The impact of the duration of lawful residence on the rights of European Union citizens and their third-country family members
| DOI | 10.1177/1023263X17693188 |
| Date | 01 February 2017 |
| Author | Kathrin Hamenstädt |
| Published date | 01 February 2017 |
| Subject Matter | Articles |
Article
The impact of the duration
of lawful residence on the
rights of European Union
citizens and their
third-country
family members
Kathrin Hamensta
¨dt*
Abstract
This contribution examines the role of the duration of lawful residence and the assessment of the
facts of the individual case for the determination of the rights of (European) Union citizens and
their family members by the Court of Justice of the European Union. While the Court initially
embraced an approach which aimed at furthering and strengthening the rights of Union citizens, a
conceptual shift has become visible over the last couple of years which seems to aim at limiting
Union citizen’s rights. This article seeks to shed light on the underlying rationale of the Court’s
judgments regarding Union citizens and their third-country family members by focusing on the
application of the criterion of an individual assessment and the criterion of the duration of lawful
residence respectively. To that end, it examines the Court’s case law in four selected areas of
European Union law: the protection against expulsion, the right of permanent residence, access to
non-contributory cash benefits, and the right of residence of third-country family members of
Union citizens upon return to the latter’s Member State of nationality after having exercised free
movement rights. It is submitted that the Court’s application and interpretation of these criteria in
the areas under scrutiny seems to be driven primarily by the aim to limit citizens’ rights and not by
the attainment of legal certainty which has been brought forward by the Court.
Keywords
EU citizenship, duration of residence, expulsion, social benefits, individual assessment
* DAAD lecturer in German law, Kings College, London
Corresponding author:
Kathrin Hamensta
¨dt, Kings College London, School of Law, London, WC2R 2LS, UK.
Email: kathrin.hamenstadt@kcl.ac.uk
Maastricht Journal of European and
Comparative Law
2017, Vol. 24(1) 63–85
ªThe Author(s) 2017
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DOI: 10.1177/1023263X17693188
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1. Introduction
European Union citizenship, which was established by the Treaty of Maastricht in 1992, grants all
nationals of the (currently 28) Member States of the European Union the ‘right to move and reside
freely within the territory of th e Member States’.
1
This right is not unconditional, but ra ther
‘subject to the limitations and conditions laid down in the Treaties and by the measures adopted
to give them effect’.
2
The principle of non-discrimination that is enshrined, together with European
Union citizenship in Part Two of the Treaty on the Functioning of the European Union (TFEU),
provides that ‘[w]ithin the scope of application of the Treaties, and without prejudice to any special
provisions contained therein, any discrimination on grounds of nationality shall be prohibited’.
3
Throughout the 1990s and at the beginning of the millennium, the Court of Justice of the European
Union (CJEU or Court) breathed life into the concept of European Union citizenship, often by
recourse to the principle of non-discrimination.
4
In the so-called ‘constituent phase’
5
of the case law on European Union citizenship, the CJEU
held in its often quoted Grzelczyk judgment that ‘Union citizenship is destined to be the funda-
mental status of nationals of the Member States, enabling those who find themselves in the same
situation to enjoy the same trea tment in law irrespective of the ir nationality, subject to suc h
exceptions as are expressly provided for.’
6
This judgment is embedded in a series of other judg-
ments such as Martı
´
nez Sala,
7
D’Hoop,
8
MRAX,
9
and Baumbast and R
10
that did not only further
the rights of European Union citizens (or Union citizens) but also the rights of their third-country
family members. The equal treatment component of the Grzelczyk formula seems to have governed
the development of Union citizenship also in the following so-called consolidation phase,
11
in
which the CJEU refined its case law and which is marked by the codification of the Court’s case
law in Directive 2004/38/EC.
12
Over the last couple of years we have witnessed a conceptual shift in the CJEU’s approach to
Union citizenship. This shift is said to be ‘characterised by an apparent retreat from the Court’s
original vision of citizenship in favour of a minimalist interpretation’.
13
While it has been rightly
1. Article 21 TFEU. This right is also enshrined in Article 45(1) of the Charter of Fundamental Rights of the European
Union, [2012] OJ C 326/391.
2. Article 21 TFEU.
3. Article 18(1) TFEU.
4. T. Kingreen, ‘In love with the single market? Die EuGH-Entscheidung Alimanovic zum Ausschluss von Union-
sbu
¨rgern von sozialen Grundsicherungsleistungen’, Neue Zeitschrift fu
¨r Verwaltungsrecht (2015), p. 1503.
5. E. Spaventa, ‘Earned Citizenship – understanding Union citizenship through its scope’, in D. Kochenov (ed.), EU
Citizenship and Federalism: the Role of Rights (Cambridge University Press, 2017), forthcoming.
´
nez Sala, EU:C:1998:217.
10. Case C-413/99 Baumbast and R, EU:C:2002:493.
11. E. Spaventa, in D. Kochenov (ed.), EU Citizenship and Federalism: the Role of Rights.
12. Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and
reside freely within the territory of the Member States amending Regulation (EEC) No. 1612/68 and repealing
Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC
and 93/96/EEC, [2004] OJ L 158/77. (the Citizenship Directive).
13. E. Spaventa, in D. Kochenov (ed.), EU Citizenship and Federalism: the Role of Rights.
64 Maastricht Journal of European and Comparative Law 24(1)
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