Union Citizenship and the Charter of Fundamental Rights

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Discuss the ECJ judgment of 10 October 2013 in Case C-86/12 Alokpa and Moudoulou in the light of the case law on Union citizenship and on the Charter of Fundamental Rights. The case of Alokpa and Moudoulou[1] concerns the right of Union citizens and their family members to move and reside freely within the territory of the Union. The ECJ ruled that Article 21 TFEU and Directive 2004/38 grant Mrs Alokpa and her children a right to continue to reside in the host Member State, as the children are the nationals of another Member State and the parent is the minors’ primary carer.

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The Court then determined that if Article 21 did not apply, being forced to leave Luxembourg would not result in an obligation to leave the whole territory of the EU, as the children were French nationals. Mrs Alokpa would therefore have the right to reside in France as the sole caregiver of minors. Thus, the refusal of the Luxembourg authorities did not constitute a deprivation of the genuine enjoyment of the children’s Union rights. The Court effectively says that whilst the European citizen minors cannot make use of their Article 20 TFEU right in Luxembourg, they could move to France and make use of it there. The minors would then be in the same position as the siblings in the Zambrano[2] case and that living in the country of their nationality the ECJ would have to protect their Union citizenship rights provided for in the charter, particularly the right to family life. The decision in Zambrano facilitated the acquisition of citizenship rights in what had previously been considered ‘purely internal situations’, thought to be beyond the scope of Union law. The ‘purely internal’ rule gives rise to problems of reverse discrimination, where ‘static’ EU citizens who have not exercised their right to free movement are at a disadvantage and unable to rely on EU law. It is suggested that Union citizens may be motivated to make use of their free movement rights in order to benefit from the right to family reunification under the conditions laid down in Directive 2004/38.[3] This situation, where movement within the territory of the Union almost becomes a practical obligation instead of a right, inevitably raises the issue of potential abuse of the rights attached to EU citizenship.[4] In the past, the court has tackled the issue of reverse discrimination by loosely finding a link to Union law, such as in Garcia Avello[5] and later in Zhu and Chen.[6] Here the ECJ explicitly stated that the exercise of the right of free movement is not a prerequisite to the application of Union law on residence and held that a Union citizen with the nationality of one Member State residing in another Member State does present a sufficiently Union-linked situation to invoke Union law regarding the right to free movement and residence.

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