EU Law ESSAY Questions -RUIZ ZAMBRANO,McCARTHY

EU LAW ESSAY QUESTION

1. ‘The Court of Justice has been testing the outer limits of the concept of EU citizenship in cases involving family members who are not themselves EU citizens; the acquisition and loss of citizenship; and purely internal situations. The Court must tread carefully. Citizenship may well be a ‘fundamental status’ of the nationals of the Member States, requiring an expansive and protective approach. However, that principle is counter-balanced by the principle of conferral, which means that the EU cannot act outside the competences conferred upon it by the Member States’.

INTRODUCTION: THIS ESSAY WILL EXPLORE THE DECISIONS OF THE ECJ, CONCERNING ;EU CITIZENSHIP; THE LOSS AND ACQUISITION OF CITIZENSHIP; AND PURELY INTERNAL SITUATIONS, AND THE EXTENT TO WHICH COULD IT BE SUGGESTED THAT THEY ARE EXERCSING POWERS THAT ARE FAR-REACHING AND ACTING OUTSIDE ITS COMPETENCES, ARE SOMEWHAT TESTING THE OUTER LIMITS BY . IT WILL BE SUBMITTED THAT DECISIONS ARE NOT TOO FAR-REACHING AND IN LIGHT OF THE SOCIAL DIMENSION, THE COURTS RULING ARE IN FACT A REFLECTION THAT THESE AREAS ARE EXTREMELY COMPLEX AND THROUGH CONTINUED AND EXPANSIVE APPROACH TOWARDS THE DEVELOPMENT OF EU LAW , THE ECJ ARE ATTEMPTING TO MAINTAIN AND PROTECT THE PRINCIPLE OF CITIZENSHIP BEING A FUNDAMENTAL APPROACH,

Zambrano - Preliminary ruling questions:36 By its questions, which it is appropriate to consider together, the referring court asks, essentially, whether the provisions of the TFEU on European Union citizenship are to be interpreted as meaning that they confer on a relative in the ascending line who is a third country national, upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of which they are nationals and in which they reside, and also exempt him from having to obtain a work permit in that Member State. 37 All governments which submitted observations to the Court and the European Commission argue that a situation such as that of Mr Ruiz Zambrano‟s second and third children, where those children reside in the Member State of which they are nationals and have never left the territory of that Member State, does not come within the situations envisaged by the freedoms of movement and residence guaranteed under European Union law. Therefore, the provisions of European Union law referred to by the national court are not applicable to the dispute in the main proceedings. 38 Mr Ruiz Zambrano argues in response that the reliance by his children Diego and Jessica on the provisions relating to European Union citizenship does not presuppose that they must move outside the Member State in question and that he, in his capacity as a family member, is entitled to a right of residence and is exempt from having to obtain a work permit in that

ZAMBRANO Ruiling mentioned CASES AFFIRMING CITIZENSHIP AS FUNDAMENTAL STATUS:,BAUMBAST, GRZELCZYK,GARCIA AVELLO, CHEN,ROTTMANN:41 As the Court has stated several times, citizenship of the Union is intended to be the fundamental status of nationals of the Member States (see, inter alia, Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 31; Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 82; Garcia Avello, paragraph 22; Zhu and Chen, paragraph 25; and Rottmann, paragraph 43).

RULING: On those grounds, the Court (Grand Chamber) hereby rules: Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.

JUDGMENT OF THE COURT (Third Chamber) 5 May 2011 (*) (Freedom of movement for persons – Article 21 TFEU – Directive 2004/38/EC – „Beneficiary‟ – Article 3(1) – National who has never made use of his right of free movement and has always resided in the Member State of his nationality – Effect of being a national of another Member State – Purely internal situation) In Case C-434/09, REFERENCE for a preliminary ruling under Article 234 EC from the Supreme Court of the United Kingdom, formerly the House of Lords (United Kingdom), made by decision of 5 May 2009, received at the Court on 5 November 2009, in the proceedings Shirley McCarthy

Expressed how this case differs from Zambrano etc49 However, no element of the situation of Mrs McCarthy, as described by the national court, indicates that the national measure at issue in the main proceedings has the effect of depriving her of the genuine enjoyment of the substance of the rights associated with her status as a Union citizen, or of impeding the exercise of her right to move and reside freely within the territory of the Member States, in accordance with Article 21 TFEU. Indeed, the failure by the authorities of the United Kingdom to take into account the Irish nationality of Mrs McCarthy for the purposes of granting her a right of residence in the United Kingdom in no way affects her in her right to move and reside freely within the territory of the Member States, or any other right conferred on her by virtue of her status as a Union citizen. 50 In that regard, by contrast with the case of Ruiz Zambrano, the national measure at issue in the main proceedings in the present case does not have the effect of obliging Mrs McCarthy to leave the territory of the European Union. Indeed, as is clear from paragraph 29 of the present judgment, Mrs McCarthy enjoys, under a principle of international law, an unconditional right of residence in the United Kingdom since she is a national of the United Kingdom. 51 The case in the main proceedings also differs from Case C-148/02 García Avello [2003] ECR I-11613. In that judgment, the Court held that the application of the law of one Member State to nationals of that Member State who were also nationals of another Member State had the effect that those Union citizens had different surnames under the two legal systems concerned, and that that situation was liable to cause serious inconvenience for them at both professional and private levels resulting from, inter alia, difficulties in benefiting, in one Member State of which they are nationals, from the legal effects of diplomas or documents drawn up in the surname recognised in the other Member State of which they are also nationals.

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