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The Zambrano case: Relying on Union citizenship rights in ‘internal situations’

By Anja Wiesbrock, University of Maastricht
On 8 March 2011 the Grand Chamber of the European Court of Justice issued a significant ruling regarding the interpretation and scope of the concept of European Union Citizenship. In an eagerly anticipated judgment, the Court held that Article 20 TFEU confers a right of residence and employment upon the parents of a minor European Union citizen who has never left the member state of his/her nationality. The judgment can be expected to lead to a major outcry of governments around the Union, reaching or even exceeding the heights of rebellion against the ‘activism’ of the Court after the 2008 Metock decision.

Abandoning the restriction to rely on Article 20 TFEU in an ‘internal situation’

The judgment will have major implications for the member states, as it extends the reach of EU law to an area that was thought to be the last realm of national discretion when dealing with the situation of family members of Union citizens: internal situations. In its recent case law (Garcia Avello, Rottmann) the Court had already largely done away with the requirement to demonstrate a clearly identifiable physical cross-border movement in order to rely on the rights derived from Union citizenship. Yet, the casuistic approach of the Courts and its efforts to find some kind of artificial link to cross-border movement led a considerable degree of legal uncertainty. This has been solved with Zambrano, as the Court unequivocally invokes Article 20 TFEU in a completely internal situation. Even though the Court does not explicitly establish that Article 20 TFEU confers a right to reside in any member state that is independent from a right to move, it implicitly seems to accept Attorney General Sharpston’s reasoning to that effect. The implications of abandoning the restriction to rely on the rights derived from Union citizenship in an internal situation are immense, as the percentage of Union citizens who exercise their free movement rights is still marginal. Zambrano thus extends the reach of Union law to a large number of potential beneficiaries.

The reach of Article 20 TFEU beyond Directive 2004/38/EC

A most notable outcome of the case is the fact that the reach of Article 20 TFEU extends to cases where the so-called ‘Citizens’ Directive’ 2004/38/EC is not applicable. In spite of the fact that primary law generally takes precedence over secondary legislation, this was far from evident, since Article 20 TFEU explicitly subjects the exercise of the rights derived from that article to the conditions and limits defined by the Treaties and secondary legislation. In Zambrano, the Court avoids the restrictions inherent in Directive 2004/38/EC, which applies only to Union citizens who move and reside in a Member States other than that of which they are a national and their family members, by relying on Article 20 TFEU instead. This way it also circumvents the application of the resource requirement in the Directive, which requires non-economically active Union citizens to demonstrate the availability of sufficient resources in order to reside in another member state for a period of more than three months. In this respect the Court departs from Chen, where the requirement of having sufficient resources was considered to be applicable to an infant Union citizen, even though it could be satisfied by relying on the resources of the parents. Thus, it seems to follow from Zambrano that by relying on Article 20 TFEU, Union citizens and their family members are not only freed from the requirement to move, but are equally not subject to any of the conditions and limitations contained in Directive 2004/38/EC. This has the paradoxical outcome that Union citizens who fall under the scope of Directive 2004/38/EC find themselves in a less favourable position than those who cannot rely on the said Directive and therefore fall under the regime of Article 20 TFEU.

What are the restrictions to relying on rights derived from Union citizenship in an internal situation?

In its very brief ruling the Court seems to establish a number of additional requirements for Article 20 TFEU to be relied upon in an internal situation. First, it establishes that the Union citizen concerned must face a potential deprivation of the ‘genuine enjoyment of the substance of the rights’ conferred by virtue of the status of Union citizenship. The applicant’s children in Zambrano faced the threat of the most far-reaching deprivation of their rights as Union citizens, running the risk of having to leave the territory of the Union. The question arises whether the judgment can be extended to the deprivation of other fundamental rights of Union citizens, such as the right to family reunification. A lot will depend on the way in which the Court interprets the requirement of being deprived of the genuine enjoyment of the substance of the rights attached to Union citizenship in its future case law.
Moreover, the Court relies heavily on the fact that in order to enjoy their rights as Union citizens, the Zambrano children are dependent on their parent’s right of residence and employment. It is still unclear whether the same reasoning applies to the third-country national spouses of Union citizens who have never left their country of nationality. If this were to be the case, the Court would have opened the possibility to rely on Union law to a large number of third-country nationals previously excluded from its reach. This would abandon the somewhat arbitrary distinction, and in some member states considerable difference in rights, between the TCN family members of moving and non-moving Union citizens. It would also do away with the necessity to rely on arbitrary constructions, using the ‘Belgian’ or the ‘Swedish’ route in order to rely on EU law for the purpose of family reunification. The remaining uncertainties in this respect make the outcome of the pending McCarthy case all the more interesting.

What about reverse discrimination?

In the same case, the Court will have the opportunity to address the issue of ‘reverse discrimination’. Even though the concepts of ‘internal situation’ and ‘reverse discrimination’ are closely related, they are not identical. In Zambrano the Court fails to address any of the arguments made in respect of a potential violation of Article 18 TFEU in cases of reverse discrimination. Departing from the reverse discrimination case law under Article 18 TFEU would obviously go much further than the possibility to rely on Article 21 TFEU in an internal situation, since its application is not limited to residence and movement rights. AG Sharpston in her proposal suggested to interpret Article 18 TFEU as prohibiting reverse discrimination but only in situations where discrimination is caused by the interaction of Article 21 TFEU with national law, entails the violation of a fundamental right protected under EU law and in the absence of equivalent protection under national law. The Court did not even mention Article 18 TFEU, presumably in order to avoid the opening of a Pandora’s box. A clarification of the possible reliance on Article 18 TFEU in internal situations and the relationship between that provision and Article 21 TFEU would however be most desirable and necessary in the light of legal certainty.

Likely implications for member states’ migration and nationality law

At first sight, the judgment has largely positive implications for third-country nationals residing in the Union, extending the scope of Union law to (certain) third-country national family members of non-movers and restricting national discretion in this respect. Yet, the judgment may have unintended consequences on national migration and nationality law. By extending the scope of rights to be relied upon by Union citizens, the ECJ may have provided member states with an incentive to render it all the more difficult for individuals to gain access to European citizenship in the first place. In the area of migration law, member states may be inclined to try to further tighten their conditions for the admission and residence of third-country national family members, economic migrants and asylum seekers, in order to counteract their loss of control over the admission of family members of non-moving Union citizens. Yet, in this area national legislators already face significant restrains on the basis of EU secondary legislation. It is thus in the sphere of nationality law, which still lies almost exclusively within the sovereignty of the member states, that the most significant changes can be expected to occur. It is not unlikely that the Zambrano judgment will have an impact on member states’ ius soli rules for children and possibly even for naturalisation proceedings. Considering the vast implications of obtaining Union citizenship, member states may be inclined to restrict the possibilities for second generation immigrant children to acquire citizenship upon birth in their territory as well as making it more difficult for first generation migrants to become naturalised.