Case Note
| Published date | 01 June 2013 |
| Date | 01 June 2013 |
| DOI | http://doi.org/10.1177/1023263X1302000209 |
| Subject Matter | Case Note |
302 20 MJ 2 (2013)
CASE NOTE
(Further) Signs of a Turn of the Tide in the CJEU’s Citizenship Jurisprudence, Case
Alina Tryfonidou*
§1. IN T RODUCT ION
With its recent rulings in the cases of Rottmann1 and Ruiz Zambrano,2 the Court of
Justice of the European Union (CJEU or ‘Court’) may have reached t he high watermark
of its European Union (EU) citizenship jurisprudence, by expanding t he scope of
application of EU law to cover situations that would, traditionally, be considered as
purely internal to a Member State. In pa rticular, although the Cour t in these judgments
con rmed that in order for a situation to fall within the scope of the free movement of
persons provisions there is, sti ll, a need for a su cient cross-border element, it als o took
the impressive step of establishing for the rst time that the core citiz enship provision
– Article 20 TFEU – can now apply even when the facts of a case are con ned to the
territory of a single Member State, prov ided that the contested measu re deprives Union
citizens of the genuine enjoyment of the subst ance of their rights. In the judgments that
followed (McCarthy3 and Dereci4), nonetheless, the Court appeared much more reticent
in its approach, con ning the Rottmann and (especially) the Ruiz Zambrano ru lings to
their own ‘very speci c’,5 and exceptional,6 facts.7
* Associate Professor in EU Law, University of Reading. e aut hor would like to than k the anonymous
reviewers for thei r comments on an earlier dr a of th is piece.
1 Case C-135/08 Rottmann [2010] ECR I-1449. Annotated by D. Koch enov, 47 Common Market
Law Review 6 (2010), p.1831. See, also, my comments in A. Tryfonidou, ‘ e impact of EU Law on
Nationality L aws and Migration C ontrol in the EU’s Member State s’, 25 Journal of Immigration, Asylum
and Nationality Law 4 (2011), p.358, at p.358–366.
2 Case C-34/09 Ruiz Zambrano, Judgme nt of 8March 2011, [2011] ECR I-1177.
3 Case C-434/09 McCarthy, Judgment of 5May 2011, not yet reported.
4 Case C-256/11 Dereci, Judgment of 15November 2011, not yet reported.
5 Case C-40/11 Iida , Judgment of 8November 2012, not yet rep orted, para. 71.
6 Case C-256/11 Dereci, para. 6; Case C-4 0/11 Iida, para. 71; Joined Ca ses C-356 & 357/11 O & S, Judgment
of 6December 2012, not yet repor ted, para. 55.
7 For an analysis of Ruiz Zambrano, McCarthy and Dereci, see D. Kochenov, ‘A Real Europea n Citizensh ip:
e Cou rt of Justice Openi ng a New Chapter in the Deve lopment of the Union in Europe’, 18 Columbia
Case Note
20 MJ 2 (2013) 303
Iida appears to be another recent judgment that follows this backward-moving
trend.8 Firstly, the Court appears to have established a new l imiting principle – a ‘ ltering
mechanism’ – for excluding situat ions that lack a su cient connection with the free
movement provisions from the latter’s scope, by noting that EU free movement law does
not apply if the restrict ion on the exercise of free movement rights that is alleged ly going
to ensue is merely hypothetica l.Secondly, although the Court was g iven the opportunity
to con rm that under Article51 of the EU Charter of Fu ndamental Rights (EUCFR)9 the
ambit of the latter is (at least) commensurate with t he scope of application of the general
principles of EU law, it preferred to wash its hands of this matter, contrary to what was
suggested by the Advocate General in her Opinion. Finally, in line with McCarthy and
Dereci, the Court appears to have been u nusually reser ved in relation to the grant of
family reuni cation rights, i n stark contrast to the majority of its prev ious case law on this
matter; as wil l be explained, the refusa l to grant family reuni cation rig hts in a situ ation
such as the one in Iida – and for the reasons relied on by the Cour t – is problematic in two
respects. A er examining the facts of the c ase, the Advocate General’s Opinion, and the
Court’s judgment, this a rticle will proceed to ana lyse the above three points.
§2. FACTUAL BACKGROUND
Mr Iida, a Japanese national, a nd Ms N-I, a German national, were married in the US
in 1998. eir daughter, Mia, was born t here in 2004 and has Ger man, American, a nd
Japanese nationality. In December 2005, the family moved to Germa ny and Mr Iida
received a national residence permit as the foreign spouse of a German national. Since
February 200 6, Mr Iida has been employed in Ulm under a contract of employment for
an unlimited duration. In summer 2007, Ms N-I started full-time work in Vienna. At
rst, the couple maintained the marriage between Ulm and Vienna , but since January
2008 they have been permanently separated, although not divorced. Both spouses have
joint parental responsibility for Mia , but the child has, since March 2008, b een habitually
resident in Vienna with her mother, where she attends school.
Following the departure of his daughter and his spouse, Mr Iida was no longer
entitled to the national residence perm it originally granted to hi m on the basis that he is
the foreign spouse of a German nationa l.However, he continued to be lawfully resident
in Germany since, upon ex piration of his original residence permit, he w as issued with a
national res idence permit linked to employment.10 In May 2008, Mr Iida asked the Cit y
Journal of Europea n Law 1 (2011), p.55; A. Tryfonidou, ‘Rede ning the Outer Bounda ries of EU Law:
e Zambrano, McCarthy a nd Dereci trilogy’, 18European Public L aw 3 (2012), p.493.
8 For another such cas e, which postdates Iida , see Joined Ca ses C-356 & 357/11 O & S.
9 Charter of Fund amental Rights of t he European Union, [2010] OJ C 83/389.
10 At some point Mr Iida had , also applied for a long-term residence perm it under Directive 2003/109/
EC (Directive 20 03/109/EC of the Council of 25November 20 03 concerning the s tatus of third count ry
nationals who a re long-term residents, [2004] OJ L 16/44), which (as made clear in the jud gment and
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