Free Movement of Persons (EU Citizenship) - Lecture 13 and 14 - EU law

How does a EU or market citizenship compare to the republican, deliberative, corrective and transnational citizenship?

EU citizenship is one reciprocity of rights against and duties towards the community, entails membership and degrees of participation in the community. Market citizenship is a time that was coined for EU citizenship and is focused on the rights of the citizen to participate but in the market. It’s the ability to participate in the market more freely, engage in paid employment or self-employment or providing services which moves to a non-economic purpose later on.

Other models:

• Republican Citizenship = They all are based on this model that talks about rights and duties, membership and participation. They really want to explore how you participate in that community when you are a citizen in social citizenship,

• Transnational Citizenship = Transnational citizenship again looks at the membership aspect, can you be a member in more than one community, or moving to another and obtaining another identity in the process?

• Deliberative Citizenship = Habermas focuses on a citizenship based on the model of democratic participation around a common set of values.

• Corrective Citizenship = Weiler poses the notion of a citizenship that complements national identities and helps fight nationalism and exclusion.

What is meant by the major imbalance in formulation of EU Citizenship is the lack of symmetry between INPUT and OUTPUT?

MS control INPUT through conferral of nationality and through collection of ‘public goods’ for redistribution purposes, such as taxation, military and social services, pension contributions, general immigration rules. The EU reshapes national choices on OUTPUT, such as redistribution of welfare and social assistance, university places, student grants, family reunification rules.

As the EU increasingly controls OUTPUT, domestic policy choices (such as welfare choices which follow the liberal participatory citizenship model) are now restricted by an external EU model that no one can define or control as the progress is dictated by an organ like CJEU.

The compromise in the EU is that states have clearly given up rules on access because now free movement of persons regulates access, MS retain control at a very minimum belonging, because MS have an exclusive control on who is a national citizen, and but in order to be an EU citizen, if you already have to be a national citizen. As stated in Article 20(1) TFEU, it is ‘additional’ and does ‘not replace national citizenship’ and the EU Charter of Fundamental Rights reaffirms citizenships rights.

In summary, what is the 4 stages of CJEU’s development of EU Citizenship as per Spaventa?

The 4 stages are -

1. The ‘market citizenship’ phase

2. The constituent phase

3. The consolidation/expansion phase

4. The reactionary phase

Or there is also a gradual switch from a ‘residency model’ to an ‘integration’ model.

Why is the nature of EU Citizenship regarded as contested for 3 reasons, and what is the end result of this?

• Progressive shifting of the Personal, Material and Territorial scope test in unchartable directions → encroaches on ‘core area’ of MSs’ sovereignty, i.e. ‘membership’

• Progressive increase in the INPUT and OUTPUT dichotomy → this destabilizes MSs’ ‘essential functions’

• No demos argument as per J. Weiler, and the EU has proved incapable of generating individual allegiance → fails the liberal participatory citizenship model

The Result is that the EU citizenship’s development was uneven – best understood by using different phases or models such as the market citizenship phase, constituent phase, consolidation/expansion phase and reactionary phase?

What are the main principles which underpin the rights of economically inactive citizens? And what are the two criterias that must be fulfilled? And what is the exception to this rule? And which treaty allowed for the acceptance of a generalise FMP?

As per the Directive 2004/28/EC, non-economically active citizens (to include students) must fulfil 2 criteria:

1. They must have comprehensive medical insurance for all risks in host state

2. They must have sufficient resources to avoid becoming a burden on the social assistance systems of host states during their period of residence

However, Union citizens (and family members) who have been lawfully and continuously resident in host state for 5 years become ‘permanent residents’: they no longer need to satisfy conditions relating to economic activity and/or financial independence; they enjoy full rights to equal treatment; and enjoy enhanced protection against expulsion on grounds of public policy / security / health.

It is argued that the acceptance of a generalised right to free movement was made possible because of the introduction of Union Citizenship by the Maastricht Treaty.

1. What does Article 20(1) TFEU outline in relation to EU Citizenship and those economically active/inactive utilising FMP?

2. And Article 21(1) TFEU?

3. And Article 22-24 TFEU?

4. What must all of these statutes read in light of Article 18 TFEU?

Article 20(1) TFEU makes it absolutely crystal clear that the rules of nationality of a member state are decided exclusively on member states who is a citizen and the only connection to EU law is if you are a citizen of a member state and therefore you are an EU citizen.

Article 21(1) TFEU is a generalised freedom of movement, reinforces Article 45 for workers, or the Citizenship Directive, where every citizen of the Union has the right to move and reside freely within the territory of the Member States, but this is subject to limitations of the treaty, and secondary law.

Article 22-24 TFEU allows EU citizens the right to vote and stand in municipal elections, vote and stand in EP elections in the MS they reside and to enjoy diplomatic protection from any MS outside the EU, if their own MS cannot do so.

All of these rights must be read in conjunction with the requirement of non-discrimination on the basis of nationality as per Article 18 TFEU.

1. What is known as the first stage identified by Spaventa the ‘market citizen’ phase and what is it characterised by?

2. How does it relate to the relevant case law of this era, such as

   • Surinder Singh and

   • Levin?

The Market Citizen phase predates the introduction of Union Citizenship in the Maastricht Treaty.

There was a broad interpretation of economic migrants’ rights beyond their role as an economic actor, such as (1) specific social advantages such as child benefits or disability payments, (2) rights of returning migrants, where migrants can take their spouse with them without having to comply with national immigration rules as in Surinder Singh.

It focused on the residency model, where the FMP was seen as opportunities enhancing individual wellbeing as per Levin.

What is known as the second stage identified by Spaventa the ‘constituent’ phase, what 5 factors characterise the ‘constituent’ phase and how does it relate to case law such as Grzelcyzk, Baumbast, Maria Martinez Sala and Zu and Chen?

It follows from the innovations in the Maastricht Treaty

Court pursued ambitious vision of the nature of Union Citizenship, such as in Grzelcyzk where Union Citizenship is destined to be the fundamental status of nationals in MS, therefore Article 21(1) TFEU has direct effect.

Conscious attempts by the courts to free citizenship (and integration project) from its market roots, as in Baumbast where there was no need to exercise an economic activity to access EU Citizenship status.

• Expansion of rights of Union citizens BEYOND what is EXPLICITLY conferred by secondary legislation, as in Grzelcyzk and Baumbast where the initial requirements for economically inactive citizens such as ‘health insurance and sufficient resources’ are tested in light of principle of proportionality (MSs now urged to take personal circumstances of citizens into account)

• Maria Martinez Sala concluding that Article 21 TFEU gives rise to EU protected principle of non-discrimination as per Article 18 TFEU even if the basis of citizen’s rights weren’t conferred under exercising EU law’s FMP.

• Zu and Chen concluded that there was an obligation not to render Article 21 TFEU ineffective.

The cases of Grzelcyzk, Baumbast, Maria Martinez Sala and Zu and Chen are all characteristics of the ‘constituent’ phase, what is their context and outcome?

Grzelcyzk → He was a French student and was denied a minimum subsistence allowance in his fourth year because he was not Belgian, despite having supported himself previously. The Court found this constituted unlawful discrimination under the Citizenship Directive. While member states can require students to have sufficient resources to reside, they cannot automatically deny social assistance, as there is a "certain degree of financial solidarity" between nationals of a host Member State and other Union citizens. The ruling affirmed that lawful residence + citizenship = right to equal treatment regarding social assistance.

Baumbast → A German national worked in the UK, but his family's residence permit was denied renewal after he moved to work in third countries, rendering him economically inactive in the UK. The UK Home Office denied the renewal, arguing he was no longer a worker. The issue was whether could a citizen of the Union who is no longer working, but has comprehensive insurance and resides in another Member State, rely on EU law for residency? The Court held that children of a migrant worker have the right to continue their education in the host Member State, even after the parent stops working. This solidified EU citizenship as the "fundamental status" of individuals, empowering them to rely on free movement rights (Art 21 TFEU) independent of their status as an "economic worker".

Maria Martinez Sala → A Spanish national was residing in Germany and was unemployed. She applied for a child-raising allowance but was denied by the Bavarian authorities on the grounds that she was not a worker and did not have sufficient resources to claim a right of residence in Germany. The Court of Justice held that Ms Sala should have got the allowance, because it was discriminatory to require an EU citizen produce a residence permit which the national did not need to provide.

Zu and Chen → An Irish-citizen infant was born in Northern Ireland to a Chinese national mother in order to circumvent China's one-child policy, Mrs. Chen moved to Belfast to give birth, acquiring Irish citizenship for her daughter The pair then sought to reside in the UK. The UK Home Office denied the application, arguing the child was not "exercising Treaty rights" and was a "purely internal situation". The ECJ held that an EU citizen child has the right to reside in a member state regardless of age, and the right to reside is not dependent on being a worker; it depends on having sufficient resources and health insurance (satisfied here by private insurance and parents' wealth).

What did Thym say in regards to the transition from residency model to the integration model within the ‘constituent’ phase?

This is one of the first signs of a transition from residency integration to integration model as per Thym.

Thym stresses the central role of social cohesion in democratic societies and thus ‘makes access to social benefits conditional upon the fulfilment of certain prerequisites without which equal treatment will be denied.’

What is known as the third stage identified by Spaventa the ‘consolidation’ phase, what 6 factors characterise the ‘constituent’ phase and how does it relate to case law such as Rottman, Tjebbes and Others v NL, Commission v Malta and Zambrano?

There is the codification of the case law of the Court in Citizenship Directive 2004/38.

There are more predictable rights for economically inactive people. HOWEVER, the court in clarifying the interpretation of case-law expands the material and personal scope of EU law by impinging on national prerogatives of citizenship conferral or by applying it to economic benefits of mobile citizens and collapsing the territorial scope by removing the ‘wholly internal situation’.

• Expansion and contradiction of previous precedent, such as within (1) exportability of benefits for non-economically active citizens contrast Nerkoska with earlier case of Even, (2) chipping away at personal scope aka impining on national prerogatives of national conferral contrast earlier cases of Micheletti with cases of Rottman, Tjebbes and Others v NL.

• Expansion of the scope of EU law to nationality acqusition, such as in JY and Commission v Malta

• Expansion of the remit of non-internal situations, direct effect of Article 20(2)(a) TFEU in wholly internal situations as in Zambrano

The cases of Zambrano, Commission v Malta, Rottman, Tjebbes and Others v NL and Zambrano are all characteristics of the ‘constituent’ phase, what is their context and outcome?

Zambrano → A Colombian couple in Belgium had children who gained Belgian citizenship, but the parents were denied work permits and threatened with deportation. The CJEU held that even if the situation is entirely within one country (no cross-border movement), EU law applies if the decision deprives an EU citizen of their rights

Commission v Malta → Malta’s "Citizenship for Exceptional Services by Direct Investment" and “Investor Programme” allowed foreign nationals to obtain citizenship in exchange for significant, pre-determined investments (€600k-€750k+), a residence requirement (12–36 months), and due diligence. The CJEU found the schemes was deemed contrary to Article 20 TFEU (Union Citizenship) and Article 4(3) TEU (Sincere Cooperation). The CJEU ruled that EU citizenship is a "special relationship of solidarity and good faith," which cannot be commercialized or "sold" without a genuine, substantive connection to the country. The ruling restricts Member States' traditionally exclusive competence to determine citizenship rules when those rules jeopardize the integrity of the Union, its security, and the rights of other Member States.

Rottman → An Austrian national obtained German nationality by naturalization in 1999. While applying for German citizenship, Rottmann failed to disclose that he was under investigation for serious professional fraud in Austria. Under Austrian law, acquiring German citizenship led to the automatic loss of his Austrian citizenship. When German authorities discovered the fraud, they began proceedings to revoke his naturalization, which would render him stateless. The CJEU confirmed that although nationality is a matter of national law, when naturalization results in the acquisition of EU citizenship, the withdrawal of that naturalization falls within the scope of EU law. The national authorities must consider if the withdrawal is justified relative to the gravity of the offense, the time elapsed, and whether the person can regain their original nationality. Rottmann established that Member States cannot act with unfettered discretion in matters of nationality if it violates the rights conferred by EU citizenship.

Tjebbes and Other v NL → Dutch law provided that citizens with dual nationality lost their Dutch nationality (and thus EU citizenship) if they resided outside the Netherlands/EU for 10 consecutive years. The CJEU held that while Member States can regulate nationality, the automatic loss of nationality leading to loss of EU citizenship must allow for an individual assessment of the consequences and required proportionality to assess whether the loss of citizenship has severe consequences for the person’s family or professional life, and individuals must have the opportunity to request to recover their nationality if it was lost disproportionately.

Shuihbne discussed the AG Sharpston’s opinion on Zambrano, what was her personal reasonings on the direction of EU law following Zambrano and 4 observations of AG Sharpston’s opinion?

Shuibhne analysed the opinion of AG Sharpston, highlighting 3 key points -

1. Challenging the "Purely Internal" Rule → AG Sharpston’s interrogation of the long-standing rule that EU law only applies to situations involving cross-border movement and argued that the "purely internal" doctrine was becoming unsustainable, since EU citizenship rights should not depend on trans-frontier movement.

2. Citizenship as a "Fundamental Status" → The central theme of the argument was that Union citizenship should be a "true citizenship" carrying a uniform set of rights and obligations. Sharpston’s famous observation that "when citizens move, they do so as human beings, not as robots," means they have families and social lives that must be protected. Consequently, citizens should not be viewed merely as "resources" for economic production.

3. Roots of the "Genuine Enjoyment" Test → Shuibhne argues that the Court's final decision was grounded in AG Sharpston’s reasoning. Specifically, the Court adopted the principle that Article 20 TFEU precludes national measures that deprive citizens of the "genuine enjoyment of the substance of the rights" conferred by their status as Union citizens.

4. Integration of Fundamental Rights → Sharpston argued two following factors, (1) fundamental rights, such as the right to family life and the best interests of the child, must "permeate the substance of EU citizenship rights" AND (2) EU law should address "reverse discrimination", where "static" citizens are treated worse than those who have moved, if a fundamental right is violated and no national remedy exists.

What is known as the fourth and final stage identified by Spaventa the ‘reactionary’ phase, what 4 factors characterise the ‘reactionary’ phase?

1. Shift from rights-opening to rights-curbing assessments of citizenship rights, characterised by 3 aspects → (1) hardening and generalisation of conditions, limits and duties, (2) disregard for treaty requirements AND (3) supremacy of secondary law.

2. Overall trend of minimalist interpretation, centrality of national link of ‘belonging’, reaffirmation of the responsibility of the state of origin for their economically vulnerable individuals as a result of the enormous reaction to Zambrano.

3. The collective dimension of national solidarity then takes priority over individual welfare expectations.

4. Clear shift from any residual ‘residency’ model to a strict ‘integration model’.

Spaventa discussed the trend and approach within the ‘constituent’ and ‘consolidation’ phase and how this changed within the ‘reactionary’ phase of the EU Citizenship Model?

In the consistuent and consolidation phase, “the residency directives ONLY formed the floor of rights available to Union citizens: the upper limit was determined directly through the application of the Treaty provisions.”

• Hence, Baumbast and Grzelczyk could all claim a right to residency directly from Article 21 TFEU, thus any restrictions on their residency had to satisfy general principles, such as proportionality and fundamnetal rights scrutiny.

In the reactionary phase, “the directive becomes floor AND ceiling of rights […] scope of union citizenship is dependent on satisfying criteria contained in Citizenship Directive […] fundamental rights are no longer applicable until when the claimant demonstrates they have met all those requirements, and there is no analysis of impact of state actions on the right to family life of the claimants.”

The cases of McCarthy, Dereci, Ymeraga, Alopka are all attempts to backpedal from Zambrano and they are all characteristics of the ‘reactionary’ phase, what is their context and outcome? And how does Chen and Zu contrast to Alopka, does this raise concerns?

McCarthy →McCarthy was a dual British-Irish national and lived her entire life in the UK. She married a Jamaican national who lacked leave to remain in the UK. The CJEU ruled that Article 21 TFEU (free movement) does not apply to a citizen who has not exercised that right. Therefore, Directive 2004/38/EC did not give her husband a right to live there. The ruling confirmed that the EU's "purely internal" rule continues to exist, preventing citizens from using EU law in their own home country without ever moving.

Dereci → The case involved five Turkish nationals who sought to live with their EU family members in Austria, a country they had never left. The CJEU ruled that Article 20 TFEU does not prohibit a Member State from refusing residency to a third-country national, provided that the refusal does not force the EU citizen to leave the whole EU territory. The key test is “whether a refusal creates a situation where the EU citizen is deprived of the genuine enjoyment of the substance of their rights”, and the CJEU clarified that the mere desire to keep a family together, or financial hardship, is not enough to entitle a family member to reside, if they can still reside elsewhere, even if family life is disrupted. Dereci reaffirmed that Zambrano applies to "exceptional circumstances" rather than ordinary cases where a non-EU spouse is refused entry, limiting the application of EU law to purely internal, non-moving EU citizens.

Ymeraga → A Luxembourg citizen (holding dual Albanian nationality), sought to bring his non-EU family members (siblings/parents) to reside with him in Luxembourg. The CJEU found that refusing residence to family members does not breach EU law unless that refusal forces the EU citizen to leave the territory of the Union, effectively depriving them of the "genuine enjoyment of the substance of the rights" of citizenship, and because Ymeraga never moved to another EU state, Directive 2004/38 (residence rights) did not apply. The CJEU reemphasised national competence, since situations involving a union citizen who has never exercised their right of free movement cannot be considered to be implementing EU law, meaning national law, rather than the EU Charter of Fundamental Rights, applies, and that Luxembourg’s refusal was upheld unless it caused the EU citizen to leave the Union and found that the refusal did not meet the high threshold of forcing him to leave.

Alopka → A Togolese national lived in Luxembourg with her twins, who were French (EU) citizens, but she lacked sufficient resources and was denied residency. The question was whether a non-EU parent could rely on her children's EU citizenship (Article 20 TFEU) to stay in a Member State when the family was not self-sufficient and had not exercised freedom of movement? The CJEU found that in cases where the Union citizen children have never exercised their right of free movement, the matter generally falls outside the scope of Directive 2004/38/EC, and a derived right of residence for the mother only exists if the refusal would force the children to leave the EU entirely, thereby depriving them of the "genuine enjoyment" of their citizenship rights, however the children could move to France (their country of nationality) with their mother, therefore staying in the EU. → Contrast Alopka to Chen and Zu (difference in wealth, and exercising of FMP which led to a differnet outcome in Chen and Zu, whilst Alopka was not self-sufficient, didn’t exercise FMP - fundamental rights access based on being economically active and valuable workers, reverse discrimination AG Sharpston discussed in Zambrano)

The cases of Rendon Marin, Thai Mother and RH outline that the Zambrano exception only applies in the narrowest of cases and the cases are characteristics of the ‘reactionary’ phase, what is their context and outcome? How does McCarthy compare to RH, why is this contrast problematic?

Rendon Marin → Mr. Rendón Marín is a non-EU national, and he had sole custody and primary care of his two minor children, one with Polish nationality (EU citizen) and one with Spanish nationality (EU citizen). The Spanish authorities denied him a residence permit and ordered his expulsion solely because of his criminal record. The issue was that the refusal of a residence permit meant the minor EU children would likely be forced to leave Spanish territory and thus the EU, effectively stripping them of their rights as Union citizens. The Court ruled that EU law (specifically Article 20 TFEU in the Citizenship Directive) precludes national legislation that mandates an automatic refusal of a residence permit based on a criminal record for a primary carer of an EU child, arguing that proportionality (asssessing if there is a 'genuine, present and sufficiently serious threat’) should be used to evaluate the risk the person poses on a case-by-case basis, considering the best interests of the child, rather than enforcing automatic expulsion.The ruling extended the principles of the Zambrano case, ensuring that children are not compelled to leave EU territory.

Thai Mother → A Thai national was married to a Dutch national, and they had a child born in Thailand. The child is a Dutch citizen, but lived in Thailand from birth and never resided in the EU. The mother lived in the Netherlands, while the child was raised in Thailand by the grandmother. Following the divorce and revocation of her residence permit, the Thai mother was ordered to be deported. She argued this would prevent her child from exercising his right to live in the EU. The CJEU concluded the fact that the child has always lived outside the EU does not prevent the application of Article 20 TFEU and that refusal of residence for the TCN parent can violate the child's rights if it effectively denies the child access to the EU as a whole. HOWEVER, the national court has to determine whether was a ‘factual relationship of dependency’, and whether it was likely the child would exercise right to FM and reside in NL. A derived right of residence (granted to a TNC parent of an EU citizen child) depends on the actual, direct relationship of dependency between the child and the TCN parent.

RH → The CJEU hypothetically accepts the possibility of dependency between adults, but is clearly conditioned by the fact that the applicants have independent resources and will not burden the public purse → (contrast with McCarthy who was not in employment, was not self-sufficient, and was in receipt of state benefits at the time of her application.)

How were job-seekers and welfare recipients treated within the ‘market citizen’ phase as per Lebon and Antonissen?

• Lebon → There was equal treatment with regard to social and tax advantages, this only applied to workers. However, those who move in search of work qualify for such equal treatment only as regards to access to employment.

• Antonissen → 6 months was provided to look for work, and the host MS must allow the person to stay there in residency for 6 months

How were job-seekers and welfare recipients treated within the ‘constituent’ phase within Article 14(4)(b) CD and as per case law Collin and Loannidis?

Article 14(4)(b) 2004 Citizenship Directive outlined the work seeker can stay as long as there is ‘genuine chance of being engaged’.

Collins → The claimant was an Irish national in the UK who claimed job-seeker allowance, but was refused because he was not habitually a resident in the UK. The CJEU distinguished between (1) workers who are putative workers such as jobseekers, and (2) workers who are in employment, and thus entitled to equal treatment with nationals in access to tax and social advantages. The CJEU expanded the concept of Citizenship by outlining that MS can require a ‘genuine link’ with the labour market based on residency requirement, but has to be proportionate

Loannidis → This case emphasised that the job-seeker ‘needed to demonstrate a certain degree of integration into society of the host state’

How were job-seekers and welfare recipients treated within the ‘consolidation’ phase as per case law Brey?

Brey → German national moved his residency to Austria as a retiree, arriving as a person of independent means and satisifed those requirements. The Germans contested the retirement payment and they didn't pay it, therefore B received less money, despite noticing that Austrian retirees obtained the same payment from their own government and sought to apply for it. The Austrian Government rejected this argument, claiming that he is financially independent and that he could not be a burden on the finances of the HS and therefore, could not satisfy the requirements of the directive. The CJEU reprised Grzelczyk, asserting that MSs had accepted an ‘implicit level of financial solidarity’ and held that simply lacking sufficient resources under Citizenship Directive does not justify immediate exclusion from benefits. Instead, authorities must examine the claimant's personal situation, including the amount of aid, duration of residency, and burden on the overall system.

How were job-seekers and welfare recipients treated within the ‘reactionary’ phase as per case law Dano, Alimanovich, Commission v UK and CG?

Dano → A Romanian national lived in Germany with her sister, did not look for work, and had never worked there, relying on child benefits. She was refused basic jobseeker benefits, which she challenged. The CJEU held that Member States are allowed to refuse social assistance to economically inactive EU migrants to protect their welfare systems from becoming an "unreasonable burden". Therefore, under Citizenship Directive, for residence longer than 3 months, individuals must have sufficient resources and comprehensive sickness insurance to avoid being a burden. Because Ms. Dano did not meet the conditions for legal residence (since she lacked sufficient resources), she could not claim the right to equal treatment regarding social benefits → Contradiction of Maria Martinez Sala

Alimanovic → Ms. Alimanovic and her children (Swedish nationals) worked briefly in Germany (<1 year), then were unemployed for over six months and sought social assistance. The CJEU ruled that under CItizenship, those who work for less than one year retain "worker" status for only six months after losing their job. After six months of unemployment, they can be excluded from social benefits even if the host state doesn't perform an individual assessment of their burden on the system. The judgment narrowed the scope of equal treatment regarding welfare access, limiting it for jobseekers and former short-term workers, and strengthened Member States' ability to protect their social systems from "benefit tourism.

Commission v UK → The European Commission alleged that the UK's "right to reside" test for claiming benefits was discriminatory against non-British EU citizens. The CJEU ruled that the UK could legally withhold certain social benefits, specifically child benefit and child tax credit, from EU migrants who did not possess a lawful "right to reside". The Court found that, while this constituted indirect discrimination, it was justified to protect the host state's public finances.

CG → A Dutch-Croatian single mother living in Northern Ireland, holding pre-settled status (PSS) but not meeting the "right to reside" criteria of Directive 2004/38/EC (not working, no self-sufficiency). The CJEU concluded that PSS holders in this situation cannot rely on Article 18 TFEU for equal treatment because they do not satisfy the criteria of the Citizenship Directive. However, as the UK had given CG residency rights under domestic law, this still triggered Article 21(1) TFEU and the host MS had to make sure the principles in the CFREU were respected, especially human dignity and the rights of the child.

What are the implications of the Dano on subsequent past cases such as Martinez-Sala, Levin, Brey? What did these past case laws establish, and what did Dano change?

1. The end of Martinez-Sala → Within Martinez-Sala, EU citizens could rely on host state legal residency to trigger non-discrimination entitlement as per Article 18 TFEU, however now under Dano, such persons can only enjoy equal treatment with the nationals of the host MS under Article 24(1) CD. Article 24(2) CD provides for specific, limited derogations from the principle of equal treatment (e.g., social assistance for job seekers), which are interpreted strictly by the court, whilst Article 18 TFEU acts as a foundational principle.

2. The end of Levin → In Levin, motives for moving were not relevant (Levin was a chambermaid paid below the minimum wage in Netherlands in order to obtain family reunification with her TCN husband), but now with Danos, there will be focus on intention and no proportionality test, as there is an assumption that Danos never intended to work and instead moved to receive welfare.

3. End of Brey? → In Brey, the court concluded that the requirement of ‘overall assessment of the specific burden on the national social assistance system as a whole’ which imposed a high threshold on host MS to deny social welfare to not economically active - therefore, Austria had to prove specific burden as a whole in allowing Brey to receive Austrian pensions after having his German pension contribution revoked. However in Dano, this requirement is not mentioned, therefore host MS don’t have a high threshold in order to prevent someone receiving welfare.

What are the implications of the Alimovich on subsequent past cases such as Brey and Grzelczyk? What did these past case laws establish, and what did Alimovic change?

Brey → In Brey, the court concluded that the requirement of ‘overall assessment of the specific burden on the national welfare system as a whole’ which imposed a high threshold on host MS to deny social welfare to not economically active - therefore, Austria had to prove specific burden as a whole in allowing Brey to receive Austrian pensions after having his German pension contribution revoked. HOWEVER, there is no need for individual/proportional assessment and was dismissed in Alimovic and ‘assistance awarded […] can be described as an unreasonable burden for a MS within the meaning of Article 14(1) CD’

Grzelczyk → In Grzelczyk, there was emphasis on Union Citizenship is destined to be the fundamental status of nationals of the MSs, emphasising the ambitious vision of the nature and significance of Union Citizenship, and there was emphasis of ‘implicit level of financial soldarity’ that MSs accepted that made citizens entitled to state assistance, which was reinforced in Brey. However, in Alimovic, there is no reference in the judgment to ‘EU citizenship as fundamental status’ and it was argued that ‘the need to protect the finances of the host MS justifies the possibility of checking whether residence is lawful when a social benefit is granted to persons of another member state who are not economically active’.

Maria Hagg discusses the consequences of the Dano and CG judgement, what did Hagg argue? How could the CJEU avoided the CG judgment in two ways, and the 3 consequences arising from the CG ruling?

Hagg believed that the CJEU’s interpretation of right to equal treatment narrow, severely limiting the protection of the broader EU population, arguing that CJEU has ‘hollowed out’ the primary right to equal treatment under Article 18 TFEU by reverting back from Martinez-Sala, concluding that a union citizen granted a right to reside only under domestic law cannot rely on Article 18 TFEU, but instead on the secondary right to non-discrimination within Article 24 CD. This means a union citizen does not enjoy equal treatment on the territory of the host state.

Hagg argues that the CJEU could have avoided this approach through two options

1. aligning with AG de la Tour by concluding the claimant has lawful right to reside as per Article 37 CD and would benefit from Article 24 CD, as a neat proposal that does not require CJEU to change its’ settled case law that Article 18 TFEU is a general right that does not apply if there is a specific rule of equal treatment, such as Article 24 CD

2. However, Hagg proposed that in a case like CG’s where the Citizenship Directive does not apply, she should be allowed to fall back on Article 18 TFEU as per the previous interpretation of the CJEU in Martinez-Sala.

Hagg argues there are consequences such as

1. the union citizen being denied the ability to enjoy both primary and secondary rights to equal treatment,

2. the EU’s citizen’s equal treatment protection starts and ends with the CD,

3. even if CG is not deprived from EU law protections, such as CG cannot be refused social assistance if the rejection would breach her EU Charter rights, but Hagg argues this would not benefit a claimant with no sufficient resources and no favourable residence under national law, and that the Charter does not ofer wide scope of protection, but also applicable to a set group of people granted right to reside under ddomestic law.

What does Spaventa say regarding the effects and the implications of the reactionary phase? What were Spaventa’s three points?

The reactionary phase is a retreat from the court’s original vision of citizenship in favour of minimalist interpretation, which affirms the centrality of the national link of belonging and positing the responsibility of the most vulnerable in society with the state of origin.

The promise of union citizenship ‘exploded’ the traditional links of belonging pre-assigned rather than chosen, in favour of a more fluid concept where belonging is regard to actual links established by the person […] is much reduced

Besides workers, and economically active citizens, the fundamental status is to be enjoyed only by mobile, healthy and wealthy migrants.

What does Shuibhne say regarding the effects and the implications of the reactionary phase? What are the two points Shuibhne makes?

Union citizenship looks less like a status rooted in rights and more like an increasingly qualified privilege […] where restrictions are not provided for.

The conventional approach to conditions, limits and duties still applies for certain categories of citizen, especially for those economically active […] contrasted to the tolerated citizen who is not expelled from the host MS but is not supported there either, who might be a lawful resident under national or EU law beyond the directive but is excluded from permanent resident rights, or who many have resided in a host MS for many years, but nevertheless excluded from enhanced protection against expulsion.

In what regards is the reactionary phase not consistent across all areas of EU citizenship? How does this relate to Tjebbes and others v NL, JY and Commission v Malta? How do these following cases relate to the residency to the integration model?

The court does not appear to retreat with regards to restricting the personal scope of the EU citizenship.

Tjebbes and others v NL and JY further expand Rottman on the limits of withdrawal of MS nationality.

Commission v Malta pushes the scope of EU law even further, subjecting both acquisition and loss of nationality to EU law.

The insistence on genuine links/relationship of solidarity in Tjebbes and Others v NL and in the Commission v Malta echoes the ratio of the integration model, but expansion of EU competence (against interpretation of Article 20 TFEU and the TEU declation n.2 on nationality of a MS) is reminiscent of the drive underpinning the residency model.

Is there privileging ‘market citizenship’ over all others? And how does this relate to the Jobcenter Krefeld and how it contrasts to Dano? And the GV case?

Only the case law on union citizenship is reactionary, the case law on ‘market citizen’ continues to be expansive, teleological and rights-orientated.

• As in Jobcenter Krefeld, the claimant was a Polish national residing in Germany with children and worked in Germany, then became a jobseeker, causing the Jobcenter to stop benefits. The issue was whether a parent whose residence depends on their child's education (Article 10) loses the right to equal treatment regarding social assistance upon losing worker status. The Court ruled that the right to equal treatment under Article 7(2) of Regulation 492/2011 persists, protecting families of former migrant workers and reinforcing the child's right to education.

• Contrast with Dano, EU Member States can refuse social benefits to economically inactive EU citizens who move to another Member State solely to claim welfare. The court ruled that such individuals like Dano, lacking sufficient resources, do not have a right of residence under Directive 2004/38 and can be denied equal treatment regarding special non-contributory benefits.

In internal market cases, the CJEU continues to pursue a strong ‘market citizen’ agenda, however there is possible future spillage from the non-economically active FM rights - could this lead to FM rights for the economically active conditioned by ‘value’ of their economic contribution? This is because since 2018, judgements have emphasised that rights granted to a EU worker (especially in social advantages) have to be earned by their tax and social security contributions as in the GV case)

Spaventa discusses the Zambrano ‘substance of rights’ doctrine, what is her view on this and what does it mean?

What is the Zambrano ‘substance of rights’ doctrine?

The Zambrano substance of rights doctrine prohibits Member States from adopting measures—such as refusing residency or work permits—that deprive EU citizens of the "genuine enjoyment of the substance" of their rights.

What is Spaventa’s stance on the doctrine?

• The open nature of the substance of rights test is deemed to become problematic.

• The scholarship has struggled to define the ‘substance’ of Union citizenship rights since its inception.

• It is difficult to know which of the rights granted by the Treaty are, in the courts opinion, the core rights the limitation of which would trigger view.

• And even should the doctrine be limited to those cases in which EU citizens would be forced to leave the territory of the EU, what is the standard of proof required?

What is the aftermath of the input and output concerns around EU citizenship despite the reactionary attitude in the court?

• The EU and CJEU is still plagued by OUTPUT and INPUT

• The dynamic of OUTPUT and INPUT is exacerbated by a general domestic shift from welfare to workfare as per Sankari and Frerichs

• OUTPUT and INPUT will continue in face of lack of further integration in social and welfare areas, as well lacking of harmonisation of fiscal policies, which leads to the failure of the ‘transnational social citizenship model’

• Shift to a residency model acts as a palliative to the OUTPUT and INPUT dichotomy without addressing it

• Vagueness of EU primary and secondary law leads to controversial judicial ‘vaccum filling’

• No demos argument which leads to fragile legitimacy of the CJEU

How do Ibrahim and Alimanovic vary especially in relation to the residency and integration model? And what does Thym state?

FMP rules are split between the residency model for the economically active and an integration model for the non-economically active as per Thym.

Did the court apply a residency model to Ibrahim, and an integration model to Alimanovic?

• Ibrahim → Ms. Ibrahim (Somali national) married a Danish citizen working in the UK. The husband ceased working, and they separated. Ms. Ibrahim and her children were denied housing assistance by Harrow Council, arguing they lost their right to reside under EU law because the husband was no longer working. The court held that the right to education is not contingent on the parent remaining a worker. The child's right to education creates a "derivative" right of residence for the primary carer. If the parent/carer was forced to leave, the child would be unable to exercise their right to education.

• Alimanovic → Ms. Alimanovic and her children (Swedish nationals) worked briefly in Germany (less than a year), lost their jobs, and sought long-term unemployment benefits (Arbeitslosengeld II) after more than 6 months. The CJEU ruled that, under Directive 2004/38/EC, EU citizens who are not working can be excluded from "special non-contributory cash benefits" (social assistance) to avoid being an "unreasonable burden" on the host state's social system. As they had worked for less than a year, the claimants lost their "worker" status after 6 months of involuntary unemployment. Therefore, they lost their right to equal treatment regarding social assistance.

What does Carter state in relation to FMP?

Increasingly, only the employed, rich, educated or retired will be able to exercise free movement.

Is this a retreat to the 90s sectoral approach? Is this because of a commodification of labour, whereby only ‘economically vaulable work’ benefits from FM protection?

What do Jesse and Carter state in relation to FMP?

They stated that rules on FMP are converging, are we going for an integration plus model driven by neoliberal free market economics where integration is measured by economic contribution to social cohesion - only only substantial contributions qualify?

Shuibhne examines the courts’ shift and the EU citizenship contoversy as a symptom of another illness, what did she argue?

Law may well be “the product of ages wrapped in the opinion of the moment”

But the dominant opinion of the moment - that most citizens who exercise FM rights are a burden and that most citizens who are not economically active have no intention of being so and deliberately abuse EU law - is hardly a representative or well-evidenced truth.

Actors involved need to respond to the concerns of the population, whilst also evading the pitfalls of scapegoating inherent in many policy responses to migratory phenomena.

Who is standing up for EU citizens and for the rights that the Treaty confers on them now?

Barbulescu and Favell examines the courts’ shift and the EU citizenship contoversy as a symptom of another illness, what did they argue?

They argue that the Brexit process also played a part in crystallising this ‘illness’ as in -

• It has become easier to assimilate unwanted ‘low end’ EU migration to unwanted or unsustainable ‘EU immigration’.

• After Brexit, MS may indeed have hit upon a remarkable solution of preserving a denuded notion of ‘EU citizenship’ without the social rights intended to protect the most economically vulnerable.

• European Citizenship has come at the cost of sacrificing access to social rights for those mobile Europeans most in need.

Barbulescu and Favell examines the courts’ shift and the EU citizenship contoversy as a symptom of another illness, what did they argue?

The involution of EU citizenship simply reflects national trends already at play -

The exclusion from social rights of certain ‘unwanted’ EU nationals provides legal and policy likely to enable states to single out and exclude other categories of national citizens whose ‘non-discriminatory’ rights to welfare protection can be similarly questions.

What are some other arguments for the courts’ shift in a reactionary attitude?

The reactionary trend of the court is simply a reflection of national economic realities and debates that surround and condition the maintenance of social democracy goals in MS

What have the likes of Spaventa, Minderhoud and Mantu and Shrauwen identified within the EU case law on FMP and EU Citizenship, and the CJEU’s shift?

They identify a regressive shift in the case law of CJEU regarding the rights of economically inactive citizens.

• The "Benefit Tourism" Narrative: Despite a lack of empirical evidence that "welfare tourism" is a widespread problem, political rhetoric has successfully framed mobile citizens as "abusers" of welfare systems.

• Shift from Treaty to Directive: The CJEU has moved from an expansive interpretation of citizenship (where rights were derived directly from the Treaty) to a regressive phase where rights are strictly limited to the conditions set out in secondary legislation, specifically Directive 2004/38.

• Erosion of Solidarity: The current legal trend suggests that solidarity is increasingly reserved for those who do not need it, as citizens who lack sufficient resources may find themselves excluded from both Treaty protection and fundamental rights.

• Judicial Deference: The Court appears to be "infiltrated" by political discourse, increasingly accepting "welfare magnet" arguments and showing deference to national protective reflexes over the goal of further integration.

Barbulescu and Favell focus on a citizenship without social rights in relation to EU freedom of movement and changing access to welfare rights, what is their overall argument and 4 core points?

They argue that the EU member states are engaged in a creeping process of retrenchment that is effectively dismantling the "post-national" dimension of EU citizenship. They contend that states have used policy strategies to undermine the principle of non-discrimination by reframing the "freedom of movement of persons" as just another form of "immigration" subject to sovereign control, selectivity, and exclusion.

The summary of their core 4 arguments includes:

• The Transformation of "Free Movement" into "Immigration" → Free movement was once understood as a unique form of spatial mobility tied to a cosmopolitan regional project. However, they argue it has been reframed as a burden on nation-states, allowing politicians to apply the same hostile restrictions used against conventional international migrants.

• A "Rump" Form of Citizenship: They suggest that a version of EU citizenship may be saved for the privileged and highly employable, but this comes at the expense of the most economically vulnerable Europeans who are losing their social rights.

• Implementation through "Tests" and Legal Rulings: In Germany, the state leveraged restrictive rulings from the CJEU (such as the Dano and Alimanovic cases) to justify removing welfare rights for jobseekers.

• Threat to National Citizenship: They warn that once states successfully exclude "unwanted" EU nationals from social rights, these same mechanisms may eventually be used to exclude vulnerable categories of national citizens, putting the historical progress of social protection in reverse.

Jo Shaw focuses on whether EU citizenship remains a fundamental status, what are her 3 key points?

Jo Shaw argues that EU citizenship is currently at a critical moment, facing significant pressures from both inside and outside the Union that challenge its designation as a "fundamental status". Her core argument centers on the paradoxical nature of EU citizenship: while it is formally constitutionalised in EU treaties, it remains derivative and dependent on national citizenship for its initial access.

Key components of Shaw’s argument include:

• Constraints on State Sovereignty: Shaw highlights that although member states nominally retain the power to determine who their citizens are, the CJEU has increasingly placed constitutional constraints on this power. She notes that national decisions to withdraw citizenship must be proportionate and subject to judicial review if they lead to the loss of EU citizenship rights.

• Europeanisation vs. De-Europeanisation: She explores the simultaneous processes of integration and disintegration. Shaw contends that EU citizenship is not a simple "top-down" construction but a product of complex, countervailing narratives where national and supranational elements constantly interact.

• The Existential Challenge of Brexit: Shaw views Brexit as a unique "de-Europeanisation" event that tests whether EU citizenship rights can survive a member state's departure. She explores whether the status has acquired enough "sticky" qualities through case law to persist/enough legal and social weight to survive in some form, despite the de-europeanisation process of Brexit.

Ultimately, Shaw suggests that EU citizenship is emerging as an autonomous constitutional status that may continue to influence political negotiations and state actions in unexpected ways, even in the face of movements toward disintegration.