EU Law Blog

Fifth Commission Report on Citizenship

If there is one interesting development in the case law of the Court of Justice, it is that which concerns citizenship. Take this case, for example, or that one.

The Commission publishes a report every so often on "Citizenship of the Union" and the fifth one was made public recently. You can find it here as COM(2008) 85 final.

The report covers the period May 1st 2004 to June 30th 2007 and contains a very valuable and interesting summary of developments - legislative, administrative and judicial - in all areas affecting citizenship at the EC level.

That Report itself is succinct. Earnest researchers should refer to the accompanying Commission document SEC(2008) 197 is much more detailed and provides what seems like a comprehensive series of references. What is particularly interesting is the table on pages 9 and 10 on migration and population figures per member State. Did you know, for example that 2.1% of the United Kingdom's population was made up of citizens from other member States and 3.6% of it from non-member States ?

Citizenship, Student Grants and Country of Origin Impediments: Joined Cases C-11/06 and C-12/06

The Court of Justice has handed down a judgment in Joined Cases C-11/06 and C-12/06 Morgan an Bucher that is so exciting that we can barely contain ourselves. It really does reward reading and so we should just suggest you go and read it for yourselves.

Here's a bit of an introduction to whet your appetite for it. The Court held that a national law that makes the award of education and training grants for studies in another member State subject to the condition that those studies should be a continuation of studies pursued for at least one year in the member State awarding the grant is liable to deter citizens of the Union from making use of their freedom of movement and is thus contrary to Articles 17 EC and 18 EC.

Ms Morgan, a German national, moved to Great Britain where she worked for a year as an au pair before starting her university studies in England, for which she applied to the German authorities for a grant. Her application was rejected because, under German legislation, the grant was subject to the condition that the course of study should constitute a continuation of education or training pursued for at least one year in a German establishment.

Ms Bucher, also German, lived in Bonn until she decided to move to Düren, a German town close to the Dutch border, and pursue a course of study in Heerlen, in the Netherlands. She applied to the authorities in Düren for a grant. She was refused because she was not ‘permanently’ resident near a border as required by the German legislation.

The Court of Justice held that while member States remain competent to establish a system of grants for the pursuit of education, they must ensure that if students pursue their education in another member State, they must ensure that the detailed rules for the award of those grants do not create an unjustified restriction on freedom of movement. In the present case, German legislation imposed a two fold obligation on the receipt of a grant for study abroad : First, the applicant for a grant must have attended an education or training course for at least one year in Germany and second, the applicant must continue only that same education or training in another member State. The Court held that on account of the personal inconvenience, additional costs and possible delays which it entails, the German legislation is liable to discourage citizens of the Union from leaving Germany in order to pursue studies in another member State. It therefore constitutes a restriction on freedom of movement for citizens of the Union.

The Court recalled that recalled that national legislation of a member State which places certain of its nationals at a disadvantage simply because they have exercised their freedom to move and to reside in another ember State constitutes a restriction on the freedoms conferred by Article 18(1) EC on every citizen of the Union (see Case C‑406/04 De Cuyper, paragraph 39; Case C-192/05 Tas Hagen and Tas, paragraph 31; and Case C-76/05 Schwarzand Gootjes-Schwarz, paragraph 93). The opportunities offered by the Treaty in relation to freedom of movement for citizens of the Union cannot be fully effective if a national of a member State can be deterred from availing himself of them by obstacles placed in the way of his stay in another Member State by legislation of his State of origin penalizing the mere fact that he has used those opportunities (see, to that effect, Case C‑224/98 D’Hoop, paragraph 31; Case C‑224/02 Pusa, paragraph 19; and Schwarz and Gootjes‑Schwarz, paragraph 89).

Interestingly, the Court added that that consideration is particularly important in the field of education in view of the aims pursued by Article 3(1)(q) EC and the second indent of Article 149(2) EC, namely, inter alia, encouraging mobility of students and teachers (see D’Hoop, paragraph 32, and Case C-147/03 Commission v. Austria, paragraph 44).

There's a lot, really a lot that can be written about this judgment. It shows for one thing how real, effective and far reaching is the concept of a single European market for education.

Citizenship and war pensions: Case C-192/05

The Court of Justice handed down a neat judgment on citizenship and Article 18 EC. It held in Case C-192/05 Tas-Hagen and Tas that Article 18(1) EC precludes legislation of a member State under which it refuses to grant to one of its nationals a benefit for civilian war victims solely on the ground that, at the time at which the application was submitted, the person concerned was resident, not in the territory of that member State, but in the territory of another member State.

The story is as follows. Mrs Tas-Hagen was born in 1943 in what was at the time the Dutch East Indies. She moved to the Netherlands in 1954. In 1961 she acquired Netherlands nationality. In 1987, after having become incapable of working and thereby forced to terminate her professional career, she took up residence in Spain. In 1999, while resident in Spain, Mrs Tas-Hagen applied for the grant of a war pension. This application was based on health problems resulting from her experiences in the Dutch East Indies during the Japanese occupation and during the Bersiap period following that occupation. Her application was denied on the ground that the relevant Dutch legislation required the applicant for the war pension to be actually resident in the Netherlands and she was not because she was resident in Spain at the time.

As for Mr Tas, he was born in the Dutch East Indies in 1931. In 1947 he took up residence in the Netherlands. From 1951 to 1971 he held Indonesian nationality. He regained Netherlands nationality in 1971. In 1983 he ceased to be employed as an official of the Hague municipal council, and he was declared wholly incapable of work on grounds of mental health. In 1987 Mr Tas took up residence in Spain. He too applied for a war pension in 1999 and was also turned down on the ground that he was resident in Spain, not the Netherlands, at the time of the application.

They both challenged the refusal before the Dutch courts on the ground that the condition of residence in the Netherlands at the time of the applications is contrary to the Treaty provisions on citizenship of the Union. The Dutch court then referred the matter to the Court of Justice.

The Court had first to determine whether the facts of the case came within the scope of EC law. The Court held that they did. It stated that a benefit such as that in issue in the main proceedings, which is intended to compensate civilian war victims for physical or mental damage which they have suffered, falls within the competence of the member States. But, member States must exercise that competence in accordance with Community law, in particular with the Treaty provisions giving every citizen of the Union the right to move and reside freely within the territory of the member States. The Court pointed out that while citizenship of the Union, established by Article 17 EC, is not intended to extend the material scope of the Treaty to internal situations which have no link with Community law (Joined Cases C‑64/96 and C‑65/96 Uecker and Jacquet, paragraph 23, and Case C‑148/02 Garcia Avello, paragraph 26), the situation of Ms Tas-Hagen and Mr Tas is covered by the right of free movement and residence of citizens of the European Union. Clearly, Ms Tas-Hagen and Mr Tas, in taking up residence in Spain, were exercising the right granted by Article 18(1) EC to every citizen of the Union to move and reside freely within the territory of a Member State other than that of which he is a national.

Then the Court considered whether the residence requirement laid down in Dutch law was contrary to EC law. The Court held that it was contrary to EC law. The Court recalled that the opportunities offered by the Treaty in relation to freedom of movement cannot be fully effective if a national of a member State can be deterred from availing himself of them by obstacles raised to his residence in the host Member State by legislation of his State of origin penalizing the fact that he has used them (Case C‑224/02 Pusa, paragraph 19). It held that national legislation which places at a disadvantage certain of the nationals of the Member State concerned simply because they have exercised their freedom to move and to reside in another Member State is a restriction on the freedoms conferred by Article 18(1) EC on every citizen of the Union (Case C‑406/04 De Cuyper, paragraph 39).

The Court did consider whether the restriction, deriving from the residence requirement, was justified. Such a restriction can be justified, the Court held, only:
- if it is based on objective considerations of public interest independent of the nationality of the persons concerned
- and is proportionate to the legitimate objective of the national provisions (De Cuyper, paragraph 40).

As to the first condition (the existence of objective considerations of public interest) it is apparent the limitation in the Dutch legislation, by means of the condition of residence, of the number of persons likely to be eligible for the benefits introduced by that legislation results from the Netherlands legislature’s wish to limit the obligation of solidarity with civilian war victims to those who had links with the population of the Netherlands during and after the war. The condition of residence is therefore an expression of the extent to which such victims are connected to Netherlands society. The Court conceded that this aim of solidarity may constitute an objective consideration of public interest.

But that left the second condition, the one relating to proportionality. The Court had a problem with that one. The Court held that a condition of residence such as that in issue in the main proceedings cannot be characterised as an appropriate means by which to attain the objective sought. It found that a criterion requiring residence cannot be considered a satisfactory indicator of the degree of connection of applicants to the member State granting the benefit when it is liable, as is the case with the criterion in issue in the main proceedings, to lead to different results for persons resident abroad whose degree of integration into the society of the member State granting the benefit is in all respects comparable. The setting of a residence criterion such as that used in the main proceedings, based solely on the date on which the application for the benefit is submitted, is not a satisfactory indicator of the degree of attachment of the applicant to the society which is thereby demonstrating its solidarity with him. It follows that this condition of residence fails to comply with the principle of proportionality.

Consequently, the Court held the Dutch residence requirement was contrary to Article 18(1) EC.