EU Case Law

“Nationality and EU citizenship are inseparable and superimposed”.

Matters of nationality remain within the exclusive competence of the Member States. They decide who can or cannot be an EU citizen. Being a national of a Member State is the condition sine qua non for acquiring EU citizenship, and therefore enjoying the rights linked to it. This led some scholars to the conclusion that EU citizenship might be characterised as a “derived condition of nationality”.

The ECJ interpreted the exclusive competence over nationality matters by Member States in the Micheletti case in 1992.

In this case, an individual with dual Argentinean and Italian nationality arrived in Spain wanting to exercise his right to freedom of establishment and to practice as an orthodontist. He was refused a residence permit by the Spanish authorities, because in such instances Spanish legislation refers to the last or effective residence, which in this case was Argentina. The ECJ ruled that nationality of one of the Member States was sufficient and that a citizen does not have to choose between the two nationalities. In fact, this judgment has dramatically influenced nationality law at the EU and national levels. The ECJ highlighted that this competence must be exercised in conformity with EC law. It also emphasized that another member of the Union that imposes additional conditions on the recognition of such a nationality in order to exercise the fundamental rights provided by the EC Treaty may not restrict the effects of nationality being attributed by one Member State.

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Text of the AG opinion

On 22 September 2003 the Council adopted the Directive 2003/86/EC which determine the conditions for the exercise of the right to family reunification by nationals of non-member States residing lawfully in the territory of the Member States. The directive provides in particular that a national of a non-member State lawfully living in the EU is in principle entitled to bring his/her children to join him/her by way of family reunification. The directive nevertheless allows Member States in certain circumstances to apply national legislation derogating from the rules that apply in principle.

The European Parliament took the view that several provisions are contrary to fundamental rights, in particular the right to respect for family life and the right to non discrimination. Because of that it brought an action for annulment before the ECJ.

As examples of such provisions we can mention: the possibility for Member States to verify whether a child, who arrives independently from the rest of his/her family, meets an integration condition; or the possibility of the Member States to defer family reunification for two or, as the case may be, three years.

However after a very intense analyze and after making the first referral to the EU Charter, the ECJ ruled that the Community legislature did not exceed the limits imposed by fundamental rights in permitting Member States which had, or wished to adopt, specific legislation to adjust certain aspects of the right to family reunification.

The ECJ therefore dismissed the action.

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Text of the AG opinion

The pending case Hartmann (C-212/05) is based on the refusal of the German Freistaat Bayern to give a child raising allowance for Ms. Hartmann who is an Austrian citizen living in Austria with her German husband and their three children. Ms. Hartmann is a house wife and Mr. Hartmann works in Germany for Deustche Telekom. The refusal was based on the fact that she was no longer living in Germany nor did she had a labor contract anymore in that country.

The Advocate General held in his conclusions of 28 September 2006 that the main purpose of the right to social benefits was to promote the integration of the worker into the country of employment. The situation of the frontier workers is a little bit different. As frontier workers are not living in that state, there is no need to facilitate their integration there. In his view (supported by several intervening Member States) the equal treatment for frontier workers and his family members should be limited to advantages which are closely linked to the objective status of a worker. This is not the case, according to the AG, with family benefits such as the German child raising allowance which is at stake in this case. Such benefits are linked to the purpose of integration of the family into the society and linked to social and demographic policies which are proper to a particular Member State and its territory. The AG concludes in this case that a frontier worker, who cannot invoke the provisions on export of family benefits in Regulation 1408/71 because he is not covered by it, cannot invoke Article 7 of Regulation 1612/68 either in order to claim this export.

The ECJ limits the right to equal treatment for social advantages to these advantages having a close link with the status of worker, only for former workers, whereas the AG proposes in Hartmann case to do it for all frontier workers, including those who are still economically active.

We will now have to wait for the ECJ’s view on the AG’s position, and then we will return with details on this case.

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In this case, Mr Hosse, of German nationality, is a frontier worker employed in Austria as a teacher in the Province of Salzburg. He pays taxes and social security contributions in Austria and is affiliated to sickness insurance in that State. He resides in Germany, near the Austrian frontier, with his daughter Silvia Hosse, who is severely disabled. In those circumstances, an application was made for a care allowance under a law of the Province of Salzburg for Silvia Hosse. The application was refused on the ground that under that law the person reliant on care must have his main residence in the Province of Salzburg in order to receive the care allowance.

The ECJ ruled that the grant of sickness benefits should not be conditional on the residence of the members of the worker’s family in the Member State of the place of employment, so as not to deter Community workers from exercising their right to freedom of movement. It would therefore be contrary to the Regulation 1408/71 to deprive the daughter of a worker of a benefit she would be entitled to if she were resident in that Member State.

The ECJ concluded that, if Silvia Hosse fulfils the other conditions of grant, she can claim from the competent Austrian institution payment of a care allowance such as that at issue, in so far as she is not entitled to a similar benefit under the legislation of the State in whose territory she resides.

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Text of the AG opinion

In this case, a number of EU citizens were sentenced to imprisonment in the Netherlands. They complained to the Commission about the measures taken against them by the Dutch authorities declaring them undesirable on public policy grounds.

After examining those complaints, the Commission concluded that the general legislation of the Netherlands relating to foreign nationals, which was equally applicable to nationals of other Member States, made it possible to establish a systematic and automatic connection between a criminal conviction and a measure ordering expulsion from the territory.

The ECJ started its reasoning by reiterating that EU citizenship was destined to be the fundamental status of nationals of the Member States. After that it ruled that the situation in this case was not consistent with Directive 64/221.

In fact, the ECJ by continuing its reasoning on Article 18 EC Treaty reminded that a national of a Member State might, simply by virtue of being an EU citizen, enjoy a right of residence in another Member State. The ECJ held however that this right was not unconditional. Among the limitations and conditions, Directive 64/221 permitted Member States to expel nationals of other Member States from their territory on grounds of public policy or public security, subject to compliance with the substantive and procedural safeguards laid down by that directive and with the general principles of Community law.

An interpretation to the effect that the provisions of Directive 64/221 applied only to citizens of the Union who were lawfully resident on the territory of the host Member State was not consistent with Community law.

According to the ECJ, EC law also precludes provisions of national law based on a presumption that nationals of other Member States who have received a particular sentence for specific offences must be expelled.

The ECJ conclusion was that the national legislation made it possible to establish a systematic and automatic connection between a criminal conviction and a measure ordering expulsion in respect of EU citizens.The Netherlands thereby failed to fulfill its obligations under Directive 64/221.

Text of the ECJ judgment