Family Rights for Naturalized EU citizen, Lounes.

Introduction. With Commission v. UK, it has been said that the Court “has played politics and
lost”. Decided nine days before the UK referendum on EU Membership, it followed a set of cases – Dano, Alimanovic and Garcia Nieto – where the Court suddenly expressed great deference towards the EU legislature. As a result, part of its EU citizenship case law was dismantled and social rights for “inactive” EU citizens were limited. It may also be said that the Court has played politics in Lounes, released in the middle of Brexit talks. Answering a reference from a British Court, it decided that in some cases, EU citizens who acquire British citizenship can still rely on EU law to live with their third country national spouse in the UK.
Notwithstanding that the situation of the case was not related to Brexit, the answer of the Court is of crucial importance for EU citizens living in the UK or British citizens living in another Member State.
The presence of emblematic cases such as Martínez Sala, Garcia Avello or Metock could be read between the lines in Lounes. The case deals with family reunification for nationals residing in their State of nationality. In principle, EU citizens residing in their State of nationality cannot rely on EU law to obtain a derived right of residence for their family members. Nonetheless, the Court has long held that there are some exceptions to this rule. This is the case with situations having a “transnational element”: when the citizen has exercised his freedom of movement and is returning to his Member State of nationality (Singh model) or when the citizen is engaged in an economic activity in another Member State (Carpenter model). In other situations, very exceptionally, a derived right of residence has been recognized when its absence would force the citizen to leave the EU territory as a whole (Ruiz Zambrano model). In this last series of cases, the right of residence is directly based on the status of EU citizen conferred by Article 20 TFEU and not on Article 21 TFEU, stating that “every citizen of the Union shall have the right to move and reside freely within the territory of the Member States”.
The situation of dual nationals is less clear. In McCarthy the Court refused to apply Article 21 TFEU in the case of a dual national residing in her State of nationality who had never exercised her freedom of movement. In Lounes, Ms Oramzabal, a Spanish national who acquired British citizenship, had exercised her freedom of movement and had kept her Spanish nationality. The question of whether she was in a different situation to Ms McCarthy because she had moved was discussed before the referring Court. Unsurprisingly, the ECJ decided that the acquisition of British citizenship by Ms Ormazabal does not imply that she is in “a purely domestic situation”.
Nonetheless, this does not in itself justify a derived right of residence for her husband. In that respect, the ruling under examination is rather confusing. Numerous lines of reasoning are proposed but most of the time they are incomplete. They are superimposed and intertwined more than properly articulated. Lounes may be read as a further step in the development of EU citizenship. Indeed, it is the first time that the Court states so clearly that Article 21 TFEU entails a right to lead a normal family life. Moreover, the case arguably adds a new dimension to the naturalization of an EU citizen in her Member State of residence. Naturalization is seen as the prolongation of EU citizens’ integration in the host Member State, which is itself seen as the prolongation of free movement rights. Only future interpretation will determine whether Lounes will become one of the milestones of the Court’s citizenship case law.

Vincent Réveillère

Maître de conférences en Droit public à la Faculté de Droit de l’Université d’Aix Marseille

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