Self-employed new mothers and EU free movement law: the CJEU delivers the obvious conclusion

Professor Steve Peers, University of Essex

* For more on EU free movement law issues, see the forthcoming second edition of the commentary on the EU Citizenship Directive, by Elspeth Guild, Steve Peers and Jonathan Tomkin – published soon

What happens when an EU citizen moves to another Member State, and has a baby? New parents likely face some sleepless nights in any event; but should new mothers in particular lose further sleep at the prospect of losing their status under EU free movement law? The CJEU, having ruled on this issues as regards employed new mothers in 2014 (the Saint-Prix judgment, discussed here), has now extended its case law to cover self-employed women who take a maternity break, in its recent judgment in Dakneviciute.

Background

The main EU law on EU citizens’ right to move and reside in another country – often known as the ‘citizens’ Directive’, does not provide for unlimited rights for EU citizens to go and live in another Member States. To exercise free movement rights, EU citizens must be employed, self-employed, students, have sufficient resources, or be a family member of someone in one of those categories (as further defined by the Directive, the EU Treaties, and relevant case law). After five years’ residence in accordance with this EU law, they obtain the right to permanent residence, at which point such conditions no longer apply.

Mothers-to-be who are in paid work as as the baby’s birth approaches often simply take maternity leave from their current employer, and then return to work for that employer some time after the baby is born. This is underpinned by a separate EU law on pregnant workers, which prohibits dismissal of women who are pregnant or on maternity leave save for ‘exceptional cases’ (on these exceptions, see the CJEU judgment in Porras Guisado). Equally, the same law guarantees continuation of an employment contract (except for a possible one-year waiting period to qualify for maternity pay).  In principle this should mean that the women concerned remain workers under free movement law, so they should be at no risk of losing status under that law.

The difficulty is for women who were employed but who gave up their current work before the birth (as in Saint Prix) or who are self-employed (as in Dakneviciute). Do they retain status as workers or self-employed persons under free movement law despite this? The citizens’ Directive says that status is retained in the event of: temporary inability to work ‘as the result of an illness or accident’; involuntary unemployment after being employed more than one year, if registered as a job-seeker; involuntary unemployment after being employed for less than one year, or if a fixed-term contract period of less than a year has ended, if registered as a job-seeker, although retention of status might in these cases only last for six months; or taking up vocational training, which must be linked to the prior employment unless the EU citizen is involuntarily unemployed.

In the Saint Prix case, the EU citizen dropped her teacher training course when she became pregnant, did some short-term work, and then gave up looking for work as the due date for her baby became closer. So she did not qualify under the citizens’ Directive’s rules for retaining worker status. However, the CJEU ruled that those rules were not exhaustive. In the Court’s view, the notion of ‘worker’ came first and foremost from the primary law of the EU Treaties, and covered someone who had previously worked in that State, given up work due to the physical impact of late pregnancy, and returned to work within a ‘reasonable period’ afterward. That period was to be defined taking account of the ‘specific circumstances of the case’, as well as national law on maternity leave, which must be at least 14 weeks in order to comply with the EU law on pregnant workers, although Member States can set longer periods. In fact a later judgment in the UK applied a one-year period in principle to such cases.

Subsequently, in its 2017 judgment in Gusa (which did not concern pregnancy), the CJEU ruled that self-employed EU citizens who became involuntarily no longer self-employed after one year should be treated the same as having retained their self-employed status, on the same basis that workers retain it under the citizens’ Directive in the event of involuntary unemployment.

Facts and judgment

Ms Dakneviciute was employed in the UK, then became a self-employed beauty therapist when she became pregnant. After her baby was born, she briefly returned to self-employment, then briefly claimed benefits, then became employed again. This dispute concerned her eligibility for child benefit: the UK authorities claimed that she did not qualify for it, because she did not have a sufficient right to reside. Uncertain as to whether the Saint Prix judgment applied to the self-employed, even despite the Gusa judgment in the meantime, a UK tribunal asked the CJEU to clarify whether previously self-employed new mothers retained status under free movement by analogy with previously employed new mothers.

The Court ruled that Ms Dakneviciute did retain her status, which meant that she was eligible for child benefit. Previously case law had treated employed and self-employed EU citizens in a unified way; the Saint Prix case applied by analogy; applying Gusa (which had referred to the vulnerability of unemployed EU citizens), pregnant women are vulnerable, whether they are employed or self-employed; and the EU had adopted a law on self-employed pregnant women, which refers to maternity leave on a similar basis as the EU law on pregnant workers.

Furthermore, the Court rejected the UK government’s argument that self-employed women could easily send someone to replace them during a maternity break. This was apparently an interpretation of the Gusa judgment (see paras 21 and 38 of the Dakneviciute judgment), although the Gusa judgment made no point about replacing individual self-employed persons. Finally, as in the Saint Prix judgment, the Court referred to the rules in the citizens’ Directive on obtaining permanent residence, which provide that a single absence of up to one year for pregnancy or childbirth (or other ‘important’ reasons) does not stop the clock as regards obtaining the five years’ residence necessary to qualify for permanent residence.

It followed that a previously self-employed EU citizen new mother retains her status of being self-employed, provided that she returns ‘to the same or another self-employed activity or employment within a reasonable period after the birth of her child’.

Comments

In light of the Saint Prix and Gusa judgments, the Court’s ruling that previously self-employed EU citizen new mothers retain their status is unsurprising.  A non-lawyer might even describe it as a statement of the bleeding obvious. It is striking that the UK government continued to fight the case, including by an interpretation of the Gusa judgment that has no basis in that judgment. Nor does that argument have any basis in the Advocate-General’s opinion in Gusa, which actually conversely said (in paras 72 and 73) that Saint Prix applied by analogy to self-employed persons. With great respect, the UK tribunal should not have given the government's argument the time of day.  

The most pressing practical question for previously self-employed EU citizen new mothers is how to determine the ‘reasonable length of time’ which they have to take up employment or self-employment in order to retain their status. The Court makes no suggestion about how long that might be, perhaps because it was conceded in the national courts that if Ms Dakneviciute retained her free movement status, she had obtained new work within a reasonable period of time (see para 19 of the judgment: perhaps this concession was in light of national case law referred to above). In practice, the EU law on self-employed pregnant women, like the EU law on pregnant workers, refers to a minimum period of 14 weeks, with Member States free to exceed that minimum (as the UK has done). Unlike in Saint Prix the Court does not refer again to also taking account of specific circumstances of the new mother’s case; but since the Court was applying that earlier judgment by analogy, this omission may well be accidental.

What is the impact of Brexit? In the event that the withdrawal agreement is ratified, the citizens’ rights provisions (discussed here) retain existing law (including case law) for UK citizens who move to the EU27, and EU27 citizens who move to the UK, before the end of the transitional period in the agreement (which is end 2020, with a possible extension of one or two years). In the event of leaving the EU without an agreement, the UK could chip away at these rights for EU27 citizens, even if they were already resident before Brexit Day – and EU27 States could do likewise for UK citizens. However, although both of these cases came from the UK courts, they will still be relevant to the remaining Member States (ie Irish citizens moving to Germany) in any event.

Finally, there’s a broader social and historical context to this judgment. The Court expressly mentions the vulnerability of pregnant workers. But new mums in Ms Dakneviciute’s position are also vulnerable as people who are migrant EU citizens, unemployed, and previously lower paid.  The Court’s judgment cuts through this intersectionality of sex, nationality and social class to guarantee access to child benefit regardless. Yet there’s a fin de siècle feeling to this ruling: in six weeks’ time, the UK might be able to disapply it to EU citizens in future. Benefits and unemployed people are obvious targets of the xenophobia that cynical politicians stoke.

Barnard & Peers: chapter 13; chapter 20

Photo credit: Coraims

Unemployment, residence rights, social benefits at three crossroads in the Tarola ruling

Francesca Strumia, Senior Lecturer, University of Sheffield School of Law*

*This post draws in part on research supported by a Research Fellowship at the Collegio Carlo Alberto in Torino

Overview

Last week’s CJEU ruling in Tarola, responding to a preliminary reference from the Irish Court of Appeal, interprets yet another cryptic provision of the Citizenship Directive, art. 7(3) on retention of worker status. The ruling sits at the intersection of EU law on free movement of workers, and on free movement of citizens. It is about rights descending from the status of worker. Yet it concerns the situation of unemployed persons at the periphery of workers’ status, whose condition stretches into citizenship territory. For these reasons, the case provided an opportunity for the Court to blend the assertive approach of its case law on workers with the cautious attitude it has adopted in its recent case law on non-economically active citizens. The resulting judgment adds yet another chapter to the tormented story of access to social benefits in the context of free movement.

Analysis

Mr. Tarola, a Romanian national, worked in Ireland in either an employed or self-employed capacity for several periods of a few weeks each in 2007, 2013 and 2014. In 2013 and 2014 he applied there for jobseeker’s and welfare allowances. His applications were refused on the ground that absent proof of ability for self-support and absent a sufficiently long employment record he had not demonstrated habitual residence in Ireland. In the resulting litigation, Mr. Tarola argued that he had the right to reside in Ireland for the six months following a two-week period of employment in July 2014 under art. 7(3)(c) of the Citizenship Directive. The argument did not convince the High Court, however it raised attention at the Court of Appeals that referred to the CJEU.

The referred question revolved around the interpretation of article 7(3)(c). More precisely, paraphrasing Advocate General Szpunar, the question was whether a Union citizen who works in another Member States for two weeks otherwise than on a fixed-term contract and then becomes involuntarily unemployed retains the status of worker and the right to residence that comes with that status.

Article 7(3)(c) of the Citizenship Directive is particularly convoluted. It provides for the retention of the status of worker for no less than six months in two hypotheses not clearly distinguished until yesterday’s ruling. The first situation is fairly straightforward: duly recorded unemployment following termination of a fixed-term contract of less than a year in duration. The second is more nebulous. The text refers in this respect to a person having ‘become involuntarily unemployed during the first twelve months’ and having registered as a job-seeker. The court found in particular that the text left two aspects undetermined: (i)  the type of activity or contract in whose context a person became involuntarily unemployed and 2) the context of the ‘first twelve months’ phrase, whether first twelve months of any employment contract, of a fixed-term contract, of residence in the host Member State, or else (par. 35). 

The court’s solution was that the provision allows retention of the status for workers “in all situations in which a worker has been obliged, for reasons beyond his control, to stop working in the host Member State before one year has elapsed, regardless of the nature of the activity or the type of employment contract entered into for that purpose”. (par 48) This interpretation was drawn from the context, purpose and origin of the provision of art. 7(3)(c).

With regard to context, the court noted that the provision sits within article 7, providing overall for the right of residence, and its retention, for all those who have exercise an activity in an employed or self-employed capacity. As affirmed in Prefeta, retention of that right is granted on the assumption that the citizen is available and able to re-enter the labor market within a reasonable period. (par 39-40) The court added that, within the broader context of the gradation of the right to residence that the Citizenship Directive operates, article 7(3) establishes a gradation also for retention of the status of worker. This gradation is based among others on reasons for inability to work and on the initial duration of the period of activity. On the top grade are those citizens who are unable to work because of accident or illness, because of undertaking vocational training, and because of having remained involuntarily unemployed after having worked for at least one year. All of these retain the status without time limits. On a lower grade are those who have worked for less than one year and who can retain the status for as long as the Member States like, provided this is not less than six months. (par 43-45)

In terms of purpose, the court observed that the offered interpretation of art. 7(3)(c) satisfied the general objective of the EU Citizenship Directive, namely strengthening the right of movement and residence, without undermining its further objective of protecting the Member States’ finances from undue burdens. The interpretation was also consistent with the specific objective of article 7(3) of the Directive, described in previous case law (e.g. Gusa) as that of protecting the right of residence of persons “who are in the absence of work due to circumstances beyond their control”. (par 49-50)

Finally as to the origins of art. 7(3)(c) the court found that its reading of the provision mirrored the intention of the drafters. The travaux preparatoires indicated indeed that the second part of art. 7(3)(c) had been added in the draft directive so as to extend protection to workers in involuntary unemployment after less than a year regardless of the type of contract covering their activity. (par 53)

The ruling concluded with a dictum inspired by the AG opinion and with a note to the referring court.  The dictum is that persons residing on the basis of the Citizenship Directive, including those retaining the right to reside under art 7(3), are entitled to equal treatment with nationals. Hence if national workers who have worked only for a short period of time are excluded from social benefits, the exclusion applies also to migrant EU citizen workers. The note to the referring court was that it was accordingly for it to determine, in light of national law, whether Mr Tarola was entitled, under the principle of equal treatment, to the social benefits he was seeking.

Comment

At least three aspects in this judgment are worthy of note. A first one is the way the court treats the citizenship directive. A second one is the court’s note on entitlement to social assistance. A further one is the balancing exercise the ruling performs between protection of movement and residence rights and protection of state finances. These elements, respectively, help situate the judgment at three crossroads: the one between the law on free movement of workers, and the law on free movement of citizens; the one between EU law on equal treatment, and national law on welfare assistance; and the one between competing objectives pursued by EU free movement law.

With regard to the Citizenship Directive, the court sticks to the rule of interpretation it promises up front. The directive cannot be interpreted restrictively. And indeed the court offers a quite broad interpretation of its relevant provision. That the provisions of the Citizenship Directive require broad interpretation is no novelty. The court has repeated this rule of interpretation again and again in several cases. Yet in recent years it has not always as enthusiastically applied the same rule (a recent example is the SM case, treated here; a slightly older one is Singh and others).  The court’s approach in Tarola is the result of a special conjuncture: the court is de facto ruling on the rights of a non-economically active citizen, but it is formally dealing with a worker-it is not in question indeed that Mr. Tarola meets the EU law definition of worker (par. 25)-. This allows the court to intersect, if not the law, the interpretive approaches belonging to two different strands of its case law: the assertiveness of its case law on workers, and the caution of its recent case law on non-economically active citizens.  Echoes of the former allow the court to deliver, from a relative comfort zone, a result that bears on the social protection of Union citizens.

The caution that characterizes the case law on non-economically active returns, on the other hand, through the court’s drawing of a clear boundary between right to equal treatment and entitlement to social assistance. In the final dictum, the court emphasizes that the right attached to a worker’s, or citizen’s, right to residence, is one of equal treatment. Retention of the status of worker, and of the corresponding right to reside, does not necessarily mean entitlement to obtain social assistance. It simply means entitlement to apply for it, and obtain the same response as a national would get. This sounds as a reminder, and a word of reassurance, to the Member States that they are free to organize their welfare systems as they wish. At the same time the court gives the Member States a gentle nudge: if they do not like paying benefits to those who have worked too little, they had better say so in national law.

The gentle nudge to the Member States ultimately reflects the court’s endeavor to take into account, and balance in Tarola, two competing objectives of the Citizenship Directive. One is the objective of strengthening the right to move and reside for all Union citizens (witness to the case standing at the crossroads of workers and citizenship law, the court refers in reporting those objectives to citizens in one sentence, to workers in the next, par 49-50). The other is the objective to ensure that the Member States’ social security and social assistance systems are not placed under an undue burden. The tension between these two objectives underpins the entire case law on social benefits provision in the context of free movement. This brings the Tarola ruling closer to the line of cases that from Trojani descends to Dano and its progeny. The tension in that case law, however, is not always as clearly acknowledged and as carefully addressed as here. In this respect, Tarola might signal a further turn in a doctrine that has experienced several twists. It may be the first sign of the taking on, on the part of the court, of a more coherent role in reconciling the conflicting objectives of the law on free movement.

Barnard & Peers: chapter 13

Photo credit: BIMIreland.ie

Citizens of Somewhere Else? EU citizenship and loss of Member State nationality

Professor Steve Peers, University of Essex*

*This blog post is adapted in part from the forthcoming second edition of The EU Citizenship Directive (OUP, 2019), co-authored by me, Elspeth Guild and Jonathan Tomkin

Member States’ rules on the acquisition or loss of nationality are in principle a national competence. But this issue is nevertheless central to EU law, because citizenship of the EU is based on having the nationality of a Member State, according to Article 20(1) TFEU:

Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

So in light of the importance of Member State nationality to EU citizenship, can the loss of Member State nationality be reviewed for compliance with EU law? The recent judgment in Tjebbes was the latest of the CJEU’s rare opportunities to rule on this issue, and offers some important clarification of the law.

Background

The first ruling of the Court of Justice on nationality issues was Micheletti. In this case, one Member State’s authorities were reluctant to recognize the nationality of another Member State which Mr Micheletti had acquired, given that he was also (and initially) a national of a non-EU State. The CJEU started by recognizing that ‘[u]nder 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’ (emphasis added). This wording left the door slightly ajar for possible scrutiny of Member States’ nationality laws, by hinting that Community (now EU) law might place some constraints on national sovereignty on this issue.

However, it took nearly twenty years before the Court began to elaborate on such constraints. In the meantime, in the judgment in Kaur, the Court referred to the principle that Member States could define their own nationals, referring to a ‘principle of customary international law’ to this effect. According to the Court, this left the UK free to define ‘several categories of British citizens whom it has recognised as having rights which differ according to the nature of the ties connecting them to the United Kingdom’. The rights of these persons were defined in a declaration to the UK’s Treaty of Accession, which was updated later following changes in British nationality law, but that declaration did not deprive anyone of any EU law rights, for ‘[t]consequence was rather that such rights never arose in the first place for such a person’.

Subsequently, in the case of Rottmann, the Court began to set out limits to national control of the loss of nationality, as regards a person who (unlike Ms Kaur) had enjoyed the status of EU citizenship, but then was deprived of it. Mr Rottmann was an Austrian citizen and resident by birth, who later moved to Germany following the start of an investigation against him for serious fraud. He applied for and obtained German nationality, with the result that he lost Austrian nationality. But once the German authorities found out about the previous proceedings in Austria, which Mr Rottmann had not disclosed to them, they began the process of withdrawing his German nationality; and it did not appear that he met the criteria for the reacquisition of Austrian nationality either.

The CJEU began by agreeing that in line with a declaration to the TEU and the Edinburgh Decision of Member States’ heads of government of 1992, Member States had competence to determine who their nationals were. However, even if a matter falls within national competences, the exercise of those competences must have due regard to EU law. In this case, the ‘situation of’ an EU citizen who ‘is faced with a decision withdrawing his naturalisation, adopted by the authorities of one Member State, and placing him, after he has lost the nationality of another Member State that he originally possessed, in a position capable of causing him to lose the status’ of EU citizenship conferred by the Treaties ‘and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of European Union law’.

Therefore the CJEU could rule on the ‘conditions in which a citizen of the Union may, because he loses his nationality, lose his status of citizen of the Union and thereby be deprived of the rights attaching to that status’. This ‘does not compromise the principle of international law previously recognised by the Court’ that Member States ‘have the power to lay down the conditions for the acquisition and loss of nationality’; rather it ‘enshrines the principle that, in respect of citizens of the Union, the exercise of that power, in so far as it affects the rights conferred and protected by the legal order of the Union’, such as ‘in particular’ a withdrawal of naturalization as in the Rottmann case, ‘is amenable to judicial review carried out in the light of [EU] law’.

In Mr Rottmann’s case, a withdrawal of nationality due to deception could be compatible with EU law, since it was in the ‘public interest’ and ‘it is legitimate for a Member State to wish to protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality’. Withdrawal of nationality on such grounds was provided for by international law, in particular the 1961 Convention on the Reduction of Statelessness and the Council of Europe’s European Convention on Nationality. It was therefore up to the national court to determine the proportionality of the decision in light of national and EU law. On this point, the national court had to ‘take into account the consequences that the decision entails for the person concerned and, if relevant, for the members of his family’ as regards the loss of EU citizenship rights, assessing ‘in particular, whether that loss is justified in relation to the gravity of the offence committed by that person, to the lapse of time between the naturalisation decision and the withdrawal decision and to whether it is possible for that person to recover his original nationality’. While EU law did not ban the withdrawal of nationality before the person concerned obtained again his original nationality – ie there was no apparent ban on making the person concerned stateless – the national court had to consider whether ‘the principle of proportionality requires the person concerned to be afforded a reasonable period of time in order to try to recover the nationality of his Member State of origin’. Finally, the Court made clear that ‘the principles stemming from this judgment’ as regards the effect of EU law on national powers in the area of nationality law ‘apply both to the Member State of naturalisation and to the Member State of the original nationality’.

What is the impact of the Rottmann judgment? First of all, as for the scope of the judgment, it did not seem to be relevant in this case that Mr Rottmann had previously exercised free movement rights; the Court referred to the loss of EU citizenship status in principle, not to the particular impact upon people who had moved within the EU pursuant to the citizens’ Directive or other provisions of EU law.

Secondly, what substantive rules apply? The Court accepts the loss of citizenship can be justified on ‘public interest’ grounds such as deception, subject to the application of the principle of proportionality. However, it did not indicate how the public interest should be weighted as compared to the individual interest in retaining EU citizenship in this particular case. While the Court confirmed its analysis in Rottmann by reference to the Council of Europe Convention on Nationality and the 1961 Convention on the Reduction of Statelessness, it should be noted that the former Convention has been ratified by fewer than half of the Member States, and only a slim majority of Member States have ratified the latter. In fact, ten Member States have not ratified either treaty.

Finally, procedurally, on the facts of Rottman there had to be a ‘reasonable period of time’ to pursue the re-acquisition of the original nationality, as an aspect of the principle of proportionality. However, while the Court mentioned judicial review there were no further details besides a reference to the national court’s obligations to apply the principle of proportionality, and no specific mention of administrative procedural rights.

The latest judgment

Tjebbes concerns four different applicants: a dual citizen (since birth) of the Netherlands and Canada; a Dutch citizen from birth who acquired Swiss nationality via marriage; her daughter, a dual Dutch and Swiss citizen from birth, who was listed on her mother’s passport when a child; and an Iranian national from birth who acquired Dutch nationality.  Each of them, when residing outside the EU, applied for a Dutch passport, but the authorities ruled that they had lost Dutch nationality automatically due to residence outside the EU. This resulted from Dutch law which provides for such loss after ten years’ residence abroad, if the person concerned has the nationality of another State. That loss could be prevented by residing in the EU for a year before the nationality was lost, or by obtaining a declaration regarding the possession of Netherlands nationality or a travel document or Netherlands identity card. There are also special rules on minors, entailing loss of Dutch nationality to correspond with the parent’s loss of that status.

The national court had doubts about the notion of a general rule on loss of nationality (as distinct from a decision to strip a person of nationality in an individual case, as in Rottman), as well as the specific issues relating to loss of nationality by children, and so asked the CJEU to rule on whether the Dutch rules are compatible with EU law.  The Court’s analysis began by specifically pointing out that none of the persons concerned had moved within the EU. So its judgment is concerned with EU citizenship as such, rather than loss of free movement rights.

Reiterating the basic points of Rottmann (loss of nationality has to be consistent with EU law, but a Member State can legitimately ‘protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality’, the Court accepted that in general:

when exercising its competence to lay down the conditions for acquisition and loss of nationality, it is legitimate for a Member State to take the view that nationality is the expression of a genuine link between it and its nationals, and therefore to prescribe that the absence, or the loss, of any such genuine link entails the loss of nationality. It is also legitimate for a Member State to wish to protect the unity of nationality within the same family.

Applying that principle to the facts of this case, the ten-year absence criterion in Dutch law ‘may be regarded as an indication that there is no such link’. As for children, ‘the lack of a genuine link between the parents of a child who is a minor and the Kingdom of the Netherlands can be understood, in principle, as a lack of a genuine link between the child and that Member State’.

This interpretation was supported (as in Rottmann) by the Convention on the Reduction of Statelessness which provides for the possible loss of nationality ‘in similar situations’ as long as the person concerned ‘does not become stateless’. The latter risk was ruled out by Dutch law. Also as in Rottmann, the Council of Europe Convention on Nationality is relevant: providing that nationality can be lost in the event of ‘no genuine link between that State and a national habitually residing abroad and, in the case of a minor, for children whose parents lose the nationality of that State’.

The applicable safeguard (a request within the 10-year period for the issuing of a declaration regarding the possession of Netherlands nationality, a travel document or a Netherlands identity card, interrupting the 10-year period) was also relevant.

However, again as in Rottmann, national authorities and national courts had to assess whether the loss of the nationality of the Member State (and therefore EU citizenship) respects the principle of proportionality, as regards ‘the consequences of that loss for the situation of the person concerned and, if relevant, for that of the members of his or her family, from the point of view of EU law’. In particular, loss of nationality ‘by operation of law  would be inconsistent with the principle of proportionality’ if there was no possibility for ‘at any time an individual examination of the consequences of that loss for the persons concerned from the point of view of EU law’, which could, ‘where appropriate’, mean that the person concerned could ‘recover his or her nationality ex tunc in the context of an application by that person for a travel document or any other document showing his or her nationality’. In practice, Dutch law includes this safeguard. It must entail:

an individual assessment of the situation of the person concerned and that of his or her family in order to determine whether the consequences of losing the nationality of the Member State concerned, when it entails the loss of his or her citizenship of the Union, might, with regard to the objective pursued by the national legislature, disproportionately affect the normal development of his or her family and professional life from the point of view of EU law. Those consequences cannot be hypothetical or merely a possibility.

The examination of proportionality must ensure that the national authorities and national courts assess whether the loss of nationality is consistent with the EU Charter of Rights, particularly the right to family life (Article 7 of the Charter) and the obligation to take into consideration the best interests of the child (Article 24). As regards the individual circumstances to be considered, it’s likely to be relevant that the persons concerned:

would be exposed to limitations when exercising his or her right to move and reside freely within the territory of the Member States, including, depending on the circumstances, particular difficulties in continuing to travel to the Netherlands or to another Member State in order to retain genuine and regular links with members of his or her family, to pursue his or her professional activity or to undertake the necessary steps to pursue that activity.

It’s also relevant that the person concerned ‘might not have been able to renounce the nationality of’ a non-EU country, and whether there’s a ‘serious risk, to which the person concerned would be exposed, that his or her safety or freedom to come and go would substantially deteriorate because of the impossibility for that person to enjoy consular protection under Article 20(2)(c) TFEU in the territory of the third country in which that person resides’.

There are particular safeguards for minors: the administrative and judicial authorities must ‘take into account, in the context of their individual examination’, the possibility that loss of nationality resulting from the loss of nationality by a parent ‘fails to meet the child’s best interests as enshrined in Article 24 of the Charter because of the consequences of that loss for the minor from the point of view of EU law.’

Comments

In many respects, Tjebbes confirms the Court’s ruling in Rottmann: national competence to regulate loss of nationality (and therefore EU citizenship) subject to minimum standards developed by the Court due to the importance of EU citizenship; taking account of international treaties as a source of those minimum standards; broad deference to national determination as to what the grounds of loss of nationality should be; a proportionality test which must take account of individual circumstances, including those of family members; and the requirement of judicial control.

However, a number of points are further developed or new. First of all, it’s now clear beyond any doubt that loss of nationality of a Member State raises issues because of the consequential loss of EU citizenship regardless of whether the persons concerned have exercised free movement rights. Secondly, in Tjebbes the Court seems more concerned to avoid the persons concerned becoming stateless.

Thirdly, the Court confirms that the issues which Member States may consider legitimate are not just the public interest concerns arising from the deception in Rottmann, but also the simple lack of residence within the EU for a sufficient period of time. (The Court does not comment on the hypothetical prospect of loss of nationality due to the exercise of free movement rights within the EU, but this would obviously be highly problematic in that it would penalise the use of free movement rights, and therefore deter their exercise. The Court does not comment on the possible relevance of the EU/Swiss free movement treaty as regards one of the persons concerned). It was arguably already implicit from Rottmann that Member States can sanction even more serious offences such as terrorism with a loss of nationality (and therefore EU citizenship).

Fourthly, the Court accepts that nationality can be lost by means of a general rule, not just as a consequence of an individual decision. However, it considers it essential that the general rule on loss be complemented by a general safeguard – in this case, the possibility of forestalling the loss of nationality via an application for an identity document during the ten-year period. Fifthly, in both cases, the Court places strong emphasis upon a review of the proportionality of the loss of nationality, although the standards applicable are necessarily partly different. In both cases, the individual consequences must be assessed, but instead of ‘whether that loss is justified in relation to the gravity of the offence committed by that person’ (Rottmann), the test in Tjebbes is a disproportionate effect on ‘the normal development of his or her family and professional life from the point of view of EU law’, although the argument on this issue cannot be purely hypothetical.

Furthermore, the Court requires the assessment to consider limitations on the exercise of free movement rights and consular protection (which are surely inevitable, except as regards Swiss citizens – although again, the Court does not mention the EU/Swiss treaty) including difficulties in travel to the EU (possibly a bigger issue if a visa requirement would be imposed, as in the case of Iran as distinct from Canada or Switzerland) as regards family links or professional activity. For minors, it is hard to see how the best interests of the child are served by the child’s loss of EU citizenship despite any decision by that child to leave the EU as an adult. Sixthly, the Court emphasises not only judicial control, but also the obligations of the administrative authorities. Finally, the Court places significant stress on the EU Charter of Rights, which it did not mention in Rottmann.

However, there are still a number of uncertain issues. The Court’s degree of concern about the risk of statelessness seems to vary from the relative indifference in Rottmann to the implied safeguard in Tjebbes.  This leaves the important question of the degree of certainty of obtaining the other country’s nationality (an issue in UK case law and disputes) undecided. Also, it’s still unclear how relevant the two international treaties the Court refers to in both cases might be – given that a number of Member States have not ratified one or both of them.   One wonders also if various limits on judicial review or stemming from administrative procedure might be challenged for breach of effectiveness.

Of course, there’s a limit to how much the case law on this issue can develop if the Court keeps receiving about one case per decade. It’s possible that the Court will soon get more though, if the UK soon becomes a non-EU State. This raises a variety of issues, most obviously whether UK nationals – who were citizens of the EU until Brexit Day – lose EU citizenship on that date (unless they hold the nationality of a remaining Member State)? The orthodox view is that they do, on the basis of the Treaty wording: ‘Every national of a Member State shall be a citizen of the Union.’ The obvious implication is that when your State of nationality ceases to be a Member State, you are no longer a citizens of the Union. This interpretation is reflected in the wording of the draft withdrawal agreement, which distinguishes between UK nationals and EU citizens, defining the latter as citizens of Member States but not listing the UK as a Member State. It also is implicit in the case law of the Court of Justice on loss of EU citizenship, which is based on the assumption that EU citizenship is lost when a person loses the nationality of a Member State. This is arguably a quite different issue from a country ceasing to be a Member State.

The counter-argument is that the Treaty only sets out the means of acquiring EU citizenship, not losing it. It follows that Brexit cannot remove EU citizenship from those UK nationals who already had it. A Dutch court initially decided to ask the CJEU to clarify these issues (see discussion here), but an appeal court decided to block the case. The question might at some point be resolved by the CJEU one way or the other. 

Brexit will also raise other issues. In Member States that remove their nationality from citizens resident outside the EU, the UK’s non-EU status will bring more of their citizens within the scope of this rule. At the very least, should time spent in the UK when it was a Member State be ignored for the purpose of this rule? Or should the rule only apply to nationals who move to the UK after Brexit? This raises the broader question of whether time spent in the UK before Brexit day continues to have effect for the purposes of EU citizenship and free movement law (ie for those EU27 citizens who married a non-EU citizen in the UK and then returned to their State of nationality).

More generally, given the importance of nationality to the essence of national sovereignty, the absence of power for the EU to harmonise laws in this field, the TEU declaration and the Edinburgh decision, there’s a strong case that the Court’s case law interfering with the national rules on the loss of national citizenship is unjustifiable in principle. However, this is vitiated by the great deference which the Court gives to Member States on this issue in its case law. Ultimately, the importance of this case law may be as an essential safeguard against any drift towards authoritarianism in a Member State which might want to strip government critics of their nationality for defying the ‘will of the people’. The problem is that any government already inclined to flout the rule of law so flagrantly may well ignore the CJEU’s rulings too. But this is a paradox to explore another day.

Barnard & Peers: chapter 13

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CJEU case law on EU citizenship: normatively consistent? Unlikely! - A response to Davies’ ‘Has the Court changed, or have the cases?’

Alexander Hoogenboom, PhD, MSc. LL.M. Senior Policy Officer at the Dutch Healthcare Authority and associate researcher at the Institute for Transnational and Euregional cross border cooperation and Mobility, Faculty of law, Maastricht University. The position taken in this paper solely reflects the views of the author.

Introduction

Recent case law of the Court of Justice on EU citizens’ access to benefits has been seen by some as a restrictive turn compared to prior case law, in response to a rise in populism. However, the article by Davies in a recent special issue of the Journal of European Public Policy is to be commended for its original take on this alleged ‘turn to restrictiveness’. The goal of his article is, as I see it, questioning whether the Court has indeed recently become stricter (in the sense of more State-friendly, less Union citizen-friendly) in response to the populist turn in the European political landscape. In that vein, Davies submits, contrary to what he sees is the main thrust in the scholarship, that the court has been ‘normatively consistent’ (see also this research paper he authored) and that the perceived difference in recent litigation outcomes from the golden years of Union citizenship are due to the litigants being less ‘deserving’ of access to benefits provided by the host Member State: ‘what goes in will provide an overwhelmingly plausible explanation of the outcomes on its own’.

This argument is supported by relying on a methodology for measuring the ‘deservedness’ of the litigants based on a set of indicators: the ‘good behaviour’ of the applicant, the possibility for exceptional harm should the benefit be denied, the possible cost to society resulting from the grant of a benefit (e.g. because it is long-term or applies to a large category of persons), whether granting the benefit would mandate a particular positive outcome and whether the State was somehow at fault for the specific conundrum that the litigant finds him or herself in.  The more ‘deserving’ (high contribution to society, low cost), the greater the likelihood of a litigant-positive result.

Applying these criteria to a selection of case law, Davies proceeds to show that indeed, the Dano’s (never worked, never integrated, lacked resources for self-support) of the world seem to be less deserving of benefits than the Sala’s (long-term legal resident, child benefit denied due to a technicality by an inconsistent state). (On the Dano case – the first judgment showing the perceived turn toward a stricter approach – see the discussion here).

There are, however, a few issues one could take with this approach. In part, it is questionable whether the facts as available to scholars of EU law decisions allow one to accurately apply the proposed test – especially given that the publication of the Reports for the Hearing was abolished since 2012 (see also para 119 of the AG opinion in Breyer). This is exacerbated, as Davies admits, by the fact that a negative outcome throws its shadow forwards: one then tends to present the facts in such a way as to support the later conclusion.

In part, it is questionable whether deservedness is objectively verifiable: after all, one could also argue that the rise of populism or say an economic crisis – the ‘times we live in’ – simply provide a different kind of lens through which to view the migratory Union citizen. The same fresh-faced youth enrolling in higher education in a Member State different from the one of his nationality can be cast as a self-improving, future productive member of that society (compare to Gravier, para 24) or as a welfare-abusing, locust-like creature eating his or her fill and subsequently returning from whence he or she came (see the main arguments by Belgium and Austria in the the judgment in Bressol).

However, the main challenge I would like to level is that the methodology suggested is applied to an incomplete ‘data set’ (the cases), in part due to selection bias (the focus in the article on the cases ‘most discussed’).

Grzelczyk by another name: The curious case of Förster

The case of Grzelczyk is among those used by Davies to support his thesis: his particular circumstances ‘paint a sympathetic picture’. A hard-working young Frenchman, resident in Belgium for some time and whose claim to financial support finish his last few months of study would seem altogether reasonable. Indeed, the Court, while leaving it to the national court to make the final decision, seemed to suggest he should be so entitled.

Nonetheless, the Court was not so generous in Förster. Jacqueline Förster was a German national who grew up in a town not far from the Dutch border. She moved to and resided in the Netherlands from March 2000 onwards – partly to be with her Dutch boyfriend. There, she enrolled into a teacher training programme and later in a course on educational theory at the Hogeschool van Amsterdam. In the period 2000-2002 she undertook various part-time jobs, until she engaged in full-time paid practical training at a Dutch school providing secondary education for children with special needs (October 2002 – June 2003). After her practical training she did not engage in gainful employment until July 2004. She graduated from her course that summer.

At stake was the intermezzo period: the Dutch Student Benefit Authority (then called IB-Groep) assessed in 2005 that she had not been eligible for study maintenance assistance in the second half of 2003 and ordered her to repay the amounts received.

It would seem to me that Ms. Förster ticked practically the same as mr. Grzelczyk. Measuring her ‘deservedness’ according to the matrix suggested by Davies we find:

-       Good behaviour: self-support initially (three years), enrolled in studies and contributing to Dutch society even during her studies in her practical training period. Advocate-General Mazàk moreover made the explicit point that she did not seem to have moved with the goal of claiming benefits.

-       Exceptional harm: Although the withdrawal of the benefit was retroactive, when assessing her right to access the benefit as matters stood in 2003 one could plausibly maintain that, as with Grzelczyk, non-access to the benefit would have made the completion of the degree much more difficult.

-       The support requested covered only a limited time: at issue was a six-month period only.

-       Limited cost of the support: As with Grzelczyk, this aspect is hard to estimate.

-       Positive outcomes: the completion of the degree would enable her to contribute to Dutch society and economy as a teacher.

-       State at fault: One could make the argument that given the fact that they had initially granted her the benefit and only much later (some one and a half years) took the final decision to recover the amount, should count against the Dutch state.

Finally, in addition to these elements from Davies’ deservedness matrix, the applicant had a relationship with a Dutch national and given her work, presumably, spoke fluent Dutch – both elements that the Court in other cases has found relevant when assessing eligibility to benefits (see Prinz and Seeberger, for instance).

All in all, one would assume, from the methodology applied that this applicant should be successful, or that should have led to a ‘discretionary-result-with-a-hint-in-favour-of-the applicant’. Yet, she categorically lost her case, notwithstanding the suggestion by the Advocate-General to consider the circumstances of the case along the lines suggested above. Yes, the conclusion was (partly) mandated by the EU citizens’ Directive 2004/38, but the Court certainly did not ‘bend over backwards to find exceptions to [this] restriction’ as his matrix would predict.

The big turnaround: Commission v Austria and Commission v the Netherlands

The cases of Commission v Austria and Commission v the Netherlands are perhaps even more glaring. The issue concerned a travel benefit aimed at students attending higher education. In the Austrian case, decided in 2012, Austria argued that it could refuse access to the benefit where the Union citizen in question had not yet obtained a right to permanent residence (a five-year prior residence requirement in practice). In contrast, the Court found that all persons enrolled in higher education should have automatic access.

The case is somewhat hard to fit into the matrix, but intuitively one could argue that the Court was not swayed by the hypothetical good behaviour of potential beneficiaries (no prior residence requirements, no integration), nor was the benefit for a limited time (it could last the entire study period), all persons enrolled in higher education persons were eligible (no ‘limited costs’) and it is hard to imagine an ‘exceptional harm’ had the benefit been denied to the hypothetical applicant. Notwithstanding this apparent lack of deservedness, however, a positive outcome for the hypothetical beneficiaries.

In 2016, in Commission v the Netherlands, the Court reached the opposite conclusion. The benefit at issue was in all respects the same as at stake in Commission v Austria (Table taken from A. Hoogenboom, Balancing Student Mobility Rights and National Higher Education Autonomy in the European Union (BRILL, 2017)):

	Austria	The Netherlands
Nature of the benefit	Fee reduction for the use of public transport (grant)	Free use of public transport on some days of the week; reduced fees on the other days (conditional grant)
Apparent purpose	To facilitate access to education	To facilitate access to education
Provision	Commercial public transport operators	Commercial public transport operators
Financing	The individual governments of several Länder	Central Dutch government
Recipient	Student	Student
Eligibility	Enrolment higher education Parents in receipt of Austrian family allowances	Enrolment in higher education. Student in receipt of Dutch studiefinanciering

Here the Court decided that the Netherlands could restrict the benefit along the terms suggested by Austria in the earlier case. It stretched the limits of consistency by trying to distinguish the latter case with a bizarre reference to the difference in national classification of the benefit, despite it being settled case law that such classifications are irrelevant - a point the Court itself made in Commission v Austria.

So here we initially have a judgment against the State and in favour of the Union citizen, whereas the matrix would likely predict a judgment in favour of the State. Four years later the Court came, on largely the same facts, to the opposite conclusion. This should not be seen as a (late) vindication of the matrix however, since the Court formally distinguished the latter case from the former, meaning that both cases continue to be good law.

Conclusion

Whereas the line of inquiry presented in Davies’ paper is an interesting one, it cannot account adequately account for the existence of Förster and the Commission v Austria/Netherlands saga. Apparently deserving applicants get rejected, and the same benefit with a similar hypothetical user base gets a different legal treatment in the space of a few years. Two possible explanations suggest themselves:

-       The Court is not consistent. This would mean that Davies’ hypothesis is disproven.

-       The matrix presented, by which the court supposedly measures deservedness, is flawed. This goes to the methodology used and means that we simply haven’t found calculus that the Court uses.

It would seem to me that the existence of both Commission v Austria and Commission v the Netherlands as ‘good law’ seems to hint at the former. In any case, however, to argue that the Court of Justice is normatively consistent, on the basis of the analysis carried out by Davies, is a bridge too far.

Barnard & Peers: chapter 13

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Love wins in the CJEU: Same Sex Marriages and EU free movement law

Professor Steve Peers, Law School, University of Essex

Today’s CJEU judgment in Coman was the Court’s first ruling on same-sex marriages for the purposes of EU free movement law.  (For a discussion of the background, see the earlier blog post by Alina Tryfonidou). Mr Coman, a Romanian citizen, had married his husband, a US citizen, in Belgium while residing there. He tried to return to Romania with his husband, but Romania refused residence to the latter, as (like about half of the EU Member States) it does not recognise same-sex marriage. But did EU free movement law give Mr Coman the right to family reunion with his spouse nonetheless?

In the Court’s view, which took a subtly different approach than the Advocate-General’s opinion, the answer was yes. First of all, following established case law, the Court ruled that EU free movement law doesn't apply directly to a Romanian citizen in Romania and his family member, since the EU citizens’ Directive only applies to EU citizens living in another Member State. However, that law applies by analogy, since Mr Coman had moved to another EU Member State and then returned to his Member State of nationality.

In particular, the Court invoked its 2014 ruling in O and B (discussed here), which clarified when family reunion rights applied in this scenario. It’s necessary to have “genuine residence” in another Member State, meeting the conditions for residence longer than three months set out in the citizens’ Directive (see paras 26 and 28 of today’s judgment).

But was Mr Coman’s American husband within the scope of the definition of “family member”, which includes a “spouse” (a term not further defined in the citizens’ Directive)? The Court reaffirmed its prior case law that a “spouse” was “a person joined to another person by the bonds of marriage”. Crucially, it then ruled that “the term ‘spouse’ within the meaning of” the Directive “is gender-neutral and may therefore cover the same-sex spouse of the Union citizen concerned.” While the Directive expressly permits host Member States to apply their own law when admitting registered partners, it makes no such provision regarding spouses, so such a possibility was implicitly ruled out.

The Advocate-General’s opinion made the same point in a different way, arguing  for a uniform EU-wide meaning of the word “spouse” and taking account of the trend inside and outside the EU toward recognition of same-sex marriage. On one issue, however, the judgment and the opinion differ: the opinion refers to recognition of a marriage wherever it was celebrated (para 49, referring to prior CJEU case law), while the judgment refers several times to a marriage concluded in a Member State (paras 33, 35 and 36).

Anticipating the objections from Member States that do not permit same-sex marriage, the Court reiterated that marital status “is a matter that falls within the competence of the Member States and EU law does not detract from that competence”. In particular, “Member States are thus free to decide whether or not to allow marriage for persons of the same sex”. But that freedom had to be exercised consistently with EU law, in particular the right to free movement. Allowing Member States to apply their own law to the residence of non-EU same sex spouses “would have the effect that the freedom of movement of Union citizens who have already made use of that freedom would vary from one Member State to another, depending on whether such provisions of national law exist”.

Next, the Court dealt with the objections of those Member States who had argued that there were “public policy” or “national identity” grounds to refuse admission of same-sex spouses, where they did not recognise the existence of such a concept in national law. On this point, the Court repeated its case law that the “public policy” exception to free movement has to be interpreted strictly, applying “only if there is a genuine and sufficiently serious threat to a fundamental interest of society”. That high threshold was not met here, because recognition of a marriage for these limited purposes “does not undermine the institution of marriage in the first Member State, which is defined by national law”, and “does not require that Member State to provide, in its national law, for the institution of marriage between persons of the same sex”. Rather, it is “confined to the obligation to recognise such marriages, concluded in another Member State in accordance with the law of that state, for the sole purpose of enabling such persons to exercise the rights they enjoy under EU law”. For the same reasons, such an obligation “does not undermine the national identity” of Member States.

The Court added that any measure restricting free movement rights also has to comply with human rights guaranteed by the EU Charter of Rights, which has to be interpreted consistently with the European Convention on Human Rights. According to the case law of the European Court of Human Rights, “the relationship of a homosexual couple may fall within the notion of ‘private life’ and that of ‘family life’ in the same way as the relationship of a heterosexual couple in the same situation.”

In light of its judgment on the meaning of “spouse”, the Court had no need to define what a “partner” was, for the purpose of interpreting either the core definition of “family member” or the “extended family member” rules in Article 3 of the Directive. The Advocate-General’s opinion had argued for a Plan B: if Mr Coman’s husband was not a "spouse" due to Romanian law, he had to be considered a partner or other family member under Article 3. In principle there was a downside to that approach, since the CJEU has ruled that there is no right of admission for extended family members (see the judgment in Rahman; also the pending case of Banger, on whether returnees can invoke Article 3 by analogy as regards their extended family members). However, the opinion argued that due to the marital bond recognised by another Member State, there would be no discretion to refuse admission in this case.

Comments

This judgment falls short of the general requirement to establish same-sex marriage recognised in the US Supreme Court judgment in Obergefell. Inevitably so: the CJEU lacks the jurisdiction to rule on the marriage laws of Member States as such. The ruling only applies to free movement issues – and with some further limitations. Nevertheless it will likely be celebrated (or decried) as part of a more general development of extending same-sex marriage rights across (and outside) the EU.

In order to trigger the application of EU free movement law as regards a same sex marriage, there needs to be movement between Member States. So movement within the UK, from jurisdictions in Great Britain (where same sex marriage is recognised) to Northern Ireland (where it is not) will not count. (In any event, in light of Brexit, anyone anxious to have their same sex marriage recognised in Northern Ireland will have to meet the relevant conditions before the end of the post-Brexit transition period: see discussion here). Moreover, the judgment concerns residence, rather than marriage as such. The residence status of a same sex spouse of an EU citizen who is also an EU citizen is unlikely to be disputed.

Furthermore, the Court (unlike the Advocate-General) laid down two further limitations. It restricted its ruling to marriages concluded within a Member State. At best, it could be argued that the legal position where a same sex marriage was celebrated outside the EU was left open by the Court. Secondly, it made a point of emphasising that a period of at least three months genuinely residing in another Member State was necessary to trigger the rules: couples seeking to overcome the restrictions of their national law will have to spend some time abroad in order to do so. A gay Gretna Green – or a lesbian Las Vegas – will have to offer flats to rent, not just rooms for the night.

With these restrictions, and the Court’s obvious concern to answer the anticipated objections of some Member States (and their courts), the ruling may seem rather grudging to those supporting equal marriage. But such a conclusion would be jumping the gun.  Those who have a same-sex registered partnership, or an unregistered partnership within the scope of Article 3 of the Directive, will be able to invoke the judgment’s strong emphasis on free movement and human rights in support of their claims.  The Court could have chosen the easier option offered by the Advocate-General as Plan B – giving same-sex spouses a right to stay on the basis of Article 3, without defining them as a spouse – but it did not.  There’s a case to be made for reassuring – and eventually persuading – the opponents of equal marriage, rather than lecturing and overruling them.

And there’s a broader perspective too, quite apart from the legal technicalities. In light of the history of pink triangles and Stonewall riots, of chemical castration and teenage suicides, of hatred, bigotry and persecution, the right to move across the European Union with a marriage recognised as an equal affirmation of family life can only be welcomed.

Barnard & Peers: chapter 13, chapter 9

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