Jeremy Bierbach: lawyer, Franssen Advocaten; associate, Amsterdam Centre for European Law and Governance
Photo credit: Cedric Puisney, via Wikimedia Commons
Introduction
In Eric Stein’s groundbreaking
1981 article on the then-Court of Justice of the European Communities,
“Lawyers, Judges, and the Making of a Transnational Constitution”,[1] he wrote:
Tucked away in
the fairyland Duchy of Luxembourg and blessed, until recently, with benign
neglect by the powers that be and the mass media, the Court of Justice of the
European Communities has fashioned a constitutional framework for a
federal-type structure in Europe.
But the Court is now consciously
stepping out from its traditional hermitage to give greater exposure to its
role in upholding the rule of law in the European Union, at a moment in time
when courts in many legal systems are increasingly being called on to rule on
the permissibility of governments’ attempts to limit citizens’ rights.
On 25 March 2025, a remarkable
hearing took place before the Grand Chamber of the Court of Justice of the
European Union. That I can even write about it is thanks to the Court’s
introduction of a video streaming service, as of 26 April 2022.[2] While hearings involving oral pleadings before the
Grand Chamber are not streamed live, they are made available with a delay
(starting later on the same day), and remain available to view for an entire
month after the hearing (as of 1 October 2024).[3] The
streaming service has ingeniously patched audio streams of all of the languages
of the EU over the video— or at least all of the languages for which
interpretations are available, including the language of the case, just as if
the viewer is sitting in the courtroom and turning the dial to select the audio
for her or his earpiece. The Court’s most recent expansion of the streaming
service was based on a conscious decision, with the imprimatur of the Council,[4] to increase the transparency of the Court’s
workings and make the content of hearings, not just the Court’s own
publications, available for academic analysis.
The preliminary reference in Safi: background
I will hereby present the most
interesting points that I transcribed from the hearing while it was available.[5]The language of this case, named Safi (a pseudonym
for the plaintiff), was Dutch, because it concerned a preliminary reference
from a district court in the Netherlands. At stake is the proper interpretation
of Article 20 of the Treaty on the Functioning of the European Union (TFEU),
which (with relatively minor differences from the current formulation) had been
introduced as Article 17 of the EC Treaty with the Treaty of Maastricht
founding the European Union in 1993 (current formulation below) :
1. 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.
2. Citizens
of the Union shall enjoy the rights and be subject to the duties provided for
in the Treaties. They shall have, inter alia:
|
(a) |
the right to move and reside
freely within the territory of the Member States; |
|
(b) |
the right to vote and to stand
as candidates in elections to the European Parliament and in municipal
elections in their Member State of residence, under the same conditions as
nationals of that State; |
|
(c) |
the right to enjoy, in the
territory of a third country in which the Member State of which they are
nationals is not represented, the protection of the diplomatic and consular
authorities of any Member State on the same conditions as the nationals of
that State; |
|
(d) |
the right to petition the
European Parliament, to apply to the European Ombudsman, and to address the
institutions and advisory bodies of the Union in any of the Treaty languages
and to obtain a reply in the same language. |
These rights
shall be exercised in accordance with the conditions and limits defined by the
Treaties and by the measures adopted thereunder.
It is clear from the content of
the streamed hearing in Safi (in which the Conclusion of Advocate-General
Ćapeta will be issued on 4 September 2025, and the Court’s judgment can be
expected sometime around the beginning of 2026), that Safi will be
a very momentous judgment on Article 20, which can be said to represent the
most idealistic norm of what EU citizenship is destined[6] to
be.
Safi will be the
latest judgment in a saga on rights of residence for third-country national
parents of young EU citizens (in those young EU citizens’ own member states of
nationality), based on Article 20, that began with Ruiz Zambrano,[7] then continued with Rendón Martin,[8] and most recently the judgments on preliminary
references from Dutch courts Chavez-Vilchez,[9] E.K.[10] (as a ruling on whether an Art. 20 right of
residence is ‘temporary’ in the sense of Art. 3(2)(e) of the Long-Term Resident
Directive, 2003/109) and X. v.Staatssecretaris van Justitie en Veiligheid (also
known as Mère thaïlandaise d’un enfant mineur néerlandais).[11]
The reason for the prominence of
preliminary references from Dutch courts is that the Dutch government has
consistently sought out the innermost boundaries of as stingy as possible an
implementation of the Court’s case law on Art. 20. After Ruiz Zambrano,
in which the third-country national father of a young Belgian child (whose
mother was also a third-country national) was deemed to have a right of
residence in Belgium based on Art. 20, the Dutch government considered that
third-country national parents of young Dutch children would only have a right
of residence if the other (inevitably Dutch national) parent was dead or
otherwise incapacitated to care for the child alone. The Court put paid to that
interpretation in Chavez-Vilchez, in which it ruled that denial of a
right of residence to the third-country national parent, in cases where the
Dutch parent was theoretically capable of caring for the child alone, but where
the child was also dependent on the third-country national parent, would also
mean that the child “be compelled to leave the territory of the European Union
as a whole and thereby deprived of the genuine enjoyment of the substance of
the rights conferred on him by” Art. 20, taking into consideration Art. 24(2)
of the Charter of Fundamental Rights, the rights of the child.
The Court’s judgment in Mère
thaïlandaise, in turn, was spurred by a preliminary reference on the Dutch
government’s claim that the doctrine did not apply when the child (who in this
case lived in Thailand with his grandmother) did not already reside in the
Netherlands, or even in the EU. In this case, as well, the Court was compelled
to complete the rather obvious syllogism that the right not to be compelled to
leave the territory also implied a right not to be effectively denied access to
the territory of the European Union by not be ensured of accompaniment by a
third-country national parent on whom the child is dependent, and also further
ruled on the significance of Art. 24(2) Charter.[12]
The preliminary reference in Safi was
engendered by the Dutch government’s latest attempt to apply the Court’s case
law as literally as possible. Ms. Safi (the Court’s pseudonym for the
plaintiff) is the Moroccan mother of a young Dutch child, claiming a right of
residence in the Netherlands, together with the child and her Dutch husband,
based on Art. 20. However, she is in the possession of a permanent residence
permit in Spain. Therefore, the Dutch government claims, her child would not in
fact be compelled to leave the territory of the European Union as a whole; the
child and his father can make use of Art. 7 of Directive 2004/38 (based on
their right of freedom of movement, Art. 21(1) TFEU) to move to Spain, where
the family could be intact.
Ms. Safi claims, on the other
hand, that this would be anything but in the interests of the child: her son
has language and learning disabilities and is currently receiving special education
in his Dutch school. To be forced to go to a Spanish primary school in a
completely new language would hinder his development even more. Moreover, her
husband is unable to work and lives on a disability benefit, so he would be
unlikely to be able to legally reside in Spain as a ‘worker’ on the basis of
Art. 7 Directive.
The hearing
The Danish agent at the Court, as
the representative of the only other member state to intervene, expresses
support for the Dutch government’s standpoint. But the Dutch agent at the
Court, responding to these arguments at the hearing, gives a rather hapless
impression. The viewer would suspect that the baseline intransigence of all of
the last five Dutch governments, when it comes to an unwillingness to
generously interpret Art. 20 TFEU, is now amplified by the fact that the Dutch
agent is being instructed by a civil servant (seated next to him) who is
presumably representing the defendant, the Minister of Asylum and Migration, at
the time Marjolein Faber-van de Klashorst of Geert Wilders’ hard-right Freedom
Party (PVV).[13]
The agent appears to be unable or
unwilling to respond to the A-G’s and the judges’ questions with compelling
arguments based on EU law and the Court’s own case-law. In particular, his
repeated insistence that the Dutch government’s decision to deny Ms. Safi’s
application was in conformity with EU law because it ensured that the right to
family life, based on Article 8 of the European Convention on Human Rights,
would not be infringed (because the family could be intact in Spain), seems to
arouse barely concealed irritation on the part of the Advocate-General when she
is questioning him. She goes on to ask, as to the substance of Art.
20 as established in Ruiz Zambrano (at 1h23m), why the child’s Art. 20 rights
would be violated if he was compelled to move to Morocco, in the Dutch
government’s view, but not if he was compelled to move to Spain. The Dutch
agent can only speculate, in response (1h26m), that it might be more difficult
for the child to move back to the Netherlands from Morocco in the future than
it would be for the child to make use of freedom of movement to move back from
Spain to the Netherlands or another member state.
Turning to the Commission, the
A-G asks, among other things (1h27m): “Article 20... says that the citizens of
the Union shall enjoy the right to move and reside within the territory of the
member states. Do you think that this might have any influence in this case? I
mean, is the minor who is forced to move to another member state because his
mom is not given the derived right of residence residing or moving
"freely"?”
The agent of the Commission
responds (1h28m, speaking Dutch, my transcription of the English interpreter):
“If the child is forced to move to a member state where the child cannot live
in a way that's compatible with his best interests and the right to family
life, then that of course is not "free movement".”
Even more revealing were the
questions and comments of the judges, first of all Vice-President Von Danwitz
directly asking the agent of the Dutch government (speaking in French, my
transcription of the English interpreter, 1h31m): “Now, we're getting the
impression somewhat, or I'm afraid that I could get the impression, that here
what is trying to be done is to take something that in my mother tongue is
called "schwarzen Peter spielen". In other words, you want to avoid
the social burden by passing the buck in relation to this particular family.
Now, just before, you said that the Dutch authorities had concluded that in
fact, in Spain, the family could live autonomously. They would be able to
provide for their own subsistence. But if the Netherlands were to grant a right
of residence to the mother of the child concerned, the mother would be able to
start working again and could potentially allow the family to make ends meet.
So the same trajectory that you suggest would be possible in Spain. So why
doesn't such an option exist in the Netherlands?”
President Lenaerts immediately
adds the clarification (speaking in Dutch, 1h34m, my translation): “May I be
more blunt? The Dutch father now lives from a social benefit in the
Netherlands. If the family is deported to Spain, then that benefit would no
longer be paid out. That might create the impression that the Netherlands is
dumping its social burden on another member state.”
Later on (1h41m), Judge Jürimäe, visibly irritated at an evasive answer
provided by the agent of the Dutch government: 'Yes, but we just established
that this is about the child and his Article 20 [Treaty on the Functioning of
the European Union] rights, in conjunction with the Charter, and you [the
Netherlands] are avoiding that issue in these proceedings. I'm talking about
the rights of the child.'
Later on (1h43m): Judge Jääskinen: “Why are we having this case here? Does the
Netherlands legislation include residence permits for the family members of
Dutch citizens? ... I think in many member states you normally give a residence
permit to the spouse or family member of a citizen, but in your member state,
you have something more complicated.”
Later on (1h51m), in response to
the agent of the Dutch government once more insisting, in response to the
judge’s questions, that it can be assumed that the family would be able to be
go together to Spain and there would thereby be no violation of art. 20 TFEU,
Jääskinen says: “Doesn't this then mean, I refer to the ‘schwarzer Peter’
argument, that actually you are making an implied expulsion of your own
citizens, you are counting that your own citizens are forced to leave because
of the family circumstances?”
President Lenaerts clarifies in
Dutch (my own translation, improving on the English interpreter): “Judge
Jääskinen’s question is in relation to what the Netherlands has pointed out:
the Netherlands is expecting two of its own nationals, the father and the son,
to leave the Netherlands, their own country of nationality, all to get rid of
the mother.”
Analysis
The Advocate-General’s Conclusion
on 4 September, judging from the hearing, promises to be interesting. The
questions that she can be expected to come to grips with are:
Whether an EU citizen (any EU
citizen) can effectively be compelled to make use of freedom of movement based
on Art. 21(1) from her or his own member state of nationality to a host member
state, or if Art. 20 TFEU prohibits this. Then the following question would be
when such a prohibition would be triggered:
-
with regard to young EU citizen children, when
the rights of the child based on Art. 24(2) Charter are not taken into account;
or
-
with regard to adult EU citizens, if the citizen
in question is dependent on social assistance in his or her home member state
and is unlikely to be able to satisfy the conditions set in Art. 7 Directive
2004/38 of being a worker, being self-employed or having sufficient resources.
As to the last subquestion: Vice
President Von Danwitz’s question and President Lenaerts’s qualification of it
were in fact quite revealing of this angle, which had probably not been
envisaged by the parties in their own submissions. But their questions possibly
foreshadowed the Court’s judgment Commission v. Malta,[14] which
was handed down less than two months later, on 29 April 2025. In that judgment,
the Court ruled that Malta’s citizenship by investment programme, by which the
nationality of Malta, and therefore also EU citizenship, could be obtained in
exchange for a nearly negligible period of actual residence and a substantial
investment, violated Art. 20 TFEU and Art. 4(3) TEU, the principle of sincere
cooperation.
The Court thereby ruled that Art.
20 TFEU was not merely a Treaty right that is of interest for individuals, but
that it also has a dimension relating to the interests of the member states
severally, considering that the grant of nationality in one member state gives
the holder access to freedom of movement in the entire Union. If one member
state grants its nationality too easily, therefore, the movement of those newly
minted EU citizens could be seen as noxious to the other member states.[15] Critics of the judgment claimed that this
meant that EU citizenship was being made to be “thicker”, in terms of setting
substantive conditions for the grant of member state nationality.[16]
But it seems that the Court could
rule in a similar vein that it is equally in violation of the principle of
sincere cooperation for a member state to compel the movement of its own
nationals to a host member state where they will potentially become a burden;
therefore Art. 20 TFEU militates in favour of a right to remain in one’s own
member state, where access to social assistance is unlimited.
It is the individual interests of
the Union citizen that will be most augmented by the judgment on Art. 20 TFEU
that is to be expected. It is perhaps not accidental that Ms. Safi and her child
are (Dutch-) Moroccan, members of a heavily stigmatized minority in Dutch
society. Geert Wilders, the leader and sole member of the PVV party that the
defendant minister of the Dutch government served on behalf of, was in fact
convicted on hate-speech charges in 2014 for making a promise to deport people
(citizens and non-citizens alike) from Moroccan backgrounds.[17] In
light of the final quote from President Lenaerts cited above, it certainly
looks like the minister’s interpretation of EU law aimed to serve that very
goal. Therefore, Art. 20 TFEU could serve as a key backstop against member
states attempting to ‘alienize’ and effectively deport their own nationals;
indeed providing a ‘thickness’ in terms of basic civil rights that EU citizens’
own member states’ legal systems may be lacking.
[1] E.
Stein, ‘Lawyers, Judges, and the Making of a Transnational Constitution’ (1981)
75 The American Journal of International Law1–27.
[2] https://eucrim.eu/news/new-streaming-service-at-cjeu-website/#:~:text=Since%2026%20April%202022%2C%20citizens,the%20delivery%20of%20the%20judgments.https://www.politico.eu/article/eus-top-court-embraces-digital-age-with-streaming-service/
[3] President
of the Court Koen Lenaerts, in an interview with Prof. Katerina Linos, at 1h25mhttps://podcasts.apple.com/nl/podcast/cjeu-episode-2-european-union-court-of-justice/id1592768751?i=1000675376975&l=en-GB
[4] In
the words of President Lenaerts himself, supra n. 3
[5] I
previously presented them on 10 May 2025 at the conference of the European
Union Studies Association, Panel 10L, in Philadelphia.
[6] ECJ
Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve (2001),
vol. C-184/99. “Union citizenship is destined to be the fundamental status
of nationals of the Member States, enabling those who find themselves in the
same situation to enjoy the same treatment in law irrespective of their
nationality, subject to such exceptions as are expressly provided for.”, par.
31.
[7] https://curia.europa.eu/juris/liste.jsf?num=C-34/09
[8] https://curia.europa.eu/juris/liste.jsf?language=en&jur=C,T,F&num=c-165/14
[9] https://curia.europa.eu/juris/liste.jsf?language=nl&num=C-133/15
[10] https://curia.europa.eu/juris/liste.jsf?num=C-624/20
[11] https://curia.europa.eu/juris/liste.jsf?num=C-459/20
[12] For
a critical note, however, see Harvey D. The Best Interests of the Child Need
Not Necessarily be a Primary Consideration: ECJ 22 June 2023, Case C-459/20, X
v Staatssecretaris van Justitie en Veiligheid (Mère thaïlandaise d’un enfant
mineur néerlandais). European Constitutional Law Review. 2024;20(4):569-592.
doi:10.1017/S1574019624000397 https://www.cambridge.org/core/journals/european-constitutional-law-review/article/best-interests-of-the-child-need-not-necessarily-be-a-primary-consideration/B0A6F9C4D7496110F50E2D9357967914?utm_campaign=shareaholic&utm_medium=copy_link&utm_source=bookmark
[13] The
PVV withdrew all its ministers from government on 3 June 2025 over its
insistence that the other coalition parties were not doing enough to put an
immediate stop to asylum-related migration to the Netherlands, causing the
government to collapse and go into caretaker mode; new elections for the lower
house of Parliament will be held on 29 October 2025.
[14] https://curia.europa.eu/juris/documents.jsf?num=C-181/23
[15] I
am consciously referencing the considerations of James Madison, Federalist 42,
in favor of what became the unified rules for naturalization in the United
States.
[16] https://verfassungsblog.de/eu-citizenships-new-essentialism/
[17] https://www.economist.com/europe/2025/08/28/after-a-year-of-chaos-the-dutch-hope-to-return-to-real-issues?giftId=0a5ba70a-777c-4d03-95b8-5c73bfa185a0&utm_campaign=gifted_article
_in_Luxembourg_with_flags_0017_(1674479483).jpg){kind=link}