EU Case Law

The most recent case concerning EU Citizenship is Tas Hagen and Tas. In this case, two Dutch nationals living in another Member State seek a financial benefit for civil victims of war. The benefit is refused because it is available to Dutch nationals only if, at the time of requesting the benefit, they reside in the Netherlands.

They both challenged the refusal before the Dutch courts on the ground that the condition of residence in the Netherlands at the time of the applications is contrary to the Treaty provisions on EU citizenship. The Dutch court then referred to the ECJ with the following question: Is the Dutch residence requirement acceptable under EC law?

The ECJ held that the Dutch residence requirement was contrary to EC law. It held also that national legislation which places at a disadvantage certain of the nationals of the Member State concerned simply because they have exercised their freedom to move and to reside in another Member State is a restriction on the freedoms conferred by Article 18(1) EC Treaty on every citizen of the European Union.

Text of the ECJ judgment
Text of the AG opinion

In this case, Mr. Ioannis Ioannidis, a Greek national, arrived in Belgium in 1994 after completing his secondary education in Greece. After a three-year period of study, he obtained a graduate diploma in physiotherapy in Belgium. In 2001, after a vestibular course in France, he returned to Belgium and applied to the Office national de l’emploi for a tide over allowance.

The question in this case was whether it is contrary to Community law for a Member State to refuse a tide over allowance to a national of another Member State who is seeking his first employment on the sole ground that he completed his secondary education in another Member State.

First, the ECJ stated that nationals of a Member State who are seeking employment in another Member State fall within the scope of article 39 EC Treaty and therefore can rely on the right to equal treatment.

Second, the ECJ pointed out that the principle of equal treatment prohibits both overt discrimination based on nationality and covert forms of discrimination, which, by applying other distinguishing criteria, lead in fact to the same result.

In conclusion, the question brought before the ECJ in this case is contrary to Community law (article 39 EC Treaty).

Text of the ECJ judgment
Text of the AG opinion

The case concerned a dispute between Mr. Avello and the Belgian State concerning an application to change the surname of his children who were dual Belgian and Spanish nationals.

Mr. Garcia Avello, a Spanish national, and his Belgian wife, Isabelle Weber, resided in Belgium and had two children. The two children have dual Belgian and Spanish nationality. Under Belgian law, children take the surname of their father, whereas under Spanish law children take the first surname of each of their parents. In line with this custom, the parents requested the Belgian authorities to change the surname of their children to Garcia Weber, but their application was refused as contrary to Belgian practice. After being confronted by Mr. Garcia Avello, the Belgian Conseil d’Etat referred a question to the ECJ as to whether the refusal was contrary to Community law.

The ECJ expressly acknowledged that the rules governing a person’s surname fall within the exclusive competence of the Member States rather than the Community (para 25). However, according to the ECJ the fact that the EU citizen’s children were residing in another Member State provided them with a sufficient link to Community law enabling them to be afforded protection under article 12 EC Treaty. Such a conclusion was not undermined by the fact that they also held the nationality of the host Member State to which the host Member State wished to give preference to.

The Garcia Avello case extended the right to non-discrimination based on nationality also as far as the rules of private international law governing surname law was concerned. This case provided another illustration of the capacity of the EU Citizenship provisions to set aside national rules concerned with matters other than the payment of financial benefits.

Text of the ECJ judgment
Text of the AG opinion