European citizenship, "cannot be applied to activities which have no factor linking them with any of the situations governed". The importance of the InterState element, has conducted to compare with internal situation, because their situation does not present a link with other Member State. On Morson and Jhanjan Case, C-35/82, the European Court of Justice (ECJ) held that two Dutch nationals working in their own Member State "who had never exercised the freedom of movement within the European Unión (EU), their situation was to be regarded as purely internal".
Such situations are being treated less favourably than EU citizens who can demostrate a sufficient link wiht EU law?
In recent case law "Ruiz Zambrano"the ECJ seems willing to combat, at least the gravest instances of reverse discrimination. The Court held that EU law was applicable to the circumstances of the case, and that precludes national measures which have the effect of depriving EU citizen of "the genuine enjoyment of the substance of the rights confered by virtue of their status as citizen of EU".
The situation was that Mr. Zambrano was a Colombian national who came to Belgium together with his Colombian spouse and their first child. His request for asylum was rejected by the Belgian authorities. During his stay in Belgium, Mr. Ruiz Zambrano' spouse gave birth to a second and third child, who acquired the Belgian nationality on grounds of their birth in Beligium. Then, second and third child are citizens of EU, because the ART. 20 of TFUE are applied to Member States nationals. That rejected request deprives to second and third child "the enjoyment of the substance of the rights confered by virtue of their status as citizen of EU".
Ruiz Zambrano case is an example of unlinking the idea of that European citizenship depends of their exercise.
However on Mc Carthy Case, C 434/09, ECJ had to answer whether the applicant could in the circumstances of the case rely on the provisions of EU law despite of Mrs Mc Carthy had never exercised their european rights, then seemed to amount to a solely internal situation. Also Mrs Carthy possessed the nationality of another Member State different to the place where she resides.
The Court explained that EU law was not applicable in the circumstances of the case. Mrs McCarthy could not invoke ART 21 TFEU because the contested national measure did not have the effect of depriving her of the genuine enjoyment of the substance of her citizenship of impeding the exercise of her right of free movement and residence.
The esencial concept is that ECJ has distinguished the circumstances case by case, these circumstances have the effect of impeding the exercise of european citizenship rights.
However on Mc Carthy Case, C 434/09, ECJ had to answer whether the applicant could in the circumstances of the case rely on the provisions of EU law despite of Mrs Mc Carthy had never exercised their european rights, then seemed to amount to a solely internal situation. Also Mrs Carthy possessed the nationality of another Member State different to the place where she resides.
The Court explained that EU law was not applicable in the circumstances of the case. Mrs McCarthy could not invoke ART 21 TFEU because the contested national measure did not have the effect of depriving her of the genuine enjoyment of the substance of her citizenship of impeding the exercise of her right of free movement and residence.
The esencial concept is that ECJ has distinguished the circumstances case by case, these circumstances have the effect of impeding the exercise of european citizenship rights.
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