Discuss the ECJ judgment of 10 October 2013 in Case C-86/12 Alokpa and Moudoulou in the light of the case law on Union citizenship and on the Charter of Fundamental Rights. The case of Alokpa and Moudoulou[1] concerns the right of Union citizens and their family members to move and reside freely within the territory of the Union. The ECJ ruled that Article 21 TFEU and Directive 2004/38 grant Mrs Alokpa and her children a right to continue to reside in the host Member State, as the children are the nationals of another Member State and the parent is the minors primary carer. The Court then determined that if Article 21 did not apply, being forced to leave Luxembourg would not result in an obligation to leave the whole territory of the EU, as the children were French nationals. Mrs Alokpa would therefore have the right to reside in France as the sole caregiver of minors. Thus, the refusal of the Luxembourg authorities did not constitute a deprivation of the genuine enjoyment of the childrens Union rights. The Court effectively says that whilst the European citizen minors cannot make use of their Article 20 TFEU right in Luxembourg, they could move to France and make use of it there. The minors would then be in the same position as the siblings in the Zambrano[2] case and that living in the country of their nationality the ECJ would have to protect their Union citizenship rights provided for in the charter, particularly the right to family life. The decision in Zambrano facilitated the acquisition of citizenship rights in what had previously been considered purely internal situations, thought to be beyond the scope of Union law. The purely internal rule gives rise to problems of reverse discrimination, where static EU citizens who have not exercised their right to free movement are at a disadvantage and unable to rely on EU law. It is suggested that Union citizens may be motivated to make use of their free movement rights in order to benefit from the right to family reunification under the conditions laid down in Directive 2004/38.[3] This situation, where movement within the territory of the Union almost becomes a practical obligation instead of a right, inevitably raises the issue of potential abuse of the rights attached to EU citizenship.[4] In the past, the court has tackled the issue of reverse discrimination by loosely finding a link to Union law, such as in Garcia Avello[5] and later in Zhu and Chen.[6] Here the ECJ explicitly stated that the exercise of the right of free movement is not a prerequisite to the application of Union law on residence and held that a Union citizen with the nationality of one Member State residing in another Member State does present a sufficiently Union-linked situation to invoke Union law regarding the right to free movement and residence. This relates directly to the case of Alokpa and Moudoulou. The subsequent case of McCarthy[7] had the effect of mitigating somewhat the potentially far-reaching implications of the decision in Zambrano. This case called upon the Court to determine whether a European citizen had a right to be issued with a residence card by the member state of which she was a national despite having never exercised her right of free movement. The motivation behind this was to derive a secondary right of residence under Union law for her spouse. The Court sidestepped the issue of family unification and held that as she had an unconditional right to reside in her home member state, she was not deprived of the genuine enjoyment of her citizenship rights by the decision to refuse her a residency card. However, Lansbergen and Miller[8] submit that the court did not consider that a decision to deport the spouse would nevertheless deprive the claimant of her right to a family life provided by the charter. By finding that there was no deprivation of genuine enjoyment of the Union citizenship rights, the Court in McCarthy arguably undermines the decision in Zambrano, as the EU citizen children in Zambrano also had an unconditional right to reside in their national state; their deprivation arose not from insufficient protection of their own residency but that of their family member. McCarthy is criticised by Wiesbrock[9] as leaving Union citizens in an unsatisfactory position, where it is increasingly difficult to establish when ones Union citizenship rights are protected. AG Sharpston[10] suggests that in order to remedy the issue of reverse discrimination, the right to move should be disconnected from the right to reside. She advised the ECJ to acknowledge the right to residency as a free-standing right for European citizens and to extend the existing case law to situations in which no actual movement has taken place. Moreover, Sharpston considered that even if the Court should fail to accept the right of residence as a freestanding right, infringement of the citizens right to move and reside within the territory of the Union nevertheless occurs by preventing them from exercising that right in the future. This corresponds with the reasoning in Rottmann[11], where the Court for the first time explicitly departed from the doctrine that a cross-border element is required to trigger the application of EU law. The Court simply observed that the national measure at stake fell by reason of its nature and its consequences within the ambit of EU law[12] which would have in effect have caused the citizen to lose the rights conferred on them by the Treaties. In Dereci,[13] the Court clarified the criteria that should be applied to distinguish between the scope of application of EU law and the areas that remain governed by national law. The court held that Article 20 TFEU applies only to exceptional situations in which the Union citizen has to leave not only the territory of the Member State of which he is a national but the territory of the Union as a whole. In the ECJs view, it will be for the referring court to verify whether the challenged measures respect private and family life guaranteed by Article 7 of the Charter of Fundamental Rights. The Court stressed however, that, in accordance with Article 51 of the Charter, Article 7 should only apply if the situation of the applicants is covered by EU law and thus cannot be used in a purely internal situation. The contrasting outcomes in Zambrano and McCarthy raised the question whether the different status of the Union citizens in both cases (minor children and adult partner) played a role in finding whether or not there was a deprivation of citizenship rights. In Dereci, the Court makes a direct link between the requirement of dependency and the capacity to live independently within the territory of the Union. Therefore, it follows that the Zambrano reasoning only applies when static Union citizens would have no choice but to follow their third-country family members out of the territory of the Union on refusal of a right of residence in the country of which the citizen in question is a national. Considering the previous case law on citizenship and the charter, I must conclude that the decision in Alokpa and Moudoulou is a sound one. It is consistent with the judgement in Dercei, that only a situation, in which refusal of residency to a third-country national family member would result in the European national having to leave the Union territory due to dependency upon that family member, would deprive the EU national of enjoyment of his fundamental Union rights. As Mrs Alokpa and her children would not have to leave the territory of the union as a result of Luxembourgs refusal to grant a residency permit, the children are not deprived of the genuine enjoyment of their citizenship rights. Although it could be argued that the childrens Article 21 right to freedom of movement would be impinged by having to leave the territory of Luxembourg, despite the children having not themselves exercised this right, having been born there. The onus is placed on the childrens national member state to provide for their Article 20 Union citizenship rights. Bibliography
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Stanislas Adam and Peter Van Elsuwege, (2012) Citizenship rights and the federal balance between the European Union and its member states: comment of Dereci European Law Review
Anja Lansbergen and Nina Miller (2011). Court of Justice of the European Union European Citizenship Rights in Internal Situations: An Ambiguous Revolution? Decision of 8 March 2011, Case C-34/09 Gerardo Ruiz Zambrano v Office national demploi (ONEM) European Constitutional Law Review
Anja Wiesbrock,(2011) Disentangling the Union citizenship puzzle? The McCarthy case, European Law Review
H.van Eijken and S.A. de Vries [2011] A new route into the promised land? Being a European citizen after Ruiz Zambrano, European Law Review
C-135/08 Rottmann [2010]
C-148/02 Garcia Avello [2003]
C-200/02 Zhu and Chen [2004]
C-256/11 Dereci and Others [2011]
C-434/09 McCarthy [2011]
C-34/09 Ruiz Zambrano [2011]
C-86/12 Alokpa and Moudoulou [2013]
Opinion of Advocate General Sharpston delivered on 30 September 2010
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[1] C-86/12 Alokpa and Moudoulou [2013] [2] C-34/09 Ruiz Zambrano [2011] [3] Stanislas Adam and Peter Van Elsuwege, (2012) Citizenship rights and the federal balance between the European Union and its member states: comment of Dereci European Law Review [4] Stanislas Adam and Peter Van Elsuwege, (2012) Citizenship rights and the federal balance between the European Union and its member states: comment of Dereci European Law Review [5] C-148/02 Garcia Avello [2003] [6] C-200/02 Zhu and Chen [2004] [7] C-434/09 McCarthy [2011] [8] Anja Lansbergen and Nina Miller (2011). Court of Justice of the European Union European Citizenship Rights in Internal Situations: An Ambiguous Revolution? Decision of 8 March 2011, Case C-34/09 Gerardo Ruiz Zambrano v Office national demploi (ONEM) European Constitutional Law Review [9] Anja Wiesbrock,(2011) Disentangling the Union citizenship puzzle? The McCarthy case, European Law Review [10] Opinion of Advocate General Sharpston delivered on 30 September 2010 [11] C-135/08 Rottmann [2010] [12] ibid p42 [13] C-256/11 Dereci and Others [2011]
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