THE Court of Justice of the EU has delivered in Ruiz Zambrano (Case C-34/09, not yet reported) an important decision on citizenship of the Union and the scope of EU law.
Mr. Ruiz Zambrano and his wife are Colombian nationals; together with their first child, they arrived in Belgium in 1999 and applied for asylum. Their requests were rejected, but the family was not sent back to Colombia due to the critical situation there. Instead, their presence was temporarily tolerated in Belgium. For many years, they tried to regularise their situation by applying for residence permits, but their applications were rejected. Since 2001, and although he did not have the necessary work permit, Mr. Ruiz Zambrano worked full time and contributed to the social security system. In the meantime, Mr. Ruiz Zambrano and his wife had two more children, both born in Belgium and thus of Belgian nationality. When the authorities found out that Mr. Ruiz Zambrano was working without a work permit, he had to stop. He was also unable to get unemployment benefits. According to the Belgian authorities, Mr. Ruiz Zambrano had no right of residence and, accordingly, no right to work or to related benefits.
Mr. Ruiz Zambrano argued before the national court, first, that he should have a right of residence in Belgium because his two younger children, who are Belgian and have never left the country, are EU citizens; and secondly, that he should be able to work legally in Belgium for the same reason – otherwise, the whole family (including the two children who are EU citizens) would have to leave the country.
This case concerns the proper definition of the scope of EU law: when are economically inactive citizens within the scope of EU law, and thus able to derive rights from it? Due to the division of competences between Member States and the Union, the reach of EU law is limited and a situation needs to fall within the scope of the Treaties for EU law to apply, or be “triggered”. According to the orthodoxy, the free movement provisions require a cross-border element to be triggered (even if sometimes the inter-state element may be weak, e.g.: Case C-60/00 Carpenter [2002] ECR I-6279); the same has been true of the most important citizenship provisions. Citizenship of the EU is established in Art 20 TFEU; from this status derive various specific rights, among them the right to move and reside freely in any Member State (Art 21 TFEU) and the right to equal treatment (Art 18 TFEU). Since a cross-border element has been traditionally required to trigger these provisions, the right of residence that economically inactive citizens derive from their citizenship (relying on a combination of Arts 20 and 21 TFEU) typically implies having moved first. In the absence of such a trigger to bring the situation within the scope of EU law, we are faced with a wholly internal situation, to be regulated by national law. This sharp distinction may result in reverse discrimination, when a person who has not put herself within the scope of EU law is in a worse legal position than someone who has done so and who is thus able to derive certain benefits from EU law.
Indeed, one of these benefits is central to this case: if triggered, EU law may give a derivative right of residence to a minor's caregiver. It was established in Chen (C-00/02, [2004] ECR I-9925) that a minor who is an EU citizen may rely on Arts 20 and 21 TFEU to move and reside in a different Member State; as a consequence, EU law also gives the child's caregiver, a third country national, a derivative right to reside in the host Member State with the child, as long as that person has sufficient resources. Ruiz Zambrano is different because it concerns two Belgian minors residing in their own country of nationality, what would normally be considered a wholly internal situation. The orthodox approach, reflected in both previous case-law and secondary legislation, would be to say that, although the children are EU citizens, there is no (as yet) cross-border element that brings them within the scope of EU law and allows them to activate their full range of citizenship rights – specifically, a derivative right of residence for their father.
AG Sharpston argued that the fundamental rights overtones of the case (the right to family life and the duty to protect children's rights) should make the Court of Justice adopt a more generous interpretation of the treaty provisions on citizenship. The AG's first choice was for the Court to rely on Articles 20 and 21 TFEU, while adopting a wider interpretation of the latter provision: one that included the right to reside in one's own Member State as a matter of EU law, taking away the need for cross-border movement as a trigger. Interferences with this right would be possible, if justified and proportionate. In the alternative, the AG suggested that the Court accept the labelling of the situation as a wholly internal one, but that the Court change its approach to such situations by allowing EU citizens suffering reverse discrimination to rely on Article 18 TFEU (right to equal treatment), at least in certain situations.
In a very short judgment, the Court found yet a third way to allow the Ruiz Zambrano family to rely on EU law. The Court decided not to use Article 18 TFEU, leaving that particular Pandora's box unopened. Neither did the Court rely on a combination of Article 20 and a wider reading of Article 21 TFEU. Instead, the decision rests solely on Article 20 TFEU, which establishes citizenship of the Union. The Court found that this provision “precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union” [para. 42]. Thus the children fell within the scope of EU law, and Mr. Ruiz Zambrano derived from this not only a right of residence (as in Chen) but also the right to work in order to provide the necessary, sufficient resources.
This decision extends the scope of EU law; the only question is how far. The Court had recently come to the conclusion that citizens can rely on Article 20 TFEU whenever they risk losing their status as citizens, and without an intra-EU cross-border element (although there was such an element in the case, the Court's decision did not make it a requirement: C-135/08 Rottmann; judgment of 2 March 2010, not yet reported); in Ruiz Zambrano, this seems to have been extended to situations where the effective enjoyment of the substance of this status is in jeopardy; in those cases, it seems that the threat to the status as a citizen or to its core is so great that it is enough to bring the situation within the scope of EU law, without the need for further triggers. This is indeed a dramatic conclusion, and it may lead to even further extension of the scope of citizenship in the future – especially because we do not yet know what exactly constitutes this “core” of the status of citizen (may it come to include family reunification for adult citizens residing in their own Member State?), or how grave the threat should be (does it have to entail possible prevention of any future enjoyment?). All of this will have to be clarified in future case-law (e.g. in C-434/09 McCarthy, pending).
For now, though, the Court may have left open the possibility of limiting Ruiz Zambrano to cases of a certain gravity: after all, the citizens in this case were children and thus particularly vulnerable, and the potential threat was for them to have to leave the territory of the Union indefinitely, preventing future enjoyment of the status of citizens. This may be the reason why the Court did not rely on Article 21 TFEU and did not, at least explicitly, take the cross-border element out of this provision: arguably, that would have been a greater extension of the scope of EU law. At least for the moment, it is still possible to argue that only certain cases come within the exception created in Ruiz Zambrano, whereas others still need to comply with the orthodox requirements (set out in case-law and secondary legislation) concerning Article 21 TFEU. Of course, one could argue that the line between both kinds of situations is fuzzy or even arbitrary, and possibly bound to disappear. Be that as it may, this decision is a controversial and historic step in the development of EU citizenship, and one that may make even more Member States rethink their rules on acquisition of nationality.
