Chief Specialist, Legal Framework Harmonisation Division, EU Integration Department, Ministry of Agriculture, Lithuania
Address: Gedimino 19, Vilnius, Lithuania
E-mail: IzoldaBulvinaite@hotmail.com

Copyright © 2003 Izolda Bulvinaite
First Published in Web Journal of Current Legal Issues.

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The Treaty on European Union has introduced for the first time a systematic concept of Citizenship in the Community ambit, through Articles 17 to 22. This paper seeks to ascertain whether the introduction of EU citizenship is a political declaration without any added value or whether it can be regarded as a source of rights that extends the scope of the rights already existing in the European Treaties, especially a right of the free movement of persons.

The paper concludes that introduction of Union citizenship provisions did not initially, add substantially to Community law. They mainly reiterated or generalised already existing rights. However, with the contribution of the ECJ through the combined effects of Articles 17 and 12 the right to equal treatment is enhanced and the general principle of equl treatment for lawful residents is established. The paper also argues that even though declared directly effective, Article 18 still remains subordinate to free movement rights, i.e. it can only be relied upon as a last resort by ‘ex-migrant’ workers, rather than being there for the clear benefit of ‘non-migrant’ workers.

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The Treaty on European Union has, through Articles 17 to 22 (renumbered after the Treaty of Amsterdam), introduced for the first time a systematic concept of Citizenship in the Community ambit.⁽¹⁾ This paper seeks to establish whether the introduction of citizenship of the EU is just a political declaration without any added value or whether it can be regarded as a source of rights which extends the scope of the rights already existing in the European Treaties, especially the right of the free movement of persons. Therefore, the specific focus in the paper will be upon the citizens’ right to move freely and reside within the territory of the Member States.

The paper will examine both legislation and case law on the issue. The TEU provisions on citizenship will be examined at the beginning with special attention paid to Article 18 of the EC Treaty as the focus of those provisions. The questions to be answered are: whether TEU citizenship provisions have added something new to the already existing rights established by the EC Treaty and whether it creates a general right of non-discrimination on the grounds of nationality? The paper will review the jurisprudence of the ECJ emphasizing the most important decisions in this field and its great influence on the interpretation of the citizenship provisions. Then it will consider whether Article 18 EC is capable of having direct effect and refer to a recent case, which settled this question. It will briefly comment on a legislative proposal made by the Commission. In conclusion the paper will focus on a change of the free movement of persons regimes of the EC Treaty by the concept of the citizenship.

Citizenship was not a policy innovation of the Treaty of Maastricht. The concept of European citizenship was considered from a very early stage in the development of the Communities. The free movement provisions of the EEC Treaty, and in particular those concerning the free movement of workers, were seen as being the first steps in creating “an incipient form of European citizenship” (O’ Keeffe 1994, p 87). The contribution of the Treaty of Maastricht was, of course, the introduction of the formal provisions on Citizenship in the Community ambit, through Articles 17 to 22.

The Preamble to the TEU states that the High Contracting Parties “resolved to establish a citizenship common to nationals of their countries”. In Article 2, under the heading Common Provisions, one of the objectives of the Union is stated to be “to strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union”.

The detailed TEU provisions on citizenship are contained in a new Part Two of the EC Treaty that is devoted solely to this topic.⁽²⁾ It has been argued that this location in a separate part rather than in the preamble or introductory articles indicates that the citizenship provisions are an essential component of the Treaty, and that it shows that they are implementing measures and not merely declaratory (Closa 1992, p 1158). On the other hand, Reich argues that Article 17 suggests that concept of citizenship is just a metaphor (Reich 2001, p 5).

The right of free movement and the right of residence are, as they have been throughout the debate on European citizenship, the foundations of Union citizenship. Article 18 EC provides for freedom of movement and residence within the territory of the Member States. This is stated to be subject to the limitations and conditions laid down by ‘this Treaty’ and by the measures adopted to give it effect. It means these are not unlimited rights and the exceptions to the rights of free movement regarding public policy, public security and public health continue to apply to those already covered under Articles 39-55.

The EEC Treaty conferred the right of the free movement of persons on economic actors. Nevertheless, from a very early stage the free movement provisions, and in particular those concerning the free movement of workers, were associated with the concept of European citizenship.

Apart from the rights of free movement conferred on economic actors by the Treaty, and on their family members by secondary legislation, Directives 90/364-366 (O.J. 1990, L 180, p 26, 28, 30) have conferred rights of free movement on those who are not or have not been economically active. Derogations by the Member States are allowed on the grounds of public policy, public security and public health.⁽³⁾ The right is subject to the condition that individuals seeking to rely on Directives must have enough resources to avoid becoming a burden on the social security system of the host state, and must possess health insurance.

Article 18 does not cover the rights of free movement and residence on family members of Union citizens who do not possess the nationality of a Member State.⁽⁴⁾ However, O’Keeffe argues that the emphasis on freedom of movement as a source of citizenship rights is in fact odd as the right is economic rather than overtly political (see O’ Keeffe 1994, p 94).

So, what does Article 18 add to the already established rights of the European citizens? Is there a change from granting rights not only to the ‘market’ citizens but also to the ‘Union’ or ‘true’ citizens who do not enjoy an economic role? These are the issues to be discussed in the rest of the paper.

Since Community law covers both the economically active and inactive, the TEU does not appear to have added anything new to the right of free movement and of residence in existing Community law. The Commission itself appears to take this view, maintaining that since the Treaty already covers economic actors, and Directives 90/364-366 cover non-economic actors, no further legislation is necessary, even though the Directives do not cover the poor or those who are on the margins of society. The TEU appears only to concentrate existing Treaty law as regards economic actors, and secondary legislation as regards non-economic actors (see O’ Keeffe 1994, p 94). O’Keeffe continues that “it will only be if the legislator uses Article 18 as the basis for further legislation that anything new will be added.”

As we have already seen, it has always been the case that Community law has drawn relatively rigid distinctions between economically active categories of migrants (the employed and self-employed and their dependent family members) protected by the Treaty’s core provisions as well as long established secondary legislation and those who fall into more marginal categories such as the unemployed, the disabled, tourists, pensioners, etc.

It appeared that those who were entirely dependent upon public support could normally not rely upon free movement rights such as the right of entry and residence since they fell outside both the Treaty provisions and the three residence Directives. In the latter cases, the host Member State has been empowered by secondary Community legislation to look for those relying upon their Community rights to have adequate sickness insurance and to be able to show that they will not become a burden upon the state. Still less could those unable to support themselves rely upon the right of non-discrimination on grounds of nationality in order to gain access to benefits, unless they were the family members of migrant workers or the self-employed, or were retired migrant workers or self-employed persons themselves.

These distinctions give rise to layers of entitlement as regards access to equal treatment principle and also as regards the closely related right to free movement. This is a conclusion to be reached from the EU Treaty provisions and secondary legislation.

However, the contribution of the ECJ in interpreting the concept of citizenship to create a general right of non-discrimination is enormous. After the ECJ’s judgment in Case 85/96 Martínez Sala v. Freistaat Bayern [1998] ECR I-2691, it would appear that something close to a universal non-discrimination right including access to all manner of welfare benefits has now taken roots in Community law as a consequence of the creation of the figure of the Union citizen (see Fries and Shaw 1998, p 536).

The early history of the interpretation of the citizenship provisions in the ECJ did not seem encouraging. In its first judgment discussing citizenship, Case 193/94 Skanavi v. Chryssanthakopoulos [1996] ECR I-929, the Court refused to discuss the application of Article 17, which was considered to be residual and apparently secondary to other more specific Treaty rights.

In Case 214/95 Boukhalfa v. Bundesrepublik Deutschland [1996] ECR I-2253, the Court limited itself to interpreting the free movement of workers rules since the referral by the Bundesarbeitsgericht only mentioned Article 39 and Article 17 of the EC Treaty and Article 7 of Regulation 1612/68 ([1968] OJ L257/2, [1968] OJ Spec. Ed. 475). The Court found that sufficient link between the activity of Ms Boukhalfa and the Community existed for her to be protected by the free movement rules. Advocate General Léger, who concurred with the Court, was more explicit about rights conferred by the concept of citizenship. In his opinion Léger stated: “The Court has not yet had an opportunity to give a ruling on the “new” concept of European citizenship.” He continued, “It is for the Court to ensure that its full scope is attained. If all the conclusions inherent in this concept are drawn, every citizen of the Union must, whatever his nationality, enjoy exactly the same rights and be subject to the same obligations” (para 63). This remark was obviously obiter dictum since the Court could have decided the case on the traditional broad reading of the free movement rules. As Reich suggested, if the link had not existed perhaps the supplementary function of Article 17 could have been invoked (see Reich 2001, p 10).

Advocate General Ruiz-Jarabo Colomer made a similar obiter dictum in his opinion in Joined cases 65 and 111/95, The Queen v. Secretary of State for the Home Department ex parte Shingara and Radion [1997] ECR I-3341. He stated (at para 34):

In the Joined Cases C-64 & 65/96, Land Nordrhein-Westfalen v. Kari Uecker, Vera Jacquet v. Land Nordrhein-Westfalen [1997] ECR I-3171, the Court considered that the wholly internal rule was not to be affected by the introduction of EU citizenship (para 23).⁽⁵⁾

Despite the relative frequency of references coming before the ECJ on free movement matters it took from 1993 to 1998 for it to make its first significant pronouncement on the meaning of Union citizenship. This was the Martínez Sala [1998] ECR I-2691 judgment where the Court for the first time used ‘citizenship’ to extend the rights of Union citizens. This was not a case where the national court suspected that Union citizenship might be of relevance in the matter, but suggested instead that the interpretation should focus on Article 39 and Regulations 1612/68 and 1408/71 ([1971] OJ L149, p 2). This, however, did not prevent the ECJ from a creative interpretation and application of the law itself.

The case concerned a Spanish resident in Germany who whilst unemployed claimed a German child-benefit allowance. Under German social security law, her application was refused because she was not in possession of a valid residence permit. The Court did not accept this limiting condition. As Fries and Shaw underline, the novelty of the case lies in the way the ECJ uses Article 17(2), in combination with Article 12, and an expansive approach to the scope of Community law (see Fries and Shaw 1998, p 550). First, lawful and authorized residence in another Member State by a national of one of the Member States is sufficient, alone, to bring a person within the personal scope of the Community law. This is the contribution of the concept of Union citizenship as universal ascription to all nationals of the Member States, regardless of economic status. Secondly, the ECJ matches the benefit sought with the scope of coverage provided by measures conceived originally to deliver equal treatment rights to economically active categories of migrants and their families, namely Regulation 1612/68 and Regulation 1408/71. This is enough to bring the benefit within the material scope of Community law. Personal scope and material scope are then brought together to justify the application of the non-discriminatory principle to rules of entitlement for this benefit for this particular claimant.

In continuing the tradition, as developed in Case 186/87 Cowan v. Trésor Public [1989] ECR 195, in Sala judgment the Court used Articles 17-18 to extend the protection against discrimination based on nationality to every Union citizen. The former connection with one of the free movement rights is abandoned, thereby extending the scope of persons protected. However, the Court has not determined whether the right of residence was based on national law or on Article 18 (para 60).

The same approach was followed in the judgment in Case 274/96 Criminal Proceedings against H.O. Bickel and U. Franz [1998] ECR I-7637. Both Advocate General Jacobs and the Court were willing to extend the prohibition of discrimination in Article 12 to all nationals coming under the free movement rules under Article 18.⁽⁶⁾ Advocate General Jacobs referred to Cowan and extended it to the right of an accused Union citizen in criminal proceedings (paras 23-24). The Advocate General, as well as the Court, said that refusing to allow German-speaking citizens from Austria or Germany to use their mother tongue in the province of Bolzano, where this was allowed to German speaking Italians, amounted to discrimination based on nationality.⁽⁷⁾ The Court reiterated its conclusion in Martinez Sala that a national of a Member State who is lawfully present in the territory of another Member State comes within the scope of the Treaty by virtue of Article 18 and may therefore rely on Article 12. The principle of non-discrimination embodied in Article 49 was not mentioned. As Arnull points out, in the context of the free movement of persons, Article 12 seems to have subsumed all other more precise expressions of the principle (see Arnull 1999, p 386).

The next judgment is, however, more restrictive as far as the application of the concept of citizenship is concerned. In Case 348/96 Criminal Proceedings against Donatella Calfa [1999] ECR I-11, the Court addressed the issue of expulsion for life of a national of one Member State from the territory of another Member State. Even though the Greek Arios Pagos (Supreme Court of Cassation) explicitly mentioned Articles 17-18 in conjunction with the free movement rules, neither Advocate General La Pergola nor the Court based their opinion or judgment on Union citizenship.

Why did the Court choose in this case not to base the right of free movement on Article 18? Why is it different from Bickel where the Court held that if a European citizen was exercising his right to free movement as laid down in Article 18, she would have a general right to non-discriminatory treatment in the sense of Article 12 (para 16)? Doppelhammer provides us with a possible answer. She argues that linguistic rights are much less delicate to address on the basis of Article 18 than the politically sensitive problem of expulsion (see Doppelhammer 1999, p 626).

In Case 378/97 Criminal Proceedings against Florus Ariel Wijsenbeek [1999] ECR I-6207, the Court seemed more willing to exploit the potential of Article 18(1) without needing the crutch of another Treaty freedom (paras 22 and 41). In this way the Court distilled the requirement of movement down to its purest form: if you cross the border, you activate EC law and, more precisely, the principle of equal treatment – there’s no discussion of economic activity of any kind or even of any meaningful connection between the individual and the host Member State. The mere presence of an EU citizen in any Member State other than his/her own thus generates at least a basic obligation of equal treatment vis-à-vis the host State’s own nationals, but the presence of that citizen in his/her own member State per se does not generate any EC obligations at all.

In Wijsenbeek judgment, the Court held that Article 18(1) conferred a right of free movement, and addressed the fact that limitations may also be attached, legitimately, to the right simply to move to other Member States (paras 41-45).

The ECJ’s reasoning in a recent Case, C-184/99, Rudy Grzelczyk v. Centre Public d’Aide Sociale d’Ottignies-Louvain-la-Neuve (CPAS) [2001] ECR I-6193, is similar in structure to that in Martínez Sala case but more far-reaching (see Craig and De Búrca 2003, p 759). It begins with a finding of discrimination on grounds of nationality. The ECJ then used citizenship to determine the sphere ratione personae for the application of Article 12. It continued by citing Martínez Sala: “a citizen of the European Union, lawfully resident in the territory of a host member State, can rely on Article 6 (now Article 12) in all situations which fall within the scope ratione materiae of Community law.” The Court went further ruling that “those situations include those involving the exercise of the fundamental freedoms guaranteed by the Treaty and those involving the exercise of the right to move and reside freely in another Member State, as conferred by Article 8a (now Article 18)” (paras 29-33).

To summarise, analysis of the Court’s jurisprudence thus reveals a certain hesitancy towards the full application of the concept of citizenship in extending citizen’s rights in the area of free movement. In their submissions to the Court many Member States have also protested that Article 18(1) was not intended to confer any new rights of movement and/or residence. The opinions of the Advocates Generals seem to go much further, at least in rhetoric and maybe, to a lesser extent, in substance (see Reich 2001, p 13). Nevertheless, the Martínez Sala and Grzelczyk cases have marked a break in the Court’s reasoning. These cases are tied up to the second phrase of Article 18(1)⁽⁸⁾ and, more specifically, to the conditions for the lawful residence in another Member State laid down in the residence directives. But a live issue before the Court is the extent to which a state must take responsibility for the nationals of other Member States resident in their territories – not, as was traditionally the case, because of an individual’s status as a worker or self-employed person, but in a more human capacity, because of the status of the citizenship (see Shuibhne 2002, p 750).⁽⁹⁾ So the growing importance of the concept of citizenship for the application of Community law and its destiny as a fundamental status for nationals of the Member States was confirmed.

This was reiterated by the ECJ in a very recent Case C-224/98 Marie-Nathalie D’Hoop v. Office national de l’emploi [2002] ECR I-6191, where it held that inequality of treatment is contrary to the principles, which underpin the status of citizen of the Union, that is, the guarantee of the same treatment in law in the exercise of the citizen’s freedom to move (para 35).

The issue of whether Article 18 has direct effect so as to be capable of being relied on by individuals to claim a right of residence and movement independently of other Treaty provisions is quite controversial. Neither in the Martínez Sala, nor Bickel nor Grzelczyk cases had the ECJ addressed this question. The Commission’s view was that this article was merely declaratory, and did not add any further rights.⁽¹⁰⁾ This issue has already been litigated in the UK. In R. v. Secretary of State for the Home Department, ex parte Vitale, R. v. Secretary of State for the Home Department, ex parte Do Amaral [1995] All ER (EC) 946,⁽¹¹⁾ Judge J held that the citizens of the European Union did not have an unqualified right to reside in any other Member State as and when they wish on the basis of Article 18, as Article 39 of the Treaty, limiting such a right, remained in force. However, most of the legal commentators argued that in order to give useful meaning to that provision, Article 18 should be deemed to have direct effect (see Hall 1995, p 182-207; O’ Keeffe 1996, p 372).

Is Article 18 sufficiently precise and capable to become directly effective? In order to be held directly effective a provision has to satisfy three main criteria established by the ECJ in its famous judgment in Case 26/62 NV Algemene Transporten Expeditie Onderneming Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1:⁽¹²⁾ first, it must impose clear and precise obligation on Member States; secondly, it must be unconditional, that means subject to no limitations; and, thirdly, its implementation must not depend on measures being subsequently taken by the Community institutions or Member States with discretionary power in the matter.

Article 18(1) seems to satisfy the first condition. The meaning of the term “the right to move and reside freely within the territory of the Member States” is clear enough and succinct. Despite the fact that Article 18(1) does not expressly mention Member States, it is possible to conclude that in conferring a right on individuals, Article 18(1) implicitly imposes an obligation on Member States to ensure the right of movement and residence.

The wording of Article 18(1) suggests that the rights it contains are not absolute; they are “subject to the limitations and conditions laid down in this Treaty”. This can be seen in the previous case law. The freedoms of movement for persons covered by Article 39 (see Case 41/74 Van Duyn v. Home Office [1974] ECR 1337), Article 43 (see Case 2/74 Reyners v. Belgium [1974] ECR 631) and Article 49 (see Case 33/74 Van Binsbergen v. Bestuur van de Bedrijfsverening voor de Metaalnijverheit [1974] ECR 1299) have all been held directly effective notwithstanding the public policy, public security and public health limitations permitted by the Treaty. In particular, in the Van Duyn judgment the ECJ held that although Article 39 contained express limitations on the right of free movement, this did not prevent its being attributed direct effect. The Court emphasized the availability of judicial review over the application of limitations. As limitations and conditions of Article 18 could also be available to judicial review it follows that the existence of these limitations as such does not deprive this provision of direct effect.

The third criterion, which is the most difficult to determine, concerns the issue of implementation. Implementation of a directly effective Community provision must not depend on measures being taken by the Community institutions or by Member States with discretionary power in the matter. The first question to be answered is whether Article 18(2), by providing implementing measures, detracts from the direct effect of Article 18(1). Looking back to the ECJ’s jurisprudence it should be recalled that even if Articles 39 and 43 expressly envisage further implementing measures it is not an obstacle to the attribution of direct effect to these articles. Likewise, the mere fact that Article 18(2) provides for the possibility of implementing measures should not in itself prevent Article 18(1) having direct effect. Another question to be addressed is whether the wording of Article 18(1), which refers to the limitations and conditions, laid down not only by the Treaty, but also by “the measures adopted to give it effect” leaves discretion for implementation. In this case the answer is not immediately obvious. According to O’Keeffe since the Directives on the right of residence grant the right of residence only to those who have their own means of support and have health insurance, these exceptions in fact limit the right of movement and residence (see O’Keeffe 1996, p 372). He argues that this would seem to be an exercise of discretion on the part of Community legislator that would indicate that the provision should not have direct effect. A counter argument could be that Article 18(1) refers only to existing legislation and does not permit such limitations and conditions to be made in the future. On the other hand, a more persuasive argument is that Article 39(3)(d) EC provides an example of a directly effective provision, which nevertheless expressly authorises the adoption of conditions. Restrictions on the right contained in Article 39(3)(d) were imposed by Article 2 of Regulation 1251/70 (OJ Sp. Ed. 1970, L 142/24, p 402), which has the effect of excluding from enjoyment of the right several categories of persons who would otherwise fall within the scope of the Treaty provision. Nevertheless, the ECJ assumed the validity of Regulation 1251/70. Thus, this implies that a directly effective Treaty provision may be subject to limitations and conditions to be contained in secondary legislation provided the right conferred by the Treaty is not negated (see Hall 1995, p 207).

To summarise, the main reason for the potential direct effect of Article 18 stems from the case law of the Court of Justice on direct effect in general. The Court has accepted the direct effect of numerous provisions despite the limitations or conditions that are subject to judicial control. Therefore, in the light of the case law, measures enabling Member States to exclude Union citizens from their territories on grounds of public policy, public security and public health or on other objectively justified grounds, such as the protection of their social assistance systems, will not deprive Article 18 of its direct effect.

The same conclusion was drawn by the ECJ in Case C-413/99 Baumbast and R v. Secretary of State for the Home Department [2002] ECR I-7091 where it conferred direct effect on Article 18 EC. The UK and German Governments argued that a right of residence could not be derived directly from Article 18(1) because of the limitations and conditions referred to in that paragraph; the Commission also took this view whilst emphasising the political and legal importance of Article 18. Nevertheless, the ECJ ruled (at para 3 of the judgment):

The ECJ held that the right to reside within the territory of the Member States under Article 18(1) EC is conferred directly on every citizen of the Union by a clear and precise provision of the EC Treaty. The Court admitted that this right is subject to limitations and conditions but referring to Van Duyn it went on that those limitations and conditions while being subject to judicial review do not prevent Article 18(1) EC conferring on individuals rights which are enforceable by them and which the national courts must protect. The ECJ reasoned that the limitations and conditions, which are referred to in Article 18 EC and laid down by Directive 90/364, are based on the idea that the exercise of the right of residence of citizens of the Union can be subordinated to the legitimate interests of the Member States. However, those limitations and conditions must be applied in compliance with the limits imposed by Community law and in particular with the principle of proportionality (paras 84-91).

To conclude, with a significant step taken in the Grzelczyk judgment, the Baumbast judgment conferring direct effect on Article 18 EC accords increasing value to Union citizenship as the fundamental status of nationals of the Member States. However, the ‘post-Baumbast’ situation does not create a generalised right for all Union citizens. The ECJ ruled that a right of residence by direct application of Article 18(1) can be enjoyed by “a citizen of the European Union who no longer enjoys a right of residence as a migrant worker in the host Member State” (para 3 of the judgment). This seems to indicate that Article 18 can only be relied upon as a last resort by ‘ex-migrant’ workers, rather than being there for the clear benefit of ‘non-migrant’ workers, i.e. those who are non-economically active or who do not have sufficient means of support.

Broader concerns about Union citizenship influenced the Commission to put forward a proposal for a new general directive on free movement for citizens of the Union and their family members (COM (2001) 257 final). In its explanatory memorandum it is stated that the introduction of citizenship “generalized for the benefit of all citizens, the right to enter and the right to reside in the territory of another member State” (para 1.2). The basic premise is that Union citizens should be able to move between Member States on similar terms as a Member State national moving within his/her own country. Any additional administrative or legal obligations should be kept to a minimum (para 1.3).

The proposed Directive does distinguish between economic and non-economic activity by retaining the sickness insurance and sufficient resources criteria for the latter. However, certain requirements currently imposed upon such claimants would be relaxed.⁽¹³⁾ Besides that, the directive confines these restrictions to the first four years of residence in the host State and thereafter, seeks to create a new, permanent right of residence (Article 14). Reflecting the Court’s approach in Grzelczyk, the proposed directive takes a slightly more complex approach to the residence rights of students.⁽¹⁴⁾ Other citizens would enjoy a right of free movement lasting for six months.⁽¹⁵⁾ The proposal does not specifically consider the status of Community nationals who enter another Member State in search of employment.

Dougan argues that the Commission could hardly claim to have achieved complete success in its stated goal of consolidating and rationalising the law on free movement for persons, in line with the enhanced social and political expectations generated by Union citizenship (see Dougan 2001, p 127). He argued that the apparent effect of the Commission’s proposal would be to reduce certain rights currently enjoyed by work seekers under the Treaty. Six months limit would purport to reduce the rights currently available to work seekers under Article 39 EC as interpreted in Case C-292/89 R. v. Immigration Appeal Tribunal, ex parte Antonissen [1991] ECR I-745. Secondly, as regards the work seeker’s right to equal treatment, the Commission recognizes the desirable distinction between social advantages generally and social security or assistance benefits in particular, to which only economically active migrant citizens should have access. Therefore, in the light of the judgments in Sala and Grzelczyk, it is again possible that the Commission’s proposal would represent a backward step.

From the evidence collated it is possible to conclude that the introduction of Union citizenship provisions in the TEU did not, initially, add substantially to Community law. The provisions of Article 18 do not add new rights; mainly, they reiterate or generalise already existing rights.

However, the ECJ is making greater use of these provisions in order to expand the scope of Community protection. The jurisprudence of the ECJ and, in particular, the decision in Martínez Sala confirms that Union citizenship explodes the ‘linkages’ which EC law previously required for the principle of non-discrimination to apply, namely performance or involvement in an economic activity as workers, established persons or providers or recipients of services, preparation for future economic activity as a student or some sort of relationship with an economic actor as a family member or dependant (see O’ Leary 1999a, p 77-78). Now Union citizens who lawfully reside in a Member State other than their Member State of origin are entitled to equal treatment with respect to the full range of benefits, which come within the material scope of the EC law. Thus, it could be concluded that through the combined effects of Articles 17 and 12 the right to equal treatment is enhanced and general principle of equal treatment for lawful residents is established.

In its judgment in Baumbast, the ECJ for the first time expressly recognised the direct effect of Article 18 EC. Nevertheless, even though declared to be directly effective Article 18 does not create a generalised right for all Union citizens. The nature of Article 18 still remains subordinate to free movement rights. Baumbast could easily be interpreted as strengthening the rights of ‘ex-migrant’ workers, i.e. Article 18 can only be relied upon as a last resort by ‘ex-migrant’ workers, rather than being there for the clear benefit of ‘non-migrant’ workers.

Finally, the recent development in the Court’s case law and the Commission’s proposal seem to reflect a philosophy of compromise between what the Union citizenship could or should yield, and what the political and financial sensibilities of the Member States are prepared to tolerate (see Dougan 2001, p 130).

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Wilkinson, B (1995) ‘Towards European Citizenship? Nationality, Discrimination and Free Movement of Workers in the European Union’ 1 EPL 417.

(1)Seven rights are enumerated which could be divided into three groups of rights: civic rights such as participation in local and European Parliament elections, social and economic rights, such as freedom of movement and equal treatment, and joint diplomatic protection of Community citizens in third countries.
(2)Article 17(1) establishes Citizenship of the Union and Article 17(2) together with Articles 18-22 make clear that citizens of the Union enjoy rights conferred by this Treaty and shall be subject to the duties imposed thereby.
(3)According to Art. 2(2) of each Directive, Directive 62/221 is applicable.
(4)Such derived rights are an essential component of the rights of those who enjoy free movement under the EC Treaty and the residence Directives.
(5)The Court reasoned “Citizenship of the Union is not intended to extend the scope ratione materiae of the Treaty also to internal situations which have no link with Community law.” (at para 23)
(6)At para 15 the ECJ ruled that the principle of non-discrimination in Article 12 applied, and stressed that the accused were not only potential recipients of services, but also were exercising their right to free movement as European citizens under Article 18.
(7)At para 16 of the Judgment the Court said: “In this regard, the exercise of the right to move and reside freely in another Member State is enhanced if the citizens of the Union are able to use a given language to communicate with the administrative and judicial authorities of a state on the same footing as its nationals.”
(8)“Subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.”
(9)In Martínez Sala, the entitlement of a Spanish national residing in Germany to a child-raising allowances, on the same footing as German nationals, was derived directly from the status as an EU citizen, notwithstanding the fact that she was drawing from German security; in Grzelczyk, a French national studying in Belgium was, as an EU citizen, found to be entitled to a national social assistance payment, again on the same basis as Belgian nationals.
(10)In its Second Report on Citizenship of the Union (of 27 May 1997) the Commission recommended revising Article 18, upgrading it from a supplementary legal basis to a specific legal basis for the free movement and right of residence.
(11)The case was not referred by the High Court to the ECJ for the preliminary ruling.
(12)The ECJ held that a provision to be directly effective has to be clear, negative, unconditional, containing no reservation on the part of the Member State, and not dependent on any national implementing measure. Although the criteria were expressed in fairly strong terms, their application since then suggests that they did not prevent the emergence in practice of a more general and commonsense notion of justiciability. See Case 2/74 Reyners v. Belgium [1974] ECR 631; Case 43/75 Defrenne v. Société Anonyme Belge de Navigation Aérienne [1976] ECR 455.
(13)For example, the amount of resources considered to be ‘sufficient’ would and could no longed be specified; the individual need only make a bona fide declaration of their financial independence rather than provide positive evidence; and verification of that claim would be permitted only if he or she actually seeks social or medical assistance.
(14)Article 7 indicates that the sickness insurance and sufficient resources criteria do not actually apply to them; but in Article 8(4), these conditions are reinstated. However the right of permanent residence would be especially meaningful for students who acquire it after completing a four-year course of education in the host State.
(15)Subject only to possession of valid identity card or passport, and to the possibility that the host state might require claimants to report their presence within the domestic territory.