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Derogating from the Free Movement of Persons: When can EU Citizens be Deported?

Published online by Cambridge University Press:  27 October 2017

Extract

Ten years ago, the Bayerisches Landessozialgericht referred four questions to the Court of Justice for a preliminary ruling; the resulting judgment on María Martínez Sala’s entitlement to a child-raising allowance finally yanked the concept of Union citizenship from its sluggish hinterland in the EC Treaty and launched the Court and the Community legislature on a mission—to uncover the substantive content and scope of citizenship, and to realise its potential as an autonomous rights-giving force. The intervening decade has seen enthusiastic, if not always coherent, progression of this vocation, and thereby renewed animation of Community law on the free movement of persons. Much work in this field seeks to plot the evolving rights for EU citizens; but what about the position of the Member States? Their capacity to determine and manage their own immigration rules had already been eroded by ‘traditional’ Community law on workers, establishment and services.

Type
Research Article
Copyright
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2006

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References

1 Case C–85/96, Martínez Sala v Freistaat Bayern [1998] ECR I–2691. The destined ‘fundamental status’ of EU citizenship from Case C–184/99, Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I–6193, para 31, was already captured by AG La Pergola in Martínez Sala (para 18 of the Opinion), and seen more as ‘guaranteed’ than aspirational.

2 Art 39(3) EC for workers; Art 46(1) EC for establishment and (via Art 55 EC) services; Art 18(1) EC more generally for citizens. In relation to Art 18(1), the methodology of importing ‘limits and conditions’ from other Treaty provisions and elsewhere is returned to in section IV below; for now, this can be taken to include the three express grounds of derogation.

3 Joined Cases C–482/01 and C–493/01, Orfanopoulos and Oliveri v Land Baden Württemberg [2004] ECR I–5257, para 65.

4 Formerly, by Directive 64/221/EEC on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, OJ Spec Ed 1964 No 850/64, 117.

5 Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, OJ 2004 L 229/35.

6 Originally, Art 4 of Directive 64/221/EEC, above n 4.

7 Art 29(1) of Directive 2004/38/EC, above n 5; Art 29(3) establishes strict conditions on the permissibility of medical examinations. The Annex to Directive 64/221/EEC (above n 4) included a category of ‘diseases and disabilities which might threaten public policy or public security’ (including drug addiction and certain mental illnesses), but this is not replicated in the 2004 legislation.

8 Case 67/74, Bonsignore v Stadt Köln [1975] ECR 297.

9 Art 3(1) and (2) respectively of Directive 64/221/EEC, above n 4, reproduced in Art 27 of Directive 2004/38/EC, above n 5. Past criminal convictions are relevant only where they evidence a present threat: Case 30/77, R v Bouchereau [1977] ECR 1999, paras 28–29 and Case C–348/96, Criminal Proceedings against Calfa [1999] ECR I–11, paras 22 to 24.

10 Case 41/74, van Duyn v Home Office [1974] ECR 1337, para 18. See also, the discussion by AG Van Gerven in Case C–159/90, SPUC v Grogan [1991] ECR I–4685, especially para 26 of the Opinion.

11 Case 41/74, van Duyn v Home Office [1974] ECR 1337, para 19: all that was required of the UK, in respect of the Church of Scientology, was that it had ‘taken administrative measures to counteract these activities’. The Court did stress, however, that past association with an organisation cannot of itself justify expulsion (para 17); it required ‘present association which reflects participation in the activities of the body or of the organisation as well as identification with its aims and designs’.

12 Joined Cases 115 and 116/81, Adoui and Cornuaille v Belgium [1982] ECR 1665, para 7.

13 Case 30/77, R v Bouchereau [1977] ECR 1999, para 35: the ‘genuine and sufficiently serious’ element comes from Case 36/75, Rutili v Ministre de l’intérieur [1975] ECR 1219, para 28.

14 See Art 6–9 of Directive 64/221/EEC, above n 4.

15 The standards set down in the Directive have also been fleshed out judicially; as well as Case 36/75, Rutili v Ministre de l’intérieur [1975] ECR 1219, paras 33 to 39 and Joined Cases 115 and 116/81, Adoui and Cornuaille v Belgium [1982] ECR 1665, paras 13 to 19, see Case 98/79, Pecastaing v Belgium [1980] ECR 691, Case C–175/94, R v Secretary of State for the Home Department, ex parte Gallagher [1995] ECR I–4253, Cases C–65 and 111/95 R v Secretary of State for the Home Department, ex parte Shingara and Radiom [1997] ECR I–3343, and Case C–357/98, R v Secretary of State for the Home Department, ex parte Yiadom [2000] ECR I–9265.

16 Joined Cases 115 and 116/81, Adoui and Cornuaille v Belgium [1982] ECR 1665, para 12; now codified as Art 32 of Directive 2004/38/EC, above n 5.

17 For an early application, Case 118/75, Watson v Belmann [1976] ECR 1185, para 21.

18 In Case C–348/96, Criminal Proceedings against Calfa [1999] ECR I–11, the Court described the penalty scheme as ‘the very negation’ of Community freedoms (para 18); cf the Opinion of AG La Pergola, para 7. See now, Art 33 of Directive 2004/38/EC, above n 5.

19 Case 41/74, van Duyn v Home Office [1974] ECR 1337, paras 22–23.

20 Case C–100/01, Ministre de l’Intérieur v Aitor Oteiza Olazabal [2002] ECR I–10981, paras 41–44; see also para 30 of the Opinion of AG Tizzano.

21 Art 27(2) provides a good example of this.

22 Art 27(3), 30 and 31 of Directive 2004/38/EC, above n 5; again, the amended provisions draw heavily on case law: see especially, Case 30/77, R v Bouchereau [1977] ECR 1999 and Case C–292/89, R v Immigration Appeal Tribunal ex parte Antonissen [1991] ECR I–745.

23 According to Art 16(1), a right of permanent residence attaches to Union citizens and their family members after lawful and continuous residence in the host state for five years, subject to various conditions laid down throughout the Directive.

24 Of course, the difference between ‘serious’ and ‘imperative’ remains open to interpretation.

25 Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, (2001) COM 257, 21–22.

26 Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs, Report on the proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, A5/2003/9, 55: noting that absolute protection from expulsion would ‘put an end to the historic sovereignty of the Member States in this area’.

27 See particularly, the adoption by the Council of its Common Position, No 6/2004, OJ 2004 C 54E/12, 32: ‘the Council is almost unanimously against the absolute protection against expulsion, although it has accepted an increased protection for Union citizens who have been residing for a long period in the host Member State’. Responding to this, the Commission remarked that it ‘accepted the common position which, although less ambitious than the Commission’s original proposal . . . strikes a balance between the positions of the Member States and marks a major step forward in terms of freedom of movement and residence in relation to the existing situation’: Commission, Communication to the European Parliament pursuant to the second subparagraph of Art 251(2) of the EC Treaty concerning the common position of the Council on the adoption of a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, SEC(2003)1293 final.

28 Art 28(1), Directive 2004/38/EC, above n 5. These criteria were introduced by the European Parliament to the preamble to the proposed directive (OJ 2004 C 43E/42) and found their way into the substantive provisions by the time of the second Commission proposal COM(2003)199 final. They are drawn from case law of the European Court of Human Rights, summarised by AG Geelhoed in Case C–109/01, Secretary of State for the Home Department v Akrich [2003] ECR I–9607, para 46 of the Opinion.

29 Joined Cases C–482/01 and C–493/01, Orfanopoulos and Oliveri v Land Baden-Württemberg [2004] ECR I–5257, paras 98–99, on fundamental rights; cf the more muted conclusion of AG Stix-Hackl, para 68 of the Opinion.

30 Several aspects of German deportation practice were recently challenged by the Commission (Case C–441/02, Commission v Germany, judgment of 27 Apr. 2006, not yet reported). The Commission had alleged systemic failures in respect of deportation for criminal convictions, deportation to secure preventative aims, and accommodating respect for family life, but the majority of the Commission’s complaints were rejected.

31 Case 21/74, Airola v Commission [1975] ECR 221.

32 Case C–369/90, Micheletti v Delegación del Gobierno en Cantabria [1992] ECR I–4239.

33 Ibid, para 10.

34 Case C–192/99, R v Secretary of State for the Home Department, ex parte Kaur [2001] ECR I–1237.

35 Case C–369/90, Micheletti v Delegación del Gobierno en Cantabria [1992] ECR I–4239, paras 11–12.

36 Case 136/78, Ministère Public v Auer [1979] ECR 437, para 28 and, more recently, the facts in Case C–138/02, Collins v Secretary of State for Work and Pensions [2004] ECR I–2703.

37 This is illustrated by the circumstances in Case C–148/02, Garcia Avello v Belgium [2003] ECR I–11613 (para 27 in particular) and Case C–200/02, Zhu and Chen v Secretary of State for the Home Department [2004] ECR I–9925.

38 Now incorporated as Part II of the Treaty establishing a Constitution for Europe, OJ 2004 C 310/1.

39 See particularly, Case C–260/89, Elliniki Radiophonia Tileorassi AE (ERT) v Dimotiki Etairia Pliroforissis [1991] ECR I–2925, paras 42–43; see also Case 5/88, Wachauf v Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 2609 and Case C–292/97, Karlsson and others [2000] ECR I–2737.

40 On this point, see Douglas-Scott, S Constitutional Law of the European Union (London, Longmans, 2002) 443-5Google Scholar; cfJacobs, FHuman Rights in the European Union: The Role of the Court of Justice’ (2001) 26 ELRev 331 Google Scholar.

41 Secretariat of the European Convention, Updated Explanations Relating to the Text of the Charter of Fundamental Rights, 18 July 2003, CONV 828/1/03 REV 1: listing inter alia the relevant passage in Case C–260/89, Elliniki Radiophonia Tileorassi AE (ERT) v Dimotiki Etairia Pliroforissis [1991] ECR I–2925 and adding Case C–309/96, Annibaldi v Sindaco del Comune di Guidonia and Presidente Regione Lazio [1997] ECR I–7493 (which expresses yet another variation of the formula at paras 18–24).

42 On the formalities tied to entry and residence rights, see Art 4, 5, 8–11 of Directive 2004/38/EC, above n 5; on the right to permanent residence, Art 19–20. See also Art 25–26. On the formalities for proof of financial resources, see section IV below.

43 Case C–378/97, Criminal Proceedings against Wijsenbeek [1999] ECR I-6207, para 43. The introduction of Title IV EC at Amsterdam and the communitarisation of the Schengen acquis (see below, n 100) have since brought us much closer to this ‘area’, but only in part: first, geographically, as three Member States (Denmark, Ireland and the UK) remain outside much of the project and, secondly, checks on identity are still permissible under Schengen for public policy and national security reasons (see Art 2(2) of the Convention implementing the Schengen Agreement), an exception that has seen checks at internal borders restored almost universally in this era of heightened global security.

44 Case C–378/97, Criminal Proceedings against Wijsenbeek [1999] ECR I–6207 para 44.

45 Case C–459/99, Mouvement contre le racisme, l’antisémitisme et la xénophobie ASBL (MRAX) v Belgian State [2002] ECR I–6591.

46 Ibid, Opinion of AG Stix-Hackl, paras 30–31. Directive 2003/86/EC on the right to family reunification, OJ 2003 L 251/12, applies only to third country nationals lawfully resident in the Member States; in the original proposal for that Directive (OJ 2000 C 116E/66), the Commission brought within its scope Union citizens who had not moved, but this was removed from the amended proposal (OJ 2001 C 62E/99). Their position remains governed by Joined Cases C-64 and 65/96, Land Nordrhein-Westfalen v Uecker; Jacquet v Land Nordrhein-Westfalen [1997] ECR I-3173.

47 Case C–459/99, Mouvement contre le racisme, l’antisémitisme et la xénophobie ASBL (MRAX) v Belgian State [2002] ECR I–6591, para 62.

48 Ibid, para 80.

49 Ibid, para 91.

50 Ibid, eg, para 61.

51 Art 15(2) of Directive 2004/38/EC, above n 5 (the history of which is traced by Kostakopoulou, DIdeas, Norms and European Citizenship: Explaining Institutional Change’ (2005) 68 MLR 233, 256 CrossRefGoogle Scholar) provides that ‘[e]xpiry of the identity card or passport on the basis of which the person concerned entered the host Member State and was issued with a registration certificate or residence card shall not constitute a ground for expulsion from the host Member State’. See also Art 5(4) of the Directive: ‘[w]here a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence’.

52 Case 48/75, Royer [1975] ECR 497, para 50; affirmed, eg, in Case C–85/96, Martínez Sala v Freistaat Bayern [1998] ECR I–2691, para 53.

53 On the direct effect of Art 18(1) see Case C–413/99, Baumbast and R v Secretary of State for the Home Department [2002] ECR I–7091, para 84.

54 Case 48/75, Royer [1975] ECR 497, para 38.

55 Case C–215/03, Oulane v Minister voor Vreemdelingenzaken en Integratie [2005] ECR I–1215, paras 18 and 40–41.

56 Ibid, para 25.

57 Ibid, para 38.

58 Davies, GThe High Water Point of Free Movement of Persons: Ending Benefit Tourism and Rescuing Welfare’ (2004) 26 JSWFL 211, 217 Google Scholar.

59 Reich, NCitizenship and Family on Trial: A Fairly Optimistic Overview of Recent Court Practice with Regard to Free Movement of Persons’ (2003) 40 CMLRev 615, 619 Google Scholar.

60 Directive 90/364/EEC of 28 June 1990 on the right of residence, OJ 1990 L 180/26; Directive 90/365/EEC of 28 June 1990 on the right of residence for employees and self-employed persons who have ceased their occupational activity, OJ 1990 L 180/28 and Directive 93/96/EEC of 29 October 1993 on the right of residence for students, OJ 1993 L 317/59 (collectively referred to as the ‘Residence Directives’). The rights of family members are in Art 1 of all three Directives (but cf the more restricted family definition in Directive 93/96/EEC for students).

61 Council Regulation 1612/68 of 15 October 1968 on freedom of movement for workers within the Community, OJ Spec Ed 1968 L 257/2, 475, is not repealed in full by Directive 2004/38/EC, above n 5, Art 10 and 11 have been amended but the original measure remains otherwise intact.

62 Case C–60/00, Carpenter v Secretary of State for the Home Department [2002] ECR I–6279.

63 Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services, OJ 1973 L 172/14; Case C–60/00, Carpenter v Secretary of State for the Home Department [2002] ECR I–6279, para 36; cf the Opinion of AG Stix-Hackl.

64 Ibid, para 38 onwards.

65 Case C–370/90 R v Immigration Appeal Tribunal and Singh, ex parte Secretary of State for the Home Department [1992] ECR I–4265, paras 19, 23; see also Case C–224/98, D’Hoop v Office national de l’emploi [2002] ECR I–6191, para 31.

66 The Carpenters’ alternative submission, that her presence in the UK enabled her to care for Mr Carpenter’s children and thus facilitated his provision of services more directly, did not need to be considered by the Court; it was briefly discussed by AG Stix-Hackl, paras 102–106 of the Opinion.

67 Subsequently, this was expressly ruled out in the context of receiving services: Case C–200/02, Zhu and Chen v Secretary of State for the Home Department [2004] ECR I–9925, paras 21–23.

68 Recalling Case C–459/99, Mouvement contre le racisme, l’antisémitisme et la xénophobie ASBL (MRAX) v Belgian State [2002] ECR I–6591, para 91. In Carpenter, the Court comes closest to the MRAX position: in paras 44–45: Case C–60/00, Carpenter v Secretary of State for the Home Department [2002] ECR I–6279.

69 Editorial, ‘Freedoms Unlimited?’ (2003) 40 CMLRev 537.

70 Joined Cases 389/87 and 390/87, Echternach and Moritz v Minister van Onderwijs en Wetenschapp [1989] ECR 723.

71 Commission Regulation 1251/70 of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State, OJ Sped Ed 1970 L 142/24, 402.

72 Primarily, on the basis of the co-operative character of the Art 234 EC preliminary reference procedure, but mindful also that while most of the issues were now settled under English law, ‘the question of the rights conferred under Community law . . . has not been resolved definitively’: Case C–413/99, Baumbast and R v Secretary of State for the Home Department [2002] ECR I–7091, para 36; see paras 31–38.

73 The Court rejected the submission of the German government that rights to reside in the host state to ‘continue’ education existed only where this could not be done in the state of origin: Case C–413/99, Baumbast and R v Secretary of State for the Home Department [2002] ECR I–7091, paras 53–55.

74 See van der Mei, AResidence and the Evolving Notion of European Union Citizenship’ (2003) 5 EJML 419, 426427 Google Scholar.

75 In Case C–413/99, Baumbast and R v Secretary of State for the Home Department [2002] ECR I–7091, AG Geelhoed used the term ‘parent carer’: para 91 onwards of the Opinion).

76 Ibid, para 94 of the Opinion.

77 Art 13 of Directive 2004/38/EC, above n 5.

78 Art 16–18 of Directive 2004/38/EC, above n 5, on the right to permanent residence in a host state.

79 Catherine was born in Belfast to Chinese parents. She was not eligible for either Chinese or British nationality but, having been born on the island of Ireland, was eligible at that time for Irish nationality under the Irish Nationality and Citizenship Act 1956 (since amended as a direct result of a constitutional referendum rooted in publicity on this case: see Tryfonidou, AFurther Cracks in the “Great Wall” of the European Union?’ (2005) 11 EPL 527, 531 Google Scholar).

80 On this point, distinguishing ‘legal personality’ and ‘legal capacity’, see the Opinion of AG Tizzano, Case C–200/02, Zhu and Chen v Secretary of State for the Home Department [2004] ECR I–9925, paras 41–46 and 51–54.

81 The Court thus established that the economic resources which validate a right of residence need not be possessed by the EU citizen him or herself: Case C–200/02, Zhu and Chen v Secretary of State for the Home Department [2004] ECR I–9925, paras 28–33); this was confirmed to extend beyond family members in Case C–408/03, Commission v Belgium, judgment of 23 Mar 2006, not yet reported—seen 118 below and accompanying text. Mrs Chen could not acquire a right of residence as a family member under Directive 90/364/EEC, above n 60, since the criterion of ‘dependency’ for relatives in the ascending line worked precisely in reverse for her.

82 Case C–200/02, Zhu and Chen v Secretary of State for the Home Department [2004] ECR I–9925, para 41.

83 Ibid, para 45.

84 Again, under Directive 2004/38/EC, above n 5, dependency is the stumbling block to the application of family member rights directly here. AG Tizzano sketched a more subtle ‘primary carer’ profile (Case C–200/02, Zhu and Chen v Secretary of State for the Home Department [2004] ECR I–9925, paras 94–95 of the Opinion); his reasoning is perhaps more amenable to rights for other family members. Ironically, the more promising route is for Mrs Chen to apply under the Family Reunification Directive.

85 Case C–257/00, Givane v Secretary of State for the Home Department [2003] ECR I–345.

86 Ibid, paras 45–46.

87 Ibid, para 50, in direct contradiction to AG Alber (paras 64–66 of his Opinion).

88 This element of the case was itself controversial, see subsection D below.

89 Case C–109/01, Secretary of State for the Home Department v Akrich [2003] ECR I–9607, para 50.

90 Ibid, para 53; the Opinion of AG Tesauro in Case C–370/90, R v Immigration Appeal Tribunal and Singh, ex parte Secretary of State for the Home Department [1992] ECR I–4265, para 5, presaged this.

91 Case C–459/99, Mouvement contre le racisme, l’antisémitisme et la xénophobie ASBL (MRAX) v Belgian State [2002] ECR I–6591, para 80.

92 Spaventa, ECase C–109/01, Secretary of State for the Home Department v H Akrich ’ (2005) 42 CMLRev 225, 232234 Google Scholar.

93 Case C–109/01 Secretary of State for the Home Department v Akrich [2003] ECR I–9607, para 54, which seems encouraging on this point, yet it was not developed further. AG Geelhoed alludes to the issue (paras 123–125) but concludes that ‘the entry by Mr Akrich into Ireland without prior individual assessment is not at issue in the present case’ (para 124).

94 White, RFree Movement, Equal Treatment, and Citizenship of the Union’ (2005) 54 ICLQ 885, 891 CrossRefGoogle Scholar.

95 CfSchiltz, CAkrich: A Clear Delimitation Without Limits’ (2005) 12 MJ 231, 237 Google Scholar.

96 Case C–109/01, Secretary of State for the Home Department v Akrich [2003] ECR I–9607, para 58.

97 Acierno, SThe Carpenter Judgment: Fundamental Rights and the Limits of the Community’ (2003) 28 ELRev 398, 402 Google Scholar.

98 Case C–503/03, Commission v Spain, judgment of 31 Jan 2006, not yet reported, para 47.

99 Schiltz, C, above n 95, at 241.

100 The incorporation of the Schengen acquis into both Community and Union law was achieved via Council Decision of 20 May 1999 determining, in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which constitute the Schengen acquis, OJ 1999 L 176/17; the Schengen acquis itself is at OJ 2000 L 239/1.

101 Case C–503/03, Commission v Spain, judgment of 31 Jan 2006, not yet reported, para 35.

102 Ibid, paras 50, 52 and 55.

103 Case C–370/90, R v Immigration Appeal Tribunal and Singh, ex parte Secretary of State for the Home Department [1992] ECR I–4265, para 24; on fraudulent marriages specifically, see the Opinion of AG Tesauro, para 14.

104 Case C–212/97, Centros v Erhvervs- og Selskabsstyrelsen [1999] ECR I–1459.

105 Case C–109/01, Secretary of State for the Home Department v Akrich [2003] ECR I–9607, para 36.

106 Ibid, paras 56 and 57 respectively. In a comprehensive analysis, AG Geelhoed traces mis use of Community law across various market freedoms: paras 169–185 of his Opinion.

107 Case C–209/03, Bidar v London Borough of Ealing; Secretary of State for Education and Skills [2005] ECR I–2119, para 66 of the Opinion.

108 Case C–200/02, Zhu and Chen v Secretary of State for the Home Department [2004] ECR I–9925, paras 34–41.

109 Ibid, Opinion of AG Tizzano, para 124.

110 Case C–85/96, Martínez Sala v Freistaat Bayern [1998] ECR I–2691, Opinion of AG La Pergola, para 15.

111 Case C–413/99, Baumbast and R v Secretary of State for the Home Department [2002] ECR I–7091, paras 86 and 87. The continued impact of the Residence Directives’ conditions was not inevitable, however: see O’Leary, S The Evolving Concept of Community Citizenship: From the Free Movement of Persons to Union Citizenship (The Hague, Kluwer, 1996) 304 Google Scholar; AG La Pergola in Case C–85/96, Martínez Sala v Freistaat Bayern [1998] ECR I–2691, para 18: ‘continues to regulate, if at all’ (emphasis added); the submission of the Portuguese Government in Case C–184/99, Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain- la-Neuve [2001] ECR I–6193, para 23 of the judgment, para 52 of the Opinion of AG Alber.

112 Case C–456/02, Trojani v Centre public d’aide sociale de Bruxelles (CPAS) [2004] ECR I–7573, Opinion of AG Geelhoed, para 13.

113 In a related vein, Member State requests for temporal limitation of judgments on grounds of financial consequences are not met with much sympathy either: Case C–184/99, Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I–6193, paras 50–55 and Case C–209/03, Bidar v London Borough of Ealing; Secretary of State for Education and Skills [2005] ECR I–2119, paras 64–71; note the marginally more generous approach of AG Geelhoed in the latter case: para 72 of the Opinion.

114 For example, on healthcare, Case C–158/96, Kohll v Union des Caisses de Maladie [1998] ECR I–1931, para 41; on education, Case C–147/03, Commission v Austria [2005] ECR I–5969. In the latter case, AG Jacobs did look more at the substance of the arguments than the Court had done, but he stressed that economic arguments are very much the exception to the rules on justifications and urged that the healthcare case law be confined as a ‘departure from the orthodox’: para 31 onwards of the Opinion.

115 Case C–424/98, Commission v Italy [2000] ECR I–4001.

116 Italian law also required family members of the beneficiaries of Directive 90/364/EEC, above n 60, to have resources three times higher than the minimum accepted for family members of retired persons (under Directive 90/365/EEC, above n 60); the Commission’s documentation confused three times/one third without any explanation of the different submissions but, in any event, the Court was willing to accept in principle that ‘the fact that a Member State has a more favourable regime for family members of persons who have carried on an occupational activity than for those of beneficiaries of Directive 90/364 does not of itself constitute proof that the higher amount required of the latter exceeds the latitude allowed to Member States’: Case C–424/98, Commission v Italy [2000] ECR I–4001, para 26; cf the Opinion of AG Ruiz-Jarabo Colomer, paras 12–17.

117 Case C–157/03, Commission v Spain [2005] ECR I–2911, paras 29–30: with specific application to Directive 90/365/EEC, above n 60; the Court drew from Case C–459/99, Mouvement contre le racisme, l’antisémitisme et la xénophobie ASBL (MRAX) v Belgian State [2002] ECR I–6591 and respect for family life.

118 Case C–408/03, Commission v Belgium, judgment of 23 Mar 2006, not yet reported.

119 Ibid, Opinion of AG Ruiz-Jarabo Colomer, para 36.

120 Case C–85/96, Martínez Sala v Freistaat Bayern [1998] ECR I–2691, Opinion of AG La Pergola, para 19 (emphasis added); remember also the anomaly that part-time work has long entitled the mover to claim supplementary social benefits on a non-discriminatory basis in the host state: Case 53/81, Levin v Staatssecretaris van Justitie [1982] ECR 1035 and Case 139/85, Kempf v Staatssecretaris van Justitie [1986] ECR I-1741; see Golynker, OJobseekers’ Rights in the European Union: Challenges of Changing the Paradigm of Social Solidarity’ (2005) 30 ELRev 111, 115 Google Scholar.

121 Case C–456/02, Trojani v Centre public d’aide sociale de Bruxelles (CPAS) [2004] ECR I–7573 Opinion of AG Geelhoed, para 32.

122 Case C–184/99, Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I–6193, para 44.

123 Case C–209/03, Bidar v London Borough of Ealing; Secretary of State for Education and Skills [2005] ECR I–2119, Opinion of AG Geelhoed, para 32.

124 Case C–184/99, Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I–6193, para 42 (emphasis added).

125 Ibid, para 43. Much of this is now codified in Directive 2004/38/EC, above n 5, as out lined below. Interestingly, AG Alber had hit on exactly the same issues but was less expansive in working out Mr Grzelczyk’s rights from them (paras 120–125 of the Opinion).

126 Case C–209/03, Bidar v London Borough of Ealing; Secretary of State for Education and Skills [2005] ECR I–2119, Opinion of AG Geelhoed, para 32 (emphasis added).

127 Case C–184/99, Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I–6193, paras 40–41 and 45, where the Court contrasts the more lenient terms of Directive 93/96/EEC with the requirements of Directives 90/364/EEC and 90/365/EEC (above n 60).

128 The decision in Case 197/86, Brown v Secretary of State for Scotland [1988] ECR 3205 had already fallen in Case C–184/99, Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I–6193; it was joined here by Case 39/86, Lair v Universität Hannover [1988] ECR 3161: Case C–209/03, Bidar v London Borough of Ealing; Secretary of State for Education and Skills [2005] ECR I–2119, paras 38–42.

129 Ibid, paras 57 and 63 respectively.

130 This was particularly influential on AG Geelhoed, as it denotes a younger, more dependent claimant than ‘EU citizens who have moved to another Member State as adults making their own choices’: Ibid, para 60 of the Opinion of AG Geelhoed.

131 Ibid, paras 58–60; but the additional requirement that the claimant be ‘settled’ according to national law was a different matter, given that immigration rules expressly discounted resi dence in the UK for the purpose of study: paras 61–62. This condition has now been removed and three years’ prior residence codified instead, see The Education (Student Support) (Amendment) Regulations 2005, SI 2005/1341. But one can almost imagine the future claimant who has resided in the UK for two and a half years yet has difficult personal circumstances that might create an argument of disproportionate refusal of his/her maintenance grant (the Court rarely gives blanket approval to crystallised time limits without a discretionary review clause—in Bidar itself, para 66 of the Opinion of AG Geelhoed—unless, perhaps, they stem from Community legislation: see Case C–257/00, Givane v Secretary of State for the Home Department [2003] ECR I–345).

132 Case C–413/99, Baumbast and R v Secretary of State for the Home Department [2002] ECR I–7091, para 89; the Court suggested that emergency treatment might be otherwise covered and urged this to be further checked, referring the national authorities to Art 19(1)(a) of Regulation 1408/71 on the application of social security schemes to employed persons and their families moving within the Community, OJ 1972 L 74/1, as amended and updated.

133 Case C–413/99, Baumbast and R v Secretary of State for the Home Department [2002] ECR I–7091, paras 91 and 92.

134 See European Parliament legislative resolution on the proposal for a European Parliament and Council directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, OJ 2004 C 43 E/42.

135 See the discussion by AG Cosmas in Case C–378/97, Criminal Proceedings against Wijsenbeek [1999] ECR I–6207, paras 89–96; see also Case C–209/03, Bidar v London Borough of Ealing; Secretary of State for Education and Skills [2005] ECR I–2119, Opinion of AG Geelhoed, para 32, where he points to the recognition of this principle in the Charter of Fundamental Rights, incorporated as Art II–112 of the Constitutional Treaty.

136 In Case C–209/03, Bidar v London Borough of Ealing; Secretary of State for Education and Skills [2005] ECR I–2119, eg, one student loan of the type sought amounted to £3,155. Extrapolating this to all (non-settled) EU nationals studying in England in Wales for one year, the cost to the state was estimated at £66million (para 25). It is not known from this, of course, what proportion of those students would meet the ‘genuine link’ test developed later in the judgment.

137 Confusingly, in Art 14 of the Directive, the unconditional residence right for up to three months (established in Art 6) is made subject to the condition that the holder does not become an ‘unreasonable burden on the social assistance system of the host Member State’: Directive 2004/38/EC, above n 5.

138 Case C–456/02, Trojani v Centre public d’aide sociale de Bruxelles (CPAS) [2004] ECR I–7573, Opinion of AG Geelhoed, para 69.

139 There has been much recent work done on the locus of these boundaries: see, eg, Dougan, M and Spaventa, E (eds) Social Welfare and EU Law (London, Hart, Publishing 2005), especially Barnard, CEU Citizenship and the Principle of Solidarity’, 157 Google Scholar; Dougan, M and Spaventa, E ‘“Wish you weren’t here...” New Models of Social Solidarity in the European Union’, 181.

140 See the annotation of Case C–184/99, Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I–6193 by Iliopoulou, A and Toner, HCase C–184/99, Rudy Grzelczyk v . Centre Public d’Aide Sociale d’Ottignies-Louvain-la-Neuve, Judgment of the Full Court of 20 September 2001, [2001] ECR I–6193’ (2002) 39 CMLRev 609, 620 Google Scholar, on ‘welfare sovereignty’ and ‘immigration sovereignty’.

141 This is well illustrated by the residence rights of job-seekers, at least as developed originally by the Court. According to Case C–292/89, R v Immigration Appeal Tribunal ex parte Antonissen [1991] ECR I–745, the right to reside in a host state to look for work there (a right which stems from Art 39 EC) is temporary, returning immigration decisions on expiry (in Antonissen, after six months) to the host state ‘unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged’ (para 22). The rights of job-seekers have been materially affected by the adoption of Directive 2004/38/EC, above n 5, however, as revisited in subsection C below.

142 See further on the absence of crossover, Case C–356/98 (and Case C–466/00), Kaba v Secretary of State for the Home Department [2000] ECR I–2623 and [2003] ECR I–2219 respectively.

143 Or, more accurately, a national right framed by Germany’s international obligations which prevented her deportation: Case C–85/96, Martínez Sala v Freistaat Bayern [1998] ECR I–2691, para 14.

144 Ibid, para 47.

145 As suggested by the Commission: Ibid, paras 59–60 of the judgment, para 15 of the Opinion of AG La Pergola.

146 For a critical view of this application of Art 12 EC, see the annotation of the case by Tomuschat, CCase C–85/96, María Martínez Sala v. Freistaat Bayern, Judgment of 12 May 1998, Full Court. [1998] ECR I–2691’ (2000) 37 CMLRev 449, 453 Google Scholar. This aspect of Trojani is criticised by Hailbronner, KUnion Citizenship and Access to Social Benefits’ (2005) 42 CMLRev 1245, 1251 Google Scholar.

147 A personal/material divergence had already been used for receipt of services as a tourist, developing a general buffer against nationality discrimination from this: Case 186/87, Cowan v Trésor Public [1989] ECR 195, significantly extended by Case C–274/96, Criminal Proceedings against Bickel and Franz [1998] ECR I–7637 and Case C–60/00, Carpenter v Secretary of State for the Home Department [2002] ECR I–6279.

148 The circumstances of Case C–138/02, Collins v Secretary of State for Work and Pensions [2004] ECR I–2703 are a variant on this general theme; but in that case, the Court assessed the conditions under which Member States may restrict access to social benefits in situations of indirect discrimination, that is, when residence rather than nationality criteria are at issue, and deportation is not.

149 Although interpretation of citizenship was not material to the outcome of the case, AG Geelhoed in Ninni-Orasche, a case in between Grzelczyk and Bidar, suggested that an EU cit izen should have been lawfully resident in the host state ‘for a considerable time’ and at least have commenced university studies there before eligibility for study grants could materialise: Case C–413/01, Ninni-Orasche v Bundesminister für Wissenschaft, Verkehr und Kunst [2003] ECR I–13187, para 99 of the Opinion.

150 Case C–209/03, Bidar v London Borough of Ealing; Secretary of State for Education and Skills [2005] ECR I–2119, para 37 (citing Case C–456/02, Trojani v Centre public d’aide sociale de Bruxelles (CPAS) [2004] ECR I–7573, para 43).

151 Ibid, paras 35–36. In para 36, the Court distinguished his complete lack of resources from the merely in complete sickness cover held by the Baumbast family.

152 Ibid, para 12. It appears that the information before the referring court covered Apr to Sept 2002 only, with the applicant ‘himself [having] told the Court of Justice that he now has a five-year temporary residence permit’: para 3 of the Opinion.

153 Ibid, para 45 (citing Case C–184/99, Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I–6193, paras 42 and 43).

154 Case C–413/99, Baumbast and R v Secretary of State for the Home Department [2002] ECR I–7091, Opinion of AG Geelhoed, para 18.

155 Case C–456/02, Trojani v Centre public d’aide sociale de Bruxelles (CPAS) [2004] ECR I–7573, Opinion of AG Geelhoed, para 18.

156 We can regret the withdrawal of references that promised more direct questions, such as Case C–95/03, Piliego v Centre Public d’Aide Sociale de Bruxelles, OJ 2003 C 101/27; attached to a Trojani type question about lawful (national) residence and entitlement to social benefits was an unequivocal call for further guidance: ‘[w]hat if the host State decides to terminate the residence permit of such European citizen because he does not have adequate resources to avoid becoming a burden on its social assistance system?’

157 Case C–209/03, Bidar v London Borough of Ealing; Secretary of State for Education and Skills [2005] ECR I–2119, para 47.

158 Case C–408/03, Commission v Belgium, judgment of 23 Mar 2006, not yet reported, para 68; AG Ruiz-Jarabo Colomer was especially critical of the ‘manifestly disproportionate’ sanc tion of deportation: paras 46–49 of his Opinion.

159 For particularly strident criticism of this reluctance, see Davies, G“Any place I hang my hat?” or: Residence is the New Nationality’ (2005) 11 ELJ 43, 47 Google Scholar.

160 See van der Mei, A, above n 74, at 432, who points out that ‘[t]he mere withdrawal of or refusal to renew a permit cannot affect the Treaty-based right to reside. Member States will have to initiate formal proceedings to effect deportation.’

161 White, R, above n 94, at 895.

162 Case C–184/99, Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I–6193, para 39.

163 Case C–209/03, Bidar v London Borough of Ealing; Secretary of State for Education and Skills [2005] ECR I–2119, para 43.

164 Cf the submission on this point of the Commission itself, outlined in para 37 of the Opinion of AG Geelhoed; see also, the reasoning of the AG giving retrospective benediction to Grzelczyk, para 42: ‘in view of the fact that [student loans] now have been explicitly excluded by [Art 24(2) of] Directive 2004/38 … it could be inferred that eligibility for such loans is not excluded by Article 3 of Directive 93/96’. He is less persuasive later, however, when dealing with Directive 2004/38 in the context of students-as-citizens: see an unconvincing reconciliation of the ultimate result in Bidar with the more restrictive language of the Directive at para 64.

165 Dougan, MFree Movement: The Workseeker as Citizen’ (2001) 41 CYELS 93, 129 Google Scholar and ‘The Constitutional Dimension to the Case Law on Union Citizenship’ (2006) 31 ELRev, forthcoming.

166 Hailbronner, K, above n 146, at 1262.

167 For example, the annotation of Case C–209/03, Bidar v London Borough of Ealing; Secretary of State for Education and Skills [2005] ECR I–2119 by Barnard, CCase C–209/03, R (on the application of Danny Bidar) v London Borough of Ealing, Secretary of State for Education and Skills ’ (2005) 42 CMLRev 1465, 1481–2Google Scholar, and Dougan, M (2006) above n 165.

168 Hailbronner, K, above n 146, at 1263.

169 Case C–376/98, Germany v Parliament and Council [2000] ECR I–2247.

170 Reich, N, above n 59, at 405.

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