A. International Law and Citizenship
The relationship between EU law and international law has, again, recently occupied the European Court of Justice with respect to the compatibility of the EU Treaty with international obligations. It will be recalled that in the Kadi judgmentFootnote 1 the Court examined whether adoption of a UN Resolution in the form of a Council RegulationFootnote 2 which, prima facie, restricted the fundamental rights of Kadi was congruent with principles of EU law. In Kadi, the Court, adopting a constitutionalist position with regard to the protection of fundamental rights, held that protecting the applicant's fundamental rights under the Treaty was a priority which could not be diminished, even when the EU was implementing a UN Resolution into EU law. Thus, in Kadi, the Court concluded that providing clear fundamental rights safeguards through judicial review of the Regulation was a fundamental principle of EU law. To this extent, the Court was only prepared to accept compliance with internal obligations if they were harmonious with principles of fundamental rights norms, as understood through the case law of the Court.
Kadi was criticized for bringing the EU into conflict with the UN and, more generally because the Court,Footnote 3 through its judgment, had chosen a path which would take the EU away from the general principles of international law and the principle of loyal cooperation which is referred to in Article 5 TEU. In the recent judgment of Hungary v Slovakia,Footnote 4 the Court had another opportunity to review the relationship of the EU Treaty and fundamental rights norms with principles of international and diplomatic law. What is particularly interesting about this dispute is that the case concerns an action for infringement under Article 259 TFEU between two Member States where the substance of the dispute concerns the rights of the President of Hungary to use Article 21 TFEU as a defence against his exclusion from the territory of another Member State. The reason for this exclusion is primarily historical and relates to the days of the Communist era. The dispute concerned long-standing diplomatic tensions between the two Member States relating to the invasion of what was then Czechoslovakia, by Hungarian troops, among others, to quell the so-called ‘Prague Spring’ uprising in 1968. The Court was required to reconcile the position of the Head of State under international law with the rights of free movement under the Treaty and especially the Citizenship provisions of Article 21 TFEU and the derogations found in Directive 2004/38, the Citizenship Directive.
1. Case law
a) Facts
On the invitation of an association based in Slovakia, the President of Hungary, Mr Sólyom, had planned to go to the town of Komárno (Slovakia) on 21 August 2009 to take part in the ceremony inaugurating a statue of Saint Stephen of Hungary. After several diplomatic exchanges between the embassies of the two Member States regarding President Sólyom's planned visit, the three highest representatives of the Slovak Republic, namely, the President of the Republic, Mr Gašparovič, the Prime Minister, Mr Fico, and the President of the Parliament, Mr Paška, adopted a joint declaration in which they indicated that President Sólyom's visit was considered inappropriate, having regard in particular to the fact that he had not expressed any desire to meet Slovak dignitaries and that the chosen date was particularly sensitive. Eventually, the Hungarian President was refused entry on the security grounds. Hungary claimed that this was in breach of EU law, in particular Article 21 TFEU and Directive 2004/38 on free movement of persons. Not surprisingly, the nature of the dispute and the potential diplomatic ramifications meant that the case was dealt with by the Grand Chamber of the Court of Justice. In March 2011 the Advocate General Bot presented his Opinion, in which he argued that EU law does not apply to official State visits therefore the action submitted by Hungary as per Article 259 TFEU should be dismissed. The Court of Justice followed the conclusion of the Advocate General and held that EU law on the free movement of persons was not applicable to the case at hand.
b) The question of jurisdiction
The Slovak Republic argued that the Court had neither the jurisdiction to hear the case and that, in any event, in the light of the application of international law in this case, EU law would not be applicable. By contrast, Hungary with the full support of the Commission, argued that Member States, having undertaken under Article 344 TFEU not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided by Article 344 TFEU,Footnote 5 the Court has sole jurisdiction to hear and determine a dispute between these two Member States concerning the interpretation of EU law. In particular, where a Member State that considers that another Member State is in breach of EU law, it could either request the Commission to initiate infringement proceedings in accordance with Article 258 TFEU, or bring such an action directly before the Court pursuant to Article 259 TFEU.
Hungary made four substantive complaints against the Slovak Republic which raised specific jurisdictional issues in relation to the substantive question of the application of the Treaty and Directive 2004/38. First, Hungary argued that the Slovak Republic infringed Article 21(1) TFEU and Directive 2004/38 when it refused President Sólyom entry into its territory. Second, Hungary claimed that there was a real risk that the Slovak Republic may, in the future, repeat the infringement of Article 3 TEU, Article 21 TFEU and Directive 2004/38. In its view, that there was such a risk was confirmed by several statements made by the Slovak authorities — including, in particular, those of the Slovak Minister for Foreign Affairs of 16 December 2009 and of the Slovak Prime Minister of 15 March 2010 — to the effect that their conduct in regard to the President of Hungary did not infringe EU law. On that basis, Hungary argued that this was an ongoing restriction of free movement rights. Third, Hungary claimed not only that the practice adopted by the Slovak authorities was contrary to Directive 2004/38, but that the very fact of basing the note verbale of 21 August 2009 on that directive is covered by the concept of the abuse of rights, as defined by the case law of the Court, for example, Emsland-Stärke.Footnote 6 The effect of such authorities, Hungary argued, was to prevent the abuse of rights within a directive and in this case that meant not using the directive to pursue what constituted overtly political aims. Finally, Hungary claimed that, if the Court were to decide that the rules of international law, and not EU law, apply in the present case, it should then specify the personal scope of those rules in order to clarify the limits to the application of Article 21 TFEU and Directive 2004/38 so far as bilateral relations between Member States are concerned. In particular, the Court should specify whether those limits concern only Heads of State, or whether they also apply to other categories of Union citizens. The relevance of this final question to the case before the Court was challenged by the Slovak Government.
The Court rarely hears such disputes between two Member States where it is required to adjudicate on diplomatic relationships between them and especially where it is asked to apply the fundamental provisions of free movement of persons and citizenship to a dispute involving two Member States. The Court held that it has jurisdiction to hear and determine this action for infringement, inasmuch as the dispute between Hungary and the Slovak Republic is based on an alleged infringement of EU law.Footnote 7 It also noted that, irrespective of the substance of the dispute, the Court did have jurisdiction under Article 259 TFEU to rule on the existence of a possible failure to comply with that law and that on this basis a prima facie cause of action did exist. In this action the Court was requested to determine the full significance of the rules on citizenship of the Union and, in particular, to decide whether the Head of State of a Member State may be regarded as a citizen of the Union when fulfilling his public duties in another Member State. It was thus wholly appropriate for the Court to consider, in accordance with Article 344 TFEU, that the dispute on the interpretation and application of the Treaty concerning citizenship of the Union should be settled by the Court by means of one of the procedures provided for in that Treaty, in this case Article 259 TFEU.
c) The application of EU citizenship provisions
Under its first head of complaint, Hungary maintained that the Slovak Republic infringed Article 21(1) TFEU and Directive 2004/38 when it refused the President of Hungary entry into its territory because the Hungarian Government claimed, in particular, that Directive 2004/38 applies to all EU citizens, including a head of State acting in his capacity as a head of State, and to all types of visits, that is to say, both official and private. With regard to the relationship of Directive 2004/38 with international law if the EU had wished to make the exercise of freedom of movement subject to rules of international law, they would have made provision to that end, as they did, for example, in Article 3(2)(f) of Council Directive 2003/109/EC.Footnote 8 No such rules of international law are in existence. Thus, based upon the principle of loyal cooperation between EU law and international law, which has been recognized in the case law of the Court,Footnote 9 including by the Court in the Kadi judgment, the EU legislature must respect international law. Consequently, if such rules existed, Hungary argued that Directive 2004/38 would have taken them into account. In any event, even assuming that such rules exist, Hungary considered that their application cannot compromise the effectiveness of EU legislation, such as Directive 2004/38, by introducing a derogation with regard to its personal scope.
The Slovak Republic, first, rejected the presumption that the fact that Directive 2004/38 does not provide for any derogation concerning the movement of Heads of State does not mean that that directive applies to them, the application of EU law to heads of State being excluded by the Treaties themselves. Second, the Slovak Republic, like the Commission, challenged the comparison drawn between Directive 2004/38 and Directive 2003/109, insofar as those two texts deal with different subjects, the second relating to better integration of immigrants lawfully present in a Member State. Third, the judgments in Poulsen and Diva Navigation Footnote 10 and in Racke Footnote 11 do not create any obligation requiring the EU legislature to indicate, for any act of secondary legislation, the material and personal scope of the Treaties in the context of international law. Fourth, the judgments in joined cases RTE and ITP v Commission Footnote 12 and Bogiatzi Footnote 13 are relevant only to the extent if the competence of the Union is not contested, which was not the position here.
In assessing the applicability of Article 21 TFEU in the present case the Court repeated that citizenship of the Union is intended to be the fundamental status of nationals of the Member StatesFootnote 14 and that principle was not in dispute. What was in dispute was the applicability of Article 21 TFEU to President of a Member State who, in this case, was seeking to rely upon the provision in his official capacity. The Court was in doubt that as a Hungarian national the President was clearly a citizen of the EU for the purposes of Article 21 TFEU and has the right to move and reside freely across the EU.Footnote 15 The Court disagreed with Hungary, however, and distinguished between the application of Article 21 TFEU in circumstances where the President was moving for reasons related to the fulfilling of his public duties and occasions when he would be moving in a purely private capacity.Footnote 16 In the case of the former, EU law must, the Court held, be interpreted in the light of the relevant rules of international law, since international law is part of the European Union legal order and is binding on its institutions.Footnote 17
To determine the precise status of the Hungarian President on this visit the Court thought it helpful to examine customary rules of general international law and those of multilateral agreements under which the Head of State enjoys a particular status in international relations which entails a number of privileges and immunities. In particular, the Court made direct reference to Article 1 of the New York Convention of 14 December 1973 on the Prevention and Punishment of Crimes against Internationally Protected Persons and concluded that every head of State, while on the territory of a foreign State, enjoys the protection afforded by Article 1 of the New York Convention. On this interpretation the status of Head of State therefore has a specific character, resulting from the fact that it is governed by international law, with the consequence that the conduct of such a person internationally, such as that person's presence in another State, comes under that law, in particular the law governing diplomatic relations and not EU law. The effect of this interpretation, which the Court approved, is to distinguish between a person who enjoys that diplomatic status from all other EU citizens, with the result that that person's access to the territory of another Member State is not governed by the same conditions as those applicable to other citizens. On this analysis the Court could come to no conclusion other than the fact that when an EU citizen performs the duties of a Head of State, this is sufficient to justify a limitation, based on international law, on the exercise of the right of free movement conferred on that person by Article 21 TFEU. This would place a clear boundary with regard to the outer reaches of Article 21 TFEU by recognizing that, by the exercise of an official public duty, a person employed by the State may not be able to rely upon Article 21 TFEU. What is not clear from the judgment is at what point a visit by a President or other head of State will be undertaken in a purely private capacity. While the facts of this case are relatively clear and neither Hungary nor the Slovak Republic viewed the visit as a private one, the effect of the Court's decision is to formally distinguish between the two for the purposes of the application of EU law. This may lead to problems in the future where a visit by a Head of State to another Member State may have a dual public and private dimension. In such cases it is not clear how far the Court's typology would be as helpful. To this extent it may be considered that the points raised by Hungary with regard to the outer reaches of this derogation did have some validity. Given that the Court concluded that it is the rules of international law, and not those of EU law, that apply in this case, it should, perhaps, have specified more clearly the personal scope of those rules in order to clarify the limits to the application of Article 21 TFEU and Directive 2004/38 so far as bilateral relations between Member States are concerned. In particular, the Court should have specified whether those limits concern only Heads of State, or whether they also apply to other categories of Union citizens, for example, senior civil servants visiting other Member States in an official capacity.
Though the Court dismissed the third complaint made by Hungary that there was abuse of Directive 2004/38 and that the exclusion was politically motivated, the Court found that following its established case law no abuse was present. Moreover, in this case the conditions laid down for the application of Directive 2004/38 were not formally complied with. Since the only act making reference to that Directive is the note verbale of 21 August 2009 from the Ministry of Foreign Affairs of the Slovak Republic to the Ambassador of Hungary in the Slovak Republic, no decision for the purposes of Article 27 of Directive 2004/38 had been adopted by the competent national authorities or, a fortiori, notified to Mr Sólyom in accordance with Article 30 of that Directive.
Finally, with regard to the fourth question before the Court- namely, the potential for repetition of the actions by the Slovak Republic - the Court repeated its finding that there had not been any infringement of EU law, essentially because EU law is not applicable to the case. On this basis the Court held that there is consequently no risk of repetition. Moreover, this risk of further infringement is contingent upon the possible future conduct of the Slovak authorities, which the Court held was irrelevant.Footnote 18
The judgment of the Court is not unsurprising and reflects a very traditional understanding of the relationship of EU law with international law. That said, the dispute in this case could be described as no more than a ‘local argument’ between two neighbouring Member States that was essentially political in its nature and did not have the same constitutional significance upon the EU as did the Kadi dispute. In Kadi, it will be recalled, the Court was defining the scope of fundamental rights protection in EU law and providing a hierarchy of norms with regard to individuals and the protection of their fundamental rights. Unlike Kadi, where the Court considered the substantive application of the fundamental rights in the Treaty, in Hungary v Slovakia, the Court broadly concluded that there was no substantive EU law issue at stake. It is for that reason that a return to a more orthodox understanding by the Court of the relationship between EU law and international law can be identified.
B. Third-Country Nationals and EU Citizenship
1. Introduction
The rights of third-country nationals (TCNs) under EU law, and especially their citizenship rights have been the subject of significant judicial consideration. One of the EU's objectives is to create an area of freedom, security and justice. The aim of this objective is to secure internal free movement for citizens of the Union and TCNs who have entered the EU legally.Footnote 19 The case law has extended the rights of TCN family members sometimes using human rights concepts. In some cases the EU has concluded agreements with third countries under which their nationals may enter the EU and enjoy limited economic rights, for example, the EEA agreement, the Europe Agreements leading up to the 2004 enlargement of the EU in May 2004 and the EU–Turkey Agreement.Footnote 20
The issue of TCNs who are lawfully resident in the EU also raises the related and sensitive subject of family reunification and in particular what rights TCNs may have to be joined by family members. This requires the Court to consider the proportionality of national decisions and to determine the boundaries of how to apply Directive 2003/86/EC on the right to family reunification. In two recent cases from Finland, S v Maahanmuuttovirasto and Maahanmuuttovirasto v L,Footnote 21 the Court examined whether a TCN's right of residence in a Member State could be derived from the Union citizenship of a child of which he is not the parent, but the step-parent, and considered the scope of the application of recent judgments, such as Ruiz Zambrano,Footnote 22 which lay out factors for national courts to consider when considering such disputes.
2. Case law
a) Facts
In these recent joined cases references for a preliminary ruling under Article 267 TFEU were made in proceedings, first, between Mr O and Ms S, who are TCNs, and the Maahanmuuttovirasto (Immigration Office) (Case C-356/11) and, second, between the Maahanmuuttovirasto and Ms L, also a TCN (Case C-357/11), concerning the rejection of their applications for residence permits on the basis of family reunification. In Case 356/11, S was a Ghanaian national who resides in Finland under a permanent residence permit. In July 2001, she married a Finnish national, with whom she had a child in 2003. That child, as a Finnish national, is a citizen of the Union but never exercised any rights to freedom of movement. S was granted sole custody of the child from June 2005, when her marriage ended in divorce. The father of the child continued to live in Finland. The decision to refer notes that S, during her stay in Finland, had studied, received maternity leave, participated in a training programme and been employed.
In June 2008, S married O, an Ivory Coast national. As S's husband, O submitted an application for a Finnish residence permit to the Maahanmuuttovirasto. In November 2009, S and O had a child, of Ghanaian nationality and of whom the parents have joint custody. S and O live together with S's two children. The decision to refer to the Court of Justice noted that on 1 January 2010 O signed a contract of employment for a period of one year, under which the regular working hours were eight hours a day and the pay EUR 7.50 per hour. O did not, however, produce evidence proving that he actually worked in accordance with that contract. By its decision of 21 January 2009, the Maahanmuuttovirasto rejected O's application for a residence permit on the basis of the first sentence of paragraph 39(1) of the Law on Foreigners, finding that O did not have sufficient means of subsistence. It also considered that O could not avail himself of the exceptions to paragraph 39(1), set out in the Law on Foreigners, namely that exceptionally serious circumstances or the best interests of the child demand an exception to the subsistence rule. Subsequently, the Helsingin hallinto-oikeus (Administrative Court of Helsinki, Finland) dismissed the action for annulment brought against that decision. O and S then appealed that judgment before the referring court.
Both Case C-357/11 and Case C-356/11 concern a child, Union citizenship a reconstituted family. The current place of residence of the applicant, however, is different. In this case, L is an Algerian national with a permanent residence permit obtained on the basis of her marriage with a Finnish national. A child with Finnish nationality was born of that marriage, who has never exercised his right to freedom of movement. Following her divorce in 2004, L obtained sole custody of the child. The father of the child remained in Finland.
In October 2006, L married M, an Algerian national. M arrived legally in Finland in March 2006, where he requested political asylum and where, according to his statements, he lived with L from April 2006. In October 2006, M was returned to his country of origin. On 29 November 2006, L applied to the Maahanmuuttovirasto for a residence permit for M, on the basis of their marriage and, on 14 January 2007, L gave birth to a child of Algerian nationality, who was in the joint custody of the couple. At the time of the national hearing it had not been established that M had met that child. The decision of the Finnish court to refer that case to the Court notes that L had never been in any employment during her stay in Finland, and that benefits were her primary means of subsistence.
For the same reasons as those set out in the examination of O's application for a residence permit in Case C-356/11, the Maahanmuuttovirasto rejected M's application for a residence permit. However, that decision was annulled by the Helsingin hallinto-oikeus, which led the Maahanmuuttovirasto to bring an appeal against that judgment before the referring court. In the present references for a preliminary ruling, the referring court raises a question as to the applicability of the principles set out by the Court in Ruiz Zambrano. It asks whether, given the Maahanmuuttovirasto's refusal to grant a residence permit to the applicants, their spouses and the children in the custody of those spouses will be forced to leave the territory of the Union in order to live together.
b) The scope of EU citizenship
The Court held that Article 20 TFEU must be interpreted as not precluding a Member State from refusing to grant a TCN a residence permit on the basis of family reunification. This applies where that national seeks to reside with his spouse, who is also a third-country national and resides lawfully in that Member State and is the mother of a child from a previous marriage who is a EU citizen, and with the child of their own marriage, who is also a TCN. The Court noted that such a refusal cannot entail, for the EU citizen concerned, the denial of the genuine enjoyment of the substance of the rights conferred by the status of citizen of the Union.Footnote 23
With respect to the application of Article 20 TFEU, the Court has previously held that a Union citizen who, like the children of Finnish nationality concerned in these proceedings, has not made use of the right of freedom of movement cannot for that reason alone be assimilated to a purely internal situation, that is, a situation which has no factor linking it with any of the situations governed by European Union law.Footnote 24 Since the nationals of Member States enjoy EU citizenship, the children of the previous marriages of Ms S and Ms L, as nationals of a Member State, are Union citizens under Article 20(1) TFEU. As such, they can rely on the rights pertaining to that status, including against the Member State of which they are nationals.Footnote 25 On that basis, the Court held in Ruiz Zambrano that Article 20 TFEU precludes national measures, including refusals to grant rights of residence to family members of a Union citizen, which have the effect of denying Union citizens the genuine enjoyment of the substance of the rights conferred by their status.Footnote 26
With respect to the right of residence of a person who is a TCN in the Member State of residence of his children, the Court has applied pragmatic reasoning to resolve this issue. The Court has previously concluded that the refusal to grant a right of residence would have the consequence that those children, who are citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. As a result, those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred by their status.Footnote 27
In this case the Court held that it is for the national court to establish whether the refusal of the applications for residence permits submitted on the basis of family reunification involving EU citizens concerned a denial of the genuine enjoyment of the substance of the rights conferred by their status. When making that assessment, the national court must take into account whether the mothers of the Union citizens hold permanent residence permits in the Member State in question, so that, in law, there is no obligation either for them, or for the Union citizens dependent on them, to leave that Member State or the European Union as a whole. Furthermore, applications for residence permits on the basis of family reunification are covered by Council Directive 2003/86/EC on the right to family reunification. Article 7(1)(c) of that directive must be interpreted as meaning that, while Member States have the faculty of requiring proof that the sponsor has stable and regular resources which are sufficient to maintain himself and the members of his family, that faculty must be exercised in the light of Articles 7 and 24(2) and (3) of the Charter of Fundamental Rights of the European Union. That requires Member States to examine applications for family reunification in light of the interests of the children concerned and also with a view to promoting family life and avoiding any undermining of the objective and the effectiveness of that directive. Again, it is the task of a domestic court to verify if these conditions are complied with but any such assessment cannot restrict either the legitimate rights of EU citizenship or the protection to family life granted under the Charter of Fundamental Rights. To that extent, the Court has through this and other judgments such as Ruiz Zambrano provided clear guidance to national courts of how to reconcile national immigration rules with EU citizenship and fundamental rights. In practice, these judgments illustrate that national courts have only a limited margin of appreciation under which to permit national rules to restrict the application of EU Treaty rights of free movement.
