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States that apply Directive 2004/38 to its own citizens

Immigration to European countries, don't post UK or Ireland related topics!

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TracyCK
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Post by TracyCK » Tue Apr 06, 2010 10:22 pm

Richard66 wrote:Ah, we have something here: It is the EU who has intervened as much as it could to discourage the practice of reverse discrimination by saying that people with two EU citizenships are protected by community and not national law.

Hence my comment about effective nationality still holds good, as this is not something Holland or the UK has decided for, but something the EU has imposed.

I shall need to get hold of those two books.
Me too.... I have all kinds of issues detailed on this forum, but my current issue is that I have returned to the UK after nearly 4 years residency in Spain (some working, some not) and the UK has refused to acknowledge that I should be treated by EU Law and allow my partner (hopefully he will be my husband tomorrow) to join me.

Now, I also have a claim to Spanish Nationality as my father, who sadly passed away a couple of weeks ago, was Spanish. So, does it go go say that if I go claim my Spanish Nationality (which I have by birthright), that the UK will have no choice other than to grant the EEA FP for my partner, while still considering me a British Citizen in all other things?
Husband issued with an EEA FP via Surinder Singh and various complications :)
Original thread: http://www.immigrationboards.com/viewtopic.php?t=45808
Second thread: http://www.immigrationboards.com/viewtopic.php?p=309363

acme4242
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Post by acme4242 » Wed Apr 07, 2010 3:38 am

Tracy, sorry I just don't know. I cannot find ECJ case law for your scenario.

EDIT: found ECJ Case C-148/02 Carlos Garcia Avello v Belgium >here< this says yes. to your question. UK must grant you EU treaty rights even you have UK citizenship. If you have Dual EU citizenship.
And you don't need to have lived in another EU state.



To clarify and correct some details from earlier posts.

1) The Chen case , baby Chen acquired Irish Nationality by fact of being born in Belfast.
However she did not qualify for British Citizenship, So the Baby did not have Dual Citizenship
http://eur-lex.europa.eu/LexUriServ/Lex ... 00:EN:HTML
OPINION OF ADVOCATE GENERAL in Chen ECJ case wrote: 12. Catherine came into the world on 16 September 2000, in Belfast, Northern Ireland.

13. The choice of the place of birth was no accident. It is noteworthy that, when certain conditions are fulfilled, anyone born within the territory of the island of Ireland, even outside the political boundaries of Ireland (Eire), acquires Irish nationality. As is apparent from the file, it was specifically because of that particular feature of Irish law, brought to their attention by the lawyers they consulted, that Mr and Mrs Chen decided to arrange for their child to be born in Belfast. They intended to take advantage of the child’s Community nationality in order to ensure that she and her mother would be able to establish themselves in the United Kingdom.

14. Catherine in fact met the above mentioned conditions laid down by Irish law and therefore acquired Irish nationality and, as a result, citizenship of the Union. However, she did not acquire United Kingdom nationality because she did not meet the requirements laid down for that purpose by the relevant United Kingdom legislation.

2) The Anne Walter Analysis of Reverse Discrimination in Holland as mentioned earlier, upon re-reading
referred to a Dual Moroccan-Dutch, Not Dual EU citizenship, as incorrectly given in the example.
Last edited by acme4242 on Sat Apr 24, 2010 10:32 am, edited 4 times in total.

Ben
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Post by Ben » Wed Apr 07, 2010 9:12 am

Hi Tracy.
TracyCK wrote:Now, I also have a claim to Spanish Nationality as my father, who sadly passed away a couple of weeks ago, was Spanish. So, does it go go say that if I go claim my Spanish Nationality (which I have by birthright), that the UK will have no choice other than to grant the EEA FP for my partner, while still considering me a British Citizen in all other things?
Yes. If I were in your position, I'd have my partner apply as the family member of a Spanish national, rather than of a UK national who is covered by Singh (less hoops to jump through).
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Obie
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Post by Obie » Wed Apr 07, 2010 3:42 pm

I know Cathrine is an Irish national, but the UK and Irish government tried to contest that she has not exercised the right to move, as she was born in the UK(Northern Ireland), and not Irish Republic, and hence hasn't exercised her rights under Article 18 of the EC treaty and so cannot benefit from the right under that treaty.

The Advocate General and the Court,disagreed and stated that, provided one holds the nationality of another member state besides the one the live in, they are covered, regardless of whether or not they have exercised the right to move.

My point was not whether Catharine Chen held dual nationality, it was the fact that she held a nationality of a state she has never lived in, or moved from one country to another.

All i was saying is , a national of a member state are covered under the Free movement provision if they have moved, the same person will be covered if they have never moved or lived in another memberstate, but hold the nationality of a Memberstate they have never lived in.

This principle was brought about as a result of Chen. The UK and others were reluctant to apply it previously, on the basis that article Article 18 has not been exercised.

I hope i make sense.
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Ben
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Post by Ben » Wed Apr 07, 2010 4:01 pm

Obie wrote:she was born in the UK(Northern Ireland), and not Irish Republic
Catherine Zhu could not have been born in the Irish Republic, since it ceased to exist in 1922.
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Obie
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Post by Obie » Wed Apr 07, 2010 7:56 pm

I always wrongly think that Irish Republic is synonymous with the Irish Free State or Republic of Ireland.

Without the political movement that brought about the name, i am sure it would literally have meant the same thing.

I concede it is a wrong term.

I wish to retract that phrase and say. " Catherine was not born in the Irish Free state/ Republic of Ireland, but Northern Ireland".

Thanks for the correction.
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Ben
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Post by Ben » Wed Apr 07, 2010 8:39 pm

Obie wrote:I always wrongly think that Irish Republic is synonymous with the Irish Free State or Republic of Ireland.

Without the political movement that brought about the name, i am sure it would literally have meant the same thing.

I concede it is a wrong term.

I wish to retract that phrase and say. " Catherine was not born in the Irish Free state/ Republic of Ireland, but Northern Ireland".

Thanks for the correction.
The Irish Free state and Republic of Ireland are also incorrect.

Since I am quite the pedant in this matter..
  • The Irish Republic was a unilaterally declared independent state, which was proclaimed in 1916. At this time, the entire island of Ireland was part of the United Kingdom and, as such, the term Irish Republic was never official.
  • Southern Ireland was the name as a constituent country of the United Kingdom, which existed between 1921 and 1922 (following the Government of Ireland Act, 1920).
  • The Irish Free state was the name of the state when it ceased to be part of the United Kingdom and became a dominion of the British empire, between 1922 and 1937.
  • Ireland has been the name of the state in the English language since 1937, when a new constitution was introduced, in which it was declared that the state is entirely sovereign (though it remained a dominion of the British empire and a part of the Commonwealth until 1949). In Irish, the name is Éire. Naturally, it is inappropriate to say Éire instead of Ireland when speaking English, just as it is inappropriate to say Deutschland instead of Germany, or España instead of Spain.
  • Republic of Ireland is merely descriptive and has never been the name of the state.
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acme4242
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Post by acme4242 » Wed Apr 14, 2010 11:03 am

The Cyprus result has been found, after a Supreme Court case, they now
apply 2004/38/EC rights automatically to their own citizens.

The Supreme Court of Cyprus ruled that it was absurd to create two separate categories, one for EU citizens and one for Cypriots
Where Cyprus citizens would have less rights.

from
http://ec.europa.eu/justice/doc_centre/ ... udy_en.pdf

[quote]
2.1 Definitions, family members and beneficiaries
Definitions: the concept of “Union citizensâ€
Last edited by acme4242 on Wed Feb 09, 2011 12:31 am, edited 2 times in total.

Obie
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Post by Obie » Wed Apr 14, 2010 12:46 pm

One has to look at this judgement with caution. I am still unclear as to whether the judgement applies to cases where a cypriot has been to another member state and return to Greek Cypriot or a situation where they have never exercised the right of free movement.

The Cypriot were clearly ignoring the Singh and EInd ruling, in its entirety. Probably because they just joined the EU and not conversant with the rules and case law. Therefore i think the court was right to intervene.

Whether this rules apply to Cypriot who has never moved, is a bit unclear to me.
Smooth seas do not make skilful sailors

acme4242
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Post by acme4242 » Wed Apr 14, 2010 3:14 pm

true, good point, the quoted text did not make it clear if its referring to
"surinder singh" or purely internal situations where there is no prior residence in another EU state.

However the full text of the Supreme Court of Cyprus Case 1241/06 is included at the very end of the document.
ANNEX III: Selected national case law
http://ec.europa.eu/justice/doc_centre/ ... udy_en.pdf

I think, if I'm correct, its referring to purely internal situations where there is no prior residence in another EU state.
There is no mention of these parties having exercised a treaty right in another EU state.

[quote]
Supreme Court of Cyprus
Review Jurisdiction
Case 1241/06

The Republic of Cyprus through the Ministry of Interior, Archive of Population and Immigration
Department,
Respondents

Judgment of Mr. Justice Nicolaides, delivered on the 28th day of July, 2006

“The applicant is a national of Syria who arrived at the Republic on 29.11.2001, at a time when he was given a
temporary residence permit as a visitor. The permit’s duration ended on 6.12.2001. As of then he resides illegally
in the Republic. On 1.12.2005 he married with the Greek Cypriot Eleni Constantinou and some days later he
asked for a temporary work and residence permit as a husband of a Cypriot citizen. His application was rejected
by a decision of the Director of the Archive of Population and Immigration Department, dated 13.2.2006 and he
was asked to arrange his departure. On 30.6.2006 he was arrested by order of arrest and deportation.

The applicant filed an application by which he disputed the respondent’s decision to reject his application for a
residence permit and also disputed the arrest and deportation orders. The present ex parte application by which
the suspension of validity of arrest and deportation is requested.

The applicant supports that he was a right to reside in Cyprus based on the free movement and residence of the
Member States’ citizens and the members of their families, Law of 2003, L. 92(I)/2003. This law secures the
right of free movement and residence of citizens of Member States and the members of their families,
either for paid work or for provision of services. This right is extended to persons that have seized to exercise its
professional activity.

According to Articles 4 and 15, the citizens of Member States who reside or wish to reside in the Republic have
a right to move and reside freely. The spouse and children under 21 years of age have the same right to reside
irrespective of their nationality. Also, the depended older and younger persons and their spouses.

The Applicant supported that the same right of residence and work in Cyprus that the spouses of EU citizens
have, the same right should apply to the spouses of Cypriot citizens, in the context of equal treatment of the
citizens of EU states.
:
:
:
Clearly for reasons of equal treatment of Cypriot citizens with other EU
citizens, we cannot but accept that the rights conferred to relatives of nationals of other member states are granted to the relatives of Cypriots, too.

:
:
The aforementioned view is independent of any probable arguments for violating the right to family life. As it
has been decided (Ioannou v Republic, Case 68/2001) getting married is not sufficient to accept the argument for
interference to family life. It is noted that the Ioannou judgment was issued before the promulgation of Law
92(I)/2003 and before our accession to the EU and was decided upon the general principle of the jurisprudence
of the ECtHR, as protected under article 8 of the ECHR and article 15 of our Constitution.

I conclude that the orders of arrest and deportation are a result of obvious illegality since the provisions of a
particular rule are violated.

An order of suspension of the said orders is issued as requested in paragraph A of the application.â€
Last edited by acme4242 on Wed Feb 09, 2011 12:32 am, edited 3 times in total.

acme4242
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Post by acme4242 » Wed Apr 14, 2010 5:53 pm

Some Union states grant equal rights to their own, and automatically
apply 2004/38/EC benefits to their own citizens without any conditions.
Thereby avoiding possible discrimination. Their own citizens are always
guaranteed at least equal treatment to other EU citizens.

For Example Italy.
Italy transposed EU directive 2004/38/EC into National Law Article 23 of 30/2007 which says
¡°The provisions of this Legislative Decree, if more favourable, apply to the families of Italian citizens¡±.

For more information on Italy and other states such as UK and Ireland.
http://irelandsreversediscrimination.wo ... imination/

Countries that have chosen not to give equal rights to their own, stand
accused of Reverse discrimination. Here is the List.

On the side of Reverse discrimination against their own,
and not automatically granting 2004/38/EC rights to their own (unless forced to by Surinder Singh ECJ case Law) we have
UK
Ireland(note Irish are not discriminated against in law, but are in policy)
Netherlands
Denmark
Germany
Austria
Bulgaria
Latvia
Lithuania
Slovak Republic
Sweden
Estonia
Poland

On the side of equality at least towards their own.
States that apply Directive 2004/38 rights (minimum) to its own citizens
without any requirement of prior residence in another union state
Portugal
France
Italy
Belgium
Romania
Greece(note Greeks are excluded in Law, but are equal by policy)
FinlandHungary
Slovenia
Spain(clarified and confirmed by ROYAL DECREE 1161/2009)
Cyprus(discrimination overturned by Cyprus Court Case 1241/06)
Malta
Luxembourg
Czech Republic

note links changed from
http://ec.europa.eu/justice/doc_centre/ ... ement/doc/
to
http://200438ecstudy.files.wordpress.com/2013/05/
Last edited by acme4242 on Fri May 03, 2013 12:12 am, edited 3 times in total.

Richard66
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Post by Richard66 » Fri Apr 16, 2010 3:02 pm

Acme, this is a very good post you have made! When were these compliance studies published? I must write to the European Commission to see what they are planning to to with the UK.

I notice the study confirms my interpretation that Surinder Singh also applies to returning citizens who were self-sufficient or students.

As for Cyprus, this seems to be a fist step in abolishing reverse discrimination. I am sure that if anyone were to bring such a case before a court in another of the "reversers" they might win.

It seems that the 27 member states (what about Iceland, Norway, Lichtenstein and Swizerland?) are divided in 13 "reversers" and 14 that do not disciminate.
Aiming at travelling to the UK with my wife and not with an EEA FP!

Richard66
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Post by Richard66 » Sat Apr 17, 2010 3:20 pm

Naturally, it is inappropriate to say Éire instead of Ireland when speaking English, just as it is inappropriate to say Deutschland instead of Germany, or España instead of Spain.
Very appropriate comment, yet, if we say White Russia or Peking instead of the "correct" names we risk being stoned by the PC gang and no one will stand up to defend us.
Aiming at travelling to the UK with my wife and not with an EEA FP!

acme4242
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Post by acme4242 » Wed Apr 21, 2010 8:18 am

Hi Tracy, I have not forgotten you. I think I found the ECJ ruling that allows Dual EU Citizens like yourself to benefit from EU Treaty rights, even in the country of their birth and nationality.

ECJ Case C-148/02 Carlos Garcia Avello v Belgium >here<



Summary of the Judgment
:
Such a link with Community law does, however, exist in regard to persons in a situation such as that of a national of one Member
State who is lawfully resident in the territory of another Member State. That conclusion cannot be invalidated by the fact that the persons concerned also have the nationality of the Member State in which they have been resident since their birth and which, according to the authorities of that State, is by virtue of that fact the only nationality recognised by the latter. It is not permissible for a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty.
:
Last edited by acme4242 on Wed Apr 21, 2010 8:48 am, edited 2 times in total.

86ti
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Post by 86ti » Wed Apr 21, 2010 8:40 am

acme4242 wrote:Hi Tracy, I have not forgotten you. I think I found the ECJ ruling that allows Dual EU Citizens like yourself to benefit from EU Treaty rights, even in the country of their birth and nationality.

ECJ Case C-148/02 Carlos Garcia Avello v Belgium
The Austrian Administration(?) Court has referred to exactly this case in a judgement from last year clarifying that dual EU nationals can indeed choose the EEA route. Interestingly, the actual case involved a British-Austrian national.

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Post by 86ti » Wed Apr 21, 2010 8:43 am

Richard66 wrote:
Naturally, it is inappropriate to say Éire instead of Ireland when speaking English, just as it is inappropriate to say Deutschland instead of Germany, or España instead of Spain.
Very appropriate comment, yet, if we say White Russia or Peking instead of the "correct" names we risk being stoned by the PC gang and no one will stand up to defend us.
And yet, that's exactly what we say in German (ok it's 'Weißrussland' actually).

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Post by Richard66 » Wed Apr 21, 2010 3:22 pm

I will let you into a secret:

In Russian (and perhaps also in other Slavic languages) "Byelyj" means white while Rus' refers either to Russia or to the Rus' (Rurik), the Norse who ruled Russia for a time, so, Belarus' is not all that different from White Russia... And in Italian there is no question that the capital of China is "Pecchino".
Aiming at travelling to the UK with my wife and not with an EEA FP!

acme4242
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Post by acme4242 » Tue Apr 27, 2010 10:41 pm

Hi Richard66
I got a comment on my blog as follows
=====================
France doesn’t apply directive 2004/38 to its own citizen
It would be a dream if happening …
=====================

can you help me with this one, to double check it. I didn't study France,
as it was on the initial list written as France (almost 100%)

According to the 2004/38 French compliance study which says
As far as French citizens are concerned, the French legislation is in conformity with the Directive, despite the fact that no explicit transposition measure exists. Freedom of movement of French citizens is, pursuant to the jurisprudence of the Conseil constitutionnel,[4] guaranteed by Articles 2 and 4 of the Déclaration des droits de l'homme et du citoyen de 1789. No French measures link the right of entry and residence for third country nationals to lawful residence in another Member State and no restrictions exist for third country nationals who get married after entering France. Therefore, the French regime is in line with MRAX, Jia and Metock.

[4] See e.g. Décision n° 2005-532 DC , 19 janvier 2006, cons. 16, Journal officiel du 24 janvier 2006, p. 1138, texte n° 2.
does France really impose reverse discrimination against its own ? I think not, but please confirm this. I think it was correct,
But what is missing from making France 100% ?
Last edited by acme4242 on Fri May 03, 2013 12:13 am, edited 2 times in total.

Richard66
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Post by Richard66 » Wed Apr 28, 2010 7:23 am

If you read the visa section on any French Embassy site it will confirm that family members of French citizens are covered, even if not directly. If in practice the French violate this it is not a matter of law, but of the way the law is applied by the sigle préfectures.

As far as I know the only difference between family members of citizens from other EEA states and family members of French citizens is that the latter need to sign an integration pact (learning French and so on) once they are in France.

Who wrote this entry does not go further, which is a pity.
Aiming at travelling to the UK with my wife and not with an EEA FP!

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Post by acme4242 » Mon Nov 08, 2010 7:30 pm

The Adv General Sharpston opinion in the Zambrano Case C‑34/09 which was delivered on 30 September 2010 might mark the end of the practice of reverse discrimination by some EU states. Of course its only the final Judgment that will mean anything in law, but the opinion of the Advocate General usually points in the direction the Judgment will take.

Wait and see what the final Judgment is, but this does look good.
[url=http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62009C0034:EN:HTML]opinion Adv General Sharpston in Case C‑34/09 Zambrano[/url] wrote:
150. I therefore suggest that the answer to the second question should be that Article 18 TFEU should be interpreted as prohibiting reverse discrimination caused by the interaction of Article 21 TFEU with national law that entails a violation of a fundamental right protected under EU law, where at least equivalent protection is not available under national law.
Last edited by acme4242 on Tue Nov 09, 2010 1:01 am, edited 1 time in total.

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Post by Obie » Mon Nov 08, 2010 10:24 pm

I am hoping and praying that this will be the case, but you have to bear in mind that Advocate general Sharpston was facing a lot of opposition from all the memberstate and even the commission on this issue. I respect and admire his bravery.

It was a similar situation in Baumbast, where the argument that Article 18 of the EC treaty does not provide a standalone right for self-sufficient union citizen. Lots of memberstates opposed Advocate General Geelhoed. They believed it should be linked to economic activity. But in the end, the court recognised Mr Baumbast's right of residence under Article 18.


I believe things are about to change , but one has to be cautious on expectation.
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Post by acme4242 » Tue Mar 08, 2011 1:30 pm

Judgment out today, 8/March/2011
Its a win, but no direct mention of reverse discrimination as the AG mentioned in her opinion.

So is this really the end of reverse discrimination ? or just a part ?
What are the implications ? What difference should we expect to see ?
Can all EU citizens have equal rights ?

http://eur-lex.europa.eu/LexUriServ/Lex ... 34:EN:HTML
Zambrano judgment

On those grounds, the Court (Grand Chamber) hereby rules:

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.

==============================================

6. Article 20 TFEU (former Article 17 EC) states:

‘1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties.

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Post by mastermind » Tue Mar 08, 2011 5:47 pm

Looks like the court succumbed to national bureaucracy's pressure ([37] suggests that) and issued very narrow ruling explicitly naming only the rights of parents of children who are EU-nationals. (But there IS an explicit end of reverse discrimination for parents at least, note bold text below)
acme4242 wrote:Zambrano judgment

On those grounds, the Court (Grand Chamber) hereby rules:

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.
On the other hand the Court's argumentation suggests that probably the ruling isn't that narrow:
44 It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.
Considering that every EU citizen have equal rights, just replace the bold text above with "spouse" for example.
In the part about work permit, where the EU spouse is not financially dependent on their non-EU one, the argument of non-discrimination may probably be used (instead of "risk of not having sufficient resources") if necessary. (isn't it discrimination if a spouse of one EU citizen is allowed to work but the spouse of another EU citizen is not?)

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Post by MSH » Wed Mar 09, 2011 7:38 pm

"40 Article 20 TFEU confers the status of citizen of the Union on every person holding the nationality of a Member State (see, inter alia, Case C-224/98 D’Hoop [2002] ECR I-6191, paragraph 27, and Case C‑148/02 Garcia Avello [2003] ECR I‑11613, paragraph 21). Since Mr Ruiz Zambrano’s second and third children possess Belgian nationality, the conditions for the acquisition of which it is for the Member State in question to lay down (see, to that effect, inter alia, Case C‑135/08 Rottmann [2010] ECR I-0000, paragraph 39), they undeniably enjoy that status (see, to that effect, Garcia Avello, paragraph 21, and Zhu and Chen, paragraph 20).

41 As the Court has stated several times, citizenship of the Union is intended to be the fundamental status of nationals of the Member States (see, inter alia, Case C‑184/99 Grzelczyk [2001] ECR I‑6193, paragraph 31; Case C‑413/99 Baumbast and R [2002] ECR I‑7091, paragraph 82; Garcia Avello, paragraph 22; Zhu and Chen, paragraph 25; and Rottmann, paragraph 43).

42 In those circumstances, 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 (see, to that effect, Rottmann, paragraph 42)."

The above quoted paragraphs 40-42 are IMHO the vital core of the judgement.

Especially this part: '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'..

I don't see much wiggle-room for interpretation in there. A citizen of the Union is a citizen of the Union, regardless of his or her age, and the rights conferred upon such a citizen by virtue of said citizenship cannot be infringed upon by any national measure.

The right to family life and the right to equal treatment are both fundamental rights protected by the Zambrano-ruling AS WELL AS the right to reside.

MSH.

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Post by MSH » Wed Mar 09, 2011 7:39 pm

Double post, can't delete

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