The concept of european citizenship in treatment of the court of the European Union

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Abstract work

THE CONCEPT OF THE EUROPEAN CITIZENSHIP IN TREATMENT OF THE COURT OF THE EUROPEAN UNION

Traditionally the citizenship is considered as the steady legal connection of the person with the concrete state, expressing in aggregate of legal rights and duties. However in the second half of the 20th centuries the given concept began to be applied for designation of the special status of the person got by virtue of occurrence of the state whose citizen it is, in the community or the union of states (the Commonwealth, the European Union, the Union of Byelorussia and Russia), united by the common history, culture, heritage and traditions. The given concept of the citizenship the same as traditional, assumes presence of the two key components - recognition of identity (belonging to community) and granting of certain rights [1].

The citizenship of the European Union has been founded by the Maastricht Treaty of 1992, however the term "the European citizenship" has begun to be used in the documents of institutional structures of the European Community rather earlier. In 1960th the concept "the European citizenship" was considered especially in social and economic aspect. Developers of the Treaty of establishment of the European economic community of 1957 aspired mainly that national immigration barriers did not interfere with inflow of economically active persons to where their professional skills and enterprise abilities are claimed. In the documents of the European Economic Community there has been specified that freedom of movement of citizens of states - members is not connected with traditional concepts of emigration and immigration, supposing change of residence in connection with impossibility to provide normal conditions of life in the state of origin. The choice by the given persons of the residence on the territory of Community was considered caused by cultural or professional preferences, instead of economic necessity. During this period freedom of movement was treated as personal freedom, one of aspects of the European citizenship. Since 1970th the wider treatment of the concept of the European citizenship was used as the forms of personal identification with the new European Community, not only solving especially economic tasks, but also providing observance of the real political and social rights.

The Maastricht Treaty of 1992 has brought in essential corrective amendments to regulations of the Treaty on establishment of the European Economic Community, and has added its text with Part II "The Citizenship of the Union". The establishment of the common citizenship for the citizens of states - members was proved with the necessity of strengthening of protection of their rights and interests (the preamble, article In the Treaty of the European Union). During development of the Maastricht Treaty there has been considered the opportunity of giving citizenship of EU to the representatives of the third countries. According to the offer submitted by Spain on February 21, 1991, the European Council was allocated with the right to take measures connected with distribution of action of regulations about the citizenship of the Union to the persons, not being citizens of the states - members (item 3 Article 1). However finally the number of the citizens has been limited by those persons who have the citizenship of the state - member (item 1 Article 17 of the Treaty about the European Community).

Thus, the citizenship of EU, being the specific status, nevertheless comes from the citizenship of the state - member. Accordingly, there is no special procedure of its getting or loss. Any changes of the citizenship of the state - member generate the certain consequences and for position of the person within the framework of EU. Thus, loss of citizenship of the country attracts loss of citizenship of the Union if the person simultaneously does not get citizenship of another state - member.

Bodies of EU consistently adhere to the principle of free definition by each state of the number of their citizens. According to the Declaration on citizenship of states - members from February 7, 1992, being the Supplement to the Maastricht Treaty, states - members can make declaration that should be considered as citizens of the corresponding country with referring to the purposes of the Community. The position of the Court of the European Communities is based on the fact that according to the international law each state - member of EU independently determines conditions of getting and loss of the citizenship, however it should take into account the positions of the law in the Union. It is specified in the documents, assumes respect of the new concept of the citizenship of EU, and of the fundamental human rights [2].

According to developed judiciary practice the state - the member of the Union cannot limit consequences of granting of citizenship to other state - member by means of introduction of additional conditions for recognition of this status in connection with maintenance of realization of the fundamental rights and freedom stipulated by the Treaty [3]. If the citizen of the state - member simultaneously has citizenship of the third country, the other state - the member of the Union cannot coordinate recognition of the citizen of EU to constant residing on territory of the first state [4]. Similarly refusal to citizens of other state - member in application of rights and freedoms, given right EU, is not supposed only on the ground that the citizenship of the Union has actually been got with the unique purpose - to provide to the citizen of the third country the right on constant residing [5].

It is necessary to take into account, that before introduction of the citizenship of the Union the Court specified inadmissibility of various manipulations with citizens of state - members depending on time and way of getting by them of the citizenship [6]. At the same time it is rather symptomatic, that within the framework of EU any attempts of establishment of minimal standards or realization of harmonization of the legislation of states - members in the sphere of citizenship have not been undertaken. The treaty about the European Community (Part II) contains the list of the rights of the citizen of the Union, including the right to free movement and residing on the territory of the state - members (item 1 Article18); the right to participate in vote and to be the candidate at municipal elections and at the elections to the European Parliament to the other state - member of the Union on whose territory he resides (Article 19); the right to use protection on the part of diplomatic or consulates of any state - member in the third country where he resides, in case of absence of representation of the country of the citizenship (Article 20). The stipulated in Article 21 right to application cannot be considered as the specific right of the citizen of EU as any physical or legal person residing or registered on the territory of the state - a member of the Union possesses it.

Opportunities of increase of the number of rights given to the citizens of the Union, and expansion of their contents are stipulated in the Treaty. On the basis of the unanimous decision adopted at the offer of the Commission and after consultations with the European Parliament, the Council is competent to adopt special positions with the purpose of strengthening and additions of the stipulated rights (item 2 Article 22).

In the documents there has been repeatedly emphasized, that the status of the citizen of EU assumes the limited set of rights [7] and has extremely passive character as does not provide obligations relating to the Union, and rights connected with participation in management of EU [8]. The originality of this status is that it is based on the concept of freedom of movement. The citizenship of the Union becomes effective only when the person moves to another country. In case of residing in the country of the state belonging the citizenship of EU does not play any essential role. The status of the citizen of the EU is admitted by the third countries, however, as a rule, generates the certain rights only on the territory of state - members of EU.

During the first years after coming into force of the Treaty of 1992 the Court of the European Communities did not practically apply to the concept of the citizenship of the Union, however subsequently it has got practical value, in particular in the context of realization of the right to freedom of movement and of the principle of interdiction of discrimination [9]. The modern decisions of the Court contain the wide treatment of the freedom of movement basing on constituent character and the direct action of Article 18 of the Treaty about the European Community and interpretation of regulations of the secondary right of the Union in view of the European citizenship. For the first time the Court has applied the concept of the European citizenship in the decision on the case Martinez-Sala from May 12, 1998 [10] in which there has been formulated the principle of equal manipulation with the citizens of other states - members residing legally on the territory of the state - member of Community including access to the social blessings [11].

In this case the Court of EU faced the question, whether the right of the Community interferes with the state - member to demand from the citizen of another state - member granting of the sanction of residing for reception social privileges. They meant the citizen of Spain, residing legally in Germany who was refused in getting birth grant in connection that on the event of application with the petition she did not have the sanction to residing, but there was a document confirming the fact of application for its prolongation.

First of all, the Court has admitted, that on the citizen of the state - member residing legally on the territory of another state - member, regulations of the Treaty about the European citizenship by virtue of ration personae are distributed (item 61). The given regulations coordinate the status of the citizen of the Union with the rights and duties stipulated in it, including right fixed in Article 6 [12] not be exposed to discrimination on the basis of the state belonging to the sphere of action of the Treaty of ration material [13] (item 62). Accordingly, the citizen of the Union residing legally on the territory of the state, can base on regulation of Article 6 of the Treaty in all situations valid by virtue ration material in the sphere of action of the right of the Community. In the opinion of the Court, as to the situations when the state - member detains granting or refuses in granting privileges on the ground that the applicant does not possess the document, in which delivery the authorities of the given state can refuse and which representation is not required from the citizens of the given state (item 63). In the given case the Court has come to the conclusion, that the right of the Communities interferes with the state - member to demand from the citizens of other states - members allowed to reside on its territory, representation of the sanction to residing for reception of the birth grant if the citizens of the given state has enough resided in the country (item 65).

In spite of the fact that many state - members did not share new approaches, the Court of the European Communities in the decision on the case Grzhelchuk from September 20, 2001 [14] has repeatedly confirmed the position according to which regulations of the Treaty about interdiction of discrimination on the basis of the state belonging and about the citizenship of the Union exclude the opportunity of introduction of additional conditions for granting the citizens of other state - members, legally residing on the territory of the state - member of the Community, of social privileges not connected with realization of insurance payments if the corresponding conditions are not stipulated for the citizens of the corresponding state (item 46). The court has specified the legal position formulated earlier, having specified, that in the number of situations in which the citizen of the Union residing legally on the territory of the state, can base on the regulations of item. 6 of the Treaty [15], enter the connected with realization of the fundamental freedoms guaranteed by the Treaty and the stipulated by Article 8 [16] rights to free movement [17] (items 33). In the given case the Court has for the first time offered own treatment of the citizenship of the Union as the fundamental status of the citizens of the state - members, allowing those who are in the similar situation, to enjoy identical legal regime, irrespective of their citizenship, except for specially stipulated cases [18] (item 31).

The interesting problem has been put in the case D' Hoop [19] in which the Court of EU has to specify, whether the right of the Community interferes with state - members to refuse the own citizen in reception of the grant for the persons who terminated secondary education and looking for the job for the first time, only on the ground that he has got the secondary education in the other state - member. The court has paid attention to the fact that the citizen of EU in all states - members of the Community should be given the same legal regime, as to the citizens of the corresponding state in the similar situation, and has recognized the position at which the citizen of the Union in the own state has less favorable legal regime, than that he could have if did not take advantage of opportunities given by the Treaty in the field of freedom of movement, not compatible with the right to free movement (item 30). According to the Court, such inequality contradicts the principles of the status of the citizen of the Union, that is the guarantee of identical legal regime at realization by the citizens of EU of freedom to movement (item 35)

In view of new approaches of the Court of EU there has arisen the question, whether it is possible to consider regulations of Article 18 of the Treaty about the European Community as directly working. According to the developed judiciary practice regulations are considered working if contain clear and precise obligations of states - members, have unconditional character and their application does not depend on adoption by the institutes of Community or states - members any measures within the framework of discretionary powers [20].

The court of the European Communities for the first time has formulated the position in the decision on the case Bombast , R from September 17, 2002 [21] in which there has been put the question, whether the citizen of the Union has the right to residing in another state - member by virtue of direct action of Article 18 of the Treaty if he has lost the corresponding right as the worker - migrant. The court has specified that in no even after coming into force of the regulations of the Treaty about citizenship of the Union each citizen enjoys the right to free movement and residing in another state - member by virtue of action of item 1 Article 18 of the Treaty (item 81). The given right is directly given to each citizen of the Union on the ground of clear and precise regulations of the Treaty [22] (item 84) that does not exclude the opportunity of establishment by the Treaty and regulations adopted in its execution of restrictions and conditions of its realization [23] (item 84). However their application is subjected to the judicial control. Accordingly, the presence of restrictions and conditions does not interfere with the action of regulations of Part 1 Article 18 the Treaty giving the individual rights subjected to realization at the national level and to protection in national courts (item 86).

The opportunity of introduction of restrictions and conditions is based on the fact that realization of the right of the citizens of the Union to residing on the territory of the Community can be caused by the legitimate interests of the states - members. However the given measures should act by the limits established by the right of Community, and according to the common principles of the law, in particular - the principle of harmony (item 91). In this connection the Court has come to the conclusion, that the citizen of the Union who has lost the right to residing as the worker - migrant, possesses the corresponding right as the citizen of the Union by virtue of the direct action of item 18 of the Treaty. It does not exclude establishment of restrictions and conditions, however competent bodies of the power and if it is necessary, national courts should provide, applications of the given conditions and restrictions according to common principles of the law, in particular - with the principle of harmony (item 94).

Subsequently the Court has confirmed the position in the case of Troiani [24] in which considered whether the citizens of other states - members having the time sanction to residing, not being economically active persons and not having sufficient means can apply the right to residing by virtue of the direct action of Article 18 of the Treaty and whether the state of stay can refuse them in granting the social privileges not connected with realization of insurance payments.

In the given case the Court of EU has formulated the regulations that the right of residing in another state - member is not conditioned by realization of economic activity, having recognized, that the citizen of the Union who not enjoying the right of residing in another state - member by virtue of Articles 39, 43 or 49 of the Treaty, can possess it as the citizen of the Union on the basis of the direct action item 1 Article 18 of the Treaty (item 46). The court has also paid attention to the fact that the opportunity of the states - members to cause residing of the citizen of the Union not relating to the number of economically active persons, by presence of sufficient means, does not mean that during the legal stay on the territory of the state - member the given person cannot take the certain benefit, grounding on the fundamental principle of equality in application, stipulated by item 12 of the Treaty (item 41). The citizens of the Union not relating to the number of economically active persons, can ground on regulations of the given article in connection with reception of social privileges if the stay legally in the state during the certain time and have the sanction to residing (item 43). Not representation of the corresponding privileges to the citizens of the Union requiring to the conditions established for the citizens of the state of stay, it should be treated as discrimination on the basis of the state belonging forbidden by Article 12 of the Treaty (item 44).

According to the documents the offered approach is based on the idea of financial solidarity of the citizens of states - members. According to the treatment of the Court of EU stay in the country of the citizens of other states - members should not lead to unreasonable burden for the public finance of the state. However the limited financial influence on the state is considered allowable as inevitable consequence of realization of the right to free movement as such financial burden in the certain degree redistributed among all states - members [25].

Subsequently the Court of the European Communities has developed the position that the right of the citizen of the Union to residing at another state - member should not be conditioned by realization of economic activity, in decision on the case of Zu and Chen from October 19, 2004 [26] in which there has been considered the question on the right of the juvenile child being the citizen of the Union to reside on the territory of the state - member not being the country of his citizenship, together with the parent - the citizen of the third country. The question was in refusal of authorities of Great Britain to give the sanction to long-term stay for a 4-years citizen of Ireland of the Chinese origin and her mother, the citizen of the Chinese People's Republic. The later has arrived in Great Britain as the time visitor for 6 month of pregnancy and gave birth to the child in Northern Ireland so that she became the citizen of Ireland. On the event of consideration of the case the mother and the child resided in the United Kingdom.

The governments of Ireland and the United Kingdom have declared the number of preliminary remarks. First of all, they paid attention to the fact that the girl cannot take advantage of regulations of the right of the Community, regulating the right to free movement and permanent residing as she has never left the territory of the state of stay. The court has rejected the given remark, having referred to the fact that the situation of the citizen of another state - member born in the state of stay and has not taken advantage of the right to free movement, (item 19) cannot be considered as the internal reason. The government of Ireland has declared that the juvenile child cannot enjoy advantages, guaranteed by the right of the Community. However the Court has confirmed the legal position that ability of the citizen of the state - member to have the rights guaranteed by the Treaty and the secondary right of the Community, and cannot personally carry them out and cannot be caused by coming of age of the interested person (item 20).

During consideration of the case in essence the Court of EU has paid attention to the necessity of wide interpretation of regulations in which the basic principle of the right to movement [27] (item 31) is embodied. The court has not supported the offered by Ireland and Great Britain restrictive treatment of regulations of the Instruction 90/364 about necessity of presence at the citizen of the state - member of the sufficient financial assets, excluding the opportunity of use of resources of the accompanying member of the family, having recognized, that it is not the necessary condition of achieving of the pursued purpose - protection of public finances of states - members and that the given treatment is the disproportionate intervention in realization of freedom of movement and the right to permanent residence (item 33). According to the Court, the Instruction specifies the necessity to have the corresponding means, but does not contain any conditions concerning the source of their origin [28] (item 30).

The court has come to the conclusion, that the child - of the citizen of the state - member who has medical insurance and who is under trusteeship of the parent of the citizen of the third country having sufficient means, has the right to residing in another state - member during the unlimited term (item 41). Thus the Court has paid attention to the fact that refusal to the parent in his right to residing in the state - member together with the child to whom by virtue of regulations of Article 18 and Instruction 90/364 is given the corresponding right, would lead to loss of the corresponding right as its realization inevitably assumes support of the juvenile child by the person under whose trusteeship he is. In the opinion of the Court, in such circumstances it should be authorized to the trustee to reside in the state - member during the whole term of stay of the child (item 45). According to the English documents, in the given case the Court of EU for the first time has recognized that priorities of the immigration policy of the state of stay can not be taken into account the view of realization of the rights of citizens of the Union [29].

In the case Oulein [30] in Court of European Communities there has been put the question whether in view of the right of the Community states - members can condition the right of the citizen of another state - member to residing in their territory granting of the passport or the identification card. Having specified, that the principle of freedom of movement of persons is one of the fundamental principles of the Community (item 16), and the right to freedom of movement is given directly by the Treaty or the regulations adopted in execution (item 17) , the Court has recognized representation by the state - member of the Union to the citizen of anther state - member of the sanction to stay as the measure directed to confirmation of the personal status in view of regulations of the right of the Community, instead of the measure generating the rights [31] (item 18). Representation of the valid passport or the identification card for the purpose of confirmation of the status of the citizen of EU is the administrative formality, whose unique purpose is to confirm, that by virtue of the status the person possesses the corresponding right (item 24). The state - member cannot refuse the person in the right to residing on the ground that the passport or identification card has not been represented if the person can give any other obvious proofs of the state belonging (item 25). Detention or deportation of the person is an extremely in connection that the legal formalities connected with monitoring of foreigners have not been observed, mention the essence of the right to residing and are obviously disproportionate infringements (item 40). In the opinion of the Court, inability to execute the legal formalities connected with admission, movement and residing of foreigners, does not have any danger for public policy and public safety (item 42).

At the same time the Court has noted, that granting directly by the Treaty of the right of residing on the territory of Community does not exclude the opportunity to demand observance of the certain administrative formalities for recognition of the right of the citizens of the Union by the state [32] (item 49). On condition of observance of restrictions stipulated in the law of the EU the state can undertake measures on deportation of the person if the citizen of the state - member cannot confirm observance of the corresponding formalities (item 55).

Granting to the citizens of the Union of the opportunity of realization of suffrages on the territory of other states - members is considered as much more serious obligation, than the right of free movement of persons in comparison within the framework of Community up to the introduction into action of the Maastricht treaty [33]. In 2006 the Court of the European Communities for the first time has considered cases on the question on interrelation of the citizenship of the Union and the right to participate in elections to the European Parliament.

In the case Amen and Savendger [34] the Court had to make the decision on interpretation of some articles of the Treaty having essential value for the sanction of dispute between the citizens of the Netherlands, residing in overseas territory Aruba, and the local executive agency of Hague, refused to bring the corresponding persons to the lists of voters. First of all, the Court of EU had to consider the question, whether the regulations of Part II of the Treaty about the citizenship of the Union are distributed to the citizens of the states - members residing in one of the overseas territories, mentioned in item 3 Article 299 of the Treaty [35]. The court has paid attention to the fact hat any person having the citizenship of the state - member, is the citizen of the Union (item 27) and can refer to the rights stipulated by Part II of the Treaty even in case of residing in one of the overseas territories (item 29).

The state Council of the Netherlands were interested in the fact whether regulations of item 2 Article 19 of the Treaty can be interpreted in view of Article 189 [36] and item 1 Article 190 [37] of the Treaty in the way that the citizen of the Union residing in the overseas territory, has the right to participate in elections to the European Parliament. In the opinion of the Court, the Treaty does not contain rules, precisely and unequivocally determining who has the right to take part in voting and to stand as the candidate at the corresponding elections (item 40), and at the modern level of development of the right of the Community the definition of the number of persons, having corresponding rights, refers to the competence of each of the states - members (item 45). The Court of EU has paid attention to the fact that according to Part IV of the Treaty general regulations of the given document are not distributed to the overseas countries and territories, except specially stipulated cases (item 46). Proceeding from regulations of Articles 189 and 190, states - members are not obliged to carry out elections to the European Parliament on the corresponding territory (item 47). According to the Court, regulations of Part Two of the Treaty cannot be considered as giving rights to the citizens of the Union. To participate in elections of the European Parliament not limited by any conditions (item 52). Accordingly, it is impossible to recognize basically unreasonable introduction of requirements, connected with residence, at definition of voters and candidates at elections to the European Parliament (item 55).

At consideration of the case in the national court the applicants paid attention to infringement of the principle of equality in application as the right to participation in elections has been given to the citizens of the Netherlands residing in the states not included in the Community, however the citizens residing in overseas territories have been deprived. In this connection the Court has formulated the common thesis that at the modern level of development of the law of the Community nothing interferes with the states - members to determine in conformity with the law of EU conditions of realization of suffrages at elections to the European Parliament proceeding from criteria of residing on that territory on which the corresponding elections are carried out, however the principle of equal application interferes with that the elected criterion resulted in inequality in application with the citizens being in comparable situations if such distinction is not objectively justified (item 61).

In the another case [38] Spain has applied in Court in connection with prospective evasion of Great Britain from execution of obligations taken on the Treaty and granting of the right to participate in elections to the citizens of the Commonwealth residing in Gibraltar. The position of Spain was based on the presumption of interrelation between citizenship of the Union and the suffrages stipulated in the Treaty. The court of EU has paid attention to the fact that citizenship of the Union is the fundamental status of the citizens of states - members, however it does not assume, that the rights stipulated in the Treaty are distributed only on the given persons (item 74). In regulations of item 2 Article 19 of the Treaty there is stipulated the rule about the equal reference with the citizens of the Union residing in the state - member at realization of suffrages. However it does not mean, that the state - member cannot give the given rights to the persons having close relations with this state, but not being its citizens (item 76). According to the legal position of the Court, distribution of suffrages at elections to the European Parliament to the persons not being citizens of the country, influences only the choice of representatives of the given state and does not influence on will of voters in other states - members (item 72).

In scientific researches discussions about nature of the European citizenship has not stopped whether the given legal design means belonging to the number of persons, being primary subjects of the European law and possessing the specific legal, political and social and economic status, or it means only investment of the citizens of states - members with some additional rights [39]. The analysis of activities of the Court of EU already allows to make choice for the benefit of the first position and to recognize, that the concept of citizenship of the Union has received legal registration.

state european economic citizen

The literature

1. См.: Soysal Y. Limits of Citizenship: Migrants and Postnational Membership in Europe. - Chicago, 2014. - P. 159.

2. См.: Rosas A. Nationality and Citizenship in a changing European and world order// Law under Exogenous Influence. - Turku, 2014. - P. 49.

3. Court of Justice of the European Communities. Case C-369/90 Micheletti and Others v. Delegaciуn del Gobierno en Cantabria. Judgment of 7 July 1992. Para. 10; Case C-148/02 Garcia Avello v Йtat belge. Judgment of 2 October 2003. Para. 28; Case C-200/02 Zhu, Chen v. Secretary of State for the Home Department. Judgment of 19 October 2004. Para. 39. Решения Суда цит. по: http://curia.europe.eu.

4. CJEC. Case C-369/90 Micheletti and Others v. Delegaciуn del Gobierno en Cantabria. Judgment of 7 July 1992. Para. 11.

5. CJEC. Case C-200/02 Zhu, Chen v. Secretary of State for the Home Department. Judgment of 19 October 2004. Para. 40.

6. CJEC. Case C-136/78 Ministиre Public v. Auer. Judgment of 7 February 1979. Para. 28.

7. См.: Хартли Т.К. Основы права Европейского сообщества. - М., 1998. - С.8.

8. См.: Федерализм: теория, институты, отношения (сравнительно-правовое исследование/ отв. ред. Б.Н. Топорнин. М., 2001. С. 361; Rosenfeld M. Rapporteur's Report on the Citizenship and Social Diversity Theme. International Conference on Federalism. Mont-Tremblant, October 1999// www.forumfed.org.

9. Как отмечается в литературе, в историческое перспективе право на равное обращение независимо от гражданства являлось наиболее важным из прав, предусмотренных материальным правом Сообщества. В трактовке Суда ЕС содержание ст. 12 Договора претерпело существенную модификацию: положения общего и программного характера превратились в самостоятельный источник прав и обязанностей, выходящих за рамки отношений, охватываемых понятием «внутренний рынок», а действие статьи было распространено на широкий круг ситуаций. См.: Tridimas T. The General Principles of EC Law. - Oxford, 1999. - P. 77, 87.

10. CJEC. Case C-85/96 Martinez Sala v. Freistaat Bayern. Judgment of 12 May 1998.

11. Впоследствии данная правовая позиция была подтверждена в следующих решениях: CJEC. Case C-184/99 Grzelczuk v. Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve. Judgment of 20 September 2001. Para. 46; Case C-456/02 Trojani v. Centre public d'aide sociale de Bruxelles (CPAS). Judgment of 7 September 2004. Para. 46; Case C-209/03 The Queen (on the application of Bidar) v. London Borough of Ealing, Secretary of State for Education and Skills. Judgment of 15 March 2005. Para. 63.

12. Ст. 12 Договора о ЕС в ред. Амстердамского договора.

13. По мнению Суда, принцип равенства в обращении запрещает не только явную дискриминацию, основанную на гражданстве, но и все ее скрытые формы, которые, несмотря на применение другого отличительного признака, фактически приводят к тому же результату. См.: CJEC. Case C-209/03 The Queen (on the application of Bidar) v. London Borough of Ealing, Secretary of State for Education and Skills. Judgment of 15 March 2005. Para. 51.

14. CJEC. Case C-184/99 Grzelczuk v. Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve. Judgment of 20 September 2011.

15. Ст. 12 Договора о ЕС в ред. Амстердамского договора.

16. Ст. 18 Договора о ЕС в ред. Амстердамского договора.

17. Впоследствии в деле Гарсиа Авелло свобода передвижения была указана в числе основных свобод, гарантированных Договором. См. : CJEC. Case C-148/02 Garcia Avello v Йtat belge. Judgment of 2 October 2003. Para. 24.

18. Данная трактовка была воспроизведена в ряде решений. См.: CJEC. Case C-224/98 D'Hoop v Office national de l'emploi. Judgment of 11 July 2002. Para. 29; Case C-148/02 Garcia Avello v Йtat belge. Judgment of 2 October 2003. Para. 23.

19. CJEC. Case C-224/98 D'Hoop v Office national de l'emploi. Judgment of 11 July 2002.

20. См. подробнее: Bulvinaite I. Union Citizenship and its Role in the Free Movement of Persons Regimes //http://webjcli.ncl.ac.uk/ 2003/issue5/bulvinaite5.html.

21. CJEC. Case C-413/99 Baumbast, R v. Secretary of State for the Home Department. Judgment of 17 September 2002.

22. Предоставляя индивидуальные права, ст. 18 имплицитно возлагает на государства-члены обязательство обеспечить свободу передвижения и проживания на территории Сообщества.

23. В частности, в силу этого продолжают действовать ограничения свободы передвижения по мотивам публичного порядка, общественной безопасности и здравоохранения для трудящихся (п. 3 ст. 39 Договора о Европейском Сообществе), а также для лиц, занимающихся самостоятельной экономической деятельностью и предоставлением услуг на территории других государств-членов (п. 1 ст. 46, ст. 50).

24. CJEC. Case C-456/02 Trojani v. Centre public d'aide sociale de Bruxelles (CPAS). Judgment of 7 September 2004.

25. См.: Kokott J. EU citizenship - citoyens sans frontiers? // www.dur.ac.uk/deli/annuallecture/pastlectures.

26. CJEC. Case C-200/02 Zhu, Chen v. Secretary of State for the Home Department. Judgment of 19 October 2004.

27. Данная правовая позиция была воспроизведена в ряде решений Суда. См.: CJEC. Case C-215/03 Oulane v. Minister voor Vreemdelingenzaken en Integratie. Judgment of 17 February 2005. Para. 16; Case C-408/03 Commission of the European Communities v. Kingdom of Belgium. Judgment of 23 March 2006. Para. 40.

28. Впоследствии Суд признал, что гражданин Союза может рассчитывать также на средства своего партнера, проживающего в принимающем государстве. См.: CJEC. Case C-408/03 Commission of the European Communities v. Kingdom of Belgium. Judgment of 23 March 2006. Para. 46.

29. См.: Sawyer C. Civic Europeanus Sum: the citizenship rights of the children of foreign parents // Public Law. 2005. Autumn. P. 477, 484.

30. CJEC. Case C-215/03 Oulane v. Minister voor Vreemdelingenzaken en Integratie. Judgment of 17 February 2005.

31. Впоследствии Суд подтвердил эту правовую позицию. См.: CJEC. Case C-408/03 Commission of the European Communities v. Kingdom of Belgium. Judgment of 23 March 2006. Para. 63.

32. В другом деле Суд ЕС обосновывал необходимость предоставления гражданами Союза доказательств соблюдения предусмотренных в праве ЕС условий тем, что право на постоянное проживание не носит безусловный характер. См.: CJEC. Case C-408/03 Commission of the European Communities v. Kingdom of Belgium. Judgment of 23 March 2006. Para. 64.

33. Арах М. Европейский Союз: видение политического объединения. - М., 1998. - С. 370.

34. CJEC. Case C-300/04 Eman, Sevinger v. College van burgemeester en wethouders van Den Haag. Judgment of 12 September 2006.

35. Заморские страны и территории - расположенные вне Европы страны и территории, имеющие особые отношения с государствами-членами (Бельгия, Дания, Франция, Италия, Нидерланды, Соединенное Королевство). В соответствии с договоренностями между государствами-членами эти страны и территории поддерживают особые ассоциированные отношения с Сообществом.

36. Согласно данной статье, Европейский Парламент, состоящий из представителей народов государств, объединившихся в Сообщество, осуществляет полномочия, которыми он наделен по Договору.

37. В соответствии с этим пунктом представители народов государств, объединившихся в Сообщество, избираются в Европейский Парламент прямым всеобщим голосованием.

38. CJEC. Case C-145/04 Kingdom of Spain v. United Kingdom of Great Britain and Northern Ireland. Judgment of 12 September 2006.

39. Shaw J. The Interpretation of European Union Citizenship// The Modern Law Review. 2008. Vol. 61. No. 3. P. 295.

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