¹ For some broader analyses that are to be found in the literature, see, e.g., Daniel Thym, Citizens and Foreigners in EU Law: Migration Law and Its Cosmopolitan Outlook, 22 Eur. L.J. 296 (2016); Francesca Strumia, European Citizenship and EU Immigration: A Demoi-cratic Bridge between the Third Country Nationals' Right to Belong and the Member States' Power to Exclude, 22 Eur. L.J. 417 (2016); Sara Iglesias Sanchez, The Protection of Fundamental Rights of Citizens of the Union and Third Country Nationals: Reinforcing Coherence Through a New Interpretation of the Non-discrimination Principle, 15 Eur. J. Migration & L. 137 (2013).Google Scholar

² See ECJ, Case 26/62, van Gend & Loos, EU:C:1963:1, Judgment of February 5, 1963.Google Scholar

³ Member States cannot, under any circumstances, plead the principle of reciprocity to justify infringement of EU law. See, e.g., ECJ, Cases 90/63 and 91/63, EU:C:1964:80, Commission v. Luxembourg and Belgium, Judgment of 13 November 1964; ECJ, Case 232/78 Commission v. France, EU:C:1979:215, Judgment of September 25, 1979; ECJ, Case 325/82 Commission v. Germany, EU:C:1984:60, Judgment of February 14, 1984, para. 11; ECJ, Case 270/83, Commission v. France, EU:C:1986:37, Judgment of January 28, 1986, para. 26. The implementation of the obligations imposed by EU law cannot be made subject to a reciprocity conditions, either. See, e.g., ECJ, Case C-405/01, Colegio de Oficiales de la Marina Mercante Española, EU:C:2003:515, Judgment of September 30, 2003, para. 61.Google Scholar

⁴ For a case dealing with those developments on infringements linked to illegal immigration, see ECJ, Case C-218/15, Paoletti and Others, EU:C:2016:748, Judgment of October 6, 2016.Google Scholar

⁵ See, e.g., Kochenov, Dimitry, EU Citizenship and Withdrawals from the Union: How Inevitable is the Radical Downgrading of Rights? 111 LEQS Discussion Paper Series (2016); Elspeth Guild, Brexit and its Consequences for UK and EU Citizenship or Monstrous Citizenship (2017).Google Scholar

⁶ See ECJ, Case C-135/08, Rottmann, EU:C:2010:104, Judgment of March 2, 2010, para. 39. The Court had already established that even though acquisition and loss of nationality remains a competence of the Member States, it has to be exercised respecting EU law. See ECJ, Case C-369/90, Micheletti and Others, EU:C:1992:295, Judgments of July 7, 1992, para. 10; ECJ, Case C-179/98, Mesbah, EU:C:1999:549, Judgment of November 11, 1999, para. 29; Case C-192/99, Kaur, EU:C:2001:106, Judgment of February 20, 2001, para. 19; ECJ, Case C-200/02, Zhu and Chen, EU:C:2004:639, Judgment of October 19, 2004, para. 37.Google Scholar

⁷ The citizen's initiative has been inserted as an EU citizenship right by the Treaty of Lisbon, Article 24.Google Scholar

⁸ See Questioning EU Citizenship: Judges and the Limits of Free Movement and Solidarity in the EU (Daniel Thym ed.) (forthcoming 2017).Google Scholar

⁹ See Kochenov, Dimitry, On Tiles and pillars: EU Citizenship as a Federal Denominator, in Citizenship and Federalism in the European Union: The Role of Rights 3 (D. Kochenov ed., 2017).Google Scholar

¹⁰ Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the Right of Citizens of the Union and Their Family Members to Move and Reside Freely within the Territory of the Member States Amending Regulation (EEC) No 1612/68 and Repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC OJ L 158, 30.4.2004, 77–123.Google Scholar

¹¹ See, e.g., Armin von Bogdandy et al., Reverse Solange–Protecting the Essence of Fundamental Rights Against EU Member States, 49 Common Mkt. L. Rev. 489 (2012); Dimitry Kochenov, The Right to Have What Rights? EU Citizenship in Need of Clarification, 19 Eur. L.J. 502 (2013); Sara Iglesias Sánchez, Fundamental Rights and Citizenship of the Union at a Crossroads: A Promising Alliance or a Dangerous Liaison?, 20 Eur. L.J. 464 (2014); Dominik Düsterhaus, EU Citizenship and Fundamental Rights: Contradictory, Converging or Complementary?, in EU Citizenship and Federalism, the Role of Rights (D. Kochenov ed., 2017); Niamh Nic Shuibhne, Integrating Union citizenship and the Charter of Fundamental Rights, in Questioning EU Citizenship. Judges and the Limits of Free Movement and Solidarity in the EU (Daniel Thym ed.) (forthcoming 2017).Google Scholar

¹² See Lang, Alessandra, The Protection of Vulnerable People and the Free Movement of Persons within the European Union: Two Worlds Apart?, in Protecting Vulnerable Groups: The European Human Rights Framework 291 (Francesca Ippolito & Sara Iglesias eds., 2015); Dora Kostakopoulou & Nuno Ferreira, Testing Liberal Norms: The Public Policy and Public Security Derogations and the Cracks in European Union Citizenship, 20 Colum. J. Eur. L. (2013); Daniel Thym, The Elusive Limits of Solidarity: Residence Rights of and Social Benefits for Economically Inactive Union Citizens, 52 Common Mkt. L. Rev. 17 (2015).Google Scholar

¹³ See ECJ, Cases C-333/13, Dano, EU:C:2014:2358, Judgment of November 11, 2014; ECJ, C-67/14, Alimanovic, EU:C:2015:597, Judgment of September 15, 2015; ECJ, C-299/14, García-Nieto and Others, EU:C:2016:114, judgment of February 25, 2016; ECJ, C-308/14, Commission v. United Kingdom, EU:C:2016:436, Judgment of June 14, 2016; Opinion of Advocate General Wathelet, Case C-442/16, Gusa, EU:C:2017:607.Google Scholar

¹⁴ See, e.g., ECJ, Case C-34/09, Ruiz Zambrano, EU:C:2011:124, Judgment of March 8, 2011; ECJ, C-165/14, Rendón Marín, EU:C:2016:675, Judgment of September 13, 2016; ECJ, C-304/14, CS, EU:C:2016:674, Judgment of September 13, 2016; ECJ, C-133/15, Chavez-Vilchez and Others, EU:C:2017:354, Judgment of May 10, 2017.Google Scholar

¹⁵ See, e.g., Treaty of Maastricht Establishing the European Community art. 63(3), (4).Google Scholar

¹⁶ For a distinction between immigration or migration law, as covering the law governing territorial admission — and eventually, expulsion—as opposed to “alienage law,” which deals with rights of non-citizens, see Motomura, Hiroshi, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (1990). On the historical genesis and scope of the concept of “(im)migration law” (Aufenthaltsrecht), see Jürgen Bast, Aufenhaltsrecht und Migrationssteuerung, Tübingen (Mohr Siebeck) 2011, 25–28.Google Scholar

¹⁷ See Consolidated Version of the Treaty on the Functioning of the European Union art. 79(2)(b) [hereinafter TFEU], for “the definition of the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States.”Google Scholar

¹⁸ This Article does not explore the principle of solidarity. For a source in this regard, see Opinion of Advocate General Bot, Cases C-643/15 and C-647/15 Slovakia and Hungary v. Council, EU:C:2017:618. See also Jürgen Bast, Deepening Supranational Integration: Interstate Solidarity in EU Migration Law, 22 Eur. Pub. L. 289 (2016).Google Scholar

¹⁹ See ECJ, Case C-40/11, Iida, EU:C:2012:691, paras. 45–48.Google Scholar

²⁰ Even though an EU codification was considered, it never became a reality. For a proposal in this sense, see Peers, Steve, An EU Immigration Code: Towards a Common Immigration Policy, 14 Eur. J. Migration & L. 33 (2012).Google Scholar

²¹ See Council Directive 2003/86/EC of 22 September 2003 on the Right to Family Reunification [2003] O.J. L 251, p. 12; Council Directive 2003/109/EC of 25 November 2003 concerning the Status of Third-country Nationals Who Are Long-term Residents; Council Directive 2009/50/EC of 25 May 2009 on the Conditions of Entry and Residence of Third-country Nationals for the Purposes of Highly Qualified Employment ([2009] O.J. L 155, p. 17; Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a Single Application Procedure for a Single Permit for Third-country Nationals to Reside and Work in the Territory of a Member State and on a Common Set of Rights for Third-country Workers Legally Residing in a Member State [2011] O.J. L 343, p. 1; Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the Conditions of Entry and Stay of Third-country Nationals for the Purpose of Employment as Seasonal Workers [2014] O.J. L 94, p. 375; Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the Conditions of Entry and Residence of Third-country Nationals in the Framework of an Intra-corporate Transfer, [2014] OJ L 157, p. 1; Directive 2016/801 of the European Parliament and of the Council of 11 May 2016 on the Conditions of Entry and Residence of Third-country Nationals for the Purposes of Research, Studies, Training, Voluntary Service, Pupil Exchange Schemes or Educational Projects and Au Pairing [2016] OJ L 132, p. 21.Google Scholar

²² See Bruycker, Philippe De, Legislative Harmonization in European Immigration Policy, in International Migration Law: Developping Paradigms and Key Challenges 329 (R. Cholewinski, R. Perruchoud & E. MacDonald eds., 2007).Google Scholar

²³ For this discussion, see Andreas F&;llesdal, Third country nationals as Euro-Citizens—The Case Defended, in Whose Europe? The Turn towards Democracy 104 (D. Smith & S. Wright eds., 1999); Becker, Michael A., Managing Diversity in the European Union: Inclusive European Citizenship and Third-Country Nationals, 7 Yale Hum. Rts. & Dev. L.J. 132Google Scholar

(2004); Steve Peers, Towards Equality: Actual and Potential Rights of Third-country Nationals in the European Union, 33 Common Mkt. L. Rev. 7 (1996).Google Scholar

²⁴ See, e.g., Bell, Mark, Civic Citizenship and Migrant Integration, 13 Eur. Pub. L. 311 (2007); Marie-Jose Garot, A New Basis for European Citizenship: Residence?, in European Citizenship: an Institutional Challenge 229 (Massimo La Torre ed., 1998). For a renovated discourse on civic citizenship, see Arcarazo, Diego Acosta, Civic Citizenship Reintroduced? The Long-Term Residence Directive as a Post-National Form of Membership, 21 Eur. L.J. 200 (2015).Google Scholar

²⁵ See Opinion of Advocate General Bot, C-165/16, Lounes, EU:C:2017:407, para. 87.Google Scholar

²⁶ See Opinion of Advocate General Bot, C-165/16, Lounes, EU:C:2017:407. According to this opinion, naturalized EU citizens no longer fall within the scope of Directive 2004/38. However, the Advocate General has argued that the EU citizen at issue had taken “her integration in the host Member State to its logical conclusion by requesting her naturalisation in accordance with the objective pursued by the Union legislature not only in Article 21(1) TFEU, but also in Directive 2004/38, recital 18 of which seeks to make the permanent residence permit a ‘genuine vehicle for integration’ for the person concerned into the society of the host Member State. Her residence pursuant to and in conformity with the conditions set out in Article 16 of the directive is clear evidence of genuine residence and goes hand in hand with creating and strengthening family life in that Member State. To deprive her henceforward of the rights to which she has till now been entitled in respect of the residence of her family members because, by being naturalised, she has sought to become more deeply integrated in the host Member State, would annihilate the effectiveness of the rights which she derives from Article 21(1) TFEU.” (points 85 and 86). Because this solution is based on Article 21(1) TFEU, it may be arguably difficult to transpose to naturalized third country nationals with regard to the ‘retention’ of the rights awarded by EU migration directives.Google Scholar

²⁷ For such a situation, see ECJ, Case C-87/12, Ymeraga and Others, EU:C:2013:291, Judgment of May 8, 2013.Google Scholar

²⁸ See Sara Iglesias Sánchez, Nationality: The Missing Link between Citizenship of the European Union and European Migration Policy, in The Reconceptualization of European Union Citizenship 65 (Elspeth Guild, Cristina Gortázar Rotaeche & Dora Kostakopoulou eds., 2014).Google Scholar

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³⁰ See Sanchez, Sara Iglesias, The Constitutional Status of Foreigners and EU Citizens Loopholes and Interactions in the Scope of Application of Fundamental Rights, in Questioning EU Citizenship: Judges and the Limits of Free Movement and Solidarity in the EU (Daniel Thym ed.) (forthcoming 2017).Google Scholar

³¹ For a general overview, see Ippolito, Francesca, Migration and Asylum Cases before the Court of Justice of the European Union: Putting the EU Charter of Fundamental Rights to Test?, 17 Eur. J. Migration & L. 1 (2015).Google Scholar

³² See ECJ, Case 238/83, Meade EU:C:1984:250, Judgment of July 5, 1984, para 7; ECJ, Case C-230/97 Awoyemi EU:C:1998:521, Judgment of October 29, 1998, para 29; ECJ, Case C-147/91 Ferrer Laderer EU:C:1992:278, Judgment of June 25, 1992, para 9.Google Scholar

³³ See, e.g., Cases C-22/08 and C-23/08, Vatsouras and Koupatantze, EU:C:2009:344, Judgment of June 4, 2009.Google Scholar

³⁴ For the origin of the borrowed term, see Rainer Bauböck, The Three Levels of Citizenship within the European Union, 15 German L.J. 751, 758 (2014).Google Scholar

³⁵ See, e.g., Soysal, Y. N., Limits of citizenship: Migrants and Postnational Membership in Europe (1994); Linda Bosniak, The Citizen and the Alien: Dilemmas on Contemporary Membership (2008); Dora Kostakopoulou Citizenship, Identity and immigration in the European Union (2001); E. Guild, The Legal Elements of European Identity: EU Citizenship and Migration Law (2006).Google Scholar

³⁶ See François-Xavier Millet, L'Union europeenne et l'identite constitutionnelle des etats membres (2013); see also Polzin in this issue, 18 German L.J. (2017); Faraguna in this issue, 18 German L.J. (2017).Google Scholar

³⁷ See, e.g., José Luis Martí, Two different Ideas of Constitutional Identity: Identity of the Constitution v. Identity of the People, in National Constitutional Identity and European Integration 17 (Alejandro Saiz Arnaiz & Carina Alcoberro Llivina eds., 2013).Google Scholar

³⁸ For example, some studies adopt a broad approach including abortion, property acquisition, football, and alcohol control. See Hilson, Chris, The Unpatriotism of the Economic Constitution? Rights to Free Movement and their Impact on National and European Identity, 14 Eur. L.J. 186 (2008).Google Scholar

³⁹ For an indepth discussion, see Rosenfeld, Michel, The Identity of the Constitutional Subject. Selfhood, Citizenship, Culture and Community (2010). See also Strumia et al. in this issue, 18 German L.J. (2017).Google Scholar

⁴⁰ See e.g., Case C-58/13 and C-59/13, Torresi, EU:C:2014:2088, Judgment of July 17, 2014, para. 58 (finding that in so far as a measure is not capable of affecting either the fundamental political and constitutional structures or the essential functions of the host Member State, it is not covered by the concept of national identity within the meaning of Article 4(2) TEU).Google Scholar

⁴¹ François-Xavier Millet, L'Union europeenne et l'identite constitutionnelle des etats membres 164 (2013).Google Scholar

⁴² See ECJ, Case C-208/09, Sayn-Wittgenstein, EU:C:2010:806, Judgment of December 20, 2010; ECJ, C-438/14, Bogendorff von Wolffersdorff, EU:C:2016:401, Judgment of June 2, 2016.Google Scholar

⁴³ See ECJ, Cases C-51/15, Remondis, EU:C:2016:985, Judgment of December 21, 2016, para. 40; ECJ, C-156/13, Digibet and Albers, EU:C:2014:1756, Judgment of June 12, 2014, para. 34.Google Scholar

⁴⁴ See ECJ, Cases C-391/09, Runevic-Vardyn and Wardyn, EU:C:2011:291, Judgment of May 11, 2011, para. 86; C-51/08, Commission v. Luxembourg, EU:C:2011:336, Judgment of May 24, 2011, para. 124; ECJ, C-473/93, Commission v. Luxembourg, EU:C:1996:263, Judgment of July 2, 1996, para. 35; ECJ, C-202/11, Las, EU:C:2013:239, Judgment of April 16, 2013, paras. 26, 27.Google Scholar

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⁴⁶ See, e.g., Cases C-473/13 and C-514/13, Bero and Bouzalmate, EU:C:2014:2095, Judgment of July 17, 2014, para. 28 (declaring that the obligation, laid down in the first sentence of Article 16(1) of Directive 2008/115, requiring detention to take place as a rule in specialised detention facilities is imposed upon the Member States as such, and not upon the Member States according to their respective administrative or constitutional structures).Google Scholar

⁴⁷ See ECJ, Case C-135/08, Rottmann, EU:C:2010:104, Judgment of March 2, 2010.Google Scholar

⁴⁸ See, Recital 11 of the Family Reunification Directive (stating thatGoogle Scholar

[t]he right to family reunification should be exercised in proper compliance with the values and principles recognised by the Member States, in particular with respect to the rights of women and of children; such compliance justifies the possible taking of restrictive measures against applications for family reunification of polygamous households.Google Scholar

See also Article 4(4) of the Family Reunification Directive (“In the event of a polygamous marriage, where the sponsor already has a spouse living with him in the territory of a Member State, the Member State concerned shall not authorise the family reunification of a further spouse.”).Google Scholar

⁴⁹ The idea of convergence has been emphasized by Advocate General Cruz Villalón:Google Scholar

the Union has … acquired the character, not just of a community governed by the rule of law, but also of a ‘community imbued with a constitutional culture’. That common constitutional culture can be seen as part of the common identity of the Union, with the important consequence, to my mind, that the constitutional identity of each Member State, which of course is specific to the extent necessary, cannot be regarded, to state matters cautiously, as light years away from that common constitutional culture. Rather, a clearly understood, open, attitude to EU law should in the medium and long term give rise, as a principle, to basic convergence between the constitutional identity of the Union and that of each of the Member States.Google Scholar

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⁵⁰ For an analysis of that EU constitutional values, see Sarmiento, Daniel, The EU's Constitutional Core, in National Constitutional Identity and European Integration 177 (Alejandro Saiz Arnaiz & Carina Alcoberro Llivina eds., 2013).Google Scholar

⁵¹ Artide 79(4) TFEU.Google Scholar

⁵² See generally Stefano Montaldo, Integration Examinations for Regular Migrants: The Difficult Search for a Balance between National Competencies and Full Effectiveness of EU Law, 2 UNIO—EU L.J. 39 (2016).Google Scholar

⁵³ For accounts on the difficulty to define the concept of integration and its functions, see, e.g., Kees Groenendijk, Legal Concepts of Integration in EU Migration Law, 6 Eur. J. Migration & L. 111–26 (2004); Dora Kostakopoulou, Sergio Carrera & Moritz Jesse, Doing and Deserving: Competing Frameworks of Integration in the EU, in Illiberal Liberal States: Immigration, Citizenship and Integration in the EU 167 (Elspeth Guild, Kees Groenendijk & Sergio Carrera eds., 2009).Google Scholar

⁵⁴ ECJ, Case C-540/03, Parliament v. Council, EU:C:2006:429, Judgment of June 27, 2006, para. 70.Google Scholar

⁵⁵ See ECJ, Case C-579/13, P and S, EU:C:2015:369, Judgment of June 4, 2015; ECJ, Case C-153/14, K and A, EU:C:2015:453, Judgment of July 9, 2015.Google Scholar

⁵⁶ See, e.g., Case C-558/14, Khachab, EU:C:2016:285, Judgment of April 21, 2016, para. 26; ECJ, C-540/03, Parliament v. Council, EU:C:2006:429, Judgment of June 27, 2006, para. 69. For sources in regard to the Long-term Residents Directive, see ECJ, C-309/14, CGIL et INCA, EU:C:2015:523, Judgment of September 2, 2015, para. 21; ECJ, C-508/10, Commission v. Netherlands, EU:C:2012:243, Judgment of April 26, 2012, para. 66. For a source on this debate, see Groenendijk, Kees, Legal Concepts of Integration in EU Migration Law, 6 Eur. J. Migration & L. 111–26 (2004).Google Scholar

⁵⁷ See Council Document 14615/04 of 19 November 2004.Google Scholar

⁵⁸ Commission Communication, Action Plan on the Integration of Third Country Nationals, COM (2016) 377 final.Google Scholar

⁵⁹ See Council Document 14615/04 of 19 November 2004.Google Scholar

⁶⁰ ECJ, Case C-579/13, P and S, EU:C:2015:369, Judgment of April 26, 2012; ECJ, Case C-153/14, K and A, EU:C:2015:453, Judgment of July 9, 2015.Google Scholar

⁶¹ See, e.g., Art. 3(1) of Regulation 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement of workers within the EU [2001] OJ L 141/1 (referring to “conditions relating to linguistic knowledge required by reason of the nature of the post to be filled”); see also ex- Art. 3(1) of Regulation 1612/68 [1968] OJ L257/475; Article 53 of Directive 2005/36, of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications [2005] OJ L 255/22 (noting that “persons benefiting from the recognition of professional qualifications shall have a knowledge of languages necessary for practising the profession in the host Member State.”).Google Scholar

⁶² For cases concerning jobseekers, where integration is phrased in terms of “a real link with the employment market,” see, e.g., ECJ, Case C-367/11, Prete, EU:C:2012:668, Judgment of October 25, 2012, para. 33. With regard to workers, integration is “presumed” since they contribute to the host Member State's economy. See ECJ, Case C-542/09, Commission v. Netherlands, EU:C:2012:346, Judgment of June 14, 2012, para 65 (declaring thatGoogle Scholar

as regards migrant workers and frontier workers, the fact that they have participated in the employment market of a Member State establishes, in principle, a sufficient link of integration with the society of that Member State, allowing them to benefit from the principle of equal treatment, as compared with national workers, as regards social advantages.)Google Scholar

The approach is different, however, with regard to border-workers—who do not work and reside in the same Member State. See ECJ, Case C-20/12, Giersh, EU:C:2013:411, Judgment of June 20, 2013, para. 65 (stating that “the frontier worker is not always integrated in the Member State of employment in the same way as the worker who is a resident in that State.”).Google Scholar

⁶³ See, for example, residential requirements for students. See ECJ, Case C-209/03, Bidar, EU:C:2005:169, Judgment of March 15, 2005, para. 57 (declaring that “it is permissible for a MS to ensure that the grant of assistance to cover maintenance costs of students from other Member States does not become an unreasonable burden which could have consequences fort the overall level of assistance.”). This integration is established if the student has resided for a certain length of time. See also ECJ, Joined Cases C-11/06 and C-12/06, Morgan and Bucher, EU:C:2007:626,Google Scholar

Judgment of October 23, 2007, para. 43; ECJ, Case C-158/07, Förster, EU:C:2008:630, November 18, 2008. This is the approach later codified in Article 24 of Directive 2004/38. For the role of integration as a justification in EU free movement law, see Sara Iglesias Sánchez & Diego Acosta Arcarazo, Social Justifications for Restrictions of the Right to Welfare Equality: Students and Beyond, in Exceptions from EU Free Movement Law. Derogation, Justification and Proportionality 80 (Panos Koutrakos, Niamh Nic Shuibhne & Phil Syrpis eds., 2016).Google Scholar

⁶⁴ Rainer Bauböck, The Three Levels of Citizenship within the European Union, 15 German L.J. 751, 759 (2014).Google Scholar

⁶⁵ See ECJ, Cases C-22/08 and C-23/08, Vatsouras and Koupatantze, EU:C:2009:344, Judgment of June 4, 2009, para 52; see also ECJ, Case C-45/93, Commission v. Spain, EU:C:1994:101, Judgment of March 15, 1994, para. 10; ECJ, Cases C-95/99 to C-98/99 and C-180/99, Khalil and Others, EU:C:2001:532, Judgment of October 11, 2001, para. 40; ECJ, Case C-45/12, Hadj Ahmed, EU:C:2013:390, Judgment of June 13, 2013, paras. 39–41.Google Scholar

⁶⁶ Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] O.J. L 180, p. 22; Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303, p. 16.Google Scholar

⁶⁷ For more on this debate, see Hublet, Chloe, The Scope of Article 12 of the Treaty of the European Communities vis-à-vis Third-Country Nationals: Evolution at Last, 12 Eur. L.J. 575 (2009); Elspeth Guild & Steve Peers, Out of the Ghetto? The Personal Scope of EU Law, in EU Immigration and Asylum Law: Text and Commentary 81 (S. Peers & N. Rogers eds., 1st ed. 2006); Evelien Brouwer & Karin de Vries, Third-country Nationals and Discrimination on the Ground of Nationality: Article 18 TFEU in the Context of Article 14 ECHR and EU Migration Law: Time for a New Approach, in Equality and Human Rights: Nothing but Trouble? Liber amicorum Titia Loenen 123 (M. van den Brink, S. Burri & J. Goldschmidt eds., 2015).Google Scholar

⁶⁸ Case of Moustaquim v. Belgium, judgment of February 18, 1991 (Application no. 12313/86) (finding no breach of Article 14 taken together with Article 8 ECHD because, first, “the applicant cannot be compared to Belgian juvenile delinquents [since the] latter have a right of abode in their own country and cannot be expelled from it” and that “the preferential treatment given to nationals of the other member States of the Communities, there is objective and reasonable justification for it as Belgium belongs, together with those States, to a special legal order.”). See also ECtHR, C. v. Belgium, 7 August 1996 (Appl.no. 21794/93).Google Scholar

⁶⁹ The Court. However, had recognized the margin of appreciation enjoyed by States and that a State may “in certain circumstances, justifiably differentiate between different categories of aliens residing in its territory. For instance, the preferential treatment of nationals of member States of the European Union … may be said to be based on an objective and reasonable justification, because the Union forms a special legal order, which has, moreover, established its own citizenship.” See ECtHR, Ponomaryovi v. Bulgaria, June 21, 2011 (Appl. no. 5335/05). However, that finding was not effectively applied in that case, due to the strict scrutiny attached to the importance of the right at issue—education. In its Judgment of April 8, 2014, Dhabhi v. Italy Appl. no. 17120/09, the ECtHR did not accept this argument in order to justify a different treatment between EU citizens and an EU foreigner with regard to welfare benefits.Google Scholar

⁷⁰ See, e.g., ECtHR, Gaygusuz v. Austria, ECtHR Reports of Judgments and Decisions 1996 –IV; ECtHR, Koua Poirrez v. France, 30 September 2003 (Appl. No. 40892/98); ECtHR, Luczak v. Poland, 27 November 2007 (Appl. No. 77782/01); Andrejeva v Latvia Appl. No. 55707/00 ECtHR, 18 February 2009 ECtHR, Fawsie v. Greece, 28 October 2010 Appl. no. 40080/07; ECtHR, Saidoun v. Greece, 28 October 2010 (Appl. No. 40083/07). The Court has, however, emphasized the ide margin usually allowed to the State under the Convention when it comes to general measures of economic or social strategy in its judgment of September 15, 2016, case of British Gurkha Welfare Society and Others v. the United Kingdom, (Appl. no. 44818/11).Google Scholar

⁷¹ For an extensive review of the ECtHR case law, see Brouwer & de Vries, supra note 67, at 123.Google Scholar

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⁷³ See, e.g., ECJ, Case C-579/13, P and S, EU:C:2015:369, Judgment of June 4, 2015, para. 41.Google Scholar

⁷⁴ The fact that the notion of “fair treatment” is undetermined in the Treaty wording has led some commentators to point at the minimum “human rights” standard, being necessary legislative development to determine it further. See Thym, Daniel, EU Migration Policy and its Constitutional Rationale: A Cosmopolitan Outlook, 50 Common Mkt. L. Rev. 709 (2013).Google Scholar

⁷⁵ For the interpretation of the scope of the equal treatment principle in the Long-term residents Directive in accordance with the Charter, see ECJ, Case C-571/10, Kamberaj, EU:C:2012:233, Judgment of April 24, 2012.Google Scholar

⁷⁶ See Groenendijk, Kees, Citizens and Third Country Nationals: Differential Treatment or Discrimination, in The Future of Free Movement of Persons in the EU 79 (Jean Yves Carlier & Elspeth Guild eds., 2006).Google Scholar

⁷⁷ See S. Morano-Foadi & K. de Vries, The Equality Clauses in the EU Directives on Non-Discrimination and Migration/Asylum, in Integration for Third Country Nationals: The Equality Challenge 16 (S. Morano-Foadi & M. Malena eds., 2012).Google Scholar

⁷⁸ For example, in the case of the Family Reunification Directive, equal treatment applies with regard to the sponsor family member; the right of free movement in the qualification Directive takes as a point of resident other legally residing third country nationals.Google Scholar

⁷⁹ See, Article 13 of Decision 1/80 of the Association Council of 19 September 1980 on the development of the Asociation Agreement between the European Community and Turkey O.J. 1973 C 113, p. 1; Article 41(1) of the Additional Protocol annexed to that Agreement, O.J. 1977 L 361, p. 60 (regarding the provision of services).Google Scholar

⁸⁰ For the first time this possibility was admitted, see ECJ, Case C-225/12, Demir, EU:C:2013:725, Judgment of November 7, 2013.Google Scholar

⁸¹ ECJ, Case C-561/14, Genc, EU:C:2016:247, Judgment of April 12, 2016, para 55.Google Scholar

⁸² In Genc, the integration condition at issue required that, in order to benefit from family, a child, or be able to establish sufficient ties to Denmark to enable successful integration. That condition applied only if the application was made more than two years after the award of the resident permit to the parent. The Court considered that the integration condition at issue was unconnected with the likelihood of achieving integration. Since the condition was not justified, it was considered as a “new restriction” contrary to the stand still clause.Google Scholar

⁸³ See ECJ, Case C-138/13, Dogan, EU:C:2014:2066, Judgment of July 10, 2014. This case concerned the application of integration conditions in the form of language test prior to family reunification. The Court considered that even on the assumption that the grounds adduced related to the prevention of forced marriages and the promotion of integration could constitute overriding reasons in the public interest, it remains the case that national measures which automatically led to the dismissal of an application for family reunification due to lack of evidence of sufficient linguistic knowledge go beyond what is necessary to attain the objectives pursued (see para 38 of the judgment).Google Scholar

⁸⁴ Article 29 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, O.J. 1022 L 337, p. 9.Google Scholar

⁸⁵ ECJ, Joined Cases C-443/14 and C-444/14, Alo and Osso, EU:C:2016:127, para 59.Google Scholar

⁸⁶ See ECJ, Case C-571/10, Kamberaj, EU:C:2012:233, Judgment of April 24, 2012 (regarding the long-term residents directive); ECJ, Case C-449/16, Martinez Silva, EU:C:2017:485, Judgment of June 21, 2017 (regarding the Single Permit Directive).Google Scholar

⁸⁷ See ECJ, Case C-138/13, Dogan, EU:C:2014:2066, Judgment of July 10, 2014; ECJ, C-561/14, Genc, EU:C:2016:247, Judgment of April 12, 2016; ECJ, Case C-579/13, P and S, EU:C:2015:369, Judgment of June 4, 2015; ECJ, Case C-153/14, K and A, EU:C:2015:453, Judgment of July 9, 2015.Google Scholar

⁸⁸ See Karin de Vries, The Integration Exception: A New Limit to Social Rights of Third-Country Nationals in EU Law?, in Questioning EU Citizenship: Judges and the Limits of Free Movement and Solidarity in the EU (Daniel Thym ed., forthcoming 2017).Google Scholar