REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS UNDER ARTICLE 25 TFEU On progress towards effective EU citizenship 2016-2020
Date: 2020-12-15
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: EU national, European citizenship, European election, anti-discriminatory measure, diplomatic protection, equal treatment, free movement of persons, petition, residence permit, right to vote

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 15.12.2020  COM(2020) 731 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS UNDER ARTICLE 25 TFEU       On progress towards effective EU citizenship 2016-2020  
 
 
1.  INTRODUCTION 

Article  25  of  the  Treaty  on  the  Functioning  of  the  European  Union  (TFEU)  requires  the 
Commission to report to the European Parliament, the Council and the Economic and Social 
Committee  every  3  years  on  how  the  provisions  (in  Part  Two  of  the  Treaty)  on  non-
discrimination and citizenship of the EU are applied1. This ninth report presented pursuant to 
Article 25 TFEU covers the period from 1 July 2016 to 30 June 2020. 

This  report  reviews  the  provisions  in  Part  II  TFEU  regarding:  i)  EU  citizenship,  ii)  non-
discrimination; iii) free movement and residence in the territory of the Member States; iv) the 
right to vote and stand as a candidate at municipal and European Parliament elections in the 
Member  State  of  residence;  v) the  right  to  consular  protection;  vi)  the  right  to  petition  the 
European  Parliament;  and  vii) the  right  to  take  complaints  to  the  Ombudsman.  This  report 
accompanies the EU citizenship report – ‘Empowering citizens and protecting their rights in 
challenging times’. 

2.  NON-DISCRIMINATION ON GROUNDS OF NATIONALITY (ARTICLE 18 

TFEU) 

Article  18  TFEU2  prohibits  discrimination  on  grounds  of  nationality  within  the  scope  of 
application of the Treaties3. 

During  the  period  covered  by  this  report,  the  Court  of  Justice  of  the  European  Union  (the 
Court)  issued  four  key  judgments  relating  to  the  non-discrimination  of  EU  citizens  on 
grounds of nationality, in the area of extradition and sport. 

2.1.  Non-discrimination  on  grounds  of  nationality  and  extradition  of  mobile  EU 
citizens 

The three Court rulings on non-discrimination on the basis of nationality and extradition to a 
third  country  of  EU  citizens  residing  in  a  Member  State  other  than  the  Member  State  of 
nationality, were Petruhhin4, Pisciotti5, and Raugevicius6. In each of these cases, the issue at 
hand  was  the  interaction  between  national  rules  precluding  the  extradition  of  the  host 
Member State’s own nationals and the EU principle of non-discrimination of EU citizens on 
grounds of nationality (Article 18 TFEU). 

Both  Petruhhin  and  Pisciotti  concerned  the  extradition  of  mobile  EU  citizens  for  criminal 
prosecution,  while,  Raugevicius  related  to  the  extradition  of  mobile  EU  citizens  in  order  to 
enforce a criminal sentence handed down by a court in a non-EU country. 

1  The  annual  reports  on  the  application  of  the  Charter  of  Fundamental  Rights  of  the  European  Union  include 
updates on progress regarding Union citizenship rights. 
2 See also Article 21(2) of the Charter of Fundamental Rights. 
3 This provision is without prejudice to special provisions in the Treaties. 
4 Case C-182/15 Aleksei Petruhhin v Latvijas Republikas Generālprokuratūra. 
5 Case C-191/16 Romano Pisciotti v Bundesrepublik Deutschland. 
6 Case C-247/17 Denis Raugevicius. 

 
 
                                                           
The Court’s main findings in these cases can be summarised as follows. First, the Court ruled 
that  while  rules  on  extradition  fall  within  the  Member  State’s  competence  where  no 
international agreement is in place between the EU and a third country, Member States must 
exercise their national rules on extradition with due regard to EU law in situations covered by 
EU law7. This is the case, according to the Court, where an EU citizen has made use of their 
free  movement  rights  (pursuant  to  Article  21  TFEU)  and  the  national  rules  on  extradition 
could lead to EU citizens being discriminated against on the basis of nationality (per Article 
18 TFEU)8. 

Second, the Court considered whether (inter)national rules of Member States precluding only 
the non-extradition of their own nationals would be incompatible with the non-discrimination 
principle enshrined in Article 18 TFEU. The Court notes that such extradition rules give rise 
to a difference in treatment depending on an EU citizen’s nationality, and thus to a restriction 
of freedom of movement9. In line with the Court’s case-law, such a restriction could only be 
justified ‘where it is based on objective considerations and is proportionate to the legitimate 
objective  of  the  national  provisions’10.  While  the  Court  recognises  that  the  objective(s)  of 
‘international criminal cooperation’ and preventing the risk of impunity are legitimate,11 these 
national provisions must also meet the proportionality requirement. 

In this respect, the Court considered in Petruhhin that alternative measures less prejudicial to 
the exercise of fundamental freedoms must be considered by the Member State considering 
acquiescing  to  an  extradition  request12.  On  the  basis  of  the  EU  principle  of  sincere 
cooperation  (Article  4(3)  TEU)  and  secondary  EU  law  in  the  area  of  criminal  cooperation 
(more specifically, the European Arrest Warrant), the Court concluded the following. Before 
extraditing a mobile EU citizen, Member States must exchange information with the Member 
State of nationality, so as to afford the latter Member State the opportunity ‘in so far as they 
have  [extraterritorial]  jurisdiction  pursuant  to  national  law’  to  prosecute  the  mobile  EU 
citizen  for  criminal  offences  committed  abroad13.  In  Pisciotti,  the  Court  clarified,  however, 
that if the Member State of nationality had been adequately informed, yet still decides not to 
prosecute its own national for extraterritorially committed criminal offences, EU law would 
not preclude their extradition by the ‘host’ Member State to a third country14. 

Third,  the  tension  between  the  objective  of  preventing  the  risk  of  impunity  for  criminal 
offences committed and restrictions of a fundamental freedom, and the corresponding need to 
examine alternative measures, also apply, according to the Court in Raugevicius, in respect of 

7 See Case C-182/15 Petruhhin, para. 26-27. 
8  Case  C-182/15  Petruhhin,  para.  29-31;  Case  C-191/16  Pisciotti,  para.  31-35,  37-42;  Case  C-247/17 
Raugevicius, para. 27-28. 
9 Case C-182/15 Petruhhin, para. 32-33; Case C-191/16 Pisciotti, para. 43-45; Case C-247/17 Raugevicius, para. 
30. 
10 Case C-182/15 Petruhhin, para. 34, 38; Case C-191/16 Pisciotti, para. 46; Case C-247/17 Raugevicius, para. 
31. 
11 Cf. Case C-182/15 Petruhhin, para. 35-37. 
12 See Case C-182/15 Petruhhin, para. 38-41. 
13 Case C-182/15 Petruhhin, para. 42-48. 
14 See Case C-191/16 Pisciotti, para. 50-56. 

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extradition (requests) in order to enforce a (foreign) criminal sentence15. While the ne bis in 
idem principle would preclude the Member State of nationality from launching prosecutions 
against  the  mobile  EU  citizen  concerned,  international  instruments  and  (some)  Member 
States’ legislation provide alternative measures  (e.g. serving criminal  sentences imposed by 
foreign courts in the Member State of nationality)16. According to the Court, such alternative 
arrangements  could  therefore  be  considered  applicable  to  the  mobile  EU  citizen  concerned 
(notwithstanding restrictions on the basis of nationality)17. 

2.2. Non-discrimination on the basis of nationality in amateur sport 

The other important ruling of the Court within the period of this report, TopFit18, considered 
the issue of non-discrimination of (mobile) EU citizens on grounds of nationality in the area 
of amateur sport19. 

Mr Biffi is an Italian national living in Germany, and he competes in amateur running races 
in the senior category. He is a member of TopFit, a sports association affiliated to the German 
Athletics  Association  (Deutscher  Leichtathletikverband,  DLV).  In  2015,  a  change  in  the 
DLV’s  rules  led  to  mobile  EU  citizens  in  Germany,  such  as  Mr  Biffi,  being  denied  the 
opportunity to be selected to participate in national championships or only being allowed to 
participate in those championships ‘outside classifications’ or ‘without classifications’. This 
prevented  them  from  progressing  to  the  final  and  being  eligible  to  be  awarded  the  title  of 
national  champion,  despite  meeting  all  other  conditions  for  participating  in  athletics 
championships.  

The  Court  relied  on  four  observations  in  responding  to  the  preliminary  reference.  First,  the 
Court,  referring  to  its  recent  judgment  in  Raugevicius,  noted  that  ‘the  situation  of  an  EU 
citizen who has made use of this right to move freely comes within the scope of Article 18 
TFEU’,  including  in  the  area  of  amateur  sport20.  Second,  the  fundamental  freedom  of 
movement  of  persons,  as  expressed  in  Article  21  TFEU,  intended,  among  other  things,  to 
promote  ‘the  gradual  integration  of  the  EU  citizen  concerned  in  the  society  of  the  host 
Member  State’,  and  participation  in  amateur  sport  is  an  important  part  of  this  inclusion 
process21.  Third,  in  reference  to  prior  EU  case-law,  the  Court  noted  that  rules  of  national 
(sports) associations are equally required to observe EU law, including the Treaties22. Fourth, 
the applicability of Articles 18 and 21 TFEU to rules of national sports associations implies, 
among  other  things,  that  rules  of  national  sports  associations,  which  may  constitute  a 

15 See Case C-247/17 Raugevicius, para. 32-40. 
16 Case C-247/17 Raugevicius, para. 36-38. 
17 Case C-247/17 Raugevicius, para. 41-48. 
18  CJEU  13  June  2019,  Case  C-22/18  TopFit  e.V.  and  Daniele  Biffi  v  Deutscher  Leichtathletikverband  e.V., 
ECLI:EU:C:2019:497. 
19 Discrimination based on nationality in professional sport falls under Article 45 TFEU. 
20 Case C-22/18 TopFit, para. 29-30. 
21 Case C-22/18 TopFit, para. 31-34. 
22 Case C-22/18 TopFit, para. 36-40. 

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restriction of a fundamental freedom, are incompatible with EU law, unless they are ‘justified 
by objective considerations which are proportionate to the legitimate objective pursued’23. 

3.  COMBATING DISCRIMINATION ON THE BASIS OF SEX, RACIAL OR 

ETHNIC ORIGIN, RELIGION OR BELIEF, DISABILITY, AGE OR SEXUAL 
ORIENTATION (ARTICLE 19 TFEU) 
3.1. Introduction 

Article 19 TFEU stipulates that the EU may take appropriate action to combat discrimination 
based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation24. 

In March 2019, the European Commission published the annual report on equality between 
women  and  men,  concluding  that  even  in  the  EU,  where  unequivocal  gender  equality  is 
secured by law, equality between women and men is still not a tangible reality25. 

Following  the  publication  of  the  list  of  actions  to  advance  LGBTI  equality  in  December 
2015,  which  included  activities  envisaged  by  the  Commission  in  different  policy  areas  in 
2016-201926, in February 2017 the Commission published the first annual report on the list of 
actions to advance LGBTI equality, covering 2016. The second and third report came out in 
2018  and  2019  respectively,  and  in  May  2020  the  final  report  was  published,  covering  the 
measures taken during 201927.  

In November 2018, the Commission produced conclusion papers based on the discussions of 
the  focus  sessions  on  antigypsyism  and  afrophobia  held  by  the  EU  High  Level  Group  on 
combating  racism,  xenophobia  and  other  forms  of  intolerance  at  its  fourth  meeting  on 
5 December 201728. It also produced a Guidance note on the practical application of Council 
Framework  Decision  2008/913/JHA  on  combating  certain  forms  and  expressions  of  racism 
and xenophobia by means of criminal law29. 

In December 2018, the European Commission published an evaluation of the EU Framework 
for  national  Roma  integration  strategies  up  to  202030.  The  evaluation  assessed  the  EU 
framework  and  how  it  mobilised  other  European  policy,  legal  and  funding  instruments  for 
Roma  inclusion.  The  Commission  also  published  a  report  in  September  2019  focusing  on 
national implementation of Roma inclusion measures31. 

https://ec.europa.eu/info/policies/justice-and-fundamental-rights/combatting-discrimination/lesbian-gay-bi-

23 Case C-22/18 TopFit, para. 42-48. 
24 See also Article 21(1) of the Charter of Fundamental Rights. 
25https://ec.europa.eu/info/sites/info/files/aid_development_cooperation_fundamental_rights/annual_report_ge_
2019_en_1.pdf  
26 
trans-and-intersex-equality/list-actions-advance-lgbti-equality_en#documents  
27 https://ec.europa.eu/info/sites/info/files/report_list_of_actions_2015-19.pdf  
28  Report  on  antigypsyism:  https://ec.europa.eu/newsroom/just/document.cfm?doc_id=55652;  Report  on 
afrophobia: https://ec.europa.eu/newsroom/just/document.cfm?doc_id=55651  
29 https://ec.europa.eu/newsroom/just/document.cfm?doc_id=55607  
30 https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1544112037077&uri=CELEX:52018DC0785 
31 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52019DC0406&from=FR 

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The  Commission  launched  in  May  2019  and  is  running  until  December  2020  the 
#EuvsDiscrimination campaign32 targeting  workplace discrimination on the grounds of age, 
sex,  disability,  ethnic  or  racial  origin,  religion  or  belief,  or  sexual  orientation,  which  is 
banned by the EU anti-discrimination legislation33. 

3.2. Case-law developments 

As  regards  the  freedom  of  religion,  the  Court’s  judgment  of  22 January 2019  in  Cresco 
Investigation  (C-193  /17,  EU:C:2019:43)  should  be  noted.  The  Court  found  that  national 
legislation, under which, first, Good Friday is a public holiday only for employees who are 
members  of  certain  Christian  churches,  and  second,  only  those  employees  are  entitled,  if 
required  to  work  on  that  public  holiday,  to  additional  payment,  constitutes  direct 
discrimination on grounds of religion. 

4.  CITIZENSHIP OF THE UNION (ARTICLE 20(1) TFEU) 

4.1. Introduction 

Article 20 TFEU provides that any person who is a national of an EU Member State is also a 
citizen  of  the  Union.  Union  citizenship  is  additional  to  and  does  not  replace  national 
citizenship. While it is for each Member State to lay down conditions for the acquisition and 
loss  of  nationality,  with  due  regard  to  EU  law34,  granting  Member  State  citizenship  also 
entails  granting  EU  citizenship  and  the  rights  that  go  with  it,  which  can  be  exercised 
throughout the EU. Therefore, the Commission considers that Member States should use their 
prerogatives of awarding citizenship in a spirit of sincere cooperation, as the Treaties require. 

The European Commission undertook a number of actions in respect  of the acquisition and 
loss of EU citizenship, more specifically on the issue of ‘investor citizenship’ schemes in the 
EU, granting citizenship rights to non-EU nationals in return for investment.  

In  January  2019,  the  Commission  issued  a  report  on  ‘Investor  Citizenship  and  Residence 
Schemes in the European Union’35, analysing existing schemes for obtaining the nationality 
of and residence in EU Member States on grounds of investment, and highlighting a number 
of concerns and risks that such schemes present for the EU.  

Following this report, the Commission set up a ‘Group of Member State Experts on Investor 
Citizenship  and  Residence  Schemes’,  to  i)  look  at  the  specific  risks  arising  from  investor 
citizenship  schemes;  ii)  develop  a  common  set  of  security  checks  by  the  end  of  2019;  and 

with 

32 https://ec.europa.eu/social/main.jsp?catId=1437&langId=en  
33 One strand of this campaign focuses especially on reasonable accommodation for persons with disabilities, in 
line 
https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=celex:32000L0078.  A  guide  of  best  practice  on  reasonable  accommodation  in  the 
workplace 
in  September  2020  https://ec.europa.eu/social/main.jsp?catId=738& 
langId=en&pubId=8341&furtherPubs=yes 
34 Case C-135/08 Rottmann. 
35 COM(2019) 12 final https://ec.europa.eu/info/sites/info/files/com_2019_12_final_report.pdf 

  has  been  published 

2000/78/EC 

Directive 

Council 

5 

 
 
 
                                                           
iii) address the aspects of transparency and good governance regarding the implementation of 
both investor citizenship and residence schemes36. 

During  the  reporting  period,  the  Commission  dealt  with  98  complaints,  almost  1 400 
letters/individual queries, 48 questions and 10 petitions from the European Parliament in the 
area  of  EU  citizenship  and  rights  attached  thereto,  mainly  related  to  information  on  the 
implications of Brexit for EU citizenship rights. 

4.2. Case-law developments 

From 2016 to 2019, the Court handled 29 cases concerning EU citizenship, including cases 
on discrimination on grounds of nationality, loss of EU citizenship due to loss of nationality 
of  a  Member  State  or  derived  rights  of  residence  for  third-country  family  members  of  EU 
citizens37.  

In Tjebbes and Others38, the Court confirmed the legitimacy, in general, of Member States’ 
aim to ensure that a genuine link between the State and its nationals exists. This legitimacy, 
however, does not absolve Member States from ensuring that (in individual cases) the ex lege 
loss of Member States’ nationality has due regard to the principle of proportionality, where 
the loss of nationality would entail the loss of EU citizenship and the rights attached thereto39. 

Accordingly,  the  Court  considered  that  the  principle  of  proportionality  requires  Member 
States’ legislation regulating loss of nationality to provide for the possibility of ‘an individual 
examination  of  the  consequences  of  that  loss  for  [the  person  concerned  and  for  that  of  the 
members  of  his  or  her  family]  from  the  point  of  view  of  EU  law’40.  Furthermore,  where, 
following  such  examination,  the  loss  of  EU  citizenship  (as  a  consequence  of  the  automatic 
loss of a Member State’s nationality) is found to be incompatible with EU law, it should be 
possible to recover nationality ex tunc41. 

5.  RIGHT  TO  MOVE  AND  RESIDE  FREELY  IN  THE  TERRITORY  OF  THE 

MEMBER STATES (ARTICLES 20(2) AND 21 TFEU) 
5.1. Introduction 

Under Articles 20(2)(a) and 21 TFEU, Union citizens are entitled to move and reside freely in 
the territory of the Member States, subject to the limitations and conditions laid down in the 
Treaties and measures adopted to give them effect42.  

36 See https://ec.europa.eu/info/investor-citizenship-schemes_en 
37 Court of Justice of the European Union (2020). Annual Report 2019: Judicial activity. Luxembourg, February 
2020, page 161.  https://curia.europa.eu/jcms/upload/docs/application/pdf/2020-05/qd-ap-20-001-en-n.pdf   
38 Case C-221/17 Tjebbes and Others 
39 C-221/17 Tjebbes and Others, para. 40. 
40 C-221/17 Tjebbes and Others, para. 41. 
41 C-221/17 Tjebbes and Others, para. 42. 
42 See in particular, Directive 2004/38/EC on the right of citizens of the EU 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, 

6 

 
 
 
                                                           
 
A  majority  of  citizens  support  this  right43  and  view  it  as  one  of  the  main  benefits  of  EU 
membership.44 In addition, more than half of EU citizens say they have benefited from there 
being fewer or no border controls when travelling abroad45. Most Europeans say that the free 
movement  of  people,  goods  and  services  within  the  European  Union  is  the  most  positive 
outcome of the EU46. In a survey conducted in spring 2020, 83% of EU citizens agreed that 
free  movement  of  EU  citizens  within  the  EU  brought  overall  benefits  to  their  country’s 
economy47. 

In  2018,  more  than  16  million  EU  citizens  were  living  or  working  in  an  EU  country  other 
than their country of citizenship. A far larger number of EU citizens made temporary visits to 
other EU countries for holidays, visits to friends and family and for business.   

Mobile EU citizens and their family members can find information on their right to reside in 
another  Member  States  on  the  Your  Europe  portal48;  Your  Europe  also  provides  access  to 
country-specific information, fulfilling its role as the EU’s ‘single digital gateway’49. 

In  the  reporting  period,  the  Commission  dealt  with  950  complaints  from  citizens,  6 128 
questions and 140 petitions from the European Parliament as regards exercising the right to 
free movement. Many concerned the right of entry and residence of non-EU family members 
of EU citizens (conditions  for issuing visas and  residence cards, additional formalities) and 
the conditions under which EU citizens can exercise their right to free movement. 

Mobile EU citizens who are negatively affected by incorrect application of EU law by public 
authorities  can  get  help  from  SOLVIT50,  which  was  established  to  react  quickly  and  find 
solutions at national level. From 2016 to 2018, SOLVIT handled around 1 930 cases on the 
free movement of persons51. 

Citizens  can  also  ask  questions  on  their  personal  EU  rights  to  the  Your  Europe  Advice 
service52  which  provides  free  of  charge  tailor-made  legal  advice.  Your  Europe  Advice  is 
managed by the Commission and operates through its external contractor European Citizens 
Action  Service  (ECAS).  Between  2016  and  2020  Your  Europe  Advice  received  more  than 
42.000 enquiries on the subjects of entry procedures and residence rights and more than 2.300 
enquiries on political and judicial rights. 

90/364/EEC, 90/365/EEC and 93/96/EEC, OJ L 158, 30.4.2004, p. 77 (hereinafter also referred to as the “Free 
Movement Directive”) 
43 81% of respondents of the Special Eurobarometer 486, 2019 
44 60% of respondents of the Standard Eurobarometer 91, spring 2019. 
45 56% of respondents of the Standard Eurobarometer 91, spring 2019. 
46 60% of respondents of the Special Eurobarometer 486, 2019 
47 Flash Eurobarometer 485, spring 2020. 
48 https://europa.eu/youreurope/citizens/residence/ 
49  Regulation  (EU)  2018/1724  establishing  a  single  digital  gateway  to  provide  access  to  information,  to 
procedures and to assistance and problem-solving services 
50 SOLVIT is a service provided by national administrations throughout the EU and the EEA. National SOLVIT 
centres  take  on  board  citizens’  complaints  and  cooperate  via  an  online  database  to  help  them  solve  their 
problems out of court and free of charge. 
51 https://ec.europa.eu/internal_market/scoreboard/performance_by_governance_tool/solvit/index_en.htm.  
52 https://europa.eu/youreurope/advice/ 

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EU  citizens  can  furthermore  address  the  Commission’s  Europe  Direct  Centre  (EDCC)53, 
which  provides  general  information  on  the  EU  and  advice  on  EU  citizens’  rights.  Between 
2016  and  2019,  the  EDCC  received  a  total  of  5 251  enquiries  on  the  free  movement  of 
persons. 

Moreover, mobile EU workers may request the assistance of the national bodies established 
in accordance with Directive 2014/5454. 

With  the  aim  to  contribute  to  free  movement  of  persons  with  disabilities,  the  Commission 
implemented a pilot project on the EU Disability Card in 2016-201855.  

The  Commission  has  developed  an  e-learning  tool  on  the  right  to  free  movement,  which  is 
intended  for  local  administrations  in  order  to  deepen  their  knowledge  of  Directive  2004/38 
(the Free Movement Directive) and the rights stemming of it. The e-learning tool is available 
in  23  languages  and  comprises  a  self-evaluation  assessment  test,  and  an  online  course  for 
beginners and for advanced users. 

5.2. Case-law developments 

5.2.1.  CJEU case-law developments on free movement rights and (derived) residence 

rights 

The  Court  has  delivered  multiple  judgments  in  relation  to  Article  21  TFEU  (including  its 
implementation  through  the  Free  Movement  Directive),  as  well  as  residence  rights  derived 
from EU citizenship based on of Article 20 TFEU56. 

The first set of cases concerns the question which EU citizens and family members can rely 
on Directive 2004/38 for residence rights.  

In  Lounes57,  the  Court  held  that  an  EU  citizen  who  has  made  use  of  their  free  movement 
rights to reside in another EU Member State and who has since obtained the nationality of the 
host Member State, while retaining the nationality of the Member State of origin, may, while 
no longer being a beneficiary under Directive 2004/38, continue to rely on the rights derived 
from Article 21 TFEU58. Residence rights for family members of the said (dual national) EU 
citizen may also be derived directly from Article 21 TFEU, under conditions which must not 

53 https://europa.eu/european-union/contact_en.  
54  Directive  2014/54/EU  of  the  European  Parliament  and  of  the  Council  of  16  April  2014  on  measures 
facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers  
55 It put in place voluntary mutual recognition of disability status and furthered persons with disabilities access 
to  culture,  sports  and  leisure  in  eight  project  countries:  Belgium,  Cyprus,  Estonia,  Finland,  Italy,  Malta, 
Romania, Slovenia. 
56  This  section  will  not  address  the  judgments  of  the  CJEU  based  primarily  on  the  status  of  ‘Union  worker’ 
pursuant to Article 45 et seq. TFEU. 
57  CJEU  14  November  2017,  Case  C-165/16  Toufik  Lounes  v  Secretary  of  State  for  the  Home  Department, 
ECLI:EU:C:2017:862. 
58  C-165/16  Lounes,  para.  45-58.  It  should  be  noted  that  the  Court  has  specifically  emphasised  that  Directive 
2004/38,  however,  ceases  to  apply  to  mobile  EU  citizens  who  have  since  obtained  the  nationality  of  the  host 
Member State; see C-165/16 Lounes, para. 31-44. 

8 

 
 
 
                                                           
be stricter than those provided for by Directive 2004/3859. The Court clarified that the right of 
free movement includes the right to lead a normal family life60.   

In  Gusa61,  the  Court  held  that  the  right  to  retain  the  status  of  ‘worker  or  self-employed 
person’ after ceasing economic activities in  the cases stipulated in  Article 7(3) of Directive 
2004/38 (more specifically, point (b) thereof, for ‘duly recorded involuntary unemployment 
after having been employed for more than one year and [having] registered as a job-seeker’) 
applies equally to mobile EU citizens who were self-employed prior to involuntarily ceasing 
economic activities62. 

In Coman63, the Court interpreted the concept of ‘spouse’ of an EU citizen in Article 2(2)(a) 
of Directive 2004/3864 and held that it is an autonomous EU law definition, independent of 
Member  State  laws.  The  Court  ruled  that  where  a  returning  EU  citizen  had  (previously) 
exercised  free  movement  rights  to  take  up  genuine  residence  in  another  EU  Member  State 
and  has,  in  the  host  Member  State,  created  or  strengthened  a  family  life  with  a  same-sex 
(third-country) national through marriage lawfully concluded in the host Member State, EU 
law precludes national legislation refusing to grant derived entry and residence rights to the 
same-sex  spouse  of  the  returning  EU  citizen  based  on  the  non-recognition  of  same-sex 
marriage  in  the  (home)  Member  State  concerned65.  The  Member  State  concerned  must 
consider such person as spouse for the purposes of enabling them to exercise the rights they 
enjoy under EU law. At the same time, this does not require that Member State to provide, in 
its national law, for the institution of marriage between persons of the same sex66. 

In Altiner and Ravn67, the Court held that EU law does not preclude national legislation that 
does not grant a derived right of residence to a family member of a returning EU citizen when 
that  family  member  has  not  entered  the  territory  of  the  Member  State  of  origin  of  the  EU 
citizen  as  a  ‘natural  consequence’  of  the  return  to  that  Member  State  by  the  EU  citizen  in 
question68.  This  is  on  condition  that  such  national  legislation  requires,  in  the  context  of  an 
overall assessment,  totake into account other relevant factors, which could show that, despite 
the time which elapsed between the EU citizen’s return to that Member State and the entry of 
the family member who is a third-country national, the family life created and strengthened in 
the host Member State has not ended69. 

59 C-165/16 Lounes, para. 59-61. 
60 C-165/16 Lounes, para. 52. 
61  CJEU  20  December  2017,  Case  C-442/16  Florian  Gusa  v  Minister  for  Social  Protection  and  Others, 
ECLI:EU:C:2017:1004. 
62 C-442/16 Gusa, para. 35-45. 
63 CJEU 5 June 2018, Case C-673/16 Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări 
and Others, ECLI:EU:C:2018:385. 
64 C-673/16 Coman, para. 33-36. 
65 C-673/16 Coman, para. 38-40, 52-55. 
66 C-673/16 Coman, para. 45. 
67  CJEU  27  June  2018,  Case  C-230/17  Erdem  Deha  Altiner  and  Isabel  Hanna  Ravn  v  Udlændingestyrelsen, 
ECLI:EU:C:2018:497. 
68 C-230/17 Altiner and Ravn, para. 30-34. 
69 C-230/17 Altiner and Ravn, para. 35. 

9 

 
 
                                                           
Tarola70 concerned the case of an EU citizen who had exercised his right to free movement 
by being employed in the host Member State for a period of 2 weeks, under a contract other 
than  a  fixed-term  employment  contract,  before  becoming  involuntarily  unemployed.  The 
Court interpreted  Articles 7(1)(a) and (3)(c) of Directive 2004/38/EC  and considered that  a 
citizen in such a situation retains the status of worker (and hence the right to reside in the host 
Member State) for a period of no less than 6 months, if the individual concerned did actually 
have  the  status  of  worker  prior  to  involuntary  unemployment  and  had  registered  as  a 
jobseeker  with  the  relevant  employment  office71.  Furthermore,  the  Court  noted  that  any 
entitlement  under  national  law  to  social  security  benefits  or  social  assistance  may  be 
conditional upon a specified period of employment, to the extent that, under the principle of 
equal treatment, the same condition is applied to nationals of the Member State concerned72. 

Bajratari73 relates to the interpretation of Article 7(1)(b) of Directive 2004/38/EC –residence 
on  the  basis  of  sufficient  resources  and  comprehensive  sickness  insurance.  The  case 
concerned  a  third-country  national  parent  of  a  minor  EU  citizen  who  sought  to  rely  on  his 
derived  right  of  residence  in  the  host  Member  State  as  the  primary  carer  of  his  underage 
child, an EU citizen residing on the basis of Article 7(1)(b). The Court held that a minor EU 
citizen has sufficient resources not to become an unreasonable burden on the social assistance 
system of the host Member State during residence where those resources stem from income 
obtained  from  the  unlawful  employment  of  his  third-country  national  parent  who  does  not 
hold a residence and work permit74. The Court also held that the conditions for restricting the 
minor EU citizen’s right of residence on grounds of public policy were not met75. 

A second set  of CJEU rulings concerns restriction of residence rights  and expulsions under 
Directive 2004/38.  

In E v Subdelegación del Gobierno en Álava76, the Court reiterated that expulsion decisions 
pursuant  to  Directive  2004/38  must  be  based  exclusively  on  the  personal  conduct  of  the 
individual (EU citizen) concerned. The fact the individual concerned was imprisoned at the 
time the expulsion decision was adopted, without the prospect of being released in the near 
future, does not ‘exclude that his conduct represents […] a present and genuine threat for a 
fundamental interests of the society of the host Member State’77 for the purpose of adopting 
such decision. 

In Petrea78, the Court determined, among other things, that a Member State may withdraw a 
registration certificate wrongly issued to an EU citizen who had been expelled and re-entered 

70 CJEU 11 April 2019, Case C-483/17 Neculai Tarola v Minister for Social Protection, ECLI:EU:C:2019:309. 
71 C-483/17 Tarola, para. 45-52. 
72 C-483/17 Tarola, para. 55-57. 
73 CJEU 2 October 2019, Case C-93/18 Bajratari, ECLI:EU:C:2019:809 
74 C-93/18 Bajratari, para 53 
75 C-93/18 Bajratari, para 52 
76 CJEU 13 July 2017, Case C-193/16 E v Subdelegación del Gobierno en Álava, ECLI:EU:C:2017:542. 
77 C-193/16 E v Subdelegación del Gobierno en Álava, para. 19-26. 
78  CJEU  14  September  2017,  Case  C-184/16  Ovidiu-Mihăiţă  Petrea  v  Ypourgos  Esoterikon  kai  Dioikitikis 
Anasygrotisis, ECLI:EU:C:2017:684. Parts of the judgment of the CJEU in Petrea will be considered in section 
5.2.3 of this overview. 

10 

 
 
                                                           
while still being the subject of an exclusion order (as provided for by Directive 2004/38)79. 
The EU citizen concerned is entitled, pursuant to Article 32 of Directive 2004/38, to submit 
an application to lift the said exclusion order; however, such a citizen do not have a right to 
reside (under Directive 2004/38) while their application is being considered80. 

In  B  and  Vomero81,  the  Court  clarified  a  number  of  issues  in  respect  of  the  provisions  of 
Directive  2004/38  concerning  enhanced  protection  against  expulsion  under  Article  28(3)(a) 
of  the  Directive  and  its  prerequisites  especially  in  the  context  of  imprisonment.  The  Court 
ruled that an EU citizen must have a right of permanent residence to be eligible for enhanced 
protection against expulsion82. In addition, the Court clarified that the accumulated period of 
(uninterrupted)  prior  residence  required  for  enhanced  protection  against  expulsion  must  be 
calculated  by  counting  back  from  the  date  on  which  the  initial  expulsion  decision  was 
taken83. The question of whether the period of residence required for enhanced protection was 
discontinued by a period of detention prior to the expulsion decision must be determined by 
an  overall  assessment  of  whether,  notwithstanding  that  detention,  the  integrative  links 
between the EU citizen and the host Member State have not been severed84. Relevant factors 
in  this overall assessment include ‘the strength  of the integrative links forged  with  the host 
Member  State  before  the  detention  of  the  person  concerned,  the  nature  of  the  offence  that 
resulted  in  the  period  of  detention  imposed,  the  circumstances  in  which  that  offence  was 
committed and the conduct of the person concerned throughout the period of detention’85. 

In  K  and  HF86,  the  Court  held  that  the  fact  that  (a  family  member  of)  an  EU  citizen  had 
previously been refused asylum on the basis of Article 1F of the Geneva Convention cannot 
automatically  lead  to  the  conclusion  that  their  mere  presence  represents  a  genuine,  present 
and sufficiently serious threat affecting one of the fundamental interests of society as required 
by  (Article  27  of)  Directive  2004/3887.  The  need  to  restrict  the  freedom  of  movement  and 
residence of an EU citizen, or a family member of an EU citizen, must be assessed on a case-
by-case basis88 and on the basis of free movement rules. The competent national authorities 
must  further  consider  whether  i) the  adoption  of  such  public  policy  or  public  security 
measures complies with the principle of proportionality, taking into account the rights of EU 
citizens and their family members, and ii) other measures less prejudicial to the freedom of 
movement were possible89. 

79 C-184/16 Petrea, para. 30-42. 
80 C-184/16 Petrea, para. 43-48. 
81 CJEU 17 April 2018, Joined Cases C-316/16 and C-424/16 B v Land Baden-Württemburg and Secretary of 
State for the Home Department v Franco Vomero, ECLI:EU:C:2018:256. 
82 Joined Cases C-316/16 and C-424/16 B and Vomero, para. 44-55. 
83 Joined Cases C-316/16 and C-424/16 B and Vomero, para. 64-65, 85-94. 
84 Joined Cases C-316/16 and C-424/16 B and Vomero, para. 66-82. 
85 Joined Cases C-316/16 and C-424/16 B and Vomero, para. 83. 
86 CJEU 2 May 2018, Joined Cases C-331/16 and C-366/16 K v Staatssecretaris van Veligheid en Justitie and 
HF v Belgische Staat, ECLI:EU:C:2018:296. 
87 Joined Cases C-331/16 and C-366/16 K and HF, para. 51. 
88 Joined Cases C-331/16 and C-366/16 K and HF, para. 39-49, 52-60. 
89 Joined Cases C-331/16 and C-366/16 K and HF, para. 61-64. 

11 

 
 
                                                           
A  third  set  of  the  Court’s  rulings  within  the  reference  period  concerns  free  movement  and 
residence rights derived under Article 20 and 21 TFEU.  

In  Rendón  Marín90,  the  Court  ruled  that  EU  law  automatically  precludes  the  refusal  of  a 
derived right of residence to a third-country national who has the sole care of a ‘mobile’ and 
a ‘static’ minor EU citizens solely on the basis of a prior criminal record91. This preclusion of 
automatic  refusal  of  a  derived  right  of  residence  for  a  third-country  national  parent  who  a 
minor  EU  citizen  is  dependent  on,  solely  on  the  basis  of  the  parent’s  criminal  record,  is 
similarly confirmed by the Court in CS92. However, in both Rendón Marín and CS, the Court 
recognises the possibility for Member States to restrict residence rights derived from Article 
20  TFEU  and  21  TFEU,  to  the  extent  that  any  such  restriction  is  based  on  a  case-by-case 
assessment and that  any expulsion or restriction  of the right  of residence is  founded on the 
‘existence of a genuine, present and sufficiently serious threat to the requirements of public 
policy or public security’93. 

In Chavez-Vilchez and Others94, the Court was called to clarify the extent to which a right of 
residence derived from Article 20 TFEU (following the Court’s line of rulings starting from 
Ruiz  Zambrano95)  is  dependent  on  the  possibility  of  the  EU  citizen  parent,  who  is  not  the 
primary carer of the ‘static’ minor EU citizen, to care for that child. The Court held that the 
competent  authorities  must  determine,  in  light  of  inter  alia  Article  7  (protection  of  private 
and family life) and 24 (consideration of the best interest of the child) of the EU Charter of 
Fundamental  Rights,  which  parent  is  the  child’s  primary  carer  and  whether  there  is  a 
dependency relationship with the third-country national parent that would compel the child to 
leave, in practice, the EU territory upon refusal of a right of residence to such parent96. The 
Court held that for the purposes of such an assessment, the fact that the other parent, an EU 
citizen, is actually able and willing to assume sole responsibility for the primary day-to-day 
care  of  the  child  is  a  relevant  factor.  However,  this  is  not  in  itself  a  sufficient  ground  for 
concluding  that  there  is  not  a  dependency  relationship  between  the  third-country  national 
parent  and  the  child  that  would  compel  the  child  to  leave  the  EU’s  territory  if  a  right  of 
residence  was  refused  to  that  third-country  national97.  The  Court  reiterated  that  relevant 
factors  in  the  assessment  by  the  competent  authorities  include  ‘the  question  of  who  has 
custody of the child and whether that child is legally, financially or emotionally dependent on 
the  third-country  national  parent”98.  The  Court  then  added  that,  in  assessing  these  factors, 

90  CJEU  13  September  2016,  Case  C-165/14  Alfredo  Rendón  Marín  v  Administración  del  Estado, 
ECLI:EU:C:2016:675. 
91 C-165/14 Rendón Maríin, para. 63-67, 81-87. 
92  CJEU  13  September  2016,  Case  C-304/14  Secretary  of  State  for  the  Home  Department  v  CS, 
ECLI:EU:C:2016:674, para. 41. 
93 For residence rights derived from Article 20 TFEU, see C-165/14 Rendón Marín, para. 83-86; C-304/14 CS, 
para. 36-42; for residence rights derived from Article 21 TFEU, see C-165/14 Rendón Marín, para. 55-62. 
94  CJEU  10  May  2017,  Case  C-133/15  HC  Chavez-Vilchez  and  Others  v  Raad  van  bestuur  van  de  Sociale 
verzekeringsbank and Others, ECLI:EU:C:2017:354. 
95 Case C-34/09 
96 C-133/15 Chavez-Vilchez and Others, para. 70. 
97 C-133/15 Chavez-Vilchez and Others, para. 71. 
98 C-133/15 Chavez-Vilchez and Others, para. 68. 

12 

 
 
                                                           
‘account  must  be  taken,  in  the  best  interests  of  the  child  concerned,  of  all  the  specific 
circumstances,  including  the  age  of  the  child,  the  child’s  physical  and  emotional 
development, the extent of his emotional ties both to the Union citizen parent and to the third-
country national parent, and the risks which separation from the latter might entail for that 
child’s equilibrium’99.  

The Subdelegación del Gobierno en Ciudad Real case100 concerned Article 20 TFEU. The 
Court held that Article 20 precludes a Member State from rejecting an application for family 
reunification submitted by the spouse, a third-country national,  of an EU citizen who holds 
the nationality of that Member State, and who has never exercised the freedom of movement, 
on  the  sole  ground  that  the  EU  citizen  does  not  have,  for  themselves  and  their  spouse, 
sufficient resources to prevent them from becoming a burden on the national social assistance 
system, without examination of whether there is a dependency relationship between that EU 
citizen  and  their  spouse  of  such  a  kind  that,  if  the  latter  were  refused  a  derived  right  of 
residence, the EU citizen would be obliged to leave EU territory, thus being deprived of their 
rights conferred by their status. Accordingly, where the competent national authority receives 
an application from  a third-country national  to  grant  a right  of residence for the purpose of 
family reunification with an EU citizen who is a national of the Member State concerned, that 
authority must assess, based on evidence, which the third-country national and the EU citizen 
concerned  must  provide  and,  if  necessary,  investigations  carried  out,  whether  there  is  a 
dependency relationship between those two individuals, such that a derived right of residence 
must, in principle, be granted to that national under Article 20 TFEU.  

5.2.2.  CJEU  case-law  development  on  entry  and  residence  rights  of  ‘other  family 

members’ of EU citizens 

As regards the right of entry, in Ryanair Designated Activity Company101, the Court clarified 
that  non-EU  family  members  of  EU  citizens  who  hold  a  permanent  residence  card  issued 
under  Article  20  of  Directive  2004/38/EC  by  one  Member  State  are  also  exempted  under 
Article 5(2) from the requirement to hold a visa in order to enter another Member State. The 
visa exemption also applies where that card was issued by a Member State which is not part 
of  the  Schengen  area.  The  ruling  concludes  that  the  holder  of  such  a  card  has  the  right  to 
enter  the  territory  of  a  Member  State  visa-free  upon  presenting  the  card,  without  further 
verification of their status as a family member or any further justification being required. 

99 C-133/15 Chavez-Vilchez and Others, para. 71. 
100    CJEU,  27  February  2020,  Case  C-836/18,  Subdelegación  del  Gobierno  en  Ciudad  Real  v  RH, 
ECLI:EU:C:2020:119 
101  CJEU,  18  June  2020,  Case  C-754/18,  Ryanair  Designated  Activity  Company  v  Országos  Rendőr-
főkapitányság ECLI:EU:C:2020:478 

13 

 
 
 
                                                           
In  addition,  within  the  reference  period,  the  Court  delivered  two  judgments  that  further 
clarify  the  application  by  analogy  of  Article  3(2)  of  Directive  2004/38  and  its  previous 
decision in Rahman102. 

In Banger103, the Court ruled that Article 21 TFEU requires Member States to facilitate the 
entry  and  residence  of  extended  family  members  of  its  own  returning  nationals,  under  the 
conditions  of  Article  3(2)  of  Directive  2004/38  applied  by  analogy104.  The  assessment  of  a 
residence application under Article 3(2) is equally subject to the requirements of conferring a 
certain  advantage  to  such  applications  compared  to  those  of  third  country  nationals  not 
having  such  family  links,  and  of  carrying  out  an  extensive  examination  of  the  applicant’s 
personal  circumstances.  Any  negative  decisions  on  such  applications  must  be  justified105. 
Furthermore,  the  Court  ruled  that  extended  family  members  whose  residence  authorisation 
has  been  refused  must  have  access  to  a  redress  procedure  before  a  national  court.  The 
national  court  must  be  able  ‘to  ascertain  whether  the  refusal  decision  is  based  on  a 
sufficiently  solid  factual  basis  and  whether  the  procedural  safeguard  were  complied  with. 
Those safeguards include the obligation for the competent national authorities to undertake 
an extensive examination of the applicant’s personal circumstances and to justify any denial 
of entry or residence’106. 

In  SM107,  the  Court  first  clarified  (similarly  to  what  it  did  for  the  concept  of  ‘spouse’  in 
Coman) that the concept of ‘direct descendant’ in Article 2(2)(c) of Directive 2004/38 is an 
autonomous EU law definition, independent of Member State laws108. Furthermore, it found 
that  such  concept  should  be  interpreted  broadly  and  covers  ‘any  parent-child  relationship, 
whether biological or legal’ (thus including biological and adopted children). By contrast, it 
does  not  cover  children  placed  under  a  legal  guardianship  which  does  not  create  a  parent-
child  relationship  between  the  child  and  the  guardian  (including  children  placed  under  the 
Algerian  kafala  system)109.  The  Court  specifically  notes  that  such  children  fall  within  the 
scope  of  Article  3(2)  of  Directive  2004/38110.When  implementing  their  obligation  under 
Article 3(2) to facilitate entry and residence of the ‘other family members’111 Member States 
must  exercise  their  discretion  ‘in  the  light  of  and  in  line  with’  the  provisions  of  the  EU 
Charter of Fundamental Rights, including the right to (respect for) family life (Article 7) and 
the  best  interests  of  the  child  (Article  24)112.  They  are  furthermore  obliged  to  ‘make  a 
balanced  and  reasonable  assessment  of  all  the  current  and  relevant  circumstances  of  the 

102 CJEU 5 September 2012, Case C-83/11 Secretary of State for the Home Department v Muhammad Sazzadur 
Rahman and Others, ECLI:EU:C:2012:519. 
103  CJEU  12  July  2018,  Case  C-89/17  Secretary  of  State  for  the  Home  Department  v  Rozanne  Banger, 
ECLI:EU:C:2018:570. 
104 C-89/17 Banger, para. 27-34. 
105 C-89/17 Banger, para. 36-41. 
106 C-89/17 Banger, para. 42-52. 
107  CJEU  26  March  2019,  Case  C-129/18  SM  v  Entry  Clearance  Officer,  UK  Visa  Section, 
ECLI:EU:C:2019:248. 
108 C-129/18 SM, para. 50-51. 
109 C-129/18 SM, para. 52-56. 
110 C-129/18 SM, para. 57-59. 
111 C-129/18 SM, paras. 60-63, 68. 
112 C-129/18 SM, para. 64-67. 

14 

 
 
                                                           
case, taking account of all the interests in play and, in particular, of the best interests of the 
child  concerned’113.  This  assessment  includes  considering  i)  the  age  of  the  child  when  the 
legal guardianship was established and whether the child has lived with their guardian since 
then,  ii)  the  closeness  of  the  personal  relationship,  iii)  the  degree  to  which  the  child  is 
dependent on the guardian, as well as iv) possible tangible and personal risks that the child 
concerned will be the victim of abuse, exploitation or trafficking. If the assessment leads to 
the conclusion that the child and the guardian are called to lead a genuine family life and that 
the former is dependent on the latter, the fundamental right to respect for family life and the 
best  interests  of  the  child  demand,  in  principle,  a  host  Member  State  to  grant  the  child 
concerned the right to enter and reside as an ‘other family member’114. 

5.2.3.  CJEU  case-law  development  on  procedural  aspects  of  free  movement  and 

residence rights 

Within the reference period, the Court also issued three judgments relevant to the procedural 
rights and standards applicable under the Free Movement Directive.  

In Petrea, the Court was (also) called to consider a number of questions relating to procedural 
aspects  of  Directive  2004/38.  The  case  concerned  an  EU  citizen  who  had  re-entered  the 
territory of a Member State despite being subject to an exclusion order issued by that country. 
The Court held in Petrea that Member States are entitled to provide for the expulsion of such 
a mobile EU citizen by way of a national procedure transposing Directive 2008/115 (for the 
return of third-country nationals), provided that transposition measures of Directive 2004/38 
which  are  more  favourable  to  EU  citizens  are  applied115.  Furthermore,  the  Court  held  that 
Member  States  can  lay  down  that  individuals  may  not  rely  on  the  unlawfulness  of  an 
exclusion order made against them in order to contest a subsequent return order, in so far as 
the  person  concerned  has  effectively  had  ‘the  possibility  to  contest  the [exclusion  order]  in 
good time in light of the provisions of Directive 2004/38’116. The Court also held that, while 
Article  30  of  Directive  2004/38  requires  Member  States  to  notify  a  decision  adopted  under 
Article 27 (i.e. an expulsion order) to the person concerned ‘in such a way that they are able 
to comprehend its content and the implications’, this notification does not oblige the Member 
States  to  notify  the  decision  in  a  language  that  the  person  understands  or  is  reasonably 
presumed to understand, although the person did not bring an application to that effect117. 

In  Chenchooliah118,  the  Court  held  that Article  15  of  Directive  2004/38/EC  applies  to  the 
expulsion of a third-country national who is the spouse of an EU citizen and who has ceased 
to have a right of residence in a Member State pursuant to Directive 2004/38/EC due to the 
departure of the EU citizen from that Member State119. The Court considered that while the 

113 C-129/18 SM, para. 68. 
114 C-129/18 SM, para. 69-72. 
115 C-184/16 Petrea, para. 50-56. 
116 C-184/16 Petrea, para. 57-65. 
117 C-184/16 Petrea, para. 66-71. 
118  CJEU  10  September  2019,  Case  C-94/18  Nalini  Chenchooliah  v  Minister  for  Justice  and  Equality, 
ECLI:EU:C:2019:693 
119 C-94/18 Chenchooliah, para 73-79. 

15 

 
 
                                                           
spouse  no  longer  benefits  from  a  right  of  residence  in  the  host  State  pursuant  to  Directive 
2004/38/EC  due  to  the  EU  citizen’s  departure,  the  expulsion  is  governed  by  Directive 
2004/38/EC120.  This  means  that  the  host  Member  State  cannot,  under  any  circumstance, 
impose a ban on entry in the  context  of such an expulsion and that the relevant  procedural 
safeguards  laid  down  in  Articles  30  and  31  of  the  Directive  2004/38/EC  apply  in  such  a 
case121. 

In  Diallo122,  the  Court  clarified  that  Article  10(1)  of  Directive  2004/38  not  only  requires 
Member States to adopt and notify the decision on the application for a residence card by a 
family member of a mobile EU citizen within 6 months, but also obliges Member States to 
adopt a decision refusing the issuance of the residence card under the Directive (and to notify 
the person concerned) within  the same six-month period123. The Court further clarified that 
EU  law,  specifically  Directive  2004/38,  would  preclude  Member  States  from  providing, 
under national law, that the expiry of the six-month period automatically entails the issuance 
of the residence card without finding, beforehand, that the person concerned actually meets 
the  conditions  for  residing  in  the  host  Member  State  in  accordance  with  EU  law124. 
Furthermore, the Court held that, following a judicial annulment decision refusing to issue a 
residence  card,  the  competent  national  authorities  must  adopt  a  decision  concerning  the 
application  for  the  residence  card  within  a  reasonable  period  of  time,  which  cannot,  in  any 
case, exceed the period referred to in Article 10(1) of Directive 2004/38. In the light of the 
principle of effectiveness and of ‘the objective of rapid processing of applications inherent to 
Directive 2004/38’, and considering that the third country national remains in a situation of 
legal  uncertainty until  a  residence card is  issued, the Court explicitly rejected the idea that, 
following a judicial annulment of a decision refusing to issue a residence card, the competent 
authorities are given a full new six-month period to adopt a new decision125.  

5.2.4.  CJEU  case-law  developments  on  rights  connected  with  the  exercise  of  free 

movement and residence rights 

Within the reference period, the Court has further issued a judgment relating to issues with 
the potential effect of hindering the free movement of EU citizens, as enshrined in Article 21 
TFEU.  

In  Freitag126,  the  Court  was  asked  to  consider  whether  Article  21  TFEU,  in  light  of  the 
Court’s  prior  judicial  rulings  –  from  Grunkin  and  Paul  to  Bogendorff  von  Wolffersdorff, 
precludes  a  refusal  to  recognise,  based  on  a  national  legal  provision  (in  this  case,  German 
law),  a  change  of  name  of  a  (German/Romanian)  dual  national  effectuated  in  that  EU 
citizen’s other Member State of nationality (i.e.  Romania), where the EU citizen concerned 
was not habitually resident in the other Member State at the time the name was changed. In 

120 C-94/18 Chenchooliah, para 73-79. 
121 C-94/18 Chenchooliah, para 80-88. 
122 CJEU 27 June 2018, Case C-246/17 Ibrahim Diallo v État belge, ECLI:EU:C:2018:499. 
123 C-246/17 Diallo, para. 33-42. 
124 C-246/17 Diallo, para. 45-56. 
125 C-246/17 Diallo, para. 58-69. 
126 CJEU 8 June 2017, Case C-541/15 Mircea Florian Freitag, ECLI:EU:C:2017:432. 

16 

 
 
                                                           
essence, the Court ruled that Article 21 TFEU precludes a Member State’s authorities from 
refusing  to  recognise  the  name  of  one  of  its  nationals  that  was  legally  acquired  in  another 
Member  State,  of  which  that  individual  is  also  a  national.  This  is  because  a  restriction  on 
recognising  a  change  of  name  would  be  ‘likely  to  hinder  the  exercise  of  the  right  […]  to 
move and reside freely in the territories of the Member States’, as there is a real risk that the 
dual  EU  citizen  concerned  would  be  obliged  to  dispel  doubts  as  to  his  identity  and  the 
authenticity of the documents submitted, or the veracity of their content127.  

5.2.5.  Access  to  benefits  and/or  social  assistance  by  residents  in  EU  countries  that 

are staying in another Member State 

In case A.128, the Court recalled that a Member State’s competence to organise their education 
systems  must  be  exercised  in  compliance  with  Article  21  TFEU  and  the  rules  on  awarding 
funds for higher education must not create an unjustified restriction on free movement129. The 
Court pointed out that national rules which place certain nationals at a disadvantage simply 
because  they  have  exercised  their  free  movement  constitutes  a  restriction  of  the  freedom 
conferred  by  Article  21(1)  TFEU130.  Therefore,  it  concluded  that  Articles 20  and  21  TFEU 
preclude  the  home  municipality  of  a  Member  State  resident  who  is  severely  disabled  from 
refusing to grant that person a benefit, such as the personal assistance concerned in the main 
proceedings, on the  grounds that  the person is  staying in  another Member State in  order to 
pursue higher education studies there131.  

5.3. Commission action 

5.3.1.  Facilitating the exercise of free movement 

In the area of free movement of (mobile) EU citizens, the European Commission has recently 
taken  a  number  of  steps  to  ensure  Member  States  fully  comply  with  EU  law,  including 
through infringement proceedings in cases of incompatibility of national legislation with EU 
law.  

The  European  Commission  also  adopted  measures  in  other  areas  of  EU  law  with  potential 
effects  for  the  free  movement  of  mobile  EU  citizens.  For  example,  in  February  2019,  the 
European  Commission  adopted  a  Recommendation  in  order  to  make  make  it  easier  for  EU 
citizens to gain (cross-border) access to their own health data. 

5.3.2.  Strengthening the security of identity cards and residence documents 

The Free Movement Directive (2004/38/EC) sets out the conditions for exercising the right of 
free movement and residence (both temporary and permanent) in the EU for EU citizens and 

127 C-541/15 Freitag, para. 35-39. 
128CJEU 25 July 2018, Case C- 679/16, A, ECLI:EU:C:2018:601 
129 C-679/16 A, para. 58-59. 
130 C-679/16 A, para. 60 
131 C-679/16 A, para. 79 

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their family members. This Directive provides that, in conjunction with a valid identity card 
or  passport,  EU  citizens  and  their  family  members  may  enter  and  live  in  another  Member 
State and apply for the appropriate residence documentation. However, the Directive does not 
regulate  the  format  and  standards  for  identity  cards  to  be  used  for  entering  or  leaving  EU 
Member States. Similarly, it does not provide for specific standards for residence documents 
issued to EU citizens and their non-EU family members, apart from the title to be given to the 
latter ones, i.e. ‘Residence card of a family member of a Union citizen’ (see Article 10(1) of 
Directive 2004/38).  

The EU offers its citizens an area of freedom, security and justice without internal borders, in 
which  the  free  movement  of  persons  is  ensured  in  conjunction  with  appropriate  measures 
with  respect  to  external  border  management,  asylum,  immigration  and  the  prevention  and 
combating of crime and terrorism. 

Many of the EU's security measures rely upon secure travel and identity documents – such as 
the systematic checks established by the Schengen Border Code in the Schengen Information 
System132. 

In recent years, EU standards have been introduced for several identity and travel documents 
used in Europe. 

The 2016 action plan on document security addressed the risk from fraudulent identity cards 
and  residence  documents133,  and  the  2017  citizenship  report  committed  to  analysing  policy 
options to improve the security of identity cards and residence documents. The Commission 
conducted an impact assessment which considered a number of options for identity cards and 
residence  documents  compared  with  the  status  quo,  including  soft  law  measures,  minimum 
common  requirements  and  wider  harmonisation.  The  status  quo  was  considered 
unsatisfactory and wider harmonisation was not considered proportionate. 

These are some of the reasons why, in April 2018, the Commission proposed, as part of its 
action  towards  a  genuine  and  effective  Security  Union134,  improvements  to  the  security 
features of EU citizens' identity cards and non-EU family members' residence cards. 

In  June  2019,  the  European  Parliament  and  the  Council  adopted  Regulation  2019/1157  on 
strengthening the security of EU citizens’ identity cards of and of residence documents issued 
to  EU  citizens  and  their  family  members  exercising  their  right  of  free  movement135.  The 
Regulation  introduced  minimum  common  security  standards  making  identity  cards  and 
residence documents more secure and reliable. The Regulation will be applied from August 
2021. 

132  Regulation  (EU)  2017/458  of  the  European  Parliament  and  of  the  Council  of  15  March  2017  amending 
Regulation (EU) 2016/399 as regards the reinforcement of checks against relevant databases at external borders 
133 COM(2016) 790 final. 
134 https://ec.europa.eu/commission/news/security-union-2017-jun-29_en  
135 Regulation (EU) 2019/1157 of the European Parliament and of the Council of 20 June 2019 on strengthening 
the  security of identity cards of Union citizens and of residence documents issued to Union citizens and their 
family members exercising their right of free movement, OJ L 188, 12.7.2019, p. 67–78 

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6.  RIGHT  TO  VOTE  AND  STAND  AS  A  CANDIDATE  IN  MUNICIPAL  AND 
EUROPEAN PARLIAMENT ELECTIONS (ARTICLES 20(2)(B) AND 22 TFEU)  

6.1. Introduction  
Under Articles 20(2)(b) and 22 TFEU, all EU citizens residing in a Member State of which 
they are not nationals are entitled to vote and stand as candidates in European Parliament and 
municipal  elections  in  their  Member  State  of  residence,  under  the  same  conditions  as  that 
state’s nationals. 

The Commission replied to 43 complaints, 57 letters/individual queries, 74 questions and 21 
petitions from the European Parliament on these issues, primarily relating to the loss of right 
to vote or participate in a referendum. 

Following the 2019  elections to  the European Parliament,  the Commission received a large 
number  of  complaints  concerning  the  possibility  for  mobile  EU  citizens  to  effectively 
exercise their voting rights in the UK136, as well as from Romanian citizens concerning the 
difficulties they encountered in voting at Romanian consulates abroad137.  

6.2. Case-law developments 

In  its  ruling  on  Junqueras  Vies  of  19 December 2019138,  following  a  request  for  a 
preliminary ruling from  the Spanish  Supreme Court  (Tribunal  Supremo), the Court decided 
that  Article  9  of  Protocol  (No  7)  on  the  privileges  and  immunities  of  the  European  Union 
must be interpreted as meaning that:  

– a person who was officially declared elected to the European Parliament while subject to a 
measure  of  provisional  detention  in  the  context  of  proceedings  related  to  serious  criminal 
offences, but who was not authorised to comply with certain requirements under national law 
following such a declaration and to travel to the European Parliament in order to take part in 
its first session, must be regarded as enjoying immunity under the second paragraph of that 
article;  

–  this  immunity  entails  that  the  measure  of  provisional  detention  imposed  on  the  person 
concerned must be lifted so that person can travel to the European Parliament and complete 
the necessary formalities there. That being said, if the competent national court considers that 
that measure should be maintained after the person concerned acquires the status of Member 
of the European Parliament, it must as soon as possible request the European Parliament to 
waive that immunity, on the basis of the third paragraph of Article 9 of that protocol.   

136https://ec.europa.eu/info/files/letter-concerning-voter-registration-system-mobile-eu-citizens-united-
kingdom_en  
137 https://ec.europa.eu/info/files/letter-concerning-difficulties-encountered-voting-romanian-consulate_en  
138 C-502/19  

19 

 
 
 
 
 
                                                           
6.3.  Developments  in  the  field  of  voting  rights  and  action  taken  by  the 
Commission 

In its 2017 EU citizenship report139, the Commission called on the Member States to promote 
participation  in  democratic  life  by  better  informing  citizens  of  their  electoral  rights  and 
removing barriers to their participation. This was supported in the Conclusions issued by the 
Council on 11 May 2017140.  

The  Commission  published  its  last  report  on  the  implementation  of  EU  law  in  local  and 
municipal  elections  and  ways  to  promote  electoral  rights  in  February  2018141.  Since  EU 
citizens are increasingly moving to and residing in other Member States, the main concerns 
emanating from the report were the low turnout of mobile citizens and the need for better data 
collection. 

In  September  2018,  the  Commission  issued  a  package  of  measures  to  support  free  and  fair 
European  elections,  including  i) a  Communication142;  ii)  a  Recommendation  on  election 
cooperation  networks,  online  transparency,  protection  against  cybersecurity  incidents  and 
fighting disinformation campaigns in the context of the European Parliament elections; iii) a 
Guidance document143 on applying EU data protection law in the electoral context; and iv) a 
legislative  proposal144  to  provide  sanctions  for  the  deliberate  misuse  of  personal  data  by 
European political parties and foundations to influence the outcome of the elections. 

In line with  these measures, the Commission  supported Member States by  establishing and 
organising  meetings  of  the  European  cooperation  network  on  elections145.  This  network 
brings  together  representatives  of  Member  States’  authorities  with  competence  in  electoral 
matters,  and  allows  for  concrete  and  practical  exchanges  on  a  range  of  topics  relevant  to 
ensuring  free  and  fair  elections,  including  data  protection,  cybersecurity,  transparency, 
awareness raising, and inclusive and equal participation. 

7.  RIGHT  TO  PROTECTION  BY  DIPLOMATIC  OR  CONSULAR  AUTHORITIES 
(ARTICLES 20(2)(C) AND 23 TFEU) 

7.1. Introduction 

Under  Articles  20(2)(c)  and  23  TFEU,  in  a  non-EU  country  where  their  Member  State  of 
origin  does  not  have  representation,  EU  citizens  have  the  right  to  be  protected  by  the 

139https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-is-
new/news/news/20170124_eu_citizenship_report_2017_en.pdf 
140 https://www.consilium.europa.eu/media/22130/st09008en17.pdf  
141 https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:52018DC0044  
142 https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1561131040319&uri=CELEX:52018DC0637 
143  https://ec.europa.eu/commission/sites/beta-political/files/soteu2018-data-protection-law-electoral-guidance-
638_en.pdf 
144 https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1561130736830&uri=CELEX:52018PC0636 
145https://ec.europa.eu/info/policies/justice-and-fundamental-rights/eu-citizenship/electoral-rights/european-
cooperation-network-elections_en 

20 

 
 
 
 
                                                           
diplomatic and consular authorities of any other Member State on the same conditions as that 
state’s nationals. 76% of EU citizens are aware of this right146. 

In the reporting period, the Commission replied to 10 complaints, 8 letters/individual queries 
and  8  questions  from  the  European  Parliament  on  this  issue.  These  mostly  related  to  the 
issuance  of  emergency  travel  documents  to  return  home  or  the  lack  of  or  discriminatory 
consular protection. 

7.2. Developments in the field of consular protection 

On  18 June 2019,  the  Council  adopted  a  Directive  establishing  an  EU  Emergency  Travel 
Document,  updating  the  rules,  format  and  security  features  of  the  document  currently  in 
use147. It simplifies the formalities for unrepresented EU citizens in non-EU countries whose 
passport  or  travel  document  has  been  lost,  stolen  or  destroyed,  to  ensure  that  they  are 
provided  with  an  emergency  travel  document  by  another  Member  State,  to  enable  them  to 
travel home. After the adoption of the necessary technical specifications, Member States have 
2 years to transpose the Directive into national law. 

In  parallel,  the  Commission  continues  to  include  and  negotiate  consent  clauses  in  bilateral 
agreements  with  non-EU countries  to  ensure that  these countries agree that represented EU 
Member States give assistance to unrepresented EU citizens. 

8.  RIGHT  TO  PETITION  THE  EUROPEAN  PARLIAMENT  AND  TO  ADDRESS 
THE  EUROPEAN  OMBUDSMAN  (ARTICLES  20(2)(d)  AND  24(2),  (3)  AND  (4) 
TFEU)  

8.1. Introduction  

Articles  20(2)(d)  and  24(2),  (3)  and  (4)  TFEU  refer  to  other  rights  entitling  EU  citizens  to 
address  the EU institutions, including the right  to petition the European Parliament  and the 
right to address the European Ombudsman. Every EU citizen is entitled to write to any of the 
institutions, bodies, offices or agencies in one of the EU's official languages148 and receive an 
answer in the same language149. 

8.2. Right to petition the European Parliament  

Under Article 24(2) TFEU, EU citizens have the right to petition the European Parliament, in 
any  Treaty  language,  on  EU  matters  that  affect  them  and  to  receive  a  reply  in  the  same 
language. In 2018, the European Parliament Committee on Petitions received 1 220 petitions, 
down from 1 271 in 2017 and 1 569 in 2016. However in 2019, this figure rose to 1 357, out 
of  which  938  were  declared  admissible.  In  2018,  environment  rose  to  become  the  main 
subject of petitions, which remained the case for 2019 as well.  

146 Flash Eurobarometer 485, spring 2020. 
147  Directive  (EU)  2019/997  of  18  June  2019  establishing  an  EU  Emergency  Travel  Document  and  repealing 
Decision 96/409/CFSP, OJ L L 163, 20.6.2019, p. 1–12. 
148 See Article 55(1) TEU.  
149 This provision is implemented all EU institutions, bodies, offices or agencies, as relevant to their work. 

21 

 
 
                                                           
Since 2014, a ‘petitions web portal’150 has been available to  enable the user-friendly online 
submission of petitions. While in 2014 petitions were tabled by email in 80% of the cases and 
by letter in the remaining 20%, 73.9% of the petitions received in 2019 were  submitted via 
the web portal151.    

8.3. Right to address the European Ombudsman  

Under  Article  24(3)  TFEU,  EU  citizens  have  a right  to  address  the  European  Ombudsman, 
which  deals  with  citizens’  complaints  about  the  EU  institutions,  bodies  and  agencies. 
Problems  range  from  contractual  disputes  to  violations  of  fundamental  rights,  lack  of 
transparency in decision-making and refusal of access to documents.  

In the period 2017-2019, the Ombudsman’s office registered over 6 000 complaints, around 2 
500 of which fell within its mandate, and opened 1 395 inquiries. The majority of complaints 
concerned  an  alleged  lack  of  transparency  and  accountability.  Compliance  with  the 
Ombudsman’s  suggestions  decreased  from  85%  in  2016  to  77%  in  2018.  The  decrease  has 
been relatively constant since 2014, when compliance had reached 90%. The Ombudsman’s 
office helped over 50 000 citizens in the three-year period, by opening inquiries, answering 
requests for information or giving advice in its interactive online guide. 

This  core  work  in  handling  complaints  was  supplemented  by  strategic  own-initiative 
inquiries, aimed at helping as many citizens as possible by examining issues which appear to 
be  systemic,  rather  than  one-off.  During  the  reporting  period,  inquiries  looked  into  the 
transparency of the Council legislative process (2017)152, among other things.  

In  2016,  the  European  Ombudsman  adopted  new  internal  rules  governing  how  the 
Ombudsman  deals  with  complaints  and  inquiries  to  make  the  office  more  efficient  and 
effective.  

In  2018,  the  European  Ombudsman  introduced  a  new  fast-track  procedure  for  complaints 
about public access to documents, which allows the Ombudsman to take a decision within 2 
months of receiving the complaint153.  

9. EUROPEAN CITIZENS’ INITIATIVE (ECI) (ARTICLE 24 TFEU; ARTICLE 11(4) 
TEU) 

Under  Article  11(4)  Treaty  on  European  Union  (TEU),  implemented  by  Regulation 
211/2011/EU,  a  million  or  more  citizens  from  at  least  seven  Member  States  can  come 
together  to  invite  the  Commission,  in  its  areas  of  competence,  to  submit  any  appropriate 
proposal on matters which they consider an EU act is needed to implement the Treaties. 

150 https://petiport.secure.europarl.europa.eu/petitions/en/main  
151 https://www.europarl.europa.eu/meetdocs/2014_2019/plmrep/COMMITTEES/PETI/PR/2020/09-
03/1197378EN.pdf   
152 https://www.ombudsman.europa.eu/en/special-report/en/94921  
153https://www.ombudsman.europa.eu/en/press-
release/en/89910?utm_source=web_EO&utm_medium=scrollie_organic&utm_campaign=scrollie_25  

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Since 2011, 75 initiatives154 have been launched on a variety of issues and an estimated nine 
million  statements  of  support  have  been  collected  by  the  organisers  across  the  European 
Union. Five initiatives have been successful in reaching the million signatures threshold, one 
of them during the reporting period. 

The  ‘Ban  glyphosate’  Initiative155  calls  on  Member  States  to  ban  glyphosate,  to  reform  the 
pesticide  approval  procedure,  and  to  set  EU-wide  mandatory  reduction  targets  for  pesticide 
use. In December 2017, the Commission adopted a Communication156 explaining that it did 
not intend to submit a legislative proposal, because the scientific assessment of glyphosate by 
the European Food Safety  Authority is  favourable as regards human and  animal  health and 
the environment. 

Following up on the review of how the Regulation has been applied since 31 March 2015157, 
the  Commission  adopted  a  proposal  for  a  new  Regulation  on  the  Citizens’  Initiative  on 
13 September 2017158.  It  was  adopted  on  17 April 2019159  and  has  been  applied  since 
1 January 2020.  The 
simplification  and 
revised  Regulation  brings  wide-ranging 
improvements for citizens and organisers in all the successive steps of the ECI process so that 
the full potential of the ECI could be achieved by making it more accessible, less burdensome 
and easier to use for organisers and supporters.  

The Commission carried out a second review of how the Regulation has been applied and, on 
28 March 2018  it  adopted  another  report160,  which  concluded  that  the  Commission  has 
thoroughly  assessed  the  remaining  bottlenecks  and  addressed  them  in  its  proposal  for  a 
Regulation  on  13 September 2017.  The  Commission  is  committed  to  continuing  to  monitor 
and  discuss  a  range  of  ECI  issues  in  close  cooperation  and  coordination  with  the  various 
stakeholders and institutions and to improving the instrument. 

During  the  reporting  period,  the  expert  group  on  the  European  citizens’  initiative  has  met 
seven times161. It is composed of representatives from the relevant national authorities and its 
role is to coordinate with EU countries on how the ECI is being implemented. 

154 ECI register: http://ec.europa.eu/citizens-initiative/public/welcome  
155 https://europa.eu/citizens-initiative/initiatives/details/2017/000002_en  
156 C(2017) 8414 final 
157 COM(2015) 145 final 
158 COM(2017) 482 
159 Regulation (EU) 2019/788 of the European Parliament and of the Council of 17 April 2019 on the European 
citizens' initiative, OJ L 130, 17.5.2019, p. 55–81. 
160 COM(2018) 157 final  
161 https://europa.eu/citizens-initiative/expert-group-meetings_en  

23