Exploring obstacles in exercising core EU citizenship rights (D7.3)

Utrecht University researchers dr. Hanneke van Eijken LL.M and Pauline Phoa, LL.M have prepared a general report which provides a comparative and critical overview of the exercise of so-called core EU citizenship rights in selected Member States (Belgium, Denmark, France, Hungary, the Netherlands and Spain).1 Core EU citizenship rights include access to and loss of nationality (and thereby also the acquisition and loss of the EU citizenship status), the right to reside in a host Member State and in the Member State of nationality, the right to family reunification in a Member State for EU citizens, the right to free movement of EU citizens and the derogations to those rights: expulsion measures and abuse situations. Rules on nationality fall, in principle within the exclusive scope of competence of Member States. However, on the one hand the access to MS nationality opens up EU citizenship to TCN, or has consequences for migrated EU citizens and their children. On the other hand, the CJEU decision in the case of Rottmann (C-135/08) has made clear that the loss of Member State nationality may bring nationality laws within the scope of EU law, as it may also affect a person’s status as EU citizen. “Under international law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality” (par. 10). Nowadays it is clear that Member States have to take into account the outer limits of EU law in their competence to regulate nationality laws. The description of the nationality laws in the reported Member States do not always reflect an awareness on the side of the national authorities of the consequences EU citizenship rights for their nationality law. The EU citizenship right to freedom of movement and the right to reside in another Member State have been established in primary and secondary EU law for a while now, and the implementation of these rights into formal national law seem to be relatively unproblematic in most Member States. However, the answers to the questionnaire show that there is a significant gap between formal law and the actual operationalization of these rights in day-to-day (administrative and judicial) practice. Certain key concepts of EU citizenship rights, such as “sufficient resources”, are subject to differing interpretations in the different Member States, which is undesirable from the perspective of coherence and uniformity of EU law. Connected to the general EU citizenship right to free movement and residence, are the rights to family reunification, either with family members holding the nationality of another Member States, or with third country national family members. Such family members may have – under certain conditions – a right of free movement and/or residence that is derived from their EU citizen family member’s core EU citizenship rights. In this area of law, the national reports again show that there are disparities between Member States in the judicial interpretation and/or administrative application of concepts such as “dependent family member”, and “genuine relationship”, which may form obstacles to a full use of the opportunities that EU law offers. The EU Treaties and EU secondary legislation allow for certain derogations or limitations to the core EU citizenship rights of free movement and residence. Member States may take expulsion measures and measures preventing or punishing abuse of EU rights, under certain conditions. The national reports show that there are interpretive difficulties on these topics, and that there is a growing tendency to connect having insufficient resources with unlawful residence