Case Notes
| Published date | 01 March 2011 |
| Date | 01 March 2011 |
| DOI | http://doi.org/10.1177/1023263X1101800109 |
| Subject Matter | Case Notes |
18 MJ 1–2 (2011) 179
CASE NOTES
Case C-34/09 Gerardo Ruiz Zambran o v. O c e na ti o na l d e l’e m pl o i (O N Em) , Judgement
of the Court (Grand Chamber) of 8 March 2011, not yet reported
European Citizensh ip and the right to move freely: interna l situations, reverse
discrimin ation and fundamental rights
§1. I N TRODUCTION
In March 2011, the Court of Justice of the European Union delivered its latest judgement
on the legal right of residence for family members of EU citizens within the Europea n
Union.1 Nationa l citizenship has long been regarded as the Member States’ ‘l ast bastion
of sovereignty’2 encompassing both the discretion to regulate the acquisition of state
membership and the competency to limit access to persons wishi ng to reside within a
country’s territory. Assert ing control over national citizenship is an essent ial attribute of
such sovereignty.3
Yet, such classical notions of citizenship – broadly cha racteriz ed here as rights bestowed
by states upon individuals by v irtue of their inclusion within a politica l community
– may no longer be maintained. Citizenship has been rede ned, now understood as a
concept focused on the mobil ity of people. us, ‘an internationa l moral panic’4 relating
to migration has developed. e sa me holds true for European citizenship. e ‘last
bastion’ of Member State sovereignty no longer relates to the ability to de ne nationals –
it is the ability to control who may or may not reside freely wit hin them.
e Court’s judgement in Zambrano contributes radically to the grow th of European
citizenship in this respect. Building on the decision in Rottmann,5 the Zambrano case
rede nes the ‘f undamental status’ of Europea n citizens as stated in Grzelczyk.6 However,
1 Case C-34/09 Ruiz Zam brano v. O ce national de l’emploi (ONEm), Judgement of 8 March 2011, not yet
reported.
2 R. Brubaker, Citizenship and Nationhood in France and Germany (Harvard University Press,
Cambridge/ Ma ssachusetts 1992), p. 180.
3 Ibid.
4 Dauvergne, ‘Sovereig nty, Migration and the Rule of L aw in Global Times’, 67 e Modern Law Rev iew
4 (2004), p. 588.
5 Case C-135/08 Janko Rottmann v. Freis taat Bayern, Judgement of 2 Ma rch 2010, not yet reported.
6 Case C-184/99 Rudy Grzelc zyk v. Centre public d’aide sociale d ’Ottignies-Louvai n-la-Neuve [2001] E CR
I-6193, para. 31.
Case Notes
180 18 MJ 1–2 (2011)
caution must be had before heralding t he decision as marking a revolutionary extension
of citizenship rights. A distinct drawback to Zambrano is that the features of this new
‘funda mental status’ lack clarity.
i s commentary wi ll consider several ques tions relating to the e ects of Zambrano.
Does the scope of European citizens’ new ‘fundamental statu s’ extend beyond cases of
children dependent on third-countr y nationals? Against what standard is the genuine
enjoyment of citizenship rights me asured? To what extent does the ca se contribute to the
discussion on reverse disc rimination and mobilit y? What is the status of EU fu ndamental
rights a er the case?
§2. FACTUAL BACKGROUND
In 1999, Mr Ruiz Zambrano a nd his family – Colombian nationals – ar rived in Belgium
seeking asylum. ey did so a er being exposed to continuous extortion demands, death
threats and the abduction of their three year old son by private militias for a period of
one week.
By decision of 11 September 2000, the Belgia n authorities refused their applications
for refugee status, ordering M r Zambrano and his fami ly to leave Belgium. However, that
order included a non-refoulement clause prohibiting their de portation back to Columbia.
Hence, the Zambrano fam ily remained in Belgium.
In October 2001, Mr Zambrano found f ull-time employment with a Belg ian company.
He did not hold a valid work permit nor did he obtain one dur ing the ve years he worked
for the company.
Mr Zambrano’s wife gave birth to t he couple’s second and third children Diego
and Jessica in 2003 and 2005 respectively. Both were born in Belgium and accordi ngly
acquired Belgian nationality pursuant to Ar ticle 10(1) of the Belgian Nationality Code,
as was applicable at the materia l time.
In October 2005, Mr Za mbrano’s employment contract was temporarily su spended.
He subsequently lodged an application for temporary unemployment bene t with
the O ce national de l’emploi (ONEm). at appl ication was ref used. Mr Zambrano
challenged that decision, before being re- employed on a full-ti me basis.
However, as a result of that rst appeal – and subsequent inquir ies in 2006 by the
Belgian labour author ities – Mr Zambrano’s employment was immediately ter minated on
the grounds that he d id not hold a valid work permit. Out of work, Mr Zambrano appl ied
for full-time unemployment bene ts. at application was agai n refused by ONEm. In
December 2006, Mr Z ambrano brought a further action aga inst that decision.
In addressing Mr Za mbrano’s claims against ONEm – t he refusal to grant him
temporary and fu ll unemployment bene t – the Tribunal du travail de Bruxelles stayed
proceedings, referring three questions to the Court of Justice for a preliminar y ruling
under Article 267 Treaty on the Funct ioning of the European Union (TFEU). It asked
Case Notes
18 MJ 1–2 (2011) 181
rst whether Articles 18, 20 and 21 TFEU separately or jointly conferred a right of
residence upon a citizen of the Union (Diego and Jessica) regardles s of whether they had
previously exercised their right to move. Secondly, whether those Art icles – combined
with provisions of the Cha rter on Fundamental Rights7 – under t he same circumstances ,
conferred upon a third-countr y national (upon whom a child / an infant EU citi zen is
dependent) a secondary right of residence as a means of safeguarding that child’s right
to reside within a Member State. L astly, whether the same provisions, under the same
circumstance s, exempted a third-country national from a Member St ate requirement to
obtain a work permit.
§3. THE JUDGEMENT OF THE COURT OF JUSTICE
e Court narrowed the scope of its a nalysis, examining whether Article 20 TFEU
conferred on Mr Zambrano (i) a right of residence in Belgium by v irtue of his children’s
European citiz enship and (ii) an exemption from the Belgian obligation to obta in a work
permit. Curiously, no reference was made to either the Char ter of Fundamental R ights
or to Articles 18 and 21 TFEU. is is signi cant as the Court did not directly or even
implicitly address two i mportant aspects of the questions referred to it.
Examining rst the objections of Member States8 and the Commission as to the
admissibility of t he case, the Court c onsidered the applicability of Art icle 3(1) of Directive
2004/38.9 Owing to the lack of free movement exercised by M r Zambrano’s children, the
Citizens’ Direct ive was held not to apply. Attention was then given to Ar ticle 20 TFEU.
e Court reiterated that Article 20 TFEU confers the status of a Union citizen on
every Member State national.10 Accordin gly, Diego and Jessica were held to be European
citizens. is was followed by the o -cited statement that ‘citizenship of the Union is
destined to be the f undamental status of nationals of the Member States’.11
7 Articles 21, 24 and 34 , Charter of Fundame ntal Rights of the Europ ean Union [2010] OJ C 83/389.
8 Namely those ra ised by Belgium, Denmark , Germany, Ireland, Greece, t he Netherlands, Austria a nd
Poland.
9 Directive 20 04/38/EC of the European Pa rliament and of the Council of 29 Apr il 2004 on the right of
citizens of t he Union and their family members to move a nd reside freely within the t erritory of the
Member States, [2004] OJ L 158/77. Art icle 3(1) reads: ‘ is Direct ive shall apply to all Union citi zens
who move to or reside in a Member State ot her than that of which they are a n ational, and to th eir
family members a s de ned in point 2 of Arti cle 2 who accompany or join them’.
10 See, inter alia, Case C-224/98 Marie-Nathalie D’Hoop v. O ce national de l’emploi [2002] ECR I-6191,
11 Case C-184/99 Grzelczyk, con rmed later in, inter alia, Cas e C-224/98 D’Hoop, para . 28; Case C-413/99
Baumbast and R v. Sec retary of State for th e Home Departme nt [2002] ECR I-7091, para. 82; Case
C-148/02 Garcia Avello, para. 22; Joi ned Cases C-4 82/01 and C-493/01 Orfanopoulos and Oliveri [2004]
ECR I-5257, para. 65; Case C- 403/03 Egon Schempp v. Finanzamt Münche n V [2005] ECR I-6421, para.
Netherland s [2007] ECR I-9705, para. 32; C ase C-524/06 Heinz Huber v. Bundesre publik Deutschland
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