of all available information relating to the relevant facts should be performed in order to determine the centre of interest of a person. The duration and continuity of presence on the territory is one element in this assessment, but 65 This works in both ways. An exclusive residence duration condition can be too strict, as a person can possibly demonstrate a genuine link with the Member State if other circumstances of the case are taken into account. It might, however, also be too flexible, as some persons might easily sit out the required duration of residence without having ever really built up the required genuine link with that Member State. A residence condition may thus be very practical to administer, on its own it is certainly not the golden solution in the search for a genuine link between a claimant of a benefit and a competent Member State. F. van Overmeiren (2011), Additional Welfare Rights through Citizenship of the Union, Doctoral Thesis, nyp, pp. 634–635. 66 Cf. para I.3.2. 67 Case 76/76 Di Paolo [1977] ECR 315, para 17–20, and Case C-102/91 Knoch [1992] ECR I-4341, para 21–23 and Case 90/97 Swaddling [1999] ECR I-1075, para 29. 68  Although this article serves in the first place as a reconciliation tool in case of disagreement between social security institutions, it of course also provides good guidance for the Member States on how the residence notion of Regulation 883/2004 must in principle be interpreted.

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cannot be more decisive than other relevant elements.69 This evaluation based on all the relevant individual circumstances of the case aligns with the way the CJEU has interpreted the establishment of a certain degree of integration between a claimant of certain social benefits and the granting Member State. The same holds true for the equal access to residence based sickness benefits in a competent Member State of residence. The case law of the CJEU has proven that EU law is sensitive to the Member States’ desire of the establishment of a genuine link between a person claiming residence based non-contributory benefits and the Member State granting the benefit. The residence concept of Regulation 883/2004 also seems to meet these aspirations, both formally and substantially. III.3. Exploring the Possible Ways Forward It must be noted that the current state of EU law obviously causes confusion with regard to the precise relationship between Regulation 883/2004 and Directive 2004/38, particularly as to the access of non-active persons to residence based benefits in a host Member State. This situation of uncertainty will probably last until the CJEU gets the opportunity to provide further clarification. It would, however, be useful if the European legislator could anticipate this and give the necessary elucidation in this area. Without having analysed the possible options in all their aspects, we see different ways forward. III.3.1. A Better Delineation between Regulation 883/2004 and Directive 2004/38 A first option would be to do away with all doubts on the relationship between Regulation 883/2004 and Directive 2004/38 by accepting a status of ‘lex specialis’ for the coordination regulation. This would explicitly affirm the current state of EU law and the normal application of Regulation 883/2004. In concreto, this could be effectuated by inserting a safeguarding clause in Directive 2004/38, confirming that the directive does not affect the coordination rules of Regulation 883/2004. Inspiration for such a clause could be found in Article 36(2) of Regulation 492/2011, which provides the following clause in its final provisions: “This Regulation shall not affect measures taken in accordance with Article 48 of the Treaty on the Functioning of the European Union.”

69 As explicitly acknowledged by the ECJ in the Swaddling case. Case 90/97 Swaddling [1999] ECR I-1075, para 30.

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In the same line of reasoning, a definition of social assistance could be provided in Directive 2004/38 as neither encompassing SNCBs70 that were included in Annex X of Regulation 883/2004, nor sickness benefits as provided in Article 3(1)(a) of Regulation 883/2004. This could be done in a general way, by equating “social assistance within the meaning of Directive 2004/38” with “social assistance within the meaning of Regulation 883/2004”. III.3.2. Introducing A ‘Flexible Residence Duration Condition’ in Regulation 883/2004 A valid second possibility could be to further clarify the residence concept of Regulation 883/2004 in the context of the relationship between the right to reside and the right to social security benefits in a host Member State, including the right to SNCBs. It can be acknowledged that there is an implicit discrepancy between the perspectives on access to non-contributory benefits in Regulation 883/2004 and Directive 2004/38. The different approaches could be harmonised, whilst still respecting the Treaty obligations with regard to the free movement of persons and more specifically the balance that was struck by the introduction of the special coordination regime for SNCBs. With regard to the residence concept of Regulation 883/2004 as such, this could be further clarified by giving a promotion to Article 11 Regulation 987/2009. Whereas this is now laid down in the implementing regulation to solve differences of views between institutions of the Member States, it could be transformed from a ‘reconciliation Article’ to a ‘guiding Article’ with regard to the establishment of habitual residence. In concreto, the elements to determine residence that were summed up in Article 11 could be incorporated in the definition of residence in Article 1(j) of Regulation 883/2004. This would enhance the visibility and strength of the residence concept of the coordination regulation. Further reflections could be undertaken to better define this habitual residence, for instance by integrating new factual elements that should – deriving from daily practice on the national level – certainly be taken into account when assessing the residence situation of a person. In order to reconcile the residence concept of Regulation 883/2004 with EU residence law, a modified concept of residence could be adopted for the application of the special coordination regime of the SNCBs by introducing a waiting period before the person is entitled to such benefits in the host Member State. 70 With regard to the relationship between the social assistance concept of Directive 2004/38 and the SNCB concept of Regulation 883/2004, the upcoming Brey case (C-140/12) promises to bring more clarity.

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A first period of ‘residence’ within the meaning of Directive 2004/38 could possibly not be considered as ‘residence’ within the meaning of Article 1(j) of Regulation 883/2004, since the link with the host Member State could be considered as too weak. A person without a link to the employment market of this State and without any family or other private ties there, should in principle not be considered as resident in that State in this first period. It could for instance be clarified that during the first three months of ‘residence’ within the meaning of Directive 2004/38, a person is not considered resident yet in the host Member State within the meaning of Regulation 883/2004, “unless this person can prove the opposite”. This last addition – which opens the possibility to provide proof of a genuine link with the host Member State – is important, given the need to take into account the principle of proportionality when restricting the free movement of Unions citizens, as already described above. The choice for a monolithical and dominant residence duration requirement of 3 months without the possibility to demonstrate that the person has a genuine link with the host Member State, would ignore this fundamental principle of Union law. An overall assessment of all the facts of the individual case should still be required in order to possibly overrule the waiting period. However, if such a waiting period would be introduced, the persons concerned should be considered as having kept their centre of interest, ergo, their residence in the Member State of origin during this first period. The latter would thus still be the competent State as to the entitlement to SNCBs. If this necessary corollary of postponing the establishment of residence in a Member State would be omitted, such a new regime for SNCBs would without doubt fall foul of the fundamental right to free movement as guaranteed by the Treaties and of the main aim of social security coordination, namely to prevent migrant persons from falling between two stools. More specifically, if the balance sought in the special coordination regime for SNCBs71 is broken by a waiting time period, this fracture has to be compensated by a responsibility for the Member State of origin of the person concerned. Under the auspices of EU social security coordination, the protection of social security rights in the various Member States is the all embracing target to which each single provision in the coordination framework is committed. Such an approach would have the benefit of respecting the principles of the coordination system as well as the CJEU’s ‘genuine link’ case law, whilst also meeting the concerns of the Member States with relation to the transitional coverage of non-active persons. Furthermore, such a three months period would also correspond to the social assistance exception of Article 24(2) of Directive 2004/38. 71 Here we must repeat that this balance was accepted in order to avoid the obligation to export SNCBs.

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III.3.3. Introducing A New ‘Cost Compensation Mechanism’ in Regulation 883/2004 An alternative option would be to keep the residence concept as it is now incorporated in Regulation 883/2004, but to seek for a better sharing of the burden amongst the Member States when non-active persons are concerned. Such burden sharing could be accomplished by retaining the responsibility for these persons in the Member State of origin via a cost compensation mechanism. The latter would in this constellation still be financially responsible for the migrating non-active person for a certain period of time (e.g. a period of 3 months). During this first period of residence, the institutions of the host Member State would consequently provide the SNCBs in accordance with its legislation on behalf of the institution of the Member State of origin, which would be obliged to fully reimburse the costs incurred by the host Member State. It suffices to say that comparable measures could be taken with regard to equal access of non-active persons to sickness benefits delivered by the competent Member State of residence. III.3.4. A Better Focus on the Establishment of Residence in a Member State A fourth way forward that should be given specific attention in any way is the organisation of an enhanced control on the establishment of residence in the Member States for the application of Regulation 883/2004. It should be further investigated how the administrative cooperation between the Member States in the framework of the coordination system can contribute to a sound assessment of precarious residence situations and especially to avoiding fraud and abuse, to which is often referred in the general and more colloquial terms of ‘benefit tourism’ or ‘social tourism’. In this regard, it is not easy to identify a change of residence in practice. Freedom of movement within the European Union allows Union citizens and their families to spend their lives simultaneously in different Member States and to stay there for a shorter or longer period. Under these circumstances, the concept of residence – which is based on the idea that each individual finds her or his centre of activities at one place – becomes problematic. It is difficult to interpret and to examine the residence situation. From this follows that a change of residence should only be accepted if somebody transfers the centre of her or his activities definitely and without any persisting links to the previous Member State of residence. It is acknowledged that one has to be very careful with the use of those concepts in EU law, as they have always been interpreted very narrowly by the CJEU. There is no abuse where EU citizens and their family members obtain a right of residence under Union law in a Member State other than that of the EU citizen’s

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nationality as they are benefiting from an advantage inherent in the exercise of the right of free movement protected by the Treaty,72 regardless of the purpose of their move to that State.73 However, both the CJEU and the Commission define abuse as “an artificial conduct entered into solely with the purpose of obtaining the right of free movement and residence”.74 A residence which in actual fact is a ‘fake residence’ (cf. the problems mentioned with regard to ‘addresses of convenience’) would fall under such a concept of abuse. This of course cannot create rights under EU law. Article 35 of Directive 2004/38 could be of importance in such cases, as it provides that Member States may 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. An “address of convenience” could be treated in the same way and could consequently lead to the refusal, termination or withdrawal of the right to reside in a host Member State. A similar provision could be incorporated in Regulation 883/2004 with regard to residence within the meaning of Article 1(j) of Regulation 883/2004. As a final remark, it should be noted that this topic perfectly fits in an undeniable evolution towards greater scrutiny of the Member States regarding who is participating in their welfare circle. In the aftermath of the financial crisis, EU free movement tends to be under pressure due to national measures oriented to protect the financial balance of the social security system. It will indeed be an interesting challenge for the coming years to find the right balance between a fair delineation of the welfare state and the full respect for the free movement of persons within the European Union. In that regard, increased vigilance from the Member States and the European Commission will probably be indispensible.

72 Case C-212/97 Centros ECR [1999] I-1459, para 27 and Case C-147/03 Commission v Austria ECR [2005] I-5969, paras 67–68. 73 Case C-109/01 Akrich ECR [2003] I-9607, para 55 and Case C-1/05 Jia ECR [2007] I-0001, para 31. 74 One should keep in mind that, when the freedom of movement was extended from the economically active to the economically non-active population in the context of Union citizenship, there was a political agreement, that freedom of movement should not be extended to economically non-active persons who take the freedom of movement as a means to get the highest possible social benefit. The idea was to deprive those citizens from the right to free movement, if they intend to change residence driven by the mere motive to get more social benefits.

Part Three Equality and EU Citizenship

Reverse Discrimination – A Belgian Perspective Valérie Verbist* 1. Introduction According to settled case law of the Court of Justice, the Treaty provisions on free movement and the Treaty provisions on Union citizenship do not apply in purely internal situations.1 These are situations which have no connecting factor with any of the situations governed by European Union law and which are confined in all relevant respects to a single Member State.2 In absence of a cross-border element it is possible for a Member State to treat its own nationals less favourably than other Union citizens (both own nationals and nationals of other Member States) in a cross-border situation. According to the Court of Justice, Union law does not prohibit reverse discrimination and the Member States individually have to decide whether or not to remedy it.3 Although this case law has been strongly criticised, especially after the introduction of Union citizenship,4 the Court of Justice has on several occasions explicitly confirmed the purely internal situation rule. The most recent case law of the Court of Justice, however, clearly shows the

* I would like to thank G. De Baere, S. Feyen and the participants of the Jean Monnet Workshop at Nijmegen 25–26 May 2012 for their useful comments. 1 Regarding goods see eg ECJ case 286/81 Oosthoek [1982] ECR 4575; regarding services see eg ECJ case C-97/98 Jägerskiöld [1999] ECR I-7319; regarding workers see eg ECJ case 175/78 Saunders [1979] ECR 1129; regarding capital see eg ECJ joined cases C-515/99, C-519/99 to C-524/99 and C-526/99 to C-540/99 Reisch [2002] ECR I-2157; regarding establishment see eg ECJ case 204/87 Bekaert [1988] ECR 2029; regarding citizenship see eg ECJ joined cases C-64/96 and C-65/96 Uecker and Jacquet [1997] ECR I-3171. 2 ECJ case 175/78 Saunders [1979] ECR 1129, para 11 and ECJ case C-60/91 Batista Morais [1992] ECR I-2085, para 7. 3 ECJ case C-132/93 Steen [1994] ECR I-2715, para 10; ECJ joined cases C-64/96 and C-65/96 Uecker and Jacquet [1997] ECR I-3171, para 23 and ECJ case C-253/01 S.A. Krüger [2004] ECR I-1191, para 36. 4 N. Nic Shuibhne (2002), “Free movement of persons and the wholly internal rule: time to move on?”, 39 CMLRev, pp. 731–771; E. Spaventa (2008), “Seeing the wood despite the trees? On het scope of Union citizenship and its constitutional effects”, 45 CMLRev, pp. 13–45; A. Tryfonidou (2008), “Reverse discrimination in purely internal situations: an incongruity in a citizen’s Europe”, 35 LIEI, pp. 43–67.

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impact of Union citizenship on the appreciation of the existence of a link with Union law.5 Rather than analysing reverse discrimination from a Union law perspective,6 this chapter will explore the issue from a Member State perspective and it will in particular focus on the Belgian legal order. Both the position of the Belgian legislator and the approach of Belgium’s highest courts7 will be analysed.To start, I will examine how the issue of reverse discrimination is defined by the Belgian legal order (section II). Next, I will explore whether or not reverse discrimination is remedied in the Belgian legal system. In practice, remedying reverse discrimination comes down to extending the more favourable EU provisions to own nationals in a purely internal situation.8 So-called ‘autonomous’ occurs when this happens at the instigation of the national legislator.9 Two examples of legislative alignment by the Belgian legislator will be discussed (Section 3). However, if the national legislator allows situations of reverse discrimination – often implicitly by simply not extending the more favourable provisions at Union level to purely internal situations – it is possible that the national judge adjudges reverse discrimination in the light of the national constitutional principles. This chapter will focus on the assessment by the Belgian Constitutional Court of the compatibility of reverse discrimination with the constitutional principle of equality (section 4). 2. Definition of Reverse Discrimination by the Belgian Legal Order A first step in examining Belgium’s attitude towards reverse discrimination, is exploring how the issue is defined in the Belgian legal order, more specifically by the highest courts and the federal legislator. 5 ECJ case C-135/08 Rottman [2010] ECR I-1449; ECJ case C-34/09 Ruiz Zambrano ECR not yet reported; ECJ case C-434/09 McCarthy ECR not yet reported and ECJ case C-256/11 Dereci ECR not yet reported. 6 See eg K. Lenaerts (2011), “‘Civis europaeus sum’: from the cross-border link to the status of citizen of the Union”, 3 Online Journal FMOW pp. 6–18; H. Oosterom-Staples (2012), “To what extent has reversed discrimination been reversed?”, 14 EJML, pp. 151–172 and V. Verbist (2011), “De invloed van het Unieburgerschap op zuiver interne situaties”, 11 RW, pp. 510–527. 7 The relevant case law of the Constitutional Court and the Council of State will be discussed. The Court of Cassation, on the contrary, has not yet ruled on a situation of reverse discrimination, hence its case law will not be discussed. 8 The other option would be to apply to everyone, all own nationals and other Union citizens, the less favourable treatment. However, this would inevitably entail a violation of obligations of Union law. 9 See D. Kanf (2011), “Reverse discrimination in EV law: constitutional aberration, constitutional necessity, or judicial choice?” MI pp. 49–50.

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2.1. Definition by Belgium’s Highest Courts The Belgian Constitutional Court has not (yet) defined ‘reverse discrimination’. Up till now, the Court only used the term twice in the cases concerning the Flemish Care Insurance. In those judgments, it merely quoted the argument of reverse discrimination of the Government of the French Community of reverse discrimination and its definition thereof.10 Conversely, the Belgian Council of State has defined “the principle of reverse discrimination” in its case law. In a case concerning television broadcasting organisations,11 the Council of State considered that it follows from article 2.1 of Directive 89/552/EEC that the country of origin is responsible for controlling those organisations.12 The Council of State considered that on grounds of articles 3, 8 and 19 of the Directive, the Member States can impose more severe provisions for their own national broadcasting organisations, which coincides, still according to the Council, with “the principle of reverse discrimination”.13 At first sight, this definition does not entirely correspond with the one of the Court of 10 Belgian Constitutional Court 19 April 2006 no 51/2006, para B.12.1 and Belgian Constitutional Court 21 February 2009 no 11/2009, para B.2.1 (my translation): “a reverse discrimination with regard to national citizens who work in the Dutch-speaking region and who, after having made use of their right of free movement, have left a foreign Member State where they were residing in order to live in Belgium, outside the Dutch-speaking region and the bilingual region BrusselsCapital, lose the advantage of the Flemish Care Insurance system”.   In this case the application of national law in combination with Union law has led to a complex situation of reverse discrimination (ECJ case C-212/06 Vlaamse Zorgverzekering [2008] ECR I-1683, Opinion of AG Sharpston, para 119 and P. Van Elsuwege & S. Adam (2009), “The limits of constitutional dialogue for the prevention of reverse discrimination”, 5 EuConst 327, p. 337 and 339). In a ‘classic’ case of reverse discrimination national citizens in a purely internal situation are treated less favourably than Union citizens – own nationals or citizens of another Member State – who are in a cross-border situation. In a federally structured Member State an extra level is added when the federated entities act in a differentiated way in matters falling under their competences. After the amendment of the Flemish Decree, in line of the judgment of the Court of Justice and the Constitutional Court (Decree of 30 April 2009 [tot wijziging van het decreet van 30 maart 1999 houdende de organisatie van de zorgverzekering] BS 25 May 2009), the only category of persons who cannot profit from the advantages of the Flemish Care Insurance are Belgian citizens who work in Flanders or Brussels but live in the French- or Germanspeaking region and who have not made use of their right of free movement. (See also V. Verbist (2012), “Omgekeerde discriminatie en de Belgische rechtsorde: op zoek naar een standpunt”, in A. Alen & J. Theunis (eds), Leuvense Staatsrechtelijke Standpunten, Deel III, Die Keure, pp. 399, 416–427 and references there. 11 Belgian Council of State 19 February 1998 no71 932, the Dutch and French version are literal translations. 12 Belgian Council of State 19 February 1998 no71 932, Dutch version 10/14, French version 9/12. 13 Belgian Council of State 19 February 1998 no 71 932, Dutch version 11/14, French version 9/12.

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Justice, because according to the Council of State the definition of reverse discrimination also applies to cross-border situations, while according to the CJEU no reverse discrimination can exist in a cross-border situation. However, upon closer examination – and certainly in the light of the Directive in its current form – it appears that the Council of State’s definition of reverse discrimination does not correspond at all with the one of the Court of Justice. Directive 89/552/EEC has been amended three times in the meantime.14 Identical in the four versions of the Directive is the possibility for the Member States to set more detailed or stricter rules for broadcasters falling under their jurisdiction.15 Since the application of Directive 89/552/EEC has revealed the need to clarify the concept of jurisdiction, the amending Directives refer to the establishment criterion as the principal criterion determining the jurisdiction of a particular Member State.16 This already seems to imply that when a Member State has adopted more detailed or stricter rules, these rules apply to broadcasters falling under their jurisdiction both when these broadcasters are in an internal situation and when they are in a cross-border situation. This interpretation is confirmed by article 4 of Directive 2010/13/EU, currently in force, which provides how a Member State can act when it has adopted more detailed or stricter rules and it reaches the conclusion (after due assessment) that a broadcaster under the jurisdiction of another Member States provides a television broadcast which is wholly or mostly directed towards its own territory.17 First, the Member State should contact the Member State having jurisdiction with a view to achieving a mutually satisfactory solution to any problems posed. If these results are not satisfactory, 14 Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, OJ L 202, 30.7.1997, 60–70; Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, OJ L 332, 18.12.2007, 27–45; Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive), OJ L 95, 15.4.2010, 1–24. 15 Article 3, 8 and 19 Directive 89/552/EEC; preamble (44) and article 3 Directive 97/36/EC; preamble (32) and article 3 Directive 2007/65/EC; preamble (32)(41) and article 4 Directive 2010/13. 16 Preamble (10) and article 2 Directive 97/36/EC, Article 2 Directive 2007/65/EC, Preamble (35) and article 2 Directive 2010/13/EU. Since the criterion of establishment was already referred to in Directive 97/36/EC, which entered into force on 30 July 1997, the Council of State could have taken this into consideration in the case before it (case nr. 71 932). 17 Preamble (41)(42) and article 4 Directive 2010/13/EU. See also preamble (32)(33) and article 3 Directive 2007/65/EC.

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the first Member State may adopt appropriate measures against the broadcaster concerned where it assesses that the broadcaster in question has established itself in the Member State having jurisdiction in order to circumvent the stricter rules which would be applicable to it if it were established in the first Member State. Therefore, it can be concluded that the more detailed or stricter rules that a Member State can enact for media service providers under its jurisdiction apply both to purely internal situations and cross-border situations. Hence, this case before the Belgian Council of State concerning television broadcasting organisations was not the right moment to provide a definition of reverse discrimination since it rather seems to concern a case of minimum harmonisation at Union level where Member States are – explicitly – allowed to adopt stricter rules. The criterion of establishment in order to define the broadcasters falling under a Member State’s jurisdiction seems to be a justified criterion in the light of primary Union law. If a Member State decides to impose stricter conditions, this cannot be considered as any form of discrimination against the broadcasters falling under its jurisdiction. It is settled case law of the Court of Justice that “the prohibition on discrimination is not concerned with any disparities in treatment which may result, between the Member States, from divergences existing between the legislation of the various Member States so long as that legislation affects equally all persons subject to it”.18 2.2. Definition by the Belgian Legislator In the Belgian Parliament the issue of reverse discrimination was for the first time extensively discussed with the recent modification of the Belgian Aliens Act regar­ ding more tangent conditions for family reunification with Belgian citizens.19 Centrally in this respect was the question whether reverse discrimination, “which is permitted by European law, is also acceptable by Belgian law”.20 In other words, the question was whether Belgian citizens who have never made use of their right of free movement and Union citizens who have made use of their right of free 18 ECJ C-428/07 Horvath [2009] ECR I-6355, para. 55 and references there. 19 In contrast to the parliamentary debate concerning the formation of the Act of 15 December 1980 concerning the access to the territory, the residence, the establishment and the expulsion of aliens [Wet van 15 december 1980 betreffende de toegang tot het grondgebied, het verblijf, de vestiging en de verwijdering van vreemdelingen”] (hereafter “the Belgian Aliens Act”) where it was only considered that the family members of a Belgian citizen “would not be treated less favourably” than the family members of citizens from other EU Member States”, without explicitly referring to “reverse discrimination” or discussing it further (Parliamentary Documents Chamber of Representatives, 1977–78 no 144/7, 9). The issue of reverse discrimination was neither addressed when the Belgian Aliens Act was modified by the Act of 25 April 2007 (see infra note 11). 20 Parliamentary Documents Chamber of Representatives 2010–11 no. 53-0443/018, 207–208.

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movement should be treated in the same way, or whether they could be treated in a different – less favourable – way.21 The proponents of the Act argued that it follows from national sovereignty that the legislator has the right to treat own citizens differently than other EU citizens.22 According to them, this constitutes a difference in treatment, not a discrimination.23 They consider the stricter conditions as an instrument to control and limit migration, given the evidence that family reunification is “the most vast legal migration channel” and that the right to family reunification has been used ever more in an abusive way.24 However, the opponents contended that although Union citizenship does not prohibit that national legislation is in certain aspects more restrictive than European regulation in granting rights, this Act would undermine a strong conception of citizenship.25 Furthermore, they argued that the Act would imply a discrimination between distinct Belgian nationals: Belgian citizens who have made use of their right of free movement and Belgian citizens who have not made use of their right of free movement within the European Union.26 The latter enter into the scope of application of the more severe Belgian regulation and do not fall within the ambit of European Union law. The proponents of the Act maintained that this constitutes an unjustified difference in treatment that runs counter to the spirit of European integration.27 Notwithstanding these objections, more severe conditions were inserted for family reunification with Belgian citizens in a purely internal situation. This recent modification of the Belgian Aliens Act will be examined further in the next section. 3. Autonomous Legislative Alignment The national legislator can decide to remedy reverse discrimination by amending the national law thereby extending the more favourable EU provisions to own 21 Parliamentary Documents Chamber of Representatives 2010–11 no. 53-0443/018, 208. 22 Parliamentary Documents [Hand.] Chamber of Representatives 2010–11, 26 of May 2011, 32–33. See also Parliamentary Documents Chamber of Representatives 2010–11 no. 53-0443/018, 188. The proponents moreover invoked article 40ter of the Belgian Aliens Act that already treated the Belgian citizen in a stringenter way in case of family reunification with ascendants. 23 Parliamentary Documents [Hand.] Chamber of Representatives 2010–11, 26 May 2011, 32. 24 Parliamentary Documents Chamber of Representatives 2010–11, no. 53-0443/001, 3. 25 Parliamentary Documents [Hand.] Chamber of Representatives 2010–11, 26 May 2011, 79. 26 Parliamentary Documents [Hand.] Chamber of Representatives 2010–11, 26 May 2011, 85. See also Parliamentary Documents Chamber of Representatives 2010–11 no. 53-0443/018, 208. 27 Parliamentary Documents [Hand] Chamber of Representatives 2010–2011, 26 May 2011, 79 en 82.

Reverse Discrimination – A Belgian Perspective  271

nationals in a purely internal situation. Two examples in the Belgian legal order of this so-called ‘autonomous legislative alignment’ will be discussed here. 3.1. Family Reunification Until recently, a clear example of autonomous legislative alignment could be found in the Belgian Aliens Act concerning family reunification. Old article 40 §6 determined that “with the EEC-foreigner are […] equated, the spouse of a Belgian citizen who accompanies or joins him or her, as well as their direct descendants who are under the age of 21 or are dependent, their dependent direct relatives in the ascending line and the spouse of those direct relatives in the descending and ascending line who accompany or join them.” In other words, the listed family members of a Belgian citizen were equated with EEC-foreigners. As appears from the travaux préparatoires, it was the will of the legislator that family members of a Belgian citizen “would not be treated less favourably” than the family members of citizens from other EU Member States.28 Although it was not explicitly formulated like that during the treatment in Parliament, later on this provision was interpreted in the sense that the Belgian legislator wanted to avoid reverse discrimination by granting persons in a purely internal situation the same rights as the rights that Union law grants to ‘mobile’ Union citizens.29 The rights that Union law grants to Union citizens in a cross-border situation are enshrined in Directive 2004/38/EC.30 This Directive is a simplification and merger of different older Union instruments concerning the right of Union citizens to move and reside within the territory of the European Union.31 Article 3 (1) Directive 2004/38 determines that “this Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.” Consequently, a cross-border element is explicitly required.

28 Parliamentary Documents Chamber of Representatives, 1977–78 no. 144/7, 9. 29 See amongst others Belgian Council of State 15 May 2009 no. 193.348, 5/9 and Dirk Vanheule (2011–2012), “Recente ontwikkelingen in de verblijfswetgeving”, in Marie-Calire Foblets & Dirk Vanheule (eds), Vreemdelingenrecht, Themis, Die Keure, pp. 88–89. 30 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/ EEC and 93/96/EEC (hereafter ‘Directive 2004/38’). 31 See K. Lenaerts & Piet Van Nuffel (2011), European Union Law, Sweet & Maxwell, pp. 186–189.

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The Belgian legislator transposed Directive 2004/38 through an adaption of the Belgian Aliens Act, by Act of 25 April 2007.32 At that time, ex article 40 § 6 was repealed and article 40ter33 was inserted that determined that “the provisions of  this chapter that are applicable to the family members of a Union citizen who  accompany or join him, are [also] applicable on family members of a Belgian  citizen who accompany or join him. Concerning the ascendants referred to in article 40bis §2 (1) 4°, the Belgian citizen has to demonstrate that he has stable, regular and sufficient resources in order to prevent that they become a burden of the public authorities during their residence in the country, and that he has a care insurance that covers the risk of the family members concerned in Belgium.” Accordingly, the complete equation of family members of a Belgian citizen with Union citizens was terminated since the involved family members were no longer equated with Union citizens themselves, but with family members of Union citizens.34 Moreover, a reverse discrimination was inserted in relation to Belgian citizens who wanted to be accompanied by their ascendants, since they were subjected to the additional condition of the evidence of sufficient resources and a care insurance.35 This modification has been prompted by the purpose “to avoid that ascendants of Belgian citizens at their arrival in Belgium end up in precarious circumstances and become a burden of the public authorities”.36 Recently, however, the Belgian legislator has ended the equation of family members of Belgian citizens with family members of Union citizens.37 Three more stringent conditions for family reunification with Belgian citizens in a purely internal situation were inserted, which will each be briefly discussed in order to illustrate the issue of reverse discrimination. 32 Act of 25 April 2007 BS 10 May 2007. 33 In the meantime repealed by Act of 8 July 2011 (see infra note 12–15). 34 Herwig Verschueren (2007), “Het verblijfsrecht van EU-burgers en hun familieleden”, in MarieClaire Foblets and others (eds), De Nieuwe Vreemdelingenwet België in lijn met de Europese regelgeving, Migratie-en migrantenrecht recente ontwikkelingen, Deel 12, Die Keure, pp. 172–173. 35 As opposed to Union citizens in a cross-border situation who are not subjected to that condition. 36 Parliamentary Documents Chamber of Representatives 2006–07 no 2845/001, 44. According to Sabrine Dawoud this reverse discrimination of Belgian citizens for family reunification with ascendants did not have a large impact in practice (S. Dawoud, Gezinshereniging en omgekeerdediscriminatie: de Belgische context, Studiedag Centrum voor Gelijkheid van Kansen en voor Racismebestrijding, 6 December 2011). 37 Act of 8 July 2011 [Wet van 8 juli 2011 tot wijziging van de wet van 15 december 1980 betreffende de toegang tot het grondgebied, het verblijf, de vestiging en de verwijdering van vreemdelingen wat betreft de voorwaarden tot gezinshereniging]. The underlying reasons were discussed above (see supra n. 6).

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First, the right to family reunification with relatives in the ascending line for an adult Belgian citizen in a purely internal situation henceforth ceases to exist.38 Other adult Union citizens, on the contrary, preserve the right to unite with their direct relatives in the ascending line.39 Secondly, next to the proof of decent housing and a health insurance coverage, the present article 40ter of the Belgian Aliens Act determines that when a Belgian citizen in a purely internal situation wants his family members to be allowed to join him, he has to demonstrate that he is arounded with ‘stable, adequate and regular resources’. This condition is deemed to be fulfilled when a proof of income is presented of at least 120 % of the minimum supportive income.40 This income condition does not exist for Union citizens who have made use of their right of free movement. When a Union citizen is a worker or a self-employed person on the territory of another Member State, there are no additional conditions to be fulfilled in order to have a right of residence for more than three months.41 Only non-economically active citizens must have a comprehensive health insurance coverage in the host Member State and sufficient resources for themselves and their family members.42 Thirdly, in case of family reunification with a spouse, a partner in a registered partnership which is considered as equivalent to a marriage in Belgium43 or a partner of registered partnership which is not equated with a marriage in Belgium, both partners – the Belgian citizen and the foreign partner - have to be more than 21 years old.44 However, only with regard to a registered partnership which is not

38 They are no longer listed in article 40ter of the Belgian Aliens Act. 39 Article 2 (2) d juncto article 3 (1) Directive 2004/38. It has to be noted however that the Belgian legislator has formalised in article 40ter of the Belgian Aliens Act the existing practice of granting a residence permit to the ascendants of a minor who is a Belgian citizen. In Union law on the contrary, the right of the minor who is a Union citizen to be accompanied or joined by his or her ascendants has so far only been recognised in the case law of the Court of Justice (the so-called Chen case law) and not by legislative instruments at Union level. 40 Article 40ter of the Belgian Aliens Act. 41 Article 7(1) a) Directive 2004/38. 42 Article 7(1) b) Directive 2004/38. Article 8 (4) Directive 2004/38 determines that “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.” 43 That is to say, the partnerships registered in Denmark, Germany, Finland, Iceland, Norway, Sweden and the United Kingdom. See article 4 Royal Decree of 7 May 2008 [KB 7 mei 2008 tot vaststelling van bepaalde uitvoeringsmodaliteiten van de wet van 15 december 1980 betreffende de toegang tot het grondgebied, het verblijf, de vestiging en de verwijdering van vreemdelingen] BS 13 May 2008. 44 Article 40ter (penultimate paragraph) and 40bis § 2, 2° of the Belgian Aliens Act.

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equated with a marriage in Belgium must both the Union citizen and the partner be older than 21.45 Simultaneously, the Belgian legislator has inserted more severe conditions both for family reunification with Belgian citizens and for Union citizens. The legislator has determined criteria to demonstrate the durable and stable character of the relationship.46 In case of family reunification with children the Belgian citizen or Union citizen and his or her spouse or partner should have the right of custody over the child.47 Finally, the reference period in which the conditions have to be maintained has been prolonged and generalised to three years.48 Furthermore, this stricter regulation on family reunification does not seem an isolated case. In the legislation concerning nationality too, proposals have been made to subject the acquisition of Belgian nationality to more strict conditions.49 Although at first sight autonomous legislative alignment seems to be a clear and straightforward way of remedying reverse discrimination, on closer examination it appears that problems concerning its scope and interpretation arise. This is demonstrated by the disagreement within the Belgian Council of State on how to comprehend autonomously aligned legislation: the Dutch-speaking and the francophone sections seem to adhere to opposite views. The Dutch-speaking section of the Council of State considered that article 40§6 of the Belgian Aliens Act provides an equation for persons who do not fall within the scope of application of Directive 2004/38.50 It deemed that the equation in the national Belgian legislation by definition does not constitute a transposition of the Directive precisely because it relates to cases not falling within the scope of application of the Directive.51 It concluded that article 40§6 of the Belgian Aliens Act cannot be assessed on the basis of Directive 2004/38.52 The Dutch-speaking section of the Council of State seems to be of the opinion that the Belgian judge can diverge from the authoritative interpretation given to Directive 2004/38 by the Court of Justice, like in the Chen case.53

45 Article 40bis § 2, 2° of the Belgian Aliens Act. 46 Article 40bis §2, 2°a) of the Belgian Aliens Act. 47 Article 40bis §2, 3° of the Belgian Aliens Act. 48 Article 40quater §1 of the Belgian Aliens Act. 49 Parliamentary Documents Chamber of Representatives 2010–11 no. 53-0476/010, no. 53-0494/001, no. 53-0574/001, no. 53-0601/001, no. 53-0618/001 and no. 53-0742/001. 50 Belgian Council of State, 18 September 2009 no. 196 182, 9/10. 51 Belgian Council of State, 18 September 2009 no. 196 182, 9/10. 52 Belgian Council of State, 18 September 2009 no. 196 182, 9/10. 53 ECJ case C-200/02 Chen [2004] ECR I-9925.

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The French-speaking section of the Council of State had to examine a case decided by the Council for Alien Law Litigation.54 The latter had considered that the ascendant of a Belgian citizen could only obtain the right to reside on Belgian territory if he or she depends on the Belgian citizen, and this condition was not fulfilled in the case at issue.55 The Council for Alien Law Litigation recognised that in the Chen case a right of residence was granted to a third country national which was a non-dependent ascendant from a Union citizen.56 The Council considered that only the effet utile of the right of residence of the child justified that the parent who is that minor’s primary caretaker is allowed to reside with the child in the host Member State.57 The Council judged, however, that in the hypothesis of a third country national, parent of a Belgian minor who has always resided in Belgium and who has never made use of its rights of free movement, it is not possible to find a derogation from the condition of dependency on the Belgian national in name of the equality of treatment wanted by the legislator in the legal framework traced by article 40.58 Hence, the Council for Alien Law Litigation seemed to share the vision of the Dutch-speaking section of the Council of State: article 40 of the Belgian Aliens Act should not be interpreted completely in line with Directive 2004/38. The French-speaking section of the Council of State, however, judged that the contested judgment violated article 40 of the Belgian Aliens Act in the light of the assimilation wanted by the legislator between family members of a Belgian citizen and family members of a Union citizen.59 Consequently, the French-speaking section of the Council of State disagreed with the Dutch-speaking section and the Council for Alien Law Litigation. It decided that the equation by the Belgian legislator implies that article 40§6 should be interpreted completely in line with the European level, including in the Chen case law. 3.2. Inheritance Tax Another, less explicit, example of autonomous legislative alignment can be found in the inheritance tax law. The inheritance tax of inhabitants of Belgium constitutes a regional competence.60 The Flemish Decree regarding this matter provided 54 Belgian Council of State 15 May 2009 no. 193 348. 55 Belgian Council of State 15 May 2009 no. 193 348, 5/9. 56 Belgian Council of State 15 May 2009 no. 193 348, 5/9. 57 Belgian Council of State 15 May 2009 no. 193 348, 5/9. 58 Belgian Council of State 15 May 2009 no. 193 348, 6/9. 59 Belgian Council of State 15 May 2009 no. 193 348, 6/9. 60 Article 3 (1) 4 of the Special Law of 16 January 1989 concerning the financing of the Communities and the Regions BS 3 August 2001.

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an exemption from inheritance tax that applied to family companies, in particular those in which in the three years preceding the death of the deceased at least 50% of the share capital was held by the deceased and/or his spouse, but only on the condition that the undertaking or company employed at least five full-time workers in the Flemish Region in the three years preceding the death of the deceased.61 The Court of first instance of Hasselt referred a question for a preliminary ruling to the Court of Justice regarding this provision. The Court of Justice held that “in the absence of valid justification, Article 43 EC [now 49 TFEU] precludes inheritance tax legislation of a Member State which excludes from the exemption from that tax available for family undertakings those undertakings which employ in the three years preceding the date of death of the deceased at least five workers in another Member State, whereas it grants such an exemption where the workers are employed in a region of the first Member State”.62 This contested provision has consequently been amended by article 20 of the Flemish decree of 21 December 2007.63 Pursuant to this amendment, the exemption from inheritance tax is only allowed “on condition that the undertaking or company in the twelve quarters preceding the death, at least 500 000 euro salary costs were paid for workers employed in the European Economic Area”. It appears from the parliamentary works that the Flemish decree has been amended following the judgment of the Court of Justice in the Geurts and Vogten case. Although the Court of Justice only ruled on cross-border situations, the Flemish legislator nevertheless decided to repeal the criterion of employment in the Flemish Region. Accordingly, the Flemish legislator has chosen to apply the same criteria to both cross-border situations involving workers from other Member States and purely internal situations involving workers from Flanders, Wallonia and Brussels. Without explicitly referring to the concern to avoid reverse discrimination, the choice of the Flemish legislator comes down to autonomous legislative alignment. 4. Constitutional Principle of Equality This section will attempt to retrieve how the Belgian Constitutional Court assesses reverse discrimination in the light of the Belgian Constitution. More specifically, I will concentrate on the compatibility of reverse discrimination with the principle of equality and non-discrimination as enshrined in the articles 10 and 11 of the 61 Article 60a (subsequently 60bis) Inheritance Tax Code laid down by Royal Decree no. 308 of 31 March 1936 [Wetboek der successierechten] BS 7 April 1936. 62 ECJ Case 464/05 Geurts and Vogten [2007] ECR I-9325, para 29. 63 BS 31 December 2007.

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Belgian Constitution. Obviously, there are other important constitutional principles at stake when examining reverse discrimination, for example in a federally structured state the rules on the internal division of competences, but they will not be further discussed here.64 In theory, the Belgian Constitutional Court could assess in three different ways a situation of reverse discrimination in the light of the principle of equality and non-discrimination as enshrined in the Constitution. A first possibility is that the Constitutional Court deems that a purely internal situation on the one hand and a situation that does fall under the scope of Union law on the other hand, are not comparable, in which case there cannot be discrimination. A second possibility is that the Constitutional Court judges that the situations are comparable, but concludes that the difference in treatment is justified in the circumstances of the case. In that case there is likewise no discrimination, but a lawful difference in treatment. Finally, it is possible that the Constitutional Court deems the situations to be comparable and rules that the situation of reverse discrimination is a violation of the constitutional principle of equality. The first case where the Belgian Court of Arbitration (as it was called then)65 had the opportunity to take a position on reverse discrimination in the light of the constitutional principle of equality,66 concerned article 1 of the Act of 22 October 1990 concerning the granting of academic degrees and the program of university exams.67 The contested provision determined that “nobody is allowed to exercise the profession or function for which a academic degree is legally required, if he has not obtained the ratification of his diploma in accordance with the Acts on the granting of academic degrees and the program of university exams, coordinated by the Decision of the Regent of 31 December 1949. […] Nobody is allowed to compete for the function of engineer in public service if he has obtained none of the degrees of civil engineer, agricultural engineer or engineer of chemistry and agronomy as determined in article 1 of the above

64 See footnote 9. 65 On 7 May 2007, the name of the Court was changed, by amendment of the Belgian Constitution, into “Cour constitutionnelle/Grondwettelijk Hof/Verfassungsgerichtshof” (Constitutional Court) BS 8 May 2007, 25101 and 25102. 66 Then the articles 6 and 6bis of the Constitution. 67 [Wet van 22 oktober 1990 tot vervanging van artikel 54 van de wetten op het toekennen van de academische graden en het programma van de universitaire examens] BS 20 December 1990. In the meanwhile this Act has been modified by [wet van 13 april 1997 tot wijziging van de wet van 22 oktober 1990 tot vervanging van artikel 54 van de wetten op het toekennen van de academische graden en het programma van de universitaire examens, gecoördineerd bij het besluit van de Regent van 31 december 1949] BS 24 June 1997.

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mentioned Acts, as well as the ratification of his diploma, in accordance with the same Acts”.68 The applicants complained of different forms of discrimination, but the following focuses on the reverse discrimination argument which they raised.69 The applicants argued that the holders of a foreign diploma are favoured as compared to the holders of a Belgian diploma with a scientific degree. Only foreign diplomas could namely make use of the procedure of equivalence. Therefore, foreign diplomas without a legal degree and without ratification by the homologation commission could compete for the function of engineer in public service. The applicants submitted that it is paradoxical that a Belgian citizen who had studied abroad, could obtain the equivalence of his diploma on the basis of the Act of 19 March 1971 concerning het equivalence of foreign diplomas and study certificates70 while engineers of the ‘K.M.S.’ or engineers with scientific degree could not claim such an equivalence.71 The Court of Arbitration decided that “one cannot compare the situation of a person living abroad who therefore cannot obtain a diploma issued in Belgium and that of a person living in Belgium who has chosen to study there, which does not lead to the granting of an academic degree”.72 It is, however, problematic that the Court did not specify the nationality of that person. In the hypothesis that the Court of Arbitration had decided that the situation of a Belgian citizen “who lives abroad and therefore cannot obtain a diploma issued in Belgium” is not comparable with the situation of a Belgian citizen “who has chosen to study there, which does not lead to the granting of an academic degree”, it would be possible to deduce from this judgment the position of the 68 [Niemand mag een beroep of een ambt uitoefenen waartoe een academische graad wettelijk vereist wordt, zo hij die graad en de bekrachtiging van zijn diploma niet verkregen heeft overeenkomstig de wetten op het toekennen van de academische graden en het programma van de universitaire examens, gecoördineerd bij het besluit van de Regent van 31 december 1949. […] Niemand wordt toegelaten om mede te dingen naar het ambt van ingenieur bij het openbaar ambt, indien hij geen der graden van burgerlijk ingenieur, landbouwkundig ingenieur of ingenieur voor de scheikunde en de landbouwindustrieën bepaald in artikel 1 van de bovenvermelde wetten verkregen heeft, evenals de bekrachtiging van zijn diploma, overeenkomstig diezelfde wetten.] 69 Belgian Court of Arbitration 18 June 1992 no 47/92, para A.4.1.1.3. 70 [Wet van 19 maart 1971 betreffende de gelijkwaardigheid van de buitenlandse diploma’s en studiegetuigschriften] BS 12 June 1971. Repealed for the Flemish Community by the decree of the Flemish Parliament of 1 July 2011. 71 Royal Military Academy [Koninklijke Militaire School]. 72 Belgian Court of Arbitration 18 June 1992 no 47/92, para B.7: [men de situatie van een persoon die in het buitenland leeft en daardoor geen in België afgeleverd diploma kan bekomen, en die van een persoon die in België leeft en ervoor gekozen heeft daar studies te volgen die niet leiden tot het toekennen van een academische graad, niet met elkaar [kan] vergelijken.]

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Court towards reverse discrimination. The former Belgian citizen, namely, would be in a situation with a link with Union law – the Court explicitly recognised this possibility in the first paragraph of consideration B.7 – while the latter Belgian citizen would be in a purely internal situation. Since the Court of Arbitration has, however, not specified the nationality of the persons concerned, it is also possible that twice citizens of another Member State are involved. In that case, both situations would clearly have a connecting factor with Union law. Therefore, it is not possible to deduce with certainty from this judgment that according to the Belgian Court of Arbitration purely internal situations and situations that fall under Union law are not comparable – even though the applicants have extensively expounded and criticized the reverse discrimination at issue, thus the Court was certainly aware of the problem. In the judgment of 19 March 2009 the Constitutional Court seemed to take a clearer point of view. The case concerned a distinction between Belgian principals depending on whether they have recourse to contracting partners established in Belgium but not registered with the Belgian authorities or contracting partners neither established in Belgium nor registered with the Belgian authorities. Article 30bis §1 of the Act of 27 June 1969 imposed on these first principals several liabilities for the payment of the contractor’s tax debts.73 The last category of principals, on the contrary, could withdraw from this several liability on the basis of the judgment of the Court of Justice in Case C-433/04.74 Obviously, this concerned a situation of reverse discrimination in which the purely internal situations are subjected to stricter national provisions. The Constitutional Court judged that the contested difference in treatment resulted from the Treaty provisions applying to the circumstances of the case, namely article 56 TFEU75 that applies to “nationals of Member States who are established in a Member State other than that of the person for whom the services are intended”. The Court added that consequently, this provision does not apply to situations falling entirely within the internal legal system.76 The Constitutional Court concluded that “since the case pending before the referring judge is entirely situated within the internal legal system, it is not necessary, in order to reply to the question whether the contested provision is compatible with 73 Act of 27 June 1969 [wet van 27 juni 1969 tot herziening van de besluitwet van 28 december betreffende de maatschappelijke zekerheid der arbeiders] as applied before the amendment of it by the Royal Decree of 26 December 1998. In the meantime this Act has been modified by the act of 27 April 2007 [programmawet van 27 april 2007]. 74 ECJ case C-433/04 Commissie/België, [2006] ECR I-10653. 75 Then article 49 TEC. 76 Belgian Constitutional Court 19 March 2009 no. 56/2009, para B.4.3.

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the articles 10 and 11 of the Constitution, to compare that situation with situations ruled by Union law”.77 The judgment of 2 February 2012 concerned a very similar constellation of facts. The case regarded the same distinction between Belgian principals depending on whether they have recourse to contracting partners established in Belgium but not registered with the Belgian authorities or contracting partners not established in Belgium and neither registered with the Belgian authorities. The Constitutional Court was asked in this case to pronounce itself on the constitutionality of article 403 §§1 and 2 Income Tax Code [Wetboek Inkomstenbelastingen] 1992. The Court concluded in the same way – and in quasi the same wordings as in judgment 56/2009 – that “since the pending case before the referring judge has to be situated entirely within the internal legal system, it is not necessary, in order to reply to the question if the contested provision is compatible with the articles 10 and 11 Constitution, to compare that situation with situations that are governed by Union law”.78 At first sight, the Constitutional Court ruled in judgements 56/2009 and 13/2012 that purely internal situations and situations that do fall under Union law are not comparable, with the consequence that reverse discrimination cannot be forbidden on the basis of the principle of equality as enshrined in the articles 10 and 11 of the Constitution. On closer examination, however, serious doubts rise about whether the Constitutional Court really had the intention to take a position on reverse discrimination. After all, the Court nowhere ascertained whether there was a situation of reverse discrimination and neither did the parties explicitly broach the issue. Possibly, the Constitutional Court ruled that the situations are not comparable simply in order not to further appraise the case. As Rimanque has sharply formulated it, it is “the consequence of often summarily motivated rejection […] that it becomes superfluous to examine whether the difference in treatment is legitimate, since in the absence of comparability the problem of equality does not arise”.79 77 Belgian Constitutional Court 19 March 2009, no. 56/2009, para B.4.4: [aangezien de zaak die aanhangig is voor de verwijzende rechter volledig gesitueerd is binnen de interne rechtsorde, dient voor de beantwoording van de vraag of de in het geding zijnde bepaling bestaanbaar is met de artikelen 10 en 11 van de Grondwet, die situatie niet te worden vergeleken met situaties die door het [Unie]recht worden beheerst.] 78 Belgian Constitutional Court 2 February 2012 no. 13/2012, para B.5.3: [aangezien de zaak die aanhangig is voor de verwijzende rechter, evenwel volledig dient te worden gesitueerd binnen de interne rechtsorde, moet voor de beantwoording van de vraag of de in het geding zijnde bepaling bestaanbaar is met de artikelen 10 en 11 van de Grondwet, die situatie niet worden vergeleken met situaties die door het recht van de Europese Unie worden beheerst.] 79 K. Rimanque (1992–93), “De paradoxale werking van het gelijkheidsbeginsel”, RW 6, p. 9: [het gevolg van de vaak summier gemotiveerde afwijzing […] dat het overbodig wordt te onderzoeken of de ongelijke behandeling wel rechtmatig is, aangezien bij afwezigheid van vergelijkbaarheid

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An alternative interpretation is that this consideration, rather than pertaining to the comparability of purely internal situations and cross-border situations, concerns the demarcation of the question referred for a preliminary ruling. The consideration of the Court that in order to answer the question the situations should not be compared, is not the same as concluding that the situations are not comparable. In its judgment of 8 July 2010 the Constitutional Court had to decide on the compatibility of the above-mentioned exemption from inheritance tax,80 as applied in the Flemish Region before the amendment by the Flemish decree of 21 December 2007, with the Belgian constitutional principle of equality on the one hand and the Belgian rules governing the allocation of competences and the rules on the Belgian economic and monetary union on the other hand. Assessing the compatibility of the contested provision in the light of the last category of rules, the Constitutional Court completely followed the reasoning of the Court of Justice in the Geurts and Vogten case. The Court considered that the exemption impedes the freedom of establishment and consequently the free movement of capital.81 Since the Court considered that no acceptable justification was adduced, it concluded that the regulation at the time was in violation of the rules governing the internal allocation of competences and the Belgian economic and monetary union.82 Therefore – and unfortunately in the light of the question examined in this section – it did not examine further the compatibility with the Belgian constitutional principle of equality.83 In October and November 2011, three actions for annulment were lodged with the Belgian Constitutional Court against article 9 of the Act of 8 July 2011 amending the Belgian Aliens Act.84 Given the fact that the parties invoke among others the articles 10 and 11 of the Constitution and Directive 2004/38 and in the light of the recent case law of the Court of Justice in the judgments Ruiz Zambrano, McCarthy and Dereci, this seems an excellent opportunity for the Belgian Constitutional Court to take a position of principle regarding the assessment of reverse discrimination in the light of the constitutional principle of equality. het gelijkheidsprobleem niet rijst. De lastige vragen omtrent de verantwoording en de ernst van de ongelijkheid worden vermeden.] See also V. Flohimont (2008), “Comparaison et comparabilité dans la jurisprudence de la cour constitutionelle: rigeur ou jeu de hasard?”, 3 RBDC 217, p. 234. 80 See supra n 20–21. 81 Belgian Constitutional Court 8 July 2010 no. 83/2010, para B.9. 82 Belgian Constitutional Court 8 July 2010 no. 83/2010, paras B.9–B.10. 83 Belgian Constitutional Court 8 July 2010 no. 83/2010, para B.10. 84 See supra note 12–15. Article 9 Act 8 July 2011 amends the (old) article 40ter of the Belgian Aliens Act. It concerns the cases with numbers 5227, 5248 and 5245.

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5. Conclusion This chapter explored Belgium’s attitude towards reverse discrimination. First, it was examined how the issue is defined by the Belgian legal order. Amongst Belgium’s highest Courts, only the Council of State has defined reverse discrimination. At first sight, its definition has a wider scope than the one of the Court of Justice because according to the Council of State the definition of reverse discrimination also applies to cross-border situations while according to the CJEU no reverse discrimination can exist in a cross-border situation. Upon closer examination, however, the underlying case, rather than constituting a situation of reverse discrimination, concerned a case of minimum harmonisation at Union level where Member States are explicitly allowed to adopt stricter rules for broadcasters falling under their jurisdiction, also when they are in a cross-border situation. This attempt to define reverse discrimination already illustrates the complex nature of the issue. In the Belgian Parliament, the issue of reverse discrimination was for the first time extensively discussed with the recent modification of the Belgian Aliens Act. The Belgian legislator seemed – at least implicitly – to adhere to the view of the Court of Justice on purely internal situations, using the criterion “having made use of the right of free movement”. No Belgian Act mentions explicitly ‘reverse discrimination’ nor provides a definition of it. Next, it was explored whether or not reverse discrimination is remedied in the Belgian legal system. The national legislator can decide to remedy reverse discrimination by amending the national law and thereby extending the more favourable EU provisions to own nationals in a purely internal situation. Two examples in the Belgian legal order of this so-called ‘autonomous legislative alignment’ were discussed. Until recently, the Belgian Aliens Act concerning family reunification was a clear example of autonomous legislative alignment. Family members of Belgian citizens were equated with (family members of) citizens from other EU Member States in order not to treat the former less favourably than the latter. In July 2011, however, the Belgian legislator has ended this equation and inserted three more stringent conditions for family reunification with Belgian citizens in a purely internal situation. Simultaneously, the Belgian legislator has inserted more severe conditions both for family reunification with Belgian citizens and for Union citizens. Furthermore, this stricter regulation on family reunification does not seem an isolated tendency. In the legislation concerning nationality too, proposals have been made to subject the acquisition of Belgian nationality to more severe conditions. Thus, the Belgian legislator has altered his view under the changing social

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and political circumstances. First, the Belgian legislator wanted to avoid reverse discrimination, but recently he has consciously chosen to insert more severe conditions for own nationals in purely internal situations and thus creating situations of reverse discrimination. A second example of autonomous legislative alignment can be found in Belgian’s inheritance tax law, which is a regional competence. After the judgment of the Court of Justice in the Geurts and Vogten case, the Flemish Decree on inheritance tax has been amended, not only for cross-border situations, but also for purely internal situations. The Flemish legislator has chosen to apply the same criteria to situations involving both workers from other Member States and from Flanders, Wallonia and Brussels. Without explicitly referring to the concern to avoid reverse discrimination, this choice comes down to autonomous legislative alignment. Although at first sight autonomous legislative alignment seems to be a clear and straightforward way of remedying reverse discrimination, on closer examination it appears that problems concerning its scope and interpretation arise. This is demonstrated by the attitude of the Belgian Council of State towards autonomously aligned legislation: the Dutch and the French speaking sections seem to disagree on whether the Court of Justice’s interpretation of Union provisions should be followed at the national level if the national legislator has chosen to align its legislation autonomously. If the national legislator allows situations of reverse discrimination – often implicitly by simply not extending the more favourable provisions at the Union level to purely internal situations – it is possible that the national judge assesses reverse discrimination in the light of the national constitutional principles. This paper focused on the assessment by the Belgian Constitutional Court of the compatibility of reverse discrimination with the constitutional principle of equality. Up till now, the Belgian Constitutional Court seemed to circumvent the issue. The actions for annulment lodged with the Court against article 9 of the Act of 8 July 2011, seem an excellent opportunity for the Belgian Constitutional Court to take a position of principle regarding the assessment of reverse discrimination in the light of the constitutional principle of equality. It clearly follows from the above that the Belgian legal order has no generally shared vision on the issue of reverse discrimination. The variety of reactions within the Belgian legal system concerning reverse discrimination should not necessarily be considered as problematic, it could also be regarded as enriching. The definition of reverse discrimination of the Council of State, for example, can be seen as an incentive for the Court of Justice to refine its case law on purely internal situations and reverse discrimination. The fact that the Belgian legislator

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decided to alter his attitude on reverse discrimination in the matter of family reunification, seems to indicate that the Member States consciously make use of their competence to decide whether or not they remedy situations of reverse discrimination, depending on changing social and political factors. The attitude of the Belgian Constitutional Court, however, which seems to avoid addressing the issue openly, should certainly not be encouraged.

Citizenship of Rights and the Principle of the Highest Standard of Fundamental Rights’ Protection: Notes on the Melloni Case Alessandra Aparecida Souza Silveira 1. Interconstitutionality The specificities of the fundamental rights’ protection in the EU are directed by an interconstitutionality logic. Interconstitutionality, in the context of EU law, corresponds to the reflexive interaction of constitutional norms from several sources (in case, international, national and European norms regarding fundamental rights) that co-exist in the same political space, and demands a networked performance to solve common problems. The network metaphor used herein to explain that national constitutional law instruments’ no longer capture the meaning and the limits or supply legally adequate interpretations for the problems of European integration, which in turn demands the development of the interconstitutionality theory to explain what is happening.1 Yet the problem that arises before the national courts facing the enforcement of the Union’s fundamental

1 The interconstitutionality theory has been developed by the Portuguese doctrine (Francisco Lucas Pires, J.J. Gomes Canotilho). In English, the current expression for this phenomenon is “multilevel constitutionalism”. On this subject, see L. Besselink (2013), “Multiple political identities: revisiting the maximum standard”, in Alessandra Silveira, Pedro Froufe & Mariana Canotilho (eds), Citizenship and solidarity in the European Union – from the Charter of Fundamental Rights to the crisis, the state of the art, Brussels: Peter Lang, forthcoming: “In Portuguese, the equivalent expression lacks the adjective ‘multilevel’: it speaks of ‘interconstitucionalidade’, literally ‘interconstitutionality’. I strongly prefer this over the expression ‘multilevel constitutionalism’. The metaphor ‘multilevel’ presupposes the existence of ‘levels’. In turn, levels imply hierarchy: one level is by definition higher than, i.e. superior to the other; the other is subordinate to the one. In the day and age of globalization, hierarchy has become a contested concept also in constitutional law. It may no longer adequately explain the relationship between constitutional orders. There is something in the very notion of ‘constitution’ which prevents speaking of the relation between constitutions as formally ‘hierarchical’. Constitutions are nowadays associated with ‘constitutionalism’. And ‘constitutionalism’ is not primarily a formal notion but a substantive notion: it refers to constitutional values, the values by which we have ordered our political communities. It is precisely this quality, which seems to prevent ranking these various societies in terms of superior and inferior political communities.”

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rights in specific cases is precisely finding the enforceable protection standard, for such standard can even be the one found in the national constitution (as sought for by the Spanish Constitutional Court in the Melloni case, and as we will see later on), but always pursuant to EU law which demands the application of the highest standard of protection. Here preliminary rulings (Article 267 TFEU) prove to be essential for the determination of the enforceable legal content in an interconstitutional framework. It is so for the entry into force of the CFREU offers a catalogue of fundamental rights to all under the jurisdiction of the Union – who now previously recognize their rights in this context – but it does not change the essence of the Union’s fundamental rights praetorian construction, resultant of the dialogue between jurisdictions, for fundamental rights are still enforced according to EU law’s own criteria (or filtered through the legal model of European integration). Therefore, the protection of fundamental rights in the EU context depends on the assimilation, mainly by the Member States judiciary, of the fact that in an interconstitutionality framework it is not enough to solve the fundamental rights problem in light of the national constitution – for the problem now concerns every citizen in the Union, which may now benefit from a higher protection, by means of the preliminary ruling of the ECJ. The effectiveness of EU law would be threatened if national courts resolved the issue of fundamental rights’ protection, which falls within the scope of application of EU law, exclusively in light of the national constitutional legal order, as it would hinder every European citizen from benefiting from the (highest) fundamental rights’ protection standard applicable to that particular situation. 2. The Real Issue In the Melloni case (C-399/11), judgment of 26 February 2013, the ECJ was called upon, for the first time, to interpret/clarify the meaning of Article 53 CFREU. This article states that the enforcement of the principle of the highest (or maximum) standard of fundamental rights’ protection in an interconstitutional context – or in a context of “coexistence of the various instruments protecting fundamental rights”, in the words of Advocate General Yves Bot.2 This principle teaches that if, in order to provide a solution for a specific situation covered by EU law, rules originating from different legal systems that protect the same fundamental right are enforceable (European, international, and national), the rule to apply is the one that grants a higher protection to the person entitled to the right in question. The preliminary ruling procedure originated from the Spanish Constitutional Court 2 See Melloni (C-399/11) October 2, 2012, A. G. Opinion, paragraph 2.

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case law, whereby the execution of a European Arrest Warrant issued for the enforcement of a judgment in absentia must always be conditional to the holding of a new hearing of the case in the issuing Member State.3 Based on this assumption, the Spanish Constitutional Court referred the case to the ECJ in order to know if Article 53 CFREU allowed the court to confer a higher protection to the defence rights of the defendant than the one, which in its perspective, would result from the enforcement of EU law. Nonetheless, it so happens that the Spanish constitutional case law imposes a doubtful compatibility condition with EU law, insofar as Article 4-A (1) of the Council Framework Decision 2002/584/ JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (as amended by Council Framework Decision 2009/299/ JHA), if the person being aware of the scheduled trial, has given a mandate to a legal counsellor, the surrender cannot be subjected to a condition such as the one derived from the case law of the Spanish Constitutional Court – namely, the holding of a new hearing of the case. 3. The Facts On October 1st 1996, the competent Spanish court held that the surrender of Stefano Melloni to the Italian authorities was justified, in order to be tried for the acts set out in the arrest warrants Nos. 554/1993 and 444/1993 – issued, respectively, on 13 May and 15 June 1993. Nevertheless, because he was released on bail, Melloni fled – therefore he was never surrendered to the Italian authorities. In the judgment of 27 March 1997, the Tribunale di Ferrara (Italy) declared that Melloni had failed to make appearance in court and directed that notice should in future be given to the lawyers who had been chosen and appointed by him. By judgment of 21 June 2000 of the Tribunale di Ferrara, subsequently confirmed by judgment of 14 March 2003 of the Corte d’appello di Bologna (Italy), Melloni was sentenced in absentia to 10 years’ imprisonment for bankruptcy fraud. By judgment of 7 June 2004, the Corte suprema di cassazione (Italy) dismissed the appeal lodged by Melloni’s lawyers – and on 8 June 2004, the Procura Generale della Repubblica

3 In its judgment 199/2009 of 28 September 2009, the TC upheld the ‘recurso de amparo’ filed in relation to an order for surrender of the person concerned to Romania, in implementation of a European arrest warrant issued for the purposes of execution of a sentence of four years’ imprisonment imposed in absentia, without mentioning the requirement that the conviction in question be amenable to review. In that regard, the TC rejected the Audiencia Nacional’s argument to the effect that a conviction in absentia had not in fact occurred, since the applicant had given a power of attorney to a lawyer who appeared in the trial as his private defence counsellor. See Melloni (C-399/11) February 26, 2013, paragraph 22.

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(Italian Public Prosecutor’s Office) in the Corte d’appello di Bologna issued European arrest warrant No 271/2004 for execution of the sentence imposed by the Tribunale di Ferrara. Following his arrest in Spain, Melloni opposed surrender to the Italian authorities – claiming the alleged infringement of his procedural defence rights. However the competent Spanish court considered that his rights of defence had been respected, since he had been aware from the outset of the forthcoming trial and deliberately absented himself (while appointed two lawyers to represent and defend him, who had acted in that capacity at first instance and in the appeal and cassation proceedings, thus exhausting all remedies). Dissatisfied with that decision, Melloni filed a ‘recurso de amparo’ (petition for constitutional protection) against that order before the Spanish Constitutional Court, alleging infringement of the absolute requirements deriving from the right to a fair trial proclaimed in Article 24(2) of the Spanish Constitution, insofar as the court order would allow the surrender to countries which validate findings of guilt made in absentia, without making surrender subject to the condition that the convicted party is able to challenge them. 4. The Questions Referred According to the Spanish Constitutional Court, the difficulty arises from the repeal of Article 5 (1) of the Council Framework Decision 2002/584/JHA by the Council Framework Decision 2009/299 – which inserted a new article, Article 4-A. Article 5 (1) provided for the possibility for the execution of a European Arrest Warrant, issued for the purpose of executing a decision rendered in absentia, to be subject “by the law of the executing Member State”, to the following condition “that the issuing judicial authority gives an assurance deemed adequate to guarantee the person who is the subject of the European arrest warrant that he or she will have an opportunity to apply for a retrial of the case in the issuing Member State and to be present at the judgment”. Now, Article 4-A prevents de Member State to “refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision”, when, “being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial”. The case-file established that Melloni had appointed two trusted lawyers, whom the Tribunale di Ferrara notified of the forthcoming trial, so that he was aware of it. It is also established that Melloni was actually defended by those two lawyers at the ensuing trial at first instance and also in the subsequent appeal and cassation proceedings. Therefore, for the Spanish Constitutional Court, the question arises whether Framework

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Decision 2002/584 precludes the Spanish courts from making surrender of Melloni conditional on the right to have the conviction in question reviewed. In case the Spanish case law is precluded by Framework Decision 2002/584, the Spanish Constitutional Court wants to know if the aforementioned Framework Decision is compatible Articles 47 and 48 (CFREU) which establish the requirements deriving from the right to an effective judicial remedy and to a fair trial, and the rights of defence. In other words, the ECJ is asked to give a ruling not only on the provisions of the Framework Decision but also on their validity in the light of the CFREU. If the Framework Decision is compatible with the CFREU, the Spanish Constitutional Court also wants to establish if Article 53 (CFREU) allows it to afford, in its view, a greater level of protection than that deriving from EU law.4 5. The Court’s Solution The ECJ concluded that this was not a matter of enforcement of the fundamental rights’ highest standard of protection, for the Spanish Constitutional Court case law would undermine the very effectiveness principle of EU law. The EU legislature provided an exhaustive list of the situations that must be regarded as not infringing the defence rights of those who did not appear in person at the trial – therefore the arrest warrant must be executed.5 Thus, EU law allows the executing judicial authorities to refuse to execute the European arrest warrant for a person convicted in absentia – but also imposes limits to this refusal, that is, if the person was informed of the date and place of the trial or was defended by a legal counsellor to whom he had given a mandate to do so. Hence the Spanish Constitutional Court case law could jeopardize the uniform application of EU law in the various Member States, insofar as it would hamper the execution of arrest warrants (in judgments in absentia) much beyond the EU legislature’s intention. In that way, the ECJ concluded that it is true that Article 53 of the Charter confirms that, where an EU legal act calls for national implementing measures, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level

4 Or verbatim: “does Article 53 CFREU, interpreted schematically in conjunction with the rights recognized under Article 47 and 48 of the Charter, allow a Member State to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the requesting State, thus affording those rights a greater level of protection than that deriving from European Union law, in order to avoid an interpretation which restricts or adversely affects a fundamental right recognized by the constitution of the first-mentioned Member State?” See Melloni (C-399/11) February 26, 2013, paragraph 26. 5 See Melloni (C-399/11) February 26, 2013, paragraph 44.

290  Alessandra Aparecida Souza Silveira of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised.6

Since that was not at all the case in the particular circumstances, for, as explained by the ECJ, the principle of the highest standard of fundamental rights’ protection does not allow a Member State to not apply EU legal rules which are fully in compliance with the Charter where they infringe the fundamental rights guaranteed by that State’s constitution.7 Otherwise, the ECJ has expressed this view since the famous Costa/ENEL judgment,8 whereby the executive force of the EU law cannot vary from one State to another in deference to domestic laws, without jeopardizing the attainment of the objectives of the European treaties. As stated by Advocate General Poiares Maduro in his Opinion delivered on the Arcelor case, the effect of being able to rely on national constitutions to require the selective and discriminatory application of Community provisions in the territory of the Union would, paradoxically, be to distort the conformity of the Community legal order with the constitutional traditions common to the Member States.9

Consequently, allowing a Member State to avail itself of Article 53 of the Charter to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State, a possibility not provided for under Framework Decision 2009/299, in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by the constitution of the executing Member State, by casting doubt on the uniformity of the standard of protection of fundamental rights as defined in that framework decision, would undermine the principles of mutual trust and recognition which that decision purports to uphold and would, therefore, compromise the efficacy of that framework decision.10

In the wake of the Melloni judgment the issue which arises is in which circumstances the principle of the highest standard of fundamental rights’ protection in the EU should be applied. But let us begin by understanding under which circumstances the fundamental rights protected by the EU could be invoked. 6. The Scope of Application of the Union’s Fundamental Rights It derives from ECJ case law, confirmed by Article 51 CFREU, that the fundamental rights protected by the EU legal order may be invoked when the measure at stake 6 See Melloni (C-399/11) February 26, 2013, paragraph 60. 7 See Melloni (C-399/11) February 26, 2013, paragraph 58. 8 See Costa/ENEL (6–64) July 15, 1964. 9 See Arcelor (C-127/07), May 21, 2008, A. G. Opinion, paragraph 16. 10 See Melloni (C-399/11) February 26, 2013, paragraph 63.

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belongs to the material field of application of EU law.11 Thus, if the EU fundamental rights’ protection depends on whether or not the situation falls under the field of application of EU law, it is important to clearly define the extension of that field. The solution of the enigma results from both the letter and the spirit of Article 51 CFREU: the field of application of EU law is the one that derives from its competences, as stated in Article 2 TFEU. Therefore, if the Union is competent in a certain field, the standard of fundamental rights’ protection to apply to concrete cases is the EU’s. This problem was not as clearly posed in the EU, because the Treaties did not define criteria to direct the division of competences between Member States and Union – something that is now stated in Article 5 TEU and Article 1 to Article 6 TFEU –, having Article 51 CFREU definitely established an evident relationship between the EU fundamental rights’ protection with the field of application of EU law defined by the Union’s competences. So, for one to be able to invoke the EU standard of fundamental rights’ protection, it is enough that the measure adopted by national or EU authorities belongs to the field of application of EU law – which derives from EU competences. And the Treaties’ provisions about EU citizenship definitely fall within that scope. Therefore, the real question nowadays about EU citizenship is the urgent clarification of the scope of application of the fundamental rights in the EU – and the consequent access by citizens to the highest standard of protection, in order to avoid an inadmissible difference in treatment between the so-called ‘mobile citizens’ (who exercise their classic EU rights/economic freedoms and therefore benefit from the EU standard of fundamental rights) on one hand, and ‘static citizens’ (who do not exercise economic freedoms, and for that reason do not benefit from the EU standard of fundamental rights’ protection) on the other. The current EU standard of fundamental rights’ protection does not allow the phenomenon of ‘reverse discrimination’ to have a follow-up. This phenomenon implies the differentiation of treatment, even in relation to the fundamental rights, between mobile and static citizens – and is in visible disrespect towards Article 18 TFEU, according to which discrimination based on nationality is prohibited. That result would no longer be compatible with the actual context of citizenship of rights and with the trend to match legal positions, using the EU standard of fundamental rights as a basis. It was predictable that the entry into force of the CFREU would cause such 11 See Klensch (joined cases 201/85 and 202/85) November 25, 1986, paragraphs10 and 11; Wachauf (5/88) July 13, 1989, paragraph 22; Bostock (C-2/92) March 24, 1994, paragraph 16; Booker Aquaculture (joined cases C-20/00 and C-64/00) July 10, 2003, paragraph 68. It is firm ECJ jurisprudence that Member States must respect fundamental rights protected by EU law: 1) when applying EU law, 2) when temporarily derogating EU norms, 3) when transposing EU directives, 4) when adopting national measures of execution of European legislation, 5) when applying national law in the material field of application of EU law.

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demands, as both the EU and Member States are now formally bound by the same standards of legality (Union based on the rule of law) and fundamental rights (principle of the highest standard of protection). However, the consequences of this new unfolding of fundamental rights in the European integration process are yet to be seen. But it is certain that since Zambrano up to the Ymeraga12 case, the ECJ has been faced with the impact of fundamental rights (in particularly the protection of family life) in determining the meaning and the scope of EU citizenship as set out in the Article 9 TEU and 20 TFEU. The ECJ was challenged to give the concept of EU citizenship a practical dimension in connection to the problem of fundamental rights’ protection within the EU, i.e., admitting EU citizenship as a platform that allows a Member State national to gain access to the EU standard of fundamental rights’ protection, avoiding situations where, the EU citizen has to look for fictitious or hypothetical connections with the economic rights to benefit from that legal protection.13 7. The Principle of the Highest (or Maximum) Standard of Fundamental

Rights’ Protection

As defined by the Treaties, the EU system of fundamental rights’ protection is based 1) on their recognition as general principles of EU law, and 2) on the appeal to fundamental norms from several sources: European norms (from the Treaties and especially from the CFREU), national norms (corresponding to the common and individual constitutional traditions of the Member States) and international norms of human rights [especially the European Convention on Human Rights (ECHR)]. None of this is altered by the entry into force of the CFREU – that now adds to the already existing protection [Article 6 (3) TEU].14 And even if the essential core of a fundamental right is apparently the same under several legal orders (the Union’s, national and international legal orders) there are systemic differences that may produce different standards – and thus the cautious filter the ECJ has imposed, to ensure the structure and objectives of the European legal order. Therefore, the specificities of fundamental rights’ protection in the EU have led to the statement of a principle of the highest standard of protection, in Article 53 12 See Zambrano (C-34/09) March 8, 2011; Ymeraga (C-87/12) May 8, 2013. 13 See Zambrano (C-34/09) September 30, 2010, A.G. Opinion, paragraph 167. 14 Regarding what function Article 6 (3) TUE still has to play now the CFREU, see L. Besselink (2012), “General Report”, in Julia Laffranque (ed.), Reports of the XXV FIDE Congress Tallinn 2012, vol. 1, “The Protection of Fundamental Rights Post-Lisbon: The Interaction between the Charter of Fundamental Rights of the European Union, the European Convention of Human Rights and National Constitutions”, Tallinn: Tartu University Press, pp. 82–84.

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CFREU, in order to guarantee the harmonious coexistence between fundamental rights rules originated from different sources/legal systems.15 According to that principle, in its respective field of application, the Union’s law will grant the highest protection available from the several that may be mobilized for the solution of a concrete case concerning fundamental rights. And that highest protection ensured by EU law may be the one established by the CFREU, by the ECHR or by the national Constitution claimed in that case, as there may be differences between the legally relevant standards of protection that derive both from the texts and from their interpretation/practical application by the different judicial organs of the different components of the system.16 The principle of the highest standard of fundamental rights’ protection could be understood as a principle of preference of the most favourable norm. Article 53 CFREU states that “Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions”. If this norm intends to preserve the standard of protection currently granted, in their fields of application, by the Union, Member States and the ECHR law, then none of the standards ensured in these legal orders should be drawn back. Therefore, in a situation of concurrence of several different standards of protection, the highest one shall be applied. Some scholars support a strict interpretation of this principle, drawing on three central arguments: firstly its incompatibility with the primacy of EU law; secondly the idea that the provisions in Article 53 CFREU only states that a minimum standard of fundamental rights protection on the basis of the ECHR; thirdly that the enforcement of the highest level of protection is impossible in so far as the protection guaranteed by the same fundamental right could not be compared in the framework of different legal systems. Nevertheless, such arguments do not stand up. With regard to the first point of criticism, it lacks meaning for EU law itself authorizes the application of the highest standard of protection – therefore there is no incompatibility with the primacy principle. As for the second argument, if the 15 Regarding this subject, especially concerning the protection of fundamental rights by Portuguese courts, see Alessandra Silveira, Pedro Froufe & Mariana Canotilho (2012), “Portugal”, in Julia Laffranque (ed.), Reports of the XXV FIDE Congress Tallinn 2012, vol. 1, “The Protection of Fundamental Rights Post-Lisbon: The Interaction between the Charter of Fundamental Rights of the European Union, the European Convention of Human Rights and National Constitutions”, Tallinn: Tartu University Press, pp. 699–717. 16 See J.J. Gomes Canotilho (2010), “Estado de direito e internormatividade”, in Alessandra Silveira (ed.), Direito da União Europeia e transnacionalidade, Lisboa: Quid juris, p. 182.

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purpose of the principle is to prevent a setback of the standards of protection achieved by the ECHR and the national constitutions, this will only be effective if whenever there are competing fundamental rights rules the legal framework chosen, is the one that sets out the highest protection standard. Finally, considering the third argument, it is quite challengeable for, in general Law frequently utilizes the concept of standards – and the Charter itself refers levels of protection assuming the possibility for a comparison between rules and legal systems, because it is only meaningful to discuss levels of protection if there is a reference point, according to which the intensity of the granted protection can be assessed.17 The principle of the highest level of fundamental rights’ protection was developed doctrinally from a systematic interpretation of the provisions of the Charter.18 The ECJ has not yet substantively developed it – and when inclined to declare that the standard of protection applicable is that resulting from a national Constitution, it evokes the common constitutional traditions or the constitutional identities of the Member States, the observance of which is required under Article 4 (2) and Article 6 (3) TEU. However, the principle of the highest standard of fundamental rights’ protection cannot be confused with the principle of protection of the national constitutional identities, for this reason it is urgent that the ECJ clarifies the content of the principle involved.19 In particular because the 17 On this subject see M. Canotilho (2013), “Comentário ao artigo 53.º da CDFUE”, in Alessandra Silveira & Mariana Canotilho (eds), Carta dos Direitos Fundamentais na União Europeia Comentada, Coimbra: Almedina, p. 615. 18 On this subject see L. Besselink (1998), “Entrapped by the maximum standard: on fundamental rights, pluralism and subsidiarity in the European Union”, 35 Common Market Law Review, pp. 629–680; J. Weiler (1999), The Constitution of Europe, Cambridge University Press, chapter 3 (Fundamental rights and fundamental boundaries: on the conflict of standards and values in the protection of human rights in the European legal space), p. 102 ff.; M. Canotilho, O princípio do nível mais elevado de protecção em matéria de direitos fundamentais, available at https://infoeuropa.eurocid.pt/registo/000047387/ [accessed June 13, 2013]; J.J. Canotilho & M. Canotilho (2012), “Comentário ao artigo 6.º do TUE”, in Manuel Lopes Porto & Gonçalo Anastácio (eds), Tratado de Lisboa Anotado e Comentado, Coimbra: Almedina, pp. 39–42; M. Canotilho (2013), “Comentário ao artigo 53.º da CDFUE”, in Alessandra Silveira & Mariana Canotilho (eds), Carta dos Direitos Fundamentais na União Europeia Comentada, Coimbra: Almedina, pp. 606–624; L. Besselink (2013), “Multiple political identities: revisiting the maximum standard”, in Alessandra Silveira, Pedro Froufe & Mariana Canotilho (eds), Citizenship and solidarity in the European Union – from the Charter of Fundamental Rights to the crisis, the state of the art, Brussels: Peter Lang, forthcoming); B. De Witte (2013), “Tensions in the multilevel protection of fundamental rights: the meaning of article 53 EU Charter”, in Alessandra Silveira, Pedro Froufe & Mariana Canotilho (eds), Citizenship and solidarity in the European Union – from the Charter of Fundamental Rights to the crisis, the state of the art, Brussels: Peter Lang, forthcoming. 19 In several examples, some prior to the entry into force of the ECFR, the interpretive solution adopted by the ECJ when faced with different standards of legal protection has clearly resulted in order to ensure the highest protection of the fundamental right in question. See Groener

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issue is not restricted to the content clarification of the principle of the highest standard of protection: even more difficult is to define the fundamental rights standard applicable to the specific case (the sophistication of the model does not allow for an easy solution), that is, which is the highest level among the standards available?, and is it the highest for whom, if a conflict of rights should arise? 8. European Citizenship and the Principle of the Highest Standard of

Fundamental Rights’ Protection

The ECJ may have found in European citizenship the ultimate link for the safeguard of the highest standard of fundamental rights’ protection, for it is responsible for its upholding. If European citizenship (and the rights it establishes) falls within the material scope of application of EU law, this should allow for the fundamental rights standard of the Union to be autonomously invoked by the European citizen, without any other link to EU law besides citizenship. The basic reasoning underlying the recent ECJ judgements on European citizenship appears to be the following: 1) the circumstances of a European citizen which has not exercised an economic freedom cannot, by themselves, be considered free of any link to EU law;20 2) the European citizen status “is intended to be the fundamental status of nationals of the Member States” – and may therefore invoke the rights pertaining to that status, including against their Member State of origin;21 3) if the national court considers the sub judice circumstances to be within the scope of EU law, via European citizenship, it must examine whether the fundamental rights as conferred by the legal system of the EU are respected.22 It is too soon to (C-379/87) November 28, 1989; P. v S. (C-13/94) April 30, 1996; Tanja Kreil (C-285/98) January 11, 2000; Omega (C-36/02) October 14, 2004; Avides Media (C-244/06) February 14, 2008; Mangold (C-144/04) November 22, 2005; Mayr (C-506/06) February 26, 2008; Coleman (C-303/06) July 17, 2008; and Roca Álvarez (C-104/09) September 30, 2010. 20 See Dereci (C-256/11), November 15, 2011, paragraph 61. 21 See Dereci (C-256/11), November 15, 2011, paragraph 62–63. 22 See Dereci (C-256/11), November 15, 2011, paragraph 72. In this paragraph, the ECJ alerted the national judge to the following: “On the other hand, if it takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of Article 8(1) of the CFREU.” The same is pointed out in the Ymeraga judgment (C-87/12) May 8, 2013, ­paragraph 44: “Such a finding does not prejudge the question whether, on the basis of an examination in the light of the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which all Member States are parties, to the third-country nationals in the main proceedings may not be refused a right of residence.” This shows the clear interactivity between legal systems in the “European area of fundamental rights”. See L. Besselink (2012), “General Report”, in Julia Laffranque (ed.), Reports of the XXV FIDE Congress Tallinn 2012, vol. 1,“The Protection of Fundamental Rights Post-Lisbon: The Interaction between the Charter of

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identify all of the implications arising from this seminal ECJ case law which has emancipated EU citizenship from the constraints inherent to its free movement origins.23 Although these judgments constitute binding precedent, they are not yet ECJ settled case law, which advises us to wait for new developments, namely because the ECJ case law is reluctant to define the essential content of European citizenship24 – and usually evolves through a succession of breakthroughs and setbacks. Either way, if European citizens are the holders of rights set forth in the Treaties, they are also holders of fundamental rights recognised by the EU legal system – whether they exercise economic rights or not. Article 20 (2) TFEU provides that EU citizens shall enjoy the rights and be subject to the duties provided for in the Treaties. A non-restrictive interpretation of that provision suggests that EU citizenship not only includes the rights that traditionally have been associated with it [subparagraphs a), b), c) and d) of the same article] but also relates it to the protection of fundamental rights. EU citizenship was always connected with the principle of nationals’ equality in the different Member States – they would benefit from the rights and would be subjected to the duties set out in the Treaties. Therefore, what stands out form the recent case law of the ECJ on European citizenship is that fact that the Court was finally confronted by the impact of fundamental rights in the determination of the meaning and scope of European citizenship in the context of a Union of law: after all what is the purpose of European citizenship? And which are the consequences of the development of such “citizenship of rights” in the integration process itself in times of crisis? 9. Citizenship of Rights and Integration Process in Times of Crisis The financial and economic crisis imposes challenges to the European integration process which sees its legitimacy questioned, above all in the eyes of the citizens of Member States undergoing intervention, who live with harsh restrictions and low expectations of improvement. European citizens have never been so attentive to the developments of the European construction. And because of that, the Fundamental Rights of the European Union, the European Convention of Human Rights and National Constitutions”, Tallinn: Tartu University Press, p. 139. 23 See K. Lenaerts (2011), “Civis europaeus sum: from the cross-border link to the status of citizen of the Union” 3 Online Journal on free movement of workers within the European Union, p. 7, http:// ec.europa.eu/social/main.jsp?catId=475&langId=en&furtherPubs=yes (accessed June 13, 2013). 24 See D. Kochenov (2013), “The right to have what rights? EU citizenship in need of clarification”, in Alessandra Silveira, Pedro Froufe & Mariana Canotilho (eds), Citizenship and solidarity in the European Union – from the Charter of Fundamental Rights to the crisis, the state of the art, Brussels: Peter Lang, forthcoming. A. Wiesbrock (2011), “Disentangling the ‘Union citizenship puzzle’? The McCarthy case”, 36 European Law Review, p. 862.

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most serious mistake of the majority of citizenship and fundamental rights analysis until today is that it tends to underestimate the systemic transformative potential of the crisis. The main question in this context is whether the financial and economic crisis shows some crucial disjunction between the expectations of Europe’s citizens and the institutional forms of political integration available to them. Furthermore, to know if the developing of a broad notion of “citizenship of rights” (“right to have rights”, in Hannah Arendt’s sense) could perform some role in this scenario. In this sense, the current crisis definitely questions the relation between national politics and European politics. In a recent study coordinated by Miguel Poiares Maduro at the request of the European Parliament,25 Maduro defends that the deep causes of the crisis are democratic problems. In other words, the origin of the crisis can be found in the democratic failures: 1) Member States’ failures (that impose externalities on others in a context of economic and monetary Union and are not able to control excessive cross-border capital flows); and 2) failures of the EU governance (that has not been able to infuse its institutional system with real democratic potential). Maduro defends that this crisis requires an effective governance capacity that the EU does not have. The Union’s failure to solve the crisis is imputable to the diffuse character of its political authority and its excessive reliance on national politics. Member States, in their turn, are incapable of internalizing the consequences of interdependence generated by the Euro and integrated markets. As a consequence, the EU cannot govern effectively and its policies are prisoner to national politics. For this reason Maduro says that “the real democratic deficit is the absence of European politics”.26 Then, if Maduro is right, i.e., if what is at the root of this crisis are real democratic failures, could the crisis have been avoided (or at least minimized) if the problems of EU governance/coordination between EU political entities were solved? Probably, yes. The political and legal solution for the problems that the EU is facing depends on the deepening of the federative components of the European system. Only that deepening could prevent the financial problems of a Member State from becoming a credibility problem for the Union as a whole. Only that deepening could allow the Union budget to perform economic and social functions that act as a support network for the Member States’ economy. And that deepening of the federative components of the European system must be accompanied by the deepening of the citizenship of rights. For this reason it is essential to understand the structural implications of this citizenship of rights, dealing specifically with 25 See M. Poaires Maduro (2012), A new governance for the European Union and the euro: democracy  and justice, European University Institute, Global Governance Programme, RSCAS Policy Paper 2012/11 http://cadmus.eui.eu/bitstream/handle/1814/24295/RSCAS_PP_2012_11rev .pdf?sequence=1 (accessed June 13, 2013). 26 Ibid., p. 1.

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the constitutional and political means that already exist (or can emerge) in the actual crisis scenario. The solutions for the crisis must be presented to the citizens as a response to the democratic problems in Member States (which can no longer ensure the minimum conditions of a genuine democracy and social justice) but also as a response to the democratic problems of EU governance (which are two sides of the same coin). For this reason, the deepening of the federative components of the EU system (as a solution for the crisis) is necessarily linked with the broad notion of citizenship of rights built by European courts (and here lies the novelty). 10. Final Considerations As results of the General Report of the XXV FIDE Congress Tallinn 2012, studying and debating issues of fundamental rights protection is taking stock of the present stage of European integration. It is taking stock of the relations between the EU and the Member States’ legal orders and the division of competence between them.27 In this scenario, it is important to discuss in which measure do the fundamental rights dynamics affect the EU integration process itself – or scrutinize the potential of European citizenship in times of crisis to the integration process as a whole. In the context of European integration the debate on citizenship arose in the 70’s aiming to provide a set of civil, political and social rights to the nationals of a Member State acting upon their economic rights in another Member State, so that they were on equal terms with the nationals of the host Member State, and in this way promoting an equal standard of the legal positions of nationals of Member States. Hence, EU citizenship was always connected with the principle of nationals’ equality in the different Member States – they would benefit from the rights and would be subjected to the duties set out in the Treaties.28 And this idea of a community of rights and duties (established by the EU and not by a singular Member State) promotes the sense of belonging to the Union among individuals. European citizenship, unlike national citizenship, does not entail a community to which the citizen belongs – it creates a legal community. That is, European citizenship is built and developed through the exercise of rights – and for this the ECJ case law, issued at the request for preliminary rulings by national courts, has weighed immensely. The recognition of European citizenship through 27 See L. Besselink (2012), “General Report”, in Julia Laffranque (ed.), Reports of the XXV FIDE Congress Tallinn 2012, vol. 1,“The Protection of Fundamental Rights Post-Lisbon: The Interaction between the Charter of Fundamental Rights of the European Union, the European Convention of Human Rights and National Constitutions”, Tallinn: Tartu University Press, p. 2. 28 As set out in Article 9 TEU and Article 20 (2) TFEU.

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the Maastricht Treaty led the scholars to put the following questions: 1) “what kind of political community could be created beyond the nation-state?”, 2) “what relationship would it have with national political communities?”, 3) “who would be its’ members and what rights would they have?” – all issues that are at the core of European integration as a political project, and are still a major concern nowadays.29 For this reason, the idea that EU citizenship can allow the access to the EU standard of fundamental rights’ protection – and to the highest level that it promotes – is so important in the fragile historical moment that the EU is facing.

29 Such questions were raised by D. Chalmers, C. Hadjiemmanuil, G. Monti & A. Tomkins (2006), European Union Law. Text and materials, Cambridge: Cambridge University Press, pp. 561–562, where one reads: “the debate surrounding citizenship concerns the nature of political community”.

Equality Across the Legal Orders; Or Voiding EU Citizenship of Content Dimitry Kochenov* 1. Introduction Equality is citizenship’s key element. In fact, it makes part of the citizenship’s very definition as ‘a status of equal membership within a bounded polity’.1 It is thus particularly important in the context of the current transformation of the Union in Europe, where the role played by the notion of EU citizenship is increasing very rapidly, following a number of ground-breaking cases of the Court of Justice (CJEU), including Rottmann, Ruiz Zambrano, McCarthy, and Dereci.2 This chapter focuses on the assessment of the fundamental problems related to the functioning of the principle of equality in the context of the EU’s multi-level legal system in the light of the recent developments. EU citizenship, nationalities of the Member States and the equality principle are parts of the same inseparable trinity, all the elements of which are profoundly undermined by the deficiencies of the current EU law in force. Following the introduction of EU citizenship, both legal orders in the Union now have identical scopes of application ratione personae,3 bringing the two levels (national and supranational) of thinking about equality at odds with the concept of citizenship – both at the Member States’ level and at the level of the Union. This situation affects every European. Given the dubious nature of the assumption that the situations of those covered by EU law and those covered by national rules of the Member States are principally different in a setting when the jurisdictional border between the legal orders is flexible and porous and when * I would like to thank Joseph Weiler and Gráinne de Búrca for the comments on the first drafts of this chapter. 1  Rainer Bauböck & Virginie Guiraudon (2009), “Introduction: Realignments of Citizenship: Reassessing Rights in the Age of Plural Memberships and Multi-Level Governance”, 13 Citizenship Stud., p. 439. 2 This case law is analysed, e.g. in Dimitry Kochenov (2011), “A Real European Citizenship: A New Jurisdiction Test: A Novel Chapter in the Development of the Union in Europe”, 18 Colum. J. Eur. L., p. 55. 3 Eleanor Spaventa (2008), “Seeing the Wood Despite the Trees? On the Scope of Union Citizenship and its Constitutional Effects”, 45 CMLRev., p. 13.

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clear substantive principles informing the assignment of jurisdiction gave way to purely legalistic procedural considerations, it becomes apparent that the EU’s idea of justice is weak. Unable to apply its laws to every national on its territory for no clear reason and to no sufficiently predictable results, no Member State can legitimately claim that equality is safeguarded. The same applies to the Union: although equality is famously one of its fundamental principles4 and although every Member State national is an EU citizen,5 for the Union, the majority of citizens are outwith equality’s reach, finding themselves in the situations where the presumption of incomparability reigns. Legal formalism is threatening to annihilate the essential considerations of justice behind the law.6 By providing for a substantive, rather than a purely formalistic reading of the principle of equality the EU could depart from the present unsatisfactory state of affairs. The starting point of equality as a key element inherent in the idea of citizenship consists in the assumption that enjoying a legal status of citizenship, alongside with possessing simple humanity is enough in order to be treated by the competent authority as well as society as a whole in the same way as other citizens are treated. In this context, equality is necessarily employed not as a merely formalistic principle, but as a substantive one, related to the idea of justice.7 Fragmentation of authority or administrative divisions between jurisdictions does not per se remove the principle of equality from the scene, making it more acute instead. No legal system aspiring to approach the ideal of justice can exist without providing at least for equality before the law. A duo of problems arises in the Union in this respect. Firstly, a clear logically pre-determined border between the material scopes of the application of the law rooted in the two different legal orders is missing, making even the formalistic application of equality difficult, if not impossible. Secondly, equality is chronically employed in the Union as lacking in substance per se, which has innate negative effects on the future of the EU legal system, profoundly undermining both legal orders in question: the core of the legal-political systems of the Member States suffers in the same way as the Union does.

4 See e.g. Case 117/76 Ruckdeschel et al v. Hauptzollamt Hamburg-St Annen [1977] ECR 1753, para 7; Case C-300/04 Eman and Sevinger v. College van burgemeester en wethouders van Den Haag [2006] ECR I-8055, para 61. 5 Arts. 9 TEU and 21(1) TFEU. 6 For a number of contrasting perspectives see e.g. Gráinne de Búrca, Dimitry Kochenov & Andrew Williams (eds) (2014), Europe’s Justice Deficit, Oxford: Hart Publishing, forthcoming. 7 Christopher Ake (1975), “Justice as Equality”, 5 Philosophy and Public Affairs, p. 69; David Miller (1997), “Equality and Justice”, 10 Ratio (new series), p. 223; A.J. Julius (2003), “Basic Structure and the Value of Equality”, 31 Philosophy and Public Affairs, p. 321.

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The line between the different equalities depends on the need to establish a ‘cross border element’,8 or to prove the deprivation of the ‘substance of rights’ of EU citizenship,9 diluting clarity and undermining the ideal of justice through making impossible the upholding of the key elements necessary for the proper functioning of any mature legal system. These include (to name just a few) equal citizenship, legal certainty, as well as democratic legitimation – all rhetorically embraced by the Member States and the Union alike. However, in the current context equality in the EU does not in fact behave as a true principle of law. Formalism demands that, when confronted with equality dilemmas, no legal order look for a comparator in the realm of another legal order, only within itself, subject to its own jurisdiction perceived as exclusive and clearly outlined. This ensures that the application of equality to citizens who are ex vi termini within the scope of each legal order across the arbitrary dividing line between such legal orders is perceived as impossible.10 In practice this amounts to nothing less than the destruction of the idea of citizenship and opens to question the rule of law rationale of the Union: in the absence of the clear substantive facet of the equality principle, the application of the law of a particular order to a particular situation would seem simply arbitrary. At any moment any citizen can end up on either side of the jurisdictional divide and no substantive explanation for the non-availability of equal treatment in comparison to those left on the other side, however similar, in fact, their circumstances, will ever be given, while the status of citizenship will not play any role in the formal assignment of jurisdiction. The chapter starts off with an outline of the fundamental connection existing between the concept of citizenship and the idea of equality (2.), proceeding to sketch the fundamental distinction existing between the functional and procedural approaches to equality, to demonstrate that procedural equality cannot function as a legal principle (3.). This is the main problem in the EU, on which the following section focuses, outlining the problematic context of the functioning of equality within and between the legal orders in the Union (4.). It is demonstrated that equality in the Union is dangerously deprived of substance (5.). In the final section, the chapter makes a modest argument in favour of the change in addressing the meaning of the principle of equality in the EU, to move beyond the purely formalistic approach is innate in the Union, which functions through turning fundamental moral issues into managerial problems, unable to generate

8 For an exhaustive analysis see Alina Tryfonidou (2009), Reverse Discrimination in EC Law, The Hague: Kluwer Law International. 9 For an analysis see Dimitry Kochenov (2011), “A Real European Citizenship”, op.cit., p. 55. 10 International law suffers from the same limitations: Benedict Kingsbury (1998), “Sovereignty and Inequality”, 9 Eur. J. Int’l L., p. 599.

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substantive principles which would inform its rationale, thus making justice claims impossible, unless the latter are reduced merely to the idea that the law and policies should be justified against the likely success of the market11 (6.). This systemic deficiency has all the potential to undermine the Union in the future, should it not be addressed. 2. Equality and Citizenship Equality matters for any citizenship12 primarily because the main function of citizenship as a legal concept is to ascribe equal dignity and equal worth to all the members of society in possession of this status, with no regard to their actual talents and abilities. A citizenship of unequals before the law is an oxymoron denoting a reality impossible in any mature legal system. Consequently, however one regards citizenship13 – as a legal status, as a bundle of rights, duties and responsibilities,14 through political participation, or, less legalistically, through patriotic feeling and the idea of ‘belonging’15 – the fundamental principle of equality always plays the leading role whenever we speak of citizenship’s essence. That people are equal ab initio, that ‘every man [is] to count for one and no one [is] to count for more than one’,16 that ‘human worth one cannot lose, however wicked or hopeless might be one’s performances’17 – is a moral assumption,18 not 11 E.g. Andrew Williams (2010), The Ethos of Europe, Cambridge: Cambridge University Press. 12 Kenneth L. Kaest (1986); “Equl Protection of the LAWS”, Society, Nov./Dec., p. 24. See also William E. Forbath (1999), “Caste, Class, and Equal Citizenship”, 98 Mich. L.Rev., p. 1; Kenneth L. Karst (1983), ‘Why Equality Matters”, 17 Georgia L.Rev., p. 245. See also Andrew Koppelman (1996), Antidiscrimination Law and Social Equality, New Haven: Yale University Press (providing a detailed critical overview of all the main equality theories employed by lawyers (at 13–114)). 13 For a number of different approaches see e.g. Linda Bosniak (2000), “Citizenship Denationalised”, 7 Indiana J. Global Legal Stud., p. 477. 14 Joseph H.H. Weiler (2009), “Novs Coalisons des Etots novs n’unissons PAS des hommes,” in MARTA Cartabia and Andrea Simoncini (eds.), LA Sostenibilita della democraza nel XXI secolo, Bolonga: tl Mulino, p. 51. 15 In the European context see e.g. Enikő Horváth (2008), Mandating Identity: Citizenship, Kinship Laws and Plural Nationality in the European Union, The Hague: Kluwer Law International; Constantin A. Stephanou (1991), “Identité et citoyenneté européennes”, Revue du marché commun, p. 30. 16 Isaiah Berlin (1955–1956), “Equality”, 56 Proceedings of the Aristotelian Society, p. 301. 17 D.A. Lloyd Thomas (1979), “Equality within the Limits of Reason Alone”, 88 Mind, p. 538, 540. On the notion of ‘individual human worth’ see e.g. Gregory Vlastos (1962), “Justice and Equality”, in Richard B. Brandt (ed.), Social Justice, New Jersey: Pernice Hall, p. 43. 18 Ronald Dworkin (1977), Taking Rights Seriously, Cambridge MA: Harvard University Press, pp. 179–183. See also Jeremy Waldron (2008), Basic Equality, NYU School of Law, Public Law & Theory Research Paper Series, Working Paper No. 08–61, p. 1.

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an assertion of fact.19 It is simply accepted as a reasonable starting point for the organisation of human society, which virtually all contemporary theorists seem to embrace.20 Sir Isaiah Berlin rightly emphasised that the “connection between ‘counting for one’ and the doctrines of Christian theology, or the French philosophes, or this or that view of reason or of nature is rather more historical and psychological than logical”.21 The presumption of equality can thus be held (or not) for whatever reason. A number of authors tried to downplay what they saw as the ‘logical gap between fact and value’22 by making attempts to reconcile the moral presumption of equality with the empirical reality which differs from such a presumption in the most obvious way: all people are different, possessing different talents, beauty, and different clarity of mind.23 Notwithstanding the contemporary consensus on the importance of equality, the historical opposition to this idea, impersonated, most importantly, by Aristotle and Hobbes, is well known. Presumptions tend to change with time: in contemporary world, egalitarianism (at least rhetorical) has won the preference of the majority. This general acceptance does not mean it is ‘proven’ or ‘natural’, however: Kai Nielsen is right declaring about equality “I do not know how anyone could show this belief to be true”.24 Like democracy,25 equality simply has no moral value in itself.26 Once one moves into the realm of the political – shifting from merely ‘human beings’ to ‘citizens’ – the clash between empirical reality and philosophical vision is much easier reconcilable.27 The reconciliation comes through distinguishing a 19 Peter Singer (1975), Animal Liberation: A New Ethics for Our Treatment of Animals, New York: New York Review, p. 5. 20 For a detailed critical overview of the main trends in egalitarian theorizing, all embracing such assumption as a starting point see Louis P. Pojman (1992), “Are Human Rights Based on Equal Human Worth?,” 52 Philosophy and Phenomenological Research, P. 605. passim. Outlining ten main contemporary secular arguments for equal human worth, Pojman convincingly dismisses them all, coming to questioning the starting assumption, which, he concludes, is “one of the shallowest assumptions of our time” (at 622). 21 Berlin (1955–1956), op.cit., pp. 301–302. 22 John H. Schaar (1964), “Some Ways of Thinking about Equality”, 26 Journal of Politics, pp. 867–868. 23 E.g. Lloyd Thomas (1979). op.cit. For a sound criticism of a wide range of such attempts see Pojman (1992), op.cit., p. 605. 24 Kai Nielsen (1985), Equality and Liberty: A Defence of Radical Egalitarianism, Totowa NJ: Rowman and Allenheld, p. 95. 25 Joseph H.H. Weiler (2003), “In Defence of the Status Quo: Europe’s Constitutional Sonderweg”, in Joseph H.H. Weiler & Marlene Wind (eds.), European Constitutionalism beyond the State, Cambridge: CUP, p. 7, p. 18: “a democracy of vile persons will be vile”. 26 Harry Frankfurt (1997), “Equality and Respect”, 64 Social Res., pp. 3–4. 27 This reconciliation comes at a high price though: since not every human being is necessarily a citizen, citizenship thinking has a potential to encourage the ugliest forms of exclusion and

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human being from a citizen. Citizenship by definition lies within the realm where merit, talent, or wealth do not play any role. The notion of formal equality is fundamental to the very definition of this concept. The notion of equality of opportunity is usually employed to ensure that presumptions and reality are not worlds apart (in theory at least).28 Equality among citizens is deeply instrumental as it is an indispensable cornerstone of the idea of gaining political legitimacy in a representative democracy.29 Without providing for equality, at least in the narrowest sense in terms of equal representation and equality before the law, democracy is unthinkable. It is thus the concept of citizenship in the context of a liberal democracy, which is most suited to illustrate the differences between contemporary states and other sociolegal systems, evolving around the division of all their members into a number of groups marked by presumed differences, based on belonging to casts, nobility, or professional associations, and organising public life accordingly. The similarity between such systems where the function of equality is profoundly dissimilar to the modern understanding of the term and the modern idea of equal citizenship consists in the fact that both accept as a starting point the need to disregard the actual differences/similarities between human beings in certain situations. A cast system is never meritocratic; those belonging to a better cast simply get born into it, just like the slaves or people of ‘better’ skin colour30 – which is the reason why such societal organisation is irreconcilable with the citizenship idea. At the same time, the idea of citizenship is equally disconnected from ‘physical’ reality, which is one of its strongest points in the eyes of its supporters. An iconic dissent in US Constitutional law serves as a perfect reminder of the formal essence of the citizenship world: “in the eye of the law, there is … no superior, dominant, ruling class of citizens. There is no caste here.”31 The notion of citizenship implies the reversal of inequality presumptions deeply held by human beings, putting individuals with this status on equal footing in a number of respects by ignoring any objective or subjective differences between them and, in theory at least, protecting the oppressed minorities against

de-humanisation. See Hannah Arendt (1968), The Origins of Totalitarianism, New York: Harcourt; Linda Bosniak (2010), “Persons and Citizens in Constitutional Thought”, 8 Int’l J. Const’l L., p. 9. 28 See e.g. Schaar (1964), op.cit., p. 870 et seq. 29 See inter alia Wojciech Sadurski (2005), Majority Rule, Legitimacy and Political Equality, EUI Working Papers (Florence) LAW No. 2005/21 (underlining that not the idea of majority rule per se, but the postulate of equality serves as the main legitimising factor in a democracy (Ibid, at 2)). 30 Similarly to the modern cast system of different citizenships of different practical utility rooted in state sovereignty and international law. Joseph H. Carens (1987), “Aliens and Citizens: The Case for Open Borders,” 49 Rev. of Politics, p. 252; Ayelet Shachar & Ran Hirschl (2007), “Citizenship as Inherited Property”, 35 Political Theory, p. 253. 31 J. Marshall Harlan, dissenting in Plessy v. Fergusson 163 U.S. 537 (1896), 559 (emphasis added).

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the majorities. Such blindness to the facts, to the real differences between people, is the core of the concept of citizenship, devised to create a political being out of an imperfect human creature, supplying the standardised ‘minimal human being’,32 indispensable for the flourishing of any contemporary democracy.33 The question to what extent the objective differences between human beings should or should not be ignored with the view to producing citizens, remains open and is decided differently in different constitutional systems. 3. Formal and Substantive Equality As such, equality is one of those essentially contested concepts34 which are able to boast countless meanings. The most popular use of the term in law, is purely formalistic and can be reduced to the Aristotelian maxim that what is alike should be treated alike and what is different is not to be treated alike.35 While this formulation of equality seems appealing to many, it also reduces the principle to mere formalism, making it unusable in organising societal relations, since any two things, states, situations etc. can always be presented as ‘like’ or ‘unlike’, depending on the context of the assessment,36 infusing the concept of equality so understood with ‘fundamental ambiguity’.37 Claims have been made in legal scholarship that equality does not and cannot exist as a legal principle, due to such fluidity of its ‘non-meaning’. Although this perspective – defended by Peter Westen,38 is probably premature in dismissing the idea,39 it certainly has a valid point, emphasising the dangers of equating equality and formalism. 32 For the analytical connection between democracy, nominal political equality and the concept of citizenship see John Mueller (1992), “Democracy and Ralph’s Pretty Good Grocery: Elections, Equality, and the Minimal Human Being”, 36 Am. J. Pol. Sci., p. 983. 33 Ibid., passim. 34 On this term see William B. Gallie (1955–1956), “Essentially Contested Concepts”, 56 Proceedings of the Aristotelian Society, 167. 35 See Aristotle (2009), Nicomachean Ethics (Ross, W.D. (trans.)), Oxford: OUP, p. 84 (1131a). 36 Philip B. Kurland (1970), Politics, the Constitution and the Warren Court, Chicago: University of Chicago Press, p. 165. 37 Wojciech Sadurski (1998), “The Concept of Legal, Equality and an Underlying Theory of Discrimination”, 4 St. Louis-Warsaw Transatlantic L.J., P. 63, 65. By ‘fundamental ambiguity’ a reference is made to the fact that “the same ideal can be understood in a way which leads to two mutually antithetical but equally prima facie reasonable sets of specific prescriptions” (Ibid.). 38 Peter Westen (1982), “The Empty Idea of Equality”, 95 Harv. L.Rev., p. 537; Peter Westen (1990), Speaking of Equality: An Analysis of the Rhetorical Force of ‘Equality’ in Moral and Legal Discourse, Princeton, NJ: Princeton University Press. See also Frankfurt 1997, p. 3. 39 What has also been demonstrated in numerous reactions to Prof. Westen’s position, among which are Karst (1983), op. cit., Kent Greenwalt (1983); “How Empty Is the Idea of Eqaluity?; 83, Colum. L.Rev., P. 1167; Jeremy Waldron (1991), “The Substance of Equality”, 89 Michigan L.Rev., p. 1350.

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Such formalistic definition of equality is also the most popular one among the institutions of government and ordinary people alike. In one example, the CJEU constantly employs this particular vision through a reference to the standard formula: [i]t is settled case law that the general principle of equality, which is one of the fundamental principles of Community law, requires that similar situations are not treated differently and different situations not treated alike unless such treatment is objectively justified.40

This statement is unable to live up to the great ideal many would wish to connect with it, especially given that the promise of equality as such is deprived of any innate moral value, as explained supra. A statement empty of any meaning – like the one employed by the CJEU – has nothing to do with equality at all, since justification of unequal treatment is always possible as long as more or less rational reasons (or pretexts) for such approach are provided.41 Even if it is true that nobody in the EU would openly question a deeply held belief in ‘equality’, whatever its meaning, the idea as such does not become more valuable because of this. Reading the CJEU’s maxim, the whole construct of equality seems to come down to a call not to act arbitrarily when (if) discriminating, while choosing the presumption of equality as a starting point.42 In this context Louis Pojman rightly emphasises that the presumption as such does not seem to be necessary at all. As long as all arbitrary actions are outlawed, also the contrary presumption – that of inequality – would do the job.43 To be fair, the CJEU’s solemn but frighteningly empty position is not drastically different from the national visions of the principle adopted in the Member States, which unavoidably inform the Court’s vision. The position of the French Conseil Constitutionnel is informative in its similarity to the essence of CJEU’s reasoning, de facto approaching equality solely as a duty to give reasons for the choices made by the public authorities: le principe d’égalité ne s’oppose ni à ce que le législateur règle de façon différente des situations différentes ni à ce qu’il déroge à l’égalité pour des raisons d’intérêt général pourvu que, dans l’un et l’autre cas, la différence de traitement qui en résulte soit en rapport avec l’objet de la loi qui l’établit.44

40 E.g. C-292/97 Karlsson and Others [2000] ECR I-2737, para 39; Joined cases C-184&223/02 Spain and Finland v. Parliament and Council [2004] ECR I-7789, para 64; Joined cases C-27&122/00 Omega [2002] I-2569, para 79; Case C-300/04 Eman and Sevinger [2006] ECR I-8055, para 57. 41 See the last part of the ECJ’s standard formula: “unless such treatment is objectively justified”. 42 Pojman (1992), op. cit., p. 608. 43 Ibid. 44 Conseil Constitutionnel, Décision No. 87–232 DC, para 10.

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How does such equality function in practice? A great example of formalism annihilating the essence of equality is CJEU’s shameful jurisprudence on sexorientation­discrimination such as Grant v. SWT,45 where the Court found that there was no discrimination by comparing the rights of a woman in a same-sex relationship with those of a man in a homosexual couple, as if heterosexuals did not exist.46 What CJEU technically presents as equal by engaging in a virtuoso abuse of its empty standard, is alien to basic common sense, let alone to what any substantive vision that the notion of equality would require. Yet, even being deeply disrespectful vis-à-vis European citizens, it obviously meets an empty formalistic equality standard – exactly what Peter Westen warned about. To make actual sense of equality as a potential principle of law moving beyond what the CJEU keeps on repeating, the idea of drawing a line between formal and substantive equality formulated, inter alia, by Kent Greenwalt, might be of assistance.47 To ensure that equality is worthy of a name of a true principle of law, it is necessary to move beyond the empty formalism of ‘like’ and ‘unlike’. Judgments of what is like and what is unlike should be based on some substantive idea of the good, a ‘substantive value’,48 which the empty shell of ‘pure’ equality cannot boast by itself. It is clear from the outset that since different legitimate values able to supply substantive equality with its meaning compete with each other, it is only natural that the rhetoric of equality can absolutely consistently be used, literally, by anyone in any situation, hijacking the logic of this principle.49 What kind of substance can be used to support the ailing idea of equality, reduced to rabble by formalism? When thinking about equality is it always necessary to keep in mind Amartya Sen’s question: “equality of what?”50 45 Case C-249/96 Grant v. South-West Trains Ltd. [1998] ECR I-621. Bruce Carolan (2005), “Judicial Impediments to Legislating Equality for Same-Sex Couples in the European Union”, 40 Tulsa L.Rev., p. 527; Iris Canor (2000), “Equality for Lesbians and Gay Men in the European Community Legal Order – ‘They Shall Be Male and Female’?”, 7 Maastricht J. Eur. & Comp. L., p. 273; Nicholas Bamforth (2000), “Sexual Orientation Discrimination after Grant v. South-West Trains”, 63 Modern L.Rev., p. 694. 46 Andrew Koppelman (2001), “The Miscegenation Analogy in Europe, or, Lisa Grant Meets Adolf Hitler”, in Robert Wintermute & Mads Andenæs (eds), Legal Recognition of Same-Sex Partnerships: A Study of National, European, and International Law, Oxford: Hart, p. 623. 47 Greenwalt (1983), op. cit., p. 1168. But see Westen (1983), op. cit., p. 1186. 48 Karst (1983), op. cit., p. 246. See also G.A. Cohen (1989), “On the Currency of Egalitarian Justice”, 99 Ethics, p. 906. 49 Numerous proposals of ‘what to equalise’ have been made in the literature, all of them being in potential conflict with each other: Alan Carter (2002), “Value-Pluralist Egalitarianism”, 99 J. Philosophy, p. 577. 50 Amartya Sen (1980), “Equality of What?”, in S.M. McMurrin (ed.), The Tanner Lectures on Human Values (Vol. 1), Cambridge: CUP, p. 195.

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The substantive vision of the principle of equality is obviously related to the notion of justice.51 Given that justice is one of the fundamentals of any non-totalitarian legal order, the substantive notion of equality as a vehicle of justice can be deployed as an alternative to the formalistic vision. When used in the context of citizenship, a substantive claim of equality is not deserved through wealth, brightness of the mind or the amount of decorations one has received from the local monarch. It is connected to the mere membership of the (political) community, i.e. to the legal status alone. Consequently, one of the main functions of citizenship is necessarily a prohibitive one that “forbids the organised society to treat an individual either as a member of an inferior or dependent caste or as a nonparticipant”.52 In practice, although constantly restated as the starting point of operation of any democratic society, the idea of equality among citizens, when not lived up to, especially in the realm of the equality before the law, starts producing stigma, ruining the idea of justice necessarily connected with the notion of citizenship, and, consequently, annihilating citizenship as such. It is submitted that the application of the principle of equality cannot be legitimately construed in such a way that it stigmatises and alienates – what a purely formalistic reading of equality does not prohibit at all, if not encourages. Any judgment about justice or equality is always a matter of degree. Working with theoretical concepts it is indispensable to keep in mind that the actual ideals articulated by them are always beyond our reach, but it is worth striving to move our law closer to the better reflection of such ideals.53 It is clear, nevertheless, that practically, a huge difference can be made by embracing substantive ideals going beyond mere legalism. This would amount to the inclusion of the substantive notion of justice, as a necessary element of equality analysis, going beyond purely formalistic visions and taking into account the harmful effects which formalistic judgments often produce on human beings. 4. Equality within and across the Legal Orders The dangers of formalism are manifold amplified when dealing with equality analysis set in the context of complex hierarchical legal systems, making the application of substantive – as well as purely formalistic – equality ideals in the context of numerous legal orders infinitely more difficult. The EU is the case in point. Just as any other federation,54 it can be analysed from the standpoint of a 51 For analysis see, inter alia, Ake (1975), op. cit.; Miller (1997), op. cit.; and Julius (2003), op. cit. 52 Karst (1986), op. cit., p. 25. 53 On the practical application of ideals see e.g. J.G.H. Newfield (1965–1966), “Equality in Society”, 66 Proceedings of the Aristotelian Society (new series), p. 193. 54 See, most importantly, Schütze (2009), From Dual to Cooperative Federalism, Oxford: OUP.

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continuous contestation of the status quo by the competing legal orders, which has important implications on the functioning of equality in such systems. EU law is thus very much about the conflict of laws. There is no hypothetical ‘pluralism’ here – it is a ‘clash of legal orders’.55 Virtually the entire body of the CJEU case law can be read through the lens of the resolution of competence disputes. Naturally, the ‘European’ perspective on all such disputes is not the only one, as it co-exists with the ‘“national constitutional order’ heresy”.56 That is, a large number of national perspectives, using completely different means to explain the existing reality where EU law prevails over national law.57 Notwithstanding the constant ‘constitutional conversation’58 in Europe involving all kinds of actors from the Herren der Verträge to the courts at all levels,59 such national perspectives approach the status quo in different terms, compared with what the EU itself does (accompanied by sympathetic national scholarship).60 As a consequence of this duality, national level thinking about the limits of the European legal order is also quite different from the self-assessment at the supranational level. The existence of two views on the same story is evident upon reading Solange (I61 and II62), Maastricht,63 or Lisbon Treaty64 decisions of 55 Gareth Davies (2010), Constitutional Disagreement in Europe and the Search for Legal Pluralism, Eric Stein Working Papers (Prague), No. 1/2010, p. 6. 56 Pilip Allott (2002), The Health of Nations: Society and Lan beyond the State, Cambridge: CUP, p. 216. 57 For analysis of the ‘national’ perspectives see e.g. Anneli Albi & Peter Van Elsuwege (2004), “The EU Constitution, National Constitutions, and Sovereignty: An Assessment of a ‘European Constitutional Order’”, 29 Eur. L.Rev., p. 745. 58 See Bruno de Witte (2002), “The Closest Thing to a Constitutional Conversation in Europe: The Semi-Permanent Treaty-Revision Process”, in Paul Beaumont, Carole Lyons & Neil Walker (eds), Convergence and Divergence in European Public Law, Oxford: Hart, p. 39. 59 See, generally, Anne-Marie Slaughter, Alec Stone Sweet & Joseph H.H. Weiler (eds), The European Court and National Courts – Doctrine and Jurisprudence, Oxford: Hart 1998; Giuseppe Martinico (2008), A Matter of Coherence in the Multilevel System: Are the “Lions” Still “Under the Throne”?, Jean Monnet Working Paper (NYU), No. 16/08. 60 This approach is in line with (or even part of) a broader picture involving the refusal by the national constitutional orders to be humbly subjected to international law. For analysis see e.g. Anne Peters (2009), “Supremacy Lost: International Law Meets Domestic Constitutional Law”, 3 Vienna online J. Int’l Const’l L., p. 170. The European legal order has joined the same trend, gradually testing the international legal norms and principles against its own, frequently refusing to be automatically subjected to International law. On the latter see e.g. Case C-369/90 Micheletti [1992] ECR I-4239; Joined case C-402/05 P and C-215/05 P Kadi and Al Barakaat [2008] ECR I-6351. For an analysis see e.g. Dimitry Kochenov & Fabian Amtenbrink (2013), “An Active Paradigm of the Study of the EU’s Place in the World: An Introduction”, in Dimitry Kochenov & Fabian Amtenbrink (eds), European Union’s Shaping of the International Legal Order, Cambridge: CUP, p. 1. 61 BVerfGE 37, 271 (1974). 62 BVerfGE 73, 378 (1986). 63 BVerfGE 89, 155 (1993). For analysis see e.g. Joseph H.H. Weiler (1995), “The State ‘über alles’: Demos, Telos and the German Maastricht Decision”, in Ole Due, Marcus Lutter & Jürgen Schwarze

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the Bundesverfassungsgericht, or decision K-18/0465 of the Polish Trybunał Konstytucyjny, among numerous others. Agreeing with Robert Schütze, such “normative ambivalence surrounding supremacy and sovereignty can better be viewed as part of the parcel of the European Union’s federal nature”;66 it is clear at this point that the problem of hierarchy in Europe gets resolved at different levels of law with the use of different reasoning. While every law student knows that EU law is supreme,67 for a German constitutionalist there is no question about the fact that “Grundgesetz remains the supreme law in the land also in the age of the Lisbon Treaty”.68 Consequently “since one of the conventional attributes of constitutional law is that it is the highest source of law within its jurisdiction, EU law is hardly constitutional in most [member] states”.69 This situation is in no way peculiar to the EU, however: such conflict is woven right into the fabric of every real federation. The good thing is that all the participants in the constant struggle are very well aware of the fragility of the federal balance – this is precisely what makes federations durable. Indeed, “the principles and structures of classic constitutionalism are open enough, and unobjectionable enough, that complying with them is not a significant policy constraint for the EU and should not raise any structural problems”70 – and it does not, as long as we are not talking Treaty amendment. While regarding law in Europe as a duality, what is crucial for its study is trying to escape the dogmatic temptations offered by the legal traditions at both levels. The history of European integration, which Schütze convincingly reads in the light of a gradual move away from dual federalism towards co-operative federalism,71 is still the same story presented by several biased narrators from a number (eds), Festschrift für Ulrich Everling, Vol. 2, Baden-Baden: Nomos Verlagsgesellschaft, p. 1651; Matthias Herdegen (1994), “Maastricht Decision and the German Constitutional Court: Constitutional Restraints from an ‘Ever Closer Union’”, 31 Common Mrkt. L.Rev., p. 235. 64 BVerfGE 63, 2267 (2009). For analysis see e.g. Daniel Thym (2009), “In the Name of Sovereign Statehood: A Critical Introduction to the Lisbon Judgment of the German Constitutional Court”, 46 Common Mrkt. L.Rev., p. 1795. Christian Wohlfahrt, “The Lisbon Case: A Critical Summary”, 10 German L.J., 2009, p. 1277; Armin Steinbach (2010), “The Lisbon Judgment of the German Federal Constitutional Court – New Guidance on the Limits of European Integration?”, 11 German L.J., p. 367. 65 Case K 18/04 of 11 May 2005, OTK Z.U. 2005/5A, esp. para 6.4. For a critical discussion see e.g. Damian Chalmers (2005), “Constitutional Modesty (editorial)”, 30 Eur. L.Rev., p. 460; Dimitry Kochenov (2008), EU Enlargement and the Failure of Conditionality, The Hague: Kluwer Law International, pp. 235–237. 66 Robert Schütze (2009), “On ‘Federal’ Ground: The European Union as an (Inter) National Phenamenon,” 46 Common Mrkt. L. Rev., p. 1081, emphasis in the original. 67 Alexander Simons (2005), Europäische Union für Dummies, Weinheim: Wiley-VCH Verlag GmbH. 68 Thym (2009), op. cit., p. 1802. 69 Davies (2010), “Constitutional Disagreement” op. cit., p. 3. 70 Ibid., p. 15. 71 Schütze 2009, “From Dual to Cooperative Federalism” op. cit.

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of different, sometimes diametrically opposed perspectives: a national one, boasting 28 slightly different stories, and a European one. The only unquestionable given here is the persistency of the clash between the two legal orders, as well as the fact that the whole system proves its functionality every day with astonishing consistency – all the rest changes with the narrator. Consequently the jurisdictional dispute should be always kept in mind as lying at the core of all the fundamental issues in need of assessment that law in the EU has to offer. Even when it is presumed that the discrepancies between the understanding of the main principles of law throughout all the components of a complex legal system are minimal72 and that each of the different legal orders can boast a largely identical set of fundamental principles,73 numerous problems are still prone to arise, should rhetorically-identical principles belonging to different legal orders be applied within the confines of each particular legal order and not across the board.74 This is particularly true of the principle of equality: having largely similar principles in place within the confines of different legal orders, does not mean that, in general equality can be safeguarded in the system as a whole unless some clear substantive considerations reflecting the nature of the principle govern the assignment of each particular situation to a specific principle within a hierarchy of legal orders in each particular case. Besides being products of human nature,75 inequality and injustice are thus particularly prone to be generated by jurisdictional frictions in the situations when the borderlines between the legal orders form spacious grey zones. Formalism in thinking about equality is thus infinitely more dangerous in the situations of jurisdictional conflict where legitimate competing authorities are 72 In practice, such discrepancies are often far from negligible, especially in the issues which are informed by moral disagreement, rather than legal technicalities. Consider, for instance the difference in the treatment of abortion, or gay rights throughout the EU. See e.g. Tamara K. Hervey & Jean V. McHale (2004), Health Law in the European Union, Cambridge: CUP, p. 401; Dimitry Kochenov (2007), “Gay Rights in the EU: A Long Way forward for the Union of 27”, 3 Croatian Ybk. Eur. L. & Policy, p. 469. 73 Which is never the case, even if seemingly the same principles are embraced rhetorically. For a telling example see e.g. Albi’s analysis of the principle of human rights protection: Anneli Albi (2009), “Ironies in Human Rights Protection in the EU: Pre-Accession Conditionality and PostAccession Conundrums”, 15 Eur. L.J., p. 46. See also Armin Von Bogdandy (2000), “The European Union as a Human Rights Organisation? Human Rights and the Core of the European Union”, 37 Common Mrkt. L. Rev., p. 1307. 74 For the analysis in the context of the principle of equality, see e.g. Arjen W.H. Meij (2010), “Circles of Coherence: On Unity of Case law in the Context of Globalisation”, 6 Eur. Const. L. Rev., p. 84 (comparing French and EU principles drawing on their application in the Arcelor saga (Case C-127/07)). 75 “If men were angels, no government would be necessary”: Publius [James Madison], Federalist No. 51, 6 February 1788.

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involved, like the conflict shaping the Union in Europe. In such a context, formalistic egalitarianism brings results which are entirely incoherent and frequently unexplainable from the point of view of the principle itself. This is so, since substantive issues of equality frequently end up dismissed as mere jurisdictional problems. Consequently, such problems cannot be constructively addressed from the point of view of substantive equality. The current layering of applicable law in the EU is profoundly problematic. In the context of competition between the norms belonging to the different legal orders which might legitimately claim authority to govern substantively similar situations, viewing them as essentially different merely as a consequence of the fact that different law is applied to them, substantive similarity does not play any role in assigning jurisdiction and is unable influence decisions as to which law is to apply. An oxymoronic situation is created: the application of the law, instead of following the specificity of the situations it was designed to govern, opts for ignoring such similarities. Consequently, two interconnected challenges arise. The first is related to the porous nature of the borders between the legal orders which eradicate the rationale of equality, making the principle de facto inapplicable both at the national and at the supranational level both of which have a clear self-image of being routed in the principle of equality. The ‘harshness of this arbitrary distinction’76 came about as a result of a purely formalistic approach to equality embraced by the Court. The CJEU assumes that any comparisons between the legal situations of EU citizens covered at a given moment by the law stemming from different legal orders, is impossible. The second challenge, which is arguably more important, is related to the purely formalistic vision of equality advocated by the Court of Justice, ignoring the essence of the principle while policing the jurisdictional border in the first place. In the eyes of the Court, justice and fairness are not connected to the notion of equality at all, turning it into an empty rhetorical device to practice selfrestraint, profoundly undermining European liberal values as well as the notions of citizenship both at the EU and national level. Although dismissed by legal scholars adhering to a purely formalistic reading of the principle, this problem is becoming more and more acute for ordinary citizens.77 There is a rising awareness of the fact that de facto identical situations involving the same persons can virtually at random be regulated by different legal orders rendering the principle

76 David M.W. Pickup (1986), “Reverse Discrimination and Freedom of Movement of Workers”, 23 Common Mrkt. L.Rev., p. 135, p. 154. 77 It was difficult for the Brits resident in Spain during the referendum on the Constitution for Europe to understand why they are not invited to vote: “Spain Snubs Resident Brits in European Referendum Vote”, Telegraph, 29 December 2004. See also Anja Lansbergen & Jo Shaw (2010), “National Membership Models in a Multilevel Europe”, 8 Int’l J. Const’l L., p. 50.

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of equality ‘inapplicable’ to them in the eyes of the majority of lawyers. While nationals still trust the Member States, willing to close their eyes at the incapacity of the former to guarantee in any substantive way the observance of the legal principles stated in the national constitutions, the EU, and, in the longer term, the Member States, are bound to suffer a setback because of the current situation. 5. Equality without Substance in the EU Once several virtually identical situations end up qualified as falling within the auspices of two (or, indeed, more78) legal orders, a formalistic line is drawn between them, presuming difference, rather than looking at the facts and sticking to the ideals of justice and fairness. All this is to the detriment of the interests of ordinary citizens caught in the void between the tectonic plates of different legal orders. Butter-makers lose business,79 fathers of handicapped children get deported,80 and Walloon workers go uninsured.81 The naturally biased empty definitions of ‘like’ and ‘unlike’ which are construed to be blind to what actually matters for those who are discriminated against, are thus particularly harmful in the grey zones bordering the confines of the legal orders. There is no place for justice where the jurisdictional borders eliminate the very possibility to make equality claims and where the status of citizenship as such does not count. As Kent Greenwalt reports, ‘people having to decide how to treat others frequently begin with some doubt over exactly what treatment is appropriate for whom’.82 In the EU this basic deliberation has never taken place with regard to the situation of those who are formally regarded as regulated by different legal orders, the flexibility of the line separating them notwithstanding. The argument for current formalism is purely dogmatic. In fact, virtually no-one seems to have ever been interested in the substance of the situation at all,83 somehow 78 The specificity of the sub-national regulation should also be taken into account. See e.g. Dimitry Kochenov (2010), “Regional Citizenships in the EU”, 35 Eur. L.Rev., p. 307. 79 Case 98/86 Mathot [1987] ECR 809. 80 Case C-434/09 Shirley McCarthy [2011] 3 CMLR 10. For details see e.g. Niamh Nic Shuibhne (2012), “Annotation of Case C-434/09 McCarthy and Case C-256/11 Dereci”, 49 CMLRev., p. 349. 81 Case C-212/96 Government of the French Community and Walloon Government v. Flemish Government [2008] ECR I-1683. For analysis see e.g. Peter Van Elsuwege and Stanislas Adam (2009), “The Limits of Constitutional Dislogue for the Prevention of Reverse Discrimination”, 5 EVR. Const. L.Rev., p. 327; Camille Dautricourt & Sebastien Thomas (2009), “Reverse Discrimination and Free Movement of Persons under Community Law: All for Ulysses, Nothing for Penelope?”, 34 Eur. L.Rev., p. 433; Peter Van Elsuwege and Stanislas Adam (2008), “Situations Purement interner, discriminations à Rebouts et colloctivités Autonomes Aprēs, l’ Arrêt Sur Assurances soins flammande,” Cohiers de droit european, P. 655. 82 Greenwalt (1983), op. cit., p. 1171. 83 The remarkable work of Andrew Williams provides a notable exception in this regard.

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presuming that such formalistic split between the legal orders is the only, even if not the just way to assess reality: ‘jurisdiction is prior to substance’.84 However, jurisdiction is not a given, as it is seemingly legitimately claimed by two or more legal orders at any given time, what commentators tend to downplay. All the situations regarded as vested in different legal orders, however porous the border, are dismissed as incomparable without a slightest doubt. The overwhelming ease with which the border between the legal orders moves to and fro85 only makes the feeling of injustice more acute, since it is overwhelmingly clear that the CJEU can always move such border in any direction whatsoever with a reference to the fundamental principle of equality. Too bad the principle is meaningless in such situations. Consequently, the current state of affairs falls short of any substantive idea of equality since equality tends to be applied separately twice at two different levels. Particular citizens’ lives are virtually randomly assigned to one legal order or another. Considerations of justice play no role at all in this process. With virtually no logically pre-defined border between the two legal orders in many cases, nor any sound substantive principle to govern the drawing of such border, which would go beyond the self-referential rhetoric of cross-border situations thus having little to do with citizens’ lives – or the doctrine of the ‘substance of rights’,86 ironically apparently immune to the actual notion of rights’ protection,87 the 84 Damian Chalmers, Gareth Davies & Giorgio Monti, European Union Law, 2nd ed., Cambridge: CUP, p. 463. 85 It would be a misconception to state that the jurisdictional border only moves in one direction. Since the change in the nature of European federalism from dual to cooperative, it is only natural that there is more sharing of responsibilities between the two legal orders – what can also be observed in practice. In fact, the Member States are often called upon to regulate some issues which previously would be considered the holy cows of supranational competence and vice versa. Such loosening of the supranational grip can be observed inter alia in the area of free movement of economically active persons. Not only does the Court de facto allow its Member States’ counterparts to participate in defining the notion of a worker, it also allows for nationality discrimination in some cases where it was squarely prohibited before. The notion of ‘real links’ with the Member State of residence is used as a pretext. Not all such developments should be praised, since they obviously violate the Unity of EU law. See inter alia Case C-94/07 Andrea Raccanelli v. Max-Planck-Gedellschaft zur Förderung der Wissenschaften eV [2008] ECR I-5939, 37; Case C-213/05 Geven [2007] ECR I-6347. For analysis see e.g. Charlotte O’Brien (2009), “Social Blind Spots and Monocular Policy Making: The ECJ’s Migrant Worker Model”, 46 Common Mrkt. L.Rev., p. 1107; Síofra O’Leary (2008), Developing an Ever Closer Union between the Peoples of Europe?, Mitchell Working Paper (Edinburgh) No. 6/2008, pp. 14–24. 86 For a critical introduction see Dimitry Kochenov (2011), “A Real European Citizenship” op. cit.; Koen Lenaerts, “‘Civis europaeus sum’: From the Cross-border Link to the Status of Citizen of the Union”, 3 Electronic Journal on Free Movement of Workers in the European Community, p. 6. 87 This is so, first of all, since it is not clear which rights are actually protected: Dimitry Kochenov (2013), “The Right to Have What Rights?: EU Citizenship in Need of Clarification”, 19 EUR, L.J., P. 502.

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principle of equality de facto ends up left without any application. Andrew Williams seems absolutely right in this respect, stating that [t]he principles which the CJEU proceeded to develop through its case law have not been based on fundamental values that have any coherence, even thought the consistent use of the rhetoric of certain values might suggest otherwise.88

That the current state of the law is antithetical even to the virtually meaningless minimalistic standard is equally clear. In fact, surprisingly, the EU is one of the very few democracies on Earth, with regard to which even the formalistic idea of equality, considered by the majority of commentators as largely empty, so basic and universally accepted is its meaning, teaches us something: it is necessary convincingly to define what is like and what is unlike at least – what never happened in the EU with the porous border between the legal orders. If the taxes you pay depend, out of all things, on the nationality of your former wife who left the country,89 and whether your family will be destroyed – on the history of travel to your second state of nationality,90 it is probably the right time to start a serious debate about the substance of the equality principle, given its current state of development in the Union. One thing is clear. Having stepped into the citizenship world, the EU is still unable to cope with its birth defect, i.e. the strong market bias, which is logically inexplicable in the new situation.91 Joseph Weiler is absolutely right in his analysis of the citizenship case-law of the CJEU: L’aspetto problematico di questa giurisprudenza è che precisamente omette di compiere la transizione concettuale da una libera circolazione basata sul mercato ad una libertà basata sulla cittadinanza.92

While Wojciech Sadurski might be correct in characterising the concept of ‘equality before the law’, which is the narrowest possible vision of Karst’s formal equality, as ‘redundant’,93 since “equal treatment of individuals from the point of view of a given legal rule is nothing other than the treatment of those individuals in accordance with the rule”,94 in the EU, once again, even this most basic standard 88 Andrew Williams (2009), “Taking Values Seriously: Towards & Philosophy of EU Law”, 20 Oxford J. Legal Stud., P. 549, 560–561. 89 Case C-403/03 Egon Schempp [2005] ECR I-6421. 90 Case C-434/09 Shirley McCarthy [2011] 3 CMLR 10. 91 Dimitry Kochenov & Richard Plender (2012), “EU Citizenship: From an Incipient Form to an Incipient Substance? The Discovery of the Treaty Text”, 37 EVR. L. Rev., p. 369. 92 Weiler (2009), “Nous coalisons des Etats”, op. cit., p. 82. Weiler comes to this conclusion based on the analysis of the political side of the essence of citizenship, but the same holds, as has been demonstrated supra, also for the analysis evolving around the principle of equality. 93 Sadurski (1998), op. cit., p. 69. 94 Ibid.

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cannot be claimed to be met, since too many rules – either belonging to the national, or to the EU level – cannot boast a clear material scope of application as a result of the rivalry between the legal orders and the random allocation of the border-line between them, which usually falls short of any substantive standards to be explicable by anything else but the internal market orthodoxy – all this the newly emerging citizenship-inspired vision notwithstanding.95 This state of affairs has far-reaching implications for the whole spectrum of other key principles of law, as well as the very idea of liberalism, lying at the core of European legal culture, which is marked by the fusion of liberty and equality.96 Indeed, as Sotirios Manolkidis has remarked, ‘what is really surprising is that the Treaties lack a general norm guaranteeing “the equal protection of the laws” for all persons in the EU’:97 was even the minimal idea of equality not among the ideals embraced by the founders? From the analysis above it is apparent that formal equality, however frequently proclaimed as a general principle of law, failed to take root in the EU. Consequently, the organisation is building on the ‘institutional ethos that lacks reasonable coherence and moral purpose’.98 The current state of the Union is deeply troubling. 6. Fake Equality Principle and EU Citizenship in Trouble It seems that the EU is falling victim of its own structure and objectives coupled with the profound inflexibility of the fundamentals of its design. Never actually aspiring to embrace a certain substantive theory of justice, the EU has been constantly evolving around purely utilitarian considerations of peace, prosperity and economic rationality. As Andrew Williams has brilliantly explained, the Union has never gone as far as embracing any substantive legal principles going beyond selfreferential ideology of interpretation of the founders’ intent.99 Equality is just one among a number of important principles to have suffered as a result of this unfortunate development. The deficiencies outlined, have a rich potential to undermine the development of the Union in the future, if not its very existence. However, in remedying them, also extra-legal factors need to be taken into account. 95 Dimitry Kochenov (2013), “The Citizenship Paradigm”, 15 Cambridge Yearbook of Euroepan Legal Studies. 96 See Wollheim (1955–1956), op. cit., p. 281. To substantiate this point, Wollheim refers to Guido de Ruggiero (1927), The History of European Liberalism, London: OUP, p. 51. 97 Sotirios Manolkidis (1997), “The Principle of Equality from a Comparative Constitutional Perspective: Lessons for the EU”, in Alan Dashwood & Síofra O’Leary (eds), The Principle of Equal Treatment in EC Law, London: Sweet and Maxwell, p. 80, 99. 98 Williams (2010), op. cit., p. 18 (emphasis in the original). 99 Williams (2009), op. cit., p. 549.

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The emptiness of the stated principle of equality is not exceptional at all in the Union context, should one be ready to inspect the system of EU law with a critical eye. It falls all too well within the general picture of the problematic nature of EU law painted, inter alia, by Andrew Williams100 and Joseph Weiler.101 The main problem here is that EU law has an underlying philosophy, which “appears to be based on a theory of interpretation (of original political will) rather than a theory of justice”.102 Concerns about effectiveness and the striving to achieve the Treaties’ goals have overshadowed the idea of justice itself.103 Freedom, democracy, the Rule of Law, and, for that matter, equality, is “encouraged in so far as it is related to achieving the aim of the common market”.104 Joseph Weiler even went as far as to claim that this state of affairs corrupts individuals who are getting more and more used to the operation of the system which, in essence, compromises two main principles of democracy, those of responsibility and representation.105 Based on the analysis above, equality can safely be added to the list. In the words of Andrew Williams, the EU evolved around the principle of effectiveness, which includes “a weak notion of virtues that have together been used as a substitute for any ‘strong’ ethical, or ideal, foundation”.106 In this context, the Union’s vision of equality and citizenship is but another illustration of the nature of EU law, where ‘inspiration has come from a confused interpretative approach, not an ethical position’.107 It is truly puzzling that the EU is often not even expected to base its positions on fundamental principles enjoying any substance other then the self-referential integration project: clearly informed by the objectives of the Treaties, what is called by the CJEU the ‘fundamental principles’ is confined in fact to a subordinate position. In a way, the law in the Union seems to be a result of the general proceduralisation of effectiveness concerns, rather than building on any sound determination of the meaning of the foundational principles and underlying values. But how could such foundational principles be contemplated upon in a situation where any vrai political process or culture is missing? The Court seems to be the only institution free (but preferring not) to move into this unchartered territory, which necessarily implies a number of problems.108 100 Ibid. 101 See, inter alia, Weiler (2009), “Nous coalisons des Etats”, op. cit., p. 51. 102 Williams (2009), op. cit., p. 549, 569. 103 De Búrca, Kochenov & Williams (2014), op. cit. 104 Williams (2009), op. cit., p. 567. 105 Weiler (2009), “Nous coalisons des Etats”, op. cit., pp. 60–61; D. Kochenov (2013), “The Right to Have What Rights?”, op. cit. 106 Williams (2009), op. cit., p. 551. 107 Ibid., p. 552 (emphasis added). 108 Weiler (2009), “Nous coalisons des Etats”, op. cit., pp. 81–82.

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Consequently, it seems that the current situation with citizenship and equality should not be regarded as surprising. It would be incorrect, however, to present it as merely a design error. Notwithstanding the far-reaching goals in the preambles of the founding Treaties, the European integration project was not designed, legally speaking, to function – as it does – as a ‘competitor to, rather than a complement of national constitutionalism’.109 The problems related to the meaning of equality and other fundamental principles of EU law from which the Union currently suffers could not be as acute in the pre-citizenship Union playing a much more modest role in the European legal landscape.110 It seems that it is only the creation of EU citizenship, accompanied by the drastic expansion of the scope ratione personae of the Union111 and coupled, quite naturally, with the profound mutation of its material scope,112 which brought to light the current deficiencies. Following the overwhelming change in the potential scale of the Union’s involvement in the lives of ordinary people and its growing role of a competitor of the Member States as a protector of individuals who ended up within the scopes of both legal systems, the very paradigm of European integration has changed. The ethical foundations of the founding Treaties gradually turned inadequate,113 just as the efforts of the Court to make sense of the new reality come across as by far insufficient in order to meet the challenges posed by the Union that has evolved. The current situation is thus not a design error, but a failure of adaptation in the atmosphere where the profound change in the context of European integration demands the rethinking of its fundamentals. What seemed irrelevant and marginal in the days of the founding of the Union is now capable to undermine the core of the main principles governing the operation of both the Member States and the Union alike. Economic considerations coupled with self-referential Treaty-rhetoric of an ‘ever-closer Union among the peoples of Europe’114 are not enough – and any deeper considerations of justice are simply not there. The EU is entering a dangerous new terrain and desperately needs to adapt to the new circumstances. All the recent Treaty revisions as well as the Court in all its recent case law are missing the key point which is to instruct such adaptation. Clearly, “[a] polity governed by a legal system based on a

109 Gareth Davies (2010), “The Humiliation of the State as a Consitutional Tactic”, in Fabian Amtenbrink and Peter Van den Perg (eds), The Constitutional Integrity of the European Union, The Hague: T.M.C. Asser Press. 110 Kochenov & Plender (2012), op. cit. 111 Spaventa (2009), op. cit. 112 Kochenov & Plender (2012), op. cit. 113 Weiler (1999), op. cit., pp. 256–257. 114 Recital 13 of the EU Treaty Preamble.

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philosophy that eschews justice in its formulation will be unlikely to survive in the long term particularly when faced with extreme tensions”.115 It is most unfortunate that the choice whether to apply EU law is more often than not based on totally flawed assumptions which cannot have any rational explanation besides a historical one. The integration project clearly suffers from the inertia of economic thinking which preceded Maastricht, where Community rights were reserved for workers and other economically active Member States’ nationals moving around. While this rationale of integration is by far not the most important one at the moment, the inertia of short-sightedness stays, poisoning the unimaginative present. Presently, when the EU is so much more than a ‘market’, and where citizens, finally, are recognised as so much more than merely factors of production, benefiting from free movement cannot be legitimately presented as a choice, which is superior to the second option – namely, enjoying your stay at home.116 The Union is mature enough to guarantee equality before the law to its citizens.

115 Williams (2009), op. cit., p. 572. 116 D. Kochenov (2013), “The Right to Have What Rights?”, op. cit.

The Charter of Fundamental Rights and EU Citizenship: The Link with EU Law Re-Examined Jože Štrus* and Nina Peršak 1. Introduction The scope of application of fundamental rights in the European Union and of Union citizenship rights is an issue that has an important impact not only on those who rely on these rights in contentious situations. It also defines the scope of intervention of EU institutions, which is in itself an important legal issue, discussed at the highest political levels during negotiations on amendments to the Treaties. In a system of shared competence, the Charter of Fundamental Rights of the EU (hereafter: the Charter) and the rights attached to Union citizenship do not apply at the level of Member States in every situation. Their application at national level depends upon an assessment of whether a particular situation falls within the scope of EU law. The existence of the so-called link with EU law is a complex legal issue that has been elaborated in the case law of the Court of Justice and has a dedicated provision in the Charter (Article 51). This chapter aims, first, to compare which circumstances make the Charter and the rights attached to Union citizenship applicable at national level. The comparison will show that the application of Union citizenship rights at national level, as developed in the case law of the Court of Justice (hereafter: the Court), is not exclusively triggered in situations where an individual has exercised his or her rights attached to Union citizenship (particularly the right to free movement). In certain narrow, special situations, the Court has namely assessed whether a national measure had negatively affected the exercise of Union citizenship rights. While this argumentation clearly derives from the area of internal market and is not novel in itself, it has re-imagined the circumstances that create the link with EU law in the area of Union citizenship. This development regarding the scope of application of Union citizenship rights, while limited to special situations, has raised the question whether it should also be extended to the application of the Charter at national level, which is defined in its Article 51. This article stipulates * The views expressed in this chapter are personal ones and cannot be considered as an official position of the European Commission. We would like to thank Dr. Emmanuel Crabit and Florian Geyer for their constructive comments on the earlier draft of this chapter.

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that the Charter is addressed to the Member States only when they are implementing Union law. According to the practice and case law on Article 51, the Charter mainly applies in situations when a national authority applied an EU regulation or applied the national law that implemented an EU directive. In the area of fundamental rights, the link with EU law is therefore created when a concrete piece of EU law is applied or implemented. Second, we propose that the understanding of what creates a link with EU law in the area of fundamental rights should move beyond the situations in which EU law is directly applied or implemented. In our opinion, the Charter ought to apply also in situations at national level where EU law was not concretely implemented, but where the national measure nevertheless has a negative impact on the effectiveness of EU law. Drawing on a similar analysis in the case law of the Court of the negative effect of a national measure on the Union citizenship rights and on a European Commission intervention against a certain Member State involving the respect for the Charter, we shall develop an argument for a next evolutionary step in the area of EU fundamental rights law. The negative impact of national legislation in the area of fundamental rights on the effectiveness of EU law should make the Charter applicable at national level. In other words, when a piece of national legislation or a national measure in the area of fundamental rights is of such importance that it negatively affects the effectiveness of EU law, the EU institutions, it will be argued, should have the competence to intervene. This approach would have at least two advantages: it would allow for an intervention against a national measure, before the latter negatively affects the application of a particular piece of EU legislation. It would also make the Charter applicable to limited, narrow situations, where EU law is negatively affected, but where currently there may be no possibilities to address this. 2. EU Citizenship – The Link with EU Law Ever since it was established by the Maastricht Treaty in 1992, the Union citizenship (and its scope of application) has been the subject of much discussion1 and has even been famously dubbed by the Court of Justice as “destined to be the fundamental status of nationals of the Member States” (Grzelczyk [2001], para. 31). Despite this seemingly far reaching language, the Court in several cases pointed out that Union citizenship “is not intended to extend the scope ratione

1 For a thoughtful examination of different conceptions of European citizenship see Kostakopoulou 2007.

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materiae of the Treaty also to internal situations which have no link with Community law”.2 It is well accepted that the link with Union law in the area of Union citizenship has been traditionally established with the exercise of one of the particular rights attached to it. A brief look at the case law of the Court shows that a great number of cases concern a national of one Member State exercising his or her freedom of movement for the purpose of work, education or, in some situations, for a purpose not connected to any economic activity (e.g., among the leading cases, Bickel and Franz [1998], Martínez Sala [1998], Bidar [2005]). At first, the Court has invalidated measures relying on the principle of non-discrimination on the ground of nationality; however, in Schempp [2005] (paras. 22–26, 42–47; proposed by AG Jacobs in Pusa [2004]) the Court made a decisive shift by striking down national measures due to their restrictive effect on freedom of movement or residence (Jacobs 2007, p. 597). It should be noted, however, that these cases involved some movement on the part of the Union citizen, in order to place the situation within the scope of Union law. However, in several cases the movement from the Member State of origin to another Member State has not been as explicit or was even non-existent (Sharpston 2010, paras. 77–78; Kochenov 2011, pp. 69–91; Kochenov 2009, pp. 28–29). For example, in García Avello [2003] concerning Belgian rules governing surnames applying to children with dual Belgian and Spanish nationality (who apparently have not moved outside Belgium), in Zhu and Chen [2004] concerning a child with Irish nationality (who has only moved from Northern Ireland to England) and the residence of her mother, a third-country national, at stake, and in Rottmann [2010] that focuses on the consequences for the Union citizenship of the withdrawal of a naturalised (German) citizenship (with the Court seemingly not paying particular attention to previous movement from Austria, the country of his prior citizenship, to Germany). Furthermore, as it has been exhaustively covered, in the important decision of the Grand Chamber in Zambrano [2011], the Court did not require even the slightest movement of three children (Union citizens) from Belgium in order to secure their (third-country national) father, on whom they were dependent, the right of residence and a work permit. Later, in McCarthy [2011], the Court addressed a situation of a dual Irish and UK national (who was born and has always lived in the UK), married to a third-country national who lacked a leave to remain in the UK and attempted to rely on her Union citizenship to secure a residence permit. 2 Case Uecker and Jacquet [1997], para. 23; repeated in: García Avello [2003]; Schempp [2005]; TasHagen and Tas [2006]; Gouvernement de la Communauté française and Gouvernement wallon [2006]; Nerkowska [2008]. However, it should be noted that the Court in most of these cases established a link with EU law.

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What all these decisions have in common is that the Court has not relied (or has not relied exclusively) on the movement of a Union citizen outside of his country of origin in order to establish the link with EU law in the area of Union citizenship. Neither has the Court relied on the exercise of any other right attached to Union citizenship. What also distinguishes these decisions is that the Court evaluated in some way or another the effect of a national measure on the Union citizenship rights. The Court has either assessed the current negative impacts of a national measure or at least hinted at the potential restrictions it could present in the future. For example, in Zhu and Chen, the Court stated that the refusal to allow the parent (carer) to reside with the child in the host Member State would “deprive the child’s right of residence of any useful effect” (paras. 45–46). In Rottmann, the Court pointed out that when examining a decision to withdraw naturalisation it is necessary to take into account “the consequences that the decision entails […] with regard to the loss of the rights enjoyed by every citizen of the Union (para. 56). In Zambrano, the Court famously stated that Article 20 TFEU precludes national measures which have “the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union” (paras. 42–43). The Court in McCarthy, while quoting freedom of movement under Article 21 TFEU, has went further by stating that not only national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by that status are precluded by Union law but also those “impeding the exercise of [the] right of free movement and residence” (paras. 49, 55 and 56). McCarthy introduced an important development, as the Court has, first, clearly assessed the effect of a national measure on the right to free movement and residence. Second, the Court followed the reasoning articulated in Zambrano and hinted it would not dogmatically require the Union citizen to move for the situation to fall within the scope of Union law (para. 46). Even in García Avello, which invalidated the Belgian prohibition of double surnames relying on the principle of non-discrimination on the ground of nationality, the Court stated that national rules on surnames must comply with freedom of movement and residence (paras. 25–28) – which is only a step away from declaring such rules cannot negatively affect this EU right. This trend in the Court case-law, progressively focusing on the effects that a national measure has on Union citizenship rights, is not so unexpected from the wider perspective of EU law. What the Court started to apply is the well-known internal market Dassonville formula (Sharpston 2011, para. 70) according to which any national measure capable of hindering intra-community trade is to be considered as a measure having an effect equivalent to quantitative restrictions and is therefore prohibited (Dassonville [1974]). By enacting this principle so clearly, the Court has defined a new link with Union law, one that is decidedly focused on the

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effectiveness of rights, instead on often awkward requirement of movement, and one that is at the same time focused on the national measure and its particularities. However, the Court has also set the bar quite high by, for example, requiring in Zambrano a deprivation of the genuine enjoyment of the substance of the Union citizenship rights. It has been argued that the approach put forward in Zambrano will be limited to specific situations of national measures which have the deprivation effect, with the intention to keep the requirement of movement as a connecting factor in cases where a national measure has a less restrictive effect, as for example in McCarthy (Lenaerts 2011). It should be noted that disenfranchisement (the loss of the right to vote) in the Member State of origin has been persuasively pointed out as another example of a national measure that has a restrictive effect on the exercise of Union citizenship rights (Kochenov 2009, pp. 28–32). The Court in Dereci [2011] provided further clarifications to the approach formulated in Zambrano, while still upholding it. While the Court emphasised the exceptional nature of the Zambrano protection (solely economic reasons or keeping the family together is not sufficient to require granting a residence card to a third-country national family member, para. 68), it also explicitly allowed for considerations regarding fundamental rights to come in, in this case the right to the protection of family life (para. 69). This convergence was essential, as the Court in Zambrano refrained from referring to the Charter altogether, so the question of how fundamental rights fit in such situations remained open. What is important is that the Court has clearly shown that there is no gap in protection of fundamental rights, but that there are only different institutions protecting them, be it the Court of Justice applying the Charter or the national courts applying the European Convention of Human Rights. 3. Fundamental Rights – The Link with EU Law Ever since the Court in 1969 essentially ruled that identifying a beneficiary for cheaper butter on a social welfare coupon is disproportionate (Stauder v Ulm [1969]), the Court has protected fundamental (human) rights enshrined as general principles of EU law. The Court enacted the fundamental rights protection over Community legislation and therefore regarding the actions by Community institutions. The other option, i.e. leaving the fundamental rights protection to the (constitutional) courts of the Member States, would have essentially taken the important control over (fundamental rights compliant) application of EU law away from the Court of Justice and from other EU institutions. The institutional context of the early fundamental rights jurisprudence shows that the fundamental rights protection has been, since the very beginning, inextricably connected to

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the issue of division of competence between the EU institutions and the Member States. Applying fundamental rights at EU level was never as straightforward as at national level. Already in pre-Charter times, the Court had to elaborate upon an essential question: in which situations do EU fundamental rights bind the Member States? This is not only a challenging legal question, it was and still is a pre-eminent political question, often debated in national parliaments and one that has even led to the drafting of dedicated Treaties’ Protocols.3 Over the years, the Court has delivered a number of judgments that tried to clarify which circumstances at national level create the so-called link with EU law. By and large, these judgments concerned situations, where particular pieces of EU legislation were being applied or implemented. This does not come as a surprise, considering any ‘expression’ of EU law at national level should comply with fundamental rights, which seems to have been one of the central objectives of the EU fundamental rights jurisprudence since the very beginning. With the Charter becoming legally binding, the issue of the scope of application of fundamental rights has been formalised in the first paragraph of Article 51 of the Charter prescribing that it is addressed to Union institutions and bodies, as well as to Member States, but in the case of the latter “only when they are implementing Union law”. The official Explanations to Article 51 of the Charter quote four cases of the Court regarding the application of fundamental rights to Member States: Wachauf, ERT, Annibaldi and Karlsson (Explanations 2007, p. 32). In the 1989 case Wachauf, the Court held that the requirements of protection of fundamental rights “are also binding on the Member States when they implement Community rules” and that Member States must “apply [Community rules] in accordance with those requirements”. Soon after, the Court was called upon to clarify whether Member States must respect fundamental rights when relying on a derogation from Union law to restrict a fundamental freedom (free movement of goods, persons, services or capital).4 In ERT [1991], the Court replied in the affirmative, stipulating that national rules can fall under the exceptions to the freedom to provide services, 3 E.g. Protocol (No. 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, annexed under the Treaty of Lisbon to the Treaty on European Union and to the Treaty on the Functioning of the European Union. In 2011, the Court held that “Article 1(1) of Protocol (No. 30) explains Article 51 of the Charter with regard to the scope thereof and does not intend to exempt the Republic of Poland or the United Kingdom from the obligation to comply with the provisions of the Charter or to prevent a court of one of those Member States from ensuring compliance with those provisions” (N.S. and Others [2011], para. 120). 4 Limitations justified on grounds of public morality or public policy, public security or public health: see Articles 36, 45(3), 52(1), 62 and 65 of the Treaty on the Functioning of the European Union.

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but “only if they are compatible with the fundamental rights the observance of which is ensured by the Court”. The judgment in ERT has shown that fundamental rights are not only relevant when Member States implement or apply Union law in the strict sense. Member States need to comply with fundamental rights not only when acting as an extension of the Union but also when derogating from Union law.5 In Annibaldi [1997], the Court held that national legislation in question (which established a nature and archaeological park) does not fall within the scope of Community law as there are “no specific Community rules” in this area. It is stated in the Explanations that Karlsson [2000] confirmed the case-law under previous three cases. In relation to the above cases, it has been proposed that there are in essence two ‘categories’ of situations in which fundamental rights apply at national level: one following the Wachauf case concerning Member States when implementing EU law and the ERT line, concerning Member States derogating from fundamental freedoms (Lenaerts 2012, pp. 378–386; Ladenburger 2012, para. 3.1.2.). It has been suggested that one could also distinguish cases in which fundamental rights were applied horizontally, between private parties, and not only vertically, i.e. against the national authorities (Groussot et al. 2011). According to this argumentation, Wachauf-style fundamental rights review by the Court of national measures implementing EU law could be understood as extending also to situations where fundamental rights were invoked between private parties, such as in the cases Mangold [2005] and Kücükdeveci [2010] (idem; authors call it “Wachauf à l’horizontale”). In these two cases, the compatibility with the Charter of national legislation regulating relations between private parties was raised. Additionally, it is proposed that ERT-style fundamental rights review by the Court could also identify situations where fundamental rights were concerned in relation to restrictions to fundamental freedoms in disputes between private parties. Such categorisations are useful for explaining the consequences of application of fundamental rights at national level.6 In more precise terms, what typically creates the link with EU law is the fact there is primary or secondary EU law, which is applicable to the situation at hand: for example, the Treaties, in particular internal market freedoms,7 a 5 See Craig 2011, pp. 430–431, for arguments why ERT should be regarded as implementation of EU law. See Iglesias Sánchez (2012, pp. 1587–1588) for an overview of case law after the entry into force of the Charter that endorses ERT. 6 Brun & Crabit 2006, pp. 55–59, distinguish between what creates the link with EU law and the functions of the link, once it is established (e.g. to interpret EU law, to challenge a national measure implementing EU law…). 7 E.g. freedom of movement: cases Rutili [1975], Orfanopoulos and Oliveri [2004]; freedom to provide services: cases ERT [1991], Gouda [1991], Carpenter [2002], Omega [2004], Laval [2007]; free

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regulation,8 national law implementing a directive,9 a decision or a judgment of the Court or an exchange of letters attached to an agreement between the Commission and a Member State10 (Brun and Crabit 2006, p. 55). There has to be a concrete piece of primary or secondary EU law, which is relevant to the situation at national level, in order to create the link with EU law and make the Charter applicable. The mere existence of EU competence in an area where a national authority has acted is not enough to create a link with EU law (Ladenburger 2012, para. 3.1.2.). What we can discern from the case law of the Court is that there is a requirement that a national measure is linked to a concrete piece of EU legislation, in order to invoke the Charter. Certain cases of the Court seemed to have shown a degree of bigger openness in accepting other circumstances creating a link with EU law. For example, in Estov [2010], the Court stated that it did not find any information that a national decision “would constitute a measure implementing European Union law or would be connected in any other way with that law” (para. 14, emphasis added). In 2011, the Court in Chartry [2011] established that a challenge before a national court concerning taxes “is not connected in any way with any of the situations contemplated by the provisions of the [Treaty]”, which was followed by a more standard finding that the dispute “does not concern the application of national measures by which that Member State implements EU law” (para. 25, emphasis added). While these two non-competence cases cannot be taken as proof that the Court has changed its position on what creates a link with EU law, they could perhaps be understood as an indication that, at least in future, there could be other connecting factors that the Court would be willing to accept, under certain conditions. A good illustration of certain willingness to interpret broadly could be also found in the seminal decision of the Court on the transfer of asylum seekers (N.S. and Others [2011]) from a second Member State to the Member States where they have initially entered the EU in order to have their asylum application examined. The judgment addressed inter alia the question whether a decision adopted by a Member State on the basis of Article 3(2) of Regulation No 343/2003 (the socalled Dublin Regulation) to examine a claim for asylum, which is not its responsibility, falls within the scope of EU law for the purposes of Article 51 of the Charter. This provision of the Dublin Regulation provides that a Member State may examine an application for asylum lodged with it by a third-country national, movement of goods: cases Familiapress [1997], Schmidberger [2003], Karner [2004]; freedom of establishment: case Viking Line [2007]. 8 E.g. cases Wachauf [1989], Eurofood [2006], N.S and others [2011]. 9 E.g. cases Österreichischer Rundfunk [2003], Steffensen [2003], Promusicae [2008], Fransson [2013]. 10 E.g. case Regione autonoma Friuli-Venezia Giulia and ERSA [2005].

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even if such examination is not its responsibility under the criteria laid down in the Dublin Regulation. Some Member States have claimed that such a decision does not fall within the scope of EU law, arguing the text is clear in providing for an option through what could be called a ‘sovereignty’ clause or ‘discretionary clause’. The Court squarely placed this ‘may clause’ as indeed falling within the scope of Union law where the Charter applies. It stated that the Dublin Regulation grants Member States a discretionary power that must be exercised in accordance with the other provisions of that regulation. While this judgment is not too surprising following the earlier judgment of the European Court of Human Rights in M.S.S. [2011] concerning a similar issue of asylum transfers, the Court of Justice has shown willingness to expand the notion of what constitutes implementation of EU law by including also situations where Member States have discretion, which was perceived as falling outside the scope of EU law and the review of compatibility of asylum transfers with the Charter by EU institutions. We should not overlook that the Court in Dereci [2011] avoided using both the expression “when they are implementing Union law” (from Article 51(1)) and “when they act in the scope of Union law” (Explanations 2007, p. 32; similar expression used already in Caballero [2002], para. 31). Instead, the Grand Chamber has used a surprisingly non-dogmatic expression of a “situation […] covered by European Union law” (para. 72). Furthermore, the Court in Vinkov [2012] used the expression “where national legislation falls within the scope of EU law” (para. 58; confirmed by the Grand Chamber in Fransson [2013], paras. 21–22). In our opinion, the Court in these cases has again shown that it will not be drawn into dogmatic, textual interpretation, but that it prefers to use more neutral, even new, expressions when related to the application of the Charter at national level in the context of EU law. Finally, in Fransson [2013], the Grand Chamber went even further and appeared to have pronounced that the Charter applies even to a national provision or measure in a “situation not entirely determined by European Union law” (para. 29). In such a situation, the national authorities and courts remain free to apply national standards of fundamental rights protection, provided that the “level of protection provided for by the Charter […] and the primacy, unity and effectiveness of European Union law are not thereby compromised” (Fransson [2013], para. 29, emphasis added). In this seminal judgment, the Court explicitly referred to the need to ensure the effectiveness of EU law and the level of protection under the Charter in a situation where national fundamental rights standards are (also) applied. 4. Effectiveness of EU Law: A New Connecting Factor with EU Law? The preceding sections have shown how the link with EU law is traditionally created in order to make rights attached to EU citizenship and the Charter applicable

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at Member States’ level. We have also highlighted a few cases of the Court that could be interpreted as leaving a degree of openness in the interpretation of when these rights should bind the Member States. The Union citizenship rights do not only apply at national level in situations where an individual has exercised his or her rights attached to Union citizenship (particularly the right to free movement). In certain narrow, special situations, the Court has assessed whether a national measure had negatively affected the exercise of Union citizenship rights. Its analysis was focussed on the effect of a national measure on the exercise of EU rights. While this argumentation clearly stems from the area of internal market (the Dassonville formula) and is not novel in itself, it has introduced a fresh perspective in establishing what creates the link with EU law in the area of citizenship rights. This development of Union citizenship rights, albeit limited to special situations, poses the question of whether it should also be brought over to the area of fundamental rights. The field of application of the Charter is, however, limited by its Article 51. The latter stipulates that its provisions are addressed to the Member States only when they are implementing Union law. According to case law on Article 51, the Charter applies in situations when a national authority applied an EU regulation or applied national law that implemented an EU directive. The cases contain a requirement that a national measure is linked to a concrete piece of EU legislation, in order to make the Charter applicable to Member States. What we suggest is that the understanding of when the Charter applies at national level should be further developed. It should move beyond the situations in which particular pieces of EU law are directly applied by a national authority or are being implemented through national laws. The condition that a concrete EU regulation or directive must be applicable to a case at national level in order for the Charter to bind the Member States is only one, although arguably the most important, circumstance creating a link with EU law. This requirement came about as a natural development of the case law of the Court from the 1960s, which installed the fundamental rights protection over Community action with the objective that concrete cases of application of EU law at national level should be in compliance with the Charter. The Court in Stauder enacted a degree of control by the EU institutions over the way in which EU law is applied by Member States acting as an agent on behalf of the EU. When Member States apply EU law, this must be done in compliance with fundamental rights (i.e. the Charter), under the control of independent national courts, the European Commission and ultimately under the review of the Court. The level of concreteness in the application of EU law that is required in order to establish the link is a consequence of the procedure of a reference for a preliminary ruling. This procedure enables national courts to question the Court of Justice on the interpretation or validity of European law, which involved particular regulations, directives or decisions. Taking the issue of ‘implementation’ of EU law further, we could state that the

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Charter should accompany all the different expressions of EU law at national level. However, while the precondition of the concrete application of EU law is connected to the goal of ensuring that a particular piece of EU law is applied in compliance with the Charter, it does not cover all situations that affect the implementation of EU law. On occasion, a certain piece of national legislation may be of such systemic character that it does not only touch upon fundamental rights, but also negatively affects EU law in general. If a Member State regulates aspects of, or limits, a particular fundamental right at national level, it should not act under the assumption that it can do so without paying any attention to EU law. Although such a national rule in itself may not be in any direct way linked to a particular piece of EU law, e.g. to a directive requiring transposition, it does not mean there is no causal effect between the two. We can imagine a Member State adopting legislation, which regulates or limits a fundamental right in such a way that it has (or would have) a negative effect on the implementation of EU law. This negative influence can affect the application of a single EU regulation or the implementation of an EU directive, of several EU laws, or even the implementation of all EU law. The fact that it can hinder the effectiveness of all EU law at national level is the reason why we believe it warrants special attention. It could be argued that when the national legislation in some situation regulates or limits fundamental rights, the Charter is the legally binding text against which these national laws should be assessed. The national measure’s negative effect on the implementation of EU law in the area of fundamental rights should in such situations lead to the Charter becoming applicable on the national level. This should therefore become a new link with EU law, one that is focussed on the effectiveness of EU law, instead of the more traditional exploration into whether a national authority was applying a specific Treaty provision or a regulation or was acting on the ground of a national law implementing a specific directive. Main Elements of the Proposal The most important elements in our proposal address the following questions: (a) what constitutes a problematic regulation or limitation of fundamental rights (national measure), (b) what is a negative effect on the implementation of EU law, and (c) which institution or body and at which level should be responsible for assessing whether a national measure has such a negative effect. (a) National Measure A national parliament may regulate the exercise of fundamental rights in a variety of ways, as long as any potential limitations on these rights and freedoms are

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justified. In a situation that is not linked to EU law, this justification is usually checked through a review before highest national courts, including through a constitutionality review before the constitutional courts. We propose that in cases when the implementation of EU law is negatively affected, the Charter not only applies but should also constitute the legal text or the benchmark for assessing whether or not the limitation on fundamental rights is justified. This should also include an assessment of whether the national limitations on fundamental rights are proportionate, i.e. appropriate for attaining the (legitimate) objective pursued and not going beyond what is necessary to achieve it (i.e. the proportionality test). (b) Negative Effect on the Implementation of EU Law The second important factor in our proposal is the way in which a national measure affects the implementation of EU law. A piece of national legislation with a systemic reach11 in the area of fundamental rights can influence the effectiveness of EU law in several ways. For example, a Member State could limit the freedom of expression and information as regards the information on alleged violations of EU law. It could limit what journalists report on compliance of that country with requirements of EU law by requiring a journalist to submit a piece of news before its publication to the government for a review or by requiring a government position to be published along side the news. Not only would such regulation of freedom of expression and information most likely have a chilling effect on freedom of expression, it could also inhibit the proper functioning of EU institutions as regards the monitoring of compliance with EU law. If information coming from a Member State is in such a way monitored, this could have a negative impact on the effectiveness of all EU law. In its effect such a measure could be compared to a national measure banning requests for preliminary rulings to the Court of Justice. If channels of information on the respecting of EU law in a Member State were impeded, this would surely have a negative impact on the implementation of EU law in that country. On the other hand, it is not impossible to imagine a situation in which a Member State would completely overhaul its system of private property in a way that is incompatible with the EU market. Such a system could not only run contrary to the free movement of capital, but could also make the functioning of that country in the integrated EU system very difficult or even impossible. This would lead to a negative effect on the implementation of EU law, as the newly regulated right to property would not be compatible with the EU system as a whole. While we do not propose to stifle any sort of innovation in the area of 11 Laws that have a wide reaching effect in different areas of social life.

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private property – the assessment of the existing system seems particularly relevant in the analysis of the causes and consequences of the post-2008 world economic crisis – it would be impossible to think a Member State could regulate the fundamental right to property without any regard to the influence on the implementation of EU economic law. Another example also concerns the right to property. Let us imagine a Member State introduces a tax that has as the sole objective the collection of money to compensate for the effects of the application of EU law. If an EU regulation, a directive or a decision of the Court of Justice would impose or lead to a financial burden for the country, such a tax would be focussed at counter balancing these obligations under EU law. Such a focussed measure in the area of tax law could potentially have severe negative effects on the implementation of EU law. It is not difficult to imagine that tax payers would prefer to decide not to respect a decision of the Court of Justice or an EU regulation or a national law implementing an EU directive if they would otherwise risk having to pay an additional tax. This type of a civil disobedience against EU law, assisted by a Member State (through the imposition of the counter-balancing tax), could have serious effects for the application of EU law in a particular area and should thus certainly not remain unaddressed at EU level. This systemic and structural issue can only be deemed as incompatible with EU law, if we have a broader understanding of where the Charter applies at national level and that it does not require the application of a particular piece of EU law. (c) The Role of the EU Institutions and National Courts In the situations as the ones described above, it would be important to allow for a review of compatibility of national legislation with the Charter, without the need to wait for a particular piece of EU legislation to be applied or implemented. This assessment should be made at EU level by the Court of Justice, on the initiative of a national court (through a request for a preliminary ruling) or an infringement procedure started by the European Commission or by another Member State. A disproportionate intervention12 into fundamental rights on behalf of the national authorities would be declared illegal under EU law with the connecting factor being a negative effect on the implementation of EU law. By performing such a review of national legislation in the area of fundamental rights, the EU would act before any concrete violations even occur. Naturally, such a review would have to be based on the assessment of potential effects of national

12 The most problematic in terms of disproportionate intervention would likely be national legislation that has a wide reaching effect in the sense it regulates a given fundamental right in a systemic way, that has an influence in different areas of social life.

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legislation in the area of fundamental rights on the implementation of EU law. However, in its essence this type of analysis would not be very much different from what the Court was confronted with in Union citizenship cases mentioned under section 2. For example, in Zambrano the Court held as contrary to EU law national measures “which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union”. While the imminent deportation of parents certainly was a national measure that very concretely threatened to deprive the child of the enjoyment of those rights, the Court did not go into the analysis of which particular right or freedom would be infringed and precisely how. The Court did not try to find whether the children could perhaps exercise some of their EU rights if their parents, in case they would not be allowed to stay, could re-enter the territory of the Member State on a visa. One could argue that a detailed analysis of the effect on particular EU rights in Zambrano was not necessary, as it was more or less clear that children would be deprived in exercising them without having access to the territory of an EU Member State. The fact remains, however, that certain rights could be exercised even from abroad (e.g. the right to petition the European Parliament, to apply to the European Ombudsman and, most notably a right that can only be exercised from a third country – consular protection). There is another example of the enforcement of EU law that has used an approach based on similar thinking to one advocated here. A similar issue of how concrete a threat of infringement of a particular fundamental or Union law right should be to warrant an intervention by a Union institution was brought up in the context of Commission action concerning Hungary as regards the respect for judicial independence. The independence of the judiciary was raised by the European Commission13 (as well as the Council of Europe’s Venice Commission)14 with regard to a far-reaching reform of the judiciary in this country. These reforms introduced to the legislation on the administration of justice have put into question the compliance with the requirements of the independence of the judiciary. National courts act as ‘Union courts’ whenever they apply Union law and therefore need to satisfy the minimum standards of independence and effective judicial redress. The Commission was concerned that the lack of judicial independence could affect the effective application of all Union law in the Member State as well as the fundamental rights of citizens and businesses to an effective remedy by an independent court in Union law cases, as guaranteed by the Right to an effective remedy under Article 47 of the Charter. Furthermore, in accordance with the

13 European Commission 2012a (see also a statement and a letter by Reding 2012), European Commission 2012b, and European Commission 2012c. 14 Venice Commission 2012a and Venice Commission 2012b.

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Court’s case law, only an independent and impartial national tribunal can request a preliminary ruling from the Court. When assessing admissibility of requests for preliminary rulings, the Court has built up an impressive jurisprudence on what exactly the requirements of the independence and impartiality are.15 In these requests, the Court assesses the independence of a national body as a structural issue related to the national legislation ensuring independence, without discussing how a particular piece of EU legislation was applied. In the case of Hungary, the Commission raised its concerns through several administrative letters by relying on Article 47(1) of the Charter, which provides that “everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal”. However, as the Article 47(1) guarantees access to an independent court to everyone in order to protect against violations of any right or freedom guaranteed by EU law, the Commission brought the issue to the attention of the Member State as a structural point, without quoting a concrete case of misapplication of a particular EU regulation or a directive due to a lack of judicial independence. In relation to our proposal, the example described above raises an important question: is an assessment that a Member State has put in danger the application of any piece of Union legislation sufficient to warrant an intervention against a Member State? In view of the fact that the establishment of a link with Union law, in order to make the Charter applicable at national level, traditionally requires the case to concern the application or implementation of a particular piece of Union legislation, would it be sufficient to show that there is an actual threat that the implementation of Union law would be negatively affected, even though this threat is not focused on a concrete piece of EU law? In our opinion, the reply should be in the affirmative. Considering that national legislation in the area of fundamental rights could threaten the effectiveness of EU law, one could argue that there is a need for a review at EU level before any such negative consequences arise. However, such a review should not come without certain limitations. As the Charter should apply also in situations at national level where EU law was not concretely implemented, but where some national measure nevertheless has or would have a negative impact on the effectiveness of EU law, the extent of “remoteness” or distance of the ensuing negative impact should be clearly stipulated. While the justification for the EU intervention in the cases where some national measure already has a negative impact is rather clearcut, the further the potential threat or risk of a negative impact is, the less stronger is the need or legitimation for the EU intervention. Clearly, the EU intervention 15 E.g. cases Wilson [2006], De Coster [2001], Köllensperger and Atzwanger [1999], Dorsch Consult [1997].

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against a Member State would not be warranted if a national measure had a purely hypothetical negative impact on the effectiveness of EU law or the link between a national measure and the negative effect was too remote or too small. 5. Conclusion When considering situations where fundamental rights and Union citizenship apply to national measures, we should, in a functionalist approach, follow all expressions of EU law at national level, with the overall objective of guaranteeing the effectiveness of EU law. If a Member State regulates or limits a particular fundamental right at national level, it should not act under the assumption that it can do so without paying any attention to EU law. Although such a national rule in itself may not be in any direct way linked to a particular piece of EU law, it does not mean that it does not affect it. It has been argued that the Charter should apply also in situations at national level where EU law was not concretely implemented, but where some national measure nevertheless has (or would have) a negative effect on the effectiveness of EU law. Following a similar analysis of a “negative impact” in the recent case-law on Union citizenship and of Commission intervention concerning judicial independence, we have proposed the following argument for a next evolutionary step in the area of EU fundamental rights law: when a piece of national legislation or a national measure in the area of fundamental rights is of such systemic or structural importance that it has (or would have) a negative impact on the effectiveness of EU law, the EU institutions should have the competence to intervene on the basis of the Charter binding the Member States, before a particular piece of EU legislation is affected. Although this review should not be without its limits, should be used sparingly and only when the implementation of EU law is, or would be, very negatively affected, it could, by detecting a sore spot before it fully develops, remedy a problematic situation in the area of fundamental rights before it escalates and triggers calls for using more drastic measures, such as the procedure for suspending certain rights of a Member State under Article 7 TEU.

References Annibaldi Case C-309/96 Daniele Annibaldi v Sindaco del Comune di Guidonia and Presidente Regione Lazio [1997] ECR I-07493. Bickel and Franz Case C-274/96 Criminal proceedings against Horst Otto Bickel and Ulrich Franz [1998] ECR I-07637. Bidar Case C-209/03 The Queen, on the application of Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills [2005] ECR I-02119.

The Charter of Fundamental Rights and EU Citizenship  339 Brun A. & E. Crabit (2006), “Faire respecter les droits fondamentaux à l’intérieur de l’Union européenne”, R.A.E. – L.E.A 2006/1, pp. 45–63. Caballero Case C-442/00 Ángel Rodríguez Caballero v Fondo de Garantía Salarial (Fogasa), [2002] ECR I-11915. Carpenter Case C-60/00 Mary Carpenter v Secretary of State for the Home Department [2002] ECR I-06279. Chartry Case C-457/09 Claude Chartry v Belgian State [2011] ECR I-00819. Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national. Craig, P. (2011), “The ECJ and ultra vires action: a conceptual analysis”, Common Market Law Review, 48, pp. 395–437. Dassonville Case C-8/74 Procureur du Roi v Benoît and Gustave Dassonville [1974] 00837. De Coster Case C-17/00 François De Coster v Collège des bourgmestre et échevins de WatermaelBoitsfort [2001] ECR I-09445. Dereci Case C-256/11 Murat Dereci and Others v Bundesministerium für Inneres [nyp]. Dorsch Consult Case C-54/96 Dorsch Consult Ingenieursgesellschaft v Bundesbaugesellschaft Berlin [1997] ECR I-04961. ERT Case C-260/89 Elliniki Radiophonia Tiléorassi AE (ERT) and Panellinia Omospondia Syllogon Prossopikou v Dimotiki Etairia Pliroforissis (DEP) and Sotirios Kouvelas and Nicolaos Avdellas and others [1991] ECR I-02925. Estov Case C-339/10 Krasimir Asparuhov Estov and Others v Ministerski savet na Republika Bulgaria [2010] ECR I-11465. Eurofood Case C-341/04 Eurofood IFSC Ltd [2006] ECR I-03813. European Commission (2012a), Press release of the European Commission IP/12/24 of 17 January 2012, available at: http://europa.eu/rapid/press-release_IP-12-24_en.htm. European Commission (2012b), Press release of the European Commission IP/12/222 of 7 March 2012, available at: http://europa.eu/rapid/press-release_IP-12-222_en.htm. European Commission (2012c), Press release of the European Commission IP/12/395 of 24 April 2012, available at: http://europa.eu/rapid/press-release_IP-12-395_en.htm. Explanations to the Charter of Fundamental Rights of the European Union, OJ 2007 C 303/17. Familiapress Case C-368/95 Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag [1997] ECR I-03689. Fransson Case C-617/10 Åkerberg Fransson [nyp]. Gouda Case C-288/89 Stichting Collectieve Antennevoorziening Gouda and others v Commissariaat voor de Media [1991] ECR I-04007. Gouvernement de la Communauté française and Gouvernement wallon Case C-212/06 Government of Communauté française and Gouvernement wallon v Gouvernement flamand [2008] ECR I-01683. Groussot X., L. Pech & G.Thor Petursson (2011), The Scope of Application of EU Fundamental Rights on Member States’ Action: In Search of Certainty in EU Adjudication, Eric Stein Working Paper No. 1/2011. Grzelczyk Case C-184/99 Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] I-6193. Iglesias Sánchez, S. (2012), “The Court and the Charter: the impact of the entry into force of the Lisbon Treaty on the ECJ’s approach to fundamental rights”, Common Market Law Review, 49, pp. 1565–1612. Jacobs, F.G. (2007), “Citizenship of the European Union - A Legal Analysis”, European Law Journal, Vol. 13, No. 5, pp. 591–610. Karlsson Case C-292/97 Kjell Karlsson and Others [2000] ECR I-2737. Karner Case C-71/02 Herbert Karner Industrie-Auktionen GmbH v Troostwijk GmbH [2004] I-03025. Kochenov, D. (2009), “Free Movement and Participation in the Parliamentary Elections in the Member State of Nationality: An Ignored Link?”, Maastricht Journal of European and Comparative Law, Vol. 16. Kochenov, D. (2011), “A Real European Citizenship: A New Jurisdiction Test: A Novel Chapter in the Development of the Union in Europe”, Columbia Journal of European Law, Vol. 18, No. 1, pp. 56–109.

340  Jože Štrus and Nina Peršak Köllensperger and Atzwanger Case C-103/97 Josef Köllensperger GmbH & Co. KG and Atzwanger AG v Gemeindeverband Bezirkskrankenhaus Schwaz [1999] ECR I-00551. Kostakopoulou, D. (2007), “European Union Citizenship: Writing the Future”, European Law Journal, Vol. 13, No. 5, pp. 623–646. Kücükdeveci Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co. KG. [2010] ECR I-00365. Ladenburger, C. (2012), The interaction between the Charter of Fundamental Rights, the European Convention of Human Rights and National Constitutions, Institutional report for the FIDE XXV Congress, Tallinn, http://www.fide2012.eu/index.php?doc_id=88 (last visited 27 Feb. 2013). Laval Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avdelning 1, Byggettan and Svenska Elektrikerförbundet [2007] ECR I-11767. Lenaerts, K. (2011), “‘Civis europaeus sum’: from the cross-border link to the status of citizen of the Union”, Online Journal on free movement of workers within the European Union, pp. 6–18. Lenaerts, K. (2012), “Exploring the Limits of the EU Charter of Fundamental Rights”, European Constitutional Law Review, 8, pp. 375–403. M.S.S. European Court of Human Rights: M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011-II. Mangold Case C-144/04 Werner Mangold v Rüdiger Helm [2005] ECR I-09981. Martínez Sala Case C-85/96 María Martínez Sala v Freistaat Bayern [1998] ECR I-02691. McCarthy Case C-434/09 Shirley McCarthy v Secretary of State for the Home Department [nyp]. N.S. and Others Joined Cases C-411/10 and C-493/10 N. S. v Secretary of State for the Home Department et M. E. and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform [nyp]. Nerkowska Case C-499/06 Halina Nerkowska v Zakład Ubezpieczeń Społecznych Oddział w Koszalinie ECR I-03993. Omega Case C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-09609. Orfanopoulos and Oliveri Case C-482/01 Georgios Orfanopoulos and Others (C-482/01) and Raffaele Oliveri (C-493/01) v Land Baden-Württemberg [2004] ECR I-05257. Österreichischer Rundfunk Cases Rechnungshof (C-465/00) v Österreichischer Rundfunk and Others and Christa Neukomm (C-138/01) and Joseph Lauermann (C-139/01) v Österreichischer Rundfunk [2003] ECR I-04989. Promusicae Case C-275/06 Productores de Música de España (Promusicae) v Telefónica de España SAU [2008] ECR I-00271. Pusa Case C-224/02 Heikki Antero Pusa v Osuuspankkien Keskinäinen Vakuutusyhtiö [2004] ECR I-05763. Reding, V. (2012), Statement and letter by Reding, Vice-President of the Commission, 2012, available at: http://ec.europa.eu/commission_2010-2014/reding/multimedia/news/2012/01/20120111_en.htm (last visited 27 Feb. 2013). Regione autonoma Friuli-Venezia Giulia and ERSA Case C-347/03 Regione autonoma Friuli-Venezia Giulia and Agenzia regionale per lo sviluppo rurale (ERSA) v Ministero delle Politiche Agricole e Forestali [2005] ECR I-03785. Rutili Case C-36/75 Roland Rutili v Ministre de l’intérieur [1975] 01219. Schempp Case C-403/03 Egon Schempp v Finanzamt München V [2005] ECR I-06421. Schmidberger Case C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich [2003] ECR I-05659. Schulyok, F. (2012), “The scope of application of EU citizenship and EU fundamental rights in wholly internal situations”, Europaraettslig Tidskrift, nr. 3, pp. 448–461. Sharpston, E.V.E. (2010), Opinion of Advocate General, delivered on 30 September 2010, Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi (ONEM). Stauder Case 29/69 Erich Stauder v City of Ulm – Sozialamt [1969] ECR-419. Steffensen Case C-276/01 Steffensen [2003] ECR I-03735. Tas-Hagen and Tas Case C-192/05 K. Tas-Hagen and R. A. Tas v Raadskamer WUBO van de Pensioenen Uitkeringsraad [2006] ECR I-10451. Uecker and Jacquet Joined Cases C-64/96 and C-65/96 Land Nordrhein-Westfalen v Kari Uecker and Vera Jacquet v Land Nordrhein-Westfalen [1997] ECR I-3171.

The Charter of Fundamental Rights and EU Citizenship  341 Venice Commission (2012a), Opinion on Act CLXII of 2011 on the legal status and remuneration of judges and Act CLXI of 2011 on the organisation and administration of Hungary, CDL-AD(2012)001, Adopted by the Venice Commission at its 90th Plenary Session, Venice, 16–17 March 2012, available at: http://www.venice.coe.int/webforms/documents/CDL-AD(2012)001-e.aspx (last visited 27 Feb. 2013). Venice Commission (2012b), Opinion on the cardinal acts on the judiciary that were amended following the adoption of Opinion CDL-AD(2012)001 on Hungary, CDL-AD(2012)020, Adopted by the Venice Commission at its 92nd Plenary Session, Venice, 12–13 October 2012, available at: http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2012)020-e (last visited 9 Dec. 2012). Viking Line Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line East [2007] ECR I-10779. Vinkov Case C/27-11 Anton Vinkov v Nachalnik Administrativno-nakazatelna deynost [nyp]. Wilson Case C-506/04 Graham J. Wilson v Ordre des avocats du barreau de Luxembourg [2006] ECR I-08613.

European Citizenship: Toward Renationalization or Cosmopolitan Europe? Espen D.H. Olsen 1. Introduction Since the demise of the constitutional project in 2005, the European Union (EU) has gone from crisis to crisis. It is argued frequently by academics and politicians alike that choices made in this crisis will determine the future of European integration. Will the EU ‘revert back’ to a Member State dominated intergovernmental arrangement or will it rather strengthen cosmopolitan principles and bolster supranational institutions at the expense of domestic politics? Interestingly, these questions of ‘renationalization’ or ‘cosmopolitization’ go to the core also of the relationship between EU institutions, European policy-making, principles of integration, and European citizens. It is therefore relevant at this time to discuss the constitutive characteristics of current developments in European citizenship politics. Research on European citizenship has often focused on debates over normative desirability and theoretical feasibility (see e.g. Aron 1974; Bauböck 2007; Bellamy 2001; Kostakopoulou 2001; Preuss 1998). When empirical, research in this field has focused for the most part on the issue of Europeanization (see e.g. Checkel 2001; Vink 2001) or important, yet minute legal details (see e.g. Carrera 2005; Nic Shuibhne 2002; Wollenschläger 2011). Starting from an empirical perspective on citizenship discourse, this chapter advances research on European citizenship by probing how different conceptions are constituted simultaneously in concrete processes of policy-making and legal jurisprudence. This chapter discusses policy decisions, legal reasoning, and political reactions to two recent ‘moments’ of EU citizenship politics. The first is the decision in May 2011 of the Danish center-right government to suspend parts of the Schengen Agreement and re-instate border controls. The second is the landmark Zambrano ruling in September 2011 of the European Court of Justice (CJEU) where European citizenship was made less dependent on the principle of free movement and thereby bolstered as a fundamental status of itself. These two ‘cases’ or examples are somewhat different in character. One is jurisprudential concerning the legal scope of EU citizenship norms; the other is political concerning the importance of Treaty obligations and international agreements. Yet, while plotting differently on the framing of citizenship, the Danish Schengen decision and the Zambrano case of the CJEU both dealt crucially with the issues of borders and

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free movement in European integration. They are, therefore, suitable cases for a first exploration of the constitutive character of the different meanings that European citizenship takes in current EU discourse. Much like the integration process itself, European citizenship developments constantly oscillate between different principles and visions of the EU polity (see e.g. Castiglione 2009; Olsen 2013). This tension can be conceptualized by focusing on two competing conceptions: nation-based or cosmopolitan Europe (for similar reasoning, see Eriksen and Fossum 2012). The nation-based conception posits that EU institutions and policies are ultimately grounded in and circumscribed by a nationality principle. This means that EU institutions are accountable to the Member State level. Moreover, the Member States can legitimately roll integration back or keep certain matters as domestic prerogatives. Citizenship is in this conception intimately tied to a pre-existing collective identity within the borders of the nation-state. The cosmopolitan conception posits the opposite idea that a government without a state is possible in European integration. This means a transnational democratic system forged on human rights, democracy, and rule of law; not on already drawn borders based on an ‘essentialistic’ notion of identity. Citizenship is, then, thoroughly rights-based rather than identity-based. In exploring the two cases the chapter relies on official documents, media reporting, and legal reports. The aim is to provide a limited constitutive explanation of two dominant conceptions in European citizenship discourse.1 It is hence, not to explain the outcome of the two processes. The chapter rather takes two decision-making outcomes as a proxy for analyzing the constitutive import of different conceptions on the discursive practice of citizenship politics in the EU. Some may argue that the Danish case is redundant as the center-left coalition that won the elections in September 2011 revoked the Schengen suspension. I argue that the case is still relevant and interesting as the aim is to highlight constitutive characteristics of different conceptions of European citizenship. The Danish case stands firm as a case steeped in the logic of renationalization. The next section conceptualizes the nation-based and cosmopolitan conceptions of Europe. Following this a brief historical overview over European citizenship is given as a background for the choices made and reasoning in the two moments of citizenship politics. I then proceed to discuss the debates and reactions on the Schengen borders issue and the fundamental status of European citizenship in the CJEU’s ruling on the Zambrano case. The analysis finds that the processes around the two decisions exhibit clear traits of different EU ‘worldviews’; one which points in the direction of renationalization and the other which advocates more, not less, cosmopolitanism in Europe. The chapter concludes on 1 For more on constitutive theorizing and explanation, see Wendt 1999, pp. 83–88.

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this analysis by suggesting that European citizenship politics is no longer only a mix of different ideas of integration. It seems, rather, to be composed of two worlds which may not be easily reconciled; they may in times of crisis exacerbate future struggles over how to craft a viable and justifiable relation between European citizens and EU institutions. 2. Two Conceptions of Europe Nation-Based Europe. The skeptical critique of current EU politics and the recent constitution-making process is often rooted in the basic intergovernmental assumption that the Member States are the main ‘players’ in European integration (see e.g. Majone 2005; Moravcsik 2006). In this conception, then, the nationstates that comprise the Union are re-focused as the main institutional level so that the reach of EU integration is limited insofar as ultimate and final arbitration always rests on the national level. More concretely, this implies that the nationstates retain veto power and ultimate authority on all issues they deem salient for their continued political autonomy and their particular strong evaluations on issues such as boundaries, community, and sovereignty. As such, the nation-based conception proffers a robustly intergovernmental institutional system where the Member States of the Union are the unrivalled ‘masters of the Treaties.’ Consequently, the democratic legitimacy of EU policy-making is exclusively vested on the national level through the scrutiny powers held by national governments, parliaments, and public spheres. In short, this adds up to kind of ‘audit democracy’ where important decisions may be pooled to the level above the nation-state, but where nation-state institutions retain full control and power to review political decisions. In the classic ‘statist’ reading, citizenship is closely linked to the sovereign status of states: in securing its borders and the political community the state has complete control over the access of individuals to its territory (Walzer 1983). In terms of citizenship in this conception, it follows that the nation-states retain complete control on the thresholds of gaining membership, the scope of rights, and requisite duties linked not only to the national, but also to the EU level. Cosmopolitan Europe Cosmopolitans and transnational governance scholars foresee the possibility of democracy beyond the template of nation-states (see. e.g. Bohman 2005). Linked to the EU, the cosmopolitan idea holds out the promise of a non-state entity based on cosmopolitan principles, universal human rights, and rule of law; a regional subset of a cosmopolitan global order. Central to this conception, then, is

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the de-linking of democratic decision-making and individual rights from the institutional stronghold of the nation-state. This does not mean, however, that political institutions of government are obsolete, as some hierarchical attributes are necessary to enforce compliance with cosmopolitan norms. More concretely, this entails a pyramidal institutional structure with a differentiation between levels: global, European and the Member States. Democratically, the cosmopolitan conception consequently proffers a system where boundaries in the ‘classical’ modern sense – the congruence of nation, territory, and state – are no longer crucial for access to and the exercise of citizenship rights. As such, democratic legitimacy rests on an individual basis where the integrity of citizens is safeguarded through adherence to universal rights and higher-order laws. Consequently, citizenship is genuinely postnational in the cosmopolitan conception of the EU as rights are inherently individual and universal, and not at the outset circumscribed through the particularity of membership in a nation-state among states. 3. European Citizenship: A Brief Historical Background The issue of citizenship is at the heart of any project of building political institutions.2 Historically, some notion of citizenship – of the membership, rights and duties of individuals, and collective identity in a given political community– has been present in constructions of viable polities (Heater 1999; Isin 2002; Magnette 2005). In the context of European integration, citizenship was not explicitly on the agenda in the beginning stages. For sure, we can imagine that the founding states would not have anticipated all the talk about European citizenship that has emerged after Union citizenship was institutionalized in the Maastricht Treaty (1992). Still, the European project of unification was something different in the history of international organizations already from its modest beginnings. It is well documented that an embryonic conception of individual rights and citizenship was in play already in the first Treaties (Maas 2005; Olsen 2008). This nascent European citizenship was constructed on free movement and non-discrimination based on nationality as basic building blocks (Olsen 2008). While not pronounced in political debates on Europe, these issues became part and parcel of policy-making on individual rights especially in social policy in the Council and legal reasoning of the CJEU (Everson 1995). This initial ‘market’ citizenship became more ‘political’ in debates on European identity and political rights in the 1970s (Kostakopoulou 2001; Wiener 1998). The move towards identity

2 This section builds on Olsen 2012.

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issues and political citizenship was manifested in the first direct election of the European Parliament in 1978. In the 1980s, the single market idea of European integration was bolstered. It was first highlighted in the signing of some Member States of the Schengen Agreement devised to promote free movement and a border-free Europe. In a second step, the Community itself again put market integration at the core of the European project through the Single European Act (SEA). The SEA followed in the wake of the failed Euro-federalist attempt to forge a European constitution. The idea of a European citizenship was brought into the ‘big stage’ of European politics by this so-called Spinelli Project. It was taken up by some Member States in the run-up to the Intergovernmental Conference on Political Union in the beginning of the 1990s. Union citizenship was institutionalized in the subsequent Maastricht Treaty.3 While revolutionary in the sense that supranational citizenship of this kind was unprecedented in an institutional sense, European citizenship was not radically altered by the decision at the Maastricht IGC. Citizenship in the EU remained based on nationality in a Member State, and the principles of free movement and non-discrimination. Nevertheless, different actors and institutions would continue the debate on the meaning of this citizenship ‘beyond the nation-state’. Eurosceptic countries questioned the postnational vision of other countries and supranational institutions. The Danes voted ‘no’ to the Maastricht Treaty and in the government report that followed the idea of European citizenship ‘replacing’ national citizenship was rejected.4 This prompted European leaders to underline the ‘secondary’ character of European citizenship.5 It would complement, not replace already existing national citizenship institutions. In other words: nationality would remain a basic building block of European citizenship. Following on from this debate, the CJEU took on the role as the final arbiter of the meaning of European citizenship. In a string of cases that is still on-going, the CJEU has underlined its fundamental and self-standing status of EU citizens in relation to European institutions (Wollenschläger 2011). While stressing the centrality of mobility to the exercise of European citizenship, the CJEU has advocated the view that it is also a status that gives European citizens certain rights that are not dependent on the basic principles of free movement or nationality 3 For the sake of coherence I still use the term European citizenship rather than Union citizenship in this chapter. Union citizenship refers, legally speaking, to the rights enumerated in the Treaty on European Union. Citizenship in the EU is, however, not only constructed on these rights. It has from the outset also been constructed on an array of other rights scattered in the Treaties and linked to ECJ jurisprudence. 4 Edinburgh European Council, Conclusions of the Presidency, Bull. EC 12-1992, Annex 3 to Part B. 5 Ibid., Annex 1 to Part B.

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(see e.g. Joppke 2010). This has, however, not led to a complete ‘denationalization’ of citizenship. The primary access to European rights still goes through national citizenship in one of the Member States. This brief historical overview highlights that a definite conception of European citizenship as either one type of statist citizenship or as a fundamental break with the intimate link between modern citizenship and the nation-state is not easily pinned down. The next two sections of this chapter highlight two developments in European citizenship politics that point in different and competing directions. Are we witnessing a surge of ‘renationalization’ of European citizenship or the continued march for ‘cosmopolitan’ Europe? 4. Schengen and the ‘Specter’ of Renationalization On May 11, 2011 the Danes stunned Europe. As part of a policy package deal with the right-wing Danish People’s Party the center-right coalition decided to re-instate physical controls at the Danish borders.6 The decision was immediately controversial. Politically it was lambasted by several EU Member State governments – especially its neighboring countries Sweden and Germany7 – and the European Commission.8 There were also numerous queries as to the legality of the decision in relation to the Schengen Agreement. The Commission, for instance, asked the Danish government to clarify the legal status of the decision and if this could potentially jeopardize the principle of a border-free Europe embedded in the Schengen Agreement.9 As reactions were strong, what was the content and context of the Schengen suspension? The decision in itself was not an elaborate piece of legislation. It simply stated that for reasons of public safety and to control a surge in criminal crossborder elements, the Danish customs authorities would re-instate certain physical 6 Permanent toldkontrol i Danmark (styrket grænsekontrol) [Permanent customs control in Denmark (reinforced border control)], Ministry of Finance, May 11, 2011. 7 “Europe moves to end passport-free travel in migrant row”, The Guardian, May 12, 2011, http:// www.guardian.co.uk/world/2011/may/12/europe-to-end-passport-free-travel [accessed March 20, 2012]. 8 Cecilia Malmström, Member of the European Commission, Blog, May 13, 2011, “Danish measures might be in breach of EU law”, http://blogs.ec.europa.eu/malmstrom/danish-measures-might-be -in-breach-of-eu-law/ [accessed March 20, 2012]; “EU warns Denmark over border controls”, The Guardian, May 13, 2011, http://www.guardian.co.uk/world/2011/may/13/eu-denmark-bordercontrols [accessed March 20, 2012]. 9 “Commission asks Denmark to clarify border measures”, European Voice, May 13, 2011, http://www .europeanvoice.com/article/2011/may/commission-asks-denmark-to-clarify-border-measures/ 71078.aspx [accessed March 22, 2012].

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check points on their territorial borders.10 Issues of identity and citizenship were not addressed directly in the government communique on the decision. The thrust of the argument was on strengthening domestic security by limiting unwanted cross-border flows. In curbing such transnational flows, the agreement did, however, highlight not only typical cross-border criminal activity, but also the potential to limit misuse of social welfare. In other words, the agreement focused to a large extent on persons and unwanted elements among free movers under the remit of European integration. The parties to the agreement argued that the proposed measures were applicable under the Schengen Agreement, albeit without laying out the legal basis for this supposition. Still, the agreement was also framed as a case for changes to the Schengen framework. Following requests by France and Italy, the Danish agreement argued for a widening of Member States’ prerogatives in setting up temporary measures to contain migration. This argument was linked to situations of serious threats to public order or domestic security. The agreement was, then, steeped in ‘securitizing’ language which links border controls to security in a confined political community (Huysmans 2006).11 With such arguments on safeguarding the territory and political community of a specific nation-state, the Danish government and its supporters ventured into identity politics pitted against the reality and symbolism of open borders in Europe. It is unsurprising, then, that the decision was seen as an attack on the ethos of integration understood as free movement and open borders in Europe. The Danish government, however, was adamant that the measures taken were not in breach of Denmark’s international obligations through EU membership. It argued that the measures were taken for reasons of public safety, and not as a general tightening of border controls in, so to speak, the name of territorial sovereignty.12 This did, however, not appease critics in several Member States, the European Parliament through its President Jerzy Buzek who warned not ‘to destroy Schengen’, and again the European Commission.13 The harsh reactions were, I argue, strongly linked to historical and political aspects of European border politics. National control over physical borders has historically been a constitutive characteristic of the modern territorial state (Salter 2003). The policy clout and symbolic importance of the Schengen 10 Permanent toldkontrol i Danmark (styrket grænsekontrol), op.cit. 11 For further overview of analysis on ‘securitization’ and identity, see Buzan et al. 1998. 12 “Commission asks Denmark to clarify border measures”, see note 9. 13 “Denmark’s defiance over border controls has left European Union bordering on crisis”, The Daily Telegraph, May 15, 2011, http://www.telegraph.co.uk/news/worldnews/europe/denmark/8514180/ Denmarks-defiance-over-frontier-controls-has-left-European-Union-bordering-on-crisis.html [accessed March 23, 2012].

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Agreement on a border-less Europe should therefore not be underestimated. The discourse on European integration in general political terms (Parsons 2003) and on the place of individual citizens within this new political system in specific terms (Maas 2007) was from the outset based on an elite idea of supranational community. This supranational community was constructed on a notion of denationalization. This concept can be defined as “(…) an idea that expresses the claim that the nation-state is becoming decentered as the locus of our collective institutional and affiliative lives” (Bosniak 2001: 240). As such, in the EU context it is a ‘generic’ term for the discursive framing of European unification: it signifies processes that push principles, policies, and political institutions toward interdependence, non-discrimination, and less centrality for the ‘national’. Concretely, European integration forged this vision of denationalization on the idea of free movement. Borders insulated nation-states and national politics. The idea was that integrating European nation-states through principles of free movement would lead to more cooperation and less isolation. Member state citizens would gradually become important players in the push for denationalization as free movement became the guiding principle, not only for the integration projects as such, but also for the idea of European citizenship (Maas 2007). What does this have to do concretely with European citizenship? Discursively, European citizenship has been constructed, not only by direct Treaty provisions, but also by policy-making that affect rights and participation (Maas 2007; Olsen 2012). The Schengen Agreement is one such decisive decision in ‘transnationalizing’ citizenship rights in the multilevel EU setting (Olsen 2012: ch. 4). In terms of policy, the agreement cemented the centrality of free movement and the deconstruction of national borders to the European integration project. It is telling, then, that the celebrations of the strongly Euroskeptic Danish People’s Party (DF) – also the main proponent of suspending Schengen – were jubilant and identity-oriented.14 It seems that in their view, the decision had everything to do with reconstructing borders, regaining national control, and supporting Danish national identity. It was, therefore, a significant victory in their struggle to weaken the impact of Europeanization in Denmark. The politics of the Danish Schengen suspension speaks, therefore, to several of the basic tenets of a nation-based conception of EU integration. The nation-based conception puts the onus on national governments as final arbiters of policy decisions or political developments linked to EU integration. As such, it does not preclude extensive integration and “pooling of sovereignty” (Moravcsik 1993). It does,

14 In fact, the secretariat of the party celebrated with Danish flags while eating bacon crisps. The pig industry is one of Denmark’s foremost export industries and treated by some as a symbol of Danish national identity.

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however, emphasize that this is not necessarily a linear process towards ever more power and influence for supranational institutions to the detriment of domestic politics. In light of this it is interesting that in their arguments for the decision, the government emphasized public safety and security. The Danish government claimed that there were sound reasons for re-instating border controls in a specific situation. The ‘audit’ role of domestic governments was thus given more weight than the political and legal obligations of belonging to a supranational system of governance. This should not be read as a comment on the legality of suspending the open borders clauses of the Schengen Agreement. The point is to highlight how the government of an EU Member State reasoned when making a provocative policy turn. The EU is currently undergoing an institutional and financial crisis which may well lead to increased conflict and contestation on basic principles of integration, such as those linked to free movement and citizenship. In this concrete situation, the Danish government clearly adopted the logic of renationalization. The Danish debate on the issue of borders, citizenship, identity, and sovereignty was, however, not new. While the decision was packaged together with other issues in policy-making terms, it had been debated for some time. It was, therefore, unsurprising that such a policy turn would be included to acquire support from the Danish People’s Party. Denmark has been in the forefront in the last decade in terms of tightening immigration and asylum policies. The country has also seen resurgence in debates on what it requires to be a national. Danish citizenship laws and requirements for naturalization have become significantly less liberal (Howard 2009: 99–103). Identity, language skills, and allegiance have all been put to the center of not only debates on ‘Danishness’ and citizenship, but also actual policies (Ersbøll 2006). Moreover, the 1992 debate on the Maastricht Treaty before and after the no vote in the referendum was steeped in the language of borders, boundaries of political community, national identity, and exclusive citizenship. In the context of Danish EU debates over the last 20 years it is, then, not surprising that the political framing of the decision, both inside and outside of Danish borders, was linked to basic tenets of European citizenship. Already at the time of the Maastricht Treaty, the Danish government framed European citizenship as what Kostakopoulou (2001: 67) so succinctly has called “a dangerous supplement”. The notion of citizenship outside the strict remit of the ‘national’ was seen as alien to the concept of citizenship in this reading. The decentering of citizenship in terms of multiplying rights statuses as different types of semi-citizenship (see Cohen 2009) in a multilevel system was identified as an affront to the stable triad of nation, state, and citizenship inside the territorial state. In this context, the Danish government’s decision to make it more difficult for EU citizens and

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third country nationals with EU residence rights to cross those previously firm territorial borders is clearly an effort at renationalizing the control over and exercise of citizenship. 5. CJEU, Zambrano and the ‘March’ Toward Cosmopolitan Europe As citizenship became institutional reality in the European project with the Maastricht Treaty, the CJEU took up the mantle as its foremost interpreter. This role for the CJEU also in citizenship discourse was not surprising, of course, as clarification of the Treaty’s principled implications is its exclusive prerogative in the EU system. But, the volume and breadth of judicial interpretation in this field could hardly have been foreseen. Institutionally, politically, and among academics European citizenship was soon labeled as a secondary or derivative status vis-à-vis national citizenship in the Member States (see e.g. Closa 1992; d’Oliveira 1995).15 Such citizenship politics stand, however, in stark contrast to the Court’s reasoning in this field. Early on, the CJEU argued that European citizenship was “(…) destined to be the fundamental status” for Union citizens.16 This was at first interpreted to be the case only after the exercise of free movement and not for so-called “wholly internal situations” (Nic Shuibhne 2002). In other words, in the immediate aftermath of the Maastricht IGC the CJEU argued ‘conservatively’ that European citizenship rights, for instance to residence, were in principle only activated after a person had physically moved from one Member State to another. If not: the remit of European citizenship would not be set in motion. The CJEU would, however, rule on cases that put the ‘wholly internal’ idea under pressure. Arguing for the fundamental status of European citizenship gave rise to political and legal arguments on the deeper ‘intrusion’ of European citizenship norms in the Member States (Wollenschläger 2011). This is significant as the emphasis on nationality and exercise of free movement as the main mechanics of European citizenship have been interpreted as proof of severe limitations to its postnational or cosmopolitan potential (see e.g. Olsen 2012). As such, ‘citizenship beyond the nation-state’ proved to be somewhat of a disappointment for those that believed in its ‘liberating’ potential; the severing of the ties between citizenship, nation, and state as this had developed with modern statehood (see e.g. Habermas 2000). The Member States retained considerable influence on 15 Birmingham European Council, October 16, 1992, Conclusions of the Presidency, Bull. EC 10-1992; Edinburgh European Council, op.cit. 16 Case C-184/99, Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, ECR [2001], I-06193.

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European citizenship politics also after the Maastricht Treaty as they continued to control access to European rights through gatekeeping norms of inclusion in terms of national citizenship. It is unsurprising, then, that the Zambrano17 case would become such a bombshell in EU citizenship debates. An overview of the background to the case illustrates the breadth of the CJEU’s cosmopolitan drive. Gerardo Ruiz Zambrano is a Colombian national who in September 2000 was denied political asylum in Belgium. Due to the volatile situation in Colombia, Mr Zambrano was not immediately returned. In this situation, he took up an occupation, paid taxes, and stayed in Belgium despite not having legal residence. While working in Belgium Mr Zambrano and his wife had two children. As these children would otherwise become stateless they received Belgian citizenship in line with Belgian nationality law. As Belgian citizens the children are also EU citizens. When Mr Zambrano became unemployed, Belgian labor authorities denied him social benefits on the grounds that he was an illegal resident. The gist of the case was, then, whether denying Mr Zambrano such benefits and ultimately residence in Belgium would be in breach of the fundamental status of European citizenship held by his children. Previously, similar cases had emphasized the requirement of some mobility for European citizenship to become activated and subsequently give related third country nationals a residual status as European rights holders. In a sweeping opinion,18 Advocate General Sharpston of the CJEU argued that Zambrano goes to the core of the issue of what European citizenship “precisely entail.”19 In setting the case out in these terms, the Advocate General goes on to ask whether the fundamental character of European rights means that one should turn ‘radical’ and acknowledge that European citizenship is ‘true citizenship, carrying with it a uniform set of rights and obligations.’20 As such, the CJEU’s leading counsel on this case from the onset argues that European citizenship is clearly something more than a derivative rights status mainly dependent on the exercise of free movement. Despite its supranational traits, such as direct voting rights in European Parliamentary elections and petition rights to the EU Ombudsman, European citizenship has in political terms been foremost a transnational status focused on mobility and the Member States as the gatekeepers in terms of access to membership. Advocate General Sharpston’s opinion is, therefore, a significant intervention in European citizenship discourse. The opinion articulates the transboundary, if you will cosmopolitan, leanings of European citizenship. In short: 17 Case C-34/09, Zambrano v Office national de l’emploi [2011], ECR I- I-01177. 18 Opinion of Advocate General Sharpston, 30 September 2010, Case C-34/09 Ruiz Zambrano v Office National de l’emploi. 19 Ibid., point 2. 20 Ibid., point 3.

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physical borders, territorial control, and national autonomy in matters of membership and rights are in this view less salient in a Union based on the rule of law and fundamental rights. Unsurprisingly, eight Member States and the Commission presented separate observations on the case. These painted a stark picture of the potential consequences of a ruling in favor of Mr Zambrano. For instance, the Commission argued that this case was not applicable to EU law, as it was a ‘purely internal situation.’21 The sources do not give information on the wider reasoning for this stance by the Commission. One reason may be the extraordinary weight given by the Commission to free movement as a main ‘vehicle’ of integration given since the launch of the Single Market program22 and in a relatively recent effort to revive the interests of EU citizens in the project of European unification.23 As regards Member State opinions to the case, the counsel for Ireland argued that it would lead to an influx of immigration by third country nationals, while the Belgian and Danish authorities underlined Mr Zambrano’s status as a failed asylum seeker.24 What was at stake for the Member States was clearly to preserve policy decisions on nationality and citizenship as a crucial domestic issue that cannot be restricted by EU law. This ‘national’ framing of the issue did not win through in the end. In their ruling, the CJEU, found in favor of Mr Zambrano. Concretely, the Court argued that the fundamental status of European citizenship is of such standing that it can in certain circumstances override the mobility requirement for the activation of European rights. Advocate General Sharpston argued for a wide-reaching interpretation in his opinion on the case: ‘(…) the Court now recognizes the existence of that free-standing right of residence.’ The judgment was, in the end, less radical as it emphasized the specifics of the right to family life for under-aged dependents and access to work permits and subsequently residence. In other words, the CJEU refrained in the end from a generalized approach to fundamental residence rights. Nevertheless, fundamental rights can now under given circumstances be seen to trump ‘active’ exercise of European citizenship. Equally important, the fundamental right to family life that follows from European citizenship was given precedence over domestic immigration and asylum laws. Creating citizenship outside the nation-state frame challenges our under­ standing of citizenship as congruence between nation, state, and membership. 21 Ibid., point 91. 22 European Commission, Completing the Internal Market, White Paper from the Commission to the European Council, COM (85) 310 final. 23 European Commission, A single market for 21st century Europe, COM(2007) 724 final, 20 November 2007. 24 Opinion of Advocate General Sharpston, op.cit., point 112.

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Cosmopolitan citizenship is the ultimate theoretical reflection of this challenge. The Zambrano case is a startling example of a cosmopolitan drive in European politics. While the case did not kick-start a full-fledged program for cosmopolitan citizenship politics, it clearly exhibits key traits of a cosmopolitan conception of European integration. This conception centers on the promise of a non-state entity where democratic decision-making and individual rights are de-linked from the institutional ‘grip’ of the nation-state. In other words, the cosmopolitan conception is closely wedded to the theoretical idea that there is no necessary link between a nation, its state, and citizenship rights (Habermas 1998: ch. 4). In its reasoning and following Advocate General Sharpston’s opinion, the CJEU took a firmly ‘individualist’ standpoint in this regard. It focused more on the extension and applicability of rights that follow from European citizenship than on the institutional ramifications for the Member States. Nevertheless, Sharpston underlined that formal membership decisions still rest with the Member States.25 After such decisions, however, the CJEU advocates a substantial curbing of the Member States’ prerogatives on controlling rights acquisition in their jurisdictional territory. This is the truly cosmopolitan thrust of European citizenship. The Member States have ceded considerable control over rights and benefits of membership. Traditionally, citizenship has been understood in binary terms: citizen/ non-citizen or rights/no rights. The Zambrano judgment underlined that citizenship in the EU is a privileged semi-citizenship (Cohen 2009) based not only on rights for Member State citizens, but also potentially for third country nationals. The main caveat being, of course, that a modicum of ‘belonging’ is needed also for third country nationals. Mere territorial ‘access’ is not sufficient. Non-citizens must have a relation to an EU citizen for cosmopolitan principles that curb national citizenship policy to be activated according to the Court. As such, the Court proffers a ‘cosmopolitanism light’ as the particularity of membership is not completely rescinded by the direct effect of EU legal norms in the Member States. To conclude firmly on the fit of the CJEU’s reasoning in the Zambrano case with cosmopolitan principles amounts, then, to a discussion of whether the glass is half full or half empty. On the one hand, the case overrides domestic autonomy on certain issues related to decision-making on residence rights. On the other hand, the Advocate General and the judgment emphasizes that the nationality principle26 remains at the core of European citizenship politics. Still, I argue that despite this uncertainty, the CJEU marches on in the name of fundamental, individual rights in Europe. In its role as the foremost interpreter on then meaning of

25 Opinion of Advocate General Sharpston, point 105. 26 For a discursive analysis of the ‘stickiness’ of the nationality principle in European citizenship politics, see Olsen 2012.

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the Treaty and the basic principles of integration, the CJEU has taken a ‘maximalist’ stance on European citizenship. The ‘European’ thrust of citizenship in the EU takes precedence over protection of considerable Member State control on citizenship and rights. This is important, as citizenship – conceptually and historically – has been so closely wedded to the idea of the sovereign, territorial nation-state. Cosmopolitanism writ large is precisely an effort to deconstruct this relationship and construct rights on an individual and universal basis. As such, the outcome of Zambrano was heavily steeped in a cosmopolitan conception of rights and citizenship in a supranational union. As a consequence of Zambrano EU citizens have a more settled free-standing rights status vis-à-vis both Member States and EU institutions. This strengthening of the supranational component of European citizenship comes at a time when the EU is in institutional and economic crisis and support for the integration project is at a low point. The wide span of developments linked to citizens, rights, Member States, and obligations under EU law that has direct effect is striking. The CJEU may be firm in their stance on the fundamental status of European citizenship, but it remains to be seen how this will stand the test of time in a Union whose future is mired in uncertainty. 6. Concluding Remarks The EU is a strange ‘beast’ (Risse-Kappen 1996). To describe, understand, and explain its ‘nature’ has been central pastime of EU scholars especially after the Maastricht Treaty. Developments the past 20 years seem, however, to defy easy depictions of the EU as one or another type of political system. This chapter has highlighted this state of affairs in terms of two strongly diverging trends of European citizenship politics in recent years. The Danish decision on Schengen and the CJEU’s cosmopolitan drive in the Zambrano case highlights how the nation-state continues to be at the core of integration debates. The ‘specter’ of the nation-state seems to haunt postnational developments and projects of citizenship. There are, however, always two sides to a coin. There are remnants of the nation-state and the modality of the ‘national’ even in the most radical developments of postnational rights provision as evident in the case law of the CJEU. ‘National’ refers here both to actual Member State reticence towards certain ideas as well as a continuous discursive framing of citizenship issues. The national as in ‘territory’ and ‘identity’ stand at the center of the debate on what kind of rights EU citizens have, not only in supranational terms against the EU, but also against the Member States. Some critics might, however, argue here that this line of reasoning is increasingly futile as we have seen the true postnational face of European citizenship in a recent string of important CJEU rulings

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(see e.g. Joppke 2010: 164). These new horizons of European citizenship and its possible ‘future governance’ to use Kostakopoulou’s (2008) nice phrase can, however, be contrasted by other political developments, such as increased tendency to question the efficacy of such ideas as the Danish government did in the open border case. As such, European citizenship politics now stand virtually on the border of political order. The two cases explored in this chapter highlight that EU institutions, Member States, and the citizenry seem to stand at a crossroads between rolling back integration and deepening the ‘intrusion’ of cosmopolitan norms on domestic politics. In other words, the purported development towards ‘(…) ever more inclusive forms, thereby realizing the cosmopolitan ideals of mankind’ (Kratochwil 2001: 163) seems to be continuously countered by particularized political assertions and solutions. This may not always be obvious in the case of European citizenship and the idea of postnationalism, but on closer inspection it seems that this is ‘part of our predicament’ as Kratochwil (2001: 163) so succinctly puts it. One should not to undercut the fact there have been crucial developments in loosening the trinity between nation, territorial state and citizenship. But, it is premature to predict the end of the nation-state as a significant institutional gatekeeper and frame of reference for the ultimate meaning of citizenship. The history of citizenship is one of constant struggle over who should decide on inclusion and exclusion (Isin 2002). In the modern era this has been the nation-state. Transformations of the membership modality of citizenship have in previous times been linked to the fall of Empires, new religious authority, political revolutions, and popular movements (Marshall 1992; Riesenberg 1992). This chapter has highlighted how the current supranationl era of European integration exhibits a more mixed message. While the nation-state clearly is no longer the sole provider of individual rights, the mode of inclusion and exclusion is still strongly attached to it. There is, then, a potential disjuncture between rights, membership, and identity in our time. As a result of this, the complexity of citizenship has increased as the two cases analyzed in this chapter also point to. It is, however, important to discuss the ‘new horizons’ of European citizenship discourse and how these set the stage for future debates and policy choices. Citizenship is never set in stone. To view European citizenship as beset by two competing ‘worldviews’ was unthinkable at the beginning of the 21st century when European institutions and national leaders ventured into constitutionmaking and large-scale enlargement. That optimism has turned to pessimism after popular reticence against further integration, a resurgence of national identity debates, and economic downturn. It is, then, not surprising that even a basic or founding principle of integration that all EU members subscribe to through ratification of the Treaty comes into play in a time of crisis. The upshot of this is that the politics of rights has become intertwined with identity issues as is especially evident in the questioning of the idea of open

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borders in the Schengen Agreement. After the financial crisis and persistent economic problems in several EU Member States, European solidarity has become increasingly questioned. This solidarity is built into the very fabric of transnational citizenship in the EU (Delanty 2007). Its basic precepts build on the activation of rights for citizens in other countries than their own. In European integration this is no longer an exclusive prerogative. Different from human rights such European rights have been framed as ‘automatic’ and seamless. They make up an inviolable ‘right to have rights’ within a bounded political and legal community on the supranational level. The Danish solution to the ‘problem’ of a borderless Europe is in this sense clearly linked to identity. The container idea of the nation-state is seemingly back in full swing also in the most advanced project of integration between states. Against this stand the ardent plea of the CJEU against reverse discrimination and stripping EU citizens of fundamental rights when they have not been in movement across nation-state borders. Only time can tell how broad the scope of fundamental rights of European citizenship against one’s own state will become. This is not only dependent on EU level developments. It also remains to be seen how the Member States will react. It may be expected that the Member States will strengthen already tight rules for access to the territory for third country nationals in the first place. It is not unlikely that nationality laws will become more restrictive in ius soli rules for acquisition of citizenship and in the requirements for naturalization of non-citizens. The transnationalism of European citizenship might, then, stand in the way of realizing the postnational potential highlighted by the Court as well as scholars. In other words: the move to underline the fundamental status of European rights might trigger a backlash that finds its legitimacy in the continued relevance of nationality for the basic construction of citizenship in the EU.

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360  Espen D.H. Olsen Olsen, E.D.H. (2013), “European Citizenship: Mixing Nation-State and Federal Features with a Cosmopolitan Twist”, Perspectives on European Politics and Society, 14 DOI:10.1080/15705854.157020 13.15772750. Parsons, C. (2003), A Certain Idea of Europe, Ithaca Cornell University Press. Preuss, U. (1998), “Citizenship in the European Union: A Paradigm for Transnational Democracy?”, in D. Archibugi, D. Held & M. Köhler (eds), Re-Imagining Political Community, Cambridge: Polity Press. Riesenberg, P. (1992), Citizenship in the Western Tradition. From Plato to Rousseau, Chapel Hill: The University of North Carolina Press. Risse-Kappen, T. (1996), “Exploring the Nature of the Beast: International Relations Theory and Comparative Policy Analysis Meet the European Union”, Journal of Common Market Studies, 34(1), pp. 53–79. Salter, M.B. (2003), Rights of Passage. The Passport in International Relations, Boulder: Lynne Rienner. Vink, M.P. (2001), “The Limited Europeanization of Domestic Citizenship Policy: Evidence from the Netherlands”, Journal of Common Market Studies, 39(5), pp. 875–896. Walzer, M. (1983), Spheres of Justice, New York: Basic Books. Wendt, A. (1999), Social Theory of International Politics, Cambridge: Cambridge University Press. Wiener, A. (1998), European Citizenship Practice. Building Institutions of a Non-State, Boulder: Westview. Wollenschläger, F. (2011), “A New Fundamental Freedom beyond Market Integration: Union Citizenship and its Dynamics for Shifting the Economic Paradigm of European Integration”, European Law Journal, 17(1), pp. 1–34.

Immigration Without Incorporation: EU Migration Policy in a Post-Citizenship Europe? Peo Hansen 1. Introduction The increase and persistence of irregular migration in the EU is the result in large part from a labour market demand. In several EU countries various businesses, sectors and services such as tourism, agriculture, elderly care, cleaning and construction could not operate as currently without the access to irregular migrants’ labour (see e.g. Lutz & Palenga-Möllenbeck 2011). An important enabling factor for this development is to be found in the liberalization of the EU economy that got under way in the 1980s. Since then we have seen more deregulated and flexibilized labour markets, weakened labour unions and increased wage competition connected to a growing low-wage service sector and informal labour market (Schierup, Hansen & Castles 2006). At first sight, there is thus a glaring contradiction between the EU’s stated objective of fighting ‘illegal migration’, on the one side, and its neoliberal economic objectives, on the other. That is to say, the latter objective’s translation into more flexible labour markets, which often are made to rely on a steady increase of cheap and casual migrant labour, has acted to offset the former objective (see further Castles 2004). In this sense, what we are dealing with may not be so much of a contradiction after all. In 2002, as uncovered by The Guardian, Spanish authorities rounded up African migrants on the Canary Islands and flew them to the mainland where they were simply dumped off in areas where the agribusiness needed labour (Lawrence 2011). In most cases, of course, this procedure works in indirect ways, foremost through a more or less deliberate eschewal of systematic controls of employers and workplaces. In dodging the demand side this obviously checks the efficiency of ever so extensive migration barriers erected for the purpose of tackling the supply side of irregular migration. Parallel to the EU debate on how to ramp up the fight against ‘illegal migration’, the past decade has seen an almost equally energetic debate on how to bring about a vast increase in ‘legal’ labour immigration to the ageing Union. Much discussion has thus also focused on the sustainability of the EU’s securitized migration policy. Several liberal scholars and pundits, business lobbies and various other neoliberal outlets have argued that the ever-increasing investment

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in migration prevention in many ways runs counter to the EU’s economic and demographic demand for labour migrants. Instead of border guards and barbwire, they claim, more focus should be put on making demand and supply mechanisms the chief instruments in the EU’s migration management towards Africa and other poor parts of the world (see e.g. Becker 2011; Legrain 2007). Such a conversion would also be conducive to a realization of ‘circular migration’ on a large scale, that is, to have migrants circulate smoothly between jobs in countries and regions with the greatest demand for the time being – a policy concept that also the EU has been at the forefront in promoting in recent years (Venturini 2008; see e.g. CEC 2007c; 2011c). Just as there is a global market for capital, goods and services, the argument goes, it is now high time to also install a global migration market, liberated from protectionist borders and red tape. Some point to the EU itself and its longstanding regime of free movement for labour as a model for such a new global order (Legrain 2009). Very rarely though, does this perspective attend to the fact that this free movement regime – instituted during the heyday of the western European welfare state – formally includes numerous social rights provisions for those who migrate between the EU’s member states; this in order to prevent social dumping. The issue concerning migrants’ social incorporation and, ultimately, citizenship thus constitutes the blind spot of the current debate. Rather than accounting  for labour migrants as the social creatures they are, the tendency today is one of reducing them (even in the explicit) to human capital and production factors pure and simple, set to optimize the labour markets on which they should circulate. As the globally influential pundit Philippe Legrain (2009: 3) has it, migration is just “a form of trade”, from which follows that labour migrants make up a tradable commodity among others. But as Karl Polanyi demonstrated in his modern classic The Great Transformation, the notion of such a socially naked human being is a dangerous fiction, since every attempt at its realization, every attempt to actually treat a human being as was she socially naked and only dressed for the market, always risks having catastrophic consequences. “The commodity description of labor”, Polanyi (1944/2001: 76) explained, “is entirely fictitious”, since “[t]o allow the market mechanism to be sole director of the fate of human beings […] would result in the demolition of society”. This is so because “the alleged commodity ‘labor power’ cannot be shoved about, used indiscriminately, or even left unused, without affecting also the human individual who happens to be the bearer of this peculiar commodity”. When, under such a regime, a person’s labour commodity is discarded or treated as a disposable, oneuse commodity, this would be tantamount to the elimination of this person’s entire being. In accordance with the particular liberal perspective just recapitulated, migrants’ social conditions also constitute the blind spot in EU policy. There is

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thus widespread agreement on the merits of circular migration and that a widened scope for market mechanisms makes up the most effective means to improve the EU’s demography and global competiveness. But in contrast to the liberal camp that advocates more open borders, the EU remains firmly convinced that there is no alternative but to continue the militarized reinforcement of its external borders. Even so, the basic purpose is the same. Because in the logic advanced by the EU, labour migration can only increase if it goes in tandem with an increase in border security. This explains why it only comes natural for the EU to increase the budget of Frontex – for the stated purpose of staving off migrants and refugees from North Africa – while the Home Affairs Commissioner Cecilia Malmström during the very same week (in June 2011) tells Financial Times that “we need hundreds of thousands, millions in the long term”, of labour migrants (quoted in Barber 2011). This chapter seeks to explain this seeming contradiction. In other words, I shall try to work out how the EU imagines itself capable of creating a productive or win-win dynamic between the security oriented ‘fight against illegal immigration’, on the one side, and the growth and competitiveness oriented aspiration for a large-scale increase in ‘legal’ labour migration, on the other. In demonstrating how this enterprise impacts on the EU’s current external migration policy in broad terms, including foremost the question of new labour migrants’ social incorporation, I also go on to show its more particular designs vis-à-vis African countries. Taking the current crisis and the increasing anti-immigrant tendencies in the EU into consideration, however, we can also discern how the eroding commitment to migrants’ social incorporation is catching up with the very institution of free movement in the EU itself. More and more, then, a formerly commended free movement of EU citizens is being recast as a detrimental immigration of ‘welfare tourists’ and ‘poverty migrants’. Accordingly, many governments are now calling for restrictions on free movement, requesting, above all, a curtailment of the social provisions that until now have formed an integral part of the EU’s free movement regime. Obviously, as I shall return to, this development raises crucial questions regarding the future of EU citizenship. 2. Labour Migration as a Matter of the EU’s “Economic Survival” The EU’s declared demographic and economic need for new labour migrants is not just any type of need. According to most estimates put forward by the EU, the UN and other institutions and organizations the figures range in the tens of millions for the coming three to four decades. Economic growth and migration growth have thus become two sides of the same coin in the EU’s economic and political ambitions. This was made clear already in the Lisbon Strategy

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(2000–2010) and now constitutes one of the cornerstones of Europe 2020, the EU’s new ten year plan for growth (CEC 2010a: 18; CEC 2011a: 4). From the perspective of the Commission, a large-scale increase in labour migration has become so urgent that the Home Affairs Commissioner now repeatedly states that it has become a matter of “our economic survival” (Malmström 2010). Whether the current crisis and mass unemployment will lead to a reappraisal of the Commission’s position – such as was the case following the crisis in the early 1970s – is of course a question many are asking at the moment. Needless to say, crisis driven changes in migration patterns (some of them quite dramatic) have already taken place. As of 2011, 10 Member States suffered from crisis-induced net-emigration, Latvia, Lithuania and Ireland counting among those suffering the heaviest losses (Eurostat 2013). In 2011, Ireland reported the largest decrease (8 per cent) in the 20–29 year age group that has been estimated in any EU country in the last four decades (Dolan 2012). Greece and Spain are following suit with Spain seeing close to a million of its inhabitants emigrate only during the period January 2011 to October 2012 (Dagens Industri 2012; see also Buck 2012). Portugal, for its part, has in the last few years seen more than hundred thousand of its citizens emigrate to Angola and Mozambique alone (Lapper 2010; England 2012). Since emigration may provide short-term fiscal relief – as the population eligible for social support decreases – some governments cannot afford the luxury of worrying too much about it. But some also openly welcome it; in Portugal emigration is now official policy, the prime minister Pedro Passos Coelho doing the unthinkable last year when he called on Portuguese citizens to “leave their comfort zone” and emigrate to jobs abroad, preferably in Angola and Brazil (Wise 2012). In addition to this, several EU countries have taken steps to either stop completely or curtail regular labour migration, many have tightened family migration, social benefits and access to residence permits further, and some have also sought to make unemployed migrants on temporary permits leave their countries (see Koser 2010; European Migration Network 2011). In the summer of 2011 the Spanish government decided to reintroduce the restrictions on labour movement from Romania on account of Spain’s severe unemployment problem. Soon after the Netherlands indicated that it entertained a similar move. At the same moment the Commission rushed to the defence of its policy; according to Commissioner Malmström the crisis had altered nothing and the Commission’s position on labour migration was thus to stay the course. Malmström also noted that Spain, despite its mass unemployment, in no way made up an exception in this regard, adding: “Many businesses still say we can’t find people to do jobs such as picking strawberries” (quoted in Pop 2011). Since the onset of the crisis and the collapse of the construction sector in Spain there has been a steady deterioration in the situation for the country’s labour

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migrants. Many migrants previously employed in construction have been forced to scramble for work in the most poorly paid horticulture and agriculture industry. Since this industry has lowered its costs even further it has also been even more prone to utilize irregular migrant workers. With this it has become still more rare for agribusinesses to hire regular labour. According to the UK charity AntiSlavery International, the conditions for the irregular migrants working in Spain’s agriculture have deteriorated to the point that they in many places now can be likened to outright slavery (Lawrence 2011). It is certainly not this situation and these workers that the Commission has in mind when it emphasizes Spain’s continued need for labour immigration. Brussels only has regularly employed migrants in view. That Spain wants to halt Romanian labour must thus partly be understood in this light, since they could migrate regularly to Spain within the EU’s free movement framework and so lay claim to a set of formal rights, even though many Romanians of course too have had little option but to toil in the informal economy. But given that the EU’s free movement regime places certain requirements on the state, this should give us a clue as to why the financially hard-pressed Spanish government has an interest in curbing this type of migration. This is also borne out by the fact that Madrid has tried to encourage the return of temporary migrant workers from non-EU countries with which Spain has bilateral agreements that include social security provisions for the migrants while working in Spain (Koser 2010). This, though, should not be taken to infer that Spain wants to stop all migration, far from it. With the crisis inducing companies to cut costs the demand for cheap labour in certain sectors might actually have increased as a result of the crisis. So far, Spain has not curbed employers’ associations recruitment of temporary migrant labour to the agricultural sector. This migration is ‘regular’, at least in the first stage. But once the migrants are in Spain, it is quite common for the employers to subject them to the most appalling treatment, and despite the fact that authorities are quite aware of this they rarely intervene (Baqué 2011). But for the time being the crisis has not altered the EU’s stance, and the policy to significantly increase labour migration thus holds firm, or as stated by the Commission in a report published in the summer of 2012: At first sight, the EU’s current economic challenges might make it difficult to understand the necessity for legal migration and mobility channels. But it is necessary to bear in mind that, even with the overall EU unemployment rate of around 10%, equating to 23.8 million citizens, and increasing to 22.1% for youths (under 25), many Member States are already experiencing labour and skills shortages in different sectors and for varying reasons. […] Economic migration thus remains an important component part of efforts to address the challenges of labour shortages, notably in the context of the EU’s ageing population and an increasingly competitive

366  Peo Hansen international market for talent, with other countries outside Europe also experiencing skills shortages. (CEC 2012: 4)

Commissioner Malmström (2012) reiterated this message in December 2012, stating that: Even today, when unemployment is very high, many Member States are facing labour and skills shortages in key sectors. It will not be long until we start to feel the impact of our ageing population and shrinking workforce. The European Union needs a strong and coherent migration policy that responds to these needs. Today, and even more so in the future, migration and mobility are crucial for growth and for Europe’s economic recovery.

As of yet though, there is very little in terms of concrete supranational policy options to realize this stance (Carrera et al. 2011), a fact that becomes all the more plain in light of most member states’ official reluctance towards increased labour immigration in response to the crisis. The so-called Blue Card Directive (Council of the EU 2009) is one of the few such options, but since it only targets ‘highly qualified’ third country immigration it is certainly not intended to come anywhere near of fulfilling the EU’s alleged multimillion demand for labour migrants. Still, the blue card is interesting in this context for at least two reasons. First, it confirms the Commission’s position that the EU’s labour migration demand should be seen as almost exclusively driven by demography or long-term projections, and thus as being distinct from business cycle and unemployment fluctuations and considerations. As the Commission (2011b) put it in the autumn of 2011 when promoting the blue card: “Despite being in the midst of an economic crisis with high levels of unemployment, employers often cannot find the highly qualified workers they need.” Second, the blue card is interesting because of the wider message it conveys about third country labour migration. When the European Parliament, in the autumn of 2008, overwhelmingly approved the Commission’s blue card proposal, the then EU Home Affairs Commissioner, Jacques Barrot, translated the Parliament’s approval as clearly indicating “that Europeans are open to immigration flows and that we are welcoming to nationals from outside Europe” (quoted in Goldirova 2008). Barrot sought to convey an image of an EU opening up to the world. This attempted re-branding of the EU gained attention within both media commentary and research, as seen in statements such as the following: “The Commission’s Blue Card initiative demonstrates that the EU is no longer a ‘fortress’; it is opening itself up to talent, and creating the right conditions for migrants to obtain a legal job in Europe” (Kyrieri 2007: 24). Such hopes aside, however, the EU’s real objectives are firmly rooted in economic imperatives, a message that the Commission rarely tries to conceal.

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Moreover, when the Commission launched its blue card bid in 2007 it was adamant in putting all illusions about greater openness, as in laxer migration controls, firmly to rest. The blue card, the Commission stated, was by no means intended to be “a blank cheque” to all highly qualified third country workers (quoted in Goldirova 2007a). As such, the then Home Affairs Commissioner Frattini underlined, “the blue card is not a permanent card like the American green card” (quoted in Goldirova 2007b); it “does not create a right of admission” (CEC 2007a: 2). Instead, it is intended to be “demand driven” invariably requiring that migrants show proof of a “job contract” before a blue card is issued (CEC 2007b: 9). By this means, member states “maintain control on which type – and how many – highly qualified workers will enter their labour markets” (CEC 2007a: 2; see also CEC 2007b: 7). Predictably, the Commission’s proposal also steered clear of any mention of permanent residence for the would-be blue card holders. 3. Moving From ‘Zero Immigration’ to Multi-Million Immigration? This notwithstanding, the Commission’s self-satisfied proclamations about a Europe ‘open to immigration’ should not be dismissed as mere rhetoric. Rather, they should be situated and examined in the historical context of the EU’s previous stance on labour migration. From the early 1970s to the late 1990s the EU held firm to an official line of policy that unequivocally advised against any labour migration to the EU from nonOECD countries. Deemed the only ‘realistic’ option at the time, the policy acquired a status almost like that of a sacred promise to EU citizens. As such, it made up one of the primary rhetorical tools in Brussels’ endeavour to win popular support and legitimacy for the neoliberal transformation that the EU went through during the 1980s and 90s. The Commission thus rarely missed an opportunity to ensure that liberalization within the framework of the Single Market by no means would be allowed to lead to an increase in immigration. The EU thus took pains to flaunt liberalization and the move to eliminate internal border controls as walking hand in hand with powerful measures to strengthen external border controls and step up the fight against illegal immigration, fraudulent asylum-seeking and international crime and terrorism (see e.g. Geddes 2003; Hansen & Hager 2010). As stated in a Commission booklet specifically addressing the EU citizens, “The problems of immigration and asylum, drug trafficking and other aspects of international crime [sic] are matters of increasing concern to the citizens of Europe” (CEC 1995: 62). This provided, it is first and foremost in relation to what Brussels today refers to as the era of “zero immigration”, meaning the early 1970s to late 1990s, that we should assess the confident statements about a Europe that welcomes migrant

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workers from around the world. Indeed, since the turn of the millennium the Commission’s calls for a clean break with zero immigration policies have increased exponentially. All of a sudden Brussels would start issuing statements such as: “The Commission considers that the zero immigration mentioned in past Community discussion of immigration was never realistic and never really justified” (CEC 1999: 2). Furthermore, “it is clear from an analysis of the economic and demographic context of the Union and of the countries of origin, that there is a growing recognition that the ‘zero’ immigration policies of the past 30 years are no longer appropriate” (CEC 2000: 3). This change of outlook notwithstanding, the Commission dodges the issue concerning the real meaning of the so-called zero immigration policy. As concerns the EU area, the 1980s and 1990s were certainly not characterized by zero labour immigration. On the contrary, several million new labour migrants from around the world arrived during these decades. Most of these, however, were not legal or regular labour migrants. They were irregular, undocumented, or ‘illegal’. As already mentioned, much research has demonstrated that the increased demand for this type of cheap labour must be understood as contingent on the deregulation of the EU economies and labour markets that followed in the wake of the neoliberal transformation during the 1980s and 1990s. 4. Ending ‘Zero Immigration’ by Reinforcing the Fight against ‘Illegal’

Migration

Nonetheless, the new policy also contains a certain measure of candour. Thus, when launching its new official approach to labour immigration it was fairly obvious that the Commission recognized that it was breaking a promise to the EU citizens. Brussels appeared to be apprehensive that EU citizens would respond negatively to the official abrogation of ‘zero immigration’, possibly interpreting it as portending less restriction and an uncontrolled inflow of immigrants. In order to obviate a possible public disapproval of this abrupt shift, the Commission soon came up with a series of public relations measures to be adopted by elite actors. “A shift to a proactive immigration policy”, the Commission asserted, will “require strong political leadership to help shape public opinion” (CEC 2000: 22). In handling the broken promise on zero immigration, the Commission’s main tactic for saving face has been to make a new pledge to EU citizens to implement even harsher measures against ‘illegal’ migration. As part of this new pledge, the Commission (2002: 8) has also pointed to the merits of “forced return of illegal residents”, arguing that this can “help to ensure public acceptance for more openness towards new legal immigrants against the background of more open admission policies particularly for labour migrants.” Instead of being a catalyst for a

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gradual moderation of the EU’s securitized migration control policy, as many had predicted, the new policy of working to increase labour migration has created a development in the exact opposite direction. As the Commission (2011a: 7) has emphasized on countless occasions in recent years, the EU must “ensure that the need for enhanced mobility does not undermine the security of the Union’s external borders;” and therefore “[t]he control of the EU’s external border must be continuously improved to respond to new migration and security challenges.” “Citizens”, moreover, “need to feel reassured that external border controls are working properly”, and authorities thus need to demonstrate that “[p]reventing irregular migration and maintaining public security are compatible with the objective of increased mobility” (CEC 2011a: 7, 11). Or, in a third formulation: “Without well-functioning border controls, lower levels of irregular migration and an effective return policy, it will not be possible for the EU to offer more opportunities for legal migration and mobility. The legitimacy of any policy framework relies on this” (CEC 2011c: 5, italics in original). In other words, it is more barbwire, not less, that is seen as the rational means to increase labour migration to the EU. 5. A Case in Point: EU Migration Management vis-à-vis Africa The EU’s current relation to Africa illustrates this rationality to the full. From 2005 and onwards numerous EU-African declarations, partnerships and other cooperative frameworks (e.g. the European Neighbourhood Policy and the development of Mobility Partnerships) have been planned for and created in order to establish a mutually beneficial ‘management’ of African migration. The terms ‘migration management’ and ‘partnership’ are key here. They have been adopted for the purpose of clarifying that the EU’s intention no longer is focused only on one-sided ‘control’ and ‘prevention’. On the contrary, circular migration from Africa has in recent years emerged as an important means to cover the EU’s future labour demand. In this equation, the management of migration is also intended to be designed so as to enhance African development by promoting codes of conduct to prevent brain drain; by facilitating remittances and return migration of highly skilled migrants; encouraging the role of diasporas and migrant communities in the development of Africa; and by promoting democratic governance and human rights (see e.g. The Africa-EU Strategic Partnership 2007; CEC 2009: 27–8; Joint Africa-EU Task Force 2010: 41–3). Such and other objectives took shape in the wake of the Ministerial EuroAfrican Conference on Migration and Development that was held in Rabat in the summer of 2006. The conference, which produced the Rabat Declaration, was brought about mainly in response to the increased entry of African migrants to the EU in 2005 and 2006. Here both the Spanish government and the Commission

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contended that the long-term solution could not rest with security measures alone, but that it also required development measures to reduce North-South disparities. Yet, it was the security approach to migration that got the best of it also in Rabat (see e.g. Noll 2006: 1). As Malta’s foreign minister noted with satisfaction, referring to the agreement reached in Rabat: “Fighting international criminal organisations, repatriation of illegal immigrants and stopping the flow of illegal migration are indeed very important factors in addressing illegal immigration holistically” (quoted in Balzan 2006). Since the Rabat conference there has been a series of high-level EU-African meetings and agreements focusing on migration – a trend that, of course, has been perpetuated by the upheavals in North Africa and the refugee movements that have followed in its wake. But despite all the rhetoric of ‘partnership of equals’, ‘win-win’ dynamics and African development, the asymmetric power relations between the EU and Africa shine through with utter clarity when it comes to the more concrete objectives and forms for partnership cooperation (see e.g. Betts 2008: 13–14). Going through the scores of policy documents produced by recent EU-African agreements, one is struck by the very weak agency that is assigned to Africa, excluding, of course, its agency as a source of demographic pressure. To be sure, from the exclusive perspective of African leaderships, EU cooperation could often be characterized in win-win terms. And although some of the EU’s valued partners on the other side of the Mediterranean now have fallen or been destabilized, the interests on the part of the EU remain the same, at least for the time being (see CEC2011a), something that is underscored by the EU’s and Catherine Ashton’s recent praise for Morocco’s king Mohammed VI and his “clear commitment to democracy and respect for human rights” (quoted in Rettman 2011). But as noted, in the area of migration and demography the EU does ascribe some potential agency to its African partner. According to the EU, Africa, not the least its northern parts, does have a demographic surplus that has to be checked; otherwise the migration situation would get out of hand and so African leaders have to be persuaded to control ‘illegal’ migration to the EU. Gaddafi, for instance, knew all too well how to exploit this European angst, and with oil and gas at his disposal he was certainly not without success. During one of his official visits to Italy, in August 2010, Gaddafi demanded five billion euros annually in order to prevent Europe from “turning black”: Europe runs the risk of turning black from illegal immigration, it could turn into Africa. We need support from the European Union to stop this army trying to get across from Libya, which is their entry point. At the moment there is a dangerous level of immigration from Africa into Europe and we don’t know what will happen. What will be the reaction of the white Christian Europeans to this mass of hungry, uneducated Africans? We don’t know if Europe will remain an advanced and cohesive continent or if it will be destroyed by this barbarian invasion. We have to

Immigration Without Incorporation: EU Migration Policy in a Post-Citizenship Europe?   371 imagine that this could happen but before it does we need to work together. (quoted in Pisa 2010)

Two months later the EU and Libya signed a new agreement on deepened migration cooperation. Fear of the African masses’ coming invasion – the African demographic time bomb’s imminent explosion – is, as everybody knows, a recurrent theme in both today’s and yesterday’s European debate. On the one hand, then, the EU needs to control a perceived massive immigration pressure from Africa. But on the other hand, the demographic logic is also used to argue in favour of migration, since the EU suffers from a demographic deficit so perilous that its entire “economic survival”, as its Home Affairs Commissioner claims, now depends on a massive inflow of labour migrants. Accordingly, the EU wants to create a balance between the African migration pressure and the European migration need—or to put it in the appropriate market terms: the EU wants to achieve equilibrium between demand and supply of labour migrants. But even if Brussels clearly advocates a greater scope for market mechanisms to determine the allocation of labour migrants, it does by no means believe in a self-regulating migration market. As the Commission (2013: 4) asserts in its recent contribution to the UN High-level Dialogue (HLD) on International Migration and Development: “In the absence of effective governance, the costs of migration may be significant, and can include social tensions with host populations – often exploited by populist forces – and pressure on scarce resources. Uncontrolled migration may also aggravate security threats”. Instead, what the EU seems out to accomplish is to rig the migration market to its own advantage. For this to be feasible, external borders have to be reinforced and migration policy cooperation with sending countries has to be strengthened. In the Tripoli Declaration, or the Joint Africa-EU Declaration on Migration and Development, and the EU’s Global Approach to Migration, the overarching and most persistent policy prescriptions thus revolve around Africa’s “duty to cooperate fully” with the EU in preventing illegal immigration, in developing return instruments and reinforcing border controls (Tripoli Declaration 2006; see also CEC 2006b; 2011a: 15–17; 2011c). Furthermore, circular migration and “policies to increase the economic benefits for the EU from migration” should be enacted to “facilitate the admission of certain categories of immigrants on a needs-based approach (e.g. highly skilled and seasonal workers)” (CEC 2006b: 7, 8; see also CEC 2011a). In a nutshell, then, as one of Brussels’ “Key messages” to the UN HLD has it: “All states should review existing barriers to human mobility, with a view to remove barriers which are not justified from a security point of view and are unnecessarily hindering economic competitiveness and regional integration” (CEC 2013: 11).

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By these means, the EU can guard itself against the import of unemployment and poverty, as well as against various perceived security threats and the socioeconomic burden of processing asylum seekers. As a result of the current crisis and the rising unemployment in the EU, this logic is already kicking in, as noted above. It is by recommending circular migration, the issuing of temporary work permits, as well as preparing for an active return policy if jobs should dry up, that Brussels seeks to obtain instruments to avert the perceived downsides of migration. As the Commission (2011a: 12) formulates it: “Enabling the people with the right skills to be in the right place at the right time, is key to the success of business, research and innovation in Europe.” In their thorough assessment and analysis of the EU’s African partnership policy on labour migration, Carrera and Hernández i Sagrera (2009: 36) demonstrate that the type of labour migration “envisaged by the partnerships is guided by a logic that views mobility as circular, temporary and subject to selection”. While basing their analysis on a systematic survey of EU documents, Carrera & Hernández i Sagrera also spice their account with a leaked secret document that France and Germany jointly presented to the G6 migration ministers meeting held in the UK in 2006. The document, entitled “New European Migration Policy”, included, among other things, the following position: We do not want uncontrolled immigration into our labour markets and our social security systems. In order to promote circular migration, quotas should be set for the migration of labour into certain occupations… in order for the concept of circular migration to succeed, it is important that migrants return to their countries of origin after their stay in an EU member state. … Finally, we also have to make sure that the countries of origin unconditionally comply with their obligation to readmit those migrants who do not want to return voluntarily. (quoted in Carrera & Hernández i Sagrera 2009: 11)

In the Commission’s (2007c: 8) Communication on circular migration a year later part of this message was repeated: Circular migration is increasingly being recognized as a key form of migration that, if well managed, can help match the international supply of and demand for labour, thereby contributing to a more efficient allocation of available resources and to economic growth. However, circular migration also poses certain challenges: if not properly designed and managed, migration intended to be circular can easily become permanent and, thus, defeat its objective.

The Commission’s proposal for a directive on seasonal labour, which was presented in 2010, underscores still more the basic tenets of the policy concept of circular migration. The proposal, which is still pending, builds on the alleged fact that the EU faces a permanent and growing “structural need for low-skilled and low-qualified workers” that cannot be satisfied by “EU national workers, primarily owing to the fact that these workers consider seasonal work unattractive” (CEC

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2010b: 2–3). As such, the directive intends to put the idea of circular migration into practice, particularly vis-à-vis African countries. Here the Commission emphasizes, firstly, that the directive proposal “provides for incentives and safeguards to prevent a temporary stay from becoming permanent” through the strengthening of a series of the usual security measures; and, secondly, that “Member States shall require that the seasonal worker will have sufficient resources during his/her stay to maintain him/herself without having recourse to the social assistance system of the Member State concerned” (CEC 2010b: 2, 19). Subsequently, in the wake of the Arab Spring and the war in Libya, EU migration policy activity targeting North Africa has grown exponentially. According to the Commission, the upheavals and transformations taking place in North Africa have accentuated the need for improved migration management in the Mediterranean area, so as to facilitate legal migration for North Africans in need of work and to help the EU meet key labour demands and amend its demographic problems. In order to set in train such a mutually beneficial dynamic the Commission proposed, in March 2011, to develop “a partnership on migration, mobility and security with the Southern Mediterranean countries” (CEC 2011d). The focus here is to promote circular labour migration to the EU, built on “real” and “clearly identified labour demands”, that will “help to meet the need for highly skilled workers in the expanding sectors of the EU’s economy but also help fill many jobs requiring a mix of lower skills”. Besides circular migration arrangements, in general, the Commission specifically recommends the development of circular migration schemes within so-called Mobility Partnerships between EU countries and countries in North Africa and beyond (CEC 2011d: 7, 9). Parallel to this win-win rhetoric, however, increased circular labour migration, in general, and mobility partnerships, in particular, are wholly conditioned by a whole set of security measures squarely dictated by the EU. These range from the reinforcement of return and readmission arrangements, border controls, surveillance, and the fight against organized crime and irregular migration to various demands placed on North African countries to build up their security capacities to prevent irregular migration and to effectively enforce readmission and extradition obligations (CEC 2011d: 10–11). Hence, while “[t]he intended public goal of the mobility partnerships is to facilitate circular (recurrent/temporary) channels for labour mobility between the signatories”, upon closer inspection, as Carrera et al. (2011: 6) puts it, “their provisions reveal that their actual content is still one very much centred on the strengthening of border control policies and return/ expulsion of irregular immigrants”. Taken together, the EU’s migration policy towards Africa is emblematic of how Brussels believes itself capable of generating a win-win dynamic between a growth and competitiveness oriented labour migration policy with minimum social costs, on the one side, and, on the other, a security oriented migration

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control policy, keeping out unwanted migrants and preventing circular and temporary labour migration from becoming permanent. 6. Circular Migration, or Simply the ‘Shoving About of Labour’? As stressed initially, the development and tendencies that have been addressed here must be analysed in direct relation to the diminishing weight assigned to social rights and incorporation within EU migration policy. This partly explains why today’s high-level policy debate on new labour migration often refrains from holding out any prospects of permanent residence or paths to citizenship. As the Swedish Minister for Migration clarified at the Euro-African Ministerial Conference on Migration and Development in Paris in 2008: “In this context, we must recognize that the old paradigm of migration for permanent settlement is increasingly giving way to temporary and circular migration” (Billström 2008). Despite the continued hollowing out of national citizenship rights in the EU, permanent residence still provides migrants and refugees with a set of basic social, civil and political rights. As Castles and Davidson (2000: 94–5) underscore, “[t]he pivotal right [for migrants] is clearly that of permanent residence, for once a person is entitled to remain in a country, he or she cannot be completely ignored”. When the European Commission now undertakes to establish a common EU framework for labour migration it is easy to spot the compatibility between the member states’ reluctance towards migrants’ permanent residence and social incorporation, on the one side, and the concepts and arrangements around which the Commission suggests an EU framework be developed, on the other (see also Carrera et al. 2011: 7). These concepts and arrangements revolve around circular, temporary, seasonal and return migration. What characterizes such arrangements, which all member states have individually adopted to a greater or lesser extent (see European Migration Network, 2011), is that they entail few social commitments on the part of the host state. With circular migration the European Commission and member state governments have thus found a policy concept which, in one fell swoop, is compatible with both the political climate of antiimmigration – since those coming are not going to be allowed to stay and get an opportunity to join the citizenry – and with the current neoliberal crisis management – since circular migration will allow for very few social rights, thus keeping welfare expenditures at a minimum. Over and above that, circular migration, at least as pertains to low-skilled work, can also be made to sidestep the issue of high unemployment. As seen above, the European Commission establishes that there is a “structural need for low-skilled and low-qualified workers” that cannot be satisfied by “EU national workers”. In the Commission’s view, then, unemployed “EU national workers” are not going to

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be available to satisfy this need for cheap, flexible and competitiveness-friendly labour; and in this sense there need not be a conflict between mass unemployment and large-scale immigration. In view of that, the control and security apparatuses (to be) deployed for the smooth operation of circular labour migration should not only be studied in relation to what they hinder and illegalize, but also, as Bridget Anderson argues (2010: 312–13, italics in original), in relation to what they enable and legalize: Immigration controls effectively subject workers to a high degree of regulation, giving employers mechanisms of control that they do not have over citizens. This means that for certain often very specific occupations, immigration controls may […] effectively create a group of workers that are more desirable as employees through enforcing atypical employment relations such as fixed term contracts or self-employment and direct dependence on employers for legal status. It is in this context that employers praise migrants’ ‘reliability’ and call for an increase in numbers even at times of high unemployment.

What we can begin to discern, then, is that the precarious and rightless position that has made ‘illegal’ labour migrants so popular on the EU labour market in some important respects now forms the model for the EU’s circular labour migration regime and its projected management of the Union’s great demand for new ‘legal’ labour migrants – at least as pertains to low-skilled migrants. As a consequence, the very same people on whom the EU’s future economic growth and prosperity – indeed its very “economic survival” – are said to depend are offered nothing in return. It seems as if the EU wants the poor world’s labour, but not its people, at least not in the form of deserving social beings and prospective rightsbearing residents and citizens. This provided, we might be better off conceptualizing ‘circular migration’ less in terms of migration, as in people moving and settling in an EU country, and more in terms of Karl Polanyi’s notion of fictitious commodities; that is, in terms of the ‘shoving about of labour’. This needs to be understood against the background of a general European tendency in which migration policy more and more gets detached from the fundamental issue concerning migrants’ social conditions: migration policy, in other words, ceases to be embedded in policies of social incorporation. 7. Conclusion: Towards an Internal Migration Crisis and the End of EU

Citizenship as We Know It?

But as I hinted at above, owing to the current crisis, the growing disparities between member states and the rising anti-immigration sentiments and political forces, Europe’s migration predicament does not only involve external migration and third country migrants but has now increasingly come to revolve also around

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the (free) movement of EU citizens themselves (Shaw 2012; Hollinger 2013). This tendency was heralded by the old member states’ controversial introduction of so-called transition rules in order to restrict the free labour movement and (above all) social incorporation of the new EU citizens in anticipation of the EU enlargements in 2004 and 2007 respectively. The promise of ‘free movement’ for the cousins in the east thus quickly degenerated into a bitter and hostile debate about Eastern European ‘immigration problems’. Since then we have witnessed several clashes over the transition rules and east-west labour movement and its social and labour rights implications. One such was triggered by new and EU sanctioned legal instruments (e.g. the Laval case) that have enabled employers to lower wages and working conditions for posted workers, who, for competitive purposes, are brought from the poorer new member states for work in the old (Thörnqvist & Woolfson 2012). Another case in point concerns the French mass expulsions of Roma EU citizens that caught the headlines in the summer of 2010. This had been common practice in France for some time (but also, to a lesser extent, in other EU countries) with over 10,000 Roma EU citizens being expelled in 2009 alone. In 2010, however, President Sarkozy decided to turn the expulsion into an outright PR campaign. A year later, moreover, it was revealed that the Dutch government was preparing to take forth measures to allow for the expulsion of EU citizens who were making “disproportionate claims” on the social benefit system, something that immediately set off an angry Polish reaction (EurActiv 2011). Such was also the reaction to Finland and the Netherland’s subsequent decision to veto Bulgaria and Romania’s Schengen membership bid, a move that exacerbated the so-called Schengen crisis that had erupted in the spring of 2011, following France’s attempt to stop Tunisians travelling from Italy to France.1 By April of 2013 the situation had deteriorated to the point where Austria, Britain, Germany and the Netherlands felt the time ripe for a frontal attack on free movement, demanding, in a joint letter to the Irish presidency, the Commission and the other member states, that the system be overhauled, emphasizing that 1 To be sure, similar transition arrangements (as those imposed on the new members in 2004 and 2007) formed part of the accession agreements with Greece (1981), Portugal and Spain (1986). Likewise, as the economic crisis hit Western Europe in the early to mid-1970s there was also – and besides the curtailment of third country labour immigration – (unsuccessful) attempts made to restrict the migration, or free movement, of workers within the EEC (see e.g. Guild 2009, pp. 55–59, 140–147). However, given the scope and severity of the current crisis – which is an economic, social and political crisis for many member states as much as it is a crisis for the EMU and EU projects as such – these historical comparisons are of limited instructiveness, the stakes being significantly higher today. The current restrictions on free movement are also unprecedented in that they are part of a protracted quarrel that began over a decade ago, well before the financial and euro crises set in. Moreover, the previous free movement disputes took place before the EU citizenship had been formally instituted (in 1993).

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“the right of EU citizens to freedom of movement is not unconditional”. Referring to “certain immigrants from other member states”, the letter claimed that “[t]hese immigrants avail themselves of the opportunities that freedom of movement provides, without, however, fulfilling the requirements for exercising this right”. Consequently, “[t]his type of immigration burdens the host societies with considerable additional costs, in particular caused by the provision of schooling, health care and adequate accommodation”. It was also asserted that “a significant number of new immigrants draw social assistance in the host countries, frequently without a genuine entitlement, burdening the host countries’ social welfare systems”. This provided, the letter called for stronger and more efficient expulsion measures and re-entry bans applicable to EU citizens (see also Spiegel Online International 2013a), hence requesting that “[a]ll necessary measures need to be taken to deal with the consequences of this type of immigration and to fight its causes. This includes legal as well as financial measures” (Letter to Mr Alan Shatter, President of the European Council for Justice and Home Affairs 2013). While strongly opposing the four-country initiative, the president of the Progressive Alliance of Socialist and Democrats in the European Parliament, Hannes Svoboda, can nonetheless be said to have unintentionally met his adversaries halfway when coining the term “socially motivated migration” and admitting that this constitutes a growing problem. Although Svoboda’s solutions to this alleged ‘problem’ departs markedly from those of the four (fighting poverty instead of widening the north-south and west-east divides in the EU), Svoboda’s ‘social migration’ terminology may still be symptomatic of where the debate is headed, much like the coining of the term ‘economic migration’ was symptomatic of where the asylum debate was headed in the late 1980s. Commissioner Malmström’s curt response to the four governments was equally symptomatic in its desperate attempt to distance ‘free movement’ from any taint of ‘immigration’, the scandal being that “EU citizens who have the right to travel, live, work and study where ever they want in the Union are put on a par with immigrants from countries outside the EU. For instance, they are being called EU immigrants, a concept that does not exist.” “They are mixing apples and oranges like anything”, Malmström went on: “They are mixing up internal EU mobility and immigration.” (quoted in Svenska Dagbladet 2013). Maybe so, but the real mix-up consists of not grasping or acknowledging why Berlin or the Hague should want to treat destitute Bulgarians or Greeks any better in Germany or the Netherlands than they are treated at home. By consenting to the import of one of the consequences of austerity (namely, crisis emigration of the poor and needy) this would also defeat one of the purposes of the policy that northern member states and the Commission have worked so hard to impose; that is, it would risk having some of austerity’s social costs come home to roost. Just as the Commission, as seen above, wants to create safeguards for the EU as a

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whole against circular migration from Africa becoming permanent “and, thus, defeat its objective”, so do the EU members at the centre want to put in place safeguards against the perceived downsides of migration from the peripheral EU members. Such guarding against what is now blazoned abroad as ‘poverty migration’ (see e.g. Spiegel Online International 2013) is usually what happens when the socioeconomic inequalities and geopolitical power discrepancies are allowed to widen significantly between countries and regional blocs – and this irrespective of whether or not immigration from the poorer to the richer actually is increasing. In this sense, then, these safeguarding manoeuvres constitute two sides of the same neoliberal trajectory of migration and free movement policies’ disembedment from social incorporation and citizenship. For the longest time the EU establishment could place the onus of alleged migration problems exclusively on those coming from outside the EU, mostly the ‘non-Europeans’. Since the Eastern enlargements and the onset of the crisis many of these problems are now increasingly being projected also onto EU citizens themselves. As a consequence, the European migration drama is now being played out between EU member states as well, pitting British against Poles, Dutch against Romanians and so on, in much the same way as the nationalist articulation of the current sovereign debt crisis (e.g. pitting ‘diligent’ Germans against ‘lazy’ Greeks). While this could be seen as calling into question the whole edifice and hence the whole future of EU citizenship as we know it, it could also be taken as a sign that some of the features of the EU’s external migration policy are about to be internalized. As much reporting indicates, this is what a growing number of EU citizens from the Union’s expanding periphery are already experiencing, particularly those relegated to the informal labour market. That is, they are experiencing a socially embedded free movement increasingly metamorphosing into a no-frills circular migration.

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Index on Key Words administrative practice 2, 5, 47, 73, 141, 143, 148, 163, 188, 246, 247 Africa 10, 95, 116, 157–161, 362–364, 370–374, 379 Albania 116, 127 Andorra 23, 95, 137, 154, 157 anti-immigration 10, 183, 364, 376 Armenia 116 association regime 4, 89, 92–93, 96–97, 102–104, 108 asylum 17, 70–71, 74–75, 79, 100, 124, 194, 225, 331–332, 352–355, 368, 373, 378 Austria 16, 25, 27, 89, 179–180, 199, 202–206, 226, 239, 244, 248, 263, 326, 377 Azerbaijan 116 Belgium 8, 17, 25, 27, 29, 57, 75, 119, 152, 170, 174, 178–180, 185, 204–206, 218, 220, 230, 232, 252, 267, 268, 273–276, 279–283, 326, 354 benefits non-contributory 7, 236–237, 255, 259–260 sickness 7, 197, 238, 241–246, 251–255, 259, 260, 262 social 5–7, 189, 192–198, 203–207, 215, 217, 220–226, 229, 244, 251, 256, 259, 263, 354, 365 special non-contributory 236–239 Bosnia and Herzegovina 116 Bulgaria 20, 23, 25, 43–44, 52, 56–57, 61, 158–159, 203, 207, 377 burden, unreasonable  7, 211–213, 219–220, 224, 226, 231–232, 252, 256 bureaucratic discretion 163 CERD 175 Charter, EU of fundamental rights 9, 34, 43–44, 48, 55–56, 66, 80, 85, 98, 112, 193–196, 206, 229–230, 254, 286, 290–299, 324–342 citizenship politics 10, 345–346, 349, 353–357 EU 1–73, 76–89, 92, 97, 111–112, 130, 149–167, 189–208, 221, 225, 229, 264, 292–293, 296–322, 325–360, 364, 376–377, 379 examination of  5, 145–148 scope of application of EU 9–10, 69, 80, 98, 271, 275, 287, 292, 296, 319, 324–325, 329 social 7, 151 Union 1–5, 8, 15, 30, 34–36, 52–61, 65–72, 75–79, 82, 84, 90–93, 119–120, 133, 169, 183–184, 206, 216, 224, 230, 257–258, 263,

266–267, 271, 297, 324–328, 333, 337, 339, 347–348 civic conduct 136, 138, 141–143, 148 civil registry 164 CJEU 3–5, 8–9, 45, 47, 57, 67, 75, 79, 89, 92, 97, 188, 216, 224, 230–234, 256–259, 266–270, 275, 277, 280, 287–299, 309, 317, 348 clause, stand-still 89–94, 98–104, 108, 171 cohesion fund 194 competences, external 121–124, 128, 130 constitution 5–8, 23, 26, 67, 74, 77, 80, 85, 137, 143–145, 148, 153, 156–157, 163, 177–181, 190, 211, 214, 225, 266–268, 277–299, 302, 306–308, 312–316, 319, 328, 335, 344, 348, 358 cosmopolitization 344 courts, constitutional 335 Croatia 99, 116, 124, 127, 207 Cyprus 25, 99, 202, 205 Czech Republic 4, 25, 203, 219–220, 223, 239, 244 democracy, representative 189, 307 demographic deficit 10, 372 demography 28, 364, 371 Denmark 10, 25, 82–83, 124–126, 171, 199, 202, 206, 218, 239, 274, 349–352 derogation 34, 53, 58, 61, 78, 126, 233, 247 development, progressive 94 discrimination racial 169 reverse 5–8, 170–188, 266–273, 275–284, 292, 359 ECtHR 185–187 EEA 89, 106, 112–131, 179, 218, 221, 248–251 EER 95, 112, 221–222, 277 equal treatment 7, 77–78, 84–85, 91, 98, 104, 107, 116–117, 169–171, 174–178, 197, 203, 212, 216, 218, 233, 238, 246–247, 252, 255–256, 304, 318 equality 2–9, 48, 90–92, 95–99, 104–108, 180–193, 198, 203–207, 267, 276–278, 281–284, 297, 299, 302–322 procedural 304 substantive 4, 91, 92, 97–99, 104, 108, 308, 310, 315 Estonia 203–204, 218, 223 ethnicisation 34 EU norms 74, 292 EU-Turkey

400  Index on Key Words Association 4, 89–99, 103, 107–108, 116–117, 120, 123–130 Additional Protocol 91, 99, 101, 105, 107, 117, 120, 127 Decision 1/80 90–91, 94, 97–102, 106–108, 117, 120, 173 family reunification 25, 70, 84, 114–117, 170–187, 270–275, 283–284 federalism 74, 311, 313, 317 Finland 25, 82–83, 182, 204, 220, 274, 309, 377 first entry 99–102 formalism 9, 303, 308–311, 316 France 4, 21, 25, 27, 33–48, 51–57, 60–61, 152, 156, 177–178, 202–203, 218, 239, 248, 250, 350, 373, 377 free movement of goods 8, 69, 95, 113, 329 of persons 4, 52, 54, 71, 75, 77, 84–85, 94–95, 98, 111–114, 118, 122–126, 130, 169, 188, 201, 207, 228, 230, 234, 247, 260, 266 of Union nationals 179 of workers 170, 214, 217, 219, 317 freedom of movement 4, 8, 29, 35, 37, 46–47, 101, 116–117, 120, 122, 125, 179, 183, 185, 187, 232, 256–257, 263, 326–327, 330, 378 Gaddafi, Muammar 371 Georgia 116 Germany 16, 21–22, 25–30, 76, 100, 104, 152, 156, 169–182, 188, 199, 203–206, 215–219, 226, 239, 268, 274, 312–313, 326, 373, 377–378 globalization 192, 286 Greece 25, 202–204, 218, 365, 377 habitual residence 7, 214, 221, 225, 230, 237, 258, 260 health care 7, 195, 229, 231, 238, 239, 241, 242, 244, 248, 250–255, 378 health insurance 7, 202, 238, 274 HRW 47, 55, 175 Hungary 20–27, 178, 180, 205, 223, 337–338 Iceland 3, 82–83, 90, 95, 111–115, 118, 120–121, 125, 218, 274 identity 1–3, 15, 19, 21, 29, 57, 150–151, 161, 210, 230, 345, 347, 350–352, 357–359 identity politics 349 immigrants 16–17, 20–28, 72, 77–78, 81, 153–154, 158, 172–175, 180, 187, 197–198, 242, 368–373, 377, 379 immigration 2–3, 6, 11, 15–16, 21, 25–28, 36, 43, 47, 51, 59, 68–81, 84, 87, 96, 100, 106, 111, 117, 122–130, 151–152, 165, 172–180, 185–186, 191–194, 206, 221–225, 352, 355, 362, 364, 366–379

legal 70 zero 368–369 policy 3, 15, 68–69, 72, 74, 76, 81, 122, 125, 179, 369 injustice 9, 314, 317 integration 1–5, 9, 15–20, 24–28, 31, 34–35, 40–41, 45–61, 65, 68–77, 81–82, 85–86, 94–95, 99, 104, 113, 133–136, 141, 143–148, 151, 152, 172, 174–176, 188, 203, 207, 271, 286–287, 293, 297–300, 313, 320–322, 345–352, 355–359, 372 degree of 134, 140, 148, 225, 233, 256–259 internal rule 121 purely, situations 8, 183, 266–267, 270, 277, 280–284 wholly, rule 266 international, law 19, 20, 55, 66, 83, 179, 186, 294, 307, 312 Ireland 25, 75, 106, 124–126, 171, 202, 218, 223, 239, 326, 355, 365 Italy 4, 24–25, 28, 44, 59, 151–152, 178, 202–204, 218, 239, 288, 350, 371, 377 ius sanguinis 20, 23, 26, 28, 134, 152–156 ius soli 20, 28, 75, 83, 134, 152–155, 358 jobseeker 217–218, 224, 231–234, 240, 242, 253 jurisdiction 55, 69, 135, 269–270, 283, 287, 302–304, 313, 315, 317 labour demand 10, 370, 374 migration 10, 151, 364–370, 373–376 Latvia 25, 203, 205, 223, 239, 365 legal residence 29, 70, 138–140, 144, 154–155, 159–160, 224, 228, 232–233, 242, 246–247, 250, 253–354 Liechtenstein 4, 19, 90, 95, 111–115, 118, 120–121, 125 Lithuania 25, 203–204, 223, 365 long term residents 85, 103 loophole 150, 160, 165 Luxembourg 25, 45, 49, 58, 113, 115, 202–204, 218, 239 Macedonia 21, 23, 99 Malmström, Cecilia 38, 349, 364–367, 378 Malta 25, 203, 218, 239, 371 mechanisms, supply 10 migrants, economically inactive 233, 238 migration controls 10 circular 10–11, 363, 364, 370–375, 379 external, policy 10–11, 364, 379 illegal 362, 371 legal 74, 77–87, 122, 271, 366, 370, 374 poverty 379

Index on Key Words  401 mixed agreements 128 mobility 4, 53, 56–57, 72, 75–82, 85, 114, 150, 205, 242, 348, 354–355, 366–367, 370–374, 378 Moldova 21, 23, 116 Monaco 95 Montenegro 116, 127 nationality 1–8, 15–37, 59–61, 65–69, 72–92, 97, 99, 106, 111–112, 133–187, 190, 196–197, 201, 233, 235, 248, 263, 275, 279–280, 283, 292, 317–318, 326–327, 345–348, 353–356, 359 discrimination 317 due to residence 134–137, 148 acquisition of 23, 31, 79–82, 85, 136, 144, 148 loss of 31, 66, 73, 76, 79–81, 134 Spanish, law 4, 86, 149–152, 160, 164 naturalization 3, 15, 18, 20, 24–25, 29, 65, 68, 73–77, 81–84, 149–165, 352, 359 Netherlands 25–28, 58, 76, 99, 102–104, 169, 173–182, 188, 190, 201–206, 214, 218–219, 226, 239, 365, 377–378 non-discrimination 78, 91, 94, 98–109, 193, 200, 276–277, 325–326, 346–350 Norway 3, 82, 83, 90, 95, 111–115, 118, 120–121, 125, 218, 274 Poland 21, 22, 25, 158, 202–205, 223, 239, 329 Polanyi, Karl 363, 376 political organization 189 Portugal 25, 28, 137, 152, 154, 177–178, 199, 203–205, 218, 239, 244, 294, 365, 377 redistribution 5, 190–192 Regulation 1612/68 35, 70, 207, 210, 232–233, 272 1408/71 104–105, 197, 201, 223, 228, 234–237, 245, 253, 256, 258 574/72 234 1247/92 104, 236 647/2005 104 883/2004 7, 106, 125–126, 196–198, 201, 205, 223, 228–229, 234–247, 250–263 987/2009 125, 205, 234, 237, 246, 253, 258, 260 regime transitory 108 renationalization 343–344, 348, 351 residence continuity of legal  139 effective 139–140 permanent 7, 10, 146, 198–199, 202–204, 211–212, 215, 224–225, 232, 234, 238, 242, 368, 375 right of first entry 100–102 of residence 7, 256

rights, fundamental  8–9, 18, 50–51, 80, 83, 86, 112, 196, 286–287, 290–300, 324–325, 328–339, 355, 359 roma 4, 33–63, 377 Romania 23, 25, 33, 44–45, 51–52, 56–58, 61, 158–159, 203–204, 207, 220, 288, 365, 377 Rottmann 3, 6, 16–17, 19, 29, 30–31, 66–68, 79–83, 204, 302, 326–327 rule of law 9, 29, 43, 193, 293, 304, 345–346, 355 no preferential treatment 108 Russia 107, 116, 174, 180, 182 San Marino 95, 127 Schengen 10, 71, 115, 169, 343–344, 347–351, 356, 358, 376 Serbia 20–23, 174 Slovak Republic 239 Slovakia 23, 25, 107, 202, 204, 223 Slovenia 25, 204, 223, 239 social assistance 6–7, 37, 44, 85, 190–191, 195, 197–199, 202, 205, 207, 210–226, 231–236, 239, 241, 244, 246–247, 252–256, 260–261, 374, 378 assistance benefit 6, 199, 210–211, 214, 216, 218, 224–225, 255–256 assistance system 7, 37, 44, 199, 210–213, 220–221, 224–226, 231–232, 239, 252, 255, 374 benefits 5–7, 189, 192–198, 203–207, 215, 217, 220–226, 229, 244, 251, 256, 259, 263, 354, 365 citizenship 7, 151 incorporation 10, 363, 364, 375–379 integration 133–147 rights 2, 6, 153, 191–192, 196, 206, 211, 213, 224, 299, 363, 375 security 5, 94, 96, 102–106, 113, 115, 117, 125–127, 130, 190–192, 195–197, 205–207, 217, 222–223, 228–229, 234–237, 241, 244–246, 251–263, 366, 373 coordination of security 105–106, 114, 116, 126, 170, 196–197, 201, 206, 228, 234, 253 Spain 4–5, 20–29, 74, 83, 86, 106, 112, 133–166, 173, 177–180, 218, 239, 287–290, 309, 315, 326, 362, 365–366, 370, 377 special coordination systems 235 special non-contributory benefits 236–239 Supranational institutions 344, 348, 352 Sweden 25, 82–83, 185, 202–205, 215, 218, 239, 274, 349 Switzerland 4, 73, 90, 106, 111–126, 129–130, 156

402  Index on Key Words The Netherlands 18–19, 25–28, 58, 76, 99, 102– 104, 109, 169–170, 173–185, 188, 190, 201–206, 214, 218–219, 226, 239, 268, 284, 365, 377–379 third country nationals 2, 15–17, 25–26, 30–1, 68–72, 76–80, 83–87, 106, 181, 190, 192, 197, 199, 202–207, 276, 353–356, 359 tourism, welfare 11 transito ry regime 108 Turkey 21, 70, 89–96, 99, 105–106, 109, 117, 127, 171, 174–175, 190, 218 UK 7, 25, 79, 83, 100, 106, 112, 124–127, 171, 176–182, 186–187, 190–191, 199, 202, 206, 218,

220–226, 236, 239, 248–249, 274, 326, 329, 366, 373, 379 Ukraine 20–23, 116 UN 83, 193 visa 4, 99–104, 109, 117, 190, 337 Western Sahara 5, 149–150, 160–165 Wilders, Geert 183 Zambrano 5, 9–10, 16–18, 31, 67–68, 75, 79–80, 83, 112, 120, 171, 184, 188, 267, 282, 293, 302, 326–328, 337, 344–345, 353–357

Index on Directives and Regulations Directive 64/221 35, 70, 210, 272 68/360 35, 70, 210, 272 72/194 35, 70, 210, 272 73/148 35, 70, 210, 272 75/34 35, 70, 210, 272 75/35 35, 70, 210, 272 89/552 268, 269 90/364 35, 70, 210, 272 90/365 35, 70, 210, 252, 272 93/96 35, 70, 210, 272 97/36 269 2003/109 25, 69–70, 75, 78, 103, 178, 197, 202 2003/86 70, 74, 117, 171–173, 177–178, 183–184 2004/38 6–7, 33, 35, 39, 45–47, 57–60, 70, 114, 120–121, 169–172, 176–177, 185, 198, 210–234, 237–240, 243–247, 251–256, 259–263, 272–276, 282

2004/114 70, 74 2005/71 70, 74 2007/65 269 2009/50 70, 74, 78 2010/13 269 2011/98 70, 78 Regulation 1612/68 35, 70, 207, 210, 232–233, 272 1408/71 104–105, 197, 201, 223, 228, 234–237, 245, 253, 256, 258 574/72 234 1247/92 104, 236 647/2005 104 883/2004 7, 106, 125–126, 196–198, 201, 205, 223, 228–229, 234, 235–247, 250–263 987/2009 125, 205, 234, 237, 246, 253, 258, 260

Index on Case Law CJEU C-29/69 Stauder 327, 332, 340 C-22/70 Comm. v. Council 121 C-1/72 Frilli 235 C-187/73 Callemeyn 235 C-8/74 Dassonville 326, 332, 339 C-21/74 Airola 66 C-36/75 Rutili 329, 340 C-3+4+6/76 Kramer 121 C-63/76 Inzirillo 235 C-76/76 Di Paolo 257 C-117/76 Ruckdeschel 302 C-175/78 Saunders 265 C-270/80 Polydor 107 C-286/81 Oosthoek 265 C-35+36/82 Morson and Jahnjan 176, 183 C-139/82 Piscitello 235 C-238/83 Meade 70 C-249/83 Hoeckx 234 C-122/84 Scrivner and Cole 234 C-201+202/85 Klensch 291 C-379…381/85+93/86 Giletti a.o. 235, 240 C-12/86 Demirel 98, 123–124, 128, 129 C-98/86 Mathot 315 C-186/87 Cowan 102 C-204/87 Bekaert 265 C-379/87 Groener 294 C-5/88 Wachauf 291, 328–330 C-260/89 ERT 328–329, 339 C-288/89 Gouda 329, 339 C-356/89 Newton 235 C-286/90 Poulsen 66 C-369/90 Micheletti 19–20, 29, 65–66, 86, 311 C-60/91 Batista Morais 265 C-102/91 Knoch 257 C-312/91 Metalsa 119 C-2/92 Bostock 291 C-132/93 Steen 265 C-71/95 Tetik 97 C-20/96 Snares 235–236 C-64+65/96 Uecker and Jacquet 265, 325, 340 C-85/96 Sala 67, 217, 254, 325, 340 C-249/96 Grant 189, 221, 309 C-274/96 Bickel and Franz 325, 338 C-297/96 Partridge 235 C-309/96 Daniele Annibaldi 338 C-416/96 El-Yassini 96, 116 C-90/97 Swaddling 236, 257–258 C-103/97 Köllensperger 337, 340

C-212/97 Centros 262 C-292/97 Kjell Karlsson 339 C-230/97 Awoyemi 70 C-37/98 Savas 100–101 C-97/98 Jägerskiöld 265 C-285/98 Tanja Kreil 295 C-43/99 Leclere 235 C-184/99 Grzelczyk 29, 68, 120, 219, 224, 232, 236, 254–255, 324, 339, 352 C-192/99 Kaur 79 C-215/99 Jauch 235 C-413/99 Baumbast 29, 120, 229, 231 C-515/99 +519…524/99 +526…540/99 Reisch a.o. 271 C-465/00 Rechnungshof 340 C-20+64/00 Booker Aquaculture 291 C-27+122/00 Omega 295, 308, 329, 340 C-112/00 Schmidberger 330, 340 C-438/00 Deutscher Handballbund 107 C-442/00 Caballero 331, 339 C-109/01 Akrich 262 C-138/01 Neukomm 340 C-139/01 Lauermann 340 C-171/01 Wählergruppe Gemeinsam 97, 102 C-253/01 S.A. Krüger 265 C-276/01 Steffensen 330, 340 C-317+369/01 Abatay a.o. 102 C-36/02 Omega 295, 308, 329, 340 C-452/01 Ospelt 119 C-482/01 Orfanopoulos 329, 340 C-493/01 Oliveri 329, 340 C-71/02 Karner 330, 339 C-138/02 Collins 224, 232–233, 236, 255–256 C-160/02 Skalka 235, 243 C-184+223/02 Spain and Finland 308 C-200/02 Chen 66, 75, 229, 231, 251, 273–275, 325–326 C-224/02 Pusa 325, 340 C-275/02 Ayaz 90, 96 C-456/02 Trojani 219, 224, 232, 255 C-209/03 Bidar 29, 224, 232, 236, 255–256, 325, 338 C-265/03 Simutenkov 107 C-374/03 Gürol 98 C-403/03 Schempp 317, 325, 340 C-144/04 Mangold 295, 329, 340 C-145/04 Spain v United Kingdom 112 C-258/04 Ioannidis 233 C-300/04 Eman and Sevinger 302, 308

Index on Case Law  405 C-341/04 Eurofood 330, 339 C-506/04 Wilson 337, 341 C-1/05 Jia 262 C-4/05 Güzeli 96 C-16/05 Tum and Dari 100–101 C-154/05 Kersbergen-Lap 235 C-192/05 Tas 236, 255, 325, 340 C-213/05 Geven 255, 316 C-215+402/05 Kadi and Al Barakaat 311 C-287/05 Hendrix 255 C-325/05 Derin 97 C-341/05 Laval 329, 340, 376 C-438/05 Viking Line 330, 341 C-464/05 Geurts and Vogten 276, 281–284 C-228/06 Soysal 100, 117 C-242/06 Sahin 101 C-244/06 Avides Media 295 C-275/06 Promusicae 330, 340 C-303/06 Coleman 295 C-499/06 Nerkowska 255, 325, 340 C-506/06 Mayr 295 C-94/07 Andrea Raccanelli 316 C-127/07 Arcelor 290, 313 C-158/07 Förster 236, 254–256 C-221/07 Zablocka-Weyhermüller 255–256 C-485/07 Akdas 94, 104–105 C-555/07 Kücükdeveci 329, 340 C-22+23/08 Vatsouras and Koupatantze 215, 233, 252 C-127/08 Metock 183–186, 229 C-135/08 Rottmann 3, 6, 16–17, 19, 29, 30–31, 66–68, 79, 80–83, 203, 301, 325–326 C-310/08 Ibrahim 231 C-351/08 Grimme 114, 119 C-371/08 Ziebell 91–92, 120 C-541/08 Fokus Invest 119

C-480/08 Teixeira 231–232 C-578/08 Chakroun 84–85, 178 C-14/09 Genc 97 C-34/09 Zambrano 5, 9–10, 16–18, 31, 67–68, 75, 79–80, 83, 112, 120, 171, 184, 188, 266, 281, 292, 301, 325–327, 336, 340, 343–344, 352–356 C-70/09 Hengartner 119 C-104/09 Roca Álvarez 295 C-162/09 Lassal 229 C-434/09 McCarthy 5, 17, 31, 67–68, 79, 120, 171, 184, 266, 281, 296, 301, 315, 317, 325–327, 340 C-457/09 Carpenter 329, 339 C-503/09 Stewart 236, 255–256 C-7+9/10 Kahveci and Inan 99, 108, 110, 112, 176, 274 C-617/10 Åkerberg Fransson 80 C-339/10 Estov 330, 339 C-411+493/10 N.S. 328, 330, 340 C-27/11 Vinkov 331, 341 C-40/11 Iida 80 C-221/11 Demirkan 102 C-256/11 Dereci 5, 31, 68, 79–80, 89–90, 101, 171, 184–185, 188, 266, 281, 295, 301, 315, 327, 331, 339 C-356+357/11 O. and S. 80 C-367/11 Prete 92 C-399/11 Melloni 9, 285–289, 290–293, 295–299 C-451/11 Dülger 91 C-87/12 Ymeraga 292, 295 C-140/12 Brey 243, 248, 259 ECtHR 12313/86 Moustaquim 267 22341/09 Hode and Abdi 269 39696/09 M.S.S. 338, 348