States that apply Directive 2004/38 to its own citizens

[acme4242]

* Discrimination of Nationals in comparison to Nationals with dual citizenship or a migration history in another EU state (second class Nationals)

Could you please elaborate on that? I have not found out information on that, so I cannot understand what this means.

Its taken from the Anne Walter book. where she breaks down the Discrimination that arises when union states don't apply EU directive rights by default to their own.
If I understand correct ?, this point covers both
a) Surinder Singh cases
b) Dual citizenship e.g. Dual Dutch and German, where the Dual citizen has not lived in another EU state, yet Holland still grant them EU directive rights of family reunification.

Her exact words where

- discrimination of nationals with a migration background (holders of dual citizenship) in comparison to nationals without a migration background ('second class nationals)

[Richard66]

Which goes against the principle of effective nationality, widely accepted in International law. That is, when you are a citizen of country A and B country A views you as being solely its citizen and country B views you as being solely its citizen. Otherwise chaos would follow. Imagine if one were to go around claiming all benefits that arise from different citizenships: for residence I am citizen of country A, for family reunification I am citizen of country B, for taxes I am citizen of country C...

Would this dual Dutch and German be entitled to diplomatic proitection by the Dutch while in the territory of Germany or could he envoke the assistance of the Germans if he gets into trouble with the Dutch?

[acme4242]

it is nothing to do with consular assistance or diplomatic protection or income tax
It is solely about family reunification rights.

But when Union states such as UK, Holland and Germany, choose of their own free will, to treat their own citizens as second class, then there will be many unjust scenarios played out.

Please read these books, I guess you can get them from a Law library

Reverse Discrimination and Family Reunification by Anne Walter
Reverse Discrimination in EC Law by Alina Tryfonidou

[Obie]

It is not that the Dutch wants to confer this rights to nationals of their's with dual citizenship, or holding another EU nationality, especially those who have never exercised their right of movement, and only obtained such citizenship by descent.

The ECJ ruling in Chen, states that, if a Union citizen holds a nationality of a state besides the one the residing in, they are covered by community law, even if they had never exercised the right of free movement.

Therefore the UK and Dutch had no option but to lift this restriction on their nationals who hold dual or multiple EU citizenship.

I would love to read the book you citated, unfortunately they are not available at my local library. I look forward to purchasing them in the not too distant future.

[Richard66]

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.

[TracyCK]

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?

[acme4242]

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

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.

[Ben]

Hi Tracy.

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).

[Obie]

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.

[Ben]

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.

[Obie]

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.

[Ben]

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.

[acme4242]

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€

[Obie]

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.

[acme4242]

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€

[acme4242]

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/

[Richard66]

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.

[Richard66]

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.

[acme4242]

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.
:

[86ti]

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.

[86ti]

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).

[Richard66]

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".

[acme4242]

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% ?

[Richard66]

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.

[acme4242]

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.

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.