1. Summarise the article in no more than 500 words.
The eu citizenship inspired by the freedom of movement for persons envisaged in the Treaties, the introduction of a European citizenship with precisely defined rights and duties was considered as long ago as the 1960s. Following preparatory work that began in the mid-1970s, the Treaty on European Union (TEU), adopted in Maastricht 1in 1992, gave as an objective for the Union ‘to strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union’. A new part of the EC Treaty 2is devoted to this citizenship. The ECJ reformulated the questions of the UK Supreme Court to include an assessment of the applicability of both the Directive and Article 21 3.
The Directive was held to be inapplicable to the situation of Mrs McCarthy. In particular it only applied to situations where a Union citizen has moved to another Member State. In addition, the Directive concerns the conditions of residence of a Union citizen in another Member State. As a national of the UK Mrs McCarthy’s residence there could not be subject to conditions. The Directive was therefore inapplicable.
Nor could Mrs. McCarthy rely on Article 214. While the fact that she had never exercised her right of free movement did not necessarily preclude her relying on her status as a Union citizen, the national measure in question did not have ‘the effect of depriving her of the enjoyment of the substance of the rights associated with her status as a Union citizen’. In particular it did not have ‘the effect of obliging Mrs McCarthy to leave the territory of the European Union.’ The situation was therefore held not to be governed by EU law. The dual nationality of Mrs McCarthy did not in itself alter this conclusion. As a consequence Mr. McCarthy did not enjoy a right of residence under EU law.
McCarthy follows the ground-breaking decision in Zambrano 5and both confirms its general finding while limiting its application. McCarthy confirms the general rule that EU citizenship law, and in particular Articles 20 and 216 prohibit national measures that deprive their own nationals of ‘the very enjoyment of the substance of rights conferred by the status of EU citizenship.’ The Court equally held that Directive 20047 only applies where a citizen moves to another Member State. In confirming this aspect of Zambrano, the Court elaborates significantly on it’s reasoning and relies on the wording, purpose and context of the Directive. More specifically, McCarthy 8confirms that one of the rights conferred by the status of EU citizenship is residence on the territory of the Union. Perhaps as important as the practical implication is the symbolic connection between citizenship and territory emerging from Zambrano and confirmed in McCarthy.
However, perhaps more significantly, McCarthy places limits on the application of Zambrano. Contrary to some readings the ‘purely internal’ rule has not been abolished but persists, if in a modified form. Only in exceptional cases, where ‘the very enjoyment of the substance of rights conferred by the status of EU citizenship’ is in question does a situation with no cross-border element fall within the scope of EU law. McCarthy also clarifies the situations of dual nationals and discusses previous cases touching on the issue. The Court clarified that the mere fact of dual nationality does not, in and of itself, bring the situation into the scope of EU law. Rather, a national measure must impact on a specific right conferred by EU law. On the specific (and more practical) issue of residence rights for family members of citizens, McCarthy would appear to limit the application of Zambrano to situations where a carer relationship exists. Thus, whereas in Zambrano the company (and indeed authorisation to work) of a carer-parent was considered essential for the continued residence of the citizen on the territory...
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