To promote and facilitate free movement in the European Union, Directive 2004/38 provides a gener... more To promote and facilitate free movement in the European Union, Directive 2004/38 provides a generous regime for family reunification for EU citizens who move to a Member State of which they are not a national. In Ruiz Zambrano, the European Court of Justice established a right to family reunification for citizens who reside in the Member States of which they are a national on the basis of art.20 TFEU if the refusal of such a right would deprive them of the genuine enjoyment of the substance of their rights as European citizens. A legal framework to determine the limits and conditions under which this right can be exercised is lacking, however. This article investigates these limits and conditions through an analysis of the case law concerning art.20 TFEU. To shape this inquiry, a comparison is made between family reunification rights awarded by Directive 2004/38 and those derived from art.20 TFEU. The last part of the analysis explores the role of the right to family life in the art...
SM is a case of the Court of Justice which concerns the question whether a child placed in kafala... more SM is a case of the Court of Justice which concerns the question whether a child placed in kafala care can be regarded as a family member under European law for the purpose of family reunification in the context of free movement rights under Directive 2004/38. Kafala is a child protection measure and the recognition of a kafala agreement is governed by the 1996 Hague Child Protection Convention.3 Algeria is not a Contracting Party to this Convention. Consequently, the recognition of kafala agreements from Algeria is dealt with by domestic private international law rules. Neither the 1996 Hague Child Protection Convention, nor the domestic private international law rules, however, deal with the consequences in terms of residence rights, which impact the right of EU citizens and their family members to move and reside freely within the EU. A tension thus exists between the interest of the State to determine which personal status it recognizes under private international law and the ri...
Equality is a fundamental principle of EU law but protection of the Member States’ competence to ... more Equality is a fundamental principle of EU law but protection of the Member States’ competence to regulate their own nationals’ legal position, anchored in the division of competences, may cause inequality among citizens. Reverse discrimination occurs when EU citizens who reside in their own Member State and are in a purely internal situation are subject to the law of this Member State, while EU citizens who fall within the scope of EU law through the use of free movement rights benefit from more lenient EU rules. Both equality among EU Member States and the division of competences are important principles of EU constitutionalism. Proposed remedies should, therefore, fit within the constitutional system of the EU. In its case-law, the Court makes EU citizenship rights more accessible and empowers EU citizens to change the legal regime that applies to them by moving across a border. This case-law opens up a possibility to circumvent national immigration law. This Article inquires whet...
To promote and facilitate free movement in the European Union, Directive 2004/38 provides a gener... more To promote and facilitate free movement in the European Union, Directive 2004/38 provides a generous regime for family reunification for EU citizens who move to a Member State of which they are not a national. In Ruiz Zambrano, the European Court of Justice established a right to family reunification for citizens who reside in the Member States of which they are a national on the basis of art.20 TFEU if the refusal of such a right would deprive them of the genuine enjoyment of the substance of their rights as European citizens. A legal framework to determine the limits and conditions under which this right can be exercised is lacking, however. This article investigates these limits and conditions through an analysis of the case law concerning art.20 TFEU. To shape this inquiry, a comparison is made between family reunification rights awarded by Directive 2004/38 and those derived from art.20 TFEU. The last part of the analysis explores the role of the right to family life in the art...
SM is a case of the Court of Justice which concerns the question whether a child placed in kafala... more SM is a case of the Court of Justice which concerns the question whether a child placed in kafala care can be regarded as a family member under European law for the purpose of family reunification in the context of free movement rights under Directive 2004/38. Kafala is a child protection measure and the recognition of a kafala agreement is governed by the 1996 Hague Child Protection Convention.3 Algeria is not a Contracting Party to this Convention. Consequently, the recognition of kafala agreements from Algeria is dealt with by domestic private international law rules. Neither the 1996 Hague Child Protection Convention, nor the domestic private international law rules, however, deal with the consequences in terms of residence rights, which impact the right of EU citizens and their family members to move and reside freely within the EU. A tension thus exists between the interest of the State to determine which personal status it recognizes under private international law and the ri...
Equality is a fundamental principle of EU law but protection of the Member States’ competence to ... more Equality is a fundamental principle of EU law but protection of the Member States’ competence to regulate their own nationals’ legal position, anchored in the division of competences, may cause inequality among citizens. Reverse discrimination occurs when EU citizens who reside in their own Member State and are in a purely internal situation are subject to the law of this Member State, while EU citizens who fall within the scope of EU law through the use of free movement rights benefit from more lenient EU rules. Both equality among EU Member States and the division of competences are important principles of EU constitutionalism. Proposed remedies should, therefore, fit within the constitutional system of the EU. In its case-law, the Court makes EU citizenship rights more accessible and empowers EU citizens to change the legal regime that applies to them by moving across a border. This case-law opens up a possibility to circumvent national immigration law. This Article inquires whet...
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