Union citizenship version 2.0

Abstract: In a series of fascinating cases decided in 2011, the CJEU modified its classical approach to the scope of application of EU law in the areas of free movement of persons and Union citizenship. The “Zambrano rule” is a narrow exception to the well-known rule of the “purely internal situation”. If a Union citizen runs the risk of de facto losing his status as Union citizen and the rights thereto attached, through having to leave the territory of the Union, he or she may invoke Union law against his or her own home Member State – regardless of the existence of any link to Union law other than Union citizenship in itself. No cross-border element is needed since the loss of the rights in itself constitutes a sufficient link to EU law. What more is, when the forced departure is due to the Union citizen’s dependency on a TCN family member, that family member has a derived right of residence in the Union’s home Member State. Persons who cannot invoke Union law under either the traditional cross-border paradigm or the Zambrano rule can be divided into two groups: those who have a real possibility to create a sufficient link to Union law, and those who do not have that possibility because of their inability to provide for themselves. In situations regarding the right of residence of a TCN family member, this leads to disturbing situations of reverse discrimination. Outside the scope of the “Zambrano rule”, Union citizen family members are expected to exercise their free movement rights even when they are clearly unable to do so. Thus, where one family can establish a right of residence in the home Member State of the Union citizen on the basis of Union free movement law, another will be split up or be de facto forced to leave the territory of the Union. The CJEU’s evasive attitude towards the latter group’s inability to exercise their free movement rights can be understood as an acknowledgement of the Member State’s wish to confine free movement of non-economically active persons to those who do not impose a burden on the host Member State’s social assistance system. The Zambrano rule has nonetheless resulted in a de facto expansion of the scope of Union law in order to defend the rights of some of its weakest and more fragile citizens. The CJEU has once again forcefully demonstrated its willingness to defend the spirit and potential inherent in the status of Union citizenship.