EU citizenship: Still a Fundamental Status?
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Finally, the mantra of EU citizenship’s fundamental importance for
nationals of the member states has also been invoked in order to justify
restrictions on national rules on the assignation or recognition of names,19 in
the context of civil status laws,20 and certain national rules restricting the
right to vote in European Parliament elections.21 These cases buttress the
argument that EU citizenship is emerging as an autonomous constitutional
status for nationals of the member states.
In a small number of instances, the CJEU has defended a territorial principle in relation to the enjoyment of EU citizenship, finding in a series of
cases from Ruiz Zambrano22 onwards that where a minor EU citizen would
be forced to leave the territory of the Union if one or more of his or her third
country national parents with direct caring responsibilities were to be
deported from a member state (thus depriving the EU citizen of the enjoyment of his or her citizenship rights), then the parent(s) will enjoy derived
rights of residence stemming from Articles 20 and 21 TFEU. Here, the constitutional effects of EU law are largely felt in the sphere of national immigration law, restricting decision-making in respect of third country nationals
by reference to the status of the EU citizen dependent child.23 The possibility
of protection for third country nationals stems in this case from the effects
of citizenship laws conferring nationality at birth. The principle can apply
even if only one of the parents is a third country national. The key question
is whether the EU citizen child has a primary relationship of care with the
parent at threat of losing their residence.
Acquisition of a new EU nationality after birth (e.g. through naturalisation) has also become an issue, provided that the person naturalising still
retains her or his original (EU) nationality. The CJEU concluded in the 2017
Lounes case24 that an EU citizen who has made use of her free movement
rights and naturalises on the basis of residence and integration within the
19
20
21
22
23
24
Case C-148/02 Garcia Avello ECLI:EU:C:2003:539.
See Pataut, E. (2016), ‘A Family Status for the European Citizen?’, in Azoulai,
L. et al. (eds.), Constructing the Person in EU Law Rights, Roles, Identities,
311–322. Oxford: Hart Publishing.
Case C-650/13 Delvigne ECLI:EU:C:2015:648.
Case C-34/09 ECLI:EU:C:2011:124.
For a recent analysis, see Peers, S. (2017), ‘Think of the children: the ECJ
clarifies the status of non-EU parents of EU citizen children living in their own
Member State’, EU Law Analysis Blog, 10 May 2017, available at http://
eulawanalysis.blogspot.com/2017/05/think-of-children-ecj-clarifies-status.
html.
Case C-165/16 ECLI:EU:C:2017:862.
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