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With reference to the caselaw of the Court of Justice, analyse the role and relevance of the concept of Citizenship of the Union in applying the free movement of persons provisions of the European Union Law.


The European Union was in its initial stage premised on the idea of free markets. This idea had economic connotations and therefore, the emphasis was on free movement of workers and services. The idea was embraced by member states because this free movement of persons and services gave them greater access to human resources with skills that the host economy could benefit from. Ultimately the EU also came to recognise the concept of EU citizenship where a person who was a national of any state would also be a citizen of the Union.


Held’s definition of citizenship, provides three interconnected strands of the concept: (a) rights and duties (b) membership and (c) participation. 1 EU citizenship is seen in the context of these three strands.

Free movement of workers and services or goods pose different implications for host states. Free movement of people pose more sensitive implications for the host state. These implications may be related to welfare for the migrants, that would put economic pressure on the state. Increasingly, such implications may also be security related, where the migrants may be threats to the state’s security. In the post 9/11 world, greater security risks are seen in Europe and the recent attacks in Paris and Brussels evidence the greater risks posed to states because of open borders. Although these aspects do not directly form part of the essay, it is important to keep in mind the implications that are posed therein.

TThis essay examines the role played by the Court of Justice in evolving the jurisprudence on free movement of persons within the Union in the context of Union citizenship. The first part of the essay examines the EU law on citizenship and the provisions on free movement of persons. Then the essay studies the role played and the jurisprudence developed by the Court of Justice in this area. The essay posits that the Court of Justice is focussed on the removing of discriminatory and non discriminatory restrictions to freedom of movement.

European Union Law on Citizenship and Free Movement of Persons

The Treaty on European Union 1992 (Maastricht Treaty), which entered into force in November 1993, has given considerable importance to the idea of citizenship of the Union. Part Two of the treaty is entitled ‘Citizenship of the Union’, and the placing of the part is in itself indicative of the importance given to the concept of Union citizenship. Article 8 (2) of the Treaty provides “Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.” Article 8a (I) provides: “Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.”

Citizenship of Union is only for natural persons and legal persons such as companies and incorporated associations, do not enjoy this status. 2 As far as natural persons are concerned, such persons must be nationals of any one member state. Consequently, acquisition or loss of citizenship of any member state would automatically lead to the acquisition or loss of Union citizenship, as the case may be. This keeps the discretion of ultimately giving Union citizenship within the national legal systems, as whichever persons will be given national citizenships will be given Union citizenship. In that sense, the Union citizenship cannot be said to encroach upon the state’s competence to define the characteristics required for citizenship.

The Treaty on European Union and the Treaty on the Functioning of the European Union (TFEU) was mindful of the need for principle of non-discrimination on the ground of nationality, especially for economic migrants. Article 20 of the TFEU provides: “Every person holding the nationality of a member state shall be a citizen of the Union.” Articles 45-62 of TFEU specifically make provisions for the free movement of persons. The Union has been proactive about enacting legal provisions of free movement in order to encourage it in a continent which seeks a single market. But the continent is so diverse in language and culture, that this may hinder the movement of people. Thus the need to encourage movement of people and services. This is clear from the original idea behind the TFEU, articles 45-62, which was to ensure the free movement of the so- called ‘factors of production’, i.e., workers, self-employed and service providers. The logic was that factors of production should have ease of movement from those areas that did not have work to those areas that did have work, but lacked workers. 4 Member states were in a position to gain from these provisions because they had access to skilled labour and service providers, which was beneficial to them economically. Economic criteria and social rights are also interrelated in the Union. The lex loci laboris principle has been adopted within the Union to provide that the social rights and obligations of a person are determined by the law governing the territory where he works rather than the law governing the territory where he resides. Ultimately the lex loci laboris principle has

been found to be the most fitting with the Union’s objectives. 5 These objectives include the creation of a European internal market, which intrinsically needs free movement of workers. In 1990, the Union adopted three directives conferring the general right of freedom of movement for the retired, students and persons with independent means. The only qualifications on this freedom was that such persons should have independent resources and medical insurance, so that they do not become burdens on the host economy. This signalled a major shift from the earlier perceptions that there ought to be a link between migration and economic activity.

In Martinez Sala v Freistaat Bayern 7 the Court of Justice held that Article 21 (1) TFEU is a ‘primary right’. 8 The Court held that justification for equality of treatment between nationals and non-nationals residing in Germany is based on the legal status of Union citizens, which is guaranteed to a national of any Member State living in another Member State. A refusal by the authorities of a Member State to grant to a citizen of the European Union a benefit which was granted to all persons lawfully resident in the territory of that Member State on the grounds that the claimant was not in possession of a document which nationals of that same State were not required to have constituted discrimination directly based on nationality. 9 Article 21 is seen to be a provision that creates a right to move freely within EU without a link to economic activity, then there is something unique and novel about the provision. Once again, this indicates that due to Union Citizenship, the freedom of movement is not linked to economic activity and is not much beyond it.

The European Parliament and Council Directive 2004/38 signalled greater change and consolidated much of the jurisprudence of the citizen rights to move and reside freely within the Union. The basic premise of this Directive is that the longer a person resides in a state, the more rights he or she enjoys. 10 After the person has been in the host state for 5 years, the need to show any economic activity is also taken away. This is a vast contrast with the earlier perception of showing a strong link between migration and economic activity. The restrictions that are placed on this right are public policy, public security or public health. Sodersten says that that the right of member states to expel EU citizens from one member state to another on grounds of public policy or public security remains problematic from the perspective of Union Citizenship.

The Court of Justice: Jurisprudence

The jurisprudence developed by the Court of Justice is at the centre of the right to move freely in context of Union citizenship. While it is true that the European Union law leaves the discretion to the states as to acquisition or loss of nationality, the Court does have the powers of judicial review over the decisions of the states. In Rottman, 12 the Court of Justice observed that while the member states have the power to lay down the conditions for the acquisition and loss of nationality, the exercise of that power, in so far as they affect the rights conferred and protected by the legal order of the Union….is amenable to judicial review carried out in the light of the European Union Law.

Barnard argues that in recent times, the Court of Justice has moved beyond the discrimination model and returned to the language of the original article (3)(1)(c) of the EEC. The court has focused on removing discriminatory and non discriminatory obstacles or restrictions to freedom of movement. Furthermore, she says that this approach poses a greater threat to the legislative autonomy of states, but at the same time facilitates the creation of a single market where both persons and services can move freely.

Clearly, the objectives of the Union behind Union Citizenship and right to move freely were linked to economic conditions. However, the Union itself has sought to delink freedom of movement from economic factors and the Court of Justice has also in its jurisprudence linked Union Citizenship to a variety of rights that are not necessarily linked to economic factors of migration.

In Boumbast and R v Secretary of the State for the Home Department, 15 the Court recognised that all EU nationals have general right to move and reside freely in the Union. This right is only subject to such conditions and limitations as may be prescribed under EU law. In Grzelczyk 16 the Court observed:

Union citizenship is destined to be the fundamental status of nationals of member states, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such limitations as are expressly provided for.

In Collins v Secretary of State for Work and Pensions, 17 the Court considered TFEU, article 48. The question before the Court was whether a person having worked in a state 17 years ago, could seek employment in this state and apply for a jobseeker’s allowance. The Court decided that such a person would have to be considered as any person who was applying for a job at the host state for the first time. The right to residence as well (EU Directive 68/360) cannot be claimed as a right by such person and his family.

Here it is pertinent to mention Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department, 18 in which the Court of Justice had to consider a case regarding an infant daughter of a third country national. The child had not exercised her right to move freely in the EU and remained in the UK. The parent was not dependent on the child. The Court held that the child had EU rights which would be denied if the child was not allowed to move freely within EU and for that purpose the parent also had to be similarly allowed.

There is a difference between the two judgements of the court. In the first case, Collins was denied the right to claim the same benefits as citizens could have under the national law, because he did not work in the state in the immediate prior period to when the case was decided. Here the EU citizenship of the applicant also did not given him the access to such rights. In the latter case, a father belonging to a third country and not a EU citizen was allowed free movement within EU because his infant daughter (EU citizen) could not be denied this right. Another point of distinction is that in the latter case, the infant girl (and consequently her parent) is given the right to freely move, but not other rights that citizens of a host nation have access to. In the former case, the applicant is not denied free movement but cannot be given the other rights that he is demanding that are only accessible to those who have been working in the host state for some time.

As mentioned earlier, the right to freely move within EU is not an absolute right for EU citizens, and certain restrictions cam be placed upon such right. These fall within the discretion of the national legal systems. These restrictions are in context of public policy, public interest, etc. However, judicial review of such national actions have been done by the Court of Justice. In Commission v The Netherlands (criminal convictions), 19 the Court held that a state’s non application of EU Directive 64/221 to a foreign national but EU citizen, while ordering his expulsion from the state, is contrary to EU principles. This Directive provides the benefit of those substantive and procedural safeguards that are to be given to persons in that situation, whether they are lawful or unlawful residents of that state. The Court also said that “a previous criminal conviction can be taken into account only in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy.”

Generally, state’s competence to decide requirements for citizenship are not seen to be impeded by the concept of Union citizenship. In Kaur, 21 the Court of Justice upheld a British Declaration in 1982 22 , which excluded British overseas citizens and British Dependent Territories citizens from the right to freedom of movement. The Court saw the distinction between these mentioned categories of people and British citizens, or British subjects as compatible with the Community law.

In Ruiz Zambrano, 23 the European Court of Justice has decided that Mr. Gerardo Ruiz Zambrano, has a right to residence in Belgium without a work permit for employment as two of Mr. Zambrano’s children are Belgian nationals and therefore also EU citizens.

In Auer, 24 the Court of Justice held that for the purpose of application of the Community law, the question of the date and manner of acquisition of national citizenship was not relevant. What was relevant was that the person should have this citizenship at the time when he relies upon the Community law. In Gullung, 25 the Court of Justice held that it was irrelevant if a person has nationality of the state of residence as long as he had the nationality of any other Union state for him to claim rights as a Union citizen.


As is clear, the EU has come a long way in how the right of Union citizens to free movement within the Union is concerned. As the jurisprudence of the Court of Justice indicates, the Court is mindful of the EU rights in general when dealing with cases involving host legal systems and EU citizens from other states. EU citizenship is seen as an important pre condition for right to free movement within EU. However, where the right to free movement was hitherto linked directly to economic factors of migration, now the EU law in general and Court of Justice in particular, is delinking the free movement right from economic factors. The Court of Justice cases in the past years also indicate that the Court wants to focus on ensuring that EU citizens are not discriminated against in host states. The focus is on the free movement of EU citizens and the Court seeks to allow only those restrictions that are expressed in the EU law, i.e. public policy, public interest, etc. Even in such cases, the Court provides judicial review when such restrictions are seen as not applied by the host state as per the EU law. Moreover, after the delinking of the right to freely move from economic factors, the Court has become more proactive in ensuring that EU law remains the benchmark for deciding the EU citizen’s rights in host nations.


  • Barnard C, The Substantive Law of the EU: The Four Freedoms (4th ed., Oxford University Press 2013).
  • Cloots E, National Identity in EU Law (Oxford University Press 2015).
  • Condinanzi M, Lang A, Nascimbene B (eds.), Citizenship of the Union and Freedom of Movement of Persons (BRILL 2008).
  • Conway G, EU Law (Routledge 2015).
  • Södersten A, A Companion to European Union Law and International Law (John Wiley & Sons 2016).

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