For the sake of completeness, I must reject EPSU’s contention that, by its correspondence and communications, the Commission had given assurances from which it subsequently departed, since it runs counter to the objective of the consultation provided for in the <mask> field. As is apparent from point 60 of this Opinion, under Article 154(2) TFEU, before submitting proposals in the social policy field, the Commission is to consult management and labour on the possible direction of Union action. It follows from the very wording of that provision that consultation is designed to enable the various parties to submit their requests and observations, with a view to having the Commission submit, at EU level, a particular proposal. Therefore, if consultation and the provision of related information were considered to create a binding obligation for interested parties, that process would be deprived of its natural content. It thus seems to me impossible to support EPSU’s contention that consultation may cause the parties to such consultation to entertain legitimate expectations as to future political decisions.   In addition, as to the possibility of the Commission being bound by its earlier observations or communications it has published, like the position taken by the Commission at the hearing, it is clear to me that those observations or those communications cannot, under any circumstances, alter the powers conferred on that institution by the Treaties and, in particular, by Article 17(2) TEU.


93 The concept of ‘objective reasons’, within the meaning of Clause 5(1)(a) of the framework agreement, must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate <mask> objective of a Member State (judgment of 24 June 2021, Obras y Servicios Públicos and Acciona Agua, C‑550/19, EU:C:2021:514, paragraph 59 and the case-law cited).


(Reference for a preliminary ruling – <mask> – Equal treatment in employment and occupation – Directive 2000/78/EC – Prohibition of discrimination on grounds of disability – Article 2(2)(a) – Article 4(1) – Article 5 – National legislation laying down auditory acuity requirements for prison officers – Non-compliance with the prescribed minimum standards of sound perception – Absolute bar to continued employment)


(Reference for a preliminary ruling – <mask> – Equal treatment in employment and occupation – Directive 2000/78/EC – Prohibition of discrimination on grounds of disability – Article 2(2)(a) – Article 4(1) – Article 5 – Charter of Fundamental Rights of the European Union – Articles 21 and 26 – United Nations Convention on the Rights of Persons with Disabilities – Duties of juror in criminal proceedings – Blind person – Total exclusion from participation in criminal proceedings)


In the first place, it merely needs noting that social security schemes are often based on a model of the family in which the man, who is automatically attributed the role as head of the family, is regarded as the person who works and bears all the costs relating to his household.   When examining any ‘objective justification’ it is therefore necessary to examine whether some <mask> objectives relied upon to justify a difference in treatment of women have their roots in stereotyped roles or gender stereotypes capable of giving rise to indirect or systemic discrimination.   That model, in which stereotypes of the roles of men and women in society persist,   no longer reflects the reality of European society. Women today form part of the labour market at all levels, mothers and fathers tend to be in a comparable position in terms of parenting and bringing up children   or there are new forms of family structures, such as single-parent families, which no longer conform to the traditional family model.


(Reference for a preliminary ruling – <mask> – Directive 2008/94/EC – Articles 2 and 3 – Protection of employees in the event of the insolvency of their employer – Concepts of ‘employees’ outstanding claims’ and ‘insolvency of an employer’ – Accident at work – Death of the employee – Compensation for non-material damage – Recovery of the claim against the employer – Impossible – Guarantee institution)


(Reference for a preliminary ruling – <mask> – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Clause 4 – Principle of non-discrimination – Rejection of a request for leave of absence by reason of employment in the public sector provided for permanent staff regulated under administrative law – National legislation excluding entitlement to such leave when taking up temporary employment – Scope – Inapplicability of clause 4 – Lack of jurisdiction of the Court)


In that regard, it follows from the Court’s case-law that the concept of ‘objective reasons’, within the meaning of Clause 5(1)(a) of the Framework Agreement, must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate <mask> objective of a Member State (judgment of 14 September 2016, Pérez López, C‑16/15, EU:C:2016:679, paragraph 38 and the case-law cited).


(References for a preliminary ruling – <mask> – Protection of the safety and health of workers – Directive 2003/88/EC – Article 7 – Worker unlawfully dismissed then reinstated in his or her employment by decision of a court – Exclusion of any right to paid annual leave not taken for the period between the dismissal and the reinstatement – No right to financial compensation in lieu of annual leave not taken for that period where the employment relationship subsequently ceases)


(Reference for a preliminary ruling – <mask> – Directive 2010/18/EU – Revised Framework Agreement on parental leave – National legislation making the grant of a right to parental leave subject to a condition of employment and to the mandatory affiliation in that regard of the worker to the social security scheme concerned on the date on which the child was born)


The references to Articles 151 and 153 TFEU in paragraph 85 of the judgment under appeal, which admittedly cover the Union’s <mask> objectives, change nothing in that regard. Those provisions are, it is claimed, irrelevant in the present case, which is concerned with assessing the compatibility with Article 31(2) of the Charter of a legislative act adopted on the basis of Article 336 TFEU.


However, I believe that the derogation provided for in Article 6(1) of Directive 2000/78 is irrelevant in the present case, in the light of the aims pursued by the legislation at issue in the main proceedings. That article lays down a list of aims that a measure must pursue in order to benefit from the derogation. Although that list is admittedly not exhaustive and is purely illustrative,   as evidenced by the EU legislature’s use of the word ‘include’, that circumstance does not mean that any kind of aim whatsoever can be invoked under that article. The Court has already held that the aims which may be considered legitimate within the meaning of Article 6(1) of Directive 2000/78 are <mask> objectives.   In particular, in Prigge and Others, it held that the aim of air traffic safety cannot be a legitimate aim within the meaning of that article.


It should be noted that that case-law has been criticised by academic commentators, who take issue with that change of approach.   That said, I would underscore the fact that, irrespective of whether emphasis is placed on the Member States’ margin of discretion in choosing the measures capable of achieving the aims of their <mask> as being ‘reasonable’ or ‘broad’, the Court has nevertheless held that the margin of discretion cannot have the effect of frustrating the implementation of a fundamental principle of EU law such as that of equal treatment.


However, the Court added that the Community included not only an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital, but also a policy in the social sphere. The Court thus found that since the Community had not only an economic but also a social purpose, the rights under the provisions of the Treaty on the free movement of goods, persons, services and capital had to be balanced against the objectives pursued by <mask>, which included, inter alia, improved living and working conditions, so as to make possible their harmonisation while improvement was maintained, proper social protection and dialogue between management and labour.   On the basis of a balance struck between the competing interests, the Court subsequently gave guidance on the interpretation of Article 43 EC to the national court enabling it to rule on the dispute before it.


(Reference for a preliminary ruling — <mask> — Protection of employees in the event of the insolvency of their employer — Directive 2008/94/EC — Article 8 — Supplementary pension schemes — Protection of entitlement to old-age benefits — Minimum guaranteed level of protection — Former employer’s obligation to offset a reduction in an occupational old-age pension — External pension institution — Direct effect)


With regard to the objective of the State, as an employer, of reducing the public-sector wage costs, I note that the Court has ruled that the aims which may be considered ‘legitimate’ within the meaning of Article 6(1) of Directive 2000/78 and, consequently, appropriate for the purposes of justifying derogation from the principle prohibiting discrimination on grounds of age, are <mask> objectives, such as those related to employment policy, the labour market or vocational training.   As a result of their public interest, such legitimate aims are distinguishable from purely individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness, although it cannot be ruled out that a national rule may recognise, in the pursuit of those legitimate aims, a certain degree of flexibility for employers.


It is, therefore, beneath the umbrella of the above legal principle that the Court decides whether considerations of <mask>, of State organisation, of ethics, or even budgetary concerns which influenced, or may have influenced, the establishment by the national legislature of a particular scheme prevail, so that a given pension scheme falls within Directive 79/7. The three principles elaborated above (point 76) are a guide to determining when Directive 79/7 does not apply to a given pension scheme, but at the same time the guidelines cannot be considered in a vacuum removed from the broader corpus of relevant legal principles. These include, I would add, the importance in the EU legal order of the primary rule prohibiting unequal treatment with respect to pay.


As regards, in the second place, Articles 151 and 153 TFEU, it suffices to observe, as the European Commission has pointed out, that those articles of the Treaty establish the general objectives and measures of the EU’s <mask>, and that the right claimed by Ms Baldonedo Martín or the obligation for a Member State to ensure such a right cannot be deduced from such provisions (see, to that effect, the judgment of 21 March 2018, Podilă and Others, C‑133/17 and C‑134/17, not published, EU:C:2018:203, paragraph 37).


(Reference for a preliminary ruling — Admissibility — Article 267 TFEU — Definition of ‘court or tribunal of a Member State’ — Criteria — <mask> — Directive 2003/88/EC — Scope — Article 7 — Paid annual leave — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clauses 2 and 3 — Concept of ‘fixed-term worker’ — Magistrates and ordinary judges — Difference in treatment — Clause 4 — Principle of non-discrimination — Concept of ‘objective grounds’)


In terms of identifying the objectives pursued by the Special Scheme for Domestic Workers, the reasons advanced by the Spanish Government and the TGSS – relating to encouraging recruitment, safeguarding levels of employment, employee protection and combating social security fraud and illegal work – are indisputably legitimate <mask> objectives. Nevertheless, it should be noted that in relation to indirect discrimination, the objective justification cannot consist solely of a list of social policy objectives which appear at first sight to be legitimate: those objectives must be unrelated to any discrimination on grounds of sex.   The Court has repeatedly held that mere generalisations are insufficient to show that the aim of a national rule is unrelated to any discrimination on grounds of sex.   Consequently, it remains necessary to determine whether the social policy reasons claimed by the Spanish Government and the TGSS are objectively unrelated to any discrimination on grounds of sex.


In particular, in the context of equal treatment in matters of employment and occupation, the Court has already held that encouragement of recruitment undoubtedly constitutes a legitimate aim of <mask>.   In relation specifically to Article 4(1) of Directive 79/7, the Court has held that, concerning access to a statutory unemployment scheme, combating an increase in unlawful employment and circumventing devices was an objective ground of justification.


(Request for a preliminary ruling — Admissibility — External and internal independence of the courts — <mask> — Directive 2003/88/EC — Working time — Article 7 — Paid annual leave — Magistrates — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4 — Prohibition on discrimination — Liability of the Member States for infringements of EU law)


“overriding reasons relating to the public interest” means reasons recognised as such in the case-law of the Court of Justice, including the following grounds: public policy; public security; public safety; public health; preserving the financial equilibrium of the social security system; the protection of consumers, recipients of services and workers; fairness of trade transactions; combating fraud; the protection of the environment and the urban environment; the health of animals; intellectual property; the conservation of the national historic and artistic heritage; <mask> objectives and cultural policy objectives.


Article 4(8) of Directive 2006/123 states that the overriding reasons relating to the public interest on which the Member States are entitled to rely are reasons recognised as such in the case-law of the Court, which include, in particular, grounds relating to the protection of the urban environment (judgment of 30 January 2018, X and Visser, C‑360/15 and C‑31/16, EU:C:2018:44, paragraph 135), and <mask> objectives.


As regards the budgetary considerations referred to by the Spanish Government, it should be borne in mind that, whilst those considerations may underlie a Member State’s choice of <mask> and influence the nature or scope of the measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy and, therefore, cannot justify discrimination.


(Reference for a preliminary ruling — <mask> — Organisation of working time — Directive 2003/88/EC — Article 6(b) and Article 16 — Maximum weekly working time — Derogation — Article 17(2) and (3) and the first paragraph of Article 19 — Police officers — Reference period — Rolling or fixed nature — Protection of the safety and health of workers)


(Request for a preliminary ruling — <mask> — Fixed-term employment — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Principle of non-discrimination of fixed-term workers — Staff employed under an administrative contract — Grant of additional remuneration — Remuneration for promotion and development in a professional career — Exclusion of contract staff — Comparability of situations — Justification — Definition of ‘objective grounds’)


(Reference for a preliminary ruling – <mask> – Framework Agreement on part-time work – Clause 4 – Principle of non-discrimination – Less favourable treatment of part-time workers compared to full-time workers as regards their conditions of employment – Prohibition – National legislation fixing a maximum duration of fixed-term employment that is longer for part-time workers than for full-time workers – Principle of pro rata temporis – Directive 2006/54/EC – Equal treatment of men and women in matters of employment and occupation – Article 2(1)(b) – Concept of ‘indirect discrimination’ on grounds of sex – Article 14(1)(c) – Employment and working conditions – Article 19 – Burden of proof)


Commission Communication of 14 December 1993 presented by the Commission to the Council and the European Parliament concerning the application of the agreement on <mask> (COM(93) 600 final); Commission Communication of 18 September 1996 concerning the Development of the Social Dialogue at Community level (COM(96) 448 final); Communication from the Commission of 20 May 1998 adapting and promoting the social dialogue at Community level (COM(1998) 322 final); and Communication from the Commission of 2 October 2013 to the European Parliament, Council, the European Economic and Social Committeee and to the Committee of the Regions, ‘Regulatory Fitness and Performance (REFIT): Results and Next Steps’ (COM(2013) 685 final).


The Council, for its part, is required to verify whether the Commission has fulfilled its obligations under the treaties and in particular Title X of the third part of the TFEU, on <mask>, because, if that is not the case, it runs the risk of ratifying a procedural irregularity capable of vitiating the measure ultimately adopted by it (see, by analogy, the judgment of 17 June 1998, UEAPME v Council, T‑135/96, EU:T:1998:128, paragraph 87). Furthermore, both the applicants and the Commission recognise that the Council has a discretion as to whether it is appropriate for it to adopt a decision implementing an agreement and that it may not be able to adopt such a decision in the absence of agreement by qualified majority or unanimity, depending on the case, within the Council.


In respect of consultation, Article 154(2) TFEU provides that before submitting proposals in the <mask> field, the Commission is to consult management and labour on the possible direction of Union action. Next, Article 154(3) TFEU provides that if, after that first round of consultation, the Commission considers Union action advisable, it is to consult management and labour again on the content of the envisaged proposal.


(References for a preliminary ruling – <mask> – Directive 1999/70/EC – Framework Agreement, concluded by ETUC, UNICE and CEEP regarding fixed-term work – Clause 5 – Concept of ‘successive fixed-term employment contracts or relationships’ – Failure by the employer to respect the relevant legal deadline for definitively filling posts temporarily occupied by fixed-term workers – Implicit extension of the employment relationship from year to year – Occupation by a fixed-term worker of the same post in the context of two consecutive appointments – Concept of ‘objective reasons’ justifying the renewal of successive fixed-term employment contracts or relationships – Respect for the reasons for recruitment provided for by the national legislation – Concrete examination finding that the successive renewal of fixed-term employment relationships seeks to cover the employer’s permanent and regular staffing needs – Measures seeking to prevent and, where appropriate, to punish abuses resulting from the use of successive fixed-term employment contracts or relationships – Selection procedures seeking to definitively fill posts occupied temporarily by fixed-term workers – Conversion of the situation of fixed-term workers into ‘non-permanent workers of indefinite duration’ – Grant to the worker of compensation equal to that paid in the event of unfair dismissal – Applicability of the Framework Agreement despite the fact that the worker consented to successive renewals of fixed-term contracts – Clause 5(1) – Absence of obligation for national courts to disapply inconsistent national legislation)


The measure implemented by the Province of Upper Austria at issue in the main proceedings is not after all a general measure comparable to a fiscal or other regulation. Although its housing funding policy is a general <mask> measure designed to support both individual beneficiaries and the general welfare needs of the province, the funding loans granted under that general housing funding policy, during the course of which the contested losses were incurred, represent a bundle of very specific measures adopted case by case for individual beneficiaries.


The provisions of the TFEU refer to both ‘third countries’ and ‘third States’. However, it should be noted that many provisions dealing with issues concerning <mask> use the term ‘third countries’, since international society is not made up of ‘States’ alone. In particular, Part Five of the TFEU, headed ‘The Union’s external action’, reflects the fact that international society is composed of various actors and, therefore, contains Title III on cooperation ‘with third countries’ and Title VI on relations ‘with international organisations and third countries’.


Eeckhout, P., EU <mask> Law, 2nd Edition, Oxford 2012, p. 486, states that the Council is the most important institution in the sphere of the common foreign and security policy. Although the adoption of decisions in application of the FEU Treaty is characterised by a clear separation of powers between the Parliament, the Council and the Commission, which requires constant cooperation between those institutions, the Council clearly ‘controls’ the common foreign and security policy. The author explains that the functions carried out by the Council in that sphere are mainly of an ‘executive’ nature.


9 A significant number of international agreements to which the European Union is a party are concluded as mixed agreements. Rosas cited a study conducted in 2001 that found 154 mixed agreements. The number is likely higher today. See Rosas, A., ‘Mixity Past, Present and Future: Some Observations’, in Chamon, M. and Govaere, I. (eds), EU <mask> Post-Lisbon, Brill NV, Leiden, 2020, pp. 8-18, at p. 4.


GVC maintains that EU law is applicable to Gibraltar, which is a European territory for whose <mask> a Member State is responsible within the meaning of Article 355(3) TFEU, and that the distribution of dividends falls outside the exclusion provisions laid down in Articles 28 to 30 of the 1972 Act of Accession. In that regard, the applicant takes the view that its parent company satisfies the requirements of Article 2 of Directive 2011/96, in that it can be equated with a company incorporated in the United Kingdom, and is subject to corporation tax in Gibraltar – which, it argues, can be equated with ‘corporation tax in the United Kingdom’, as referred to in the last indent of Part B of Annex I to the directive.


See, in that regard, Opinion of Advocate General Wathelet in Rosneft (C‑72/15, EU:C:2016:381, points 36 to 76), and Opinion of Advocate General Bobek in SatCen v KF (C‑14/19 P, EU:C:2020:220, points 51 to 85). See further, for example, Butler, G., Constitutional Law of the EU’s Common Foreign and Security Policy: Competence and Institutions in <mask>, Hart, 2019, pp. 145-222.


74. There is thus no legal nor factual basis upon which to hold that the European Union exceeded the boundaries of its discretion in the conduct of <mask> by not continuing to permit British nationals residing within the European Union to exercise the right to vote and to stand as a candidate in Member State municipal elections after the withdrawal of the United Kingdom, either by way of a unilateral decision or the outcome of negotiations with the United Kingdom.


Article 4(3) TEU could be applied on its own, in particular because the subject of the dispute fell within the sphere of the <mask> of the European Union and because the European Union was a party to the agreement. The Court accordingly held that, where the subject matter of an agreement or convention falls partly within the competence of the European Union and partly within that of its Member States, it is essential to ensure close cooperation between the Member States and the EU institutions, both in the process of negotiation and conclusion and in the fulfilment of the commitments entered into. The Court inferred therefrom that the obligation to cooperate flows from the requirement of unity in the international representation of the European Union (judgment of 20 April 2010, Commission v Sweden, C‑246/07, EU:C:2010:203, paragraph 73). See also, judgment of 30 May 2006, Commission v Ireland (C‑459/03, EU:C:2006:345).


80. However, the procedure under Article 218 TFEU ensures that EU institutions enjoy similar powers when competences are exercised in <mask> as those that they enjoy in internal legislative procedures. The Court has recognised as much in its case-law. It confirmed that Article 218(6)(a)(v) TFEU (69) lays down the procedure applicable in the case of agreements which cover areas to which the ordinary legislative procedure applies. (70) It has considered that the two procedures ensure a similar institutional balance. (71) In both cases, the Commission enjoys the power of initiative, the Council decides by qualified majority and the consent of the European Parliament is required.


See Opinion of Advocate General Jääskinen in L’Oréal and Others (C‑324/09, EU:C:2010:757, point 125), and my recent Opinion in Google (Territorial scope of de-referencing) (C‑507/17, EU:C:2019:15, points 51 to 53). See, also, Jääskinen, N., Ward, A., ‘The External Reach of EU Private Law in the Light of L’Oréal versus eBay and Google and Google Spain’, in Cremona, M., Micklitz, H.W., Private Law in the <mask> of the EU, Oxford University Press, Oxford, 2016, pp. 128 and 144.


158 Fourthly, contrary to what the Commission claims, the recognition of the applicant’s capacity to bring legal proceedings before the General Court does not transform the latter into a ‘quasi-international’ court. First of all, the present dispute does not concern the international ‘dispute’ to which the applicant is a party, but an action for annulment of an EU act. Next, in so far as it is solely for the General Court to ascertain whether the applicant satisfies the conditions of admissibility specific to EU law, and in particular those arising from the concept of ‘legal person’, the admission of its action is made within the strict framework of the exercise of the jurisdiction conferred on the General Court by EU law. Finally, since the exercise of the powers conferred on the EU institutions in international matters cannot escape judicial review, recognition of the applicant’s capacity to bring proceedings before the courts cannot have the consequence that the General Court takes the place of the institutions managing the <mask> of the European Union and adopts a ‘political’ decision. Moreover, the General Court cannot give priority to considerations of international policy and expediency over the rules on admissibility laid down in the fourth paragraph of Article 263 TFEU (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 109 to 113 and the case-law cited).


Although the use of the Article 218(11) TFEU procedure remains relatively rare, the Opinions of the Court based on that provision have nonetheless generally been of considerable practical importance, not least because of the clarification which they have provided regarding the scope of the Union’s competences in the field of international law, international agreements and cognate matters. The Court’s Opinions have accordingly enunciated fundamental principles of <mask> law, ranging from the exclusivity of Union competences to the principle of autonomy and its application in particular to international dispute settlements. Some of the Opinions of the Court have laid down constitutional principles of significance which go beyond the immediate questions raised or even the confines of EU external relations law.


Accordingly, whenever the Member States act jointly in the Union’s interest since the Union itself is prevented from exercising its external competence on account of the rules of international law, they do not act as representatives of the Union but act in their own name as its trustees.   In consequence, they (and not the Union) become subjects of rights and obligations flowing from the concluded agreements.   I am thus of the view that the sixth sentence of Article 17(1) TEU, in so far as it provides for the Commission’s prerogative of representation of the Union in <mask>, is not applicable to situations where the Union is not acting in its own name.


342 In this regard, in the first place it should be borne in mind that, in the context of <mask>, and in particular of commercial policy, the institutions enjoy a broad margin of appreciation, given the complexity of the assessments, particularly of a political and economic nature, which they are required to make in that context (see judgment of 27 September 2007, Ikea Wholesale, C‑351/04, EU:C:2007:547, paragraph 40 and the case-law cited). Moreover, in the context of an association agreement such as the one at issue in the present case, which constitutes a complex contractual entity comprising several strands and reflects the common will of the parties to establish close relations and, where appropriate, to intensify them (see, to that effect, judgment of 27 February 2018, Western Sahara Campaign UK, C‑266/16, EU:C:2018:118, paragraphs 59 to 61), the institutions must be able to reconcile the various interests arising in relations with the non-member State which is a partner of the European Union and determine the most appropriate strategy in that regard (see, to that effect and by analogy, order of 25 September 2019, Magnan v Commission, T‑99/19, EU:T:2019:693, paragraph 54 and the case-law cited).


609 It follows, first, from the note of 22 April 2004 that representation and reception expenses were intended primarily to promote the <mask> of the Court of Auditors and that its Members represented it inter alia when they maintained, in the interest of that institution, professional contacts with individuals holding positions within the European Union, Member States or other countries.


Mr De Esteban Alonso is a former official of the Commission who has been retired since 1 August 2006 and who, inter alia, served as Director of the Information technology, Publications and <mask> Directorate at the Statistical Office of the European Union (Eurostat) from 1 January 1993 to 31 January 1997, before being appointed to another post at the Commission.


The appellant entered the service of the European Commission as an official in 1994. In 1999, while working at the Commission’s Directorate-General (DG) for <mask>, he or she was entrusted with the management of the Commission’s buildings in third countries. From 1 January 2011, the appellant was posted to the EEAS. On 1 January 2016 the appellant took early retirement.


334 In that regard, in the first place, it must be recalled that, while the case-law recognises that the institutions have a broad margin of discretion in areas which involve complex assessments, in particular of a political and economic nature, such as <mask> and fisheries policy, the judicial review of a manifest error of assessment requires that the EU institutions which adopted the act in question must be able to show before the EU Courts that in adopting the act they actually exercised their discretion, which presupposes the taking into consideration of all the relevant factors and circumstances of the situation the act was intended to regulate. Moreover, the institutions’ discretion may be limited, including in the context of such areas, by a legal concept establishing objective criteria (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 342 to 347 and the case-law cited).


99 In that regard, the EU institutions enjoy broad discretion in policy decisions in the conduct of <mask> (see, to that effect, judgment of 21 December 2016, Swiss International Air Lines, C‑272/15, EU:C:2016:993, paragraph 24). In the exercise of their prerogatives in that area, those institutions may enter into international agreements based, inter alia, on the principle of reciprocity and mutual advantages. Thus, they are not required to grant, unilaterally, third-country nationals rights such as the right to vote and to stand as a candidate in municipal elections in the Member State of residence, which, moreover, is reserved solely to Union citizens, under Article 20(2)(b) TFEU, Article 22 TFEU and Article 40 of the Charter.


In that regard, it is now established that Gibraltar is a European territory for whose <mask> a Member State (namely, the United Kingdom) is responsible, and that EU law is applicable to that territory pursuant to Article 355(3) TFEU. By way, however, of derogation from Article 355(3) TFEU, under the 1972 Act of Accession, EU acts (including legislative acts) do not apply to Gibraltar in certain areas of EU law.


In the present case, it should be noted that paragraphs 61 to 67 of the application contain a summary of the legal arguments by which the applicant challenges by his fourth plea, alleging infringement of the EU rules on the use of languages, the lawfulness of the notice of competition in the light of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ 1958 L 17, p. 385), as amended by Council Regulation (EU) No 517/2013 of 13 May 2013 adapting certain regulations and decisions in the fields of free movement of goods, freedom of movement for persons, company law, competition policy, agriculture, food safety, veterinary and phytosanitary policy, transport policy, energy, taxation, statistics, trans-European networks, judiciary and fundamental rights, justice, freedom and security, environment, customs union, <mask>, foreign, security and defence policy and institutions, by reason of the accession of the Republic of Croatia (OJ 2013 L 158, p. 1) (‘Regulation No 1’), and of the principle of equal treatment. That summary is sufficiently clear and precise to enable the Parliament to prepare its defence and the Court to exercise its power of review. The fourth plea must therefore be declared admissible.


Since, during the period relevant to the main proceedings, Gibraltar was a European territory for whose <mask> a Member State, namely the United Kingdom, was responsible, EU law was, in principle, applicable in that territory pursuant to Article 355(3) TFEU, subject to the express exemptions set out in the 1972 Act of Accession (judgment of 23 September 2003, Commission vUnited Kingdom, C‑30/01, EU:C:2003:489, paragraph 47; order of 12 October 2017, Fisher, C‑192/16, EU:C:2017:762, paragraph 29; and judgment of 23 January 2018, Buhagiar and Others, C‑267/16, EU:C:2018:26, paragraph 31 and the case-law cited).


It therefore seems necessary to examine the national legislation in the light of the freedoms of movement and, in particular, the freedom of establishment. Indeed, as already said, Gibraltar is a European territory for whose <mask> a Member State is responsible, and that EU law is in principle applicable to that territory pursuant to Article 355(3) TFEU.   It is also clear and established that the exclusions of the territory of Gibraltar from the application of Union acts in certain areas of law, laid down in the 1972 Act of Accession, do not relate to the freedom of establishment or to the free movement of capital, guaranteed by Articles 49 and 63 TFEU respectively. In other words, Articles 49 and 63 TFEU apply to the territory of Gibraltar by virtue of Article 355(3) TFEU.


98 As regards, secondly, the examination of the validity of Decision 2020/135 in the light of the principle of proportionality, it must be pointed out that there is nothing in the documents before the Court to suggest that the European Union, as a contracting party to the Withdrawal Agreement, exceeded the limits of its discretion in the conduct of <mask>, by not requiring that, in that agreement in general or in Article 127 thereof in particular, a right to vote and to stand as a candidate in municipal elections in the Member State of residence be provided for United Kingdom nationals who exercised their right to reside in a Member State before the end of the transition period.


14 The term was coined by Rosas, A., ‘Mixed Union – Mixed Agreements’, in Koskenniemi, M. (ed.), International Law Aspects of the European Union, Brill Nijhoff, Leiden, 1998, p. 131. See also Chamon, M. and Govaere, I., ‘Introduction: Facultative Mixity, More than Just a Childhood Disease of EU Law?’ in Chamon, M. and Govaere, I. (eds), EU <mask> Post-Lisbon, Brill NV, Leiden, 2020, p. 2; Govaere, I., ‘Facultative’ and ‘Functional Mixity’ in light of the Principle of Partial and Imperfect Conferral, College of Europe Research Paper in Law 03/2019; Hillion, C. and Chamon, M., ‘Facultative Mixity and Sincere Cooperation’, in Chamon, M. and Govaere, I. (eds), EU External Relations Post-Lisbon, Brill NV, Leiden, 2020, p. 86.


25 That decision was accompanied by a note of 22 April 2004 for the attention of the Members of the Court of Auditors containing ‘suggestions with regard to representation and reception expenses’ (‘the note of 22 April 2004’). According to that note: ‘… Representation expenses are intended primarily to promote the <mask> of the Court [of Auditors]. Members represent the Court [of Auditors] inter alia when they maintain, in the interest of the Court [of Auditors], professional contacts with individuals holding positions within the European Union …, Member States or other countries. … Expenditure for each event must be commensurate with its size and the status of the attendees. When Members represent the Court [of Auditors], their spouse/partner may also be called upon to attend the event. Guests may also be accompanied. Friends or personal contacts must be given private invitations. … Relevant guidance is provided in Annex 1. Expenses must be declared clearly and succinctly using Annex 2.’


66 See, for example, De Baere, G. and Roes, T., ‘EU loyalty as good faith’, International & Comparative Law Quarterly, vol. 64, 2015, p. 829; Cremona, M. (ed.), Structural Principles in EU <mask> Law, Hart Publishing, Oxford, 2018; Van Elsuwege, P., ‘The Duty of Sincere Cooperation and Its Implications for Autonomous Member State Action in the Field of External Relations’, in Varju, M. (ed.), Between Compliance and Particularism: Member State Interests and European Union Law, Springer, Cham, 2019, p. 283; Eckes, C., ‘Disciplining Member States: EU Loyalty in External Relations’, Cambridge Yearbook of European Legal Studies, vol. 22, 2020, p. 85.


80. Any other interpretation would threaten the balance between the institution whose role is to express the general interest of the European Union and the governments, which is at the heart of the legal structure of the European Union. (33) Indeed, no more would be required, in order to defeat the restrictions inherent in the European Union having exclusive competence in certain areas, than for the Council, acting on its own initiative, to empower the Member States to act pursuant to Article 2(1) TFEU, when adopting an act proposed by the Commission which did not envisage any such empowerment. In the context of <mask>, that could mean that, even in an area in which the European Union has exclusive competence, the Council was able to authorise the Member States to act alongside the European Union, which could undermine its exclusive competence. (34)


69. Relying on the notion of pre-emption allows for the resolution of another common confusion in EU <mask>, the one by which the question of the EU’s implied external competence is conflated with that of the exclusivity of its external competence. (58) Namely, the EU has implied external competence in all areas in which it has internal competence (exclusive or shared). The exercise of a competence envisaged internally as shared precludes Member States from exercising that competence internally or externally. (59)


65. The inability of Member States to enter into international agreements if doing so would affect common rules is also the result of pre-emption. However, in the organisation of the Treaties, such pre-emption is placed under the provision relating to exclusive competences (Article 3(2) TFEU). That might be the reason why the exercise of competences in <mask> is often seen and explained differently from the exercise of competences in internal relations.


72. It should also be observed that the case-law acknowledges that the EU institutions enjoy a broad discretion in policy decisions adopted in the conduct of <mask>. (49) In the exercise of their external policy prerogatives, the EU institutions may therefore legitimately enter into international agreements with their partners based on the principle of reciprocity and mutual advantages. (50)


113 In the fifth place, as regards the Commission’s claim that the General Court is substituting itself for the institutions managing the <mask> of the European Union and adopting a ‘political’ decision by recognising the applicant’s capacity to bring legal proceedings, it must be borne in mind that the exercise of the powers conferred on the EU institutions in international matters cannot escape judicial review. Moreover, the EU Courts cannot give precedence to considerations of international policy and expediency over the rules on admissibility laid down in the fourth paragraph of Article 263 TFEU without overstepping their jurisdiction (see, to that effect and by analogy, order of 25 September 2019, Magnan v Commission, T‑99/19, EU:T:2019:693, paragraphs 34 and 42 and the case-law cited).


As regards EU law, Gibraltar is a European territory for whose <mask> a Member State is responsible within the meaning of Article 355(3) TFEU and to which the provisions of the Treaties apply. The Act concerning the Conditions of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland and the Adjustments to the Treaties   (‘the 1972 Act of Accession’) provides, however, that certain parts of the Treaty are not to apply to Gibraltar.


Mr Pinxten was a Member of the ECA from 1 March 2006 to 30 April 2018 when his mandate expired. He was assigned to Chamber III of that institution, responsible for auditing the European Union’s expenditure on <mask>, enlargement and humanitarian aid. From 4 April 2011 until 30 April 2018, Mr Pinxten held the office of Dean of Chamber III.


According to Mr De Esteban Alonso, although he was not ‘referred to by name’ in the conclusions of the OLAF report, he was nonetheless ‘implicated’. The note of 19 March 2003 referred to him implicitly, but necessarily, given his capacity as Director of Information technology, Publications and <mask> and as Mr Byk’s superior. That is why an investigation file concerning him was opened on 4 April 2013 after OLAF forwarded the note to the French judicial authorities. Similarly, he was placed under formal investigation on the basis of the information contained in the note. Contrary to what is claimed by the Commission in its appeal, the General Court relied on the information that was contained in the note and merely corroborated by the dismissal order.


92. In reality the second plea is intrinsically linked to the first in that they both relate to the same difficulty; that of the power to authorise the Member States to act in an area in which the European Union has exclusive competence in the context of <mask>. However, while the first plea concerns the relationship between the rules contained in Article 2(1) TFEU and the Commission’s right of initiative, the second relates to the interpretation of Article 2(1) TFEU.


Whilst it is necessary that the sphere in question is demarcated in a sufficiently precise manner, the question arises whether, in view in particular of the third question referred — given that it concerns the options open to a Contracting Party when another Contracting Party enters a reservation and is located in the field of <mask> — it is appropriate to rely also on case-law concerning Article 3(2) TFEU.


For the overview of the case-law, see Wouters, J., Hoffmeister, F., De Beere, G., Ramopoulos, T., The Law of EU <mask>. Cases, Materials, and Commentary on the EU as an International Legal Actor, Third edition, Oxford University Press, Oxford, pp. 24, 25, 139 and 166. See also Van Elsuwege, P., ‘The Duty of Sincere Cooperation and its Implications for Autonomous Member State Action in the Field of External Relations’ in Varju, M., (ed.), Between Compliance and Particularism. Member State Interests and European Union Law, Springer, Cham, pp. 283-297.


It follows that the provisions of the TFEU relating to ‘third countries’ are clearly intended to pave the way for the conclusion of international agreements with entities ‘other than States’. Thus, the European Union may conclude international agreements with territorial entities, covered by the flexible concept of ‘country’, which have the capacity to conclude treaties under international law but which are not necessarily ‘States’ for the purposes of international law. To claim the contrary would be to create a legal vacuum in the European Union’s <mask>.


The applicant argued that EU law was applicable to Gibraltar, which had the status of a European territory for whose <mask> the United Kingdom is responsible. The applicant relied on Article 355(3) TFEU and contended that the payment of dividends did not come within the exceptions in Articles 28 to 30 of the 1972 Act of Accession. In this connection, the applicant took the view that the parent company satisfied the requirements of Article 2 of Directive 2011/96: it could be equated with a company incorporated in the United Kingdom and was subject to corporation tax in Gibraltar, which was able to be equated with corporation tax in the United Kingdom, as referred to in Annex I, Part B, to Directive 2011/96.


Those considerations lead me to conclude that a decision to revoke the assurance as to the grant of nationality, such as the contested decision, which entails the permanent loss of <mask> by the person concerned, in a situation such as that at issue in the main proceedings, on the ground of administrative offences related to road safety, specifically offences which do not entail the withdrawal of the individual’s driving licence, is not in compliance with the principle of proportionality under EU law.


Furthermore, it is indisputably the contested decision that led to JY’s permanent loss of <mask>, and it is therefore the Austrian authorities which are obliged to ensure that a national such as JY does not lose citizenship of the Union, as conferred by Article 20 TFEU, depriving her of all of the rights attaching thereto, contrary to the principle of proportionality.


With regard, first, to the consistency of the national legislation, I will simply pose the following question: is it consistent, for a national legal system, that offences related to road safety cannot be regarded as sufficiently serious to entail the withdrawal of a driving licence but can lead to the revocation of the assurance as to the grant of nationality from the person concerned and to the loss of <mask> and all the rights attaching thereto?


In that context, it must be borne in mind that the rights which third-country nationals derive from the provisions of EU law on <mask> are not autonomous rights of those nationals, but rights derived from the exercise of freedom of movement and residence by a Union citizen. The purpose and justification of those derived rights are based on the fact that a refusal to allow such rights would be liable to interfere with the Union citizen’s freedom of movement by discouraging him or her from exercising his or her rights of entry into and residence in the host Member State (judgment of 16 July 2015, Singh and Others, C‑218/14, EU:C:2015:476, paragraph 50 and the case-law cited).


Contrary to what the Austrian Government essentially contends, the situation of a national of a Member State who, like JY, has renounced his or her original nationality with the sole aim of satisfying the condition to obtain the assurance of the grant of Austrian nationality imposed by the national legislation and, therefore, for the sole purpose of recovering <mask>, cannot be categorised as ‘voluntary renunciation’. As the Commission points out, such a renunciation occurred where the Austrian authorities had given JY the assurance that, aside from relinquishing her former citizenship, all the other conditions for the grant of Austrian nationality were fulfilled. It is therefore clear, as is apparent from her observations, that JY wanted to retain her citizenship of the Union.


(Reference for a preliminary ruling — Freedom of movement for persons — <mask> — Right to move and reside freely in the territory of the Member States — Directive 2004/38/EC — Article 17(1)(a) — Right of permanent residence — Acquisition before completion of a continuous period of five years of residence — Workers who, at the time they stop working, have reached the age for entitlement to an old age pension)


With regard to the limitations on exercising the right to move and reside within the territory of the European Union as a whole, the competent authorities and the national courts should also take account of the fact that, following the revocation of the assurance of nationality, the person concerned, as is the case with JY, would no longer be able to recover his or her <mask> and that the loss of that status will therefore become permanent.


53. Subsequent judgments have clarified that ‘the Treaty provisions on <mask> do not confer any autonomous right on third-country nationals’ and that ‘any rights conferred on [such nationals] by the Treaty provisions on citizenship of the Union are not autonomous rights of those nationals but rights derived from those enjoyed by the Union citizen’. (25) The Court explained that the foregoing concerned very specific situations in which the effectiveness of such citizenship of the Union would be undermined, ‘if, as a consequence of refusal of such a right [of residence for the third-country national], that citizen would be obliged in practice to leave the territory of the European Union as a whole, thus denying him the genuine enjoyment of the substance of the rights conferred by virtue of his status’. (26)


(Reference for a preliminary ruling – <mask> – Articles 20 and 21 TFEU – Directive 2004/38/EC – Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States – Decision to terminate a person’s residence on grounds of public policy – Preventive measures to avoid any risk of the person concerned absconding during the period allowed for that person to leave the territory of the host Member State – National provisions similar to those applicable to third-country nationals under Article 7(3) of Directive 2008/115/EC – Maximum period of detention for the purpose of removal – National provision identical to that applicable to third-country nationals)


(Reference for a preliminary ruling – <mask> – Article 21 TFEU – Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States – Directive 2004/38/EC – Article 15 – Decision restricting free movement on grounds other than public policy, public security or public health – Illegal residence of a Union citizen in the host Member State – Expulsion decision – Physical departure of the Union citizen from the host Member State – Temporal effects of the expulsion decision – Articles 5, 6 and 7 – Possibility of the Union citizen enjoying a new right of entry or of residence on his or her return to the host Member State)


10 Article 20 TFEU states: ‘1. <mask> is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: (a) the right to move and reside freely within the territory of the Member States; …’ Austrian law


In its written observations, the French Government states that JY’s loss of her <mask> is solely the result of the decision of the Estonian authorities which, without waiting for JY actually to acquire Austrian nationality, approved her application to renounce Estonian nationality. In its view, the approval of an application to renounce the nationality of a Member State made by a citizen of the Union must be made subject to the actual acquisition of the nationality of another Member State or of a third country in order to prevent that citizen being rendered stateless, albeit temporarily.


In the second place, I would like to come back to the point raised previously, namely that the proviso formulated by the Court in the judgment in Micheletti and Others   encompasses both the conditions governing the acquisition of nationality and those governing its loss. The principle laid down in that judgment was confirmed in the judgments in Rottmann   and Tjebbes and Others.   That principle therefore applies in cases such as the present one, which concern the conditions governing the acquisition of nationality, in so far as those conditions entail the loss of <mask> by the person concerned. Thus, in the case of citizens of the Union, the exercise of powers in the sphere of the loss and acquisition of nationality, since it affects all the rights conferred and protected by the EU legal order, is amenable to a judicial review conducted in the light of EU law.


The judgment in Tjebbes and Others, paragraph 32. I note that it is stated in this paragraph that not only do situations that are ‘capable of causing [individuals] to lose [that] status’ fall, by reason of their nature and their consequences, within the scope of EU law (judgment in Rottmann, paragraph 42), but also those in which the individuals ‘are faced with losing the status conferred by Article 20 TFEU and the rights attaching thereto’. My emphasis. In my view, the description of that second type of situation is more direct since it refers to situations in which the persons concerned are forced to face up to the loss of <mask>.


54. That line of case-law thus created a derived right of residence to cover very specific situations in the field of third-country nationals’ rights of residence which falls within the competence of the Member States. Since that derived right of residence is granted solely for the benefit of the Union citizen, it was agreed in return for that encroachment that provision would not be made for any autonomous right for those nationals but merely a right of residence in recognition of the <mask> of their dependent child for the duration of that state of dependency.


31 Thus, EP is in a different situation from that with regard to which the Cour de cassation (Court of Cassation, France) held that the loss of <mask> does not disproportionately affect the civil and political rights of the person concerned, since that person was entitled to vote in the referendum on the withdrawal of the United Kingdom from the European Union and in the general election held in 2019 in that State. However, that is not the case for EP.


(Reference for a preliminary ruling — <mask> — Directive 2004/38/EC — Right of residence of a third-country national who is a direct relative in the ascending line of Union citizens who are minor children — Article 7(1)(b) — Condition of having sufficient resources — Resources consisting of income from work carried out without a residence and work permit)


If the Court held, in that judgment, that the situation at issue fell within the scope of EU law, I fail to see how the view could be taken that a situation such as that of JY, in which the contested decision meant that a national of a Member State was faced with the permanent loss of her <mask> and, therefore, not the loss of the substance of the rights conferred by Article 20 TFEU but that of all of those rights, is not covered by EU law, whereas, unlike Mr Ruiz Zambrano’s children, JY has exercised her right of free movement by going to and lawfully residing in the territory of another Member State.


According to recital 1 of the ECI Regulation, ‘the [TEU] reinforces <mask> and enhances further the democratic functioning of the Union by providing, inter alia, that every citizen is to have the right to participate in the democratic life of the Union by way of a European citizens’ initiative. That procedure affords citizens the possibility of directly approaching the Commission with a request inviting it to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties similar to the right conferred on the European Parliament under Article 225 [TFEU] and on the Council under Article 241 TFEU’.


I would recall in that regard that, after stating, in paragraph 37 of that judgment, that, ‘in view of the establishment of <mask> and the interpretation of the right to equal treatment enjoyed by citizens of the Union, it is no longer possible to exclude from the scope of Article 39(2) EC a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State’, the Court held, in paragraph 38 of the same judgment, that ‘it is … legitimate for a Member State to grant [a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State] only after it has been possible to establish a real link between the jobseeker and the labour market of that State.’ Judgment of 4 June 2009, Vatsouras and Koupatantze (C‑22/08 and C‑23/08, EU:C:2009:344, paragraphs 38 and 39).


64. With regard to Directive 2004/38, the analogy with the mechanism established by that directive may appear persuasive at first sight because the factual circumstances are the same if viewed from the parent’s perspective: the parent, a third-country national, enjoys a derived right of residence linked to his or her child’s <mask> for a period of more than five years. In addition, those two derived rights of residence arise in the context of the free movement of persons, as this is how EU law protects that freedom enjoyed by that Union citizen. (33) In the cases covered by Directive 2004/38 and by Article 21 TFEU, (34) this allows the parent to obtain a right of permanent residence after a period of five years.


(Reference for a preliminary ruling – Freedom of movement for persons – Article 45 TFEU – <mask> – Directive 2004/38/EC – Right of residence for more than three months – Article 14(4)(b) – Jobseekers – Reasonable period of time to acquaint themselves with potentially suitable employment opportunities and take the necessary steps to obtain employment – Requirements imposed by the host Member State on the jobseeker during that period – Conditions governing the right of residence – Obligation to continue seeking employment and to have a genuine chance of being engaged)


(Reference for a preliminary ruling – <mask> – National of a Member State without an activity residing in the territory of another Member State on the basis of national law – The first paragraph of Article 18 TFEU – Non-discrimination based on nationality – Directive 2004/38/EC – Article 7 – Conditions for obtaining a right of residence for more than three months – Article 24 – Social assistance – Concept – Equal treatment – Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland – Transition period – National provision excluding Union citizens with a right of residence for a fixed period under national law from social assistance – Charter of Fundamental Rights of the European Union – Articles 1, 7 and 24)


50 Article 20(2) TFEU and Articles 21 and 22 TFEU attach a series of rights to the status of citizen of the Union. <mask> confers, in particular, on each Union citizen a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the FEU Treaty and the measures adopted for their implementation (see, to that effect, judgment of 8 May 2018, K.A. and Others (Family reunification in Belgium), C‑82/16, EU:C:2018:308, paragraph 48 and the case-law cited).


It is true that a measure such as that provided for in the French Civil Code makes it possible to ensure that <mask> is retained and is therefore one of the means by which the authorities of a Member State can guarantee that, in a situation such as that at issue in the main proceedings, the person concerned does not lose that status.


In the judgment in Rottmann,   the Court therefore held that, in view of the fundamental nature of the <mask> conferred by Article 20 TFEU, the situation of a citizen of the Union who is faced with a decision withdrawing his or her naturalisation adopted by the authorities of one Member State thus placing him or her, after he or she has lost the nationality of another Member State that he or she originally possessed, in a position capable of causing him or her to lose that status and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of EU law.


The second question referred should therefore be reworded as asking, in essence, whether the competent national authorities, including as the case may be the national courts, are required to examine the compatibility of the decision revoking the assurance as to the grant of the nationality of a Member State – and rejecting the application to obtain that nationality – with the principle of proportionality, having regard to the consequences that that decision has for the position of the person concerned in the light of EU law, namely the permanent loss of <mask>, and, accordingly, the compliance of that decision with that principle.


26 On the date on which the revocation decision at issue in the main proceedings was adopted, that date being decisive for the purpose of examining the merits of the judgment of the Verwaltungsgericht Wien (Administrative Court, Vienna), JY no longer had the status of citizen of the Union. Consequently, unlike the situations that gave rise to the judgments of 2 March 2010, Rottmann (C‑135/08, EU:C:2010:104), and of 12 March 2019, Tjebbes and Others (C‑221/17, EU:C:2019:189), the loss of <mask> was not the corollary of that decision. On the contrary, as a result of the revocation of the assurance as to the grant of Austrian nationality, combined with the refusal of her application to be granted that nationality, JY lost the right, a right acquired on a conditional basis, to obtain citizenship of the Union again, a citizenship which she had previously given up herself.


By adopting the Residence Directive, the EU legislature aspired to codify in a single act the earlier secondary law which dealt separately with workers, self-employed persons, students and other inactive persons, in order to simplify and strengthen the right of free movement and residence of Union citizens (see recitals 3 and 4). Moving beyond that fragmentary approach, that directive amended or repealed that secondary law, thus conferring a new dimension on the freedom of movement based on <mask> (judgment of 7 October 2010, Lassal (C‑162/09, EU:C:2010:592, paragraph 30 and the case-law cited)).


Next, with regard to legitimate expectations, it is clear that, to the extent that the assurance as to the grant of Austrian nationality is conditional upon the renunciation and the loss of the original nationality, that assurance creates legitimate expectations on the part of the person concerned.   In particular, it seems clear to me that, in the present case, JY’s legitimate expectation of recovering her <mask> falls within the protective scope of EU law.   Therefore, in adopting a decision providing an assurance of naturalisation, the Austrian authorities must ensure that a national, such as JY, is not deprived of the status of citizen of the Union – including where offences have been committed before or after the adoption of that decision – by facilitating his or her acquisition of the nationality applied for. As is clear from my proposed answer to the second question referred for a preliminary ruling, I take the view that, in exercising those powers, the Austrian authorities must also take into account the specific circumstances of each situation, applying the principle of proportionality.


(Reference for a preliminary ruling — <mask> — Extradition to a third country of a national of a Member State — Requested person has only obtained the citizenship of the Union after it had transferred its centre of interest to the requested Member State — Protection of nationals against extradition — Obligations of the requested State and the Member State of origin of the citizen of the Union — Objective of preventing the risk of impunity in criminal proceedings)


(Reference for a preliminary ruling – <mask> – Right of Union citizens to move freely within the territories of the Member States – Article 21 TFEU – Directive 2004/38/EC – Articles 4 and 5 – Obligation to carry an identity card or a passport – Regulation (EC) No 562/2006 (Schengen Borders Code) – Annex VI – Crossing the maritime border of a Member State on board a pleasure boat – Rules on sanctions applicable when moving between Member States without an identity card or passport – Rules on daily fines in criminal cases – Calculation of the fine based on the offender’s average monthly income – Proportionality – Severity of the sanction in relation to the offence)


Article 20(1) TFEU provides that ‘every person holding the nationality of a Member State shall be a citizen of the Union. <mask> shall be additional to and not replace national citizenship’. Article 20 TFEU therefore confers on every individual who is a national of a Member State citizenship of the Union,   which is destined to be the fundamental status of all nationals of the Member States.   This means that the nationality of a Member State is the prerequisite for enjoyment of EU citizenship, to which all the rights and duties provided for in the FEU Treaty are attached.   Citizenship of the Union is thus not only derived but also additional, in so far as it affords supplementary rights to citizens of the Union, such as the right to move and reside freely within the territory of the Member States or the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections.   Accordingly, Union citizenship confers on the nationals of the Member States a citizenship ‘beyond the State’.


It is therefore my view that the situation of a person who, after renouncing his or her original nationality for the purpose of satisfying a condition for the grant of nationality imposed by the law of the host Member State, is faced with a decision revoking the assurance as to the grant of nationality taken by the authorities of that State, thus placing him or her in a position in which <mask> and the rights attaching thereto are permanently lost, falls, by reason of its nature and its consequences, within the scope of EU law.


It is indeed true that, in the present case, on the date relevant for the purpose of examining the merits of the action brought in the main proceedings, namely that on which the contested decision was adopted,   JY had already become stateless and, as a result, had lost her <mask>. It is likewise true that the loss of that status is not a direct result of the contested decision. Indeed, JY relinquished her citizenship of the Republic of Estonia by means of a decision of the government of that Member State.


Thus, as regards the first question, the referring court states at the outset that, having regard to JY’s factual and legal circumstances on the date on which the contested was adopted, circumstances which are decisive for consideration of the merits of the judgment of the Verwaltungsgericht Wien (Administrative Court, Vienna), JY was not a citizen of the Union. Unlike the situation of the interested parties in the cases which gave rise to the judgments in Rottmann and Tjebbes and Others, the loss of the status of citizen of the Union is not, in the present case, the corollary of the contested decision. On the contrary, as a result of the revocation of the assurance as to the grant of nationality, combined with the refusal of her application to be granted Austrian nationality, JY lost the right, a right acquired on a conditional basis, to recover the <mask> which she herself had already given up.


On the other hand, the Treaty provisions on <mask> do not confer any autonomous right on third-country nationals. Any rights conferred on third-country nationals are not autonomous rights of those nationals but rights derived from those enjoyed by a Union citizen. The purpose and justification of those derived rights are based on the fact that a refusal to allow them would be such as to interfere, in particular, with freedom of movement of a Union citizen (judgment of 8 May 2018, K.A. and Others(Family reunification in Belgium), C‑82/16, EU:C:2018:308, paragraph 50 and the case-law cited).


43 Thus, the underlying logic of gradual integration that informs that provision of the FEU Treaty requires that the situation of citizens of the Union, who acquired rights under that provision as a result of having exercised their right to free movement within the European Union and are liable to lose not only entitlement to those rights but also the very status of citizen of the Union, even though they have sought, by becoming naturalised in the host Member State, to become more deeply integrated in the society of that Member State, falls within the scope of the Treaty provisions relating to <mask>.


In that regard, I must point out that it is for the competent national authorities and the national courts to determine whether, when it entails the permanent loss of <mask> and the rights attaching thereto, the decision to revoke the assurance as to the grant of nationality and to reject the application to obtain that nationality has due regard to the principle of proportionality so far as concerns the consequences of that decision for the situation of the person concerned and, if relevant, for that of the members of his or her family, from the point of view of EU law.   Accordingly, in order for such a decision to be compatible with the principle of proportionality, the relevant national rules must permit an individual examination of the consequences of revoking the assurance from the point of view of EU law.


(Reference for a preliminary ruling – Freedom of movement for persons – <mask> – Agreement on the withdrawal of the United Kingdom – Transition period – Article 18 TFEU – Non-discrimination on the ground of nationality – Directive 2004/38/EC – Article 24 – National right of residence – Social assistance – National provision excluding from a subsistence allowance economically inactive Union citizens with a national right of residence – Equal treatment)


Second, such an interpretation, which has the effect of not extending the scope of Article 24(2) of Directive 2004/38, satisfies the requirement that that provision be interpreted strictly and in accordance with the provisions of the FEU Treaty, including those relating to <mask> and freedom of movement for workers, as referred to in the judgment in Jobcenter Krefeld.


A citizen who has submitted a proposed citizens’ initiative must be placed in a position to be able to understand the reasons for which it was not registered by the Commission, with the result that it is incumbent on the Commission, when it receives such a proposal, to appraise it and also to state the different reasons for any refusal to register it, given the effect of such a refusal on the effective exercise of the right enshrined in the Treaty. This follows from the very nature of this right which, as is pointed out in recital 1 of Regulation No 211/2011, is intended to reinforce <mask> and to enhance the democratic functioning of the European Union through the participation of citizens in its democratic life (see judgment of 3 February 2017, Minority SafePack – one million signatures for diversity in Europe v Commission, T‑646/13, EU:T:2017:59, paragraph 18 and the case-law cited).


(Reference for a preliminary ruling – <mask> – Directive 2004/38/EC – Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States – Article 15 – End of a Union citizen’s temporary residence in the territory of the host Member State – Expulsion decision – Physical departure of that Union citizen from that territory – Temporal effects of that expulsion decision – Article 6 – Possibility for that Union citizen to enjoy a new right of residence on his or her return to that territory)


In the present case, it is apparent from the legal context as presented by the referring court that, under Paragraph 20(1) of the StbG, the assurance as to the grant of Austrian nationality is subject to the essential condition that the person concerned must, within two years, relinquish his or her citizenship of the Member State of origin. In other words, that person must agree not only to become stateless but to lose his or her <mask>.


28 In those circumstances, the Verwaltungsgerichtshof (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Does the situation of a natural person who, like the appellant in cassation in the main proceedings, has renounced her only nationality of a Member State of the European Union, and thus her <mask>, in order to obtain the nationality of another Member State, having been given a guarantee by the other Member State of grant of the nationality applied for, and whose possibility of recovering citizenship of the Union is subsequently eliminated by revocation of that guarantee, fall, by reason of its nature and its consequences, within the scope of EU law, such that regard must be had to EU law when revoking the guarantee of grant of citizenship? If the first question is answered in the affirmative, (2) Is it for the competent national authorities, including any national courts, involved in the decision to revoke the guarantee of grant of nationality of the Member States, to establish whether the revocation of the guarantee that prevented the recovery of citizenship of the Union is compatible with the principle of proportionality from the point of view of EU law in terms of its consequences for the situation of the person concerned?’ Consideration of the questions referred


(Reference for a preliminary ruling — <mask> — Article 21 TFEU — Right of Union citizens and their family members to move and reside freely in the territory of a Member State — Directive 2004/38/EC — Article 3(1) and Articles 15, 27, 28, 30 and 31 — Definition of ‘beneficiary’ — Third-country national, the spouse of a Union citizen who has exercised his right to freedom of movement — Return of the Union citizen to the Member State of which he is a national, where he is serving a prison sentence — Requirements imposed on the host Member State under Directive 2004/38/EC when making a decision to remove such a third-country national)


This line of reasoning can be applied to BY. He had his residence in Germany at the time that he obtained Romanian citizenship and, by extension, <mask>. In these circumstances, it does not matter when a citizen of the EU has obtained such citizenship. Neither is it necessary for an EU citizen actually to cross a border for the application of Article 21 TFEU.


In the first place, although the decisions of the Estonian Government and of the Wiener Landesregierung (Government of the Province of Vienna) are admittedly based on the system of acquiring and losing nationality under two different national legal orders,   I however share the Commission’s view that the revocation of the assurance as to the naturalisation of a person who is stateless on the date of such revocation must not be considered in isolation but take into account the fact that that person was a national of another Member State and therefore held <mask>.   Accordingly, at that stage, JY’s loss of her citizenship of the Union should, in my view, be assessed by taking into account not only the decision of the Estonian authorities but also the Austrian procedure of naturalisation taken as a whole.


The same applies to the legal concepts linked with <mask> or coming within the sphere of the internal market, such as the concept of grounds of ‘public security’ as an exception to the general rule of freedom of movement. As I said earlier in this Opinion,   the guarantees of the rule of law, in particular the obligation to state the reasons on which administrative acts are based, may be restricted in the interest of public security. Although that general assertion is, in principle, correct, it is however necessary to make a few important points. The fact that the Visa Code and the provisions implementing the freedoms of the internal market refer to ‘public security’ does not mean that they are referring to the same legal concept and that that concept must be interpreted in the same way. In accordance with what has already been said,   the context of a provision in the legal order of the Union has a decisive influence on its interpretation.


Is it for the competent national authorities, including any national courts, involved in the decision to revoke the guarantee of grant of nationality of the Member States, to establish whether the revocation of the guarantee that prevented the recovery of <mask> is compatible with the principle of proportionality from the point of view of EU law in terms of its consequences for the situation of the person concerned?’


It follows from the foregoing considerations that the legal status of a visa applicant cannot be assimilated to that of a citizen of the Union or a family member of such a citizen who is a third-country national. Any application by analogy of the legal concepts relating to <mask> and to the internal market to the visa regime is therefore precluded.


According to the settled case-law of the Court,   <mask> is destined to be the fundamental status of nationals of the Member States, enabling those nationals who find themselves in the same situation to enjoy within the scope ratione materiae of EU law, the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for. The situations falling within the scope ratione materiae of Union law include those involving the exercise of the fundamental freedoms guaranteed by the Treaty, in particular those involving the freedom to move and reside within the territory of the Member States as conferred by Article 21(1) TFEU.


In that regard, it must be borne in mind that, in accordance with the settled case-law, Article 20 TFEU confers on every individual who is a national of a Member State <mask>, which is intended to be the fundamental status of nationals of the Member States (judgment of 8 May 2018, K.A. and Others(Family reunification in Belgium), C‑82/16, EU:C:2018:308, paragraph 47 and the case-law cited).


(Reference for a preliminary ruling – <mask> – Right to move and reside freely in the territory of the Member States – Directive 2004/38/EC – Article 13(2) – Right of residence of family members of a Union citizen – Marriage between a Union citizen and a third-country national – Retention of the right of residence by a third-country national who is the victim of domestic violence in the event of the marriage ending – Obligation to demonstrate the existence of sufficient resources – Absence of such an obligation in Directive 2003/86/EC – Validity – Charter of Fundamental Rights of the European Union – Articles 20 and 21 – Equal treatment – Discrimination based on the nationality of the sponsor)


In one judgment, the Court also referred to solidarity between producers in order to justify the distribution of burdens and benefits required under rules of EU law, but stopped short of identifying solidarity as a general principle of law,   and it has mentioned solidarity in other judgments concerning <mask> and social measures, albeit to a limited extent. It did not rely on that concept, at least not expressly, in the judgments on the financial assistance measures adopted following the economic crisis of 2008.


(Reference for a preliminary ruling – Freedom of movement of persons – <mask> – Article 21 TFEU – Freedom of establishment – Article 49 TFEU – Equal treatment – Directive 2004/38/EC – Article 24(1) – Legislation of the United Kingdom of Great Britain and Northern Ireland making the exclusion, in principle in full and automatically, from the bankruptcy estate of pension rights accrued under a pension scheme dependent on prior registration of the pension scheme with the tax authorities – Application of that requirement in bankruptcy proceedings in respect of an EU citizen who has exercised his right to freedom of movement in order to pursue a self-employed occupation in the United Kingdom on a permanent basis – That EU citizen’s pension rights accrued under a pension scheme established and tax approved in his home Member State – Inability to avail of the protection of exclusion from the bankruptcy estate of those pension rights – Application to those pension rights of a system of exclusion from the bankruptcy estate significantly less advantageous to the bankrupt)


In particular, as the Court has held on numerous occasions and as is apparent from recitals 1 and 2 of Directive 2004/38, <mask> confers on each Union citizen a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and restrictions laid down by the Treaties and to the measures adopted for their implementation, freedom of movement for persons being, moreover, one of the fundamental freedoms of the internal market enshrined in Article 45 of the Charter of Fundamental Rights of the European Union (see, to that effect, judgment of 5 May 2011, McCarthy, C‑434/09, EU:C:2011:277, paragraph 27 and the case-law cited).


In that regard, I would point out that, in accordance with settled case-law, any rights granted to third-country nationals by the provisions of EU law on <mask> are not autonomous rights of those nationals, but rights derived from the exercise of the freedom of movement and residence by a Union citizen. Thus, a derived right of residence of a third-country national exists, in principle, only when it is necessary in order to ensure that a Union citizen can effectively exercise his or her rights to move and reside freely in the European Union (see judgment of 13 September 2016, Rendón Marín (C‑165/14, EU:C:2016:675, paragraph 36 and the case-law cited).


As a preliminary point, it should be recalled that <mask> – as introduced by the Treaty of Maastricht   – confers on every Union citizen a fundamental and individual right to move and reside freely within the territory of the Member States, subject to the limitations and restrictions laid down by the Treaties and the measures adopted for their implementation. That right is currently conferred on Union citizens by Article 21(1) TFEU, as reaffirmed in Article 45 of the Charter of Fundamental Rights of the European Union. The Residence Directive, which governs inter alia the conditions for exercise of the right of Union citizens and their family members to move and reside freely within the territory of the Member States, aims to facilitate and strengthen the exercise of that right.


It is my view that such case-law should be used as guidance in a case such as that in the main proceedings. Where a child with <mask> is abducted to a non-Member State, to regard the courts of that State as having jurisdiction to rule on parental responsibility in respect of that child is tantamount to cutting any link with EU law, even though that child is the victim of wrongful removal or retention. However, in my opinion, that unlawful action cannot deprive such a child of the genuine enjoyment of the right to have parental responsibility examined in his or her regard by a court of a Member State.


Article 20(1) of the Treaty on the Functioning of the European Union establishes <mask> and provides that ‘every person holding the nationality of a Member State’ is to be a citizen of the Union. In accordance with Article 20(2)(a) TFEU, citizens of the Union are to have ‘the right to move and reside freely within the territory of the Member States’.


By its first question, the referring court asks, in essence, whether the situation of a natural person who, having the nationality of just one Member State, renounces that nationality, and therefore his or her <mask>, in order to obtain the nationality of another Member State, in accordance with the decision of the authorities of the latter providing the assurance that that nationality will be granted to him or her, falls, by reason of its nature and its consequences, within the scope of EU law, where that decision is subsequently revoked and his or her application for the grant of the nationality is rejected.


(Request for a preliminary ruling from the Tribunal judiciaire d’Auch (Court of Auch, France)) (Reference for a preliminary ruling – <mask> – Interpretation and validity of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community – National of the United Kingdom residing in a Member State of the European Union for more than 15 years and deprived of the right to vote in the United Kingdom – Removal from the electoral list in the Member State of residence)


37. First of all, it should be pointed out that <mask> – as introduced by the Maastricht Treaty (12) – confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and to the measures adopted to give them effect. That right is now conferred on the citizens of the Union by Article 21(1) TFEU as reaffirmed in Article 45 of the Charter of Fundamental Rights of the European Union.


6 Article 20 TFEU provides: ‘1. <mask> is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: (a) the right to move and reside freely within the territory of the Member States; … These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.’


Judgment in Tjebbes and Others, paragraph 30 and the case-law cited. In his Opinion in Tjebbes and Others (C‑221/17, EU:C:2018:572, point 28), Advocate General Mengozzi took the view that the applicants in the main proceedings had not definitively lost their <mask> as conferred by Article 20 TFEU, but that they had been placed in a ‘position capable of causing them to lose that status’, and concluded that the situations at issue in that case fell within the scope of EU law. However, in its judgment, the Court did not examine the applicability of EU law.


As I have set out,   both JY’s statelessness and her loss of the status of citizen of the Union are the result of the Austrian naturalisation procedure, taken as a whole. I am therefore of the view that the situation of a national of a Member State such as JY, who has renounced her original nationality with the sole aim of satisfying the condition for the assurance of the grant of Austrian nationality laid down in national legislation   and, therefore, for the sole purpose of recovering <mask> is immaterial when it comes to determining whether the revocation of the assurance as to the grant of the nationality has due regard to the principle of proportionality. Accordingly, such a renunciation cannot be regarded as a relevant factor when examining the circumstances pertaining to the individual situation of the person concerned.


27 However, if a situation such as that of JY falls within EU law, the referring court asks whether the competent national authorities and courts must ascertain, in accordance with the Court’s case-law, whether the revocation of the assurance as to the grant of the nationality concerned, which prevents <mask> from being obtained again, is compatible, from the point of view of EU law, with the principle of proportionality, having regard to the consequences of such a decision on the situation of the person concerned. That court considers that it would be logical, in that case, for such a review of proportionality to be required and asks, in the present case, whether the mere fact that JY has renounced her citizenship of the Union by putting an end herself to the special relationship of solidarity and good faith which united her to Estonia and also the reciprocity of rights and duties with that Member State, which formed the bedrock of the bond of nationality (see, to that effect, judgment of 12 March 2019, Tjebbes and Others (C‑221/17, EU:C:2019:189, paragraph 33), is decisive in that regard.


Article 20 TFEU, read in the light of Article 7 of the Charter of Fundamental Rights of the European Union, does not preclude, in principle, legislation of a Member State, such as that at issue in the main proceedings, which allows that Member State, on public-interest grounds, to revoke the assurance as to the grant of its nationality, even where that revocation decision entails the permanent loss of <mask> for the person concerned and makes it impossible for that person to recover that status and the rights attaching thereto, provided that the competent national authorities, including, where appropriate, the national courts, examine whether that decision is compatible with the principle of proportionality having regard to the consequences which it entails for the situation of the person concerned in the light of EU law and, accordingly, whether that decision complies with that principle.


In addition, the French Government considers that JY, having renounced her original Estonian nationality on account of the assurance given by a Member State that nationality of that State would be granted to her, is faced with a decision revoking that assurance which has the effect of keeping her stateless, as characterised by the loss of <mask> conferred by Article 20 TFEU and the rights attaching thereto. In such a situation, the Member States are required to comply with EU law in exercising their powers in the sphere of nationality.


With regard, in the second place, to the written observations submitted by the parties, the Austrian Government concurs with the view of the referring court and states that JY renounced her Estonian nationality, and therefore her <mask>, voluntarily. However, JY states that she never intended to renounce her citizenship of the Union as her fundamental status. She merely wanted – and legitimately expected – to acquire the nationality of another Member State and, ultimately, involuntarily lost citizenship of the Union. JY submits that, in so far as the revocation of the assurance of the grant of Austrian nationality concerns her rights as a citizen of the Union, the Austrian authorities were obliged to comply with EU law in that regard.


(Reference for a preliminary ruling — <mask> — Directive 2004/38/EC — Articles 5, 10 and 20 — Right of entry to a Member State of a third-country national who is a member of the family of an EU citizen — Visa exemption — Family member’s residence card — Permanent residence card — Convention implementing the Schengen Agreement — Article 26 — Obligation imposed on carriers to ensure that passengers hold the travel documents required for entry into the Member State of destination)


Judgment of 8 March 2011 (C‑34/09, EU:C:2011:124, paragraph 42). In that regard, the situation of Mr Ruiz Zambrano’s children, which was ‘liable to deprive them of the genuine enjoyment of the substance of the rights conferred by their status of citizens of the Union’, and that of Mr Rottmann, which was ‘liable to lead to the loss of the status conferred by Article 20 TFEU and the rights attaching thereto’ (the judgment in Rottmann, paragraph 42) are comparable in that, in those two situations, <mask> had been rendered redundant. See, in that regard, my Opinion in Rendón Marín and CS (C‑165/14 and C‑304/14, EU:C:2016:75, points 114 and 115).


In that judgment, it was a general condition for the loss of Netherlands nationality by operation of law, and therefore <mask> by the persons concerned, which was examined in the light of EU law.   The Court confirmed   the principle set out in the earlier case-law.   Referring to paragraphs 42 and 45 of the judgment in Rottmann, it held that the situation of citizens of the Union who are nationals of one Member State and who, by losing that nationality, are faced with losing the citizenship of the Union conferred by Article 20 TFEU and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of EU law, and that, therefore, the Member States must, when exercising their powers in the sphere of nationality, have due regard to EU law.


It must be noted that it is apparent from recitals 1 and 2 of Directive 2004/38 that <mask> confers on each Union citizen a primary and individual right to move and to reside freely within the territory of the Member States, subject to the limitations and restrictions laid down by the Treaties and the measures adopted to give them effect, freedom of movement for persons being, moreover, one of the fundamental freedoms of the internal market, as affirmed in Article 45 of the Charter (judgment of 22 June 2021, Ordre des barreaux francophones et germanophone and Others (Preventive measures for removal), C‑718/19, EU:C:2021:505, paragraph 54 and the case-law cited).


(Reference for a preliminary ruling — <mask> — Directive 2004/38/EC — Right of citizens of the Union and their family members to move and reside freely within the territory of a Member State — Beneficiaries — Third-country national who is the spouse of a Union citizen who has exercised his freedom of movement and then returned to the Member State of which he is a national where he is serving a prison sentence — Applicability of Directive 2004/38 to the expulsion of that third-country national — Scope of Article 15 and of Chapter VI)


The statelessness imposed by the Austrian system of acquiring nationality means that a national of a Member State who wishes to obtain Austrian nationality, such as JY, is faced with the temporary loss of <mask>, as conferred by Article 20 TFEU. However, it can also mean that such a national is subsequently faced with the permanent loss of that status, where – as in the present case – the assurance as to naturalisation may be revoked by the Austrian authorities owing to the commission of an offence, thus depriving him or her of all the rights attaching thereto.


With regard, in the first place, to the specific features of the present case, the referring court states that the situation at issue in the main proceedings is characterised by the fact that, on the date on which the contested decision was adopted, JY had already renounced her Estonian nationality and, therefore, her <mask>. Accordingly, unlike the circumstances which gave rise to the judgments in Rottmann and Tjebbes and Others, the loss of Union citizenship is not the corollary of the contested decision and JY’s situation does not fall within the scope of EU law.


Does the situation of a natural person who, like the appellant in cassation in the main proceedings, has renounced her only nationality of a Member State, and thus her <mask>, in order to obtain the nationality of another Member State, having been given a guarantee by the other Member State of grant of the nationality applied for, and whose possibility of recovering citizenship of the Union is subsequently eliminated by revocation of that guarantee, fall, by reason of its nature and its consequences, within the scope of EU law, such that regard must be had to EU law when revoking the guarantee of grant of citizenship?


6 Article 20 TFEU provides: ‘1. <mask> is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: … (b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State. …’


If the first question is answered in the affirmative, the referring court also asks whether the competent national authorities and the national courts having jurisdiction are required to review, in accordance with the case-law of the Court, whether the revocation of the assurance as to the grant of Austrian nationality, which prevents the person concerned from being able to recover her status as a citizen of the Union, is compatible with the principle of proportionality from the perspective of EU law. The referring court considers that such a review of proportionality must be required and asks, in that connection, whether the mere fact that JY has renounced her <mask> and relinquished the special relationship of solidarity and good faith between her Member State of origin and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality,   is decisive.