Back to the Market Roots for ‘Legal Residence’ of Citizens of the Union – Is the Court of Justice Really Scaling Back Rights?

Much has been written about EU Citizenship and its implications in many disciplines and from many points of view. Legally speaking, Citizenship of the Union is a status created by the EU for all nationals of the Member States of the EU. It provides rights and obligations for individuals, such as rights to move, reside, and enjoy equal treatment, against another Member State, or upon return to the home Member State. Arguably, it is this legal dimension of EU Citizenship which has led to its practical value for the Citizens of EU Member States today. So the future of legal interpretation of the limits to Citizenship rights must form a fundamental aspect of any attempt to predict the future of EU Citizenship at large. For a long time after the creation of EU Citizenship the Court of Justice of the EU [CJEU] has taken an active role in increasing the rights of Citizens. Over time, it seemed that the CJEU only knew one direction to develop the interpretation and apply citizenship rights against the Member States, namely more rights, more protection, more equality. The Member States, whilst not pleased with this development, duly obliged despite the negative effects this development had on their discretion to allow and refuse residence or access to their welfare systems. This one-way interpretation of Citizenship of the Union seems to have come to an end, or, at least, the CJEU seems to have hit the breaks in its interpretation of EU Citizenship. In a series of cases, the CJEU has curtailed rights of non-economically active EU Citizens. Accordingly, EU citizens who reside in another Member State and who are not (fully) economically active and who do not have sufficient means will find it harder to obtain permanent residence status, access social welfare benefits, or to be considered legal residents at all. This Paper will try to throw light on three questions which are important to bear in mind when trying to predict the future of EU Citizenship: (1) Is this development really a new trend? Is the Court reacting to political sensitivities and willing to permanently curtail EU Citizens’ rights? (2) How does the reaction of the Court relate to other areas of law where the Court seems to have increased the reach of EU Citizenship, e.g. in the Zambrano case and the rights of family members, or regarding the application of Fundamental Rights? (3) Is this development restricting EU Citizenship rights or merely re-establishing the rather old dichotomy between the market-citizen and the economically non-active citizen on the EU level? The former is (clearly) still privileged in legal status and claims to equality in EU legislation. The answer to this last question particularly decides whether the nature of the recent interpretations of EU Citizenship by the CJEU is curtailing rights or re-inventing a rather old and well-known divide.