by Sophie Perez Fernandes, Junior Editor
Back in 2011, the ECJ delivered a pivotal decision in the Zambrano case. With reference to the Rottmann case, the ECJ held that “Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.”
By this criterion are included within the scope of application of EU law situations which, a priori, fall within the competence of the Member States (the so-called purely internal situations). The Zambrano-criterion indeed allows EU citizens to rely on their status as EU citizens against their own Member States of nationality even when they have not exercised their rights of free movement. The immediate consequence of the Zambrano ruling was to preclude Member States (in casu, Belgium) from refusing third country national parents of minor EU citizens a right of residence in the Member State of residence and nationality of those children in so far as such decisions would result in the children having to leave the territory of the Union as a whole.
The subsequent case-law gave a rather narrow interpretation to the criterion, as can be confirmed by the judgments delivered in McCarthy, Dereci, Iida, O and S, Ymeraga, Alokpa and NA. The ECJ held the Zambrano-criterion as a specific criterion as it relates to “very specific situations” in which a right of residence may not, exceptionally, be refused to a third country national without the EU citizenship enjoyed by (minor) Member States nationals being (fundamentally) undermined. It thus follows that any right of residence conferred on third country nationals pursuant to Article 20 TFEU are rights derived from those enjoyed by the EU citizen of which they are members of the family and have, in particular, “an intrinsic connection with the freedom of movement and residence of a Union citizen”.
Without calling into question or reversing this line of jurisprudence, the ECJ seems however willing to revive the Zambrano-criterion in more recent cases, addressing some issues so far left in the open. In CS and Rendón Marín, though admitting the possibility of limiting the derived right of residence flowing from Article 20 TFEU to third country nationals (limitation based on grounds of public policy or public security), the ECJ framed the scope of such a limitation, making its application conditional on a case-by-case analysis and upon respect for fundamental rights as protected by the CFREU, namely Articles 7 and 24(2) CFREU. The ECJ further clarified the scope of the Zambrano-criterion as the ultimate link with EU law for the purposes of the protection of fundamental rights in the Chavez-Vilchez judgment delivered last week.
The disputes in the main proceedings oppose eight third-country nationals, mothers of one or more minor children who are of Netherlands nationality, to the competent Netherlands authorities, concerning the refusal of their applications for social assistance and child benefit, on the ground that they did not have a right of residence in the Netherlands. The differences between the cases are set out by both the ECJ and the Advocate General Szpunar in its Opinion. In common, the applicants sought to argue that they were responsible for the day-to-day and primary care of their minor children, and thus entitled to a derived right of residence under Article 20 TFEU in accordance with the Zambrano-criterion, despite the fact that the fathers of those children, who are also EU citizens, were staying either in the Netherlands or in another Member State.
The Netherlands Government argued before the ECJ that “the mere fact that a third-country national parent undertakes the day-to-day care of the child and is the person on whom that child is in fact dependent, legally, financially or emotionally, even in part, does not permit the automatic conclusion that a child who is a Union citizen would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national. The presence, in the territory of the Member State of which that child is a national or in the territory of the Union, as a whole, of the other parent, who is himself a Union citizen and is capable of caring for the child, is, (…), a significant factor in that assessment” (para. 66).
The ECJ partially agreed in so far as the fact that the EU citizen parent is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is to be considered a “relevant factor” – but not a sufficient one. The ECJ started by relying on earlier case-law concerning the Zambrano-criterion emphasizing the relevance of the relationship of legal, financial and emotional dependency between the minor EU citizen and the third country national parent who is refused a right of residence (para. 68 and 69). The ECJ then stressed that, as part of that assessment, the competent national authorities must take account of the right to respect for family life and the best interests of the child as recognised in Articles 7 and 24(2) CFREU (para. 70 and 71) – it should be recalled that no mention of fundamental rights was made in the original Zambrano judgment.
The special emphasis on the best interests of the child is noticeable in Chavez-Vilchez and rather welcome as the ECJ interpreted Article 20 TFEU as meaning that “for the purposes of assessing whether a child who is a Union citizen would be compelled to leave the territory of the European Union as a whole and thereby deprived of the genuine enjoyment of the substance of the rights conferred on him by that article if the child’s third-country national parent were refused a right of residence in the Member State concerned, the fact that the other parent, who is a Union citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would indeed be so compelled were there to be such a refusal of a right of residence. Such an assessment must take into account, in the best interests of the child concerned, all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for the child’s equilibrium” (para. 72).
The ECJ further addressed some procedural aspects raised in the main proceedings specifically related to the burden of proof. The Netherlands Government argued that the burden of proof of the existence of a derived right of residence under Article 20 TFEU lies on the third country national parent. It was therefore for the applicants to demonstrate that, because of objective impediments that prevent the EU citizen parent from actually caring for the child, the child is dependent on the third country national parent to such an extent that the consequence of refusing to grant them a right of residence would be that the child would be obliged, in practice, to leave the territory of the Union.
Again, the ECJ agreed only in part as the application of national legislation on the burden of proof cannot undermine the effectiveness of Article 20 TFEU. Accordingly, the burden of proof lies, indeed, primarily upon the third country national parent who has to provide evidence on the basis of which it can be assessed whether the conditions governing the application of Article 20 TFEU are satisfied, in particular, evidence that a decision to refuse a derived right of residence “would deprive the child of the genuine enjoyment of the substance of the rights attached to his or her status as a Union citizen by obliging the child to leave the territory of the European Union as a whole” (para. 75). That does not, however, “relieve the authorities of the Member State concerned of the obligation to undertake, on the basis of the evidence provided by the third-country national, the necessary inquiries to determine where the parent who is a national of that Member State resides and to examine, first, whether that parent is, or is not, actually able and willing to assume sole responsibility for the primary day-to-day care of the child, and, second, whether there is, or is not, such a relationship of dependency between the child and the third-country national parent that a decision to refuse the right of residence to the latter would deprive the child of the genuine enjoyment of the substance of the rights attached to his or her status as a Union citizen by obliging the child to leave the territory of the European Union, as a whole” (para. 77).
In short, the Chavez-Vilchez judgment confirms that situations such as those at issue in the main proceedings, due to their “intrinsic connection with the freedom of movement and residence of a Union citizen” (para. 64), come, albeit exceptionally, within the scope of application of EU law. And, in so far as they do, their assessment by both administrative and judicial national authorities must be in accordance with EU law and, in particular, with respect to the fundamental rights as protected by the CFREU [namely the fundamental rights enshrined in Articles 7 and 24(2) CFREU] and to EU citizenship primary law (which may be relevant, for example, in the application of national legislation on the burden of proof).
Picture credits: Untitled by tookapic.