Komentarz autorstwa Morgana Brianda (w j. angielskim) dot. wyroku Trybunału Sprawiedliwości Unii Europejskiej w sprawie Zambrano p-ko ffice national de l'emploi (ONEM). Trybunał w wyroku stwierdził, że zgodnie z ustawodawstwem europejskim nieprawidłową jest decyzja, poprzez którą odmawia się osobie nie posiadającej obywatelstwa UE a sprawującej opiekę nad małoletnim dzieckiem, zezwolenia na pracę oraz prawa pobytu na terenie kraju członkowskiego UE.   

The decision of the Court of justice of the European Union issued the 8th March 2011 has been widely reported in the newspapers because it deals with the condition of migrants, a subject which is at the core of many contemporary issues in many Member States of the European Union.  Mr. Ruiz Zambrano’s case reflects what Mr. E. Balibar, a French philosopher and teacher, describes as “illegal citizens”, an expression which designates the migrants who are not allowed to stay in a country but who implemented themselves somehow, by finding a place to live and an undeclared work, had children or married themselves with a national and who are de facto partially included in the society. At the same time, this case provides some new interesting elements over the conception of the Court on the European citizenship which were already set up with a similar case, namely Zhu and Chen (case C_200/02 of the 19th octobre 2004) where the Court stated that denying residency to parents, national of a third country, of a young girl citizen of the European Union when she is unable to look after herself by her own was contrary to the rights of the child guaranteed by her status of European citizen.
Mr. Ruiz Zambrano is a Colombian national who emigrated in Belgium with his wife and child because of the civil war in his home country. He and his wife applied in 1999, 2000 2004, 2005 and 2006 without success for asylum and subsequent applications to have their situation regularized in this country. The Belgian authorities ordered them to leave Belgium stating however that they should not be sent back to Colombia in view of the civil war in that country. In 2001, Mr Ruiz Zambrano, without legal resident papers and work permit signed an employment contract for an unlimited period. In 2006, his employee ended up his contract of employment with immediate effect and without compensation following the inspection carried out by the Direction générale du contrôle des lois sociales (Directorate General, Supervision of Social Legislation). Mr Zambrano’s request to beneficiate of full-time unemployment benefits was rejected by a decision of the Office des étrangers (National Employment Office- ONEm) as regard to his illegal stay in Belgium, a request he had already brought to this office in 2005 because of a temporary suspension of his contract. In addition, Mr. Ruiz Zambrano’s wife gave birth to another two children respectively in 2003 and 2005 on the Belgian territory and since the Colombian law provides that if any specific steps are taken in order to obtain the Colombian nationality for children born outside the Colombian territory, which is the case here, the children were given the Belgian nationality.
Mr. Ruiz Zambrano contested the decision of the National Employment Office which stated that his claim for unemployment benefit, were not completed as required by the legislation governing foreigners’ residence and employment of foreign workers, by an action for annulment he raised in 2007 before the Conseil du contentieux des étrangers (The UN Refugee Agency). He claimed his right of residence given his children’s nationality and therefore the wrong qualification of his situation by the office while the respondent authorities accused him of “legal engineering”. This was again contested by Mr. Zambrano who claimed that the nationality of his children is Belgian by virtue of the Belgian legislation. The case was brought to the Tribunal du travail de Bruxelles (Employment Tribunal, Brussels) which decided to stay proceedings. The questions the referring court asks, which we will consider together, essentially concern the issue of knowing whether the provisions of the Treaty on the functioning of the European union (TFEU) on European Union citizenship are to be interpreted as meaning that they confer on a relative in the ascending line who is a third country national, upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State and also exempt him from having to obtain a work permit in that Member State. The absence of the exercise of mobility within the European Union, an element to which the European law always subordinated the realization of the rights granted by the status of European citizen, is also at stake.
     The Court concluded that the fact, for two young children to have to leave their Member State of origin so as to live with their parents, nationals of a third country who do not hold a permit to stay in the territory of the European Union, would prevent those children, citizen of the European Union, to exercise their rights attached to their status of citizen of the European Union and decided that the parents should be granted the right of residence along with a permit of work.
We will see first how the Court’s reasoning seems to mark an evolution over the issue of the usual essential element of transnational mobility and how it concluded to the externality of the case at stake without this element. Then, we will ask ourselves if the argumentation adopted by the Court can be extended to similar cases. This will lead us to see that the decision of the Court has a much more limited impact that it could have occurred at the first sight and that it seems that the reasoning of the Court would only apply to “care-takers”.


The conception of the European citizenship has known several evolutions. Originally it was meant to be an economical tool of integration but the European Court of Justice very soon when dealing with the European citizenship freed the mobility of individuals from the exercise of an economic activity. European citizenship became more generally a mean of social European integration, as it allowed nationals of any Member State to circulate freely within the territory of the European Union, to stay for a certain period in the Member State of their choice, and even establish themselves permanently in another Member State under certain conditions. The law of the European Union precludes from any form of discrimination between citizens of the European Union: national and non-national being European citizen should be treated equally and enjoy the same rights. Those rights by their nature do not touch the situation of a citizen in his own Member State.  In other words, every rights ensuing from the European citizenship were linked with the condition of transnational mobility, what materializes the Directive 2004/38, about the right of the citizens of the Union and their family members to move and reside freely within the territory of the European Union, which states in its preamble that ‘Union citizenship is the fundamental status of nationals of the Member States when they exercise their right of free movement’. With Mr. Ruiz Zambrano’s case we can ask ourselves if the Court operated a disconnection between European citizenship and the element of mobility since the children born in Belgium never moved outside the boundaries of their home State.
    If a step has in fact been taken by granting rights and protection to an European citizen even if the latter has not exercised his right of movement, the significance of this element has not been reduced. The application of the above mentioned directive was immediately set aside. The Court interpreted the regime set up by it in a literal and theological way stating that it results from article 3 paragraph 1 of the directive that a citizen of the European Union who never used his right of free circulation and who has always reside on the territory from which he is a national do not qualify for the benefit of the directive. The interpretation of the directive by the Court is strict and was reaffirmed in the McCarthy case (C-434/09 of 5 May 2011).
However, even if the children have never left their home State, is their situation purely internal? The answer to this question was fundamental for the Court as the judges precludes as a matter of principle the application of the provisions of the Treaty on the functioning of the European union to cases were all elements are strictly bounded to national issues of a given state.  Nevertheless, this rule knows two temperaments which regard the situation of the two children. Firstly, the only fact that a national has not used his right of circulation in the European Union does not have necessarily as a consequence that its situation is only internal. Secondly, article 20 TFUE 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. According to those dispositions, the children have the right to fully enjoy the prerogatives granted to nationals of a Member State. They won’t be able to enjoy them if they are not in the European territory and this implies that their parents stay with them. Furthermore, this also implies that the parents could take care of their children, hence the work permit. We can remark that the Court’s decision was entirely based upon the statutory right of residence of the children. There is not even the need to refer to the fundamental rights of the children and their right to family life.


    This reasoning fundamentally changes the conception of the European citizenship. In fact, the status of citizen of the European Union grants nationals of Member States with rights and protection, wherever they are within the Union, their home country included.  This assertion corresponds to a general approach of the Court to the status of citizen of the European Union. We can mention an important statement of the Court in the Grzelczyk case (C-184/99 of 20 September 2001) according to which “Union citizenship is destined to be the fundamental status of nationals of the Member States”. This statement was used so as to justify the equal treatment of national and non-nationals if they are all citizen of the European Union.  The European citizenship has to be apprehended by itself, even before the use of the prerogatives that results from the status.
    But is the interpretation of article 20 TFEU  going to be likely applied for all cases involving an European citizen who did not use his prerogative of free movement and whose close family member from a third country can’t obtain a stay permit in virtue of the national law? We can mention a more recent case, namely McCarthy case involving a woman with both English and Irish nationalities who tried to obtain a residence permit in England in order to regularize the residence of her Jamaican husband because the national law did not provide for such a possibility. The Directive was set aside for the same reasons than in the present case, and the Court stated upon the claim based on art 20 TFEU that the refusal of the British authorities to grant here a residence permit in Great Britain according to European law on the ground of her Irish nationality does not have as effect to force her to leave the territory of the European Union giving the fact that her British nationality gives her an unconditional right of residence on the territory of this State. In the light of Zambrano’s decision, this statement is quite surprising because it was clear that her demand had for the real purpose to obtain through her own permit of stay one to her husband, without which she would not be able to live with her husband on the territory of the European Union and will be forced to leave EU.
McCarthy decision leaves us with doubts concerning the impact of Zambrano’s decision. It makes us inclined to conclude that the present decision is more linked with the specificity of the material facts and to assert that the position of the Court over the use of this article is far from being certain.


    McCarthy and Zambrano’s decision have the same goal but did conclude to a different solution. We can raise several suppositions explaining that. Those two decisions reflect perfectly the migration issue. While making the decision and choosing arguments to assert its position, the Court had to carefully deal with the consequence such decision may have. From that point of view comparing McCarthy and Zambrano’s decision is interesting because on one hand we have to deal with children whom parents are nationals of a third country while in the second hand we are confronted to a marriage between a European citizen and a national of third country. Those families situation are typical, hence the importance of the decisions which could have an influence over the sort of hundreds of other families.
In the two cases, the claimants used their relative’s citizenship on purpose: in the first case, the parents relied on the nationality of their children trying through it to legalize their own residence while in the second case, the wife wanted to obtain a residence permit in order to regularize her husband own residence. In the first case, the respondent party tried to rely on the bad faith of the parents or “legal engineering” which means an abuse of the law: the parents would have given birth to their children on purpose. This argument was not heard by the Court which took the position of the claimants who affirmed that “the acquisition of Belgian nationality by his (Mr. Ruiz Zambrano) minor children was not the result of any steps taken by him, but rather of the application of the relevant Belgian legislation”, even if the parents had not taken any administrative steps in order to obtain the Colombian nationality for their children in accordance with Colombian law upon the deliverance of Colombian nationality.
The Court may have stated that way, against the will and observations of the Belgian government and the European Commission, because since the children are born Belgian nationals there is nothing one can do with that and it would be absurd and furthermore contradictory to the spirit of the European law to prevent them from growing on the Belgian soil until at least they get their majority, that is to say until they become adults with a Belgian nationality without any sense and culture of Europe, and without knowing the Belgian language. If the quite funny title of many newspapers and commentaries on this case was “Colombian parents of two Belgian children granted with a residence permit in Belgium”, an opposite decision of the Court would have certainly led to an even more funny title. The more severe approach of the Court in McCarthy has probably as a goal to exclude the creation of a new legal door for immigration via a marriage with a European citizen. The national authorities would have much more difficulties to oppose themselves to such a mechanism through the revision of their national law which is not the case for the attribution of nationality.  
Finally, an open door for a flow of immigration has been draw by the Court and the consequence of the decision will depends according the reaction of the Member States. Some whose legislation over national citizenship are similar to the Belgian’s one at the time of the facts may review their legislation. After Zambrano’s case the legislative body in Belgium immediately reacted by changing its provisions on the issue of child born in the Belgian territory but whose parents are foreigners and this reaction was certainly expected to a certain point by the Court. A second Zambrano’s case is from now on not legally possible in Belgium.

Morgan Briand