The Evolution of Citizenship Adjudication in the European Union

In 1993, the Treaty on European Union (TEU), otherwise known as the Maastricht Treaty, entered into force and transformed the fundamental nature of what would henceforth be called the European Union (EU). Most visibly, the Maastricht Treaty was responsible for the creation of the Euro. In addition to major economic and structural developments, however, the Treaty explicitly heralded a change in the socio-political nature of the EU: for the first time in writing, the notion of European citizenship was born. The Member States “resolved to establish a citizenship common to nationals of their countries,” and they gave form to this aspiration in a newly created Part II of the Treaty, “Citizenship of the Union,” which comprises six articles on the nature, rights, and duties of citizenship.[1] The first introduces a concept of European citizenship common to all nationals of the Member States: “Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union.”2 The subsequent provisions confer further specific rights on EU citizens. This paper will focus on the first of these provisions, which grants citizens of the EU the right to free movement and residence. “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 laid down in this Treaty and by the measures adopted to give it effect.”3 At first glance, the declaration of citizenship seems a highly symbolic gesture, since it was unclear what legal and authoritative force these provisions could carry.4 Over time, however, the European Court of Justice (ECJ) was able to furnish the concept of citizenship with more substantial content, pushing the case law in a direction that the Member States could not have predicted.

This paper will show how, since the beginning of citizenship adjudication, the ECJ has shaped the creation of the supranational citizen and, through its case law, expanded Community rights beyond the frontiers of the European national. With the beginning of citizenship case law in Martinez Sala (1997), the European national was no longer solely defined by its economic status but took on new legal meaning as a citizen of social and political dimensions. When the Court rendered Article 18 EC directly effective in Baumbast and R (2002), it expanded the power of Community law to protect the rights of both citizens and non-nationals, opening up the door to the Court’s role as an adjudicator of human rights. By 2004, the Court’s ruling in Chen and Zhu revealed that Community citizenship had subordinated the authority of national citizenship.

To understand how these cases were able to give meaning to the idea of a European citizen, it is important to explain the pre-Maastricht legal status of citizens of European Member States in the European Community. In formalizing the concept of the European citizen, Maastricht was a watershed moment that shifted the essence of the European Community from a primarily economic-centered entity to a European Union with social and political, as well as economic, dimensions. Before 1993, the European Community, rooted in the Treaty of Rome, was largely an economic association, with a common market serving as the unifying force among the Member States.   Consistent with this purpose, the Treaty of Rome dealt with rights and duties of individuals in an economic context; the “persons” under the jurisdiction of Community law were “workers,” i.e. those engaged in economic activity. The right to freedom of movement and residence – later found in Article 18 — was included in Article 39 EC in the context of workers’ rights. In upholding such rights, the Treaty declared that these freedoms “shall entail the abolition of any discrimination based on nationality between workers of Member States.”5 Articles 17 and 18 thus opened the rights to freedom of movement and residence from “workers” to “every citizen of the Union.” After 1993, the distinction between migrants engaging in economic activity and those European citizens not engaged in economic activity, who were “citizens” regardless of—or despite—their economic status, became one of the central questions in the development of rights for peoples moving within the EU.6 On one hand, Articles 17 and 18 opened the rights to freedom of movement and residence from “workers” to “every citizen of the Union.” That said, the Court nevertheless took cues from the rights of workers: just as Article 39, and more specifically Article 39(2), linked the right to free movement and the right to non-discrimination, the legal construction of EU citizenship would also understand freedom of movement in relation to the principle of equal treatment with the nationals of the host Member State as conferred by Article 12 EC: “Within the scope of application of this Treaty…any discrimination on the grounds of nationality shall be prohibited.”7 The following three cases illustrate the development of citizenship case law as the ECJ displaced its focus from the rights of individuals derived from their economic status to rights derived from their status as European citizens.

The ECJ explicitly and specifically addressed the notion of citizenship for the first time in Martinez Sala. Ms. Martinez Sala, a Spanish national, had applied for a child-raising allowance in Germany, where she had lived for over two decades, where she was first employed and then unemployed, and where she had received social assistance. Her application was refused, however, on the grounds that she was neither a German national nor in possession of a residence entitlement or permit. Citizenship did not enter the legal discourse of the case until it reached the ECJ. It was the ECJ, and not the referring court, that introduced Articles 17 and 18 into the dispute. In its preliminary reference, the national tribunal makes no mention of these provisions, whereas the ECJ embraced the possibility of using the concept of citizenship to place the case under its jurisdiction, by establishing the case as one of European citizenship and bringing it under articles 17 and 18, and pushing the case law in a direction that the national court had likely not anticipated.8 It is not until the end of the case that Articles 17 and 18 enter the judgment.9 The order of the Court’s proceedings, and thus the manner by which the Court arrived at its treatment of citizenship provisions, is highly revelatory: the Court actively ruptures with the former paradigm of economically-derived rights to “strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union,” in what appears to be loyalty to the original aims of the Maastricht Treaty.10

By the time Martinez Sala came to the EJC in 1997, the EU had a corpus of primary and secondary legislation that confers a body of rights on migrant workers who reside in Member States of which they are not nationals; economic engagement had always ensured European nationals rights and security, as migrant workers contribute to the economy and are less likely to be dependent on public finances of the host state. The national court asks in a preliminary reference if the appellant “has the status of worker…or of employed person,” based on her employment and social assistance history, with the underlying expectation that her application for social assistance falls under the jurisdiction of Community law only if the appellant herself falls under the protection of Community law.11 The Court argues that there is no single definition of “worker” in Community law, and that this definition differs among regulations and Treaty provisions. The term “worker” as it is written in the Treaty is an incomplete norm whose definition varies according to the area in which the definition is to be applied.12 The ECJ thus decides that the referring court did not furnish enough information to enable the Court to decide whether Ms. Martinez Sala falls under the scope ratione personae of the Community law that bestows rights on workers.13 In light of this inconclusiveness, the Court leaves this question to proceed with its fourth and final question; as it does so, the Court, in its confusion over the definition of “worker,” abandons the concept, pushing it aside to make room for the notion of “citizen.” It was generally agreed that a Member State’s requiring nationals of other Member States to produce a formal residence permit in order to receive a child-raising allowance constitutes discrimination based on nationality. However, since the appellant’s status of worker was unclear, the Court could not immediately claim that Sala could derive the right to equal treatment from Article 39.14 While the German government believed the case to be a matter of German jurisdiction, the ECJ effectively used Article 17 EC to make the case a matter of Community law.15 The Court employs Article 17 to bring the appellant under scope ratione personae of Community law, and as such she is inherently entitled to the right of equal treatment under Article 12 EC. The Court thereby established the necessary link between Articles 12, 17, and 18 EC; this relationship would prove crucial for subsequent case law, which would be built around the idea that the legal basis of Union citizenship was primarily in its operation as an equal treatment rule.16 The reasoning of the ECJ illustrates that rights under Community law are often inter-dependent; the right to freedom of movement and residence would mean little if, once migrants settled in the host Member State, they faced discrimination.

At this point, the Court’s invocation of Articles 17 and 18 EC could not have been possible without the particular circumstances of the case. It was only because Ms. Martinez Sala had been “lawfully residing” in the host Member State that she could rely on Article 18 EC.17 The Court thus skirts and leaves open the question as to whether this provision could confer rights through direct effect; that is, whether individuals could immediately invoke the provision before national and European courts. For without direct effect, it could not be assumed that non-economically active citizens could claim rights to residence deriving directly from the EU treaty. In Martinez Sala, because the appellant was for all purposes a “de facto” member of German society, it was easy for the Court to invoke her rights under Article 17 EC. This reasoning was the necessary stepping-stone that, once established in ECJ precedent, would later enable the Court to render Article 17 EC directly effective.

Before the implementation of the Treaty of Maastricht, this case would have fallen under the purview of the German court system. Martinez Sala thus illustrates that, after the codification of citizenship in TEU, Community law, not national law, came to govern the relationship between a Member State and legally resident nationals of another Member State. In its judgment, the Court appeared willing to apply a low threshold for activating the applicability of EU law and in so doing opened up greater possibilities for ECJ rulings on matters of national civil law.18

In Baumbast and R (2002), the ECJ finally ruled that Article 18 EC was directly effective, with the case addressing whether an EU citizen who no longer enjoys a right of residence in a host Member State from his status as a migrant worker “can, as a citizen of the EU, enjoy a right of residence by direct application of Article 18(1) EC.”19 Though these rights before Maastricht could be enjoyed only “on the condition that the person concerned was carrying on an economic activity,” since 1993, the Court argued, “Union citizenship has been introduced into the EC Treaty and Article 18(1) EC has conferred a right, for every citizen, to move and reside freely.”20 The Court definitively rejects the economic status of individuals as a/the determinant of their rights in the Community. By reiterating that European citizenship is the “fundamental status” of European nationals, the Court extends the breadth of its jurisprudence to protect the rights of all nationals of Member States.21 It thereby redraws the economic and political boundaries of Europe, abandoning the concept of “worker” as defining the scope of Community law for that of a “supranational citizen” whose dimensions are social and political, in addition to economic.22

The Court must nevertheless defend its claim that Article 18 EC can be directly effective as a “clear and precise provision of the EC Treaty,” the criteria for direct effect, which could have been difficult given the “limitations and conditions” acknowledged in the provision.23 To this end, the Court draws on a previous case in its history, which established that Article 39 EC on freedom of movement of workers could be directly effective.24 As for the “limitations and conditions” imposed by Member States on freedom of movement and residence, the Court declares them subject to “judicial review” based on the “principle of proportionality,” meaning that national measures must be “necessary and appropriate to attain the objective pursued.”25 The validity of all national policies, even those enacted in exercise of exclusive national authority, is consequently dependent on compliance with the requirements of Community law deriving from the right to free movement. The Court thus places another body of national legislation under its purview, extending its ambit into the relationship between a Member State and its own inhabitants.

The “limitations and conditions” to Article 18 EC are based on the idea that the beneficiaries of the right of residence should not “become an ‘unreasonable’ burden on the public finances of the host Member State,” lest European citizens exploit the right to freedom of movement for the purposes of “social benefit tourism.”26 In its ruling, the Court found that the United Kingdom’s argument on the grounds that Mr. Baumbast’s sickness insurance did not cover emergency treatment given in the host Member State to be a “disproportionate interference” in the exercise of his right, since Mr. Baumbast and his family have sufficient resources to avoid being a social burden.27 The Court’s ruling, however, left open to the question of whether the right to reside is lost at the point at which self-sufficiency comes to an end.28 Thus, while the Court appears to take a large step in expanding the rights of its citizens by rendering Article 18 directly effective, it is unclear how far-reaching these rights are.

In order to expand the freedom protected by Community law beyond economically active individuals, we see that the Court uses the very arguments and case law with which it originally expanded rights of the economically engaged. It is this very logical continuity in the evolution of the ECJ’s jurisprudence on freedom of movement that reveals and unleashes the “emancipatory potential of European law.”29  In the case, the Court applies a low threshold for triggering the applicability of EU law to individuals who are not citizens of the EU but only indirectly derive EU rights through a network of interdependent relationships. The Court first rules that a child of a European citizen who has moved to a Member State during the parent’s exercise of rights of residence as a migrant worker has the right to reside there in order to continue general education courses; this right is conditional neither on the child’s citizenship (whether or not he/she is a European citizen), nor on the parents’ status (whether the  parents have divorced, or whether only one parent is an EU citizen, or whether the parents have ceased to be migrant workers in the host Member State.30 The Court’s ruling has also become the authority for the proposition that a non-national parent of a child residing legally in the EU, even if divorced from an EU citizen who has or once had the status of worker, has a right of residence under the status as the child’s “primary carer.”31 These rulings derive from a socially concerned conviction that, in order to protect the freedom of movement for workers, the law must a priori ensure that the best possible conditions are available for the integration of the Community worker’s family in the society of the host Member State.  The Court proclaims that such freedoms must be guaranteed “in compliance with the principles of liberty and dignity.”32 The ECJ seems to preach a particularly humanitarian role for itself. It interprets the law as generously as possible to grant children rights to continue their education, and thus the rights of both parents to remain with them. Through an indirect chain of collateral rights, the Court thus extends the categories of protected persons beyond not only the traditional groups of economically active persons, but also beyond the realm of the European citizen. As the Court adjudicates on the welfare of third-country nationals residing in its territory, the Court goes beyond the realm of European rights into that of human rights, such as the rights of a child and the right to family life.

In fact, human rights law explicitly entered the Court’s jurisprudence two years later, in the case of Zhu and Chen (2004). Mr. and Mrs. Chen were Chinese nationals who arranged matters such that their daughter was born in Belfast and would thus acquire Irish nationality. The Court faced the question as to whether the child’s status as a citizen of the EU entitled her to reside in the UK under Community law and whether her mother, a third-country national, could also reside there under the status of “primary carer” of her child. The referring court essentially asked the ECJ to rule on matters of human rights when it inquired in its preliminary reference whether the appellants could rely on Articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).33 Though the ECJ is able to rule on the case without reading the potentially applicable provisions of the ECHR, nevertheless the Court, in its role as a protector of citizens’ rights, rides a fine line in its adjudication over what are specifically European freedoms and what are more generally fundamental human freedoms.

The Court in Chen also further undermined the requirement of economic activity for the exercise of free movement and resident rights, upholding the right of movement and residence of a child who is not of age to be either economically active or pursuing general education because the child would not become “a burden on the social assistance system of the host Member State”.34   Finally, the Court went even further than it had in Baumbast and R by granting non-nationals rights indirectly derived from dependent relationships. Though secondary Community legislation held that the mother could not derive a right of residence from her child’s citizenship since the former is not the “dependent” of the latter, the Court reinterpreted and liberalized the meaning of “dependency” as a two-way, reversible phenomenon: if the child is to be able to enjoy her own right of residence, then she deserves to be accompanied by her primary carer.

In its judgment, the Court held that a maneuver that was designed to create a right of residence for a baby and her Chinese mother in the UK did not preclude the recognition of that right.35 Mrs. Chen’s “move to Northern Ireland with the aim of having her child acquire the nationality of another Member State,” the government of the UK argued, could be interpreted as an attempt to “exploit the provisions of Community law.”36 The UK maintained that Mrs. Chen was “illegally” circumventing national legislation by arranging the birth of her child so as to take advantage of one Member State’s rules governing acquisition of nationality. The problem at the heart of this debate lies in the divergent rules of nationality and citizenship among the Member States of the EU. That each Member State has its own rules of citizenship, with differing degrees of openness and exclusivity, becomes apparent and problematic with the formalization of European-wide citizenship and the direct effect of Article 18 EC. The ECJ declares that each Member State has its own authority to lay down the rules for the acquisition and loss of nationality, but any attempt by one Member State to restrict the effects of the grant of nationality by another Member State would not be permissible, since this would amount as a restriction of the “fundamental freedoms provided for in the Treaty.”37 Earlier in the case, the Court had reaffirmed its pronouncement in Baumbast and R that Union citizenship “is destined to be the fundamental status of nationals in the Member States.”38 By quashing the objection that differing national citizenship rules could open the door to a more fluid movement of persons among the Member States, the Court subordinates national citizenship to the overarching Community citizenship. However, it appears that, until the Member States agree to standardize their rules for the acquisition of nationality, third-party nationals might be able to enter the Community by indirect routes in the Member States with the most lenient citizenship policies.

From 1997 to 2004, the evolution of the ECJ case law on citizenship, as illustrated in the analysis of these three cases, illustrates the evolution of the European Union from an economically constituted entity to one of socio-political and economic dimensions. The scope of those who could enjoy Community rights expanded from the “worker” to the supranational citizen. With the enlargement of the scope of application of Community law came the subordination of national citizenship provisions, whose validity would henceforth be subject to compliance with Community law, as well as the entry of human rights considerations into the ECJ’s purview. The bottom line is that the number of people, both European citizens and third-country nationals, who now derive rights under Community law has undoubtedly grown, and this growth and increased mobility raise questions with important ramifications. First, if the ECJ opens the freedom of movement and residence beyond the requirements of self-sufficiency, the erosion of national borders will inevitably challenge the nation-state model of social protection by increasing the availability of social assistance and public finances and raising the allocation of national resources. Second, it is unclear how far the ECJ will go in considering matters of human rights in its case law. Finally, it remains to be seen who benefits from the expansion of Community rights after Martinez Sala, Baumbast and R, and Zhu and Chen; in other words, is there a socio-economic profile of the new right-holders as a result of these cases? What is clear, however, is that what might have appeared to be symbolic rhetoric has in fact had social, political, and economic consequences for Europe.

Works Cited

Primary References 

Case C-413/99 Baumbast and R v Secretary of State for the Home Department, [2002] ECR I-7091.

Case C-85/96 Maria Martinez Sala v Freistaat Bayern, [1998] ECR I-2691.

Case C-184/99 Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, [2001] ECR I-6193.

Case C-200/02 Zhu and Chen v Secretary of State for the Home Department, [2004] ECR I-9925.

Treaty on European Union (EU), 7 February 1992, 1992 O.J. (C 191) 1, 31 I.L.M. 253.

Secondary References

Jacobs, Francis G. “Citizenship of the European Union?A Legal Analysis.” European Law Journal 13.5 (2007): 591-610. Wiley Online Library. Web. 12 Apr. 2012. http://onlinelibrary.wiley.com/doi/10.1111/j.1468-0386.2007.00385.x/full.

Lonbay, Julian. “The Free Movement of Persons.” International and Comparative Law Quarterly 53.2 (2004): 479-87. JSTOR. Web. 15 Apr. 2012. http://www.jstor.org/stable/3663096.

Menéndez, Augustín J. “European Citizenship after Martínez Sala and Baumbast: Has European Law Become More Human but Less Social?” RECON Online Working Paper Series June (2009): 1-31. Web. 20 Apr. 2012. www.reconproject.eu/projectweb/portalproject/RECONWorkingPapers.html.

Shaw, Jo. “Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism” U. of Edinburgh School of Law Working Paper No. 2010/14. (April 7, 2010): 1-30. Web. 8 Apr. 2012. http://ssrn.com/abstract=1585938 or http://dx.doi.org/10.2139/ssrn.1585938

Shaw, Jo. “The Interpretation of European Union Citizenship.” Modern Law Review 61.3 (1998): 293-317. JSTOR. Web. 12 Apr. 2012. http://www.jstor.org/stable/1097086.

Szyszczak, Erika. “Citizenship and Human Rights.” The International and Comparative Law Quarterly 53.2 (2004): 493-501. JSTOR. Web. 16 Apr. 2012. http://www.jstor.org/stable/3663098.

White, Robin C. A. “Free Movement, Equal Treatment, and Citizenship of the Union.” International & Comparative Law Quarterly 54.04 (2005): 885-905. JSTOR. Web. 15 Apr. 2012. http://www.jstor.org/stable/3663402.


[1] Preamble, Treaty on European Union (92/C 191/01) and In the TEU, the six articles include Articles 8 through 8(e). They were renumbered in the Treaty of Amsterdam, signed in 1997, as Articles 17 through 22. For the purposes of this paper, which examines cases referred to the European Court of Justice from before and after Amsterdam, the numbering will consistently follow that of Amsterdam.

2 Art 17 EC.

3 Art 18 EC. Articles 19 through 22 EC confer additional rights on EU citizens, including rights to participation in European elections and rights to diplomatic representation by the consular authorities of any Member State.

4 Jo Shaw, “The Interpretation of European Union Citizenship,” Modern Law Review 61.3 (1998): 293-317. JSTOR. Web. Accessed 12 Apr. 2012. http://www.jstor.org/stable/1097086, p. 297.

5 Article 39(2) EC.

6 Robin C. A. White, “Free Movement, Equal Treatment, and Citizenship of the Union,” International & Comparative Law Quarterly 54.04 (2005): 885-905. JSTOR. Web. Accessed 15 Apr. 2012. http://www.jstor.org/stable/3663402, p. 902.

7 Article 12 EC.

8 Case C-85/96 Martinez Sala [1998] ECR I-2691, para 19(1-4) of the judgment.

9 Case C-85/96 Martinez Sala [1998] ECR I-2691, para 59 of the judgment.

10 Article B, Treaty on European Union (92/C 191/01).

11 Case C-85/96 Martinez Sala [1998] ECR I-2691, para 29 of the judgment.

12 Case C-85/96 Martinez Sala [1998] ECR I-2691, para 31 of the judgment.

13 Case C-85/96 Martinez Sala [1998] ECR I-2691, para 45 of the judgment.

14 Case C-85/96 Martinez Sala [1998] ECR I-2691, paras 58 and 59 of the judgment.

15 Case C-85/96 Martinez Sala [1998] ECR I-2691, para 56 of the judgment and Case C-85/96 Martinez Sala [1998] ECR I-2691, para 59 of the judgment.

16 Jo Shaw, “Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism,” U. of Edinburgh School of Law Working Paper No. 2010/14. (April 7, 2010): 1-30. Web. Accessed 8 Apr. 2012. http://ssrn.com/abstract=1585938 or http://dx.doi.org/10.2139/ssrn.1585938, p. 2.

17 Case C-85/96 Martinez Sala [1998] ECR I-2691, para 60 of the judgment.

18 Agustín J Menéndez, “European Citizenship after Martínez Sala and Baumbast: Has European Law Become More Human but Less Social?” RECON Online Working Paper Series June (2009): 1-31. Web. Accessed 20 Apr. 2012. www.reconproject.eu/projectweb/portalproject/RECONWorkingPapers.html.

19 Case C-413/99 Baumbast and R v Secretary of State for the Home Department, [2002] ECR I-7091, para 76 of the judgment.

20 Case C-413/99 Baumbast and R, [2002] ECR I-7091, para 81 of the judgment.

21 Case C-413/99 Baumbast and R, [2002] ECR I-7091, para 82 of the judgment and Case C-184/99 Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, [2001] ECR I-6193.

22 Menendez, p. 16.

23 Case C-413/99 Baumbast and R, [2002] ECR I-7091, para 84 of the judgment.

24 Case C-413/99 Baumbast and R, [2002] ECR I-7091, para 86 of the judgment.

25 Case C-413/99 Baumbast and R, [2002] ECR I-7091, paras 86 and 91 of the judgment.

26 Case C-413/99 Baumbast and R, [2002] ECR I-7091, para 90 of the judgment and Francis G Jacobs, “Citizenship of the European Union?A Legal Analysis.” European Law Journal 13.5 (2007): 591-610. Wiley Online Library. Web. 12 Apr. 2012. http://onlinelibrary.wiley.com/doi/10.1111/j.1468-0386.2007.00385.x/full, p. 596.

27 Case C-413/99 Baumbast and R, [2002] ECR I-7091, paras 93 and 92 of the judgment.

28 White, “Free Movement, Equal Treatment, and Citizenship of the Union,” p. 891.

29 Menendez, “European Citizenship After Martinez Sala and Baumbast,” p. 1

30 Case C-413/99 Baumbast and R, [2002] ECR I-7091, para 63 of the judgment.

31 Case C-413/99 Baumbast and R, [2002] ECR I-7091, para 75 of the judgment.

32 Case C-413/99 Baumbast and R, [2002] ECR I-7091, para 50 of the judgment.

33 Case C-200/02 Zhu and Chen v Secretary of State for the Home Department, [2004] ECR I-9925, para 15(7) of the judgment.

34 Case C-200/02 Zhu and Chen, [2004] ECR I-9925, para 27 of the judgment.

35 Case C-200/02 Zhu and Chen, [2004] ECR I-9925, para 35 of the judgment.

36 Case C-200/02 Zhu and Chen, [2004] ECR I-9925, para 34 of the judgment.

37 Case C-200/02 Zhu and Chen, [2004] ECR I-9925, para 39 of the judgment.

38 Case C-200/02 Zhu and Chen, [2004] ECR I-9925, para 25 of the judgment.

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