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History

"The introduction of a European form of citizenship with precisely defined rights and duties was considered as long ago as the 1960s", but the roots of "the key rights of EU citizenship—primarily the right to live and the right to work anywhere within the territory of the Member States—can be traced back to the free movement provisions contained in the Treaty of Paris establishing the European Coal and Steel Community, which entered into force in 1952." The citizenship of the European Union was first introduced by the Maastricht Treaty, and was extended by the Treaty of Amsterdam. Prior to the 1992 Maastricht Treaty, the European Communities treaties provided guarantees for the free movement of economically active People, but not, generally, for others. The 1951 Treaty of Paris establishing the European Coal and Steel Community established a right to free movement for workers in these industries and the 1957 Treaty of Rome provided for the free movement of workers and services. However, we can find traces of an emerging European personal status in the legal framework regulating the rights and obligations of foreign residents in Europe well before a formal status of European citizenship was introduced. In particular through the interplay between secondary European legislation and the case-law of the European Court of Justice. This formed an embryo of the future European Citizenship, and came to be defined by the practice of freedom of movement of workers within the newly-established European Economic Community.

The rights of an "embryonic" European citizenship have been developed by the European Court of Justice well before the formal institution of European citizenship by the Maastricht Treaty. This could happen after the two landmark decisions in the cases Van Gend en Loos and Costa/ENEL , which established (a) the principle of direct effect of EEC law, and (b) the supremacy of European law over national law, including the constitutional one. In particular, the 1957 Rome Treaty provisions were interpreted by the European Court of Justice not as having a narrow economic purpose, but rather a wider social and economic one.

The rights associated with the European Personal Status were firstly recognized “to certain categories of workers, then expanded to all workers, to certain categories of non-workers (e.g. retirees, students), and finally perhaps to all citizens”. In line with the model of social citizenship proposed by Thomas Humphrey Marshall, the “European Personal Status” or “Proto-European citizenship” was built by recognizing the social rights connected to freedom of movement and freedom of establishment in the first years of the EEC, when workers’ rights in the host state were progressively extended to their family members even beyond the status of "worker" , so as to promote the full social integration of the workers and their families in the host member state.

When Regulation 1612/68 abolished movement and residence restrictions for member state workers and their families in the entire EEC territory, thus ending the transitional period established by article 49 of the Rome Treaty, not only this created the conditions for a full exercise of free movement rights, but a number of important new rights were subsequently recognized by the ECJ, such as: the right to a minimum wage in the host state, the reduction of fares on public transport for large families, the right to a check for disabled adults, interest-free loans for the birth of children, the right to reside with a non-spousal partner, the payment of funeral expenses.

As later stated in Levin, the Court found that the "freedom to take up employment was important, not just as a means towards the creation of a single market for the benefit of the member state economies, but as a right for the worker to raise her or his standard of living". Under the ECJ case-law, the rights of free movement of workers applies regardless of the worker's purpose in taking up employment abroad, to both part-time and full-time work, and whether or not the worker required additional financial assistance from the member state into which he moves.

Before the institution of the European citizenship the ECJ interpreted the status of "worker" it beyond its purely literal meaning, progressively extending it to subjects such as non-economically active family members, students, tourists. This led the Court to hold that a mere recipient of services has free movement rights under the Treaty, so that almost every national of an EU country moving to another member state as a recipient of services, whether economically active or not, but provided they do not constitute an unreasonable burden for the host state, shall non be granted equality of treatment had a right to non-discrimination on the ground of nationality even prior to the Maastricht Treaty.

The Maastrich Treaty dispositions on the status of European citizenship (having direct effect, i.e. directly conferring the status of European citizen to all member states nationals) were not immediately applied by the Court, which continued following the previous interpretative approach and employed European citizenship as a supplementary argument in order to confirm and consolidate precedent law. It was only a few years after the entry into force of the Treaty of Maastricht that the Court finally decided to abandon this approach and to recognize the status of European citizen in order to decide the controversies. Two landmark decisions in this sense are Martinez Sala, and Grelczyk .

On the one hand citizenship has an inclusive character, as it allows its holders freedoms and encourages and enables active participation and active use of these rights. On the other hand, and the following is not meant to diminish this first fact, the inclusion of a certain group results in the differentiation of others. Only through active differentiation and demarcation, i.e. exclusion, an identity with formal criteria can be created.

Due to the history of the EU and its mentioned development, the progress of including and excluding is inevitably full of tensions. Many dynamics in citizenship grounded in the tension between the formal law part and the non-/beyond-law surrounding; such as the enlargement of freedom and rights to every kind of explicitly or implicitly economically active persons. Homeless and poors do not enjoy these freedoms, because of a lack of economic action. The situation is the same when the homestate says someone might not longer enjoy these rights.

Economically inactive  EU citizens who want to stay longer than three months in another Member State have to fulfill the condition of having health insurance and “sufficient resources” in order not to become an “unreasonable burden” for the social assistance system of the host Member State, which otherwise can legitimately expel them.

Relevant case-law [ to be completed - GG ]

In the case of Martinez Sala, the European Court of Justice held that the citizenship provisions provided substantive equal treatment rights alongside those already granted by union law.

The case of Baumbast later established that the right to equal treatment applies equally to both economically active and inactive citizens.

Despite these broad interpretations, the landmark case of Dano combined the criteria of freedom to move and equal treatment, citing them as inter-dependant, subsequently limiting the scope of the Martinez-Sala judgement.

1. The case Chen C-200/02 from 2004 became famous as it led to recognize to a non-European citizen, in this case the mother, the right of establishment in a EU member state as caregiver of her child, who acquired Irish, and then European, citizenship by ius soli. It was considered to be a case of fraud and abuse of the existing law for acquiring a legal status in the EU country by the British government, but the Court rejected such allegeances. Political pressure by the British government on the Irish one led to significant changes to the Irish citizenship law, leading to the abolition of the ius soli in its pure form.
2. The case Rottmann C-135/08 of 2010 was indicative of the commitment ECJ had to prevent abuse of the system, since the Court stated that member states, provided that the principle of proportionality is respected, have the power to withdraw nationality acquired by fraud. As the result of of this case the applicant Janko Rottmann, who lost Austrian citizenship when acquiring the German one, and subsequently lost this latter as it was withdrawn for fraud, remained stateless and the lawsuit was referred to the national courts of Austria and Germany.