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Constitutional Identity and Integration: EU Citizenship and the Emergence of a Supranational Alienage Law

Published online by Cambridge University Press:  06 March 2019

Abstract

This Article examines some central questions concerning the status of EU foreigners—non-EU nationals legally residing in the EU. First, it addresses the peculiarities of the status of EU citizens and the special nature of EU immigration law as the basis for the construction of an EU alienage law. Second, it examines whether and to what extent the emergence of a supranational immigration and alienage law—with a focus on integration—interacts with the broader debate on European and national constitutional identity. Third, the Article analyzes the legal difficulties for the application of the equal treatment principle between EU citizens and EU foreigners taking as a point of reference the different roles of restrictions and conditions based on the notion of integration.

Type
Special Issue Constitutional Identity in the Age of Global Migration
Copyright
Copyright © 2017 by German Law Journal, Inc. 

References

1 For some broader analyses that are to be found in the literature, see, e.g., Daniel Thym, Citizens and Foreigners in EU Law: Migration Law and Its Cosmopolitan Outlook, 22 Eur. L.J. 296 (2016); Francesca Strumia, European Citizenship and EU Immigration: A Demoi-cratic Bridge between the Third Country Nationals' Right to Belong and the Member States' Power to Exclude, 22 Eur. L.J. 417 (2016); Sara Iglesias Sanchez, The Protection of Fundamental Rights of Citizens of the Union and Third Country Nationals: Reinforcing Coherence Through a New Interpretation of the Non-discrimination Principle, 15 Eur. J. Migration & L. 137 (2013).Google Scholar

2 See ECJ, Case 26/62, van Gend & Loos, EU:C:1963:1, Judgment of February 5, 1963.Google Scholar

3 Member States cannot, under any circumstances, plead the principle of reciprocity to justify infringement of EU law. See, e.g., ECJ, Cases 90/63 and 91/63, EU:C:1964:80, Commission v. Luxembourg and Belgium, Judgment of 13 November 1964; ECJ, Case 232/78 Commission v. France, EU:C:1979:215, Judgment of September 25, 1979; ECJ, Case 325/82 Commission v. Germany, EU:C:1984:60, Judgment of February 14, 1984, para. 11; ECJ, Case 270/83, Commission v. France, EU:C:1986:37, Judgment of January 28, 1986, para. 26. The implementation of the obligations imposed by EU law cannot be made subject to a reciprocity conditions, either. See, e.g., ECJ, Case C-405/01, Colegio de Oficiales de la Marina Mercante Española, EU:C:2003:515, Judgment of September 30, 2003, para. 61.Google Scholar

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7 The citizen's initiative has been inserted as an EU citizenship right by the Treaty of Lisbon, Article 24.Google Scholar

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18 This Article does not explore the principle of solidarity. For a source in this regard, see Opinion of Advocate General Bot, Cases C-643/15 and C-647/15 Slovakia and Hungary v. Council, EU:C:2017:618. See also Jürgen Bast, Deepening Supranational Integration: Interstate Solidarity in EU Migration Law, 22 Eur. Pub. L. 289 (2016).Google Scholar

19 See ECJ, Case C-40/11, Iida, EU:C:2012:691, paras. 45–48.Google Scholar

20 Even though an EU codification was considered, it never became a reality. For a proposal in this sense, see Peers, Steve, An EU Immigration Code: Towards a Common Immigration Policy, 14 Eur. J. Migration & L. 33 (2012).Google Scholar

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25 See Opinion of Advocate General Bot, C-165/16, Lounes, EU:C:2017:407, para. 87.Google Scholar

26 See Opinion of Advocate General Bot, C-165/16, Lounes, EU:C:2017:407. According to this opinion, naturalized EU citizens no longer fall within the scope of Directive 2004/38. However, the Advocate General has argued that the EU citizen at issue had taken “her integration in the host Member State to its logical conclusion by requesting her naturalisation in accordance with the objective pursued by the Union legislature not only in Article 21(1) TFEU, but also in Directive 2004/38, recital 18 of which seeks to make the permanent residence permit a ‘genuine vehicle for integration’ for the person concerned into the society of the host Member State. Her residence pursuant to and in conformity with the conditions set out in Article 16 of the directive is clear evidence of genuine residence and goes hand in hand with creating and strengthening family life in that Member State. To deprive her henceforward of the rights to which she has till now been entitled in respect of the residence of her family members because, by being naturalised, she has sought to become more deeply integrated in the host Member State, would annihilate the effectiveness of the rights which she derives from Article 21(1) TFEU.” (points 85 and 86). Because this solution is based on Article 21(1) TFEU, it may be arguably difficult to transpose to naturalized third country nationals with regard to the ‘retention’ of the rights awarded by EU migration directives.Google Scholar

27 For such a situation, see ECJ, Case C-87/12, Ymeraga and Others, EU:C:2013:291, Judgment of May 8, 2013.Google Scholar

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36 See François-Xavier Millet, L'Union europeenne et l'identite constitutionnelle des etats membres (2013); see also Polzin in this issue, 18 German L.J. (2017); Faraguna in this issue, 18 German L.J. (2017).Google Scholar

37 See, e.g., José Luis Martí, Two different Ideas of Constitutional Identity: Identity of the Constitution v. Identity of the People, in National Constitutional Identity and European Integration 17 (Alejandro Saiz Arnaiz & Carina Alcoberro Llivina eds., 2013).Google Scholar

38 For example, some studies adopt a broad approach including abortion, property acquisition, football, and alcohol control. See Hilson, Chris, The Unpatriotism of the Economic Constitution? Rights to Free Movement and their Impact on National and European Identity, 14 Eur. L.J. 186 (2008).Google Scholar

39 For an indepth discussion, see Rosenfeld, Michel, The Identity of the Constitutional Subject. Selfhood, Citizenship, Culture and Community (2010). See also Strumia et al. in this issue, 18 German L.J. (2017).Google Scholar

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42 See ECJ, Case C-208/09, Sayn-Wittgenstein, EU:C:2010:806, Judgment of December 20, 2010; ECJ, C-438/14, Bogendorff von Wolffersdorff, EU:C:2016:401, Judgment of June 2, 2016.Google Scholar

43 See ECJ, Cases C-51/15, Remondis, EU:C:2016:985, Judgment of December 21, 2016, para. 40; ECJ, C-156/13, Digibet and Albers, EU:C:2014:1756, Judgment of June 12, 2014, para. 34.Google Scholar

44 See ECJ, Cases C-391/09, Runevic-Vardyn and Wardyn, EU:C:2011:291, Judgment of May 11, 2011, para. 86; C-51/08, Commission v. Luxembourg, EU:C:2011:336, Judgment of May 24, 2011, para. 124; ECJ, C-473/93, Commission v. Luxembourg, EU:C:1996:263, Judgment of July 2, 1996, para. 35; ECJ, C-202/11, Las, EU:C:2013:239, Judgment of April 16, 2013, paras. 26, 27.Google Scholar

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[t]he right to family reunification should be exercised in proper compliance with the values and principles recognised by the Member States, in particular with respect to the rights of women and of children; such compliance justifies the possible taking of restrictive measures against applications for family reunification of polygamous households.Google Scholar

See also Article 4(4) of the Family Reunification Directive (“In the event of a polygamous marriage, where the sponsor already has a spouse living with him in the territory of a Member State, the Member State concerned shall not authorise the family reunification of a further spouse.”).Google Scholar

49 The idea of convergence has been emphasized by Advocate General Cruz Villalón:Google Scholar

the Union has … acquired the character, not just of a community governed by the rule of law, but also of a ‘community imbued with a constitutional culture’. That common constitutional culture can be seen as part of the common identity of the Union, with the important consequence, to my mind, that the constitutional identity of each Member State, which of course is specific to the extent necessary, cannot be regarded, to state matters cautiously, as light years away from that common constitutional culture. Rather, a clearly understood, open, attitude to EU law should in the medium and long term give rise, as a principle, to basic convergence between the constitutional identity of the Union and that of each of the Member States.Google Scholar

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50 For an analysis of that EU constitutional values, see Sarmiento, Daniel, The EU's Constitutional Core, in National Constitutional Identity and European Integration 177 (Alejandro Saiz Arnaiz & Carina Alcoberro Llivina eds., 2013).Google Scholar

51 Artide 79(4) TFEU.Google Scholar

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54 ECJ, Case C-540/03, Parliament v. Council, EU:C:2006:429, Judgment of June 27, 2006, para. 70.Google Scholar

55 See ECJ, Case C-579/13, P and S, EU:C:2015:369, Judgment of June 4, 2015; ECJ, Case C-153/14, K and A, EU:C:2015:453, Judgment of July 9, 2015.Google Scholar

56 See, e.g., Case C-558/14, Khachab, EU:C:2016:285, Judgment of April 21, 2016, para. 26; ECJ, C-540/03, Parliament v. Council, EU:C:2006:429, Judgment of June 27, 2006, para. 69. For sources in regard to the Long-term Residents Directive, see ECJ, C-309/14, CGIL et INCA, EU:C:2015:523, Judgment of September 2, 2015, para. 21; ECJ, C-508/10, Commission v. Netherlands, EU:C:2012:243, Judgment of April 26, 2012, para. 66. For a source on this debate, see Groenendijk, Kees, Legal Concepts of Integration in EU Migration Law, 6 Eur. J. Migration & L. 111–26 (2004).Google Scholar

57 See Council Document 14615/04 of 19 November 2004.Google Scholar

58 Commission Communication, Action Plan on the Integration of Third Country Nationals, COM (2016) 377 final.Google Scholar

59 See Council Document 14615/04 of 19 November 2004.Google Scholar

60 ECJ, Case C-579/13, P and S, EU:C:2015:369, Judgment of April 26, 2012; ECJ, Case C-153/14, K and A, EU:C:2015:453, Judgment of July 9, 2015.Google Scholar

61 See, e.g., Art. 3(1) of Regulation 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement of workers within the EU [2001] OJ L 141/1 (referring to “conditions relating to linguistic knowledge required by reason of the nature of the post to be filled”); see also ex- Art. 3(1) of Regulation 1612/68 [1968] OJ L257/475; Article 53 of Directive 2005/36, of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications [2005] OJ L 255/22 (noting that “persons benefiting from the recognition of professional qualifications shall have a knowledge of languages necessary for practising the profession in the host Member State.”).Google Scholar

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as regards migrant workers and frontier workers, the fact that they have participated in the employment market of a Member State establishes, in principle, a sufficient link of integration with the society of that Member State, allowing them to benefit from the principle of equal treatment, as compared with national workers, as regards social advantages.)Google Scholar

The approach is different, however, with regard to border-workers—who do not work and reside in the same Member State. See ECJ, Case C-20/12, Giersh, EU:C:2013:411, Judgment of June 20, 2013, para. 65 (stating that “the frontier worker is not always integrated in the Member State of employment in the same way as the worker who is a resident in that State.”).Google Scholar

63 See, for example, residential requirements for students. See ECJ, Case C-209/03, Bidar, EU:C:2005:169, Judgment of March 15, 2005, para. 57 (declaring that “it is permissible for a MS to ensure that the grant of assistance to cover maintenance costs of students from other Member States does not become an unreasonable burden which could have consequences fort the overall level of assistance.”). This integration is established if the student has resided for a certain length of time. See also ECJ, Joined Cases C-11/06 and C-12/06, Morgan and Bucher, EU:C:2007:626,Google Scholar

Judgment of October 23, 2007, para. 43; ECJ, Case C-158/07, Förster, EU:C:2008:630, November 18, 2008. This is the approach later codified in Article 24 of Directive 2004/38. For the role of integration as a justification in EU free movement law, see Sara Iglesias Sánchez & Diego Acosta Arcarazo, Social Justifications for Restrictions of the Right to Welfare Equality: Students and Beyond, in Exceptions from EU Free Movement Law. Derogation, Justification and Proportionality 80 (Panos Koutrakos, Niamh Nic Shuibhne & Phil Syrpis eds., 2016).Google Scholar

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65 See ECJ, Cases C-22/08 and C-23/08, Vatsouras and Koupatantze, EU:C:2009:344, Judgment of June 4, 2009, para 52; see also ECJ, Case C-45/93, Commission v. Spain, EU:C:1994:101, Judgment of March 15, 1994, para. 10; ECJ, Cases C-95/99 to C-98/99 and C-180/99, Khalil and Others, EU:C:2001:532, Judgment of October 11, 2001, para. 40; ECJ, Case C-45/12, Hadj Ahmed, EU:C:2013:390, Judgment of June 13, 2013, paras. 39–41.Google Scholar

66 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] O.J. L 180, p. 22; Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303, p. 16.Google Scholar

67 For more on this debate, see Hublet, Chloe, The Scope of Article 12 of the Treaty of the European Communities vis-à-vis Third-Country Nationals: Evolution at Last, 12 Eur. L.J. 575 (2009); Elspeth Guild & Steve Peers, Out of the Ghetto? The Personal Scope of EU Law, in EU Immigration and Asylum Law: Text and Commentary 81 (S. Peers & N. Rogers eds., 1st ed. 2006); Evelien Brouwer & Karin de Vries, Third-country Nationals and Discrimination on the Ground of Nationality: Article 18 TFEU in the Context of Article 14 ECHR and EU Migration Law: Time for a New Approach, in Equality and Human Rights: Nothing but Trouble? Liber amicorum Titia Loenen 123 (M. van den Brink, S. Burri & J. Goldschmidt eds., 2015).Google Scholar

68 Case of Moustaquim v. Belgium, judgment of February 18, 1991 (Application no. 12313/86) (finding no breach of Article 14 taken together with Article 8 ECHD because, first, “the applicant cannot be compared to Belgian juvenile delinquents [since the] latter have a right of abode in their own country and cannot be expelled from it” and that “the preferential treatment given to nationals of the other member States of the Communities, there is objective and reasonable justification for it as Belgium belongs, together with those States, to a special legal order.”). See also ECtHR, C. v. Belgium, 7 August 1996 (Appl.no. 21794/93).Google Scholar

69 The Court. However, had recognized the margin of appreciation enjoyed by States and that a State may “in certain circumstances, justifiably differentiate between different categories of aliens residing in its territory. For instance, the preferential treatment of nationals of member States of the European Union … may be said to be based on an objective and reasonable justification, because the Union forms a special legal order, which has, moreover, established its own citizenship.” See ECtHR, Ponomaryovi v. Bulgaria, June 21, 2011 (Appl. no. 5335/05). However, that finding was not effectively applied in that case, due to the strict scrutiny attached to the importance of the right at issue—education. In its Judgment of April 8, 2014, Dhabhi v. Italy Appl. no. 17120/09, the ECtHR did not accept this argument in order to justify a different treatment between EU citizens and an EU foreigner with regard to welfare benefits.Google Scholar

70 See, e.g., ECtHR, Gaygusuz v. Austria, ECtHR Reports of Judgments and Decisions 1996 –IV; ECtHR, Koua Poirrez v. France, 30 September 2003 (Appl. No. 40892/98); ECtHR, Luczak v. Poland, 27 November 2007 (Appl. No. 77782/01); Andrejeva v Latvia Appl. No. 55707/00 ECtHR, 18 February 2009 ECtHR, Fawsie v. Greece, 28 October 2010 Appl. no. 40080/07; ECtHR, Saidoun v. Greece, 28 October 2010 (Appl. No. 40083/07). The Court has, however, emphasized the ide margin usually allowed to the State under the Convention when it comes to general measures of economic or social strategy in its judgment of September 15, 2016, case of British Gurkha Welfare Society and Others v. the United Kingdom, (Appl. no. 44818/11).Google Scholar

71 For an extensive review of the ECtHR case law, see Brouwer & de Vries, supra note 67, at 123.Google Scholar

72 See Opinion of AG Bot, ECJ, Case C-311/13, Tümer, EU:C:2014:2337, para. 70 et seq. (considering that “making the right to the guaranteed settlement of pay claims conditional, in the case of an employee who is a third-country national, upon legal residence is not, to my way of thinking, consistent with the principle of equal treatment and non-discrimination' of Articles 21 and 20 of the Charter.”).Google Scholar

73 See, e.g., ECJ, Case C-579/13, P and S, EU:C:2015:369, Judgment of June 4, 2015, para. 41.Google Scholar

74 The fact that the notion of “fair treatment” is undetermined in the Treaty wording has led some commentators to point at the minimum “human rights” standard, being necessary legislative development to determine it further. See Thym, Daniel, EU Migration Policy and its Constitutional Rationale: A Cosmopolitan Outlook, 50 Common Mkt. L. Rev. 709 (2013).Google Scholar

75 For the interpretation of the scope of the equal treatment principle in the Long-term residents Directive in accordance with the Charter, see ECJ, Case C-571/10, Kamberaj, EU:C:2012:233, Judgment of April 24, 2012.Google Scholar

76 See Groenendijk, Kees, Citizens and Third Country Nationals: Differential Treatment or Discrimination, in The Future of Free Movement of Persons in the EU 79 (Jean Yves Carlier & Elspeth Guild eds., 2006).Google Scholar

77 See S. Morano-Foadi & K. de Vries, The Equality Clauses in the EU Directives on Non-Discrimination and Migration/Asylum, in Integration for Third Country Nationals: The Equality Challenge 16 (S. Morano-Foadi & M. Malena eds., 2012).Google Scholar

78 For example, in the case of the Family Reunification Directive, equal treatment applies with regard to the sponsor family member; the right of free movement in the qualification Directive takes as a point of resident other legally residing third country nationals.Google Scholar

79 See, Article 13 of Decision 1/80 of the Association Council of 19 September 1980 on the development of the Asociation Agreement between the European Community and Turkey O.J. 1973 C 113, p. 1; Article 41(1) of the Additional Protocol annexed to that Agreement, O.J. 1977 L 361, p. 60 (regarding the provision of services).Google Scholar

80 For the first time this possibility was admitted, see ECJ, Case C-225/12, Demir, EU:C:2013:725, Judgment of November 7, 2013.Google Scholar

81 ECJ, Case C-561/14, Genc, EU:C:2016:247, Judgment of April 12, 2016, para 55.Google Scholar

82 In Genc, the integration condition at issue required that, in order to benefit from family, a child, or be able to establish sufficient ties to Denmark to enable successful integration. That condition applied only if the application was made more than two years after the award of the resident permit to the parent. The Court considered that the integration condition at issue was unconnected with the likelihood of achieving integration. Since the condition was not justified, it was considered as a “new restriction” contrary to the stand still clause.Google Scholar

83 See ECJ, Case C-138/13, Dogan, EU:C:2014:2066, Judgment of July 10, 2014. This case concerned the application of integration conditions in the form of language test prior to family reunification. The Court considered that even on the assumption that the grounds adduced related to the prevention of forced marriages and the promotion of integration could constitute overriding reasons in the public interest, it remains the case that national measures which automatically led to the dismissal of an application for family reunification due to lack of evidence of sufficient linguistic knowledge go beyond what is necessary to attain the objectives pursued (see para 38 of the judgment).Google Scholar

84 Article 29 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, O.J. 1022 L 337, p. 9.Google Scholar

85 ECJ, Joined Cases C-443/14 and C-444/14, Alo and Osso, EU:C:2016:127, para 59.Google Scholar

86 See ECJ, Case C-571/10, Kamberaj, EU:C:2012:233, Judgment of April 24, 2012 (regarding the long-term residents directive); ECJ, Case C-449/16, Martinez Silva, EU:C:2017:485, Judgment of June 21, 2017 (regarding the Single Permit Directive).Google Scholar

87 See ECJ, Case C-138/13, Dogan, EU:C:2014:2066, Judgment of July 10, 2014; ECJ, C-561/14, Genc, EU:C:2016:247, Judgment of April 12, 2016; ECJ, Case C-579/13, P and S, EU:C:2015:369, Judgment of June 4, 2015; ECJ, Case C-153/14, K and A, EU:C:2015:453, Judgment of July 9, 2015.Google Scholar

88 See Karin de Vries, The Integration Exception: A New Limit to Social Rights of Third-Country Nationals in EU Law?, in Questioning EU Citizenship: Judges and the Limits of Free Movement and Solidarity in the EU (Daniel Thym ed., forthcoming 2017).Google Scholar

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