European citizenship - 3

After having introduced the concept of citizenship and the rights emanating therefrom, and having shown that European citizenship is a very distinctive type of citizenship, and owing to various reasons, it is questionable whether the concept should be called citizenship or otherwise, some interesting caselaw will be considered in this last of a three-part series.

Before indulging in such an analysis, it must be pointed out that early interpretations of the treaty provisions on citizenship left much to be desired.

For example, in Skanavi and Chryssanthakopoulos {Case C-193/94 [1996] ECR I-929, p 951} the European Court of Justice (ECJ) held that there was no need to consider Article 8a.

This because Article 52 of the EC Treaty provided an adequate foundation for its conclusions on non-discrimination and the free movement of services.

Subsequently, in Uecker and Jacquet {Case C-64/96 and C-65/96 [1997] ECR I-3171} it was concluded that Article 8a does not cover free movement within a member state.

Moreover, in Stober and Pereira, {Cases C-4/95 and C-5/95, Stober and Pereira v Bundesanstalt für Arbeit [1997] ECR I-511} the ECJ ignored an Advocate-General's insistence to apply these provisions relying on specific rather than general non-discrimination and free-movement rules.

In the Kremzow case, a retired Austrian judge confessed to the murder of a lawyer, only to retract his confession. He was found guilty and sentenced.

The Austrian Supreme Court upheld Kremzow's conviction in absentia. The European Court of Human Rights held that Kremzow should have been allowed to defend himself in person before the Austrian Supreme Court. Consequently, Kremzow petitioned the latter court to make a reference to the ECJ for a preliminary ruling.

Kremzow argued that the ECJ enjoyed jurisdiction in the case in question because, as envisaged by Article 8a of the EC Treaty, he is a citizen of the Union, and therefore, he has a right to move and reside within the territory of member states freely.

Consequently, any European state which violates such a fundamental right guaranteed by Community law, by executing an unlawful penalty of imprisonment, must be held liable in damages in pursuance of contemporary Community law. Advocate General La Pergola's concluding remarks are worthy of mention in this context ;

"The Court of Justice has no jurisdiction to review the compatibility with the European Convention of Human Rights of a member state's domestic provisions where those provisions fall outside the field of application of Community law." {Opinion of Advocate General La Pergola in Case 299/95 Kremzow v Austria [1997] ECR I-2629}

The ECJ reiterated that "where national legislation is concerned with a situation which, as in the case at issue in the main proceedings, does not fall within the field of application of Community law, the Court cannot, in a reference for a preliminary ruling, give the interpretative guidance necessary for the national court to determine whether that national legislation is in conformity with the fundamental rights whose observance the Court ensures, such as those deriving in particular from the European Convention on Human Rights." {Part III of judgement in Case 299/95, Kremzow v Austria [1997] ECR I-2629}

All this is not to say that the interpretation of the Union citizenship provisions had been completely ignored before the MS case. In fact, in the Boukhalfa case {Case C-214/96, Boukhalfa v Federal Republic of Germany [1996] ECR I-2253, p 2271}, the ECJ held that "it is for the Court to ensure that its full scope is attained. If all the conditions inherent in that concept are drawn, every citizen of the Union must, whatever his nationality, enjoy exactly the same rights and be subject to the same obligations."

However, it is fair to say that the MS decision has been used as a useful and authoritative source of interpretation in later cases, although some jurists have reiterated that "the Court's decision has paved the way for further and more problematic references." {O'Leary S., (1999), Putting Flesh on the Bones of European Union Citizenship, European Law Review, vol. 24, February, p. 77}

Another important judgment relating to the subject under scrutiny containing interesting initial pronouncements on the interpretation of the Union citizenship provisions may be said to be the ECJ's decision in the Martinez Sala (MS) {Case C-85/96 Maria Martinez Sala v Freistaat Bayern [1998] ECR I-2681}, where the ECJ held that "a Union citizen, lawfully resident in another member state, was entitled to the protection of the non-discrimination principle in Article 6 of the EC Treaty, in respect of access to social benefits such as child-raising allowance which fall within the material scope of Community law."

Article 6 establishes the general and residual right to non-discrimination on grounds of EU nationality. The ECJ has held that this provision is directly effective in the Phil Collins cases {Cases C-92/92 and C-326/92, Phil Collins [1993] ECR I-5145}. Similarly, Handoll sustains that only "certain specific rights of citizenship may be directly effective." {Handoll J, 1995, Free Movement of Persons in the EU, p 268}

MS, a Spanish national lawfully resident in Germany since 1968 and employed there at intervals between 1976 and 1989, applied, in 1993, to the state of Bavaria for a child-raising allowance, a benefit granted to all residents in Germany who had a dependent child in their care and were either unemployed or had no full-time employment.

Her request was rejected on the grounds that at the time that she applied for the benefit she was not in possession of a residence permit, a requirement that had to be met by all non-German nationals.

It is relevant to highlight that the main regulations involved in the case were Regulation 1408/71 (this enshrines the principle of equality of treatment for all the residents in a member state to whom the regulation applies in the receipt of social security benefits) and Regulation 1612/68 (this lays down the principle of non-discrimination between national and non-national workers, including, inter alia, the application and enforcement of this principle in the context of the enjoyment of social advantages.)

In its judgment the ECJ first considered whether the child-raising allowance could be classified as a social security benefit (that is, a family benefit) or a social advantage.

The ECJ concluded that it constituted both the former and the latter.

In the second place the ECJ considered whether MS fell within the scope ratione personae of the above-mentioned regulations.

In other words, the ECJ had to decide whether she was an employed person or a worker, (Advocate-General la Pergola held that she can hardly be categorised as a worker) but, owing to lack of information provided by the domestic court, it did not reach a conclusive decision.

Most important was the judicial determination that the requirement imposed on non-nationals to be in possession of a residence permit {in the Royer case, Case C-48/75 Royer [1976] ECR I-497} and therefore to receive the benefit was clearly discriminatory.

Since the ECJ did not decide on whether she was either a worker or an employed person, the question remained under which provisions of EC law MS could be put so that she might have the right to invoke the non-discrimination principle.

It has been noted that in 1990, three EC directives had already set out the right to residence for non-economically active persons provided that they had sufficient resources and were covered by sickness insurance.

Thus, it has been assumed, that the right of residence in Article 8a is subject to the same limitations. Consequently, it appeared that member states can deny to non-economically active EU citizens the right to reside in their territories if the latter constitute a burden to their social security system.

However, the ECJ followed a different reasoning and considered that there was no need to invoke Article 8a, as the right of MS to reside in Germany was uncontested by the German government.

MS could, however, rely on Article 8 (2) EC which attributes to the status of the citizen of the Union the rights and duties laid down by the Treaty, and among which the right not to suffer discrimination on grounds of nationality are given precedence. The ECJ managed to avoid interpreting Article 8a EC.

In the Bickel case Horst Otto Bickel, Ulrich Franz, Case C-274/96 [1998] ECR I-7693, the ECJ held that the right conferred by national rules to have criminal proceedings conducted in a language other than the principal language of the state concerned falls within the scope of the Treaty, and must therefore comply with Article 6.

In another interesting case Donatella Calfa, Case C-348/96 [1999], the ECJ addressed the issue of expulsion for life of a national of one member state from the territory of another.

It held that a criminal sanction consisting of the quasi-automatic expulsion of a Community national found guilty of an offence against drug legislation constitutes an obstacle to the free movement of services, which cannot be justified on grounds of public policy.

The ECJ thus granted a level of protection against expulsion which is comparatively higher than that provided by the European Convention on Human Rights.

The ECJ refrained, however, from basing its decision on the citizenship provisions of the Treaty, and in particular on the right of free movement as laid down in Article 18 of the EC Treaty.

Caselaw shows that the merits of some cases have depended upon substantive law issues relating to citizenship of the Union. From a procedural viewpoint, problems still remain, in part because of the discretion of states in order to grant nationality.

However, arguably, the trend of the ECJ, particularly its teleological (judicial law-making) approach in the above-mentioned cases, besides others not included in these articles, manifests that the concept of citizenship and the creation of a state-like Union go hand in hand, and seem to move complementarily (pari passu), with the attempt to establish a federal Union, or rather, a United States of Europe.