Sitaropoulos and Giakoumopoulos v. Greece, Application no. 42202/07

Facts and judgment

The applicants - three Greek nationals who are permanently resident in France - expressed the wish to exercise in France their voting rights in the Greek general elections to be held in September 2007.

The applicants were informed by the Greek Ambassador to France, relying on the instructions and information provided by the Ministry of the Interior, that Greek citizens resident abroad are unable to vote from their place of residence. The reply stated that: ‘it is clear that this necessitates statutory rules which do not currently exist. In fact, such rules cannot be introduced by a simple administrative decision, as special measures are required for the setting-up of polling stations in embassies and consulates.’

The Greek general election took place on 16 September 2007. The applicants, who did not travel to Greece, did not exercise their right to vote.

The applicants alleged that their inability to vote from their place of residence amounted to disproportionate interference with the exercise of their right to vote in the 2007 parliamentary elections, in breach of Article 3 of Protocol No. 1

Detailed Summary

Provision concerned

National Law: Greek Constitution 1975, Articles 1, 51, 54, 108; Presidential Decree no. 96/2007, Articles 4, 5 and 6

International Law: Article 3 Protocol 1 ECHR; Resolution 1459 (2005) of the Parliamentary Assembly of the Council of Europe, Recommendation 1714 (2005) of the Parliamentary Assembly of the Council of Europe – Abolition of restrictions on the right to vote; Code of Good Practice in Electoral Matters (Opinion no. 190/2002); International Covenant on Civil and Political Rights Article 25

Case C‑256/11 Murat Dereci and others v Bundesministerium für Inneres

Facts and judgment

Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status. An EU citizen will be deprived of the genuine enjoyment of the substance of his rights only if the national measure in question would force him to leave the territory of the Union as a whole. That it may be desirable for an EU citizen to reside with his family member within the territory of the Union is insufficient to establish that, in the absence of the grant of residency to their family member, that Union citizen would be forced to leave the territory of the Union.

Provision concerned

Art 20 TFEU; Directive 2004/38/EC

Full Text English

Opinion of the Advocate General

View of Advocate General Mengozzi - delivered on 29 September 2011 (English Version)

View of Advocate General Mengozzi - delivered on 29 September 2011 (German Version)

Genovese v. Malta, Application no. 53124/09

Facts and judgment

The applicant was born out of wedlock and is the son of a British mother and a Maltese father. He was born in Scotland.

The applicant’s request for Maltese citizenship was refused on the grounds that section 17(1)(a) of the Maltese Citizenship Act prohibits an illegitimate child from acquiring citizenship where that child was born to a non-Maltese mother and a Maltese father. Since the applicant was not born to a married couple, as a result of the application of Article 17(1)(a) any reference to the “father” in section 5(2)(b) had to be deemed to be a reference to the mother.

On 25 January 2006 the Civil Court, in its constitutional jurisdiction, found that the said provisions were in violation of the Maltese Constitution, because they discriminated against the applicant by depriving him of Maltese citizenship. It further abstained from taking a decision on the compatibility of the provisions with the Convention.

On 18 July 2006, on appeal, the Constitutional Court reversed the first-instance judgment in respect of the compatibility of the provisions with the Constitution. However, it sent the case back to the Civil Court for a determination on the compatibility of those provisions with the Convention.

On 4 November 2008 the Civil Court in its constitutional jurisdiction held that section 17(1)(a) of the Maltese Citizenship Act was null vis-á-vis the applicant because it breached his rights under Articles 8 and 14 of the Convention. It held that, in the circumstances of the case, the issue of paternity concerned private life, if not family life, and that the applicant had suffered discrimination on the ground of birth, his illegitimate status, and the sex of his Maltese parent.

On 27 March 2009, on appeal, the Constitutional Court reversed the first-instance judgment. It held that the right to citizenship was not a substantive Convention right. The grant or denial of citizenship would not facilitate or create obstacles to the applicant’s family life since his father categorically refused to have any contact with him. Moreover, since the Convention did not oblige a State to allow a non-national spouse to reside in its territory, it could not be said that the State was obliged to grant citizenship to a non-national.

Detailed Summary

Provision concerned

5(2)(b) and 17(1)(a) of the Maltese Citizenship Act

Articles 8 and 14 of the European Convention on Human Rights

Case C-434/09 Shirley McCarthy v Secretary of State for the Home Department

Facts and judgment

Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States.

Provision concerned

Art 21 TFEU

Opinion of the Advocate General

Opinion of Advocate General Kokott - delivered on 25 November 2010

Case C-34/09 Ruiz Zambrano v Office National de L'emploi

Facts and judgment

Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.

Provision concerned

Art 20 TFEU

Opinion of the Advocate General

Opinion of the Advocate General Sharpston - delivered on 30 September 2010

Kuric and others v. Slovenia, Application no. 26828/06

Provision concerned

Facts:

Prior to 25 June 1991, the day Slovenia declared independence, the applicants were citizens of both the Socialist Federal Republic of Yugoslavia (“the SFRY”) and one of its constituent republics other than Slovenia. They had acquired permanent resident status in Slovenia as SFRY citizens.

On 26 February 1992 the applicants became subject to the Aliens Act (Zakon o tujcih). As they had not applied for Slovenian citizenship within the required timeframe, their names were deleted from the Register of Permanent Residents (Register stalnega prebivalstva).

The applicants claim under Article 8 of the convention that they had been arbitrarily deprived of the possibility of acquiring citizenship of the newly-established Slovenian State in 1991 and/or of preserving their status as permanent residents. They request that permanent residence status be awarded to them retroactively, on the basis of the Constitutional Court's decision of 3 April 2003, and claim awards for pecuniary and non-pecuniary damage as well as reimbursement of costs and expenses incurred in the proceedings.

Judgment:

The burden of proof as to the proper notification or taking away of the documents should be incumbent on the respondent Government. The alleged sufficiency of the means used to notify those potentially affected by the Aliens Act is inconsistent with the extremely high number of the “erased”.

The provisions of the Aliens Act were neither accessible nor foreseeable, since the Aliens Act had been designed to regulate the status of illegal aliens.

The totality of social ties between settled migrants and the community in which they are living constitute part of the concept of private life within the meaning of Article 8. Regardless of the existence or otherwise of a family life, the Court considers that the expulsion of a settled migrant constitutes interference with his or her right to respect for private life.

The prolonged refusal of the Slovenian authorities to regulate the applicants' situation comprehensively, in line with the Constitutional Court's decisions, in particular the failure to pass appropriate legislation and to issue permanent residence permits to individual applicants, constitutes an interference with the exercise of the applicants' rights to respect for their private and/or family life, especially in cases of statelesness.

Such interference will be in breach of the Convention unless it can be justified under paragraph 2 of Article 8 as being “in accordance with the law”, as pursuing one or more of the legitimate aims listed therein, and as being “necessary in a democratic society” in order to achieve the aim or aims concerned.

It is primarily for the national authorities, notably the courts, to interpret and apply domestic law. The Constitutional Court therefore found both on 4 February 1999 and 3 April 2003 that the impugned measure was unlawful since the Aliens Act had not foreseen the regulation of the status of the “erased”, who received no official notification about the change in their status.

The erasure of the applicants’ names from the Register of Permanent Residents is therefore in breach of Article 8 of the Convention. The question of compensation for pecuniary and/or non-pecuniary damage is not ready for decision. That question must accordingly be reserved and the subsequent procedure fixed.

In spite of the legislative and administrative endeavours made in order to comply with the Constitutional Court's leading decisions of 1999 and 2003, the latter have still not been fully implemented. In view of its finding under Article 8 of the Convention, the Court holds that the respondent Government have failed to establish that the remedies at the applicants' disposal can be regarded as effective remedies. Accordingly, there has been a violation of Article 13 of the Convention.

Case C-135/08 Janko Rottmann v Freistaat Bayern

Facts and judgment

Dr. Janko Rottmann was born in Austria and had Austrian nationality from birth. He was prosecuted in the mid 1990s in Austria for alleged fraud, but moved to Germany in 1995, apparently before criminal sanctions could be applied. The Austrian courts raised a warrant for his arrest. In Germany, meanwhile, he sought naturalisation as a German, but without disclosing to the German authorities that he was the subject of criminal proceedings in Austrian. A decision granting naturalisation was made in February 1999. As a result of acquiring German nationality, Rottmann automatically lost his Austrian nationality by operation of law. In late 1999, the City of Munich, which had handled the request for naturalisation, was informed by the Austrian authorities about the criminal proceedings against Rottmann in Austria. It took the decision to revoke the naturalisation decision on the grounds that it had been obtained fraudulently. The effect of the withdrawal of German nationality, which did not entail automatic reacquisition by Rottmann of Austrian nationality under Austrian law, would render Rottmann stateless. The Court advised the national court 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. It emphasised in para. 56 of the judgment ‘the importance which primary law attaches to the status of citizen of the Union’. Specifically, the Court advised that ‘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’ (para. 56). Finally, in para. 58, the Court invited the national court to consider whether proportionality requires that the person affected ‘to be afforded a reasonable period of time in order to try to recover the nationality of his Member State of origin.’

Provision concerned

Art 17 EC (Art 20 TFEU)

Full Text English

Opinion of the Advocate General

Advocate General M. Poiares Maduro (30/09/2009): In principle, the rules on acquisition and loss of nationality fall within the exclusive competence of the Member States, but that does not mean that they can act without regard for EU law. In particular, as is well established, a Member State cannot, in the case of a dual national with the nationality of another Member State and of a third state, refuse to recognise such a person as an EU citizen. To do so would be to deny such a person the benefit of the free movement rights under the Treaty (Case C-369/90 Micheletti [1992] ECR I-4239). The types of norms of EU law that would constrain the Member States in such circumstances would be those deriving from international law (e.g. rules on the avoidance of statelessness) as well as those deriving from EU fundamental rights or from the duties imposed upon the Member States to cooperate with the Union and with each other (Articles 10 EC/Article 4 Treaty on European Union post Lisbon). However, the case involving Dr Rottmann was different. International law does not prohibit the withdrawal of nationality from a person who has made false statements in the course of the naturalisation process, even if the effect of such a decision is to render the person stateless. Moreover, the Advocate General’s view was that the withdrawal of naturalisation was not connected to the exercise of free movement rights under EU law, and that therefore there was no reason based on this connection to EU law for the Court to scrutinize the national legislation itself, or to suggest to the national court that it should do so.

Opinion of Advocate General Poiares Maduro - delivered on 30 September 2009 (German Version)

Opinion of Advocate General Poiares Maduro - delivered on 30 September 2009 (English Version)

Case C-353/06 Grunkin and Paul

Facts and judgment

Leonhard Matthias Grunkin-Paul was born on 27 June 1998 in Denmark to Dr Paul and Mr Grunkin, who were at that time married and who are both of German nationality. Their child also has German nationality and has lived in Denmark since he was born. In accordance with a certificate issued by the competent Danish authority attesting to that name (‘navnebevis’), the child was given, pursuant to Danish law, the surname Grunkin-Paul, which was also entered on his Danish birth certificate. The German registry office refused to recognise the surname of the child as it had been determined in Denmark on the ground that, under German law, the surname of a person falls to be determined by the law of the State of his or her nationality, and that German law does not allow a child to bear a double-barrelled surname composed of the surnames of both the father and mother. The appeals brought by Leonhard Matthias’ parents against that refusal were dismissed. The Court held: Where a child, who is a national of one Member State and is lawfully resident in the territory of a second Member State, and his parents have only the nationality of the first Member State and, in respect of the conferring of a surname, the conflicts rule of the first Member State refers to the domestic substantive law on surnames, the determination of that child’s surname in that Member State in accordance with its legislation cannot constitute discrimination on grounds of nationality within the meaning of Article 12 EC. Article 18 EC precludes the authorities of a Member State, in applying national law which uses nationality as the sole connecting factor for the determination of surnames, from refusing to recognise a child’s surname, as determined and registered in a second Member State in which the child – who, like his parents, has only the nationality of the first Member State – was born and has been resident since birth. Having to use a surname, in the Member State of which the person concerned is a national, that is different from that conferred and registered in the Member State of birth and residence is liable to hamper the exercise of the right, established in Article 18 EC, to move and reside freely within the territory of the Member States.

Provision concerned

Arts 12 and 18 EC (Arts 18 and 21 TFEU)

Opinion of the Advocate General

Advocate General E. Sharpston (24/04/2008): The Advocate General considered whether the provision in German law involves any discrimination on grounds of nationality or interference with the right to freedom of movement and residence - and, whether any such discrimination or interference, if it exists, can be justified. She argued that (para 67) “whilst the mere fact of choosing to use nationality rather than habitual residence (or vice versa) as a connecting factor does not itself offend against the requirement of equal treatment in Community law, a refusal to recognise the effects of measures which are valid under another legal system using another connecting factor does seem to offend.” She concluded (para 79) “that a refusal on the part of the Member State of a person’s nationality to recognise a name lawfully given to him necessarily renders it appreciably more difficult for him to exercise his rights as a citizen of the Union to move and reside freely throughout the territory of the Member States.” The Advocate General suggested that there may be possible justifications of a systematic nature or such that are closely related to the individual situation. However, she did not recognise the justifications put forward in this case as falling into either category.

Case C-145/04 Kingdom of Spain v United Kingdom of Great Britain and Northern Ireland

Facts and judgment

Spain accused the United Kingdom of Great Britain and Northern Ireland of having infringed Community law by virtue of the arrangements made by it for the inhabitants of Gibraltar to vote in European Parliament elections and in particular because it arranged for voting by people who reside in that territory but do not possess the nationality of a Member State or, therefore, citizenship of the Union. The Court held: Neither Articles 189 EC and 190 EC nor the Act concerning the election of the representatives of the European Parliament by direct universal suffrage expressly and precisely state who are to be entitled to the right to vote and to stand as a candidate for the European Parliament. As regards Articles 17 EC and 19 EC, relating to citizenship of the Union, only the latter deals specifically, in paragraph 2, with the right to vote for the European Parliament. That article is confined to applying the principle of non discrimination on grounds of nationality to the exercise of that right. Also, as regards the possible existence of a clear link between citizenship of the Union and the right to vote and stand for election which requires that that right be always limited to citizens of the Union, no clear conclusion can be drawn in that regard from Articles 189 EC and 190 EC, relating to the European Parliament, which state that it is to consist of representatives of the peoples of the Member States. The term ‘peoples’, which is not defined, can have different meanings in the Member States and languages of the Union. As regards the Treaty’s articles relating to citizenship of the Union, no principle can be derived from them that citizens of the Union are the only persons entitled under all the other provisions of the Treaty, which would imply that Articles 189 EC and 190 EC apply to those citizens alone. While article 19 (2) EC implies that nationals of a Member State have the right to vote and to stand as a candidate in their own country and requires the Member States to accord those rights to citizens of the Union residing in their territory, it does not follow that a Member State is prevented from granting the right to vote and to stand for election to certain persons who have a close link with it without however being nationals of that State or another Member State.

Provision concerned

Arts 17 EC, 19 EC, 189 EC and 190 EC (Arts 20, 22 and 223 TFEU)

Opinion of the Advocate General

Advocate General A. Tizzano (06/04/2006): The Advocate General first considers (para 67) “that it can be directly inferred from Community principles and legislation as a whole, thus overriding any indications to the contrary within national legislation, that there is an obligation to grant the voting rights in question to citizens of the Member States and, consequently, to citizens of the Union.” Therefore, (para 69) “the right to vote in European elections is enjoyed by citizens of the Union primarily by virtue of the principles of democracy on which the Union is based.” Even though Article 19(2) EC allows only ‘citizens of the Union’ to vote in European elections in the Member State in which they reside, even if they are not citizens of it, there is nothing stopping a State from granting the right to vote to those other persons in its own territory. The Advocate General concludes that (para 92) “the extension of the rights listed in Articles 18 to 21 to persons not having citizenship of the Union is not therefore an exceptional phenomenon which ‘dismembers’ the unicity of the concept of citizenship. On the contrary, the fact that some of those rights, considered as defining the legal position of Union citizens, are on the other hand extended by Community law itself beyond those confines confirms that those rights do not necessarily constitute an exclusive prerogative of citizens. Not only that, but it can further be deduced that if, in some cases, it is Community law itself which extends them, the possibility cannot in principle be ruled out that for others (such as, specifically, the right to vote) a Member State may do so independently.” The Advocate General goes on to argue that (para 101 et seq.) “until a uniform electoral law is actually passed, it is not possible to dispute a Member State’s right to define its own electorate for European elections, if necessary even extending (or, as we shall see, restricting), by reference to the circle of its own citizens and having regard to the particular features of its own legal order, the range of persons entitled to vote. Naturally, the exercise of that power cannot be unlimited: both, in general, because the election of the European Parliament is not the

Case C-300/04 Eman and Sevinger v College van burgemeester en wethouders van Den Haag

Facts and judgment

The Nederlandse Raad van State submitted five questions to the Court of Justice for a preliminary ruling as to whether a Member State (in this case, the Netherlands) must grant the right to vote in European elections to persons who, although possessing its nationality, reside in an overseas territory (in this case, Aruba) which is covered by special association arrangements with the Community. The Court concluded that neither Articles 189 EC and 190 EC nor the Act concerning the election of the representatives of the European Parliament by direct universal suffrage state expressly and precisely who are to be entitled to vote and to stand for election to the European Parliament. Thus, no clear conclusion can be drawn in that regard from Articles 189 EC and 190 EC relating to the European Parliament. In addition, the provisions of Part Two of the Treaty relating to citizenship of the Union do not confer on citizens of the Union an unconditional right to vote and to stand as a candidate in elections to the European Parliament. Article 19(2) EC is confined to applying the principle of non-discrimination on grounds of nationality to that right to vote and stand for election. Consequently, in the current state of Community law, nothing precludes the Member States from defining, in compliance with Community law, the conditions of the right to vote and to stand as a candidate in elections to the European Parliament by reference to the criterion of residence in the territory in which the elections are held. Likewise, no argument can be based on the fact that other Member States hold elections to the European Parliament in the Overseas Countries and Territories with which they maintain particular relations. In the absence of specific provisions in that regard in the Treaty, it is for the Member States to adopt the rules which are best adapted to their constitutional structure. The principle of equal treatment prevents, however, the criteria chosen from resulting in the different treatment of nationals who are in comparable situations, unless that difference in treatment is objectively justified. The objective pursued by the Netherlands legislature consisting in the conferment of the right to vote and stand for election on Netherlands nationals who have or have had links with the Netherlands falls within that legislature’s discretion as regards the holding of the elections. However, the Netherlands Government has not sufficiently demonstrated that the difference in treatment observed between Netherlands nationals resident in a non-member country and those resident in the Netherlands Antilles or Aruba is objectively justified and does not therefore constitute an infringement of the principle of equal treatment.

Provision concerned

Articles 17 EC, 19(2) EC, 189 EC, 190 EC and 299(3) EC (Arts 20, 22, 223 and 349 TFEU)

Opinion of the Advocate General

Advocate General A. Tizzano (06/04/2006): The Advocate General argues that (paras 151-153) “Article 17 EC in fact does no more than refer to the domestic law of the Member States regarding definition of the subjective scope of citizenship of the Union. In other words, the existence of that legislation is taken for granted by the Community legal order and as such is assimilated by it for the purpose of defining entitlement to Union citizenship. On close examination, however, that reference concerns not only delimitation of the status of citizen of the Union but also the way in which the rights associated with that status are provided for. This means that reference must be made to the relevant State legislation not only to ascertain whether a person possesses citizenship of the Union but also to establish whether, in accordance with such rules as may be laid down by national law, that person enjoys all the rights associated with that status. In other words, it must be concluded that when the legislation of a Member State places limitations on citizenship rights on the basis of objective criteria (for example, rules connected, as in this case, with the constitutional structure of the State), the Community legal order - without prejudice to observance of its fundamental principles - accepts those limitations also for the purpose of determining the rights associated with citizenship of the Union.” In conclusion, therefore, (para 155) “Community law cannot decline to accept the rules on citizenship applicable in that State. That is all the more true because those rules do not give rise to restrictions concerning the exercise (merely) of rights granted by Community law but transposes precisely the limitations existing at national level.” However, the Advocate General agrees

Case C-200/02 Zhu and Chen v Secretary of State for the Home Department

Facts and judgment

Mrs Chen, a Chinese national, entered the United Kingdom in May 2000 when she was about six months pregnant. She went to Belfast in July of the same year and Catherine was born there on 16 September 2000. The mother and her child live at present in Cardiff, Wales (United Kingdom). Catherine was issued with an Irish passport in September 2000. Catherine is not entitled to acquire United Kingdom nationality since, in enacting the British Nationality Act 1981, the United Kingdom departed from the jus soli, so that birth in the territory of that Member State no longer automatically confers United Kingdom nationality. It is recognised that Mrs Chen took up residence in the island of Ireland in order to enable the child she was expecting to acquire Irish nationality and, consequently, to enable her to acquire the right to reside, should the occasion arise, with her child in the United Kingdom. As Ireland forms part of the Common Travel Area within the meaning of the Immigration Acts, so that, because Irish nationals do not as a general rule have to obtain a permit to enter and reside in the United Kingdom, Catherine, in contrast to Mrs Chen, may move freely within the United Kingdom and within Ireland. Aside from Catherine’s right of free movement limited to those two Member States, neither of the appellants in the main proceedings is entitled to reside in the United Kingdom under its domestic legislation. Catherine is dependent both emotionally and financially on her mother who is her primary carer. She lost the right to acquire Chinese nationality by virtue of having been born in Northern Ireland and her subsequent acquisition of Irish nationality. The UK Home Department refused to grant a long-term residence permit to Mrs Chen and her daughter on the basis that Catherine, a child of eight months of age, was not exercising any rights arising from the EC Treaty. The Court argued that (para 19) “the situation of a national of a Member State who was born in the host Member State and has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation, thereby depriving that national of the benefit in the host Member State of the provisions of Community law on freedom of movement and of residence.” It went on to say that (para 20) “a young child can take advantage of the rights of free movement and residence guaranteed by Community law. The capacity of a national of a Member State to be the holder of rights guaranteed by the Treaty and by secondary law on the free movement of persons cannot be made conditional upon the attainment by the person concerned of the age prescribed for the acquisition of legal capacity to exercise those rights personally.” Article 18EC and Directive 90/364 therefore confer a right to reside for an indefinite period in a Member State on a young minor who is a national of a Member State. Regarding Mrs Chen, the Court argued that (para 45) “a refusal to allow the parent, whether a national of a Member State or a national of a non-member country, who is the carer of a child to whom Article 18 EC and Directive 90/364 grant a right of residence, to reside with that child in the host Member State would deprive the child’s right of residence of any useful effect. It is clear that enjoyment by a young child of a right of residence necessarily implies that the child is entitled to be accompanied by the person who is his or her primary carer and accordingly that the carer must be in a position to reside with the child in the host Member State for the duration of such residence.”

Provision concerned

Art 18 EC (Art 21 TFEU)

Opinion of the Advocate General

Advocate General A. Tizzano (18/05/2004): The Advocate General argued that (para 52) “there is no reason to deprive a minor of a right conferred in general terms on all Community citizens by a fundamental provision of Community law, such as Article 18 EC. Thus, if the conditions laid down by the directive are satisfied, even a minor can claim the right to reside freely, as an economically non-active person, in a Member State other than the one whose nationality he possesses.” The Advocate General goes on to conclude that (para 78) “a very young minor who is a Community national and is covered by sickness insurance covering all risks in the host Member State and who, although not directly possessing income or earnings in his own right, nevertheless has at his disposal, through his parents, sufficient resources to ensure that he will not become a burden on the finances of the host Member State, meets the requirements laid down by Article 1 of Directive 90/364 and therefore enjoys a right t

Case C-148/02 Carlos Garcia Avello v Etat Belge

Facts and judgment

Mr Garcia Avello, a Spanish national, and Ms Weber, a Belgian national, requested the Belgian authorities to change their childrens` surnames to follow the well-established usage in Spanish law, that the surname of children of a married couple consists of the first surname of the father followed by that of the mother. The Belgian authorities refused the request. The Court adopted a similar approach to that put forward by the Advocate General. It found that Belgian practice which refuses to change the surname of children with dual nationality is discriminatory under EU law. It found that this refusal was disproportionate and could not be justified on any of the grounds put forward.

Provision concerned

Art 17 EC, 18 EC (Arts 20 and 21 TFEU)

Opinion of the Advocate General

Advocate General F. G. Jacobs (22/05/2003): The Advocate General argued that the refusal by the Belgian authorities to change the childrens` surnames amounted to discrimination on grounds of nationality which was prohibited under EU law. Discriminatory treatment may be justified if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the legitimate aim of the national rule or practice. However, the Advocate General did not consider the present case to constitute an overriding public interest and, therefore, the discrimination could not be justified.

Case C-192/99 The Queen v Secretary of State for the Home Department ex parte Manjit Kaur

Facts and judgment

Mrs Kaur was born in Kenya in 1949, thereby becoming a Citizen of the United Kingdom and Colonies under the terms of the British Nationality Act 1948. Following the entry into force of the British Nationality Act 1981, her status became that of a British Overseas Citizen. As such, she has no right under national law to enter or remain in the United Kingdom. Following several temporary periods of residence in British territory, and while once again in the United Kingdom, Mrs Kaur re-applied for leave to remain on 4 September 1996, as she had done on several occasions since 1990, the year in which she first entered the United Kingdom. On 20 March 1997 Mrs Kaur applied to the High Court of Justice for judicial review of the decision of 22 January 1997 by the Secretary of State for the Home Department refusing her leave to remain in the United Kingdom. On that occasion she stated that she wished to remain and obtain gainful employment in the United Kingdom and periodically to travel to other Member States in order to make purchases of goods and services and, if necessary, to work there. Faced with the particular situation of British nationality law, which contains different categories of nationality, one of which allows the holder to be refused any right of entry and stay in British territory, the High Court of Justice, Queens Bench Division (Crown Office) (England and Wales), first of all requests the Court to interpret the notion of a 'person holding the nationality of a Member State‘. The High Court of Justice goes on to question the Court as to the content and scope of the concept of 'citizenship of the Union‘, as defined in the Treaty to enable it to rule on the effects which that status may have, in regard to the right to enter and stay, for a British citizen deprived of that right under national legislation. At the outset of its judgment the Court refers to its decision in Micheletti and Others where it held that “'[u]nder international law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality.” On that basis, the United Kingdom has, in the light of its imperial and colonial past, defined several categories of British citizens whom it has recognised as having rights which differ according to the nature of the ties connecting them to the United Kingdom. The United Kingdom has defined those rights in its domestic legislation. That national legislation reserved the right of abode within the territory of the United Kingdom to those citizens who had the closest connections to that State. When it acceded to the European Communities, the United Kingdom notified the other Contracting Parties of the categories of citizens to be regarded as its nationals for the purposes of Community law. 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. Therefore, in order to determine whether a person is a national of the United Kingdom of Great Britain and Northern Ireland for the purposes of Community law, it is necessary to refer to the UK’s domestic legislation.

Provision concerned

Articles 17 and 18 EC (Articles 20 and 21 TFEU)

Opinion of the Advocate General

Advocate General P. Léger (07/11/2000): The Court has consistently held that the rules governing the free movement of persons “apply only to a national of a Member State of the Community who seeks to establish himself in the territory of another Member State or to a national of the Member State in question who finds himself in a situation which is connected with any of the situations contemplated by Community law.” It should be noted that, from the strictly legal point of view, Mrs Kaur`s application does not seek recognition of a right to move freely within Community territory but seeks rather to secure the right to reside within the territory of the Member State of which, according to that Member State`s domestic law, she possesses a form of nationality. The applicant thus does not come within any of the hypothetical categories envisaged by the Court`s case-law since, first, the main proceedings are not designed to secure for her benefit the right of establishment in the territory of another Member State and, second, she does not find herself in a situation which is connected with any of the situations contemplated by Community law. Consequently, whether or not Mrs Kaur holds British nationality, Community law - and in par

Case C-369/90 Mario Vicente Micheletti and others v Delegación del Gobierno en Cantabria

Facts and judgment

Mr Micheletti had Argentinian and Italian nationality. On 13 January 1989 the Spanish Ministry of Education and Science officially recognized Mr Micheletti` s university degree in dentistry under a cultural cooperation agreement between Spain and Argentina. On 3 March 1989, Mr Micheletti applied to the Spanish authorities for a temporary Community residence card, submitting for that purpose a valid Italian passport issued by the Italian Consulate in Rosario, Argentina. On 23 March 1989, the Spanish authorities issued the card requested, which was valid for a period of six months. Before the expiry of that period, Mr Micheletti applied to the Spanish authorities for a permanent residence card as a Community national in order to set up as a dentist in Spain. That application and a subsequent administrative appeal were dismissed, whereupon he brought proceedings before the national court for the annulment of the Spanish authorities` decision, recognition of his right to obtain a Community national`s residence card enabling him to practise as a dentist and the issue of residence cards for the members of his family. The Spanish authorities` decision was based on Article 9 of the Spanish Civil Code, according to which, in cases of dual nationality where neither nationality is Spanish, the nationality corresponding to the habitual residence of the person concerned before his arrival in Spain is to take precedence, that being Argentine nationality in the case of the plaintiff in the main proceedings. The Court held: The provisions of Community law concerning freedom of establishment preclude a Member State from withholding that freedom from a national of another Member State who at the same time possesses the nationality of a non-member country, on the ground that the legislation of the host State deems him to be a national of the non-member country. Whenever a Member State, having due regard to Community law, has granted its nationality to a person, another Member State may not, by imposing an additional condition for its recognition, restrict the effects of the grant of that nationality with a view to the exercise of a fundamental freedom provided for in the Treaty, particularly since the consequence of allowing such a possibility would be that the class of persons to whom the Community rules on freedom of establishment were applied might vary from one Member State to another.

Provision concerned

Articles 3(c), 7, 52, 53 and 56 EEC (Arts 11, 19, 26, 27, 14, 49, 50 and 52 TFEU)

Opinion of the Advocate General

Advocate General G. Tesauro (30/01/1992): The Advocate General argued that possession of the nationality of a Member State is the only prerequisite which an individual must satisfy in order to be able to exercise the right of establishment, a prerequisite which is governed by the national law of the State concerned. It follows that the issue of the permanent residence card may not be made conditional on fulfilment of a further requirement such as actual residence (or a similar criterion) - instead, it is sufficient for the applicant to be a national of a Member State in the aforesaid sense, in other words that he should be recognized as such by the national law of the Member State concerned. Therefore, one must rule out the possibility of denying the right of establishment to a national of a Member State on the sole ground that he also holds the nationality of a non-member country and was last resident in that country. Once it has been established that the person in question is a national of a Member State, there is no other factor or criterion which must or may be taken into consideration.