In Grzelczyk, the European Court of Justice (ECJ) stated that: “Union citizenship is destined to be the fundamental status of nationals of the Member States.” Although the ECJ has refrained from explaining what this ‘fundamental’ status entails, it has been argued that if EU citizenship is really destined to be the fundamental status of Member State nationals, all Member State nationals, including children, should feel the effect of that status, irrespective of the exercise of free movement rights.
Should EU citizenship accommodate the fundamental rights of underage EU citizens?
At the policy level, the position of the child is anchored in the EU Agenda on the Rights of the Child. At legal level however, the framework lacks teeth to firmly secure that position. The Treaty makes little reference to children and the EU legislator has only limited competence to adopt measures. The Charter recognizes the best interest of the child in Article 24, but its scope of application is limited. Up until now, international influences have been limited due to the reluctance of the ECJ to rely on non-EU sources.
Because the rights have been largely confined to citizens exercising their free movement rights, the relevance for children is not so evident. A distinction is made between rights derived via Article 21 TFEU (‘Route A’) and Article 20 TFEU (‘Route B’). Route A refers to minor EU citizen children from moving EU citizens, who have been awarded far-reaching rights to facilitate their integration in the host State. Route B (via Article 20 TFEU) refers to cases in which a parent/carer derives rights from his minor EU citizen child directly, who has not exercised his free movement rights. In Zambrano and subsequent case law it was established that third country national family members of minor EU citizens are entitled to a derived right of residence, when refusal of such right would mean that both the minor EU citizen and their family member would have to leave the territory of the EU.
This assessment requires a relationship of a highly dependent nature. Although the interpretation of the notion of ‘dependency’ is crucial to enable children to enjoy their family life in the EU, clear guidelines as to what exactly constitutes ‘dependency’ do not exist. The strict interpretation of the Zambrano criterion by the ECJ has led to number of cases in which the minor EU citizen was separated from his third country national parent, possibly infringing his right to family life.
Rights derived via Route A are very much dependent on a familial link. Rights derived via Route B are only awarded after passing very strict test, in which the presence of just one parent has been found sufficient. It is hard to imagine how this could ever be in ‘the best interests of the child’ and its ability to enjoy family life. In the Chavez case the ECJ has the opportunity to offer a higher level of protection to minor EU citizens, by providing clarification on the interpretation of the ‘dependency’ criterion and by establishing a link with the Charter. Although the ECJ only has limited means at its deposal, an approach which takes the best interests of the minor EU citizen as a starting point would in my opinion be most preferable. A real amelioration of the position of minor EU citizens however, would require more dramatic action by the European legislator.
Therefore it can be concluded that although from a children’s rights perspective it would be welcomed if EU citizenship would accommodate the fundamental rights of underage EU citizens, it currently does not.
Anne van Heijst
Blog based on her Master thesis in EU Law.
Download the thesis: 160701 Thesis Anne van Heijst