The First Reading of the Judgments of the Court of Justice of the EU in Zambrano (C-34/09, 8 March 2011) and Dereci and Others (C-256/11, 15. November 2011) and their Potential Implications for Administrative Case-Law in Slovenia

Boštjan Zalar

Following the preparations for this meeting, just few days ago, I have informed my colleagues at the court about the judgments in Zambrano and Dereci cases. This means that the Administrative Court will only start to use Zambrano and Dereci judgments in its future case-law. Nevertheless, below is my first reading and understanding of Zambrano and Dereci judgments in the context of their potential implications fro administrative jurisprudence (in Slovenia).

At first, I was surprised that the CJEU in Zambrano case does not refer to the concept of best interest of a child at all, nor does the CJEU refer to the Charter of Fundamental Rights of the EU (hereinafter : the Charter), [1]despite the fact that the referring Belgian court did ask the CJEU to give an interpretation in relation to the Charter. But later on, I realised it is perhaps not necessary in this case to refer to the best interest of a child, since the two children of Mr. Zambrano are the EU citizens. They have a status of EU citizens, which is in the words of the CJEU the “fundamental” status and according to the CJEU the contested national measures in Zambrano case would have effect of depriving those two children of the genuine enjoyment of the substance of the rights conferred by virtue of EU citizenship. [2] The CJEU does not mention which specific right in relation to the status of EU citizenship is at stake in this case. But, it seems obvious that what the CJEU is having in mind is the right to reside freely within the territory of the Member States, which is a right from the second part of the Art. 20(2)(a) of the TFEU, because in paragraph 44. of the Zambrano judgment the CJEU states that those children would have to leave the territory of the Union in order to accompany their parents to whom they are dependent. [3] So, the judgment seems to me quite logical and properly legally grounded. [4] The important input of that judgment is also the standard of proof. The establishment of the “risk” of not having sufficient resources, which would also result in the children having to leave the EU is enough to adjudicate the case. The CJEU did not get into a thorough examination of that risk, based on the relevant facts of the case. Anyway, I think this is a competence of a national court. But, the CJEU established that this risk factors in the given case exist and, therefore, the CJEU actually adjudicated the case in merits : the Mr. Zambrano should be granted a permission to stay and work in Belgium. However, there is one problem in the argumentation and in the wording of the CJEU in Zambrano judgment. The question is : what would be a legal situation if the third country national would represent a serious treat to the community due to his/her criminal record. This is actually a potential substance of the preliminary question under point 3 of the Tribunal du travail de Bruxelles, which was not answered by the CJEU. The CJEU in Zambrano does not mention the eventual limitations to the right to reside nor the principle of proportionality. The CJEU uses the term “fundamental” status of EU citizenship. Does this mean that the Member States cannot balance a national security, public safety policy or economic well-being of the country on one side with the citizenship right of a child to reside freely in the EU on the other side ? Judging from the Art. 21 of the TFEU, the EU citizenship is not a fundamental status and may be subject to certain limitations based on principle of proportionality, because Art. 21 of the TFEU says every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. Based on this one could easily conclude that it is possible to limit the fundamental status of EU citizenship in terms of a right to reside freely in the territory of the member states ? But how come that the CJEU did not refer to the Art. 21 of the TFEU, which regulates limits to the EU citizenship status. The judgment in Dereci and Others case only to some limited extent provide further clarification of this matter.

There are important factual and legal differences between Dereci and Zambrano cases. While in Zambrano case a right to residence and permission to work of the third country national was at stake, in Dereci and Others case a right to family life was at stake (paras. 22 and 31). In Zambrano no public policy was at issue, while against four applicants in Dereci case the expulsion orders and removal orders were issued - due to their procedural defects in the applications ; due to failure to comply with the obligation to remain abroad whilst awaiting the decision ; because regular entry followed by an extended stay beyond that which was originally permitted and in Dereci a breach of public policy was at stake too (para. 28). Unlike in Zambrano case in Dereci case there is no risk that third country nationals concerned may be deprived of their means of subsistence. And the CJEU in Dereci implicitly stands on the position that EU citizens concerned are not forced to leave the territory of the EU, simply because it might appear desirable for economic reasons or in order to keep the family together in the territory of the EU (para. 68). Therefore, in such cases the application of the third country national for residence permit may be rejected. That is the major difference between Zambrano and Dereci : in Zambrano the children would be completely deprived of their right to reside freely in the territory of the EU, that is why, perhaps, the CJEU did not mention principle of proportionality and Article 21. of the TFEU at all ; while based on Dereci judgment one could conclude that a negative decisions on applications for residence permit would only interfere with the right to exercise family life in the territory of the EU. By making connection between Art. 20 of the TFEU and the Art. 8 of the ECHR and the Art. 7 of the Charter, the CJEU in Dereci gives a clear (although only implicit) guidance that principle of proportionality needs to be applied. In Dereci too, the CJEU did not make any reference to the Art. 21 of the TFEU. On the point of Art. 7 of the Charter and Art. 8 of the ECHR on family life the CJEU stopped its interpretation when it stated that this “is a matter for the referring court to verify” (paras.70-74) ; despite this self-constraint, the CJEU shortly refers to the issue of unlawfulness of Mr. Dereci’s residence in Austria at the end of the judgment , but it leaves completely to the national court to apply Art. 8 of the ECHR and principle of proportionality.

To conclude : Even after the Dereci judgment there is still one very important question open for interpretation. What about if we have a case of dependent child like in Zambrano and the father is convicted criminal and dangerous for the society. Are limitations to that right and principle of proportionality applicable or not ; is the EU citizenship in terms of a right to reside freely in the EU subject to limitation under Article 21 of the TFEU or is it an absolute right ? Even more, what about if the case involves an EU citizen who is being charged with serious criminal offence or terrorism and we have a request for extradition to a non-European State in order to conduct a trial ? Does the fundamental status of EU citizenship prevents such extradition, [5] especially if a EU citizen charged with serious criminal offence have small dependent children who are EU citizens as well ? I am not going to develop this interpretation any further since, there is a pending case of similar circumstances before the Constitutional Court of Austria at the moment. But, I would recommend for further reading the judgment of the CJEU in case of McCarthy from May 2011, where the CJEU stated very clearly that “international law, reaffirmed in Art. 3 of Protocol No. 4 to the ECHR precludes a Member State from refusing its own nationals the right to remain there for any reason” /.../ ; this principle also precludes that Member State to make such right “conditional” (para. 29) and that the EU citizen has “unconditional right to residence /.../ in the Member State of which he is a national” (para. 34 ; see also para. 50). Based on the McCarthy judgment, which was delivered after Zambrano and before Dereci judgment, the right to reside in the territory of the Member States of which a person is citizen is “unconditional” and it, therefore, precludes the state to refuse to its citizen the right to remain there for any reason.

By ignoring limitations to EU citizenship in Art. 21(1) of the TFEU, the CJEU perhaps tries to establish a coherence between EU law and the Art. 3 of the Protocol no. 4 to the ECHR, where the right not to be expelled from the the territory of the State of which a person is a national is an absolute and fundamental human right with no possibilities for limitations. [6] In the older case of Commission v. the Netherlands from 7 June 2007 (C-50/06) the CJEU adopted a different view by saying that the right of the EU citizen to move and reside freely within the territory of the EU is not unconditional and it is subject to the limitations and conditions laid down in the Treaty (para. 33).