Araceli Turmo , 22 mars 2011

The European Court of Justice’s recent ruling in the Zambrano case (C-34/09) could be considered an important step towards solving the reverse discrimination problem in the field of rights derived from European citizenship. In the main proceedings, a Columbian national challenged the refusal by the Belgian Office national de l’emploi to grant him unemployment benefits, on the ground that the working period (2001-2006) on which he relied had been completed in violation of Belgian legislation. Indeed, Mr Ruiz Zambrano’s applications for asylum in Belgium had been refused, and although the political turmoil in Columbia had led to a non-refoulement decision, he and his wife were not permitted to pursue any employment in that country. However, two of their children were born in that country, and have acquired Belgian nationality: Mr Ruiz Zambrano sought to rely on a derived right of residence as the ascendant of minor children who are nationals of a Member State, according to the Zhu and Chen case.

The applicant’s children had never lived outside Belgium, thus they had never exercised their freedom of movement. If this meant that article 20 of the FEU Treaty was not applicable to them, their parents would not be able to remain in Belgium and the children, still depending on them, would have to leave too. This would have created a problematic discrepancy between the status of “static” citizens and those who can find some external element, albeit artificial, in their personal history, as was the case in Zhu and Chen.

In a very short ruling, the Court stated, without even mentioning the fundamental rights issues that had been brought up by the referring judges, that the refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of this status. This seems to lead to a new interpretation of the enjoyment of such rights, which had previously always been linked to some cross-border element in the person’s situation. However, the Court gives no further indications on how this should be interpreted, other than an insistence on the importance of European citizenship, intended to be the “fundamental status of nationals of the Member States”.

This ruling represents an important step towards recognizing a real, coherent status for citizens of the Union, rather than restricting the applicability of EU law to persons who exercise their freedoms of movement. It is also a reminder of the contradictions within our immigration policies, which may also have played a part in the Court’s decision. This Columbian national had worked in Belgium for six years, during which his pay had been subject to social security deductions, and two of his children were born in that country and had always lived there. The requirement of movement within the European Union would have resulted in these children not being able to exercise their rights as citizens of the Union, which seemed unfair. However, another likely outcome could be that countries such as Belgium will put an end to the automatic acquisition of nationality by jus soli.

By contrast, Advocate General Sharpston gave a detailed reasoning that led to the same conclusion as regards citizenship. She insisted upon the importance of bearing the political consequences of the creation of European citizenship, and, interestingly, stated that the distinction between persons who have interests in another Member State and others was made problematic precisely because of the success of the internal market. She stated that citizenship should be distinguished from economic freedoms, and that, contrary to the rules that only apply to workers, article 21 of the FEU Treaty contains a separate right to reside that is independent of the right to free movement.

Reproduction autorisée avec l’indication: Turmo Araceli, "The Zambrano case: a new milestone in the construction of European citizenship", www.ceje.ch, actualité du 22/3/2011