With reference to relevant legislation and the case law of the European Court of Justice, critically discuss the significance of the status of Union citizenship in relation to free movement rights.

Introduction

• The internal market: the free movement of persons as one of four fundamental freedoms, Article 26 TFEU.
• Article 18 TFEU: the associated right to non-discrimination on grounds of nationality.
• Initially, free movement rights tied largely to economic status.
• Article 20 TFEU: creation of Union citizenship.
• Article 21 TFEU: free movement for Union citizens, but subject to 'conditions and limitations'.

The pre-existing position: pre-Maastricht, pre-Articles 17, 18 EC (now Articles 20 and 21 TFEU)

• The scope of the rights was limited since they were largely tied to economic status. Rights for workers (Article 39 EC (now Article 45 TFEU)), the self-employed (freedom of establishment and to provide services (Articles 43, 49 EC (now Articles 49, 56 TFEU)), and their families.
• But within the legislative framework above, a broad interpretation by the Court of Justice, for instance of the meaning of 'worker' (eg Levin, Kempf, Steymann, ).
• Some further extension of rights by the Court of Justice: jobseeker rights (Royer, Antonissen).
• Treaty rights were subject to limitations – public policy, security, health – but narrowly interpreted by the Court of Justice.
• The economic nexus was partially broken by Directives 90/364/365/366, granting rights to persons of independent means, retired persons, and students, but all subject to having sufficient resources and sickness insurance.

Citizenship provisions of the Treaty: a significant development, with Maastricht

• Article 17 EC (now Article 20 TFEU): citizenship of the Union established. All nationals of the Member States are Union citizens, a status to which rights could be attached.
• Article 18 EC (now Article 21 TFEU): the right of every citizen of the Union to move and reside freely within the territory of the Member States, but subject to the 'limitations and conditions laid down in the Treaties and by the measures adopted to give it effect'.
• The Court of Justice grasped the opportunity to extend the boundaries of free movement rights, using the citizenship provisions as their basis (Grzelczyk, Baumbast, Zambrano). 'Union citizenship is destined to be the fundamental status of the nationals of the Member States' (Grzelczyk).

Citizenship rights enshrined in secondary legislation: Directive 2004/38

• Echoes of the ECJ: Recital 3 – 'Union citizenship should be the fundamental status of nationals of the Member States . . .'
• Article 21 TFEU is central, but how significant is the development of Union citizenship?
• The Directive grants all Union citizens and families the right to enter into and reside in another Member State. No economic status required, but these rights extend only up to three months. There is no right to welfare and the rights are subject to the individual not becoming an unreasonable burden on the host state, unless a worker, self-employed, or family member.
• The Directive grants the right to reside for more than three months, but little has changed from the previous provisions. The rights apply only to workers, the self-employed, students, persons of independent means and their family members. The latter two groups are still required to have sufficient resources and sickness insurance, Directive 2004/38 incorporating the requirements of Directives 90/364/365/366.
• The Directive makes significant distinctions between family members who are Union citizens and those who are not, in circumstances of divorce or where the Union citizen dies or leaves the host state.
• However, the scope of 'family member' is extended to include registered partners and Member States are obliged to facilitate the entry and residence of ‘other family members’ provided certain conditions are met.
• Further, the Directive introduced a right of permanent residence, acquired by Union citizens who have resided legally in the host state for five years. A significant development, for after acquiring the right, no economic status is required.
• The Directive grants equality rights to persons having residency rights, though there are limits to entitlement to welfare in the host state.
• The three specific grounds of limitation remain – public policy, security, health – though the Court of Justice has interpreted and no doubt will continue to interpret, these grounds restrictively. Note, for instance, the decisions on general preventative measures, personal conduct, and previous convictions (eg Bonsignore, Calfa, Orfanopoulos and Oliveri, Bouchereau).
• Now, under Directive 2004/38, there is protection against expulsion. Once permanent residence rights have been acquired, no expulsion decision may be taken against a Union citizen or family members except on 'serious' grounds of public policy, security and only on 'imperative' grounds of public security for Union citizens residing for more than ten years.

Conclusion

The status of Union citizenship has been significant, both in the case law of the Court of Justice and in relation to Directive 2004/38, in the extension of free movement rights. However, important qualifications and limitations still remain.